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390 U.S. 39
88 S.Ct. 697
19 L.Ed.2d 889
James MARCHETTI, Petitioner,v.UNITED STATES.
No. 2.
Reargued Oct. 10, 1967.
Decided Jan. 29, 1968.
Jacob D. Zeldes, Bridgeport, Conn., for petitioner.
Francis X. Beytagh, Jr., Cleveland, Ohio, for respondent, pro hac vice, by special leave of Court.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioner was convicted in the United States District Court for the District of Connecticut under two indictments which charged violations of the federal wagering tax statutes. The first indictment averred that petitioner and others conspired to evade payment of the anuual occupational tax imposed by 26 U.S.C. § 4411. The second indictment consisted of two counts: the first alleged a willful failure to pay the occupational tax, and the second a willful failure to register, as required by 26 U.S.C. § 4412, before engaging in the business of accepting wagers.
2
After verdict, petitioner unsuccessfully sought to arrest judgment, in part on the basis that the statutory obligations to register and to pay the occupational tax violated his Fifth Amendment privilege against self-incrimination. The Court of Appeals for the Second Circuit affirmed, 352 F.2d 848, on the authority of United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754, and Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475.
3
We granted certiorari to re-examine the constitutionality under the Fifth Amendment of the pertinent provisions of the wagering tax statutes, and more particularly to consider whether Kahriger and Lewis still have vitality.1 383 U.S. 942, 86 S.Ct. 1195, 16 L.Ed.2d 205. For reasons which follow we have concluded that these provisions may not be employed to punish criminally those persons who have defended a failure to comply with their requirements with a proper assertion of the privilege against self-incrimination. The judgment below is accordingly reversed.
I.
4
The provisions in issue here are part of an interrelated statutory system for taxing wagers. The system is broadly as follows. Section 4401 of Title 26 imposes upon those engaged in the business of accepting wagers an excise tax of 10% on the gross amount of all wagers they accept, including the value of chances purchased in lotteries conducted for profit. Parimutuel wagering enterprises, coin-operated devices, and state-conducted sweepstakes are expressly excluded from taxation. 26 U.S.C. § 4402 (1964 ed. Supp. II). Section 4411 imposes in addition an occupational tax of $50 annually, both upon those subject to taxation under § 4401 and upon those who receive wagers on their behalf.
5
The taxes are supplemented by ancillary provisions calculated to assure their collection. In particular, § 4412 requires those liable for the occupational tax to register each year with the director of their local internal revenue district. The registrants must submit Internal Revenue Service Form 11—C,2 and upon it must provide their residence and business addresses, must indicate whether they are engaged in the business of accepting wagers, and must list the names and addresses of their agents and employees. The statutory obligations to register and to pay the occupational tax are essentially inseparable elements of a single registration procedure;3 Form 11-C thus constitutes both the application for registration and the return for the occupational tax.4
6
In addition, registrants are obliged to post the revenue stamps which denote payment of the occupational tax 'conspicuously' in their principal places of business, or, if they lack such places, to keep the stamps on their persons, and to exhibit them upon demand to any Treasury officer. 26 U.S.C. § 6806(c). They are required to preserve daily records indicating the gross amount of the wagers as to which they are liable for taxation, and to permit inspection of their books of account. 26 U.S.C. §§ 4403, 4423. Moreover, each principal internal revenue office is instructed to maintain for public inspection a listing of all who have paid the occupational tax, and to provide certified copies of the listing upon request to any state or local prosecuting officer. 26 U.S.C. s 6107. Finally, payment of the wagering taxes is declared not to 'exempt any person from any penalty provided by a law of the United States or of any State for engaging' in any taxable activity. 26 U.S.C. § 4422.
II.
7
The issue before us is not whether the United States may tax activities which a State or Congress has declared unlawful. The Court has repeatedly indicated that the unlawfulness of an acivity does not prevent its taxation, and nothing that follows is intended to limit or diminish the vitality of those cases. See, e.g., License Tax Cases, 5 Wall. 462, 18 L.Ed. 497. The issue is instead whether the methods employed by Congress in the federal wagering tax statutes are, in this situation, consistent with the limitations created by the privilege against self-incrimination guaranteed by the Fifth Amendment. We must for this purpose first examine the implications of these statutory provisions.
8
Wagering and its ancillary activities are very widely prohibited under both federal and state law. Federal statutes impose criminal penalties upon the interstate transmission of wagering information, 18 U.S.C. § 1084; upon intersate and foreign travel or transportation in aid of racketeering enterprises, defined to include gambling, 18 U.S.C. § 1952; upon lotteries conducted through use of the mails or broadcasting, 18 U.S.C. §§ 1301—1304; and upon the interstate transportation of wagering paraphernalia, 18 U.S.C. § 1953.
9
State and local enactments are more comprehensive. The laws of every State, except Nevada, include broad prohibitions against gambling, wagering, and associated activities.5 Every State forbids, with essentially minor and carefully circumscribed exceptions, lotteries.6 Even Nevada, which permits many forms of gambling, retains criminal penalties upon lotteries and certain other wagering activities taxable under these statutes. Nev.Rev.Stat. §§ 293.603, 465.010 (1957).
10
Connecticut, in which petitioner allegedly conducted his activities, has adopted a variety of measures for the punishment of gambling and wagering. It punishes '(a)ny person, whether as principal, agent or servant, who owns, possesses, keeps, manages, maintains or occupies' premises employed for purposes of wagering or pool selling. Conn.Gen.Stat.Rev. § 53—295 (1958). It imposes criminal penalties upon any person who possesses, keeps or maintains premises in which policy playing occurs, or lotteries are conducted, and upon any person who becomes the custodian of books, property, appliances, or apparatus employed for wagering. Conn.Gen.Stat.Rev. § 53—298 (1958). See also §§ 53—273, 53—290, 53—293. It provides additional penalties for those who conspire to organize or conduct unlawful wagering activities. Conn.Gen.Stat.Rev. § 54—197 (1958). Every aspect of petitioner's wagering activities thus subjected him to possible state or federal prosecution. By any standard, in Connecticut and throughout the United States, wagering is 'an area permeated with criminal statutes,' and those engaged in wagering are a group 'inherently suspect of criminal activities.' Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165.
11
Information obtained as a consequence of the federal wagering tax laws is readily available to assist the efforts of state and federal authorities to enforce these penalties. Section 6107 of Title 26 requires the principal internal revenue offices to provide to prosecuting officers a listing of those who have paid the occupational tax. Section 6806(c) obliges taxpayers either to post the revenue stamp 'conspicuously' in their principal places of business, or to keep it on their persons, and to produce it on the demand of Treasury officers. Evidence of the possession of a federal wagering tax stamp, or of payment of the wagering taxes, has often been admitted at trial in state and federal prosecutions for gambling offenses;7 such evidence has doubtless proved useful even more frequently to lead prosecuting authorities to other evidence upon which convictions have subsequently been obtained.8 Finally, we are obliged to notice that a former Commissioner of Internal Revenue has acknowledged that the Service 'makes available' to law enforcement agencies the names and addresses of those who have paid the wagering taxes, and that it is in 'full cooperation' with the efforts of the Attorney General of the United States to suppress organized gambling. Caplin, The Gambling Business and Federal Taxes, 8 Crime & Delin. 371, 372, 377.
12
In these circumstances, it can scarcely be denied that the obligations to register and to pay the occupational tax created for petitioner 'real and appreciable,' and not merely 'imaginary and unsubstantial,' hazards of self-incrimination. Reg. v. Boyes, 1 B. & S. 311, 330; Brown v. Walker, 161 U.S. 591, 599—600, 16 S.Ct. 644, 647, 648, 40 L.Ed. 819; Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 442, 95 L.Ed. 344. Petitioner was confronted by a comprehensive system of federal and state prohibitions against wagering activities; he was required, on pain of criminal prosecution, to provide information which he might reasonably suppose would be available to prosecuting authorities, and which would surely prove a significant 'link in a chain'9 of evidence tending to establish his guilt.10 Unlike the income tax return in question in United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037, every portion of these requirements had the direct and unmistakable consequence of incriminating petitioner; the application of the constitutional privilege to the entire registration procedure was in this instance neither 'extreme' nor 'extravagant.' See id., at 263, 47 S.Ct. 607. It would appear to follow that petitioner's assertion of the privilege as a defense to this prosecution was entirely proper, and accordingly should have sufficed to prevent his conviction.
13
Nonetheless, this Court has twice concluded that the privilege against self-incrimination may not appropriately be asserted by those in petitioner's circumstances. United States v. Kahriger, supra; Lewis v. United States, supra. We must therefore consider whether those cases have continuing force in light of our more recent decisions. Moreover, we must also consider the relevance of certain collateral lines of authority; in particular, we must determine whether either the 'required records' doctrine, Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, or restrictions placed upon the use by prosecuting authorities of information obtained as a consequence of the wagering taxes, cf. Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, should be utilized to preclude assertion of the constitutional privilege in this situation. To these questions we turn.
III.
14
The Court's opinion in Kahriger suggested that a defendant under indictment for willful failure to register under § 4412 cannot properly challenge the constitutionality under the Fifth Amendment of the registration requirement. For this point, the Court relied entirely upon Mr. Justice Holmes' opinion for the Court in United States v. Sullivan, supra. The taxpayer in Sullivan was convicted of willful failure to file an income tax return, despite his contention that the return would have obliged him to admit violations of the National Prohibition Act. The Court affirmed the conviction, and rejected the taxpayer's claim of the privilege. It concluded that most of the return's questions would not have compelled the taxpayer to make incriminating disclosures, and that it would have been 'an extreme if not an extravagant application' of the privilege to permit him to draw within it the entire return. 274 U.S., at 263, 47 S.Ct. at 607.
15
The Court in Sullivan was evidently concerned, first, that the claim before it was an unwarranted extension of the scope of the privilege, and, second, that to accept a claim of privilege not asserted at the time the return was due would 'make the taxpayer rather than a tribunal the final arbiter of the merits of the claim.' Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165. Neither reason suffices to prevent this petitioner's assertion of the privilege. The first is, as we have indicated, inapplicable, and we find the second unpersuasive in this situation. Every element of these requirements would have served to incriminate petitioner; to have required him to present his claim to Treasury officers would have obliged him 'to prove guilt to avoid admitting it.' United States v. Kahriger, supra, 345 U.S. at 34, 73 S.Ct. at 516 (concurring opinion). In these circumstances we cannot conclude that his failure to assert the privilege to Treasury officials at the moment the tax payments were due irretrievably abandoned his constitutional protection. Petitioner is under sentence for violation of statutory requirements which he consistently asserted at and after trial to be unconstitutional; no more can here be required.
16
The Court held in Lewis that the registration and occupational tax requirements do not infringe the constitutional privilege because they do not compel self-incrimination, but merely impose on the gambler the initial choice of whether he wishes at the cost of his constitutional privilege, to commence wagering activities. The Court reasoned that even if the required disclosures might prove incriminating, the gambler need not register or pay the occupational tax if only he elects to cease, or never to begin, gambling. There is, the Court said, 'no constitutional right to gamble.' 348 U.S., at 423, 75 S.Ct., at 418.
17
We find this reasoning no longer persuasive. The question is not whether petitioner holds a 'right' to violate state law, but whether, having done so, he may be compelled to give evidence against himself. The constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted; if such an inference of antecedent choice were alone enough to abrogate the privilege's protection, it would be excluded from the situations in which it has histrically been guaranteed, and withheld from those who most require it. Such inferences, bottomed on what must ordinarily be a fiction, have precisely the infirmities which the Court has found in other circumstances in which implied or uninformed waivers of the privilege have been said to have occurred. See, e.g., Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. Compare Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; and Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. To give credence to such 'waivers' without the most deliberate examination of the circumstances surrounding them would ultimately license widespread erosion of the privilege through 'ingeniously drawn legislation.' Morgan, The Privilege against Self-Incrimination, 34 Minn.L.Rev. 1, 37. We cannot agree that the constitutional privilege is meaningfully waived merely because those 'inherently suspect of criminal activities' have been commanded either to cease wagering or to provide information incriminating to themselves, and have ultimately elected to do neither.
18
The Court held in both Kahriger and Lewis that the registration and occupational tax requirements are entirely prospective in their application, and that the constitutional privilege, since it offers protection only as to past and present acts, is accordingly unavailable. This reasoning appears to us twice deficient: first, it overlooks the hazards here of incrimination as to past or present acts; and second, it is hinged upon an excessively narrow view of the scope of the constitutional privilege.
19
Substantial hazards of incrimination as to past or present acts plainly may stem from the requirements to register and to pay the occupational tax. See generally McKee, The Fifth Amendment and the Federal Gambling Tax, 5 Duke B.J. 86. In the first place, satisfaction of those requirements increases the likelihood that any past or present gambling offenses will be discovered and successfully prosecuted. It both centers attention upon the registrant as a gambler, and compels 'injurious disclosure(s)'11 which may provide or assist in the collection of evidence admissible in a prosecution for past or present offenses. These offenses need not include actual gambling; they might involve only the custody or transportation of gambling paraphernalia, or other preparations for future gambling. Further, the acquisition of a federal gambling tax stamp, requiring as it does the declaration of a present intent to commence gambling activities, obliges even a prospective gambler to accuse himself of conspiracy to violate either state gambling prohibitions, or federal laws forbidding the use of interstate facilities for gambling purposes. See, e.g., Acklen v. State, 196 Tenn. 314, 267 S.W.2d 101.
20
There is a second, and more fundamental, deficiency in the reasoning of Kahriger and Lewis. Its linchpin is plainly the premise that the privilege is entirely inapplicable to prospective acts; for this the Court in Kahriger could vouch as authority only a generalization at 8 Wigmore, Evidence § 2259c (3d ed.1940).12 We see no warrant for so rigorous a constraint upon the constitutional privilege. History, to be sure, offers no ready illustrations of the privilege's application to prospective acts, but the occasions on which such claims might appropriately have been made must necessarily have been very infrequent. We are, in any event, bid to view the constitutional commands as 'organic living institutions' whose significance is 'vital not formal.' Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. 1115.
21
The central standard for the privilege's application has been whether the claimant is confronted by substantial and 'real,' and not merely frifling or imaginary, hazards of incrimination. Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 442, 95 L.Ed. 344; Brown v. Walker, 161 U.S. 591, 600, 16 S.Ct. 644, 648, 40 L.Ed. 819. This principle does not permit the rigid chronological distinction adopted in Kahriger and Lewis. For one thing,we see no reason to suppose that the force of the constitutional prohibition is diminished merely because confession of a guilty purpose precedes the act which it is subsequently employed to evidence. Yet, if the factual situations in which the privilege may be claimed were inflexibly defined by a chronological formula, the policies which the constitutional privilege is intended to serve could easily be evaded. Moreover, although prosecutive acts will doubtless ordinarily involve only speculative and insubstantial risks of incrimination, this will scarcely always prove true. As we shall show, it is not true here. We conclude that it is not mere time to which the law must look, but the substantiality of the risks of incrimination.
22
The hazards of incrimination created by §§ 4411 and 4412 as to future acts are not trifling or imaginary. Prospective registrants can reasonably expect that registration and payment of the occupational tax will significantly enhance the likelihood of their prosecution for future acts, and that it will readily provide evidence which will facilitate their convictions. Indeed, they can reasonably fear that registration, and acquisition of a wagering tax stamp, may serve as decisive evidence that they have in fact subsequently violated state gambling prohibitions. Compare Ala.Code, Tit. 14, §§ 302(8)—302(10) (1958); Ga. Code Ann. § 26 6413 (Supp.1967). Insubstantial claims of the privilege as to entirely prospective acts may certainly be asserted, but such claims are not here, and they need only be considered when a litigant has the temerity to pursue them.
23
We conclude that nothing in the Court's opinions in Kahriger and Lewis now suffices to preclude petitioner's assertion of the constitutional privilege as a defense to the indictments under which he was convicted. To this extent Kahriger and Lewis are overruled.
IV.
24
We must next consider the relevance in this situation of the 'required records' doctrine, Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787. It is necessary first to summarize briefly the circumstances in Shapiro. Petitioner, a wholesaler of fruit and produce, was obliged by a regulation issued under the authority of the Emergency Price Control Act to keep and 'preserve for examination' various records 'of the same kind as he has customarily kept * * *.' Maximum Price Regulation 426, § 14, 8 Fed.Reg. 9546, 9548—9549 (1943). He was subsequently directed by an administrative subpoena to produce certain of these records before attorneys of the Office of Price Administration. Petitioner complied, but asserted his constitutional privilege. In a prosecution for violations of the Price Control Act, petitioner urged that the records had facilitated the collection of evidence against him, and claimed immunity from prosecution under § 202(g) of the Act, 56 Stat. 30. Petitioner was nonetheless convicted, and his conviction was affirmed. 2 Cir., 159 F.2d 890.
25
On certiorari, this Court held both that § 202(g) did not confer immunity upon petitioner, and that he could not properly claim the protection of the privilege as to records which he was required by administrative regulation to preserve. On the second question, the Court relied upon the cases which have held that a custodian of public records may not assert the privilege as to those records, and reiterated a dictum in Wilson v. United States, 221 U.S. 361, 380, 31 S.Ct. 538, 544, 55 L.Ed. 771, suggesting that 'the privilege which exists as to private papers cannot be maintained in relation to 'records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established."13 335 U.S., at 33, 68 S.Ct. at 1392. The Court considered that 'it cannot be doubted' that the records in question had 'public aspects,' and thus held that petitioner, as their custodian, could not properly assert the privilege as to them. Id., at 34, 68 S.Ct. at 1393.
26
We think that neither Shapiro nor the cases upon which it relied are applicable here.14 Compare generally Note, Required Information and the Privilege against Self-Incrimination, 65 Col.L.Rev. 681; and McKay, Self-Incrimination and the New Privacy, 1967 Sup.Ct.Rev. 193, 214—217. Moreover, we find it unnecessary for present purposes to pursue in detail the question, left unanswered in Shapiro, of what 'limits * * * the government cannot constitutionally exceed in requiring the keeping of records * * *.' 335 U.S., at 32, 68 S.Ct. at 1391. It is enough that there are significant points of difference between the situations here and in Shapiro which in this instance preclude, under any formulation, an appropriate application of the 'required records' doctrine.
27
Each of the three principal elements of the doctrine, as it is described in Shapiro, is absent from this situation, First, petitioner Marchetti was not, by the provisions now at issue, obliged to keep and preserve records 'of the same kind as he has customarily kept'; he was required simply to provide information, unrelated to any records which he may have maintained, about his wagering activities. This requirement is not significantly different from a demand that he provide oral testimony. Compare McKay, supra, at 221. Second, whatever 'public aspects' there were to the records at issue in Shapiro, there are none to the information demanded from Marchetti. The Government's anxiety to obtain information known to a private individual does not without more render that information public; if it did, no room would remain for the application of the constitutional privilege. Nor does it stamp information with a public character that the Government has formalized its demands in the attire of a statute; if this alone were sufficient, the constitutional privilege could be entirely abrogated by any Act of Congress. Third, the requirements at issue in Shapiro were imposed in 'an essentially non-criminal and regulatory area of inquiry' while those here are directed at a 'selective group inherently suspect of criminal activities.' Cf. Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165. The United States' principal interest is evidently the collection of revenue and not the punishment of gamblers, see United States v. Calamaro, 354 U.S. 351, 358, 77 S.Ct. 1138, 1143; but the characteristics of the activities about which information is sought, and the composition of the groups to which inquiries are made, readily distinguish this situation from that in Shapiro. There is no need to explore further the elements and limitations of Shapiro and the cases involving public papers; these points of difference in combination preclude any appropriate application of those cases to the present one.
V.
28
Finally, we have been urged by the United States to permit continued enforcement of the registration and occupational tax provisions, despite the demands of the constitutional privilege, by shielding the privilege's claimants through the imposition of restrictions upon the use by federal and state authorities of information obtained as a consequence of compliance with the wagering tax requirements. It is suggested that these restrictions might be similar to those imposed by the Court in Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678.
29
The Constitution of course obliges this Court to give gull recognition to the taxing powers and to measures reasonably incidental to their exercise. But we are equally obliged to give full effect to the constitutional restrictions which attend the exercise of those powers. We do not, as we have said, doubt Congress' power to tax activities which are, wholly or in part, unlawful. Nor can it be doubted that the privilege against self-incrimination may not properly be asserted if other protection is granted which 'is so broad as to have the same extent in scope and effect' as the privilege itself. Counselman v. Hitchcock, 142 U.S. 547, 585, 12 S.Ct. 195, 206, 35 L.Ed. 1110. The Government's suggestion is thus in principle an attractive and apparently practical resolution of the difficult problem before us. Compare Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government's Need for Information, 1966 Sup.Ct.Rev. 103, 159; and McKay, supra, at 232. Nonetheless, we think that it would be entirely inappropriate in the circumstances here for the Court to impose such restrictions.
30
The terms of the wagering tax system make quite plain that Congress intended information obtained as a consequence of registration and payment of the occupational tax to be provided to interested prosecuting authorities. See 26 U.S.C. § 6107.15 This has evidently been the consistent practice of the Revenue Service. We must therefore assume that the imposition of use-restrictions whould directly preclude effectuation of a significant element of Congress' purposes in adopting the wagering taxes.16 Moreover, the imposition of such restrictions would necessarily oblige state prosecuting authorities to establish in each case that their evidence was untainted by any connection with information obtained as a consequence of the wagering taxes;17 the federal requirements would thus be protected, only at the cost of hampering, perhaps seriously, enforcement of state prohibitions against gambling. We cannot know how Congress would assess the competing demands of the federal treasury and of state gambling prohibitions; we are, however, entirely certain that the Constitution has entrusted to Congress, and not to this Court, the task of striking an appropriate balance among such values.18 We therefore must decide that it would be improper for the Court to impose restrictions of the kind urged by the United States.
VI.
31
We are fully cognizant of the importance for the United States' various fiscal and regulatory functions of timely and accurate information, compare Mansfield, supra, and Meltzer, Required Records, the McCarran Act, and the Privilege against Self-Incrimination, 18 U.Chi.L.Rev. 687; but other methods, entirely consistent with constitutional limitations, exist by which Congress may obtain such information. See generally Counselman v. Hitchcock, supra, 142 U.S. at 585, 12 S.Ct. at 206, compare Murphy v. Waterfront Commission, supra. Accordingly, nothing we do today will prevent either the taxation or the regulation by Congress of activities otherwise made unlawful by state or federal statutes.
32
Nonetheless, we can only conclude, under the wagering tax system as presently written, that petitioner properly asserted the privilege against self-incrimination, and that his assertion should have provided a complete defense to this prosecution. This defense should have reached both the substantive counts for failure to register and to pay the occupational tax, and the count for conspiracy to evade payment of the tax. We emphasize that we do not hold that these wagering tax provisions are as such constitutionally impermissible; we hold only that those who properly assert the constitutional privilege as to these provisions may not be criminally punished for failure to comply with their requirements. If, in different circumstances, a taxpayer is not confronted by substantial hazards of self-incrimination, or if he is otherwise outside the privilege's protection, nothing we decide today would shield him from the various penalties prescribed by the wagering tax statutes.
33
The judgment of the Court of Appeals is reversed.
34
Reversed.
35
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
36
(For concurring and dissenting opinions see No. 12, Grosso v. United States, 88 S.Ct. 709, decided this day.)
1
Certiorari was originally granted in Costello v. United States, 383 U.S. 942, 86 S.Ct. 1195, 16 L.Ed.2d 205, to consider these issues. Upon Costello's death, certiorari was granted in the present case. Marchetti v. United States, 385 U.S. 1000, 87 S.Ct. 698, 17 L.Ed.2d 540. Marchetti and Costello, with others, were convicted at the same trial of identical offenses, arising from the same series of transactions. Certiorari both here and in Costello was limited to the following questions: 'Do not the federal wagering tax statutes here involved violate the petitioner's privilege against self-incrimination guaranteed by the Fifth Amendment? Should not this Court, especially in view of its recent decision in Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965), overrule United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953), and Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955)?' After argument, the case was restored to the calendar, and set for regargument at the 1967 Term. 388 U.S. 903, 87 S.Ct. 2094, 18 L.Ed.2d 1343. Counsel were asked to argue, in addition to the original questions, the following: '(1) What relevance, if any, has the required records doctrine, Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, to the validity under the Fifth Amendment of the registration and special occupational tax requirements of 26 U.S.C. §§ 4411, 4412? (2) Can an obligation to pay the special occupational tax required by 26 U.S.C. § 4411 be satisfied without filing the registration statement provided for by 26 U.S.C. § 4412?'
2
A July 1963 revision of Form 11—C modified the form of certain of its questions. The record does not indicate which version of the return was available to petitioner at the time of the omissions for which he was convicted. The minor verbal variations between the two do not affect the result which we reach today.
3
The Treasury Regulations provide that a stamp, evidencing payment of the occupational tax, may not be issued unless the taxpayer both submits Form 11—C and tenders the full amount of the tax. 26 CFR § 44.4901—1(c). Accordingly, the Revenue Service has refused to accept the $50 tax unless it is accompanied by the completed registration form; and it has consistently been upheld in that practice. See United States v. Whiting, 4 Cir., 311 F.2d 191; United States v. Mungiole, 3 Cir., 233 F.2d 204; Combs v. Snyder, D.C., 101 F.Supp. 531, aff'd, 342 U.S. 939, 72 S.Ct. 562, 96 L.Ed. 698. The United States has in this case acknowledged that the registration and occupatuonal tax provisions are not realistically severable. Brief on Reargument 37—41.
4
In his trial testimony in Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, decided herewith, W. Dean Struble, technical advisor to the District Director of Internal Revenue, Pittsburgh, Pennsylvania, described Form 11—C as follows: 'A Form 11—C serves two purposes. The first is an application for registry for a wagering tax stamp. After the application is propely filed and the tax paid, at that time the Form 11—C becomes a special tax return.' Transcript of Record 90.
5
The following illustrate the state gambling and wagering statutes under which one engaged in activities taxable under the federal provisions at issue here might incur criminal penalties. Ala.Code,
Tit. 14, c. 46 (1958); Alaska Laws, Tit. 65, c. 13 (1949); Ariz.Rev.Stat.Ann. § 13—438 (1956); Ark.Stat.Ann., Tit. 41, c. 20 (1947); Cal.Pen.Code, §§ 330—337a (1956); Colo.Rev.Stat.Ann., c. 40, Art. 10 (1963); Del.Code Ann., Tit. 11, §§ 665—669 (1953); D.C.Code Ann. §§ 22—1504 to 22—1511 (1967); Fla.Stat., c. 849 (1965); Ga.Code Ann., c. 26—64 (1953); Hawaii Rev.Laws, c. 288 (1955); Idaho Code Ann., Tit. 18, c. 38 (1948); Ill.Rev.Stat., c. 38, Art. 28 (1965); Ind.Ann.Stat., Tit. 10, c. 23 (1956); Iowa Code, c. 726 (1966); Kan.Stat.Ann., c. 21, Art. 15 (1964); Ky.Rev.Stat. § 436.200 (1962); La.Rev.Stat. § 14:90 (1950); Me.Rev.Stat.Ann., Tit. 17, c. 61 (1964); Md.Ann.Code, Art. 27, §§ 237—242 (1957); Mass.Gen.Laws Ann., c. 271 (1959); Mich.Stat.Ann. § 28.533 (1954), C.L.Mich.1948, § 750.301; Minn.Stat. § 609.755 (1965); Miss.Code Ann. §§ 2190—2202 (1942); Mo.Rev.Stat. § 563.350 (1959), V.A.M.S.; Mont.Rev.Codes Ann., Tit. 94, c. 24 (1947); Neb.Rev.Stat. § 28—941 (1943); Nev.Rev.Stat, §§ 293.603, 465.010 (1957); N.H.Rev.Stat.Ann., c. 577 (1955); N.J.Rev.Stat., Tit. 2A, c. 112 (1953); N.M.Stat.Ann. c. 40A, Art. 19 (1953); N.Y.Pen.Law, Consol.Laws, c. 40, Art. 225 (1967); N.C.Gen.Stat. §§ 14—292 to 14 295 (1953); N.D.Cent.Code Ann., c. 12—23 (1959); Ohio Rev.Code Ann., c. 2915 (1953); Okla.Stat.Ann., Tit. 21, c. 38 (1958); Ore.Rev.Stat. § 167.505 (1965); Pa.Stat.Ann., Tit. 18, §§ 4603 4607 (1963); R.I.Gen.Laws Ann., Tit. 11, c. 19 (1956); S.C.Code Ann., Tit. 16, c. 8, Art. 1 (1962); S.D.Code, Tit. 24, c. 24.01 (1939); Tenn.Code Ann., Tit. 39, c. 20 (1955); Vernon's Ann.Tex.Pen.Code, c. 6 (1952); Utah Code Ann., Tit. 76, c. 27 (1953); Vt.Stat.Ann., Tit. 13, c. 43, subch. 2 (1959); Va.Code Ann., Tit. 18.1, c. 7, Art. 2 (1950); Wash.Rev.Code, Tit. 9, c. 9.47 (1956); W.Va.Code Ann., c. 61, Art. 10 (1961); Wis.Stat., c. 945 (1965); Wyo.Stat.Ann., Tit. 6, c. 9, Art. 2 (1957). These statutes of course vary in their terms and scope, but these variations scarcely detract from the breadth or prevalence of the penalties
6
New Hamphire conducts a state sweepstakes, but imposes broad criminal penaltis upon privately operated lotteries. N.H.Rev.Stat.Ann., c. 577 (1955). The following illustrate the other state statutes which impose criminal penalties upon lottery activities which would be taxable under these federal statutes. Ala.Code,
Tit. 14, c. 46 (1958); Alaska Laws § 65—13—1 (1949); Ariz.Rev.Stat.Ann. § 13—436 (1956); Ark.Stat.Ann. § 41—2024 (1947); Cal.Pen.Code, §§ 319—326 (1956); Colo.Rev.Stat.Ann., c. 40, Art. 16 (1963); Del.Code Ann., Tit. 11, §§ 661—664 (1953); D.C.Code Ann. § 22—1501 (1967); Fla.Stat. § 849.09 (1965); Ga.Code Ann., c. 26—65 (1953); Hawaii Rev.Laws, c. 288 (1955); Idaho Code Ann., Tit. 18, c. 49 (1948); Ill.Rev.Stat., c. 38, Art. 28 (1965); Ind.Ann.Stat., Tit. 10, c. 23 (1956); Iowa Code § 726.8 (1966); Kan.Stat.Ann., c. 21, Art. 15 (1964); Ky.Rev.Stat. § 436.360 (1962); La.Rev.Stat. § 14:90 (1950); Me.Rev.Stat.Ann., Tit. 17, c. 81 (1964); Md.Ann.Code, Art. 27, § 356 (1957); Mass.Gen.Laws Ann., c. 271 (1959); Mich.Stat.Ann., §§ 28.604—28.608 (1954), C.L.Mich.1948, §§ 750.372—750.376; Miss.Code Ann. §§ 2270—2279 (1942); Mo.Rev.Stat. § 563.430 (1959), V.A.M.S.; Mont.Rev.Codes Ann., Tit. 94, c. 30 (1947); Neb.Rev.Stat. § 28—961 (1943); N.J.Rev.Stat., Tit. 2A, c. 121 (1953); N.M.Stat.Ann., c. 40A, Art. 19 (1953); N.Y.Pen.Law, Art. 225 (1967); N.C.Gen.Stat. §§ 14—289 to 14—291 (1953); N.D.Cent.Code Ann., c. 12—24 (1959); Ohio Rev.Code Ann., c. 2915 (1953); Okla.Stat.Ann., Tit. 21, c. 41 (1953); Ore.Rev.Stat. § 167.405 (1965); Pa.Stat.Ann., Tit. 18, §§ 4601—4602 (1963); R.I.Gen.Laws Ann., Tit. 11, c. 19 (1956); S.C.Code Ann., Tit. 16, c. 8, Art. 1 (1962); S.D.Code, Tit. 24, c. 24.01 (1939); Tenn.Code Ann. § 39—2017 (1955); Tex.Pen.Code Ann., Art. 654 (1952); Utah Code Ann., Tit. 76, c. 27 (1953); Vt.Stat.Ann., Tit. 13, c. 43, subch. 1 (1959); Va.Code Ann., Tit. 18.1, c. 7 Art. 2 (1950); Wash.Rev.Code, Tit. 9, c. 9.59 (1956); W.Va.Code Ann., c. 61, Art. 10 (1961); Wis.Stat., c. 945 (1965); Wyo.Stat.Ann., Tit. 6, c. 9, Art. 2 (1957).
7
See, e.g., Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561; United States v. Zizzo, 7 Cir., 338 F.2d 577; Commonwealth v. Fiorini, 202 Pa.Super. 88, 195 A.2d 119; State v. Curry, 92 Ohio App. 1, 109 N.E.2d 298; State v. Reinhardt, 229 La. 673, 86 So.2d 530; Griggs v. State, 37 Ala.App. 605, 73 So.2d 382; McClary v. State, 211 Tenn. 46, 362 S.W.2d 450. See also State v. Baum, 230 La. 247, 88 So.2d 209.
8
One State has gone a step further to facilitate the enforcement of its gambling prohibitions through the federal wagering tax. Illinois requires each holder of a wagering tax stamp to register with the clerk of the county in which he resides or conducts any business, and imposes fines and imprisonment upon those who do not. Ill.Rev.Stat., c. 38, § 28—4 (1965).
9
The metaphor is to be found in the opinions both of Lord Eldon in Paxton v. Douglas, 19 Ves.,Jr. 225, 227, and of Chief Justice Marshall in United States v. Burr, (In re Willie,) 25 Fed.Cas. 38, 40 (No. 14,692e).
10
We must note that some States and municipalities have undertaken to punish compliance with the federal wagering tax statutes in an even more direct fashion. Alabama has created a statutory presumption that possessors of federal wagering tax stamps are in violation of state law. Ala.Code, Tit. 14, §§ 302(8) 302(10) (1958). Florida adopted a similar statute, Fla.Laws 1953, c. 28057, but it was subsequently declared unconstitutional by the Florida Supreme Court. Jefferson v. Sweat, Fla., 76 So.2d 494. The Supreme Court of Tennessee has upheld an ordinance adopted by the City of Chattanooga which makes possession of a federal tax stamp a misdemeanor. Deitch v. City of Chattanooga, 195 Tenn. 245, 258 S.W.2d 776. See for a similar provision Rev.Ord., Kansas City, Missouri, § 23.110 (1956); and Kansas City v. Lee, Mo., 414 S.W.2d 251. Georgia has recently provided by statute that the possession or purchase of a federal wagering tax stamp is 'prima facie evidence of guilt' of professional gambling. Ga.Code Ann. § 26 6413 (Supp.1967). See for a similar rule McClary v. State, supra, n. 7.
11
Hoffman v. United States, 341 U.S. 479, 487, 71 S.Ct. 814, 818, 95 L.Ed. 1118.
12
We presume that the Court referred to the following: '(T)here is no compulsory self-crimination in a rule of law which merely requires beforehand a future report on a class of future acts among which a particular one may or may not in future be criminal at the choice of the party reporting.' 8 Wigmore, supra, at 349. But see Morgan, supra, at 37; and McKay, Self-Incrimination and the New Privacy, 1967 Sup.Ct.Rev. 193, 221.
13
The Court in fact quoted from the reiteration of the Wilson dictum included in Davis v. United States, 328 U.S. 582, 590, 66 S.Ct. 1256, 1260, 90 L.Ed. 1453.
14
The United States has urged that this case is not reached by Shapiro simply because petitioner was required to submit reports, and not to maintain records. Insofar as this is intended to suggest the crucial issue respecting the applicability of Shapiro is the method by which information reaches the Government, we are unable to accept the distinction. We perceive no meaningful difference between an obligation to maintain records for inspection, and such an obligation supplemented by a requirement that those records be filed periodically with officers of the United States. We believe, as the United States itelf argued in Shapiro, that '(r)egulations permit records to be retained, rather than filed, largely for the convenience of the persons regulated.' Brief for the United States in No. 49, October Term 1947, at 21, n. 7.
15
Section 6107 reads as follows:
'In the principal internal revenue office in each internal revenue district there shall be kept, for public inspection, an alphabetical list of the names of all persons who have paid special taxes under subtitle D or E within such district. Such list shall be prepared and kept pursuant to regulations prescribed by the Secretary or his delegate, and shall contain the time, place, and business for which such special taxes have been paid, and upon application of any prosecuting officer of any State, county, or municipality there shall be furnished to him a certified copy thereof, as of a public record, for which a fee of $1 for each 100 words or fraction thereof in the copy or copies so requested may be charged.' The special taxes to which the section refers include the occupational tax imposed by 26 U.S.C. § 4411.
16
The requirement now embodied in § 6107 was adopted prior to the special occupational tax on wagering, but Congress plainly indicated when it adopted the latter that it understood, and wished, that state prosecuting authorities would be provided lists of those who had paid the wagering tax. See H.R.Rep. No. 586, 82d Cong., 1st Sess., 60; S.Rep. No. 781, 82d Cong., 1st Sess., 118.
17
The Court required such a showing as part of the restrictions imposed in Murphy, 378 U.S., at 79, n. 18, 84 S.Ct. at 1609. The United States has acknowledged that this would be no less imperative here. Brief for the United States 24—25.
18
It should be emphasized that it would not suffice here simply to sever § 6107. See 26 U.S.C. § 7852(a). Cf. Warren v. Mayor of Charlestown, (68 Mass.) 2 Gray 84, 99; Carter v. Carter Coal Co., 298 U.S. 238, 316, 56 S.Ct. 855, 875, 80 L.Ed. 1160. We would be required not merely to strike out words, but to insert words that are not now in the statute. Here, as in the analogous circumstances of United States v. Reese, 92 U.S. 214, 23 L.Ed. 563, 'This would, to some extent, substitute the judicial for the legislative department of the government. * * * To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of duty.' 92 U.S., at 221.
| 01
|
390 U.S. 139
88 S.Ct. 754
19 L.Ed.2d 966
TEITEL FILM CORPORATION et al.v.John F. CUSACK et al.
No. 787.
Decided Jan. 29, 1968.
Elmer Gertz and Leon N. Miller, for appellants.
Raymond F. Simon and Marvin E. Aspen, for appellees.
PER CURIAM.
1
This appeal seeks review of judgments of the Supreme Court of Illinois which affirmed orders of the Circuit Court of Cook County permanently enjoining the appellants from showing certain motion pictures in public places in the City of Chicago, 38 Ill.2d 53, 230 N.E.2d 241. The questions presented are whether the Chicago Motion Picture Censorship Ordinance is unconstitutional on its face and as applied, and whether the films involved are obscene.1
2
The Chicago Motion Picture Censorship Ordinance prohibits the exhibition in any public place of 'any picture * * * without first having secured a permit therefor from the superintendent of police.' The Superintendent is required 'within three days of receipt' of films to 'inspect such * * * films * * * or cause them to be inspected by the Film Review Section * * * and within three days after such inspection' either to grant or deny the permit.2 If the permit is denied the exhibitor may within seven days seek review by the Motion Picture Appeal Board. The Appeals Board must review the film within 15 days of the request for review, and thereafter within 15 days afford the exhibitor, his agent or distributor a hearing. The Board must serve the applicant with written notice of its ruling within five days after close of the hearing. If the Board denies the permit, 'the Board, within ten days from the hearing, shall file with the Circuit Court of Cook County an action for an injunction against the showing of the film.' A Circuit Court Rule, General Order 3—3, promulgated May 26, 1965, provides that a 'complaint for injunction * * * shall be given priority over all other causes. The Court shall set the cause for hearing within five (5) days after the defendant has answered * * *.'3 However, neither the rule nor any statutory or other provision assures a prompt judicial decision of the question of the alleged obscenity of the film.
3
The Illinois Supreme Court held 'that the administration of the Chicago Motion Picture Ordinance violates no constitutional rights of the defendants.' 38 Ill.2d, at 63, 230 N.E.2d, at 247. We disagree. In Freedman v. State of Maryland, 380 U.S. 51, 58—59, 85 S.Ct. 734, 739, 13 L.Ed.2d 649, we held '* * * that a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. * * * To this end, the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. * * * (T)he procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.' (Emphasis supplied.) The Chicago censorship procedures violate these standards in two respects. (1) The 50 to 57 days provided by the ordinance to complete the administrative process before initiation of the judicial proceeding does not satisfy the standard that the procedure must assure 'that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film.' (2) The absence of any provision for a prompt judicial decision by the trial court violates the standard that '* * * the procedure must also assure a prompt final judicial decision * * *.'
4
Accordingly, we reverse the judgments of the Supreme Court of Illinois and remand the case for further proceedings not inconsistent with this opinion.
5
Reversed and remanded.
6
Mr. Justice BLACK and Mr. Justice DOUGLAS, agreeing that Freedman v. State of Maryland, 380 U.S. 51, 58—59, 85 S.Ct. 734, 738—739, 13 L.Ed.2d 649, requires reversal of this case, base their reversal also on Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515.
7
Mr. Justice HARLAN concurs in the result.
8
Mr. Justice STEWART bases his concurrence in this judgment upon Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515.
1
In light of our decision, we do not reach, and intimate no view upon, the question whether the films are obscene.
2
The ordinance was amended during the pendency of the case before the Illinois Supreme Court to require inspection within three days after submission of the films. The members of the Superintendent's Film Review Section, upon his request, 'review each motion picture submitted and * * * recommend in writing to the Superintendent of Police whether to grant or deny a permit.'
3
Comments of the trial judge in this case suggest doubt whether the trial court regarded compliance with this rule to be mandatory:
'Mr. Aspen (counsel for the City): As far as the Court is concerned, it is my understand (sic) that Judge Boyle in General Rule 3—3, which has nothing to do with the ordinance has said there will be a hearing within five days of either the filing of an answer—
'The Court: I am going to have it changed because we just cannot set everything aside to give priority to this kind of litigation.
'The Court: First amendment matters cannot be anymore important than any other constitutional right or any other citizen's right to have his case heard.
'As I said before, it is far more important in my judgment to take care of the broken heads and fractured legs than it is to take care of the bleeding hearts.'
| 23
|
390 U.S. 62
88 S.Ct. 716
19 L.Ed.2d 906
James MARCHETTI, Petitioner,v.UNITED STATES. Anthony M. GROSSO, Petitioner, v. UNITED STATES.
Nos. 2, 12.
Supreme Court of the United States
January 29, 1968
Charles Alan Wright, Austin, Tex., for petitioner.
Francis X. Beytagh, Jr., Cleveland, Ohio, for respondent, pro hac vice, by special leave of Court.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioner was convicted in the United States District Court for the Western District of Pennsylvania on 15 counts of willful failure to pay the excise tax imposed on wagering by 26 U.S.C. § 4401, four counts of willful failure to pay the special occupational tax imposed by 26 U.S.C. § 4411, and one count of conspiracy to defraud the United States by evading payment of both taxes. 18 U.S.C. § 371. Petitioner moved before trial to dismiss the counts which charged conspiracy to defraud and failure to pay the excise tax, asserting that payment would have obliged him to incriminate himself, in violation of the privilege against self-incrimination guaranteed by the Fifth Amendment. He reiterated this contention in support of unsuccessful motions for acquittal after verdict and for a new trial. The Court of Appeals for the Third Circuit affirmed the conviction. 358 F.2d 154.
2
Petitioner did not assert below, and therefore has not urged here, that his privilege was violated by reason of his conviction for failure to pay the special occupational tax. He has contended only that payment of the excise tax would have required him to incriminate himself, that he therefore may not properly be prosecuted for willful failure to pay the tax or for conspiracy to evade its payment, and that conduct of the trial court after submission of the case to the jury denied him a fair trial. We granted certiorari, 385 U.S. 810, 87 S.Ct. 47, 17 L.Ed.2d 53, and the case was argued with Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889, decided today.1 For reasons which follow, we reverse.
I.
3
We turn first to petitioner's contention that payment of the wagering excise tax would have compelled him to incriminate himself. We have summarized in Marchetti, supra, the various state and federal penalties which have been imposed upon wagering. It is enough now to reiterate that Pennsylvania, in which petitioner allegedly accepted wagers, has adopted a comprehensive statutory system for the punishment of gambling and ancillary activities. Pa.Stat.Ann., Tit. 18, §§ 4601—4607 (1963). These penalties, in combination with the federal statutes described in Marchetti, place petitioner entirely within 'an area permeated with criminal statutes,' where he is 'inherently suspect of criminal activities.' Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165. The issues here are therefore whether payment of the excise tax would have provided information incriminating to petitioner, and, if it would have done so, whether petitioner is otherwise prevented from asserting the constitutional privilege.
4
The statutory scheme by which wagering is taxed is described in Marchetti, supra. Two additional observations are, however, required in order to assess fully the hazards of self-incrimination created by the wagering excise tax. First, those liable for payment of that tax are required to submit each month Internal Revenue Service Form 730. Treas. Reg. § 44.6011(a) 1(a). The return is expressly designed for the use only of those engaged in the wagering business; its submission, and the replies demanded by each of its questions, evidence in the most direct fashion the fact of the taxpayer's wagering activities. Although failures to pay the excise tax and to file a return are separately punishable under 26 U.S.C. § 7203, the two obligations must be considered inseparable for purposes of measuring the hazards of self-incrimination which might stem from payment of the excise tax. Nothing in the pertinent statutes or regulations contemplates payment of the tax without submission of the return,2 and we are informed by the United States that if the return does not accompany the tax payment, 'the money is not accepted.' Brief for the United States on Reargument 39, n. 35. We must conclude that here, as in Albertson, the validity under the Constitution of criminal prosecutions for willful failure to pay the excise tax may properly be determined only after assessment of the hazards of incrimination which would result from 'literal and full compliance' with all the statutory requirements. 382 U.S., at 78, 86 S.Ct., at 199.
5
Second, although there is no statutory instruction, as there is for the occupational tax, that state and local prosecuting officers be provided listings of those who have paid the excise tax, neither has Congress imposed explicit restrictions upon the use of information obtained as a consequence of payment of the tax. Moreover, it appears that the Revenue Service, evidently acting under the authority of certain general statutory provisions,3 has undertaken to tender this information to interested prosecuting authorities.4 We can only conclude that those liable for payment of the excise tax reasonably may expect that information obtainable from its payment, or from submission of Form 730, will ultimately be proffered to state and federal prosecuting officers.
6
In these circumstances, it would be impossible to say that the hazards of incrimination which stem from the obligation to pay the excise tax and to file Form 730 are 'imaginary and unsubstantial.' Reg. v. Boyes, 1 B. & S. 311, 330; Brown v. Walker, 161 U.S. 591, 599—600, 16 S.Ct. 644, 647—648, 40 L.Ed. 819. The criminal penalties for wagering with which petitioner is threatened are scarcely 'remote possibilities out of the ordinary course of law,' Heike v. United States, 227 U.S. 131, 144, 33 S.Ct. 226, 228, 57 L.Ed. 450; yet he is obliged, on pain of criminal prosecution, to provide information which would readily incriminate him, and which he may reasonably expect would be provided to prosecuting authorities. These hazards of incrimination can only be characterized as 'real and appreciable.' Reg. v. Boyes, supra, at 330; Brown v. Walker, supra, at 599—600, 16 S.Ct. at 647—648. Moreover, unlike the income tax return at issue in United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037, petitioner's submission of an excise tax payment, and his replies to the questions on the attendant return, would directly and unavoidably have served to incriminate him; his claim of privilege as to the entire tax payment procedure was therefore neither 'extreme' nor 'extravagant.' Compare, id., at 263, 47 S.Ct. 607.
7
We are thus obliged to inquire whether petitioner is otherwise foreclosed from asserting the constitutional privilege. For reasons indicated in Marchetti, supra, we have found nothing in United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754, or Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475, which now warrants the exclusion of this situation from the privilege's protection.5 It need only be added that the requirements associated with the excise tax are directed wholly to past and present wagering activities; they lack even the illusory prospectivity which characterizes the special occupational tax and registration requirements.
8
Similarly, we have concluded that the 'required records' doctrine, Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, cannot be appropriately applied to these circumstances. See generally Marchetti v. United States, supra. The premises of the doctrine, as it is described in Shapiro, are evidently three: first, the purposes of the United States' inquiry must be essentially regulatory; second, information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept; and third, the records themselves must have assumed 'public aspects' which render them at least analogous to public documents. There is no need for present purposes to examine the relative significance of these three factors, or to undertake to define more specifically their incidents, for both the first and third factors are plainly absent from this case.
9
Here, as in Marchetti, the statutory obligations are directed almost exclusively to individuals inherently suspect of criminal activities. The principal interest of the United States must be assumed to be the collection of revenue, and not the prosecution of gamblers, United States v. Calamaro, 354 U.S. 351, 358, 77 S.Ct. 1138, 1143, 1 L.Ed.2d 1394; but we cannot ignore either the characteristics of the activities about which information is sought, or the composition of the group to which the inquiries are made. These collateral circumstances, in combination with Congress' apparent wish that any information obtained as a consequence of the wagering taxes be made available to prosecuting authorities, readily suffice to distinguish these requirements from those at issue in Shapiro. Moreover, the information demanded here lacks every characteristic of a public document. No doubt it is desired by the United States, but we have concluded, for reasons indicated in Marchetti, that this alone does not render information 'public,' and thus does not deprive it of constitutional protection.
10
We must note that the pertinent Treasury regulations provide that the replies to the questions included on Form 730 are to be compiled each month 'from the daily records required by §§ 44.4403 1 and 44.6001—1.' Treas. Reg. § 44.6011(a)—1(a). It might therefore be argued that Form 730 is merely a monthly abstract of records essentially similar to those required to be preserved by the regulations in Shapiro. The difficulties with this argument are two. First, it is scarcely plain that the records required here are 'of the same kind (the taxpayer) has customarily kept.' 335 U.S., at 5, 68 S.Ct., at 1378, n. 3. Second, and more important, there are, as we have indicated, other points of significant dissimilarity between this situation and that in Shapiro. We have concluded that in combination these points of difference preclude any appropriate application to these circumstances of the 'required records' doctrine.
11
Finally, as in Marchetti, we have been urged by the United States to permit continued enforcement of the wagering excise tax requirements by imposing restrictions upon the use by state and federal authorities of information obtained as a consequence of payment of the tax. We recognize that § 6107 (see Marchetti, 390 U.S., at 59, 88 S.Ct., at 708, n. 15) is not by its terms applicable to the excise tax, and that there is no similar statutory obligation that the Commissioner provide prosecutors with listings of those who have paid the excise tax. Nonetheless, it would be inappropriate to impose such restrictions upon one portion of a statutory system, when we have concluded that it would be improper, for reasons discussed in Marchetti, to do so upon 'an integral part'6 of the same system. We therefore decline to impose the restrictions urged by the United States.
II.
12
There remain for disposition the substantive counts for willful failure to pay the occupational tax, and the count for conspiracy to defraud.7 The latter was bottomed on allegations that petitioner had conspired to evade payment both of the excise tax and of the occupational tax. Petitioner has consistently contended that the constitutional privilege should have prevented his conviction on the conspiracy count, evidently on the basis that, insofar as it is founded on his failure to pay the excise tax, this count raises questions identical with those presented by the substantive counts for failure to pay that tax. We agree, and conclude that a taxpayer may not be convicted of conspiracy to evade payment of the tax, if the constitutional privilege would properly prevent his conviction for willful failure to pay it. Cf. Marchetti v. United States, supra, 390 U.S., at 60—61, 88 S.Ct., at 709.
13
Petitioner has not, however, asserted a claim of privilege either as to the counts which charged willful failure to pay the occupational tax, or as to the allegation that he conspired to evade payment of the occupational tax.8 Given the decisions of this Court in Kahriger and Lewis, supra, which were on the books at the time of petitioner's trial, and left untouched by Albertson v. SACB, supra, we are unable to view his failure to present this issue as an effective waiver of the constitutional privilege. By the same token, we do not think that we can well reach these counts on the theory of 'plain error.'
14
It might, therefore, be thought that the proper disposition of the substantive occupational tax counts, and of the portion of the conspiracy count concerned with the occupational tax, would be to vacate, rather than to reverse, the judgments of conviction, and to return the case to the lower courts for further proceedings consistent with our opinions in this case and in Marchetti.
15
We think, however, that a different course is indicated. Under 28 U.S.C. § 21069 we have power to dispose of this case 'as may be just under the circumstances.' See Yates v. United States, 354 U.S. 298, 327—331, 77 S.Ct. 1064, 1081—1083, 1 L.Ed.2d 1356. Since the record is barren of any evidence on which a finding of waiver of the privilege against self-incrimination might properly be predicated, and since, absent such a waiver, reversal of the conviction would be inevitable in light of our holdings today in this case and in Marchetti, we consider that the entire case should now be finally disposed of at this level. In the special circumstances presented, this course seems to us to be dictated by considerations of sound judicial administration, in order to obviate further and entirely unnecessary proceedings below.10 Cf. Yates v. United States, supra.
16
Accordingly, the judgment of the Court of Appeals is reversed in its entirety.
17
It is so ordered.
18
Judgment of Court of Appeals reversed.
19
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
20
Mr. Justice BRENNAN, concurring.
21
I join the opinions of the Court in these cases. I write only to emphasize why, in my view, nothing we decide or say today in any wise impairs or modifies United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037, and Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787.
22
The privilege against self-incrimination does not bar the Government from establishing every program or scheme featured by provisions designed to secure information from citizens to accomplish proper legislative purposes. Congress is assuredly empowered to construct a statutory scheme which either is general enough to avoid conflict with the privilege, or which assures the necessary confidentiality or immunity to overcome the privilege. See Adams v. State of Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608; Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249. True, some of the values protected by the self-incrimination guaranty may well be affected to an extent by any enforced system of information gathering based upon individual participation, see Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678, but it is clear that the scope of the privilege does not coincide with the complex of values it helps to protect. Despite the impact upon the inviolability of the human personality, and upon our belief in an adversary system of criminal justice in which the Government must produce the evidence against an accused through its own independent labors, the prosecution is allowed to obtain and use evidence offered by the accused 'in the unfettered exercise of his own will,' Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653, and evidence which although compelled is generally speaking not 'testimonial,' Schmerber v. State of California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908. Moreover, by the simple expedient of granting appropriate immunity the Government is able to surmount entirely the self-incrimination barrier, despite the value of privacy that provision is intended to protect.
23
United States v. Sullivan, supra, makes clear that an individual is not exempted, by the fact that he may be privileged to refuse to answer some questions, from a requirement, 'directed at the public at large,' of filing an income tax return exclusively containing questions 'neutral on their face.' Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165. Shapiro v. United States, supra, involved a similar situation; it involved a record-keeping requirement pursuant to a neutral governmental system of price regulation.
24
On the other hand, we know that where the governmental scheme clearly evidences the purpose of gathering information from citizens in order to secure their conviction of crime, it contravenes the privilege. Thus in Albertson v. SACB, supra, we held invalid both the requirement that Communist Party members file a registration form and that they complete and file a registration statement under the Subversive Activities Control Act of 1950. We distinguished Sullivan stating that the questions on the forms in Albertson 'are directed at a highly selective group inherently suspect of criminal activities,' and that the privilege is asserted, not 'in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form's questions in context might involve the petitioners in the admission of a crucial element of a crime.' Id., at 79, 86 S.Ct. at 199.
25
The cases before us present a statutory system condemned by Albertson. The wagering excise tax, the occupational tax, and the registration requirement are only parts of an interrelated statutory system for taxing illegal wagers. Whatever else Congress may have meant to achieve, an obvious purpose of this statutory system clearly was to coerce evidence from persons engaged in illegal activities for use in their prosecution. See United States v. Kahriger, 345 U.S. 22, 37, 73 S.Ct. 510, 517, 97 L.Ed. 754 (Frankfurter, J., dissenting).
26
The Court's opinions fully establish the statutory system's impermissible invasions of the privilege. Indeed, 26 U.S.C. § 4401 should create substantial suspicion on privilege grounds simply because it is an excise tax upon persons 'engaged in the business of accepting wagers' or who conduct 'any wagering pool or lottery.' The persons affected by this language are a relatively small group, many of whom are engaged in activities made unlawful by state and federal statutes. But § 4401 is actually even more directly confined to that group. Section 4402(1) exempts from the tax wagers placed with a parimutuel wagering enterprise 'licensed under State law,' and § 4421 defines 'wager' to exclude most forms of unorganized gambling such as dice and poker, and defines 'lottery' to exclude commonly played games such as bingo and drawings conducted by certain tax-exempt organizations. The effect of these exceptions is to limit the wagering excise tax under § 4401 almost exclusively to illegal, organized gambling.
27
Moreover, the code contemplates extensive record-keeping reporting by persons obligated to pay the tax. But these are records and reports which would criminate overwhelmingly. Section 6011(a) requires any person liable to pay a tax to file a return in accordance with the forms and regulations promulgated by the Secretary or his delegate. The regulations promulgating recordkeeping requirements and the requirement that taxpayers make a monthly return on Form 730, Treas. Reg. § 44.6011(a)—1(a), were therefore formulated pursuant to specific congressional authority. That the return is intended to be a part of the wagering tax obligation is clear from the face of the return itself. Immediately under Form 730's title 'TAX ON WAGERING' is a reference to '(Section 4401 of the Internal Revenue Code),' and in at least three places the return indicates that 'this form must be filed, with remittance, with the District Director of Internal Revenue.'* (Emphasis added.)
28
Thus § 4401 requires that taxpayers send the Government every month both the tax due and the completed Form 730. That much can start them on the road to prison. The Service then is free to take various steps to assure that it does. It may investigate such taxpayers. It may subpoena taxpayers' records to ascertain whether the payments are accurate. It can and does pass on for use by prosecuting authorities the facts of payments and filing and any other evidence uncovered. These many, substantial dangers easily satisfy the test for incrimination fashioned by our cases.
29
Of course the privilege does not guarantee anonymity. The question in these cases, however, is not whether all governmental programs which require citizens to expose their identity are invalid, but whether this statutory system, designed primarily for and utilized to pierce the anonymity of citizens engaged in criminal activity, is invalid. The privilege does guarantee anonymity from inquiries so designed, when the risks are not wholly fanciful. And the risks here are obvious and real. A list of persons who comply with § 4401 every month is invaluable to prosecuting authorities. It must frequently provide the clinching link in the chain of conviction.
30
We must take this statute as it is written and as it has been applied. Both the statute and the practice under it clearly further a congressional purpose to gather evidence from citizens in order to secure their conviction of crime. There undoubtedly will be other statutes and practices as to which this determination will be more difficult to make. These cases, however, present a statutory system manifesting a patent violation of the privilege. That system must be dealt with uncompromisingly to protect against encroachment of the privilege and to encourage legislative care and concern for its continuing vitality.
31
Mr. Justice STEWART, concurring.
32
If we were writing upon a clean slate, I would agree with the conclusion reached by THE CHIEF JUSTICE in these cases.1 For I am convinced that the Fifth Amendment's privilege against compulsory self-incrimination was originally meant to do no more than confer a testimonial privilege upon a witness in a judicial proceeding.2 But the Court long ago lost sight of that original meaning. In the absence of a fundamental re-examination of our decisions, the most relevant recent one being Albertson v. SACB, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165, I am compelled to join the opinions and judgments of the Court.
33
Mr. Chief Justice WARREN, dissenting in No. 2.
34
The Court today strikes down as unconstitutional a statutory scheme enacted by Congress to make effective and enforceable taxes imposed on wagers and the occupation of gambling. In so doing, it of necessity overrules United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953), and Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955). I cannot agree with the Court's conclusion on the constitutional questions presented, and I would affirm the convictions in these two cases on the authority of Kahriger and Lewis.
35
In addition to being in disagreement with the Court on the result it reaches in these cases, I am puzzled by the reasoning process which leads it to that result. The Court professes to recognize and accept the power of Congress legitimately to impose taxes on activities which have been declared unlawful by federal or state statutes. Yet, by its sweeping declaration that the congressional scheme for enforcing and collecting the taxes imposed on wagers and gamblers is unconstitutional, the Court has stripped from Congress the power to make its taxing scheme effective. A reading of the registration requirement of 26 U.S.C. § 4412, as implemented by Internal Revenue Service Form 11—C, reveals that the information demanded of gamblers is no more than is necessary to assure that the tax-collection process will be effective. Registration of those liable for special taxes is a common and integral feature of the tax laws. See 26 U.S.C. s 7011.1 So also is the requirement of public disclosure.2 And the reach of the registration and disclosure requirements extends to both lawful and unlawful activities. Because registration and disclosure are so pervasive in the Internal Revenue Code, it is clear that such requirements have been imposed by Congress to aid in the collection of taxes legitimately levied. Because most forms of gambling have been declared illegal in this country, gamblers necessarily operate furtively in the dark shadows of the underworld. Only by requiring that such individuals come forward under pain of criminal sanctions and reveal the nature and scope of their activities can Congress confidently expect that revenue derived from that outlawed occupation will be subject to the legitimate reach of the tax laws. Indeed, it seems to me that the very secrecy which surrounds the business of gambling demands disclosure. Those legislative committees and executive commissions which have studied the problems of illicit gambling activities have found it impossible to determine with any precision the gross revenues derived from that business. For example, the President's Commission on Law Enforcement and Administration of Justice reported:
36
'There is no accurate way of ascertaining organized crime's gross revenue from gambling in the United States. Estimates of the annual intake have varied from $7 to $50 billion. * * * While the Commission cannot judge the accuracy of these figures, even the most conservative estimates place substantial capital in the hands of organized crime leaders.' President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Organized Crime 3 (1967).3
37
The Commission's observation is doubly revealing. It shows that the business of gambling is a lucrative revenue source. And it demonstrates the need for an enforceable disclosure device, such as the registration requirement of § 4412, if the revenue potential is to be realized. No one denies that the disclosures demanded by § 4412 can also be useful to law enforcement officials and that the very process of disclosure may have a regulatory effect on gamblers and their operations.4 But this Court has repeatedly recognized that 'a tax is not any the less a tax because it has a regulatory effect.' Sonzinsky v. United States, 300 U.S. 506, 513, 57 S.Ct. 554, 556, 81 L.Ed. 772 (1937). See also License Tax Cases, 5 Wall. 462, 18 L.Ed. 497 (1867).
38
In declaring the registration requirements of § 4412 invalid, the Court places principal reliance on Albertson v. SACB, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965). But there is a critical distinction between that case and the cases decided today. In Albertson, the Court dealt with a registration requirement which clashed head-on with protected First Amendment rights and which could be viewed as serving no substantial governmental purpose in light of the curtailment of those rights.5 These elements are notably lacking in the cases decided today. The occupation of gambling can in no sense be called a 'protected' activity. The only claim that those engaged in gambling make is that they are somehow entitled to have their activities shrouded in secrecy and shielded from disclosure. Nothing in the Constitution compels such a result. And there is clearly a legitimate tax purpose in demanding that gamblers make the disclosures required by § 4412 and Form 11—C. Disclosure by means of registration is routinely required under the tax laws of those engaged in legitimate and lawful business enterprises. See, e.g., 26 U.S.C. §§ 4101, 4222, 5502, 5802. Cf. Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). To relieve gamblers of the registration requirement is to create for those engaged in that occupation a special constitutional privilege of nonregistration.
39
In view of these considerations, I cannot understand why the Court today finds it necessary to strike down the registration requirement of § 4412 directed at those who derive their income from gambling. What seems to trouble the Court is not that registration is required but that the information obtained through the registration requirement is turned over by federal officials, under the statutory compulsion of 26 U.S.C. § 6107,6 to state prosecutors to aid them in the enforcement of state gambling laws. If that is the source of the Court's Fifth Amendment concern, then constitutional adjudication demands that the provisions of § 6107 be the focus of the Court's decision. It does not seem reasonable to me to rule that, because information derived from the registration provisions of § 4412 must be made available to state prosecutors under § 6107, the registration requirements suffer from a fatal constitutional infirmity, even though § 4412 is a necessary and proper means of assuring that the occupational tax on gamblers will be enforceable. Certainly no Fifth Amendment issue arises from the fact of registration until an effort is made to use the registration procedure in aid of criminal prosecution. To the extent that the disclosure requirements of § 6107 would raise a Fifth Amendment problem because some of the names on the public list have admitted unlawful activities, that statutory provision is severable for purposes of constitutional adjudication. In fact, in the Internal Revenue Code itself, Congress has specifically enacted a severability clause. Section 7852(a) of Title 26 provides: 'If any provision of this title, or the application thereof to any person or circumstances, is held invalid, the remainder of the title, and the application of such provision to other persons or circumstances, shall not be affected thereby.' That clause represents a clear statutory command to this Court to wield its constitutional knife surgically, concentrating on the suspect provisions of § 6107 rather than bludgeoning the entire taxing scheme. The Court cannot evade this constitutional and statutory duty, as it seems to do, by labeling every provision of the wagering tax statutes as 'interrelated' or 'integral.'
40
There is no such narrow focus to the Court's approach to these two cases. In fact, the Court impliedly rejects such an approach in dealing with the Government's suggestion that the taxing scheme at issue be saved from constitutional interment by imposing a use restriction on the information derived from registration under § 4412. Cf. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). The Court finds such a limitation unacceptable because the legislative history of the wagering tax system reveals a congressional purpose to make available to state and local law enforcement officials the disclosures made through registration. The Court reasons that to impose the use restriction would be to defeat the congressional purpose, and it finds the suggested saving device unacceptable. But realistically the Court's sweeping constitutional ruling has the effect of frustrating two congressional purposes—the disclosure purpose and the revenue purpose. Such a result can hardly be justified on the ground of according a congressional purpose the deference due it by this Court. Conceding that the statutory scheme is intended to assist law enforcement, the fact that taxes in the sum of $115,000,000 have flowed from the wagering tax scheme to the Treasury in the past several years is convincing evidence of a legitimate tax purpose. The congressional intent to assist law enforcement should not be the excuse for frustrating the revenue purpose of the statutes before the Court. Regardless of legislative intent, this Court has in the past refused 'to formulate a rule of constitutional law broader than is required.' Garner v. State of Louisiana, 368 U.S. 157, 163, 82 S.Ct. 248, 251, 7 L.Ed.2d 207 (1961); cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 186, n. 43, 83 S.Ct. 554, 576, 9 L.Ed.2d 644 (1963). This principle should prevail in this case where the Act has the wholesome objective of devising workable procedures to assure that gamblers will pay the same taxes on their profits as other citizens are compelled to pay.
41
I apprehend that the Court, by unnecessarily sweeping within its constitutional holding the registration requirements of § 4412, is opening the door to a new wave of attacks on a number of federal registration statutes whenever the registration requirement touches upon allegedly illegal activities. As I noted above, registration is a common feature attached to a number of special taxes imposed by Title 26. For example, the following provisions impose special registration requirements: § 4101 (those subject to the tax on petroleum products); § 4222 (registration regarding certain tax-free sales by manufacturers); § 4722 (those engaged in dealing in narcotic drugs); § 4753 (those who deal in marihuana); § 4804(d) (manufacturers of white phosphorous matches); §§ 5171—5172 (registration of distilleries); § 5179 (registration of stills); § 5502 (manufacturers of vinegar); § 5802 (importers, manufacturers, and dealers in firearms). And § 7011 imposes a general registration requirement on all those liable for other special taxes.7 Heretofore this Court has consistently upheld the validity of such registration requirements, without regard to the legality of the activity being taxed. United States v. Sanchez, 340 U.S. 42, 71 S.Ct. 108, 95 L.Ed. 47 (1950) (26 U.S.C. § 4753); Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (1937) (26 U.S.C. § 5841); Nigro v. United States, 276 U.S. 332, 48 S.Ct. 388, 72 L.Ed. 600 (1928) (26 U.S.C. § 4722). The implications of the Court's decisions today also extend beyond the tax statutes. For example, the statute requiring narcotics addicts and violators to register whenever they enter or leave the country, 18 U.S.C. § 1407, can now be expected to come under attack. My concern that such registration requirements will now come under attack is not imaginary. This very day the Court, adhering to its decisions in Marchetti and Grosso, declares unconstitutional in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 26 U.S.C. § 5851, which makes unlawful the possession of a firearm not registered under § 5841.8 The impact of that decision on the efforts of Congress to enact much-needed federal gun control laws is not consistent with national safety. In my view, the Court has failed to take account of these relevant implications in the very broad holdings of today's decisions.
1
After argument, the case was returned to the calendar, and set for reargument at the 1967 Term, again with Marchetti, supra, 388 U.S. 904, 87 S.Ct. 2097, 18 L.Ed.2d 1343. Counsel were asked to argue, in addition to the original questions, the following: '(1) What relevance, if any, has the required records doctrine, Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, to the validity under the Fifth Amendment of the obligation to pay the wagering excise tax imposed by 26 U.S.C. § 4401? (2) Is satisfaction of an obligation to pay a wagering excise tax imposed by 26 U.S.C. § 4401 conditioned upon the filing of a return required under 26 U.S.C. § 6011 and pertinent regulations? If it is not, what information, if any, must accompany the payment of a wagering excise tax obligation in order to extinguish the taxpayer's liability for that obligation?'
2
Indeed, so far as the pertinent materials can be said to reflect any position, it is that a return must accompany a tax payment. See 26 U.S.C. § 6011; Treas.Reg. § 44.6011(a)—1(a).
3
The United States has suggested that the Commissioner has authority to make information obtained as a result of the excise tax available to prosecuting officers under 26 U.S.C. § 6103, 5 U.S.C. §§ 22, 1002(c), and Treas.Reg. § 601.702(a)(3) and (d). Brief for the United States on the original argument, p. 14, n. 10. But see Transcript of Record 101—102.
4
See State v. Mills, 229 La. 758, 86 So.2d 895; State v. Baum, 230 La. 247, 88 So.2d 209; Boynton v. State, Fla., 75 So.2d 211, 213; United States v. Whiting, 4 Cir., 311 F.2d 191, 193. And see Caplin, The Gambling Business and Federal Taxes, 8 Crime & Delin., 371, 372. Further, we note that the United States has acknowledged the 'limited availability' of the excise tax returns, 'in certain circumstances,' to state and local ofcials. Brief on Reargument 33, n. 30.
5
It is useful to note that the validity under the Fifth Amendment of the wagering excise tax was not at issue in either Kahriger or Lewis; Lewis involved an information which charged a willful failure to pay the occupational tax, and Kahriger an information which charged willfull failures both to register and to pay the occupational tax.
6
H.R.Rep. No. 586, 82d Cong., 1st Sess., 60.
7
Section 4411 provides that the occupational tax must be paid 'by each person who is liable for tax under section 4401' and by each person who receives wagers for one liable under § 4401. It might therefore be argued that since petitioner is entitled to claim the constitutional privilege in defense of a prosecution for willful failure to pay the excise tax, he is thereby freed from liability for the occupational tax. We cannot accept such an argument. We do not hold today either that the excise tax is as such constitutionally impermissible, or that a proper claim of privilege extinguishes liability for taxation; we hold only that such a claim of privilege precludes a criminal conviction premised on failure to pay the tax.
8
It should be noted that petitioner's trial counsel did once assert, in colloquy with the trial judge, that 'We contended and have always contended—and if required to go on appeal will continue to contend—that the requirements of this Act in requiring you to pay this excise tax and take out the stamp are a violation of the privilege against self incrimination.' The court then inquired, 'You are raising the Constitutional question of the validity of the law?' Petitioner's counsel replied, 'That is right.' Transcript of Record 33. Petitioner did not, however, challenge his obligation to pay the occupational tax either in any of his various motions or in any of his other arguments, here or in the courts below.
9
Section 2106 provides that 'The Supreme Court * * * may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.'
10
In light of this disposition, we find it unnecessary to reach petitioner's alternative contention, that conduct of the trial judge after submission of the case to the jury prevented a fair trial.
*
The instructions on Form 730 state that the '(r)eturn, with remittance, covering the tax due under section 4401 for any calendar month must be in the hands of the District Director * * * on or before the last day of the succeeding month * * *.'
1
And in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923.
2
That, after all, in what the clause says:
'No person * * * shall be compelled in any criminal case to be a witness against himself * * *.'
1
It is true that the Internal Revenue Code also imposes special registration requirements in connection with some of the special taxes. See the registration sections collected in 26 U.S.C. § 7012. However, the special registration requirements differ only in degree, and not in kind, from the provisions of § 7011.
2
Among the more general public disclosure provisions of the Revenue Code are § 6103(f) (list of taxpayers); § 6104 (returns of certain tax-exempt organizations); and § 6105 (lists of those who have been granted excess profit relief).
3
Other reports are similarly indefinite concerning the precise amount of revenue realized by organized crime from illicit gambling operations. Thus, a Senate report could be no more exact than to describe unlawful gambling activities as 'a multibillion dollar racket.' Permanent Subcommittee on Investigations of the Senate Committee on Government Operations, Gambling and Organized Crime, S.Rep. No. 1310, 87th Cong., 2d Sess., 43 (1962). The President's Commission on Crime in the District of Columbia reported that 'over 100 million dollars is bet annually on 'numbers' and sports events' in the Washington metropolitan area. The Commission relied for its figurs on information supplied by Sheldon S. Cohen, Commissioner of Internal Revenue. Report of the President's Commission on Crime in the District of Columbia 112 (1966).
4
Investigations by congressional committees have established that gambling revenue provides a principal source of revenue for organized crime in this country. See S.Rep. No. 1310, 87th Cong., 2d Sess., 43 (1962); S.Rep. No. 141, 82d Cong., 1st Sess., 11 (1951). Some congressmen may well have been motivated by a desire to control and curtail organized crime in enacting the tax laws challenged in these cases. However, it is not the task of this Court to examine such motives in ruling on the constitutionality of such laws, and the Court today has wisely declined to engage in any motive-searching inquiries.
5
I recognize that Albertson was decided on Fifth Amendment grounds without reaching the petitioners' First Amendment claims. 382 U.S., at 73—74 and n. 6, 86 S.Ct., at 196. However, in applying the Albertson holding to the facts of these cases, it cannot be overlooked that the registration requirement in Albertson was directed at the petitioners' organizational affiliations which were arguably protected by the First Amendment. See United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967). There is no such First Amendment issue lurking in the cases decided today. The operative fact upon which the registration requirement of § 4412 depends is an individual's status as a gambler.
6
The Court points out in Grosso v. United States that the disclosure requirements of § 6107 do not extend to the excise tax provisions of § 4401. But, by administrative practice, the identity of those who pay the excise tax on wagers is made known to state prosecuting officials. 390 U.S., at 66, 88 S.Ct., at 712.
7
For example, the following sections impose occupational taxes and subject the taxpayer to the registration requirements of § 7011: § 4461 (those who maintain for use or permit use of coin-operated amusement or gaming devices); §§ 4721 and 4702(a)(2)(C) (those who deal in narcotic drugs); § 4751 (dealers in marihuana); § 4821 (manufacturers or dealers in renovated or adulterated butter); § 4841 (manufacturers or dealers in filled cheese); § 5081 (those who rectify distilled spirits or wines); § 5091 (brewers of beer); § 5101 (manufacturers of stills); and § 5111 (wholesale dealers in liquors, wines, and beer); § 5121 (retail dealers in liquors, wines, and beer); and § 5801 (dealers in certain firearms). The registration requirement applies uniformly to those engaged in such occupations lawfully and those whose activities would make them liable to criminal penalties.
8
The petition for a writ of certiorari in Haynes was filed on March 11, 1967, almost a year after this Court granted a writ of certiorari in Costello v. United States (the companion case to Marchetti). In granting the writ, the Court stipulated as the sole question in Costello whether Kahriger and Lewis should be overruled. 383 U.S. 942, 86 S.Ct. 1195, 16 L.Ed.2d 205. There can be little doubt that the Court's specification of the question for argument in Costello prompted the Fifth Amendment challenge in Haynes.
| 01
|
390 U.S. 85
88 S.Ct. 722
19 L.Ed.2d 923
Miles Edward HAYNES, Petitioner,v.UNITED STATES.
No. 236.
Argued Oct. 11, 1967.
Decided Jan. 29, 1968.
Charles Alan Wright, Austin, Tex., for petitioner; Ernest E. Figari, Jr., Dallas, Tex., on the brief.
Harris Weinstein, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioner was charged by a three-count information filed in the United States District Court for the Northern District of Texas with violations of the National Firearms Act. 48 Stat. 1236. Two of the counts were subsequently dismissed upon motion of the United States Attorney. The remaining count averred that petitioner, in violation of 26 U.S.C. § 5851, knowingly possessed a firearm, as defined by 26 U.S.C. § 5848(1), which had not been registered with the Secretary of the Treasury or his delegate, as required by 26 U.S.C. § 5841. Petitioner moved before trial to dismiss this count, evidently asserting that § 5851 violated his privilege against self-incrimination, as guaranteed by the Fifth Amendment.1 The motion was denied, and petitioner thereupon entered a plea of guilty.2 The judgment of conviction was affirmed by the Court of Appeals for the Fifth Circuit. 372 F.2d 651. We granted certiorari to examine the constitutionality under the Fifth Amendment of petitioner's conviction. 388 U.S. 908, 87 S.Ct. 2130, 18 L.Ed.2d 1347. For reasons which follow, we reverse.
I.
2
Section 58513 forms part of the National Firearms Act, an interrelated statutory system for the taxation of certain classes of firearms. The Act's requirements are applicable only to shotguns with barrels less than 18 inches long; rifles with barrels less than 16 inches long; other weapons, made from a rifle or shotgun, with an overall length of less than 26 inches; machine guns and other automatic firearms; mufflers and silencers; and other firearms, except pistols and revolvers, 'if such weapon is capable of being concealed on the person * * *.' 26 U.S.C. § 5848(1); Treas.Reg. § 179.20, 26 CFR § 179.20. These limitations were apparently intended to guarantee that only weapons used principally by persons engaged in unlawful activities would be subjected to taxation.4
3
Importers manufacturers, and dealers in such firearms are obliged each year to pay special occupational taxes, and to register with the Secretary of the Treasury or his delegate. 26 U.S.C. §§ 5801, 5802. Separate taxes are imposed on the making and transfer of such firearms by persons other than those obliged to pay the occupational taxes. 26 U.S.C. §§ 5811, 5821. For purposes of these additional taxes, the acts of making and transferring firearms are broadly defined. Section 5821 thus imposes a tax on the making of a firearm 'whether by manufacture, putting together, alteration, any combination thereof, or otherwise.' Similarly, to transfer encompasses 'to sell, assign, pledge, lease, loan, give away, or otherwise dispose of' a firearm. 26 U.S.C. § 5848(10).
4
All these taxes are supplemented by comprehensive requirements calculated to assure their collection. Any individual who wishes to make a weapon, within the meaning of § 5821(a), is obliged, 'prior to such making,' to declare his intention to the Secretary, and to provide to the Treasury his fingerprints and photograph. 26 U.S.C. § 5821(e); Treas.Reg. § 179.78. The declaration must be 'supported by a certificate of the local chief of police * * * or such other person whose certificate may * * * be acceptable * * *.' Treas.Reg. § 179.78. The certificate must indicate satisfaction that the fingerprints and photograph are those of the declarant, and that the firearm is intended 'for lawful purposes.' Ibid. Any person who wishes to transfer such a weapon may lawfully do so only if he first obtains a written order from the prospective transferee on an 'application form issued * * * for that purpose by the Secretary.' 26 U.S.C. § 5814(a). The application, supported by a certificate of the local chief of police, and accompanied by the transferee's fingerprints and photograph, must be approved by the Secretary prior to the transfer. Treas.Reg. §§ 179.98, 179.99. Finally, every person possessing such a firearm is obliged to register his possession with the Secretary, unless he made the weapon, or acquired it by transfer or importation, and the Act's requirements as to transfers, makings, and importations 'were complied with.' 26 U.S.C. § 5841.5
5
Failure to comply with any of the Act's requirements is made punishable by fines and imprisonment. 26 U.S.C. § 5861. In addition, § 5851 creates a series of supplementary offenses; it declares unlawful the possession of any firearm which has 'at any time' been transferred or made in violation of the Act's provisions, or which 'has not been registered as required by section 5841.' Finally, § 5851 provides that in prosecutions conducted under that section 'possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury.'
II.
6
At the outset, it must be emphasized that the issue in this case is not whether Congress has authority under the Constitution to regulate the manufacture, transfer, or possession of firearms; nor is it whether Congress may tax activities which are, wholly or in part, unlawful. Rather, we are required to resolve only the narrow issue of whether enforcement of § 5851 against petitioner, despite his assertion of the privilege against self-incrimination, is constitutionally permissible. The questions necessary for decision art two: first, whether petitioner's conviction under § 5851 is meaningfully distinguishable from a conviction under § 5841 for failure to register possession of a firearm; and second, if it is not, whether satisfaction of petitioner's obligation to register under § 5841 would have compelled him to provide information incriminating to himself. If, as petitioner urges, his conviction under § 5851 is essentially indistinguishable from a conviction premised directly upon a failure to register under § 5841, and if a prosecution under § 5841 would have punished petitioner for his failure to incriminate himself, it would follow that a proper claim of privilege should have provided a full defense to this prosecution.6 To these questions we turn.
III.
7
The first issue is whether the elements of the offense under § 5851 of possession of a firearm 'which has not been registered as required by section 5841' differ in any significant respect from those of the offense under § 5841 of failure to register possession of a firearm. The United States contends that the two offenses, despite the similarity of their statutory descriptions, serve entirely different purposes, in that the registration clause of § 5851 is intended to punish acceptance of the possession of a firearm which, despite the requirements of § 5841, was never registered by any prior possessor, while § 5841 punishes only a present possessor who has failed to register the fact of his own possession. If this construction is correct, nothing in a prosecution under § 5851 would turn on whether the present possessor had elected to register; his offense would have been complete when he accepted possession of a firearm which no previous possessor had registered. We need not determine whether this construction would be free from constitutional difficulty under the Fifth Amendment, for we have concluded that § 5851 cannot properly be construed as the United States has urged.7
8
The United States finds support for its construction of § 5851 chiefly in the section's use of the past tense: the act stated to be unlawful is 'to possess any firearm which has not been registered as required by section 5841.' (Emphasis added.) It is contended that we may infer from this choice of tense that the failure to register must necessarily precede the accused's acquisition of possession. We cannot derive so much from so little. We perceive no more in the draftsman's choice of tense than the obvious fact that the failure to register must precede the moment at which the accused is charged; we find nothing which confines the clause's application to failures to register which have occurred before a present possessor received the firearm. It follows that the phrase fastened upon by the United States is, at the least, equally consistent with the construction advanced by petitioner.
9
If, however, nothing further were available, it might be incumbent upon us to accept the Government's construction in order to avoid the adjudication of a serious constitutional issue. See, e.g., Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (concurring opinion); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598. But there are persuasive indications at hand which, in our view, preclude adoption of the position urged by the United States. Initially, we must note that each of the other two offenses defined by § 5851 indicates very specifically that the violations of the making or transfer provisions, on which the § 5851 offenses are ultimately premised, can have occurred 'at any time.' An analogous phrase in the registration clause would have made plain beyond all question that the construction now urged by the United States should be accepted; if this was indeed Congress' purpose, it is difficult to see why it did not, as it did in the other clauses, insert the few additional words necessary to make clear its wishes. The position suggested by the United States would thus oblige us, at the outset, to assume that Congress has, in this one clause, chosen a remarkably oblique and unrevealing phrasing.
10
Similarly, it is pertinent to note that the transfer and making clauses of § 5851 punish the receipt, as well as the possession, of firearms; the registration clause, in contrast, punishes only possession. Under the construction given § 5851 by the United States, Congress might have been expected to declare unlawful, in addition, the receipt of firearms never previously registered; indeed, the receipt of the firearm is, under that construction, the central element of the offense. Congress' preference in the registration clause for 'possession,' rather than 'receipt,' is satisfactorily explicable only if petitioner's construction of § 5851 is adopted.
11
Third and more important, we find it significant that the offense defined by § 5851 is the possession of a firearm which has not been registered 'as required by section 5841.' In the absence of persuasive evidence to the contrary, the clause's final words suggest strongly that the perimeter of the offense which it creates is to be marked by the terms of the registration requirement imposed by § 5841. In turn, § 5841 indicates quite precisely that '(e)very person possessing a firearm' must, unless excused by the section's exception, register his possession with the Secretary or his delegate. Moreover, the Treasury regulations are entirely unequivocal; they specifically provide that '(e)very person in the United States possessing a firearm (a) not registered to him, * * * must execute an application for the registration of such firearm * * *.' Treas.Reg. § 179.120. (Emphasis added.)
12
The pertinent legislative history offers additional assistance, and points against the Government's construction. The registration clause was inserted into § 5851 by the Excise Tax Technical Changes Act of 1958. 72 Stat. 1428. The two committee reports indicate, in identical terms,8 that the existing section was thought inadequate because, although it defined as an unlawful act the possession of any firearm which had been made or transferred in violation of the Firearms Act, it failed 'to so define the possession of an unregistered firearm.' H.R.Rep. No. 481, 85th Cong., 1st Sess., 195; S.Rep. No. 2090, 85th Cong., 2d Sess., 212, U.S. Code Congressional and Administrative News, p. 4604. The section as amended 'specifically defines such possession of an unregistered firearm as an unlawful act.' Ibid. It is useful to note that the committees did not suggest that the failure to register must have preceded the acquisition of possession. Further, the reports indicate that the proposed amendment was intended to make available in prosecutions for possession of an unregistered firearm the presumption already contained in § 5851; they conclude that the 'primary purpose of this change is to simplify and clarify the law and to aid in prosecution.' H.R.Rep. No. 481, supra, at 196; S.Rep. No. 2090, supra, at 212.
13
We infer that the amendment was thought to have two purposes. First, it would complete the series of supplementary offenses created by § 5851, by adding to those premised on a making or transfer one bottomed on a failure to register. Second, it would facilitate the prosecution of failures to register by permitting the use of the presumption included in § 5851. It would thus 'aid in prosecution' of conduct also made unlawful by § 5841. Both these purposes are fully consistent with the construction of § 5851 urged by petitioner; but only the first offers any support to the position suggested by the United States.
14
We are unable to escape the conclusion that Congress intended the registration clause of § 5851 to incorporate the requirements of § 5841, by declaring unlawful the possession of any firearm which has not been registered by its possessor, in circumstances in which § 5841 imposes an obligation to register. The elements of the offenses created by the two sections are therefore identical. This does not, however, fully resolve the question of whether any hazards of incrimination which stem from the registration requirement imposed by § 5841 must be understood also to inhere in prosecutions under § 5851. Two additional distinctions between the offenses have been suggested, and we must examine them.
15
First, it has been said that the offenses differ in emphasis, in that § 5851 chiefly punishes possession, while § 5841 punishes a failure to register. Cf. Frye v. United States, 315 F.2d 491, 494; Castellano v. United States, 350 F.2d 852, 854. We find this supposed distinction entirely unpersuasive, for, as we have found, the possession of a firearm and a failure to register are equally fundamental ingredients of both offenses. Second, it has been suggested that § 5841 creates a 'status of unlawful possession' which, if assumed by an individual, denies to him the protection of the constitutional privilege. Castellano v. United States, supra, at 854. It has evidently been thought to follow that the privilege may be claimed in prosecutions under § 5841, but not in those under § 5851. This is no less unpersuasive; for reasons discussed in Marchetti v. United States, 390 U.S. 39, at 51—52, 88 S.Ct. 697, at 704, 19 L.Ed.2d 889, decided today, we decline to hold that the performance of an unlawful act, even if there exists a statutory condition that its commission constitutes a waiver of the constitutional privilege, suffices to deprive an accused of the privilege's protection. We hold that petitioner's conviction under the registration clause of § 5851 is not properly distinguishable from a conviction under § 5841 for failure to register, and that both offenses must be deemed subject to any constitutional deficiencies arising under the Fifth Amendment from the obligation to register.
IV.
16
We must now consider whether, as petitioner contends, satisfaction of his obligation to register would have compelled him to provide information incriminating to himself.9 We must first mark the terms of the registration requirement. The obligation to register is conditioned simply upon possession of a firearm, within the meaning of § 5848(1). Not every possessor of a firearm must, however, register; one who made the firearm, or acquired it by transfer or importation, need not register if the Act's provisions as to transfers, makings, and importations 'were complied with.' If those requirements were not met, or if the possessor did not make the firearm, and did not acquire it by transfer or importation, he must furnish the Secretary of the Treasury with his name, address, the place where the firearm is usually kept, and the place of his business or employment. Further, he must indicate his date of birth, social security number, and whether he has ever been convicted of a felony. Finally, he must provide a full description of the firearm. See 26 U.S.C. § 5841; Treas.Reg. § 179.120; Internal Revenue Service Form 1 (Firearms).
17
The registration requirement is thus directed principally at those persons who have obtained possession of a firearm without complying with the Act's other requirements, and who therefore are immediately threatened by criminal prosecutions under §§ 5851 and 5861. They are unmistakably persons 'inherently suspect of criminal activities.' Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165. It is true, as the United States emphasizes, that registration is not invariably indicative of a violation of the Act's requirements; there are situations, which the United States itself styles 'uncommon,'10 in which a possessor who has not violated the Act's other provisions is obliged to register.11 Nonetheless, the correlation between obligations to register violations can only be regarded as exceedingly high, and a prospective registrant realistically can expect that registration will substantially increase the likelihood of his prosecution. Moreover, he can reasonably fear that the possession established by his registration will facilitate his prosecution under the making and transfer clauses of § 5851. In these circumstances, it can scarcely be said that the risks of criminal prosecution confronted by prospective registrants are 'remote possibilities out of the ordinary course of law,' Heike v. United States, 227 U.S. 131, 144, 33 S.Ct. 226, 228, 57 L.Ed. 450; yet they are compelled, on pain of criminal prosecution, to provide to the Secretary both a formal acknowledgment of their possession of firearms, and supplementary information likely to facilitate their arrest and eventual conviction. The hazards of incrimination created by the registration requirement can thus only be termed 'real and appreciable.' Reg. v. Boyes, 1 B. & S. 311, 330; Brown v. Walker, 161 U.S. 591, 599—600, 16 S.Ct. 644, 647—648, 40 L.Ed. 819.
18
We are, however, urged by the United States, for various disparate reasons, to affirm petitioner's conviction. It is first suggested that the registration requirement is a valid exercise of the taxing powers, in that it is calculated merely to assure notice to the Treasury of all taxable firearms. We do not doubt, as we have repeatedly indicated,12 that this Court must give deference to Congress' taxing powers, and to measures reasonably incidental to their exercise; but we are no less obliged to heed the limitations placed upon those powers by the Constitution's other commands. We are fully cognizant of the Treasury's need for accurate and timely information, but other methods, entirely consistent with constitutional limitations, exist by which such information may be obtained. See generally Counselman v. Hitchcock, 142 U.S. 547, 585, 12 S.Ct. 195, 206, 35 L.Ed. 1110. See also Adams v. State of Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608; Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678. Accordingly, nothing we do today will prevent the effective regulation or taxation by Congress of firearms.
19
Nonetheless, these statutory provisions, as now written, cannot be brought within any of the situations in which the Court has held that the constitutional privilege does not prevent the use by the United States of information obtained in connection with regulatory programs of general application. See United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037; Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787. For reasons given in Marchetti v. United States, supra, and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, we have concluded that the points of significant dissimilarity between these circumstances and those in Shapiro and Sullivan preclude any proper application of those cases here. The questions propounded by § 5841, like those at issue in Albertson, supra, are 'directed at a highly selective group inherently suspect of criminal activities'; they concern, not 'an essentially noncriminal and regulatory area of inquiry,' but 'an area permeated with criminal statutes.' 382 U.S. at 79, 86 S.Ct., at 199. There are, moreover, no records or other documents here to which any 'public aspects' might reasonably be said to have attached. Compare Shapiro v. United States, supra, 335 U.S., at 34, 68 S.Ct., at 1393; and Marchetti v. United States, supra.
20
The United States next emphasizes that petitioner has consistently contended that §§ 5841 and 5851 are unconstitutional on their face; it urges that this contention is foreclosed by the inclusion in the registration requirement of situations in which the obligation to register cannot produce incriminating disclosures. We recognize that there are a number of apparently uncommon circumstances in which registration is required of one who has not violated the Firearms Act; the United States points chiefly to the situation of a finder of a lost or abandoned firearm.13 Compare United States v. Forgett, 6 Cir., 349 F.2d 601. We agree that the existence of such situations makes it inappropriate, in the absence of evidence that the exercise of protected rights would otherwise be hampered, to declare these sections impermissible on their face. Instead, it appears, from the evidence now before us, that the rights of those subject to the Act will be fully protected if a proper claim of privilege is understood to provide a full defense to any prosecution either for failure to register under § 5841 or, under § 5851, for possession of a firearm which has not been registered.
21
Finally, we are asked to avoid the constitutional difficulties which we have found in § 5841 and 5851 by imposing restrictions upon the use by state and federal authorities of information obtained as a consequence of the registration requirement. We note that the provisions of 26 U.S.C. § 610714 are applicable to the special occupational taxes imposed by § 5801, although not, apparently, to the making and transfer taxes imposed by §§ 5811 and 5821. In these circumstances, we decline, for reasons indicated in Marchetti, supra, and Grosso, supra, to impose the restrictions urged by the United States.
22
We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under § 5841 or for possession of an unregistered firearm under § 5851.
V.
23
It remains only to determine the appropriate disposition of this case. Petitioner has seasonably and consistently asserted a claim of privilege, but the courts below, believing the privilege inapplicable to prosecutions under § 5851, evidently did not assess the claim's merits. It would therefore ordinarily be necessary to remand the cause to the District Court, with instructions to examine the merits of the claim. We note, however, that there can be no suggestion here that petitioner has waived his privilege, and that, moreover, the United States has conceded that petitioner's privilege against self-incrimination must be found to have been impermissibly infringed if his contentions as to the proper construction of §§ 5851 and 5841 are accepted. Brief for the United States 8. Accordingly, the District Court would be obliged in any additional proceeding to conclude that 'there is reasonable ground to apprehend danger to the witness from his being compelled to answer.' Reg. v. Boyes, supra, at 330. It follows that any proceeding in the District Court must inevitably result in the reversal of petitioner's conviction. We have plenary authority under 28 U.S.C. § 2106 to make such disposition of the case 'as may be just under the circumstances.' See Yates v. United States, 354 U.S. 298, 327—331, 77 S.Ct. 1064, 1081—1083, 1 L.Ed.2d 1356; Grosso v. United States, supra. It would be neither just nor appropriate to require the parties and the District Court to commence an entirely needless additional proceeding. Accordingly, the judgment of the Court of Appeals is reversed.
24
Reversed.
25
Mr. Chief Justice WARREN, dissenting.
26
For reasons stated in my dissent in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889, and Grosso v. United States, 390 U.S. 62, p. 77, 88 S.Ct. 709, p. 718, 19 L.Ed.2d 906, I cannot agree with the result reached by the Court in this case.
1
Petitioner's motion asserted merely that § 5851 was 'unconstitutional,' and the order denying the motion does not indicate more precisely the substance of petitioner's contentions. His subsequent arguments, both in the courts below and here, have, however, consistently asserted a claim of the constitutional privilege. No suggestion is made by the Government that the claim of privilege was not sufficiently made.
2
Petitioner's plea of guilty did not, of course, waive his previous claim of the constitutional privilege. See, e.g., United States v. Ury, 2 Cir., 106 F.2d 28, 124 A.L.R. 569.
3
The section provides that 'It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of sections 5811, 5812(b), 5813, 5814, 5844, or 5846, or which has at any time been made in violation of section 5821, or to possess any firearm which has not been registered as required by section 5841. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury.'
4
The view of a subsequent Congress of course provide no controlling basis from which to infer the purposes of an earlier Congress. See Rainwater v. United States, 356 U.S. 590, 593, 78 S.Ct. 946, 949, 2 L.Ed.2d 996; United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 331, 4 L.Ed.2d 334. Nonetheless, it is pertinent to note that the Committee on Ways and Means of the House of Representatives, while reporting in 1959 on certain proposed amendments to the Act, stated that the 'primary purpose of (the Firearms Act) was to make it more difficult for the gangster element to obtain certain types of weapons. The type of weapon with which these provisions are concerned are the types it was thought would be used primarily by the gangstertype element.' H.R. Rep. No. 914, 86th Cong., 1st Sess., 2.
5
The section provides that 'Every person possessing a firearm shall register, with the Secretary or his delegate, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof. No person shall be required to register under this section with respect to a firearm which such person acquired by transfer or importation or which such person made, if provisions of this chapter applied to such transfer, importation, or making, as the case may be, and if the provisions which applied thereto were complied with.'
6
Indeed, so much is recognized by the Government; it has stated that '(w)e concede that if petitioner's reading of the two provisions were right * * * petitioner's conviction under Section 5851 would not be valid.' Brief for the United States 8.
7
The Government's position is generally supported by several cases in the courts of appeals. See, in addition to the opinion below, Frye v. United States, 9 Cir., 315 F.2d 491; Starks v. United States, 9 Cir., 316 F.2d 45; Mares v. United States, 10 Cir., 319 F.2d 71; Sipes v. United States, 8 Cir., 321 F.2d 174; Taylor v. United States, 10 Cir., 333 F.2d 721; Castellano v. United States 10 Cir., 350 F.2d 852; Pruitt v. United States, 6 Cir., 364 F.2d 826; Decker v. United States, 6 Cir., 378 F.2d 245. None of these cases, however, undertook an extended examination of the relationship between §§ 5851 and 5841. Compare Lovelace v. United States, 5 Cir., 357 F.2d 306, 309; and Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government's Need for Information, 1966 Sup.Ct.Rev. 103, 158—159, n. 95.
8
The language in the reports was evidently taken without change or elaboration from the recommendations submitted to the House Committee on Ways and Means by the Treasury. See Hearings before House Committee on Ways and Means on Excise Tax Technical and Administrative Problems, 84th Cong., 1st Sess., 185, 211.
9
We note that § 5841 has several times been held to require incriminating disclosures, in violation of the Fifth Amendment privilege against self-incrimination. See Russell v. United States, 9 Cir., 306 F.2d 402; Dugan v. United States, 7 Cir., 341 F.2d 85; McCann v. United States D.C., 217 F.Supp. 751; United States v. Fleish, D.C., 227 F.Supp. 967. See also Lovelace v. United States, supra, 357 F.2d at 309.
10
In particular, the United States emphasizes the position of a finder of a lost or abandoned firearm. Brief for the United States 20.
11
We must note, however, that certain of these prospective registrants might be threatened by prosecution under state law for possession of firearms, or similar offenses. It is possible that such persons would be obliged, if they registered in compliance with § 5841, to provide information incriminating to themselves. Such hazards would, of course, support a proper claim of privilege. See Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. For illustrations of state statutes under which such prosecutions might occur, see Conn.Gen.Stat.Rev. § 53—202 (1958); Del.Code Ann., Tit. 11, § 465 (1953); Hawaii Rev.Laws § 157—8 (1955); Iowa Code § 696.1 (1966); Kan.Stat.Ann. § 21—2601 (1964); La.Rev.Stat. § 40:1752 (1950); Minn.Stat. § 609.67 (1965); N.J.Rev.Stat., Tit. 2A, § 151—50 (1953). We have discovered no state statute under which the present petitioner might have been subject to prosecution for acts registrable under § 5841, and he has not contended that registration would have incriminated him under state law.
12
See, for example, Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772; Marchetti v. United States, supra.
13
Again, we note that these registrants might be confronted by hazards of prosecution under state law, and that those hazards might support a proper claim of privilege. See supra, n. 11.
14
Section 6107 provides that 'In the principal internal revenue office in each internal revenue district there shall be kept, for public inspection, an alphabetical list of the names of all persons who have paid special taxes under Subtitle D or E within such district. Such list shall be prepared and kept pursuant to regulations prescribed by the Secretary or his delegate, and shall contain the time, place, and business for which such special taxes have been paid, and upon application of any prosecuting officer of any State, county, or municipality there shall be furnished to him a certified copy thereof, as of a public record, for which a fee of $1 for each 100 words or fraction thereof in the copy or copies so requested may be charged.' The special taxes to which the section refers include those imposed by 26 U.S.C. § 5801.
| 01
|
390 U.S. 129
88 S.Ct. 748
19 L.Ed.2d 956
Fleming SMITH, Petitioner,v.STATE OF ILLINOIS.
No. 158.
Argued Dec. 7, 1967.
Decided Jan. 29, 1968.
Gerald W. Getty, Chicago, Ill., for petitioner.
John J. O'Toole, Chicago, Ill., for respondent.
Opinion of the Court by Mr. Justice STEWART, announced by Mr. Justice FORTAS.
1
In Pointer v. State of Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, this Court held that the Sixth Amendment right of an accused to confront the witnesses against him is a 'fundamental right * * * made obligatory on the States by the Fourteenth Amendment.' The question presented in this case is whether Illinois denied that right to the petitioner, Fleming Smith. He was convicted in a criminal court of Cook County, Illinois, upon a charge of illegal sale of narcotics, and his conviction was affirmed on appeal.1 We granted certiorari to consider his constitutional claim.2
2
At the trial the principal witness against the petitioner was a man who identified himself on direct examination as 'James Jordan.' This witness testified that he had purchased a bag of heroin from the petitioner in a restaurant with marked money provided by two Chicago police officers. The officers corroborated part of this testimony,3 but only this witness and the petitioner testified to the crucial events inside the restaurant, and the petitioner's version of those events was entirely different.4 The only real question at the trial, therefore, was the relative credibility of the petitioner and this prosecution witness.
3
On cross-examination this witness was asked whether 'James Jordan' was his real name. He admitted, over the prosecutor's objection, that it was not. He was then asked what his correct name was, and the court sustained the prosecutor's objection to the question.5 Later the witness was asked where he lived, and again the court sustained the prosecutor's objection to the question.6
4
As the Court said in Pointer, 'It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.' 380 U.S., at 404, 85 S.Ct., at 1068. Even more recently we have repeated that '(a) denial of cross-examination without waiver * * * would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.' Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314.
5
In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in 'exposing falsehood and bringing out the truth'7 through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.
6
In Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624, this Court almost 40 years ago unanimously reversed a federal conviction because the trial judge had sustained objections to questions by the defense seeking to elicit the 'place of residence' of a prosecution witness over the insistence of defense counsel that 'the jury was entitled to know 'who the witness is, where he lives and what his business is." 282 U.S., at 688—689, 51 S.Ct., at 218. What the Court said in reversing that conviction is fully applicable here:
7
'It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. * * * To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. * * *
8
'* * * The question, 'Where do you live?' was not only an appropriate preliminary to the cross-examination of the witness, but on its face, without any such declaration of purpose as was made by counsel here, was an essential step in identifying the witness with his environment, to which cross-examination may always be directed. * * *
9
'The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise reasonable judgment in determining when the subject is exhausted. * * * But no obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him. * * * But no such case is presented here. * * *' 282 U.S., at 692—694, 51 S.Ct., at 219—220.
10
In Pointer v. State of Texas, supra, the Court made clear that 'the right of an accused to be confronted with the witnesses against him must be determined by the same standards whether the right is denied in a federal or state proceeding * * *.' 380 U.S., at 407—408, 85 S.Ct., at 1070. In this state case we follow the standard of Alford and hold that the petitioner was deprived of a right guaranteed to him under the Sixth and Fourteenth Amendments of the Constitution.8
11
Reversed.
12
Mr. Justice WHITE, with whom Mr. Justice MARSHALL, joins, concurring.
13
In Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931), the Court recognized that questions which tend merely to harass, annoy, or humiliate a witness may go beyond the bounds of proper cross-examination. I would place in the same category those inquiries which tend to endanger the personal safety of the witness. But in these situations, if the question asked is one that is normally permissible, the State or the witness should at the very least come forward with some showing of why the witness must be excused from answering the question. The trial judge can then ascertain the interest of the defendant in the answer and exercise an informed discretion in making his ruling. Here the State gave no reasons justifying the refusal to answer a quite usual and proper question. For this reason I join the Court's judgment and its opinion which, as I understand it, is not inconsistent with these views. I should note in addition that although petitioner and his attorney may have known the witness in the past, it is not at all clear that either of them had ever known the witness' real name or knew where he lived at the time of the trial.
14
Mr. Justice HARLAN, dissenting.
15
We granted certiorari in this case believing that it presented with requisite clarity the issue whether a defendant in a state criminal trial may constitutionally be denied on cross-examination of a principal state witness the right to question such witness as to his actual name and address. Were I still of the view, after examination of the record, that this case clearly presents that question, I would concur in the Court's judgment on due process, but not on Sixth Amendment 'incorporation,' grounds.* The record, however, raises serious doubt that this petitioner was denied any information that he did not already here, thus either rendering the error harmless or at least making the issue inappropriate for constitutional adjudication.
16
The State's witness identified himself as 'James Jordan.' Apparently knowing that this was not his real or his only name, defense counsel asked Jordan whether that was his correct name, and received a negative reply. Further inquiry was disallowed by the trial judge as to both the witness' name and address. Later, however, defense counsel said of the witness 'I represented him before, I know him.' Still later, when asked by defense counsel on direct examination how long he had known James Jordan, the defendant replied, 'I'd say a new years or so, casualty.' The defendant also indicated that he knew Jordan to be a narcotics addict, and that he knew that Jordan was acquainted with a person whose legal name he knew to be Herbert Simpson.
17
In the face of these developments, the Court's suggestion that perhaps the defense nevertheless did not know Jordan's name or address is, to say the least, exceedingly dubious. At no point did defense counsel, or defendant, state that he lacked the requested information, nor did counsel pursue the point with any vigor after the State's objections to the questions; he simply turned to another series of questions without suggesting any way in which his attempt to present a defense had been prejudiced. The inference seems to me patent that counsel was asking routine questions, to which he already knew the answers, and that his failure to get answers in court was of no consequence.
18
I would not reverse a state conviction on a record so opaque, indeed one savoring of a disingenuous constitutional contention. Cf. Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666; Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989. I would therefore dismiss the writ as improvidently granted.
1
70 Ill.App.2d 289, 217 N.E.2d 546.
2
387 U.S. 904, 87 S.Ct. 1693, 18 L.Ed. 621.
3
The officers testified that the witness had entered the restaurant with the marked money and without narcotics, and that he had emerged with a bag of heroin. They also testified that they had found some of the marked money in the petitioner's possession when they arrested him.
4
The petitioner testified that he had refused to sell the witness narcotics but had directed him to another man in the restaurant from whom he believed a purchase had been made. The petitioner also testified that he used a $5 bill to purchase a cup of coffee, and must have received the marked money in his change.
5
'MR. PRIDE: Is James Jordan your correct name?
'MR. MARTWICK: Object.
'MR. PRIDE: I have a right to know if it is his correct name.
'THE COURT: He may answer if it is his correct name or not.
'MR. PRIDE: Is that your correct name?
'A. No, it is not.
'Q. What is your correct name?
'MR. MARTWICK: Object.
'THE COURT: I won't have him answer that.'
6
'Q. Now, where do you live now?
'MR. MARTWICK: Objection.
'MR. PRIDE: This is material.
'MR. MARTWICK: Objection, Judge.
'THE COURT: Yes, objection allowed.'
The record shows that in fact the petitioner and his lawyer knew 'Jordan' and that the lawyer had once represented him. However, there is no evidence in the record that either the petitioner or his lawyer knew 'Jordan's' correct name or where he was living at the time of this trial.
7
See Pointer v. State of Texas, 380 U.S., at 404, 85 S.Ct., at 1068.
8
It is to be noted that no claim of the privilege against compulsory self-incrimination was asserted by 'James Jordan.' Cf. United States v. Cardillo, 316 F.2d 606, 87 S.Ct. 1056, 18 L.Ed.2d 62. Nor are this Court's decisions in McCray v. State of Illinois, 386 U.S. 300, and Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, relevant here. In neither of those cases was the informer a witness for the prosecution. Another recent Illinois decision seems to have recognized that the state evidentiary informer privilege is not involved when the informer is himself a witness at the trial. People v. Smith, 69 Ill.App.2d 83, 89, 216 N.E.2d 520, 523. See 8 Wigmore, Evidence § 2374, n. 6 (McNaughton rev. 1961).
*
See my opinion concurring in the result in Pointer v. State of Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, 1070, 13 L.Ed.2d 923.
| 01
|
390 U.S. 136
88 S.Ct. 752
19 L.Ed.2d 962
Ruby KOLOD et al.v.UNITED STATES.
No. 133.
Jan. 29, 1968.
Edward Bennett Williams, Harold Ungar and W. H. Erickson, for petitioners.
Solicitor General Griswold, former Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Sidney M. Glazer, for the United States.
PER CURIAM.
1
The petition for rehearing is granted and the order denying petitioners' petition for the writ of certiorari, 389 U.S. 834, 88 S.Ct. 40, 19 L.Ed.2d 95, is set aside. The petition for rehearing alleges that petitioners' counsel was informed after the petition for the writ of certiorari was filed that petitioner Alderisio's conversations were monitored through electronic surveillance conducted by a government agency at Alderisio's place of business in Chicago. The Court invited the Solicitor General to respond to the petition for rehearing. 389 U.S. 966, 88 S.Ct. 459, 19 L.Ed.2d 457. The Solicitor General responded that the petition should be denied because the case did not come within '* * * the policy of the Department of Justice to make disclosure to the courts if it finds (1) that a defendant was present or participated in a conversation overheard by unlawful electronic surveillance, and (2) that the government has thereby obtained any information which is arguably relevant to the litigation involved.' The Solicitor General stated that 'As a result of his inquiries and examination, he is satisfied that there is nothing that is arguably relevant to the present case,' that is, 'no overheard conversation in which any of the petitioners participated is arguably relevant to this prosecution.'
2
We read the response as admitting that Alderisio's conversations were overheard by unlawful electronic eavesdropping but as justifying nondisclosure on the basis of the Department's determination that the information obtained was not arguably relevant to this prosecution. We cannot accept the Department's ex parte determination of relevancy in lieu of such determination in an adversary proceeding in the District Court. Accordingly we grant the petition for certiorari as to each of the petitioners Alderisio and Alderman,* vacate the judgment of the Court of Appeals, and remand the case to the District Court for a hearing, findings, and conclusions on the nature and relevance to these convictions of any conversations that may be shown to have been overheard through unlawful electronic surveillance of petitioner Alderisio's place of business in Chicago. 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 any electronically eavesdropped conversations at petitioner Alderisio's place of business in Chicago, 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 convictions of the petitioners were not tainted by the use of evidence improperly obtained, it will enter new final judgments of convictions 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 a petitioner was tainted, it would then become its duty to accord such petitioner a new trial. Hoffa v. United States, 387 U.S. 231, 233—234, 87 S.Ct. 1583, 1584, 18 L.Ed.2d 738.
3
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.
4
It is so ordered.
5
Mr. Justice BLACK dissents.
6
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
*
Petitioner Koled died in August 1967 and the petition for certiorari as to him is dismissed.
| 01
|
390 U.S. 102
88 S.Ct. 733
19 L.Ed.2d 936
PROVIDENT TRADESMENS BANK & TRUST CO., Administrator of the Estate of John R. Lynch, etc., Petitioner,v.George M. PATTERSON, Administrator of the Estate of Donald Cionci et al.
No. 28.
Argued Nov. 6 and 7, 1967.
Decided Jan. 29, 1968.
[Syllabus from pages 102-103 intentionally omitted]
Avram G. Adler, Philadelphia, Pa., for petitioner.
Norman Paul Harvey, Philadelphia, Pa., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This controversy, involving in its present posture the dismissal of a declaratory judgment action for nonjoinder of an 'indispensable' party, began nearly 10 years ago with a traffic accident. An automobile owned by Edward Dutcher, who was not present when the accident occurred, was being driven by Donald Cionci, to whom Dutcher had given the keys. John Lynch and John Harris were passengers. The automobile crossed the median strip of the highway and collided with a truck being driven by Thomas Smith. Cionci, Lynch, and Smith were killed and Harris was severely injured.
2
Three tort actions were brought. Provident Tradesmens Bank, the administrator of the estate of passenger Lynch and petitioner here, sued the estate of the driver, Cionci, in a diversity action. Smith's administratrix, and Harris in person, each brought a state-court action against the estate of Cionci, Dutcher, the owner, and the estate of Lynch. These Smith and Harris actions, for unknown reasons, have never gone to trial and are still pending. The Lynch action against Cionci's estate was settled for $50,000, which the estate of Cionci, being penniless, has never paid.
3
Dutcher, the owner of the automobile and a defendant in the as yet untried tort actions, had an automobile liability insurance policy with Lumbermens Mutual Casualty Company, a respondent here. That policy had an upper limit of $100,000 for all claims arising out of a single accident. This fund was potentially subject to two different sorts of claims by the tort plaintiffs. First, Dutcher himself might be held vicariously liable as Cionci's 'principal'; the likelihood of such a judgment against Dutcher is a matter of considerable doubt and dispute. Second, the policy by its terms covered the direct liability of any person driving Dutcher's car with Dutcher's 'permission.'
4
The insurance company had declined, after notice, to defend in the tort action brought by Lynch's estate against the estate of Cionci, believing that Cionci had not had permission and hence was not covered by the policy. The facts allegedly were that Dutcher had entrusted his car to Cionci, but that Cionci had made a detour from the errand for which Dutcher allowed his car to be taken. The estate of Lynch, armed with its $50,000 liquidated claim against the estate of Cionci, brought the present diversity action for a declaration that Cionci's use of the car had been 'with permission' of Dutcher. The only named defendants were the company and the estate of Cionci. The other two tort plaintiffs were joined as plaintiffs. Dutcher, a resident of the State of Pennsylvania as were all the plaintiffs, was not joined either as plaintiff or defendant. The failure to join him was not adverted to at the trial level.
5
The major question of law contested at trial was a state-law question. The District Court, Provident Tradesmens Bank and Trust Company v. Lumbermens Mutual Casualty Company, 218 F.Supp. 802 had ruled that, as a matter of the applicable (Pennsylvania) law, the driver of an automobile is presumed to have the permission of the owner. Hence, unless contrary evidence could be introduced, the tort plaintiffs, now declaratory judgment plaintiffs, would be entitled to a directed verdict against the insurance company. The only possible contrary evidence was testimony by Dutcher as to restrictions he had imposed on Cionci's use of the automobile. The two estate plaintiffs claimed, however, that under the Pennsylvania 'Dead Man Rule' Dutcher was incompetent to testify on this matter as against them. The District Court upheld this claim. It ruled that under Pennsylvania law Dutcher was incompetent to testify against an estate if he had an 'adverse' interest to that of the estate. It found such adversity in Dutcher's potential need to call upon the insurance fund to pay judgments against himself, and his consequent interest in not having part or all of the fund used to pay judgments against Cionci. The District Court, therefore, directed verdicts in favor of the two estates. Dutcher was, however, allowed to testify as against the live plaintiff, Harris. The jury, nonetheless, found that Cionci had had permission, and hence awarded a verdict to Harris also.
6
Lumbermens appealed the judgment to the Court of Appeals for the Third Circuit, raising various state-law questions.1 The Court of Appeals, Provident Tradesmens Bank and Trust Company v. Lumbermens Mutual Casualty Company, 365 F.2d 802 (C.A.3d Cir.) did not reach any of these issues. Instead, after reargument en banc, it decided, 5—2, to reverse on two alternative grounds neither of which had been raised in the District Court or by the appellant.
7
The first of these grounds was that Dutcher was an indispensable party. The court held that the 'adverse interests' that had rendered Dutcher incompetent to testify under the Pennsylvania Dead Man Rule also required him to be made a party. The court did not consider whether the fact that a verdict had already been rendered, without objection to the nonjoinder of Dutcher, affected the matter. Nor did it follow the provision of Rule 19 of the Federal Rules of Civil Procedure that findings of 'indispensability' must be based on stated pragmatic considerations. It held, to the contrary, that the right of a person who 'may be affected' by the judgment to be joined is a 'substantive' right, unaffected by the federal rules; that a trial court 'may not proceed' in the absence of such a person; and that since Dutcher could not be joined as a defendant without destroying diversity jurisdiction the action had to be dismissed.
8
Since this ruling presented a serious challenge to the scope of the newly amended Rule 19, we granted certiorari. 386 U.S. 940, 87 S.Ct. 972, 17 L.Ed.2d 872. Concluding that the inflexible approach adopted by the Court of Appeals in this case exemplifies the kind of reasoning that the Rule was designed to avoid, we reverse.
I.
9
The applicable parts of Rule 19 read as follows:
10
'Rule 19. Joinder of Persons Needed for Just Adjudication
11
'(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.
12
'(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(1)—(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder.'
13
We may assume, at the outset, that Dutcher falls within the category of persons who, under § (a), should be 'joined if feasible.' The action was for an adjudication of the validity of certain claims against a fund. Dutcher, faced with the possibility of judgments against him, had an interest in having the fund preserved to cover that potential liability. Hence there existed, when this case went to trial, at least the possibility that a judgment might impede Dutcher's ability to protect his interest, or lead to later relitigation by him.
14
The optimum solution, an adjudication of the permission question that would be binding on all interested persons, was not 'feasible,' however, for Dutcher could not be made a defendant without destroying diversity. Hence the problem was the one to which Rule 19(b) appears to address itself: in the absence of a person who 'should be joined if feasible,' should the court dismiss the action or proceed without him? Since this problem emerged for the first time in the Court of Appeals, there were also two subsidiary questions. First, what was the effect, if any, of the failure of the defendants to raise the matter in the District Court? Second, what was the importance, if any, of the fact that a judgment, binding on the parties although not binding on Dutcher, had already been reached after extensive litigation? The three questions prove, on examination, to be interwoven.
15
We conclude, upon consideration of the record and applying the 'equity and good conscience' test of Rule 19(b), that the Court of Appeals erred in not allowing the judgment to stand.
16
Rule 19(b) suggests four 'interests' that must be examined in each case to determine whether, in equity and good conscience, the court should proceed without a party whose absence from the litigation is compelled.2 Each of these interests must, in this case, be viewed entirely from an appellate perspective since the matter of joinder was not considered in the trial court. First, the plaintiff has an interest in having a forum. Before the trial, the strength of this interest obviously depends upon whether a satisfactory alternative forum exists.3 On appeal, if the plaintiff has won, he has a strong additional interest in preserving his judgment. Second, the defendant may properly wish to avoid multiple litigation, or inconsistent relief, or sole responsibility for a liability he shares with another. After trial, however, if the defendant has failed to assert this interest, it is quite proper to consider it foreclosed.4
17
Third, there is the interest of the outsider whom it would have been desirable to join. Of course, since the outsider is not before the court, he cannot be bound by the judgment rendered. This means, however, only that a judgment is not res judicata as to, or legally enforceable against, a nonparty.5 It obviously does not mean either (a) that a court may never issue a judgment that, in practice, affects a nonparty or (b) that (to the contrary) a court may always proceed without considering the potential effect on nonparties simply because they are not 'bound' in the technical sense.6 Instead, as Rule 19(a) expresses it, the court must consider the extent to which the judgment may 'as a practical matter impair or impede his ability to protect' his interest in the subject matter. When a case has reached the appeal stage the matter is more complex. The judgment appealed from may not in fact affect the interest of any outsider even though there existed, before trial, a possibility that a judgment affecting his interest would be rendered.7 When necessary, however, a court of appeals should, on its own initiative, take steps to protect the absent party, who of course had no opportunity to plead and prove his interest below.8
18
Fourth, there remains the interest of the courts and the public in complete, consistent, and efficient settlement of controversies. We read the Rule's third criterion, whether the judgment issued in the absence of the nonjoined person will be 'adequate,' to refer to this public stake in settling disputes by wholes, whenever possible, for clearly the plaintiff, who himself chose both the forum and the parties defendant, will not be heard to complain about the sufficiency of the relief obtainable against them. After trial, considerations of efficiency of course include the fact that the time and expense of a trial have already been spent.
19
Rule 19(b) also directs a district court to consider the possibility of shaping relief to accommodate these four interests. Commentators had argued that greater attention should be paid to this potential solution to a joinder stymie,9 and the Rule now makes it explicit that a court should consider modification of a judgment as an alternative to dismissal.10 Needless to say, a court of appeals may also properly require suitable modification as a condition of affirmance.
20
Had the Court of Appeals applied Rule 19's criteria to the facts of the present case, it could hardly have reached the conclusion it did. We begin with the plaintiff's viewpoint. It is difficult to decide at this stage whether they would have had an 'adequate' remedy had the action been dismissed before trial for nonjoinder: we cannot here determine whether the plaintiffs could have brought the same action, against the same parties plus Dutcher, in a state court. After trial, however, the 'adequacy' of this hypothetical alternative, from the plaintiffs' point of view, was obviously greatly diminished. Their interest in preserving a fully litigated judgment should be overborne only by rather greater opposing considerations than would be required at an earlier stage when the plaintiffs' only concern was for a federal rather than a state forum.
21
Opposing considerations in this case are hard to find. The defendants had no stake, either asserted or real, in the joinder of Dutcher. They showed no interest in joinder until the Court of Appeals took the matter into its own hands. This properly forecloses any interest of theirs, but for purposes of clarity we note that the insurance company, whose liability was limited to $100,000, had or will have full opportunity to litigate each claim on that fund against the claimant involved. Its only concern with the absence of Dutcher was and is to obtain a windfall escape from its defeat at trial.
22
The interest of the outsider, Dutcher, is more difficult to reckon. The Court of Appeals, concluding that it should not follow Rule 19's command to determine whether, as a practical matter, the judgment impaired the nonparty's ability to protect his rights, simply quoted the District Court's reasoning on the Dead Man issue as proof that Dutcher had a 'right' to be joined:
23
'The subject matter of this suit is the coverage of Lumbermens' policy issued to Dutcher. Depending upon the outcome of this trial, Dutcher may have the policy all to himself or he may have to share its coverage with the Cionci Estate, thereby extending the availability of the proceeds of the policy to satisfy verdicts and judgments in favor of the two Estate plaintiffs. Sharing the coverage of a policy of insurance with finite limits with another, and thereby making that policy available to claimants against that other person is immediately worth less than having the coverage of such policy available to Dutcher alone. By the outcome in the instant case, to the extent that the two Estate plaintiffs will have the proceeds of the policy available to them in their claims against Cionci's estate, Dutcher will lose a measure of protection. Conversely, to the extent that the proceeds of this policy are not available to the two Estate plaintiffs Dutcher will gain. * * * It is sufficient for the purpose of determining adversity (of interest) that it appears clearly that the measure of Dutcher's protection under this policy of insurance is dependent upon the outcome of this suit. That being so, Dutcher's interest in these proceedings is adverse to the interest of the two Estate plaintiffs, the parties who represent, on this record, the interests of the deceased persons in the matter in controversy.'11
24
There is a logical error in the Court of Appeals' appropriation of this reasoning for its own quite different purposes: Dutcher had an 'adverse' interest (sufficient to invoke the Dead Man Rule) because he would have been benefited by a ruling in favor of the insurance company; the question before the Court of Appeals, however, was whether Dutcher was harmed by the judgment against the insurance company.
25
The two questions are not the same. If the three plaintiffs had lost to the insurance company on the permission issue, that loss would have ended the matter favorably to Dutcher. If, as has happened, the three plaintiffs obtain a judgment against the insurance company on the permission issue, Dutcher may still claim that as a nonparty he is not estopped by that judgment from relitigating the issue. At that point it might be argued that Dutcher should be bound by the previous decision because, although technically a nonparty, he had purposely bypassed an adequate opportunity to intervene. We do not now decide whether such an argument would be correct under the circumstances of this case. If, however, Dutcher is properly foreclosed by his failure to intervene in the present litigation, then the joinder issue considered in the Court of Appeals vanishes, for any rights of Dutcher's have been lost by his own inaction.
26
If Dutcher is not foreclosed by his failure to intervene below, then he is not 'bound' by the judgment in favor of the insurance company and, in theory, he has not been harmed. There remains, however, the practical question whether Dutcher is likely to have any need and if so will have any opportunity, to relitigate. The only possible threat to him is that if the fund is used to pay judgments against Cionci the money may in fact have disappeared before Dutcher has an opportunity to assert his interest. Upon examination, we find this supposed threat neither large nor unavoidable.
27
The state-court actions against Dutcher had lain dormant for years at the pleading stage by the time the Court of Appeals acted. Petitioner asserts here that under the applicable Pennsylvania vicarious liability law there is virtually no chance of recovery against Dutcher. We do not accept this assertion as fact, but the matter could have been explored below. Furthermore, even in the event of tort judgments against Dutcher, it is unlikely that he will be prejudiced by the outcome here. The potential claimants against Dutcher Himself are identical with the potential claimants against Cionci's estate. Should the claimants seek to collect from Dutcher personally, he may be able to raise the permission issue defensively, making it irrelevant that the actual monies paid from the fund may have disappeared: Dutcher can assert that Cionci did not have his permission and that therefore the payments made on Cionci's behalf out of Dutcher's insurance policy should properly be credited against Dutcher's own liability. Of course, when Dutcher raises this defense he may lose, either on the merits of the permission issue or on the ground that the issue is foreclosed by Dutcher's failure to intervene in the present case, but Dutcher will not have been prejudiced by the failure of the District Court here to order him joined.
28
If the Court of Appeals was unconvinced that the threat to Dutcher was trivial, it could nevertheless have avoided all difficulties by proper phrasing of the decree. The District Court, for unspecified reasons, had refused to order immediate payment on the Cionci judgment. Payment could have been withheld pending the suits against Dutcher and relitigation (if that became necessary) by him. In this Court, furthermore, counsel for petitioners represented orally that they, the tort plaintiffs, would accept a limitation of all claims to the amount of the insurance policy. Obviously such a compromise could have been reached below had the Court of Appeals been willing to abandon its rigid approach and seek ways to preserve what was, as to the parties, subject to the appellants' other contentions, a perfectly valid judgment.
29
The suggestion of potential relitigation of the question of 'permission' raises the fourth 'interest' at stake in joinder cases—efficiency. It might have been preferable, at the trial level, if there were a forum available in which both the company and Dutcher could have been made defendants, to dismiss the action and force the plaintiffs to go elsewhere. Even this preference would have been highly problematical, however, for the actual threat of relitigation by Dutcher depended on there being judgments against him and on the amount of the fund, which was not revealed to the District Court. By the time the case reached the Court of Appeals, however, the problematical preference on efficiency grounds had entirely disappeared: there was no reason then to throw away a valid judgment just because it did not theoretically settle the whole controversy.
II.
30
Application of Rule 19(b)'s 'equity and good conscience' test for determining whether to proceed or dismiss would doubtless have led to a contrary result below. The Court of Appeals' reasons for disregarding the Rule remain to be examined.12 The majority of the court concluded that the Rule was inapplicable because 'substantive' rights are involved, and substantive rights are not affected by the Federal Rules. Although the court did not articulate exactly what the substantive rights are, or what law determines them, we take it to have been making the following argument: (1) there is a category of persons called 'indispensable parties'; (2) that category is defined by substantive law and the definition cannot be modified by rule; (3) the right of a person falling within that category to participate in the lawsuit in question is also a substantive matter, and is absolute.13
31
With this we may contrast the position that is reflected in Rule 19. Whether a person is 'indispensable,' that is, whether a particular lawsuit must be dismissed in the absence of that person, can only be determined in the context of particular litigation.14 There is a large category, whose limits are not presently in question, of persons who, in the Rule's terminology, should be 'joined if feasible,' and who, in the older terminology, were called either necessary or indispensable parties. Assuming the existence of a person who should be joined if feasible, the only further question arises when joinder is not possible and the court must decide whether to dismiss or to proceed without him. To use the familiar but confusing terminology, the decision to proceed is a decision that the absent person is merely 'necessary' while the decision to dismiss is a decision that he is 'indispensable.'15 The decision whether to dismiss (i.e., the decision whether the person missing is 'indispensable') must be based on factors varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests. Rule 19 does not prevent the assertion of compelling substantive interests; it merely commands the courts to examine each controversy to make certain that the interests really exist. To say that a court 'must' dismiss in the absence of an indispensable party and that it 'cannot proceed' without him puts the matter the wrong way around: a court does not know whether a particular person is 'indispensable' until it had examined the situation to determine whether it can proceed without him.
32
The Court of Appeals concluded, although it was the first court to hold, that the 19th century joinder cases in this Court created a federal, common-law, substantive right in a certain class of persons to be joined in the corresponding lawsuits.'16 At the least, that was not the way the matter started. The joinder problem first arose in equity and in the earliest case giving rise to extended discussion the problem was the relatively simple one of the inefficiency of litigation involving only some of the interested persons. A defendant being sued by several cotenants objected that the other cotenants were not made parties. Chief Justice Marshall replied:
33
'This objection does not affect the jurisdiction, but addresses itself to the policy of the Court. Courts of equity require, that all the parties concerned in interest shall be brought before them, that the matter in controversy may be finally settled. This equitable rule, however, is framed by the Court itself, and is subject to its discretion. * * * (B)eing introduced by the Court itself, for the purposes of justice, (the rule) is susceptible of modification for the promotion of those purposes. * * * In the exercise of its discretion, the Court will require the plaintiff to do all in his power to bring every person concerned in interest before the Court. But, if the case may be completely decided as between the litigant parties, the circumstance that an interest exists in some other person, whom the process of the Court cannot reach * * * ought not to prevent a decree upon its merits.'17
34
Following this case there arose three cases, also in equity, that the Court of Appeals here held to have declared a 'substantive' right to be joined. It is true that these cases involved what would now be called 'substantive' rights. This substantive involvement of the absent person with the controversy before the Court was, however, in each case simply an inescapable fact of the situation presented to the Court for adjudication. The Court in each case left the outsider with no more 'rights' than it had already found belonged to him. The question in each case was simply whether, given the substantive involvement of the outsider, it was proper to proceed to adjudicate as between the parties.
35
The first of the cases was Mallow v. Hinde, 12 Wheat. 193, 6 L.Ed. 599, in which, in essence, the plaintiff sought specific performance of a contract to convey land, but sought it not against his vendor (who could not be joined) but against a person who claimed through an entirely different chain of title. The Court saw that any declaration of rights between the parties before it would either purport (incorrectly) to determine the validity of plaintiff's contract with his grantor, or would decide nothing. The Court said, in language quoted here by the Court of Appeals:
36
'In this case, the complainants have no rights separable from, and independent of, the rights of persons not made parties. The rights of those not before the Court lie at the very foundation of the claim of right by the plaintiffs, and a final decision cannot be made between the parties litigant without directly affecting and prejudicing the rights of others not made parties. * * *
37
'We do not put this case upon the ground of jurisdiction, but upon a much broader ground * * *.' We put it on the ground that no Court can adjudicate directly upon a person's right, without the party being either actually or constructively before the Court.'18
38
Nothing in this language is inconsistent with the Rule 19 formulation, or otherwise suggests that lower courts are expected to proceed without examining the actual interest of the nonjoined person. As the Court explicitly stated, there is no question of 'jurisdiction' and there can be no binding adjudication of a person's rights in the absence of that person. Rather, the problem under the circumstances was that the substantive involvement of the grantor was such that in his absence there was nothing for the Court to decide.
39
The second case relied upon by the Court of Appeals, Northern Indiana R. Co. v. Michigan Central R. Co., 15 How. 233, 14 L.Ed. 674, presents a different aspect of joinder. There suit was brought for an injunction against construction by defendant of a railroad that it was under contract to a nonjoined outsider to build. Thus the plaintiff was seeking equitable relief that would, in practice, abrogate the contractual rights of a nonparty. Among the unpleasant possibilities entailed by proceeding was the likelihood that the defendant might find itself subject to directly conflicting injunctive orders. The Court ruled that,
40
'* * * in a case like the present, where a court cannot but see that the interest of the New Albany Company must be vitally affected, if the relief prayed by the complainants be given, the court must refuse to exercise jurisdiction in the case, or become the instrument of injustice.'19
41
Again, the Court of Appeals' reliance on this language to show that in any case where an outsider 'may be affected' it is necessarily unjust to proceed, is altogether misplaced: the Court in Northern Indiana R. Co. simply found that there would be injustice in proceeding given the particular factual and legal situation before it. Neither Rule 19, nor we, today, mean to foreclose an examination in future cases to see whether an injustice is being, or might be, done to the substantive, or, for that matter, constitutional, rights of an outside by proceeding with a particular case. In this instance, however, no such examination was made below, and no such injustice appears on the record here.
42
The most influential of the cases in which this Court considered the question whether to proceed or dismiss in the absence of an interested but not joinable outsider is Shields v. Barrow, 17 How. 130, 15 L.Ed. 158, referred to in the opinion below. There the Court attempted, perhaps unfortunately, to state general definitions of those persons without whom litigation could or could not proceed. In the former category were placed
43
'Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; but if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties.'20
The persons in the latter category were
44
'Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.'21
45
These generalizations are still valid today, and they are consistent with the requirements of Rule 19, but they are not a substitute for the analysis required by that Rule. Indeed, the second Shields definition states, in rather different fashion, the criteria for decision announced in Rule 19(b). One basis for dismissal is prejudice to the rights of an absent party that 'cannot' be avoided in issuance of a final decree. Alternatively, if the decree can be so written that it protects the interests of the absent persons, but as so written it leaves the controversy so situated that the outcome may be inconsistent with 'equity and good conscience,' the suit should be dismissed.
46
The majority of the Court of Appeals read Shields v. Barrow to say that a person whose interests 'may be affected' by the decree of the court is an indispensable party, and that all indispensable parties have a 'substantive right' to have suits dismissed in their absence. We are unable to read Shields as saying either. It dealt only with persons whose interests must, unavoidably, be affected by a decree and it said nothing about substantive rights.22 Rule 19(b), which the Court of Appeals dismissed as an ineffective attempt to change the substantive rights stated in Shields, is, on the contrary, a valid statement of the criteria for determining whether to proceed or dismiss in the forced absence of an interested person. It takes, for aught that now appears, adequate account of the very real, very substantive claims to fairness on the part of outsiders that may arise in some cases. This, however, simply is not such a case.
III.
47
The Court of Appeals stated a second and distinct ground for reversing the District Court and ordering dismissal of the action. It will be recalled that at the time the present declaratory judgment action came to trial two tort actions were pending in the state courts. In one, the estate of the deceased truck driver, Smith, was suing the estate of Cionci, as tortfeasor, plus Dutcher, on the theory that Cionci was doing an errand for him at the time of the accident, plus Lynch's estate, on the theory that Lynch has been in 'control' of Cionci. Harris, the injured passenger, was suing the same three defendants on the same theories in a separate action. The Court of Appeals concluded that since these actions 'presented the mooted question as to the coverage of the policy,' the issue presented in the present proceding, the District Court should have declined jurisdiction in order to allow the state courts to settle this question of state law.
48
We belive the Court of Appeals decided this question incorrectly. While we reaffirm our prior holding that a federal district court should, in the exercise of discretion, decline to exercise jurisdiction over a diversity action raising issues of state law when those same issues are being presented contemporaneously to state courts, e.g., Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620, we do not find that to be the case here.
49
This issue, like the joinder issue, was not raised at trial. While we do not now declare that a court of appeals may never on its own motion compel dismissal of an action as an unwarranted warranted intrusion upon state adjudication of state law, we do conclude that, this being a discretionary matter, the existence of a verdict reached after a prolonged trial in which the defendants did not invoke the pending state actions should be taken into consideration in deciding whether abstention is the wiser course.
50
It can hardly be said that Lynch's administrator, the plaintiff and petitioner in this case, would have had a satisfactory opportunity to litigate the issue of Cionci's permission in the state actions. The Court of Appeals said that 'all the persons involved in the accident were parties' to the state-court actions. If the implication is that the state actions could have resulted in judgments in favor of Lynch's estate and against the insurance company on the issue of Cionci's permission, this implication is not correct. The insurance company was not a party to the tort actions, and was not defending Cionci's estate. Lynch's estate was a party only in the sense that Lynch's personal representative (a different person from Lynch's administrator, the plaintiff in this case) was made a defendant in tort. Furthermore, the Smith and Harris actions against Cionci had nothing to do with the issue of insurance coverage: had Smith or Harris won a judgment against Cionci's estate, they would have had to bring a further action against the insurance company; this further action could well have been brought in a federal court. In short, the net result of abstention here would presumably have been a diversity action identical with this one, except that Lynch's estate would have been compelled to wait upon the convenience of plaintiffs over whom it had no control, and would have been dependent upon a victory by those plaintiffs in a suit in which it was a defendant.
51
The issues that were before the state courts in the tort actions were not the same as the issues presented by this case. To be sure, a critical question of fact in both cases was what Dutcher said to Cionci when he gave him the keys. But in the state-court actions the ultimate question was whether Cionci was acting as Dutcher's agent, thus making Dutcher personally liable for Cionci's tort. In this case the question was simply whether Cionci had 'permission,' thus bringing Cionci's own liability within the coverage of the insurance policy. Resolution of the 'agency' issue in the state court would have had no bearing on the 'permission' issue even if that resolution were binding on Lynch's estate. Furthermore, although the state court would have had to rule (and still will have to do so, if the cases are ever tried) whether or not Dutcher may testify against the estates under the Dead Man Rule, this question is also a different one in the state and federal cases. In the state cases, Dutcher was a defendant, and the question would be whether he could testify in defense against his own liability. In the present case the question was rather whether he could testify, as a nonparty, on the coverage of his insurance policy.
52
We think it clear that the judgment below cannot stand. The judgment is vacated and the case is remanded to the Court of Appeals for consideration of those issues raised on appeal that have not been considered, and, should the Court of Appeals affirm the District Court as to those issues, for appropriate disposition preserving the judgment of the District Court and protecting the interests of nonjoined persons.
53
It is so ordered.
54
Judgment vacated and case remanded to Court of Appeals.
1
Appellants challenged the District Court's ruling on the Dead Man issue, the fairness of submitting the question as to Harris to a jury that had been directed to find in favor of the two estates whose position was factually indistinguishable, and certain instructions.
2
For convenience, we treat these interests in a different order from that appearing in Rule 19(b). Our list follows that of Reed, Compulsory Joinder of Parties in Civil Actions, 55 Mich.L.Rev. 327, 330 (1957).
3
The Advisory Committee on the Federal Rules of Civil Procedure, in its Note on the 1966 Revision of Rule 19, quoted at 3 Moore, Federal Practice 19.01 (hereinafter cited as 'Committee Note', comments as follows on the fourth factor listed in Rule 19(b), the adequacy of plaintiff's remedy if the action is dismissed: '(T)he court should consider whether there is any assurance that the plaintiff, if dismissed, could sue effectively in another forum where better joinder would be possible.' See Fitzgerald v. Haynes, 241 F.2d 417, 420 (C.A.3d Cir.); Fouke v. Schenewerk, 197 F.2d 234, 236 (C.A.5th Cir.).
4
The Committee Note comments that 'when the moving party is seeking dismissal in order to protect himself against a later suit by the absent person * * * and is not seeking vicariously to protect the absent person against a prejudicial judgment * * * his undue delay in making the motion can properly be counted against him as a reason for denying the motion.' Of course, where an objection to nonjoinder has been erroneously overruled in the district court, the court of appeals may correct the error to prevent harassment of defendants. Young v. Powell, 179 F.2d 147 (C.A.5th Cir.).
5
See the discussion by Reed, supra, n. 2, at 330—335. See also Hazard, Indispensable Party: The Historical Origin of a Procedural Phantom, 61 Col.L.Rev. 1254 (1961).
6
See Keegan v. Humble Oil & Refining Co., 155 F.2d 971 (C.A.5th Cir.).
7
See Bourdieu v. Pacific Western Oil Co., 299 U.S. 65, 57 S.Ct. 51, 81 L.Ed. 42, where this Court held that an inquiry into indispensability would be unnecessary where the complaint did not state a cause of action. But see Calcote v. Texas Pac. Coal & Oil Co., 157 F.2d 216, 167 A.L.R. 413 (C.A.5th Cir.), criticized, 2 Barron & Holtzoff, Federal Practice & Procedure § 516 (1967 Supp.) (Wright ed.).
8
E.g., Hoe v. Wilson, 9 Wall. 501, 19 L.Ed. 762. See generally 2 Barron & Holtzoff, Federal Practice & Procedure § 516 (1967 Supp.) (Wright ed.).
9
E.g., Reed, supra, n. 2. See Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356 (1967). Compare Roos v. Texas Co., 23 F.2d 171 (C.A.2d Cir.).
10
As the Committee Note points out, this principle meshes with others to be considered. An appropriate statement of the question might be 'Can the decree be written so as to protect the legitimate interests of outsiders and, if so, would such a decree be adequate to the plaintiff's needs and an efficient use of judicial machinery?'
11
218 F.Supp. 802, 805—806, quoted at 365 F.2d, at 805.
12
Rule 19 was completely rewritten subsequent to the proceedings in the District Court in this case. There is, however, no occasion for separate consideration of the question whether the action of the Court of Appeals would have been proper under the old version of the Rule. The new version was adopted on July 1, 1966, while the appeal, in which the joinder question first arose, was pending. The majority in the Court of Appeals did not purport to rely on the
older version, but on its conclusion that the Rule, in either form, had no application to this case. The dissent below found the Rule applicable, and concluded that the District Court should not be reversed on the basis of either version.
The new text of the Rule was not intended as a change in principles. Rather, the Committee found that the old text 'was defective in its phrasing and did not point clearly to the proper basis of decision.' This Court, having the ultimate rule-making authority subject to congressional veto, approved the Committee's suggestions. Where the new version emphasizes the pragmatic consideration of the effects of the alternatives of proceeding or dismissing, the older version tended to emphasize classification of parties as 'necessary' or 'indispensable.' Although the two approaches should come to the same point, since the only reason for asking whether a person is 'necessary' or 'indispensable' is in order to decide whether to proceed or dismiss in his absence and since that decision must be made on the basis of practical considerations, Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868, and not by 'prescribed formula,' Niles-Bement-Pond Co. v. Iron Moulders' Union Local No. 68, 254 U.S. 77, 41 S.Ct. 39, 65 L.Ed. 145, the Committee concluded, without directly criticizing the outcome of any particular case, that there had at times been 'undue preoccupation with abstract classifications of rights or obligations, as against consideration of the particular consequences of proceeding with the action and the ways by which these consequences might be ameliorated by the shaping of final relief or other precautions.' An excellent example of the cases causing apprehension is Parker Rust-Proof Co. v. Western Union Tel. Co., 105 F.2d 976 (C.A.2d Cir.). Judge Swan, writing for a panel that included Judges L. Hand and A. N. Hand, stated that a nonjoined person was an 'indispensable' party to a suit to compel issuance of a patent, but went on to say that 'as the object of the rule respecting indispensable parties is to accomplish justice between all the parties in interest, courts of equity will not suffer it to be so applied as to defeat the very purposes of justice.' Id., at 980. On this basis, the Court of Appeals reversed the District Court's dismissal of the action for nonjoinder. Under the present version of the Rule, the same result would be reached for, ultimately, the same reason. The present version simply avoids the purely verbal anomaly, an indispensable person who turns out to be dispensable after all.
13
One commentator has stated that '(i)f this (the Court of Appeals' position in the present case) is sound, amended Rule 19 would be invalid. But there is no case support for the proposition that the judge made doctrines of compulsory joinder have created substantive rights beyond the reach of the rulemaking power.' 2 Barron & Holtzoff, Federal Practice & Procedure § 512, n. 21.14 (1967 Supp.) (Wright ed.).
14
As the Court has before remarked, '(t)here is no prescribed formula for determining in every case whether a person * * * is an indispensable party * * *.' Niles-Bement-Pond Co. v. Iron Moulders' Union Local No. 68, 254 U.S. 77, at 80, 41 S.Ct. 39, 41, 65 L.Ed. 145.
15
The Committee Note puts the matter as follows: 'The subdivision (19(b)) uses the word 'indispensable' only in a conclusory sense, that is, a person is 'regarded as indispensable' when he cannot be made a party and, upon consideration of the factors above mentioned, it is determined that in his absence it would be preferable to dismiss the action, rather than to retain it.'
16
Numerous cases in the lower federal courts have dealt with compulsory joinder, and the Court of Appeals concluded that principles enunciated in those cases required dismissal here. However, none of the cases cited here or below presented a factual situation resembling this case: the error made by the Court of Appeals was precisely its reliance on formulas extracted from their contexts rather than on pragmatic analysis. Moreover, although the Court of Appeals concluded that the 'distilled essence' of earlier cases is that the question whether to dismiss is 'substantive' and that 'Rule 19 does not apply to the indispensable party doctrine,' it found no cases actually so holding.
One of the reasons listed by the Committee Note for the change in the wording of Rule 19 was 'Failure to point to correct basis of decision.' The imprecise and confusing language of the original wording of the Rule produced a variety of responses in the lower courts. In some cases a formulaic approach was employed, making it difficult now to determine whether the result reached was proper or not. Other cases demonstrate close attention to the significant pragmatic considerations involved in the particular circumstances, leading to a resolution consistent with practical and creative justice. For examples in the latter category, see Roos v. Texas Co., 23 F.2d 171 (C.A.2d Cir.) (L. Hand, J.) (decided prior to adoption of Fed.Rules Civ.Proc.); Kroese v. General Steel Castings Corp., 179 F.2d 760, 15 A.L.R.2d 1117 (C.A.3d Cir.) (Goodrich, J.); Stevens v. Loomis, 334 F.2d 775 (C.A.1st Cir.) (Aldrich, J.). It is interesting that the only judicial recognition found by the Court of Appeals of its view that indispensability is a 'substantive' matter is a footnote in the last-cited case attributing to the (then) proposed new formulation of Rule 19 'the view that what are indispensable parties is a matter of substance, not of procedure.' Id., at 778, n. 7. Taken in context, Judge Aldrich's statement refers simply to the view that a decision whether to dismiss must be made pragmatically, in the context of the 'substance' of each case, rather than by procedural formula. The statement is hardly support for the proposition that a court of appeals may ignore Rule 19's command to undertake a practical examination of circumstances.
17
Elmendorf v. Taylor, 10 Wheat. 152, at 166—168, 6 L.Ed. 289.
18
12 Wheat., at 198, 6 L.Ed. 599, quoted at 365 F.2d, at 806. The facts were that T, a trustee of land for the benefit of certain persons, may or may not have conveyed legal title to defendant Hinde. Plaintiff Mallow claimed equitable title by virtue of an executory agreement between the trust beneficiaries and one Langham, who conveyed to plaintiff. Mallow sued Hinde to compel conveyance of the legal title, but T and the beneficiaries could not be joined. Hinde contended that the beneficiaries had no power to sell to Langham, and that the purported contract had, in any event, been obtained by fraud.
19
15 How., at 246, 14 L.Ed. 674, quoted at 365 F.2d, at 806.
20
17 How., at 139, 15 L.Ed. 158.
21
Ibid. Plaintiff was suing for rescission of a contract but was unable to join some of the parties to it. Reed, supra, n. 2, comments that much later difficulty could have been avoided had this Court pointed the way in Shields by undertaking a practical examination of the facts. Id., at 340—346. He concludes that 'The facts in the opinion are insufficient to demonstrate that the result is a just one.' Id., at 344. See also Kaplan, supra, n. 9, at 361.
22
Indeed, for example, it has been clear that in a diversity case the question of joinder is one of federal law. E.g., De Korwin v. First Nat. Bank, 156 F.2d 858, 860 (C.A.7th Cir.), citing Shields. To be sure, state-law questions may arise in determining what interest the outsider actually has, e.g., Kroese v. General Steel Castings Corp., 179 F.2d 760, 15 A.L.R.2d 1117 (C.A.3d Cir.), but the ultimate question whether, given those statedefined interests, a federal court may proceed without the outsider is a federal matter.
| 89
|
390 U.S. 145
88 S.Ct. 869
19 L.Ed.2d 998
Lester J. ALBRECHT, Petitioner,v.The HERALD COMPANY, d/b/a Globe-Democrat Publishing Co.
No. 43.
Argued Nov. 9, 1967.
Decided March 4, 1968.
Rehearing Denied April 8, 1968.
See 390 U.S. 1018, 88 S.Ct. 1258.
Gray L. Dorsey, Chesterfield, Mo., for petitioner.
Lon Hocker, St. Louis, Mo., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
A jury returned a verdict for respondent in petitioner's suit for treble damages for violation of § 1 of the Sherman Act.1 Judgment was entered on the verdict and the Court of Appeals for the Eighth Circuit affirmed. 367 F.2d 517 (1966). The question is whether the denial of petitioner's motion for judgment notwithstanding the verdict was correctly affirmed by the Court of Appeals. Because this case presents important issues under the antitrust laws, we granted certiorari. 386 U.S. 941, 87 S.Ct. 976, 17 L.Ed.2d 872 (1967).
2
We take the facts from those stated by the Court of Appeals. Respondent publishes the Globe-Democrat, a morning newspaper distributed in the St. Louis metropolitan area by independent carriers who buy papers at wholesale and sell them at retail. There are 172 home delivery routes. Respondent advertises a suggested retail price in its newspaper. Carriers have exclusive territories which are subject to termination if prices exceed the suggested maximum. Petitioner, who had Route 99, adhered to the advertised price for some time but in 1961 raised the price to customers.2 After more than once objecting to this practice, respondent wrote petitioner on May 20, 1964, that because he was overcharging and because respondent had reserved the right to compete should that happen, subscribers on Route 99 were being informed by letter that respondent would itself deliver the paper to those who wanted it at the lower price. In addition to sending these letters to petitioner's customers, respondent hired Milne Circulation Sales, Inc., which solicited readers for newspapers, to engage in telephone and house-to-house solicitation of all residents on Route 99. As a result, about 300 of petitioner's 1,200 customers switched to direct delivery by respondent. Meanwhile respondent continued to sell papers to petitioner but warned him that should he continue to overcharge, respondent would not have to do business with him. Since respondent did not itself want to engage in home delivery, it advertised a new route of 314 customers as available without cost. Another carrier, George Kroner, took over the route knowing that respondent would not tolerate overcharging and understanding that he might have to return the route if petitioner discontinued his pricing practice.3 On July 27 respondent told petitioner that it was not interested in being in the carrier business and that petitioner could have his customers back as long as he charged the suggested price. Petitioner brought this lawsuit on August 12. In response, petitioner's appointment as a carrier was terminated and petitioner was given 60 days to arrange the sale of his route to a satisfactory replacement. Petitioner sold his route for $12,000, $1,000 more than he had paid for it but less than he could have gotten had he been able to turn over 1,200 customers instead of 900.4
3
Petitioner's complaint charged a combination or conspiracy in restraint of trade under § 1 of the Sherman Act.5 At the close of the evidence the complaint was amended to charge only a combination between respondent and 'plaintiff's customers and/or Milne Circulation Sales, Inc. and/or George Kroner.' The case went to the jury on this theory, the jury found for respondent, and judgment in its favor was entered on the verdict. The court denied petitioner's motion for judgment notwithstanding the verdict, which asserted that under United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), and like cases, the undisputed facts showed as a matter of law a combination to fix resale prices of newspapers which was per se illegal under the Sherman Act. The Court of Appeals affirmed. In its view 'the undisputed evidence fail(ed) to show a Sherman Act violation,' because respondent's conduct was wholly unilateral and there was no restraint of trade. The previous decisions of this Court were deemed inapposite to a situation in which a seller establishes maximum prices to be charged by a retailer enjoying an exclusive territory and in which the seller, who would be entitled to refuse to deal, simply engages in competition with the offending retailer. We disagree with the Court of Appeals and reverse its judgment.
4
On the undisputed facts recited by the Court of Appeals respondent's conduct cannot be deemed wholly unilateral and beyond the reach of § 1 of the Sherman Act. That section covers combinations in addition to contracts and conspiracies, express or implied. The Court made this quite clear in United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), where it held that an illegal combination to fix prices results if a seller suggests resale prices and secures compliance by means in addition to the 'mere announcement of this policy and the simple refusal to deal * * *.' Id., at 44, 80 S.Ct. at 512. Parke, Davis had specified resale prices for both wholesalers and retailers and had required wholesalers to refuse to deal with noncomplying retailers. It was found to have created a combination 'with the retailers and the wholesalers to maintain retail prices * * *.' Id., at 45, 80 S.Ct. at 512. The combination with retailers arose because their acquiescence in the suggested prices was secured by threats of termination; the combination with wholesalers arose because they cooperated in terminating price-cutting retailers.
5
If a combination arose when Parke, Davis threatened its wholesalers with termination unless they put pressure on their retail customers, then there can be no doubt that a combination arose between respondent, Milne, and Kroner to force petitioner to conform to the advertised retail price. When respondent learned that petitioner was overcharging, it hired Milne to solicit customers away from petitioner in order to get petitioner to reduce his price. It was through the efforts of Milne, as well as because of respondent's letter to petitioner's customers, that about 300 customers were obtained for Kroner. Milne's purpose was undoubtedly to earn its fee, but it was aware that he aim of the solicitation campaign was to force petitioner to lower his price. Kroner knew that respondent was giving him the customer list as part of a program to get petitioner to conform to the advertised price, and he knew that the might have to return the customers if petitioner ultimately complied with respondent's demands. He undertook to deliver papers at the suggested price and materially aided in the accomplishment of respondent's plan. Given the uncontradicted facts recited by the Court of Appeals, there was a combination within the meaning of § 1 between respondent, Milne, and Kroner, and the Court of Appeals erred in holding to the contrary.6
6
The Court of Appeals also held there was no restraint of trade, despite the long-accepted rule in § 1 cases that resale price fixing is a per se violation of the law whether done by agreement or combination.7 United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (1927); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951); United States v. McKesson & Robbins, Inc., 351 U.S. 305, 76 S.Ct. 937, 100 L.Ed. 1209 (1956).
7
In Kiefer-Stewart, supra, liquor distributors combined to set maximum resale prices. The Court of Appeals held the combination legal under the Sherman Act because in its view setting maximum prices '* * * constituted no restraint on trade and no interference with plaintiff's right to engage in all the competition it desired.' 182 F.2d 228, 235 (C.A.7th Cir.1950). This Court rejected that view and reversed the Court of Appeals, holding that agreements to fix maximum prices 'no less than those to fix minimum prices, cripple the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment.'8 340 U.S. 211, 213, 71 S.Ct. 259, 260.
8
We think Kiefer-Stewart was correctly decided and we adhere to it. Maximum and minimum price fixing may have different consequences in many situations. But schemes to fix maximum prices, by substituting the perhaps erroneous judgment of a seller for the forces of the competitive market, may severely intrude upon the ability of buyers to compete and survive in that market. Competition, even in a single product, is not cast in a single mold. Maximum prices may be fixed too low for the dealer to furnish services essential to the value which goods have for the consumer or to furnish services and conveniences which consumers desire and for which they are willing to pay. Maximum price fixing may channel distribution through a few large or specifically advantaged dealers who otherwise would be subject to significant nonprice competition. Moreover, if the actual price charged under a maximum price scheme is nearly always the fixed maximum price, which is increasingly likely as the maximum price approaches the actual cost of the dealer, the scheme tends to acquire all the attributes of an arrangement fixing minimum prices.9 It is our view, therefore, that the combination formed by the respondent in this case to force petitioner to maintain a specified price for the resale of the newspapers which he had purchased from respondent constituted, without more, an illegal restraint of trade under § 1 of the Sherman Act.
9
We also reject the suggestion of the Court of Appeals that Kiefer-Stewart is inapposite and that maximum price fixing is permissible in this case. The Court of Appeals reasoned that since respondent granted exclusive territories, a price ceiling was necessary to protect the public from price gouging by dealers who had monopoly power in their own territories. But neither the existence of exclusive territories nor the economic power they might place in the hands of the dealers was at issue before the jury. Likewise, the evidence taken was not directed to the question of whether exclusive territories had been granted or imposed as the result of an illegal combination in violation of the antitrust laws. Certainly on the record before us the Court of Appeals was not entitled to assume, as its reasoning necessarily did, that the exclusive rights granted by respondent were valid under § 1 of the Sherman Act, either alone or in conjunction with a price-fixing scheme. See United States v. Arnold, Schwinn & Co., 388 U.S. 365, 373, 379, 87 S.Ct. 1856, 1862, 1865, 18 L.Ed.2d 1249 (1967). The assertion that illegal price fixing is justified because it blunts the pernicious consequences of another distribution practice is unpersuasive. If, as the Court of Appeals said, the economic impact of territorial exclusivity was such that the public could be protected only by otherwise illegal price fixing itself injurious to the public, the entire scheme must fall under § 1 of the Sherman Act.
10
In sum, the evidence cited by the Court of Appeals makes it clear that a combination in restraint of trade existed. Accordingly, it was error to affirm the judgment of the District Court which denied petitioner's motion for judgment notwithstanding the verdict. The judgment of the Court of Appeals is reversed and the case is remanded to that court for further proceedings consistent with this opinion.
11
Reversed and remanded.
12
Mr. Justice DOUGLAS, concurring.
13
While I join the opinion of the Court, there is a word I would add. This is a 'rule of reason' case stemming from Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 62, 31 S.Ct. 502, 516, 55 L.Ed. 619. Whether an exclusive territorial franchise in a vertical arrangement is per se unreasonable under the antitrust laws is a much mooted question. A fixing of prices for resale is conspicuously unreasonable because of the great leverage that price has over the market. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 221, 60 S.Ct. 811, 843, 84 L.Ed. 1129. The Court quite properly refuses to say whether in the newspaper distribution business an exclusive territorial franchise is illegal.
14
The traditional distributing agency is the neighborhood newspaper boy. Whether he would have the time, acumen, experience, or financial resources to wage competitive warfare without the protection of a territorial franchise is at least doubtful. Here, however, we have a distribution system which has the characteristics of a large retail enterprise. Petitioner's business requires practically full time. He purchased his route for $11,000, receiving a list of subscribers, a used truck, and a newspapertying machine. At the time his dispute with respondent arose, there were 1,200 subscribers on the route, and that route covered 'the whole northeast section' of a 'big city.' Deliveries had to be made by motor vehicle and although they were usually completed by 6 o'clock in the morning, the rest of the workday was spent in billing, receiving phone calls, arranging for new service, or in placing 'stop' or 'start' orders on existing service. Petitioner at times hired a staff to tie and to wrap newspapers.
15
Under our decisions* the legality of exclusive territorial franchises in the newspaper distribution business would have to be tried as a factual issue; and that was not done here.
16
The case is therefore close to White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738, where before ruling on the legality of a territorial restriction in a vertical arrangement, we remanded for findings on 'the actual impact of these arrangements on competition.' Id., at 263, 83 S.Ct., at 702.
17
Mr. Justice HARLAN, dissenting.
18
While I entirely agree with the views expressed by my Brother STEWART and have joined his dissenting opinion, the Court's disregard of certain economic considerations underlying the Sherman Act warrants additional comment.
I.
19
The practice of setting genuine price 'ceilings,' that is maximum prices, differs from the practice of fixing minimum prices, and no accumulation of pronouncements from the opinions of this Court can render the two economically equivalent.
20
The allegation of a combination of persons to fix maximum prices undoubtedly states a Sherman Act cause of action. In order for a plaintiff to win such a § 1 case, however, he must be able to prove the existence of the alleged combination, and the defendant must be unable, either by virtue of a per se rule or by failure of proof at trial, to show an adequate justification. It is on these two points that price ceilings differ from price floors: to hold that a combination may be inferred from the vertical dictation of a maximum price simply because it may be permissible to infer a combination from the vertical dictation of a minimum price ignores economic reality; to conclude that no acceptable justification for fixing maximum prices can be found simply because there is no acceptable justification for fixing minimum prices is to substitute blindness for analysis.
21
Resale price maintenance, a practice not involved here, lessens horizontal intrabrand competition. The effects, higher prices, less efficient use of resources, and an easier life for the resellers, are the same whether the price maintenance policy takes the form of a horizontal conspiracy among resellers or of vertical dictation by a manufacturer plus reseller acquiescence. This means two things. First, it is frequently possible to infer a combination of resellers behind what is presented to the world as a vertical and unilateral price policy, because it is the resellers and not the manufacturer who reap the direct benefits of the policy. Second, price floors are properly considered per se restraints, in the sense that once a combination to create them has been demonstrated, no proffered justification is an acceptable defense. Following the rule of reason, combinations to fix price floors are invariably unreasonable: to the extent that they achieve their objective, they act to the direct detriment of the public interest as viewed in the Sherman Act. In the absence of countervailing fair trade laws, all asserted justifications are, upon examination, found wanting, either because they are too trivial or elusive to warrant the expense of a trial (as is the case, for example, with a defense that price floors maintain the prestige of a product) or because they run counter to Sherman Act premises (as is the case with the defense that price maintenance enables inefficient sellers to stay in business).
22
Vertically imposed price ceilings are, as a matter of economic fact that this Court's words cannot change, an altogether different matter. Other things being equal, a manufacturer would like to restrict those distributing his product to the lowest feasible profit margin, for in this way he achieves the lowest overall price to the public and the largest volume. When a manufacturer dictates a minimum resale price he is responding to the interest of his customers, who may treat his product better if they have a secure high margin of profits. When the same manufacturer dictates a price ceiling, however, he is acting directly in his own interest, and there is no room for the inference that he is merely a mechanism for accomplishing anticompetitive purposes of his customers.1
23
Furthermore, the restraint imposed by price ceilings is of a different order from that imposed by price floors. In the present case the Court uses again the fallacious argument that price ceilings and price floors must be equally unreasonable because both 'cripple the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment.'2 The fact of the matter is that this statement does not in itself justify a per se rule in either the maximum or minimum price case, and that the real justification for a per se rule in the case of minimums has not been shown to exist in the case of maximums.
24
It has long been recognized that one of the objectives of the Sherman Act was to preserve, for social rather than economic reasons, a high degree of independence, multiplicity, and variety in the economic system. Recognition of this objective does not, however, require this Court to hold that every commercial act that fetters the freedom of some trader is a proper subject for a per se rule in the sense that it has no adequate provable justification. See, e.g., White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738. The per se treatment of price maintenance is justified because analysis alone, without the burden of a trial in each individual case, demonstrates that price floors are invariably harmful on balance.3 Price ceilings are a different matter: they do not lessen horizontal competition; they drive prices toward the level that would be set by intense competition, and they cannot go below this level unless the manufacturer who dictates them and the customer who accepts them have both miscalculated. Since price ceilings, reflect the manufacturer's view that there is insufficient competition to drive prices down to a competitive level, they have the arguable justification that they prevent retailers or wholesalers from reaping monopoly or supercompetitive profits.
25
When price floors and price ceilings are placed side by side, then, and the question is asked of each, 'Does analysis justify a no-trial rule?' the answers must be quite different. Both practices share the negative attribute that they restrict individual discretion in the pricing area, but only the former imposes upon the public the much more significant evil of lessened competition, and, as just seen, the latter has an important arguable justification that the former does not possess. As the Court's opinion partially but inexplicitly recognizes, in a maximum price case the asserted justification must be met on its merits, and not by incantation of a per se rule developed for an altogether different situation.4
II.
26
The Court's discovery in this case of (a) a combination and (b) a restraint that is per se unreasonable is beset with pitfalls. The Court relies directly on combinations with Milne and Kroner, two third parties who were simply hired and paid to do telephoning and distributing jobs that respondent could as effectively have done itself. Neither had any special interest in respondent's objective of setting a price ceiling. If the critical question is whether a company pays one of its own employees to perform a routine task, or hires an outsider to do the same thing, the requirement of a 'combination' in restraint of trade has lost all significant meaning. The point is more than that the words in a statute ought to be taken to mean something of substance. The premise of § 1 adjudication has always been that it is quite proper for a firm to set its own prices and determine its own territories, but that it may not do so in conjunction with another firm with which, in combination, it can generate market power that neither would otherwise have. A firm is not 'combining' to fix its own prices or territory simply because it hires outside accountants, market analysts, advertisers by telephone or otherwise, or delivery boys. Once it is recognized that Kroner had no interest whatever in forcing his competitor to lower his price, and was merely being paid to perform a delivery job that respondent could have done itself, it is clear respondent's activity was in its essence unilateral.
27
The Court, quite evidently dissatisfied with the Milne and Kroner theories of combination, goes on to suggest two others not claimed. First, it is said, petitioner might have alleged a combination with other carriers who accepted respondent's maximum price. The difficulty with this thesis is that such a 'combination' would have been wholly irrelevant to what was done to petitioner. In a price maintenance situation, each distributor does have an interest in preventing others from breaking the price line and driving everyone's prices down, and there is thus a real symphony of interests behind the pressure exerted on any individual retailer. However, in contrast, the effectiveness of a price ceiling imposed on one distributor does not depend upon the imposition of ceilings on other distributors, be they competitive or not. Each distributor's maximum price agreement is, for reasons already discussed, a vertical matter only, independent of agreements by other dealers. Hence the result of the Court's theory here would be to make what was done to this petitioner illegal because of the coincidental existence of unrelated similar agreements, and to base petitioner's right to recover upon activities that are altogether irrelevant to whatever harm he has suffered.
28
The Court also suggests that, under Parke, Davis, 'petitioner could have claimed a combination between respondent and himself, at least as of the day he unwillingly complied with respondent's advertised price.' This theory is intriguing, because although it is unsound on its face, it has within it the ring of something familiar. Obviously it makes no sense to deny recovery to a pressured retailer who resists temptation to the last and grant it to one who momentarily yields but is restored to virtue by the vision of treble damages. It is not the momentary acquiescence but the punishment for refusing to acquiesce that does the damage on which recovery is based.
29
The Court's difficulties on all of its theories stem from its unwillingness to face the ultimate conclusion at which it has actually arrived: it is unlawful for one person to dictate price floors or price ceilings to another; any pressure brought to bear in support of such dictation renders the dictator liable to any dictatee who is damaged. The reason for the Court's reluctance to state this conclusion bluntly is transparent: this statement of the matter takes no account of the absence of a combination or conspiracy.
30
This does not mean, however, that no combination or conspiracy could ever be inferred in such an ostensibly unilateral situation. It would often be proper to infer, in situations in which a manufacturer dictates a minimum price to a reretailer, that the manufacturer is the mechanism for enforcing a very real combinatorial restraint among retailers who should be competing horizontally.5 Instead of undertaking to analyze when this inference would be proper, the Court has in the past followed the rough approximation adopted in Parke, Davis:6 there is no 'combination' when a manufacturer simply states a resale price and announces that he will not deal with those who depart from it; there is a combination when the manufacturer goes one inch further. The magical quality in this transformation is more apparent than real, for the underlying horizontal combination may frequently be there and the Court has simply failed to state what it is.7
31
When a manufacturer dictates a maximum price, however, the Parke, Davis approach does not yield even a satisfactory rough answer to the question '(I)s there a combination?' For the manufacturer who purports to act unilaterally in dictating a maximum price really is acting unilaterally. No one is economically interested in the price squeeze but himself. Had the Court been in the habit of analyzing the economics on which the inference of a combination may be based, it would have seen that even if combinations to fix maximum prices are as illegal as combinations to fix minimum prices the circumstances under which a combination to fix maximum prices may be inferred are different from those which imply a combination to keep prices up.
32
It was for this reason that in Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 60 S.Ct. 811, 84 L.Ed. 1129, the only case in this Court in which maximum resale prices have actually been held unlawful, the kep question was whether there was an actual horizontal combination of manufacturers to impose on retailers a maximum resale price. The Court refused to hold that dictation of price ceilings to a single retailer by a single manufacturer was unlawful, but instead insisted upon, and found, a situation in which two manufacturers, in their common interest, combined to impose upon retailers a condition of doing business which they might not have been able to demand individually.
33
Kiefer-Stewart's treatment of the combination requirement is instructive. Any manufacturer is at perfect liberty to set the prices at which he will sell to retailers, and in that way maximize his profits while lessening theirs. Competition, that is the threat that the purchasing seller will simply turn to another manufacturer, prevents the manufacturer from raising his prices beyond a certain point. It is per se unlawful, however, for two manufacturers to combine to raise their prices together, rendering each of them secure because the retailer or wholesaler has nowhere else to turn. From the manufacturer's viewpoint, putting a ceiling on the resale price may be simply an alternative means to the end of maximizing his own profits by lessening distribution costs: instead of squeezing the reseller from the bottom he squeezes from the top. The holding of Kiefer-Stewart was that the squeeze from the top, like the squeeze from the bottom, was lawful unless by a combination of persons between whom competition would otherwise have limited the power to squeeze from either direction. No combination of the kind required in Kiefer-Stewart exists here, and the Court has found no sensible substitute theory of combination.
34
The Court's second difficulty in this case is to state why imposition of price ceilings is a per se unlawful restraint. The respondent offered as a defense the contention that since there was no competition between distributors to keep resale prices down, a fixed maximum price was in the interest of both the respondent itself and the public. The Court, recognizing that despite scattered dicta about maximum and minimum prices both being per se illegal there was here an alleged justification that would have to be faced on its merits, attempts to show that the defense may be disposed of without hearing evidence on it.
35
The Court has not been persuasive. The question in this case is not whether dictation of maximum prices is ever illegal, but whether it is always illegal. Petitioner is seeking, and now receives, a judgment notwithstanding the verdict of a jury that he had failed to show that the practice was unreasonable in this case. The best the Court can do is to list certain unfortunate consequences that maximum price dictation might have in other cases but was not shown to have here. Then, in rejecting the significant affirmative justification offered for respondent's practice, the Court merely says, 'The assertion that illegal price fixing is justified because it blunts the pernicious consequences of another distribution practice is unpersuasive.' Ante, at 154. I shall ignore the insertion of the word 'illegal,' which merely assumes the conclusion. I cannot understand why, in deciding whether a practice is an unreasonable restraint of trade, the Court finds it 'unpersuasive' that the practice blunts pernicious attributes of an existing distribution system.
36
The Court's only answer is that the courts below did not consider whether the existing distribution system might itself be illegal. But even assuming that respondent can conceivably be penalized for failure to raise the question whether the distribution system, unchallenged by petitioner, was lawful, the Court's argument falls short. The Court has decided that exclusive territories and consequent market power can never be a justification for dictation of maximum prices because exclusive territories are sometimes unlawful. But they are neither always unlawful nor have they been demonstrated to be unlawful in this case.
37
It may well be that the mechanics of newspaper distribution are such that a city quite naturally divides itself into one or more relatively exclusive territories (sometimes called 'paper routes'), giving each distributor a large degree of monopoly power. It is hardly farfetched to assume that a newspaper jight be able to prove (if given the opportunity it is today denied) that rough territorial exclusivity is simply a fact of economic life in the newspaper distributing business, both because the nature of the enterprise dictates compactness of routes and because the number of distributors that a particular area can sustain is necessarily so small that they naturally fall into oligopolistic respect for each other's territories, and into a pattern of price leadership.
38
There is no question that the ideal situation from the point of view of both the publisher and the public, is to have a very large number of distributors intensely vying with each other in both price and service. This situation, however, may be one that it is impossible to achieve in some, perhaps in all, cities. It seems quite possible that a publisher who does not want to do his own distributing must live with the fact that there will always be a relatively small number of competing distributors, who consequently will be likely to fall into lawful but undesirable oligopolistic behavior—price leadership and territorial exclusivity.
39
Confronted by this situation, the publisher, who is competing with other publishers in, among other things, price and service to the public will seek to provide efficient distribution service at the lowest possible price. These objectives would be realized by intense competition without the publisher's interference, but in the absence of such competition the publisher must take steps of his own.
40
The present respondent took two steps. First, it insisted on the right to approve each distributor. Naturally, since newspapermen are notoriously realistic, it referred to the acquisition of a distributorship as the purchase of a 'route.' Second, it set a maximum home delivery price and enforced it; the price could not be below the level that perfect competition would dictate without driving the distributors out of business and defeating the publisher's whole objective. Hence the price set cannot be supposed to have been unreasonable.8 Respondent had no need to go to the extreme of cutting off distributors preferring to do a high-profit, low-volume business, and did not do so. It simply advertised the maximum home delivery price and created competition with any distributor not observing it. Today's decision leaves respondent with no alternative but to use its own trucks.
41
For the reasons stated in my Brother STEWART'S opinion and those stated here, I would affirm the judgment below.
42
Mr. Justice STEWART, with whom Mr. Justice HARLAN joins, dissenting.
43
The respondent is the publisher of the only daily morning newspaper in St. Louis. The petitioner was one of some 170 independent distributors who bought copies of the paper from the respondent and sold them to householders. Each distributor had an exclusive territory subject only to the condition that his resale price not exceed a stated maximum. When the petitioner's price did exceed that maximum, the respondent allowed and indeed actively assisted another distributor to enter the petitioner's territory and compete with him. The Court today holds that this latter practice by the respondent subjected it to antitrust liability to the petitioner. I cannot understand why.
44
The case was litigated throughout by both parties upon the premise that the respondent's granting of an exclusive territory to each distributor was a perfectly permissible practice. Upon that premise the judgment of the Court of Appeals was obviously correct. For the respondent's conduct here was in furtherance of, not contrary to, the purposes of the antitrust laws. The petitioner was a monopolist within his own territory; he was the only person who could sell for home delivery the city's only daily morning newspapers. But for the fact that respondent provided competition above a certain price level, the householders would have been totally without protection from the petitioner's monopoly position.
45
The cases cited by the petitioner, such as Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 60 S.Ct. 811, 84 L.Ed. 1129, and United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505, did not involve monopoly products distributed through exclusive territories and are thus totally inapplicable here. The thrust of those decisions is that the reseller should be free to make his own independent pricing determination. But that cannot be a proper objective where the reseller is a monopolist.1 To the extent that the respondent prevented the petitioner from raising his price above that which would have prevailed in a competitive market, the respondent's actions were fully compatible with the antitrust laws.2
46
But, says the Court, the original grant of an exclusive territory to the petitioner may have itself violated the antitrust laws. Putting aside the fact that this question was not briefed or argued either here or in the court below, I fail to understand how the illegality of the petitioner's exclusive territory could conceivably help his case. The petitioner enjoyed the benefits of his exclusive territory subject to the condition that he keep his price at or below a stated maximum. When he did charge more the respondent took steps to force the petitioner's price down by introducing competition into his territory. If it was illegal in the first place for the petitioner to enjoy a conditional monopoly, I am at a loss to understand how the respondent can be liable to the petitioner for not permitting him a complete monopoly.
47
The Court in this case does more, I think, than simply depart from the rule of reason.3 Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619. The Court today stands the Sherman Act on its head.4
1
Section 1 of the Sherman Act, 26 Stat. 209, 15 U.S.C. § 1, in part provides that 'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal * * *.'
2
The record indicates that petitioner raised his price by 10 cents a month.
3
The record shows that at about this time petitioner lowered his price to respondent's advertised price. Although petitioner notified all his customers of this change, respondent apparently remained unaware of it.
4
Kroner testified at trial that he sold the customers he had within Route 99 to petitioner's vendee for $3,600.
5
Petitioner also charged respondent with tortious interference with business relations under state law, but this count was dismissed before trial.
6
Petitioner's original complaint broadly asserted an illegal combination under § 1 of the Sherman Act. Under Parke, Davis petitioner could have claimed a combination between respondent and himself, at least as of the day he unwillingly complied with respondent's advertised price. Likewise, he might successfully have claimed that respondent had combined with other carriers because the firmly enforced price policy applied to all carriers, most of whom acquiesced in it. See United States v. Arnold, Schwinn & Co., 388 U.S. 365, 372, 87 S.Ct. 1856, 1862, 18 L.Ed.2d 1249 (1967). These additional claims, however, appear to have been abandoned by petitioner when he amended his complaint in the trial court.
Petitioner's amended complaint did allege a combination between respondent and petitioner's customers. Because of our disposition of this case it is unnecessary to pass on this claim. It was not, however, a frivolous contention. See Federal Trade Commission v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1922); Girardi v. Gates Rubber Co. Sales Div., Inc., 325 F.2d 196 (C.A.9th Cir. 1963); Graham v. Triangle Publications, Inc., 233 F.Supp. 825 (D.C.E.D.Pa.1964), aff'd per curiam, 344 F.2d 775 (C.A.3d Cir. 1965).
7
Our Brother HARLAN seems to state that suppliers have no interest in programs of minimum resale price maintenance, and hence that such programs are 'essentially' horizontal agreements between dealers even when they appear to be imposed unilaterally and individually by a supplier on each of his dealers. Although the empirical basis for determining whether or not manufacturers benefit from minimum resale price programs appears to be inconclusive, it seems beyond dispute that a substantial number of manufacturers formulate and enforce complicated plans to maintain resale prices because they deem them advantageous. See E. Grether, Price Control Under Fair Trade Legislation, c. X (1939); Federal Trade Commission, Report on Resale Price Maintenance 5—11, 59 (1945); Select Committee on Small Business, Fair Trade: The Problem and the Issues, H.R.Rep. No. 1292, 82d Cong., 2d Sess. (1952); Bowman, The Prerequisites and Effects of Resale Price Maintenance, 22 U.Chi.L.Rev. 825, 832—843 (1955); Corey, Fair Trade Pricing: A Reappraisal, 30 Harv.Bus.Rev. No. 5. p. 47 (1952); Fulda, Resale Price Maintenance, 21 U.Chi.L.Rev. 175, 184 186 (1954). As a theoretical matter, it is not difficult to conceive of situations in which manufacturers would rightly regard minimum resale price maintenance to be in their interest. Maintaining minimum resale prices would benefit manufacturers when the total demand for their product would not be increased as much by the lower prices brought about by dealer competition as by some other nonprice, demand-creating activity. In particular, when total consumer demand (at least within that price range marked at the bottom by the minimum cost of manufacture and distribution and at the top by the highest price at which a price-maintenance scheme can operate effectively) is affected less by price than by the number of retail outlets for the product, the availability of dealer services, or the impact of advertising and promotion, it will be in the interest of manufacturers to squelch price competition through a scheme of resale price maintenance in order to concentrate on nonprice competition. Finally, if the retail price of each of a group of competing products is stabilized through manufacturer-imposed price maintenance schemes, the danger to all the manufacturers of severe interbrand price competition is apt to be alleviated.
8
Our Brother HARLAN appears to read Kiefer-Stewart as prohibiting only combinations of suppliers to squeeze retailers from the top. Under this view, scarcely derivable from the opinion in that case, signed contracts between a single supplier and his many dealers to fix maximum resale prices would not violate the Sherman Act. With all deference, we reject this view, which seems to stem from the notion that there can be no agreement violative of § 1 unless that agreement accrues to the benefit of both parties, as determined in accordance with some a priori economic model. Cf. Comment, The Per Se Illegality of Price-Fixing—Sans Power, Purpose, or Effect, 19 U.Chi.L.Rev. 837 (1952).
9
In Kiefer-Stewart after the manufacturer established the maximum price at which its product could be sold, it fairtraded the product so as to fix that price as the legally permissible minimum. 182 F.2d, at 230—231.
*
'Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of their very essence. The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences.' Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683. Cf. United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (economics of the drug distribution business); United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (economics of the bicycle business). In the latter case we noted that the evidence of record 'elaborately sets forth information as to the total market interaction and interbrand competition, as well as the distribution program and practices.' 388 U.S., at 367, 87 S.Ct. at 1859.
1
See the opinion of Judge Coffin in Quinn v. Mobil Oil Co., 1 Cir., 375 F.2d 273, 276.
2
Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 213, 71 S.Ct. 259, 260, 95 L.Ed. 219.
3
See the analysis in the leading case, United States v. Trenton Potteries Co., 273 U.S. 392, at 395—402, 47 S.Ct. 377, 378 381, 71 L.Ed. 700. Price floors, or other agreements to prevent price cutting, are there held to be per se unreasonable because they inevitably lessen competition. There is no reference to the purely collateral effect of limiting individual trader discretion, still less to a program such as the one involved in this case that does not inhibit competitive price cutting.
4
The same points may be made from the perspective of the retailers or wholesalers subject to the price dictation. When the issue is minimum resale prices, those sellers who are more efficient and ambitious are likely to object to price restrictions, while the lazier and less efficient sellers will welcome their protection. When the issue is price ceilings, the matter is different. Assuming the ceilings are high enough to permit a return that will enable the seller to stay in business, a seller will object to price ceilings only because they deny him the supercompetitive return that the imperfections of competition would otherwise permit. At the same time, in stark contrast to the situation involved in resale price maintenance, no seller has any interest in insisting that price ceilings be imposed on his competitors; he is not worried that they may sell at a higher price than his own. Thus while resale price maintenance establishes what is the equivalent of a single horizontal restraint on otherwise competitive sellers, price ceilings establish merely a series of distinct vertical relationships between manufacturer and seller, with no one seller economically interested in the maintenance of the vertical relationship with any other seller.
5
See Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv.L.Rev. 655. Professor Turner (as he then was) suggested the overruling of United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992, arguing, inter alia, that Colgate behavior by a manufacturer tends to produce tacit or implied minimum price agreements among otherwise competitive retailers. He suggested that 'it should be perfectly clear to any manufacturer that a policy of refusing to deal with price cutters is no more nor less than an invitation (to retailers) to agree (with each other as well as with the manufacturer) on * * * a minimum price * * *.' Id., at 689. (Emphasis added.)
6
United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505.
7
I thought at the time Parke, Davis was decided (see my dissenting opinion in that case, 362 U.S., at 49, 80 S.Ct. at 514) and continue to believe, that the result reached could not be supported on the majority's reasoning. I am frank to say, however, that I now consider that the Parke, Davis result can be supported on Professor Turner's rationale. See Turner, supra, n. 5, at 684 691. Further reflection on the matter also leads me to say that my statement in dissent to the effect that Parke, Davis had overruled the Colgate case was overdrawn, and further that I am not yet prepared to say that Professor Turner's rationale necessarily carries the total discard of Colgate.
8
Reasonableness is also evidenced by the abundance of persons willing to distribute newspapers at or below the fixed ceilings. The point is not affected by the fact that the distributors willing to accept respondent's conditions were buying monopolies. The principal virtue of a monopoly is the power of the monopolist to charge super-competitive prices. Hence it cannot be argued that the ceilings might have proved to low to attract buyers but for the fact that they were accompanied by monopoly power.
1
See Elman, 'Petrified Opinions' and Competitive Realities, 66 Col.L.Rev. 625, 633 (1966).
2
Because the major portion of the respondent's income derives from advertising rather than from sales to distributors, the respondent's self-interest is in keeping the retail price of the paper low in order to increase circulation and thereby increase advertising revenues. However, neither the petitioner nor the Court suggests that the maximum set by the respondent was less than the price that would have prevailed if there had been competition among the distributors.
3
See generally Elman, 'Petrified Opinions' and Competitive Realities, 66 Col.L.Rev. 625 (1966). 'It should be plain why there is a real danger of the abuse of the per se principle by those predisposed to offer mechanical or dogmatic solutions to legal problems. In every antitrust case there are two routes to a finding of illegality: critically analyzing the competitive effects and possible justifications of the challenged practice; or subsuming it under one of the per se rules. The latter route is naturally the more tempting; it is easier to classify a practice in a forbidden category than to demonstrate from the ground up, as it were, why it is against public policy and should be forbidden.' Id., at 627.
4
'The Supreme Court shows a growing determination in its antitrust decisions to convert laws designed to promote competition into laws which regulate or hamper the competitive process.' Bowman, Restraint of Trade by the Supreme Court: The Utah Pie Case, 77 Yale L.J. 70 (1967).
| 78
|
390 U.S. 171
88 S.Ct. 882
19 L.Ed.2d 1015
UNITED STATES, Appellant,v.THIRD NATIONAL BANK IN NASHVILLE et al.
No. 86.
Argued Dec. 11, 1967.
Decided March 4, 1968.
[Syllabus from pages 171-172 intentionally omitted]
Daniel M. Friedman, Washington, D.C., for appellant.
E. William Henry, Memphis, Tenn., and Joseph J. O'Malley, Washington, D.C., for appellees.
Mr. Justice WHITE delivered the opinion of the Court.
1
In this case the United States appeals from a District Court decision1 upholding the merger of Third National Bank in Nashville and Nashville Bank and Trust Company against challenge under § 7 of the Clayton Act. The court below concluded that the merger, which joined the second largest and the fourth largest banks in Davidson County, Tennessee, into a bank which immediately after the merger was the county's largest bank but since has become the second largest, would not tend substantially to lessen competition and also that any anticompetitive effect would be outweighed by the 'convenience and needs of the community to be served.' We disagree with the District Court on both issues. We hold that the United States established that this merger would tend to lessen competition, and also that the District Court did not point to community benefits in terms of 'convenience and needs' sufficient to outweigh the anticompetitive impact.
I.
2
Like other urban centers in the Southeast, Nashville has grown steadily since World War II in both population and economic activity. Commercial banks, as 'the intermediaries in most financial transactions,'2 grew along with their city. From 1955 to 1964, for example, total assets of all banks located in Davidson County increased from $548,300,000 to $1,053,700,000, an increase of 92.2%. The number of banks hardly changed. Indeed, since 1927 there has been only one new bank in the county, Capital City Bank, and at the time of this merger it had achieved only .9% of the county's bank assets. The other banks at the time of the merger, and their percentage of total bank assets in Davidson County, were First American National, 38.3%; Third National, 33.6%; Commerce Union, 21.2%; Nashville Bank, 4.8%; and three small banks, two of them located in Davidson County towns outside Nashville, .6%, .3%, and .3%.3 The merger before us thus joined one of the three very large banks in Nashville and the one middle-sized bank. Its result was to increase from 93.1% to 97.9% the percentage of total assets held by the three largest banks and from 71.9% to 76.7% the percentage held by the two largest institutions.
3
The two merging banks played significantly different roles in Nashville banking. Third National was characterized by the Comptroller of the Currency as one of the strongest and best managed banks in the Nation and by the District Court as 'strong, dynamic and aggressive.'4 It had 'a history of innovating services or promptly providing new services,'5 a recruitment program at local universities, a continuous audit program, and a legal lending limit of $2,000,000. It had 14 branches at the time of the merger and served as correspondent for smaller banks located throughout the central south.
4
Nashville Bank and Trust Approached the merger with a more checkered history and a less dynamic present. Until 1956 it was largely a trust institution. In that year, under the direction of W. S. Hackworth, in changed its name from Nashville Trust Company and embarked on a drive to become a full-service commercial bank. This program enjoyed considerable success. Between 1955 and 1964, Nashville Bank's deposits grew from $20,800,000 to $45,500,000, and its loans and discounts from $8,100,000 to $22,800,000. In both categories it grew faster than the county average and faster than Third National. This growth, however, occurred at a substantially faster rate before 1960 than after that year. Before 1960 it was growing more rapidly than the other banks in the county, and after that year more slowly. Its share of total Nashville banking business thus declined from a high of 5.72% on June 30, 1960, to 4.83% of June 30, 1964.
5
The District Court made elaborate findings as to why Nashville Bank and Trust 'reached a plateau on which it remained until the date of the merger' and why in this period 'it was a stagnant and floundering bank.'6 From those findings, and from the broad picture of Nashville Bank's history and operations which emerges from the testimony and exhibits in this case, it appears that the principal reason was that key members of its management, the men who had been responsible for the bank's progress in the late 1950's, had advanced in age and either retired or slowed their activities. The bank's officials nonetheless made but scant efforts to recruit and advance young talent. Nashville Bank paid substantially lower salaries than the other Nashville banks, had no funded pension plan, and conducted no systematic recruiting program. On January 1, 1964, the bank's board of directors had 13 members, of whom four were 75 or over, nine were 65 or older, and 11 were 63 or older. Of the six department heads four were 65 or older and the other two were 59. The average age of the 15 officers working outside the trust department was over 60. The District Court painted in somber hues the banking policies and the economic results which seemed to flow from the failure to hire young talent. Essentially, Nashville Bank was not aggressive or efficient, and it had stopped growing, so that it could not open branches (it had only one) or embark on a correspondent banking program. It was nevertheless an institution of substantial size, with assets of $50,900,000 and deposits of $45,500,000. It was profitable, and it offered somewhat different services, occasionally at somewhat lower rates, than its competitors.
6
In January 1964, the individuals who had owned controlling shares of Nashville Bank and Trust decided to sell 10,845 shares, a controlling interest, to a group of prominent Nashville citizens headed by William Weaver. The price was $350 per share. In February 1964, the Weaver group opened negotiations looking to a merger with Commerce Union Bank, Nashville's third largest. The negotiations were unsuccessful, however, because Weaver demanded $460 per share while Commerce Union offered only $360. Weaver then negotiated the sale to Third National, at a price of about $420 per share. The merger was approved by the boards of directors of both banks on March 12, 1964, and, after approval by the Comptroller of the Currency, was consummated on August 18, 1964.
II.
7
The legislative history of the Bank Merger Act of 19667 leaves no doubt that the Act was passed to make substantial changes in the law applicable to bank mergers. Congress was evidently dissatisfied with the 1960 Bank Merger Act as that Act was interpreted in United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715 (1963), and in United States v. First National Bank & Trust Co. of Lexington, 376 U.S. 665, 84 S.Ct. 1033, 12 L.Ed.2d 1 (1964), and wished to alter both the procedures by which the Justice Department challenges bank mergers and the legal standard which courts apply in judging those mergers. The resulting statute, however, as some members of Congress recognized,8 was more clear and more specific in prescribing new procedures for testing mergers than in expounding the new standard by which they should be judged.
8
Last Term, in United States v. First City National Bank of Houston, 386 U.S. 361, 87 S.Ct. 1088, 18 L.Ed.2d 151 (1967), this court interpreted the procedural provisions of the 1966 Act, holding that the Bank Merger Act provided for continued scrutiny of bank mergers under the Sherman Act and the Clayton Act, but had created a new defense, with the merging banks having the burden of proving that defense. The task of the district courts was to inquire de novo into the validity of a bank merger approved by the relevant bank regulatory agency to determine, first, whether the merger offended the antitrust laws and, second, if it did, whether the banks had established that the merger was nonetheless justified by 'the convenience and needs of the community to be served.' Houston Bank reserved 'all questions' concerning the substantive meaning of the 'convenience and needs' defense. See 386 U.S., at 369, 87 S.Ct. at 1094, n. 1.
III.
9
The proceedings that have occurred until now regarding validity of the merger here before us have been scrambled and confused, largely because the relevant statute, the 1966 Bank Merger Act, became law just prior to the trial and did not receive its first interpretation by this Court, in Houston Bank, until the decision below had been rendered.
10
The two banks agreed to merge on March 12, 1964. On April 27, 1964, they applied to the Comptroller of the Currency for approval, as the 1960 Bank Merger Act required. Pursuant to that Act, the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Department of Justice reported to the Comptroller of the Currency on 'the competitive factors involved.' The Federal Reserve Board reported that the merger 'would have clearly adverse effects on competition' by 'eliminat(ing) direct competition which exists between participants and * * * increas(ing) significantly * * * already heavy concentration * * *' The Federal Deposit Insurance Corporation reported that 'the effect of the proposed merger on competition would be unfavorable.' The Department of Justice reported that the merger 'would have severe anticompetitive effects upon banking competition in Metropolitan Nashville.' The Comptroller of the Currency, however, concluded that the merger would not lessen competition and would 'improve the charter bank's ability to service the convenience and needs of the Nashville public.' On August 4, 1964, he approved the merger.
11
On August 10, 1964, the United States, as this Court's decision in Philadelphia Bank authorized, sued in federal district court charging that the proposed merger was in violation of § 7 of the Clayton Act9 and § 1 of the Sherman Act.10 On August 18, 1964, the District Court refused the Government's request for a preliminary injunction staying consummation, and on that day the two banks merged.
12
The antitrust suit against the merger had not come to trial when, on February 21, 1966, the Bank Merger Act of 1966 took effect. Congress had devoted much attention to the impact of that Act on bank mergers still in the process of litigation. In § 2 of the Act, 80 Stat. 10, Congress excluded from all antitrust liability11 mergers which had been consummated before June 17, 1963, the date of this Court's Philadelphia Bank decision, and those consummated between June 17, 1963, and February 21, 1966, as to which the Attorney General had not begun litigation on February 21, 1966. However, although Congress considered amendments which would have provided antitrust immunity also for those bank mergers12 consummated after June 17, 1963, and already the subject of litigation, a decision was made to leave those mergers subject to liability, apparently13 because the merging parties had known, from Philadelphia Bank, that their consummation was with the risk of an eventual order to dissolve. Congress did provide, in § 2(c) of the Act, that courts hearing such cases 'shall apply the substantive rule of law set forth' in the Act.
13
Since the trial had been held after the 1966 Act took effect, and since the Comptroller of the Currency and other witnesses, directed by counsel, had addressed themselves to the statutory language contained in that Act, the District Court saw no need to remand to the Comptroller for a new opinion in light of the Act, as was ordered in United States v. Crocker-Anglo National Bank, 263 F.Supp. 125 (D.C.N.D.Cal.1966). Proceeding to decide the case, the District Judge held that under the new Act, violation of antitrust standards was 'primarily a legal issue * * * (on which courts should make) an independent determination,' while 'convenience and needs of the community is, in the language of the Crocker-Anglo opinion, 'plainly and unquestionably a legislative or administrative determination' * * * (on which) the Comptroller's findings should not be disturbed unless they are unsupported by substantial evidence.'14 The court concluded that the merger did not offend antitrust standards and that the Comptroller's conclusion that it would benefit the community was supported by substantial evidence. The relief sought by the Justice Department was denied.
IV.
14
The District Court asserted that one effect of the Bank Merger Act of 1966 was to alter the standards used in determining whether a merger is in violation of § 7 of the Clayton Act and § 1 of the Sherman Act. Essentially, the District Court mandated a return to United States v. Columbia Steel Co., 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533 (1948), which this Court has held to be 'confined to its special facts.' Lexington Bank, 376 U.S. at 672, 84 S.Ct., at 1037. In later cases, especially Philadelphia Bank, supra; Lexington Bank, supra; United States v. Aluminum Co. of America, 377 U.S. 271, 84 S.Ct. 1283, 12 L.Ed.2d 314 (1964); and United States v. Continential Can Co., 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964), this Court has rejected the Columbia Steel approach to determining whether a merger will tend 'substantially to lessen competition.' We find in the 1966 Act, which adopted precisely that § 7 Clayton Act phrase, as well as the 'restraint of trade' language of Sherman Act § 1, no intention to adopt an 'antitrust standard' for bank cases different from that used generally in the law.15 Only one conclusion can be drawn from the exhaustive legislative deliberations that preceded passage of the Act: Congress intended bank mergers first to be subject to the usual antitrust analysis; if a merger failed that scrutiny, it was to be permissible only if the merging banks could establish that the merger's benefits to the community would outweigh its anti-competitive disadvantages. See Houston Bank, supra. Congressman Minish spoke in tune with the language of the Act and the statement of his colleagues when he said:
15
'It should also be clear from the language of paragraph (5)(b) of this bill, which establishes this single standard, that the competitive factor to be used is drawn directly from Clayton Act section 7 and Sherman Act section 1. Thus, all of the principles developed over the last 75 years in regard to these statutes, such as the definition of relevant market and the failing company doctrine are carried forward unchanged by this proposed legislation.'16
16
We therefore hold that the District Court employed an erroneous standard in applying § 7 of the Clayton Act to the merger. In addition we hold that, appraised by the test enunciated in recent Clayton Act cases, the tendency of the merger substantially to lessen competition is apparent. Nashville had three large banks and one of middle size. In this merger the bank of middle size was absorbed by the second largest of the big banks. By the merger the market share of the three largest banks rose from 93% to 98%; the merged bank alone had almost 40% of the Nashville banking business. In addition, the record is replete with evidence that Nashville Bank and Trust was in fact an important competitive element in certain, though not in all, facets of Nashville banking. It offered somewhat different services, at somewhat different rates, from those offered by other banks, and some customers found those services desirable. Although Nashville Bank failed to increase its percentage share of the Nashville banking market after 1960, the absolute size of its business increased steadily from 1956, when it entered seriously into the commercial banking market, to the date of the merger. Throughout this period it was profitable. The record permits no conclusion that Nashville Bank was in any way a 'failing' company. See International Shoe Co. v. FTC, 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431 (1930). On these facts, the conclusion is inescapable that the merger of Third National Bank in Nashville with Nashville Bank and Trust Co. tended to lessen competition in the Nashville commercial banking market. Philadelphia Bank, supra.
V.
17
Because the District Court erroneously concluded that the merger would not tend to lessen competition, its conclusion upon weighing the competitive effect against the asserted benefits to the community is suspect. To weigh adequately one of these factors against the other requires a proper conclusion as to each. Having decided that the court below erred in assessing competitive impact, we should remand, so that the District Court can perform again the balancing process mandated by the Act.17
18
There is, however, an additional reason to remand. In our view, the District Court misapprehended the meaning of the phrase 'convenience and needs of the community'; it misunderstood the weight to be given the relevant factors when seeking to determine whether the anticompetitive effects of a merger are 'clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.'
19
The purpose of the Bank Merger Act was to permit certain bank mergers even though they tended to lessen competition in the relevant market. Congress felt that the role of banks in a community's economic life was such that the public interest would sometimes be served by a bank merger even though the merger lessened competition. The public interest was the ultimate test imposed. This is clear not only from the language of the Act but from the statements of those who supported it while the Act was under consideration:
20
'Mr. ASHLEY. * * * In other words, the merger must be shown to be sufficiently beneficial in meeting the convenience and needs of the community to be served that, on balance, it may properly be regarded as in the public interest.
21
'Mr. MULTER. * * * I believe it was the intention of the Congress originally in 1960 when we enacted the Bank Merger Act that the public interest should be paramount in making any determination with reference to a merger. The words 'in the public interest' are again written into this bill now and will remain in the law so that there will be no question but that the courts and the agencies must take the public interest into account.
22
'Mr. ASHLEY. Is the gentleman saying, as I believe he is, that it is the consensus of the committee, in drafting this bill, that the public interest is to be considered as combining the consideration both of the anticompetitive factors of a particular merger on the one hand, and, on the other, the needs and convenience of the community that may derive from that merger, which, as I say, may result in a diminution of competition; in other words, that the public interest has got to involve a consideration of both of these rather considerable factors?
23
'Mr. STEPHENS. That is correct. * * *' 112 Cong.Rec. 2446, 2449, 2450.
24
It is plain that Congress considered both competition in commercial banking and satisfaction of 'the convenience and needs of the community' to be in the public interest. It concluded that a merger should be judged in terms of its overall effect upon the public interest. If a merger posed a choice between preserving competition and satisfying the requirements of convenience and need, the injury and benefit were to be weighed and decision was to rest on which alternative better served the public interest.
25
The necessity of choosing is most clearly posed where the proposed merger would create an institution with capabilities for serving the public interest not possessed by either of the two merging institutions alone and where the potential could be realized only through merger. Thus, it might be claimed, as it is in this case, that a combined bank would have a greater lending capacity and hence be better equipped to serve the financial needs of the community. In Philadelphia Bank, 374 U.S., at 370—371, 83 S.Ct., at 1745, this Court, acting under the 1960 Bank Merger Act, rejected the relevance of the combined bank's ability to serve Philadelphia by making large loans that could otherwise only be obtained in New York. The Court found no statutory authorization for considering such a benefit in appraising the legality of a merger. Expressions in Congress during consideration of the 1966 Act suggest that one purpose of that Act was to give this factor, not previously relevant in appraising bank mergers, suitable weight in judging their validity.18 In the case before us the District Court's findings of fact suggest that the new bank, with a 20% greater lending limit than Third National Bank previously had, was able to make larger loans, for which Nashville area companies had previously to go to Chicago or New York. The District Court also stated that because Third National Bank operated with a higher loans-to-deposits ratio than Nashville Bank and Trust, combining their deposits and applying the Third National Bank ratio to the total increased available lending capacity in Nashville by about $2,800,000. But the District Court was not specific in describing the beneficial consequences of such results for the Nashville community, or in defining the value of these additions, especially as compared with the other, and less desirable, results of the merger. Absent such findings, the increased lending capacity of the new bank weighs very little in the balance.
26
Congress was also concerned about banks in danger of collapse banks not so deeply in trouble as to call forth the traditional 'failing company' defense, but nonetheless in danger of becoming before long financially unsound institutions.19 Congress seems to have felt that a bank failure is a much greater community catastrophe than the failure of an industrial or retail enterprise, and that a much smaller risk of failure than that required by the failing company doctrine should be sufficient to justify the rather radical preventive step of an anticompetitive merger. The Findings of Fact of the District Court included the information that Nashville Bank and Trust Company had a higher than usual percentage of unsound loans, the result of unsatisfactory procedures for investigating and judging credit risks, and that its 'rating' had been changed in 1962 from 'satisfactory' to 'fair.' The District Court drew no conclusion about the extent of the danger these conditions posed for Nashville Bank and Trust's future, about the feasibility of curative measures short of merger, or about whether other healthy aspects of the bank's condition—for instance its steady profitability, including after-tax earnings of $368,000 in 196320 removed any danger of failure in the foreseeable future. Absent findings and conclusions of this nature,21 the District Court seemed to be holding that the merger should be approved simply because Nashville Bank and Trust Company could be a better bank and could render better banking services.
27
The District Court, it appears, considered the merger beneficial to the community because Nashville Bank and Trust had only one branch, because it had no program of correspondent banking, because its operations were not computerized, because it emphasized real estate loans rather than commercial loans, because its management was old and unable to render sound business advice to borrowers, because it was not recruiting new talent, and because its salary scale was low. Hence a merger was justified because it would solve these problems and produce an institution which, in the words of the House Report, would be capable of
28
'furnishing better overall service to the community, even though the reduction in the number of competing units, or the concentration in the share of the market in one or more lines of commerce, might result under general antitrust law criteria in a substantial lessening of competition.' H.R.Rep. No. 1221, 89th Cong., 2d Sess., 3, U.S. Code Congressional and Administrative News, p. 1862. (Emphasis in original.)
29
Undeniably, Nashville Bank and Trust and significant problems of the kind outlined in the findings of the District Court, problems which were primarily rooted in unsatisfactory and backward management. Just as surely, securing better banking service for the community is a proper element for consideration in weighing convenience and need against the loss of competition. Nor is there any doubt on this record that merger with Third National would very probably end the managerial problems of Nashville Bank and Trust and secure the better use of its assets in the public interest. Thus if the gains in better service outweighed the anticompetitive detriment and the merger was essential to secure this net gain to the public interest, the merger should be approved.
30
But this analysis puts aside possible ways of satisfying the requirement of convenience and need without resort to merger. If the injury to the public interest flowing from the loss of competition could be avoided and the convenience and needs of the community benefited in ways short of merger but within the competence of reasonably able businessmen, the situation is radically different. In such circumstances, we seriously doubt that Congress intended a merger to be authorized by either the banking agencies or the courts. If, for example, just prior to this merger, an experienced banker with competent associates had offered to take over the active management of the bank or another competent businessman with a willingness to tackle the management problems of the bank had offered to buy out the Weaver interests at an acceptable price, it seems obvious that the Weaver group, which seeks to justify the merger in terms of producing an institution rendering better banking service, should not be permitted to merge and to ignore an available alternative. Otherwise, the benefits of competition, acknowledged by Congress, would be sacrificed needlessly. For the same reasons, we think it was incumbent upon those seeking to merge in this case to demonstrate that they made reasonable efforts to solve the management dilemma of Nashville Bank short of merger with a major competitor but failed in these attempts, or that any such efforts would have been unlikely to succeed.
31
This seems to us the most rational reading of the Act, which was a compromise and satisfied none of the protagonists in this extended controversy. The Act directs the agencies and the courts to consider managerial as well as financial resources in weighing a proposed merger. However, the Act requires as well that the 'future prospects of the existing and proposed institutions' be appraised. Part of such appraisal, where managerial deficiencies exist as they do in this case, is determining whether the merging bank is capable of obtaining its own improved management. This test does not demand the impossible or the unreasonable. It merely insists that before a merger injurious to the public interest is approved, a showing be made that the gain expected from the merger cannot reasonably be expected through other means.
32
The question we therefore face is whether the findings of the District Court sufficiently or reliably establish the unavailability of alternative solutions to the woes of Nashville Bank and Trust Company. In our view, they do not. The District Court described the nature and extent of the bank's managerial shortcomings. It noted that the Weaver group had discussed these matters extensively with a number of persons, including bankers, and had learned that recruiting new management would be 'extremely difficult' at the salaries paid by Nashville Bank. And it concluded that management procurement was difficult for banks in general and an 'almost insoluble' problem for Nashville Bank and Trust.
33
Just how insoluable was not made clear. The District Court did not ask whether the Weaver group had made concrete efforts to recruit new management, especially a chief executive officer, who was needed most. The record seems clear that they made no proposals to any individual prospects in or outside of Nashville, save one rather casual letter to a banking acquaintance in New York, and that they neither sought nor cared to seek the help of firms specializing in finding or furnishing new management.22 The court made no reference to the possibility that the new owners themselves might have taken active charge of the bank. None of them was a banker, but their successful predecessor Hackworth had not been one before becoming president of Nashville Bank.23 Nor did the court assess the possibility of a sale to others who might have been willing to face up to the management difficulties over a more extended period. We find nothing in the findings indicating that a bank with assets of $50,000,000 was simply too small to attract competent management24 or that the Weaver group, the new owners, were intransigently insisting on unreasonably conservative managerial policies. Indeed, the Weaver group included competent and experienced men who realized the desirability of improving an unsatisfactory situation. Rather than making serious efforts to do so themselves or to sell to others who would, they preferred to merge with a competing bank—a step which produced a profit of $750,000 on a two-month investment of $3,800,000.
34
The burden of showing that an anticompetitive bank merger would be in the public interest because of the benefits it would bring to the convenience and needs of the community to be served rests on the merging banks. Houston Bank, supra. A showing that one bank needed more lively and efficient management, absent a showing that the alternative means for securing such management without a merger would present unusually severe difficulties, cannot be considered to satisfy that burden.
35
We therefore conclude that the District Court was in error in holding that the factors it cited as ways in which this merger benefited the Nashville community were sufficient to outweigh the anticompetitive effects of the merger. The case must be remanded so that the District Court can consider again the application of the Bank Merger Act to the facts of this merger. Because the District Court heard this case before Houston Bank was decided, it may wish to consider reopening the record, so that the parties will have an opportunity to present new evidence in light of the intervening interpretations of the Act. The judgment below is reversed and the case is remanded for proceedings consistent with this opinion. It is so ordered.
36
Reversed and remanded.
37
Mr. Justice FORTAS and Mr. Justice MARSHALL took no part in the consideration or decision of this case.
38
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring in part and dissenting in part.
39
My understanding of the procedural structure of the Bank Merger Act of 1966,1 based on our decision last Term in United States v. First City National Bank of Houston, 386 U.S. 361, 364, 87 S.Ct. 1088, 1091, 18 L.Ed.2d 151, is that the Act requires the District Court to engage in a two-step process. First, the District Court must decide whether the merger, considered solely from an antitrust viewpoint, would violate the Clayton Act standard embodied in the Bank Merger Act. If it would not, the inquiry is over. If there would be a violation, then the District Court must go on to decide whether 'the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.'2 In making the latter decision, the District Court must again evaluate the antitrust factor, this time in a less polar way. For a comparatively minor violation of the Clayton Act, like that in this case, obviously may be more readily outweighed by factors relating to 'convenience and needs' than may a relatively serious infraction.
40
Turning to the application of the Act to this case, the first question is whether the merger, as an antitrust matter, would violate the Clayton Act. I continue to disagree, particularly in the banking field, with the 'numbers game' test for determining Clayton Act violations which was adopted by this Court in United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915. However, I consider myself bound by that decision, and under its dictates I concur in the Court's finding that this merger would violate the Act.
41
I also concur in the Court's decision that this case must be remanded so that there may be a new application of the second-step balancing process. In this case, which was decided before our decision in Houston Bank, supra, the District Court either omitted the first of the two indicated procedural steps or concluded, incorrectly, that the merger would not violate the Clayton Act.3 In either event, the error may have caused the District Court to misconceive the antitrust 'threshold' at which the second-step balancing process was intended to come into play. This, in turn, may have led the court to give the 'anti-competitive effect' of the merger a different weight in the balance than was intended by the framers of the Bank Merger Act. Hence, the case must be remanded to the District Court so that it may reweigh the competing factors in light of the correct antitrust threshold.
42
With regard to the 'convenience and needs' side of the balance, I am in accord with the Court's ruling that a merger should not be approved under the 1966 Act unless the District Court finds that the benefits conferred upon the community by the merger could not reasonably have been achieved in other ways. Unlike the Court, however, I conclude from the record that the District Court did make adequate findings on this issue. The record reveals that many witnesses testified that Nashville Bank had problems of real magnitude, the greatest being to find replacements for key executives. Mr. Weaver, the leader of the group which purchased control of the bank not long before the merger, testified that initially his group had intended to operate the bank themselves, but that talks with many bankers had convinced him that his group could not solve the bank's problems. The head of an executive-placement firm testified that he did not believe that he could have found new executives for Nashville Bank, in light of its overall situation.4 Although there was testimony in rebuttal, including that of another recruiter of executives, to the effect that the problems were not unsolvable, I cannot conclude that the District Court committed error when it held that
43
'While there is some conflict, the preponderance of the evidence is that it would have been practically impossible within any reasonable period of time to obtain adequate managerial replacements either from within the bank or from the outside, a product of the bank's failure * * * to provide itself with the facilities, procedures and equipment required to maintain a competitive posture.' 260 F.Supp. 869, 881.
44
In sum, what I would consider to be the scope of the proceedings on remand is this. In light of our holding that a Clayton Act violation has been made out, further consideration of the first-step antitrust issue by the District Court is foreclosed. Believing, as I do but contrary to the Court, that the findings already made by the District Court as to the alternatives to merger are adequate, in my view the only question for the District Court to consider respecting the second step is whether, because of its character in light of the antitrust standard now set forth, the antitrust violation should yield to other factors bearing on public 'convenience and needs.'
1
The opinion of the District Court is reported at 260 F.Supp. 869 (D.C.M.D.Tenn.1966). Its findings of fact and conclusions of law are unreported. Probable jurisdiction was noted at 388 U.S. 905, 87 S.Ct. 2111, 18 L.Ed.2d 1345 (1967).
2
United States v. Philadelphia National Bank, 374 U.S. 321, 326, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963).
3
We cite percentages of total assets for convenience, not because they are alone a valid indication of a bank's market share. The percentages of total deposits and of total loans held by the eight Davidson County banks varied insignificantly from the percentages of total assets. See the District Court's Finding of Fact No. 66.
4
260 F.Supp., at 881.
5
Finding of Fact No. 91.
6
Finding of Fact No. 134.
7
80 Stat. 7, 12 U.S.C. § 1828(c) (1964 ed., Supp. II). The Act provides, in relevant part:
'(5) The responsible agency shall not approve—
'(A) any proposed merger transaction which would result in a monopoly, or which would be in furtherance of any combination or conspiracy to monopolize or to attempt to monopolize the business of banking in any part of the United States, or
'(B) any other proposed merger transaction whose effect in any section of the country may be substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be in restraint of trade, unless it finds that the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.
'In every case, the responsible agency shall take into consideration the financial and managerial resources and future prospects of the existing and proposed institutions, and the convenience and needs of the community to be served.
'(7) * * *
'(B) In any judicial proceeding attacking a merger transaction approved under paragraph (5) on the ground that the merger transaction alone and of itself constituted a violation of any antitrust laws other than (§ 2 of the Sherman Act), the standards applied by the court shall be identical with those that the banking agencies are directed to apply under paragraph (5).'
8
See, e.g., 112 Cong.Rec. 2447 (remarks of Congressman Fino).
9
38 Stat. 731, as amended, 64 Stat. 1125, 15 U.S.C. § 18.
10
26 Stat. 209, 15 U.S.C. § 1. The United States appealed to this Court only from the dismissal of the § 7 Clayton Act charge. The § 1 Sherman Act count is therefore not before us.
11
Liability for monopolization under § 2 of the Sherman Act was not excluded.
12
Three mergers are in this category: the Nashville merger at issue here; a California merger, see United States v. Crocker-Anglo National Bank, 263 F.Supp. 125 (D.C.N.D.Cal.1966); and a St. Louis merger. See H.R.Rep. No. 1221, 89th Cong., 2d Sess., 4.
13
See, e.g., 112 Cong.Rec. 2465 (remarks of Congressman Ashley).
14
260 F.Supp., at 874. If the District Court failed to review the issues in the case de novo, as this quotation suggests, it committed error. Houston Bank, supra. Other statements in the opinion and findings below suggest that a de novo judgment may also have been reached by the District Court. Our disposition of the case makes it unnecessary to decide whether undue deference was paid to the Comptroller's judgment.
15
We also find in the Act no intention to alter the traditional methods of defining relevant markets in which to appraise the anticompetitive effect of a merger, and so agree with the District Court that commercial banking in Davidson County was the relevant market for appraising this merger.
16
112 Cong.Rec. 2451. See also 112 Cong.Rec. 2441—2442 (remarks of Congressman Patman); 112 Cong.Rec. 2455 (remarks of Congressman Annunzio); 112 Cong.Rec. 2452 (remarks of Congressman Reuss); 112 Cong.Rec. 2655 (statement of Senator Robertson).
17
Although the District Court erroneously determined the antitrust impact of the merger, its judgment that the merger was not unlawful under the Act may nevertheless have resulted from a sufficient weighing of the evidence before it. Some of the findings below suggest the view that the merger would tend to lessen competition but that this anticompetitive effect would be outweighed by benefits to the community. The argument need not be pursued, however, since we hold that the District Court also misapplid the Act's convenience-and-needs provision.
18
See, e.g., 112 Cong.Rec. 2663 (remarks of Senator Robertson).
19
See, e.g., 112 Cong.Rec. 2459—2460 (remarks of Congressman Multer).
20
In Finding of Fact No. 181 the District Court concluded that the bank's 'apparently good earnings record' would have been diminished, absent a merger, by 'the expenditures which needed to be made for the proper maintenance of the bank.' Among these expenditures were increased salaries, automation, and establishment of additional branch offices. There is no reason to think that such investment of accrued profits would not have been rewarded with a fair return in the form of increased future profits.
21
The District Court did conclude, in Finding of Fact No. 184, that the merger was 'a business necessity' for Nashville Bank and Trust Co. This general conclusion, without supporting findings, hardly establishes the possibility of eventual failure.
22
An official of a company specializing in recruitment of executives did testify for the banks at the trial. In his opinion, recruiting executives for Nashville Bank and Trust would have been extremely difficult.
23
The record contains the revealing statement by William C. Weaver, Jr., the leading member of the group which owned the bank at the time of the merger:
'We finally concluded before we agreed to the merger agreement with the Third National Bank that, if one of us, one of our group, was unable to go down there to the Trust Company and devote full time to its affairs—I would like to say right here that none of us in the group had any commercial banking experience, and that was a serious problem.
'But we concluded that if we were unable to devote our full time to the affairs of the bank, it would be in the best interests of the customers of the bank, the employees of the bank, the stockholders of the bank, and the Nashville community, for us to merge with the Third National Bank.'
Mr. Weaver seems to have felt that one or more members of the new ownership group would have been able to furnish satisfactory executive leadership for the bank.
24
Capital City Bank, founded in 1960 and but one-fourth the size of Nashville Bank and Trust Co., was apparently flourishing.
In this regard, a recent study concluded that 'the small bank can compete successfully with the large bank—if it has the will to do so.' Kohn, Competitive Capabilities of Small Banks, 60 Banking, January 1968, at 64, reporting on the New York State Banking Department's research study, The Future of Small Banks.
1
80 Stat. 7, 12 U.S.C. § 1828(c) (1964 ed., Supp. II).
2
Bank Merger Act of 1966, amending § 18(c)(5)(B) of the Federal Deposit Insurance Act, 12 U.S.C. § 1828(c)(5)(B) (1964 ed., Supp. II).
3
The District Court's opinion is unclear as to whether the court considered it necessary to make a discrete finding under the Clayton Act.
4
An account of Nashville Bank's overall situation appears in the Court's opinion, ante, at 886.
| 78
|
390 U.S. 207
88 S.Ct. 916
19 L.Ed.2d 1042
SECURITIES AND EXCHANGE COMMISSION, Petitioner,v.NEW ENGLAND ELECTRIC SYSTEM et al.
No. 305.
Argued Jan. 18, 1968.
Decided March 5, 1968.
Daniel M. Friedman, Washington, D.C., for petitioner.
John R. Quarles, Boston, Mass., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Respondent New England Electric System (NEES), a holding company registered under § 5 of the Public Utility Holding Company Act of 1935,1 controls both an integrated electric utility system and an integrated gas utility system.2 Section 11(b) of the Act requires the Securities and Exchange Commission to limit the operations of a holding company system to a single integrated public utility system, except the Commission may permit the holding company to continue control of any additional integrated utility system that the Commission determines, among other things, "cannot be operated as an independent system without the loss of substantial economies which can be secured by the retention of control by such holding company of such system. * * *"3 In 1957 the Securities and Exchange Commission instituted proceedings to determine whether NEES should be permitted to retain control of both the electric and gas systems. The Commission initially found that the electric companies constituted a single integrated electric utility system, 38 S.E.C. 193 (1958), and NEES elected to retain those companies as its principal system. NEES urged, however, that it should also be permitted to retain the gas system. After extensive hearings, the Commission refused respondent permission to do so, and ordered the gas system divested. 41 S.E.C. 888 (1964).
2
In reaching its conclusion the Commission construed the statutory phrase "loss of substantial economies" in Clause A of § 11(b)(1) to require a showing that the "additional system cannot be operated under separate ownership without the loss of economies so important as to cause a serious impairment of that system." In its first review of the Commission's order, the Court of Appeals for the First Circuit held that the Commission had erroneously construed the statute; in the court's view, "loss of substantial economies" merely "called for a business judgment of what would be a significant loss. * * *" The court therefore set aside the Commission's order and remanded for reconsideration in light of that test. 346 F.2d 399, 406. We reversed, approving the Commission's construction, and remanded to the Court of Appeals for review of the challenged order in light of the proper meaning of the statutory term. SEC v. New England Electric System, 384 U.S. 176, 86 S.Ct. 1397, 16 L.Ed.2d 456 (NEES I). On remand, the Court of Appeals again set aside the Commission's order. 376 F.2d 107.4 That court, "after a fresh review of all the evidence," concluded "that the Commission's opinion does not reveal that application of both reason and experience to facts which merits endorsement as the responsible exercise of expertise." Id., at 111. We granted certiorari. 389 U.S. 816, 88 S.Ct. 81, 19 L.Ed.2d 65. We reverse and remand to the Court of Appeals with direction to enter a judgment affirming the Commission's order.
3
The question for our decision is whether the Court of Appeals properly held that, on the record, the Commission erred in finding that NEES failed to prove a case for retention of the integrated gas utility system. We address that question against the background of a congressional objective to protect consumer interests through the "elimination of 'restraint of free and independent competition.' * * * One of the evils that had resulted from control of utilities by holding companies was the retention in one system of both gas and electric properties and the favoring of one of these competing forms of energy over the other." NEES I, 384 U.S., at 183, 86 S.Ct. at 1401.5 Congress therefore ordained separate ownership—and divestiture where necessary to reduce holdings to one system—as the " 'very heart' of the Act." Id., at 180, 86 S.Ct. at 1399. Although Congress was aware that some economic loss might be suffered by the parent holding company or the separated integrated utility, Congress relented only to the extent of authorizing the Commission to permit retention of an additional integrated utility if that permission might be granted under the narrow exception provided by § 11(b)(1). But "retention of an 'additional' integrated system is decidedly the exception," and the burden is on the holding company to satisfy the "stringent test" set by the statute. Id., at 180, 182, 86 S.Ct. at 1399; cf. United States v. First City Nat. Bank, 386 U.s. 361, 366, 87 S.Ct. 1088, 1092, 18 L.Ed.2d 151.
4
Congress committed to the Commission the task of determining whether a holding company has met the burden of showing that its situation falls within the narrow exception under § 11(b)(1). The Clause A determination whether separation entails a loss of economies likely to cause a serious impairment of the system involves an element of prediction which necessarily calls for difficult and expert judgment. That judgment requires the assessment of many subtle and often intangible factors not easily expressed in precise or quantifiable terms. This is the very nature of economic forecasting. The task calls for expertise and is not simply "an exercise in counting commonplaces." United States v. Drum, 368 U.S. 370, 384, 82 S.Ct. 408, 415, 7 L.Ed.2d 360; see NEES I, 384 U.S., at 184-185, 86 S.Ct. at 1402-1403. Judicial review of that expert judgment is necessarily a limited one. See Gray v. Powell, 314 U.S. 402, 412-413, 62 S.Ct. 326, 332-333, 86 L.Ed. 301; NLRB v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170; Atlantic Ref. Co. v. FTC, 381 U.S. 357, 367-368, 85 S.Ct. 1498, 1505-1506, 14 L.Ed.2d 443; United States v. Drum, supra, 368 U.S. at 375-376, 82 S.Ct. at 410-411. Congress expressly provided that "(t)he findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive." 15 U.S.C. § 79x(a); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; cf. NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308. In our view, the Court of Appeals in this case indulged in an unwarranted incursion into the administrative domain.6 The Commission's order has adequate support in the record and should have been affirmed.
5
As of 1958, the test year selected for purposes of these proceedings,7 NEES' eight gas subsidiaries provided retail service to some 237,000 customers in a relatively compact 660-square-mile franchise area in Massachusetts. NEES' electric companies also served 75% of this area and about 78% of the gas customers were also electric customers. NEES' gross investment in gas plant and equipment was about $56,300,000 and gross gas revenues for 1958 were about $22,700,000. The eight gas companies were organized administratively as a Gas Division with centralized management, marketing and supply operations, and merchandising departments.8 The chief executive of the Gas Division was also president of each gas company and ultimately responsible to NEES' vice president in charge of management; in short, top management rested with executives having joint control over both electric and gas operations.
6
The Commission had before it a "severance study," a cost analysis and projection prepared for NEES by a professional public utilities management consulting firm, Ebasco Services, Inc. This study projected a loss of economies of approximately $1,100,000 annually for the gas system as the result of its separation from NEES. The Commission dealt with this study in alternative ways. It analyzed the study and concluded that "(t)he Ebasco estimate is inadequately supported in a number of important aspects and leaves considerable doubts which (NEES has) not satisfactorily overcome in the record." Then it went on to find that even if the estimated $1,100,000 in loss of economies were accepted as accurate "it would not lead us to conclude that such a loss is so substantial, when compared with the loss of economies involved in prior divestment cases and viewed in light of the objectives of the Act, as to warrant retention of the gas properties. * * *" 41 S.E.C., at 895, 897. Because we conclude that the record supports the Commission's decision on the latter ground, we have no occasion to consider whether the Commission's strictures on the reliability of the Ebasco study are well founded.
7
The Commission's ultimate finding that the projected $1,100,000 loss of economies annually did not constitute a loss of "substantial" economies within Clause A of § 11(b)(1) was reached primarily upon the basis of its subsidiary findings upon three matters: (1) That NEES' estimated losses were not significantly out of line with those found insubstantial in previous cases; (2) that other nonaffiliated Massachusetts gas companies,9 all but one of them smaller than the NEES gas system, are apparently able to operate successfully without electric utility affiliations; (3) that NEES did not establish that independent management devoted solely to promoting gas sales would not result in benefits to offset some of the projected losses. The Court of Appeals held that none of the three subsidiary findings was supported by substantial evidence. We disagree.
I.
8
The Commission, consistent with its practice in prior cases,10 weighed NEES' estimated $1,100,000 losses in relative rather than absolute terms, calculating the losses as a percentage of NEES' 1958 revenues, expenses, and income.11 It found these loss ratios to be "lower or not significantly higher than corresponding ratios of gas systems whose divestment we have required on the ground that the estimated loss of economies was not substantial within the meaning of clause A." 41 S.E.C., at 898. The cases with which these particular comparisons were made involved companies outside Massachusetts.12 The Court of Appeals held that the comparisons with the loss ratios of companies involved in prior cases were "largely irrelevant" because "* * * these ratios are significant only as they affect the investment structure of the companies in the particular case, and different companies may be compared only on the assumption that both operate at the same level." 376 F.2d at 113, 115. The court's ultimate conclusion was that only close analysis of NEES' own "particular circumstances" was relevant to the Commission's inquiry.
9
It is significant, however, that the Court of Appeals' criticism of the Commission's use of ratios relied heavily on the court's reading of the statistical data in evidence as showing that the projected loss of economies "would decrease (NEES') rate of return from 6.4 per cent in 1959 to 4.1 per cent on the projected basis," or some 30% below, "an average rate of 5.9 per cent for the nonaffiliated Massachusetts gas companies * * *." 376 F.2d, at 114. But, as the Commission has noted, the court's computation that the separated companies would realize a return of only 4.1% contained a serious error, for it overlooked the allowance to be made for income tax deductions generated by the projected losses. The actual rate of return taking such deductions into account would be a significantly higher 5.2%.13
10
In any event, we may agree that the ratios of losses of revenues, expenses, and income are necessarily affected by differences in capital structure, management, market position, and other factors. But it by no means follows that the Commission's comparisons are for that reason irrelevant to the determination whether a projected loss of economies is so important as to cause a serious impairment of the separated system. It was well within the range of the Commission's administrative discretion to use the loss ratios, as it did, "as a guide in adjudicating the pending case." Philadelphia Co., 28 S.E.C. 35, 50, n. 24. The Commission in its expert judgment may so employ evaluative factors it considers relevant.14
11
Indeed, NEES apparently recognized that its burden to establish that its situation comes with Clause A included the burden of showing that the projected loss of economies would be more serious for its separated system than the comparable level of losses in the other cases already decided by the Commission. Respondent attempted to prove that the gas system's distance from sources of supply gives it only a very narrow competitive advantage over oil as a fuel, and, further, that the system's growth potential is more limited by a lack of new housing expansion in the area serviced by the gas companies. As we shall see below, the Commission found that NEES had not made a case in either respect insofar as those matters bore on whether the projected loss of economies threatened serious impairment of the separated system.
II.
12
The Commission's resort to data concerning the operations of the nonaffiliated Massachusetts gas companies was a response to NEES' argument, supported by the Massachusetts Department of Public Utilities, that the projected loss of economies from separation of the gas system would require the gas companies to seek rate increases which might seriously impair or destroy any hope of a successful operation. Natural gas in 1959 enjoyed in New England the smallest price advantage over oil of any section of the country. The annual differential was $7 over oil for a typical New England house compared with $27 to $118 in favor of gas in the rest of the country.15 NEES contended that the predicted rate increase would substantially or entirely eliminate the gas system's already narrow price advantage over oil competitors. The Commission's answer was to inquire about the economic health of the already nonaffiliated Massachusetts gas companies. The Commission found that these companies were apparently able to earn a fair return although not enjoying the supposed advantages of affiliation with electric utilities; and it could find no evidence that they did not face the same competitive conditions as NEES.16 The Commission found further that, despite NEES' insistence that its market conditions differed from the nonaffiliated companies because of relatively stagnant franchise areas offering less sales growth,17 there was no evidence that this would prevent the separated gas system—which would emerge as the second largest independent in the State—from competing as effectively as the smaller independents who had long held their own. Finally, the Commission noted that after severance the gas system's operating ratio would be more favorable or only slightly higher than the ratios of nine independents and therefore concluded that it "would be entering the realm of speculation at this time to assume that rate increases would ensue from severance." 41 S.E.C., at 899.18
13
The Court of Appeals rejected the comparison of these operating ratios, again on the ground that such ratios fail to take account of special characteristics of individual companies. The court observed that since all New England gas companies operated on a "small cushion * * * (t)he significance of this is not negated by observing that non-NEES companies in Massachusetts seem to be surviving, for the focus must be on the specific characteristics of the NEES companies, the only ones affected by the Commission's order." 376 F.2d, at 113. The court further held "irrelevant the comparison of operating ratios, since a business may operate relatively efficiently, yet at a level too low to attract investors." 376 F.2d, at 114, n. 6. For the reasons already stated for our disagreement with the Court of Appeals' view of the Commission's use of other ratios, we disagree that this comparison was either irrelevant or outside the limits of the Commission's administrative discretion. The dissection and evaluation of an economic projection is a function Congress committed to the Commission, not the courts. A court may believe it would have done the job differently and better; but judicial inquiry must be addressed to whether what the Commission did is fatal to its ultimate conclusion that the holding company failed to carry its burden of showing a loss of "substantial" economies within the meaning of Clause A. In assessing NEES' forecast of the need for rate increases because of the projected loss of economies, it was proper for the Commission to consider the performance of other Massachusetts gas companies which were already operating independently. NEES was afforded every opportunity to sustain its burden of showing that the separated gas system would wither into critical health despite the contrary inferences suggested by the comparison made by the Commission. It cannot be a basis for finding error that the Commission found the attempt unpersuasive, given the gas system's size,19 and the prognosis of efficiencies comparable to those achieved by the independents.20
III.
14
The Commission conceived that the projected loss of economies would in some measure be offset by advantages realized by the separated system under the direction of "a management solely interested in and devoted to the gas operations. * * *" 41 S.E.C., at 901. NEES, again supported by the Massachusetts Department of Public Utilities, took the position that its operation of the companies had already achieved all possible benefits of interservice competition. The Commission found the argument unpersuasive, relying again on a comparison with the nonaffiliated Massachusetts gas companies. This was a comparison of the sales performance of the gas companies under NEES management with the sales performances of the independents. All seven of the comparable independents showed substantially higher gas sales and revenues per customer and lower costs to customers.21 The Commission found unpersuasive NEES' explanation that this was accounted for by the greater residential growth potential of the areas serviced by the independents.22
15
The Court of Appeals held that the test of "serious impairment" under Clause A already took account of offsetting benefits to be realized from separation and therefore "that done, the general judgment has no independent significance in an individual case." 376 F.2d, at 115-116. Whatever the merit of the general premise, see NEES I, 384 U.S., at 184-185, 86 S.Ct., at 1402-1403, we understand the Commission's finding to have been simply that the projected $1,100,000 loss of economies did not in fact take into account any offsetting benefits on the assumption that joint operation had already achieved the advantages of independence. See 41 S.E.C., at 900-901. The Commission's conclusion that NEES' assumption was not proved has support in the record and the Court of Appeals was not justified in rejecting it.
16
The judgment of the Court of Appeals is reversed and the case is remanded to that court with direction to enter a judgment affirming the Commission's order. It is so ordered.
17
Judgment of Court of Appeals reversed and case remanded with direction.
18
Mr. Justice DOUGLAS and Mr. Justice MARSHALL took no part in the consideration or decision of this case.
19
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring.
20
Given the earlier decision of the Court in this case, SEC v. New England Electric System, 384 U.S. 176, 86 S.Ct. 1397, 16 L.Ed.2d 456, which I continue to believe wrongly construed the statute but by which I consider myself bound, I join today's opinion of the Court.
1
49 Stat. 812, 15 U.S.C. § 79e.
2
At the time of this proceeding, the integrated electric utility system consisted of seven electric utility companies serving parts of New Hampshire, Massachusetts, Rhode Island, and Connecticut. The integrated gas utility system consisted of eight Massachusetts gas companies. NEES also controlled a service company which provided services for the whole NEES operation.
3
Section 11(b) of the Public Utility Holding Company Act of 1935, 49 Stat. 820, 15 U.S.C. § 79k(b), provides in pertinent part: It shall be the duty of the Commission, as soon as practicable after January 1, 1938:
"(1) To require by order, after notice and opportunity for hearing, that each registered holding company, and each subsidiary company thereof, shall take such action as the Commission shall find necessary to limit the operations of the holding-company system of which such company is a part to a single integrated public-utility system * * *: Provided, however, That the Commission shall permit a registered holding company to continue to control one or more additional integrated public-utility systems, if, after notice and opportunity for hearing, it finds that—
"(A) Each of such additional systems cannot be operated as an independent system without the loss of substantial economies which can be secured by the retention of control by such holding company of such system * * *."
4
On remand, the Court of Appeals interpreted the "serious impairment" standard as requiring proof only of "a condition allowing survival but not on a sound or "healthful continuing" basis," rather than proof that severance "will result in imminent bankruptcy. * * *" 376 F.2d, at 109. The Commission has not contested this interpretation in this Court.
5
"By fostering competition between gas and electric utility companies, the Act promotes what has been described as 'variegated competition.' " NEES I, 384 U.S., at 184, n. 15, 86 S.Ct., at 1402.
6
The following passage is from the court's opinion on remand:
"Even without the burden of proving likely demise, (NEES') burden is, as the Court said, to meet 'a much more stringent test' than that of a probable significant loss. But, if the standard to be applied to (NEES) is stringent, so is the level of analysis and expertise to be exercised by the Commission. We have, only after a fresh review of all the evidence in the light of this most stringent practical standard, concluded that the Commission's opinion does not reveal that application of both reason and experience to facts which merits endorsement as the responsible exercise of expertise." 376 F.2d, at 111.
7
This was the latest year for which audited financial statements were available at the time of the hearing before the Commission. 41 S.E.C., at 889, n. 3.
8
All but one of the eight companies are located within 48 miles of the division headquarters; one is 80 miles away.
9
"Nonaffiliated" or "independent" refers to gas companies not having any electric affiliations and gas companies not jointly operated with electric companies serving the same franchise area.
10
E.g., Philadelphia Co., 28 S.E.C. 35, 50-52 (1948); General Pub. Util. Corp., 32 S.E.C. 807, 837 (1951).
11
The losses would amount to: 4.8% of operating revenues; 6.0% of operating revenue deductions (excluding federal income taxes); 23.3% of gross income (before federal income taxes); 29.9% of net income (before taxes).
12
See Engineers Pub. Service Co., 12 S.E.C. 41, 55-61, 78-81 (1942); North Amer. Co., 18 S.E.C. 611 (1945); Philadelphia Co., 28 S.E.C. 35, 45-53 (1948); General Pub. Util. Corp., 32 S.E.C. 807, 814-815, 823-839 (1951); Middle So. Util., Inc., 35 S.E.C. 1 (1953), 36 S.E.C. 383 (1955). The relevant financial data for each case are summarized in an appendix to the Commission's opinion. 41 S.E.C., at 905.
13
Rate of return is the percentage of net operating income to the rate base, which is fixed by a formula tied generally to the value of capital assets. The source of the 4.1% figure appears to have been the Court of Appeals. The 4.1% was apparently derived as follows:
(a) $ 3,050,988 (1959 net oper. income after taxes) = 6.4% rate of
$47,723,162 (rate base) return
(b) $ 3,050,988
-1,098,600 (projected losses)
$ 1,952,388 (est. net oper. income)
(c) $ 1,952,388 = 4.1% rate of return
$47,723,162
However, the $1,100,000 projected loss would generate income tax deductions of roughly 50%, increasing the numerator of fraction (c) from $1,952,388 to $2,501,688, and the rate of return to 5.2%. The NEES brief relies on the 4.1% figure, but NEES has not challenged the Commission's recalculation.
The 1959 rates of return for the comparable nonaffiliated Massachusetts companies were as follows:
Percent
Berkshire Gas..................... 5.2
Brockton-Taunton Gas.............. 6.1
Fall River Gas.................... 6.2
Haverhill Gas..................... 6.8
Lowell Gas........................ 7.9
Springfield Gas................... 6.4
Worcester Gas..................... 4.5
(Resp.Ex. 117; R. 1436).
14
Although the parties are in dispute as to the validity of some of the data drawn from the previous cases, we do not consider it necessary to become involved in that controversy. Suffice it to say that we do not think the Commission in looking to the data for guidance exceeded the bounds of reason or administrative discretion.
15
Gas to New England was piped all the way from Texas, whereas oil was shipped in by tanker. NEES estimated the average home heating cost to be $166 for gas, $173 for oil; and it was in residential space heating that NEES found its chief market.
16
NEES calculated the composite rate of return for its gas system at 6.6% for 1958 and 6.4% for 1959. (Resp.Ex. 114; R. 1431.) The average for seven comparable independents was 6.3% in 1958 and 5.9% in 1959. (Resp.Ex. 117; R. 1436.)
17
NEES cites as prime evidence in this regard the testimony of Robert Cahal, an Ebasco marketing consultant who had to some extent analyzed the marketing conditions NEES faced. The substance of his testimony was that (a) gas and oil are highly competitive in the State, with oil being well entrenched in many areas so that the major source of growth has to be in new residence construction; (b) in Massachusetts growth is in the suburbs with towns proper being relatively stagnant; (c) gas companies are limited by their franchise area, prisoners of the characteristics of their particular communities; (d) the independents are not necessarily comparable with NEES because they may be in areas of higher growth; (e) independents having such areas are Haverhill, Lowell, Springfield, Worcester, Brockton-Taunton; all of them having growth greater (but unspecified as to degree) than any NEES gas company except Norwood.
The Commission noted, without comment, that the population increase in NEES' franchise areas between 1950 and 1960 was only 11% as compared with 18% in the areas of seven independents.
41 S.E.C., at 899, n. 23.
18
The operating ratio is "the percentage of total operating revenue deductions (other than depreciation, amortization of conversion costs, and Federal income taxes) to total operating revenues." 41 S.E.C., at 899, n. 25. The ratio "affords a measure for determining the efficiency with which the enterprise is conducted and while its value is greater in comparing the year to year trend it has a limited use in comparing very similar enterprises." Moody's Public Utility Manual ix (1967). NEES' ratio was fixed at 76.41% and compared with the composite ratio of nine independents of 79.14%, as well as their median and mean ratios of 74.87% and 76.35% respectively. Individual ratios are cited at 41 S.E.C., at 899, n. 26.
19
The Commission may properly regard size of operation to be a relevant factor. One of Congress' concerns in providing the exception involved here was to protect small companies likely to fail if separated from the parent holding company. Cf. NEES I, 384 U.S., at 181, 86 S.Ct., at 1400; North Amer. Co. v. SEC, 327 U.S. 686, 697, 66 S.Ct. 785. 792, 90 L.Ed. 945. See also H.R.Rep. No. 1903, 74th Cong., 1st Sess., 68-71; S.Doc. No. 92, 70th Cong., 1st Sess., Pt. 72-A, at 831, 835. And NEES' size, especially given its relatively compact franchise area, is some indication of its competitive position.
20
See n. 18, supra, and accompanying text.
21
The breakdown was as follows:
1958—
NEES...... Indep.
Sales, mcf/cust. 44.2. 78.8
Revenues, cust. $95.44. $135.19
Cost to customers, mcf. $2.16 $1.72
1959—
Sales, mcf/cust. 51.5. 83.7
Revenues, cust. $104.49. $142.10
Cost to customers, mcf. $2.03 $1.70
Equivalent data for the Norwood Gas Company, the NEES subsidiary asserted to have growth potential comparable to the independents, see n. 17, supra, were as follows (1958 and 1959 figures): Sales—51.8 and 60.4 mcf/customer; Revenues—$112.59 and $125.66/customer; Cost to customers—$2.17 and $2.08/mcf. 41 S.E.C., at 901, nn. 29-30. See R. 1446-1447, 1449-1450.
22
"(N)o specific demonstration of the existence or extent of such a causal relation was presented." 41 S.E.C., at 901. See also n. 21, supra.
| 78
|
390 U.S. 222
88 S.Ct. 926
19 L.Ed.2d 1055
UNITED STATES, Appellant,v.Arnold HABIG et al.
No. 107.
Argued Jan. 17, 1968.
Decided March 5, 1968.
Harris Weinstein, Washington, D.C., for appellant.
Lester M. Ponder Indianapolis, Ind., for appellees.
Mr. Justice FORTAS delivered the opinion of the Court.
1
Appellees were indicted for crimes relating to allegedly false income tax returns. The District Court dismissed Counts 4 and 6 of the indictment, charging as attempt to evade taxes by filing of a false return (26 U.S.C. § 7201) and aiding in the preparation and presentation of a false return (26 U.S.C. § 7206(2)), on the ground that the six-year statute of limitations, 26 U.S.C. § 6531, barred prosecution under those counts. D.C., 270 F.Supp. 929. The United States filed notice of appeal to this Court under 18 U.S.C. § 3731. We noted probable jurisdiction. 389 U.S. 810, 88 S.Ct. 35, 19 L.Ed.2d 62.
2
The question presented is the construction of §§ 6531 and 6513(a) of the Internal Revenue Code of 1954 (26 U.S.C. §§ 6531 and 6513(a)). It is squarely raised by the facts of this case. The indictment was filed on August 12, 1966. The income tax returns involved in Counts 4 and 6 were filed on August 12, and 15, 1960. Section 6531 limits the time when indictments may be filed for the charged offenses to six years 'next after the commission of the offense.'
3
The offenses involved in Counts 4 and 6 are committed at the time the return is filed. See e.g., Swallow v. United States, 307 F.2d 81, 83 (C.A.10th Cir. 1962); Benham v. United States, 215 F.2d 472, 473 (C.A.5th Cir. 1954); Butzman v. United States, 205 F.2d 343, 350—351 (C.A.6th Cir. 1953); United States v. Yeoman-Henderson, Inc., 193 F.2d 867, 869 (C.A.7th Cir. 1952); United States v. Croessant,178 F.2d 96, 98 (C.A.3d Cir. 1949); Cave v. United States, 159 F.2d 464, 467 (C.A.8th Cir. (1947). Six years had not quite elapsed from the commission of the crimes in the present case to the filing of the indictment. Appellees do not contest the chronological calculation. But because of § 6513(a) of the Code, they say that the critical date here is not the date when the returns were actually filed but the date when they were initially due to be filed, viz., May 15, and not August 15, 1960.
4
The basis for this contention is as follows: Section 6531, which prescribes the six-year period of limitations, also says that '(f)or the purpose of determining (such) periods of limitation * * * the rules of section 6513 shall be applicable.' Instead of filing on the due date of May 15, 1960, the corporations obtained extensions of time to August 15, 1960. Accordingly, if the six-year period of limitations runs not from the date of actual filing (August 12 and 15, 1960) but from the original due date of the returns (May 15, 1960), the indictment, having been filed on August 12, 1966, was several months too late.
Section 6513(a) reads as follows:
5
'SECTION 6513. TIME RETURN DEEMED FILED AND TAX CONSIDERED PAID.
6
'(a) Early Return or Advance Payment of Tax.—For purposes of section 6511 (relating to claims for credit or refund), any return filed before the last day prescribed for the filing thereof shall be considered as filed on such last day. For purposes of section 6511(b)(2) and (c) and section 6512 (relating to suits in the Tax Court), payment of any portion of the tax made before the last day prescribed for the payment of the tax shall be considered made on such last day. For purposes of this subsection, the last day prescribed for filing the return or paying the tax shall be determined without regard to any extension of time granted the taxpayer and without regard to any election to pay the tax in installments.'
7
Appellees' argument is that by reason of the third sentence of § 6513(a), the starting date for computing the six-year limitations period is to be determined by the original due date of the return, May 15, 1960, 'without regard to any extension of time granted the taxpayer.' The District Court agreed. In other cases, the Court of Appeals for the Fifth Circuit, Hull v. United States, 356 F.2d 919 (1966), and the District Courts for the Northern District of Ohio, United States v. Doelker, D.C., 211 F.Supp. 663 (1962), and the District of New Jersey, United States v. Alper, 200 F.Supp. 155 (1961), have so held. The District Court for the District of New Mexico has arrived at the contrary result. United States v. Hensley, 257 F.Supp. 987 (1966).
8
On the other hand, the Government argues that appellees' contention, despite its support in the decisions of several courts, is necessarily based upon the surprising assertion that Congress intended the limitations period to begin to run before appellees committed the acts upon which the crimes were based. It argues that this result cannot be squared with the language of the Code or the intent of Congress. We perforce agree with the Government's analysis.
9
Section 6513(a), as its title clearly indicates, was designed to apply when a return is filed or a tax is paid before the statutory deadline. The first two sentences provide that the limitations periods on claims for refunds and tax suits (26 U.S.C. §§ 6511, 6512), when the return has been filed or payment made in advance of the date 'prescribed' therefor, shall not begin to run on the early date, but on the 'prescribed' date. The third sentence states that, for 'purposes of (the) subsection,' the date 'prescribed' for filing or payment shall be determined on the basis fixed by statute or regulations, without regard to any extension of time. The net effect of the language is to prolong the limitations period when, and only when, a return is filed or tax paid in advance of the statutory deadline.
10
There is no reason to believe that § 6531, by reference to the 'rules of section 6513' expands the effect and operation of the latter beyond its own terms so as to make it applicable to situations other than those involving early filing or advance payment. The reference to § 6513 in § 6531 extends the period within which criminal prosecution may be begun only when the limitations period would also be extended for the refunds and tax suits expressly dealt with in § 6513—only when there has been early filing or advance payment. In other words, if a taxpayer anticipates the April 15 filing date by filing his return on January 15, the six-year limitations period for prosecutions under § 6531 commences to run on April 15. Practically, the effect of the reference to § 6513 in § 6531 is to give the Government the administrative assistance, for purposes of its criminal tax investigations, of a uniform expiration date for most taxpayers, despite variations in the dates of actual filing.
11
The legislative history supports this reading. The first predecessor of § 6513(a) was enacted in 1942. See § 332(b)(4) of the 1939 Code, added by Act of October 21, 1942, c. 619, § 169(a), 56 Stat. 877. This section applied only to civil income tax refund proceedings. The Report of the House Ways and Means Committee (H.R.Rep. No. 2333, 77the Cong., 2d Sess., 119) states:
12
'If the taxpayer files his return before the last day on which it is due, the period in which he can file a claim for refund under the provisions of section 322(b)(1), measured from the date the return was filed, will expire sooner than would be the case if he waited until such last day. Section 150 of the bill adds paragraph (4) to section 322(b) to provide that the period of limitations with respect to credit or refund is measured from the last day prescribed for the filing of the return in cases where the return is filed before such last day. This provision does not apply to taxpayers who are given the benefit of an extension of time in which to file their returns, and file the return before the last day of the extended period * * *' (Emphasis added.)
13
Accord, S. Rep. No. 1631, 77th Cong., 2d Sess., 156. Then, in adopting the 1954 Code, the contested reference to § 6513 was added to § 6531. The House and Senate Reports expressly confirmed that § 6513 still encompassed 'the existing * * * rule as to early returns and advance payment.' H.R. Rep. No. 1337, 83d Cong., 2d Sess., A. 416; S. Rep. No. 1622, 83d Cong., 2d Sess., 587. (Emphasis added.)
14
The language of § 6513(a) does not purport to apply when a return is filed during an extension of time. The legislative history is to the same effect. Accordingly, although we reiterate the principle that criminal limitations statutes are 'to be liberally interpreted in favor of repose,' United States v. Scharton, 285 U.S. 518, 522, 52 S.Ct. 416, 417, 76 L.Ed. 917 (1932), we cannot read the statute as appellees urge.
15
The judgment of the District Court is reversed and the case is remanded for further proceedings.
16
Reversed and remanded.
17
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
| 01
|
390 U.S. 228
88 S.Ct. 959
19 L.Ed.2d 1061
UNITED STATES, Petitioner,v.NEIFERT-WHITE COMPANY.
No. 267.
Argued Jan. 18, 1968.
Decided March 5, 1968.
John S. Martin, Jr., Washington, D.C., for petitioner.
Patrick F. Hooks, Townsend, Mont., for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
This is an action by the United States to recover statutory forfeitures under the False Claims Act.1 The question is whether the Act applies to the supplying of false information in support of an application to a federal agency, the Commodity Credit Corporation (CCC), for a loan. The District Court dismissed the action on the ground that an application for a CCC loan, as distinguished from a claim for payment of an obligation owed by the Government, is not a 'claim' within the meaning of the Act. The Court of Appeals for the Ninth Circuit affirmed. We granted certiorari. 389 U.S. 814, 88 S.Ct. 69, 19 L.Ed.2d 65 (1967).
2
The CCC is authorized to make loans to grain growers to finance the construction or purchase of storage facilities. § 4(h) of the Commodity Credit Corporation Charter Act, as amended, 62 Stat. 1071, 15 U.S.C. § 714b(h). Pursuant to its authority under statute, 15 U.S.C. § 714b(d), the CCC has adopted regulations providing for the granting of loans in amounts not to exceed 80% of the actual purchase price of storage bins. A grain grower who desires to apply for a loan is required to support his application by an invoice showing the purchase price and the amount of the down payment made by him. 23 Fed.Reg. 9687.
3
Since the Government's complaint was dismissed for failure to state a cause of action, the allegations of the complaint must be taken as true for present purposes. According to the complaint, respondent is a dealer in grain storage bins. In 1959, in selling bins to 12 grain farmers, one of respondent's officers prepared invoices in which the purchase price was deliberately overstated. The purpose was fraudulently to induce the CCC to extend loans to respondent's customers in amounts exceeding 80% of the actual purchase price. The invoices were submitted to the CCC along with the loan applications, and the agency relied on the overstated purchase price in determining the amount of loans that were subsequently made. The United States claims the statutory forfeiture of $2,000 for each of the 12 alleged violations of the Act.
4
The issue in this case is narrow and precise: Does the False Claims Act reach 'claims' for favorable action by the Government upon applications for loans or is it confined to 'claims' for payments due and owing from the Government?2 It is respondent's position that the term 'claims' in the Act must be read in its narrow sense to include only a demand based upon the Government's liability to the claimant. Respondent relies upon United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616 (1926), and United States v. McNinch, 356 U.S. 595, 78 S.Ct. 950, 2 L.Ed.2d 1001 (1958), to support this narrow reading.
5
Cohn involved a criminal proceeding under an earlier version of the present False Claims Act.3 It concerned a fraudulent application to obtain the release of merchandise which did not belong to the United States and which was being held by the customs authorities as bailee only. The case did not involve an attempt, by fraud, to cause the Government to part with its money or property, either in discharge of an obligation or in response to an application for discretionary action. The language in the Court's opinion upon which respondent relies cannot be taken as a decision upon a point which the facts of the case did not present.4
6
In McNinch, the Government brought suit for damages and forfeitures under the False Claims Act, in its present form, against persons who had filed fraudulent applications for home-modernization loans with a private bank which was regularly insured by the Federal Housing Administration against losses on such loans. The bank granted the loans sought by defendants, which were 'routinely' insured by the FHA. 356 U.S. at 597, n. 4, 78 S.Ct., at 951. This Court held that since FHA 'disburses no funds nor does it otherwise suffer immediate financial detriment,' id., at 599, 78 S.Ct., at 952, the transaction was not within the ambit of the False Claims Act. The Court emphasized the distinction between contracts of insurance against loss such as those involved in McNinch, and transactions in which the United States pays or lends money. For purposes of the present case, we need not reconsider the validity of this distinction. It is sufficient to note that the instant case involves a false statement made with the purpose and effect of inducing the Government immediately to part with money.
7
The precise question presented by this case has never been considered by the Court. However, both the history and the language of the False Claims Act, as well as the thrust of our prior decisions, indicate the answer to our present inquiry. The original False Claims Act was passed in 1863 as a result of investigations of the fraudulent use of government funds during the Civil War. Debates at the time suggest that the Act was intended to reach all types of fraud, without qualification, that might result in financial loss to the Government.5 In its present form the Act is broadly phrased to reach any person who makes or causes to be made 'any claim upon or against' the United States, or who makes a false 'bill, receipt, * * * claim, * * * affidavit or deposition' for the purpose of 'obtaining or aiding to obtain the payment or approval of' such a false claim. In the various contexts in which questions of the proper construction of the Act have been presented, the Court has consistently refused to accept a rigid, restrictive reading, even at the time when the statute imposed criminal sanctions as well as civil.6 See, e.g., United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943).
8
On the very day that this Court decided McNinch, it also decided three cases holding that a fraudulent application for a loan submitted to the CCC was a claim against the Government of the United States, within the meaning of the False Claims Act.7 The question debated in those cases was not the meaning of the word 'claim,' but whether the CCC, a wholly owned government corporation, was 'the Government of the United States, or any department or officer thereof' within the meaning of the statute. In the course of its opinion on this matter, the Court noted that the objective of Congress in enacting the False Claims Act 'was broadly to protect the funds and property of the Government from fraudulent claims, regardless of the particular form, or function, of the government instrumentality upon which such claims were made' and that '(b)y any ordinary standard the language of the Act is certainly comprehensive enough to achieve this purpose.' Rainwater v. United States, 356 U.S. 590, 592, 78 S.Ct. 946, 948, 2 L.Ed.2d 996 (1958).
9
Analogous reasoning leads us to hold today that the False Claims Act should not be given the narrow reading that respondent urges. This remedial statute reaches beyond 'claims' which might be legally enforced, to all fraudulent attempts to cause the Government to pay out sums of money. We believe the term 'claims,' as used in the statute, is broad enough to reach the conduct alleged by the Government in its complaint. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings in accordance with this opinion.
10
Reversed and remanded.
11
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
In relevant part, the statute provides as follows:
R.S. § 3490 (1874):
'Any person * * * who shall do or commit any of the acts prohibited by any of the provisions of section fifty-four hundred and thirty-eight, Title 'CRIMES,' shall forfeit and pay to the United States the sum of two thousand dollars, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such act * * *.'
R.S. § 5438 (1874):
'Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the Government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, or who enters into any agreement, combination, or conspiracy to defraud the Government of the United States, or any department or officer thereof, by obtaining or aiding to obtain the payment or allowance of any false or fraudulent claim, * * * shall be imprisoned at hard labor for not less than one nor more than five years, or fined not less than one thousand nor more than five thousand dollars.'
The criminal aspect of this statutory scheme has been altered and codified in 18 U.S.C. § 287 and 18 U.S.C. § 1001; see n. 2, infra. The civil (forfeiture) provisions have been codified, unaltered, in 31 U.S.C. § 231, but the above-cited version of these provisions continues to be the official one. The above-quoted provisions survive only insofar as civil liability is concerned.
2
No other issue is presented. The statute expressly reaches persons who falsify a 'receipt' 'for the purpose of * * * aiding to obtain the payment or approval of (a) claim.' See n. 1, supra.
3
See n. 1, supra. The criminal aspect of the original False Claims Act has been carried forward in two separate criminal statutes currently in force. Section 287 of Title 18 makes it a crime for a person to present 'any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent.'
Section 1001 of the same title subjects to criminal penalties '(w)hoever * * * knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry.'
Respondent has been indicted under still another criminal statute, 15 U.S.C. § 714m(a), which prohibits the making of false statements for the purpose of influencing the CCC.
4
'(I)t is clear, in the light of the entire context, that in the present statute, the provision relating to the payment or approval of a 'claim upon or against' the Government relates solely to the payment or approval of a claim for money or property to which a right is asserted against the Government, based upon the Government's own liability to the claimant.' 270 U.S., at 345 346, 46 S.Ct. at 252. (Emphasis added.)
5
See Cong. Globe, 37th Cong., 3d Sess., 952—958.
6
See n. 1, supra.
7
The principal case was Rainwater v. United States, 356 U.S. 590, 78 S.Ct. 946, 2 L.Ed.2d 996 (1958). Reference was made to the other two cases, Cato Bros. v. United States and Toepleman v. United States, in the course of the opinion in McNinch.
| 78
|
390 U.S. 234
88 S.Ct. 992
19 L.Ed.2d 1067
James H. HARRIS, Petitioner,v.UNITED STATES.
No. 92.
Argued Jan. 18, 1968.
Decided March 5, 1968.
Paul H. Weinstein, Washington, D.C., for petitioner.
Francis X. Beytagh, Jr., Cleveland, Ohio, for respondent.
PER CURIAM.
1
Petitioner was charged with robbery under the District of Columbia Code. D.C.Code Ann. § 22—2901. At his trial in the United States District Court for the District of Columbia, petitioner moved to suppress an automobile registration card belonging to the robbery victim, which the Government sought to introduce in evidence. The trial court, after a hearing, ruled that the card was admissible. Petitioner was convicted of the crime charged and sentenced to imprisonment for a period of two to seven years. On appeal, a panel of the United States Court of Appeals for the District of Columbia Circuit reversed, holding that the car had been obtained by means of an unlawful search. The Government's petition for rehearing en banc was, however, granted, and the full Court of Appeals affirmed petitioner's conviction, with two judges dissenting. We granted certiorari to consider the problem presented under the Fourth Amendment. 386 U.S. 1003, 87 S.Ct. 1353, 19 L.Ed.2d 432 (1967). We affirm.
2
Petitioner's automobile had been seen leaving the site of the robbery. The car was traced and petitioner was arrested as he was entering it near his home. After a cursory search of the car, the arresting officer took petitioner to a police station. The police decided to impound the car as evidence, and a crane was called to tow it to the precinct. It reached the precinct about an hour and a quarter after petitioner. At this moment, the windows of the car were open and the door unlocked. It had begun to rain.
3
A regulation of the Metropolitan Police Department requires the officer who takes an impounded vehicle in charge to search the vehicle thoroughly, to remove all valuables from it, and to attach to the vehicle a property tag listing certain information about the circumstances of the impounding. Pursuant to this regulation, and without a warrant, the arresting officer proceeded to the lot to which petitioner's car had been towed, in order to search the vehicle, to place a property tag on it, to roll up the windows, and to lock the doors. The officer entered on the driver's side, searched the car, and tied a property tag on the steering wheel. Stepping out of the car, he rolled up an open window on one of the back doors. Proceeding to the front door on the passenger side, the officer opened the door in order to secure the window and door. He then saw the registration card, which lay face up on the metal stripping over which the door closes. The officer returned to the precinct, brought petitioner to the car, and confronted petitioner with the registration card. Petitioner disclaimed all knowledge of the card. The officer then seized the card and brought it into the precinct. Returning to the car, he searched the trunk, rolled up the windows, and locked the doors.
4
The sole question for our consideration is whether the officer discovered the registration card by means of an illegal search. We hold that he did not. The admissibility of evidence found as a result of a search under the police regulation is not presented by this case. The precise and detailed findings of the District Court, accepted by the Court of Appeals, were to the effect that the discovery of the card was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody. Nothing in the Fourth Amendment requires the police to obtain a warrant in these narrow circumstances.
5
Once the door had lawfully been opened, the registration card, with the name of the robbery victim on it, was plainly visible. It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. State of California, 374 U.S. 23, 42—43, 83 S.Ct. 1623, 1634, 1635, 10 L.Ed.2d 726 (1963); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).
6
Affirmed.
7
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
8
Mr. Justice DOUGLAS, concurring.
9
Though Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, is not mentioned in the Court's opinion, I assume it has survived because in the present case (1) the car was lawfully in police custody, and the police were responsible for protecting the car; (2) while engaged in the performance of their duty to protect the car, and not engaged in an inventory or other search of the car, they came across incriminating evidence.
| 01
|
390 U.S. 238
88 S.Ct. 1005
19 L.Ed.2d 1071
FEDERAL MARITIME COMMISSION et al., Petitioners,v.AKTIEBOLAGET SVENSKA AMERIKA LINIEN (SWEDISH AMERICAN LINE) et al. AMERICAN SOCIETY OF TRAVEL AGENTS, INC., Petitioner, v. AKTIEBOLAGET SVENSKA AMERIKA LINIEN (SWEDISH AMERICAN LINE) et al.
Nos. 257 and 258.
Argued Jan. 25, 1968.
Decided March 6, 1968.
[Syllabus from pages 238-239 intentionally omitted]
Irwin A. Seibel, Washington, D.C., for Federal Maritime Commission and others.
Robert J. Sisk, New York City, for American Society of Travel Agents, Inc.
Edward R. Neaher, New York City, for Aktiebolaget Svenska Amerika Linien (Swedish American Line and others).
Mr. Justice BLACK delivered the opinion of the Court.
1
The question presented in these cases is whether the Federal Maritime Commission properly disapproved two provisions of several shipping conference agreements. One of the provisions under attack, the so-called tying rule, prohibits travel agents who book passage on ships participating in the conferences from selling passage on competing, nonconference lines. The second provision, known as the unanimity rule, requires unanimous action by conference members before the maximum rate of commissions payable to travel agents may be changed.
2
The Commission's authority in this area stems from the Shipping Act, 1916.1 Section 15 of this Act, as amended, requires common carriers by water to submit most of their cooperative agreements to the Commission and directs it to:
3
'disapprove, cancel or modify any agreement, or any modification or cancellation thereof, whether of not previously approved by it, that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter * * *.'
4
In 1959 proceedings were initiated before the Federal Maritime Board, predecessor agency to the present Federal Maritime Commission, on the complaint of the American Society of Travel Agents, petitioner in No. 258. The Society challenged a number of the practices of two conferences composed of steamship lines that furnish passenger service across the Atlantic. After extensive investigation and hearings before a Commission Examiner, the Commission disapproved both the tying and unanimity rules and ordered them eliminated. 7 F.M.C. 737 (1964). The Court of Appeals, however, set aside the order and remanded the case to the Commission for more detailed findings and explanations. 122 U.S.App.D.C. 59, 351 F.2d 756 (1965). On remand the Commission again disapproved both rules. The tying rule was found detrimental to the commerce of the United States, unjustly discriminatory as between carriers, and contrary to the public interest. The unanimity rule was found detrimental to the commerce of the United States and contrary to the public interest. —- F.M.C. —- (1966). On appeal, the Court of Appeals again set aside the order, holding that the Commission's new opinion had not remedied the defects noted in the prior decision on appeal, 125 U.S.App.D.C. 359, 372 F.2d 932 (1967), and we granted certiorari, 389 U.S. 816, 88 S.Ct. 67, 19 L.Ed.2d 67 (1967). We hold that the Commission's order was supported in all respects by adequate findings and analysis. We therefore reverse the judgment of the Court of Appeals and approve the order of the Commission.
I.
5
An understanding of the issues in these cases will be facilitated by a very brief discussion of the purposes of these shipping conferences and the federal statutes enacted to regulate them. Major American and foreign steamship lines which compete for traffic along the same routes have long joined together in conferences to fix rates and other charges, allocate traffic, and in other ways moderate the rigors of competition. Despite traditional hostility to anticompetitive arrangements of this kind, however, Congress found after extensive investigation that the cooperative activity of these conferences was to some extent in the public interest. The House Committee that conducted the primary inquiry reported that the conferences promoted:
6
'regularity and frequency of service, stability and uniformity of rates, economy in the cost of service, better distribution of sailings, maintenance of American and European rates to foreign markets on a parity, and equal treatment of shippers through the elimination of secret arrangements and underhanded methods of discrimination.' H.R.Doc. No. 805, 63d Cong., 2d Sess., 416.
7
These advantages, the Committee concluded, could probably not be preserved in the face of unrestricted competition, and accordingly it recommended that the industry be granted some exemption from the antitrust laws. On the other hand, the Committee stressed that an unqualified exemption would be undesirable. The conferences had abused their power in the past and might do so in the future unless they were subjected to some form of effective governmental supervision. In response to these findings Congress enacted the Shipping Act, 1916. The statute not only outlawed a number of specific abuses but set up the United States Shipping Board, a predecessor of the present Federal Maritime Commission, with permanent authority under § 15 of the Act to modify or disapprove conference agreements. The antitrust immunity conferred was, as the House Committee had recommended, a limited one—only agreements receiving the approval of the Board were exempted. Originally the Board could disapprove an agreement on only three grounds: unjust discrimination, detriment to commerce, or illegality under one of the specific provisions of the Act. In 1959, however, Congress began an extensive review of regulation under the Shipping Act,2 and amendments passed in 1961 in response to these studies3 included a provision granting considerably broader authority by permitting disapproval under § 15 of any agreement found to be 'contrary to the public interest.' The scheme of regulation adopted thus permits the conferences to continue operation but insures that their immunity from the antitrust laws will be subject to careful control.
II.
8
A crucial issue in these cases is respondents' challenge to the Commission's reliance on antitrust policy as a basis for disapproving these rules. Since the contention is equally relevant to analysis of the tying and unanimity rules, we consider it at the outset.
9
The Commission has formulated a principle that conference restraints which interfere with the policies of antitrust laws will be approved only if the conferences can 'bring forth such facts as would demonstrate that the * * * rule was required by a serious transportation need, necessary to secure important public benefits or in furtherance of a valid regulatory purpose of the Shipping Act.' See —- F.M.C., at —-. In the present cases, but for the partial immunity granted by the Act, both the tying and unanimity rules undoubtedly would be held illegal under the antitrust laws, and respondents failed to satisfy the Commission that the rules were necessary to further some legitimate interest. The Commission found this sufficient reason to disapprove the rules, but the Court of Appeals disagreed. Emphasizing that '(t)he statutory language authorizes disapproval only when the Commission finds as a fact that the agreement operates in one of the four ways set out in the section by Congress,' the court held, 'We do not read the statute as authorizing disapproval of an agreement on the ground that it runs counter to antitrust principles * * *.' 122 U.S.App.D.C., at 64, 351 F.2d., at 761 (opinion on first appeal).
10
Insofar as this holding rests on the absence of an explicit antitrust test among the 'four ways set out in the section,' we think the Court of Appeals was excessively formalistic in its approach to the Commission's findings. By its very nature an illegal restraint of trade is in some ways 'contrary to the public interest,' and the Commission's antitrust standard, involving an assessment of the necessity for this restraint in terms of legitimate commercial objectives, simply gives understandable content to the broad statutory concept of 'the public interest.' Certainly any reservations the Court of Appeals may have had on this point should have been dispelled by the Commission's careful explanation on remand of the connection between its antitrust standard and the public interest requirement. See —- F.M.C., at -. As long as the Commission indicates which of the statutory standards is the ultimate authority for its disapproval, we can see no objection to the Commission's casting its primary analysis in terms of the requirements of its antitrust test.
11
Respondents argue more broadly, however, that the antitrust test is not a permissible elaboration of the statutory standards. They contend that the whole purpose of the statutory scheme would be defeated if incompatibility with the antitrust laws can be a sufficient reason for denying immunity from these laws. Congress, it is argued, has already decided that there is a justification for intrusions on our antitrust policy by the conference system, and accordingly the Commission cannot require further justifications from the shipping lines but must itself demonstrate the way in which the statutory requirements are violated.
12
Respondents' arguments, however, are not even superficially persuasive. Congress has, it is true, decided to confer antitrust immunity unless the agreement is found to violate certain statutory standards, but as already indicated, antitrust concepts are intimately involved in the standards Congress chose. The Commission's approach does not make the promise of antitrust immunity meaningless because a restraint that would violate the antitrust laws will still be approved whenever a sufficient justification for it exists.4 Nor does the Commission's test, by requiring the conference to come forward with a justification for the restraint, improperly shift the burden of proof. The Commission must of course adduce substantial evidence to support a finding under one of the four standards of § 15, but once an antitrust violation is established, this alone will normally constitute substantial evidence that the agreement is 'contrary to the public interest,' unless other evidence in the record fairly detracts from the weight of this factor. It is not unreasonable to require that a conference adopting a particular rule to govern its own affairs, for reasons best known to the conference itself, must come forward and explain to the Commission what those reasons are. We therefore hold that the antitrust test formulated by the Commission is an appropriate refinement of the statutory 'public interest' standard.
III.
13
We turn then to the Commission's analysis of the specific impact of the unanimity rule. The rule is embodied in the basic agreement of the carriers in the Atlantic Passenger Steamship Conference, an association of the major lines serving passenger traffic between Europe and the United States and Canada. Article 6(a) of this agreement provides that the rate of commission which member lines may pay to their agents must be established by unanimous agreement of the member lines. In addition, Article 3(d) of the agreement permits the subcommittee with primary responsibility for suggesting commission rates to make recommendations to the full conference only when subcommittee members are in unanimous accord.
14
The Commission noted that at the time of its hearings, the commission paid by conference members to travel agents was substantially lower than that paid by the airlines. By the time the Commission wrote its opinion on remand, the conference had raised its commission to the level offered by the airlines, but the effective commission earned by travel agents remained lower on ocean travel because booking passage by sea requires three to four times as much of a travel agent's time as is required to book air travel. The Commission found that the unanimity rule was responsible for the existing disparity between effective commissions on air and sea travel and for the delays in conference action to rectify the situation. On three specific occasions, lack of unanimity prevented the conference subcommittee from recommending an increase, even though a majority was recorded as being in favor of the proposals. The Commission also referred to several other occasions on which the conference and its subcommittee failed to take action. Because minutes apparently were not taken for these meetings, the Commission was unable to determine with certainty whether the unanimity rule had frustrated the will of a majority on these occasions.
15
The Commission then found that as a result of the relatively advantageous commission on sales of air travel, there was a definite tendency for travel agents to encourage their customers to travel by air rather than by sea. This situation in turn not only injured the majority of the shipping lines by diverting business to the airlines, but also injured the undecided traveler, who lost the opportunity to deal with an agent whose recommendations would not be influenced by his own economic interest. The Commission also found that respondents had failed to establish any important public interest served by the unanimity rule. Under these circumstances the Commission concluded that the rule was detrimental to commerce by fostering a decline in travel by sea, and contrary to the public interest in the maintenance of a sound and independent merchant marine. The Commission also found the rule contrary to the public interest in that it invaded the principles of the antitrust laws more than was necessary to further any valid regulatory purpose.
16
We find the Commission's analysis sound and the evidence in support of its conclusions more than ample. Respondents attack the initial finding that the unanimity rule has blocked the desires of the majority to raise the commission rate, but the argument reduces to an insistence that the Commission establish this point by conclusive proof. It is true that there is no specific evidence in the record revealing that at any of the conference meetings where no action was taken, a majority favored an immediate increase.5 But the Maritime Commission faces no such rigorous standard of proof. The issue to be decided was a purely factual one, and the Commission was entitled to draw inferences as to the wishes of the majority from the record as a whole. The record showed beyond doubt that in several instances a majority of the subcommittee favored an increase, and faced with the lack of proof one way or the other as to the wishes of the majority of the full conference, the Commission acted reasonably in assuming that the views of the subcommittee were not diametrically opposed to that of the entire membership. In addition, it is undisputed that the rule on several occasions operated to prevent a majority of the subcommittee from presenting its recommendations to the full conference, and the Commission could reasonably conclude that this impact on the subcommittee served in itself to delay or prevent action by the full conference. Although any conclusion as to the commission rate that would have prevailed under a different voting procedure must to some extent rest on 'conjecture,' the court below misconceived its reviewing function when it found this a sufficient basis for setting the Commission's finding aside. Having correctly noted that positive proof on various aspects of the case was simply not available one way or the other, the Commission was fully entitled to draw inferences on these points from the incomplete evidence that was available. 'Conjecture' of this kind, when based on inferences that are reasonable in light of human experience generally or when based on the Commission's special familiarity with the shipping industry, is fully within the competence of this administrative agency and should be respected by the reviewing courts.
17
Respondents' attack on the finding that the commission disparity affected the recommendations of travel agents suffers from this same misconception of the Commission's task. It is true that no agent testified that he had ever persuaded a customer to travel by air over the customer's preference to travel by sea. Agents heavily dependent on conference business could hardly be expected to make such an admission, but one agent did go so far as to concede that under some circumstances, there was a 'definite tendency' to encourage a customer to choose air travel because 'it is easier to sell' and 'you make more money.' This amply supports the Commission's conclusion.
18
The final problem is respondents' claim that the rule is justified because none of the member lines, the Americanflag minority in particular, wishes to surrender control over basic financial decisions to a majority of its competitors. This is a bewildering contention, to say the least. The rule may enable a single line to protect itself from a majority decision, but the rule in no way guarantees that line control over its own financial decisions. Lack of unanimity under this particular rule does not leave the lines free to make independent decisions,6 but simply freezes the existing situation. In this way control over the basic financial decisions of all lines is 'surrendered' not to the majority but to any single line that happens to oppose change. We therefore find that the Commission's conclusions with respect to the unanimity rule were supported by substantial evidence and should have been upheld by the Court of Appeals.
IV.
19
The tying rule is imposed by the second conference involved in these cases. the Trans-Atlantic Passenger Steamship Conference. This conference is composed of the major lines providing passenger service between America and Europe, and it has substantially the same membership as the conference which is formally responsible for the unanimity rule already considered. The tying rule prohibits all travel agents authorized to book passage for the member lines 'from selling passage tickets for any steamer not connected with the fleets of the member Lines.' The rule does not prohibit these agents from arranging air travel.
20
As the Commission correctly noted, this rule seriously interferes with the purposes of the antitrust laws. Under the Sherman Act, any agreement by a group of competitors to boycott a particular buyer or group of buyers is illegal per se. United States v. General Motors, 384 U.S. 127, 146—147, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); Klor's v. Broadway-Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). And the conference's tying rule specifically injures three distinct sets of interests. It denies passengers the advantages of being able to deal with a travel agent who can sell any means of travel. It denies agents the ability to serve passengers who wish to travel on nonconference lines. Most important, it denies nonconference lines the opportunity to reach effectively the 80% of all transatlantic steamship passengers who book their travel through conference-appointed agents.
21
Given these effects of the rule, which are not seriously disputed, it was incumbent upon the conference to establish a justification for the rule in terms of some legitimate objective. One of the possible purposes of the rule is to eliminate the competition of the nonconference lines, but this is not a permissible objective under the Shipping Act, see Federal Martime Board v. Isbrandtsen Co., 356 U.S. 481, 491—493, 78 S.Ct. 851, 2 L.Ed.2d 926 (1958), and respondents quite properly do not press it. Respondents do contend, however, that the rule is justified as a means of preserving the stability of the conference. By choosing and supervising responsible agents who will book steamship passage only for its members, the conference creates an incentive for members to remain in the conference and for other lines to join. The Commission found no indication, however, that elimination of the rule would in fact jeopardize the stability of the conference. Although no evidence in the record actually tends to refute respondents' theory,7 it is also clear that respondents failed to come forward with any evidence to support their claim. The theory was therefore insufficient to justify the undeniable injury to interests ordinarily protected by the antitrust laws.
22
Equally insubstantial is the second justification presented by respondents, that the conference members bear the expense of selecting and supervising qualified agents and that other lines who wish to take advantage of these efforts should pay their fair share by joining the conference. The Commission found that most of the expenses incurred by the conference were in fact reimbursed by the agents themselves through annual fees. Many of the promotional activities were paid for by individual lines, and in addition these arrangements often required matching contributions by the agents. In light of these factors the Commission properly concluded that although the conference's efforts might entitle it to exercise some control over the agents' activities, there was no justification for completely prohibiting the agents from dealing with nonconference lines.
23
These circumstances taken together provide substantial support for all three of the Commission's findings—that the rule is detrimental to the commerce of the United States by injuring passengers, agents, and nonconference lines, that the rule is unjustly discriminatory as between conference and nonconference carriers, and that the rule is contrary to the public interest by unnecessarily invading the policies of the antitrust laws.
V.
24
For the reasons indicated the Commission properly disapproved the tying and unanimity rules involved in these cases. These proceedings were commenced more than eight years ago, and this is the second time the controversy has been appealed to the reviewing courts. On the second appeal to the Court of Appeals, that court took the extraordinary course of simply reversing, without remanding to the Commission for further action. Since we have found that the Commission's findings and order are supported by substantial evidence, and since there are no other meritorious contentions raised by the respondents, we think it is time for a final disposition of the proceedings. The judgment of the Court of Appeals is reversed, and the cases are remanded with directions to affirm the order of the Commission.
25
It is so ordered.
26
Reversed and remanded with directions.
27
Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
28
Mr. Justice HARLAN, concurring in the result.
29
I concur in the result reached by the Court, substantially for the reasons stated in the Court's opinion. However, I cannot join in the Court's general statements, ante, at 244—246, concerning the relationship between the antitrust laws and the 'contrary to the public interest' standard of § 15 of the Shipping Act. It seems plain that the 'contrary to the public interest' test was intended to comprehend factors unique to the shipping industry as well as those embodied in the antitrust laws. Hence, I believe that under the Act the Commission may not place upon a shipping conference the burden of justifying an agreement until the Commission has determined that in light of both shipping and antitrust factors the agreement would be 'contrary to the public interest' in the absence of further explanation.
1
39 Stat. 728, as amended 46 U.S.C. § 801 et seq.
2
See Hearings before Antitrust Subcommittee of House Committee on the Judiciary, on Monopoly Problems in Reguulated Industries: Ocean Freight Industry, 86th Cong., 1st and 2d Sess., ser. 14, Pt. 1, Vols. I—V, and Pt. 2, Vols. I—II (1959—1960), 87th Cong., 1st Sess., ser. 10, Pt. 3, Vols. I—II (1961); Hearings before Special Subcommittee on Steamship Conferences of House Committee on Merchant Marine and Fisheries, Steamship Conference Study, 86th Cong., 1st Sess., Pts. 1—3 (1959); H.R.Rep. No. 1419, 87th Cong., 2d Sess. (1962).
3
75 Stat. 762.
4
For this reason the Commission's antitrust standard is entirely consistent with respondents' evidence of a congressional recognition at the time the 'contrary to the public interest' test was added in 1961, that 'our traditional antitrust concepts cannot be fully applied to this aspect of international commerce.' S.Rep. No. 860, 87th Cong., 1st Sess., 2 (1961) U.S. Code Congressional and Administrative News, p. 3109 (emphasis added). And for the same reason respondents' reliance on Seaboard Air Line R. Co. v. United States, 382 U.S. 154, 86 S.Ct. 277, 15 L.Ed.2d 223 (1965), and Minneapolis & St. Louis R. Co. v. United States, 361 U.S. 173, 80 S.Ct. 229, 4 L.Ed.2d 365 (1959), is misplaced. The antitrust standard formulated here is in full accord with the kind of accommodation between antitrust and regulatory objectives approved by this Court in those cases. Indeed we have stressed that such an accommodation does not authorize the agency in question to ignore the antitrust laws. E.g., McLean Trucking Co. v. United States, 321 U.S. 67, 79—80, 64 S.Ct. 370, 88 L.Ed. 544 (1944).
5
Respondents correctly point out that there is no support for the Commission's finding that the majority of the members were unable to act at the meeting of February-March 1956 because of a veto exercised by one line. It does appear that at the meeting of May 3, 1960, a majority favored an increase, but the memorandum disclosing this does not indicate clearly whether the majority preferred to put the increase into effect immediately, or favored the actual decision to defer consideration.
6
Compare IATA Traffic Conference Resolution, 6 C.A.B. 639. 645 (1946). These airline conferences leave the individual members free to initiate their own rates when unanimous agreement cannot be reached.
7
The Commission's reference to the fact that the Caribbean cruise trade operates without a tying rule does not seem to meet respondents' contention. Since the Carbbean cruise trade operates without a conference at all, the lack of a tying rule would in no way indicate the extent to which such a rule tends to strengthen membership in conferences.
| 89
|
390 U.S. 261
88 S.Ct. 929
19 L.Ed.2d 1090
VOLKSWAGENWERK AKTIENGESELLSCHAFT, Petitioner,v.FEDERAL MARITIME COMMISSION et al.
No. 69.
Argued Nov. 13, 1967.
Decided March 6, 1968.
[Syllabus from pages 261-262 intentionally omitted]
Walter Herzfeld, New York City, and Richard A. Posner, Washington, D.C., for petitioner.
Robert N. Katz, Sol., Federal Maritime Commission, Washington, D.C., and Gary J. Torre, San Francisco, for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner, a German manufacturer of automobiles, is one of the largest users of the ports on the West Coast of the United States, delivering through them more than 40,000 vehicles each year, the majority transported there by vessels chartered by the petitioner rather than by common carrier. This case grows out of the petitioner's claim that charges imposed upon the unloading of its automobiles at Pacific Coast ports are in violation of the Shipping Act, 1916, as amended. 39 Stat. 728, 46 U.S.C. § 801 et seq. The dispute has a long and somewhat complicated history.
2
The Pacific Maritime Association (the Association) is an employer organization of some 120 principal common carriers by water, stevedoring contractors, and marine terminal operators, representing the Pacific Coast shipping industry. The primary function of the Association is to negotiate and administer collective bargaining contracts with unions representing its members' employees, of which the International Longshoremen's and Warehousemen's Union (ILWU) is one. in late 1960 the Association and ILWU reached a milestone agreement which, it was hoped, would end a long and troubled history of labor discord on the West Coast waterfront.1 The ILWU agreed to the introduction of labor-saving devices and the elimination of certain restrictive work practices. In return, the Association agreed to create over the period from 1961 to 1966 a 'Mechanization and Modernization Fund' of $29,000,000 (the Mech Fund) to be used to mitigate the impact upon employees of technological unemployment.2 The agreement specifically reserved to the Association alone the right to determine how to raise the Mech Fund from its members, at the rate of some $5,000,000 a year.
3
A committee of the Association investigated various possible formulas for collecting the Fund from the stevedoring contractors and terminal operators—i.e., those Association members who were employers of workers represented by the ILWU. A majority of the committee recommended that the Mech Fund assessment be based solely on tonnage handled, and this recommendation was adopted by the Association membership.3 Under this formula, general cargo was assessed at 27 1/2¢ per 'revenue ton.'4 A revenue ton is based either on weight (2,000 1bs.=one ton) or measurement (40 cu. ft.=one ton). Whether tonnage declarations on a particular item of cargo were to be by weight or by measurement was to depend, with one exception, upon how that cargo had customarily been manifested (and reported to the Association for dues purposes) in 1959. The one exception was automobiles, for which there had been no uniform manifesting custom.5 The Association decided that automobiles were to be declared by measurement for Mech Fund purposes, regardless of how they were or had been manifested.
4
Unlike shippers by common carrier, the petitioner must arrange and pay for the unloading of its own chartered vessels upon their arrival in port. For this purpose it has since 1954 contracted with Marine Terminals Corporation and Marine Terminals Corporation of Los Angeles (Terminals), which are members of the Association, for the performance of stevedoring and related services in unloading vehicles from the petitioner's chartered ships in West Coast ports, at a negotiated price. Prior to the Mech Fund assessment agreement, Terminals' charge to the petitioner for these unloading services was $10.45 per vehicle, of which about a dollar represented Terminals' profit. When the vehicles were assessed for the Mech Fund by measurement, the assessment came to $2.35 per vehicle—representing, if passed on to the petitioner, an increase in unloading costs of 22.5%.6 If the vehicles had been assessed by weight (0.9 tons) rather than by measurement (8.7 tons),7 the assessment would have been 25¢ per vehicle—an increase of about 2.4%, comparable to the average Mech Fund assessment of 2.2% for all other general cargo. Assessment by measurement rather than by weight thus resulted in an assessment rate for the petitioner's automobiles of 10 times that for other West Coast cargo—although automobiles had less to gain than other cargo from the Mech Fund agreement.8 The petitioner and Terminals both protested these seeming inequities to a committee of the Association set up to handle such claims, but without success.9
5
The petitioner refused to pay any additional charge resulting from the Association's levy, and Terminals, while continuing to unload Volkswagen automobiles for the petitioner, did not pay its resulting assessment to the Association. The Association sued Terminals in a federal court in California for its failure to pay the Mech Fund assessments; Terminals admitted all the allegations of the complaint and impleaded the petitioner as a defendant. The petitioner then obtained a stay of that action to permit it to invoke the primary jurisdiction of the Federal Maritime Commission, in order to determine the following issues:
6
'1. Whether the assessments claimed from (the petitioner) are being claimed pursuant to an agreement or understanding which is required to be filed with and approved by the Federal Maritime Commission under Section 15 of the Shipping Act, 1916, as amended, 46 U.S.C. 814 (1961), before it is lawful to take any action thereunder, which agreement has not been so filed and approved.
7
'2. Whether the assessments claimed from (the petitioner) result in subjecting the automobile cargoes of (the petitioner) to undue or unreasonable prejudice or disadvantage in violation of Section 16 of the Shipping Act, 1916, as amended, 46 U.S.C. 815 (1961).
8
'3. Whether the assessments claimed from (the petitioner) constitute an unjust and unreasonable practice in violation of Section 17 of the Shipping Act, 1916, as amended, 46 U.S.C. 816 (1961).'
9
The petitioner then began the present proceedings by filing a complaint with the Commission raising the above issues. The petitioner alleged that the Association was dominated by common carriers10 which had agreed upon the assessment formula in order to shift a disproportionate share of the Mech Fund assessment onto the petitioner, which did not patronize those common carriers.11 The Commission, after a hearing, upheld the initial decision of its examiner and dismissed the complaint, with two dissents.12 The Court of Appeals for the District of Columbia Circuit affirmed,13 and we granted certiorari to consider important questions under the Shipping Act.14
I.
10
The petitioner's primary contention—supported by the United States, a party-respondent—is that implementation of the Association's formula for levying the Mech Fund assessments was unenforceable, because the agreement among Association members imposing that formula was not filed with the Commission in accord with § 15 of the Act. That section provides that there be filed with the Commission 'every agreement' among persons subject to the Act
11
'fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing or destroying competition; pooling or apportioning earnings, losses, or traffic; allotting ports or restricting or otherwise regulating the number and character of sailing between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement. * * *'15
12
Until submitted to and approved by the Commission, 'it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement * * *.'16 The Commission is directed to disapprove any agreement
13
'that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of (the Act) * * *.'17
14
An agreement filed with and approved by the Commission is immunized from challenge under the antitrust laws.18
15
The Commission held that, although the Mech Fund assessment formula was a 'cooperative working agreement' clearly within the plain language of § 15, it nonetheless was not the kind of agreement required to be filed with the Commission under that section:
16
'Although the literal language of section 15 is broad enough to encompass any 'cooperative working arrangement' entered into by persons subject to the Act, the legislative history is clear that the statute was intended by Congress to apply only to those agreements involving practices which affect that competition which in the absence of the agreement would exist between the parties when dealing with the shipping or traveling public or their representatives.
17
'It is not contested that the membership of (the Association) entered into an agreement as to the manner of assessing its own membership for the collection of the 'Mech' fund. Such an agreement, however, does not fall within the confines of section 15 as, standing by itself, it has no impact upon outsiders. What must be demonstrated before a section 15 agreement may be said to exist is that there was an additional agreement by the (Association) membership to pass on all or a portion of its assessments to the carriers and shippers served by the terminal operators.' 9 F.M.C., at 82 83.
18
The Court of Appeals affirmed. That court felt itself confined by our decision in Consolo v. FMC, 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131, to determining simply whether the Commission's ruling was supported by 'substantial evidence.' With 'due deference to the expertise of the Commission,' it concluded '(albeit with some hesitation) that there is substantial evidence in the record considered as a whole to support the Commission's decision.' 125 U.S.App.D.C., at 290, 371 F.2d, at 755.
19
The issue in this case, however, relates not to the sufficiency of evidence but to the construction of a statute. The construction put on a statute by the agency charged with administering it is entitled to deference by the courts, and ordinarily that construction will be affirmed if it has a 'reasonable basis in law.' NLRB v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170; Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 153—154, 67 S.Ct. 245, 250—251, 91 L.Ed. 136. But the courts are the final authorities on issues of statutory construction, FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904, and 'are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.' NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839. 'The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia * * *.' American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855. Cf. FMB v. Isbrandtsen Co., 356 U.S. 481, 499—500, 78 S.Ct. 851, 862—863, 2 L.Ed.2d 926 (where this Court overturned the Commission's construction of § 14 of the Shipping Act).
20
In limiting § 15 to agreements which 'affect competition' and in finding that the assessment agreement did not so 'affect competition,' the Commission in this case used that phrase in a highly artificial sense—by requiring 'an additional agreement by the (Association) membership to pass on all or a portion of its assessments * * *.' There is no question that the assessment agreement necessarily affected the cost structures of, and the charges levied by, individual Association members. Most, though not all, of the stevedoring contractors and terminal operators did pass the assessment on. The economic realities were such that many of them had no choice—a fact of which they apprised the Association at the time the assessment arrangement was being devised.19 In the case of Terminals, the assessment it had to pay on Volkswagen automobiles was more than twice its profit margin.
21
The Commission thus took an extremely narrow view of a statute that uses expansive language. In support of that view, the Commission argued in this Court that a narrow construction of § 15 should be adopted in order to minimize the number of agreements that may receive antitrust exemption. However, antitrust exemption results, not when an agreement is submitted for filing, but only when the agreement is actually approved; and in deciding whether to approve an agreement, the Commission is required under § 15 to consider antitrust implications.20 FMC v. Aktiebolaget Svenska Amerika Linien, 390 U.S. 238, 88 S.Ct. 1005, 19 L.Ed.2d 1071; see also Isbrandtsen Co. v. United States, 93 U.S.App.D.C. 293, 211 F.2d 51.21
22
The Commission itself has not heretofore limited § 15 to horizontal agreements among competitors, but has applied it to other types of agreements coming within its literal terms. See, e.g., Agreements Nos. 8225 and 8225—1, Between Greater Baton Rouge Port Commission and Cargill, Inc., 5 F.M.B. 648 (1959), affirmed, Greater Baton Rouge Port Commission v. United States, 5 Cir., 287 F.2d 86, and Agreement No. T—4: Terminal Lease Agreement at Long Beach, California, 8 F.M.C. 521 (1965), applying § 15 to lease agreements.22 In the latter case, decided only four months before its decision in the case before us, the Commission said:
23
'Section 15 describes in unambiguous language those agreements that must be filed; it does not speak of agreements per se violative of the Sherman Act.
24
Since the wording of section 15 is clear, we need not refer to the legislative history; there is simply no ambiguity to resolve.' 8 F.M.C., at 531.
25
To limit § 15 to agreements that 'affect competition,' as the Commission used that phrase in the present case, simply does not square with the structure of the statute.23
26
The legislative history offers no support for a different view. The genesis of the Shipping Act was the 'Alexander Report' in 1914.24 FMB v. Isbrandtsen Co., 356 U.S. 481, 490, 78 S.Ct. 851, 857, 2 L.Ed.2d 926. While it is true that the attention of that congressional committee was focused primarily upon the practices that had cartelized much of the maritime industry, it is clear that the concerns of its inquiry were far more broadly ranging. The report summed up the testimony before the committee:
27
'Nearly all the steamship line representatives * * * expressed themselves as not opposed to government supervision * * * and approval of all agreements or arrangements which steamship lines may have entered into with other steamship lines, with shippers, or with other carriers and transportation agencies. On the other hand, the shippers who appeared as witnesses * * * were in the great majority of instances favorable to a comprehensive system of government supervision * * * (and) the approval of contracts, agreements, and arrangements, and the general supervision of all conditions of water transportation which vitally affect the interests of shippers.' Alexander Report, at 418. (Emphasis added.) The committee recommended, among other things:
28
'That all carriers engaged in the foreign trade of the United States, parties to any agreements, understandings, or conference arrangements hereinafter referred to, be required to file for approval * * * a copy of all written agreements (or a complete memorandum if the understanding or agreement is oral) entered into (1) with any other steamship companies, firms, or lines engaged directly or indirectly in the American trade, or (2) with American shippers, railroads or other transportation agencies.' Alexander Report, at 419—420.
29
Nothing in the legislative history suggests that Congress, in enacting § 15 of the Act, meant to do less than follow this recommendation of the Alexander Report and subject to the scrutiny of a specialized government agency the myriad of restrictive agreements in the maritime industry.25
30
This is not to say that the Commission is without power to determine, after appropriate administrative proceedings, that some types or classes of agreements coming within the literal provisions of § 15 are of such a de minimis or routine character as not to require formal filing. Since the Commission's decision in the present case, Congress has explicitly given it such authority:
31
'The Federal Maritime Commission, upon application or on its own motion, may by order or rule exempt for the future any class of agreements between persons subject to this chapter or any specified activity of such persons from any requirement of this chapter, or Intercoastal Shipping Act, 1933, where it finds that such exemption will not substantially impair effective regulation by the Federal Maritime Commission, be unjustly discriminatory, or be detrimental to commerce.
32
'The Commission may attach conditions to any such exemptions and may, by order, revoke any such exemption.'26 46 U.S.C. § 833a (1964 ed., Supp. II).
33
But the agreement with which we deal here—levying $29,000,000 over five years, binding all principal carriers, stevedoring contractors, and terminal operators on the Pacific Coast, and necessarily resulting in substantially increased stevedoring and terminal charges—was neither de minimis nor routine. We hold that this agreement was required to be filed under § 15 of the Act.
34
It is to be emphasize that the only agreement involved in this case is the one among members of the Association allocating the impact of the Mech Fund levy. We are not concerned here with the agreement creating the Association or with the collective bargaining agreement between the Association and the ILWU. No claim has been made in this case that either of those agreements was subject to the filing requirements of § 15. Those agreements, reflecting the national labor policy of free collective bargaining by representatives of the parties' own unfettered choice, fall in an area of concern to the National Labor Relations Board, and nothing we have said in this opinion is to be understood as questioning their continuing validity. But in negotiating with the ILWU, the Association insisted that its members were to have the exclusive right to determine how the Mech Fund was to be assessed, and a clause to that effect was included in the collective bargaining agreement. That assessment arrangement, affecting only relationships among Association members and their customers, is all that is before us in this case. Moreover, so far as the record shows, only the assessment on automobiles is now challenged, and there is no reason to suppose that the Commission will not consider expeditious approval of so much of the agreement as is not in dispute.
II.
35
The petitioner also attacked the Association's assessment of its automobiles under § 16 and § 17 of the Shipping Act. Section 16 makes it unlawful 'to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage,'27 and s 17 forbids any 'unjust or unreasonable' regulation or practice 'relating to or connected with the receiving, handling, storing, or delivering of property.'28 The Commission ruled that neither of these sections had been violated, and the Court of Appeals affirmed.
36
If the agreement is now filed under § 15, the Commission will be called upon again to consider the effect of §§ 16 and 17, since an agreement that violates a specific provision of the Act must be disapproved.29 Accordingly, it is not inappropriate, without now passing upon the ultimate merits of the §§ 16 and 17 issues, to give brief consideration to the Commission's handling of those issues upon the present record.
37
The Commission ruled that the petitioner had failed to demonstrate any 'undue or unreasonable prejudice or disadvantage' under § 16 solely because it had not shown any unequal treatment as between its automobiles and other automobiles or cargo competitive with automobiles. In so ruling, the Commission applied the 'competitive relationship' doctrine which it has developed in cases concerning rates for carriage of goods by sea.30 But the Commission, in cases not involving freight rates and the particularized economics that result from a vessel's finite cargo capacity,31 has often found § 16 violations even in the absence of a 'competitive relationship.' See, e.g., Practices, etc., of San Francisco Bay Area Terminals, 2 U.S.M.C. 588 (1941) and 709 (1944), and Storage Practices at Longview, Washington, 6 F.M.B. 178 (1960), involving storage charges; and, New York Foreign Freight Forwarders and Brokers Ass'n v. FMC, 2 Cir., 337 F.2d 289, involving freight forwarders' fees. In a proceeding subsequent to its decision in the present case, the Commission explicitly dispensed with the competitive relationship requirement with respect to port 'free time.' Investigation of Free Time Practices Port of San Diego, 9 F.M.C. 525 (1966); cf. State of California v. United States, 320 U.S. 577, 64 S.Ct. 352, 88 L.Ed. 322. See also Investigation on Household Goods, North Atlantic Mediterranean Freight Conference, F.M.C. Docket No. 66—49 (June 30, 1967). When the agreement in the present case is filed, the Commission may consider anew whether the mere absence of a competitive relationship should foreclose further § 16 inquiry.32
38
With respect to § 17, the Commission found that the assessment upon the petitioner's automobiles was not 'unreasonable,' because the petitioner had received 'substantial benefits' in return for the assessment, and there was no showing of a deliberate intent to impose an unfair burden upon the petitioner. This, we think, reflects far too narrow a view of § 17. It may be that a relatively small charge imposed uniformly for the benefit of an entire group can be reasonable under § 17, even though not all members of the group receive equal benefits. See Evans Cooperage Co. v. Board of Commissioners of the Port of New Orleans, 6 F.M.B. 415.33 But here a relatively large charge was unequally imposed. The benefits received by the petitioner may have been substantial, but other cargo received greater benefits at one-tenth the cost.34 Moreover, the question of reasonableness under § 17 does not depend upon unlawful or discriminatory intent. As the Commission itself has said:
39
'(Sections 16 and 17) proscribe and make unlawful certain conduct, without regard to intent. The offense is committed by the mere doing of the act, and the question of intent is not involved.' Hellenic Lines Ltd.—Violation of Sections 16 (First) and 17, 7 F.M.C. 673, 675—676 (1964).
40
Cf. United States v. Illinois Central R. Co., 263 U.S. 515, 523—526, 44 S.Ct. 189, 192—194, 68 L.Ed. 417; ICC v. Chicago Great Western R. Co., 209 U.S. 108, 28 S.Ct. 493, 52 L.Ed. 705.
41
The question under § 17 is not whether the petitioner has received some substantial benefit as the result of the Mech Fund assessment, but whether the correlation of that benefit to the charges imposed is reasonable. The 'substantial benefits' measure of unreasonableness used by the Commission in this case is far too blunt an instrument. Nothing in the language or history of the statute supports so tortured a construction of the phrase 'just and reasonable.' The Commission has cited no similar construction of the phrase by any other regulatory agency or court. Indeed, in past decisions the Commission itself has not applied any such test. See California Stevedore & Ballast Co. v. Stockton Elevators, Inc., 8 F.M.B. 97 (1964), and Practices, etc., of San Francisco Bay Area Terminals, 2 U.S.M.C. 588 (1941), affirmed, State of California v. United States, 320 U.S. 577, 64 S.Ct. 352, 88 L.Ed. 322, where the Commission found violations of § 17 even though the benefits received were clearly substantial. The proper inquiry under § 17 is, in a word, whether the charge levied is reasonably related to the service rendered.
42
The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
43
It is so ordered.
44
Judgment reversed, and case remanded for proceedings consistent with opinion.
45
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
46
Mr. Justice HARLAN, concurring.
47
Although I agree with the conclusions reached by the Court in this case, I deem it desirable to amplify the reasons, as I see them, for what is decided today. More especially, I think that further justification is needed for the Court's decision (1) that the 'assessment agreement' falls within the Commission's jurisdiction under s 15 notwithstanding its intimate connection with the underlying collective bargaining agreement; and (2) that the Commission should give further consideration to the §§ 16 and 17 issues notwithstanding that it has already determined them.
I.
48
The Pacific Maritime Association is a multi-employer collective bargaining group. Its 'assessment agreement' directly in question here is closely related to a collective bargaining agreement covering a subject about which employers are required to bargain, 'terms and conditions of employment.'1 This underlying labor agreement was, according to apparently unanimous industry and expert opinion, a highly desirable step forward in the shipping industry.
49
Multi-employer collective bargaining units have long been recognized as among the unit classifications that the National Labor Relations Board may deem 'appropriate.' In National Labor Relations Board v. Truck Drivers Local Union No. 449, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676 we held that Congress intended
50
'that the Board should continue its established administrative practice of certifying multi-employer units, and intended to leave to the Board's specialized judgment the inevitable questions concerning multi-employer bargaining bound to arise in the future.' Id., at 96, 77 S.Ct. at 647.
51
We specifically referred to longshoring as an industry with a long history of multi-employer bargaining, and we noted
52
'cogent evidence that in many industries the multi-employer bargaining basis was a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining.' Id., at 95, 77 S.Ct. at 647.
53
The Board has authorized a multi-employer bargaining unit for West Coast shipping, and the labor agreement that forms the background to this case is additional 'cogent evidence.'
54
At the same time, the very existence of multi-employer units, and the obvious need for the employers involved to agree on collective policy, must invariably have competitive effects. The signatories to a collective bargaining agreement are frequently, by the very act of signing, agreeing with their own competitors on matters such as labor costs, certain nonlabor costs, services to be provided to the public, and (indirectly) price increases.
55
Multi-employer collective bargaining must therefore be reconciled with the sometimes competing policies of federal laws promoting and regulating competition, viz., the antitrust laws and, in the case of maritime labor relations, the Shipping Act. This is a problem on which Congress has provided relatively little direct guidance,2 but it is one of a kind that the Court has repeatedly grappled with since Allen Bradley Co. v. Local Union No. 3, etc., 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939. It is a problem of line-drawing.
56
The Court, noting that the assessment agreement levied $29,000,000, thus 'necessarily resulting in substantially increased stevedoring and terminal charges,' ante, at 277, holds that the assessment agreement must be filed under § 15 of the Act. It says that the underlying labor agreement is not before us and the 'continuing validity' of that agreement is not brought into question by today's decision. Ante, at 278.
57
On the other hand, my Brother DOUGLAS argues that on the Court's premise the assessment agreement could not be distinguished from any collective bargaining agreement that 'raised labor costs beyond the point at which PMA members could be expected to absorb those costs without raising prices or charges.' Post, at 313. He further contends that if part of a collective bargaining agreement is subject to Commission approval, this will stifle labor negotiation.3 Consequently, he suggests that a proper accommodation between 'labor' and 'competition' interests can be reached by exempting both labor agreements and labor-related agreements from the filing requirement of § 15 but leaving them subject to the specific prohibitions of the antitrust laws and §§ 16 and 17 of the Shipping Act.
58
This suggested accommodation seems to me demonstrably wrong. In the first place, as the Court notes, the filing requirement of § 15 was drafted broadly, and the filing-and-approval process includes review of questions arising under §§ 16 and 17, and specifically creates an exemption from antitrust attack. Hence, if the question were simply whether substantive challenge to a maritime agreement (dealing with labor or with any other matter) is to take place in advance of implementation of the agreement or, instead, during its operation, I should have thought it clear that Congress chose the former alternative. Furthermore, I would find it very difficult to see why provision for advance approval and exemption of labor-related agreements would not be preferable, from the standpoint of facilitating collective bargaining, to the 'wait-and-see' approach.
59
The real difficulty in this case is not to distinguish between agreements that must be filed and agreements whose impact on competition will be evaluated after implementation, but to define the Commission's jurisdiction in such a way that (whether challenges arise before or after implementation) the Commission will not improperly be brought into labor matters where it does not belong. The Court's only suggestion is that the labor agreements involved in this case 'fall in an area of concern to the National Labor Relations Board.' Ante, at 278.
60
More circumspect analysis than this is needed, I believe. In the first place, since the later validity and antitrust immunity of all agreements subject to § 15 depend upon filing, it is desirable that signatories to agreement be given more precise instructions than that they need not file if they are in an area of Labor Board 'concern.' Furthermore, I see no warrant for assuming, in advance, that a maritime agreement must always fall neatly into either the Labor Board or Maritime Commission domain; a single contract might well raise issues of concern to both.
61
The Commission took the position that § 15 of the Act, requiring filing, was meant to apply 'only to those agreements involving practices which affect that competition which in the absence of the agreement would exist between the parties when dealing with the shipping or traveling public or their representatives.'4 I agree with the Court's conclusion that proper application of that principle to this case would require the opposite result from the one the Commission reached. The difficulty, however, is that the principle is excessively broad: any significant multi-employer agreement on economic matters 'affects competition' with respect to prices and services to the public, even if it is a collective bargaining agreement or an employer agreement collateral thereto.
62
Since maritime employers are permitted to bargain as a group, and since they are required to bargain about certain subjects, the resulting agreements must have some exemption from the filing requirements of § 15 and from successful challenge under the antitrust laws or under the substantive principles in §§ 16 and 17 of the Shipping Act. The exact extent of the 'labor exemption' or 'labor immunity' from statutes regulating competition has troubled this Court before;5 however, since no collective bargaining agreement in the maritime industry is now before us, it would be inappropriate to suggest the affirmative extent of the immunity. The important point in this case is an opposite and two-edged one: the assessment agreement before us is not immune or exempt, for it raises 'shipping' problems logically distinct from the industry's labor problems; at the same time, Commission review itself must be circumscribed by the existence of labor problems that it is not equipped to resolve.
63
The assessment agreement was, of course, consequent upon the labor agreement committing PMA to raise the fund. The union side was concerned with a guarantee that the fund would be raised somehow, and the labor agreement guaranteed only that much. But whenever any multi-employer bargaining unit agrees to provide benefits for employees there arises a problem of how to allocate the costs among the various employers and (in consequence) among their customers.
64
Often, the 'allocation' decision follows directly from the terms of the labor agreement. In the case of a multi-employer agreement to raise wages, for example, each employer simply bears the cost of benefiting his own employees. In the present case, had it been possible to make the levy on each employer directly proportional to, and roughly simultaneous with, the savings to that employer from modernization, two things would have followed: the 'allocation' decision could be said to stem directly from the terms of the labor agreement, and the modernization program would 'pay for itself' as it went along, leaving shipping customers unaffected.
65
The PMA, however, did not (and presumably could not) apportion costs in this manner. To the extent that, under the plan chosen, individual employers were unable to absorb the levy and debit it against future savings from modernization, the decision how much each employer was to pay necessarily affected that employer's customers as a class. To the extent that the plan went on to determine which of an employer's customers would ultimately pay which share of an employer's dues, the agreement also made choices among customers of an individual employer.
66
The Commission nevertheless held that the agreement did not 'affect competition' because there was 'no agreement' to pass the levy on to individual customers. Whether the error be deemed one of 'fact' or one of 'law' these conclusions are irreconcilable with reality. Terminal companies such as MTC compete with each other for the business of unloading Volkswagens. The allocation agreement involved in this case increases the cost to a terminal company of unloading one Volkswagen by $2.35. This is a substantial (25%) increase in the company's cost for handling this one product. Since the mechanization and modernization program is not expected to produce a significant (much less a compensatory) saving in the other costs of handling Volkswagens, no terminal company could, in the long run, 'absorb' this cost: companies do not absorb costs that are not expected to pay dividends in the future.6 MTC's only choice was whether to pass the $2.35 on directly to Volkswagen or to pass it on to its other customers in the form of higher charges or lower future savings from mechanization. Since the latter alternative would presumably have driven these other customers to deal with other terminal companies not bearing the Volkswagen curse, MTC was in practice compelled to pass at least a large part of the additional cost on to Volkswagen.
67
The statements of numerous officials of the participating companies to the effect that there were no 'agreements' affecting Volkswagen (statements constituting in large part the 'substantial evidence' on which the Commission is supposed to have relied, 125 U.S.App.D.C., at 291, 371 F.2d, at 756), are at best quibbles about the meaning of words. The members of the Association must be taken to have agreed to the obvious consequences of the paper they all signed. That paper did not destroy price competition for Volkswagen's trade; nor would a specific agreement to 'pass on' the additional $2.35 charge have done so. But the allocation agreement made Volkswagen a less desirable customer to each and every terminal company unless it did pass on the $2.35 charge. How the Commission could conclude that this collective imposition, by the terminal companies on themselves, of a heavy tax for handling one kind of product did not 'affect' competition among them for the trade of shippers of that product I simply cannot understand.
68
Commission review of the fairness of the agreement allocating the cost burden of mechanization does not mean Commission review of a labor agreement and does not imply consequences in conflict with national labor policy. Whether to mechanize, or otherwise modernize, and what provision should be made for displaced workers, are obviously matters of union concern, and negotiations about these things should be governed by the law of collective bargaining. Resolution of such questions by a decision to create a 'Mech Fund' gave rise to a subsidiary 'allocation' question. The union was concerned that the question receive some answer, but had no proper interest in which of the possible cost allocation plans was adopted, so long as any such plan raised the amount promised. On the other hand, in the present case no one has suggested that Maritime Commission review of a particular method of cost allocation may properly reach the question whether the obligation necessitating the allocation should have been entered into, or that the Commission may reject an allocation plan when there are no preferable alternative routes to collection of the necessary amount. Review of the fairness and propriety of a taxing scheme is not the same thing as reviewing the fairness and propriety of the uses to which the tax money, once collected, is put. When the Court notes that only the assessment agreement must be filed and examined, it seems clear that it contemplates a Commission examination starting from the premise that the obligation to collect the Mech Fund will be fulfilled; at issue will be only the propriety of the choice of the route to that objective.7
II.
69
With respect to the §§ 16 and 17 issues, I consider that the Commission's approach to those questions rested, as indeed the Court's opinion now intimates, upon an erroneous understanding of the 'assessment agreement' necessitating reconsideration of those matters on remand of the case.
70
The agreement that was before the Commission was, so far as appears, quite unlike any agreement that body had considered before. It dealt neither with a charge for particularized services in the carrying, handling, or storage of goods, nor with how such services would be provided. Rather, the agreement levied a 'tax' on Association members, a tax which (insofar as the modernization program did not directly 'pay its own way') would be passed on to members' customers and ultimately to the public. The tax would be used to pay for a general benefit to the shipping industry, but the allocation of that tax bore no direct relationship to benefits received by customers.
71
The Court holds that it was error for the Commission to reject challenges to this agreement under § 16 simply because there was no showing that the tax was discriminatory as between competitive customers. It declares that such a rule may be sound in cases involving rates for sea carriage of goods because of the 'particularized economics' resulting from the finite capacity of ships, but that it is not sound elsewhere, including this case, for unspecified reasons.
72
On the surface, it might appear that the argument should be the other way around: it makes some sense to speak of an 'undue or unreasonable preference or advantage' to, say, watermelons over automobiles when they are 'competing' for a finite amount of shipping space; it becomes much more difficult to find anything that can be called a 'preference' between such products with respect to any services that are available to both in unlimited quantities.
73
My Brother DOUGLAS states that the Commission has consistently adhered to its insistence upon a competitive relationship between the product preferred and the product disadvantaged, except where 'there are services that are not dependent upon the nature of the cargo and the various charges therefor.' Post, p. 314, n. 30. Yet, if ever it was clear that 'the nature of the (products)' was not the basis for a difference in rates, it is in this case.
74
The true solution of the matter, it seems to me, is that in each situation the problem has been to devise some workable basis for determining whether rates are fair vis-a -vis other rates,. It simply would not be feasible, as the Second Circuit has noted,8 to assess the fairness of charges for shipping heavy industrial equipment by comparison with the cost of shipping bananas. The notion of a 'preference' for bananas over heavy equipment is simply too elusive to be implemented. At the same time, when the service rendered is, for example, procuring insurance or arranging for cartage, the nature of the product has very little to do with either the value to the customer of the services rendered or the cost of supplying them; in such cases the Commission has quite reasonably held that charging different classes of shippers different amounts for equivalent services may be preferential.9
75
In the present case, the problem before PMA was the allocation of a pre-specified total cost among its various members and their customers. Since this was very much a case of first impression, the Commission would have done well to go back to the language of § 16, which proscribes any 'undue or unreasonable preference or advantage to any * * * description of traffic in any respect whatsoever.'10 Certainly, since a 'modernization tax' on any one group of customers lowered, by an equivalent amount, the cost of modernization to others obligated to pay for it, an unfair allocation of the burden could properly be described as a 'preference' between that 'description of traffic' bearing a heavy burden and that 'description of traffic' whose burden was correspondingly lightened.
76
The real difficulty in this case is to formulate a workable definition of whether the burdens have been 'unfairly' allocated. Obviously, as the debates in the PMA indicate, there was no 'perfect' way to apportion the costs. Any analysis of the present problem much leave room for the implementation of some uniform, practical, general rule of assessment even though it have some features that are less desirable than some alternative imperfect rule. The difficulty with the method of assessment adopted by PMA is that it was not uniform and general but made special provision for automobiles. The fact that all automobiles are treated alike should not have prevented the Commission from inquiring whether special treatment for this class of goods was necessary under the circumstances and, if so, whether the special rule adopted was the fairest that could be devised.
77
The Commission's interpretation of § 17 was also erroneous. The Commission held that since petitioner received substantial benefits from the modernization program it would not make minute inquiry into whether petitioner's benefits precisely corresponded to the costs imposed. The first difficulty is with the conclusion that petitioner received 'substantial benefits.' Petitioner apparently is not in a position to profit appreciably from maritime modernization. Petitioner will, of course, benefit from any lessening of labor disputes in shipping and related services; but the only disruptions that are avoided by the labor agreement reached here are those that would otherwise have resulted from the efforts of other shippers and of maritime employers to institute the very modernization practices that will not benefit petitioner. It may be that those who will directly benefit from modernization and those who will benefit only from increased stability during the course of a modernization program in which they have no interest (and which others have imposed on them) should both pay part of the cost of the Mech Fund. However, the existence of such a categorical difference between the benefits received by different groups should at least invite inquiry whether charges are as appropriately proportioned as would be feasible.
78
In fact, the tax assessed is not 'equal' as between Volkswagen and other shippers who will benefit more. The charge to MTC per Volkswagen was figured on a different basis from the assessments for handling other products; the figure reached was a substantially higher percentage of existing costs and charges; and the figure was so high that the additional cost apparently could not be absorbed and debited against future savings from modernization but had to be passed on to the customer. Of course charges need only be 'reasonably' related to benefits, and not perfectly or exactly related, Evans Cooperage Co. v. Board of Commissioners of the Port of New Orleans, 6 F.M.B. 415, 418, but in this case inquiry ceased before it had reached even that nearer point.
79
Finding no disagreement in principle between myself and the Court, I join the Court's opinion upon the premises stated in this opinion.
80
Mr. Justice FORTAS, concurring in the judgment.
81
I agree with the judgment and with Part I of the opinion herein. I do not understand that the Court's opinion purports to determine the effect of §§ 16 and 17, and I believe that the Court certainly should not do so. I do not join Part II of the opinion dealing with these sections.
82
Mr. Justice DOUGLAS, dissenting in part.
83
I believe the Court has misconstrued § 15 of the Shipping Act, 1916;1 and I fear that its erroneous construction will cause serious disruption in the process of collective bargaining in the maritime industry. If the tariff exacted from petitioner is discriminatory or unreasonable, §§ 16 and 17 of the Shipping Act2 provide a remedy. If it violates the antitrust laws, there is also a remedy, as I shall indicate. But to require the funding part of maritime collective bargaining agreements to receive prior approval from the Maritime Commission is to use a sledge hammer to fix a watch. I cannot read § 15 so as to attribute to Congress such a heavy-handed management of sensitive labor problems.
84
The collective bargaining agreement involved in this case, with its Mechanization and Modernization Fund (Mech Fund), cannot be evaluated properly without an understanding or maritime labor relations and technological developments in the shipping industry.
85
The history of maritime labor relations in this country has been punctuated with lengthy major strikes and continuous minor disruptions.3 The maritime industry has long been faced with problems of instability—economic and managerial. Employment for maritime workers is generally both irregular and insecure.4 That condition lies behind the large number of major strikes and work stoppages on our coasts.
86
Because the shipping industry is vitally important both to our national commerce and national defense, the Federal Government has maintained a special interest in trying to promote its growth and stability. The Shipping Act, 1916, is one example of this concern.5 With respect to maritime labor relations, however, the activities of the Federal Government were, until our entry into World War I, primarily devoted to laws protecting or disciplining seamen as individual workers. The war years saw the Government actively encouraging collective bargaining in the maritime industry, its efforts resulting by 1920 in a significant expansion of collective bargaining. There followed a general retrogression, with wages and working conditions reaching low levels. That condition prevailed until the highly disruptive and violent Pacific Coast strike of 1934.
87
That strike was the product of deepseated grievances of maritime employees regarding low wages and poor working conditions.6 The situation on the Atlantic Coast was not much better. Although an agreement was reached in late 1934 for Atlantic Coast Workers, labor relations remained unstable and work stoppages were rampant. On both coasts, intra-union and inter-union disagreements, coupled with employer-union hostility, made agreement highly difficult. Quickie strikes dotted the ports, and another general strike followed in 1936. On the Pacific Coast, the employers and the ILWU (which had achieved recognition after the 1934 strike) were in constant conflict through 1948, when still another general strike erupted. This period, from 1934 to 1948, has been aptly described as something like 'class warfare.'7 As one commentator put it:
88
'The ILWU (then a part of the AFL International Longshoremen's Association) gained formal employer recognition as a result of the general strike of 1934, which followed years of exploitation and abuse of longshoremen by their employers. The bitterness which had characterized the industry carried over into the subsequent employer-union relationship. The employers did their best to break the union, and the union retaliated just as militantly. The years which followed were among the stormiest in U.S. labor history. Between 1934 and 1948, the West Coast had over 20 major port strikes, more than 300 days of coastwide strikes, about 1,300 local 'job action' strikes, and about 250 arbitration awards.'8
89
During the stormy 1930's, the Federal Government was greatly expanding its role in labor relations. The NIRA and NLRA greatly revied unionism among both seamen and longshoremen in addition to workers in other industries. Those Acts guaranteed the right of collective bargaining and offered a means for recognition of unions; the unions gained members and strength. And with stronger unions, collective bargaining became more widespread. But the explosive situation in the maritime industry was not solved by these general enactments, and Congress passed a series of laws to deal with the labor problems in that industry. First was the Merchant Marine Act, 1936, 49 Stat. 1985, creating a United States Maritime Commission to investigate conditions of seamen on ships and to determine minimum wage scales and working conditions on vessels that were receiving government subsidies. Despite the 1936 Act, labor relations did not improve significantly; and Congress in 1938 amended the Act, creating a Maritime Labor Board (MLB) with the duty of encouraging collective bargaining and assisting in the peaceful settlement of labor disputes through mediation. A provision of the 1938 amendment, § 1005, 52 Stat. 967, required all maritime employers to file with the MLB within 30 days a copy of every contract with any group of its employees covering wages, hours, rules, and working conditions. Any new contract or change in an existing contract also had to be filed with the Board. The contracts did not require approval by the Board, but were to be used to assist the Board in its mediation activities and in its promotion of peaceful settlement of labor disputes.9
90
The Board was instructed in the 1938 Act to submit to Congress by 1940 its recommendations for establishing a permanent federal maritime labor policy ensuring stable labor relations. The Board in its 1940 report concluded that conditions in the industry were still uneasy, and recommended a permanent federal body with wide jurisdiction over questions of maritime labor—including representation10 and settlement of disputes. The 1938 Act provided that the Board was to be discontinued in 1941; but in 1940 Congress extended its life until mid-1942 to permit further studies by the Board and Congress. Nothing more was done until 1955 when Congress again turned its attention specifically to the problems of maritime labor relations.11 In the meantime, the MLB had expired. Although several bills were introduced providing for specialized federal control over maritime labor relations, no special machinery was established; and the maritime industry remains subject to the various provisions of federal labor laws.12
91
In 1948 another general maritime strike rocked the Pacific Coast. Following that strike, which lasted about 100 days, there was a 'period of relative claim.'13 The 1948 strike had led to a change in employer leadership, a less hostile attitude on the part of the union leadership, and a consequent lessening of tension along the Pacific Coast. Both sides recognized that the reduction of strife was desirable since a substantial amount of traffic had been diverted from the Pacific Coast to other ports or to other means of transportation on account of chronic maritime labor difficulties and work stoppages. But despite the reduction in hostility between labor and management, solutions to problems were not readily forthcoming. Business was bad for the shipping companies—foreign competitors had cut heavily into the market, and a decline in business meant less work for both seamen and longshoremen. Modernization was sorely needed, but it was also greatly feared, for mechanization would cut out jobs. But without improved techniques and facilities, the employers could not regain a strong competitive position.14 In addition to lack of modern equipment, employers were further hampered by highly restrictive work rules that had been in effect since the 1930's, such as multiple handling,15 sling-load weight,16 and gangsize restrictions.17
92
It is only against this background of chronic strikes and restrictive labor practices that the tremendous impact of the Mech Fund can be appreciated. That was the heard of the 1960—1961 settlement. As noted by one commentator intimately acquainted with the negotiations of the parties, '(t)his agreement did not spring full-blown from the brow of Zeus, of from the brain of Bridges.'18 Rather, '(t)he agreement, which was hammered out in 5 months of negotiations ending in October 1960, culminated 4 years of discussion between the PMA and the ILWU.'19
93
Earnest bargaining began in 1957. PMA wanted to obtain a guarantee from the ILWU that strikes and work stoppages would not result from the introduction and use of mechanization and other labor-saving devices. In return, the union wanted it workers to share in the cost savings resulting from modernization, and desired assurances that changes in work methods would neither create unsafe working conditions nor accelerate the productivity required of individual workers. After two years of preliminary negotiations, an agreement was made in August 1959 which provided for a further study of the problems of mechanization and for the establishment by PMA of a fund of $1,500,000 for the benefit of union workers.20
94
Negotiations beginning in May 1960 led to a 'Memorandum of Agreement on Mechanization and Modernization,' concluded in October 1960, and providing for a $29,000,000 trust fund to be financed by PMA. The fund was to consist of the $1,500,000 due under the 1959 agreement plus another $27,500,000 to be accumulated over a five-and-one-half-year period at the rate of $5,000,000 per year. The fund was to be used to protect longshoremen and marine clerks from the consequences of reduced employment caused by mechanization. The agreement was to enter into force upon approval by the members of PMA and the ILWU, and was to expire on July 1, 1966.21 The agreement also provided management with the relatively free rein it had sought to eliminate restrictive work practices. The former practice of multiple handling was eliminated, and the minimum size of a gang for loading and unloading operations was specified. The sling-load limit for loads was to remain unchanged if the manner of operation was the same as when the limit was first negotiated; otherwise, the employer could set the weight, provided that he acted 'within safe and practical limits and without speed up of the individual.'
95
Thus, the agreement satisfied the desire of employers to modernize and eliminate outmoded and restrictive work rules, and at the same time provided a measure of security for the workers whose jobs would be affected by the use of the new devices. The agreement, however, left open the question of how the employers' contributions of $5,000,000 a year would be raised. The question of a proper method of assessment had been discussed by the union and management during the preceding negotiations; several suggestions were offered by the parties. But in return for a commitment from the PMA members obligating themselves individually and collectively to the payment of the fund, the ILWU agreed to permit PMA to establish the method of payment.
96
PMA then set up a Work Improvement Fund Committee to determine the best method of raising the money. That Committee considered various bases for assessing contributions—man-hours of each employer, cargo tonnage, a combination of the two, cargo tonnage moving in containers, measurement of improvements in longshore productivity. The Committee majority recommended a cargo tonnage basis; its reasons for doing so were summarized by the court below as follows:
97
'The Committee recommended a formula based on cargo tonnage as a 'rough-and-ready' way to divide the cost, admittedly lacking the refinement of the productivity measurement method but also lacking its infeasibility and avoiding the inequity of the man-hour method whereby contributions are in inverse proportion to benefits received. It considered that cargo volume though not necessarily proportional was some indicator of stevedoring activities and that administrative simplicity was a cardinal consideration.
98
'The Committee recognized further that there were also objectionable features of the tonnage formula but considered these to be less weighty than the objections inhering in the other formulae. It recommended that the formula be reviewed to prevent the continuation of any hardship or inequity that might develop.'22
99
In recommending the tonnage formula, the Committee noted that the same system was used for assessing a part of PMA dues. It had also been the practice of PMA to use a tonnage formula for assessments allocating other types of labor costs, such as joint maintenance of dispatch halls and the payment of arbitrators' salaries.23 In fact, it appears that the ILWU had itself proposed a tonnage formula during the negotiations and asked that it be incorporated into the collective bargaining agreement; but PMA resisted this approach, apparently wishing to keep its options open and fearing that incorporation in the agreement might tend to commit the PMA to a fixed formula that would also be included in a future agreement. The tonnage formula recommended by the Committee was subsequently adopted by the PMA membership.
100
It was specifically provided in the agreement that each employer would abide by the formula adopted by the Association; and this promise to comply was the quid pro quo for the union's agreement not to write any particular formula into the contract or take part in the determination of the method of assessment.24 Thus the PMA decision on the method of assessment was part and parcel of the collective bargaining agreement. Indeed, the modernization plan was the heart of that agreement, and the subsequent assessment plan merely implemented the employers' duty under the collective bargaining agreement to establish a fund specifically marked to protect maritime workers against the far-reaching effects of modernization.
101
PMA treated the financing of the fund as an integral part of the collective bargaining process. The Committee established by PMA to recommend a funding formula was appointed by the negotiating committee which worked on the collective bargaining agreement;25 and the PMA membership ratified both the collective bargaining agreement and the funding formula at the same time.
102
It is not, I submit, possible, as a practical matter, to separate the Mech Fund provision in the collective bargaining agreement from the subsequent decision of the PMA membership concerning how the fund was to be raised. A collective bargaining agreement is the product of negotiations. How can negotiators sitting at a table arrive at an agreement if they know that a major part of it depends on the approval of the Federal Maritime Commission? How many months—or years—will it take to get approval? What will happen meanwhile? Will not the imposition of that kind of administrative supervision bring an end to, or at least partially paralyze, collective bargaining?
103
The Mech Fund is a labor expense. Increased labor costs normally are passed on at least in part by increased prices. When the Auto Workers were recently negotiating with General Motors for a guaranteed annual wage, what would have been the consequence if nothing could have been decided until a federal agency had determined whether the impact on prices or on the economy was proper? I can imagine a regime of total controls where such prior approval would be required. But we have no such regime at present; and I can see no possible justification for a judicially created one in the explosive maritime field. To meet the costs increased by any collective bargaining agreement, a company might have to raise its prices and pass at least part of the added cost on to the consumer. But this happens all the time in the maritime industry, as well as in other industries, and does not constitute rate fixing of the type at which the Shipping Act is aimed. There is nothing in the legislative history of the Shipping Act which suggests that § 15 gives the FMC the power or license to oversee labor negotiations. But that is the effect of what the Court does today when it decides that the employers' agreement here must be submitted to that body for approval.
104
My Brother HARLAN suggests that the assessment agreement can be distinguished from the collective bargaining agreement because '(t)he union was concerned that the question (of how the cost burden of the fund was to be allocated) receive some answer, but had no proper interest in which of the possible cost allocation plans was adopted * * *.' (Ante, at 290.) But to argue that the union does not care from what source the PMA gets the money for the fund is both questionable26 and irrelevant, for such an approach ignores the fact that there are two parties to a collective bargaining agreement. The PMA members do care how they will be assessed $27,500,000 for a fund dedicated to the benefit of their employees. The Mech Fund was the key provision in the agreement, and without it there may well have been no agreement at all. The parties should not be expected to wait to settle their differences while the FMC decides under § 15 whether the employers' funding plan is in the public interest. Speedy resolution of labor disputes by collective bargaining has been the consistent federal policy.
105
The Solicitor General would have us atomize the collective bargaining agreement and treat the schedule of charges that create the fund as a mere 'side agreement.' But without the so-called 'side agreement' there would have been no collective bargaining agreement. And it must be remembered that § 15, if applicable, requires that an agreement be filed 'immediately with the Commission.' What would have to be filed is the entire agreement, not merely the proviso to which petitioner now objects. The Commission then must give notice and a hearing and 'disapprove, cancel or modify' the agreement. Which persons would be entitled to participate in the hearing presents an initial problem.27 Thereafter, what provisions would become the target in the hearing is conjectural. The target might be small or large. But certainly no collective bargaining agreement could become operative until its underpinning—the fund—was thoroughly litigated. Meanwhile years might pass as the contest wound its way slowly through various tribunals and the labor problems continued to fester.
106
This is what my Brother HARLAN overlooks when he suggests that advance approval of 'labor-related agreements' might be more desirable from the standpoint of facilitating collective bargaining than leaving open the question whether the agreement, or parts of it, would be subject to the antitrust laws. Presumably, he means that legal uncertainty concerning the possible vulnerability of certain provisions of an agreement to attack under the antitrust laws might stall negotiations or lead some association members to decline to cooperate in carrying out the agreement, fearing a trebledamage action. To be sure, the parties to a collective bargaining pact must frame their agreement to fit within the standards of the antitrust laws or any other governing statutes. But without a requirement of advance approval of the terms of the agreement, they remain free to bargain speedily. Frustration of the collective bargaining process comes not so much from the possibility that one or more provisions in a collective bargaining pact might be found illegal at some future date under the antitrust laws, or other statutes such as §§ 16 and 17 of the Shipping Act, but rather from the undue and possibly lengthy freezing or stultification of solutions to troublesome labor problems while an intimate part of the proposed agreement is sent to the FMC for approval.
107
With all respect, the Court's approach in requiring the funding plan to be submitted to the FMC for approval under § 15 of the Shipping Act will frustrate legitimate and speedy collective bargaining in the maritime industry. Neither the Court nor my Brother HARLAN is able to refer to any legislative history which indicates that Congress considered the Shipping Act to require the filing of labor agreements or provisions of those agreements under § 15.28 The Court instead takes the approach that the Shipping Act provisions were purposely drawn broad enough to encompass association agreements which have more than a de minimis effect on commerce. This rationale would require the filing of any collective bargaining provision agreed to by PMA members that raised labor costs beyond the point at which PMA members could be expected to absorb those costs without raising prices or charges.
108
The Court may well mean, as my Brother HARLAN suggests, that the 'obligation to collect the Mech Fund,' contained in the collective bargaining agreement, is not to be examined by the Commission on remand, but rather the question is to be limited to the 'propriety of the choice of the route to that objective.' But that misses the mark. My point is that the latter question is as much a part of the bargaining process as the former. Commission control over either question runs substantial risk of frustrating agreement by the parties on both issues, not to mention other matters in the collective bargaining pact. For example, if an allocation formula satisfactory to PMA members and to the Commission could not be devised, the fund might never be established, requiring perhaps other changes in the agreement, such as higher wages or continuance of some or all of the restrictive work rules.
109
If the present practice is an abuse, there is an existing remedy. This agreement between employers could of course be challenged in the courts as violative of the antitrust laws.29 Moreover, §§ 16 and 17 of the Shipping Act afford protection to foreign commerce in cases of undue discrimination or unreasonable practices affecting that commerce. While I cannot say that the Commission erred in finding no violation of § 16, I concur in a remand to the Commission for further findings under § 17.30 If the finding is for petitioner, there may be an incidental and after-the-fact effect on the provisions of the collective bargaining agreement. But it will not produce the paralyzing effect which will follow when prior approval is required. The application of §§ 16 and 17 in particular instances can indeed realistically be compared with enforcement of federal antitrust laws directed against specific practices.
1
All parties agree that this agreement was an enlightened forward-looking step in West Coast longshore labor relations. See Kossoris, Working Rules in West Coast Longshoring, 84 Monthly Labor Rev. 1 (1961); Killingsworth, The Modernization of West Coast Longshore Work Rules, 15 Ind. & Lab.Rel.Rev. 295 (1962); ILWU (American Mail Line), 144 N.L.R.B. 1432, 1442 (1963).
The agreement was not signed in final form until November 15, 1961, although it was implemented in many respects prior to that date.
2
The agreement has been continued, and the Mech Fund is still being collected and paid out.
3
A minority of the committee recommended that the Mech Fund be raised by the same formula by which the Association's dues were levied—a formula combining both tonnage handled and manhours employed, in a ratio of 40/60.
Although the Mech Fund was initially assessed entirely on the basis of tonnage, the formula was later amended to assess employers of marine clerks on a manhour basis. About 12% of the fund was collected in this way.
4
Bulk cargo was assessed at 5 1/2¢ per revenue ton. In December 1961, the rates were increased to 28 1/2¢ for general cargo and 9¢ for bulk cargo.
5
On chartered vessels automobiles are manifested on a unit basis (showing weight and sometimes measurement). On common carriers both weight and measurement are shown. In coastwise trade automobiles are manifested by weight.
6
Some time after the assessment agreement was implemented, Terminals' charge to the petitioner exclusive of the assessment decreased. The amount of the decrease does not appear in the record.
7
These figures represent a weighted average of the petitioner's two model lines at the time of the assessment agreement. Passenger models were 0.8 ton by weight and 7.8 tons by measurement; unloading costs initially increased an estimated 22%. Transporter models were 1.1 tons by weight and 11.4 tons by measurement; unloading costs initially increased an estimated 31%.
8
When the Mech Fund agreement was reached, the unloading of automobiles was already so highly mechanized that there was little likelihood of improvement. Hence shippers of automobiles stood to receive from the agreement only the general benefits of a stable labor situation, such as freedom from strikes and slowdowns.
9
The committee did make downward adjustments for scrap metal and lumber.
10
By virtue of the Association's bylaws, carriers control the Board of Directors and all membership votes. Both the committee which devised the assessment formula and the one which later ruled on claims of inequities were made up entirely of carriers; neither committee had a single member who was a stevedoring contractor or terminal operator.
11
The petitioner is the largest shipper of dry cargo by charter to West Coast ports. It ships more than 75% of its vehicles by charter and most of the rest by common carriers which are not members of the Association. About two-thirds of all automobiles imported through West Coast ports are Volkswagens. It appears that no other importer of automobiles through West Coast ports uses chartered vessels.
Most, but not all, of the stevedoring contractors and terminal operators passed the Mech Fund assessment on to their customers. In most instances these customers were common carriers who were members of the Association. The member carriers did not pass the assessment on to shippers. Hence, except in situations like the petitioner's, the cost of the Mech Fund was borne by Association members.
12
Volkswagenwerk Aktiengesellschaft v. Marine Terminals Corp., 9 F.M.C. 77.
13
Volkswagenwerk Aktiengesellschaft v. FMC, 125 U.S.App.D.C. 282, 371 F.2d 747.
14
388 U.S. 909, 87 S.Ct. 2109, 18 L.Ed.2d 1345.
15
'Every common carrier by water, or other person subject to this chapter, shall file immediately with the Commission a true copy, or, if oral, a true and complete memorandum, of every agreement with another such carrier or other person subject to this chapter, or modification or cancellation thereof, to which it may be a party or conform in whole or in part, fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying competition; pooling or apportioning earnings, losses, or traffic; allotting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement. The term 'agreement' in this section includes understandings, conferences, and other arrangements.' 46 U.S.C. § 814.
The original statute in 1916 required filing with the United States Shipping Board. 39 Stat. 728, 729, 733. The Shipping Board was succeeded in 1933 by the United States Shipping Board Bureau of the Department of Commerce, Exec. Order No. 6166, § 12 (1933); in 1936 by the United States Maritime Commission, 49 Stat. 1985; in 1950 by the Federal Maritime Board, 64 Stat. 1273; and in 1961 by the Federal Maritime Commission, 75 Stat. 840. In this opinion the Federal Maritime Commission and its predecessors are collectively referred to as the Commission.
16
'Any agreement and any modification or cancellation of any agreement not approved, or disapproved, by the Commission shall be unlawful, and agreements, modifications, and cancellations shall be lawful only when and as long as approved by the Commission; before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement, modification, or cancellation; except that tariff rates, fares, and charges, and classifications, rules, and regulations explanatory thereof (including changes in special rates and charges covered by section 813a of this title which do not involve a change in the spread between such rates and charges and the rates and charges applicable to noncontract shippers) agreed upon by approved conferences, and changes and amendments thereto, if otherwise in accordance with law, shall be permitted to take effect without prior approval upon compliance with the publication and filing requirements of section 817(b) of this title and with the provisions of any regulations the Commission may adopt.' 46 U.S.C. § 814.
17
'The Commission shall by order, after notice and hearing, disapprove, cancel or modify any agreement, or any modification or cancellation thereof, whether or not previously approved by it, that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter, and shall approve all other agreements, modifications or cancellations. No such agreement shall be approved, nor shall continued approval be permitted for any agreement (1) between carriers not members of the same conference or conferences of carriers serving different trades that would otherwise be naturally competitive, unless in the case of agreements between carriers, each carrier, or in the case of agreements between conferences, each conference, retains the right of independent action, or (2) in respect to any conference agreement, which fails to provide reasonable and equal terms and conditions for admission and readmission to conference membership of other qualified carriers in the trade, or fails to provide that any member may withdraw from membership upon reasonable notice without penalty for such withdrawal.
'The Commission shall disapprove any such agreement, after notice and hearing, on a finding of inadequate policing of the obligations under it, or of failure or refusal to adopt and maintain reasonable procedures for promptly and fairly hearing and considering shippers' requests and complaints.' 46 U.S.C. § 814.
18
'Every agreement, modification, or cancellation lawful under this section, or permitted under section 813a of this title, shall be excepted from the provisions of sections 1—11 and 15 of Title 15, and amendments and Acts supplementary thereto.' 46 U.S.C. § 814.
19
The dissenting opinion of Commissioner Patterson vigorously attacked the Commission's finding that there was no implied understanding among the Association members that the assessment would be passed on. 9 F.M.C., at 101—104. The Court of Appeals found considerable evidence in support of Commissioner Patterson's view. 125 U.S.App.D.C., at 290, n. 7, 371 F.2d, at 755, n. 7. However, applying the substantial evidence rule, the court upheld the Commission's finding, although indicating that it might have found the facts differently itself. 125 U.S.App.D.C., at 290—291, 371 F.2d, at 755—756.
20
One of the standards for approval under § 15, added in 1961, 75 Stat. 763, is whether or not the agreement is 'contrary to the public interest.' See n. 17, supra. 'We think it now beyond dispute that 'the public interest' within the meaning of section 15 includes the national policy embodied in the antitrust laws.' Mediterranean Pools Investigation, 9 F.M.C. 264, 280.
Any agreement subject to § 15 filing that is not both filed and approved is not only illegal under § 15 but also subject to attack under the antitrust laws. Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 932, 86 S.Ct. 781, 15 L.Ed.2d 709, 851.
21
'(T)he Shipping Act specifically provides machinery for legalizing that which would otherwise be illegal under the antitrust laws. The condition upon which such authority is granted is that the agency entrusted with the duty to protect the public interest scrutinize the agreement to make sure that the conduct thus legalized does not invade the prohibitions of the anti-trust laws any more than is necessary to serve the purposes of the regulatory statute.' 93 U.S.App.D.C., at 299, 211 F.2d, at 57.
22
See also statement of Commission Chairman Harllee requesting from Congress the authority for the Commission to exempt from § 15 such otherwise included agreements as those between two freight forwarders in different ports to perform services for each other. H.R.Rep. No. 2248, 89th Cong., 2d Sess., 4—5, U.S.Code Congressional and Administrative News, p. 4194 (1966).
23
Section 15 requires filing of 'every agreement' in any of seven categories, and one of the seven comprises all agreements which 'regulat(e) * * * competition.' See n. 15, supra. The other six categories would be rendered virtually meaningless by the Commission's construction.
24
House Committee on Merchant Marine and Fisheries, Report on Steamship Agreements and Affiliations, H.R.Doc. No. 805, 63d Cong., 2d Sess., 415—424 (1914).
25
The recommendations of the Alexander Report were incorporated into both the House and Senate Reports on the Shipping Act. H.R.Rep. No. 659, 64th Cong., 1st Sess., 27—32 (1916); S.Rep. No. 689, 64th Cong., 1st Sess., 7—12 (1916).
26
The need for this provision is set forth in S.Rep. No. 1459, 89th Cong., 2d Sess., 2 (1966):
'The Federal Maritime Commission under the Shipping Act, 1916, regulates certain operations of water carriers and other persons subject to the act which have only slight effect on the foreign commerce of this country and are not significant in the overall design of regulation contemplated by the 1916 act. Exacting compliance with the act under these circumstances has proven unnecessarily costly to the carrier and the Government.
'The authority conferred under this legislation will relieve the Commission and affected carriers or an undue regulatory burden. In addition, a general exemption will preclude the necessity for a piecemeal approach in the future.'
Prior to this 1966 amendment, the Commission had taken some steps to protect itself from de minimis filings. In Section 15 Inquiry, 1 U.S.S.B. 121 (1927), the Commission held 'routine' intraconference changes and transactions not subject to § 15. In Oranje Line v. Anchor Line, 6 F.M.B. 199, 209 (1961), the Commission construed its decision in Los Angeles By-Products Co. v. Barber S.S. Lines, 2 U.S.M.C. 106 (1939), as holding joint advertising not subject to § 15. Proceeding under general power to issue regulations conferred on it in 1961, 46 U.S.C. § 841a, the Commission exempted at least once class of de minimis agreements in 46 CFR § 530.5(d)(4) and (5), dealing with certain terminal agreements.
27
'It shall be unlawful for any common carrier by water, or other person subject to this chapter, either along or in conjunction with any other person, directly or indirectly—
'First. To make or give any undue or unreasonable preference or advantage to any particular person, locality, or description of traffic in any respect whatsoever, or to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever * * *.' 46 U.S.C. § 815.
28
'Every such carrier and every other person subject to this chapter shall establish, observe, and enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering of property. Whenever the Board finds that any such regulation or practice is unjust or unreasonable it may determine, prescribe, and order enforced a just and reasonable regulation or practice.' 46 U.S.C. § 816.
29
See n. 17, supra.
30
See, e.g., Boston Wool Trade Assn. v. M. & M.T. Co., 1 U.S.S.B. 24 (1921); Eagle-Ottawa Leather Co. v. Goodrich Transit Co., 1 U.S.S.B. 101 (1926); Philadelphia Ocean Traffic Bureau v. Export S.S. Corp., 1 U.S.S.B. 538 (1936); Huber Mfg. Co. v. N. V. Stoomvaart Maatschappij 'Nederland,' 4 F.M.B. 343 (1953); West Indies Fruit Co. v. Flota Mercante, 7 F.M.C. 66 (1962).
31
See S. Bross, Ocean Shipping 189—190 (1956); C. Cufley, Ocean Freights and Chartering 400—407 (1962).
32
The Interstate Commerce Commission has a competitive relationship rule with respect to § 3(1) of the Interstate Commerce Act, 54 Stat. 902, 49 U.S.C. § 3(1), Rheem Mfg. Co. v. Chicago, R.I. & P.R. Co., 273 I.C.C. 185; United States v. Great Northern R. Co., 301 I.C.C. 21. However, that Commission has said:
'This Commission has never held that competition is an indispensable element in a situation of undue prejudice and preference, although it has frequently said that 'ordinarily,' or 'generally,' a competitive relation must appear.' Joseph A. Goddard Realty Co. v. New York, C. & St. L.R. Co., 229 I.C.C. 497, 501.
33
In the Evans Cooperage case the Commission upheld a uniform wharfage charge which was imposed on all those who used the wharf, even though the various users of the wharf did not all receive precisely equal benefits from it. But the Commission looked beyond 'substantial benefits' to the relationship between the service and the charge:
'The (Commission of the Port of New Orleans) has made a charge to help defray its costs of operating facilities as measured by cargo handled in the area and the only question is whether its facilities are being used and the commission is performing a service reasonably related to its charges. The Examiner considered the evidence and found that it was.' (Emphasis added.) 6 F.M.B., at 418—419.
34
See n. 8, supra.
1
61 Stat. 142, 29 U.S.C. § 158(d).
2
Section 6 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 17, provides that '(t)he labor of a human being is not a commodity or article of commerce.' Section 15 of the Shipping Act, 39 Stat. 733, 46 U.S.C. § 814, provides that agreements filed and approved by the Commission 'shall be excepted from the provisions of sections 1—11 and 15 of Title 15 (antitrust provisions) * * *.'
3
Of course, Congress did not, in § 15 require 'good' agreements to be filed and exempt bad ones. Nor did Congress provide a special exemption for cases in which it would create a special hardship to require filing of an agreement that was not filed when it should have been. My Brother DOUGLAS is making a much more relevant and serious point than that the Court's decision will do incidental damage to a 'good' agreement.
4
9 F.M.C., at 82.
5
E.g., United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626; Local Union No. 189, Amalgamated Meat Cutters and Butcher Workmen v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640; cf. Kennedy v. Long Island R. Co., 2 Cir., 319 F.2d 366, 372—374. In United Mine Workers the Court said, 'We think it beyond question that a union may conclude a wage agreement with the multi-employer bargaining unit without violating the antitrust laws * * *.' 381 U.S., at 664, 85 S.Ct. at 1590. It seems equally obvious that the employers are not violating the antitrust laws either when they confer about wage policy preparatory to bargaining or when they sign an agreement.
6
The fact that the figure $2.35 was in fact arithmetically larger than MTC's computed profit per Volkswagen on the accounting basis MTC used is of course not in itself critical. If MTC's computed profit per vehicle had been $2.36, it would have had nevertheless to make up the $2.35 additional cost somewhere.
7
The fact that the 'labor' agreement and the 'assessment' agreement were on different pieces of paper is of course not critical. What is important is that the whole process raised both labor problems and distinct shipping problems. It would not be impossible for there to be a single agreement raising some problems of Labor Board 'concern' and other, separate problems appropriate to Commission review.
8
New York Foreign Freight Forwarders and Brokers Ass'n v. FMC, 2 Cir., 337 F.2d 289, 299.
9
Ibid.; see, e.g., Investigation of Free Time Practices Port of San Diego, 9 F.M.C. 525.
10
46 U.S.C. § 815.
1
Section 15 provides, in relevant part, that every person subject to the Shipping Act 'shall file immediately with the Commission' every agreement with another person subject to the Act:
'fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying competition; pooling or apportioning earnings, losses, or traffic; allotting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement.' 46 U.S.C. § 814 (§ 15).
The Commission is instructed in § 15 to 'disapprove, cancel or modify any agreement' which it finds, after notice and hearing, to be 'unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States the their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter * * *.'
Any agreement which is not approved, or which is disapproved, by the Commission is declared by § 15 to be 'unlawful.' And it is also provided that 'before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement * * *.'
2
Those sections read, in relevant part:
'It shall be unlawful for any * * * person subject to this chapter, either alone or in conjunction with any other person, directly or indirectly * * * to subject and particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever * * *.' 46 U.S.C. § 815 (§ 16).
'Every * * * person subject to this chapter shall establish, observe, and enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering of property. Whenever the Board finds that any such regulation or practice is unjust or unreasonable it may determine, prescribe, and order enforced a just and reasonable regulation or practice.' 46 U.S.C. § 816 (§ 17).
3
For a comprehensive study of the history of labor relations in the maritime industry up to 1940, see Maritime Labor Board, Report to the President and to the Congress, H.R.Doc. No. 646, 76th Cong., 3d Sess. (1940). For a valuable history of maritime labor relations on the West Coast, see B. Schneider, Industrial Relations in the West Coast Maritime Industry, Institute of Industrial Relations, University of California (Berkeley, 1958).
4
Longshoremen and seamen depend, of course, on the amount of work to be done. If business is bad, the workers are without work and without pay. With respect to longshoremen on the Pacific Coast, hiring is done through hiring halls operated jointly by the union and management. Employers can obtain longshoremen only through these halls, and only for specific jobs. No longshoreman may be employed steadily by any one employer; rather, each is dispatched to an employer as part of a gang to perform a specific loading or unloading job. See Kossoris, Working Rules in West Coast Longshoring, 84 Monthly Labor Rev. 1 (1961), for an account of the hiring practice on the West Coast.
5
This Act was the direct result of the Alexander Report of 1914. House Committee on Merchant Marine and Fisheries, H.R.Doc. No. 805, 63d Cong., 2d Sess. (1914).
6
In that strike the International Longshoremen's Association demanded wage increases, a six-hour day, a closed shop, and union control of hiring halls. The employers refused to accede to these demands, and the ensuing strike tied up shipping for almost three months at all Pacific ports. President Roosevelt appointed a National Longshoremen's Board to intervene, after a mediation board had failed to settle the dispute. The union and management agreed to submit to arbitration by the Board, and to end the strike while arbitration was proceeding. Both sides agreed to abide by the Board's decision. The arbitration proceedings took several months, and the award which was eventually rendered represented substantial gains for the union. Hiring halls were to be operated jointly, wage increases were granted, and a six-hour day established. In addition, port labor relations committees were established on which both employers and the union were represented equally; and all issues not decided by those committees were to be submitted to arbitration.
7
Killingsworth, The Modernization of West Coast Longshore Work Rules, 15 Ind. & Lab.Rel.Rev. 295, 296 (1962).
8
Kossoris, supra, n. 4, at p. 1.
9
It was noted in a 1941 House Committee Report on a bill providing for a two-year extension of the MLB that the MLB was the 'only Government agency with which copies of all labor agreements are required to be filed and these have been studied by the Board with a view to promoting stable labor relations in the maritime industry.' House Committee on Merchant Marine and Fisheries, Two-Year Extension of the Maritime Labor Board, H.R.Rep. No. 354, 77th Cong., 1st Sess., 2 (1941).
10
Under the 1938 Act, questions of representation were reserved to the NLRB. Section 1002 of the Merchant Marine Act, as amended, provided that:
'The provisions of this title shall not in any manner affect or be construed to limit the provisions of the National Labor Relations Act, nor shall any of the unfair labor practices listed therein be considered a dispute for the purposes of this title. Questions concerning the representation of employees of a maritime employer shall be considered and determined by the National Labor Relations Board in accordance with the provisions of the National Labor Relations Act: Provided, however, That nothing in this title shall constitute a repeal or otherwise affect the enforcement of any of the navigation laws of the United States or any other laws relating to seamen.' 52 Stat. 965.
11
Hearings on H.R. 5734, before the House Committee on Merchant Marine and Fisheries, 84th Cong., 1st and 2d Sess. (1955 1956).
12
See, e.g., Hanna Mining Co. v. District 2, Marine Engineers Beneficial Ass'n, 382 U.S. 181, 86 S.Ct. 327, 15 L.Ed.2d 254 (pre-emption of state law by federal labor enactments); McCulloch v. Sociedad Nacional, etc., 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (jurisdiction of NLRB over employees of foreign-flag ships); Marine Engineers Beneficial Ass'n v. Interlake S.S. Co., 370 U.S. 173, 82 S.Ct. 1237, 8 L.Ed.2d 418 (pre-emption); Marine Cooks and Stewards v. Panama S.S. Co., 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797 (application of Norris-LaGuardia Act); Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (application of Labor Management Relations Act to disputes between maritime employees and foreign ships); International Longshoremen's & Warehousemen's Union v. Juneau Spruce Corp., 342 U.S. 237, 72 S.Ct. 235, 96 L.Ed. 275 (right of action by employer against union under § 303(a)(4) of L.M.R.A.); NLRB v. Pittsburgh S.S. Co., 337 U.S. 656, 69 S.Ct. 1283, 93 L.Ed. 1602 (unfair labor practice); Southern S.S. Co. v. NLRB, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246 (representation; refusal to bargain); NLRB v. Waterman S.S. Corp., 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. 704 (unfair labor practice).
13
Kossoris, supra, n. 4, at p. 2.
14
As one commentator noted in 1961:
'The longshore industry is technologically among the most backward. An industrial engineer from any one of the mass production industries would be horrified to find sacks of coffee on the San Francisco docks being handled just as they have been handled since sailing ship days. No one of the many separate corporate links in the transportation chain has sufficient interest in greater efficiency to force the changes in coffee handling methods, for example, which, to be effective, must start in Brazil and be carried right through to Hills Brothers or Folgers in San Francisco.' Fairley, The ILWU-PMA Mechanization and Modernization Agreement, 12 Lab.L.J. 664, 665 (1961).
The first big change in technology along the docks, notes Mr. Fairley, was the use of lift trucks, propelled by wartime demands for greater efficiency during World War II. Since that time, new methods of bulk handling of cargo have been developed, and unit loads have been increasingly used (such as those made by gluing items together or strapping them together or containerizing them). Id., at 666. One of the most efficient operations of containerization has been used by the Matson Navigation Co. In August 1964 that company cut its rates by nearly 10%, citing cost reductions made possible by a ship improvement and 'containerization' plan. The plan relates to container cargo, where the containers are boxes holding up to 40 tons of freight. They are loaded at a factory or distribution point and lifted aboard a ship and unloaded as single units. Matson Co. reported that it took about 850 manhours to load and unload a specially designed container ship carrying 6,500 tons using mechanized equipment. The same cargo carried in conventional loose form would take 11,000 man-hours (about 13 times as much labor) to load and unload. An added attraction of this saving in time is the fact that ships get in and out of port faster, providing additional cost savings. For example, Matson's container ships stay in port less than a day, compared with five days for a conventional ship. Shippers estimate that it cost in 1964 about $3,000 to $5,000 for such things as depreciation, seamen's wages and pier charges for each day a ship stays in port. The Wall Street Journal, Nov. 20, 1964, at 8, col. 2. For a more thorough consideration of the changes in technology that promise great benefits for the shipping industry, see the comprehensive eight-volume study of the United States Department of Labor, Manpower Utilization, Job Security in the Longshore Industry (1964). See also Shils, Industrial Unrest in the Nation's Maritime Industry, 15 Lab.L.J. 337, 356—358 (where the author notes improvements in construction of vessels, the use of highly mechanized cargo ships, changes in engine room operation, in the Deck Department and in the Steward Department, and a new line of semi-automated vessels); O. Hagel & L. Goldblatt, Men and Machines, Joint Publication of the I.L.W.U. and P.M.A. (San Francisco, 1963).
15
Multiple handling refers to the labor practice requiring the cargo to touch the 'skin of the dock' after being unloaded before someone other than a longshoreman can handle it. For loading of cargo, only the longshoreman can place it on the ship after a teamster has unloaded it from his truck onto the dock. Kossoris, supra, n. 4, at 2.
16
Sling-load weight is the weight limit for a load of cargo. In 1961 the maximum weight was usually about 2,100 pounds per pallet (although much heavier loads apparently could have been carried safely). Larger pallets were 'skimmed down' to 2,100 pounds by longshoremen. Ibid.
17
Each major port would have its own rules stipulating the number of men needed on gangs. Frequently, the number was more than was needed for the job. For example, the 'four-on four-off' gang required eight men in the hold of a ship, although only four actually worked while the other four rested. Id., at 3. See generally Killingsworth, supra, n. 7; P. Hartman, Union Work Rules: A Brief Theoretical Analysis and Some Empirical Results, U. of Ill.Bull., Institute of Labor & Industrial Relations (1967).
18
Fairley, supra, n. 14, at 666.
19
Kossoris, supra, n. 4, at 1.
20
Although the method of raising this amount of money was not specified in the agreement, PMA accumulated the fund by assessing its members under a man-hour formula.
21
In August 1966 a new agreement was signed which continued the Mech Fund until 1971; but this time the employers agreed to pay even more into the fund each year—$6,900,000. Both the union and the employers were highly satisfied with the way the plan had worked. For a general description of the 1966 contract, see Business Week, July 30, 1966, at 108; Kossoris, 1966 West Coast Longshore Negotiations, 89 Monthly Labor Rev. 1067. Kossoris points out the great effect which abolition of restrictive work practices and increased use of modern technology had had for the employers: 'Tonnage increased by about 32 percent; but man-hours remained about the same. Despite an increase over the period of 56 cents in the basic wage and liberalization of fringe benefits, including the $5 million the employers paid into the fund, the cost per ton dropped from $6.26 to $6.16. * * * Making allowance for all important factors involved, the gain to employers from the M&M agreement may be placed conservatively as well in excess of $150 million. Subtracting from this the $27.5 million paid into the M&M fund over the 5 1/2 year period of the last contract makes the employer estimate of $120 million net gain appear realistic.' Id., at 1068—1069.
22
125 U.S.App.D.C. 282, 293, 371 F.2d 747, 758 (1967).
23
We are told that this is not the first time the PMA members have entered into agreements among themselves to form and finance their collective bargaining agreements. They have agreed to the presentation of uniform bargaining terms, and have provided, through agreements among themselves, for the administration and implementation of their union contracts. All of these would affect transportation rates. In essence, such agreements, no less than the funding method employed by PMA, have established uniform costs for all employers of maritime labor indeed the primary object of industry-wide bargaining has been to establish uniform wages, fringe benefits, and working conditions.
24
Mr. Paul St. Sure, President of PMA, testified:
'It (the method of payment of the fund) was a definite part of the negotiations in that the union took a position with regard to the method of collection. PMA took a position with regard to the method of collection. There were discussions with the union during negotiation as to the problems that had been presented by the method of collection used with relation to the million dollars and a half.
'We discussed with the union the differences of opinion among our own members as to the equitable method of providing for the collection of this money.
'We ended up with an agreement by the union that, inasmuch as the employer members of the bargaining unit had committed themselves specifically to the payment of the sum, that whereas they were interested in the assurance that the sum would be collected, they would allow us to work out among ourselves the method of actual collection within the membership of PMA.'
Such action, however, did not make the union a disinterested party; rather, the union certainly had a continuing interest in the method of financing the fund. Mr. St. Sure, who was deeply involved since 1948 in negotiations with the ILWU, testified:
'There was a continuing interest and a continuing concern as to whether or not the collections under the fund were being met. Obviously they have, by joint trusteeship, joint custody of the fund, and I can assure you that they were alert as to whether or not the method of the custody, was working, because they believed this and, in fact, knew it was their money to spend in accordance with the agreement.
'After all, this was a continuing relationship that we have, by the collective bargaining agreement, and my experience would suggest to me that we couldn't have adopted the method which would defeat the very purpose for which we had reached a bargain without having further negotiations.'
The Hearing Examiner stated in his opinion that 'Mr. St. Sure testified that the ILWU's interest in the method to be adopted, ceased after it was agreed that the method of collection was to be reserved to PMA.' In the printed record before the Court, however, I find no reference in Mr. St. Sure's testimony to a lack of interest on the part of the union concerning the method of collection of the fund. The Hearing Examiner does not indicate the testimony on which his interpretation of Mr. St. Sure's presentation is based; and, at the least, that part of his testimony quoted would appear to raise a strong doubt whether it could be said that the interest of the union ceased. In any event, it is clear from Mr. St. Sure's testimony that the method of collection was a prime topic of negotiations between the parties, and that the employers' decision on the matter was intimately tied with the collective bargaining agreement.
25
Mr. St. Sure testified:
'Well, this was still part of the bargaining process. We were still actually trying to conclude the bargain which we had developed and had signed a memorandum to cover. We still had the responsibility as a negotiating committee of reporting back to the board of directors, and then to the membership, and this was simply a convenient means of calling in some men that we felt were more expert in this field than the negotiators were who were operating people to make a recommendation as to a method of payment.'
26
See n. 24, supra.
27
See FMC Rule 5(1), 46 CFR § 502.72 (petitions for intervention in FMC proceedings). See also FMC Rule 10(c), 46 CFR § 502.143 (notice of hearings).
28
Indeed, the legislative history would appear to be to the contrary. See n. 9, supra.
29
The circumstance that the funding plan originated in collective bargaining and was a part of a collective bargaining agreement would not automatically create an exemption from the antitrust laws. See United Mines Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626; Local Union No. 189, Amalgamated Meat Cutters and Butcher Workmen v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640; Allen-Bradley Co. v. Local Union No. 3, IBEW, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939.
30
The Commission held under § 16 that that section is violated only if there is discrimination between competitors, which was not the situation here because the marine terminal companies have imposed no higher charges on Volkswagens than on other automobiles. Although such an interpretation is supported by the construction placed on § 3(1) of the Interstate Commerce Act, 49 U.S.C. § 3(1), United States v. Great Northern R. Co., 301 I.C.C. 21, 26—27, on which § 16 of the Shipping Act is modeled, United States Nav. Co. v. Cunard S.S. Co., 284 U.S. 474, 480—481, 52 S.Ct. 247, 248—249, 76 L.Ed. 408, it has been suggested that the Commission has undermined its own rule by not requiring a competitive relationship in cases not involving freight rates: Investigation of Free Time Practices—Port of San Diego, 9 F.M.C. 525 (1966) (port free time); New York Foreign Freight Forwarders and Brokers Ass'n v. FMC, 337 F.2d 289 (C.A.2d Cir. 1964), cert. denied, 380 U.S. 910, 85 S.Ct. 893, 13 L.Ed.2d 797 (billing methods of freight forwarders); Swift & Co. v. Gulf & South Atlantic Havana Conference, 6 F.M.B. 215 (1961) (route restrictions); Storage Practices at Longview, Washington, 6 F.M.B. 178 (1960) (storage charges). Moreover, it is argued that the competitive relationship test employed by the ICC under § 3(1) of the Interstate Commerce Act is not 'an indispensable element in a situation of undue prejudice and preference. * * *' Joseph A. Goddard Realty Co. v. New York, C. & St. L.R. Co., 229 I.C.C. 497, 501. The Maritime Commission's refusal to require a competitive relationship in certain cases, however, has diluted that principle only in those situations in which there are services that are not dependent upon the nature of the cargo and the various charges therefore. In the instant case, how-
ever, there are different charges levied depending upon the nature of the cargo involved. Petitioner conceded before the Hearing Examiner that '(w)e do not claim that the measurement formula 'regardless of how manifested' subjects Volkswagen automobiles to 'prejudice or disadvantage' as compared to other automobiles, and we admit that there is no other cargo classification in competition with automobiles.' The competitive relationship rule has been applied consistently by the Commission in appropriate circumstances. The same rule has also been used by the ICC. Since I cannot say in the circumstances of this case that the requirement of a competitive relationship is unreasonable or inconsistent with the provisions of the Shipping Act, I would defer to the Commission's expertise. Consolo v. FMC, 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131.
With respect to § 17, the Commission expressly noted that (1) the measurement basis for assessing automobiles resulted in an assessment almost 10 times greater than a weight basis ($2.35 per vehicle as against approximately $0.25); (2) that although other cargo was assessed as manifested, vehicles were always assessed on a measurement basis; and (3) while automobile cargo would probably receive only general benefits from the mechanization plan (such as freedom from strikes and slowdowns), such cargo, unlike some other cargo, was unlikely to benefit from technological improvements in loading and unloading. Yet, the Commission held that the difference in treatment was not unreasonable because although automobile cargo may not have benefited as much as other cargo, it did receive 'substantial benefits' from the mechanization agreement. As the Court holds, however, such a standard, which focuses on only the benefits received, represents too narrow a view of § 17. What petitioner is contesting essentially is PMA's decision to adopt as the revenue ton for automobiles not a weight ton (2,000 pounds) but a measurement ton expressed in volumetric terms (40 cubic feet/ton). Since the average Volkswagen weighs only 1,800 pounds, but measures about 8.7 tons on a volume basis, it is being assessed $2.35 compared with the $0.25 it would otherwise have to pay on the basis of a weight-ton measurement. It is argued that this exaction is grossly disproportionate in light of the limited benefits which petitioner could expect to receive from the mechanization agreement as compared with those which other shippers could antici-
pate. To focus an inquiry solely on the benefits received may obscure the disparity between the charges ultimately falling upon petitioner and those exacted from other shippers. The Commission should compare the benefits received with the charges imposed on petitioner's cargo and with those levied upon other cargo, which receives substantially similar benefits, before the question of reasonableness can be resolved. This determination is for the Commission to make in the first instance.
| 78
|
390 U.S. 254
88 S.Ct. 988
19 L.Ed.2d 1083
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.UNITED INSURANCE COMPANY OF AMERICA et al. INSURANCE WORKERS INTERNATIONAL UNION, AFL—CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD et al.
Nos. 178, 179.
Argued Jan. 23 and 24, 1968.
Decided March 6, 1968.
Dominick L. Manoli, Washington, D.C., for National Labor Relations board.
Isaac N. Groner, Washington, D.C., for Insurance Workers International Union, AFL—CIO.
Bernard G. Segal, Philadelphia, Pa., for United Ins. Co. of America.
Mr. Justice BLACK delivered the opinion of the Court.
1
In its insurance operations respondent United Insurance Company uses 'debit agents' whose primary functions are collecting premiums from policy-holders, preventing the lapsing of policies, and selling such new insurance as time allows. The Insurance Workers International Union, having won a certification election, seeks to represent the debit agents, and the question before us is whether these agents are 'employees' who are protected by the National Labor Relations Act or 'independent contractors' who are expressly exempted from the Act.1 Respondent company refused to recognize the Union, claiming that its debit agents were independent contractors rather than employees. In the ensuing unfair labor practice proceeding the National Labor Relations Board held that these agents were employees and ordered the company to bargain collectively with the Union. 154 N.L.R.B. 38. On appeal the Court of Appeals found that the debit agents were independent contractors and refused to enforce the Board's order. 371 F.2d 316 (C.A.7th Cir.). The importance of the question in the context involved to the administration of the National Labor Relations Act prompted us to grant the petitions of the Board and the Union for certiorari. 389 U.S. 815, 88 S.Ct. 49, 19 L.Ed.2d 66.
2
At the outset the critical issue is what standard or standards should be applied in differentiating 'employee' from 'independent contractor' as those terms are used in the Act. Initially this Court held in N.L.R.B. v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170, that 'Whether * * * the term 'employee' includes (particular) workers * * * must be answered primarily from the history, terms and purposes of the legislation.' 322 U.S., at 124, 64 S.Ct. at 857. Thus the standard was one of economic and policy considerations within the labor field. Congressional reaction to this construction of the Act was adverse and Congress passed an amendment specifically excluding 'any individual having the status of an independent contractor' from the definition of 'employee' contained in § 2(3) of the Act. The obvious purpose of this amendment was to have the Board and the courts apply general agency principles in distinguishing between employees and independent contractors under the Act.2 And both petitioners and respondents agree that the proper standard here is the law of agency. Thus there is no doubt that we should apply the commonlaw agency test here in distinguishing an employee from an independent contractor.
3
Since agency principles are to be applied, some factual background showing the relationship between the debit agents and respondent company is necessary. These basic facts are stated in the Board's opinion and will be very briefly summarized here. Respondent has district offices in most States which are run by a manager who usually has several assistant managers under him. Each assistant manager has a staff of four or five debit agents, and the total number of such agents connected with respondent company is approximately 3,300. New agents are hired by district managers, after interviews; they need have no prior experience and are assigned to a district office under the supervision of an assistant district manager. Once he is hired, a debit agent is issued a debit book which contains the names and addresses of the company's existing policyholders in a relatively concentrated geographic area. This book is company property and must be returned to the company upon termination of the agent's service. The main job of the debit agents is to collect premiums from the policyholders listed in this book. They also try to prevent the lapsing of policies and sell new insurance when time allows. The company compensates the agents as agreed to in the 'Agent's Commission Plan' under which the agent retains 20% of his weekly premium collections on industrial insurance and 10% from holders of ordinary life, and 50% of the first year's premiums on new ordinary life insurance sold by him. The company plan also provides for bonuses and other fringe benefits for the debit agents, including a vacation-with-pay plan and participation in a group insurance and profit-sharing plan. At the beginning of an agent's service an assistant district manager accompanies the new agent on his rounds to acquaint him with his customers and show him the approved collection and selling techniques. The agent is also supplied with a company 'Rate Book,' which the agent is expected to follow, containing detailed instructions on how to perform many of his duties. An agent must turn in his collected premiums to the district office once a week and also file a weekly report. At this time the agent usually attends staff meetings for the discussion of the latest company sales techniques, company directives, etc. Complaints against an agent are investigated by the manager or assistant manager, and, if well founded, the manager talks with the agent to 'set him straight.' Agents who have poor production records, or who fail to maintain their accounts properly or to follow company rules, are 'cautioned.' The district manager submits a weekly report to the home office, specifying, among other things, the agents whose records are below average; the amounts of their debits; their collection percentages, arrears, and production; and what action the district manager has taken to remedy the production 'letdown.' If improvement does not follow, the company asks such agents to 'resign,' or exercises its rights under the 'Agent's Commission Plan' to fire them 'at any time.'
4
There are innumerable situations which arise in the common law where it is difficult to say whether a particular individual is an employee or an independent contractor,3 and these cases present such a situation. On the one hand these debit agents perform their work primarily away from the company's offices and fix their own hours of work and work days; and clearly they are not as obviously employees as are production workers in a factory. On the other hand, however, they do not have the independence, nor are they allowed the initiative and decision-making authority, normally associated with an independent contractor. In such a situation as this there is no shorthand formula or magic phrase that can be applied to find the answer, but all of the incidents of the relationship must be assessed and weighed with no one factor being decisive. What is important is that the total factual context is assessed in light of the pertinent common-law agency principles. When this is done, the decisive factors in these cases become the following: the agents do not operate their own independent businesses, but perform functions that are an essential part of the company's normal operations; they need not have any prior training or experience, but are trained by company supervisory personnel; they do business in the company's name with considerable assistance and guidance from the company and its managerial personnel and ordinarily sell only the company's policies; the 'Agent's Commission Plan' that contains the terms and conditions under which they operate is promulgated and changed unilaterally by the company; the agents account to the company for the funds they collect under an elaborate and regular reporting procedure; the agents receive the benefits of the company's vacation plan and group insurance and pension fund; and the agents have a permanent working arrangement with the company under which they may continue as long as their performance is satisfactory. Probably the best summation of what these factors mean in the reality of the actual working relationship was given by the chairman of the board of respondent company in a letter to debit agents about the time this unfair labor practice proceeding arose:
5
'if any agent believes he has the power to make his own rules and plan of handling the company's business, then that agent should hand in his resignation at once, and if we learn that said agent is not going to operate in accordance with the company's plan, then the company will be forced to make the agents final (sic).
6
'The company is going to have its business managed in your district the same as all other company districts in the many states where said offices are located. The other company officials and I have managed the United Insurance Company of America's operations for over 45 years very successfully, and we are going to continue the same successful plan of operation, and we will not allow anyone to interfere with us and our successful plan.'
7
The Board examined all of these facts and found that they showed the debit agents to be employees. This was not a purely factual finding by the Board, but involved the application of law to facts—what do the facts establish under the common law of agency: employee or independent contractor? It should also be pointed out that such a determination of pure agency law involved no special administrative expertise that a court does not possess. On the other hand, the Board's determination was a judgment made after a hearing with witnesses and oral argument had been held and on the basis of written briefs. Such a determination should not be set aside just because a court would, as an original matter, decide the case the other way. As we said in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, 'Nor does it (the requirement for canvassing the whole record) mean that even as to matters not requiring expertise a court may displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.' 340 U.S., at 488, 71 S.Ct. at 465. Here the least that can be said for the Board's decision is that it made a choice between two fairly conflicting views, and under these circumstances the Court of Appeals should have enforced the Board's order. It was error to refuse to do so.
8
Reversed.
9
Mr. Justice BRENNAN and Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
1
The National Labor Relations Act as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.), protects an 'employee' only and specifically excludes 'any individual having the status of an independent contractor.' (§ 2(3).)
2
See 93 Cong.Rec. 6441—6442, 2 Leg.Hist. of the Labor Management Relations Act, 1947, p. 1537. See also H.R.Rep.No. 245, 80th Cong., 1st Sess., 18, 1 Leg.Hist., 1947, p. 309; H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 32—33, 1 Leg.Hist., 1947, pp. 536—537.
3
See annotated cases in 55 A.L.R. 289 et seq. and 61 A.L.R. 218 et seq.
| 67
|
390 U.S. 333
88 S.Ct. 994
19 L.Ed.2d 1212
Frank LEE, Commissioner of Corrections of Alabama et al., Appellants,v.Caliph WASHINGTON et al.
No. 75.
Argued Nov. 7, 1967.
Decided March 11, 1968.
Nicholas S. Hare, for appellants.
Charles Morgan, Jr., for appellees.
PER CURIAM.
1
This appeal challenges a decree of a three-judge District Court declaring that certain Alabama statutes violate the Fourteenth Amendment to the extent that they require segregation of the races in prisons and jails, and establishing a schedule for desegregation of these institutions. The State's contentions that Rule 23 of the Federal Rules of Civil Procedure, which relates to class actions, was violated in this case and that the challenged statutes are not unconstitutional are without merit. The remaining contention of the State is that the specific orders directing desegregation of prisons and jails make no allowance for the necessities of prison security and discipline, but we do not so read the 'Order, Judgment and Decree' of the District Court, which when read as a whole we find unexceptionable.
2
The judgment is affirmed.
3
Mr. Justice BLACK, Mr. Justice HARLAN, and Mr. Justice STEWART, concurring.
4
In joining the opinion of the Court, we wish to make explicit something that is left to be gathered only by implication from the Court's opinions. This is that prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails. We are unwilling to assume that state or local prison authorities might mistakenly regard such an explicit pronouncement as evincing any dilution of this Court's firm commitment to the Fourteenth Amendment's prohibition of racial discrimination.
| 12
|
390 U.S. 317
88 S.Ct. 995
19 L.Ed.2d 1201
NORFOLK AND WESTERN RAILWAY COMPANY et al., Appellants,v.MISSOURI STATE TAX COMMISSION et al.
No. 324.
Argued Jan. 25, 1968.
Decided March 11, 1968.
Leave to File Petition for Rehearing Denied April 29, 1968.
See 390 U.S. 1046, 88 S.Ct. 1633.
[Syllabus from pages 317-318 intentionally omitted]
William H. Allen, Washington, D.C., for appellants.
William A. Peterson, Asst. Atty. Gen. of Missiouri, for appellees.
Mr. Justice FORTAS delivered the opinion of the Court.
1
This case brings before us, once again, troublesome problems arising from state taxation of an interstate commercial enterprise. At issue is a tax assessment pursuant to a Missouri statute specifying the manner in which railroad rolling stock is to be assessed for the State's ad valorem tax on that property.1
2
In 1964 the Norfolk & Western Railway Co. (N & W), a Virginia corporation with interstate rail operations, leased all of the property of appellant Wabash Railroad Company. The Wabash owned substantial fixed property and rolling stock, and did substantial business in Missouri as well as in other States. Prior to the lease, N & W owned no fixed property and only a minimal amount of rolling stock in Missouri. N & W is primarily a coal-carrying railroad. Much of its equipment and all of its specialized coalcarrying equipment are generally located in the coal regions of Virginia, West Virginia, and Kentucky, and along the coalferrying routes from those regions to the eastern seaboard and the Great Lakes. Scarcely any of the specialized equipment ever enters Missouri. According to appellants, the Wabash property in Missouri was leased by N & W in order to diversify its business, not to provide the opportunity for an integrated through movement of traffic.
3
By the terms of the lease, the N & W became obligated to pay the 1965 taxes on the property of the Wabash in Missouri and elsewhere.2 Upon receiving notice of the 1965 assessment from the appellee Missouri Tax Commission, the N & W filed a request for an adjustment and hearing before the Commission. The hearing was held, and the Commission sustained its assessment against the taxpayer's challenge. On judicial review, the Commission's decision was affirmed without opinion by the Circuit Court of Cole County, and then by the Supreme Court of Missouri. Appellants filed an appeal in this Court, contending that the assessment in effect reached property not located in Missouri and thus violated the Due Process Clause and the Commerce Clause of the United States Constitution. We noted probable jurisdiction. 389 U.S. 810, 88 S.Ct. 84, 19 L.Ed.2d 63 (1967).
I.
4
The Missouri property taxable to the N & W was assessed by the State Tax Commission at $31,298,939. Of this sum, $12,177,597 relates to fixed property within the State, an assessment that is not challenged by appellants. Their attack is aimed only at that portion of the assessment relating to rolling stock, $19,981,757.3
5
With respect to the assessment of rolling stock, the Commission used the familiar mileage formula authorized by the Missouri statute. In relevant part, this provides (§ 151.060, subd. 3):
6
'* * * when any railroad shall extend beyond the limits of this state and into another state in which a tax is levied and paid on the rolling stock of such road, then the said commission shall assess, equalize and adjust only such proportion of the total value of all the rolling stock of such railroad company as the number of miles of such road in this state bears to the total length of the road as owned or controlled by such company.'
7
The Commission arrived at the assessment of rolling stock by first determining the value of all rolling stock, regardless of where located, owned or leased by the N & W as of the tax day, January 1, 1965. Value was ascertained by totaling the original cost, less accrued depreciation at 5% a year up to 75% of cost, of each locomotive, car, and other piece of mobile equipment. To the total value, $513,309,877, was applied an 'equalizing factor' of 47%, employed in assessing all railroad property in an attempt to bring such assessments down to the level of other property assessments in Missouri. The Commission next found that 8.2824% of all the main and branch line road (excluding secondary and side tracks) owned, leased, or controlled by the N & W was situated in Missouri. This percentage was applied to the equalized value of all N & W rolling stock, and the resulting figure was $19,981,757.
8
There is no suggestion in this case that the Commission failed to follow the literal command of the statute. The problem arises because of appellants' contention that, in mechanically applying the statutory formula, the Commission here arrived at an unconscionable and unconstitutional result. It is their submission that the assessment was so far out of line with the actual facts of record with respect to the value of taxable rolling stock in the State as to amount to an unconstitutional attempt to exercise state taxing power on out-of-state property.
9
Appellants submitted evidence based upon an inventory of all N & W rolling stock that was actually in Missouri on tax day. The equalized value of this rolling stock, calculated on the same cost-less-depreciation basis employed by the Commission, was approximately $7,600,000, as compared with the assessed value of $19,981,000. Appellants also submitted evidence to show that the tax-day inventory was not unusual. The evidence showed that, both before and in the months immediately after the Wabash lease, the equalized value of the N & W rolling stock actually in Missouri never ranged far above the $7,600,000 figure. In the preceding year, 1964, the rolling stock assessment against the Wabash was only $9,177,683, and appellants demonstrated that neither the amount of rolling stock in Missouri nor the Missouri operations of the N & W and Wabash had materially increased in the intervening period.4 The assessment of the fixed properties (for which no mileage formula was applied) hardly increased between 1964 and 1965. In 1964, prior to the lease, the fixed properties in Missouri were assessed at $12,092,594; in 1965, after the lease, the assessment was $12,177,597.
10
The Supreme Court of Missouri concluded that the result reached by the Commission was justifiable. It pointed out that the statutory method used by the Commission proceeds on the assumption that 'rolling stock is substantially evenly divided throughout the railroad's entire system, and the percentage of all units which are located in Missouri at any given time, or for any given period of time, will be substantially the same as the percentage of all the miles of road of the railroad located in Missouri.' It then held that the valuation found by the Commission could be justified on the theory of 'enhancement,' although the Commission had not referred to that principle. The court described the theory as follows:
11
'The theory underlying such method of assessment is that rolling stock regularly employed in one state has an enhanced or augmented value when it is connected to, and because of its connection with, an integrated operational whole and may, therefore, be taxed according to its value 'as part of the system, although the other parts be outside the State;—in other words, the tax may be made to cover the enhanced value which comes to the property in the State through its organic relation to the system.' Pullman Co. v. Richardson, 261 U.S. 330, 338, 43 S.Ct. 366, 67 L.Ed. 682.'
12
The court correctly noted, however, that 'even if the validity of such methods be conceded, the results, to be valid must be free of excessiveness and discrimination.' It concluded that in the present case, the result reached by the Commission was justifiable. We disagree. In our opinion, the assessment violates the Due Process and Commerce Clauses of the Constitution.
II.
13
Established principles are not lacking in this much discussed area of the law. It is of course settled that a State may impose a property tax upon its fair share of an interstate transportation enterprise. Marye v. Baltimore & Ohio R. Co., 127 U.S. 117, 123 124, 8 S.Ct. 1037, 1039—1040, 32 L.Ed. 94 (1888); Pullman's Palace-Car Co. v. Commonwealth of Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613 (1891); Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585 (1949); Braniff Airways, Inc. v. Nebraska State Board of Equalization and Assessment, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967 (1954). That fair share may be regarded as the value, appropriately ascertained, of tangible assets permanently or habitually employed in the taxing State, including a portion of the intangible, or 'going-concern,' value of the enterprise. Railway Express Agency v. Commonwealth of Virginia, 347 U.S. 359, 364, 74 S.Ct. 558, 561, 98 L.Ed. 757 (1954); Cudahy Packing Co. v. State of Minnesota, 246 U.S. 450, 455, 38 S.Ct. 373, 375, 62 L.Ed. 827 (1918); Adams Express Co. v. Ohio State Auditor, 166 U.S. 185, 218—225, 17 S.Ct. 604, 605, 607, 41 L.Ed. 965 (1897). The value may be ascertained by reference to the total system of which the intrastate assets are a part. As the Court has stated the rule, 'the tax may be made to cover the enhanced value which comes to the (tangible) property in the State through its organic relation to the (interstate) system.' Pullman Co. v. Richardson, 261 U.S. 330, 338, 43 S.Ct. 366, 368, 67 L.Ed. 682 (1923). Going-concern value, of course, is an elusive concept not susceptible of exact measurement. Rowley v. Chicago & N.W.R. Co., 293 U.S. 102, 109, 55 S.Ct. 55, 58, 79 L.Ed. 222 (1934); Nashville, C. & St. L.R. Co., v. Browning, 310 U.S. 362, 365—366, 60 S.Ct. 968, 970, 84 L.Ed. 1254 (1940). As a consequence, the States have been permitted considerable latitude in devising formulas to measure the value of tangible property located within their borders. Union Tank Line Co. v. Wright, 249 U.S. 275, 282, 39 S.Ct. 276, 278, 63 L.Ed. 602 (1919). Such formulas usually involve a determination of the percentage of the taxpayer's tangible assets situated in the taxing State and the application of this percentage to a figure representing the total going-concern value of the enterprise. See, e.g., Rowley v. Chicago & N.W.R. Co., 293 U.S. 102, 55 S.Ct. 55, 79 L.Ed. 222 (1934); Pittsburgh, C., C. & St. L.R. Co. v. Backus, 154 U.S. 421, 14 S.Ct. 1114, 38 L.Ed. 1031 (1894). A number of such formulas have been sustained by the Court, even though it could not be demonstrated that the results they yielded were precise evaluations of assets located within the taxing State. See, e.g., Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 365—366, 60 S.Ct. 968, 970, 84 L.Ed. 1254 (1940).
14
On the other hand, the Court has insisted for many years that a State is not entitled to tax tangible or intangible property that is unconnected with the State. Delaware Railroad Tax, 18 Wall. 206, 229, 21 L.Ed. 888 (1874); Fargo v. Hart, 193 U.S. 490, 499, 24 S.Ct. 498, 500, 48 L.Ed. 761 (1904). In some cases the Court has concluded that States have, in fact, cast their tax burden upon property located beyond their borders. Fargo v. Hart, 193 U.S. 490, 499—503, 24 S.Ct. 498, 500, 501, 48 L.Ed. 761 (1904); Union Tank Line Co. v. Wright, 249 U.S. 275, 283—286, 39 S.Ct. 276, 278, 279, 63 L.Ed. 602 (1919); Wallace v. Hines, 253 U.S. 66, 69—70, 40 S.Ct. 435, 436, 64 L.Ed. 782 (1920); Southern R. Co. v. Commonwealth of Kentucky, 274 U.S. 76, 81—84, 47 S.Ct. 542, 544—545, 71 L.Ed. 934 (1927). The taxation of property not located in the taxing State is constitutionally invalid, both because it imposes an illegitimate restraint on interstate commerce and because it denies to the taxpayer the process that is his due.5 A State will not be permitted, under the shelter of an imprecise allocation formula or by ignoring the peculiarities of a given enterprise, to 'project the taxing power of the state plainly beyond its borders.' Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 365, 60 S.Ct. 968, 970, 84 L.Ed. 1254 (1940). Any formula used must bear a rational relationship, both on its face and in its application, to property values connected with the taxing State. Fargo v. Hart, 193 U.S. 490, 499—500, 24 S.Ct. 498, 500, 48 L.Ed. 761 (1904).6
III.
15
Applying these principles to the facts of the case now before us, we conclude that Missouri's assessment of N & W's rolling stock cannot be sustained. This Court has, in various contexts, permitted mileage formulas as a basis for taxation. See, e.g., Pittsburgh, C., C. & St. L.R. Co. v. Backus, 154 U.S. 421, 14 S.Ct. 1114, 38 L.Ed. 1031 (1894). A railroad challenging the result reached by the application of such a formula has a heavy burden. See Butler Brothers v. McColgan, 315 U.S. 501, 507, 62 S.Ct. 701, 704, 86 L.Ed. 991 (1942); Norfolk & Western R. Co. v. State of North Carolina ex rel. Maxwell, 297 U.S. 682, 688, 56 S.Ct. 625, 628, 80 L.Ed. 977 (1936). It is confronted by the vastness of the State's taxing power and the latitude that the exercise of that power must be given before it encounters constitutional restraints. Its task is to show that application of the mileage method in its case has resulted in such gross overreaching, beyond the values represented by the intrastate assets purported to be taxed, as to violate the Due Process and Commerce Clauses of the Constitution. Cf. Capitol Greyhound Lines v. Brice, 339 U.S. 542, 547, 70 S.Ct. 806, 809, 94 L.Ed. 1053 (1950). But here the appellants have borne that burden, and the State has made no effort to offset the convincing case that they have made.
16
Here, the record shows that rigid application of the mileage formula led to a grossly distorted result. The rolling stock in Missouri was assessed to N & W at $19,981,757. It was practically the same property that had been assessed the preceding year at $9,177,683 to the Wabash. Appellants introduced evidence of the results of an actual count of the rolling stock in Missouri. On the basis of this actual count, the equalized assessment would have been less than half of the value assessed by the State Commission. The commission's mileage formula resulted in postulating that N & W's rolling stock in Missouri constituted 8.2824% of its rolling stock. But appellants showed that the rolling stock usually employed in the State comprised only about 2.71% by number of units (and only 3.16% by cost-less-depreciation value) of the total N & W fleet.
17
Our decisions recognize the practical difficulties involved and do not require any close correspondence between the result of computations using the mileage formula and the value of property actually located in the State, but our cases certainly forbid an unexplained discrepancy as gross as that in this case.7 Such discrepancy certainly means that the impact of the state tax is not confined to intrastate property even within the broad tolerance permitted. The facts of life do not neatly lend themselves to the niceties of constitutionalism; but neither does the Constitution tolerate any result, however distorted, just because it is the product of a convenient mathematical formula which, in most situations, may produce a tolerable product.
18
The basic difficulty here is that the record is totally barren of any evidence relating to enhancement or to going-concern or intangible value, or to any other factor which might offset the devastating effect of the demonstrated discrepancy. The Missouri Supreme Court attempted to justify the result by reference to 'enhanced' value, but the Missouri Commission made no effort to show such value or to measure the extent to which it might be attributed to the rolling stock in the State. In fact, N & W showed that it is chiefly a coal-carrying railroad, 70% of whose 1964 revenue was derived from coal traffic. It demonstrated that its coal operations require a great deal of specialized equipment, scarcely any of which ever enters Missouri. It showed that traffic density on its Missouri tracks was only 54% of traffic density on the N & W system as a whole. Finally, it proved that the overwhelming majority of its rolling stock regularly present in Missouri was rolling stock it had leased from the Wabash. As long ago as Pittsburgh, C., C. & St. L.R. C. v. Backus, 154 U.S. 421, 14 S.Ct. 1114, 38 L.Ed. 1031 (1894), we indicated that an otherwise valid mileage formula might not be validly applied to ascertain the value of tangible assets within the taxing State in exceptional situations, for example, 'where, in certain localities, the company is engaged in a particular kind of business, requiring for sole use in such localities an extra amount of rolling stock.' Id., at 431, 14 S.Ct. at 1119.
19
The Missouri Supreme Court did not challenge the factual data submitted by the N & W. Its decision that these data did not place this case within the realm of 'exceptional situations' recognized by this Court was apparently based on the conclusion that the lease transaction between Wabash and the N & W had increased the value of tangible assets formerly belonging to the two separate lines. This may be true, but it does not follow that the Constitution permits us, without evidence as to the amount of enhancement that may be assumed, to bridge the chasm between the formula and the facts of record. The difference between the assessed value and the actual value as shown by the evidence to which we have referred is too great to be explained by the mere assertion, without more, that it is due to an assumed and nonparticularized increase in intangible value. See Wallace v. Hines, 253 U.S. 66, 69, 40 S.Ct. 435, 436, 64 L.Ed. 782 (1920).
20
As the Court recognized in Fargo v. Hart, 193 U.S. 490, 499 500, 24 S.Ct. 498, 500, 48 L.Ed. 761 (1904), care must be exercised lest the mileage formula
21
'be made a means of unlawfully taxing the privilege, or property outside the state, under the name of enhanced value or good will, if it is not closely confined to its true meaning. So long as it fairly may be assumed that the different parts of a line are about equal in value a division by mileage is justifiable. But it is recognized in the cases that if for instance a railroad company had terminals in one state equal in value to all the rest of the line through another, the latter state could not make use of the unity of the road to equalize the value of every mile. That would be taxing property outside of the state under a pretense.'
22
We repeat that it is not necessary that a State demonstrate that its use of the mileage formula has resulted in an exact measure of value. But when a taxpayer comes forward with strong evidence tending to prove that the mileage formula will yield a grossly distorted result in its particular case, the State is obliged to counter that evidence or to make the accommodations necessary to assure that its taxing power is confined to its constitutional limits. If it fails to do so and if the record shows that the taxpayer has sustained the burden of proof to show that the tax is so excessive as to burden interstate commerce, the taxpayer must prevail.
IV.
23
Accordingly, we conclude that, on the present record, Missouri has in this case exceeded the limits of her constitutional power to tax, as defined by the Due Process and Commerce Clauses. It will be open to the Missouri Supreme Court, so far as our action today is concerned, to remand the case to the appropriate tribunal to reopen the record for additional evidence to support the assessment. We vacate the judgment of the Supreme Court of Missouri and remand the cause to it for further proceedings not inconsistent with our decision.
24
Vacated and remanded.
25
Mr. Justice BLACK, dissenting.
26
It is established law, as the Court apparently recognizes in its opinion, that an interstate company challenging a state apportionment of the company's property taxable in the State has the heavy burden of proving by 'clear and cogent evidence' that the apportionment is grossly and flagrantly excessive. See, e.g., Railway Express Agency v. Commonwealth of Virginia, 358 U.S. 434, 444, 79 S.Ct. 411, 417, 3 L.Ed.2d 450, and cases cited. I agree with the Supreme Court of Missouri that appellant railroad failed to meet that burden and would therefore affirm its judgment. See its opinion at Mo., 426 S.W.2d 362.
27
It is true that most of the cars used in Missouri by N & W were owned by the Wabash Railroad and that before transfer to N & W they had been assessed at $9,177,683 as against the assessment here of $19,981,757. But this, of course, does not prove that the higher assessment was too much. For, as the Supreme Court of Missouri pointed out, this Court has held that 'a mere increase in the assessment does not prove that the last assessment is wrong. Something more is necessary before it can be adjudged that the assessment is illegal and excessive * * *.' Pittsburgh, C., C. & St. L.R. Co. v. Backus, 154 U.S. 421, 432, 14 S.Ct. 1114, 1119, 38 L.Ed. 1031. The court below held, and this Court agrees, that in pricing the value of the rolling stock the Commission was authorized to consider intangible values, such as goodwill and values added because of the enhancement to the property in Missouri brought about by being merged into the entire N & W system. This consideration of enhanced value is not new (see, e.g., Pullman Co. v. Richardson, 261 U.S. 330, 338, 43 S.Ct. 366, 368, 67 L.Ed. 682), and, as the Court points out, it is because of this intangible factor of enhancement that States are allowed wide discretion in determining the value of tangible property located within their borders. Thus, mileage formulas, such as the one used here, have generally been upheld. As this Court said in Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254, 'In basing its apportionment on mileage, the Tennessee Commission adopted a familiar and frequently sanctioned formula (cases cited).' 310 U.S. at 365, 60 S.Ct. at 970. It has never been contended that mileage formulas are completely accurate, but because States must consider such intangibles as enhancement value, these formulas are allowed except where the taxpayer can show, as the Court puts it, 'that application of the mileage method in its case has resulted in such gross overreaching, beyond the values represented by the intrastate assets purported to be taxed, as to violate the Due Process and Commerce Clauses of the Constitution.' I do not believe that appellants have made such a showing here. The fatal flaw with the appellants' case is that they have not proved that the tax is excessive when possible enhancement of value due to the merger is considered. The Court's opinion admits as much when it says that 'the record is totally barren of any evidence relating to enhancement or to going-concern or intangible value, or to any other factor * * *.' Where I differ with the Court is that I believe the burden of proof is on the railroad to show that the tax is excessive under all considerations rather than on the Commission to show sufficient enhancement of value to justify the tax.
28
¢This Court has recognized before, and indeed the majority pays lip service to the fact today, that it is impossible for a State to develop tax statutes with mathematical perfection. Indeed, as was stated in International Harvester Co. v. Evatt, 329 U.S. 416, 67 S.Ct. 444, 91 L.Ed. 390: 'Unless a palpably disproportionate result comes from an apportionment, a result which makes it patent that the tax is levied upon interstate commerce rather than upon an intrastate privilege, this Court has not been willing to nullify honest state efforts to make apportionments.' 329 U.S., at 422—423, 67 S.Ct., at 447. And the 'burden is on the taxpayer to make oppression manifest by clear and cogent evidence.' Norfolk & Western R. Co. v. State of North Carolina ex rel. Maxwell, 297 U.S. 682, 688, 56 S.Ct. 625, 628, 80 L.Ed. 977. Since appellants here did not prove that the enhanced value* of the rolling stock was less than the tax assessment, or that the State was imposing on N. & W. taxes that were exorbitant on the full value of all its property, cf. Capitol Greyhound Lines v. Brice, 339 U.S. 542, 70 S.Ct. 806, 94 L.Ed. 1053, I would affirm the decision of the Missouri Supreme Court.
1
The tax in question applies to 'all real property * * * (and) tangible personal property * * * owned, hired or leased by any railroad company * * * in this state.' Intangible personal property is explicitly exempted from this tax. Mo.Rev.Stat. § 151.010 (1959).
2
As of January 1, 1966, the N & W purchased the Wabash rolling stock that it had previously leased, while continuing to lease Wabash fixed property. This change in the relationship between N & W and the Wabash has no effect on the issues presented to us. Our analysis would apply both before and after the purchase of the Wabash rolling stock.
3
The Commission deducted from the sum of these two figures $860,415, representing an 'economic factor' which is allowed to all railroads in varying amounts. Exactly the same deduction had been allowed the Wabash in each of the three preceding years.
4
Appellants further argue that the arbitrariness of the result reached here is shown by the fact that if the rolling stock in Missouri had been taxable to the Wabash in 1965, rather than to N & W, the application of the formula to the same rolling stock would have resulted in an assessment of little more than half of that which was actually levied ($10,103,340).
5
We have said: 'The problem under the Commerce Clause is to determine 'what portion of an interstate organism may appropriately be attributed to each of the various states in which it functions.' Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 365, 60 S.Ct. 968, 970, 84 L.Ed. 1254. So far as due process is concerned the only question is whether the tax in practical operation has relation to opportunities, benefits, or protection conferred or afforded by the taxing State. See State of Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 249, 85 L.Ed. 267, 130 A.L.R. 1229. Those requirements are satisfied if the tax is fairly apportioned to the commerce carried on within the State.' Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 174, 69 S.Ct. 432, 434, 93 L.Ed. 585 (1949). Neither appellants nor appellees contend that these two analyses bear different implications insofar as our present case is concerned.
6
As the Court stated in Wallace v. Hines, 253 U.S. 66, at 69, 40 S.Ct. 435, at 436, 64 L.Ed. 782: 'The only reason for allowing a State to look beyond its borders when it taxes the property of foreign corporations is that it may get the true value of the things within it, when they are part of an organic system of wide extent, that gives them a value above what they otherwise would possess. The purpose is not * * * to open to taxation what is not within the State. Therefore no property of * * * an interstate road situated elsewhere can be taken into account unless it can be seen in some plain and fairly intelligible way that it adds to the value of the road and the rights exercised in the State.'
7
'(I)f the ratio of the value of the property in (the State) to the value of the whole property of the company be less than that which the length of the road in (the State) bears to its entire length * * * a tax imposed upon the property in (the State) according to the ratio of the length of its road to the length of the whole road must necessarily fall upon property out of the State.' Delaware Railroad Tax, 18 Wall. 206, 230—231, 21 L.Ed. 888 (1874).
*
There is a familiar principle of valuation in such tax cases. See Fargo v. Hart, 193 U.S. 490, 499, 24 S.Ct. 498, 500, 48 L.Ed. 761; Galveston, H. & S.A.R. Co. v. State of Texas, 210 U.S. 217, 225, 28 S.Ct. 638, 639, 52 L.Ed. 1031; United States Express Co. v. State of Minnesota, 223 U.S. 335, 347, 32 S.Ct. 211, 215, 56 L.Ed. 459; Union Tank Line Co. v. Wright, 249 U.S. 275, 282, 39 S.Ct. 276, 278, 63 L.Ed. 602.
| 78
|
390 U.S. 340
88 S.Ct. 1098
19 L.Ed.2d 1220
Roy Michael FELTON et al.v.CITY OF PENSACOLA.
No. 934.
Supreme Court of the United States
March 11, 1968
Stanley Fleishman, Sam Rosenwein and Hugh W. Gibert, for petitioners.
Dave Caton, for respondent.
On Petition for Writ of Certiorari to the District Court of Appeal of Florida, First District.
PER CURIAM.
1
The petition for a writ of certiorari is granted and the judgment of the District Court of Appeal of Florida, First District, 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 reverse because of the failure of the trial court to adhere to the standard for judging obscenity announced in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.
3
Mr. Justice HARLAN would affirm the judgment of the state court 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 his dissenting opinion in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Massachusetts, 383 U.S. 413, 455, 86 S.Ct. 975, 16 L.Ed.2d 1.
| 23
|
390 U.S. 335
88 S.Ct. 962
19 L.Ed.2d 1215
Donald Gene WALKERv.Louie L. WAINWRIGHT, Director, Florida Division of Corrections.
No. 786, Misc.
March 11, 1968.
Rehearing Denied April 22, 1968.
See 390 U.S. 1036, 88 S.Ct. 1420.
PER CURIAM.
1
On September 30, 1960, the petitioner was convicted of first degree murder and was sentenced to life imprisonment. On May 25, 1965, he was found guilty of aggravated assault and was sentenced to five years in the state penitentiary, to commence when he had completed serving the sentence for murder.
2
Having attempted without success to challenge his murder conviction on federal constitutional grounds in the state courts, the petitioner sought a writ of habeas corpus in the United States District Court for the Southern District of Florida. He contended that he had been deprived of counsel at his preliminary hearing, that a coerced confession had been used against him at trial, and that he had been denied the right to an effective appeal.
3
The District Court observed that, even if the petitioner's contentions were accepted and his murder conviction reversed, he would still face a five-year prison term for aggravated assault. Because a favorable decision on the murder conviction would not result in the petitioner's immediate release from prison, the District Court thought itself powerless to consider the merits of his claims and therefore denied his habeas corpus petition without further consideration. In short, the District Court held that the petitioner could not challenge his life sentence until after he had served it. The United States Court of Appeals for the Fifth Circuit summarily rejected the petitioner's application for a certificate of probable cause, and he then sought review in this Court.
4
In reaching its conclusion, the District Court relied upon McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238, for the broad proposition that the 'Writ of Habeas Corpus may not be used as a means of securing judicial decision of a question which, even if determined in the prisoner's favor, could not result in his immediate release.' The McNally decision, however, held only that a prisoner cannot employ federal habeas corpus to attack a 'sentence which (he) has not begun to serve.' 293 U.S., at 138, 55 S.Ct. at 27. Here the District Court has turned that doctrine inside out by telling the petitioner that he cannot attack the life sentence he has begun to serve—until after he has finished serving it. We need not consider the continued vitality of the McNally holding in this case, for neither McNally nor anything else in our jurisprudence can support the extraordinary predicament in which the District Court has placed this petitioner.
5
Whatever its other functions, the great and central office of the writ of habeas corpus is to test the legality of a prisoner's current detention. The petitioner is now serving a life sentence imposed pursuant to a conviction for murder. If, as he contends, that conviction was obtained in violation of the Constitution, then his confinement is unlawful. It is immaterial that another prison term might still await him even if he should successfully establish the unconstitutionality of his present imprisonment.
6
The motion 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 for further proceedings consistent with this opinion.
7
It is so ordered.
8
Motion for leave to proceed in forma pauperis and petition for certiorari granted, judgment reversed and case remanded.
| 01
|
390 U.S. 341
88 S.Ct. 904
19 L.Ed.2d 1222
FEDERAL TRADE COMMISSION, Petitioner,v.FRED MEYER, INC., et al.
No. 27.
Argued Nov. 6, 1967.
March 18, 1968.
Daniel M. Friedman, Washington, D.C., for petitioner.
Edward F. Howrey, Washington, D.C., for respondents.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The Federal Trade Commission, after extensive proceedings, ruled that respondents, the corporate owner of a chain of supermarkets and two of its officers, had unlawfully induced certain suppliers to engage in discriminatory pricing and sales promotional activities prohibited by §§ 2(a) and 2(d) of the Clayton Act, as amended by the Robinson-Patman Act.1 63 F.T.C. —- (1963). The Court of Appeals for the Ninth Circuit disagreed with the Commission's Construction of § 2(d) and reversed in part its ruling that the section had been violated. 359 F.2d 351 (1966). We granted certiorari, 386 U.S. 907, 87 S.Ct. 853, 17 L.Ed.2d 781 (1967), because the case presents important questions concerning the scope of a key provision of the Robinson-Patman Act.
I.
2
Section 2(d) makes it unlawful for a supplier in interstate commerce to grant advertising or other sales promotional allowances to one 'customer' who resells the supplier's 'products or commodities' unless the allowances are 'available on proportionally equal terms to all other customers competing in the distribution of such products or commodities.'2 Although we have limited our review of this case to one aspect of the alleged § 2(d) violations,3 full understanding of the issues requires a brief exposition of the facts from which the Commission concluded that respondents had induced violations of both §§ 2(a) and 2(d). The relevant facts found by the Commission were not disturbed by the Court of Appeals.
3
Respondent Fred Meyer, Inc., operates a chain of 13 supermarkets in the Portland, Oregon, area which engage in the retail sale of groceries, drugs, variety items, and a limited line of clothing. In 1957 Meyer's sales exceeded $40,000,000. According to its 1960 prospectus, it made one-fourth of the retail food sales in the Portland area and was the second largest seller of all goods in that area. Since 1936 Meyer has conducted annually a four-week promotional campaign in its stores based on the distribution of coupon books to consumers. The books usually contain 72 pages, each page featuring a single product being sold by Meyer at a reduced price. The consumer buys the book for the nominal sum of 10¢ and must surrender the appropriate coupon when making his purchase of goods. A coupon often represents a reduction of one-third or more from Meyer's regular price for the featured item, and the cover of the 1957 book stated that the use of all 72 coupons would result in total savings of more than $54. The promotional campaign is highly successful. Meyer sold 138,700 books in 1957 and 121,270 in 1958. Aside from the nominal 10¢ paid by consumers for the coupon books, Meyer finances the promotion by charging the supplier of each featured product a fee of at least $350 for each coupon-page advertising his product.4 Some participating suppliers further underwrite the promotion by giving Meyer price reductions on its purchases of featured items, by replacing at no cost a percentage of the goods sold by Meyer during the campaign, or by redeeming coupons in cash at an agreed rate.
4
The Commission concluded that this promotional scheme, as conducted in the years 1956 through 1958, violated §§ 2(d) and 2(a) in the following respects: First, the $350 paid to Meyer by each of four suppliers participating in the campaigns represented promotional allowances paid in violation of § 2(d) because similar allowances were not made available on proportionately equal terms to competing customers. Second, the additional value given Meyer by these suppliers in the form of discounts, free replacements of goods sold and coupon redemptions amounted to price discrimination prohibited by § 2(a).5 The Commission held that by inducing the suppliers to discriminate in price, respondents had violated § 2(f) of the Act,6 and that by inducing them to grant discriminatory promotional allowances, respondents had engaged in an unfair method of competition in violation of § 5(a) of the Federal Trade Commission Act.7
5
Both before the Commission and in the Court of Appeals, respondents argued that it was not established that two participating suppliers, Tri-Valley Packing Association and Idaho Canning Company, had violated § 2(d). Meyer purchased directly from both of these suppliers. Tri-Valley participated in the 1957 promotion by paying Meyer $350 for a coupon-page featuring Tri-Valley's brand of canned peaches and by replacing in merchandise every third can sold by Meyer on the coupon's offer of three cans for the price of two. Idaho Canning participated in the 1957 promotion on substantially identical terms, except that the coupon-page it purchased offered three cans of corn for the price of two. The Commission found that two wholesalers, Hudson House and Wadhams & Co., both of which resold to Meyer's retail competitors, had been disfavored in these transactions in that Hudson House had purchased canned peaches from Tri-Valley and both Hudson House and Wadhams had purchased canned corn from Idaho Canning but neither of the two wholesalers had been accorded promotional allowances comparable to those received by Meyer. Respondents argued that, purely as a matter of statutory construction, Tri-Valley and Idaho Canning could not have violated the requirement of proportional equality among 'customers competing in the distribution' of their products because (1) Meyer, a retailer, was not 'competing' in the distribution of canned corn and peaches with the disfavored wholesalers, Hudson House and Wadhams, and (2) the retailers found by the Commission to be competing with Meyer in the resale of these products were not 'customers' of Tri-Valley and Idaho Canning but were customers of Hudson House and Wadhams.
6
The Commission rejected this reading of § 2(d), noting that, if respondents' view prevailed, a retailer buying from a wholesaler and having no direct dealings with his supplier would receive no protection against discriminatory promotional allowances given his competitor who purchased directly from the supplier. The Commission held that § 2(d) prohibits a supplier from granting promotional allowances to a direct-buying retailer, such as Meyer, unless the allowances are also made available to wholesalers who purchase from the supplier and resell to the direct-buying retailer's competitors. Accordingly, the Commission's cease-and-desist order included a provision barring respondents from inducing suppliers to grant them promotional allowances not available to 'customers who resell to purchasers who compete with respondents in the resale of such supplier's products.' 63 F.T.C., at —-. One Commissioner, while agreeing with the majority that respondents had induced Tri-Valley and Idaho Canning to violate § 2(d), dissented in part on the ground that the order should have required the promotional allowances to be made available to the retailers competing with Meyer rather than to wholesalers who resold to them.8 Thus, in his view, the competing retailers were 'customers' of Tri-Valley and Idaho Canning within the meaning of the statute. The Court of Appeals adopted the interpretation of § 2(d) urged by respondents. Consequently, it set aside the portion of the Commission's order set out above.
7
We agree with the Commission that the proscription of § 2(d) reaches the kind of discriminatory promotional allowances granted Meyer by Tri-Valley and Idaho Canning. Therefore, we reverse the judgment of the Court of Appeals on this point. However, because we have concluded that Meyer's retail competitors, rather than the two wholesalers, were competing customers under the statute, we also remand the case for appropriate modification of the Commission's order. We deal first with respondents' arguments, second with the opinion of the Court of Appeals, and third with the Commission's order.
II.
8
Respondents press upon us a view of § 2(d) which leaves retailers who buy from wholesalers for the most part unprotected from discriminatory promotional allowances granted their direct-buying competitors. We are told that § 2(d) in specific terms requires this result. To benefit from the statute's requirement of proportional equality, it is urged, a buyer must be a 'competing customer' within the narrowest sense of that phrase. Thus, the wholesalers in this case are not competing customers because they do not compete with Meyer, and the retailers who do compete with Meyer in the resale of the suppliers' products are outside the protection of § 2(d) because they are not customers of the suppliers. For reasons stated below, we agree with respondents that, on the facts of this case, § 2(d) reaches only discrimination between customers competing for resales at the same functional level and, therefore, does not mandate proportional equality between Meyer and the two wholesalers.9 But we cannot accept the second half of this argument, for it rests on a narrow definition of 'customer' which becomes wholly untenable when viewed in light of the central purpose of § 2(d) and the economic realities with which its framers were concerned.
9
Conceding that the Robinson-Patman amendments by no means represent an exemplar of legislative clarity,10 we cannot, in the absence of an unmistakable directive, construe the Act in a manner which runs counter to the broad goals which Congress intended it to effectuate. See, e.g., FTC v. Sun Oil Co., 371 U.S. 505, 516 521, 83 S.Ct. 358, 365—368, 9 L.Ed.2d 466 (1963); Elizabeth Arden Sales Corp. v. Gus Blass Co., 150 F.2d 988, 991—993 (C.A.8th Cir.), cert. denied, 326 U.S. 773, 66 S.Ct. 231, 90 L.Ed. 467 (1945). We start with the proposition that '(t)he Robinson-Patman Act was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power.' FTC v. Henry Broch & Co., 363 U.S. 166, 168, 80 S.Ct. 1158, 1160, 4 L.Ed.2d 1124 (1960). The role within the statutory scheme which Congress intended for § 2(d) is well documented in the legislative history. An investigation of chain store buying practices undertaken by the Federal Trade Commission, at Congress' request,11 had indicated that § 2 of the Clayton Act was an inadequate deterrent against outright price discrimination.12 The investigation also revealed that certain practices by which large buyers induced concessions which their smaller competitors could not obtain were wholly beyond the reach of § 2.13 It is significant that congressional concern had focused on the buying practices of large retailers, particularly the chain stores, because it was felt that they were threatening the continued existence of the independent merchant.14 Indeed, before Congress acted, some States had attempted to limit the growth of retail chains through express prohibitions against further extensions and through taxation.15 One of the practices disclosed by the Commission's investigation was that by which large retailers induced concessions from suppliers in the form of advertising and other sales promotional allowances.16 The draftsman of the provision which eventually emerged as § 2(d) explained that, even when such payments were made for actual sales promotional services, they were a form of indirect price discrimination because the recipient of the allowances could shift part of his advertising costs to his supplier while his disfavored competitor could not.17 That Congress adopted this view of the practice it sought to eliminate by § 2(d) is demonstrated by the words used by the Senate Judiciary Committee in recommending enactment of the section:
10
'Still another favored medium for the granting of oppressive discriminations is found in the practice of large buyer customers to demand, and of their sellers to grant, special allowances in purported payment of advertising and other sales promotional services, which the customer agrees to render with reference to the seller's products, or sometimes with reference to his business generally. Such an allowane becomes unjust when the service is not rendered as agreed and paid for, or when, if rendered, the payment is grossly in excess of its value, or when in any case the customer is deriving from it equal benefit to his own business and is thus enabled to shift to his vendor substantial portions of his own advertising cost, while his smaller competitor, unable to command such allowances, cannot do so.'18
11
Congress chose to deter such indirect price discrimination by prohibiting the granting of sales promotional allowances to one customer unless accorded on proportionally equal terms to all competing customers.
12
Of course, neither the Committee Report nor other parts of the legislative history in so many words define 'customer' to include retailers who purchase through wholesalers and compete with direct buyers in resales. But a narrower reading of § 2(d) would lead to the following anomalous result. On the one hand, direct-buying retailers like Meyer, who resell large quantities of their suppliers' products and therefore find it feasible to undertake the traditional wholesaling functions for themselves, would be protected by the provision from the granting of discriminatory promotional allowances to their direct-buying competitors. On the other hand, smaller retailers whose only access to suppliers is through independent wholesalers would not be entitled to this protection. Such a result would be diametrically opposed to Congress' clearly stated intent to improve the competitive position of small retailers by eliminating what was regarded as an abusive form of discrimination. If we were to read 'customer' as excluding retailers who buy through wholesalers and compete with direct buyers, we would frustrate the purpose of § 2(d). We effectuate it by holding that the section includes such competing retailers within the protected class.
III.
13
The Commission did not press in the Court of Appeals the position of one Commissioner that retailers who purchased through Hudson House and Wadhams and competed with Meyer in resales were customers of Tri-Valley and Idaho Canning. Consequently, that court gave almost no consideration to the construction of § 2(d) which we hold to be the proper one. Citing its prior ruling in Tri-Valley Packing Assn. v. FTC, 329 F.2d 694, 709—710 (C.A.9th Cir. 1964), the court merely stated that a § 2(d) violation could not be made out unless (1) Tri-Valley and Idaho Canning had in some way dealt directly with retailers competing with Meyer, and (2) canned peaches and orn sold by the two suppliers could be traced through Hudson House and Wadhams to the shelves of the competing retailers. 359 F.2d, at 359—360, 362—363. In the view of the Court of Appeals, these two requirements compose the elements of the 'indirect customer' doctrine under which the Commission and the courts impose § 2(d) liability when a supplier in effect supplants his intermediate distributors in dealings with those to whom the distributors resell and favors some of the distributors' accounts over others. See American News Co. v. FTC, 300 F.2d 104, 109 (C.A.2d Cir.), cert. denied, 371 U.S. 824, 83 S.Ct. 44, 9 L.Ed.2d 64 (1962); K.S. Corp. v. Chemstrand Corp., 198 F.Supp. 310, 312—313 (D.C.S.D.N.Y.1961); Kay Windsor Frocks, Inc., 51 F.T.C. 89, 95—96 (1954); F. Rowe, Price Discrimination Under the Robinson-Patman Act 398—399 (1962), 90 (1964 Supp.). We need not and do not question the validity of this doctrine as applied to pierce a supplier's unrealistic claim that a reseller favored by him is actually the customer of an intermediate distributor. Nor do we reach the question whether a retailer may succeed in a private action based on § 2(d) without proving that he in fact resold the supplier's product in competition with a favored buyer. In the case before us, it is conceded that Meyer was a customer of Tri-Valley and Idaho Canning. Moreover, as indicated by its approval of the Commission's § 2(a) ruling, the Court of Appeals did not question the Commission's finding that Meyer competed in the resale of Tri-Valley and Idaho Canning products with retailers who purchased through Hudson House and Wadhams.19 Given these findings, it was unnecessary for the Commission to resort to the indirect customer doctrine. Whether suppliers deal directly with disfavored competitors or not, they can, and here did, afford a direct buyer the kind of competitive advantage which § 2(d) was intended to eliminate. In light of our holding that 'customers' in § 2(d) includes retailers who buy through wholesalers and compete with a direct buyer in the resale of the supplier's product, the requirement of direct dealing between the supplier and disfavored competitors imposed by the Court of Appeals rests on too narrow a reading of the statute. Further, in light of the Commission's finding that Meyer competed in the resale of the Idaho Canning and Tri-Valley products with other retailers in the area who purchased through Hudson House and Wadhams and in light of the fact that the Court of Appeals did not disturb this finding, the court misapprehended the Commission's burden in requiring it to trace those products to the shelves of the disfavored retailers.
IV.
14
The Commission's view of the impact of respondents' argument in no way conflicts with our own. In rejecting respondents' construction of § 2(d), the Commission observed:
15
'The net result of this argument is that the entire structure of 'independent' food merchants—including the traditional wholesaler and his numerous, small retailer-customers—are placed completely outside the pale of Section 2(d) of the amended Clayton Act insofar as their competition with the direct-buying 'chains' is concerned.
16
'We are not persuaded that Congress either intended or effected any such result when it passed section 2(d). In the first place, such a construction goes squarely against the well-known purposes of the Act itself, namely, to give the 'independent' food sellers an even break in their competition with the 'chains."20
17
But rather than concluding, as we have, that retailers who purchased through Hudson House and Wadhams and competed with Meyer in resales were disfavored customers of Tri-Valley and Idaho Canning, a majority of the Commission held that the wholesalers, Hudson House and Wadhams, were the customers entitled to promotional allowances on proportionately equal terms with Meyer. Although we approach the Commission's ruling with the deference due the agency charged with day-to-day administration of the Act, we hold that, at least on the facts before us, § 2(d) does not require proportional equality between Meyer and the two wholesalers.
18
The Commission believed it found support for its position in the language of § 2(d) itself, which requires that promotional allowances be accorded on proportionally equal terms to 'customers competing in the distribution' of a supplier's product, rather than merely to customers competing in resales. The majority reasoned that Hudson House and Wadhams, when they resold to Meyer's retail competitors, were competing with Meyer in the distribution of Tri-Valley and Idaho Canning products because the two wholesalers were 'seeking exactly the same consumer dollars that respondents are after.' 63 F.T.C., at —-. While it cannot be doubted that Congress reasonably could have employed such a broad concept of competition in § 2(d), we do not believe that the use of the word 'distribution' rather than 'resale' is a clear indication that it did, and what discussion there was of the promotional allowance provision during the congressional hearings indicates that the section was meant to impose proportional equality only where buyers competed on the same functional level. Thus, in reporting the provision, both the Senate and House Judiciary Committees used the following example:
19
'To illustrate: Where, as was revealed in the hearings earlier referred to in this report, a manufacturer grants a particular chain distributor an advertising allowance of a stated amount per month per store in which the former's goods are sold, a competing customer with a smaller number of stores, but equally able to furnish the same service per store, and under conditions of the same value to the seller would be entitled to a similar allowance on that basis.'21
20
This illustration and others which could be cited are not conclusive, but they do strongly suggest that the competition with which Congress was concerned in § 2(d) was that between buyers who competed in resales of the supplier's products. And, as stated above, Congress' objective was to assure that all sellers, regardless of size, competing directly for the same customers would receive evenhanded treatment from their suppliers.22 We noted in FTC v. Sun Oil Co., 371 U.S. 505, 83 S.Ct. 358, 9 L.Ed.2d 466 (1963), that when Congress wished to expand the meaning of competition to include more than resellers operating on the same functional level, it knew how to do so in unmistakable terms. It did so in § 2(a) of the Act by prohibiting price discrimination which may 'injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.' Id., at 514—515, 83 S.Ct. at 364; see FTC v. Morton Salt Co., 334 U.S. 37, 55, 68 S.Ct. 822, 832, 92 L.Ed. 1196 (1948). We stated in Sun Oil that:
21
'There is no reason appearing on the face of the statute to assume that Congress intended to invoke by omission in § 2(b) the same broad meaning of competition or competitor which it explicitly provided by inclusion in § 2(a); the reasonable inference is quite the contrary.'23
22
In the present case, too, we think 'the reasonable inference' is that Congress did not intend such a board meaning of competition in § 2(d). We recognize that it would be both inappropriate and unwise to attempt to formulate an allembracing rule applying the elusive language of the section to every system of distribution a supplier might devise for getting his product to the consumer. But, on the concrete facts here presented, it is clear that the direct impact of Meyer's receiving discriminatory promotional allowances is felt by the disfavored retailers with whom Meyer competes in resales. We cannot assume without a clear indication from Congress that § 2(d) was intended to compel the supplier to pay the allowances to a reseller further up the distributive chain who might or might not pass them on to the level where the impact would be felt directly. We conclude that the most reasonable construction of § 2(d) is one which places on the supplier the responsibility for making promotional allowances available to those resellers who compete directly with the favored buyer.
23
The Commission argues here that the view we take of § 2(d) is impracticable because suppliers will not always find it feasible to bypass their wholesalers and grant promotional allowances directly to their numerous retail outlets. Our decision does not necessitate such bypassing. We hold only that, when a supplier gives allowances to a direct-buying retailer, he must also make them available on comparable terms to those who buy his products through wholesalers and compete with the direct buyer in resales. Nothing we have said bars a supplier, consistently with other provisions of the antitrust laws, from utilizing his wholesalers to distribute payments or administer a promotional program, so long as the supplier takes responsibility, under rules and guides promulgated by the Commission for the regulation of such practices,24 for seeing that the allowances are made available to all who compete in the resale of his product.
24
The judgment of the Court of Appeals, insofar as it held that the promotional allowances granted Meyer by Tri-Valley and Idaho Canning did not violate § 2(d), is reversed. The case is remanded to the Court of Appeals with directions to remand to the Commission for further proceedings consistent with this opinion.
25
It is so ordered.
26
Judgment of Court of Appeals reversed in part, and case remanded to the Court of Appeals with directions.
27
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
28
Mr. Justice FORTAS, concurring.
29
I agree with the result in this case and I join the Court's opinion. The net of our decision, as I see it, is this. The statute permits a supplier to make payment to retailers for services and facilities only if such payment or its equivalent is made available to all competing retailers handling the supplier's product. If they choose to render the same or equivalent service or furnish the same or equivalent facilities, they are entitled to the same payment.* I believe that this result, obviously intended by the Congress, can best be squared with the language of § 2(d) by the device of regarding the wholesaler and his retail customer as a unit for purposes of that section. The Court is clearly correct in my view in requiring that the opportunity to participate be afforded to the competing retailer, and not merely to the wholesaler. This is the clear thrust and purpose of the section. The supplier may satisfy this obligation by direct dealing with the competing retailer or by arrangement with the wholesaler reasonably designed to transmit to the retailer participation in the program if the retailer chooses to accept.
30
Mr. Justice HARLAN, dissenting.
31
I dissent because I believe the time has come for a change in approach to Robinson-Patman Act cases that, as here, can only be decided by a judicial tour de force. No doubt, the broad purpose of the Act was to protect small sellers from the advantages their larger competitors can obtain through greater buying power. In implementing this purpose, however, the statute imposes a hodgepodge of confusing,1 inconsistent,2 and frequently misdirected3 restrictions. In such a situation it seems to me the wiser course for this Court to hew as closely as possible to the wandering line that the statute has drawn (with due deference to the expertise of the Commission charged with enforcing the statute) and not to read into the Act its own notions of how best to protect 'little people' from 'big people.'
32
In this case, certain suppliers made promotional allowances to the company, a direct-buying retailer. The Act provides that if promotional allowances are made to one customer they must also be made, on a basis of proportional equality, to all other 'customers competing in the distribution' of the supplier's product. The suppliers here involved did not make the promotional allowances given to the company available to certain retailers who compete with it but who buy not from the suppliers themselves but from wholesalers who in turn buy from the suppliers. The Court now holds, for the first time, 32 years after the passage of the Act, that although these disfavored retailers are not literally 'customers' of the suppliers, the 'broad goals' of the Act require them to be treated as if they were.
33
Unfortunately, nothing in the Act and not one word of legislative history the Court has found suggest that Congress meant the word 'customers' to mean 'non-customers who the Court thinks need protection.' The Federal Trade Commission refused to accept the suggestion of one Commissioner that this unexpected nonliteral reading of the word would best effectuate the Act's purposes, so that Commission expertise cannot in this instance be brought to bear in support of the Court's construction.
34
Furthermore, the failure of the Act to extend explicit protection in the present situation cannot be dismissed as mere legislative oversight. Compelling suppliers to make promotional allowances available to retailers with whom they do not deal is no simple matter. The supplier could deal through his wholesalers, imposing restrictions on them to guarantee that an 'allowance' is actually passed through to retailers, only by running afoul of the Sherman Act.4 Nor would it simplify matters to make the allowances directly available to retailers: by hypothesis, the retailers in question are too small to make direct dealing efficient, and in any event the suppliers and retailers would constantly risk a Sherman Act charge, by the wholesaler in the middle, that they were conspiring in restraint of him.5
35
In addition, under the present circumstances the very idea of 'proportional equality' is almost meaningless. The supplier is asked to offer 'equal' promotional allowances to a direct-buying chain and a set of small retailers who buy through wholesalers who presumably carry much of the promotion load; the supplier risks treble damages if his guess as to what is even-handed treatment turns out to be erroneous. Even if it were desirable to force suppliers to submit every promotion to the FTC for advance approval, the Commission's refusal to require equality between customers and noncustomers here does not indicate that the experts are sanguine about the possibility of working out a rational definition of proportional equality under these circumstances.
36
The supplier can, of course, resolutely refuse to enter into promotional programs, a course of action that would effectively avoid favoring large distributors. In doing so, however, he would be abandoning one significant form of competition with his fellow suppliers, and would risk the disfavor of retailers who might prevail on differently situated and less timorous competitive suppliers for assistance.
37
Congress, concerned as it was for small retailers, did not explicitly impose the particular restriction on suppliers announced today. Since, for all we know, the omission may have been deliberate in light of practical considerations, I prefer to take the statute as we find it. This course of action here and in similarly opaque cases might at least encourage the Congress to give this notoriously amorphous statute the thorough overhauling that has long been due.6 On this basis I consider that this case should go for the respondents.
38
Mr. Justice STEWART, dissenting.
39
Section 2(d) of the Clayton Act, as amended by the Robinson-Patman Act, makes it unlawful for a supplier to grant to a customer a promotional allowance which is not available to 'all other customers competing in the distribution of such products or commodities.' The Federal Trade Commission held that the respondent retailer had violated § 2(d) by inducing certain of its direct suppliers to grant it promotional allowances which were not available to wholesalers who sold the suppliers' products to retailers competing with the respondent.1 The Court of Appeals refused to enforce this part of the Commission's order on the ground that the wholesalers were not customers 'competing' with the respondent. We granted certiorari limited to a single question:
40
'Whether a supplier's granting to a retailer who buys directly from it promotional allowances that are not made available to a wholesaler who resells to retailers competing with the directbuying retailer violates Section 2(d) of the Robinson-Patman Act.' 386 U.S. 907, 87 S.Ct. 853, 17 L.Ed.2d 781.
41
The Court today agrees with the Court of Appeals' answer to this question and holds that wholesalers are not customers 'competing' with the respondent. But the Court nevertheless goes on to hold that § 2(d) was violated upon a theory not argued here by either party. The theory is that retailers who are in fact customers of independent wholesalers are somehow also 'customers' of the suppliers of those wholesalers. The Commission has never suggested that this case should turn on any such construction of the term 'customer.'2 Cf. SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626.
42
Because the Court of Appeals was correct in rejecting the Commission's construction of § 2(d), I would affirm its judgment. But, at the very least, the case should be remanded in order to give the respondent notice and an opportunity to defend against the novel construction of § 2(d) under which the Court today finds the respondent to be a violator of the law. Due process requires no less. Cf. Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644.
1
38 Stat. 730, as amended, 49 Stat. 1526, 1527, 15 U.S.C. §§ 13(a), 13(d). Section 2(a) provides in pertinent part:
'(I)t shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, * * * where the effect of such discrimination may be * * * to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: * * *.'
Section 2(d) provides in full:
'(I)t shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities.'
2
See n. 1, supra.
3
The Commission and respondents filed separate petitions for certiorari to review different rulings of the Court of Appeals. Respondents contended (1) that the Commission had failed to show that respondents' inducement of §§ 2(a) and 2(d) violations had been knowing and (2) that the Commission's order prohibiting future inducement of § 2(d) violations was too broad. The Commission's petition raised the question '(w)hether a supplier's granting to a retailer who buys directly from it promotional allowances that are not made available to a wholesaler who resells to retailers competing with the direct-buying retailer violates Section 2(d) of the Robinson-Patman Act.' The Commission also presented an additional question which it sought to reserve only if respondents' petition were granted. We denied respondents' petition, 386 U.S. 908, 87 S.Ct. 853 (1967), and specifically limited our review on the Commission's petition to the issue of statutory interpretation therein presented. 386 U.S. 907, 87 S.Ct. 853 (1967).
4
The Commission found that the total of $25,200 received by Meyer from 72 participating suppliers in each of the years 1956 and 1957 more than covered Meyer's cost of publishing, distributing, and publicizing the coupon books in those years. The Commission characterized as 'clear profit' the $13,870 paid Meyer by consumer purchasers of the books in 1957.
5
See n. 1, supra.
6
15 U.S.C. § 13(f):
'It shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section.'
7
38 Stat. 719, as amended, 66 Stat. 632, 15 U.S.C. § 45(a):
'(1) Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are hereby declared unlawful.
'(b) The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations * * * from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.'
8
63 F.T.C., at —- (Commissioner Elman, concurring in part and dissenting in part).
9
This case, in its present posture, does not present the question whether the functional label used by a manufacturer or reseller reflects his actual position in the distributive chain. Compare FTC v. Ruberoid Co., 343 U.S. 470, 475, 72 S.Ct. 800, 804, 96 L.Ed. 1081 (1952); cf. FTC v. Simplicity Pattern Co., 360 U.S. 55, 62—63, 79 S.Ct. 1005, 1010—1011, 3 L.Ed.2d 1079 (1959).
10
Automatic Canteen Co. of America v. FTC, 346 U.S. 61, 65, 73 S.Ct. 1017, 1020, 97 L.Ed. 1454 (1953); see F. Rowe, Price Discrimination Under the Robinson-Patman Act 20 (1962).
11
S.Res. No. 224, 70th Cong., 1st Sess., 69 Cong.Rec. 7857 (1928).
12
Federal Trade Commission, Final Report on the Chain-Store Investigation, S.Doc. No. 4, 74th Cong., 1st Sess., 63—65, 90—91, 96—97 (1935).
13
Id., at 57—65. See also Hearings before the Special House Committee on Investigation of American Retail Federation, 74th Cong., 1st Sess. (1935).
14
See C. Austin, Price Discrimination and Related Problems under the Robinson-Patman Act 6—11 (2d rev. ed. 1959). In presenting his bill to the House Judiciary Committee, Representative Patman stated:
'I believe it is the opinion of everyone who has studied this subject, that the day of the independent merchant is gone unless something is done and done quickly. He cannot possibly survive under that system. So we have reached the crossroads; we must either turn the food and grocery business of this * * * country over to a few corporate chains, or we have got to pass laws that will give the people, who built this country in time of peace and who saved it in time of war, an opportunity to exist—not to give them any special rights, special privileges, or special benefits, but just to deny their competitors the special benefits that they are getting, that they should not be permitted to have.' Hearings on H.R. 8442, 4995, and 5062 before the House Committee on the Judiciary, 74th Cong., 1st Sess., 5—6 (1935).
15
See Federal Trade Commission, Final Report on the Chain-Store Investigation, supra, n. 12, at 78—82.
16
Id., at 44—46, 61. See also Hearings before the Special House Committee on Investigation of American Retail Federation, 74th Cong., 1st Sess., Vol. 3, No. 1, at 66—88 (1935).
17
Hearings on Bills to Amend the Clayton Act before a Subcommitte of the House Committee on the Judiciary, 74th Cong., 2d Sess., 464 (1936) (Mr. Teegarden).
18
S.Rep. No. 1502, 74th Cong., 2d Sess., 7 (1936). The House Judiciary Committee reported the provision favorably in identical terms. H.R.Rep. No. 2287, 74th Cong., 2d Sess., 15—16 (1936).
19
The Commission's § 2(a) and § 2(d) rulings were both based on findings that retailers in the Portland area who purchased through Hudson House and Wadhams competed with Meyer in the resale of Idaho Canning corn and Tri-Valley peaches. The Court of Appeals could not have consistently set aside these findings with regard to the § 2(d) violations while upholding them with respect to § 2(a).
20
63 F.T.C., at —-.
21
S.Rep. No. 1502, 74th Cong., 2d Sess., 8 (1936); H.R.Rep. No. 2287, 74th Cong., 2d Sess., 16 (1936).
22
See n. 14, supra.
23
371 U.S., at 515, 83 S.Ct., at 365.
24
See 16 CFR §§ 1.55—1.56; cf. 'Guides for Allowances and Services,' 1 CCH Trade Reg.Rep. 3980, at 6073—6079.
*
We need not here consider refinements of the problem—e.g., the duty of the supplier to tailor his offer so that it is within the practical capability of all competing retailers; or negatively, to avoid making an offer which does not permit fair participation by all types of retailers of the product, as a practical matter.
1
See, e.g., F. Rowe, Price Discrimination Under the Robinson-Patman Act 534; Stedman, Twenty-four Years of the Robinson-Patman Act, 1960 Wis.L.Rev. 197, 218.
2
See, e.g., Levi, The Robinson-Patman Act—Is It in the Public Interest?, 1 ABA Antitrust Section 60 (1952—1953). As Professor Levi noted, published criticism of the Act is unsportingly easy to find: 'the literature on the Act has become something of a contest of witticisms to relieve an otherwise dreary picture.' Ibid. An example is Eine Kleine Juristische Schlummergeschichte, 79 Harv.L.Rev. 921.
3
See, e.g., Shniderman, The Impact of the Robinson-Patman Act on Pricing Flexibility, 57 Nw.U.L.Rev. 173; Austern, Presumption and Percipience About Competitive Effect Under Section 2 of the Clayton Act, 81 Harv.L.Rev. 773. The confusion is all the more unfortunate in a field where actual conflicting objectives are many: 'competitive' purposes are often at odds with 'protective' purposes; the defense of traders at one level of distribution may be inconsistent with the liberty of traders at another level, and with the interests of consumers.
4
Under Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998, it would presumably be unlawful per se for a supplier to attempt to prevent his wholesalers from absorbing the allowance by charging higher prices.
5
Under Albrecht, supra, n. 4, it is difficult to see why an agreement between supplier and retailer sufficient to insure that wholesalers in the middle do not absorb promotional allowances would not constitute a combination in restraint of these wholesalers.
6
See Friendly, The Gap in Lawmaking—Judges Who Can't and Legislators Who Won't, 63 Col.L.Rev. 787, 794: 'The tiniest fraction of the time spent by lawyers, legal writers, administrators, and judges in an unsuccessful endeavor to elucidate the obscurities of this statute would have sufficed to put the house in order once the problems were revealed; but that time has not been spent.'
1
In this opinion the term 'respondent' refers to Fred Meyer, Inc.
2
One Commissioner attempted in vain to persuade the Commission to accept the theory which the Court today adopts: 'What made this practice illegal, as I see it, is that the allowances were not also made available on proportionally equal terms to Meyer's retail competitors. But that is not the Commission's view of the law.' 63 F.T.C., at —- (Commissioner Elman, concurring in part and dissenting in part).
| 78
|
390 U.S. 404
88 S.Ct. 979
19 L.Ed.2d 1267
Archie Nathaniel BIGGERS, Petitioner,v.STATE OF TENNESSEE.
No. 237.
Argued Jan. 15, 1968.
Decided March 18, 1968.
Rehearing Denied April 22, 1968.
See 390 U.S. 1037, 88 S.Ct. 1401.
Michael Meltsner, New York City, for petitioner.
Thomas E. Fox, Nashville, Tenn., for respondent.
PER CURIAM.
1
The judgment below is affirmed by an equally divided Court.
2
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
Mr. Justice DOUGLAS, dissenting.1
3
Petitioner was indicted for a rape committed when he was 16 years old, was convicted, and after a trial by a jury sentenced to 20 years, first to a juvenile facility and later to prison. The Supreme Court of Tennessee affirmed the judgment of conviction. Biggers v. State, 219 Tenn. 553, 411 S.W.2d 696.
4
On the night of January 22, 1965, Mrs. Beamer was at home sewing, when an intruder with a butcher knife in his hand grabbed her from the rear. Her screams brought her 13-year-old daughter, who, arriving at the scene, also started to scream. The intruder said to Mrs. Beamer, 'You tell her to shut up, or I'll kill you both.' Mrs. Beamer ordered her daughter to a bedroom, and the intruder took Mrs. Beamer out of the house to a spot two blocks away and raped her.
5
During the next seven months the police showed Mrs. Beamer numerous police photographs one of which, she said, showed a man who 'had features' like the intruder. The case lay dormant. Mrs. Beamer was unable to describe the rapist other than to state he was fat and 'flabby,' had a youthful voice, smooth skin, and 'sort of bushy' hair.
6
On August 17, 1965, petitioner, still only 16 years old, was arrested for the rape of another woman. On the same day the police brought Mrs. Beamer to the police station to 'look at a suspect.' They brought petitioner to the doorway of the room where she sat. She asked the police to have him speak and they told him to repeat the words spoken by the rapist, 'Shut up, or I'll kill you.' Only after he had spoken did Mrs. Beamer identify petitioner as the man who had raped her; she testified that it was petitioner's voice that 'was the first thing that made me think it was the boy.' So far as the record indicates, at the time of this confrontation neither the parents of petitioner nor any attorney acting for him had been advised of the intended meeting with Mrs. Beamer.
7
The indictment followed. At the trial the daughter testified to what she had seen the evening of the rape, but was unable to identify petitioner as the rapist. The only evidence connecting him with the rape was Mrs. Beamer's station-house identification. She did not identify him in the courtroom.2 She testified that she had identified him by his size, his voice, his smooth skin, and his bushy hair. Three of the five police officers who were present at the identification testified over objection in corroboration of Mrs. Beamer's reaction at the confrontation. the confrontation.
8
This procedure of identification violates, of course, 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. Those were cases of lineups and this was not. Yet, though they recognized a suspect's right to counsel at that critical stage, the Court announced they would not have retroactive effect.
9
Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, make it clear, however, that independent of any right to counsel claim, a procedure of identification may be 'so unnecessarily suggestive and conducive to irreparable mistaken identification' that due process of law is denied when evidence of the identification is used at trial. Stovall v. Denno, supra, 388 U.S., at 302, 87 S.Ct., at 1972. The claim that Mrs. Beamer's identification of petitioner falls within this rule 'must be evaluated in light of the totality of surrounding circumstances' with the view of determining if the procedure in petitioner's case 'was so unduly prejudicial as fatally to taint his conviction.' Simmons v. United States, supra.
10
In Simmons, identification by use of photographs rather than a lineup was upheld because the bank robbers were still at large, the FBI had to quickly determine whether it was on the right track in looking for Simmons, the witnesses' memories were fresh since the robbery was but a day old, and because the photos pictured persons in addition to petitioner. In Stovall, a single-suspect confrontation held in a hospital room was found to comport with due process because the stabbing victim, the sole source of identification, was in danger of death—to have conducted a lineup would have entailed perhaps fatal delay.
11
We have no such problem of compelling urgency here. There was ample time to conduct a traditional lineup. This confrontation was crucial. Petitioner stood to be free of the charge or to account for it, dependent on what Mrs. Beamer said. Whatever may be said of lineups, showing a suspect singly to a victim is pregnant with prejudice. The message is clear: the police suspect this man. That carries a powerfully suggestive thought. Even in a lineup the ability to identify the criminal is severely limited by normal human fallibilities of memory and perception. When the subject is shown singly, havoc is more likely to be played with the best-intended recollections.
12
As noted, in Simmons, where identification was by photograph, the Court stressed that identification was made only a day after the crime while 'memories were still fresh.' 390 U.S., at 385, 88 S.Ct., at 972. Here, however, Mrs. Beamer confronted petitioner seven months after the rape, and the sharpness of her recall was being severely tested. In Simmons, too, the Court emphasized that the five witnesses had seen the robbers 'in a well-lighted bank.' Ibid. Here, however, there was '(n)o light in the hall' where Mrs. Beamer was first assaulted; from that hall, the assailant took her out of the house through a kitchen where there was 'no light,' and the railroad track where the rape occurred was illuminated only by the moon. Indeed, the best view Mrs. Beamer had of petitioner was in the hall by indirect light from a nearby bedroom.
13
In Simmons, the record did not indicate that the FBI told the witnesses which of the men in the photographs were suspects. Here, on the other hand, the police told Mrs. Beamer when they brought her to the station house that the man she would see was a 'suspect.'
14
Moreover, unlike the Simmons case, identification here rested hargely on voice. The fact that petitioner had 'the voice of an immature youth,' to use Mrs. Beamer's words, merely put him in a large class and did not relate him to speech peculiar to him. Voice identifications involve 'grave danger of prejudice to the suspect,' as the Court of Appeals for the Fourth Circuit said in Palmer v. Peyton, 359 F.2d 199, 201. No one else identified petitioner. The daughter could not; and Mrs. Beamer did not identify him in the courtroom. Petitioner was young and apparently had no previous police record. There was no other shred of evidence against him.
15
Under the circumstances of this case it seems plain that the police maximized the suggestion that petitioner committed the crime.
16
Of course, due process is not always violated when the police fail to assemble a lineup but conduct a one-man showup. Plainly here, however, the highly suggestive atmosphere that had been generated by the manner in which this showup was arranged and conducted could not have failed to affect Mrs. Beamer's judgment; when she was presented with no alternative choices, 'there (was) then a strong predisposition to overcome doubts and to fasten guilt upon the lone suspect.' Palmer v. Peyton, supra, at 201. The conclusion is inescapable that the entire atmosphere created by the police surrounding Mrs. Beamer's identification was so suggestive that use at trial of her station-house identification constituted a violation of due process. Since this was the only evidence of identification, there can be no question of harmless error. See Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.
17
Petitioner is entitled to a new trial unaffected by Mrs. Beamer's station-house identification and the testimony of the police officers who were present when it took place. See Gilbert v. State of California, supra, 388 U.S., at 272—273, 87 S.Ct., at 1956—1957.
18
The fact that petitioner is a Negro, and Mrs. Beamer also, is of course irrelevant to the due process question.
1
As respects the practice of Justices setting forth their views in a case where the judgment is affirmed by an equally divided Court, see American Communications Assn. C.J.O., v. Douds, 339 U.S. 382, 412—415, 422, 70 S.Ct. 674, 690—692, 695, 94 L.Ed. 925; Osman v. Douds, 339 U.S. 846, 847, 70 S.Ct. 901, 902, 94 L.Ed. 1328; In re Isserman, 345 U.S. 286, 73 S.Ct. 676, 97 L.Ed. 1013; 348 U.S. 1, 75 S.Ct. 6, 99 L.Ed. 3; Raley v. State of Ohio, 360 U.S. 423, 440, 79 S.Ct. 1257, 1267, 3 L.Ed.2d 1344; Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264, 80 S.Ct. 1463, 1464, 4 L.Ed.2d 1708.
2
Respondent contends that Mrs. Beamer made an in-court identification of petitioner as the rapist. But the portions of the record relied on do not support this claim. After Mrs. Beamer had described the station-house identification, the prosecutor asked her, 'Is there any doubt in your mind today?' She replied, 'No, there's no doubt.' The inference to be drawn is that Mrs. Beamer had no current doubt as to the correctness of her previous identification of petitioner at the police station.
| 01
|
19 L.Ed.2d 1263
88 S.Ct. 964
390 U.S. 400
Anne P. NEWMAN et al., Petitioners,v.PIGGIE PARK ENTERPRISES, INC., et al.
No. 339.
Argued March 7, 1968.
Decided March 18, 1968.
Jack Greenberg, New York City, for petitioners.
No appearance for respondents.
PER CURIAM.
1
The petitioners instituted this class action under Title II of the Civil Rights Act of 1964, § 204(a), 78 Stat. 244, 42 U.S.C. § 2000a—3(a), to enjoin racial discrimination at five drive-in restaurants and a sandwich shop owned and operated by the respondents in South Carolina. The District Court held that the operation of each of the respondents' restaurants affected commerce within the meaning of § 201(c)(2), 78 Stat. 243, 42 U.S.C. § 2000a(c)(2), and found, on undisputed evidence, that Negroes had been discriminated against at all six of the restaurants. 256 F.Supp. 941, 947, 951. But the District Court erroneously concluded that Title II does not cover drive-in restaurants of the sort involved in this case. 256 F.Supp., at 951 953. Thus the court enjoined racial discrimination only at the respondents' sandwich shop. Id., at 953.
2
The Court of Appeals reversed the District Court's refusal to enjoin discrimination at the drive-in establishments, 377 F.2d 433, 435—436, and then directed its attention to that section of Title II which provides that 'the prevailing party' is entitled to 'a reasonable attorney's fee' in the court's 'discretion.' § 204(b), 78 Stat. 244, 42 U.S.C. s 2000a—3(b).1 In remanding the case, the Court of Appeals instructed the District Court to award counsel fees only to the extent that the respondents' defenses had been advanced 'for purposes of delay and not in good faith.' 377 F.2d, at 437. We granted certiorari to decide whether this subjective standard properly effectuates the purposes of the counsel-fee provision of Title II of the Civil Rights Act of 1964. 389 U.S. 815, 88 S.Ct. 87, 19 L.Ed.2d 66. We hold that it does not.
3
When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law.2 A Title II suit is thus private in form only. When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority.3 If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees—not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.4
4
It follows that one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust. Because no such circumstances are present here,5 the District Court on remand should include reasonable counsel fees as part of the costs to be assessed against the respondents. As so modified, the judgment of the Court of Appeals is
5
Affirmed.
6
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
'In any action commenced pursuant to this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, and the United States shall be liable for costs the same as a private person.' 42 U.S.C. § 2000a—3(b).
2
In this connection, it is noteworthy that 42 U.S.C. § 2000a—3(a) permits intervention by the Attorney General in privately initiated Title II suits 'of general public importance' and provides that, 'in such circumstances as the court may deem just,' a district court may 'appoint an attorney for (the) complainant and may authorize the commencement of the civil action without the payment of fees, costs, or security.' Only where a 'pattern or practice' of discrimination is reasonably believed to exist may the Attorney General himself institute a civil action for injunctive relief. 42 U.S.C. § 2000a—5.
3
See S.Rep. No. 872, 88th Cong., 2d Sess., pt. 1, at 11, 24 (1964); H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, at 18 (1963); H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, at 1—2 (1963).
4
If Congress' objective had been to authorize the assessment of attorneys' fees against defendants who make completely groundless contentions for purposes of delay, no new statutory provision would have been necessary, for it has long been held that a federal court may award counsel fees to a successful plaintiff where a defense has been maintained 'in bad faith, vexatiously, wantonly, or for oppressive reasons.' 6 Moore's Federal Practice, 1352 (1966 ed.).
5
Indeed, this is not a even a borderline case, for the respondents interposed defenses so patently frivolous that a denial of counsel fees to the petitioners would be manifestly inequitable. Thus, for example, the 'fact that the defendants had discriminated both at (the) drive-ins and at (the sandwich shop) was * * * denied * * * (although) the defendants could not and did not undertake at the trial to support their denials. Includable in the same category are defendants' contention, twice pleaded after the decision in Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290, * * * that the Act was unconstitutional on the very grounds foreclosed by McClung; and defendants' contention that the Act was invalid because it 'contravenes the will of God' and constitutes an interference with the 'free exercise of the Defendant's religion." 377 F.2d 433, 437—438 (separate opinion of Judge Winter).
| 56
|
390 U.S. 365
88 S.Ct. 982
19 L.Ed.2d 1238
Frank P. POAFPYBITTY et al., Petitioners,v.SKELLY OIL COMPANY.
No. 65.
Argued Jan. 24, 1968.
Decided March 18, 1968.
Charles Hill Johns, Midwest City, Okl., for petitioners.
John H. Cantrell, Oklahoma City, Okl., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question presented is whether petitioners, who are Comanche Indians, have standing to sue under an oil and gas lease approved by the Department of the Interior for use on land held by Indians under trust patents issued by the United States.
2
In 1947 the Acting Commissioner of Indian Affairs approved an oil and gas lease which petitioners had executed to respondent, Skelly Oil Company, on the form prescribed by the Department of the Interior. The first well was drilled in 1956, and seven producing wells were soon completed. In 1961 petitioners retained counsel with the approval of the Department of the Interior1 and brought this damage action against respondent in the District Court of Oklahoma County, Oklahoma, alleging that respondent had breached the express and implied covenants in the lease and had thereby impaired petitioners' royalties. Respondent notified the Department of the Interior and the Bureau of Indian Affairs of the litigation, but the Government made no attempt to intervene in the proceedings. The petition filed in the District Court asserted that respondent had permitted natural gas being produced from the wells to escape despite the fact that there was a pipeline less than a mile from the land.2 Petitioners claimed that respondent ignored their request that the gas be marketed and continued to allow the gas to be wasted in violation of the terms of the lease.3 The District Court sustained respondent's demurrer and dismissed the petition. The Supreme Court of Oklahoma affirmed on the ground that petitioners were precluded from suing by the provisions of the lease and by the regulations promulgated by the Secretary of the Interior to control oil and gas leases on restricted Indian land.4 We granted certiorari, 389 U.S. 814, 88 S.Ct. 30, 19 L.Ed.2d 64 (1967), to determine whether the federal restrictions imposed on the Indians prevented them from vindicating their rights. In our view, the decision below unduly restricts the right of the Indians to seek judicial relief for a claimed injury to their interests under the oil and gas lease.
3
The trust patents to the land in question were issued to petitioners under the General Allotment Act of 1887, 24 Stat. 388, as amended, 25 U.S.C. §§ 331—358, which provided that individual Indians were to be allotted land on their reservations5 and that the United States was to hold the land 'in trust for the sole use and benefit of the Indian' allottees for a 25-year period. 25 U.S.C. § 348. During the trust period, which has been repeatedly extended,6 restricted Indian land may be sold or leased only with the consent of the Secretary of the Interior. In our view, these restrictions on the Indian's control of his land are mere incidents of the promises made by the United States in various treaties to protect Indian land and have no effect on the Indian's capacity to institute the court action necessary to protect his property. In order to fulfill these national promises to safeguard Indian land and at the same time 'to prepare the Indians to take their place as independent, qualified members of the modern body politic,' Board of County Comm'rs of Creek County v. Seber, 318 U.S. 705, 715, 63 S.Ct. 920, 926, 87 L.Ed. 1094 (1943), the allotment system was created with the Indians receiving ownership rights in the land while the United States retained the power to scrutinize the various transactions by which the Indian might be separated from that property. Squire v. Capoeman, 351 U.S. 1, 9, 76 S.Ct. 611, 100 L.Ed. 883 (1956). See, e.g., 18 Cong.Rec. 190—192 (1886). This dual purpose of the allotment system would be frustrated unless both the Indian and the United States were empowered to seek judicial relief to protect the allotment. The obligation and power of the United States to institute such litigation to aid the Indian in the protection of his rights in his allotment were recognized in United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 532 (1903); Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820 (1912); and United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023 (1926). See generally Federal Indian Law 326—341 (Dept. of Interior, 1958). In Heckman, an action brought by the United States to set aside an improper conveyance of restricted land, this Court realized that the allotment system created interests in both the Indian and the United States.7 'A transfer of the allotments is not simply a violation of the proprietary rights of the Indian. It violates the governmental rights of the United States.' 224 U.S., at 438, 32 S.Ct. at 432.
4
In holding that the United States could sue to protect the allotment, the Court indicated that the Government could either bring the necessary suit itself or allow the litigation to be prosecuted by the Indian.
5
'In what cases the United States will undertake to represent Indian owners of restricted lands in suits of this sort is left under the acts of Congress to the discretion of the Executive Department. The allottee may be permitted to bring his own action, or if so brought, the United States may aid him in its conduct * * *. And when the United States itself undertakes to represent the allottees of lands under restriction and brings suit to cancel prohibited transfers, such action necessarily precludes the prosecution by the allottees of any other suit for a similar purpose relating to the same property.' Id., at 446, 32 S.Ct. at 435.
6
Later decisions followed the implications of Heckman and held that the right of the United States to institute a suit to protect the allotment did not diminish the Indian's right to sue on his own behalf. In Creek Nation v. United States, 318 U.S. 629, 63 S.Ct. 784, 87 L.Ed. 1046 (1943), this Court held that Indian tribes had the power to sue a railroad for the improper use of Indian land even though the tribes could not sue the United States for its failure to collect the sums allegedly due.8 The Court stated, 'That the United States also had a right to sue did not necessarily preclude the tribes from bringing their own actions.' Id., at 640, 63 S.Ct. at 790. Accord, Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 39 S.Ct. 185, 63 L.Ed. 504 (1919); Skokomish Indian Tribe v. France, 269 F.2d 555 (C.A. 9th Cir. 1959). Nor does the existence of the Government's power to sue affect the rights of the individual Indian.9 'A restricted Indian is not without capacity to sue or to be sued with respect to his affairs, including his restricted property. * * * Both the act of April 12, 1926 and the decision * * * in Heckman v. United States * * * recognize capacity in a restricted Indian to sue or defend actions in his own behalf subject only to the right of the Government to intervene.' Sadler v. Public Nat. Bank & Trust Co., 172 F.2d 870, 874 (C.A.10th Cir. 1949). And in Choctaw & Chickasaw Nations v. Seitz, 193 F.2d 456, 459 (C.A.10th Cir. 1951), the court stated that Heckman, supra, Lane, supra, and Candelaria, supra, 'clearly recognized the rights of restricted Indians and Indian tribes or pueblos to maintain actions with respect to their lands, although the United States would not be bound by the judgment in such an action, to which it was not a party, brought by the restricted Indian or an Indian tribe or pueblo.' In Brown v. Anderson, 61 Okl. 136, 160 P. 724 (1916), the Oklahoma Supreme Court itself held that Heckman had 'fully answered' the argument that only the United States as guardian of the Indian could bring a suit to cancel an improper conveyance of a restricted Indian allotment. The court held:
7
'Osborne Anderson, the defendant in error, although a full-blood Indian, was a citizen of the United States and of the state of Oklahoma. No good reason appears why he should be denied the privilege of appealing to the courts of the state the same as any other citizen to enforce his rights to property, even though such property be land upon which restrictions against alienation have been imposed by an act of Congress.' 61 Okl., at 138—139, 160 P., at 726.
8
See Bell v. Fitzpatrick, 53 Okl. 574, 157 P. 334 (1916); L. Mills, Oklahoma Indian Land Laws § 328 (1924). We agree that the federal restrictions preventing the Indian from selling or leasing his allotted land without the consent of a governmental official do not prevent the Indian landowner, like other property owners, from maintaining suits appropriate to the protection of his rights.
9
There remains the question whether the terms of the oil and gas lease or the regulations promulgated by the Secretary of the Interior to govern those leases prevent the Indians from seeking judicial relief for an alleged impairment of their interests under the lease. Respondent argues that the Secretary has such complete control over the lease that only he can institute the necessary court action.
10
The leasing of allotted land for mining purposes 'by said allottee' is expressly authorized by 25 U.S.C. § 396. Although the approval of the Secretary is required, he is not the lessor and he cannot grant the lease on his own authority.10 The Secretary is authorized to promulgate regulations controlling the operation and development of the lease and to issue necessary written instructions to the lessee. Ibid. See generally 25 CFR §§ 172.1 172.33 (1967); 30 CFR §§ 221.1—221.67 (1967). The lessee is required to furnish a surety bond, in an amount satisfactory to the Secretary, guaranteeing compliance with the terms of the lease, which incorporate the regulations of the Secretary. 25 U.S.C. § 396c. The Secretary has the power to inspect the leased premises and the books and records of the lessee. 25 CFR § 172.25 (1967). The Secretary also has the power to impose such restrictions as to the time for the drilling of wells or the production from any well 'as in his judgment may be necessary or proper for the protection of the natural resources of the leased land and in the interests of the Indian lessor.' 25 CFR § 172.24 (1967). The lessee must furnish the Secretary with a monthly report disclosing all operations conducted on the lease, 30 CFR §§ 221.60—221.65 (1967), and must pay the royalties to the Secretary who deposits them to the credit of the Indian lessor. 25 CFR §§ 172.14, 172.16 (1967). The lessee agrees to drill wells which the Secretary determines are necessary to protect the leased land from drainage by another well on adjoining property. 30 CFR § 221.21 (1967). Finally, the lessee is obligated to prevent the waste of oil and gas and agrees to pay the Indian lessor the full value of all gas wasted, unless the Secretary determines at the request of the lessee that the waste was sanctioned by state and federal law. 30 CFR §§ 221.18, 221.35 (1967).
11
While the United States has exercised its supervisory authority over oil and gas leases in considerable detail, we find nothing in this regulatory scheme which would preclude petitioners from seeking judicial relief for an alleged violation of the lease. If the Government does determine that there has been waste in violation of a lease, it will of course satisfy its trust obligations by filing the necessary court action. However, there is nothing in the lease or regulations requiring the Indians to seek administrative action from the Government instead of instituting legal proceedings on their own. The existence of the power of the United States to sue upon a violation of the lease no more diminishes the right of the Indian to maintain an action to protect that lease than the general power of the United States to safeguard an allotment affected the capacity of the Indian to protect that allotment. Furthermore, the Bureau of Indian Affairs, which is the agency of the Department of the Interior charged with fulfilling the trust obligations of the United States, is faced 'with an almost staggering problem in attempting to discharge its trust obligations with respect to thousands upon thousands of scattered Indian allotments. In some cases, the adequate fulfillment of trust responsibilities on these allotments would undoubtedly involve administrative costs running many times the income value of the property.' H.R.Rep. No. 2503, 82d Cong., 2d Sess., 23 (1952). Recognizing these administrative burdens and realizing that the Indian's right to sue should not depend on the good judgment or zeal of a government attorney, the United States has indicated its support of petitioners' position that Indians have a capacity to sue under the oil and gas lease.11
12
The regulations do empower the Secretary to cancel a lease 'for good cause upon application of the lessor or lessee, or if at any time the Secretary is satisfied that the provisions of the lease or of any regulations heretofore or hereafter prescribed have been violated.' 25 CFR § 172.23 (1967). However, there is no justification for concluding that the severe sanction of cancellation of the lease is the only relief for all breaches of the lease terms or for any failure to pay royalties. Both the lessor and the lessee may wish to resolve their disagreement by the payment of damages and not by the cancellation of a basically satisfactory lease.
13
Nor is the capacity of the Indian defeated by § 6 of the lease, which provides that the Secretary may cancel the lease 'before restrictions are removed,' and concludes, 'Provided, That after restrictions are removed the lessor shall have and be entitled to any available remedy in law or equity for breach of this contract by the lessee.'12 There is no warrant for implying by negative inference from this proviso a denial of all remedies otherwise available to the Indian prior to the removal of the federal restrictions on his power to alienate the land. Section 6 merely provides that when the federal restrictions on alienation are terminated, the federal supervision over the lease will likewise come to an end, without impairing the continuing rights of the Indian. Compare 25 CFR § 172.28 (1967).13
14
Respondent's argument that the judgment in its favor should be sustained on available adequate state procedural grounds is untenable. Since the Oklahoma Supreme Court's decision rested solely on federal grounds, that court must have either rejected or failed to reach the asserted state grounds. Furthermore, we intimate no view on the merits of the case. If the lessee has conformed to all of the requirements of the federal regulations and has not breached any of the terms of the lease, the suit may fail. We merely hold that the Indian lessors have the capacity to maintain an action seeking damages for the alleged breach of the oil and gas lease. Accordingly, the judgment of the Supreme Court of Oklahoma is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
15
Reversed and remanded.
16
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
The Area Director of the Bureau of Indian Affairs approved a contract between petitioners and an attorney for legal services to be rendered in connection with this litigation. The Area Director has been delegated the authority to approve the employment of attorneys for individual Indians who may be compensated on a quantum meruit basis from restricted trust funds. Section 269 of Order 551 of the Commissioner of Indian Affairs, 16 Fed.Reg. 2939 (1951), as amended, 22 Fed.Reg. 6066 (1957).
2
The petition also alleged that the waste of natural gas violated § 86.3 of the Oklahoma Oil and Gas Conservation Act. Okl.Stat., Tit. 52, § 86.3 (1951). In response to a motion to require petitioners to elect between or state separately a cause of action under the lease and one based on tort, the District Court, with the approval of the parties, struck the alleged violation of the conservation statute from the petition. After petitioners announced that the petition then stated only one cause of action which sought recovery for the breach of the lease, the District Court denied the motion.
3
The lease provides:
'3. In consideration of the foregoing, the lessee hereby agrees:
'(f) Diligence, prevention of waste.—To exercise reasonable diligence in drilling and operating wells for oil and gas on the lands covered hereby, while such products can be secured in paying quantities; to carry on all operations hereunder in a good and workmanlike manner in accordance with approved methods and practice, having due regard for the prevention of waste of oil or gas developed on the land. * * *'
See 30 CFR §§ 221.18, 221.35 (1967).
4
The opinion of the Oklahoma Supreme Court is not reported.
5
Indians are expressly authorized to institute proceedings against the United States to establish their right to an allotment. 25 U.S.C. § 345.
6
See note following 25 U.S.C. § 348. And see 25 U.S.C. § 462, which provides: 'The existing periods of trust placed upon any Indian lands and any restriction on alienation thereof are extended and continued until otherwise directed by Congress.'
7
'This national interest is not to be expressed in terms of property, or to be limited to the assertion of rights incident to the ownership of a reversion or to the holding of a technical title in trust.' Heckman v. United States, 224 U.S. 413, 437, 32 S.Ct. 424, 431 (1912), quoted with approval in United States v. Hellard, 322 U.S. 363, 366, 64 S.Ct. 985, 987, 88 L.Ed. 1326 (1944).
8
Indians of course are now authorized to bring claims against the United States. See Indian Claims Commission Act, 60 Stat. 1049 (1946), 25 U.S.C. §§ 70—70w. For claims arising after August 13, 1946, see 28 U.S.C. § 1505, conferring jurisdiction on the Court of Claims.
9
'(T)he rights of restricted Indians and Indian tribes or pueblos to maintain actions with respect to their lands are clearly recognized, although the United States might not be bound by a judgment in such an action to which it was not a party.' Federal Indian Law 336 (1958).
10
A proviso to § 396 does give the Secretary the power to offer leases on his own if the allottee is deceased and the heirs have not been determined or cannot be found. 25 U.S.C. § 396.
11
The Memorandum for the United States as amicus curiae states, at 7:
'In sum, respondent's contention that, until the trusteeship is ended, the Indian landowners are disabled from maintaining suit for breach of a lease they have granted of their own property is unsupported in the governing statutes, the implementing regulations, or the terms of the lease.'
12
Section 6 of the lease provides:
'6. Cancellation and forfeiture.—When, in the opinion of the Secretary of the Interior, there has been a violation of any of the terms and conditions of this lease before restrictions are removed, the Secretary of the Interior shall have the right at any time after 30 days notice to the lessee, specifying the terms and conditions violated, and after a hearing, if the lessee shall so request within 30 days of receipt of notice, to declare this lease null and void, and the lessor shall then be entitled, and authorized to take immediate possession of the land: Provided, That after restrictions are removed the lessor shall have and be entitled to any available remedy in law or equity for breach of this contract by the lessee.'
13
The regulation dealing with the removal of restrictions avoids the danger of a negative inference by stating: 'Oil and gas leases * * * on land from all of which restrictions against alienation have been or shall be removed, even if such leases contain provisions authorizing supervision by the Department, shall, after such removal of restrictions against alienation, be operated entirely free from such supervision, and the authority and power delegated to the Secretary of the Interior in said leases shall cease. * * *' 25 CFR § 172.28 (1967).
| 12
|
390 U.S. 377
88 S.Ct. 967
19 L.Ed.2d 1247
Thomas Earl SIMMONS et al., Petitioners,v.UNITED STATES.
No. 55.
Argued Jan. 15, 1968.
Decided March 18, 1968.
[Syllabus from pages 377-379 intentionally omitted]
Raymond J. Smith for petitioners.
Sol. Gen. Erwin N. Griswold, for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case presents issues arising out of the petitioners' trial and conviction in the United States District Court for the Northern District of Illinois for the armed robbery of a federally insured savings and loan association.
2
The evidence at trial showed that at about 1:45 p.m. on February 27, 1964, two men entered a Chicago savings and loan association. One of them pointed a gun at a teller and ordered her to put money into a sack which the gunman supplied. The men remained in the bank about five minutes. After they left, a bank employee rushed to the street and saw one of the men sitting on the passenger side of a departing white 1960 Thunderbird automobile with a large scrape on the right door. Within an hour police located in the vicinity a car matching this description. They discovered that it belonged to a Mrs. Rey, sister-in-law of petitioner Simmons. She told the police that she had loaned the car for the afternoon to her brother, William Andrews.
3
At about 5:15 p.m. the same day, two FBI agents came to the house of Mrs. Mahon, Andrews' mother, about half a block from the place where the car was then parked.1 The agents had no warrant, and at trial it was disputed whether Mrs. Mahon gave them permission to search the house. They did search, and in the basement they found two suitcases, of which Mrs. Mahon disclaimed any knowledge. One suitcase contained, among other items, a gun holster, a sack similar to the one used in the robbery, and several coin cards and bill wrappers from the bank which had been robbed.
4
The following morning the FBI obtained from another of Andrews' sisters some snapshots of Andrews and of petitioner Simmons, who was said by the sister to have been with Andrews the previous afternoon. These snapshots were shown to the five bank employees who had witnessed the robbery. Each witness identified pictures of Simmons as representing one of the robbers. A week or two later, three of these employees identified photographs of petitioner Garrett as depicting the other robber, the other two witnesses stating that they did not have a clear view of the second robber.
5
The petitioners, together with William Andrews, subsequently were indicted and tried for the robbery, as indicated. Just prior to the trial, Garrett moved to suppress the Government's exhibit consisting of the suitcase containing the incriminating items. In order to establish his standing so to move, Garrett testified that, although he could not identify the suitcase with certainty, it was similar to one he had owned, and that he was the owner of clothing found inside the suitcase. The District Court denied the motion to suppress. Garrett's testimony at the 'suppression' hearing was admitted against him at trial.
6
During the trial, all five bank employee witnesses identified Simmons as one of the robbers. Three of them identified Garrett as the second robber, the other two testifying that they did not get a good look at the second robber. The District Court denied the petitioners' request under 18 U.S.C. § 3500 (the so-called Jencks Act) for production of the photographs which had been shown to the witnesses before trial.
7
The jury found Simmons and Garrett, as well as Andrews, guilty as charged. On appeal, the Court of Appeals for the Seventh Circuit affirmed as to Simmons and Garrett, but reversed the conviction of Andrews on the ground that there was insufficient evidence to connect him with the robbery. 371 F.2d 296.
8
We granted certiorari as to Simmons and Garrett, 388 U.S. 906, 87 S.Ct. 2108, 18 L.Ed.2d 1345, to consider the following claims. First, Simmons asserts that his pretrial identification (by means of photographs was in the circumstances so unnecessarily suggestive and conducive to misidentification as to deny him due process of law, or at least to require reversal of his conviction in the exercise of our supervisory power over the lower federal courts. Second, both petitioners contend that the District Court erred in refusing defense requests for production under 18 U.S.C. § 3500 of the pictures of the petitioners which were shown to eyewitnesses prior to trial. Third, Garrett urges that his constitutional rights were violated when testimony given by him in support of his 'suppression' motion was admitted against him at trial. For reasons which follow, we affirm the judgment of the Court of Appeals as to Simmons, but reverse as to Garrett.
I.
9
The facts as to the identification claim are these. As has been noted previously, FBI agents on the day following the robbery obtained from Andrews' sister a number of snapshots of Andrews and Simmons. There seem to have been at least six of these pictures, consisting mostly of group photographs of Andrews, Simmons, and others. Later the same day, these were shown to the five bank employees who had witnessed the robbery at their place of work, the photographs being exhibited to each employee separately. Each of the five employees identified Simmons from the photographs. At later dates, some of these witnesses were again interviewed by the FBI and shown indeterminate numbers of pictures. Again, all identified Simmons. At trial, the Government did not introduce any of the photographs, but relied upon in-court identification by the five eyewitnesses, each of whom swore that Simmons was one of the robbers.
10
In support of his argument, Simmons looks to last Term's 'lineup' decisions—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—in which this Court first departed from the rule that the manner of an extra-judicial identification affects only the weight, not the admissibility, of identification testimony at trial. The rationale of those cases was that an accused is entitled to counsel at any 'critical stage of the prosecution,' and that a post-indictment lineup is such a 'critical stage.' See 388 U.S., at 236—237, 87 S.Ct., at 1937 1938. Simmons, however, does not contend that he was entitled to counsel at the time the pictures were shown to the witnesses. Rather, he asserts simply that in the circumstances the identification procedure was so unduly prejudicial as fatally to taint his conviction. This is a claim which must be evaluated in light of the totality of surrounding circumstances. See Stovall v. Denno, 388 U.S. 293, at 302, 87 S.Ct. 1967, at 1972, 18 L.Ed.2d 1199; Palmer v. Peyton, 4 Cir., 359 F.2d 199. Viewed in that context, we find the claim untenable.
11
It must be recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.2 The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime.3 Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.4
12
Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301—302, 87 S.Ct. 1967, 1972—1973, and with decisions of other courts on the question of identification by photograph.5
13
Applying the standard to this case, we conclude that petitioner Simmons' claim on this score must fail. In the first place, it is not suggested that it was unnecessary for the FBI to resort to photographic identification in this instance. A serious felony had been committed. The perpetrators were still at large. The inconclusive clues which law enforcement officials possessed led to Andrews and Simmons. It was essential for the FBI agents swiftly to determine whether they were on the right track, so that they could properly deploy their forces in Chicago and, if necessary, alert officials in other cities. The justification for this method of procedure was hardly less compelling than that which we found to justify the 'one-man lineup' in Stovall v. Denno, supra.
14
In the second place, there was in the circumstances of this case little chance that the procedure utilized led to misidentification of Simmons. The robbery took place in the afternoon in a well-lighted bank. The robbers wore no masks. Five bank employees had been able to see the robber later identified as Simmons for periods ranging up to five minutes. Those witnesses were shown the photographs only a day later, while their memories were still fresh. At least six photographs were displayed to each witness. Apparently, these consisted primarily of group photographs, with Simmons and Andrews each appearing several times in the series. Each witness was alone when he or she saw the photographs. There is no evidence to indicate that the witnesses were told anything about the progress of the investigation, or that the FBI agents in any other way suggested which persons in the pictures were under suspicion.
15
Under these conditions, all five eyewitnesses identified Simmons as one of the robbers. None identified Andrews, who apparently was as prominent in the photographs as Simmons. These initial identifications were confirmed by all five witnesses in subsequent viewings of photographs and at trial, where each witness identified Simmons in person. Notwithstanding cross-examination, none of the witnesses displayed any doubt about their respective identifications of Simmons. Taken together, these circumstances leave little room for doubt that the identification of Simmons was correct, even though the identification procedure employed may have in some respects fallen short of the ideal.6 We hold that in the factual surroundings of this case the identification procedure used was not such as to deny Simmons due process of law or to call for reversal under our supervisory authority.
II.
16
It is next contended, by both petitioners, that in any event the District Court erred in refusing a defense request that the photographs shown to the witnesses prior to trial be turned over to the defense for purposes of cross-examination. This claim to production is based on 18 U.S.C. § 3500, the so-called Jencks Act. That Act, passed in response to this Court's decision in Jancks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, provides that after a witness has testified for the Government in a federal criminal prosecution the Government must, on request of the defense, produce any 'statement * * * of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.' For the Act's purposes, as they relate to this case, a 'statement' is defined as 'a written statement made by said witness and signed or otherwise adopted or approved by him * * *.' Written statements of this kind were taken from all five eyewitnesses by the FBI on the day of the robbery. Apparently none were taken thereafter. When these statements were produced by the Government at trial pursuant to § 3500, the defense also claimed the right to look at the photographs 'under 3500.' The District Judge denied these requests.
17
The petitioners' theory seems to be that the photographs were incorporated in the written statements of the witnesses, and that they therefore had to be produced under § 3500. The legislative history of the Jencks Act does confirm that photographs must be produced if they constitute a part of a written statement.7 However, the record in this case does not bear out the petitioners' claim that the pictures involved here were part of the statements which were approved by the witnesses and, therefore, producible under § 3500. It appears that all such statements were made on the day of the robbery. At that time, the FBI and police had no pictures of the petitioners. The first pictures were not acquired and shown to the witnesses until the morning of the following day. Hence, they could not possibly have been a part of the statements made and approved by the witnesses the day of the robbery.
18
The petitioners seem also to suggest that, quite apart from § 3500, the District Court's refusal of their request for the photographs amounted to an abuse of discretion. The photographs were not referred to by the Government in its case-in-chief. They were first asked for by the defense after the direct examination of the first eyewitness, on the second day of the trial. When the defense requested the pictures, counsel for the Government noted that there were a 'multitude' of pictures and stated that it might be difficult to identify those which were shown to particular witnesses. However, he indicated that the Government was willing to furnish all of the pictures, if they could be found. The District Court, referring to the fact that production of the photographs was not required under § 3500, stated that it would not stop the trial in order to have the pictures made available.
19
Although the pictures might have been of some assistance to the defense, and although it doubtless would have been preferable for the Government to have labeled the pictures shown to each witness and kept them available for trial,8 we hold that in the circumstances the refusal of the District Court to order their production did not amount to an abuse of discretion, at least as to petitioner Simmons.9 The defense surely knew that photographs had played a role in the identification process. Yet there was no attempt to have the pictures produced prior to trial pursuant to Fed.Rule Crim.Proc. 16. When production of the pictures was sought at trial, the defense did not explain why they were needed, but simply argued that production was required under § 3500. Moreover, the strength of the eyewitness identifications of Simmons renders it highly unlikely that nonproduction of the photographs caused him any prejudice.
III.
20
Finally, it is contended that it was reversible error to allow the Government to use against Garrett on the issue of guilt the testimony given by him upon his unsuccessful motion to suppress as evidence the suitcase seized from Mrs. Mahon's basement and its contents. That testimony established that Garrett was the owner of the suitcase.10
21
In order to effectuate the Fourth Amendment's guarantee of freedom from unreasonable searches and seizures, this Court long ago conferred upon defendants in federal prosecutions the right, upon motion and proof, to have excluded from trial evidence which had been secured by means of an unlawful search and seizure. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. More recently, this Court has held that 'the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments * * *.' Mapp v. Ohio, 367 U.S. 643, 657, 81 S.Ct. 1684, 1693, 6 L.Ed.2d 1081.
22
However, we have also held that rights assured by the Fourth Amendment are personal rights, and that they may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure. See, e.g., Jones v. United States, 362 U.S. 257, 260—261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697. At one time a defendant who wished to assert a Fourth Amendment objection was required to show that he was the owner or possessor of the seized property or that he had a possessory interest in the searched premises.11 In part to avoid having to resolve the issue presented by this case, we relaxed those standing requirements in two alternative ways in Jones v. United States, supra. First, we held that when, as in Jones, possession of the seized evidence is itself an essential element of the offense with which the defendant is charged, the Government is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence. Second, we held alternatively that the defendant need have no possessory interest in the searched premises in order to have standing; it is sufficient that he be legitimately on those premises when the search occurs. Throughout this case, petitioner Garrett has justifiably, and without challenge from the Government, proceeded on the assumption that the standing requirements must be satisfied.12 On that premise, he contends that testimony given by a defendant to meet such requirements should not be admissible against him at trial on the question of guilt or innocence. We agree.
23
Under the standing rules set out in Jones, there will be occasions, even in prosecutions for nonpossessory offenses, when a defendant's testimony will be needed to establish standing. This case serves as an example. Garrett evidently was not in Mrs. Mahon's house at the time his suitcase was seized from her basement. The only, or at least the most natural, way in which he could found standing to object to the admission of the suitcase was to testify that he was its owner.13 Thus, his testimony is to be regarded as an integral part of his Fourth Amendment exclusion claim. Under the rule laid down by the courts below, he could give that testimony only by assuming the risk that the testimony would later be admitted against him at trial. Testimony of this kind, which links a defendant to evidence which the Government considers important enough to seize and to seek to have admitted at trial, must often be highly prejudicial to a defendant. This case again serves as an example, for Garrett's admitted ownership of a suitcase which only a few hours after the robbery was found to contain money wrappers taken from the victimized bank was undoubtedly a strong piece of evidence against him. Without his testimony, the Government might have found it hard to prove that he was the owner of the suitcase.14
24
The dilemma faced by defendants like Garrett is most extreme in prosecutions for possessory crimes, for then the testimony required for standing itself proves an element of the offense. We eliminated that Hobson's choice in Jones v. United States, supra, by relaxing the standing requirements. This Court has never considered squarely the question whether defendants charged with nonpossessory crimes, like Garrett, are entitled to be relieved of their dilemma entirely.15 The lower courts which have considered the matter, both before and after Jones, have with two exceptions agreed with the holdings of the courts below that the defendant's testimony may be admitted when, as here, the motion to suppress has failed.16 The reasoning of some of these courts would seem to suggest that the testimony would be admissible even if the motion to suppress had succeeded,17 but the only court which has actually decided that question held that when the motion to suppress succeeds the testimony given in support if it is excludable as a 'fruit' of the unlawful search.18 The rationale for admitting the testimony when the motion fails has been that the testimony is voluntarily given and relevant, and that it is therefore entitled to admission on the same basis as any other prior testimony or admission of a party.19
25
It seems obvious that a defendant who knows that his testimony may be admissible against him at trial will sometimes be deterred from presenting the testimonial proof of standing necessary to assert a Fourth Amendment claim. The likelihood of inhibition is greatest when the testimony is known to be admissible regardless of the outcome of the motion to suppress. But even in jurisdictions where the admissibility of the testimony depends upon the outcome of the motion, there will be a deterrent effect in those marginal cases in which it cannot be estimated with confidence whether the motion will succeed. Since search-and-seizure claims depend heavily upon their individual facts,20 and since the law of search and seizure is in a state of flux,21 the incidence of such marginal cases cannot be said to be negligible. In such circumstances, a defendant with a substantial claim for the exclusion of evidence may conclude that the admission of the evidence, together with the Government's proof linking it to him, is preferable to risking the admission of his own testimony connecting himself with the seized evidence.
26
The rule adopted by the courts below does not merely impose upon a defendant a condition which may deter him from asserting a Fourth Amendment objection—it imposes a condition of a kind to which this Court has always been peculiarly sensitive. For a defendant who wishes to establish standing must do so at the risk that the words which he utters may later be used to incriminate him. Those courts which have allowed the admission of testimony given to establish standing have reasoned that there is no violation of the Fifth Amendment's Self-Incrimination Clause because the testimony was voluntary.22 As an abstract matter, this may well be true. A defendant is 'compelled' to testify in support of a motion to suppress only in the sense that if he refrains from testifying he will have to forego a benefit, and testimony is not always involuntary as a matter of law simply because it is given to obtain a benefit.23 However, the assumption which underlies this reasoning is that the defendant has a choice: he may refuse to testify and give up the benefit.24 When this assumption is applied to a situation in which the 'benefit' to be gained is that afforded by another provision of the Bill of Rights, an undeniable tension is created. Thus, in this case Garrett was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.
27
For the foregoing reasons, we affirm the judgment of the Court of Appeals so far as it relates to petitioner Simmons. We reverse the judgment with respect to petitioner Garrett, and as to him remand the case to the Court of Appeals for further proceedings consistent with this opinion.
28
It is so ordered.
29
Affirmed in part and reversed and remanded in part.
30
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
31
Mr. Justice BLACK, concurring in part and dissenting in part.
32
I concur in affirmance of the conviction of Simmons but dissent from reversal of Garrett's conviction. I shall first discuss Simmons' case.
33
1. Simmons' chief claim is that his 'pretrial identification (was) so unnecessarily suggestive and conducive to irreparable mistaken identification, that he was denied due process of law.' The Court rejects this contention. I agree with the Court but for quite different reasons. The Court's opinion rests on a lengthy discussion of inferences that the jury could have drawn from the evidence of identifying witnesses. A mere summary reading of the evidence as outlined by this Court shows that its discussion is concerned with the weight of the testimony given by the identifying witnesses. The weight of the evidence, however, is not a question for the Court but for the jury, and does not raise a due process issue. The due process question raised by Simmons is, and should be held to be, frivolous. The identifying witnesses were all present in the bank when it was robbed and all saw the robbers. The due process contention revolves around the circumstances under which these witnesses identified pictures of the robbers shown to them, and these circumstances are relevant only to the weight the identification was entitled to be given. The Court, however, considers Simmons' contention on the premise that a denial of due process could be found in the 'totality of circumstances' of the picture identification. I do not believe the Due Process Clause or any other constitutional provision vests this Court with any such wideranging, uncontrollable power. A trial according to due process of law is a trial according to the 'law of the land'—the law as enacted by the Constitution or the Legislative Branch of Government, and not 'laws' formulated by the courts according to the 'totality of the circumstances.' Simmons' due process claim here should be denied because it is frivolous.* For these reasons I vote to affirm Simmons' conviction.
34
2. I agree with the Court, in part for reasons it assigns, that the District Court did not commit error in declining to permit the photographs used to be turned over to the defense for purposes of cross-examination.
35
3. The Court makes new law in reversing Garrett's conviction on the ground that it was error to allow the Government to use against him testimony he had given upon his unsuccessful motion to suppress evidence allegedly seized in violation of the Fourth Amendment. The testimony used was Garrett's statement in the suppression hearing that he was the owner of a suitcase which contained money wrappers taken from the bank that was robbed. The Court is certainly guilty of no overstatement in saying that this 'was undoubtedly a strong piece of evidence against (Garrett).' Ante, at 391. In fact, one might go further and say that this testimony, along with the statements of the eyewitnesses against him, showed beyond all question that Garrett was one of the bank robbers. The question then is whether the Government is barred from offering a truthful statement made by a defendant at a suppression hearing in order to prevent the defendant from winning an acquittal on the false premise that he is not the owner of the property he has already sworn that he owns. My answer to this question is 'No.' The Court's answer is 'Yes' on the premise that 'a defendant who knows that his testimony may be admissible against him at trial will sometimes be deterred from presenting the testimonial proof of standing necessary to assert a Fourth Amendment claim.' Ante, at 392-393.
36
For the Court, though not for me, the question seems to be whether the disadvantages associated with deterring a defendant from testifying on a motion to suppress are significant enough to offset the advantages of permitting the Government to use such testimony when relevant and probative to help convict the defendant of a crime. The Court itself concedes, however, that the deterrent effect on which it relies comes into play, at most, only in 'marginal cases' in which the defendant cannot estimate whether the motion to suppress will succeed. Ante, at 393. The value of permitting the Government to use such testimony is, of course, so obvious that it is usually left unstated, but it should not for that reason be ignored. The standard of proof necessary to convict in a criminal case is high, and quite properly so, but for this reason highly probative evidence such as that involved here should not lightly be held inadmissible. For me the importance of bringing guilty criminals to book is a far more crucial consideration than the desirability of giving defendants every possible assistance in their attempts to invoke an evidentiary rule which itself can result in the exclusion of highly relevant evidence.
37
This leaves for me only the possible contention that Garrett's testimony was inadmissible under the Fifth Amendment because it was compelled. Of course, I could never accept the Court's statement that 'testimony is not always involuntary as a matter of law simply because it is given to obtain a benefit.' Ante, at 394. No matter what Professor Wigmore may have thought about the subject, it has always been clear to me that any threat of harm or promise of benefit is sufficient to render a defendant's statement involuntary. See, Shotwell Mfg. Co. v. United States, 371 U.S. 341, 367, 83 S.Ct. 448, 463, 9 L.Ed.2d 357 (1963) (dissenting opinion). The reason why the Fifth Amendment poses no bar to acceptance of Garrett's testimony is not, therefore, that a promise of benefit is not generally fatal. Rather, the answer is that the privilege against self-incrimination has always been considered a privilege that can be waived, and the validity of the waiver is, of course, not undermined by the inevitable fact that by testifying, a defendant can obtain the 'benefit' of a chance to help his own case by the testimony he gives. When Garrett took the stand at the suppression hearing, he validly surrendered his privilege with respect to the statements he actually made at that time, and since these statements were therefore not 'compelled,' they could be used against him for any subsequent purpose.
38
The consequence of the Court's holding, it seems to me, is that defendants are encouraged to come into court, either in person or through other witnesses, and swear falsely that they do not own property, knowing at the very moment they do so that they have already sworn precisely the opposite in a prior court proceeding. This is but to permit lawless people to play ducks and drakes with the basic principles of the administration of criminal law.
39
There is certainly no language in the Fourth Amendment which gives support to any such device to hobble law enforcement in this country. While our Constitution does provide procedural safeguards to protect defendants from arbitrary convictions, that governmental charter holds out no promises to stultify justice by erecting barriers to the admissibility of relevant evidence voluntarily given in a court of justice. Under the first principles of ethics and morality a defendant who secures a court order by telling the truth should not be allowed to seek a court advantage later based on a premise directly opposite to his prior solemn judicial oath. This Court should not lend the prestige of its high name to such a justice-defeating stratagem. I would affirm Garrett's conviction.
40
Mr. Justice WHITE, concurring in part and dissenting in part.
41
I concur in Parts I and II of the Court's opinion but dissent from the reversal of Garrett's conviction substantially for the reasons given by Mr. Justice BLACK in his separate opinion.
1
Mrs. Mahon also testified that at about 3:30 p.m. the same day six men with guns forced their way into and ransacked her house. However, these men were never identified, and they apparently took nothing.
2
See P. Wall, Eye-Witness Identification in Criminal Cases 74—77 (1965).
3
See id., at 82—83.
4
See id., at 68—70.
5
See e.g., People v. Evans, 39 Cal.2d 242, 246 P.2d 636.
6
The reliability of the identification procedure could have been increased by allowing only one or two of the five eyewitnesses to view the pictures of Simmons. If thus identified, Simmons could later have been displayed to the other eyewitnesses in a lineup, thus permitting the photographic identification to be supplemented by a corporeal identification, which is normally more accurate. See P. Wall, Eye-Witness Identification in Criminal Cases 83 (1965); Williams, Identification Parades, (1955) Crim.L.Rev. 525, 531. Also, it probably would have been preferable for the witnesses to have been shown more than six snapshots, for those snapshots to have pictured a greater number of individuals, and for there to have been proportionally fewer pictures of Simmons. See Wall, supra, at 74—82; Williams, supra, at 530.
7
In the discussion of the bill on the floor of the Senate, Senator O'Mahoney, sponsor of the bill in the Senate, stated that photographs per se were not required to be produced under the bill, but that '(i)f the pictures have anything to do with the statement of the witness * * * of course that would be part of it * * *.' 103 Cong.Rec. 16489.
8
See P. Wall, Eye-Witness Identification in Criminal Cases 84 (1965); Williams, Identification Parades, (1955) Crim.L.Rev. 525, 530.
9
Garrett was also initially identified from photographs, but at a later date than Simmons. He was identified by fewer witnesses than was Simmons, and even those witnesses had less opportunity to see him during the robbery than they did Simmons. The record is opaque as to the number and type of photographs of Garrett which were shown to these witnesses, and as to the circumstances of the showings. However, it is unnecessary to decide whether Garrett was prejudiced by the District Court's failure to order production of the pictures at trial, since we are reversing Garrett's conviction on other grounds.
10
Although petitioner Simmons objected at trial to the admission of Garrett's testimony, the claim was not pressed on his behalf here. Garrett did not mention Simmons in his testimony, and the District Court instructed the jury to consider the testimony only with reference to Garrett.
11
See, e.g., Jones v. United States, 362 U.S. 257, at 262, 80 S.Ct. 725, at 731; Edwards, Standing to Suppress Unreasonably Seized Evidence, 47 Nw.U.L.Rev. 471 (1952).
12
It has been suggested that the adoption of a 'police-deterrent' rationale for the exclusionary rule, see Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, logically dictates that a defendant should be able to object to the admission against him of any unconstitutionally seized evidence. See Comment, Standing to Object to an Unreasonable Search and Seizure, 34 U.Chi.L.Rev. 342 (1967); Note, Standing to Object to an Unlawful Search and Seizure, 1965 Wash.U.L.Q. 488. However, that argument is not advanced in this case, and we do not consider it.
13
The record shows that Mrs. Mahon, the owner of the premises from which the suitcase was taken, disclaimed all knowledge of its presence there and of its ownership.
14
The Government concedes that there were no identifying marks on the outside of the suitcase. See Brief for the United States at 33.
15
In Jones, the only reference to the subject was a statement that '(The defendant) has been faced * * * with the chance that the allegations made on the motion to suppress may be used against him at the trial, although that they may is by no means an inevitable holding * * *.' 362 U.S., at 262, 80 S.Ct., at 731.
16
See Heller v. United States, 7 Cir., 57 F.2d 627; Kaiser v. United States, 8 Cir., 60 F.2d 410; Fowler v. United States, 10 Cir., 239 F.2d 93; Monroe v. United States, 5 Cir., 320 F.2d 277; United States v. Taylor, 4 Cir., 326 F.2d 277; United States v. Airdo, 7 Cir., 380 F.2d 103; United States v. Lindsly, D.C., 7 F.2d 247, rev'd on other grounds, 12 F.2d 771. Contra, see Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305; United States v. Lewis, D.C., 270 F.Supp. 807, 810, n. 1 (dictum).
17
See, e.g., Heller v. United States, 7 Cir., 57 F.2d 627; Monroe v. United States, 5 Cir., 320 F.2d 277.
18
See Safarik v. United States, 8 Cir., 62 F.2d 892, rehearing denied, 63 F.2d 369. Accord, Fowler v. United States, 10 Cir., 239 F.2d 93 (dictum); cf. Fabri v. United States, 9 Cir., 24 F.2d 185.
19
See cases cited in n. 16, supra.
20
See, e.g., United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 434, 94 L.Ed. 653.
21
E.g., compare Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 with Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; compare Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, with Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877.
22
See, e.g., Heller v. United States, 7 Cir., 57 F.2d 627.
23
For example, testimony given for his own benefit by a plaintiff in a civil suit is admissible against him in a subsequent criminal prosecution. See 4 Wigmore, Evidence § 1066 (3d ed. 1940); 8 id., § 2276 (McNaughton rev. 1961).
24
Ibid.
*
Although Simmons' 'question presented' raise no such contention, the Court declines to use its 'supervisory power' to hold Simmons' rights were violated by the identification methods. One must look to the Constitution in vain, I think, to find a 'supervisory power' in this Court to reverse cases like this on such a ground.
| 01
|
390 U.S. 414
88 S.Ct. 1157
20 L.Ed.2d 1
PROTECTIVE COMMITTEE FOR INDEPENDENT STOCKHOLDERS OF TMT TRAILER FERRY, INC., Petitioner,v.C. Gordon ANDERSON, Trustee.
No. 38.
Argued Nov. 7 and 8, 1967.
Decided March 25, 1968.
Rehearing Denied May 6, 1968.
See 391 U.S. 909, 88 S.Ct. 1649.
[Syllabus from pages 414-417 intentionally omitted]
Irwin L. Langbein, West Palm Beach, Fla., for petitioner.
David Ferber, Washington, D.C., for the United States.
William P. Simmons, Jr., Miami, Fla., and M. James Spitzer, New York City, for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case involves a corporate reorganization under Chapter X of the Bankruptcy Act, 52 Stat. 883, 11 U.S.C. §§ 501—676. In the most recent proceedings1 the District Court approved an amended plan of reorganization and discharged the petitioner Committee.2 The Court of Appeals for the Fifth Circuit affirmed, 364 F.2d 936 (1966). We granted certiorari, 387 U.S. 929, 87 S.Ct. 2048, 18 L.Ed.2d 989 (1967), because this case presents important questions under the bankruptcy laws. Since we believe the Court of Appeals erred in affirming the decision of the District Court, we reverse the judgment and remand for further proceedings consistent with the views expressed below.
I.
2
The debtor, TMT Trailer Ferry, Inc., was incorporated in 1954. Its principal business is transporting freight between Florida and Puerto Rico. It pioneered 'fishy-back' transport, the ocean-going equivalent of 'piggy-back' transport. Freight loaded into highway trailers is rolled on and off sea-going barges without rehandling. In its original operations TMT used rented tugs to tow converted Navy LST's loaded with such trailers and other freight. Later it undertook to convert a self-propelled Navy LSD for use in its business. Substantial debts and losses arose from the unsuccessful conversion and consequent failure in service of this ship, dubbed the Carib Queen.
3
In addition, between 1954 and 1957, more than 4,000,000 shares of TMT common stock were issued, many of them acquired at low prices by persons close to the company and disposed of to the public at relatively high prices. As a result of these transactions and others, TMT became unable to meet its obligations, and a reorganization proceeding was initiated against it by involuntary petition in June 1957. The debtor consented to reorganization, and C. Gordon Anderson was appointed trustee. The motion of the holders of preferred ship mortgages on the debtor's vessels (the Caplan mortgage) to foreclose their liens was denied by the trial court. On appeal from this order, it was pointed out that no plan of reorganization had yet been proposed, that the possibility of successful reorganization had not been explored, and that no evidence had been received to support any of the court's orders. The Court of Appeals reversed and remanded with instructions that the holders of the Caplan mortgage be permitted to foreclose unless adequate provision was made to protect their interests or unless they would not be prejudiced by further delay.
4
Upon remand the trial court held appropriate hearings. It was determined that the debtor was being operated in a manner which would produce substantial profits. A plan of reorganization was proposed which would have given the Caplan mortgage group all the common stock in the reorganized company, a substantial portion of the preferred stock, and control of the board of directors. In February 1959, without a hearing called for that purpose and solely on the basis of documents and records, the trial court declared the debtor insolvent and held that the original stockholders had no further interest in the reorganized corporation. In March 1959 the plan of reorganization was confirmed, and Anderson resigned as trustee to become president of the reorganized company. A new trustee was appointed, and he sought in effect to vacate the order confirming the plan. His petition alleged that the holders of the Caplan mortgage and Merrill-Stevens Dry Dock & Repair Co. (M—S), another substantial creditor, had entered into an undisclosed agreement in violation of § 221 of Chapter X, 52 Stat. 897, 11 U.S.C. § 621, an agreement according to which the Caplan mortgage group would pay M—S in order to procure its consent to the plan of reorganization. This petition was denied, the successor trustee was removed, and Anderson was reinstated as trustee.
5
The petitioner Committee appealed from the order confirming the reorganization plan. Objection was made to the failure of the trial court to order an investigation into the claims of certain creditors and to the failure to conduct a hearing on insolvency. While that appeal was pending, the Caplan group, supported by Anderson, petitioned the trial court to consummate the confirmed plan. The Securities and Exchange Commission, however, filed a petition in the trial court seeking an investigation.3 It alleged that an investigation would disclose that the plan was unfair because it turned the corporation over to persons who had dealt extensively in the stock of the debtor in transactions which were probably illegal. It was agreed among the parties that an investigation should be made.
6
Anderson, in his re-established role as trustee, conducted the investigation. Fourteen days of hearings were held, 2,200 pages of testimony transcribed, and some 60 exhibits collected. Anderson's report from this investigation covers 40 pages in the original record. He concluded that the debtor's business had been 'wrecked by gross mismanagement, by unwise and unsound expansion financed primarily through the sale of securities in disregard of the protective provisions of the Securities Act of 1933,' and that the debtor had substantial causes of action against holders of the Caplan mortgage. Upon the recommendation of Anderson, the trial court vacated its order confirming the 1959 plan, and the Court of Appeals affirmed.4
7
Early in 1962 two new plans of reorganization were proposed. The 'internal plan,' recommended by Anderson, provided for reorganizing the debtor by issuing new common stock to creditors and involved 'compromises' of the Caplan mortgage and M—S claims. The 'cash plan' entailed similar 'compromises' as well as selling the debtor's assets for cash to persons unconnected with the company and distributing the cash to creditors. Neither plan provided for any participation by stockholders. The Committee, supported by the SEC, objected to the exclusion of stockholders from both plans, and opposed the internal plan because it contemplated that Anderson would become president of the reorganized company. After hearings on valuation, the District Court found the debtor insolvent and approved both plans as fair, equitable, and feasible. A majority of all classes of creditors other than the United States accepted the internal plan, and the District Court confirmed it in February 1963. The Committee appealed, supported by the SEC, arguing that the plan wrongly excuded stockholders and improperly contemplated that Anderson would become president. The Court of Appeals ruled, without reaching the other contentions, that it was permissible for the plan to contemplate that Anderson would become president,5 but it held in a separate appeal that the plan was defective for not giving priority to the Government's nontax claims.6 The case was accordingly remanded to the District Court for determination of whether the plan would be feasible if the Government's claims were given full priority.
8
On remand further hearings were held, the District Court found that if the Government's nontax claims were given priority the plan would be feasible, and amendments were authorized which provided for immediate cash payment to the Government. The court regarded the failure of the Court of Appeals to reverse its other orders as in effect an affirmance of them, and it refused to consider again the contentions of the Committee and the SEC. The creditors accepted the amended plan and, over the objections of the Committee and the SEC that the plan was not fair or equitable, the District Court affirmed it. The Committee again appealed, and the Court of Appeals ruled that its earlier decision had left open all issues not in terms discussed and decided.7 Passing over the fact that the District Court had considered the case in erroneous legal perspective, and emphasizing that its obligation was to determine whether the trial judge had 'abused his discretion' or reached conclusions which were 'clearly erroneous,' the Court of Appeals refused to remand the case. Stating that '(t)his * * * litigation must at long last be brought to an end,' the Court of Appeals affirmed all judgments and orders of the District Court. The Committee, again supported by the SEC, has presented a number of questions on certiorari to this Court.8 Because of the view we take of this case, it is necessary to consider only the questions of whether it was error to affirm the District Court's approval of compromises of substantial claims against the debtor, and whether it was error to affirm the District Court's judgment that the debtor was insolvent, when that judgment was rendered without considering the future estimated earnings of the reorganized company.
II.
9
Compromises are 'a normal part of the process of reorganization.' Case v. Los Angeles Lumber Prods. Co., 308 U.S. 106, 130, 60 S.Ct. 1, 14, 84 L.Ed. 110 (1939). In administering reorganization proceedings in an economical and practical manner it will often be wise to arrange the settlement of claims as to which there are substantial and reasonable doubts. At the same time, however, it is essential that every important determination in reorganization proceedings receive the 'informed, independent judgment' of the bankruptcy court. National Surety Co. v. Coriell, 289 U.S. 426, 436, 53 S.Ct. 678, 682, 77 L.Ed. 1300 (1933). The requirements of §§ 174 and 221(2) of Chapter X, 52 Stat. 891, 897, 11 U.S.C. §§ 574, 621(2), that plans of reorganization be both 'fair and equitable,' apply to compromises just as to other aspects of reorganizations. Ashbach v. Kirtley, 289 F.2d 159 (C.A.8th Cir. 1961); Conway v. Silesian-American Corp., 186 F.2d 201 (C.A.2d Cir. 1950). The fact that courts do not ordinarily scrutinize the merits of compromises involved in suits between individual litigants cannot affect the duty of a bankruptcy court to determine that a proposed compromise forming part of a reorganization plan is fair and equitable. In re Chicago Rapid Transit Co., 196 F.2d 484 (C.A.7th Cir. 1952). There can be no informed and independent judgment as to whether a proposed compromise is fair and equitable until the bankruptcy judge has apprised himself of all facts necessary for an intelligent and objective opinion of the probabilities of ultimate success should the claim be litigated. Further, the judge should form an educated estimate of the complexity, expense, and likely duration of such litigation, the possible difficulties of collecting on any judgment which might be obtained, and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise. Basic to this process in every instance, of course, is the need to compare the terms of the compromise with the likely rewards of litigation. It is here that we must start in the present case.
10
The Caplan mortgage, consisting of preferred ship mortgages on the debtor's vessels, bears a face amount of $330,000. The holders paid $280,500 for it. Under the proposed compromise, the holders would receive $280,500 paid in five annual cash installments, plus interest from the original due date.9 The claims filed against the debtor's estate by M—S totaled $1,628,284, of which $574,580 was said to be secured by maritime liens on the debtor's vessels. Under the terms of the compromise, these claims are to be allowed in full, after reducing them all to the status of unsecured claims. As with other unsecured claims, they would be paid for by issuing common stock in the reorganized company. M—S would wind up holding approximately 40% of the stock in the new company.10 A glance at these terms makes it clear that the compromises involve substantial recognition of the claims filed by the Caplan group and M—S against the debtor. Whether compromising on these terms was fair and equitable to the debtor, the other creditors, and the stockholders depends upon the proper assessment of the claims which the debtor allegedly had against both the Caplan group and M—S.
11
The Caplan mortgage was the focal point of the 1960 investigation conducted by the trustee, Anderson. The mortgage was entered into shortly before the petition in bankruptcy was filed. It was needed to raise cash to meet payments due on the Carib Queen. After an extensive investigation, Anderson concluded that the mortgage was a fraudulent transfer not given for fair consideration. Anderson's report succinctly stated the unfairness of the terms of the mortgage:
12
'The Caplan Group paid $280,500 cash for the mortgage to TMT which paid all of the expenses of the transaction. The mortgage was for $330,000 payable in seven months and is convertible into common stock at the option of the holders, one share of common for each $1.25 of principal amount of the mortgage. This gave the Caplan Group an effective interest rate of 30% per annum prior to maturity and an opportunity to straddle because of the conversion feature. If TMT prospered, they could convert the mortgage into common stock for which they would have paid little more than $1.00 per share; if TMT did not, the Caplan Mortgage was in a senior position and constituted a lien on TMT's prime assets, absolutely necessary to the Company's operation. Since the Carib Queen had broken down, the vessels encumbered by the mortgage were the main producers of income for the company.'
13
Anderson found that there was 'ample evidence' to support this view of the mortgage, and that therefore the mortgage should be treated as null and void. So treating it would not release TMT from the obligation to repay the money received, but in claiming that amount the holders of the mortgage would have no higher status than general unsecured creditors.11
14
In addition, Anderson's report concluded that the principal holders of the Caplan mortgage, Abrams, Shaffer, and Erdman, had diverted corporate opportunities through the flagrant abuse of their control, fiduciary or inside positions, and should be made to account for the profits they had made. Nearly half of the roughly 4,000,000 shares of outstanding TMT common stock reached the public via purported private offerings through Abrams and Shaffer. These two men exercised a high degree of control over the affairs of the company, and Erdman went along with them and participated in many of their transactions. Anderson found that these three occupied a fiduciary relationship with TMT, at least insofar as issuance of capital stock to them was concerned. 'They took advantage of their inside position to obtain stock for less than the market price which they sold to the public without any registration under the Securities Act and in apparent violation of the private offering exemption under which all of the stock was issued.' The activities of these three men substantially lessened TMT's chances of obtaining financing from reputable financial institutions 'and by the time the Caplan mortgage was executed they were in a position to dictate terms which TMT would be forced to accept.' Anderson's report continued:
15
'It is the opinion of the trustee that persons such as Abrams, Shaffer and Erdman who come in as creditors of TMT under the Caplan Mortgage * * * should be barred in this equity proceeding from profiting at TMT's expense. Their claims should be reduced by the profits they have made on sales of TMT stock which they acquired for private investment purposes, but which they sold in violation of the law at great profit to themselves. These profits are either admitted or readily ascertainable and should be returned to the company.'
16
Characterizing the conduct of Abrams, Shaffer, and Erdman in acquiring unregistered TMT stock with no intention of holding it for investment as a 'fraud,' Anderson indicated the possibility of liability under the SEC's Rule 10b—5.12 Anderson said that at a minimum their claims should be subordinated to those of innocent creditors.13
17
As a result of the report filed by trustee Anderson, the order confirming the 1959 plan of reorganization was vacated. Both the trustee and the SEC filed objections to the Caplan mortgage claim, grounded on the reasons presented in the report of the investigation. The District Court never held hearings on these objections. The mortgage was not set aside as a fraudulent transfer, nor was it decided to use the claims against Abrams, Shaffer, and Erdman as setoffs or as a means of subordinating the mortgage claims. Rather, the internal plan of reorganization was approved by the District Court, providing for a 'compromise' of the Caplan mortgage along the lines already indicated. The holders of the mortgage were to receive in cash what they had put up for the mortgage, plus interest on the principal from the original due date.14
18
Separate from the Caplan mortgage claims were the claims filed by M—S, the company in charge of converting the Navy LSD into the self-propelled trailership which TMT christened the Carib Queen. These claims totaled $1,628,284, of which over $1,000,000 was for the unpaid balance due for converting the Carib Queen. Maritime liens on other vessels owned by TMT allegedly secured $574,580 worth of these claims. The United States, in its position as a substantial creditor of TMT, filed objections to M—S claims, stating that none of them were entitled to status as secured claims 'for the reason that they arose more than one year prior to the commencement of the reorganization proceedings herein.' It also contended that the claims had no status as secured lien claims, for 'it is a recognized principle of Admiralty and Maritime law that claims for the construction or reconstruction of vessels do not give rise to Maritime liens.' Whether the portion of the claims for which M—S asserts secured status is actually entitled to that status has never been determined. The 'compromise' of the M—S claims amounted to allowing them in their entirety as unsecured claims.
19
On the maiden voyage of the Carib Queen a series of boiler failures caused the vessel to break down and necessitated extensive repairs. In November 1958 the petitioner Committee notified the District Court that in its opinion the 'series of catastrophes' which had befallen the Carib Queen was due to 'faulty design, inadequate inspection, defective work on the remodeling and later repair of the ship, hasty and improper preparations for a hazardous sea voyage and utilization of the ship in a service for which she was not fitted and in an unseaworthy condition.' The Committee thought that TMT had causes of action which could lead to the recovery of substantial sums of money. Although Anderson's report on his subsequent investigation of the affairs of TMT dealt with causes of action other than those associated with the Caplan mortgage, it made no mention of any claims TMT might have against M—S. The SEC objected to the M—S claims, stating that there were grounds for disallowing them and that the matter should be referred to a special master for investigation. Trustee Anderson also sought reference of these claims to a special master. On September 1, 1961, the SEC filed detailed specifications of its objections to the M—S claims, based on its own investigation into them. The SEC stated that the debtor
20
'has meritorious defenses and an off-set or counterclaim because M—S (a) did not properly convert the vessel; (b) did not comply with the terms of the contract; (c) did not properly repair the vessel; and (d) performed certain work for and furnished certain materials to TMT, with no agreement as to price; M—S has failed to establish the value of such work and materials.'
21
The SEC described with some particularity the facts which had led it to this conclusion. The most important of these related to the boiler failure which occurred shortly after M—S delivered the Carib Queen for its maiden voyage. Within 48 hours of sailing from Jacksonville, Florida, bound for San Juan, Puerto Rico, it was discovered that a boiler and several tubes were leaking. Tubes overheated, ruptured, and were distorted as a result of scale which had formed on their inner surfaces. The SEC attributed the scale to M—S' negligence in running the boilers with raw water. The SEC also stated that the improper priming of the boilers that occurred on the first trip was due to installation of incorrect baffles by M—S. M—S had undertaken to make the required repairs, and the SEC stated that this repair work was performed negligently, leading to further tube failures. Part of the M—S claims was for unpaid charges for this repair work. M—S filed an answer on September 1 which admitted that when the Carib Queen was delivered it was suffering from 'certain construction deficiencies,' but denied any liability. It contended that its asserted lien claims were secured and that it had performed the repair work in a proper manner.
22
Although the SEC and the trustee had sought reference of the M—S claims to a special master for a hearing, no such hearing was ever held. Instead, the trustee subsequently moved for the summary allowance of the claims on the ground that there was only a 'remote' possibility of materially reducing them by litigating the objections filed against them, and that such litigation would cause 'unnecessary delay.'15 At the hearing during which the trustee presented his motion for allowing the M—S claims in full, no further explanation of this recommendation was provided. Counsel for the Committee protested that 'this is not a report, this is a bare statement of conclusion.' The trial judge himself recognized the importance of the question. He said:
23
'I am concerned myself. I do know that whoever turned that vessel (the Carib Queen) loose with the boilers in it, somebody made a bad mistake. I don't know who it was.'
24
The matter was put over, and subsequently the Committee, supported by the Commission, the Department of Justice, and the Caplan mortgage group, filed objections. Notwithstanding these objections, and the doubts that he had earlier expressed, the trial judge confirmed the claims in full as unsecured claims without further investigation of them. M—S, under the confirmed plan, is to receive 40% of the common stock of the reorganized company.
25
On July 11, 1962, the trial court filed its opinion and order approving both the internal and the cash plans of reorganization. The internal plan contained the provisions for 'compromising' the Caplan mortgage and M—S claims. With regard to these sets of claims, the trial court stated that 'it was apparent' that successful litigation of the claims TMT had against the holders of these claims 'would take possibly years to conclude. * * *' The court continued:
26
'It is the opinion of the court that these compromises are fair and equitable under the circumstances and they are hereby approved for inclusion in the Internal Plan. The court approves the opinion expressed by the attorney for the trustee that no better compromises can be obtained for the debtor, that the prospect of material reduction in the amount of these claims does not warrant the extensive litigation that would otherwise be required, and that the prospect of recoveries beyond the amount of the claims as urged by the Securities and Exchange Commission and the Stockholders' Committee is too remote for serious consideration. * * * The alternative to approval of these compromises is extensive litigation at heavy expense to the debtor and unnecessary delay in reorganization contrary to the intent and purpose of Chapter X of the Bankruptcy Act.'
27
This statement constitutes the only, and the last,16 word that the trial court said on the merits of the compromises of the Caplan mortgage and M—S claims. Without reference to any of the objections that had been filed or to the substantial facts in the record tending to cast doubt upon the Caplan mortgage and M—S claims, the court accepted the bald conclusions of the trustee. This despite the fact that the trustee had once concluded that the Caplan mortgage was null and void and that TMT had sizeable setoffs against its holders. This despite the fact that the trustee had once sought reference of the M—S claims to a special master for investigation. This despite the fact that the trustee had never placed on the record any of the facts of his subsequent investigation and had never provided any explanation of why he had completely reversed his field on these claims. Although at this point in the proceedings it was clear that Anderson was to become president of the reorganized company, and though the trial court was understandably eager to wind up these protracted proceedings, there nowhere appears an adequate explanation for the trustee's cursory, conclusory recommendation of these 'compromises,' or the perfunctory, almost offhand, manner in which the court accepted that recommendation.
28
If the quoted statement of the trial court had been the result of an adequate and intelligent consideration of the merits of the claims, the difficulties of pursuing them, the potential harm to the debtor's estate caused by delay, and the fairness of the terms of settlement, then it would without question have been justifiable to approve the proposed compromises. It is essential, however, that a reviewing court have some basis for distinguishing between well-reasoned conclusions arrived at after a comprehensive consideration of all relevant factors, and mere boilerplate approval phrased in appropriate language but unsupported by evaluation of the facts or analysis of the law. Here there is no explanation of how the strengths and weaknesses of the debtor's causes of action were evaluated or upon what grounds it was concluded that a settlement which allowed the creditor's claims in major part was 'fair and equitable.' Although we are told that the alternative to settlement was 'extensive litigation at heavy expense' and 'unnecessary delay,' there is no evidence that this conclusion was based upon an educated estimate of the complexity, expense, and likely duration of the litigation. Litigation and delay are always the alternative to settlement, and whether that alternative is worth pursuing necessarily depends upon a reasoned judgment as to the probable outcome of litigation. The complaint voiced by counsel for the petitioner Committee to the trustee's report on the compromises, that 'this is a bare statement of conclusion,' seems equally applicable to the trial court's statement approving those compromises. In these circumstances it was error to affirm that aspect of the District Court's judgment approving inclusion of the proposed compromises in the internal plan of reorganization.
29
The Court of Appeals dealt with the District Court's approval of the compromises in five sentences. Noting that it was only the Committee and the SEC that were complaining, and remarking that it was unlikely that disallowance of the compromises would result in solvency, it felt that it was 'significant that not a single creditor has ever complained of either compromise.' 364 F.2d 936, 941. The question of insolvency will be returned to shortly. The argument that the compromises were properly approved because no creditors objected to them seems doubly dubious. When a bankruptcy court either fails adequately to investigate potential legal claims held by the debtor, or refuses to provide an adequate explanation of the basis for approving compromises, it is scarcely surprising that creditors fail to come forward with objections to the compromises. Moreover, this Court has held that a plan of reorganization which is unfair to some persons may not be approved by the court even though the vast majority of creditors have approved it.17
30
The principal argument of the respondent supporting affirmance of the order approving the compromises is that 'the district court had before it a thorough record concerning the facts and issues with respect to the compromises of these two claims.' Respondent's Brief 38. With regard to the Caplan mortgage claim, respondent points out that the facts and circumstances surrounding it were thoroughly documented in Anderson's report of his investigation. It is difficult to see how this strengthens respondent's position, however, for the report carefully documented the conclusion that the Caplan mortgage was a fraudulent transfer and that claims against the individual holders of the mortgage could be used as setoffs. The District Court's approval of the proposed compromise in the face of the facts and conclusions contained in the trustee's report is more difficult to understand than would be approval entered on a blank slate. Respondent also points out that the trial court had before it an answer to Anderson's report, the various objections filed to the mortgage claim, the claim itself, and the recommendations of the Creditors' Committee, the trustee and the trustee's counsel favoring the proposed settlement. The objections filed to the claim militate against the advisability of compromise, however, and the other matters referred to consist either of conclusory denials of liability or conclusory statements that the claims should be compromised. There is nothing in all these documents which could provide a sound basis for concluding that the claims against the mortgage and its holders were unmeritorious.18 If the trial court ever had before it facts which showed the claims against the Caplan mortgage and its holders to be without merit, or if the court ever discovered sound grounds for thinking that the delay incident to litigation or the unlikelihood of obtaining an adequate recovery, made compromise advisable, nothing in this record indicates it.
31
With regard to the M—S claims, respondent contends that the record contains 'an abundance of pleadings and allegations' respecting them. Respondent's Brief 33. To make an informed and independent judgment, however, the court needs facts, not allegations. Respondent also contends that there were sufficient facts in the record, and provides a long list of references to the places in the record where these facts can be found. If, indeed, the record contained adequate facts to support the decision of the trial court to approve the proposed compromises, a reviewing court would be properly reluctant to attack that action solely because the court failed adequately to set forth its reasons or the evidence on which they were based. The deficiency in this case, however, is not a merely formal one. The evidence referred to by respondent is analyzed at greater length in the margin.19 Here it is enough to say that to the extent that the record contains solid facts of the sort necessary for appraising the merits of the claims against M—S, virtually all of them point to the probable existence of valid and valuable causes of action. Balancing these facts are nothing but bald assertions to the contrary and general conclusions for which foundations nowhere appear. Particularly noteworthy is the fact that, despite frequent requests for an investigation, and notwithstanding the fact that the available evidence pointed to probably valid claims against M S no investigation of these matters was ever undertaken or ordered by the trial court. It is difficult to imagine how an informed and independent decision in favor of compromising the M—S claims in the full amount as unsecured claims could have been reached on the present state of the record.
32
The record before us leaves us completely uninformed as to whether the trial court ever evaluated the merits of the causes of actions held by the debtor, the prospects and problems of litigating those claims, or the fairness of the terms of compromise. More than this, the record is devoid of facts which would have permitted a reasoned judgment that the claims of actions should be settled in this fashion. In reaching this conclusion, however, it is necessary to emphasize that we intimate no opinion as to the as to the actual fairness of the proposed compromises. To the contrary, it is clear that the present record is inadequate for assessing either, and that a remand is necessary to permit further hearings to be held. Only after further investigation can it be determined whether, and on what terms, these claims should be compromised.
III.
33
Under §§ 174, 221(2), of Chapter X 52 Stat. 891, 897, 11 U.S.C. §§ 574, 621(2), a bankruptcy court is not to approve or confirm a plan of reorganization unless it is found to be 'fair and equitable.' This standard incorporates the absolute priority doctrine under which creditors and stockholders may participate only in accordance with their respective priorities, and 'in any plan of respective priorities, and 'in any plan of corporate reorganization unsecured creditors are entitled to priority over stockholders to the full extent of their debts * * *.' SEC v. United States Realty & Improvement Co., 310 U.S. 434, 452, 60 S.Ct. 1044, 1052, 84 L.Ed. 1293 (1940). Since participation by junior interests depends upon the claims of senior interests being fully satisfied, whether a plan of reorganization excluding junior interests is fair and equitable depends upon the value of the reorganized company. In the present case the District Court excluded the stockholders from participation because of its finding that the debtor was insolvent. Since the determination of insolvency was not made in accordance with the proper standards of valuation, neither the approval nor the confirmation of the plan can stand.
34
The appropriate standard for valuing a company undergoing reorganization was set out at length in Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 526, 61 S.Ct. 675, 685, 85 L.Ed. 982 (1941):
35
'As Mr. Justice Holmes said in Galveston, Harrisburg & San Antonio Ry. Co. v. Texas, 210 U.S. 217, 226, 28 S.Ct. 638, 639, 52 L.Ed. 1031, 'the commercial value of property consists in the expectation of income from it.' * * * Such criterion is the appropriate one here, since we are dealing with the issue of solvency arising in connection with reorganization plans involving productive properties. * * * The criterion of earning capacity is the essential one if the enterprise is to be freed from the heavy hand of past errors, miscalculations or disaster, and if the allocation of securities among the various claimants is to be fair and equitable. * * * Since its application requires a prediction as to what will occur in the future, an estimate, as distinguished from mathematical certitude, is all that can be made. But that estimate must be based on an informed judgment which embraces all facts relevant to future earning capacity and hence to present worth, including, of course, the nature and condition of the properties, the past earnings record, and all circumstances which indicate whether or not that record is a reliable criterion of future performance.'20
36
In the present case the book value of the debtor's assets on May 31, 1962, was $1,887,185.77. Claims against the debtor totaled $5,447,370.05. The actual fair value of the debtor's total assets was $2,238,387.62 and their net value was $1,978,481.73. Although these figures show that liabilities far exceeded assets, they are not of controlling importance. The District Court recognized that going-concern value, not book or appraisal value, must govern determination of the fairness of the plans of reorganization, and respondent concedes that the value of TMT's business depended 'not on the inherent value of its assets but primarily on maintaining a high level of earnings.' Brief for Respondent 42.
37
At the valuation hearings the trustee stated that his analysis of the financial structure and business of the debtor resulted in a going-concern value of.$2,031,403.72. A valuation expert presented by the trustee estimated the going-concern value at between $1,607,692 and $1,800,000. He arrived at his conclusion by multiplying his estimate of the future earnings of the company by 7.7, a figure based on the assumption that earnings would be 13% of value. The valuation expert presented by the Committee concluded that estimated future earnings after taxes would be $327,500, and multiplying this by a price-earnings ratio of 13.8, arrived at the conclusion that TMT had a value of $4,519,500. The trial judge took an intermediate position. By projecting current earnings of the debtor for the first five months of 1962 over the remainder of the year, he concluded that pre-tax earnings would be $568,000. Reduced by estimated income taxes and capitalized at 10%, this yielded a going concern value of $2,780,000. Since this figure fell well below the $5,477,370.05 of outstanding claims, he concluded that the debtor was insolvent. On this basis the plan was approved and confirmed.
38
When the Court of Appeals remanded to the District Court for determination of the feasibility of the reorganization plan after giving full priority to the Government's claims, the District Court concluded that TMT was 'more insolvent now than it was in 1962,' for earnings had declined from the high point of 1962, and the Court's initial determination had been based on the projected earnings for that year. The decline in earnings had occurred even though the volume of business had grown substantially, for increased competition from large steamship lines serving Puerto Rico had forced TMT to lower its rates and thus its margin of profit. The District Court reaffirmed its finding of insolvency. On appeal, the Court of Appeals stated that it did not have to determine whether or not the District Court's finding of insolvency was accurately computed, but merely whether it was 'clearly erroneous.' On this basis the conclusion of insolvency was affirmed.
39
In a complex case of this nature it is not the province of this Court to attempt to retry issues of fact which have been fully litigated below. Indeed, as the Court of Appeals stated, much weight must be given to the long familiarity of the District Judge with the debtor and to his evaluation of the witnesses who testified in his presence. In the face of conflicting expert testimony as to the going-concern value of the debtor based on current earnings, the trial judge adopted a position in between. We are not disposed to dispute the conclusion of the Court of Appeals that this determination by the trial judge was not 'clearly erroneous.' However, examination of the facts of this case demonstrates that the District Court did not have before it all of the evidence and testimony relating to the future problems and prospects of the company which were necessary to assess its value as a going concern. Indeed, the trial judge steadfastly refused to consider the value of the company once it was out of the reorganization proceedings. In this there was error, and it was an error which infected the conclusions of the trial court that the debtor was insolvent. Evaluations of evidence reached by the accurate application of erroneous legal standards are erroneous evaluations.
40
TMT plays a minor but unique role in carrying goods between Puerto Rico and the United States. This domestic off-shore trade is highly competitive and generally unprofitable. The high density, high volume, and high operating-cost trade with Puerto Rico flows in and through the North Atlantic ports. TMT, operating in a triangle between San Juan, Miami, and Jacksonville, is confined to the low density, low investment South Atlantic trade. TMT carries only about 2% of the total trade with Puerto Rico, and the dominant carrier in the market is in direct competition with it in its home port of Jacksonville. When TMT entered the market with its novel idea of carrying roll-on and roll-off freight in towed vessels, the market was ripe for an innovation of this sort. However, the ills which plagued its early years threw TMT into bankruptcy in 1957. Prevented by the exigencies of the bankruptcy proceeding from capitalizing on the novel idea it had introduced, TMT has watched the development of container shipping, which has taken over a large share of the United States-Puerto Rico trade for which it might otherwise have hoped to compete. Nonetheless, TMT remains the only roll-on and roll-off carrier in the trade, and it has seen its own business rise 10% to 20% a year due to the increased frequency of direct interchange with piggyback rail transport. Despite the inability of TMT to capitalize on its novel idea, it has remained in a strong competitive position. Trade with Puerto Rico has increased steadily and rapidly, and TMT's business has grown commensurately. Despite a destructive rate war which markedly lowered the revenues earned per voyage, TMT increased its revenue from $3,801,000 in 1962, when the first insolvency hearing was held, to $4,779,000 in 1964, the latest year in the record. Between the 1962 and the 1965 hearings the fleet of vessels was increased from three to five and the number of truck trailers from 350 to 670. Moreover, in the 1965 hearing the business manager could report that after it paid the forthcoming installment for the reconversion of one of its vessels, the company would have no further significant outstanding indebtedness. TMT has continued to be the only unsubsidized carrier in the South Atlantic trade, the only one that makes money. Despite the increase in volume and revenue, however, the rate war and other factors such as rising costs caused net earnings to drop after 1962, and they have not yet regained the level established that year. TMT's tax-loss carry-over has expired, with the result that earnings are now substantially reduced by federal taxes. The general trade picture between Puerto Rico and the United States is in flux, and the rates applicable to the trade are undergoing continuing revision and investigation. The vessels TMT uses are old and in need of replacement. The supply of LST's has nearly dried up, and it seems to be understood that the replacement vessels will have to be built from scratch.
41
In short, TMT would seem to be a company which has established, preserved, and increased its share of a highly competitive market despite intense competition and major internal crises. It operates in a market undergoing substantial change and is itself faced with the imminent need to re-equip its fleet. In these circumstances, an adequate notion of the going-concern value of TMT could be obtained only by looking to the future as well as the past. Against this background we must examine the information which the trial court had before it for assessing the future prospects of TMT. The basic source for information on these matters was, of course, the trustee and his business manager. A short summary of the highlights of their testimony as it related to the future prospects of TMT will demonstrate the inadequacy of the information provided the trial judge for making this crucial determination.
42
At the first insolvency hearing the business manager attempted to estimate the earnings of the company for the next four years, but he made his projections solely on the business at it then was. Although TMT had attained the maximum number of voyages possible with the fleet it then had, the business manager had not looked into the possibility of chartering additional vessels. The trustee testified that several vessels would have to be replaced in the next two years, but admitted that he was unable to predict what such vessels would cost. When the trustee was asked if there was foreseeable room for expansion of TMT's business, the Court agreed with an objection that this was beyond the scope of the valuation hearing. The trustee's expert on valuation gave his opinion as to going-concern value solely on the basis of the trustee's projection of earnings, which in turn was based wholly on past earnings. Those earnings figures had been drawn up some time prior to the hearing, and it was conceded that they might have come out differently if the projection had been made at the time of the valuation hearing. When asked if he would attempt to predict whether the company would be able to pay dividends once it was out of reorganization, or whether large capital investments would soak up all earnings, the trustee's expert replied that he had not been asked to consider that question and did not think it legitimate. Although he agreed that reasonably foreseeable changes and improvements should be taken into account in valuing the company, he stated that he had been given no information on which to make such predictions.
43
At the second hearing on the value of the company, the business manager admitted that he had made no new projection of future expenses, revenue, or income, even though three years had passed and the business outlook of the firm was markedly different. Although TMT's fleet had grown in the interim from three to five vessels, and there was an imminent need for replacement of the older ships, the business manager was unable to predict the likely impact on earnings of the acquisition of newer vessels. He stated that the new vessels would be towed craft that loaded from the stern, and that they were apt to cost between $1,250,000 and $1,500,000 each. However, though some studies and inquiries had been conducted, there were no final or definite plans or drawings for the new ships. Although new, better, and more efficient vessels were needed soon to improve the company's competitive situation, in the present state of planning it would be two years after the company was out of reorganization before new vessels would be obtained. At the second hearing, as at the first, the business manager could give no estimate of what portion of the administration costs of running TMT was due to the reorganization proceedings. Although he thought that trade between the United States and Puerto Rico was increasing, he did not know how much or in what ways. Though he thought that TMT's share of the Puerto Rican trade was remaining comparatively constant, he did not know for certain. He also did not know what portion of TMT's present volume of business was attributable to direct piggyback interchange.
44
The data which the trustee and his business manager had submitted with regard to past income and expenses undoubtedly provided a clear picture of what the company had been experiencing in the past. Given, however, that it was a relatively small and young company much in need of internal rebuilding and operating in a market undergoing important economic and technological change, it was essential that some clear idea be gained of its future prospects. It seems perfectly obvious that the information introduced at the two hearings was inadequate for gaining even a rough idea of TMT's future prospects.
45
The fundamental reason that there was insufficient evidence concerning the future prospects of TMT was that the trial court showed itself unalterably hostile to inquiries directed to TMT's future. During the first hearing the following interchange took place when the court cut off a question aimed at determining whether the volume of TMT's southbound traffic could be increased during the off-peak season:
46
'Q. But if this enterprise were out from under the proceedings, would it?
47
'The COURT. Well, we are dealing with an organization that is in. Let's assume that it will stay right there and try to get the value. It is not going to get out until it is reorganized.
48
'Mr. MASON. We are trying to get the value when reorganized.
49
'The COURT. That is of no importance to me. Let's value it as it now exists to determine what should be done in these proceedings.'
50
At a later time, when counsel again sought to establish that the proper way to value the company was to try to determine foreseeable factors which would affect future earnings, the court preempted the answer by remarking, 'Mr. Witness, we do not want possibilities.' Still later, the judge said:
51
'All these projections into the future are not going to bother the Court. These creditors have waited too long to get their money. We have had this thing for years and years. I imagine most of them long since have gone to the poorhouse or given up.'
52
One can easily sympathize with the desire of a court to terminate bankruptcy reorganization proceedings, for they are frequently protracted. The need for expedition, however, is not a justification for abandoning proper standards. It is also easy to share the court's concern that creditors receive their money as promptly as possible. However, the right of stockholders to participate at all hung on the result of the valuation proceedings; sedulously eliminating all inquiry into the future may, in this context, have caused the rights of the stockholders to have been relinquished by default.
53
Although three years elapsed before the next hearing, the judge displayed the same unwillingness to permit inquiry into the future prospects of TMT. When counsel for the SEC tried to open up the subject, the following dialogue occurred:
54
'Mr. GONSEN. We have no startling figures, but a series of questions relating to the possible future prospects of this company.
55
'The COURT. There is no possible future prospects other than what is going on. It is possible it will become the greatest fleet in the world and it is possible to go bankrupt in a few months. As a matter of fact, if the competition had succeeded in their plans, you would have no problem here, they would have been sold.
56
'Mr. GONSEN. Do I understand Your Honor does not desire me to examine as to evaluation?
57
'The COURT. You do.'
58
Perhaps the proper reading of the reluctance of the judge to go into future prospects at the second hearing was that in his view the issue of insolvency was no longer in the case. The Court of Appeals had ruled on the question of whether the trustee could be the president of the reorganized company and whether the Government's nontax claims should be allowed in full without discussing the other issues. In the trial judge's view, the Court of Appeals' failure to speak on other issues constituted affirmance. On the appeal from the second hearing, however, the Court of Appeals took pains to point out the error in this conclusion. The result of the trial court's ruling was to exclude from the hearing the general issue of insolvency and to limit the hearing to the question of whether developments between the first and second hearings had rendered the plan unfeasible in light of the necessity of giving full priority to the Government's nontax claims. In such circumstances it might be expected that the Court of Appeals would have examined the record to see if the facts supported the conclusion which the trial judge had felt foreclosed from having to make again, but which was in fact still in the case. Instead, however, the Court of Appeals merely quoted at length from the trial court's conclusions that the plan was feasible and stated that the ruling that the company was still insolvent was not clearly erroneous.
59
At the close of the second hearing the SEC and the Committee argued vigorously that the issue of valuation was still open and that future prospects should have been considered by the judge. Although its view of the effect of the appeal from the first hearing did not require it to do so, the court addressed itself to the merits of this contention in its opinion and order approving the amended plan of reorganization:
60
'The SEC and the Stockholders Committee insist, as they did during the valuation hearings in 1962, that the court should have required evidence of future earnings, subsequent to reorganization, based upon estimates of revenues and expenses after substantial changes in operations and acquisition and substitution of new type vessels and other equipment, and based upon expanded operations expected to take place under private management. However, neither the trustee (n)or the court can anticipate what the reorganized company will do, and any estimates of future earnings under different circumstances of operation would be speculative and unreliable.'
61
This was not a correct statement or application of the law. This Court has declared that in every case it is incumbent upon the reorganization court to consider 'all facts relevant to future earning capacity * * * including * * * all circumstances which indicate whether or not (the past earnings) record is a reliable criterion of future performance.' Consolidated Rock Products Co. v. Du Bois, supra. If it is shown that the record of past earnings is not a reliable criterion of future performance, the court must form an estimate of future performance by inquiring into all foreseeable factors which may affect future prospects. In forming this estimate, 'mathematical certitude' is neither expected nor required.
62
In this case we have a company engaged in a hotly competitive market, a market experiencing a severe rate war which would probably alter the relative standings of the competitors. The market as a whole was witnessing substantial technological change, and TMT itself was one of the prime innovators. TMT's principal market, Puerto Rico, was undergoing considerable expansion. It was shown without contradiction that TMT needed to replace its present fleet with new and different ships. It should have been clear to the trial court that the circumstances brought out at the two hearings showed that the past earnings record was not a reliable criterion of future performance, and that sound evaluation of the company as a going concern required examination of the future prospects of the company. The court was not dealing with an established company in a static market, nor was it being asked to value the company's future prospects by hypothesizing unforeseeable changes in operations or market structure. It was evident that certain specific and predictable alterations would have to be made in the equipment and operations of the company in order to meet foreseeable alterations in the market. The trial court shut its eyes to these important developments and in so doing ignored a cardinal principle of proper evaluation.
IV.
63
Because only past earnings were relied upon in this case in determining the value of the debtor as a going concern, we reverse and remand to the Court of Appeals with directions to remand to the District Court to hold new hearings on valuation. Without in any way prejudging the issue, it is possible that when the compromises discussed in Part II of this opinion are reconsidered, and when the company is properly valued by taking into account its future prospects, the company will be found not to be insolvent. Such a finding would permit stockholders to participate. There is, therefore, no point in considering at this juncture the question presented by the petitioner concerning the stockholders' claims under the federal securities laws. Since the Committee will, of course, be entitled to participate in the new hearings on valuation and insolvency, the order of the District Court discharging it is vacated. So doing, however, reflects no opinion on the merits of the arguments presented in this Court by petitioner as to why it should not have been discharged. Finally, there is no necessity to determine whether it was improper to contemplate making the trustee president of the reorganized company. A great deal of time has passed since that was deemed an advisable plan, and intervening circumstances may well have altered the views of the participants. Since new hearings on valuation and insolvency will further protract these proceedings, it seems advisable to put that question aside.
64
For the reasons stated in this opinion, we reverse and remand to the Court of Appeals for further proceedings consistent with this opinion.
65
Reversed and remanded.
66
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
67
Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice FORTAS join, dissenting.
68
In my opinion, the only question which could be thought even remotely to justify the presence of this case in this Court is whether the trustee, by virtue of his office, was as a matter of law disqualified from being selected as president of the reorganized company. The Court, however, does not decide that question. The review of the massive record in these reorganization proceedings, which have been in the courts for over 10 years and on six occasions before the Court of Appeals at various stages, is not in my view an appropriate task for this Court. Believing that this decision bodes little but further delay in bringing this protracted proceeding to a conclusion, I feel justified in voting to dismiss the writ as improvidently granted, despite the fact that the case was brought here on an unrestricted writ. Since the Court does not reach the 'disqualification' issue, I consider it inappropriate for me, as an individual Justice, to express my own views upon it.
1
This case has been in the federal courts for over 10 years. The earlier reported decisions consist of the following: Caplan v. Anderson, 256 F.2d 416 (C.A.5th Cir. 1958); Caplan v. Anderson, 259 F.2d 283 (C.A.5th Cir. 1958); TMT Trailer Ferry, Inc. v. Anderson, 292 F.2d 455 (C.A.5th Cir. 1961), cert. denied sub nom. Shaffer v. Anderson, 368 U.S. 956, 82 S.Ct. 395, 7 L.Ed.2d 388 (1962); United States v. Anderson, 334 F.2d 111 (C.A.5th Cir.), cert. denied, 379 U.S. 879, 85 S.Ct. 147, 13 L.Ed.2d 86 (1964); In re TMT Trailer Ferry, Inc., 334 F.2d 118 C.A.5th Cir. 1964).
2
The order of the District Court discharging the petitioner Committee was later modified to permit the Committee to prosecute appeals from that decision.
3
The SEC participated as a party in both the District Court and the Court of Appeals, and has appeared as an unnamed respondent before this Court. See 52 Stat. 890, 894, 11 U.S.C. §§ 572, 608. This Court requested the Government to express its views at the petition stage, 386 U.S. 901, 87 S.Ct. 866, 17 L.Ed.2d 779 (1967). For the most part the SEC has taken positions consistent with those of the petitioner Committee.
4
TMT Trailer Ferry, Inc. v. Anderson, 292 F.2d 455 (C.A.5th Cir. 1961), cert. denied sub nom. Shaffer v. Anderson, 368 U.S. 956, 82 S.Ct. 395, 7 L.Ed.2d 388 (1962). The Committee's earlier appeal attacking the confirmation of the 1959 plan, which had been consolidated with this appeal by the Caplan mortgage group, was mooted by the order of the trial court vacating the confirmation.
5
In re TMT Trailer Ferry, Inc., 334 F.2d 118 (C.A.5th Cir. 1964).
6
United States v. Anderson, 334 F.2d 111 (C.A.5th Cir.), cert. denied, 379 U.S. 879, 85 S.Ct. 147, 13 L.Ed.2d 86 (1964).
7
Protective Committee, etc. v. Anderson, 364 F.2d 936, 939 (C.A.5th Cir. 1966).
8
The other issues, briefed and argued at length, are succinctly stated in the brief filed by the SEC:
'1. Whether under Chapter X of the Bankruptcy Act, which provides for a disinterested trustee as the focal point of the reorganization, the trustee is precluded from assuming the presidency of the reorganized company; and whether a plan that contemplates that result may be confirmed.
'4. Whether the courts below erred in refusing to consider the merits of the stockholders' claims based on asserted violations of the securities laws.
'5. Whether the district court erred in discharging the Stockholders' Committee before the reorganization proceedings were completed, on the basis of its finding that the debtor was insolvent.' Brief for SEC 2, 3.
9
The interest is to be treated as an unsecured claim payable in common stock in the reorganized company. The plan confirmed by the court was later amended to provide that the holders of the Caplan mortgage would receive $250,000 in cash at the date of consummation of the reorganization plan, rather than $280,500 over five years.
10
Since the rest of the voting stock will go to the other numerous and scattered general creditors, petitioner argues that M S' 40% ownership will give it initial working control of the reorganized company. Petitioner's Brief 28, 29.
11
Accordingly, to pay holders of the Caplan mortgage $280,500 in cash, even though only the amount they paid for the mortgage, would be a substantial preferment of them when the reorganization plan allows general unsecured creditors only a pro rata portion of some 1,300,000 shares of new common stock in the reorganized company.
12
17 CFR § 240.10b—5; promulgated by the SEC pursuant to § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j.
13
Such subordination would effectively eliminate their claims if TMT were as insolvent as the court subsequently found.
14
These terms were later modified, as indicated in n. 9, supra.
15
The trustee reached this conclusion after an investigation described by him in full as follows: '(T)he trustee, with the assistance of attorneys in the office of his counsel, investigated the facts alleged in the specifications of objections filed by the SEC and in the answer of Merrill-Stevens. This investigation consisted of an examination of numerous documents assembled by the SEC during its investigation, together with copies of statements made by individuals which had been obtained during the investigation. Also examined were numerous documents and statements furnished by Merrill-Stevens in support of its answer to the specifications of objections by the SEC.' The trustee did not set out any findings of fact which he arrived at in the course of this 'investigation,' and provided no explanation of the reasoning which had led to his 'considered opinion' that the M—S claims should be allowed in full.
16
In December 1964, after the case had been remanded for the second time by the Court of Appeals, the Committee sought an order for production of documents relating to the Carib Queen, alleging they would show that TMT had a cause of action against M S and the Caplan group. The Committee said these parties had acted 'in collusion with members of the debtor's old management and control group to defraud the Maritime Administration and the debtor by misrepresentation of the reconversion contract price and by premature release of the vessel without proper compliance with the requirements of the reconversion contract. The same documents also bear on the propriety of the compromises * * *.' At the hearing held on this motion it appeared that these documents were held by the Maritime Administration, which had no objection to turning them over but wished the court to issue a formal order so that all parties could have access to them. The court denied the motion, saying 'there is nothing in the motion that shows that these documents are material to any issue before this Court.'
When reconfirming the plan after the second remand, the court added nothing to the explanation quoted in the text, for it erroneously concluded that approval of the settlement had already been affirmed by the Court of Appeals.
17
Case v. Los Angeles Lumber Prods. Co., 308 U.S. 106, 60 S.Ct. 1, 84 L.Ed. 110 (1939). '(W)here a plan is not fair and equitable as a matter of law it cannot be approved by the court * * *. Congress has required both that the required percentages of each class of security holders approve the plan and that the plan be found to be 'fair and equitable.' The former is not a substitute for the latter.' Id., at 114, 60 S.Ct. at 6.
18
The answer filed to the Anderson report occupies seven pages in the record. Aside from bare statements that insufficient facts were found and that the trustee's conclusions were not conceded, it opposes vacating the original plan of reorganization almost wholly on grounds of estoppel, laches, res judicata, and reliance. The claim itself merely details the terms of the mortgage and the amounts due under it. The recommendations favoring settlement stated only that the merits of the claims had been examined, that the possibility of recovery was remote, and that litigation would cause 'unnecessary delay.'
19
Respondent contends that the trial court could have rendered an informed decision on the merits of the M—S compromise on the basis of the following matters in the record:
(1) The summary of M—S' proof of claim (the full proof not having been included in the record). This merely stated the amounts claimed by M—S and the liens asserted to secure some of the claims.
(2) The 1958 letter from the Committee to the Court. This asserted that TMT had good causes of action against M—S which would result in substantial recovery. With regard to the Carib Queen, it accused M—S of 'faulty design, inadequate inspection, defective work on the remodeling and later repair of the ship, hasty
and improper preparations for a hazardous sea voyage and utilization of the ship in a service for which she was not fitted and in an unseaworthy condition.'
(3) The trustee's report. This merely stated a few facts relating to the breakdown of the Carib Queen on her maiden voyage, and the expenses incurred in connection with the Carib Queen.
(4) The SEC's specifications in support of the objections to the M—S claims. This was a report of the SEC's independent investigation of the M—S claims. It set out in some detail the facts supporting its contention that TMT had good defenses or setoffs because 'M—S (a) did not properly convert the vessel; (b) did not comply with the terms of the contract; (c) did not properly repair the vessel; and (d) performed certain work for and furnished certain materials to TMT, with no agreement as to price; M—S has failed to establish the value of such work and materials.'
(5) The M—S answer to these specifications. This was principally a formal document and contained no additional facts or argument. It admitted that the Carib Queen was suffering construction deficiencies when delivered to TMT and that there was a boiler failure on the first voyage, but denied liability.
'(6) The motion for allowance of the claim filed on behalf of the trustee. This summarized the proceedings relating to the M—S claims. Noting that the SEC had filed detailed specifications of its objections, and that the special master appointed by the court had held no hearings, it stated that the trustee and his attorneys had examined the documents relating to the M—S claims. The motion stated that the trustee had tried unsuccessfully to get M—S to reduce its claims, that the possibility of recovering through litigation was remote, and that litigation would cause unnecessary delay. These conclusions were neither expanded upon nor explained.
(7) Objections of the United States to the above motion. The United States opposed the M—S claims on the grounds that none of them were entitled to secured status. They had arisen more than a year prior to the bankruptcy proceedings, and claims for reconstructing vessels do not give rise to maritime liens.
(8) The transcript of the hearings held on the motion for allowance of the claims. The transcript of this portion of the hearing
occupies five pages. Most of it was devoted to the question of how much time the Committee would be allowed for filing a memorandum objecting to the proposed compromise. The court was told that the trustee and his lawyers had looked at the relevant papers, that the possibility of recovery was remote, and that litigation would cause unnecessary delay. No facts or arguments to support these conclusions were presented. Counsel for the Committee objected that this was not a report but a bare statement of conclusion. The court indicated that someone had been at fault over the boiler breakdown.
(9) The Committee's specification of objections to the M—S claims. This 35-page report, 22 pages of which are devoted to the Carib Queen contract, was the result of an independent examination conducted by the Committee into the M—S claims. The Committee charged M—S with faulty design, construction, and repair of the Carib Queen. With regard to two other ships on which M—S worked for TMT, the Committee charged M—S with responsibility for the swamping of one on its trial trip, and with failing to get Coast Guard approval of the other. The Committee also claimed that the maritime liens asserted by M—S had been reduced by payments on account, and that the original TMT management, M—S, and Abrams and Shaffer had worked together in a collusive relationship designed to make large profits by selling cheaply purchased stock to the public at inflated values. Some idea of the factual particularity of the Committee's objections is provided by the abbreviated subheadings of their charges against M—S in connection with the Carib Queen. The Committee stated that TMT had causes of action growing out of the fact that M—S (a) failed to secure proper certificates of work completion affecting the classification and rating of the vessel, (b) failed to fit riveted crack-arresting seams, (c) failed to produce a vessel of 3,050 shaft-horsepower per shaft, propeller speed of 216 r.p.m., and speed in service of 15 1/2 knots, (d) failed to produce a ship of high enough classification and rating, (e) failed to clean the boilers chemically, (f) wrongly assumed that the boilers had been properly protected up to the time of conversion, (g) failed to use distilled water in its preliminary running of the boilers, (h) improperly connected the piping, (i)
installed incorrect baffle plates, (j) failed to clean the boilers adequately when performing the repair work, (k) failed to install the ventilating system properly, (l) installed an inadequate and inappropriate evaporator, (m) failed to put the feed water regulator and the feed pump governor into proper working order, (n) failed to install a boiler compound injector pump, (o) failed to provide equipment for coping with the excessive oxygen content of the water in the system, and (p) was responsible for deficiencies in the electrical system. In addition, the Committee stated that M—S was improperly claiming for repair work done under its guarantee obligation, and that M—S had included claims for work done as to which no amount had ever been agreed upon.
(10) The statement by the SEC supporting the Committee's specification of objections. The SEC, while not necessarily agreeing with all the allegations and contentions of the Committee, felt that the Committee had demonstrated that M—S should be required to prove its claims at a judicial hearing.
In addition to these matters of record, respondent refers to several matters not in the record, which are said to support the propriety of accepting the compromises. Matters not in the record and not properly the subject of judicial notice cannot form the basis of judicial confirmation of a plan of reorganization. They are equally unavailing on review.
20
Further on the subject of valuation, see 2 J. Bonbright, Valuation of Property 880—881 (1937); 6A Collier, Bankruptcy 10.13 and 11.05 (14th ed. 1965); H. Guthmann & H. Dougall, Corporate Financial Policy 656—657 (4th ed. 1962). See also Frank, Epithetical Jurisprudence and the Work of the Securities and Exchange Commission in the Administration of Chapter X of the Bankruptcy Act, 18 N.Y.U.L.Q.Rev. 317, 342, n. 68 (1941): 'Value is the present worth of future anticipated earnings. It is not directly dependent on past earnings; these latter are important only as a guide in the prediction of future earnings.'
| 78
|
390 U.S. 456
88 S.Ct. 1194
20 L.Ed.2d 27
Brooks Lee ANDERSON, petitioner,v.Wilburn C. JOHNSON, Warden.
No. 700.
Supreme Court of the United States
October Term, 1967.
March 25, 1968
J. Brad Reed, Nashville, Tenn., for petitioner.
Ed R. Davies, Nashville, Tenn., for respondent.
On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit.
PER CURIAM.
1
Four members of the Court would reverse. Four members of the Court would dismiss the writ as improvidently granted. Consequently, the judgment of the United States Court of Appeals for the Sixth Circuit remains in effect.
2
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
| 12
|
390 U.S. 455
88 S.Ct. 1193
20 L.Ed.2d 27
ALITALIA-LINEE AEREE ITALIANE, S. P. A., petitioner,v.John LISI, etc., et al.
No. 70.
Supreme Court of the United States
October Term, 1967.
March 25, 1968
George N. Tompkins, Jr., New York City, for petitioner.
Theodore E. Wolcott, New York City, for respondents.
On Writ of Certiorari to the United States Court of Appeals for the Second Circuit.
PER CURIAM.
1
The judgments are affirmed by an equally divided Court.
2
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
| 78
|
390 U.S. 459
88 S.Ct. 1140
20 L.Ed.2d 30
Agnes M. BANKS, etc., Petitioner,v.CHICAGO GRAIN TRIMMERS ASSOCIATION, Inc., et al.
No. 59.
Argued Jan. 17, 1968.
Decided April 1, 1968.
Rehearing Denied May 20, 1968.
See 391 U.S. 929, 88 S.Ct. 1800.
Harold A. Liebenson, Chicago, Ill., for petitioner.
Mark A. Braun, Chicago, Ill., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
On January 30, 1961, shortly after returning home from work, the petitioner's husband suffered a fall that resulted in his death on February 12. On February 20, 1961, the petitioner on behalf of herself and her three minor children filed a claim against her husband's employer,1 the respondent, for compensation death benefits under the Longshoremen's and Harbor Workers' Compensation Act. 44 Stat. 1424, 33 U.S.C. §§ 901—950. The petitioner alleged that her husband's fall on January 30 had resulted from a work-connected injury suffered on January 26. A hearing was held before a Department of Labor Deputy Commissioner; and on June 8, 1961, the Deputy Commissioner rejected the petitioner's claim for failure to establish that her husband's death had resulted from a work-connected injury.2 The petitioner did not bring an action in District Court to set aside the Deputy Commissioner's ruling. 33 U.S.C. § 921. Some time after the Deputy Commissioner's decision, the petitioner discovered an eyewitness to a work-connected injury suffered by her husband on January 30, the same day as his fall at home. On August 22, 1961, the petitioner filed a second compensation action against the respondent—this time alleging that the fall resulted from an injury suffered on January 30.
2
On September 8, 1961, the petitioner began a wrongful-death action in the Northern District of Illinois against a third party, the Norris Grain Company, alleging that her husband's fall resulted from the same January 30 injury. On May 3, 1963, a jury rendered a verdict of $30,000 for the petitioner in that lawsuit. The grain company moved for a new trial, and the trial judge ruled that the motion would be granted unless the petitioner consented to a remittitur of $11,000. On May 16, 1963, without consulting the respondent, the petitioner accepted the remittitur. Judgment was entered for.$19,000.
3
On August 29, 1963, a hearing on the petitioner's second compensation action commenced. On January 27, 1964, the Deputy Commissioner entered findings of fact and an award for the petitioner. The respondent brought an action in District Court to set the award aside. The District Court affirmed, but the Court of Appeals reversed. 369 F.2d 344. We granted certiorari to consider questions concerning the administration of the Longshoremen's and Harbor Workers' Compensation Act. 389 U.S. 813, 88 S.Ct. 30, 19 L.Ed.2d 63.
4
The Court of Appeals held that the petitioner's second compensation action was barred by the doctrine of res judicata. The petitioner contends that that doctrine is displaced in this case by the operation of § 22 of the Act,3 which provides:
5
'Upon his own initiative, or upon the application of any party in interest, on the ground of a change in conditions of because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed (for original claims), and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.' 33 U.S.C. § 922. (Emphasis added.)
6
The petitioner asserts that her second compensation action came under § 22 because it challenged a 'determination of fact by the deputy commissioner' in her original compensation action namely, the finding that her husband's fall did not result from a work-connected injury. The respondent argues that 'a mistake in a determination of fact' in § 22 refers only to clerical errors and matters concerning an employee's disability, not to matters concerning an employer's liability. Conceding that nothing in the statutory language supports this reading, the respondent contends that the legislative history reveals Congress' limited purpose.4
7
Section 22 was first enacted as part of the original Longshoremen's and Harbor Workers' Compensation Act in 1927. 44 Stat. 1437. At that time the section provided for review by the Deputy Commissioner only on the ground of a 'change in conditions.' The Deputy Commissioner was authorized by the section to 'terminate, continue, increase, or decrease' the original compensation award; review was permitted only 'during the term of an award.'
8
From 1930 to 1933, the United States Employees' Compensation Commission, which was charged with administering the Act, recommended in its annual reports that § 22 be amended to permit review by the Deputy Commissioner at any time. 14th Ann.Rep. of the United States Employees' Compensation Commission (hereafter USECC) 75 (1930); 15th Ann.Rep. USECC 77 (1931); 16th Ann.Rep. USECC 49 (1932); 17th Ann.Rep. USECC 18 (1933).5 In 1934 Congress, while not adopting the recommendation entirely, responded by amending § 22 to permit review 'any time prior to one year after the date of the last payment of compensation.'6 48 Stat. 807. At the same time Congress added a second ground for review by the Deputy Commissioner: 'a mistake in a determination of fact.' The purpose of this amendment was to 'broaden the grounds on which a deputy commissioner can modify an award' by allowing modification where 'a mistake in a determination of fact makes such modification desirable in order to render justice under the act.' S.Rep.No.588, 73d Cong., 2d Sess., 3—4 (1934); H.R.Rep.No. 1244, 73d Cong., 2d Sess., 4 (1934).
9
In its annual reports for 1934—1936, the Compensation Commission recommended that § 22 be further amended to apply in cases where the original compensation claim is rejected by the Deputy Commissioner. 18th Ann.Rep. USECC 38 (1934); 19th Ann.Rep. USECC 49 (1935); 20th Ann.Rep. USECC 52 (1936). Congress responded in 1938 by amending § 22 to permit review by the Deputy Commissioner 'at any time prior to one year after the rejection of a claim' and to allow the Deputy Commissioner after such review to 'award compensation.' 52 Stat. 1167. The purpose of this amendment was to extend 'the enlarged authority therein (1934 amendment) provided to cases in which the action of the deputy commissioner has been a rejection of the claim.' S.Rep.No.1988, 75th Cong., 3d Sess., 8 (1938); H.R.Rep.No.1945, 75th Cong., 3d Sess., 8 (1938).
10
We find nothing in this legislative history to support the respondent's argument that a 'determination of fact' means only some determinations of fact and not others. The respondent points out that the recommendations of the Compensation Commission prior to the 1934 amendment referred to analogous state laws; but those recommendations dealt with the time period in which review was to be available, not with the grounds for review. The respondent has referred us to no decision, state or federal, holding that a statute permitting review of determinations of fact is limited to issues relating to disability. In the absence of persuasive reasons to the contrary, we attribute to the words of a statute their ordinary meaning,7 and we hold that the petitioner's second compensation action, filed a few months after the rejection of her original claim, came within the scope of § 22.8
11
The respondent raised two other issues in the Court of Appeals, which that court found unnecessary to reach. These issues have been fully briefed and argued in this Court; and in order to bring this litigation to a close, we dispose of them here.
12
Section 33 of the Longshoremen's and Harbor Workers' Compensation Act permits an individual entitled to compensation to sue a third party for damages. 33 U.S.C. § 933(a). If no such suit is brought and compensation is accepted from the employer under an award, the rights of the employee against third parties are assigned to the employer. 33 U.S.C. § 933(b) and (c). If, as in this case, a suit is brought against a third party, the employer is liable in compensation only to the extent that allowable compensation benefits exceed the recovery from the third party. 33 U.S.C. § 933(f). Section 33(g) of the Act further provides:
13
'If compromise with such third person is made by the person entitled to compensation * * * of an amount less than the compensation to which such person or representative would be entitled to under this chapter, the employer shall be liable for compensation * * * only if such compromise is made with his written approval.' 33 U.S.C. § 933(g).
14
The respondent contends that the petitioner's acceptance of the judicially ordered remittitur of $11,000 in her third-party lawsuit was a 'compromise' within the meaning of § 33(g). We disagree.
15
The Longshoremen's and Harbor Workers' Compensation Act was modeled on the New York employees' compensation statute. Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 205, 69 S.Ct. 503, 506, 93 L.Ed. 611; H.R.Rep.No. 1190, 69th Cong., 1st Sess., 2 (1926). Under the analogous provision of that act, the New York Court of Appeals has held that a remittitur is not a compromise.
16
'Plaintiff's stipulation consenting to take that portion of the verdict judicially determined as being not excessive, does not fall within any recognized meaning of the word 'compromise." Gallagher v. Carol Construction Co., 272 N.Y. 127, 129, 5 N.E.2d 63, 64.
17
An order of remittitur is a judicial determination of recoverable damages; it is not an agreement among the parties involving mutual concessions. Section 33(g) protects the employer against his employee's accepting too little for his cause of action against a third party. That danger is not present when damages are determined, not by negotiations between the employee and the third party, but rather by the independent evaluation of a trial judge. Cf. Bell v. O'Hearne, 4 Cir., 284 F.2d 777.
18
Finally, the respondent attacks the Deputy Commissioner's finding of fact that there was a causal connection between the work-connected injury suffered by the petitioner's husband on January 30 and his fall at home some two hours later. The Deputy Commissioner's finding must be affirmed if supported by substantial evidence on the record considered as a whole. O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483. The District Court held that the Deputy Commissioner's finding was supported by substantial evidence, and we agree. While some of the testimony of the petitioner's medical expert was arguably inconsistent with other parts of his testimony, it was within the province of the Deputy Commissioner to credit part of the witness' testimony without accepting it all.
19
The judgment of the Court of Appeals is reversed.
20
Reversed.
21
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
The petitioner's husband had worked for the Chicago Grain Trimmers Association, Inc. (hereafter respondent) as a grain trimmer since 1934. Grain trimmers load and unload grain-carrying barges and vessels.
2
It is not entirely clear from the Deputy Commissioner's decision whether it rested on insufficient proof of a causal nexus between the January 26 injury and the January 30 fall or on insufficient proof that the alleged January 26 injury in fact occurred at all.
3
The petitioner also contends that (1) the doctrine of res judicata does not apply to administrative compensation cases generally, and (2) if res judicata does apply, her second action did not arise out of the same cause of action as did her first. We do not reach these contentions.
4
The respondent does not rely on either of the reasons given by the Court of Appeals for holding § 22 inapplicable: (1) that the Deputy Commissioner was not aware of Banks' January 30 injury until more than one year after the petitioner's original claim was rejected, and (2) that the petitioner's second compensation action did not dispute the original findings of fact of the Deputy Commissioner. The petitioner filed her second compensation action within a few months after the original claim was rejected; it is irrelevant that the hearing occurred more than a year later. Candado Stevedoring Corp. v. Willard, 2 Cir., 185 F.2d 232. The question of the causation of the petitioner's husband's fall is obviously one of fact, cf. O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483; the case cited by the Court of Appeals, Flamm v. Hughes, 2 Cir., 329 F.2d 378, is utterly inapposite since it dealt with the possibility of litigating a question of constitutional law in a § 22 proceeding.
5
In 1928 the Commission recommended that 'an amendment be adopted which will give deputy commissioners the continuing authority to reopen cases that is usually conferred upon compensation boards' because 'situations are continually arising in which the action taken by a deputy commissioner in correcting an error in an order may give rise to controversy and result in a failure to do justice to either the employer or the employee.' 12th Ann.Rep. USECC 40 (1928). It is not at all clear just what the Commission thus meant to recommend. In any event this recommendation was not repeated in later annual reports, and there is no evidence that Congress at any time sought to adopt it. (Compare the committee reports to the 1934 amendment to § 22, which contain specific references to the 17th Ann.Rep. USECC (1933). S.Rep.No. 588, 73d Cong., 2d Sess., 3 (1934); H.R.Rep.No. 1244, 73d Cong., 2d Sess., 4 (1934).)
6
Congress also added authority for the Deputy Commissioner to 'reinstate' compensation as well as to terminate, continue, increase, or decrease it.
7
It is true that the statute as enacted in 1927, permitting review only 'on the ground of a change in conditions,' might have supported a distinction between issues of disability and liability. But after the 1934 and 1938 amendments, permitting review of 'a determination of fact' and authorizing the Deputy Commissioner to 'award compensation' even where the original claim is rejected, the asserted distinction can draw no support from the statutory language.
8
It is irrelevant for purposes of § 22 that the petitioner labeled her second action a claim for compensation rather than an application for review so long as the action in fact comes within the scope of the section. Candado Stevedoring Corp. v. Willard, 2 Cir., 185 F.2d 232.
| 78
|
390 U.S. 519
88 S.Ct. 1152
20 L.Ed.2d 77
John Herbert GREENWALDv.WISCONSIN.
No. 417, Misc.
Decided April 1, 1968.
Bronson C. LaFollette, Atty. Gen. of Wisconsin, for respondent.
PER CURIAM.
1
Petitioner was charged with two burglaries and one attempted burglary. He entered pleas of not guilty to each count. Before trial, petitioner requested a hearing on the voluntariness of certain oral admissions and a written confession he had given while in police custody. The hearing was held and the trial court found that the statements had been voluntarily made. Petitioner waived jury trial. The statements were admitted in evidence and he was convicted on all three counts. On each of them he was sentenced to an indeterminate term of not more than five years, with the sentences to run concurrently. The Wisconsin Supreme Court, on appeal, affirmed the convictions. It agreed with the trial court that the statements in question were voluntary. Petitioner sought a writ of certiorari. We grant the motion for leave to proceed in forma pauperis, grant the writ, and reverse the judgment below.
2
Petitioner, who has a ningh-grade education, was arrested on suspicion of burglary shortly before 10:45 on the evening of January 20, 1965. He was taken to a police station. He was suffering from high blood pressure, a condition for which he was taking medication twice a day. Petitioner had last taken food and medication, before his arrest, at 4 p.m. He did not have medication with him at the time of the arrest. At the police station petitioner was interrogated from 10:45 until midnight. He was not advised of his constitutional rights. Petitioner repeatedly denied guilt. No incriminating statements were made at this time.
3
Petitioner was booked and fingerprinted and, sometime after 2 a.m., he was taken to a cell in the city jail. A plank fastened to the wall served as his bed. Petitioner claims he did not sleep. At 6 a.m., petitioner was led from the cell to a 'bullpen.' At 8:30 he was placed in a lineup. At 8:45, his interrogation recommenced. It was conducted by several officers at a time, in a small room. Petitioner testified that in the course of the morning he was not offered food and that he continued to be without medication. For an hour or two he refused to answer any questions. When he did speak, it was to deny, once again, his guilt.
4
Sometime after 10 a.m., petitioner was asked to write out a confession. He refused, stating that 'it was against my constitutional rights' and that he was 'entitled to have a lawyer.' These statements were ignored. No further reference was made to an attorney, by petitioner or by the police officers.
5
At about 11 a.m. petitioner began a series of oral admissions culminating in a full oral confession at about 11:30. At noon he was offered food. The confession was reduced to writing around 1 p.m. Just before the confession was reduced to writing, petitioner was advised of his constitutional rights. According to his testimony, he confessed because 'I knew they weren't going to leave me alone until I did.'
6
It is our duty, in a case such as this, to make an examination of the record in order to ascertain whether petitioner's statements were voluntary.* See Davis v. State of North Carolina, 384 U.S. 737, 741—742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966). We believe that, considering the 'totality of the circumstances' surrounding the statements, see Clewis v. Texas, 386 U.S. 707 (1967), it was error for the Supreme Court of Wisconsin to conclude that they were voluntarily made. We reach this decision as in Clewis, without reference to disputed testimony taken at the pretrial hearing.
7
All of the above recited facts are, under our decisions, relevant to the claim that the statements were involuntary: the lack of counsel, especially in view of the accused's statement that he desires counsel (see Johnson v. State of New Jersey, 384 U.S. 719, 730, 735, 86 S.Ct. 1772, 1779, 1781, 16 L.Ed.2d 882 (1966); cf. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964)); the lack of food, sleep, and medication (see Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967)); the lack or inadequacy of warnings as to constitutional rights (see Culombe v. State of Connecticut, 367 U.S. 568, 630, 81 S.Ct. 1860, 1893, 6 L.Ed.2d 1037 (1961); Johnson v. State of New Jersey, 384 U.S. 719, 730, 86 S.Ct. 1772, 1779, 16 L.Ed.2d 882 (1966)). Considering the totality of these circumstances, we do not think it credible that petitioner's statements were the product of his free and rational choice.
8
Accordingly, the judgment below is reversed.
9
Reversed.
10
Mr. Justice STEWART, with whom Mr. Justice HARLAN and Mr. Justice WHITE join, dissenting.
11
I cannot agree that the petitioner's confession was involuntary as a matter of law. When he was taken to the police station for questioning he was nearly 30 years old and was by no means a stranger to the criminal law. He was questioned for little more than an hour one evening and for less than four hours the next morning. He was neither abused nor threatened and was promised no benefit for confessing. The Court says that the officers did not tell him about his 'constitutional rights.' But what the Court fails to mention is that the petitioner himself testified that, during his interrogation, 'he knew he had a constitutional right to refuse to answer any questions, * * * he knew anything he said could be used against him, and * * * he knew he had a constitutional right to retain counsel.' 35 Wis.2d 146, 151, 150 N.W.2d 507, 509. Moreover, although the Court's opinion might convey a contrary impression, the petitioner himself testified that at no time between his arrest and his confession did he express to anyone a desire for food or for medication.
12
The judge who conducted the pretrial hearing held that the State had the burden of proving 'beyond a reasonable doubt' that the petitioner's decision to confess was the product of his own unfettered will. Applying this standard, the judge found that the 'totality of the circumstances' confronting the petitioner was not 'coercive in any physical or psychological respect' and that he had made a 'free and deliberate choice to admit his guilt.' These findings were reviewed and affirmed by the Supreme Court of Wisconsin in a conscientious and thorough opinion. 35 Wis.2d 146, 150 N.W.2d 507.
13
Given the evidence on which the conclusions of the state courts were based, it is not surprising that the petitioner has completely abandoned any claim that his confession was coerced. That claim is advanced here not by the petitioner but by this Court, which has not only raised the issue on its own motion but decided it in the petitioner's favor, without giving Wisconsin any opportunity to brief or argue the question on the merits.*
*
Petitioner's trial began before the date of our decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although petitioner's trial was after the date of our decision in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), we need not and do not decide whether that decision would, in itself, require reversal of petitioner's convictions. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).
*
The petitioner does not raise, and the Court does not reach, the question whether his confession was inadmissible under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.
| 01
|
390 U.S. 511
88 S.Ct. 1155
20 L.Ed.2d 69
Ronald L. JOHNSON, Petitioner,v.COMMONWEALTH OF MASSACHUSETTS.
No. 702.
Argued March 6 and 7, 1968.
Decided April 1, 1968.
John M. Harrington, Jr., Boston, Mass., for petitioner.
Brian E. Concannon, Boston, Mass., for respondent.
PER CURIAM.
1
In 1964 petitioner was tried and convicted in a Massachusetts Superior Court for murder, armed robbery, and other offenses. The conviction was affirmed by the Supreme Judicial Court of Massachusetts. Commonwealth v. Johnson, 352 Mass. 311, 225 N.E.2d 360. We granted certiorari because there appeared to be substantial questions concerning the voluntariness of a confession of petitioner which was admitted in evidence at his trial. After oral argument and study of the record, we have reached the conclusion that the record relevant to the constitutional claims now asserted is insufficient to permit decision of those claims.** The writ is therefore dismissed as improvidently granted. Cf. Smith v. State of Mississippi, 373 U.S. 238, 83 S.Ct. 1265, 10 L.Ed. 321; Massachusetts v. Painten, 389 U.S. 560, 88 S.Ct. 660, 19 L.Ed.2d 770.
2
It is so ordered.
3
Writ of certiorari dismissed.
4
Mr. Justice MARSHALL, with whom THE CHIEF JUSTICE and Mr. Justice FORTAS join, dissenting.
5
Petitioner was convicted of the first-degree murder of a police officer and sentenced to death. He urges that an involuntary confession was used in evidence against him, in violation of due process.
6
The facts concerning the making of the statement are not in controversy. After the shooting of the police officer in the evening of August 1, 1963, petitioner drove off in a car. He was seen by other police officers who had been called to the scene by a police alarm and who proceeded to pursue him in their car. After a chase at high speeds for several blocks, during the course of which petitioner's automobile struck a wall and caromed off several parked cars, petitioner crashed into a bus. He limped away from the heavily damaged car in an attempt to flee but was almost immediately apprehended by the police.
7
Petitioner was taken to a police station and booked at 9:35 p.m. He was first placed in a cell and then taken to police headquarters sometime after 10:15 p.m. Between midnight and 5 a.m. he was placed in a lineup for identification purposes upon four separate occasions. During this period petitioner was constantly surrounded by large numbers of policemen. Various police witnesses estimated the number of officers present in the lineup room alone at from 45 to 100, and at least 32 officers testified at the hearing on the new trial motion to having had some contact with petitioner during the course of the night. Numerous witnesses identified petitioner as the killer during the four lineups, although he continually maintained his innocence in the face of their accusations. Apart from the lineups, petitioner was also questioned intermittently during this period. At about 5:50 a.m., August 2, petitioner began to give the inculpatory statements, in response to police questions, that were introduced against him. It is clear that the interrogation of petitioner was carried on for the sole purpose of eliciting incriminating statements from him, since he had already been positively identified numerous times, while in lineups, as the killer.
8
Petitioner has a sixth-grade education and an IQ. of 86. During the period of over eight hours in which he was in police custody prior to confessing, he was at no time advised of his right to remain silent or his right to consult with an attorney, and the trial judge found as a fact that petitioner was not aware of his rights at the time he confessed. At the time of his arrest petitioner was bleeding from a cut an inch or an inch and one-half long on the side of his head. During the various lineups to which he was subjected, petitioner constantly had blood visible on his face or head. Two doctors later examined petitioner, one on August 10, and the other on August 14. They reported the following: 'He (petitioner) has headaches and dizziness when he bends down and gets up. He had a blackout spell in the police station. Things appear blurry to him. He has vomited a couple of times.' Two weeks after his arrest and confession, petitioner underwent a brain operation for a subdural hematoma; the surgeon who operated on him testified that the hematoma 'could have been there anywhere from one to two weeks.'
9
On these facts the trial court found petitioner's confession voluntary, that is the result of his 'free choice to admit, to deny, or to refuse to answer.' Lisenba v. People of State of California, 314 U.S. 219, 241, 62 S.Ct. 280, 292, 86 L.Ed. 166 (1941). While it is true that some of this Court's earlier decisions in voluntariness cases (relied on by the State here) are not inconsistent with such a holding, e.g., Lisenba v. People of State of California, supra; Gallegos v. State of Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86 (1951); Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953), I had thought that more recent decisions of this Court would have made it abundantly clear that a confession obtained under the circumstances present here would be involuntary and constitutionally inadmissible against its maker. See, e.g., Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895, (1966); Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967).
10
The Court says that it finds the record in this capital case too 'insufficient' to permit a resolution of petitioner's constitutional claim. I am unable to agree, since the evidence on the question of voluntariness is largely undisputed. I am particularly unable to understand the Court's disposition of this case, after full oral argument, in light of its disposition of Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77, in which it finds a confession involuntary and reverses, without argument, on facts which are, if anything, less compelling on the issue of involuntariness than the facts in the present case.
11
To be sure, petitioner challenged the voluntariness of his confession at trial only on the theory, which was rejected, that he had been subjected to physical abuse by the police. However, in the course of the hearing on that challenge the circumstances as outlined above emerged from the testimony of the police and were specifically found as facts by the trial judge. Yet, once he concluded there had been no physical abuse, the trial judge did not go on to consider the voluntariness of petitioner's confession in light of 'the totality of these circumstances,' Greenwald v. Wisconsin, 390 U.S., at 521, 88 S.Ct., at 1154, under which it was obtained. While the Supreme Judicial Court stated that petitioner should have raised at trial the theory of involuntariness on which he now relies, its opinion reveals that it then went on to pass on that evidence itself, in the course of ruling on petitioner's request for a new trial, and found the confession voluntary. Accordingly, I do not feel that it is necessary for us to decide whether the trial judge was under a duty sua sponte to consider a theory of involuntariness not initially raised by petitioner, since it appears that such facts were considered and passed on in the course of appellate review in the state court.
12
I respectfully dissent.
**
Petitioner's claim on voir dire was that his confession was beaten out of him by police. The trial judge found as a fact that it was not. At the trial itself petitioner did not attack the voluntariness of the confession on any other ground, or raise the other constitutional challenges argued in this Court. The defense at the trial was primarily directed at persuading the jury not to impose the death penalty. The petitioner made an unsworn statement to the jury at the close of summations to which he said, 'all the evidence which the prosecutor presented to you was true. There was no sense in my taking the stand because all the evidence points to me. * * * All that I ask is just clemency. * * * I put my life into your hands. Please recommend clemency, life imprisonment.'
| 89
|
390 U.S. 474
88 S.Ct. 1114
20 L.Ed.2d 45
Hank AVERY, Petitioner,v.MIDLAND COUNTY, TEXAS, et al.
No. 39.
Argued Nov. 14, 1967.
Decided April 1, 1968.
Lyndon L. Olson, Waco, Tex., for petitioner.
Francis X. Beytagh, Jr., Cleveland, Ohio, for the United States, as amicus curiae, by special leave of Court.
W. B. Browder, Jr., and F. H. Pannill, Midland, Tex., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
Petitioner, a taxpayer and voter in Midland County, Texas, sought a determination by this Court that the Texas Supreme Court erred in concluding that selection of the Midland County Commissioners Court from single-member districts of substantially unequal population did not necessarily violate the Fourteenth Amendment. We granted review, 388 U.S. 905, 87 S.Ct. 2106, 18 L.Ed.2d 1345 (1967), because application of the one man, one vote principle of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), to units of local government is of broad public importance. We hold that petitioner as a resident of Midland County, has a right to a vote for the Commissioners Court of substantially equal weight to the vote of every other resident.
2
Midland County has a population of about 70,000. The Commissioners Court is composed of five members. One, the County Judge, is elected at large from the entire county, and in practice casts a vote only to break a tie. The other four are Commissioners chosen from districts. The population of those districts, according to the 1963 estimates that were relied upon when this case was tried, was respectively 67,906; 852; 414; and 828. This vast imbalance resulted from placing in a single district virtually the entire city of Midland, Midland County's only urban center, in which 95% of the county's population resides.
3
The Commissioners Court is assigned by the Texas Constitution and by various statutory enactments with a variety of functions. According to the commentary to Vernon's Texas Statutes, the court:
4
'is the general governing body of the county. It establishes a courthouse and jail, appoints numerous minor officials such as the county health officer, fills vacancies in the county offices, lets contracts in the name of the county, builds roads and bridges, administers the county's public welfare services, performs numerous duties in regard to elections, sets the county tax rate, issues bonds, adopts the county budget, and serves as a board of equalization for tax assessments.'1
5
The court is also authorized, among other responsibilities, to build and run a hospital, Tex.Rev.Civ.Stat.Ann., Art. 4492 (1966), an airport, id., Art. 351 (1964), and libraries, id., Art. 1677 (1962). It fixes boundaries of school districts within the county, id., Art. 2766 (1965), may establish a regional public housing authority, id., Art. 1269k, § 23a (1963), and determines the districts for election of its own members, Tex.Const., Art. V, § 18, Vernon's Ann.St.
6
Petitioner sued the Commissioners Court and its members in the Midland County District Court, alleging that the disparity in district population violated the Fourteenth Amendment and that he had standing as a resident, taxpayer, and voter in the district with the largest population. Three of the four commissioners testified at the trial all telling the court (as indeed the population statistics for the established districts demonstrated) that population was not a major factor in the districting process. The trial court ruled for petitioner. It made no explicit reference to the Fourteenth Amendment, but said the apportionment plan in effect was not 'for the convenience of the people,' the apportionment standard established by Art. V, § 18, of the Texas Constitution. The court ordered the defendant commissioners to adopt a new plan in which each precinct would have 'substantially the same number of people.'
7
The Texas Court of Civil Appeals reversed the judgment of the District Court and entered judgment for the respondents, 397 S.W.2d 919 (1965). It held that neither federal nor state law created a requirement that Texas county commissioners courts be districted according to population.
8
The Texas Supreme Court reversed the Court of Civil Appeals, 406 S.W.2d 422 (1966). It held that under 'the requirements of the Texas and the United States Constitutions' the present districting scheme was impermissible 'for the reasons stated by the trial court.' 406 S.W.2d, at 425. However, the Supreme Court disagreed with the trial court's conclusion that precincts must have substantially equal populations, stating that such factors as 'number of qualified voters, land areas, geography, miles of county roads and taxable values' could be considered. 406 S.W.2d, at 428. It also decreed that no Texas courts could redistrict the Commissioners Court. 'This is the responsibility of the commissioners court and is to be accomplished within the constitutional boundaries we have sought to delineate.' 406 S.W.2d at 428—429.2
9
In Reynolds v. Sims, supra, the Equal Protection Clause was applied to the apportionment of state legislatures. Every qualified resident, Reynolds determined, has the right to a ballot for election of state legislators of equal weight to the vote of every other resident, and that right is infringed when legislators are elected from districts of substantially unequal population. The question now before us is whether the Fourteenth Amendment likewise forbids the election of local government officials from districts of disparate population. As has almost every court which has addressed itself to this question,3 we hold that it does.4
10
The Equal Protection Clause reaches the exercise of state power however manifested, whether exercised directly or through subdivisions of the State.
11
'Thus the prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action * * *.' Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5 (1958).
12
Although the forms and functions of local government and the relationships among the various units are matters of state concern, it is now beyond question that a State's political subdivisions must comply with the Fourteenth Amendment.5 The actions of local government are the actions of the State. A city, town, or county may no more deny the equal protection of the laws than it may abridge freedom of speech, establish an official religion, arrest without probable cause, or deny due process of law.
13
When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process. If voters residing in oversize districts are denied their constitutional right to participate in the election of state legislators, precisely the same kind of deprivation occurs when the members of a city council, school board, or county governing board are elected from districts of substantially unequal population. If the five senators representing a city in the state legislature may not be elected from districts ranging in size from 50,000 to 500,000, neither is it permissible to elect the members of the city council from those same districts. In either case, the votes of some residents have greater weight than theose of others; in both cases the equal protection of the laws has been denied.
14
That the state legislature may itself be properly apportioned does not exempt subdivisions from the Fourteenth Amendment. While state legislatures exercise extensive power over their constituents and over the various units of local government, the States universally leave much policy and decisionmaking to their governmental subdivisions. Legislators enact many laws but do not attempt to reach those countless matters of local concern necessarily left wholly or partly to those who govern at the local level. What is more, in providing for the governments of their cities, counties, towns, and districts, the States characteristically provide for representative government—for decisionmaking at the local level by representatives elected by the people. And, not infrequently, the delegation of power to local units is contained in constitutional provisions for local home rule which are immune from legislative interference. In a word, institutions of local government have always been a major aspect of our system, and their responsible and responsive operation is today of increasing importance to the quality of life of more and more of our citizens. We therefore see little difference, in terms of the application of the Equal Protection Clause and of the principles of Reynolds v. Sims, between the exercise of state power through legislatures and its exercise by elected officials in the cities, towns, and counties.6
15
We are urged to permit unequal districts for the Midland County Commissioners Court on the ground that the court's functions are not sufficiently 'legislative.' The parties have devoted much effort to urging that alternative labels 'administrative' versus 'legislative'—be applied to the Commissioners Court. As the brief description of the court's functions above amply demonstrates, this unit of local government cannot easily be classified in the neat categories favored by civics texts. The Texas commissioners courts are assigned some tasks which would normally be thought of as 'legislative,' others typically assigned to 'executive' or 'administrative' departments, and still others which are 'judicial.' In this regard Midland County's Comissioners Court is representative of most of the general governing bodies of American cities, counties, towns, and villages.7 One knowledgeable commentator has written of 'the states' varied, pragmatic approach in establishing government.' R. Wood, in Politics and Government in the United States 891—892 (A. Westin ed. 1965). That approach has produced a staggering number of governmental units—the preliminary calculation by the Bureau of the Census for 1967 is hat there are 81,304 'units of government' in the United States8—and an even more staggering diversity. Nonetheless, while special-purpose organizations abound and in many States the allocation of functions among units results in instances of overlap and vacuum, virtually every American lives within what he and his neighbors regard as a unit of local government with general responsibility and power for local affairs. In many cases citizens reside within and are subject to two such governments, a city and a county.
16
The Midland County Commissioners Court is such a unit. While the Texas Supreme Court found that the Commissioners Court's legislative functions are 'negligible,' 406 S.W.2d, at 426, the court does have power to make a large number of decisions having a broad range of impacts on all the citizens of the county. It sets a tax rate, equalizes assessments, and issues bonds. It then prepares and adopts a budget for allocating the county's funds, and is given by statute a wide range of discretion in choosing the subjects on which to spend. In adopting the budget the court makes both long-term judgments about the way Midland County should develop—whether industry should be solicited, roads improved, recreation facilities built, and land set aside for schools—and immediate choices among competing needs.
17
The Texas Supreme Court concluded that the work actually done by the Commissioners Court 'disproportionately concern(s) the rural areas,' 406 S.W.2d, at 428. Were the Commissioners Court a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents, we would have to confront the question whether such a body may be apportioned in ways which give greater influence to the citizens most affected by the organization's functions. That question, however, is not presented by this case, for while Midland County authorities may concentrate their attention on rural roads, the relevant fact is that the powers of the Commissioners Court include the authority to make a substantial number of decisions that affect all citizens, whether they reside inside or outside the city limits of Midland. The Commissioners maintain buildings, administer welfare services, and determine school districts both inside and outside the city. The taxes imposed by the court fall equally on all property in the county. Indeed, it may not be mere coincidence that a body apportioned with three of its four voting members chosen by residents of the rural area surrounding the city devotes most of its attention to the rpoblems of that area, while paying for its expenditures with a tax imposed equally on city residents and those who live outside the city. And we might point out that a decision not to exercise a function within the court's power—a decision, for example, not to build an airport or a library, or not to participate in the federal food stamp program—is just as much a decision affecting all citizens of the county as an affirmative decision
18
The Equal Protection Clause does not, of course, require that the State never distinguish between citizens, but only that the distinctions that are made not be arbitrary or invidious. The conclusion of Reynolds v. Sims was that bases other than population were not acceptable grounds for distinguishing among citizens when determining the size of districts used to elect members of state legislatures. We hold today only that the Constitution permits no substantial variation from equal population in drawing districts for units of local government having general governmental powers over the entire geographic area served by the body.
19
This Court is aware of the immense pressures facing units of local government, and of the greatly varying problems with which they must deal. The Constitution does not require that a uniform straitjacket bind citizens in devising mechanisms of local government suitable for local needs and efficient in solving local problems. Last Term, for example, the Court upheld a procedure for choosing a school board that placed the selection with school boards of component districts even though the component boards had equal votes and served unequal populations. Sailors v. Board of Education of Kent County, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967). The Court rested on the administrative nature of the area school board's functions and the essentially appointive form of the scheme employed. In Dusch v. Davis, 387 U.S. 112, 7 S.Ct. 1554, 18 L.Ed.2d 656 (1967), the Court permitted Virginia Beach to choose its legislative body by a scheme that included at-large voting for candidates, some of whom had to be residents of particular districts, even though the residence districts varied widely in population.
20
The Sailors and Dusch cases demonstrate that the Constitution and this Court are not roadblocks in the path of innovation, experiment, and development among units of local government. We will not bar what Professor Wood has called 'the emergence of a new ideology and structure of public bodies, equipped with new capacities and motivations * * *.' R. Wood, 1400 Governments, at 175 (1961). Our decision today is only that the Constitution imposes one ground rule for the development of arrangements of local government: a requirement that units with general governmental powers over an entire geographic area not be apportioned among single-member districts of substantially unequal population.
21
The judgment below is vacated and the case is remanded for disposition not inconsistent with this opinion.
22
It is so ordered.
23
Judgment vacated and case remanded.
24
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
25
Mr. Justice HARLAN, dissenting.
26
I could not disagree more with this decision, which wholly disregards statutory limitations upon the appellate jurisdiction of this Court in state cases and again betrays such insensitivity to the appropriate dividing lines between the judicial and political functions under our constitutional system.
I.
27
I believe that this Court lacks jurisdiction over this case because, properly analyzed, the Texas judgment must be seen either to rest on an adequate state ground or to be wanting in 'finality.' The history of the Texas proceedings, as related in the Court's opinion, ante, at 477-478, clearly reveals that the decision of the Texas Supreme Court disallowing the present county apportionment scheme rests upon a state as well as a federal ground. The state ground—Art. V, § 18, of the Texas Constitution was clearly adequate to support the result. This should suffice to defeat the exercise of this Court's jurisdiction. See, e.g., Department of Mental Hygiene of Cal. v. Kirchner, 380 U.S. 194, 85 S.Ct. 871, 13 L.Ed.2d 753; Herb v. Pitcairn, 324 U.S. 117, 125 126, 65 S.Ct. 459, 462—463, 89 L.Ed. 789.
28
Nor does this Court have jurisdiction to review the Texas Supreme Court's statement that in reapportioning the county in the future the county commissioners may take into account factors other than population. That holding obviously does not amount to a '(f)inal judgment' within the meaning of 28 U.S.C. § 1257.1 The traditional test of finality of state court judgments has been whether the judgment leaves more than a ministerial act to be done. See, e.g., Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 382, 73 S.Ct. 749, 751, 97 L.Ed. 1094; Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68, 68 S.Ct. 972, 976, 92 L.Ed. 1212. It is clear that the acts which must be performed in order to bring about a new apportionment of Midland County are very far from ministerial in character, and conceivably might even result in satisfying petitioner's demands without further litigation. For example, since the statement of the Texas Supreme Court regarding nonpopulation factors was merely advisory and not mandatory, the county commissioners might choose to reapportion the county solely on the basis of population, thus leaving petitioner with nothing about which to complain. Since the requirement of finality is an unwaivable condition of this Court's jurisdiction, see, e.g., Market St. R. Co. v. Railroad Comm'n of State of Cal., 324 U.S. 548, 551, 65 S.Ct. 770, 772, 89 L.Ed. 1171, I consider that this case is not properly before us.
29
On these scores, I would dismiss the writ as improvidently granted.
II.
30
On the merits, which I reach only because the Court has done so, I consider this decision, which extends the state apportionment rule of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, to an estimated 80,000 units of local government throughout the land, both unjustifiable and ill-advised.
31
I continue to think that these adventures of the Court in the realm of political science are beyond its constitutional powers, for reasons set forth at length in my dissenting opinion in Reynolds, 377 U.S., at 589, 84 S.Ct., at 1395 et seq. However, now that the Court has decided otherwise, judicial self-discipline requires me to follow the political dogma now constitutionally embedded in consequence of that decision. I am not foreclosed, however, from remonstrating against the extension of that decision to new areas of government. At the present juncture I content myself with stating two propositions which, in my view, stand strongly against what is done today. The first is that the 'practical necessities' which have been thought by some to justify the profound break with history that was made in 1962 by this Court's decision in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663,2 are not present here. The second is that notwithstanding Reynolds the 'one man, one vote' ideology does not provide an acceptable formula for structuring local governmental units.
A.
32
The argument most generally heard for justifying the entry of the federal courts into the field of state legislative apportionment is that since state legislatures had widely failed to correct serious mal-apportionments in their own structure, and since no other means of redress had proved available throgh the political process, this Court was entitled to step into the picture.3 While I continue to reject that thesis as furnishing an excuse for the federal judiciary's straying outside its proper constitutional role, and while I continue to believe that it bodes ill for the country and the entire federal judicial system if this Court does not firmly set its face against this loose and short-sighted point of view, the important thing for present purposes is that no such justification can be brought to bear in this instance.
33
No claim is made in this case that avenues of political redress are not open to correct any malapportionment in elective local governmental units, and it is difficult to envisage how such a situation could arise. Local governments are creatures of the States, and they may be reformed either by the state legislatures, which are now required to be apportioned according to Reynolds, or by amendment of state constitutions.4 In these circumstances, the argument of practical necessity has no force. The Court, then, should withhold its hand until such a supposed necessity does arise, before intruding itself into the business of restructuring local governments across the country.
34
There is another reason why the Court should at least wait for a suitable period before applying the Reynolds dogma to local governments. The administrative feasibility of judicial application of the 'one man, one vote' rule to the apportionment even of state legislatures has not yet been demonstrated. A number of significant administrative questions remain unanswered,5 and the burden on the federal courts has been substantial. When this has thus far been the outcome of applying the rule to 50 state legislatures, it seems most unwise at this time to extend it to some 80,000 units of local government, whose bewildering variety is sure to multiply the problems which have already arisen and to cast further burdens, of imponderable dimension, on the federal courts. I am frankly astonished at the ease with which the Court has proceeded to fasten upon the entire country at its lowest political levels the strong arm of the federal judiciary, let alone a particular political ideology which has been the subject of wide debate and differences from the beginnings of our Nation.6
B.
35
There are also convincing functional reasons why the Reynolds rule should not apply to local governmental units at all. The effect of Reynolds was to read a long debated political theory that the only permissible basis for the selection of state legislators is election by majority vote within areas which are themselves equal in population—into the United States Constitution, thereby foreclosing the States from experimenting with legislatures rationally formed in other ways. Even assuming that this result could be justified on the state level, because of the substantial identity in form and function of the state legislatures, and because of the asserted practical necessities for federal judicial interference referred to above, the 'one man, one vote' theory is surely a hazardous generalization on the local level. As has been noted previously, no 'practical necessity' has been asserted to justify application of the rule to local governments. More important, the greater and more varied range of functions performed by local governmental units implies that flexibility in the form of their structure is even more important than at the state level, and that by depriving local governments of this needed adaptability the Court's holding may indeed defeat the very goals of Reynolds.
36
The present case affords one example of why the 'one man, one vote' rule is especially inappropriate for local governmental units. The Texas Supreme Court held as a matter of Texas law:
37
'Theoretically, the commissioners court is the governing body of the county and the commissioners represent all the residents, both urban and rural, of the county. But developments during the years have greatly narrowed the scope of the functions of the commissioners court and limited its major responsibilities to the nonurban areas of the county. It has come to pass that the city government * * * is the major concern of the city dwellers and the administration of the affairs of the county is the major concern of the rural dwellers.' 406 S.W.2d 422, 428.
38
Despite the specialized role of the commissioners court, the majority has undertaken to bring it within the ambit of Reynolds simply by classifying it as 'a unit of local government with general responsibility and power for local affairs.' See ante, at 483. Although this approach is intended to afford 'equal protection' to all voters in Midland County, it would seem that it in fact discriminates against the county's rural inhabitants. The commissioners court, as found by the Texas Supreme Court, performs more functions in the area of the county outside Midland City than it does within the city limits. Therefore, each rural resident has a greater interest in its activities than each city dweller. Yet under the majority's formula the urban residents are to have a dominant voice in the county government, precisely proportional to their numbers, and little or no allowance may be made for the greater stake of the rural inhabitants in the county government.
39
This problem is not a trivial one and is not confined to Midland County. It stems from the fact that local governments, unlike state governments, are often specialized in function.7 Application of the Reynolds rule to such local governments prevents the adoption of apportionments which take into account the effect of this specialization, and therefore may result in a denial of equal treatment to those upon whom the exercise of the special powers has unequal impact. Under today's decision, the only apparent alternative is to classify the governmental unit as other than 'general' in power and responsibility, thereby, presumably, avoiding application of the Reynolds rule. Neither outcome satisfies Reynolds' avowed purpose: to assure 'equality' to all voters. The result also deprives localities of the desirable option of establishing slightly specialized, elective units of government, such as Texas' county commissioners court, and varying the size of the constituencies so as rationally to favor those whom the government affects most. The majority has chosen explicitly to deny local governments this alternative by rejecting even the solution of the Texas Supreme Court, which held that the present county apportionment was impermissible but would have allowed the new apportionment to reflect factors related to the special functions of the county commissioners court, such as 'land areas, geography, miles of county roads and taxable values,' 406 S.W.2d, at 428, as well as population.
40
Despite the majority's declaration that it is not imposing a 'straitjacket' on local governmental units, see ante, at 485, its solution is likely to have other undesirable 'freezing' effects on local government. One readily foreseeable example is in the crucial field of metropolitan government. A common pattern of development in the Nation's urban areas has been for the less affluent citizens to migrate to or remain within the central city, while the more wealthy move to the suburbs and come into the city only to work.8 The result has been to impose a relatively heavier tax burden upon city taxpayers and to fragmentize governmental services in the metropolitan area.9 An oft-proposed solution to these problems has been the institution of an integrated government encompassing the entire metropolitan area.10 In many instances, the suburbs may be included in such a metropolitan unit only by majority vote of the voters in each suburb.11 As a practical matter, the suburbanites often will be reluctant to join the metropolitan government unless they receive a share in the government proportional to the benefits they bring with them and not merely to their numbers.12 The city dwellers may be ready to concede this much, in return for the ability to tax the suburbs. Under the majority's pronouncements, however, this rational compromise would forbidden: the metropolitan government must be apportioned solely on the basis of population if it is a 'general' government.
41
These functional considerations reinforce my belief that the 'one man, one vote' rule, which possesses the simplistic defects inherent in any judicially imposed solution of a complex social problem,13 is entirely inappropriate for determining the form of the country's local governments.
42
No better demonstration of this proposition could have been made than that afforded by the admirable analysis contained in the dissenting opinion of my Brother FORTAS. But, with respect, my Brother's projected solution of the matter is no less unsatisfactory. For it would bid fair to plunge this Court into an avalanche of local reapportionment cases with no firmer constitutional anchors than its own notions of what constitutes 'equal protection' in any given instance.
43
With deference, I think that the only sure-footed way of avoiding, on the one hand, the inequities inherent in today's decision, and on the other, the morass of pitfalls that would follow from my Brother FORTAS' approach, is for this Court to decline to extend the constitutional experiment of Reynolds, and to leave the structuring of local governmental units to the political process where it belongs.
44
Mr. Justice FORTAS, dissenting.
45
I would dismiss the writ in this case as improvidently granted. The Texas Supreme Court held the districting scheme unlawful under the Texas Constitution. It ordered redistricting. In this difficult and delicate area I would await the result of the redistricting so that we may pass upon the final product of Texas' exercise of its governmental powers, in terms of our constitutional responsibility, and not upon a scheme which Texas itself has invalidated.1
46
The Court's opinion argues (ante, at 478, n. 2) that the Texas Supreme Court's order is a final judgment because it contemplates no further proceedings in the Texas courts, although it holds the present districting unlawful and requires the Commissioners Court to redistrict. I do not reach this point.
47
The Court acts now to superimpose its own formula because it disagrees with the standard for redistricting that the Texas Supreme Court states. That standard directed redistricting on the basis of the 'number of qualified voters, land areas, geography, miles of county roads and taxable values.' 406 S.W.2d 422, 428. This standard may or may not produce a result which this Court or I would find constitutionally acceptable. We cannot know in advance how the melange of factors stated by the Texas court would emerge from the mixing machine of the Texas authorities who would deal with the problem. It is clear that the extreme imbalance now prevailing would be eliminated, because the Texas Supreme Court has held it unconstitutional. It might be that the substitute finally worked out would be such that a majority of this Court would not reject it as a denial of equal protection of the laws. After all, at the last Term of this Court, we accepted as passing the scrutiny of the Constitution, the less-than-mathematically perfect plans in Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967), and Sailors v. Board of Education of Kent County, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967).
48
The Court, however, now plunges to adjudication of the case of Midland County, Texas, in midstream, apparently because it rejects any result that might emerge which deviates from the literal thrust of one man, one vote. Since it now adopts this simplistic approach, apparently the majority believes that it might as well say so and save Texas the labor of devising an answer.
49
I am in fundamental disagreement. I believe, as I shall discuss, that in the circumstances of this case equal protection of the laws may be achieved—and perhaps can only be achieved—by a system which takes into account a complex of values and factors, and not merely the arithmetic simplicity of one equals one. Dusch and Sailors were wisely and prudently decided. They reflect a reasoned, conservative, empirical approach to the intricate problem of apply constitutional principle to the complexities of local government. I know of no reason why we now abandon this reasonable and moderate approach to the problem of local suffrage and adopt an absolute and inflexible formula which is potentially destructive of important political and social values. There is no reason why we should insist that there is and can be only one rule for voters in local governmental units—that district for units of local government must be drawn solely on the basis of population. I believe there are powerful resons why, while insisting upon reasonable regard for the population-suffrage ratio, we should reject a rigid, theoretical, and authoritarian approach to the problems of local government. In this complex and involved area, we should be careful and conservative in our application of constitutional imperatives, for they are powerful.
50
Constitutional commandments are not surgical instruments. They have a tendency to hack deeply—to amputate. And while I have no doubt that, with the growth of suburbia and exurbia, the problem of allocating local government functions and benefits urgently requires attention, I am persuaded that it does not call for the hatchet of one man, one vote. It is our duty to insist upon due regard for the value of the individual vote but not to ignore realities or to bypass the alternatives that legislative alteration might provide.
I.
51
I agree that application of the Equal Protection Clause of the Constitution, decreed by this Court in the case of state legislatures, cannot stop at that point. Of course local governmental units are subject to the commands of the Equal Protection Clause. Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 1408, 3 L.Ed.2d 5 (1958). That much is easy. The difficult question, and the one which the Court slights, is: What does the Equal Protection Clause demand with regard to local governmental units?
52
Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), stands for the general proposition that the debasement of the right to vote through malapportionment is offensive to the Equal Protection Clause. It holds that where the allegedly debased vote relates to the State Legislature, a judicial remedy is available to adjudicate a claim of such debasement, and that, subject to some permissible deviation, the remedy is to require reapportionment on a population basis. Although the Court's opinion carefully emphasizes the appropriateness of allowing latitude to meet local and special conditions, 377 U.S., at 577 581, 84 S.Ct., at 1389—1391, its insistence upon the need for general correspondence of voting rights to population has come to be called the one man, one vote rule.2
53
This rule is appropriate to the selection of members of a State Legislature. The people of a State are similarly affected by the action of the State Legislature. Its functions are comprehensive and pervasive. They are not specially concentrated upon the needs of particular parts of the State or any separate group of citizens. As the Court in Reynolds said, each citizen stands in 'the same relation' to the State Legislature. Accordingly, variations from substantial population equality in elections for the State Legislature take away from the individual voter the equality which the Constitution mandates. They amount to a debasement of the citizen's vote and of his citizenship.3
54
But the same cannot be said of all local governmental units, and certainly not of the unit involved in this case. Midland County's Commissioners Court has special functions directed primarily to its rural area and rural population. Its powers are limited and specialized, in light of its missions. Residents of Midland County do not by any means have the same rights and interests at stake in the election of the Commissioners. Equal protection of their rights may certainly take into account the reality of the rights and interests of the various segments of the voting population. It does not require that they all be treated alike, regardless of the stark difference in the impact of the Commissioners Court upon them. 'Equal protection' relates to the substance of citizens' rights and interests. It demands protection adapted to substance; it does not insist upon, or even permit, prescription by arbitrary formula which wrongly assumes that the interests of all citizens in the elected body are the same.
55
In my judgment, the Court departs from Reynolds when it holds, broadly and generally, that 'the Fourteenth Amendment * * * forbids the election of local government officials from districts of disparate population.' Ante, at 478. This holding, literally applied as the Court commands, completely ignores the complexities of local government in the United States—complexities which, Reynolds itself states, demand latitude of prescription. The simplicity of the Court's ruling today does not comport with the lack of simplicity which characterizes the miscellany which constitutes our local governments.
II.
56
As of the beginning of 1967, there were 81,253 units of local government in the United States. This figure includes 3,049 county governments, 18,051 municipal governments, 17,107 township governments, 21,782 school districts, and 21,264 other special districts.4 These units vary greatly in powers, structure, and function. The citizen is usually subject to several local governments with overlapping jurisdiction.
57
The Court in this case concedes that in a 'special-purpose unit of government,' the rights of certain constituents may be more affected than the rights of others. It implies that the one man, one vote rule may not apply in such cases. See ante, at 483 484. But it says that we do not here have to confront the implications of such a situation. I do not agree.
58
I submit that the problem presented by many, perhaps most, county governments (and by Midland County in particular) is precisely the same as those arising from special-purpose units. The functions of many county governing boards, no less than the governing bodies of special-purpose units, have only slight impact on some of their constituents and a vast and direct impact on others. They affect different citizens residing with their geographical jurisdictions in drastically different ways.5
59
Study of county government leaves one with two clear impressions: that the variations from unit to unit are great; and that the role and structure of county government are currently in a state of flux.6 County governments differ in every significant way: number of constituents, area governed,7 number of competing or overlapping government units within the county,8 form, and means of selection of the governing board,9 services provided,10 the number and functions of independent county officials,11 and sources of revenue.12
60
Some generalizations can be made about county governments. First, most counties today perform certain basic functions delegated by the State: assessment of property, collection of property taxes, recording of deeds and other documents, maintenance of rural roads, poor relief, law enforcement, and the administration of electoral and judicial functions. Some counties have begun to do more, especially by the assumption of municipal and policy-making functions.13 But most counties still act largely as administrative instrumentalities of the State.14
61
Second, '(t)he absence of a single chief executive and diffusion of responsibility among numerous independently elected officials are general characteristics of county government in the United States.'15 Those who have written on the subject have invariably pointed to the extensive powers exercised within the geographical region of the county by officials elected on a countywide basis and by special districts organized to perform specific tasks. Often these independent officials and organs perform crucial functions of great importance to all the people within the county.16
62
These generalizations apply with particular force in this case. The population of Midland County is chiefly in a single urban area.17 That urban area has its own municipal government which, because of home rule,18 has relative autonomy and authority to deal with urban problems. In contrast, the Midland County government, like county governments generally, acts primarily as an administrative arm of the State. It provides a convenient agency for the State to collect taxes, hold elections, administer judicial and peace-keeping functions, improve roads, and perform other functions which are the ordinary duties of the State. The powers of the Commissioners Court, which is the governing body of Midland County, are strictly limited by statute and constitutional provision.19 Although a mere listing of these authorizing statutes and constitutional provisions would seem to indicate that the Commissioners Court has significant and general power, this impression is somewhat illusory because very often the provisions which grant the power also circumscribe its exercise with detailed limitations.
63
For example, the petitioner cites Art. VIII, § 9, of the Texas Constitution and Article 2352 of the Texas Civil Statutes as granting the Commissioners Court authority to levy taxes. Yet, at the time this suit was tried, Art. VIII, § 9, provided that no county could levy a tax in excess of 80¢ on $100 property valuation. And Article 2352 allocated that 80¢ among the four 'constitutional purposes' mentioned in Art. VIII, § 9 (not more than 25¢ for general county purposes, not more than 15¢ for the jury fund, not more than 15¢ for roads and bridges, and not more than 25¢ for permanent improvements).20
64
Another example is the authority to issue bonds. It is true, as the majority notes, that the Commissioners Court does have this authority. Yet Title 22 of the Texas Civil Statutes sets up a detailed code concerning how and for what purposes bonds may be issued. Significantly, Article 701 provides that county bonds 'shall never be issued for any purpose' unless the bond issue has been submitted to the qualified property-taxpaying voters of the county.
65
More important than the statutory and constitutional limitations, the limited power and function of the Commissioners Court are reflected in what it actually does. The record and briefs do not give a complete picture of the workings of the Commissioners Court. But it is apparent that the Commissioners are primarily concerned with rural affairs, and more particularly with rural roads. One Commissioner testified below that the largest item in the county budget was for roads and bridges.21 And, according to that Commissioner, the county does not maintain streets within the City of Midland. The Commissioners seem quite content to let the city council handle city affairs. 'The thing about it is, the city of Midland has the city council and the mayor to run its business, * * * and we have a whole county to run * * *.'
As the Texas Supreme Court stated:
66
'Theoretically, the commissioners court is the governing body of the county and the commissioners represent all the residents, both urban and rural, of the county. But developments during the years have greatly narrowed the scope of the functions of the commissioners court and limited its major responsibilities to the nonurban areas of the county. It has come to pass that the city government with its legislative, executive and judicial branches, is the major concern of the city dwellers and the administration of the affairs of the county is the major concern of the rural dwellers.' 406 S.W.2d, at 428.
67
Moreover, even with regard to those areas specifically delegated to the county government by statute or constitutional provision, the Commissioners Court sometimes does not have the power to make decisions. Within the county government there are numerous departments which are controlled by officials elected independently of the Commissioners Court and over whom the Commissioners Court does not exercise control. The Commissioners view themselves primarily as road commissioners. 'The other department heads really have the say in that department. We merely approve the salary. We do not hire anyone in any department in Midland County except the road department. The department heads of the other departments do hire the employees.'22
68
As the Texas Supreme Court stated, 'the county commissioners court is not charged with the management and control of all of the county's business affairs * * *. (T)he various officials elected by all the voters of the county have spheres that are delegated to them by law and within which the commissioners court may not interfere or usurp.' 406 S.W.2d, at 428. These officials, elected on a direct, one man, one vote, countywide basis, include the Assessor and Collector of Taxes, the County Attorney, the Sheriff, the Treasurer, the County Clerk, and the County Surveyor.23 The County Judge, who is the presiding officer of the Commissioners Court, is also elected on a countywide basis.24 Other county officials and employees are appointed by the Commissioners Court.25
69
The elected officials are generally residents of the city, probably because of its preponderant vote. A Commissioner testified that 'Every elected official * * * in Midland County today (except the three rural commissioners), and it has been way back for years, has been elected by the people that live here in the city limits of Midland.' Another Commissioner testified that of about 150 employees of the county, only four of those who were not elected lived in the rural precincts. Of all the elected officials only the three rural commissioners lived outside the city limits.26 And, as I have noted, the fifth member of the Commissioners Court, its Chairman, is the County Judge who is elected at large in the county.27 It is apparent that the city people have much more control over the county government than the election of the Commissioners Court would indicate. Many of the county functions which most concern the city, for example, tax assessment and collection, are under the jurisdiction of officials elected by the county at large.28
70
In sum, the Commissioners Court's functions and powers are quite limited, and they are defined and restricted so that their primary and preponderant impact is on the rural areas and residents. The extent of its impact on the city is quite limited. To the extent that there is direct impact on the city, the relevant powers, in important respects, are placed in the hands of officials elected on a one man, one vote basis. Indeed, viewed in terms of the realities of rights and powers, it appears that the city residents have the power to elect the officials who are most important to them, and the rural residents have the electoral power with respect to the Commissioners Court which exercises powers in which they are primarily interested.
71
In face of this, to hold that 'no substantial variation' from equal population may be allowed under the Equal Protection Clause is to ignore the substance of the rights and powers involved. It denies—it does not implement—substantive equality of voting rights. It is like insisting that each stockholder of a corporation have only one vote even though the stake of some may be $1 and the stake of others $1,000. The Constitution does not force such a result. Equal protection of the laws is not served by it.
72
Despite the fact, as I have shown, that many governmental powers in the county are exercised by officials elected at large and that the powers of the Commissioners Court are limited, the Court insists that the Commissioners Court is a unit with 'general governmental powers.' This simply is not so except in the most superficial sense. The Court is impressed by the fact that the jurisdiction of the Commissioners Court extends over the entire area of the county. But this is more form than reality.
73
Substance, not shibboleth, should govern in this admittedly complex and subtle area; and the substance is that the geographical extent of the Commissioners Court is of very limited meaning. Midland County's Commissioners Court has its primary focus in nonurban areas and upon the nonurban people. True, the county's revenues come largely from the City of Midland. But the Commissioners Court fixes the tax rate subject to the specific limitations provided by the legislature. It must spend tax revenues in the categories and percentages which the legislature fixes. Taxes are assessed and collected, not by it, but by an official elected on a countywide basis. It is quite likely that if the city dwellers were given control of the Commissioners Court, they would reduce the load because it is spent primarily in the rural area. This is a state matter. If the State Legislature, in which presumably the city dwellers are fairly represented 'Reynolds v. Sims), wishes to reduce the load, it may do so. But unless we are ready to adopt the position that the Federal Constitution forbids a State from taxing city dwellers to aid their rural neighbors, the fact that city dwellers pay most taxes should not determine the composition of the county governing body. We should not use tax impact as the sole or controlling basis for vote distribution. It is merely one in a number of factors, including the functional impact of the county government, which should be taken into account in determining whether a particular voting arrangement results in reasonable recognition of the rights and interests of citizens. Certainly, neither tax impact nor the relatively few services rendered within the City of Midland should compel the State to vest practically all voting power in the city residents to the virtual denial of a voice to those who are dependent on the county government for roads, welfare, and other essential services.
III.
74
I have said that in my judgment we should not decide this case but should give Texas a chance to come up with an acceptable result. Texas' own courts hold that the present system is constitutionally intolerable. The 1963 population estimates relied upon in this case show that the district which includes most of the City of Midland with 67,906 people has one representative, and the three rural districts, each of which has its own representative, have 852; 414; and 828 people respectively. While it may be that this cannot be regarded as satisfying the Equal Protection Clause under any view, I suggest that applying the Court's formula merely errs in the opposite direction: Only the city population will be represented, and the rural areas will be eliminated from a voice in the county government to which they must look for essential services. With all respect, I submit that this is a destructive result. It kills the very value which it purports to serve. Texas should have a chance to devise a scheme which, within wide tolerance, eliminates the gross underrepresentation of the city, but at the same time provides an adequate, effective voice for the nonurban, as well as the urban, areas and peoples.29
75
Mr. Justice STEWART, dissenting.
76
I would dismiss the writ as improvidently granted for the reasons stated by Mr. Justice HARLAN and Mr. Justice FORTAS.
77
Since the Court does reach the merits, however, I add that I agree with most of what is said in the thorough dissenting opinion of Mr. Justice FORTAS. Indeed, I would join that opinion were it not for the author's unquestioning endorsement of the doctrine of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. I continue to believe that the Court's opinion in that case misapplied the Equal Protection Clause of the Fourteenth Amendment that the apportionment of the legislative body of a sovereign State, no less than the apportionment of a county government, is far too subtle and complicated a business to be resolved as a matter of constitutional law in terms of sixth-grade arithmetic. My views on that score, set out at length elsewhere,* closely parallel those expressed by Mr. Justice FORTAS in the present case.
1
Interpretive Commentary, Vernon's Ann.Tex.Const., Art. V, § 18 (1955). See also W. Benton, Texas: Its Government and Politics 360—370 (1966); Municipal and County Government (J. Claunch ed. 1961); C. McCleskey, The Government and Politics of Texas (1966).
2
The Texas Supreme Court determined that neither the State nor the Federal Constitution requires that population be the sole basis for apportioning the Midland County Commissioners Court. There is therefore no independent state ground for the refusal to award the relief requested by petitioner. And since the Supreme Court opinion contemplated no further proceedings in the lower Texas courts, a 'final judgment' that population does not govern the apportionment of the Commissioners Court is before us. See Mercantile Nat. Bank at Dallas v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); Local No. 438 Construction & General Laborers' Union, AFL—CIO v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963); Radio Station WOW v. Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092 (1945).
3
Cases in which the highest state courts applied the principles of Reynolds v. Sims to units of local government include Miller v. Board of Supervisors, etc., 63 Cal.2d 343, 405 P.2d 857, 46 Cal.Rptr. 617, 405 P.2d 857 (1965); Montgomery County Council v. Garrott, 243 Md. 634, 222 A.2d 164 (1966); Hanlon v. Towey, 274 Minn. 187, 142 N.W.2d 741 (1966); Armentrout v. Schooler, 409 S.W.2d 138 (Mo.1966); Seaman v. Fedourich, 16 N.Y.2d 94, 262 N.Y.S.2d 444, 209 N.E.2d 778 (1965); Bailey v. Jones, 81 S.D. 617, 139 N.W.2d 385 (1966); State ex rel. Sonneborn v. Sylvester, 26 Wis.2d 43, 132 N.W.2d 249 (1965). Newbold v. Osser, 425 Pa. 478, 230 A.2d 54 (1967), seemed to assume application of Reynolds. In opposition to these cases are only the decision of the Texas Supreme Court in the case before us and Brouwer v. Bronkema, 377 Mich. 616, 141 N.W.2d 98 (1966), in which the eight justices of the Michigan Supreme Court divided evenly on the question.
Among the many federal court cases applying Reynolds v. Sims to local government are Hyden v. Baker, 286 F.Supp. 475 (D.C.M.D.Tenn.1968); Martionolich v. Dean, 256 F.Supp. 612 (D.C.S.D.Miss.1966); Strickland v. Burns, 256 F.Supp. 824 (D.C.M.D.Tenn.1966); Ellis v. Mayor and City Council of Baltimore, 234 F.Supp. 945 (D.C.Md.1964), affirmed and remanded, 352 F.2d 123 (4th Cir. 1965).
4
A precedent frequently cited in opposition to this conclusion is Tedesco v. Board of Supervisors, 43 So.2d 514 (La.Ct.App.1949), appeal dismissed for want of a substantial federal question, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357 (1950). Petitioner points out that the Equal Protection Clause was not invoked in Tedesco, where the districting of the New Orleans City Council was challenged under the Privileges and Immunities Clause. A more realistic answer is that Tedesco, decided 12 years before Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), has been severely undermined by Baker and the succeeding apportionment cases. See, among the great many cases so concluding, Delozier v. Tyrone Area School Bd., 247 F.Supp. 30 (D.C.W.D.Pa.1965).
5
Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 1408 (1958); see, e.g., See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949).
6
Inequitable apportionment of local governing bodies offends the Constitution even if adopted by a properly apportioned legislature representing the majority of the State's citizens. The majority of a State—by constitutional provision, by referendum, or through accurately apportioned representatives—can no more place a minority in oversize districts without depriving that minority of equal protection of the laws than they can deprive the minority of the ballot altogether, or impose upon them a tax rate in excess of that to be paid by equally situated members of the majority. Government—National, State, and local—must grant to each citizen the equal protection of its laws, which includes an equal opportunity to influence the election of lawmakers, no matter how large the majority wishing to deprive other citizens of equal treatment or how small the minority who object to their mistreatment. Lucas v. Forty-Fourth Colorado General Assembly of State of Colo., 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964), stands as a square adjudication by this Court of these principles.
7
Midland County is apparently untypical in choosing the members of its local governing body from districts. 'On the basis of available figures, coupled with rough estimates from samplings made of the situations in various States, it appears that only about 25 percent of * * * local government governing boards are elected, in whole or in part, from districts or, while at large, under schemes including district residence requirements.' Brief for the United States as Amicus Curiae 22, n. 31, filed in Sailors v. Board of Education of Kent County, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), and the other 1966 Term local reapportionment cases.
8
U.S. Dept. of Commerce, Bureau of the Census, Census of Governments 1967, Governmental Units in 1967, at 1 (prelim. rept. Oct. 1967).
1
28 U.S.C. § 1257 provides: 'Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows * * *.'
2
The magnitude of this break was irrefutably demonstrated by Mr. Justice Frankfurter in his dissenting opinion in Baker, 369 U.S., at 266, 300—323, 82 S.Ct. at 737, 755—767.
3
See the concurring opinion of Mr. Justice Clark in Baker v. Carr, 369 U.S. 186, 251, 258—259, 82 S.Ct. 691, 727, 732; Auerbach, The Reapportionment Cases: One Person, One Vote—One Vote, One Value, 1964 Sup.Ct.Rev. 1, 68—70.
4
See, e.g., United States Advisory Commission on Intergovernmental Relations, State Constitutional and Statutory Restrictions Upon the Structural, Functional, and Personnel Powers of Local Government 23—61 (1962); Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Col.L.Rev. 21, 23, n. 9 (1965).
5
One such question is the extent to which an apportionment may taken into account population changes which occur between decennial censuses. Cf. Lucas v. Rhodes, 389 U.S. 212, 88 S.Ct. 416, 19 L.Ed.2d 423 (dissenting opinion of this writer). Another is the degree of population variation which is constitutionally permissible. See Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501; cf. Rockefeller v. Wells, 389 U.S. 421, 88 S.Ct. 578, 19 L.Ed.2d 651 (dissenting opinion of this writer).
6
See the dissenting opinion of Mr. Justice Frankfurter in Baker v. Carr, 369 U.S. 186, 266, 300—324, 82 S.Ct. 691, 737, 755 767.
7
See generally W. Anderson & E. Weidner, State and Local Government 85—103 (1951).
8
See, e.g., W. Anderson & E. Weidner, supra, at 171—174; United States Advisory Commission on Intergovernmental Relations for use of House Committee on Government Operations, 87th Cong., 1st Sess., Governmental Structure, Organization, and Planning in Metropolitan Areas 7 (Comm. Print 1961).
9
See, e.g., United States Advisory Commission on Intergovernmental Relations, Alternative Approaches to Governmental Reorganization in Metropolitan Areas 8—9 (1962); United States Advisory Commission on Intergovernmental Relations for use of House Committee on Government Operations, 87th Cong., 1st Sess., Governmental Structure, Organization, and Planning in Metropolitan Areas 15—16 (Comm.Print 1961).
10
See, e.g., W. Anderson & E. Weidner, supra, at 174—179; United States Advisory Commission on Intergovernmental Relations, Alternative Approaches to Governmental Reorganization in Metropolitan Areas (1962).
11
See, e.g., United States Advisory Commission on Intergovernmental Relations, State Constitutional and Statutory Restrictions Upon the Structural, Functional, and Personnel Powers of Local Government 38, 44—53 (1962).
12
See Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Col.L.Rev. 21, 37 and n. 67 (1965); cf. United States Advisory Commission on Intergovernmental Relations, Factors Affecting Voter Reactions to Governmental Reorganization in Metropolitan Areas 26 27 (1962).
13
Cf. H. Hart & A. Sacks, The Legal Process 662—669 (tent. ed. 1958).
1
The Texas Supreme Court noted that the Commissioners Court, and not Texas' judicial courts, has power to redistrict. This view may prove to be troublesome, but we are not bound to anticipate either that the Commissioners Court will not property do the job or that Texas will not otherwise put its house in order in Midland County.
2
Reynolds v. Sims did not put the Equal Protection Clause to a radical or new use. Its holding is in the mainstream of our equal protection cases. Our cases hold that people who stand in the same relationship to their government cannot be treated differently by that government. To do so would be to mark them as inferior, 'implying inferiority in civil society' (Strauder v. State of West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880)), or 'inferiority as to their status in the community' (Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954)). It would be to treat them as if they were, somehow, less than people.
3
'Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will. And the concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live. * * * To the extent that a citizen's right to vote is debased, he is that much less a citizen.' 377 U.S., at 565, 567, 84 S.Ct., at 1383.
4
U.S. Dept. of Commerce, Bureau of the Census, Census of Governments 1967, Governmental Units in 1967, at 1 (prelim. rept. Oct. 1967).
5
If these complexities do not exist in a given case (that is, if the functions of the governing unit involved have an essentially equal impact upon all the citizens within its geographical jurisdiction), then the one man, one vote rule would apply as it did in Reynolds. Some city councils, for example, are in effect miniature state legislatures. Some county governing units have geographical jurisdiction which is co-extensive with a city or which includes only reasonably homogenous rural areas.
6
See C. Adrian, State and Local Governments 210—217 (1960); C. Snider, Local Government in Rural America 119—139 (1957) (hereafter cited as Snider); International Union of Local Authorities, Local Government in the United States of America 13 14 (1961) (hereafter cited as Local Government); National Municipal League, Model County Charter xi—xxxviii (1956). See generally S. Duncombe, County Government in America (1966) (hereafter cited as Duncombe).
7
See Duncombe 3—5.
8
See U.S. Dept. of Commerce, Bureau of the Census, Census of Governments: 1962, Governmental Organization, Table 17.
9
See U.S. Dept. of Commerce, Bureau of the Census, Governing Boards of County Governments: 1965.
10
See Duncombe 70—102.
11
See Duncombe 41—63.
12
See U.S. Dept. of Commerce, Bureau of the Census, Census of Governments: 1962, Finances of County Governments, Table 11.
13
See Duncombe 13—14.
14
See W. Anderson & E. Weidner, State and Local Government 30—31 (1951); Snider 131—134.
15
Local Government, at 14.
16
See, e.g., ibid.; Duncombe 41—63; Snider 44—45, 252—254.
17
In 1962 the population of Midland County was 67,717. More than 62,000 lived in the urban area governed by the municipal government. U.S. Dept. of Commerce, Bureau of the Census, Census of Governments: 1962, Governmental Organization 186.
18
Tex.Const., Art. XI, § 5; R. Young, The Place System in Texas Elections (Institute of Public Affairs, University of Texas, 1965) 38.
19
See W. Benton, Texas, Its Government and Politics 360—362 (1966) (hereafter cited as Benton); S. MacCorkle and D. Smith, Texas Government 339—340 (1964) (hereafter cited as MacCorkle); C. Patterson, S. McAlister, and G. Hester, State and Local Government in Texas 384—385, 388 (1961) (hereafter cited as Patterson); Municipal and County Government 113—114 (J. Claunch ed. 1961); F. Gantt, I. Dawson and L. Hagard (eds.), Governing Texas, Documents and Readings 254 (1966); C. McCleskey, The Government and Politics of Texas 303—304, 305 (1966) (hereafter cited as McCleskey). There is a home-rule provision in the Texas Constitution which applies to counties, Art. IX, § 3. But that provision is virtually unworkable and, as of 1966, there were no counties operating under home rule. Benton 372—375. See also McCleskey 304, and MacCorkle 341.
20
The 1967 amendment to Art. VIII, § 9, maintains the 80 limitation and still speaks of 'the four constitutional purposes.' It provides, though, that the county 'may' put all tax money into one general fund without regard to the purpose or the source of each tax. For a discussion of the county's taxing power and other sources of county revenue, see Benton 367—368.
21
This testimony appears in the typed transcript of record but not in the portions printed by the parties.
22
See n. 21, supra. Commentators on Texas local government have noted this lack of control by the Commissioners Court. See e.g., MacCorkle 344—345; McCleskey 307, 310; Benton 369.
23
Article VIII, § 14; Art. V, § 21; Art. V, § 23; Art. XVI, § 44; Art. V, § 20; and Art. XVI, § 44, of the Texas Constitution respectively.
24
Article V, §§ 15, 18, of the Texas Constitution.
25
For a description of county officials generally and of their functions, see McCleskey 306—310, MacCorkle 335—339, and Patterson 390—392. For a listing of county officials who are elected see U.S. Dept. of Commerce, Bureau of the Census, Census of Governments 1967, Elective Offices of State and Local Governments 117—118 (prelim. rept. Aug. 1967).
26
See n. 21, supra.
27
Note 24, supra. There was testimony below to the effect that the county judge votes only in case of a tie vote. But it appears that this limitation may be self-imposed. 'The county judge enjoys equal voting rights with all the other members of the commissioners' court, which includes the right to make or second any motion and the right to vote whether there be a tie among the votes of other members of the court or not.' 1 Opinions of the Attorney General of Texas 453 (No. 0—1716, 1939). See McCleskey, 307, n. 27.
28
The Assessor and Collector of Taxes is elected by the qualified voters of the county at large. Tex.Const., Art. VIII, § 14; U.S. Dept. of Commerce, Bureau of the Census, Census of Governments 1967, Elective Offices of State and Local Governments 117 (prelim. rept. Aug. 1967). The Commissioners Court has power to adjust the Assessor and Collector's valuation. Art. VIII, § 18, of the Texas Constitution. However, testimony below indicated that the Commissioners Court sits to hear taxpayer complaints only a few days each year. The Commissioners Court does not go over the Assessor and Collector's tax rendition sheets before he sends notices to the taxpayers.
29
Cf. Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Col.L.Rev. 21, 40—49 (1965).
*
Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 744, 84 S.Ct. 1459, 1477, 12 L.Ed.2d 632 (dissenting opinion).
| 12
|
390 U.S. 523
88 S.Ct. 1133
20 L.Ed.2d 81
William A. ANDERSONv.NELSON, Warden.
No. 652, Misc.
April 1, 1968.
Rehearing Denied May 20, 1968.
See 391 U.S. 929, 88 S.Ct. 1812.
Charles A. Legge, for petitioner.
Thomas C. Lynch, Atty. Gen. of California, for respondent.
PER CURIAM:
1
Petitioner Anderson was convicted after jury trial in California courts of forgery and the State District Court of Appeal affirmed, finding all errors nonprejudicial under the State's harmless error rule. After the California Supreme Court returned to petitioner unfiled his petition for hearing in that court, with the notation that it was not timely, petitioner sought habeas corpus relief in Federal District Court. The District Court issued the writ, holding that the prosecutor's comment on the failure of petitioner to testify at his trial, made in violation of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, was not harmless error. The State appealed. One week after oral argument, our decision in Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, was handed down. Applying the Chapman standard, the majority of the Court of Appeals concluded that the Griffin error was harmless 'beyond a reasonable doubt.' Wilson v. Anderson, 379 F.2d 330, 335. Judge Ely dissented.
2
We agree with Judge Ely that comment on a defendant's failure to testify cannot be labeled harmless error in a case where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis of conviction, and where there is evidence that could have supported acquittal. We find this is such a case.
3
The bookkeeper for a trucking firm had written a $196 payroll check to employee Michael Pittman and had placed it in the firm's office. The check disappeared at a time either shortly before or after petitioner was in the firm's office asking for a job. Two days later petitioner had possession of the check and asked gasoline station operator Kernen to cash it for him. According to Kernen, petitioner told him he had been working for the trucking firm and it was his payroll check. Kernen was acquainted with petitioner, knew him as Willy, and knew he was the brother of Jim Anderson, who had a charge account with Kernen. Kernen told petitioner had did not have enough money on hand to cash the $196 check, but they agreed to apply $112 to Jim Anderson's account, with petitioner taking $84. According to Kernen's testimony, petitioner then borrowed a pen from him and endorsed the name Michael Pittman on the check. When the check was returned to Kernen by the bank, he met with police and identified petitioner from a police 'mug shot.'
4
The arresting officer testified that he asked petitioner about the incident and that petitioner admitted cashing the check but denied he endorsed it. Petitioner told the officer he was in a bar when an unknown person came up to him and said he wanted to cash a check. Petitioner took it to the service station and substituted $112 he had on his person for the amount withheld by Kernen.
5
Petitioner did not testify and presented no evidence. The trial court instructed the jury on inferences to be drawn from petitioner's silence as follows:
6
'As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify * * * the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom, those unfavorable to the defendant are the more probable.'
7
It is conceded that those instructions violated Griffin. It is also conceded that the prosecutor's comments* violated Griffin.
8
While the evidence against petitioner was sufficient to convict, the facts that petitioner allegedly forged the name Michael Pittman in the presence of an acquaintance of petitioner's who knew him as Willy, the brother of Jim Anderson, that petitioner allegedly chose to cash a worthless check at a place where he was known and openly agreed to have the major portion of the proceeds applied to his brother's account and yet, after all this, did not flee the county could be viewed as casting doubt on the prosecution's case, perhaps on Kernen's veracity. In this posture, we cannot say that the prosecutor's extensive argument asking the jury to overlook inferences favorable to petitioner because he invoked his constitutional right not to testify was, in the words of Chapman, 'harmless beyond a reasonable doubt.' 386 U.S. at 24, 87 S.Ct. at 828. Since petitioner is entitled to relief for this reason, we do not reach the other questions he seeks to raise. Nor are we persuaded by respondent's contention that petitioner's late filing of a petition for hearing in the State Supreme Court constituted a deliberate bypass of state remedies, precluding him from habeas corpus relief in federal courts. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. Cf. Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408.
9
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted and the judgment is reversed.
10
Reversed.
11
Mr. Justice BLACK and Mr. Justice HARLAN would affirm the judgment of the Court of Appeals.
12
APPENDIX TO PER CURIAM.
The prosecutor stated in argument:
13
'Now, one other thing the Judge will instruct you—he told you he touched on this when we were picking the jury: The defendant, as Mr. Anderson has done, in a criminal case, he doesn't have to take the stand. That's his choice. He can take the stand if he chooses. He doesn't have to. I can't call him to the stand; the Judge can't demand that he get on the stand. That's completely up to him. He is not required to, under our law, to testify.
14
'The Judge will also instruct you that the jury may consider that, because of his failure to testify, that if he had certain facts which would be expected to be within his knowledge, that he could explain or deny certain things, that the jury may consider this. In other words by that I mean such as is this case, Mr. Anderson could have gotten on the stand and told you. 'No, I didn't sign that,' or, 'I wasn't up to the Calverts (trucking firm) and somebody else told me about it, as I told Sergeant Sonberg (the arresting officer).'
15
'In other words, you can consider that, when a person could be expected to know something about something and he doesn't tell you what obviously he must know, why, then you can draw certain inferences from that.
16
'And, as I say, ladies and gentlemen, there is no evidence on behalf—that the defendant has put in here.
17
'So, the only way we can be attacked is that we haven't proven case, we haven't made out a case because of certain suspicions or inferences or something like that, showing there was another man, or something like that. That hasn't been testified to here.
18
'Now, you can't guess as to what Mr. Anderson would or would not have testified to if he did get on the stand, because you haven't heard it. You will have to base your decision on those documents and the people you have heard here. If you don't believe any of them, you will probably not find him guilty; but if you do believe them—there has been no contradiction, nobody has contradicted them at all—then you are only led to one conclusion, and that simply is the fact that the defendant is the one that passed that check, and is guilty here.
19
'Remember, you have no conflicting evidence on the other side. You either would have to disbelieve the Calverts, Michael Pittman, and Mr. Kernen and Sergeant Sonberg and the rest of them.
20
'No one came in and said, 'No, that isn't it; he was somewhere else.' You heard nothing like that, ladies and gentlemen.
21
'There hasn't been any evidence that has been produced to controvert it. Nobody has come in here and told you Mr. Anderson was somewhere else, or he didn't do it, or he didn't come up and get that check, and 'I didn't know anything about it, and I went in there innocently to pass it.' He didn't tell you that at all.
22
'I give him credit for not getting up on the stand and trying to tell you a lie. At least he had the ability to sit there and not say anything, rather than try to get up and tell you a whole lot of hogwash. I'll at least give him that much credit.
23
'There is some disputed evidence that Mr. Anderson showed up with this check and passed it on Kernen on the 29th.
24
'Now, if he got it some innocent way, if somebody gave it to him, that he didn't know, then he should have gotten up on the stand to tell us about it. And don't you think if that is what happened, he would have? I would; you would. You would beat a path to that stand, at least to get up there and tell them what happened. But that isn't the situation here.
25
'Now, we don't know what Mr. Anderson's story is, because you haven't heard it.
26
'That's what he told Sergeant Sonberg, three completely phony, different versions of it.
27
'You didn't see him get up, you didn't hear the words from him, because he didn't get up on the stand. You don't know what his story may be today. He might have told you another story, that he was flying around up in Alaska, or something like that. I don't know.'
*
See the Appendix to this opinion.
| 01
|
390 U.S. 468
88 S.Ct. 1137
20 L.Ed.2d 39
The PEORIA TRIBE OF INDIANS OF OKLAHOMA et al., Petitioners,v.UNITED STATES.
No. 219.
Argued Jan. 15, 1968.
Decided April 1, 1968.
Jack Joseph, Chicago, Ill., for petitioners.
Robert S. Rifkind, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
On May 30, 1854, the Peoria Tribe of Indians of Oklahoma, petitioner,1 and the United States, respondent, entered into a treaty under which the Tribe reserved a portion of its lands and ceded the remainder, amounting to some 208,585 acres, to be sold at public auction by the United States for the Tribe's benefit. 10 Stat. 1082. This was provided for in Article 4 of the treaty:
2
'(T)he President shall immediately cause the residue of the ceded lands to be offered for sale at public auction * * *. And in consideration of the cessions hereinbefore made, the United States agree to pay to the said Indians, as hereinafter provided, all the moneys arising from the sales of said lands after deducting therefrom the actual cost of surveying, managing, and selling the same.'
Article 7 of the treaty further provided:
3
'And as the amount of the annual receipts from the sales of their lands, cannot now be ascertained, it is agreed that the President may, from time to time, and upon consultation with said Indians, determine how much of the net proceeds of said sales shall be paid them, and how much shall be invested in safe and profitable stocks, the interest to be annually paid to them, or expended for their benefit and improvement.'
4
In this case the Indian Claims Commission found that the United States violated the treaty in 1857 by selling most of the ceded lands, some 207,759 acres, not by public auction, but by private sales at appraised prices lower than would have prevailed at public auction. The Commission found that the United States thus received for the lands $172,726 less than it would have received if the sales had been made as required by the treaty. 15 Ind.Cl.Comm. 123. Neither party questions these findings.
5
The petitioner, however, sought review in the Court of Claims upon the issue of the measure of its damages for the treaty's violation—contending that by virtue of Article 7 of the treaty, the United States is liable not only for the $172,726, but in addition for the amount that that sum would have produced if 'invested in safe and profitable stocks, the interest to be annually paid * * *.'2 The Court of Claims, two judges dissenting, rejected this contention, 369 F.2d 1001, 177 Ct.Cl. 762, and we granted certiorari to consider it. 389 U.S. 814, 88 S.Ct. 60, 19 L.Ed.2d 65.
6
In supporting the judgment of the Court of Claims, the respondent relies heavily upon the general rule that the United States is not liable for interest on claims against it.3 This general rule, as the respondent points out, has been held to be fully applicable to the claims of Indian tribes.4 But this is not a case where the Court is asked to exercise 'the power to award interest against the United States,' United States v. New York Rayon Importing Co., 329 U.S. 654, 663, 67 S.Ct. 601, 606, 91 L.Ed. 577. The issue, rather, concerns the measure of damages for the treaty's violation in the light of the Government's obligations under that treaty.
7
Under Article 7 of the treaty, the United States could at any time pay to the Tribe all or any part of the proceeds received from the sales of the lands at public auction. But until the proceeds were paid over, the United States was obligated to invest them and pay the annual income to the Tribe. The United States was not free merely to hold the proceeds without investing them. The issue in this case, therefore, is whether the obligation of the United States to invest unpaid proceeds applies to proceeds which, by virtue of the United States' violation of the treaty, were never in fact received.
8
Our decision is largely controlled by United States v. Blackfeather, 155 U.S. 180, 15 S.Ct. 64, 39 L.Ed. 114. There an 1831 treaty obligated the United States to sell certain Indian lands at public auction and to place all proceeds in excess of a stated amount in a fund for the benefit of the Indians. The fund could be dissolved and paid over to the Indians 'during the pleasure of Congress,' but until its dissolution, the United States was obligated to pay the Indians an 'annuity' upon the retained fund. The lands were sold and the proceeds were paid to the Indians in 1852. In 1893 the Court of Claims held that the United States had violated the treaty by selling some of the lands at private sales rather than at public auction, resulting in the realization of lower prices.5 This Court held that the obligation to pay the 'annuity' applied to the differential that would have been received if the lands had been sold at public auction in accord with the treaty, and that this obligation extended beyond the dissolution of the fund by Congress in 1852:
9
'While the treaty bound the government to pay a 5 per cent annuity until the dissolution of the fund, which dissolution took place September 28, 1852, when the sum of $37,180.58—the amount of the fund resulting from actual sales—was paid over to the chiefs of the tribe, this dissolution terminated the stipulation for the annuity only pro tanto. If the government had originally accounted for the whole amount for which the court below held it to be liable, it would have paid 5 per cent upon this amount until the whole fund was paid over. The fund as to this amount being not yet distributed, the obligation to pay the 5 per cent annuity continues until the money is paid over. * * *' 155 U.S., at 193, 15 S.Ct., at 69.
10
Similarly in the case before us, we hold that the obligation to invest the $172,726 and to pay its annual income to the Tribe 'continues until the money is paid over.' Cf. United States v. Mille Lac Chippewas, 229 U.S. 498, 33 S.Ct. 811, 57 L.Ed. 1299. As the dissenters in the Court of Claims rightly pointed out,
11
'Indian treaties 'are not to be interpreted narrowly, as sometimes may be writings expressed in words of art employed by conveyancers, but are to be construed in the sense in which naturally the Indians would understand them.' United States v. Shoshone Tribe, 304 U.S. 111, 116, 58 S.Ct. 794, 797, 82 L.Ed. 1213 (1938). '(T)hey are to be construed, so far as possible, in the sense in which the Indians understood them, and 'in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.' Tulee v. State of Washington, 315 U.S. 681, 684—685, 62 S.Ct. 862, 86 L.Ed. 1115. * * *" 369 F.2d, at 1006—1007, 177 Ct.Cl., at 771.
12
Since the Indian Claims Commission and the Court of Claims erroneously held that the United States is not liable for its failure to invest the proceeds that would have been received had the United States not violated the treaty, they had no occasion to determine the measure of damages resulting from this liability. Accordingly, we remand this case to the Court of Claims for further remand to the Indian Claims Commission in order to determine that question.6
13
The judgment of the Court of Claims is reversed and the case is remanded for further proceedings consistent with this opinion.
14
Reversed and remanded.
15
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
The singular form is used throughout for the petitioners, who were previously known as the Confederated Tribe of the Peoria, Kaskaskia, Wea and Piankeshaw Indians.
2
The parties are agreed that 'the terms 'stocks' and 'interest' should be understood to include bonds or other securities and dividends or other income, respectively.' Respondent's Brief 11, n. 4. The term 'stocks' was used in other treaties of the period to refer to what would today be called bonds. See, e.g., Cherokee Nation v. United States, 270 U.S. 476, 492, 46 S.Ct. 428, 434, 70 L.Ed. 694. See also Report of the Commissioner of Indian Affairs, November 26, 1853, H.Doc.No. 1, 33d Cong., 1st Sess., 243, 263. The investments actually made pursuant to the treaty in the present case were purchases of state bonds.
3
See, e.g., United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 67 S.Ct. 398, 91 L.Ed. 521; United States v. N.Y. Rayon Importing Co., 329 U.S. 654, 67 S.Ct. 601, 91 L.Ed. 577; United States v. Goltra, 312 U.S. 203, 61 S.Ct. 487, 85 L.Ed. 776.
4
See, e.g., United States v. Alcea Band of Tillamooks, 341 U.S. 48, 71 S.Ct. 552, 95 L.Ed. 738; United States v. Omaha Tribe of Indians, 253 U.S. 275, 283, 40 S.Ct. 522, 525, 64 L.Ed. 901; Confederated Salish & Kootenai Tribes v. United States, 175 Ct.Cl. 451.
5
Blackfeather v. United States, 28 Ct.Cl. 447.
6
The respondent did not brief or argue the question of how to measure these damages. The petitioner suggested that these damages might be measured by looking to the rate of interest which the United States has paid on Indian funds over the same period, arguing for this approach by analogy to private trust law. The petitioner also points out that Congress at one time considered the United States' treaty obligations to 'invest in safe and profitable stocks' satisfied by an annual appropriation for the Indians of an amount equivalent to an interest payment. See Report of the Commissioner of Indian Affairs, November 30, 1852, S.Doc.No. 1, 32d Cong., 2d Sess., 293, 300—301; Report of the Commissioner of Indian Affairs, November 26, 1853, supra, n. 2.
Because the United States is not liable for interest on judgments in the absence of an express consent thereto, it cannot be liable for interest on the annual income payments not made. Therefore, if an interest rate measure is adopted by the Commission, it must be simple and not compound interest.
| 12
|
390 U.S. 516
88 S.Ct. 1150
20 L.Ed.2d 73
Henry Harold HOGUEv.SOUTHERN R. CO.
No. 889.
Decided April 1, 1968.
Samuel D. Hewlett, Jr., for petitioner.
Charles A. Horsky, for respondent.
PER CURIAM.
1
We granted the petition for certiorari in this case over the opposition of the respondent carrier. 390 U.S. 903, 88 S.Ct. 819, 19 L.Ed.2d 869. The writ presents for review a judgment in favor of the respondent carrier entered by the Georgia Court of Appeals upon a holding that a plaintiff under the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. § 51 seq., who attacks a previously executed release on grounds of mutual mistake of fact, must, as a condition to bringing his suit, tender back to his carrier employer the consideration he received for the release. 116 Ga.App. 194, 156 S.E.2d 412, certiorari denied by the Supreme Court of Georgia. Respondent carrier has now filed before argument a 'Memorandum Confessing Error' which states 'that its insistence before the Georgia courts that the applicable law required a tender, and the decision of the Georgia Court of Appeals requiring a tender were erroneous. Accordingly, respondent does not desire to offer brief or argument against petitioner on this issue, and confesses error.' Petitioner had suffered an injury to a knee while working in respondent carrier's shops. He executed a release for a consideration of $105, and did not offer to return the consideration before instituting this action. He pleaded that the release was obtained by reason of a mistake of fact of both parties as to the extent of his injuries, alleging specifically that he and the carrier had relied on the assurances of the carrier's doctor that he had only a bruised knee and was not permanently injured, whereas later it was determined that his injury was permanent and resulted in his having two operations, one of which caused him to lose a kneecap.
2
The question whether a tender back of the consideration was a prerequisite to the bringing of the suit is to be determined by federal rather than state law. Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 361, 72 S.Ct. 312, 314, 66 L.Ed. 398. We reject the suggestion that a tender back of the consideration is excused only where fraud enters into the execution of the release. See, e.g., Graham v. Atchison, T. & S.F.R. Co., 9 Cir., 176 F.2d 819, 826. We hold that a tender back is also not requisite when it is pleaded that the carrier and the employee entered into the release from mutual mistake as to the nature and extent of the employee's injuries. We have held that an express agreement of an injured employee who obtained funds from a carrier to help defray living expenses first to return the sum paid as a prerequisite to the filing and maintenance of an action under the FELA was void under § 5 of the Act.* Duncan v. Thompson, Trustee, 315 U.S. 1, 62 S.Ct. 422, 86 L.Ed. 575. There is no occasion to decide whether the release here involved violated § 5. It is sufficient for the purposes of this decision to note that a rule which required a refund as a prerequisite to institution of suit would be 'wholly incongruous with the general policy of the Act to give railroad employees a right to recover just compensation for injuries negligently inflicted by their employers.' Dice v. Akron, C. & Y.R. Co., supra, 342 U.S. at 362, 72 S.Ct. at 314. Rather it is more consistent with the objectives of the Act to hold, as we do, that it suffices that, except as the release may otherwise bar recovery, the sum paid shall be deducted from any award determined to be due to the injured employee. Cf. Callen v. Pennsylvania R. Co., 332 U.S. 625, 68 S.Ct. 296, 92 L.Ed. 242.
3
The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
4
It is so ordered.
5
Judgment reversed and case remanded.
6
Mr. Justice HARLAN, upon consideration of the confession of error filed here by the respondent and in light of the record, would vacate the judgment of the Court of Appeals of the State of Georgia and remand the case for further appropriate proceedings.
*
Section 5, as set forth in 45 U.S.C. § 55, is as follows:
'Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created to this chapter, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sum it has contributed or paid to any insurance, relife benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.'
| 78
|
390 U.S. 530
88 S.Ct. 1146
20 L.Ed.2d 87
Raymond HOPKINS, Petitioner,v.Wilbur J. COHEN, Acting Secretary of Health, Education, and Welfare.
No. 276.
Argued March 11 and 12, 1968.
Decided April 2, 1968.
Allen Sharp, Williamsport, Ind., and Harold H. Gearinger, Chattanooga, Tenn., for petitioner.
Harris Weinstein, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The question is whether the ceiling on an attorney's few under § 206(b)(1) of the Social Security Act, as amended,1 79 Stat. 403, 42 U.S.C. § 406(b)(1) (1964 ed., Supp. II), is based on the benefits received by the claimant alone or may be based also on the benefits that other dependent members of his family receive by virtue of the claimant's disability.
2
Respondent ruled that petitioner2 was not totally and permanently disabled within the meaning of the Act. The District Court reversed and awarded the claimant's attorney a fee equal to 25% of the benefits accruing to the claimant alone. The Court of Appeals for the Seventh Circuit affirmed. 374 F.2d 726. Because its ruling as to attorney fees conflicted with decisions of the Fourth Circuit (see Redden v. Celebrezze, 361 F.2d 815; Lambert v. Celebrezze, 361 F.2d 677), we granted the petition for certiorari. 389 U.S. 811, 88 S.Ct. 71, 19 L.Ed.2d 67.
3
The disabled claimant qualifies under § 223 of the Act (42 U.S.C. § 423 (1964 ed., Supp. II)) and figures his primary benefits under § 215 of the Act (42 U.S.C. § 415 (1964 ed., Supp. II)).
4
The claimants who receive benefits as relatives of the disabled person who qualifies under § 223, figure their eligibility and amount of benefits under § 202 of the Act (42 U.S.C. § 402 (1964 ed., Supp. II); wife, § 202(b); child, § 202(d); widow, § 202(e); widower, § 202(f); mother, § 202(g); parent, § 202(h)).
5
Section 202 of the Act describes in (b)(1) and (b)(2) the benefits payable to the wife on the disability of the husband, and in (d)(1) and (d)(2) the disability benefits of the child of the disabled claimant. The wife (§ 202(b) (1)(A)) and the child (§ 202(d)(1)(A)) may file for these benefits. But they need not always do so themselves,3 for the Act makes the right to such benefits dependent primarily on the status and condition of those dependent persons.
6
The wife and child each compute their benefits on the basis of a percentage share of the disabled claimant's primary benefits determined under § 223. See §§ 202(b)(2)4 and 202(d)(2). The maximum family benefit depends upon the amount of the primary benefit to which the disabled claimant is entitled. See §§ 215(a) and 203(a). The scheme of the Act thus proceeds from a recognition of an intimate relationship between the varying amounts of benefits due the disabled claimant and his dependents.
7
Hopkins was receiving disability payments under § 223 between March 1961 and December 1962; his wife and two children were also receiving benefits during this same period as dependents of a recipient of disability payments (§ 202). In December 1962 these benefits were terminated, on the ground that petitioner was no longer 'disabled' within the meaning of the Act. Petitioner exhausted his administrative remedies, and then sought review in the District Court. The District Court's order reversed the administrative decision as to disability. And pursuant to this order the Director of the Bureau of Disability Insurance wrote petitioner as follows:
8
'Based on the recent amendments to the Social Security Act, you are entitled to receive $123.10. Your wife and the two children are each entitled to receive $51.50. These new monthly rates are effective beginning January 1965.
9
'Section 206(b)(1) of the Social Security Act provides that (y)our attorney may ask the court to approve a fee not to exceed 25 percent of past-benefits due you. We are, therefore, withholding the amount of $936.20, which represents 25 percent of your past-due benefits of $3,744.00 pending action by the court on the amount of the attorney fee. The amount withheld will be applied against the fee set by the court and will be mailed directly to your attorney; any remaining amount will be sent to you.
10
'Benefit payments for you and your wife will continue to be combined. The next husband-wife check will be for $5,032.60. This represents payment for January 1963 through December 1965. You will receive this check within a few days. After that, the regular monthly check for $174.60 will be sent shortly after the month for which it is payable.
11
'The children's check for the period of January 1963 through December 1963, (sic), in the amount of $3,463.50, will be sent to you shortly. After that, their monthly, regular check for $103.00 will be sent to you as usual.'
12
Section 206(b)(1), restricting the amount of an attorney's fee, speaks of 'the past-due benefits to which the claimant is entitled.' Respondent argues that only a plaintiff can satisfy such a description, not a non-party. It is also urged that dependents who are not joined as parties have not received a judgment and that the benefits accruing to the wife and the children are not benefits to which the husband, the only claimant, is 'entitled' within the meaning of § 206(b)(1).
13
That seems to us to be too technical a construction of the Act which we need not adopt. In this instance, proof of the husband's 'claim'5 results in a package of benefits to his immediate familyf and those benefits inure to the benefit of the head of the family who files the 'claim.'
14
The legislative history of § 206(b)(1) speaks of the desire of Congress to reduce 'contingent fee' arrangements and to restrict an attorney's fee to an amount 'not in excess of 25 percent of accrued benefits.'6 We find nothing in the history of § 206(b)(1) that would likewise restrict those 'accrued benefits' to amounts owed the claimant, as distinguished from his dependents, viz., the wife and the children.
15
Reversed.
16
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
17
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice BRENNAN join, dissenting.
18
As the Court recognizes, § 206(b)(1) entitles the attorney of a Social Security benefits claimant to a fee 'not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment * * *.' (Emphasis added.) The Court characterizes the normal and natural reading of this language as 'too technical a construction * * * which we need not adopt.' From the undisputed fact that benefits accruing to the dependents of a claimant inure to the benefit of the claimant as head of the family, the Court seems to conclude that it may read 'claimant' to mean 'claimant and his dependants.' Because I see no justification for this result, either in the language of the statute or its history, I dissent.
19
Section 206(b)(1) deals with the attorney's fees payable with respect to 'a claimant under this title who was represented before the court by an attorney * * *.' The attorney may receive no more than 25% of the benefits payable to such a claimant 'by reason of such judgment. * * *' Only plaintiffs can meet the § 206(b)(1) definition of a 'claimant.' Therefore, dependents who are not joined as parties in a suit for past-due benefits are not 'claimants,' for they are not before the court, are not represented in court, and do not receive a judgment. In this case only petitioner, and not his wife and children, was the plaintiff in the court below. As is true in most such cases, petitioner's wife and children were determined in separate administrative proceedings to be dependents eligible for secondary benefits under § 202. Their entitlement to § 202 benefits should petitioner be found entitled to benefits under § 223 was not disputed and was not an issue before the court below. Since petitioner was the sole claimant before the court, and the only party for whom his lawyer provided representation in that court, I cannot escape the conclusion that the lawyer was only entitled to a maximum of 25% of the past-due benefits payable to petitioner. The situation might well be different in a case where the dependents were active plaintiffs before the court and where the primary claimant's attorney provided effective representation for the secondary claimants as well.
20
As the Court makes clear, the purpose of § 206(b)(1) was to reduce contingent fee arrangements by limiting the maximum fees recoverable by attorneys. The Court somehow concludes that this clear legislative purpose militates for a construction of the statute which is against its clear wording and which has the result of once again permitting attorneys to obtain a very high percentage of the benefits payable to Social Security claimants. The legislative history, however, supports the plain language of the statute. Indeed, the Court fails to mention that this very case was generated initially by a claim made by petitioner's lawyer that a contingent fee contract signed by petitioner, which would have given his lawyer 40% of the award, should be given effect because entered into prior to the passage of § 206(b)(1). It was just such contingent fees that Congress meant to prohibit. By its present ruling the Court gives mere lip service to the legislative mandate while effectively undoing it in practice. For the foregoing reasons I respectfully dissent.
1
42 U.S.C. § 406(b)(1) presently provides:
'Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Secretary may, notwithstanding the provisions of section 405(i) of this title, certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph.'
2
'Petitioner,' as used in this opinion, refers to Raymond Hopkins, the Social Security claimant. The interest involved in the case, as it reaches this Court on the issue of the proper amount of the attorney's fee, is, however, that of Hopkins' attorney, Allen Sharp.
3
See 20 CFR §§ 404.603—404.604. Nor are the wife and children required to become parties to proceedings on review of an administrative determination. See 42 U.S.C. §§ 405(b) and (g); and 20 CFR §§ 404.909—404.910; 404.916—404.919; 404.945; 404.951.
4
The Social Security Amendments of 1967 changed former § 202(b) to read:
'Except as provided in subsection (q), such wife's insurance benefit for each month shall be equal to whichever of the following is the smaller: (A) one-half of the primary insurance amount of her husband (or, in the case of a divorced wife, her former husband) for such month, or (B) $105.' Pub.L.No. 90—248, § 103, 81 Stat. 821 (Jan. 2, 1968).
5
The record reveals that petitioner applied for benefits for his two children in his initial application for disability payments. Although that application did not encompass a claim for benefits on behalf of his wife, it is made clear in the application that his wife was also applying for benefits. It does not appear, however, whether the separate application for wife's benefits was filed by her or by petitioner on her behalf. See n. 3, supra. No question is raised concerning the propriety of the claims that were filed. Nor is this a case where any question has been raised concerning the right of the wife or children to benefits. Rather, the wife and children had been receiving them as dependents of a disabled person until they were terminated by respondent's erroneous decision that the husband was no longer disabled. When that decision was reversed by the District Court, the only impediment standing in the way of the receipt of past-due benefits by the wife and children was removed. In a realistic sense, then, the attorney was representing fully the interests of the wife and children when he litigated the question of the husband's disability.
6
S.Rep.No. 404, Pt. I, 89th Cong., 1st Sess. 122; U.S.Code & Admin.News 1965, p. 2062.
'It has come to the attention of the committee that attorneys have upon occasion charged what appear to be inordinately large fees for representing claimants in Federal district court actions arising under the social security program. Usually, these large fees result from a contingent-fee arrangement under which the attorney is entitled to a percentage (frequently one-third to one-half) of the accrued benefits. Since litigation necessarily involves a considerable lapse of time, in many cases large amounts of accrued benefits, and consequently large legal fees, are payable if the claimant wins his case.
'The committee bill would provide that whenever a court renders a judgment favorable to a claimant, it would have express authority to allow as part of its judgment a reasonable fee, not in excess of 25 percent of accrued benefits, for services rendered in connection with the claim; no other fee would be payable. * * *'
| 56
|
390 U.S. 557
88 S.Ct. 1235
20 L.Ed.2d 126
AVCO CORPORATION, Petitioner,v.AERO LODGE NO. 735, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS et al.
No. 445.
Argued March 11, 1968.
Decided April 8, 1968.
Rehearing Denied May 20, 1968.
See 391 U.S. 929, 88 S.Ct. 1801.
J. Mack Swigert, Cincinnati, Ohio, for petitioner.
Bernard Dunau, Washington, D.C., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner filed a suit in a state court in Tennessee to enjoin respondent union and its members and associates from striking at petitioner's plant. The heart of the complaint was a 'no-strike' clause in the collective bargaining agreement by which 'grievances' were to be settled amicably or by binding arbitration. The eligibility of employees for promotion engendered disputes—allegedly subject to the grievance procedure—which so far as appears involved no violence or trespass but which resulted in work stoppages and a walkout by employees. The state court issued an ex parte injunction.
2
Respondent then moved in the Federal District Court for removal of the case.1 A motion to remand to the state court was made and denied, the District Court ruling that the action was within its original jurisdiction. The District Court granted respondents' motion to dissolve the injunction issued by the Tennessee court. The Court of Appeals affirmed. 376 F.2d 337. We granted the petition for certiorari (389 U.S. 819, 88 S.Ct. 103, 19 L.Ed.2d 68) because of an apparent conflict between the decision below and American Dredging Co. v. Local 25, etc., 338 F.2d 837, from the Court of Appeals for the Third Circuit.
3
The starting point is § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185, which, we held in Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, was fashioned by Congress to place sanctions behind agreements to arbitrate grievance disputes. We stated:
4
'We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. * * * The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. * * * Federal interpretation of the federal law will govern, not state law. * * * But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy. * * * Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.' 353 U.S., at 456—457, 77 S.Ct., at 917 918.
5
An action arising under § 301 is controlled by federal substantive law even though it is brought in a state court.2 Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370; Local 174, etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593; Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483. Removal is but one aspect3 of 'the primacy of the federal judiciary in deciding questions of federal law.' See England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 415—416, 84 S.Ct. 461, 464—465, 11 L.Ed.2d 440.
6
It is thus clear that the claim under this collective bargaining agreement is one arising under the 'laws of the United States' within the meaning of the removal statute. 28 U.S.C. § 1441(b). It likewise seems clear that this suit is within the 'original jurisdiction' of the District Court within the meaning of 28 U.S.C. §§ 1441(a) and (b). It is true that the Court by a 5-to-3 decision in Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440, held that although a case was properly in the federal district court by reason of § 301, the Norris-LaGuardia Act bars that court from issuing an injunction in the labor dispute. The nature of the relief available after jurisdiction attaches is, of course, different from the question whether there is jurisdiction to adjudicate the controversy. The relief in § 301 cases varies—from specific performance of the promise to arbitrate (Textile Workers v. Lincoln Mills, supra), to enforcement or annulment of an arbitration award (United Steel Workers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424), to an award of compensatory damages (Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462), and the like. See Smith v. Evening News Assn., 371 U.S. 195, 199—200, 83 S.Ct. 267, 269—270, 9 L.Ed.2d 246. But the breadth or narrowness of the relief which may be granted under federal law in § 301 cases is a distinct question from whether the court has jurisdiction over the parties and the subject matter. Any error in granting or designing relief 'does not go to the jurisdiction of the court.' Swift & Co. v. United States, 276 U.S. 311, 331, 48 S.Ct. 311, 316, 72 L.Ed. 587. Cf. Zwickler v. Koota, 389 U.S. 241, 254—255, 88 S.Ct. 391, 399, 19 L.Ed.2d 444. When the Court in Sinclair Refining Co. v. Atkinson, supra, 370 U.S. at 215, 82 S.Ct., at 1339, said that dismissal of a count in the complaint asking for an injunction was correct 'for lack of jurisdiction under the Norris-LaGuardia Act,' it meant only that the Federal District Court lacked the general equity power to grant the particular relief.4
7
Title 28 U.S.C. § 1337 says that 'The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce * * *.' It is that original jurisdiction that a § 301 action invokes. Textile Workers v. Lincoln Mills, supra, 353 U.S., at 457, 77 S.Ct., at 918.
8
Affirmed.
9
Mr. Justice STEWART, with whom Mr. Justice HARLAN and Mr. Justice BRENNAN join concurring.
10
I agree that the case before us was removable to the Federal District Court under 28 U.S.C. § 1441.
11
The District Judge not only denied a motion to remand the case to the state court but also dissolved the state court injunction, and it is only by virtue of the latter order that an appeal was possible at this stage of the litigation. American Dredging Co. v. Local 25, etc., 338 F.2d 837, 838, n. 2.
12
As the Court says, it is not clear whether or not the District Judge dissolved the injunction 'because (he) felt that action was required by Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440,' ante, at 561, n. 4. accordingly, the Court expressly reserves decision on the effect of Sinclair in the circumstances presented by this case. The Court will, no doubt, have an opportunity to reconsider the scope and continuing validity of Sinclair upon an appropriate future occasion.
1
28 U.S.C. § 1441 provides in relevant part:
'Actions removable generally.
'(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
'(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. * * *'
2
We find it unnecessary to rule on the holding of the Court of Appeals below that 'the remedies available in State Courts are limited to the remedies available under Federal law.' 376 F.2d, at 343. That conclusion would suggest that state courts are precluded by § 4 of the Norris-LaGuardia Act from issuing injunctions in labor disputes, even though the defendant does not exercise his right—which we confirm today—to remove the case to the District Court under 28 U.S.C. § 1441(b), and the state court therefore retains jurisdiction over the action. We have no occasion to resolve that matter here, since respondents did elect to have the case removed.
3
See A. Dobie, Handbook of Federal Jurisdiction and Procedure 346 (1928); H. Hart & H. Wechsler, The Federal Courts and the Federal System 727—733, 1019—1020 (1953).
4
Another question raised here is whether the District Court, to which the action had been removed, should have dissolved the injunction issued by the Tennessee state court. There is, of course, no question of the power of the District Court to dissolve the injunction. See 28 U.S.C. § 1450. Whether it did so because it felt that action was required by Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440, or because of its equity powers or both is not clear. But the Court of Appeals went much further and said in a dictum that 'the remedies available in State Courts are limited to the remedies available under Federal law.' 376 F.2d, at 343. We reserve decision on those questions.
| 910
|
390 U.S. 563
88 S.Ct. 1231
20 L.Ed.2d 132
UNITED STATES, Appellant,v.Horace JOHNSON et al.
No. 482.
Argued March 14, 1968.
Decided April 8, 1968.
Ralph S. Spritzer, Washington, D.C., for appellant.
Robert B. Thompson, Gainesville, Ga., for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The question in this case is whether conspiracies by outside hoodlums to assault Negroes for exercising their right to equality in public accommodations under § 201 of the Civil Rights Act of 1964, 78 Stat. 243, 42 U.S.C. § 2000a, are subject only to a civil suit for an injunction as provided in § 204 of that Act, 42 U.S.C. § 2000a—3, or whether they are also subject to criminal prosecution under 18 U.S.C. § 241, which provides fine and imprisonment for a conspiracy 'to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same * * *.'
2
The indictment charged a conspiracy to injure and intimidate three Negroes in the exercise of their right to patronize a restaurant. The defendants, who were outsiders, not connected with the restaurant, are charged with having used violence against these Negroes for having received service at the restaurant, the purpose of the conspiracy being in part 'to discourage them and other Negro citizens from seeking service' there 'on the same basis as white citizens.'
3
The facts are not developed because the District Court granted a motion to dismiss the indictment on the ground that s 207(b) of the Act1 makes the provision for relief by injunction the exclusive remedy under the Act. The case is here on appeal. 18 U.S.C. § 3731. We noted probable jurisdiction. 389 U.S. 910, 88 S.Ct. 241, 19 L.Ed.2d 258.
4
The legislative history contains language which to the District Court seemed to preclude remedy by indictment. Senator Humphrey, floor manager of the bill, explained § 207(b):
5
'This would mean, for example, that a proprietor who, in the first instance, legitimately—but erroneously—believes his establishment is not covered by section 201 or 202 need not fear a jail sentence or a damage action if his judgment as to coverage of title II is wrong.' 110 Cong.Rec. 9767.
Senator Young agreed:
6
'The enforcement provisions of title II are based on the specific prohibition in section 203 against denying or interfering with the right to the nondiscriminatory use of facilities covered by the title. In case of a violation, the aggrieved person would be able to sue for an injunction to end the denial or interference * * * The prohibitions of title II would be enforced only by civil suits for an injunction. Neither criminal penalties nor the recovery of money damages would be involved.' 110 Cong.Rec. 7384.
Senator Magnuson added:
7
'Moreover, in every case, a judicial determination of coverage must be made prior to the entry of any order requiring the onwer to stop discrimination. Thus, no one would become subject to any contempt sanctions—the only sanctions provided for in the act, until after it has been judicially determined that his establishment is subject to the act and he has been ordered by the Court to end this discrimination, and he has violated that Court order.' 110 Cong.Rec. 7405.
8
That legislative history makes clear that the 'proprietor' or 'owner' is not to be subjected to criminal liability, where he had not had a chance to litigate whether his facilities are subject to the Act. But no proprietor or owner is here involved. Outside hoodlums are charged with the conspiracy; and the history of federal law, as applicable to them, is clear. 18 U.S.C. § 241 is derived from the Enforcement Act of 1870, § 6, 16 Stat. 141, and, as noted, protects the citizen 'in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.' The right to service in a restaurant is such a 'right,' at least by virtue of the 1964 Act. We said in United States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267, in reference to 18 U.S.C. § 241. 'We think that history leaves no doubt that, if we are to give § 241 the scope that its origins dictate, we must accord it a sweep as broad as its language.'
9
We have over the years given protection to many federal rights under § 241.2 We refuse to believe that hoodlums operating in the fashion of the Ku Klux Klan, were given protection by the 1964 Act for violating those 'rights' of the citizen that § 241 was designed to protect.
10
Immediately after the provision in § 207(b) stating that the remedies provided 'shall be the exclusive means of enforcing the rights based on this title,' is a further provision stating that 'nothing in this title shall preclude any individual or any State or local agency from asserting any right based on any other Federal or State law not inconsistent with this title * * * or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right.' There is, therefore, within the four corners of § 207(b) evidence that it was not designed as preempting every other mode of protecting a federal 'right' or as granting immunity to those who had long been subject to the regime of § 241.
11
It is, of course, true that § 203(b) of the Act, 42 U.S.C. § 2000a—2(b), bars the use of violence against those who assert their rights under the Act, and that therefore a remedy by way of an injunction could be obtained by the party aggrieved under § 204(a). A like remedy is available to the Attorney General by reason of § 206(a). But as we read the Act, the exclusive-remedy provision of § 207(b) was inserted only to make clear that the substantive rights to public accommodation defined in § 201 and § 202 are to be enforced exclusively by injunction. Proprietors and owners are not to be prosecuted criminally for mere refusal to serve Negroes. But the Act does not purport to deal with outsiders; nor can we imagine that Congress desired to give them a brand new immunity from prosecution under 18 U.S.C. § 241—a statute that encompasses 'all of the rights and privileges secured to citizens by all of the Constitution and all of the laws of the United States.' United States v. Price, supra, at 800, 86 S.Ct. at 1160.
12
Reversed.
13
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
14
Mr. Justice STEWART, with whom Mr. Justice BLACK and Mr. Justice HARLAN join, dissenting.
15
I regret that I cannot join the opinion of the Court. There is, of course, no question of the reprehensibility of the appellees' alleged conduct. But the issue is whether Congress has subjected this conduct to federal criminal prosecution.
16
Section 201 of Title II of the Civil Rights Act of 1964, 78 Stat. 243, secures the right to equal enjoyment of places of public accommodation. Section 203 prohibits interference with that right in any of three ways:
17
'No person shall(a) withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive, any person of any right or privilege secured by section 201 or 202, or (b) intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person with the purpose of interfering with any right or privilege secured by section 201 or 202, or (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege sucured by section 201 or 202.'
18
Section 204 authorizes private injunctive actions against violations of § 203. Section 206 provides for injunctive actions by the Attorney General against patterns or practices of resistance to enjoyment of Title II rights. Finally § 207(b) states:
19
'The remedies provided in this title shall be the exclusive means of enforcing the rights based on this title * * *.'1
20
The plain language of the exclusive remedies clause of § 207 thus clearly precludes a criminal prosecution for interfering with rights secured by Title II.2 And the very legislative history cited by the Court leaves no doubt that a specific purpose of that clause was to prevent criminal prosecutions under 18 U.S.C. § 241. It was upon that understanding that Congress enacted the legislation.
21
The Court's effort to distinguish between refusal of service by a proprietor and violent interference by third parties is not only without any support in the language of § 207 but also is belied by § 203 of the Title, quoted above. That section clearly prohibits intimidation and coercion by third persons as well as refusal of service by a proprietor. Congress, therefore, was explicitly aware of the kind of conduct alleged in this case when it enacted Title II, and Congress provided in § 207 that the exclusive remedy to prohibit such conduct must be by injunction.
22
The exclusive remedies provided by Congress to protect the rights secured by Title II of the 1964 Act are undoubtedly ineffective in a case like this. But I cannot, for that reason, join in rewriting the law that Congress so clearly enacted.
23
I respectfully dissent.
1
Section 207(b) of the Act, 42 U.S.C. § 2000a—6(b), provides:
'The remedies provided in this title shall be the exclusive means of enforcing the rights based on this title, but nothing in this title shall preclude any individual or any State or local agency from asserting any right based on any other Federal or State law not inconsistent with this title, including any statute or ordinance requiring nondiscrimination in public establishments or accommodiations, or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right.'
2
See, e.g., United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (the right to vote); United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (right to travel); United States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673 (the right to perfect a homestead); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 86 L.Ed. 429 (the right to be free of violence while in the custody of a federal marshal); United States v. Mason, 213 U.S. 115, 29 S.Ct. 480, 53 L.Ed. 725 (the right of federal officers to perform their duties); United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (Fourteenth Amendment rights).
1
Section 207 contains a proviso; but the United States, which brought this prosecution, is conspicuously absent from the list of those to whom the proviso applies: '(N)othing in this title shall preclude any individual or any State or local agency from asserting any right based on any other Federal or State law not inconsistent with this title, including any statute or ordinance requiring nondiscrimination in public establishments or accommodations, or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right.' (Emphasis added.)
2
The indictment did not allege injury to any rights other than those established by Title II of the Civil Rights Act of 1964.
| 12
|
390 U.S. 570
88 S.Ct. 1209
20 L.Ed.2d 138
UNITED STATES, Appellant,v.Charles JACKSON et al.
No. 85.
Argued Dec. 7, 1967.
Decided April 8, 1968.
Ralph Spritzer, Washington, D.C., for appellant.
Steven B. Duke, New Haven, Conn., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
The Federal Kidnaping Act, 18 U.S.C. § 1201(a), provides:
2
'Whoever knowingly transports in interstate * * * commerce, any person who has been unlawfully * * * kidnaped * * * and held for ransom * * * or otherwise * * * shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.'
3
This statute thus creates an offense punishable by death 'if the verdict of the jury shall so recommend.' The statute sets forth no procedure for imposing the death penalty upon a defendant who waives the right to jury trial or upon one who pleads guilty.
4
On October 10, 1966, a federal grand jury in Connecticut returned an indictment charging in count one that three named defendants, the appellees in this case, had transported from Connecticut to New Jersey a person who had been kidnaped and held for ransom and who had been harmed when liberated.1 The District Court dismissed this count of the indictment,2 holding the Federal Kidnaping Act unconstitutional because it makes 'the risk of death' the price for asserting the right to jury trial, and thereby 'impairs * * * free exercise' of that constitutional right.3 The Government appealed directly to this Court,4 and we noted probable jurisdiction.5 We reverse.
5
We agree with the District Court that the death penalty provision of the Federal Kidnaping Act imposes an impermissible burden upon the exercise of a constitutional right, but we think that provision is severable from the remainder of the statute. There is no reason to invalidate the law in its entirety simply because its capital punishment clause violates the Constitution. The District Court therefore erred in dismissing the kidnaping count of the indictment.
I.
6
One fact at least is obvious from the face of the statute itself: In an interstate kidnaping case where the victim has not been liberated unharmed, the defendant's assertion of the right to jury trial may cost him his life, for the federal statute authorizes the jury—and only the jury—to return a verdict of death. The Government does not dispute this proposition. What it disputes is the conclusion that the statute thereby subjects the defendant who seeks a jury trial to an increased hazard of capital punishment. As the Government construes the statute, a defendant who elects to be tried by a jury cannot be put to death even if the jury so recommends—unless the trial judge agrees that capital punishment should be imposed. Moreover, the argument goes, a defendant cannot avoid the risk of death by attempting to plead guilty or waive jury trial. For even if the trial judge accepts a guilty plea or approves a jury waiver, the judge remains free, in the Government's view of the statute, to convene a special jury for the limited purpose of deciding whether to recommend the death penalty. The Government thus contends that, whether or not the defendant chooses to submit to a jury the question of his guilt, the death penalty may be imposed if and only if both judge and jury concur in its imposition. On this understanding of the statute, the Government concludes that the death penalty provision of the Kidnaping Act does not operate to penalize the defendant who chooses to contest his guilt before a jury. It is unnecessary to decide here whether this conclusion would follow from the statutory scheme the Government envisions,6 for it is not in fact the scheme that Congress enacted.
7
At the outset, we reject the Government's argument that the Federal Kidnaping Act gives the trial judge discretion to set aside a jury recommendation of death. So far as we are aware, not once in the entire 34-year history of the Act has a jury's recommendation of death been discarded by a trial judge.7 The Government would apparently have us assume either that trial judges have always agreed with jury recommendations of capital punishment under the statute—an unrealistic assumption at best8—or that they have abdicated their statutory duty to exercise independent judgment on the issue of penalty. In fact, the explanation is a far simpler one. The statute unequivocally states that, 'if the verdict of the jury shall so recommend,' the defendant 'shall be punished * * * by death * * *.' The word is 'shall,' not 'may.'9 In acceding without exception to jury recommendations of death, trial judges have simply carried out the mandate of the statute.
8
The Government nonetheless urges that we overlook Congress' choice of the imperative. Whatever might have been assumed in the past, we are now asked to construe the statute so as to eliminate the jury's power to fix the death penalty without the approval of the presiding judge. '(T)his reading,' it is said, would conform 'to the long tradition that makes the trial judge in the federal courts the arbiter of the sentence.' And so it would. The difficulty is that Congress intentionally discarded that tradition when it passed the Federal Kidnaping Act. Over the forcefully articulated objection that jury sentencing would represent an unwarranted departure from settled federal practice,10 Congress rejected a version of the Kidnaping Act that would have left punishment to the court's discretion11 and instead chose an alternative that shifted from a single judge to a jury of 12 the onus of inflicting the penalty of death.12 To accept the Government's suggestion that the jury's sentencing role be treated as merely advisory would return to the judge the ultimate duty that Congress deliberately placed in other hands.
9
The thrust of the clause in question was clearly expressed by the House Judiciary Committee that drafted it: Its purpose was, quite simply, 'to permit the jury to designate a death penalty for the kidnaper.'13 The fact that Congress chose the word 'recommend' to describe what the jury would do in designating punishment cannot obscure the basic congressional objective of making the jury rather than the judge the arbiter of the death sentence. The Government's contrary contention cannot stand.
10
Equally untenable is the Government's argument that the Kidnaping Act authorizes a procedure unique in the federal system that of convening a special jury, without the defendant's consent, for the sole purpose of deciding whether he should be put to death. We are told initially that the Federal Kidnaping Act authorizes this procedure by implication. The Government's reasoning runs as follows: The Kidnaping Act permits the infliction of capital punishment whenever a jury so recommends. The Act does not state in so many words that the jury recommending capital punishment must be a jury impaneled to determine guilt as well. Therefore the Act authorizes infliction of the death penalty on the recommendation of a jury specially convened to determine punishment. The Government finds support for this analysis in a Seventh Circuit decision construing the Federal Kidnaping Act to mean that the death penalty may be imposed whenever 'an affirmative recommendation (is) made by a jury,' including a jury convened solely for that purpose after the court has accepted a guilty plea. Seadlund v. United States, 7 Cir., 97 F.2d 742, 748. Accord, Robinson v. United States, D.C., 264 F.Supp. 146, 153. But the statute does not say 'a jury.' It says 'the jury.' At least when the defendant demands trial by jury on the issue of guilt, the Government concedes that 'the verdict of the jury' means what those words naturally suggest: the general verdict of conviction or acquittal returned by the jury that passes upon guilt or innnocence. Thus, when such a jury has been convened, the statutory reference is to that jury alone, not to a jury impaneled after conviction for the limited purpose of determining punishment.14 Yet the Government argues that, when the issue of guilt has been tried to a judge or has been eliminated altogether by a plea of guilty, 'the verdict of the jury' at once assumes a completely new meaning. In such a case, it is said, 'the verdict of the jury' means the recommendation of a jury convened for the sole purpose of deciding whether the accused should live or die.
11
The Government would have us give the statute this strangely bifurcated meaning without the slightest indication that Congress contemplated any such scheme. Not a word in the legislative history so much as hints that a conviction on a plea of guilty or a conviction by a court sitting without a jury might be folllowed by a separate sentencing proceeding before a penalty jury. If the power to impanel such a jury had been recognized elsewhere in the federal system when Congress enacted the Federal Kidnaping Act, perhaps Congress' total silence on the subject could be viewed as a tacit incorporation of this sentencing practice into the new law. But the background against which Congress legislated was barren of any precedent for the sort of sentencing procedure we are told Congress impliedly authorized.
12
The Government nonetheless maintains that Congress' failure to provide for the infliction of the death penalty upon those who plead guilty or waive jury trial was no more than an oversight that the courts can and should correct. At least twice, Congress has expressly authorized the infliction of capital punishment upon defendants convicted without a jury,15 but when on the assumption that the failure of Congress to do so here was wholly inadvertent, it would hardly be the province of the courts to fashion a remedy. Any attmept to do so would be fraught with the gravest difficulties: If a special jury were convened to recommend a sentence, how would the penalty hearing proceed? What would each side be required to show? What standard of proof would govern? To what extent would conventional rules of evidence be abrogated? What privileges would the accused enjoy? Congress, unlike the state legislatures that have authorized jury proceedings to determine the penalty in capital cases,16 has addressed itself to none of these questions.17
13
It is one thing to fill a minor gap in a statute—to extrapolate from its general design details that were inadvertently omitted. It is quite another thing to create from whole cloth a complex and completely novel procedure and to thrust it upon unwilling defendants for the sole purpose of rescuing a statute from a charge of unconstitutionality. We recognize that trial judges sitting in federal kidnaping cases have on occasion chosen the latter course, attempting to fashion on an ad hoc basis the ground rules for penalty proceedings before a jury.18 We do not know what kinds of rules particular federal judges have adopted, how widely such rules have varied, or how fairly they have been applied. But one thing at least is clear: Individuals forced to defend their lives in proceedings tailor-made for the occasion must do so without the guidance that defendants ordinarily find in a body of procedural and evidentiary rules spelled out in advance of trial.19 The Government notes with approval 'the decisional trend which has sought * * * to place the most humane construction on capital legislation.' Yet it asks us to extend the capital punishment provision of the Federal Kidnaping Act in a new and uncharted direction, without the compulsion of a legislative mandate and without the benefit of legislative guidance. That we decline to do.
II.
14
Under the Federal Kidnaping Act, therefore, the defendant who abandons the right to contest his guilt before a jury is assured that he cannot be executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die. Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury. The inevitable effect of any such provision, is of course, to discourage assertion of the Fifth Amendment right not to plead guilty20 and to deter exercise of the Sixth Amendment right to demand a jury trial. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional. But, as the Government notes, limiting the death penalty to cases where the jury recommends its imposition does have another objective: It avoids the more drastic alternative of mandatory capital punishment in every case. In this sense, the selective death penalty procedure established by the Federal Kidnaping Act may be viewed as ameliorating the severity of the more extreme punishment that Congress might have wished to provide.21
15
The Government suggests that, because the Act thus operates 'to mitigate the severity of punishment,' it is irrelevant that it 'may have the incidental effect of inducing defendants not to contest in full measure.'22 We cannot agree. Whatever might be said of Congress' objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. Cf. United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508; Shelton v. Tucker, 364 U.S. 479, 488—489, 81 S.Ct. 247, 252, 5 L.Ed.2d 231. The question is not whether the chilling effect is 'incidental' rather than intentional; the question is whether that effect is unnecessary and therefore excessive. In this case the answer to that question is clear. The Congress can of course mitigate the severity of capital punishment. The goal of limiting the death penalty to cases is which a jury recommends it is an entirely legitimate one. But that goal can be achieved without penalizing those defendants who plead not guilty and demand jury trial. In some States, for example, the choice between life imprisonment and capital punishment is left to a jury in every case—regardless of how the defendant's guilt has been determined.23 Given the availability of this and other alternatives, it is clear that the selective death penalty provision of the Federal Kidnaping Act cannot be justified by its ostensible purpose. Whatever the power of Congress to impose a death penalty for violation of the Federal Kidnaping Act, Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right. See Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.24
16
It is no answer to urge, as does the Government, that federal trial judges may be relied upon to reject coerced pleas of guilty and involuntary waivers of jury trial. For the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them. A procedure need not be inherently coercive in order that it be held to impose an impermissible burden upon the assertion of a constitutional right. Thus the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that every defendant who enters a guilty plea to a charge under the Act does so involuntarily.25 The power to reject coerced guilty pleas and involuntary jury waivers might alleviate, but it cannot totally eliminate, the constitutional infirmity in the capital punishment provision of the Federal Kidnaping Act.
17
The Government alternatively proposes that this Court, in the exercise of its supervisory powers, should simply instruct federal judges sitting in kidnaping cases to reject all attempts to waive jury trial and all efforts to plead guilty, however voluntary and well-informed such attempted waivers and pleas might be. In that way, we could assure that every defendant charged in a federal court with aggravated kidnaping would face a possible death penalty, and that no defendant tried under the federal statute would be induced to forgo a constitutional right. But of course the inevitable consequence of this 'solution' would be to force all defendants to submit to trial, however clear their guilt and however strong their desire to acknowledge it in order to spare themselves and their families the spectacle and expense of protracted courtroom proceedings. It is true that a defendant has no constitutional right to insist that he be tried by a judge rather than a jury, Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630, and it is also true 'that a criminal defendant has (no) absolute right to have his guilty plea accepted by the court.' Lynch v. Overholser, 369 U.S. 705, 719, 82 S.Ct. 1063, 1072, 8 L.Ed.2d 211. But the fact that jury waivers and guilty pleas may occasionally be rejected hardly implies that all defendants may be required to submit to a full-dress jury trial as a matter of course. Quite apart from the cruel impact of such a requirement upon those defendants who would greatly prefer not to contest their guilt, it is clear—as even the Government recognizes that the automatic rejection of all guilty pleas 'would rob the criminal process of much of its flexibility.' As one federal court has observed:26
18
'The power of a court to accept a plea of guilty is traditional and fundamental. Its existence is necessary for the * * * practical * * * administration of the criminal law. Consequently, it should require an unambiguous expression on the part of the Congress to withhold this authority in specified cases.'
19
If any such approach should be inaugurated in the administration of a federal criminal statute, we conclude that the impetus must come from Congress, not from this Court. The capital punishment provision of the Federal Kidnaping Act cannot be saved by judicial reconstruction.
III.
20
The remaining question is whether the statute as a whole must fall simply because its death penalty clause is constitutionally deficient. The District Court evidently assumed that it must, for that court dismissed the kidnaping indictment. We disagree. As we said in Champlin Rfg. Co. v. Corporation Commission of State of Okl., 286 U.S. 210, 234, 52 S.Ct. 559, 565, 76 L.Ed. 1062:
21
'The unconstitutionality of a part of an Act does not necessarily defeat * * * the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.'27
22
Under this test, it is clear that the clause authorizing capital punishment is severable from the remainder of the kidnaping statute and that the unconstitutionality of that clause does not require the defeat of the law as a whole. See McDowell v. United States, D.C., 274 F.Supp. 426, 429. Cf. Spillers v. State, Nev., 436 P.2d 18, 23—24.
23
The clause in question is a functionally independent part of the Federal Kidnaping Act. Its elimination in no way alters the substantive reach of the statute and leaves completely unchanged its basic operation. Under such circumstances, it is quite inconceivable that the Congress which decided to authorize capital punishment in aggravated kidnaping cases would have chosen to discard the entire statute if informed that it could not include the death penalty clause now before us.28
24
In this case it happens that history confirms what common sense alone would suggest: The law as originally enacted in 1932 contained no capital punishment provision.29 A majority of the House had favored the death penalty but had yielded to opposition in the Senate as a matter of expediency.30 Only one Congressman had expressed the view that the law would not be worth enacting without capital punishment.31 The majority obviously felt otherwise.32 When the death penalty was added in 1934, the statute was left substantially unchanged in every other respect.33 The basic problem that had prompted enactment of the law in 1932—the difficulty of relying upon state and local authorities to investigate and prosecute interstate kidnaping34—had not vanished during the intervening two years. It is therefore clear that Congress would have made interstate kidnaping a federal crime even if the death penalty provision had been ruled out from the beginning. It would be difficult to imagine a more compelling case for severability.
25
In an effort to suggest the contrary, the appellees insist that the 1934 amendment 'did not merely increase the penalties for kidnaping; it changed the whole thrust of the Act.' They note that Congress deliberately limited capital punishment to those kidnapers whose victims are not liberated unharmed. Such a differential penalty provision, the appellees argue, is needed to discourage kidnapers from injuring those whom they abduct.35 The appellees contend that, without its capital punishment clause, the Federal Kidnaping Act would not distinguish 'the penalties applicable to those who do and those who do not harm or kill their victims.' Stressing the obvious congressional concern for the victim's safety, they conclude that 'it is doubtful that Congress would intend for the statute to stand absent such a feature.' This argument is wrong as a matter of history, for Congress enacted the statute 'absent such a feature.'36 It is wrong as a matter of fact, for the length of imprisonment imposed under the Act can obviously be made to reflect the kidnaper's treatment of his victim. And it is wrong as a matter of logic, for nothing could more completely obliterate the distinction between 'the penalties applicable to those who do and those who do not harm or kill their victims' than the total invalidation of all the penalties provided by the Federal Kidnaping Act—the precise result sought by the appellees.
26
Thus the infirmity of the death penalty clause does not require the total frustration of Congress' basic purpose—that of making interstate kidnaping a federal crime. By holding the death penalty clause of the Federal Kidnaping Act unenforceable, we leave the statute an operative whole, free of any constitutional objection. The appellees may be prosecuted for violating the Act, but they cannot be put to death under its authority.
27
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
28
It is so ordered.
29
Reversed and remanded.
30
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
31
Mr. Justice WHITE, with whom Mr. Justice BLACK joins, dissenting.
32
The Court strikes down a provision of the Federal Kidnaping Act which authorizes only the jury to impose the death penalty. No question is raised about the death penalty itself or about the propriety of jury participation in its imposition, but confining the power to impose the death penalty to the jury alone is held to burden impermissibly the right to a jury trial because it may either coerce or encourage persons to plead guilty or to waive a jury and be tried by the judge. In my view, however, if the vice of the provision is that it may interfere with the free choice of the defendant to have his guilt or innocence determined by a jury, the Court needlessly invalidates a major portion of an Act of Congress. The Court itself says that not every plea of guilty or waiver of jury trial would be influenced by the power of the jury to impose the death penalty. If this is so, I would not hold the provision unconstitutional but would reverse the judgment, making it clear that pleas of guilty and waivers of jury trial should be carefully examined before they are accepted, in order to make sure that they have been neither coerced nor encouraged by the death penalty power in the jury.
33
Because this statute may be properly interpreted so as to avoid constitutional questions, I would not take the first step toward invalidation of statutes on their face because they arguably burden the right to jury trial.
1
Count one:
'On or about September 2, 1966, CHARLES JACKSON, also known as 'Batman,' also known as 'Butch'; and GLENN WALTER ALEXANDER DE LA MOTTE; and JOHN ALBERT WALSH, JR., the defendants herein, did knowingly transport in interstate commerce from Milford in the District of Connecticut to Alpine, New Jersey, one John Joseph Grant, III, a person who had theretofore been unlawfully seized, kidnapped, carried away and held by the defendants herein, for ransom and reward and for the purpose of aiding the said defendants to escape arrest, and the said John Joseph Grant, III, was harmed when liberated, in violation of Title 18, United States Code, Section 1201(a).'
2
Count two, charging transportation of a stolen motor vehicle from Connecticut to New York in violation of 18 U.S.C. § 2312, has not been challenged and is not now before us.
3
262 F.Supp. 716, 718.
4
18 U.S.C. § 3731.
5
387 U.S. 929, 87 S.Ct. 2050, 18 L.Ed.2d 989.
6
Even if the Government's interpretation were sound, the validity of its conclusion would still be far from clear. As the District Court observed, 'even if the trial court has the power to submit the issue of punishment to a jury, that power is discretionary, its exercise uncertain.' 262 F.Supp. 716, 717—718. The Government assumes that a judge who would accept the death penalty recommendation appended to a jury verdict of guilt is a judge who would exercise his discretionary power to convene a penalty jury if the defendant were to plead guilty or submit to a bench trial. But the mere fact that a judge would defer to the jury's recommendation hardly implies that he would take the extraordinary step of convening a penalty jury after accepting a plea of guilty or approving a waiver of jury trial. Even if the Government's statutory position were correct, the fact would remain that the defendant convicted on a guilty plea or by a judge completely escapes the threat of capital punishment unless the trial judge makes an affirmative decision to commence a penalty hearing and to impanel a special jury for that purpose, whereas the defendant convicted by a jury automatically incurs a risk that the same jury will recommend the death penalty and that the judge will accept its recommendation.
7
One district judge has indicated that he would not feel bound by a jury recommendation of death in a kidnaping case, see Robinson v. United States, D.C., 264 F.Supp. 146, 151—153, but the question was not directly before him since the case involved a petition for post-conviction relief. Although federal juries have recommended capital punishment in a number of kidnapping cases, counsel for the Government stated at oral argument in this Court that he was aware of no case in which such a recommendation had been set aside.
8
See H. Kalven & H. Zeisel, The American Jury 436—444 (1966).
9
The Government notes that the word 'shall' precedes both alternative punishments: The offender 'shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment * * *.' But the notion that judicial discretion is thereby authorized is dispelled by the qualification attached to the second alternative: 'by imprisonment * * * if the death penalty is not imposed.' Although it is true that the judge rather than the jury is formally responsible for imposing sentence in a federal criminal case, those qualifying words would state a pointless truism unless they were meant to refer to the jury's recommendation: The offender 'shall be punished (1) by death * * * if the verdict of the jury shall so recommend, or (2) by imprisonment' if the jury's verdict does not so recommend. To accept the Government's reading of the statute would make its final phrase a complete redundancy, anomalous indeed in a statute that Congress has twice pruned of excess verbiage. See Reviser's Note following 18 U.S.C. § 1201.
Nothing in the language or history of the Federal Kidnaping Act points to any such result. On the contrary, an examination of the death penalty provision in its original form demonstrates that Congress could not have intended the meaning the Government now seeks to attribute to it. For the statute as it stood in 1934 provided that the offender 'shall, upon conviction, be punished (1) by death if the verdict of the jury shall so recommend, provided that the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnaped person has been liberated unharmed, or (2) if the death penalty shall not apply nor be imposed the convicted person shall be punished by imprisonment in the penitentiary for such term of years as the court in its discretion shall determine * * *.' 48 Stat. 781. In this form, the statutory language simply will not support the interpretation that the offender 'shall be punished by death or by imprisonment' if the jury recommends the death penalty. For the statute in this form makes unmistakably clear that, if the death penalty applies—i.e., if the jury has recommended death—then the punishment shall be death unless, before the judge has imposed sentence, the victim has been liberated unharmed. There is absolutely no reason to think that the purely formal transformations through which the statute has passed since 1934 were intended to alter this basic penalty structure.
10
See 75 Cong.Rec. 13288, 13295—13297 (1932).
11
As originally drafted the Kidnaping Act had provided for punishment 'by death or imprisonment * * * for such term of years as the court in its discretion shall determine. * * *' 75 Cong.Rec. 13288 (1932).
12
A number of Congressmen feared that empowering judges to impose capital punishment might make some jurors unduly reluctant to convict. See 75 Cong.Rec. 13289, 13294 (1932). To the extent that this concern was responsible for the decision to require a jury recommendation of death as a prerequisite to the imposition of capital punishment, it is of course immaterial whether or not the jury's recommendation is binding on the trial judge. But, as the Government concedes, many of the Congressmen who favored jury determination of the death penalty did so largely because such a scheme would take from the judge the onus of inflicting capital punishment. See, e.g., 75 Cong.Rec. 13297.
13
H.R.Rep.No. 1457, 73d Cong., 2d Sess., 2 (1934) (emphasis added).
14
If the jury's verdict of guilt includes no death penalty recommendation, the judge can impose no penalty beyond imprisonment. He cannot convene another jury to recommend capital punishment. See United States v. Dressler, 7 Cir., 112 F.2d 972, 980.
15
In a statute forbidding the wrecking of trains, Congress provided that '(w)hoever is convicted of any such crime, which has resulted in the death of any person, shall be subject * * * to the death penalty * * * if the jury shall in its discretion so direct, or, in the case of a plea of guilty, if the court in its discretion shall so order.' 62 Stat. 794 (1948), 18 U.S.C. § 1992 (emphasis added). And in a statute prohibiting the destruction of aircraft, Congress provided that violators whose conduct causes death 'shall be subject * * * to the death penalty * * * if the jury shall in its discretion so direct, or, in the case of a plea of guilty, or a plea of not guilty where the defendant has waived a trial by jury, if the court in its discretion shall so order.' 70 Stat. 540 (1956), 18 U.S.C. § 34 (emphasis added).
The language of the aircraft-wrecking statute, 18 U.S.C. § 34, is of particular interest here because it reflects a congressional awareness of the precise problem the Government suggests Congress overlooked in the kidnaping area: In a letter addressed to the Chairman of the House Committee on Interstate and Foreign Commerce, William P. Rogers, then Deputy Attorney General, suggested on behalf of the Justice Department that the bill then under consideration should be amended by the addition of the phrase 'or in the case of a plea of not guilty where the defendant has waived trial by jury.' The letter stated:
'Under the present phraseology it is doubtful whether the court could invoke the death penalty in a situation where the defendant has entered a plea of not guilty, waived his right to a trial by jury, and asked to be tried by the court.' 2 U.S.Code Congressional and Administrative News, 84th Cong., 2d Sess., 3149 3150 (1956). Congress inserted the suggested language in the aircraft statute as enacted on July 14, 1956. Less than a month later, Congress reconsidered the Kidnaping Act and added a technical amendment, 70 Stat. 1043 (1956), but included no provision to authorize the imposition of the death penalty upon defendants who plead guilty or waive the right to jury trial.
16
See Cal.Penal Code § 190.1 (Supp.1966); Conn.Gen.Stat.Rev. § 53—10 (Supp.1965); Pa.Stat.Ann., Tit. 18, § 4701 (1963); N.Y.Penal Law McKinney's Consol.Laws, c. 40, §§ 125,30, 125.35 (1967).
17
The complex problems presented by separate penalty proceedings have frequently been noted. See, e.g., Frady v. United States, 121 U.S.App.D.C. 78, 109—110, 348 F.2d 84, 115—116 (Burger, J., concurring in part and dissenting in part); Note, The California Penalty Trial, 52 Calif.L.Rev. 386 (1964); Note, The Two-Trial System in Capital Cases, 39 N.Y.U.L.Rev. 50 (1964). See also Kuh, A Prosecutor Considers the Model Penal Code, 63 Col.L.Rev. 608, 615 (1963). It is not surprising that courts confronted with such problems have concluded that their solution requires 'comprehensive legislative and not piecemeal judicial action.' State v. Mount, 30 N.J. 195, 224, 152 A.2d 343, 358 (concurring opinion). See also People v. Friend, 47 Cal.2d 749, 763, 306 P.2d 463, 471, n. 7. But see United States v. Curry, 2 Cir., 358 F.2d 904, 914—915.
18
The Government informs us that at least three of the defendants who pleaded guilty in cases arising under the Federal Kidnaping Act have been sentenced to death on the recommendation of special penalty juries convened to determine punishment.
19
Even in States with legislatively established jury proceedings on the penalty issue, defense attorneys have not always been prepared to take advantage of those features of the penalty trial designed to benefit their clients. See Note, Executive Clemency in Capital Cases, 39 N.Y.U.L.Rev. 136, 167 (1964). If the relative novelty of penalty proceedings has thus impaired effective representation in jurisdictions where the contours of such proceedings have been fixed by statute, it seems clear that the difficulties for the defense would be even more formidable under the amorphous case-by-case system that the Government asks us to legitimize today. It is no wonder that the Second Circuit, while not foreclosing two-stage trials altogether, was 'loath to compel unwilling defendants to submit' to them. United States v. Curry, 2 Cir., 358 F.2d 904, 914.
20
It is established that due process forbids convicting a defendant on the basis of a coerced guilty plea. See, e.g., Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126.
21
See United States v. Curry, 2 Cir., 358 F.2d 904, 913—914 and n. 8. See also Andres v. United States, 333 U.S. 740, 753—754, 68 S.Ct. 880, 886—887, 92 L.Ed. 1055 (Frankfurter, J., concurring).
22
See McDowell v. United States, D.C., 274 F.Supp. 426, 431. See also Laboy v. State of New Jersey, D.C., 266 F.Supp. 581, 585.
23
See, e.g., Wash.Rev.Code §§ 9.48.030, 10.01.060, 10.49.010 (1956). Cf. Cal. Penal Code § 190.1 (Supp.1966).
24
In an opinion by Justice Zenoff, Spillers v. State, 436 P.2d 18, 22—23, the Supreme Court of Nevada has recently held unconstitutional a state penalty scheme imposing capital punishment for forcible rape resulting in great bodily injury 'if the jury by their verdict affix the death penalty.' Nev.Rev.Stat. § 200.360(1) (1963).
25
See Laboy v. State of New Jersey, D.C., 266 F.Supp. 581, 584. So, too, in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the Court held that comment on a defendant's failure to testify imposes an impermissible penalty on the exercise of the right to remain silent at trial. Yet it obviously does not follow that every defendant who ever testified at a pre-Griffin trial in a State where the prosecution could have commented upon his failure to do so is entitled to automatic release upon the theory that his testimony must be regarded as compelled.
26
United States v. Willis, D.C., 75 F.Supp. 628, 630.
27
The appellees correctly note that Champlin was a case where Congress had included a clause expressly authorizing the severance of any invalid provision, a fact upon which this Court relied in recognizing 'a presumption that, eliminating invalid parts, the Legislature would have been satisfied with what remained * * *.' 286 U.S. 210, 235, 52 S.Ct. 559, 565. But whatever relevance such an explicit clause might have in creating a presumption of severability, see Electric Bond & Share Co. v. Securities and Exchange Comm'n, 303 U.S. 419, 434, 58 S.Ct. 678, 683, 82 L.Ed. 936, the ultimate determination of severability will rarely turn on the presence or absence of such a clause. Thus, for example, the Court in Champlin, after stating the basic test quoted above, cited cases in which invalid statutory provisions had been severed despite the absence of any provision for severability. Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 635, 15 S.Ct. 912, 919, 39 L.Ed. 1108; Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 395—396, 14 S.Ct. 1047, 1053—1054, 38 L.Ed. 1014; Field v. Clark, 143 U.S. 649, 695—696, 12 S.Ct. 495, 505—506, 36 L.Ed.2d 294.
28
As this Court observed in Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 396, 14 S.Ct. 1047, 1053, 38 L.Ed. 1014, 'it is not to be presumed that the legislature was legislating for the mere sake of imposing penalties, but the penalties * * * were simply in aid of the main purpose of the statute. They may fail, and still the great body of the statute have operative force, and the force contemplated by the legislature in its enactment.'
29
The original Federal Kidnaping Act, 47 Stat. 326, provided:
'That whoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in interstate of foreign commerce, any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoever and held for ransom or reward shall, upon conviction, be punished by imprisonment in the penitentiary for such term of years as the court, in its discretion, shall determine * * *.'
30
The Senate Judiciary Committee had opposed capital punishment and had reported the kidnaping law in a version that authorized no penalty beyond 'imprisonment * * * for such term of years as the court, in its discretion, shall determine.' S.Rep.No. 765, 72d Cong., 1st Sess., 2 (1932); 75 Cong.Rec. 11878 (1932). In the ensuing debates, some members of the House opposed the death penalty on principle. 75 Cong.Rec. 13285, 13289—13290, 13294 (1932). Others argued that the threat of capital punishment would encourage kidnapers to kill their victims lest their testimony lead to conviction and execution. Id., at 13285, 13304. Most favored the death penalty in some form, see id., at 13283—13284, 13286—13287, 13295, but feared that efforts to persuade the Senate to accept a capital punishment provision would occasion further delay and might cause ultimate defeat. Id., at 13288, 13299, 13303. The majority therefore compromised their views and accepted the Senate version of the bill. Id., at 13304. See Bomar, The Lindbergh Law, 1 Law & Contemp.Prob. 435, 440 (1934).
31
Congressman Dyer of Missouri had stated that without the death penalty 'the legislation would not be worth anything, because every State now has a kidnaping law and few of them provide the death penalty.' 75 Cong.Rec. 13287 (1932).
32
Congressman Cochran of Missouri, who had introduced the original bill (H.R. 5657) with a death penalty clause, stressed that his objective was the prompt enactment of a federal kidnaping law; to that end, he was 'willing to go along and strike out the death penalty.' 75 Cong.Rec. 13296 (1932); see also id., at 13284, 13299, 13304. Congressman LaGuardia of New York put the matter succinctly: '(I)f what Congress is looking for is a headline, leave the death penalty in; but if we are looking for a real bill that will be a deterrent to kidnaping, take the Senate bill. (Applause.)' Id., at 13299. Shortly thereafter, the House passed the Senate version of the Act. Id., at 13304.
33
By 1394, the Senate's attitude toward capital punishment had changed markedly. In that year the Senate passed a bill (S. 2841) authorizing punishment 'by imprisonment for not less than 10 years, or by death' for killing or kidnaping in connection with a bank robbery. 78 Cong.Rec. 5738 (1934). The House Judiciary Committee amended the Senate provision to its present form, see 18 U.S.C. § 2113(e), limiting the death penalty to those cases where 'the verdict of the jury shall so direct.' H.R.Rep.No. 1461, 73d Cong., 2d Sess., 1 (1934).
The House Judiciary Committee had not forgotten that its attempt to include similar language in the Kidnaping Act of 1932, see H.R.Rep.No. 1493, 72d Cong., 1st Sess., 1 (1932), had been defeated 'in the rush to draft and enact a (kidnaping) bill suitable to both houses before adjournment.' Finley, The Lindbergh Law, 28 Geo.L.J. 908, 914, n. 24 (1940). Taking its cue from the bank robbery legislation, the House Committee found an ideal opportunity to reassert its 1932 position in a Senate bill (S. 2252) that had begun as a technical amendment to the 1932 Kidnaping Act. See 78 Cong.Rec. 5737 (1934). In S. 2252, the Senate retained the basic punishment of 'imprisonment in the penitentiary for such term of years as the court, in its discretion, shall determine,' see n. 29, supra, but the House Judiciary Committee added the alternative penalty of 'death if the verdict of the jury shall so recommend, provided that the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnaped person has been liberated unharmed * * *.' H.R.Rep.No. 1457, 73d Cong., 2d Sess., 1 (1934); 78 Cong.Rec. 8127—8128 (1934).
After initial disagreement in the Senate, id., at 8263—8264, and a conference, id., at 8322; H.R.Rep.No. 1595, 73d Cong., 2d Sess. (1934), the Senate accepted the House addition to S. 2252 without debate, 78 Cong.Rec. 8767, 8775, 8778, 8855—8857 (1934), and the resulting statute, 48 Stat. 781 (1934), employed substantially the same language as that now appearing in 18 U.S.C. § 1201(a). As amended in 1934, the Federal Kidnaping Act, 48 Stat. 781, thus provided:
'Whoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in interstate or foreign commerce, any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoever and held for ranson or reward or otherwise, except, in the case of a minor, by a parent thereof, shall, upon conviction, be punished (1) by death if the verdict of the jury shall so recommend, provided that the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnaped person has been liberated unharmed, or (2) if the death penalty shall not apply nor be imposed the convicted person shall be punished by imprisonment in the penitentiary for such term of years as the court in its discretion shall determine * * *.'
34
In late 1931 the American public became seriously concerned about the mounting incidence of professional kidnaping and the apparent inability of state and local authorities to cope with the interstate aspects of the problem. See Fisher & McGuire, Kidnaping and the So-Called Lindbergh Law, 12 N.Y.U.L.Q.Rev. 646, 652—653 (1935). Because of its geographical position, the city of St. Louis 'had experienced numerous kidnapings in which the handicap of state lines had hindered or defeated her police officers.' Bomar, The Lindbergh Law, 1 Law & Contemp.Prob. 435 (1934). Largely in response to this experience, Senator Patterson and Congressman Cochran, both of Missouri, introduced identical bills (S. 1525, H.R. 5657) in the House and Senate, 75 Cong.Rec. 275, 191 (1931), forbidding the transportation in interstate or foreign commerce of any person 'kidnaped * * * and held for ransom or reward, or * * * for any other unlawful purpose.' Several months after the kidnaping of the Lindbergh baby in March 1932, Congress enacted the first Federal Kidnaping Act, see n. 29, supra, a slightly modified version of the bills introduced by Patterson and Cochran.
35
See Bomar, The Lindbergh Law, 1 Law & Contemp.Prob. 435, 440 and n. 36. One might legitimately doubt the ability of the death penalty clause to achieve this supposed objective. In that regard, it has been observed that '(t)he advantage to the kidnapper in killing his victim is obvious and immediate, for the (Government's) best witness, perhaps its whole case, will be put out of the way. Thus a sentence of life imprisonment instead of death may not suffice to induce a kidnapper to refrain from killing his victim, even if the kidnapper is aware of the mitigation provision—itself a supposition not always true.' Note, A Rationale of the Law of Kidnapping, 53 Col.L.Rev. 540, 550 (1953).
Moreover, as this Court has interpreted the statute, the death penalty may be imposed so long as 'the kidnapped person * * * was still suffering from * * * injuries when liberated.' Robinson v. United States, 324 U.S. 282, 285, 65 S.Ct. 666, 668, 89 L.Ed. 944. As a result, '(o)nce (an) injury has taken place, the inducement held out by the statute necessarily is either to hold the victim until cure is effected or to do away with him so that evidence, both of the injury and of the kidnapping, is destroyed.' Id., at 289, 65 S.Ct. at 670 (Rutledge, J., dissenting).
36
Congress was certainly aware when it passed the original Kidnaping Act of 1932 that '(t)he victim may be murdered or slain' if the kidnaper 'has nothing to gain by (keeping) the victim * * * alive.' 75 Cong.Rec. 13285 (1932). Such considerations might have been influential in the omission of any death penalty provision in 1932, see Robinson v. United States, 324 U.S. 282, 289, n. 4, 65 S.Ct. 666, 670, 89 L.Ed. 944. (Rutledge, J., dissenting), but not a single member of Congress even hinted that the anti-kidnaping law should be defeated altogether in the interest of the victim's safety. Given the law's fundamental objective of preventing interstate kidnaping in the first instance, any such suggestion would have been unthinkable.
| 01
|
390 U.S. 538
88 S.Ct. 1239
20 L.Ed.2d 112
Elisha EDWARDS, Petitioner,v.PACIFIC FRUIT EXPRESS COMPANY.
No. 465.
Argued March 14, 1968.
Decided April 8, 1968.
Arne Werchick, San Francisco, Cal., for petitioner.
John J. Corrigan, Los Angeles, Cal., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The Federal Employers' Liability Act provides that every common carrier by railroad engaged in interstate commerce shall be liable in damages for the injury or death of its employees resulting in whole or in part from the negligence of the railroad or its agents or resulting from defects in its equipment due to its negligence.1 The question in this case is whether the respondent Pacific Fruit Express Company is a 'common carrier by railroad.'
2
The respondent is the largest company of its kind in the United States. It owns, maintains, and leases refrigerator cars to railroads to transport perishable products in commerce. Because it repairs its own cars, it also owns buildings, plants, switching tracks, and equipment to make these repairs. While the railroads to which its cars are leased transport them as directed, the respondent Express Company reserves the right to have the cars diverted to carry out its own business plans. The petitioner Edwards works as an iceman at one of respondent's repair and concentration plants. His duties are to transport ice and help store it in cars for carriage by the railroads. While driving a company motor vehicle in the performance of his duty as an employee for respondent, he was thrown violently to the ground, covered with burning gasoline and severely burned. He later brought this action against respondent, charging it was a 'common carrier by railroad' and liable for damages under the Federal Employers' Liability Act. Contending that it was not a railroad within the meaning of the Act, respondent company moved for a summary judgment which the District Court granted. The Court of Appeals affirmed, 378 F.2d 54, and we granted certiorari. 389 U.S. 912, 88 S.Ct. 239, 19 L.Ed.2d 259. We agree with both courts and affirm.
3
In conducting its business of providing and servicing insulated railroad cars for the carriage of perishable commodities, it is undoubtedly true that respondent performs some railroad functions. For example, it maintains and takes care of railroad cars which are leased to railroads for transportation in interstate commerce. It services these cars while in transit and controls their eventual destination. And respondent has yards and facilities for the repair and storage of its refrigerator cars. The question is whether such functions as these are sufficient to constitute respondent a 'common carrier by railroad.' For the answer to this question we must look to past judicial decisions interpreting the Federal Employers' Liability Act and also the legislative history surrounding the Act.
4
This Court has held that the words 'common carrier by railroad' mean 'one who operates a railroad as a means of carrying for the public,—that is to say, a railroad company acting as a common carrier. This view not only is in accord with the ordinary acceptation of the words, but is enforced by the mention of cars, engines, track, roadbed and other property pertaining to a going railroad * * *.' Wells Fargo & Co. v. Taylor, 254 U.S. 175, 187 188, 41 S.Ct. 93, 98, 65 L.Ed. 205. (Emphasis added.) This interpretation of the Act with its references to 'operat(ing) a railroad' and a 'going railroad' would indicate that the business of renting refrigerator cars to railroads or shippers and providing protective service in the transportation of perishable commodities is not of itself that of a 'common carrier by railroad.' And indeed the Wells Fargo decision held that express companies were not within the coverage of the Act.2 In an even earlier case, Robinson v. Baltimore & Ohio R. Co., 237 U.S. 84, 35 S.Ct. 491, 59 L.Ed. 849, this Court held that a Pullman car porter was not an employee of a railroad, hence, not within the coverage of the Act. These decisions are based on the rationale that there exist a number of activities and facilities which, while used in conjunction with railroads and closely related to railroading, are yet not railroading itself. In fact, this Court pointed out in the Robinson case, in discussing the coverage of the Federal Employers' Liability Act, that, 'It was well known that there were on interstate trains persons engaged in various services for other masters. Congress, familiar with this situation, did not use any appropriate expression which could be taken to indicate a purpose to include such persons among those to whom the railroad company was to be liable under the act.' 237 U.S., at 94, 35 S.Ct., at 494.
5
In 1939 Congress substantially amended the Federal Employers' Liability Act. Because of such decisions as Wells Fargo, supra, and Robinson, supra, one of the proposed amendments3 would have changed the coverage language of § 1 of the Act to read as follows: 'Every common carrier by railroad, including every express company, freight forwarding company, and sleeping-car company, engaged in commerce * * *.' Obviously the proposal was designed to nullify this Court's construction of the Act which had excluded employees of sleeping-car companies and express companies. In committee the proposal received little support and was even opposed by certain segments of organized labor, and it failed to pass.4 By refusing to broaden the meaning of railroads, Congress declined to extend the coverage of the Act to activities and facilities intimately associated with the business of common carrier by railroad.
6
Equally significant is the fact that in the years immediately preceding the 1939 amendment to the Federal Employers' Liability Act, Congress had enacted other major labor and social transportation legislation in which refrigerator car companies were expressly included. For example, in the decade of the 1930's Congress passed the following Acts which specifically extend coverage to 'any company * * * which operates any equipment or facilities or performs any service * * * in connection with * * * refrigeration or icing * * * of property transported by railroad * * *': (1) An amendment to the Railway Labor Act, 48 Stat. 1185 (1934), 45 U.S.C. § 151. The Act as originally passed, 44 Stat. 577 (1926), did not specifically include refrigerator car companies. Congress amended it to do so. (2) The Railroad Retirement Act of 1934, 48 Stat. 1283, held unconstitutional in Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468 (1935). (3) The Railroad Retirement Act (1935), 49 Stat. 967, and (4) The Carriers' Taxing Act, 49 Stat. 974 (1935), both or which were passed to overcome the constitutional objection to the Act of 1934. (5) The Railroad Retirement Act of 1937, 50 Stat. 307, 45 U.S.C. § 228a et seq. (1937). (6) The Carriers' Taxing Act of 1937, 50 Stat. 435. (7) The Railroad Unemployment Insurance Act, 52 Stat. 1094, 45 U.S.C. § 351 et seq. (1938). Yet in 1939, when it came to the amendment of the Federal Employers' Liability Act, Congress made no mention of refrigerator car companies.
7
In light of this history it is not surprising that there are only four reported cases where suits have been filed alleging that refrigerator car companies like respondent are covered by the Federal Employers' Liability Act—all refusing to hold liability under the Act. The first was Gaulden v. Southern Pacific Co., 174 F.2d 1022 (C.A. 9th Cir. 1949), where suit was brought by an iceman employed by the very refrigerator car company involved here. The Court of Appeals affirmed the District Court's opinion (78 F.Supp. 651) holding that such a refrigerator car company was not a 'common carrier by railroad.' In a subsequent case the Third Circuit, citing the Gaulden opinion, held that another refrigerator car company 'which conducted a business similar in all critical aspects to that of' Pacific Fruit Express Company, was not a 'common carrier by railroad.' Hetman v. Fruit Growers Express Co., 346 F. 2d 947 (C.A.3d Cir., 1965). There have also been two state cases involving this very respondent which denied liability. In both Aguirre v. Southern Pacific Co., 232 Cal.App.2d 636, 43 Cal.Rptr. 73, and Moleton v. Union Pac. R. Co., 118 Utah 107, 219 P.2d 1080, cert. denied, 340 U.S. 932, 71 S.Ct. 495, 95 L.Ed. 672, the courts concluded that respondent was not a 'common carrier by railroad.'
8
Thus, for 60 years the Federal Employers' Liability Act has been administered with the understanding that refrigerator car companies are not included within the terms of the Act. During that time injured employees have been taken care of under state compensation laws. In fact the petitioner here has already drawn more than $6,000 under the California compensation law. The question of whether employees shall rely on state compensation or on the Federal Employers' Liability Act is a pure question of legislative policy, concerning which apparently even the labor organizations most interested have been divided. Under these circumstances we do not think this Court should depart from 60 years of history to do what is a job for Congress.
9
Affirmed.
1
35 Stat. 65, as amended, 45 U.S.C. § 51.
2
Express companies were again excluded in the subsequent case of Jones v. New York Cent. R. Co., 182 F.2d 326 (C.A.6th Cir. 1950), relying on the Wells Fargo decision.
3
S. 1708, 76th Cong., 1st Sess. (1939).
4
Hearings before Subcommittee of the Senate Committee on the Judiciary on Amending the Federal Employers' Liability Act, 76th Cong., 1st Sess., 57, 58 (1939).
| 78
|
390 U.S. 544
88 S.Ct. 1222
20 L.Ed.2d 117
In the Matter of John RUFFALO, Jr., Petitioner.
No. 73.
Argued March 4, 1968.
Decided April 8, 1968.
Rehearing Denied May 27, 1968.
See 391 U.S. 961, 88 S.Ct. 1833.
Craig Spangenberg, Cleveland, Ohio, for petitioner.
Thomas V. Koykka, Cleveland, Ohio, for Ohio State and Mahoning County Bar Assns.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner was ordered indefinitely suspended from the practice of law by the Supreme Court of Ohio on two findings of alleged misconduct. Mahoning County Bar Ass'n v. Ruffalo, 176 Ohio St. 263, 199 N.E.2d 396. That order became final and is not here on review. The Federal District Court, after ordering petitioner to show cause why he should not be disbarred, found that there was no misconduct. In re Ruffalo, 249 F.Supp. 432 (D.C.N.D.Ohio). The Court of Appeals likewise ordered petitioner to show cause why he should not be stricken from the roll of that court on the basis of Ohio's disbarment order. The majority held that while one of the two charges might not justify discipline, the other one did; and it disbarred petitioner from practice in that Court. 370 F.2d 447 (C.A.6th Cir.). The dissenting judge thought that neither charge justified suspension from practice.1 Id., at 460. The case is here on a writ of certiorari. 389 U.S. 815, 88 S.Ct. 30, 19 L.Ed.2d 66.
2
Petitioner was an active trial lawyer who handled many Federal Employers' Liability Act cases. The Association of American Railroads investigated his handling of claims and referred charges of impropriety to the President of the Mahoning County Bar Association who was also local counsel for the Baltimore & Ohio Railroad Co. See In re Ruffalo, 249 F.Supp. 432, 435, n. 3. The Mahoning County Bar Association then filed the charges against petitioner.
3
In the state court proceedings, upon which the decision of the Court of Appeals relied (see Rule 6(3) of the United States Court of Appeals for the Sixth Circuit), the Ohio Board of Commissioners on Grievances and Discipline originally charged petitioner with 12 counts of misconduct. Charges Nos. 4 and 5 accused petitioner of soliciting FELA plaintiffs as clients through an agent, Michael Orlando. At the hearings which followed, both Orlando and petitioner testified that Orlando did not solicit clients for petitioner but merely investigated FELA cases for him. It was brought out that some of Orlando's investigations involved cases where his employer, the Baltimore & Ohio Railroad, was defendant. Immediately after hearing this testimony, the Board, on the third day of hearings, added a charge No. 13 against petitioner based on his hiring Orlando to investigate Orlando's own employer. Counsel for petitioner objected, stating:
4
'Oh, I object to that very highly. There is nothing morally wrong and there is nothing legally wrong with it. * * * When does the end of these amendments come? I mean the last minute you are here, (counsel for the county Bar Association) may bring in another amendment. I think this gentleman (petitioner) has a right to know beforehand what the charges are against him and be heard on those charges.' Motion to strike charge No. 13 was denied, but the Board gave petitioner a continuance in order to have time to respond to the new charge.
5
The State Board found petitioner guilty of seven counts of misconduct, including No. 13. On review, the Supreme Court of Ohio found the evidence sufficient to sustain only two charges, one of them being No. 13, but concluded that the two violations required disbarment. The only charge on which the Court of Appeals acted was No. 13, which reads as follows:
6
'That Respondent did conspire with one, Michael Orlando, and paid said Michael Orlando moneys for preparing lawsuits against the B. & O. Railroad, the employer of said Michael Orlando, during all the periods of time extending from 1957 to July of 1961, well knowing that said practice was deceptive in its nature and was morally and legally wrong as respects the employee, Michael Orlando, toward his employer, the B. & O. Railroad Company.'
7
Through admission to practice before a federal court is derivative from membership in a state bar, disbarment by the State does not result in automatic disbarment by the federal court. Though that state action is entitled to respect, it is not conclusively binding on the federal courts. Theard v. United States, 354 U.S. 278, 281—282, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342.
8
Petitioner, active in the trial of FELA cases, hired a railroad man to help investigate the cases. He was Orlando, a night-shift car inspector for the Baltimore & Ohio Railroad Co. There was no evidence that Orlando ever investigated a case in the yard where he worked as inspector. There was no evidence that he ever investigated on company time. Orlando had no access to confidential information; and there was no claim he ever revealed secret matters or breached any trust. It is clear from the record that petitioner chose a railroad man to help him investigate those claims because Orlando knew railroading.
9
One federal guidepost in this field is contained in § 10 of the Federal Employers' Liability Act, as amended, 53 Stat. 1404, 45 U.S.C. § 60, which was enacted to encourage employees of common carriers to furnish information 'to a person in interest,' as to facts incident to the injury or death of an employee.2
10
The Ohio Supreme Court, however, concluded that 'one who believes that it is proper to employ and pay another to work against the interests of his regular employer is not qualified to be a member of the Ohio Bar.' 176 Ohio St., at 269, 199 N.E.2d, at 401.
11
We are urged to hold that petitioner's efforts to conceal this employment relationship and the likelihood of a conflict of interest require the federal courts to respect the decision of the Ohio Supreme Court as being within the range of discretion.
12
We do not pursue that inquiry. Nor do we stop to inquire whether the proceeding was defective because the Bar Association, the agency that made the charges against petitioner, was headed by counsel for the Baltimore & Ohio Railroad Co. against which petitioner filed several of his claims. For there is one other issue dispositive of the case which requires reversal.
13
As noted, the charge (No. 13) for which petitioner stands disbarred was not in the original charges made against him. It was only after both he and Orlando had testified that this additional charge was added. Thereafter, no additional evidence against petitioner relating to charge No. 13 was taken. Rather, counsel for the county bar association said:
14
'We will stipulate that as far as we are concerned, the only facts that we will introduce in support of Specification No. 13 are the statements that Mr. Ruffalo has made here in open court and the testimony of Mike Orlando from the witness stand. Those are the only facts we have to support this Specification No. 13.'
15
There was de novo hearing before the Court of Appeals. Rather, it rested on the Ohio court's record and findings:
16
'We have before us, and have reviewed, the entire record developed by the Ohio proceedings, but think it proper to dispose of the matter primarily upon the charges on which the Ohio Court disciplined Mr. Ruffalo. The facts as to these are not in dispute. We consider whether we find insupportable the Ohio Court's determination that such facts disclosed unprofessional conduct warranting the discipline imposed and whether they warrant similar discipline by us.' 370 F.2d, at 449. The Court of Appeals proceeded to analyze the 'admitted facts of Charge No. 13' as found by the Ohio court and the Ohio court's ruling on those facts. Id., at 450—452.
17
If there are any constitutional defects in what the Ohio court did concerning Charge 13, those defects are reflected in what the Court of Appeals decided. The Court of Appeals stated:
18
'We do not find in the record of the state proceedings, 'Such an infirmity of proof as to the facts found to have established the want of * * * (Ruffalo's) fair private and professional character' to lead us to a conviction that we cannot, consistent with our duty, 'accept as final the conclusion' of the Supreme Court and the Ohio bar.' Id., at 453.
19
We turn then to the question whether in Ohio's procedure there was any lack of due process.
20
Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer. Ex parte Garland, 4 Wall. 333, 380, 18 L.Ed. 366; Spevack v. Klein, 385 U.S. 511, 515, 87 S.Ct. 625, 628, 17 L.Ed.2d 574. He is accordingly entitled to procedural due process, which includes fair notice of the charge. See In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682. It was said in Randall v. Brigham, 7 Wall. 523, 540, 19 L.Ed. 285, that when proceedings for disbarment are 'not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defence.' Therefore, one of the conditions this Court considers in determining whether disbarment by a State should be followed by disbarment here is whether 'the state procedure from want of notice or opportunity to be heard was wanting in due process.' Selling v. Radford, 243 U.S. 46, 51, 37 S.Ct. 377, 379, 61 L.Ed. 585.
21
In the present case petitioner had no notice that his employment of Orlando would be considered a disbarment offense until after both he and Orlando had testified at length on all the material facts pertaining to this phase of the case. As Judge Edwards, dissenting below, said, 'Such procedral violation of due process would never pass muster in any normal civil or criminal litigation.'3 370 F.2d, at 462.
22
These are adversary proceedings of a quasi-criminal nature. Cf. In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527. The charge must be known before the proceedings commence. They become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused. He can then be given no opportunity to expunge the earlier statements and start afresh.4
23
How the charge would have been met had it been originally included in those leveled against petitioner by the Ohio Board of Commissioners on Grievances and Discipline no one knows.
24
This absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges deprived petitioner of procedural due process.
25
Reversed.
26
Mr. Justice BLACK, for reasons stated in the Court's opinion and many others, agrees with the Court's judgment and opinion.
27
Mr. Justice STEWART took no part in the decision of this case.
28
Mr. Justice HARLAN, concurring in the result.
29
I see no need to decide whether the notice given petitioner of the charge that formed the basis of his subsequent federal disbarment was adequate to afford him constitutional due process in the state proceedings. For 1 think that Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342, leaves us free to hold, as I would, that such notice should not be accepted as adequate for the purposes of disbarment from a federal court. On that basis, I concur in the judgment of the Court.
30
Mr. Justice WHITE, with whom Mr. Justice MARSHALL joins, concurring in the result.
31
The Court reverses petitioner's disbarment by the Court of Appeals for the Sixth Circuit because petitioner had inadequate notice prior to his earlier state disbarment proceeding of the charges which the Mahoning County Bar Association was bringing against him at that proceeding. The state disbarment, however, is not before us. We denied a petition for certiorari seeking review of it. Ruffalo v. Mahoning County Bar Ass'n, 379 U.S. 931, 85 S.Ct. 328, 13 L.Ed.2d 342 (1964). Our writ in the instant case extends only to petitioner's disbarment by the Court of Appeals for the Sixth Circuit. The question therefore is whether the defective notice in petitioner's state disbarment proceeding so infected that federal proceeding that justice requires reversal of the federal determination.
32
In answering that question we must inquire into the nature of the proceeding that took place in the Court of Appeals. That court was obligated to determine for itself the facts of the attorney's conduct and whether that conduct had been so grievous as to require disbarment. Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957). The Court of Appeals asked petitioner to 'show cause if any he has * * * why he should not be stricken from the roll of counsel of this Court.' In response to that order petitioner filed a response and brief. The Ohio State Bar Association filed a brief also, urging petitioner's disbarment. The cause was argued orally to a panel of the Court of Appeals.
33
In his brief and oral argument, petitioner did not take issue with the determinations of fact that had been made by the Ohio Supreme Court. The Court of Appeals gave petitioner a full opportunity to assert that the state court had not accurately determined the facts of his conduct—and to assert, had he wished to do so, that the late point at which he learned that employing car inspector Orlando would be one ground for disbarment had prejudiced the factual record formed in the state court. Petitioner, not disputing the lower court's factual conclusions, made no such objection.1 Instead petitioner's response in the Court of Appeals was that the agreed facts of his conduct were not a sufficient basis for disbarment. In reaching its conclusion on that question the Court of Appeals property gave weight to the views of the state court judges who had passed on the issue. Petitioner, however, had full and fair opportunity to put to the Court of Appeals his contrary view. I must therefore conclude that no procedural defect supports reversal of the decision of the Court of Appeals, and that the asserted defect relied upon by the Court, since not raised by petitioner below or here, is not properly before us. I am therefore constrained to deal with the central questions posed by this case, whether it was proper for the Court of Appeals, in making the independent determination of petitioner's fitness to remain a member of its bar mandated by Theard v. United States, supra, to disbar petitioner for having hired an employee of the B. & O. Railroad to investigate facts relevant to damage suits against the railroad brought by other employees who had retained petitioner to represent them. We must determine whether the Court of Appeals satisfied its duty 'not to disbar except upon the conviction that, under the principles of right and justice, (it is) constrained so to do.' Selling v. Radford, 243 U.S. 46, 51, 37 S.Ct. 377, 379, 61 L.Ed. 585 (1917).
34
A relevant inquiry in appraising a decision to disbar is whether the attorney stricken from the rolls can be deemed to have been on notice that the courts would condemn the conduct for which he was removed. The Court of Appeals for the Sixth Circuit had provided petitioner and the other members of its bar with a general standard for disbarment:
35
'When it is shown to the court that any member of its bar has been suspended or disbarred from practice in any other court of record, or has been guilty of conduct unbecoming a member of the bar of the court, the member will be forthwith suspended from practice before the court and notice of his suspension will be mailed to him, and unless he shows good cause to the contrary within 40 days thereafter, he will be further suspended or disbarred from practice before the court.' Rule 6(3), Court of Appeals for the Sixth Circuit.2
36
Even when a disbarment standard is as unspecific as the one before us, members of a bar can be assumed to know that certain kinds of conduct, generally condemned by responsible men, will be grounds for disbarment. This class of conduct certainly includes the criminal offenses traditionally known as malum in se. It also includes conduct which all responsible attorneys would recognize as improper for a member of the profession.
37
The conduct for which the Court of Appeals disbarred petitioner cannot, how, ever, be so characterized. Some responsible attorneys, like the judge who refused to order petitioner disbarred from practice in the Northern District of Ohio, 249 F.Supp. 432 (1965), would undoubtedly find no impropriety at all in hiring a railroad worker, a man with the knowledge and experience to select relevant information and appraise relevant facts, to 'moonlight'—work on his own time collecting data. On the other hand some, like the officials of the Mahoning County and Ohio State Bar Associations, would believe that encouraging a man to do work arguably at odds with his chief employer's interests is unethical. The appraisal of petitioner's conduct is one about which reasonable men differ, not one immediately apparent to any scrupulous citizen who confronts the question.3 I would hold that a federal court may not deprive an attorney of the opportunity to practice his profession on the basis of a determination after the fact that conduct is unethical if responsible attorneys would differ in appraising the propriety of that conduct. I express no opinion about whether the Court of Appeals, as part of a code of specific rules for the members of its bar, could proscribe the conduct for which petitioner was disbarred.
1
After the Court of Appeals decision disbarring petitioner, the District Court, which had deferred a final order pending the decision of the Court of Appeals, suspended petitioner from practice in the District Court. The District Court judge said he had 'abiding conviction' that his prior decision finding no grounds for suspension was correct but concluded that orderly administration of justice required the District Court to defer to its Court of Appeals. The District Court's order is not before us for review.
2
45 U.S.C. § 60 provides in part:
'Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest, or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing voluntarily such information to a person in interest, shall, upon conviction thereof, be punished by a fine of not more than $1,000 or imprisoned for not more than one year, or by both such fine and imprisonment, for each offense: Provided, That nothing herein contained shall be construed to void any contract, rule, or regulation with respect to any information contained in the files of the carrier, or other privileged or confidential reports.'
3
Rule 15(a) Federal Rules of Civil Procedure, provides in part:
'A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court of by written consent of the adverse party; and leave shall be freely given when justice so requiries.'
4
The Ohio State Bar Association and Mahoning County Bar Association, amici curiae in support of the order of the Court of Appeals, argue that there was no due process violation because the State Board gave petitioner several months to respond to charge No. 13. This argument overlooks the fact that serious prejudice to petitioner may well have occurred because of the content of the original 12 specifications of misconduct. He may well have been lulled 'into a false sense of security' (Bouie v. City of Columbia, 378 U.S. 347, 352, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894) that he could rebut charges Nos. 4 and 5 by proof that Orlando was his investigator rather than a solicitor of clients. In that posture he had 'no reason even to suspect' (ibid.) that in doing so he would be, by his own testimony, irrevocably assuring his disbarment under charges not yet made.
1
Indeed, petitioner did not suggest to this Court, as a reason for reversal, that he had learned of the ground for disbarment too late in the state court proceeding.
2
The Court of Appeals did not apply its rule literally: 'We should preliminarily observe that our own Rule 6(3) * * * could be read as automatically striking from our roll of counsel the name of any lawyer disbarred in any court of record. It has been amended and we consider this matter in keeping with the requirements and admonitions of Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342, and Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585. These decisions forbid Federal Courts From acting in total reliance on a state judgment. We have before us, and have reviewed, the entire record developed by the Ohio proceedings, but think it proper to dispose of the matter primarily upon the charges on which the Ohio Court disciplined Mr. Ruffalo. The facts as to these are not in dispute.' 370 F.2d 447, 449 (1966) (note omitted).
3
As the Court points out, there was no evidence before any of the state or federal courts which appraised petitioner's conduct that the man he employed had ever investigated a case in the yard where he worked, investigated on company time, or been given access to confidential railroad information.
| 56
|
390 U.S. 593
88 S.Ct. 1229
20 L.Ed.2d 154
Norman FONTAINEv.CALIFORNIA.
No. 854, Misc.
Decided April 8, 1968.
Rehearing Denied May 20, 1968.
See 391 U.S. 929, 88 S.Ct. 1813.
Thomas C. Lynch, Atty. Gen. of California, and Derald E. Granberg and Louise H. Renne, Deputy Attys. Gen., for respondent.
PER CURIAM.
1
The petitioner allegedly made two sales of marihuana to an informer in June and July 1963. He was not indicted until mid-October 1963. According to the State, the delay was due to the State's desire to use the informer in other narcotics cases. By the time the case came to trial, the informer had disappeared. Evidence as to the alleged purchases from petitioner consisted of taped telephone conversations which petitioner claims are ambiguous, and the testimony of police officials. Some of the police observed the transactions between petitioner and the informer, but under circumstances which petitioner argues leave substantial doubt that the seller was in fact the petitioner.
2
The jury found petitioner guilty, but the trial judge ordered a new trial because of the State's delay which had made the informer unavailable. The California District Court of Appeal reversed the trial judge's ruling, 237 Cal.App.2d 320, 46 Cal.Rptr. 855 (1965). It held that the failure to produce the informer did not deny a fair trial.
3
At the trial, which took place before our decision in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the prosecutor had commented upon petitioner's failure to take the stand. His comment was as follows:
4
'How do we know the defendant knew it was marijuana? Well, I guess if he didn't know it was marijuana he could have taken the stand and told us that he didn't know it was marijuana and thereby subject himself to cross-examination, if he chose not to.
5
'His Honor will instruct you then on the effect that it may have, any conclusions or inferences you may draw from the fact that he wouldn't take the stand and testify * * *.
6
'Well, Ladies and Gentlemen, that is the case. You heard the evidence. You heard the arguments of counsel. You haven't heard from the defendant. I will ask you to take that into consideration, take into consideration the inference which you may draw because he didn't choose to defend himself and what he may have said in that respect.' The Trial judge had instructed the jury that it could draw adverse inferences from petitioner's silence.* Griffin was decided between the time of trial and the appellate decision. The District Court of Appeal held that the prosecutor's argument and the judge's comment violated petitioner's privilege against self-incrimination under Griffin. However, the Court of Appeal found the constitutional error harmless under the California harmless-error rule prevailing at that time. The State Supreme Court declined to review the case.
7
Subsequently, we decided Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which disapproved of California's harmless-error rule as applied to federal constitutional errors. Thereafter, we granted a petition for a writ of certiorari in the instant case, vacated the judgment below, and remanded for further consideration in light of Chapman. 386 U.S. 263, 87 S.Ct. 1036, 18 L.Ed.2d 45 (1967). On remand, the District Court of Appeal reinstated its former opinion except that it rewrote the portion dealing with harmless error. This time it recited that the constitutional error in this case was harmless 'beyond a reasonable doubt'—the standard announced in Chapman. People v. Fontaine, 252 Cal.App.2d 73, 60 Cal.Rptr. 325.
8
The disputed issues at the trial centered principally upon whether the petitioner knowingly transferred wax bags of marihuana to the informer. The petitioner claimed prejudice as a result of the unavailability of the informer. We need not decide whether this, standing alone, would entitle the petitioner to reversal of the decision below because it is clear that in the absence of testimony of the informer supporting the State's version of the disputed issues, it was error for the court below to hold that the comments of the prosecutor and the trial judge were harmless 'beyond a reasonable doubt.'
9
These comments upon petitioner's failure to take the stand violated his constitutional privilege against self-incrimination. Griffin v. State of California, supra. The jury had been asked to convict petitioner on the basis of circumstantial evidence, in the absence of testimony from the State's agent who allegedly made the purchases from petitioner. In these circumstances, the State has not met its burden of proving beyond a reasonable doubt that the erroneous comments and instruction did not contribute to petitioner's conviction. Chapman v. State of California, 386 U.S., at 24, 25—26, 87 S.Ct. at 828—829.
10
Accordingly, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted and the judgment is reversed.
11
Reversed.
12
Mr. Justice BLACK and Mr. Justice HARLAN would affirm the judgment of the state court.
*
It is a Constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus, whether or not he does testify rests entirely in his own decision. As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.'
| 01
|
390 U.S. 676
88 S.Ct. 1298
20 L.Ed.2d 225
INTERSTATE CIRCUIT, INC., Appellant,v.CITY OF DALLAS. UNITED ARTISTS CORPORATION, Appellant, v. CITY OF DALLAS.
Nos. 56, 64.
Argued Jan. 15 and 16, 1968.
Decided April 22, 1968.
[Syllabus from pages 676-677 intentionally omitted]
Louis Nizer, New York City, and Grover Hartt, Jr., Dallas, Tex., for appellants.
N. Alex Bickley, Dallas, Tex., for appellee.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Appellants are an exhibitor and the distributor of a motion picture named 'Viva Maria,' which, pursuant to a city ordinance, the Motion Picture Classification Board of the appellee City of Dalas classified as 'not suitable for young persons.' A county court upheld the Board's determination and enjoined exhibition of the film without acceptance by appellants of the requirements imposed by the restricted classification. The Texas Court of Civil Appeals affirmed,1 and we noted probable jurisdiction, 387 U.S. 903, 87 S.Ct. 1685, 18 L.Ed.2d 620, to consider the First and Fourteenth Amendment issues raised by appellants with respect to appellee's classification ordinance.
2
That ordinance, adopted in 1965, may be summarized as follows.2 It establishes a Motion Picture Classification Board, composed of nine appointed members, all of whom serve without pay. The Board classifies films as 'suitable for young persons' or as 'not suitable for young persons,' young persons being defined as children who have not reached their 16th birthday. An exhibitor must be specially licensed to show 'not suitable' films.
3
The ordinance requires the exhibitor, before any initial showing of a film, to file with the Board a proposed classification of the film together with a summary of its plot and similar information. The proposed classification is approved if the Board affirmatively agrees with it, or takes no action upon it within five days of its filing.
4
If a majority of the Board is dissatisfied with the proposed classification, the exhibitor is required to project the film before at least five members of the Board at the earliest practicable time. At the showing, the exhibitor may also present testimony or other support for his proposed classification. Within two days the Board must issue its classification order. Should the exhibitor disagree, he must file within two days3 a notice of nonacceptance. The Board is then required to go to court within three days to seek a temporary injunction, and a hearing is required to be set on that application within five days thereafter; if the exhibitor agrees to waive notice and requests a hearing on the merits of a permanent injunction, the Board is required to waive its application for a temporary injunction and join in the exhibitor's request. If an injunction does not issue within 10 days of the exhibitor's notice of nonacceptance, the Board's classification order is suspended.4 The ordinance does not define the scope of judicial review of the Board's determination, but the Court of Civil Appeals held that de novo review in the trial court was required.5 If an injunction issues and the exhibitor seeks appellate review, or if an injunction is refused and the Board appeals, the Board must waive all statutory notices and times, and join a request of the exhibitor, to advance the case on the appellate court's docket, i.e., do everything it can to assure a speedy determination.
5
The ordinance is enforced primarily by a misdemeanor penalty: an exhibitor is subject to a fine of up to $200 if he exhibits a film that is classified 'not suitable for young persons' without advertisements clearly stating its classification or without the classification being clearly posted, exhibits on the same program a suitable and a not suitable film, knowingly admits a youth under age 16 to view the film without his guardian or spouse accompanying him,6 makes any false or willfully misleading statement in submitting a film for classification, or exhibits a not suitable film without having a valid license therefor.
6
The same penalty is applicable to a youth who obtains admission to a not suitable film by falsely giving his age as 16 years or over, and to any person who sells or gives to a youth under 16 a ticket to a not suitable film, or makes any false statements to enable such a youth to gain admission.7
7
Other means of enforcement, as against the exhibitor, are provided. Repeated violations of the ordinance, or persistent failure 'to use reasonable diligence to determine whether those seeking admittance to the exhibition of a film classified 'not suitable for young persons' are below the age of sixteen,' may be the basis for revocation of a license to show not suitable films.8 Such a persistent failure, or exhibition of a not suitable film by an exhibitor with three convictions under the ordinance, inter alia, are defined as 'public nuisances,' which the Board may seek to restrain by a suit for injunctive relief.
8
The substantive standards governing classification are as follows:
9
"Not suitable for young persons' means:
10
'(1) Describing or portraying brutality, criminal violence or depravity in such a manner as to be, in the judgment of the Board, likely to incite or encourage crime or delinquency on the part of young persons; or
11
'(2) Describing or portraying nudity beyond the customary limits of candor in the community, or sexual promiscuity or extra-marital or abnormal sexual relations in such a manner as to be, in the judgment of the Board, likely to incite or encourage delinquency or sexual promiscuity on the part of young persons or to appeal to their prurient interest.
12
'A film shall be considered 'likely to incite or encourage' crime delinquency or sexual promiscuity on the part of young persons, if, in the judgment of the Board, there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted.
13
A film shall be considered as appealing to 'prurient interest' of young persons, if in the judgment of the Board, its calculated or dominent effect on young persons is substantially to arouse sexual desire. In determining whether a film is 'not suitable for young persons,' the Board shall consider the film as a whole, rather than isolated portions, and shall determine whether its harmful effects outweigh artistic or educational values such film may have for young persons.'
14
Appellants attack those standards as unconstitutionally vague. We agree. Motion pictures are, of course, protected by the First Amendment, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), and thus we start with the premise that '(p)recision of regulation must be the touchstone,' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963). And while it is true that this Court refused to strike down, against a broad and generalized attack, a prior restraint requirement that motion pictures be submitted to censors in advance of exhibition, Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961), there has been no retreat in this area from rigorous insistence upon procedural safeguards and judicial superintendence of the censor's action. See Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).9
15
In Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948), this Court struck down as vague and indefinite a statutory standard interpreted by the state court to be 'criminal news or stories of deeds of bloodshed or lust, so massed as to become vehicles for inciting violent and depraved crimes * * *.' Id., at 518, 68 S.Ct. at 676. In Joseph Burstyn, Inc. v. Wilson, supra, the Court dealt with a film licensing standard of 'sacrilegious,' which was found to have such an all-inclusive definition as to result in 'substantially unbridled censorship.' 343 U.S., at 502, 72 S.Ct. 777. Following Burstyn, the Court held the following film licensing standards to be unconstitutionally vague: 'of such character as to be prejudicial to the best interests of the people of said City,' Gelling v. State of Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359 (1952); 'moral, educational or amusing and harmless,' Superior Films, Inc. v. Department of Education, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329 (1954); 'immoral,' and 'tend to corrupt morals,' Commercial Pictures Corp. v. Regents, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329 (1954); 'approve such films * * * (as) are moral and proper; * * * disapprove such as are cruel, obscene, indecent or immoral, or such as tend to debase or corrupt morals.' Holmby Productions, Inc. v. Vaughn, 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770 (1955).10 See also Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 699—702, 79 S.Ct. 1362, 1370—1372, 3 L.Ed.2d 1512 (Clark, J., concurring in result).
16
The vice of vagueness is particularly pronounced where expression is sought to be subjected to licensing. It may be unlikely that what Dallas does in respect to the licensing of motion pictures would have a significant effect upon film makers in Hollywood or Europe. But what Dallas may constitutionally do, so may other cities and States. Indeed, we are told that this ordinance is being used as a model for legislation in other localities. Thus, one who wishes to convey his ideas through that medium, which of course includes one who is interested not so much in expression as in making money, must consider whether what he proposes to film, and how he proposes to film it, is within the terms of classification schemes such as this. If he is unable to determine what the ordinance means, he runs the risk of being foreclosed, in practical effect, from a significant portion of the movie-going public. Rather than run that risk, he might choose nothing but the innocuous, perhaps save for the so-called 'adult' picture. Moreover, a local exhibitor who cannot afford to risk losing the youthful audience when a film may be of marginal interest to adults—perhaps a 'Viva Maria'—may contract to show only the totally inane. The vast wasteland that some have described in reference to another medium might be a verdant paradise in comparison. The First Amendment interests here are, therefore, broader than merely those of the film maker, distributor, and exhibitor, and certainly broader than those of youths under 16.
17
Of course, as the Court said in Joseph Burstyn, Inc. v. Wilson, 343 U.S., at 502, 72 S.Ct. at 781, '(i)t does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places.' What does follow at the least, as the cases above illustrate, is that the restrictions imposed cannot be so vague as to set 'the censor * * * adrift upon a boundless sea * * *,' id., at 504, 72 S.Ct. at 782. In short, as Justice Frankfurter said, 'legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion * * *,' Kingsley Int'l Pictures Corp. v. Regents, 360 U.S., at 694, 79 S.Ct. at 1368, (concurring in result), one reason being that 'where licensing is rested, in the first instance, in an administrative agency, the available judicial review is in effect rendered inoperative (by vagueness),' Joseph Burstyn, Inc. v. Wilson, supra, 343 U.S. at 532, 72 S.Ct. at 796 (concurring opinion). Thus, to the extent that vague standards do not sufficiently guide the censor, the problem is not cured merely by affording de novo judicial review. Vague standards, unless narrowed by interpretation, encourage erratic administration whether the censor be administrative or judicial; 'individual impressions become the yardstick of action, and result in regulation in accordance with the beliefs of the individual censor rather than regulation by law,' Kingsley Int'l Pictures Corp. v. Regents, supra, 360 U.S. at 701, 79 S.Ct. at 1372 (Clark, J., concurring in result).11
18
The dangers inherent in vagueness are strikingly illustrated in these cases. Five members of the Board viewed 'Viva Maria.' Eight members voted to classify it as 'not suitable for young persons,' the ninth member not voting. The Board gave no reasons for its determination.12 Appellee alleged in its petition for an injunction that the classification was warranted because the film portrayed 'sexual promiscuity in such a manner as to be in the judgment of the Board likely to incite or encourage delinquency or sexual promiscuity on the part of young persons or to appeal to their prurient interests.' Two Board members, a clergyman and a lawyer, testified at the hearing. Each adverted to several scenes in the film, which, in their opinion, portrayed male-female relationships in a way contrary to 'acceptable and approved behavior.' Each acknowledged, in reference to scenes in which clergymen were involved in violence, most of which was farcial, that 'sacrilege' might have entered into the Board's determination. And both conceded that the asserted portrayal of 'sexual promiscuity' was implicit rather than explicit, i.e., that it was a product of inference by, and imagination of, the viewer.
19
So far as 'judicial superintendence'13 and de novo review are concerned, the trial judge, after viewing the film and hearing argument, stated merely: 'Oh, I realize you gentlemen might be right. There are two or three features in this picture that look to me would be unsuitable to young people. * * * So I enjoin the exhibitor * * * from exhibiting it.'14 Nor did the Court of Civil Appeals provide much enlightenment or a narrowing definition of the ordinance. United Artists argued that the obscenity standards similar to those set forth in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and other decisions of this Court ought to be controlling.15 The majority of the Court of civil Appeals held, alternatively, (1) that such cases were not applicable because the legislation involved in them resulted in suppression of the offending expression rather than its classification; (2) that if obscenity standards were applicable then 'Viva Maria' was obscene as to adults (a patently untenable conclusion) and therefore entitled to no constitutional protection; and (3) that if obscenity standards were modified as to children, the film was obscene as to them, a conclusion which was not in terms given as a narrowing interpretation of any specific provision of the ordinance. 402 S.W.2d 770, 775—776. In regard to the last alternative holding, we must conclude that the court in effect ruled that the 'portrayal * * * of sexual promiscuity as acceptable,' id., at 775, is in itself obscene as to children.16 The court also held that the standards of the ordinance were 'sufficiently definite.' Ibid.
20
Thus, we are left merely with the film and directed to the words of the ordinance. The term 'sexual promiscuity' is not there defined17 and was not interpreted in the state courts. It could extend, depending upon one's moral judgment, from the obvious to any sexual contacts outside a marital relationship. The determinative manner of the 'describing or portraying' of the subjects covered by the ordinance (see supra, at 681), including 'sexual promiscuity,' is defined as 'such a manner as to be, in the judgment of the Board, likely to incite or encourage delinquency or sexual promiscuity on the part of young persons.' A film is so "likely to incite or encourage' crime delinquency or sexual promiscuity on the part of young persons, if, in the judgment of the Board, there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted.' It might be excessive literalism to insist, as do appellants, that because those last six adjectives are stated in the disjunctive, they represent separate and alternative subtle determinations the Board is to make, any of which results in a not suitable classification. Nonetheless, '(w)hat may be to one viewer the glorification of an idea as being 'desirable, acceptable or proper' may to the notions of another be entirely devoid of such a teaching. The only limits on the censor's discretion is his understanding of what is included within the term 'desirable, acceptable or proper.' This is nothing less than a roving commission * * *.' Kingsley Int'l Pictures Corp. v. Regents, 360 U.S., at 701, 79 S.Ct. 1362, 1372, 3 L.Ed.2d 1512 (Clark, J., concurring in result).18
21
Vagueness and the attendant evils we have earlier described, see supra, at 1302—1304, are not rendered less objectionable because the regulation of expression is one of classification rather than direct suppression. Cf. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963).19 Nor is it an answer to an argument that a particular regulation of expression is vague to say that it was adopted for the salutary purpose of protecting children. The permissible extent of vagueness is not directly proportional to, or a function of, the extent of the power to regulate or control expression with respect to children. As Chief Judge Fuld has said:
22
'It is * * * essential that legislation aimed at protecting children from allegedly harmful expression—no less than legislation enacted with respect to adults—be clearly drawn and that the standards adopted be reasonably precise so that those who are governed by the law and those that administer it will understand its meaning and application.' People v. Kahan, 15 N.Y.2d 311, 313, 258 N.Y.S.2d 391, 393, 206 N.E.2d, 333, 335 (1965) (concurring opinion.)20
23
The vices—the lack of guidance to those who seek to adjust their conduct and to those who seek to administer the law, as well as the possible practical curtailing of the effectiveness of judicial review—are the same.
24
It is not our province to draft legislation. Suffice it to say that we have recognized that some believe 'motion pictures possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression,' Joseph Burstyn, Inc. v. Wilson, supra, 343 U.S. at 502, 72 S.Ct. at 780 and we have indicated more generally that because of its strong and abiding interest in youth, a State may regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a State clearly could not regulate as to adults. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195.21 Here we conclude only that 'the absence of narrowly drawn, reasonable and definite standards for the officials to follow,' Niemotko v. Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 95 L.Ed. 267 (1951), is fatal.22
25
The judgment of the Texas Court of Civil Appeals is reversed and the cases are remanded for further proceedings not inconsistent with this opinion.
26
It is so ordered.
27
Judgment reversed and case remanded.
APPENDIX TO OPINION OF THE COURT.
28
Chapter 46A of the 1960 Revised Code of Civil and Criminal Ordinances of the City of Dallas, as amended, provides:
Section 46A—1. Definition of Terms:
29
(a) 'Film' means any motion picture film or series of films, whether full length or short subject, but does not include newsreels portraying actual current events or pictorial news of the day.
30
(b) 'Exhibit' means to project a film at any motion picture theatre or other public place within the City of Dallas to which tickets are sold for admission.
31
(c) 'Exhibitor' means any person, firm or corporation which exhibits a film.
32
(d) 'Young person' means any person who has not attained his sixteenth birthday.
33
(e) 'Board' means the Dallas Motion Picture Classification Board established by Section 46A—2 of this ordinance.
34
(f) 'Not suitable for young persons' means:
35
(1) Describing or portraying brutality, criminal violence or depravity in such a manner as to be, in the judgment of the Board, likely to incite or encourage crime or deliquency on the part of young persons; or
36
(2) Describing or portraying nudity beyond the customary limits of candor in the community, or sexual promiscuity or extra-marital or abnormal sexual relations in such a manner as to be, in the judgment of the Board, likely to incite or encourage delinquency or sexual promiscuity on the part of young persons or to appeal to their prurient interest.
37
A film shall be considered 'likely to incite or encourage' crime delinquency or sexual promiscuity on the part of young persons, if, in the judgment of the Board, there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted. A film shall be considered as appealing to 'prurient interest' of young persons, if in the judgment of the Board, its calculated or dominant effect on young persons is substantially to arouse sexual desire. In determining whether a film is 'not suitable for young persons,' the Board shall consider the films as a whole, rather than isolated portions, and shall determine whether its harmful effects outweigh artistic or educational values such film may have for young persons.
38
(g) 'Classify' means to determine whether a film is:
39
(1) Suitable for young persons, or;
40
(2) Not suitable for young persons.
41
(h) 'Advertisement' means any commercial promotional material initiated by an exhibitor designed to bring a film to public attention or to increase the sale of tickets to exhibitions of same, whether by newspaper, billboard, motion picture, television, radio, or other media within or originating within the City of Dallas.
42
(i) 'Initial exhibition' means the first exhibition of any film within the City of Dallas.
43
(j) 'Subsequent exhibition' means any exhibition subsequent to the initial exhibition, whether by the same or a different exhibitor.
44
(k) 'File' means to deliver to the City Secretary for safekeeping as a public record of the City of Dallas.
45
(l) 'Classification order' means any written determination by a majority of the Board classifying a film, or granting or refusing an application for change of classification.
46
(m) The term 'Board' as used and applied in subsection (a) of Section 46A—7 shall include the City of Dallas when attempting to enforce this ordinance and the City Attorney of the City of Dallas when representing the Board or the City of Dallas.
Section 46A—2. Establishment of Board:
47
There is hereby created a Board to be known as the Dallas Motion Picture Classification Board which shall be composed of a Chairman and Eight Members to be appointed by the Mayor and City Council of the City of Dallas, whose terms shall be the same as members of the City Council. Such members shall serve without pay and shall adopt such rules and regulations as they deem best governing their action, proceeding and deliberations and time and place of meeting. These rules and regulations shall be subject to approval of the City Council. If a vacancy occurs upon the Board by death, resignation or otherwise, the governing body of the City of Dallas shall appoint a member to fill such vacancy for the unexpired term.
48
The Chairman and all Members of the Board shall be good, moral, law-abiding citizens of the City of Dallas, and shall be chosen so far as reasonably practicable in such a manner that they will represent a cross section of the community. Insofar as practicable, the members appointed to the Board shall be persons educated and experienced in one or more of the following fields: art, drama, literature, philosophy, sociology, psychology, history, education, music, science or other related fields. The City Secretary shall act is Secretary of the Board.
Section 46A—3. Classification Procedure:
49
(a) Before any initial exhibition, the exhibitor shall file a proposed classification of the film to be exhibited, stating the title of the film and the name of the producer, and giving a summary of the plot and such other information as the Board may by rule require, together with the classification proposed by the exhibitor. The Board shall examine such proposed classification, and if it approves same, shall mark it 'approved' and file it as its own classification order. If the Board fails to act, that is, either file a classification order or hold a hearing within five (5) days after such proposed classification is filed, the proposed classification shall be considered approved.
50
(b) If upon examination of the proposed classification a majority of the Board is not satisfied that it is proper, the Chairman shall direct the exhibitor to project the film before any five (5) or more members of the Board, at a suitably equipped place and at a specified time, which shall be the earliest time practicable with due regard to the availability of the film. The exhibitor, or his designated representative, may at such time make such statement to the Board in support of his proposed classification and present such testimony as he may desire. Within two (2) days, the Board shall make and file its classification of the film in question.
51
(c) Any initial or subsequent exhibitor may file an application for a change in the classification of any film previously classified. No exhibitor shall be allowed to file more than one (1) application for change of classification of the same film. Such application shall contain a sworn statement of the grounds upon which the application is based. Upon filing of such application, the City Secretary shall bring it immediately to the attention of the Chairman of the Board, who upon application by the exhibitor shall set a time and place for a hearing and shall notify the applicants and all interested parties, including all exhibitors who may be exhibiting or preparing to exhibit the film. The Board shall view the film and at such hearing, hear the statements of all interested parties, and any proper testimony that may be offered, and shall within two (2) days thereafter make and file its order approving or changing such classification. If the classification of a film is changed as a result of such hearing to the classification 'not suitable for young persons,' the exhibitors showing the film shall have seven (7) days in which to alter their advertising and audience policy to comply with such classification.
52
(d) Upon filing by the Board of any classification order, the City Secretary shall immediately issue and mail a notice of classification to the exhibitor involved and to any other exhibitor who shall request such notice.
53
(e) A classification shall be binding on any subsequent exhibitor unless and until he obtains a change of classification in the manner above provided.
Section 46A—4. Offenses:
54
(a) It shall be unlawful for any exhibitor or his employee:
55
(1) To exhibit any film which has not been classified as provided in this ordinance.
56
(2) To exhibit any film classified 'not suitable for young persons' if any current advertisement of such film by such exhibitor fails to state clearly the classification of such film.
57
(3) To exhibit any film classified 'not suitable for young persons' without keeping such classification posted prominently in front of the theatre in which such film is being exhibited.
58
(4) Knowingly to sell or give to any young person a ticket to any film classified 'not suitable for young persons.'
59
(5) Knowingly to permit any young person to view the exhibition of any film classified 'not suitable for young persons.'
60
(6) To exhibit any film classified 'not suitable for young persons' or any scene or scenes from such a film, or from an unclassified film, whether moving or still, in the same theatre and on the same program with a film classified 'suitable for young persons'; provided that any advertising preview or trailer containing a scene or scenes from an unclassified film or a film classified 'not suitable for young persons' may be shown at any time if same has been separately classified as 'suitable for young persons' under the provisions of Section 46A—3 of this ordinance.
61
(7) To make any false or willfully misleading statement in any proposed classification, application for change of classification, or any other proceeding before the Board.
62
(8) To exhibit any film classified 'not suitable for young persons' without having in force the license hereinafter provided.
63
(b) It shall be unlawful for any young person:
64
(1) To give his age falsely as sixteen (16) years of age or over, for the purpose of gaining admittance to an exhibition of a film classified 'not suitable for young persons.'
65
(2) To enter or remain in the viewing room of any theatre where a film classified 'not suitable for young persons' is being exhibited.
66
(3) To state falsely that he or she is married for the purpose of gaining admittance to an exhibition of a film classified as 'not suitable for young persons.'
67
(c) It shall be unlawful for any person:
68
(1) To sell or give any young person a ticket to an exhibition of a film classified 'not suitable for young persons.'
69
(2) To make any false or willfully misleading statement in an application for change of classification or in any proceeding before the Board.
70
(3) To make any false statements for the purpose of enabling any young person to gain admittance to the exhibition of a film classified as 'not suitable for young persons.'
71
(d) To the extent that any prosecution or other proceeding under this ordinance, involves the entering, purchasing of a ticket, or viewing by a young person of a film classified 'not suitable for young persons,' it shall be a valid defense that such young person was accompanied by his parent or legally appointed guardian, husband or wife, throughout the viewing of such film.
Section 46A—5. License:
72
Every exhibitor holding a motion picture theatre or motion picture show license issued pursuant to Chapter 46 of the 1960 Revised Code of Civil and Criminal Ordinances of the City of Dallas shall be entitled to issuance of a license by the City Secretary to exhibit films classified 'not suitable for young persons.'
73
Section 46A—6. Revocation or suspension of license:
74
Whenever the City Attorney or any person acting under his direction, or any ten (10) citizens of the City of Dallas, shall file a sworn complaint with the City Secretary stating that any exhibitor has repeatedly violated the provisions of this ordinance, or that any exhibitor has persistently failed to use reasonable diligence to determine whether those seeking admittance to the exhibition of a film classified 'not suitable for young persons' are below the age of sixteen (16), the City Secretary shall immediately bring such complaint to the attention of the City Council who shall set a time and place for hearing such complaint and cause notice of such hearing to be given to the complainants and to the exhibitor involved. The City Council shall have authority to issue subpoenas requiring witnesses to appear and testify at such hearing, and any party to such hearing shall be entitled to such process. If, after hearing the evidence the City Council shall find the charges in such complaint to be true, it shall issue and file an order revoking or suspending the license above provided, insofar as it grants the privilege of showing such classified pictures, for a specific period not to exceed one (1) year, or may issue a reprimand if it is satisfied that such violation will not continue.
75
The City Council likewise, after notice and hearing, may revoke or suspend the license of any exhibitor who has refused or unreasonably failed to produce or delayed the submission of a film for review, when requested by the Board.
Section 46A—7. Judicial Review:
76
(a) Within two (2) days after the filing of any classification by the Board, other than an order approving the classification proposed by an exhibitor, any exhibitor may file a notice of non-acceptance of the Board's classification, stating his intention to exhibit the film in question under a different classification. Thereupon it shall be the duty of the Board to do the following:
77
(1) Within three (3) days thereafter to make application to a District Court of Dallas County, Texas, for a temporary and a permanent injunction to enjoin such defendant-exhibitor, being the exhibitor who contests the classification, from exhibiting the film in question contrary to the provisions of this ordinance.
78
(2) To have said application for temporary injunction set for hearing within five (5) days after the filing thereof. In the event the defendant-exhibitor appears at or before the time of the hearing of such temporary injunction, waives the notice otherwise provided by the Texas Rules of Civil Procedure, and requests that at the time set for such hearing the Court proceed to hear the case under the Texas Rules of Civil Procedure for permanent injunction on its merits, the Board shall be required to waive its application for temporary injunction and shall join in such request. In the event the defendant-exhibitor does not waive notice and/or does not request an early hearing on the Board's application for permanent injunction, it shall nevertheless be the duty of the board to obtain the earliest possible setting for such hearing under the provisions of State law and the Texas Rules of Civil Procedure.
79
(3) If the injunction is granted by the trial court and the defendant-exhibitor appeals to the Court of Civil Appeals, the Board shall waive any and all statutory notices and times as provided for in the Texas State Statutes and Texas Rules of Civil Procedure, and shall within five (5) days after receiving a copy of appealing exhibitor's brief, file its reply brief, if required, and be prepared to submit the case upon oral submission or take any other reasonable action requested by the appealing exhibitor to expedite the submission of the case to the Court of Civil Appeals, and shall upon request of the appealing exhibitor, jointly with such exhibitor, request the Court of Civil Appeals to advance the cause upon the docket and to give it a preferential setting the same as is afforded an appeal from a temporary injunction or other preferential matters.
80
(4) If the Court of Civil Appeals should by its judgment affirm the judgment of the trial court granting the injunction and the appealing exhibitor should file an application for writ of error to the Texas Supreme Court, the Board shall be required to waive any and all notices and times as provided for in the Texas State Statutes and the Texas Rules of Civil Procedure, and shall within five (5) days after receiving a copy of the application for writ of error, file its reply brief, if required, and be prepared to submit the case upon oral submission or take any other reasonable action requested by the appealing exhibitor to expedite the submission of the case to the Supreme Court and shall upon request of the appealing exhibitor, jointly with such exhibitor, request the Supreme Court to advance the cause upon the docket and to give it a preferential setting the same as is afforded an appeal from a temporary injunction or other preferential matters.
81
(5) If the District Court denies the Board's application for injunction, the Board elects to appeal, the Board shall be required to waive all periods of time allowed it by the Texas Rules of Civil Procedure and if a motion for a new trial is required, shall file said motion within two (2) days after the signing of the judgment, (or on the following Monday if said period ends on a Saturday or Sunday, or on the day following if the period ends on a Legal Holiday), shall not amend said motion and shall obtain a hearing on such motion within five (5) days time. If no motion for new trial is required as a prerequisite to an appeal under the Texas Rules of Civil Procedure, the Board shall not file such a motion. Within ten (10) days after the judgment is signed by the District Court denying such injunction or within ten (10) days after the order overruling the Board's motion for new trial is signed, if such motion is required, the Board shall complete all steps necessary for the perfection of its appeal to the Court of Civil Appeals, including the filing of the Transcript, Statement of Facts and Appellant's brief. Failure to do so shall constitute an abandonment of the appeal. On filing the record with the Court of Civil Appeals, the Board shall file a motion to advance requesting the Court to give a preferential setting the same as is afforded an appeal from a temporary injunction or other preferential matters.
82
(6) If the Court of Civil Appeals reverses the trial court after the trial court has granted an injunction, or if the Court of Civil Appeals refuses to reverse the trial court after that court has failed to grant an injunction, then if the Board desires to appeal from the decision of the Court of Civil Appeals by writ of error to the Supreme Court of the State of Texas, it must file its motion for rehearing within two (2) days of rendition of the decision of the Court of Civil Appeals (or on the following Monday, if said period ends on a Saturday or Sunday, or on the day following if the period ends on a Legal Holiday), and shall file its application for writ of error within ten (10) days after the Court of Civil Appeals order overruling such motion for rehearing, and failure to do so shall waive all rights to appeal from the decision of the Court of Civil Appeals. At the time of filing the application for writ of error, the Board shall also request the Supreme Court to give the case a preferential setting and advance the same on the docket.
83
(b) The filing of such notice of nonacceptance shall not suspend or set aside the Board's order, but such order shall be suspended at the end of ten (10) days after the filing of such notice unless an injunction is issued within such period.
84
(c) Failure of any exhibitor to file the notice of nonacceptance within two (2) days as required in Subdivision (1) of this Section 46A—7, shall constitute acceptance of such classification order and such exhibitor shall be bound by such order in all subsequent proceedings except such proceedings as may be had in connection with any application for change of classification under Subsection (c) of Section 46A—3 above.
Section 46A—8. Public Nuisances:
85
The following acts are declared to be public nuisances:
86
(a) Any violation of Subdivisions (1), (2), (3), or (6), of Subdivision (a) of Section 46A—4 of this ordinance.
87
(b) Any exhibition of a film classified as 'not suitable for young persons' at which more than three (3) young persons are admitted.
88
(c) Any exhibition of a film classified as 'not suitable for young persons' by an exhibitor who fails to use reasonable diligence to determine whether persons admitted to such exhibitions are persons under the age of sixteen (16) years.
89
(d) Any exhibition of a film classified as 'not suitable for young persons' by an exhibitor who has been convicted of as many as three (3) violations of Subdivisions (4) or (5) of Subdivision (a) of Section 46A—4 of this ordinance in connection with the exhibition of the same film.
Section 46A—9. Injunctions:
90
Whenever the Board has probable cause to believe that any exhibitor has committed any of the acts declared in Section 46A—8 above to be a public nuisance, the Board shall have the duty to make application to a court of competent jurisdiction for an injunction restraining the commission of such acts.
Section 46A—10. Exemption to State Law:
91
Nothing in this ordinance shall be construed to regulate public exhibitions preempted by Article 527 of the Penal Code of the State of Texas, as amended. Section 46A—11. Severability Clause:
92
Should any section, subsection, sentence, provision, clause or phrase be held to be invalid for any reason, such holding shall not render invalid any other section, subsection, sentence, provision, clause or phrase of this ordinance, and the same are deemed severable for this purpose.
93
SECTION 2. That any person who shall violate any provisions of this ordinance shall be guilty of a misdemeanor and upon conviction thereof shall be subject to a fine not to exceed Two Hundred Dollars ($200.00) and each offense shall be deemed to be a separate violation and punishable as a separate offense, and each day that a film is exhibited which has not been classified according to this ordinance shall be a separate offense.
94
SECTION 3. That Ordinance No. 10963 heretofore enacted by the City Council of the City of Dallas on April 5, 1965, be and the same is hereby in all things repealed and held for naught, and this ordinance is enacted in lieu thereof.
95
SECTION 4. The fact that Ordinance No. 10963 previously passed by the City Council of the City of Dallas has been declared to be unenforceable in the Courts by the Federal District Court, creates an urgency and an emergency in the preservation of the public peace, comfort and general welfare and requires that this ordinance shall take effect immediately from and after its passage, and it is accordingly so ordained.
96
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK joins, concurring.
97
As I indicated in my dissenting opinion in Ginsberg v. New York, 390 U.S. p. 650, 88 S.Ct. p. 1286, 19 L.Ed.2d p. 210, if we assume arguendo that the censorship of obscene publications, whether for children or for adults, is in the area of substantive due process, the States have a very wide range indeed for determining what kind of movie, novel, poem, or article is harmful. If that were the test, I would agree with my Brother HARLAN that the standard of 'sexual promiscuity' in this Dallas ordinance is sufficiently precise and discriminating for modern man to apply intelligently.
98
My approach to these problems is, of course, quite different. I reach the result the Court reaches for the reasons stated in my dissenting opinions in Ginsberg and other cases and therefore concur in reversing the present judgment.
99
Mr. Justice HARLAN, concurring in No. 47, and dissenting in Nos. 56 and 64.
100
These cases usher the Court into a new phase of the intractable obscenity problem: may a State prevent the dissemination of obscene or other obnoxious material to juveniles upon standards less stringent than those which would govern its distribution to adults?
101
In No. 47, the Ginsberg case, the Court upholds a New York statute applicable only to juveniles which, as construed by the state courts, in effect embodies in diluted form the 'adult' obscenity standards established by Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and the prevailing opinion in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. In Nos. 56 and 64, the Interstate Circuit and United Artists cases, the Court strikes down on the ground of vagueness a similar Dallas ordinance, not couched, however, entirely in obscenity terms. In none of these cases does the Court pass judgment on the particular material condemned by the state courts.
102
As the Court enters this new area of obscenity law it is well to take stock of where we are at present in this constitutional field. The subject of obscenity has produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication.1 Two members of the Court steadfastly maintain that the First and Fourteenth Amendments render society powerless to protect itself against the dissemination of even the filthiest materials.2 No other member of the Court, past or present, has ever stated his acceptance of that point of view. But there is among present members of the Court a sharp divergence as to the proper application of the standards in Roth, supra,3 Memoirs, supra,4 and Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31,5 for judging whether given material is constitutionally protected or unprotected. Most of the present Justices who believe that 'obscenity' is not beyond the pale of governmental control seemingly consider that the Roth-Memoirs-Ginzburg tests permit suppression of material that falls short of so-called 'hard core pornography,' on equal terms as between federal and state authority.6 Another view is that only 'hard core pornography' may be suppressed, whether by federal or state authority.7 And still another view, that of this writer, is that only 'hard core pornography' may be suppressed by the Federal Government, whereas under the Fourteenth Amendment States are permitted wider authority to deal with obnoxious matter than might be justifiable under a strict application of the Roth-Memoirs-Ginzburg rules.8
103
There are also differences among us as to how our appellate process should work in reviewing obscenity determinations. One view is that we should simply examine the proceedings below to ascertain whether the lower federal or state courts have made a genuine effort to apply the Roth-Memoirs-Ginzburg tests, and that if such is the case, their determinations that the questioned material is obscene should be accepted, much as would any findings of fact.9 Another view is that the question of whether particular material is obscene inherently entails a constitutional judgment for which the Court has ultimate responsibility, and hence that it is incumbent upon us to judge for ourselves, de novo as it were, the obscenity vel non of the challenged matter.10
104
The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment.11 From the standpoint of the Court itself the current approach has required us to spend an inordinate amount of time in the absurd business of perusing and viewing the miserable stuff that pours into the Court, mostly in state cases, all to no better end than second-guessing state judges. In all except rare instances, I venture to say, no substantial free-speech interest is at stake, given the right of the States to control obscenity.
105
I believe that no improvement in this chaotic state of affairs is likely to come until it is recognized that this whole problem is primarily one of state concern, and that the Constitution tolerates much wider authority and discretion in the States to control the dissemination of obscene materials than it does in the Federal Government. Reiterating the viewpoint that I have expressed in earlier opinions, I would limit federal control of obscene materials to those which all would recognize as what has been called 'hard core pornography,' and would withhold the federal judicial hand from interfering with state determinations except in instances where the state action clearly appears to be but the product of prudish overzealousness. See Roth v. United States, supra, 354 U.S., at 496, 77 S.Ct., at 1315; Manual Enterprises v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639; Jacobellis v. State of Ohio, supra, 378 U.S. 184, at 203, 84 S.Ct. 1676, at 1685; Memoirs v. Massachusetts, supra, 383 U.S., at 455, 86 S.Ct., at 995. And in the juvenile field I think that the Constitution is still more tolerant of state policy and its applications. If current doctrinaire views as to the reach of the First Amendment into state affairs are thought to stand in the way of such a functional approach, I would revert to basic constitutional concepts that until recent times have been recognized and respected as the fundamental genius of our federal system, namely the acceptance of wide state autonomy in local affairs.
106
I come now to the cases at hand. In No. 47, Ginsberg, I concur in the judgment and join the opinion of the Court, fully preserving, however, the views repeatedly expressed in my earlier opinions in this field.
107
In Nos. 56 and 64, the Interstate Circuit and United Artists cases, I respectfully dissent. I do not agree that the Dallas ordinance can be struck down, as the Court now holds, on the score of vagueness. The ambiguities about which the Court expresses concern are essentially two.12 First, the ordinance does not include a definition of 'sexual promiscuity.'13 Second, the ordinance provides that a film 'shall be considered 'likely to incite or encourage' crime delinquency or sexual promiscuity * * * if, in the judgment of the Board, there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted.' The Court is concerned that many may disagree as to whether any specific materials create such impressions on young persons.
108
These seem to me entirely inadequate grounds on which to strike down the ordinance. It must be granted, of course, that people may differ as to the application of these standards; but the central lesson of this Court's efforts in this area is that under all verbal formulae, including even this Court's own definition of obscenity, reasonable men can, and ordinarily do, differ as to the proper assessment of challenged materials. The truth is that the Court has demanded greater precision of language from the City of Dallas than the Court can itself give, or even than can sensibly be expected in this area of the law.
109
The Court has not always asked so much.14 In Roth, the federal statute under which the petitioner had been sentenced to five years' imprisonment forbade the mailing of material that was 'obscene, lewd, lascivious, or filthy * * * or other publication of an indecent character.'15 354 U.S., at 491, 77 S.Ct., at 1312. In Alberts v. State of California, the companion case to Roth, the California statute provided that the materials must have a 'tendency to deprave or corrupt its readers.' Id., at 498, 77 S.Ct., at 1316. No definitions were included in either statute, yet the Court there explicitly rejected the argument that they did not 'provide reasonably ascertainable standards of guilt * * *.' Id., at 491, 77 S.Ct., at 1312. The Court recognized that the terms of obscenity statutes are necessarily imprecise, but emphasized, quoting United States v. Petrillo, 332 U.S. 1, 7—8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877, that the "Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. * * *"16 Ibid. Yet it should be repeated that the Interstate Circuit cases unlike Roth and Alberts, involve merely the classification, not the proscription by criminal prosecution, of objectionable materials. In my opinion, the ordinance does not fail either to give adequate notice of the films that are to be restricted, or to provide sufficiently definite standards for its administration.17
110
Although the Court finds it unnecessary to pass judgment upon the materials involved in these cases, I consider it preferable to face that question. Upon the premises set forth in my Roth and Memoirs opinions, and reiterated here, I would hold that in condemning these materials New York and the City of Dallas have acted within constitutional limits.
111
I would affirm the judgments in all three cases.
1
402 S.W.2d 770 (1966). The Texas Supreme Court denied discretionary review and therefore the appeal is from the judgment of the Court of Civil Appeals. 28 U.S.C. § 1257(2).
2
The ordinance is set forth in an Appendix to this opinion. The parties disagree as to the meaning of certain of its provisions that have not been authoritatively interpreted by courts of the State. The differences are not material to our decision, however, and the summary of the ordinance in the text above should not be taken as acceptance by us of any of the parties' conflicting interpretations, nor as expressing any view on the validity of provisions of the ordinance not challenged here.
3
The two-day period is apparently part of an attempt to assure prompt final determination. The ordinance also provides that 'any initial or subsequent exhibitor' may seek reclassification of a film previously classified.
4
Appellants assert that, despite the seemingly clear words of the suspension provision, exhibitors in practice have not been free to show films without a not suitable notification while a court challenge is pending, even though an injunction has not issued within the 10-day period. See n. 2, supra.
5
402 S.W.2d 770, 774—775.
6
Appellee says that youths under 16 years of age accompanied throughout the showing of the picture by a guardian (parent) or spouse, may attend not suitable films. Appellants read the ordinance as making the existence of such accompaniment solely a matter of defense should a criminal prosecution ensue. See n. 2, supra.
7
See n. 6, supra. It appears that a parent who purchases a ticket to a not suitable film and gives it to his child is subject to the misdemeanor penalty of the ordinance. To be sure, appellee indicated at oral argument that criminal sanctions have not been sought against anyone under the ordinance.
8
In related litigation, the provision for revocation of the special license was held unconstitutional as violative of Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957), by District Judge Hughes, 249 F.Supp. 19, 25 (D.C.N.D.Tex., 1965), and that ruling was not challenged on appeal. See Interstate Circuit, Inc. v. City of Dallas, 366 F.2d 590, 593, n. 5 (C.A.5th Cir. 1966).
9
See also Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966.
10
There are numerous state cases to the same effect. See, e.g., Police Commissioner v. Siegel Enterprises, Inc., 223 Md. 110, 162 A.2d 727, cert. denied, 364 U.S. 909, 81 S.Ct. 273, 5 L.Ed.2d 225 (1960) ('violent bloodshed, lust or immorality or which, for a child below the age of eighteen, are obscene, lewd, lascivious, filthy, indecent or disgusting and so presented as reasonably to tend to incite such a child to violence or depraved or immoral acts'); People v. Kahan, 15 N.Y.2d 311, 258 N.Y.S.2d 391, 206 N.E.2d 333 (1965); People v. Bookcase, Inc., 14 N.Y.2d 409, 252 N.Y.S.2d 433, 201 N.E.2d 14 (1964) ('descriptions of illicit sex or sexual immorality'); Hallmark Productions, Inc. v. Carroll, 384 Pa. 348, 121 A.2d 584 (1956) ('sacrilegious, obscene, indecent, or immoral, or such as tend * * * to debase or corrupt morals'). In Paramount Film Distributing Corp. v. City of Chicago, 172 F.Supp. 69 (D.C.N.D.Ill.1959), it was alternatively held that the standard 'tends toward creating a harmful impression on the minds of children' was indefinite; that provision had no further legislative or judicial definition and is therefore unlike the statute in Ginsberg v. New York, ante, 390 U.S. at 643, 88 S.Ct. at 1282, 20 L.Ed.2d at 206, where the phrase 'harmful to minors' is specifically and narrowly defined in accordance with tests this Court has set forth for judging obscenity.
11
See also Amsterdam, Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 90 (1960); Klein, Film Censorship: The American and British Experience, 12 Vill.L.Rev. 419, 428 (1967).
12
The ordinance does not require the Board to give reasons for its action, Compare American Civil Liberties Union v. City of Chicago, 13 Ill.App.2d 278, 286, 141 N.E.2d 56, 60 (1957):
'(T)he censoring authority, in refusing to issue a permit for showing the film, should be obliged to specify reasons for so doing * * *. The trial court, as well as the reviewing court, would then have a record, in addition to the film itself, on which to decide whether the ban should be approved. * * * Without such procedure, the courts become not only the final tribunal to pass upon films, but the only tribunal to assume the responsibilities of the censoring authority.'
Accord, Zenith Int'l Film Corp. v. City of Chicago, 291 F.2d 785 (C.A.7th Cir., 1961). See also Note, 71 Harv.L.Rev. 326, 338 (1957).
13
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). See Freedman v. Maryland, supra.
14
In response to a request that he make findings, the trial judge stated: 'I decline. I have so many irons for a little fellow. I have taken on more than I can do, trying to decide a big case here, and I have got others at home and here and in Hill County where I have been helping out, and I do not have time to do it. I decline.'
15
Appellants also contend here that, in addition to its vagueness, the ordinance is invalid because it authorizes the restraint of films on constitutionally impermissible grounds, arguing that the limits on regulation of expression are those of obscenity, or at least obscenity as judged for children. In light of our disposition on vagueness grounds, we do not reach that issue.
16
A concurring justice of that court, with whom the author of the majority opinion agreed, specifically rejected the view that obscenity standards were relevant at all in determining the limits of the ordinance. But nothing in that opinion clarifies the standards adopted. 402 S.W.2d, at 777—779.
17
Appellee adopted an amendment to the ordinance in March 1966, which is not involved here. It defines 'sexual promiscuity' as 'indiscriminate sexual intimacies beyond the customary limits of candor in the community, and said term as defined herein shall include, but not be limited to sexual intercourse as that term is defined.'
18
An alternative to 'likely to incite' because the portrayal might 'create the impression * * * (the) conduct is profitable, desirable,' etc., is set forth in the ordinance. That is if the manner of presentation is 'likely * * * to appeal to their (young persons') prurient interest.' That alternative, however, was not relied upon by the Board members who testified, nor by the appellate court.
19
In Bantam Books, the Commission there charged with reviewing material 'manifestly tending to the corruption at the youth' (372 U.S., at 59, 83 S.Ct. at 633) had no direct regulatory or suppressing functions, although its informal sanctions were found to achieve the same result. The Court held that 'system of informal censorship' (id., at 71, 83 S.Ct. 631) to violate the Fourteenth Amendment. One important factor in that decision was the Commission's 'vague and uninformative' mandate, which the Commission in practice had 'done nothing to make * * * more precise.' Ibid. See also I. Carmen, Movies, Censorship, and the Law, passim (1966); Klein, Film Censorship: The American and British Experience, 12 Vill.L.Rev. 419, 455 (1967); Note, 71 Harv.L.Rev. 326, 342 (1957).
20
See also, e.g., Katzev v. County of Los Angeles, 52 Cal.2d 360, 341 P.2d 310 (1959) (magazine sales to minors under age 18); People v. Bookcase, Inc., supra, n. 10 (book sales to minors under age 18); Police Commissioner v. Siegel Enterprises, Inc., supra, n. 10 (sale of certain publications to those under 18); Paramount Film Distributing Corp. v. City of Chicago, supra, n. 10 (special license for films deemed objectionable for those under age 21).
21
On age classification with regard to viewing motion pictures, see generally, I. Carmen, Movies, Censorship, and the Law 247—260 (1966); Note, 69 Yale L.J. 141 (1959).
22
Appellants also assert that the city ordinance violates the teachings of Freedman v. State of Maryland, supra, because it does not secure prompt state appellate review. The assurance of a 'prompt final judicial decision' (380 U.S., at 59, 85 S.Ct. 734.) is made here, we think, by the guaranty of a speedy determination in the trial court (in this case nine days after the Board's classification). See Teitel Film Corp. v. Cusack, 390 U.S. 139, 55 S.Ct. 754, 19 L.Ed.2d 966. Nor is freedman violated by the requirement that the exhibitor file a notice of nonacceptance of the Board's classification. To be sure, it is emphasized in Freedman that 'only a procedure requiring a judicial determination suffices to impose a valid final restraint' (380 U.S., at 58, 85 S.Ct. at 739), and here if the exhibitor chooses not to file the notice of nonacceptance, the Board's determination is final without judicial approval. But we are not constrained to view that procedure as invalid in the absence of a showing that it has any significantly greater effect than would the exhibitor's decision not to contest in court the Board's suit for a temporary injunction. The ordinance provides that the Board has the burden of going to court to seek a temporary injunction, once the exhibitor has indicated his nonacceptance, and there it has the burden of sustaining its classification.
Finally, appellant United Artists contends the ordinance unconstitutionally infringes upon its rights by not providing for participation by a distributor, who might wish to contest where an exhibitor would not. Of course the distributor must be permitted to challenge the classification, cf. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64, 83 S.Ct. 631, 9 L.Ed.2d 584, m. 6 (1963), but the appellee assures us he may (see n. 2, supra), and United Artists was permitted to intervene in the trial court.
1
In the following 13 obscenity cases from the date Roth was decided, in which signed opinions were written for a decision or judgment of the Court, there has been a total of 55 separate opinions among the Justices. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (four opinions); Roth v. United States, supra (four opinions); Kingsley Int'l Pictures Corp. v. Regents of University of State of New York, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (six opinions); Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (five opinions); Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (three opinions); Marcus v. Search Warrants of Property at 104 East Tenth St., Kansas City, Mo., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (two opinions); Manual Enterprises v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (three opinions); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (four opinions); Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (six opinions); A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (four opinions); Memoirs v. Massachusetts, supra (five opinions); Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (five opinions); Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (four opinions).
2
See Roth v. United States, supra, 354 U.S., at 508, 77 S.Ct., at 1321 (dissenting opinion); Jacobellis v. State of Ohio, supra, 378 U.S., at 196, 84 S.Ct., at 1682 (separate opinion); Ginzburg v. United States, supra, 383 U.S., at 476, 482, 86 S.Ct., at 950, 953 (dissenting opinions).
3
Roth stated the test to be 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' 354 U.S., at 489, 77 S.Ct., at 1311 (note omitted).
4
Memoirs elaborated the Roth test as follows: 'it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.' 383 U.S., at 418, 86 S.Ct., at 977.
5
The Ginzberg 'test' is difficult to state with any precision. The Court held that 'in close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the Roth test.' 383 U.S., at 474, 86 S.Ct., at 949. But this 'simply elaborates the test by which the obscenity vel non of the material must be judged.' Id., at 475, 86 S.Ct., at 950. Yet evidence of pandering may 'support the determination that the material is obscene even though in other contexts the material would escape such condemnation.' Id., at 476, 86 S.Ct., at 950. Pandering itself evidently encompasses every form of the "business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers." Id., at 467, 86 S.Ct., at 945 (note omitted).
6
See, e.g., Jacobellis v. State of Ohio, supra, 378 U.S., at 193—195, 84 S.Ct. at 1681—1682 (opinion of Brennan, J.).
7
See id., at 197, 84 S.Ct., at 1683 (concurring opinion of Stewart, J.).
8
See Roth v. United States, supra, 354 U.S., at 496, 77 S.Ct., at 1315 (concurring and dissenting opinion); Memoirs v. Massachusetts, supra, 383 U.S., at 455, 86 S.Ct., at 995 (dissenting opinion).
9
See Jacobellis v. State of Ohio, supra, 378 U.S., at 202, 84 S.Ct., at 1685 (dissenting opinion).
10
See Jacobellis, at 190, 84 S.Ct., at 1679 (opinion of Brennan, J.); Roth v. United States, supra, 354 U.S., at 497—498, 77 S.Ct., at 1315—1316 (concurring and dissenting opinion); Kingsley Int'l Pictures Corp. v. Regents of University of State of New York, supra, 360 U.S. at 708, 79 S.Ct. at 1375 (concurring in result).
11
See, e.g., Keney v. New York, 388 U.S. 440, 87 S.Ct. 2091, 18 L.Ed.2d 1302; Friedman v. New York, 388 U.S. 441, 87 S.Ct. 2091, 18 L.Ed.2d 1303; Ratner v. California, 388 U.S. 442, 87 S.Ct. 2092, 18 L.Ed.2d 1304; Cobert v. New York, 388 U.S. 443, 87 S.Ct. 2092, 18 L.Ed.2d 1305; Sheperd v. New York, 388 U.S. 444, 87 S.Ct. 2093, 18 L.Ed.2d 1306; Avansino v. New York, 388 U.S. 446, 87 S.Ct. 2093, 18 L.Ed.2d 1308; Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309; Corinth Publications, Inc. v. Wesberry, 388 U.S. 448, 87 S.Ct. 2096, 18 L.Ed.2d 1310; Books, Inc. v. United States, 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311; Rosenbloom v. Virginia, 388 U.S. 450, 87 S.Ct. 2095, 18 L.Ed.2d 1312; A Quantity of Copies of Books v. Kansas, 388 U.S. 452, 87 S.Ct. 2104, 18 L.Ed.2d 1314; Mazes v. Ohio, 388 U.S. 453, 87 S.Ct. 2105, 18 L.Ed.2d 1315; Schackman v. California, 388 U.S. 454, 87 S.Ct. 2107, 18 L.Ed.2d 1316; Landau v. Fording, 388 U.S. 456, 87 S.Ct. 2109, 18 L.Ed.2d 1317; Potomac News Co. v. United States, 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46; Conner v. City of Hammond, 389 U.S. 48, 88 S.Ct. 234, 19 L.Ed.2d 47; Central Magazine Sales, Ltd. v. United States, 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49; Chance v. California, 389 U.S. 89, 88 S.Ct. 253, 19 L.Ed.2d 256.
12
The Court emphasizes at greater length the failure of the Board and the Texas courts to proffer any clarification of the ordinance. This compels examination of the ordinance's terms, but it does not, of course, offer any independent basis for a conclusion that the ordinance is ambiguous.
13
The Court acknowledges that the city has since adopted a definition of sexual promiscuity, but it expresses no views as to the definition's adequacy.
14
It is pertinent to note that a majority of the Court did not hold that the New York statute at issue in Kingsley Int'l Pictures Corp. v. Regents of University of State of New York, supra, was impermissibly vague. The statute forbade the exhibition of a film 'which portrays acts of sexual immorality * * * or * * * presents such acts as desirable, acceptable or proper patterns of behavior.' Id., 360 U.S., at 685, 79 S.Ct., at 1364. It appears that only the opinion of Mr. Justice Clark, concurring in the result, upon which the Court now relies so heavily, described this standard as vague. Indeed, Mr. Justice Frankfurter said in his separate opinion that the 'Court does not strike the law down because of vagueness * * *.' Id., at 695, 79 S.Ct., at 1369. See also id., at 704, 79 S.Ct., at 1373. Mr. Justice Frankfurter went on to say that "(s)exual immorality' is not a new phrase in this branch of law and its implications dominate the context. I hardly conceive it possible that the Court would strike down as unconstitutional the federal statute against mailing lewd, obscene and lascivious matter, which has been the law of the land for nearly a hundred years, see the Act of March 3, 1865, 13 Stat. 507, and March 3, 1873, 17 Stat. 599, whatever specific instances may be found not within its allowable prohibition. In sustaining this legislation this Court gave the words 'lewd, obscene and lascivious' concreteness by saying that they concern 'sexual immorality." Id., at 695—696, 79 S.Ct., at 1369.
15
The statute involved in Roth now provides in part that it is a criminal offense to import or transport in interstate commerce any 'obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character * * *.' 18 U.S.C. § 1462. Similarly, § 1461 provides that it is a criminal offense to mail any 'obscene, lewd, lascivious, indecent, filthy or vile' article. See also §§ 1463, 1464, 1465. Although each of these sections makes profuse use of the disjunctive, no definitions of any of these descriptive terms are provided.
16
The Court went on to say that it 'is argued that because juries may reach different conclusions as to the same material, the statutes must be held to be insufficiently precise to satisfy due process requirements. But, it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system.' 354 U.S., at 492, 77 S.Ct., at 1313, n. 30. Precisely similar reasoning should be applicable to boards like that created by the Dallas ordinance, although the cost of differences in result is here measured (at least initially) by film classifications, and not by lengthy terms of imprisonment.
17
It is difficult to see how the Court could suppose that its Memoirs formula offers more precise warnings to film makers than does the Dallas ordinance. Surely the Court cannot now believe that 'redeeming social value,' 'patent offensiveness,' and 'prurient interest' are, particularly as modified so as to apply to children, terms of common understanding and clarity. Moreover, one wonders whether the pandering rationale adopted in Ginzburg v. United States, supra, is thought to give more 'guidance to those who seek to adjust their conduct' than does the Dallas ordinance. It is difficult to imagine any standard more vague, or more overbroad, than the 'new subjectivity' created by the Court's search for the 'leer of the sensualist.' See Magrath, The Obscenity Cases: Grapes of Roth, 1966 Sup.Ct.Rev. 7, 61.
| 23
|
390 U.S. 629
88 S.Ct. 1274
20 L.Ed.2d 195
Sam GINSBERG, Appellant,v.STATE OF NEW YORK.
No. 47.
Argued Jan. 16, 1968.
Decided April 22, 1968.
Rehearing Denied June 3, 1968.
See 391 U.S. 971, 88 S.Ct. 2029.
[Syllabus from pages 629-630 intentionally omitted]
Emanuel Redfield, New York City, for appellant.
William Cahn, Mineola, N.Y., for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case presents the question of the constitutionality on its face of a New York criminal obscenity statute which prohibits the sale to minors under 17 years of age of material defined to be obscene on the basis of its appeal to them whether or not it would be obscene to adults.
2
Appellant and his wife operate 'Sam's Stationery and Luncheonette' in Bellmore, Long Island. They have a lunch counter, and, among other things, also sell magazines including some so-called 'girlie' magazines. Appellant was prosecuted under two informations, each in two counts, which charged that he personally sold a 16-year-old boy two 'girlie' magazines on each of two dates in October 1965, in violation of § 484—h of the New York Penal Law, McKinney's Consol.Laws, c. 40. He was tried before a judge without a jury in Nassau County District Court and was found guilty on both counts.1 The judge found (1) that the magazines contained pictures which depicted female 'nudity' in a manner defined in subsection 1(b), that is 'the showing of * * * female * * * buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple * * *,' and (2) that the pictures were 'harmful to minors' in that they had, within the meaning of subsection 1(f) 'that quality of * * * representation * * * of nudity * * * (which) * * * (i) predominantly appeals to the prurient, shameful or morbid interest of minors, and (ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (iii) is utterly without redeeming social importance for minors.' He held that both sales to the 16-year-old boy therefore constituted the violation under § 484—h of 'knowingly to sell * * * to a minor' under 17 of '(a) any picture * * * which depicts nudity * * * and which is harmful to minors,' and '(b) any * * * magazine * * * which contains * * * (such pictures) * * * and which, taken as a whole, is harmful to minors.' The conviction was affirmed without opinion by the Appellate Term, Second Department, of the Supreme Court. Appellant was denied leave to appeal to the New York Court of Appeals and then appealed to this Court. We noted probable jurisdiction. 388 U.S. 904, 87 S.Ct. 2108, 18 L.Ed.2d 1344. We affirm.2
I.
3
The 'girlie' picture magazines involved in the sales here are not obscene for adults, Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.2d.2d 515.3 But § 484—h does not bar the appellant from stocking the magazines and selling them to persons 17 years of age or older, and therefore the conviction is not invalid under our decision in Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412.
4
Obscenity is not within the area of protected speech or press. Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498. The three-pronged test of subsection 1(f) for judgment the obscenity of material sold to minors under 17 is a variable from the formulation for determining obscenity under Roth stated in the plurality 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, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1. Appellant's primary attack upon § 484—h is leveled at the power of the State to adapt this Memoirs formulation to define the material's obscenity on the basis of its appeal to minors, and thus exclude material so defined from the area of protected expression. He makes no argument that the magazines are not 'harmful to minors' within the definition in subsection 1(f). Thus '(n)o issue is presented * * * concerning the obscenity of the material involved.' Roth, 354 U.S., at 481, 77 S.Ct. at 1307, n. 8.
5
The New York Court of Appeals 'upheld the Legislature's power to employ variable concepts of obscenity'4 in a case in which the same challenge to state power to enact such a law was also addressed to § 484—h. Bookcase, Inc. v. Broderick, 18 N.Y.2d 71, 271 N.Y.S.2d 947, 218 N.E.2d 668, appeal dismissed for want of a properly presented federal question, sub nom. Bookcase, Inc. v. Leary, 385 U.S. 12, 87 S.Ct. 81, 17 L.Ed.2d 11. In sustaining state power to enact the law, the Court of Appeals said, Bookcase, Inc. v. Broderick, 18 N.Y.2d, p. 75, 271 N.Y.S.2d, p. 952, 218 N.E.2d, p. 671:
6
'(M)aterial which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children. In other words, the concept of obscenity or of unprotected matter may vary according to the group to whom the questionable material is directed or from whom it is quarantined. Because of the State's exigent interest in preventing distribution to children of objectionable material, it can exercise its power to protect the health, safety, welfare and morals of its community by barring the distribution to children of books recognized to be suitable for adults.'
7
Appellant's attack is not that New York was without power to draw the line at age 17. Rather, his contention is the broad proposition that the scope of the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to depend upon whether the citizen is an adult or a minor. He accordingly insists that the denial to minors under 17 of access to material condemned by § 484—h, insofar as that material is not obscene for persons 17 years of age or older, constitutes an unconstitutional deprivation of protected liberty.
8
We have no occasion in this case to consider the impact of the guarantees of freedom of expression upon the totality of the relationship of the minor and the State, cf. In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527. It is enough for the purposes of this case that we inquire whether it was constitutionally impermissible for New York, insofar as § 484—h does so, to accord minors under 17 a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see. We conclude that we cannot say that the statute invades the area of freedom of expression constitutionally secured to minors.5
9
Appellant argues that there is an invasion of protected rights under § 484—h constitutionally indistinguishable from the invasions under the Nebraska statute forbidding children to study German, which was struck down in Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; the Oregon statute interfering with children's attendance at private and parochial schools, which was struck down in Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; and the statute compelling children against their religious scruples to give the flag salute, which was struck down in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. We reject that argument. We do not regard New York's regulation in defining obscenity on the basis of its appeal to minors under 17 as involving an invasion of such minors' constitutionally protected freedoms. Rather § 484—h simply adjusts the definition of obscenity 'to social realities by permitting the appeal of this type of material to be assessed in term of the sexual interests * * *' of such minors. Mishkin v. State of New York, 383 U.S. 502, 509, 86 S.Ct. 958, 16 L.Ed.2d 56; Bookcase, Inc. v. Broderick, supra, 18 N.Y.2d, at 75, 271 N.Y.S.2d, at 951, 218 N.E.2d, at 671. That the State has power to make that adjustment seems clear, for we have recognized that even where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults * * *.' Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645.6 In Prince we sustained the conviction of the guardian of a nine-year-old girl, both members of the sect of Jehovah's Witnesses, for violating the Massachusetts Child Labor Law by permitting the girl to sell the sect's religious tracts on the streets of Boston.
10
The well-being of its children is of course a subject within the State's constitutional power to regulate, and, in our view, two interests justify the limitations in § 484—h upon the availability of sex material to minors under 17, at least if it was rational for the legislature to find that the minors' exposure to such material might be harmful. First of all, constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' Prince v. Commonwealth of Massachusetts, supra, at 166, 64 S.Ct., at 442. The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility. Indeed, subsection 1(f)(ii) of § 484—h expressly recognizes the parental role in assessing sex-related material harmful to minors according 'to prevailing standards in the adult community as a whole with respect to what is suitable material for minors.' Moreover, the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.7
11
The State also has an independent interest in the well-being of its youth. The New York Court of Appeals squarely bottomed its decision on that interest in Bookcase, Inc. v. Broderick, supra, 18 N.Y.2d at 75, 271 N.Y.S.2d, at 951, 218 N.E.2d, at 671. Judge Fuld, now Chief Judge Fuld, also emphasized its significance in the earlier case of People v. Kahan, 15 N.Y.2d 311, 258 N.Y.S.2d 391, 206 N.E.2d 333, which had struck down the first version of § 484—h on grounds of vagueness. In his concurring opinion, 15 N.Y.2d, at 312, 258 N.Y.S.2d, at 392, 206 N.E.2d, at 334, he said:
12
'While the supervision of children's reading may best be left to their parents, the knowledge that parentalcontrol or guidance cannot always be provided and society's transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them. It is, therefore, altogether fitting and proper for a state to include in a statute designed to regulate the sale of pornography to children special standards, broader than those embodied in legislation aimed at controlling dissemination of such material to adults.'
13
In Prince v. Commonwealth of Massachusetts, supra, 321 U.S., at 165, 64 S.Ct., at 441, this Court, too, recognized that the State has an interest 'to protect the welfare of children' and to see that they are 'safeguarded from abuses' which might prevent their 'growth into free and independent well-developed men and citizens.' The only question remaining, therefore, is whether the New York Legislature might rationally conclude, as it has, that exposure to the materials proscribed by § 484—h constitutes such an 'abuse.'
14
Section 484—e of the law states a legislative finding that the material condemned by § 484—h is 'a basic factor in impairing the ethical and moral development of our youth and a clear and present danger to the people of the state.' It is very doubtful that this finding expresses an accepted scientific fact.8 But obscenity is not protected expression and may be suppressed without a showing of the circumstances which lie behind the phrase 'clear and present danger' in its application to protected speech. Roth v. United States, supra, 354 U.S., at 486—487, 77 S.Ct., at 1309—1310.9 To sustain state power to exclude material defined as obscenity by § 484—h requires only that we be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors. In Meyer v. State of Nebraska, supra, 262 U.S., at 400, 43 S.Ct., at 627, we were able to say that children's knowledge of the German language 'cannot reasonably be regarded as harmful.' That cannot be said by us of minors' reading and seeing sex material. To be sure, there is no lack of 'studies' which purport to demonstrate that obscenity is or is not 'a basic factor in impairing the ethical and moral development of * * * youth and a clear and present danger to the people of the state.' But the growing consensus of commentators is that 'while these studies all agree that a causal link has not been demonstrated, they are equally agreed that a causal link has not been disproved either.'10 We do not demand of legislatures 'scientifically certain criteria of legislation.' Noble State Bank v. Haskell, 219 U.S. 104, 110, 31 S.Ct. 186, 187, 55 L.Ed. 112. We therefore cannot say that § 484—h, in defining the obscenity of material on the basis of its appeal to minors under 17, has no rational relation to the objective of safeguarding such minors from harm.
II.
15
Appellant challenges subsections (f) and (g) of § 484—h as in any event void for vagueness. The attack on subsection (f) is that the definition of obscenity 'harmful to minors' is so vague that an honest distributor of publications cannot know when he might be held to have violated § 484—h. But the New York Court of Appeals construed this definition to be 'virtually identical to the Supreme Court's most recent statement of the elements of obscenity. (A Book Named 'John Cleland's Memoirs of a Woman of Pleasure v. Attorney General of Commonwealth of Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1),' Bookcase, Inc. v. Broderick, supra, 18 N.Y.2d, at 76, 271 N.Y.S.2d, at 953, 218 N.E.2d, at 672. The definition therefore gives 'men in acting adequate notice of what is prohibited' and does not offend the requirements of due process. Roth v. United States, supra, 354 U.S., at 492, 77 S.Ct., at 1313, see also Winters v. People of State of New York, 333 U.S. 507, 520, 68 S.Ct. 665, 672, 92 L.Ed. 840.
16
As is required by Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, § 484—h prohibits only those sales made 'knowingly.' The challenge to the scienter requirement of subsection (g) centers on the definition of 'knowingly' insofar as it includes 'reason to know' or 'a belief or ground for belief which warrants further inspection or inquiry of both: (i) the character and content of any material described herein which is reasonably susceptible of examination by the defendant, and (ii) the age of the minor, provided however, that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.'
17
As to (i), § 484—h was passed after the New York Court of Appeals decided People v. Finkelstein, 9 N.Y.2d 342, 214 N.Y.S.2d 363, 174 N.E.2d 470, which read the requirement of scienter into New York's general obscenity statute, § 1141 of the Penal Law. The constitutional requirement of scienter, in the sense of knowledge of the contents of material, rests on the necessity 'to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity,' Mishkin v. State of New York, supra, 383 U.s., at 511, 86 S.Ct. at 965. The Court of Appeals in Finkelstein interpreted § 1141 to require 'the vital element of scienter' and defined that requirement in these terms: 'A reading of the statute (§ 1141) as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth which is exorcised * * *.' 9 N.Y.2d, at 344 345, 214 N.Y.S.2d, at 364, 174 N.E.2d, at 471. (Emphasis supplied.) In Mishkin v. State of New York, supra, 383 U.S., at 510—511, 86 S.Ct., at 964, we held that a challenge to the validity of § 1141 founded on Smith v. People of State of California, supra, was foreclosed in light of this construction. When § 484—h was before the New York Legislature its attention was directed to People v. Finkelstein, as defining the nature of scienter required to sustain the statute. 1965 N.Y.S.Leg.Ann. 54 56. We may therefore infer that the reference in provision (i) to knowledge of 'the character and content of any material described herein' incorporates the gloss given the term 'character' in People v. Finkelstein. In that circumstance Mishkin requires rejection of appellant's challenge to provision (i) and makes it unnecessary for us to define further today 'what sort of mental element is requisite to a constitutionally permissible prosecution,' Smith v. People of State of California, supra, 361 U.S., at 154, 80 S.Ct., at 219.
18
Appellant also attacks provision (ii) as impermissibly vague. This attack however is leveled only at the proviso according the defendant a defense of 'honest mistake' as to the age of the minor. Appellant argues that 'the statute does not tell the bookseller what effort he must make before he can be excused.' The argument is wholly without merit. The proviso states expressly that the defendant must be acquitted on the ground of 'honest mistake' if the defendant proves that he made 'a reasonable bona fide attempt to ascertain the true age of such minor.' Cf. 1967 Penal Law § 235.22(2), n. 1, supra.
19
Affirmed.
APPENDIX A TO OPINION OF THE COURT.
20
New York Penal Law § 484—h as enacted by L. 1965, c. 327, provides:
21
s 484—h. Exposing minors to harmful materials
1. Definitions. As used in this section:
22
(a) 'Minor' means any person under the age of seventeen years.
23
(b) 'Nudity' means the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.
24
(c) 'Sexual conduct' means acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, public area, buttocks or, if such person be a female, breast.
25
(d) 'Sexual excitement' means the condition of human male or female genitals when in a state of sexual stimulation or arousal.
26
(e) 'Sado-masochistic abuse' means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
27
(f) 'Harmful to minors' means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it:
28
(i) predominantly appeals to the prurient, shameful or morbid interest of minors, and
29
(ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and
30
(iii) is utterly without redeeming social importance for minors.
31
(g) 'Knowingly' means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:
32
(i) the character and content of any material described herein which is reasonably susceptible of examination by the defendant, and
33
(ii) the age of the minor, provided however, that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.
34
2. It shall be unlawful for any person knowingly to sellor loan for monetary consideration to a minor:
35
(a) any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct or sadomasochistic abuse and which is harmful to minors, or
36
(b) any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (a) of subdivision two hereof, or explicit and detailed verbal descriptions or narrative accounts of sexual excitementSexual conduct or sado-masochistic abuse and which, taken as a whole is harmful to minors.
37
3. It shall be unlawful for any person knowingly to exhibit for a monetary consideration to a minor or knowingly to sell to a minor an admission ticket or pass or knowingly to admit a minor for a monetary consideration to premises whereon there is exhibited, a motion picture, show or other presentation which, in whole or in part, depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors.
38
4. A violation of any provision hereof shall constitute a misdemeanor.
APPENDIX B TO OPINION OF THE COURT.
39
State obscenity statutes having some provision referring to distribution to minors are:
40
Cal.Pen.Code §§ 311—312 (Supp.1966); Colo.Rev.Stat.Ann. §§ 40 9—16 to 40—9—27 (1963); Conn.Gen.Stat.Rev. §§ 53—243 to 53—245 (Supp.1965); Del.Code Ann., Tit. 11, §§ 435, 711—713 (1953); Fla.Stat.Ann. §§ 847.011—847.06 (1965 and Supp.1968); Ga.Code Ann. ss 26—6301 to 26—6309a (Supp.1967); Hawaii Rev. Laws § 267—8 (1955); Idaho Code Ann. §§ 18—1506 to 18—1510 (Supp.1967); Ill.Ann.Stat., c. 38, §§ 11—20 to 11—21 (Supp.1967); Iowa Code Ann. §§ 725.4—725.12 (1950); Ky.Rev.Stat. §§ 436.100 436.130, 436.540—436.580 (1963 and Supp.1966); La.Rev.Stat. §§ 14:91.11, 14:92, 14:106 (Supp.1967); Me.RevStat.Ann., Tit. 17, §§ 2901—2905 (1964); Md.Ann.Code, Art. 27, §§ 417—425 (1957 and Supp.1967); Mass.Gen.Laws Ann., c. 272, §§ 28—33 (1959 and Supp.1968); Mich.Stat.Ann. §§ 28.575—28.579 (1954 and Supp.1968), Comp. Laws Mich. §§ 750.343—750.347; Mo.Ann.Stat. §§ 563.270 563.310 (1953 and Supp.1967); Mont.Rev.Codes Ann. §§ 94—3601 to 94 3606 (1947 and Supp.1967); Neb.Rev.Stat. §§ 28—926.09 to 28—926.10 (1965 Cum.Supp.); Nev.Rev.Stat. §§ 201.250, 207.180 (1965); N.H.Rev.Stat.Ann. §§ 571—A:1 to 571—A:5 (Supp.1967); N.J.Stat.Ann. §§ 2A:115—1.1 to 2A:115—4 (Supp.1967); N.C.Gen.Stat. § 14—189 (Supp.1967); N.D.Cent.Code §§ 12—21—07 to 12—21—09 (1960); Ohio Rev.Code Ann. §§ 2903.10—2903.11, 2905.34—2905.39 (1954 and Supp.1966); Okla.Stat.Ann., Tit. 21, §§ 1021—1024, 1032—1039 (1958 and Supp.1967); Pa.Stat.Ann., Tit. 18, §§ 3831—3833, 4524 (1963 and Supp.1967); R.I.Gen.Laws Ann. §§ 11—31—1 to 11—31—10 (1956 and Supp.1967); S.C.Code Ann. §§ 16—414.1 to 16—421 (1962 and Supp.1967); Tex.Pen.Code, Arts. 526, 527b (1952 and Supp.1967); Utah Code Ann. §§ 76—39-5, 76—39—17 (Supp.1967); Vt.Stat.Ann., Tit. 13, §§ 2801—2805 (1959); Va.Code Ann. §§ 18.1—227 to 18.1 236.3 (1960 and Supp.1966); W.Va.Code Ann. § 61—8—11 (1966); Wyo.Stat.Ann. §§ 6—103, 7—148 (1957).
41
Mr. Justice STEWART, concurring in the result.
42
A doctrinaire, knee-jerk application of the First Amendment would, of course, dictate the nullification of this New York statute.1 But that result is not required, I think, if we bear in mind what it is that the First Amendment protects.
43
The First Amendment guarantees liberty of human expression in order to preserve in our Nation what Mr. Justice Holmes called a 'free trade in ideas.'2 To that end, the Constitution protects more than just a man's freedom to say or write or publish what he wants. It secures as well the liberty of each man to decide for himself what he will read and to what he will listen. The Constitution guarantees, in short, a society of free choice. Such a society presupposes the capacity of its members to choose.
44
When expression occurs in a setting where the capacity to make a choice is absent, government regulation of that expression may co-exist with and even implement First Amendment guarantees. So it was that this Court sustained a city ordinance prohibiting people from imposing their opinions on others 'by way of sound trucks with loud and raucous noises on city streets.'3 And so it was that my Brothers BLACK and DOUGLAS thought that the First Amendment itself prohibits a person from foisting his uninvited views upon the members of a captive audience.4
45
I think a State may permissibly determine that, at least in some precisely delineated areas, a child5—like someone in a captive audience—is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees. It is only upon such a premise, I should suppose, that a State may deprive children of other rights the right to marry, for example, or the right to vote—deprivations that would be constitutionally intolerable for adults.6
46
I cannot hold that this state law, on its face,7 violates the First and Fourteenth Amendments.
47
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
48
While I would be willing to reverse the judgment on the basis of Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515, for the reasons stated by my Brother FORTAS, my objections strike deeper.
49
If we were in the field of substantive due process and seeking to measure the propriety of state law by the standards of the Fourteenth Amendment, I suppose there would be no difficulty under our decisions in sustaining this act. For there is a view held by many that the so-called 'obscene' book or tract or magazine has a deleterious effect upon the young, although I seriously doubt the wisdom of trying by law to put the fresh, evanescent, natural blossoming of sex in the category of 'sin.'
50
That, however, was the view of our preceptor in this field. Anthony Comstock, who waged his war against 'obscenity' from the year 1872 until his death in 1915. Some of his views are set forth in his book Traps for the Young, first published in 1883, excerpts from which I set out in Appendix I to this opinion.
51
The title of the book refers to 'traps' created by Satan 'for boys and girls especially.' Comstock, of course, operated on the theory that every human has an 'inborn tendency toward wrongdoing which is restrained mainly by fear of the final judgment.' In his view any book which tended to remove that fear is a part of the 'trap' which Satan created. Hence, Comstock would have condemned a much wider range of literature than the present Court is apparently inclined to do.1
52
It was Comstock who was responsible for the Federal Anti-Obscenity Act of March 3, 1873. 17 Stat. 598. It was he who was also responsible for the New York Act which soon followed. He was responsible for the organization of the New York Society for the Suppression of Vice, which by its act of incorporation was granted one-half of the fines levied on people successfully prosecuted by the Society or its agents.
53
I would conclude from Comstock and his Traps for the Young and from other authorities that a legislature could not be said to be wholly irrational2 (Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1928, 10 L.Ed.2d 93; and see Williamson v. Lee Optical Co. of Okl., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; Daniel v. Family Sec. Ins. Co., 336 U.S. 220, 69 S.Ct. 550, 93 L.Ed. 632; Olsen v. State of Nebraska, 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305) if it decided that sale of 'obscene' material to the young should be banned.3
54
The problem under the First Amendment, however, has always seemed to me to be quite different. For its mandate (originally applicable only to the Federal Government but now applicable to the States as well by reason of the Fourteenth Amendment) is directed to any law 'abridging the freedom of speech, or of the press.' I appreciate that there are those who think that 'obscenity' is impliedly excluded; but I have indicated on prior occasion why I have been unable to reach that conclusion.4 See Ginzburg v. United States, 383 U.S. 463, 482, 86 S.Ct. 942, 953, 16 L.Ed.2d 31 (dissenting opinion); Jacobellis v. State of Ohio, 378 U.S. 184, 196, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (concurring opinion of Mr. Justice Black); Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321, 1 L.Ed.2d 1498 (dissenting opinion). And the corollary of that view, as I expressed it in Public Utilities Comm'n of District of Columbia v. Pollak, 343 U.S. 451, 467, 468, 72 S.Ct. 813, 823, 96 L.Ed. 1068 (dissenting opinion), is that Big Brother can no more say what a person shall listen to or read than he can say what shall be published.
55
This is not to say that the Court and Anthony Comstock are wrong in concluding that the kind of literature New York condemns does harm. As a matter of fact, the notion of censorship is founded on the belief that speech and press sometimes do harm and therefore can be regulated. I once visited a foreign nation where the regime of censorship was so strict that all I could find in the bookstalls were tracts on religion and tracts on mathematics. Today the Court determines the constitutionality of New York's law regulating the sale of literature to children on the basis of the reasonableness of the law in light of the welfare of the child. If the problem of state and federal regulation of 'obscenity' is in the field of substantive due process, I see no reason to limit the legislatures to protecting children alone. The 'juvenile delinquents' I have known are mostly over
Thus, Roth v. United States, supra, which involved both a challenge to 18 U.S.C. § 1461 (punishing the mailing of 'obscene' material) and, in a consolidated case (Roth v. United States (Alberts v. State of California), an attack upon Cal.Pen.Code § 311 (prohibiting, inter alia, the keeping for sale or advertising of 'obscene' material), was the first case authoritatively to measure federal and state obscenity statutes against the prohibitions of the First and Fourteenth Amendments. I cannot speak for those who preceded us in time; but neither can I interpret occasional utterances suggesting that 'obscenity' was not protected by the First Amendment as considered expressions of the views of any particular Justices of the Court. See, e.g., Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571—572, 62 S.Ct. 766, 768—769, 86 L.Ed. 1031; Beauharnais v. People of State of Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919. The most that can be said, then, is that no other members of this Court since 1957 have adhered to the view of my Brother BLACK and myself. 50 years of age. If rationality is the measure of the validity of this law, then I can see how modern Anthony Comstocks could make out a case for 'protecting' many groups in our society, not merely children.
While I find the literature and movies which come to us for clearance exceedingly dull and boring, I understand how some can and do become very excited and alarmed and think that something should be done to stop the flow. It is one thing for parents5 and the religious organizations to be active and involved. It is quite a different matter for the state to become implicated as a censor. As I read the First Amendment, it was designed to keep the state and the hands of all state officials off the printing presses of America and off the distribution systems for all printed literature. Anthony Comstock wanted it the other way; he indeed put the police and prosecutor in the middle of this publishing business.
I
think it would require a constitutional amendment to achieve that result. If there were a constitutional amendment, perhaps the people of the country would come up with some national board of censorship. Censors are, of course, propelled by their own neuroses6 That is why a universally accepted definition of obscenity is impossible. Any definition is indeed highly subjective, turning on the neurosis of the censor. Those who have a deep-seated, subconscious conflict may well become either great crusaders against a particular kind of literature or avid customers of it.7 That, of course, is the danger of letting any group of citzens be the judges of what other people, young or old, should read. Those would be issues to be canvassed and debated in case of a constitutional amendment creating a regime of censorship in the country. And if the people, in their wisdom, launched us on that course, it would be a considered choice.
Today this Court sits as the Nation's board of censors. With all respect I do not know of any group in the country less qualified first, to know what obscenity is when they see it, and second, to have any considered judgment as to what the deleterious or beneficial impact of a particular publication may be on minds either young or old.
I
would await a constitutional amendment that authorized the modern Anthony Comstocks to censor literature before publishers, authors, or distributors can be fined or jailed for what they print or sell
APPENDIX I TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING.
A
COMSTOCK, TRAPS FOR THE YOUNG 20—22 (1883)
And it came to pass that as Satan went to and fro upon the earth, watching his traps and rejoicing over his numerous victims, he found room for improvement in some of his schemes. The daily press did not meet all his requirements. The weekly illustrated papers of crime would do for young men and sports, for brothels, gin-mills, and thieves' resorts, but were found to be so gross, so libidinous, so monstrous, that every decent person spurned them. They were excluded from the home on sight. They were too highpriced for children, and too cumbersome to be conveniently his from the parent's eye or carried in the boy's pocket. So he resolved to make another trap for boys and girls especially.
He also resolved to make the most of these vile illustrated weekly papers, by lining the news-stands and shop-windows along the pathway of the children from home to school and church, so that they could not go to and from these places of instruction without giving him opportunity to defile their pure minds by flaunting these atrocities before their eyes.
And Satan rejoiced greatly that professing Christians were silent and apparently acquiesced in his plans. He found that our most refined men and women went freely to trade with persons who displayed these traps for sale; that few, if any, had moral courage to enter a protest against this public display of indecencies, and scarcely one in all the land had the boldness to say to the dealer in filth, 'will not give you one cent of my patronage so long as you sell these devil-traps to ruin the young.' And he was pround of professing Christians and respectable citizens on this account, and caused honorable mention to be made of them in general order to his imps, because of the quiet and orderly assitance thus rendered him.
Satan stirred up certain of his willing tools on earth by the promise of a few paltry dollars to improve greatly on the death-dealing quality of the weekly deathtraps, and forthwith came a series of new snares of fascinating construction, small and tempting in price, and baited with high-sounding names. These sure-ruin traps comprise a large variety of halfdime novels, five and ten cent story papers, and low-priced pamphlets for boys and girls.
This class includes the silly, insipid tale, the coarse, slangy story in the dialect of the barroom, the blood-and-thunder romance of border life, and the exaggerated details of crimes, real and imaginary. Some have highly colored sensational reports of real crimes, while others, and by far the larger number, deal with most improbable creations of fiction. The unreal far outstrips the real. Crimes are gilded, and lawlessness is painted to resemble valor, making a bid for bandits, brigands, murderers, thieves, and criminals in general. Who would go to the State prison, the gambling saloon, or the brothel to find a suitable companion for the child? Yet a more insidious foe is selected when these stories are allowed to become associates for the child's mind and to shape and direct the thoughts.
The finest fruits of civilization are consumed by these vermin. Nay, these products of corrupt minds are the eggs from which all kinds of villainies are hatched. Put the entire batch of these stories together, and I challenge the publishers and vendors to show a single instance where any boy or girl has been elevated in morals, or where any noble or refined instinct has been developed by them.
The leading character in many, if not in the vast majority of these stories, is some boy or girl who possesses usually extraordinary beauty of countenance, the most superb clothing, abundant wealth, the strength of a giant, the agility of a squirrel, the cunning of a fox, the brazen effrontery of the most daring villain, and who is utterly destitute of any regard for the laws of God or man. Such a one is foremost among desperadoes, the companion and beau-ideal of maidens, and the high favorite of some rich person, who by his patronage and indorsement lifts the young villain into lofty positions in society, and provides liberally of his wealth to secure him immunity for his crimes. These stories link the pure maiden with the most foul and loathsome criminals. Many of them favor violation of marriage laws and cheapen female virtue.
APPENDIX II TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING.
A
SPECIAL TO THE WASHINGTON POST
(March 3, 1968) by AUSTIN C. WEHRWEIN
White Bear Lake, Minn., March 2.—Faced with the threat of a law suit, the school board in this community of 12,000 north of St. Paul is reviewing its mandatory sex education courses, but officials expressed fear that they couldn't please everybody.
Mothers threatened to picket and keep their children home when sex education films are scheduled. Mrs. Robert Murphy, the mother of five who led the protests, charged that the elementary school 'took the privacy out of marriage.'
'Now,' she said, 'our kids know what a shut bedroom door means. The program is taking their childhood away. The third graders went in to see a movie on birth and came out adults.'
She said second-grade girls have taken to walking around with 'apples and oranges under their blouses.' Her seventh-grade son was given a study sheet on menstruation, she said, demanding 'why should a seventh-grade boy have to know about menstruation?'
Mrs. Murphy, who fears the program will lead to experimentation, said that it was 'pagan' and argued that even animals don't teach their young those things 'before they're ready.'
'One boy in our block told his mother, 'Guess what, next week our teacher's gonna tell how daddy fertilized you," reported Mrs. Martin Capeder. 'They don't need to know all that.'
But Norman Jensen, principal of Lincoln School, said, that the program, which runs from kindergarten through the 12th grade, was approved by the school district's PTA council, the White Bear Lake Ministerial Association and the district school board. It was based, he said, on polls that showed 80 per cent of the children got no home sex education, and the curriculum was designed to be 'matter-of-fact.'
The protesting parents insisted they had no objection to sex education as such, but some said girls should not get it until age 12, and boys only at age 15—'or when they start shaving.'
(In nearby St. Paul Park, 71 parents have formed a group called 'Concerned Parents Against Sex Education' and are planning legal action to prevent sex education from kindergarten through seventh grade. They have also asked equal time with the PTAs of eight schools in the district 'to discuss topics such as masturbation, contraceptives, unqualified instructors, religious belief, morality and attitudes.')
The White Bear protesters have presented the school board with a list of terms and definitions deemed objectionable. Designed for the seventh grade, it included vagina, clitoris, erection, intercourse and copulation. A film, called 'Fertilization and Birth' depicts a woman giving birth. It has been made optional after being shown to all classes.
Mrs. Ginny McKay, a president of one of the local PTAs defended the program, saying 'Sex is a natural and beautiful thing. We (the PTA) realized that the parents had to get around to where the kids have been for a long time.'
But Mrs. Murphy predicted this result: 'Instead of 15 (sic) and 15-year-old pregnant girls, they'll have 12 and 13-year-old pregnant girls.'
APPENDIX III TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING.
(A). T. SCHROEDER, OBSCENE LITERATURE AND CONSTITUTIONAL LAW 277 278 (1911).
It thus appears that the only unifying element generalized in the word 'obscene,' (that is, the only thing common to every conception of obscenity and indecency), is subjective, is an affiliated emotion of disapproval. This emotion under varying circumstances of temperament and education in different persons, and in the same person in different stages of development, is aroused by entirely different stimuli, and by fear of the judgment of others, and so has become associated with an infinite variety of ever-changing objectives, with not even one common characteristic in objective nature; that is, in literature or art.
Since few men have identical experiences, and fewer still evolve to an agreement in their conceptional and emotional associations, it must follow that practically none have the same standards for judging the 'obscene,' even when their conclusions agree. The word 'obscene,' like such words as delicate, ugly, lovable, hateful, etc., is an abstraction not based upon a reasoned, nor sense-perceived, likeness between objectives, but the selection or classification under it is made, on the basis of similarity in the emotions aroused, by an infinite variety of images; and every classification thus made, in turn, depends in each person upon his fears, his hopes, his prior experience, suggestions, education, and the degree of neuro-sexual or psycho-sexual health. Because it is a matter wholly of emotions, it has come to be that 'men think they know because they feel, and are firmly convinced because strongly agitated.'
This, then, is a demonstration that obscenity exists only in the minds and emotions of those who believe in it, and is not a quality of a book or picture. Since, then, the general conception 'obscene' is devoid of every objective element of unification; and since the subjective element, the associated emotion, is indefinable from its very nature, and inconstant as to the character of the stimulus capable of arousing it, and variable and immeasurable as to its relative degrees of intensity, it follows that the 'obscene' is incapable of accurate definition or a general test adequate to secure uniformity of result, in its application by every person, to each book of doubtful 'purity.'
Being so essentially and inextricably involved with human emotions that no man can frame such a definition of the word 'obscene,' either in terms of the qualities of a book, or such that, by it alone, any judgment whatever is possible, much less is it possible that by any such alleged 'test' every other man must reach the same conclusion about the obscenity of every conceivable book. Therefore, the so-called judicial 'tests' of obscenity are not standards of judgment, but, on the contrary, by every such 'test' the rule of decision is itself uncertain, and in terms invokes the varying experiences of the test(e)rs within the foggy realm of problematical speculation about psychic tendencies, without the help of which the 'test' itself is meaningless and useless. It follows that to each person the 'test,' of criminality, which should be a general standard of judgment, unavoidably becomes a personal and particular standard, differing in all persons according to those varying experiences which they read into the judicial 'test.' It is this which makes uncertain, and, therefore, all the more objectionable, all the present laws against obscenity. Later it will be shown that this uncertainty in the criteria of guilt renders these laws unconstitutional.
(B). KALLEN, THE ETHICAL ASPECTS OF CENSORSHIP, IN 5 SOCIAL MEANING OF LEGAL CONCEPTS 34, 50—51 (N.Y.U. 1953).
To this authoritarian's will, difference is the same thing as inferiority, wickedness and corruption; he can apprehend it only as a devotion to error and a commitment to sin. He can acknowledge it only if he attributes to it moral turpitude and intellectual vice. Above all, difference must be for him, by its simple existence, an aggression against the good, the true, the beautiful and the right. His imperative is to destroy it; if he cannot destroy it, to contain it; if he cannot contain it, to hunt it down, cut it off and shut it out.
Certain schools of psychology suggest that this aggression is neither simple nor wholly aggression. They suggest that it expresses a compulsive need to bring to open contemplation the secret parts of the censor's psychosomatic personality, and a not less potent need to keep the secret and not suffer the shamefaced dishonor of their naked exposures. The censor's activities, in that they call for a constant public preoccupation with such secret parts, free his psyche from the penalties of such concern while trans-valuing at the same time his pursuit and inspection of the obscene, the indecent, the pornographic, the blasphemous and the otherwise shameful into an honorable defense of the public morals. The censor, by purporting, quite unconscious of his actual dynamic, to protect the young from corruption, frees his consciousness to dwell upon corruption without shame or dishonor. Thus, Anthony Comstock could say with overt sincerity: 'When the genius of the arts produces obscene, lewd and lascivious ideas, the deadly effect upon the young is just as perceptible as when the same ideas are represented by gross experience in prose and poetry. * * * If through the eye and ear the sensuous book, picture or story is allowed to enter, the thoughts will be corrupted, the conscience seared, so such things reproduced by fancy in the thoughts awaken forces for evil which will explode with irresistible force carrying to destruction every human safeguard to virtue and honor.' Did not evil Bernard Shaw, who gave the English language the word comstockery, declare himself, in his preface to the Shewing-Up of Blanco Posnet, 'a specialist in immoral, heretical plays * * * to force the public to reconsider its morals'? So the brave Comstock passionately explored and fought the outer expressions of the inner forces of evil and thus saved virtue and honor from destruction.
But could this observation of his be made, save on the basis of introspection and not the scientific study of others? For such a study would reveal, for each single instance of which it was true, hundreds of thousands of others of which it was false. Like the correlation of misfortune with the sixth day of the week or the number 13, this basic comstockery signalizes a fear-projected superstition. It is an externalization of anxiety and fear, not a fact objectively studied and appraised. And the anxiety and fear are reaction-formations of the censor's inner self.
Of course, this is an incomplete description of the motivation and logic of censorship. In the great censorial establishments of the tradition, these more or less unconscious drives are usually items of a syndrome whose dominants are either greed for pelf, power, and prestige, reinforced by anxiety that they might be lost, or anxiety that they might be lost reinforced by insatiable demands for more.
Authoritarian societies usually insure these goods by means of a prescriptive creed and code for which their rulers claim supernatural origins and supernatural sanctions. The enforcement of the prescriptions is not entrusted to a censor alone. The ultimate police-power is held by the central hierarchy, and the censorship of the arts is only one department of the thought-policing.
(C). CRAWFORD, LITERATURE AND THE PSYCHOPATHIC, 10 PSYCHOANALYTIC REVIEW 440, 445—446 (1923).
Objection, then, to modern works on the ground that they are, in the words of the objectors, 'immoral,' is made principally on the basis of an actual desire to keep sexual psychopathies intact, or to keep the general scheme of repression, which inevitably involves psychopathic conditions, intact. The activities of persons professionally or otherwise definitely concerned with censorship furnish proof evident enough to the student of such matters that they themselves are highly abnormal. It is safe to say that every censorship has a psychopath back of it.
Carried to a logical end, censorship would inevitably destroy all literary art. Every sexual act is an instinctive feeling out for an understanding of life. Literary art, like every other type of creative effort, is a form of sublimation. It is a more conscious seeking for the same understanding that the common man instinctively seeks. The literary artist, having attained understanding, communicates that understanding to his readers. That understanding, whether of sexual or other matters, is certain to come into conflict with popular beliefs, fears, and taboos because these are, for the most part, based on error. * * * (T)he presence of an opinion concerning which one thinks it would be unprofitable, immoral, or unwise to inquire is, of itself, strong evidence that that opinion is nonrational. Most of the more deepseated convictions of the human race belong to this category. Anyone who is seeking for understanding is certain to encounter this nonrational attitude.
The act of sublimition on the part of the writer necessarily involves an act of sublimation on the part of the reader. The typical psychopathic patient and the typical public have alike a deeprooted unconscious aversion to sublimation. Inferiority and other complexes enter in to make the individual feel that acts of sublimation would destroy his comfortable, though illusory, sense of superiority, Again, there is the realization on the part of the mass of people that they are unable to sublimate as the artist does, and to admit his power and right to do so involves destruction of the specious sense of superiority to him. It is these two forms of aversion to sublimation which account for a considerable part of public objection to the arts. The common man and his leader, the psychopathic reformer, are aiming unconsciously at leveling humanity to a plane of pathological mediocrity.
To the student of abnormal psychology the legend, popular literature, and literature revelatory of actual life, are all significant. In the legend he finds race taboos, in the popular literature of the day he discovers this reinforced by the mass of contemporary and local taboos, in literature that aims to be realistically revelatory of life he finds material for study such as he can hardly obtain from any group of patients. The frankness which he seeks in vain from the persons with whom he comes into personal contact, he can find in literature. It is a field in which advances may be made comparable to the advances of actual scientific research.
Moreover, the student of abnormal psychology will commend realistic, revelatory literature not only to his patients, who are suffering from specific psychopathic difficulties, but to the public generally. He will realize that it is one of the most important factors in the development of human freedom. No one is less free than primitive man. The farther we can get from the attitude of the legend and its slightly more civilized successor, popular literature, the nearer we shall be to a significant way of life.
(D). J. RINALDO, PSYCHOANALYSIS OF THE 'REFORMER' 56—60 (1921).
The other aspect of the humanist movement is a very sour and disgruntled puritanism, which seems at first glance to protest and contradict every step in the libidinous development. As a matter of fact it is just as much an hysterical outburst as the most sensuous flesh masses of Rubens, or the sinuous squirming lines of Louis XV decoration. Both are reactions to the same morbid past experience.
The Puritan like the sensualist rebels at the very beginning against the restraint of celibacy. Unfortunately, however, he finds himself unable to satisfy the libido in either normal gratification or healthy converted activities. His condition is as much one of super-excitement as that of the libertine. Unable to find satisfaction in other ways, from which for one reason or another he is inhibited, he develops a morbid irritation, contradicting, breaking, prohibiting and thwarting the manifestations of the very exciting causes.
Not being able to produce beautiful things he mars them, smashing stained glass windows, destroying sculptures, cutting down May-poles, forbidding dance, clipping the hair, covering the body with hideous misshapen garments and silencing laughter and song. He cannot build so he must destroy. He cannot create so he hinders creation. He is a sort of social abortionist and like an abortionist only comes into his own when there is an illegitimate brat to be torn from the womb. He cries against sin, but it is the pleasure of sin rather than the sin he fights. It is the enjoyment he is denied that he hates.
From no age or clime or condition is he absent; but never is he a dominant and deciding factor in society till that society has passed the bounds of sanity. Those who wait the midwife never call in the abortionist, nor does he ever cure the real sickness of his age. That he does survive abnormal periods to put his impress on the repressions of later days is due to the peculiar economy of his behavior. The libertine destroys himself, devouring his substance in self-satisfaction. The reformer devours others, being somewhat in the nature of a tax on vice, living by the very hysteria that destroys his homologous opposite.
In our own day we have reached another of those critical periods strikingly similar in its psychological symptoms and reactions, at least, to decadent Rome. We have the same development of extravagant religious cults, Spiritism, Dowieism, 'The Purple Mother,' all eagerly seized upon, filling the world with clamor and frenzy; the same mad seeking for pleasure, the same breaking and scattering of forms, the same orgy of gluttony and extravagance, the same crude emotionalism in art, letter and the theater, the same deformed and inverted sexual life.
Homo-sexualism may not be openly admitted, but the 'sissy' and his red necktie are a familiar and easily understood property of popular jest and pantomime. It is all a mad jazz jumble of hysterical incongruities, dog dinners, monkey marriages, cubism, birth control, feminism, free-love, verse libre, and moving pictures. Through it all runs the strident note of puritianism. As one grows so does the other. Neither seems to precede or follow.
It would be a rash man indeed who would attempt to give later beginnings to the reform movements than to the license they seem so strongly to contradict. Significant indeed is the fact that their very license is the strongest appeal of the reformer. Every movie must preach a sermon and have a proper ending, but the attempted rape is as seldom missing as the telephone; and it is this that thrills and is expected to thrill.
The same sexual paradox we saw in the eunuch priests and harlot priestesses of Isis we see in the vice-crusading, vice-pandering reformers. Back of it all lies a morbid sexual condition, which is as much behind the anti-alcoholism of the prohibitionist, as behind the cropped head of his puritan father, and as much behind the birth-control, vice-crusading virgins as behind their more amiable sisters of Aphrodite.
Interpreted then in the light of their history, libertinism and reformism cannot be differentiated as cause and effect, action and reaction, but must be associated as a two-fold manifestation of the same thing, an hysterical condition. They differ in externals, only insofar as one operates in license and the other in repression, but both have the same genesis and their development is simultaneous.
(E). H. LASSWELL, PSYCHOPATHOLOGY AND POLITICS 94—96 (1930).
Another significant private motive, whose organization dates from early family days, but whose influence was prominent in adult behavior, was A's struggle to maintain his sexual repressions. ('A' is an unidentified, nonfictional person whose life history was studied by the author.) He erected his very elaborate personal prohibitions into generalized prohibitions for all society, and just as he laid down the law against brother-hatred, he condemned 'irregular' sexuality and gambling and drinking, its associated indulgences. He was driven to protect himself from himself by so modifying the environment that his sexual impulses were least often aroused, but it is significant that he granted partial indulgence to his repressed sexuality by engaging in various activities closely associated with sexual operations. Thus his sermons against vice enabled him to let his mind dwell upon rich fantasies of seduction. His crusading ventures brought him to houses of ill fame, where partly clad women were discoverable in the back rooms. These activities were rationalized by arguing that it was up to him as a leader of the moral forces of the community to remove temptation from the path of youth. At no time did he make an objective inquiry into the many factors in society which increase or diminish prostitution. His motives were of such an order that he was prevented from self-discipline by prolonged inspection of social experience.
That A was never able to abolish his sexuality is sufficiently evident in his night dreams and day dreams. In spite of his efforts to 'fight' these manifestations of his 'antisocial impulses,' they continued to appear. Among the direct and important consequences which they produced was a sense of sin, not only a sense of sexual sin, but a growing conviction of hypocrisy. His 'battle' against 'evil' impulses was only partially successful, and this produced a profound feeling of insecurity.
This self-punishing strain of insecurity might be alleviated, he found, by publicly reaffirming the creed of repression, and by distracting attention to other matters. A's rapid movements, dogmatic assertions, and diversified activities were means of escape from this gnawing sense of incapacity to cope with his own desires and to master himself. Uncertain of his power to control himself, he was very busy about controlling others, and engaged in endless committee sessions, personal conferences, and public meetings for the purpose. He always managed to submerge himself in a buzzing life of ceaseless activity; he could never stand privacy and solitude, since it drove him to a sense of futility; and he couldn't undertake prolonged and laborious study, since his feeling of insecurity demanded daily evidence of his importance in the world.
A's sexual drives continued to manifest themselves, and to challenge his resistances. He was continually alarmed by the luring fear that he might be impotent. Although he proposed marriage to two girls when he was a theology student, it is significant that he chose girls from his immediate entourage, and effected an almost instantaneous recovery from his disappointments. This warrants the inference that he was considerably relieved to postpone the test of his potency, and this inference is strengthened by the long years during which he cheerfully acquiesced in the postponement of his marriage to the woman who finally became his wife. He lived with people who valued sexual potency, particularly in its conventional and biological demonstration in marriage and children, and his unmarried state was the object of good-natured comment. His pastoral duties required him to 'make calls' on the sisters of the church, and in spite of the cheer which he was sometimes able to bring to the bedridden, there was the faint whisper of a doubt that this was really a man's job. And though preaching was a socially respectable occupation, there was something of the ridiculous in the fact that one who had experienced very little of life should pass for a privileged censor of all mankind.
Mr. Justice FORTAS, dissenting.
This is a criminal prosecution. Sam Ginsburg and his wife operate a luncheonette at which magazines are offered for sale. A 16-year-old boy was enlisted by his mother to go to the luncheonette and buy some 'girlie' magazines so that Ginsberg could be prosecuted. He went there, picked two magazines from a display case, paid for them, and walked out. Ginsberg's offense was duly reported to the authorities. The power of the State of New York was invoked. Ginsberg was prosecuted and convicted. The court imposed only a suspended sentence. But as the majority here points out, under New York law this conviction may mean that Ginsberg will lose the license necessary to operate his luncheonette.
The two magazines that the 16-year-old boy selected are vulgar 'girlie' periodicals. However tasteless and tawdry they may be, we have ruled (as the Court acknowledges) that magazines indistinguishable from them in content and offensiveness are not 'obscene' within the constitutional standards heretofore applied. See, e.g., Redrup v. State of New York (Gent v. State of Arkansas) 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). These rulings have been in cases involving adults.
The Court avoids facing the problem whether the magazines in the present case are 'obscene' when viewed by a 16-year-old boy, although not 'obscene' when viewed by someone 17 years of age or older. It says that Ginsberg's lawyer did not choose to challenge the conviction on the ground that the magazines are not 'obscene.' He chose only to attack the statute on its face. Therefore, the Court reasons, we need not look at the magazines and determine whether they may be excluded from the ambit of the First Amendment as 'obscene' for purposes of this case. But this Court has made strong and comprehensive statements about its duty in First Amendment cases—statements with which I agree. See, e.g., Jacobellis v. State of Ohio, 378 U.S. 184, 187—190, 84 S.Ct. 1676, 1677—1679, 12 L.Ed.2d 793 (1964) (opinion of Brennan, J.).*
In my judgment, the Court cannot properly avoid its fundamental duty to define 'obscenity' for purposes of censorship of material sold to youths, merely because of counsel's position. By so doing the Court avoids the essence of the problem; for if the State's power to censor freed from the prohibitions of the First Amendment depends upon obscenity, and if obscenity turns on the specific content of the publication, how can we sustain the conviction here without deciding whether the particular magazines in question are obscene?
The Court certainly cannot mean that the States and cities and counties and villages have unlimited power to withhold anything and everything that is written or pictorial from younger people. But it here justifies the conviction of Sam Ginsberg because the impact of the Constitution, it says, is variable, and what is not obscene for an adult may be obscene for a child. This it calls 'variable obscenity.' I do not disagree with this, but I insist that to assess the principle—certainly to apply it—the Court must define it. We must know the extent to which literature or pictures may be less offensive than Roth requires in order to be 'obscene' for purposes of a statute confined to youth. See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).
I
agree that the State in the exercise of its police power even in the First Amendment domain—may make proper and careful differentiation between adults and children. But I do not agree that this power may be used on an arbitrary, free-wheeling basis. This is not a case where, on any standard enunciated by the Court, the magazines are obscene, nor one where the seller is at fault. Petitioner is being prosecuted for the sale of magazines which he had a right under the decisions of this Court to offer for sale, and he is being prosecuted without proof of 'fault'—without even a claim that he deliberately, calculatedly sought to induce children to buy 'obscene' material. Bookselling should not be a hazardous profession
The conviction of Ginsberg on the present facts is a serious invasion of freedom. To sustain the conviction without inquiry as to whether the material is 'obscene' and without any evidence of pushing or pandering, in face of this Court's asserted solicitude for First Amendment values, is to give the State a role in the rearing of children which is contrary to our traditions and to our conception of family responsibility. Cf. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). It begs the question to present this undefined, unlimited censorship as an aid to parents in the rearing of their children. This decision does not merely protect children from activities which all sensible parents would condemn. Rather, its undefined and unlimited approval of state censorship in this area denies to children free access to books and works of art to which many parents may wish their children to have uninhibited access. For denial of access to these magazines, without any standard or definition of their allegedly distinguishing characteristics, is also denial of access to great works of art and literature.
If this statute were confined to the punishment of pushers or panderers of vulgar literature I would not be so concerned by the Court's failure to circumscribe state power by defining its limits in terms of the meaning of 'obscenity' in this field. The State's police power may, within very broad limits, protect the parents and their children from public aggression of panderers and pushers. This is defensible on the theory that they cannot protect themselves from such assaults. But it does not follow that the State may convict a passive luncheonette operator of a crime because a 16-year-old boy maliciously and designedly picks up and pays for two girlie magazines which are presumably not obscene.
I
would therefore reverse the conviction on the basis of Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967) and Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966)
1
Appellant makes no attack upon § 484—h as applied. We therefore have no occasion to consider the sufficiency of the evidence, or such issues as burden of proof, whether expert evidence is either required or permissible, or any other prerequisite to engaging in the luncheonette application of the statute. Appellant does argue that because the trial judge included a finding that two of the magazines 'contained verbal descriptions and narrative accounts of sexual excitement and sexual conduct,' an offense not charged in the informations, the conviction must be set aside under Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644. But this case was tried and the appellant
was found guilty only on the charges of selling magazines containing pictures depicting female nudity. It is therefore not a case where defendant was tried and convicted of a violation of one offense when he was charged with a distinctly and substantially different offense.
The full text of § 484—h is attached as Appendix A. It was enacted in L.1965, c. 327, to replace an earlier version held invalid by the New York Court of Appeals in People v. Kahan, 15 N.Y.2d 311, 258 N.Y.S.2d 391, 206 N.E.2d 333, and People v. Bookcase, Inc., 14 N.Y.2d 409, 252 N.Y.S.2d 433, 201 N.E.2d 14. Section 484—h in turn was replaced by L.1967, c. 791, now §§ 235.20—235.22 of the Penal Law. The major changes under the 1967 law added a provision that the one charged with a violation 'is presumed to (sell) with knowledge of the character and content of the material sold * * *,' and the provision that 'it is an affirmative defense that: (a) The defendant had reasonable cause to believe that the minor involved was seventeen years old or more; and (b) Such minor exhibited to the defendant a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that such minor was seventeen years old or more.' Neither addition is involved in this case. We intimate no view whatever upon the constitutional validity of the presumption. See in general Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205; Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460; 41 N.Y.U.L.Rev. 791 (1966); 30 Albany L.Rev. 133 (1966).
The 1967 law also repealed outright § 484—i which had been enacted one week after § 484—h. L.1965, c. 327. It forbade sales to minors under the age of 18. The New York Court of Appeals sustained its validity against a challenge that it was void for vagueness. People v. Tannenbaum, 18 N.Y.2d 268, 274 N.Y.S.2d 131, 220 N.E.2d 783. For an analysis of § 484—i and a comparison with § 484—h see 33 Brooklyn L.Rev. 329 (1967).
2
The case is not moot. The appellant might have been sentenced to one year's imprisonment, or a $500 fine or both. N.Y.Penal Law § 1937. The trial judge however exercised authority under N.Y.Penal Law § 2188 and on May 17, 1966, suspended sentence on all counts. Under § 470—a of the New York Code of Criminal Procedure, the judge could thereafter recall appellant and impose sentence only within one year, or before May 17, 1967. The judge did not do so. Although St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199, held that a criminal case had become moot when the petitioner finished serving his sentence before direct review in this Court, St. Pierre also recognized that the case would not have been moot had 'petitioner shown that under either state or federal law further penalties or disabilities can be imposed on him as result of the judgment which has now been satisfied.' Id., at 43, 63 S.Ct., at 911. The State of New York concedes in its brief in this Court addressed to mootness 'that certain disabilities do flow from the conviction.' The brief states that among these is 'the possibility of ineligibility for licensing under state and municipal license laws regulating various lawful occupations * * *.' Since the argument, the parties advised the Court that, although this is the first time appellant has been convicted of any crime, this conviction might result in the revocation of the license required by municipal law as a prerequisite to engaging in the lunchenonette business he carries on in Bellmore, New York. Bellmore is an 'unincorporated village' within the Town of Hempstead, Long Island, 1967 N.Y.S.Leg.Man. 1154. The town has a licensing ordinance which provides that the 'Commissioner of Buildings * * * may suspend or revoke any license issued, in his discretion, for * * * (e) conviction of any crime.' LL 21, Town of Hempstead, eff. December 1, 1966, § 8.1(e). In these circumstances the case is not moot since the conviction may entail collateral consequences sufficient to bring the case within the St. Pierre exception. See Fiswick v. United States, 329 U.S. 211, 220—222, 67 S.Ct. 224, 229—230, 91 L.Ed. 196. We were not able to reach that conclusion in Tannenbaum v. New York, 388 U.S. 439, 87 S.Ct. 2107, 18 L.Ed.2d 1300, or Jacobs v. New York, 388 U.S. 431, 87 S.Ct. 2098, 18 L.Ed.2d 1294, in which the appeals were dismissed as moot. In Tannenbaum there was no contention that the convictions under the now repealed § 484—i entailed any collateral consequences. In Jacobs the appeal was dismissed on motion of the State which alleged, inter alia, that New York law did not impose 'any further penalty upon conviction of the misdemeanor here in issue.' Appellant did not there show, or contend, that his license might be revoked for 'conviction of any crime'; he asserted only that the conviction might be the basis of a suspension under a provision of the Administrative Code of the City of New York requiring the Department of Licenses to assure that motion picture theatres are not conducted in a manner offensive to 'public morals.'
3
One of the magazines was an issue of the magazine 'Sir.' We held in Gent v. State of Arkansas, decided with Redrup v. State of New York, 386 U.S. 767, 769, 87 S.Ct. 1414, 1415, 18 L.Ed.2d 515, that an Arkansas statute which did not reflect a specific and limited state concern for juveniles was unconstitutional insofar as it was applied to suppress distribution of another issue of that magazine. Other cases which turned on findings of nonobscenity of this type of magazine include: Central Magazine Sales, ltd. v. United States, 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49; Conner v. City of Hammond, 389 U.S. 48, 88 S.Ct. 234, 19 L.Ed.2d 47; Potomac News Co. v. United States, 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46; Mazes v. Ohio, 388 U.S. 453, 87 S.Ct. 2105, 18 L.Ed.2d 1315; A Quantity of Copies of Books v. Kansas, 388 U.S. 452, 87 S.Ct. 2104, 18 L.Ed.2d 1314; Books, Inc. v. United States, 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311; Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309; Avansino v. New York, 388 U.S. 446, 87 S.Ct. 2093, 18 L.Ed.2d 1308; Sheperd v. New York, 388 U.S. 444, 87 S.Ct. 2093, 18 L.Ed.2d 1306; Friedman v. New York, 388 U.S. 441, 87 S.Ct. 2091, 18 L.Ed.2d 1303; Keney v. New York, 388 U.S. 440, 87 S.Ct. 2091, 18 L.Ed.2d 1302; see also Rosenbloom v. Virginia, 388 U.S. 450, 87 S.Ct. 2095, 18 L.Ed.2d 1312; Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352.
4
People v. Tannenbaum, 18 N.Y.2d 268, 270, 274 N.Y.S.2d 131, 133, 220 N.E.2d 783, 785, dismissed as moot, 388 U.S. 439, 87 S.Ct. 2107, 18 L.Ed.2d 1300. The concept of variable obscenity is developed in Lockhart & McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5 (1960). At 85 the authors state:
'Variable obscenity * * * furnishes a useful analytical took for dealing with the problem of denying adolescents access to material aimed at a primary audience of sexually mature adults. For variable obscenity focuses attention upon the make-up of primary and peripheral audiences in varying circumstances, and provides a reasonably satisfactory means for delineating the obscene in each circumstance.'
5
Suggestions that legislatures might give attention to laws dealing specifically with safeguarding children against pornographic material have been made by many judges and commentators. See, e.g., Jacobellis v. State of Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (opinion of Justices Brennan and Goldberg); id., at 201, 84 S.Ct., at 1685 dissenting opinion of THE CHIEF JUSTICE); Ginzberg v. United States, 383 U.S. 463, 498, 86 S.Ct. 942, 956, 16 L.Ed.2d 31, n. 1 (dissenting opinion of MR. JUSTICE STEWART); Interstate Circuit, Inc. v. City of Dallas, 5 Cir., 366 F.2d 590, 593; In re Louisiana News Co. v. Dayries, D.C., 187 F.Supp. 241, 247; United States v. Levine, 2 Cir., 83 F.2d 156; United States v. Dennett, 2 Cir., 39 F.2d 564, 76 A.L.R. 1092; R. Kuh, Foolish Figleaves? 258—260 (1967); Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 939 (1963); Gerber, A Suggested Solution to the Riddle of Obscenity, 112 U.Pa.L.Rev. 834, 848 (1964); Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Col.L.Rev. 391, 413, n. 68 (1963); Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup.Ct.Rev. 1, 7; Magrath, The Obscenity Cases: Grapes of Roth, 1966 Sup.Ct.Rev. 7, 75.
The obscenity laws of 35 other States include provisions referring to minors. The laws are listed in Appendix B to this opinion. None is a precise counterpart of New York's § 484—h and we imply no view whatever on questions of their constitutionality.
6
Many commentators, including many committed to the proposition that '(n)o general restriction on expression in terms of 'obscenity' can * * * be reconciled with the first amendment,' recognize that 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults,' and accordingly acknowledge a supervening state interest in the regulation of literature sold to children, Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 938, 939 (1963):
'Different factors come into play, also, where the interest at stake is the effect of erotic expression upon children. The world of children is not strictly part of the adult realm of free expression. The factor of immaturity, and perhaps other considerations, impose different rules. Without attempting here to formulate the principles relevant to freedom of expression for children, it suffices to say that regulations of communication addressed to them need not conform to the requirements of the first amendment in the same way as those applicable to adults.'
See also Gerber, supra, at 848; Kalven, supra, at 7; Magrath, supra, at 75. Prince v. Commonwealth of Massachusetts is urged to be constitutional authority for such regulation. See, e.g., Kuh, supra, at 258—260; Comment, Exclusion of Children from Violent Movies, 67 Col.L.Rev. 1149, 1159—1160 (1967); Note, Constitutional Problems in Obscenity Legislation Protecting Children, 54 Geo.L.J. 1379 (1966).
7
One commentator who argues that obscenity legislation might be constitutionally defective as an imposition of a single standard of public morality would give effect to the parental role and accept laws relating only to minors. Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Col.L.Rev. 391, 413, n. 68 (1963):
'One must consider also how much difference it makes if laws are designed to protect only the morals of a child. While many of the constitutional arguments against morals legislation apply equally to legislation protecting the morals of children, one can well distinguish laws which do not impose a morality on children, but which support the right of parents to deal with the morals of their children as they see fit.'
See also Elias, Sex Publications and Moral Corruption: The Supreme Court Dilemma, 9 Wm. & Mary L.Rev. 302, 320—321 (1967).
8
Compare Memoirs v. Massachusetts, 383 U.S., at 424, 86 S.Ct., at 980 nopinion of Douglas, J.) with id., at 441, 86 S.Ct. at 988 (opinion of Clark, J.). See Kuh, supra, cc. 18—19; Gaylin, Book Review, 77 Yale L.J. 579, 591—595 (1968); Magrath, supra, at 52.
9
Our conclusion in Roth, 354 U.S., at 486—487, 77 S.Ct., that the clear and present danger test was irrelevant to the determination of obscenity made it unnecessary in that case to consider the debate among the authorities whether exposure to pornography caused antisocial consequences. See also Mishkin v. State of New York, supra; Ginzburg v. United States, supra; Memoirs v. Massachusetts, supra.
10
Magrath, supra, at 52. See, e.g., id., at 49—56; Dibble, Obscenity: A State Quarantine to Protect Children, 39 So.Cal.L.Rev. 345 (1966); Wall, Obscenity and Youth: The Problem and a Possible Solution, Crim.L.Bull., Vol. 1, No. 8, pp. 28, 30 (1965); Note, 55 Cal.L.Rev. 926, 934 (1967); Comment, 34 Ford.L.Rev. 692, 694 (1966). See also J., Paul & M. Schwartz, Federal Censorship: Obscenity in the Mail, 191—192; Blakey, Book Review, 41 Notre Dame Law, 1055, 1060, n. 46 (1966); Green, Obscenity, Censorship, and Juvenile Delinquency, 14 U. Toronto L.Rev. 229, 249 (1962); Lockhart & McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 373—385 (1954); Note 52 Ky.L.J. 429, 447 (1964). But despite the vigor of the ongoing controversy whether obscene material will perceptibly create a danger of antisocial conduct, or will probably induce its recipients to such conduct, a medical practitioner recently suggested that the possibility of harmful effects to youth cannot be dismissed as frivolous. Dr. Gaylin of the Columbia University Psychoanalytic Clinic, reporting on the views of some psychiatrists in 77 Yale L.J., at 592—593, said:
'It is in the period of growth (of youth) when these patterns of behavior are laid down, when environmental stimuli of all sorts must be integrated into a workable sense of self, when sensuality is being defined and fears elaborated, when pleasure confronts security and impulse encounters control—it is in this period, undramatically and with time, that legalized pornography may conceivably be damaging.'
Dr. Gaylin emphasizes that a child might not be as well prepared as an adult to make an intelligent choice as to the material he chooses to read:
'(P)sychiatrists * * * made a distinction between the reading of pornography, as unlikely to be per se harmful, and the permitting of the reading of pornography, which was conceived as potentially destructive. The child is protected in his reading of pornography by the knowledge that it is pornographic, i.e., disapproved. It is outside of parental standards and not a part of his identification processes. To openly permit implies parental approval and even suggests seductive encouragement. If this is so of parental approval, it is equally so of societal approval another potent influence on the developing ego.' Id., at 594.
1
The First Amendment is made applicable to the States through the Fourteenth Amendment. Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117.
2
Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (dissenting opinion).
3
Kovacs v. Cooper, 336 U.S. 77, 86, 69 S.Ct. 448, 453, 93 L.Ed. 513.
4
Public Utilities Comm'n of District of Columbia v. Pollak, 343 U.S. 451, 466, 72 S.Ct. 813, 822, 96 L.Ed. 1068 (dissenting opinion of MR. JUSTICE BLACK), 467, 72 S.Ct. 823 (dissenting opinion of MR. JUSTICE DOUGLAS).
5
The appellant does not challenge New York's power to draw the line at age 17, and I intimate no view upon that question.
6
Compare Loving v. Commonwealth of Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010; Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675.
7
As the Court notes, the appellant makes no argument that the material in this case was not 'harmful to minors' within the statutory definition, or that the statute was unconstitutionally applied.
1
Two writers have explained Comstock as follows:
'He must have known that he could not wall out from his own mind all erotic fancies, and so he turned all the more fiercely upon the ribaldry of others.' H. Broun & M. Leech, Anthony Comstock 27 (1927).
A notable forerunner of Comstock was an Englishman, Thomas Bowdler. Armed with a talent for discovering the 'offensive,' Bowdler expurgated Shakespeare's plays and Gibbon's History of the Decline and Fall of the Roman Empire. The result was 'The Family Shakespeare,' first published in 10 volumes in 1818, and a version of Gibbon's famous history 'omitting everything of an immoral or irreligious nature, and incidentally rearranging the order of chapters to be in the strict chronology so dear to the obsessional heart.' M. Wilson, The Obsessional Compromise, A Note on Thomas Bowdler (1965) (paper in Library of the American Psychiatric Association, Washington, D.C.).
2
'The effectiveness of more subtle forms of censorship as an instrument of social control can be very great. They are effective over a wider field of behavior than is propaganda in that they affect convivial and 'purely personal' behavior.
'The principle is that certain verbal formulae shall not be stated, in print or in conversation; from this the restriction extends to the discussion of certain topics. A perhaps quite rationally formulated taboo is imposed; it becomes a quasi-religious factor for the members of the group who subscribe to it. If they are a majority, and the taboo does not affect some master-symbol of an influential minority, it is apt to become quite universal in its effect. A great number of taboos—to expressive and to other acts—are embodied in the mores of any people. The sanction behind each taboo largely determines its durability—in the sense of resistance opposed to the development of contradictory counter-mores, or of simple disintegration from failure to give returns in personal security. If it is to succeed for a long time, there must be recurrent reaffirmations of the taboo in connection with the sanctioning power.
'The occasional circulation of stories about a breach of the taboo and the evil consequences that flowed from this to the offender and to the public cause (the sanctioning power) well serves this purpose. Censorship of this sort has the color of voluntary acceptance of a ritualistic avoidance, in behalf of oneself and the higher power. A violation, after the primitive patterns to which we have all been exposed, strikes at both the sinner and his god.' The William Alanson White Psychiatric Foundation Memorandum: Propaganda & Censorship, 3 Psychiatry 628, 631 (1940).
3
And see Gaylin, Book Review: The Prickly Problems of Pornography, 77 Yale L.J. 579, 594.
4
My Brother HARLAN says that no other Justice of this Court, past or present, has ever 'stated his acceptance' of the view that 'obscenity' is within the protection of the First and Fourteenth Amendments. 390 U.S., at 705, 88 S.Ct., at 1314. That observation, however, should not be understood as demonstrating that no other members of this Court, since its first Term in 1790, have adhered to the view of my Brother BLACK and myself. For the issue 'whether obscenity is utterance within the area of protected speech and press' was only 'squarely presented' to this Court for the first time in 1957. Roth v. United States, 354 U.S. 476, 481, 77 S.Ct. 1304, 1307. This is indeed understandable, for the state legislatures have borne the main burden in enacting laws dealing with 'obscenity'; and the strictures of the First Amendment were not applied to them through the Fourteenth until comparatively late in our history. In Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, decided in 1925, the Court assumed that the right of free speech was among the freedoms protected against state infringement by the Due Process Clause of the Fourteenth Amendment. See also Whitney v. People of State of California, 274 U.S. 357, 371, 373, 47 S.Ct. 641, 646—647, 71 L.Ed. 1095; Fiske v. State of Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108. In 1931, Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, held that the right of free speech was guaranteed in full measure by the Fourteenth Amendment. But even after these events 'obscenity' cases were not inundating this Court; and even as late as 1948, the Court could say that many state obscenity statutes had 'lain dormant for decades.' Winters v. People of State of New York, 333 U.S. 507, 511, 68 S.Ct. 665, 668, 92 L.Ed. 840. In several cases prior to Roth, the Court reviewed convictions under federal statutes forbidding the sending of 'obscene' materials through the mails. But in none of these cases was the question squarely presented or decided whether 'obscenity' was protected speech under the First Amendment; rather, the issues were limited to matters of statutory construction, or questions of procedure, such as the sufficiency of the indictment. See United States v. Chase, 135 U.S. 255, 10 S.Ct. 756, 34 L.Ed. 117; Grimm v. United States, 156 U.S. 604, 15 S.Ct. 470, 39 L.Ed. 550; Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606; Swearingen v. United States, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765; Andrews v. United States, 162 U.S. 420, 16 S.Ct. 798, 40 L.Ed. 1023; Price v. United States, 165 U.S. 311, 17 S.Ct. 366, 41 L.Ed. 727; Dunlop v. United States, 165 U.S. 486, 17 S.Ct. 375, 41 L.Ed. 799; Bartell v. United States, 227 U.S. 427, 33 S.Ct. 383, 57 L.Ed. 583; Dysart v. United States, 272 U.S. 655, 47 S.Ct. 234, 71 L.Ed. 461; United States v. Limehouse, 285 U.S. 424, 52 S.Ct. 412, 76 L.Ed. 843.
5
See Appendix II to this opinion.
6
Reverend Fr. Juan de Castaniza of the 16th century explained those who denounced obscenity as expressing only their own feelings. In his view they had too much reason to suspect themselves of being 'obscene,' since 'vicious men are always prone to think others like themselves.' T. Schroeder, A Challenge to Sex Censors 44—45 (1938).
'Obscenity, like witchcraft * * * consists, broadly speaking, of a (delusional) projection of certain emotions (which, as the very word implies, emanate from within) to external things and an endowment of such things (or in the case of witchcraft, of such persons) with the moral qualities corresponding to these inward states * * *.
'Thus persons responsible for the persistent attempts to suppress the dissemination of popular knowledge concerning sex matters betray themselves unwittingly as the bearers of the very impulses they would so ostentatiously help others to avoid. Such persons should know through their own experience that ignorance of a subject does not insure immunity against the evils of which it treats, nor does the propitiatory act of noisy public disapproval of certain evils signify innocence or personal purity.' Van Teslaar, Book Review, 8 J. Abnormal Psychology 282, 286 (1913).
7
See Appendix III to this opinion.
*
'(W)e reaffirm the principle that, in 'obscenity' cases as in all others involving rights derived from the First Amendment guarantees of free expression, this Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.' 378 U.S., at 190, 84 S.Ct., at 1679. See Cox v. State of Louisiana, 379 U.S. 536, 545, n. 8, 85 S.Ct. 453, 459, 13 L.Ed.2d 471 (1965).
| 23
|
390 U.S. 606
88 S.Ct. 1332
20 L.Ed.2d 177
J. David STERN, Petitioner,v.SOUTH CHESTER TUBE CO.
No. 486.
Argued March 25, 1968.
Decided April 22, 1968.
David Freeman, Philadelphia, Pa., for petitioner.
Richard P. Brown, Jr., Philadelphia, Pa., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Petitioner, a resident of New York, who owned stock worth $10,000 or more in the respondent South Chester Tube Company, a corporation, brought this action in the United States District Court for the Eastern District of Pennsylvania, where respondent was incorporated and maintained its business headquarters. Alleging that the corporation had many times denied petitioner's requests to inspect its books and records as authorized by Pa.Stat.Ann., Tit. 15, § 2852—308B (1958),1 the complaint requested the court to enter an order directing the corporation to permit such an inspection. Jurisdiction was invoked under 28 U.S.C. § 1332(a), which vests jurisdiction in the district courts where the matter in controversy exceeds the sum of $10,000 and where the parties are citizens of different States. The respondent answered, admitting parts of the allegations of the complaint and denying others. Respondent also moved to dismiss the action for lack of jurisdiction of the subject matter on the two following grounds:
2
'1. The only relief sought in this diversity action is an order to compel the defendant company to allow the plaintiff, a minority shareholder, to inspect certain corporate records. Such an order is in the nature of a writ of mandamus. Under the All Writs Act, this United States District Court does not have jurisdiction to issue an order in the nature of a writ of mandamus in a case in which that writ is the only relief sought.
3
'2. * * * That right of inspection is not subject to any monetary valuation. Since diversity jurisdiction depends upon the existence of an amount in controversy which is capable of such monetary valuation (in excess of $10,000), no jurisdiction exists in this Court.'
4
The District Court dismissed on the first ground of the motion, 252 F.Supp. 329 (D.C.E.D.Pa.1966), and the Court of Appeals affirmed on the same ground, 378 F.2d 205 (C.A.3d Cir. 1967). For reasons to be stated we hold that these rulings on the mandamus point were erroneous and reverse the judgment below.
5
The courts below viewed petitioner's complaint as in effect a plea for a writ of mandamus and relied on a long line of cases which have interpreted the All Writs Act2 to deny power to issue this writ when it is the only relief sought. A writ of mandamus, so these cases hold, can issue only in aid of jurisdiction acquired to grant some other form of relief. See M'Intire v. Wood, 7 Cranch 504, 3 L.Ed. 420 (1813); Rosenbaum v. Bauer, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743 (1887); Covington & C Bridge Co. v. Hager, 203 U.S. 109, 27 S.Ct. 24, 51 L.Ed. 111 (1906). We think, however, that the courts below erred in concluding that the relief sought here is 'mandamus' within the meaning of these cases. Practically all the cases relied on by respondent and the courts below involved mandamus in its original sense—a suit against a public officer to compel performance of some 'ministerial' duty. Although the word 'mandamus' is also frequently used to describe orders that compel affirmative action by private parties, the considerations that come into play here certainly differ from the problems involved when the courts seek to compel action by public officials.
6
So far as we are aware, there is only one case in which this Court has held a federal district court without jurisdiction to issue a writ of mandamus against a private party. In Knapp v. Lake Shore & M § R. Co., 197 U.S. 536, 25 S.Ct. 538, 49 L.Ed. 870 (1905), the Interstate Commerce Commission had filed a 'petition for mandamus' in the federal court, seeking to compel a railroad company to file certain reports as required by § 20 of the Interstate Commerce Act. The Court applied the principle of the earlier cases involving public officers and held that mandamus would not lie against the railroad company defendant. But the Court was careful to note that relief against the railroad might be available in the form of a 'writ of injunction or other proper process, mandatory or otherwise.' Id., at 543, 25 S.Ct. at 539. The distinction drawn by the Court in Knapp between mandamus and a mandatory injunction seems formalistic in the present day and age, but it must be remembered that Knapp was decided before the simplification of the rules of pleading and, more importantly, before the merger of law and equity. Since a writ of mandamus could be issued only in an action at law, while an injunction, whether mandatory or prohibitive, was an equitable remedy, the distinction referred to in Knapp was a familiar one in the judicial system of the time.
7
We need not now decide whether Knapp properly extended the mandamus bar to suits for relief against private parties or even whether the distinction between mandamus and mandatory injunctions can survive the merger of law and equity and the simplification of the rules of pleading. In the present case petitioner did not even fall into the trap of using the possibly fatal label, 'mandamus'; instead he simply asked the court 'to order the defendant to permit plaintiff to examine (its records).' Thus, even under the broadest possible reading of the Knapp decision, the All Writs Act would not deny a federal court power to issue the relief sought here.
8
We find no other principle of federal law, whether judge-made, statutory, or constitutional, which bars the granting of a mandatory remedy here. Petitioner undoubtedly has a right, under the substantive law of the State, to inspect the records of the corporation in which he holds stock, and since he has no adequate remedy at law, the federal court has jurisdiction to grant relief under its traditional equity power. We need not decide whether this is a case where such a federal remedy can be provided even in the absence of a similar state remedy, Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 674, 70 S.Ct. 876, 880, 94 L.Ed. 1194 (1950); cf. Guffey v. Smith, 237 U.S. 101, 35 S.Ct. 526, 59 L.Ed. 856 (1915), because it is clear that state law here also provides for enforcement of the shareholder's right by a compulsory judicial order. See Pa.Stat.Ann., Tit. 12, § 1911 (1967). While the State labels the right of action 'mandamus,' what the Pennsylvania statute actually does is to authorize an action to compel Pennsylvania corporations to permit inspection of their records by their shareholders, and the label used under state practice of course has no bearing on the question whether the federal courts have power to grant the kind of relief actually sought. Consequently the District Court here does have power to issue the proper orders to enforce petitioner's state-granted right to inspect the corporate records.
9
The judgment of the Court of Appeals is reversed and the cause is remanded to that court for further proceedings consistent with this opinion.
10
It is so ordered.
11
Reversed and remanded.
1
'Every shareholder shall have a right to examine, in person or by agent or attorney, at any reasonable time or times, for any reasonable purpose, the share register, books or records of account, and records of the proceedings of the shareholders and directors, and make extracts therefrom.'
2
1 Stat. 81 (1789), as amended, 28 U.S.C. § 1651(a):
'The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.'
| 89
|
390 U.S. 599
88 S.Ct. 1327
20 L.Ed.2d 170
UNITED STATES et al., Petitioners,v.Alfred E. COLEMAN et al.
No. 630.
Argued March 28, 1968.
Decided April 22, 1968.
Rehearing Denied May 27, 1968.
See 391 U.S. 961, 88 S.Ct. 1834.
Frank J. Barry, Tucson, Ariz., for the United States and others; Solicitor General Griswold, Assistant Attorney General Martz, Robert S. Rifkind, Roger P. Marquis and George R. Hyde on the brief.
Howard A. Twitty, Phoenix, Ariz., for respondents; George W. Nilsson, W. Howard Gray, Edward A. McCabe and Monta W. Shirley on the brief.
Winston S. Howard and Don H. Sherwood for New Jersey Zinc Co. as amicus curiae.
Mr. Justice BLACK delivered the opinion of the Court.
1
In 1956 respondent Coleman applied to the Department of the Interior for a patent to certain public lands based on his entry onto and exploration of these lands and his discovery there of a variety of stone called quartzite, one of the most common of all solid materials. It was, and still is, respondent Coleman's contention that the quartzite deposits qualify as 'valuable mineral deposits' under 30 U.S.C. § 221 and make the land 'chiefly valuable for building stone' under 30 U.S.C. § 161.2 The Secretary of the Interior held that to qualify as 'valuable mineral deposits' under 30 U.S.C. § 22 it must be shown that the mineral can be 'extracted, removed and marketed at a profit'—the so-called 'marketability test.' Based on the largely undisputed evidence in the record, the Secretary concluded that the deposits claimed by respondent Coleman did not meet that criterion. As to the alternative 'chiefly valuable for building stone' claim, the Secretary held that respondent Coleman's quartzite deposits were a 'common variet(y)' of stone within the meaning of 30 U.S.C. § 611,3 and thus they could not serve as the basis for a valid mining claim under the mining laws. The Secretary denied the patent application, but respondent Coleman remained on the land, forcing the Government to bring this present action in ejectment in the District Court against respondent Coleman and his lessee, respondent McClennan. The respondents filed a counterclaim seeking to have the District Court direct the Secretary to issue a patent to them. The District Court, agreeing with the Secretary, rendered summary judgment for the Government. On appeal the Court of Appeals for the Ninth Circuit reversed, holding specifically that the test of profitable marketability was not a proper standard for determining whether a discovery of 'valuable mineral deposits' under 30 U.S.C. § 22 had been made and that building stone could not be deemed a 'common variet(y)' of stone under 30 U.S.C. § 611. We granted the Government's petition for certiorari because of the importance of the decision to the utilization of the public lands. 389 U.S. 970, 88 S.Ct. 476, 19 L.Ed.2d 460.
2
We cannot agree with the Court of Appeals and believe that the rulings of the Secretary of the Interior were proper. The Secretary's determination that the quartzite deposits did not qualify as valuable mineral deposits because the stone could not be marketed at a profit does no violence to the statute. Indeed, the marketability test is an admirable effort to identify with greater precision and objectivity the factors relevant to a determination that a mineral deposit is 'valuable.' It is a logical complement to the 'prudent-man test' which the Secretary has been using to interpret the mining laws since 1894. Under this 'prudent-man test' in order to qualify as 'valuable mineral deposits,' the discovered deposits must be of such a character that 'a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine * * *.' Castle v. Womble, 19 L.D. 455, 457 (1894). This Court has approved the prudent-man formulation and interpretation on numerous occasions. See, for example, Chrisman v. Miller, 197 U.S. 313, 322, 25 S.Ct. 468, 49 L.Ed. 770; Cameron v. United States, 252 U.S. 450, 459, 40 S.Ct. 410, 64 L.Ed. 659; Best v. Humboldt Placer Mining Co., 371 U.S. 334, 335—336, 83 S.Ct. 379, 9 L.Ed.2d 350. Under the mining laws Congress has made public lands available to people for the purpose of mining valuable mineral deposits and not for other purposes.4 The obvious intent was to reward and encourage the discovery of minerals that are valuable in an economic sense. Minerals which no prudent man will extract because there is no demand for them at a price higher than the costs of extraction and transportation are hardly economically valuable. Thus, profitability is an important consideration in applying the prudent-man test, and the marketability test which the Secretary has used here merely recognizes this fact.
3
The marketability test also has the advantage of throwing light on a claimant's intention, a matter which is inextricably bound together with valuableness. For evidence that a mineral deposit is not of economic value and cannot in all likelihood be operated at a profit may well suggest that a claimant seeks the land for other purposes. Indeed, as the Government points out, the facts of this case—the thousands of dollars and hours spent building a home on 720 acres in a highly scenic national forest located two hours from Los Angeles, the lack of an economically feasible market for the stone, and the immense quantities of identical stone found in the area outside the claims—might well be thought to raise a substantial question as to respondent Coleman's real intention.
4
Finally, we think that the Court of Appeals' objection to the marketability test on the ground that it involves the imposition of a different and more onerous standard on claims for minerals of widespread occurrence than for rarer minerals which have generally been dealt with under the prudent-man test is unwarranted. As we have pointed out above, the prudent-man test and the marketability test are not distinct standards, but are complementary in that the latter is a refinement of the former. While it is true that the marketability test is usually the critical factor in cases involving nonmetallic minerals of widespread occurrence, this is accounted for by the perfectly natural reason that precious metals which are in small supply and for which there is a great demand, sell at a price so high as to leave little room for doubt that they can be extracted and marketed at a profit.
5
We believe that the Secretary of the Interior was also correct in ruling that '(i)n view of the immense quantities of identical stone found in the area outside the claims, the stone must be considered a 'common variety" and thus must fall within the exclusionary language of § 3 of the 1955 Act, 69 Stat. 368, 30 U.S.C. § 611, which declares that '(a) deposit of common varieties of * * * stone * * * shall (not) be deemed a valuable mineral deposit within the meaning of the mining laws * * *.' Respondents rely on the earlier 1892 Act, 30 U.S.C. § 161, which makes the mining laws applicable to 'lands that are chiefly valuable for building stone' and contend that the 1955 Act has no application to building stone, since, according to respondents, '(s)tone which is chiefly valuable as building stone is, by that very fact, not a common variety of stone.' This was also the reasoning of the Court of Appeals. But this argument completely fails to take into account the reason why Congress felt compelled to pass the 1955 Act with its modification of the mining laws. The legislative history makes clear that this Act (30 U.S.C. § 611) was intended to remove common types of sand, gravel, and stone from the coverage of the mining laws, under which they served as a basis for claims to land patents, and to place the disposition of such materials under the Materials Act of 1947, 61 Stat. 681, 30 U.S.C. § 601 et seq., which provides for the sale of such materials without disposing of the land on which they are found. For example, the Chairman of the House Committe on Interior and Insular Affairs explained the 1955 Act as follows:
6
'The reason we have done that is because sand, stone, gravel * * * are really building materials, and are not the type of material contemplated to be handled under the mining laws, and that is precisely where we have had so much abuse of the mining laws. * * *' 101 Cong.Rec. 8743. (Emphasis added.) Similarly, the Senate Committee Report stated that the bill was intended to:
7
'Provide that deposits of common varieties of sand, building stone, gravel, pumice, pumicite, and cinders on the public lands, where they are found in widespread abundance, shall be disposed of under the Materials Act of 1947 (61 Stat. 681), rather than under the mining law of 1872.' S.Rep. No. 554, 84th Cong., 1st Sess. 2. (Emphasis added.)
8
Thus we read 30 U.S.C. § 611, passed in 1955, as removing from the coverage of the mining laws 'common varieties' of building stone, but leaving 30 U.S.C. § 161, the 1892 Act, entirely effective as to building stone that has 'some property giving it distinct and special value' (expressly excluded under § 611).
9
For these reasons we hold that the United States is entitled to eject respondents from the land and that respondents' counterclaim for a patent must fail. The case is reversed and remanded to the Court of Appeals for the Ninth Circuit for further proceedings to carry out this decision.
10
It is so ordered.
11
Judgment reversed and case remanded.
12
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
The cornerstone of federal legislation dealing with mineral lands is the Act of May 10, 1872, 17 Stat. 91, 30 U.S.C. § 22, which provides in § 1 that citizens may enter and explore the public domain and, if they find valuable mineral deposits,' may obtain title to the land on which such deposits are located by application to the Department of the Interior. The Secretary of the Interior is 'charged with seeing * * * that valid claims * * * (are) recognized, invalid ones eliminated, and the rights of the public preserved.' Cameron v. United States, 252 U.S. 450, 460, 40 S.Ct. 410, 412, 64 L.Ed. 659.
2
The 1872 Act, supra, was supplemented in 1892 by the passage of the Act of August 4, 1892, 27 Stat. 348, 30 U.S.C. § 161, which provides in § 1 in pertinent part: 'That any person authorized to enter lands under the mining laws of the United States may enter lands that are chiefly valuable for building stone under the provisions of the law in relation to placer mineral claims * * *.'
3
Section 3 of the Act of July 23, 1955, 69 Stat. 368, 30 U.S.C. § 611, provides in pertinent part as follows: 'A deposit of common varieties of sand, stone, gravel, pumice, pumicite, or cinders shall not be deemed a valuable mineral deposit within the meaning of the mining laws of the United States so as to give effective validity to any mining claim hereafter located under such mining laws * * *. 'Common varieties' as used in this Act does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value * * *.'
4
17 Stat. 92, 30 U.S.C. § 29, provides in pertinent part as follows: 'A patent for any land claimed and located for valuable deposits may be obtained in the following manner: Any person * * * having claimed and located a piece of land for such purposes * * * may file, * * *.' (Emphasis added.)
| 78
|
390 U.S. 611
88 S.Ct. 1335
20 L.Ed.2d 182
John Earl CAMERON et al., Appellants,v.Paul JOHNSON, etc., et al.
No. 699.
Argued March 5 and 6, 1968.
Decided April 22, 1968.
Rehearing Denied June 3, 1968.
See 391 U.S. 971, 88 S.Ct. 2029.
Benjamin E. Smith, New Orleans, La., and Arthur Kinoy, New York City, for appellants.
Will S. Wells, Jackson, Miss., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Appellants brought this action for declaratory and injunctive relief in the District Court for the Southern District of Mississippi. They sought a judgment declaring that the Mississippi Anti-Picketing Law1 is an overly broad and vague regulation of expression, and therefore void on its face. They also sought a permanent injunction restraining appellees—the Governor and other Mississippi officials—from enforcing the statute in pending or future criminal prosecutions or otherwise, alleging that the then pending prosecutions against them for violating the statute2 were part of a plan of selective enforcement engaged in by appellees with no expectation of securing convictions, but solely to discourage appellants from picketing to protect racial discrimination in voter registration and to encourage Negro citizens to attempt to register to vote.
2
A three-judge court initially considered the issues on the amended complaint and answers, and dismissed the complaint 'in the exercise of its sound judicial discretion' and 'in furtherance of the doctrine of abstention,' having concluded 'that such extraordinary relief is not due or suggested in this case. * * *' 244 F.Supp. 846, 849. We vacated the dismissal, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715, and remanded for reconsideration in light of our intervening decision in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22.3 On remand the three-judge court4 conducted an evidentiary hearing and again dismissed, this time with prejudice. 262 F.Supp. 873. We noted probable jurisdiction. 389 U.S. 809, 88 S.Ct. 127, 19 L.Ed.2d 63. We affirm.
I.
3
The Mississippi Anti-Picketing Law was enacted by the Mississippi Legislature and signed by the Governor on April 8, 1964, and became effective immediately. The Forrest County voting registration office is housed in the county courthouse in Hattiesburg. The courthouse is set back a distance from the street and is reached by several paved walks surrounding grass plots and a monument. On January 22, 1964, civil rights organizations fostering increased voter registration of Negro citizens staged a large demonstration on the courthouse site. Thereafter they maintained a picket line on the grounds every day except Sunday from January 23 until May 18, 1964. To facilitate access to the courthouse the sheriff at the outset blocked off with barricades a small 'march route' area within the grounds to the right of the main entrance to the courthouse, where the pickets, usually few in number were allowed to picket until April 9. On April 9, the day following the enactment of the Anti-Picketing Law, the sheriff accompanied by other county officials, read the new law to the pickets at the 'march route' and directed them to disperse, which they did. The sheriff also removed the barricades marking the 'march route.' On the morning of April 10, the pickets, now increased to 35 or 40 persons, appeared at the courthouse and resumed picketing along the now unmarket 'march route.' The pickets were arrested and formally charged with violation of the Anti-Picketing statute. Others were arrested that afternoon. Seven more pickets were arrested and charged on the morning of April 11. The complaint in this action was filed April 13. Picketing nonetheless continued on the 'march route' every day until May 18, but no further arrests were made until May 18, when nine pickets were arrested and charged. All picketing stopped thereafter.
II.
4
The District Court's response on the remand to reconsider the case in light of Dombrowski was first to render a declaratory judgment, cf. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444,5 that the statute was not void on its face, rejecting appellants' contention that it is so broad, vague, indefinite, and lacking in definitely ascertainable standards as to be unconstitutional on its face. We agree with the District Court.
5
Appellants advance a two-pronged argument. First, they argue that the statute forbids picketing 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. 322.6 But the statute prohibits only 'picketing * * * in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any * * * county * * * courthouses * * *.' The terms 'obstruct' and 'unreasonably interfere' plainly require no 'guess(ing) at (their) meaning.' Appellants focus on the word 'unreasonably.'7 It is a widely used and well understood word and clearly so when juxtaposed with 'obstruct' and 'interfere.' We conclude that the statute clearly and precisely delineates its reach in words of common understanding.8 It is 'a precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be * * * proscribed.' Edwards v. South Carolina, 372 U.S. 229, 236, 83 S.Ct. 680, 684, 9 L.Ed.2d 697.
6
The second prong of appellants' argument is that the statute, even assuming that it is 'lacking neither clarity nor precision, is void for 'overbreadth,' that is, that it offends the constitutional principal 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." Zwickler v. Koota, supra, 389 U.S. at 250, 88 S.Ct. at 396.9 The argument centers on the fact that the proscription of the statute embraces picketing employed as a vehicle for constitutionally protected protest. But 'picketing and parading (are) subject to regulation even though intertwined with expression and association,' Cox v. State of Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487,10 and this statute does not prohibit picketing so intertwined unless engaged in in a manner which obstructs or unreasonably interferes with ingress or egress to or from the courthouse. Prohibition of conduct which has this effect does not abridge constitutional liberty 'since such activity bears no necessary relationship to the freedom to * * * distribute information or opinion.' Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155. The statute is therefore 'a valid law dealing with conduct subject to regulation so as to vindicate important interests of society and * * * the fact that free speech is intermingled with such conduct does not bring with it constitutional protection.' Cox v. State of Louisiana, supra, 379 U.S. at 564, 85 S.Ct. at 481.
III.
7
The District Court's further response on remand to reconsider the case in light of Dombrowski was to deny injunctive relief, after an evidentiary hearing, on findings that appellants failed to show sufficient irreparable injury to justify such relief. Appellants argue in this Court that the record discloses sufficient irreparable injury to entitle them to the injunction sought, even if the statute is constitutional on its face.
8
Dombrowski recognized, 380 U.S., at 483—485, 85 S.Ct., at 1119—1120, the continuing validity of 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, 87 L.Ed. 1324; see Zwickler v. Koota, supra, 389 U.S., at 253, 88 S.Ct., at 398. Federal interference with a State's good-faith administration of its criminal laws 'is peculiarly inconsistent with our federal framework' and a showing of 'special circumstances' beyond the injury incidental to every proceeding brought lawfully and in good faith is requisite to a finding of irreparable injury sufficient to justify the extraordinary remedy of an injunction. 380 U.S., at 484, 85 S.Ct., at 1119, 1120. We found such 'special circumstances' in Dombrowski. The prosecutions there begun and threatened were not, as here, for violation of a statute narrowly regulating conduct which is intertwined with expression, but for alleged violations of various sections of excessively broad Louisiana statutes regulating expression itself—the Louisiana Subversive Activities and Communist Control Law and the Communist Propaganda Control Law. These statutes were challenged as overly broad and vague regulations of expression. Despite state court actions quashing arrest warrants and suppressing evidence purportedly seized in enforcing them, Louisiana officials continued to threaten prosecutions of Dombrowski and his co-appellants under them. In that context, we held that a case of 'the threat of irreparable injury required by traditional doctrines of equity' was made out. 380 U.S., at 490, 85 S.Ct., at 1123. We held further that the sections of the Subversive Activities and Communist Control Law (for alleged violations of which indictments had been obtained while the case was pending in the federal court) were patently unconstitutional on their face, and remanded with direction to frame an appropriate injunction restraining prosecution of the indictments.
9
In short, we viewed Dombrowski to be a case presenting a situation of the 'impropriety of (state officials) invoking the statute in bad faith to impose continuing harassment in order to discourage appellants' activities * * *.' 380 U.S., at 490, 85 S.Ct., at 1123. In contrast, the District Court expressly found in this case 'that there was no harassment, intimidation, or oppression of these complainants in their efforts to exercise their constitutional rights, but they were arrested and they are being prosecuted in good faith for their deliberate violation of that part of the statute which denounces interference with the orderly use of courthouse facilities by all citizens alike.' 262 F.Supp., at 876, see also 244 F.Supp., at 848—849. We cannot say from our independent examination of the record that the District Court erred in denying injunctive relief.
10
Any chilling effect on the picketing as a form of protest and expression that flows from good-faith enforcement of this valid statute would not, of course, constitute that enforcement an impermissible invasion of protected freedoms. Cox v. State of Louisiana, supra, 379 U.S. at 564, 85 S.Ct. at 480. Appellants' case that there are 'special circumstances' establishing irreparable injury sufficient to justify federal intervention must therefore come down to the proposition that the statute was enforced against them, not because the Mississippi officials in good faith regarded the picketing as violating the statute, but in bad faith as harassing appellants' exercise of protected expression with no intention of pressing the charges or with no expectation of obtaining convictions, knowing that appellants' conduct did not violate the statute. We agree with the District Court that the record does not establish the bad faith charged. This is therefore not a case in which '* * * a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford (appellants) any protection which they could not secure by prompt trial and appeal pursued to this Court.' Douglas v. City of Jeannette, supra, 319 U.S. at 164, 63 S.Ct. at 881. We have not hesitated on direct review to strike down applications of constitutional statutes which we have found to be unconstitutionally applied to suppress protected freedoms. See Cox v. State of Louisiana, supra; Wright v. State of Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349; Edwards v. State of South Carolina, supra.
11
Appellants argue that the adoption of the statute in the context of the picketing at the courthouse, and its immediate enforcement by the arrests on April 10 and 11, provide compelling evidence that the statute was conceived and enforced solely to bring a halt to the picketing. Appellants buttress their argument by characterizing as 'indefensible entrapment' the enforcement of the statute on April 10 against picketing conduct which county officials had permitted for almost three months along the 'march route' marked out by the officials themselves. This argument necessarily implies the suggestion that had the statute been law when the picketing started in January it would not have been enforced. There is no support whatever in the record for that proposition. The more reasonable inference is that the authorities believed that until enactment of the statute on April 8 they had no choice but to allow the picketing. In any event, upon the adoption of the law, it became the duty of the authorities in good faith to enforce it, and to prosecute for picketing that violated that law. Similarly, insofar as appellants argue that selective enforcement was shown by the failure to arrest those who were picketing from April 11 to May 18, the short answer is that it is at least as reasonable to infer from the record that the authorities did not regard their conduct in that period as violating the statute. Indeed, the fact that no arrests were made over that five-week period is itself some support for the District Court's rejection of appellants' primary contention that appellees used the statute in bad faith to discourage the pickets from picketing to foster increased voter registration of Negro citizens.
12
Nor are we persuaded by the argument that, because the evidence adduced at the hearing of the pickets' conduct throughout the period would not be sufficient, in the view of appellants, to sustain conviction on a criminal trial, it was demonstrated that the State had no expectation of securing valid convictions. Dombrowski v. Pfister, supra, 380 U.S. at 490, 85 S.Ct. at 1122. This argument mistakenly supposes that 'special circumstances' justifying injunctive relief appear if it is not shown that the statute was in fact violated. But the question for the District Court was not the guilt or innocence of the persons charged; the question was whether the statute was enforced against them with no expectation of convictions but only to discourage exercise of protected rights. The mere possibility of erroneous application of the statute does not amount 'to the irreparable injury necessary to justify a disruption of orderly state proceedings.' Dombrowski v. Pfister, supra, 380 U.S. at 485, 85 S.Ct. at 1120. The issue of guilt or innocence is for the state court at the criminal trial; the State was not required to prove appellants guilty in the federal proceeding to escape the finding that the State had no expectation of securing valid convictions.11 Appellants say that the picketing was nonobstructive, but the State claims quite the contrary, and the record is not totally devoid of support for the State's claim.
13
Appellants argue that selective enforcement was shown by the evidence that subsequent to the arrests of the pickets parades were held in Hattiesburg during which the streets of the downtown area, including the locale of the courthouse, were cordoned off during daytime business hours and the sidewalks were obstructed by crowds of spectators during the parades. But this statute is not aimed at obstructions resulting from parades on the city streets. All that it prohibits is the obstruction of or unreasonable interference with ingress and egress to and from public buildings, including courthouses, and with traffic on the streets or sidewalks adjacent to those buildings. There was no evidence of conduct of that nature at any other place which would have brought the statute into play, let alone evidence that the authorities allowed such conduct without enforcing the statute.
14
Affirmed.
15
Mr. Justice FORTAS, with whom Mr. Justice DOUGLAS joins, dissenting.
16
In my opinion, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), requires that the decision of the court below be reversed.
17
I agree that the statute in question is not 'unconstitutional on its face.' But that conclusion is not the end of the matter. Dombrowski stands for the proposition that 'the absention doctrine is inappropriate for cases * * * where * * * statutes are justifiably attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities.' 380 U.S., at 489—490, 85 S.Ct. at 1122. (Emphasis added.)
18
Dombrowski establishes that the federal courts will grant relief when 'defense of the State's criminal prosecution will not assure adequate vindication' of First Amendment rights. 380 U.S., at 485, 85 S.Ct., at 1120. According to Dombrowski, this condition exists when the State has invoked the criminal law in bad faith and for the purpose of harassing and disrupting the exercise of those rights. Federal courts are available to enjoin the invocation of state criminal process when that process is abusively invoked 'without any hope of ultimate success, but only to discourage' the assertion of constitutionally protected rights. 380 U.S., at 490, 85 S.Ct., at 1123. See also City of Greenwood v. Peacock, 384 U.S. 808, 829, 86 S.Ct. 1800, 1813, 16 L.Ed.2d 944 (1966).
19
Dombrowski is strong medicine. It involves interposition of federal power at the threshold stage of the administration of state criminal laws. Dombrowski's remedy is justified only when First Amendment rights, which are basic to our freedom, are imperiled by calculated, deliberate state assault. And those who seek federal intervention bear a heavy burden to show that the State, in prosecuting them, is not engaged in use of its police power for legitimate ends, but is deliberately invoking it to harass or suppress First Amendment rights. Dombrowski should never be invoked when the State is, in substance and truth, engaged in the enforcement of valid criminal laws. Ordinarily, the presumption that the State's motive was law enforcement and not interference with speech or assembly will carry the day.
20
I approach the problem of the present case with this modest view of Dombrowski's scope. Even so, in my judgment, Dombrowski commands reversal of the judgment in this case. Dombrowski means precious little, I submit, if the presumption supporting state action is not overcome by facts such as those before us now.
21
On January 22, 1964, civil rights organizations whose members and adherents are represented in this class action by appellants began to picket the Forrest County voting registration office, which is located in the Hattiesburg, Mississippi, courthouse. The picketing was designed to protest racial discrimination in voter registration and to encourage Negro citizens of the county to register. On that day, there was a large crowd of several hundred persons gathered near the courthouse. The picketing continued from January 22 until May 18, every day except Sunday. After the initial period culminating in the first arrests on April 10, the number of pickets varied from seven to 10.
22
Shortly after the first day of picketing, the sheriff marked out a 'march route.' The pickets thereafter confined themselves to this route. They were allowed to continue picketing unmolested. The march route never took the pickets directly in front of any entrance to the courthouse. The picketing was, by all accounts, peaceful and without incident. The pickets at first sang, chanted, preached, and prayed, but within a few days and beginning well before the time of the arrests, they confined themselves to a slow, quiet walk. This continued throughout the relevant dates.
23
The evidence in this record that the picketing interfered with or even inconvenienced pedestrians is negligible.1 There is no evidence that access to the courthouse was actually obstructed. If the pickets had been disorderly or had obstructed use of the sidewalks or access to the courthouse, the police, subject to constitutional limitations, could have arrested them under various statutes2 But the record is clear: The pickets confined themselves to the line of march designated by the police themselves, and they were quiet and orderly. They remained at some considerable distance from at least three entrances to the courthouse, including the principal one at the top of the courthouse steps. There was no reason for their arrest. They were obeying, not disobeying, the police.
24
For about two and a half months, from January 22, 1964, to April 10, 1964, the police stood by. The pickets marched on the prescribed route. Nobody had any difficulty of passage or of access to the public building.
25
Then, on April 8, 1964, the Mississippi Legislature enacted a law which, I believe, may fairly be characterized as a directive to the police that the picketing in Hattiesburg should be stopped forthwith. This law, as amended, forbade 'picketing * * * in such a manner as to obstruct or interfere with free ingress or egress to and from any * * * courthouses. * * *' Laws 1964, c. 343.
26
The law was signed by the Governor on the same day it was passed by the State Legislature, and delivered by messenger to waiting law enforcement officials in Hattiesburg on the following day. As soon as the law was brought to those officials on April 9, they read it aloud to the pickets and asked them to disperse. There was then only a small group of pickets. The following morning, April 10, when pickets returned to the march route, the first arrests were made. A large number of persons were picketing on that day, 35 or 40 of them, because they anticipated arrests. In the same afternoon, only a woman and some school children were picketing. All were arrested. On the next day, April 11, nine persons were demonstrating; seven were arrested. The picketing continued every day except Sunday. On May 18, again, there were nine pickets, and all were arrested. There was no further picketing.
27
Apart from the morning of April 10,3 at none of the times when arrests were made is there a shred of evidence that the April 8 statute was violated. There is no suggestion that the few pickets present on the afternoon of April 10, on April 11, or on May 18, blocked access to or egress from the courthouse, or obstructed the walks.4
28
I submit that this record compels the following conclusions:
29
1. The pickets were arrested and prosecuted 'without any hope of ultimate success.' There is no evidence that their activities 'obstruct(ed) * * * or unreasonably interfer(ed) with ingress or egress to and from any * * * courthouses * * *.'
30
The meager, insubstantial evidence of inconvenience to pedestrians, which I have summarized in notes 1 and 4 above, could not be used to support a conviction under the language of this specific, narrowly phrased statute. See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); cf. Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (opinion of Fortas, J.). Even if we assume that this record shows that some pedestrians were inconvenienced, that is not the same thing as blocking the doors of the courthouse. I agree that, in an injunctive proceeding like the present action, the State does not have to prove the violation of law beyond a reasonable doubt and establish that it is not constitutionally protected. But, if Dombrowski means anything, the State must certainly show more than there is in this record.
31
2. The arrests and their sequence demonstrate that the State was not here engaged in policing access to the courthouse or even freedom of the sidewalks, but in a deliberate plan to put an end to the voting-rights demonstration. This is shown by the facts (1) that the pickets marched in the line laid out by the police themselves; (2) that the police did not interfere for two and a half months; (3) that the legislature passed a rifleshot law, neatly directed to this particular situation; (4) that thereupon the police set out to break up the picketing; (5) that the number, volume, and characteristics of the picketing certainly were not more obstructive on the days of the last three arrests than on any other days in which the picketing occurred and was tolerated.
32
In my opinion, these conclusions demonstrate that the pickets were not arrested as a result of good-faith administration of the criminal law. They were arrested for the purpose of putting a stop to a peaceful, orderly demonstration protected by the First Amendment in principle and in the manner of execution here. They were not arrested because they blocked access to the courthouse. There is powerful evidence in this record that the State cannot possibly anticipate a conviction of the pickets which will withstand the tests this Court has laid down in the First Amendment and Fourteenth Amendment areas; and it requires more indulgence than this Court has permitted in cases involving First Amendment freedoms for us to say that the State has made a tolerable showing to the contrary.
33
I would reverse the judgment below and remand for the entry of an appropriate order.5
1
The statute as amended is codified as Miss.Code Ann. § 2318.5 (Supp.1966), and in pertinent part provides:
'1. It shall be unlawful for any person, singly or in concert with others, to engage in picketing or mass demonstrations in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any public premises, State property, county or municipal courthouses, city halls, office buildings, jails, or other public buildings or property owned by the State of Mississippi, or any county or municipal government located therein, or with the transaction of public business or administration of justice therein or thereon conducted or so as to obstruct or unreasonably interfere with free use of public streets, sidewalks, or other public ways adjacent or contiguous thereto.
'2. Any person guilty of violating this act shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than Five Hundred Dollars ($500.00), or imprisoned in jail not more than six (6) months, or both such fine and imprisonment.'
2
All of the prosecutions were removed under 28 U.S.C. § 1443 to the federal courts. Following our opinion in City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944, the cases were remanded to the state courts. Hartfield v. State of Mississippi, 5 Cir., 363 F.2d 869. They were subsequently stayed by the District Court and are presently stayed pending our decision on this appeal.
3
Our per curiam stated, 381 U.S. 741—742, 85 S.Ct. 1751 1752, 'On remand, the District Court should first consider whether 28 U.S.C. § 2283 (1958 ed.) bars a federal injunction in this case, see 380 U.S., at 484, n. 2, 85 S.Ct. at 1119. If § 2283 is not a bar, the court should then determine whether relief is proper in light of the criteria set forth in Dombrowski.' The District Court held that § 2283 prohibited the court from enjoining or abating the criminal prosecutions initiated against the appellants prior to the filing of the suit on April 13, 1964, and further, that 42 U.S.C. § 1983 creates no exception to § 2283. 262 F.Supp. 873, 878. We find it unnecessary to resolve either question and intimate no view whatever upon the correctness of the holding of the District Court.
4
The three-judge District Court which rendered the initial decision consisted of Circuit Judge Rives and District Court Judges Mize and Cox. Upon the death of Judge Mize, Circuit Judge Coleman was designated to serve in his stead. Circuit Judge Rives dissented from his colleagues on both occasions. See 244 F.Supp., at 856, 262 F.Supp., at 881.
5
In the initial decision the District Court declined to pass on the statute's constitutionality, holding that the case was one for abstention. 244 F.Supp., at 855—856. In Zwickler we held that it was error in the absence of special circumstances to abstain and refuse to render a declaratory judgment and, further, said, 389 U.S. at 254, 88 S.Ct. at 399: '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.'
6
See Ashton v. Kentucky, 384 U.S. 195, 200—201, 86 S.Ct. 1407, 1410, 16 L.Ed.2d 469.
7
The appellants suggest that the amendment to the statute which twice inserts the word 'unreasonably' 'raises new questions of unconstitutional vagueness and overbreadth not before this Court on the original appeal.' The District Court rejected this argument, 262 F.Supp., at 879: 'Plaintiffs * * * argue that the addition of the word 'unreasonably' to the statute made it even more vague and indefinite, but we disagree. The word 'unreasonable' seems to have been well understood by the founders of the Republic when they used it in the Fourth Amendment, where it remains, and is enforced, as it should be, to this day.' Judge Rives, in dissent, 262 F.Supp., at 897, n. 58, found that the addition of the word to the statute did not alter its scope. 'On the contrary, the defendants argue that the statute should always have been interpreted as if this word were present and that the persons arrested did unreasonably block the Court House.'
8
See Cameron v. Johnson, 381 U.S., at 749—750, 85 S.Ct. at 1755—1756 (dissenting opinion of BLACK, J.); id., at 757, 85 S.Ct. at 1759 (dissenting opinion of WHITE, J.).
9
See NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307, 84 S.Ct. 1302, 1313, 12 L.Ed.2d 325; see also Zwickler v. Koota, 389 U.S. 241, 249—250, 88 S.Ct. 391, 396—397, 19 L.Ed.2d 444; Keyishian v. Board of Regents, 385 U.S. 589, 609, 87 S.Ct. 675, 687, 17 L.Ed.2d 629; Aptheker v. Secretary of State, 378 U.S. 500, 508—509, 84 S.Ct. 1659, 1664—1665, 12 L.Ed.2d 992; NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405; 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—307, 60 S.Ct. 900, 903—904, 84 L.Ed. 1213; Schneider v. State, 308 U.S. 147, 161, 165, 60 S.Ct. 146, 150, 152, 84 L.Ed. 155.
10
See Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 499—500, 69 S.Ct. 684, 689, 93 L.Ed. 834; NAACP v. State of Alabama, 357 U.S. 449, 460—462, 78 S.Ct. 1163, 1170—1171, 2 L.Ed.2d 1488; NAACP v. Button, 371 U.S. 415, 438—439, 83 S.Ct. 328, 340—341, 9 L.Ed.2d 405.
11
See 244 F.Supp., at 849: '(T)his Court indicates nothing as to the guilt or innocence of the plaintiffs * * *'; 262 F.Supp., at 876: 'We do not sit in this proceeding to determine the guilt or innocence of the plaintiffs * * *.'
1
With respect to the arrests made on the morning of April 10, there are some unimpressive shreds of such evidence: the testimony of the home demonstration agent that, in proceeding outside from her office (located in the courthouse) to the office of the county agent (also located in the courthouse), she found that the pickets 'were so close together that I had to wait for just a moment to get in line and I fell in line with them and started weaving back and forth until I reached the front steps and then dropped out of the line'; in addition, the president of the Forrest County Board of Supervisors, attracted to the scene by 'curiosity as much as anything else,' testified that in his 'opinion' a side entrance to the courthouse was obstructed by the pickets.
2
Miss.Code Ann. §§ 2087.5, 2087.9 (1966 Supp.) (disorderly conduct); Miss.Code Ann. § 2089.5 (1966 Supp.) (disturbance of the peace); Miss.Code Ann. § 2090.5 (1957) (disturbance in public place). The record in fact shows that in the early period of picketing some arrests for breach of the peace were made.
3
See n. 1, supra.
4
There were on each of these occasions fewer than 10 pickets walking around a grassy plot on the 'march route,' a path that measured well over 100 feet in length. There is some indication of a contention that on these occasions the pickets were walking closely bunched. But as Circuit Judge Rives, dissenting in the court below, pointed out, 10 pickets walking closely bunched could not possibly have obstructed any entrance to the courthouse for more than a small fraction of the time necessary to proceed around the plot. And in any event, there is no evidence of any one having actually been impeded in attempting to gain access to the courthouse on these dates.
5
In view of the fact that the majority does not reach the issue, I consider it inappropriate to discuss whether the anti-injunction statute, 28 U.S.C. § 2283, constitutes a bar to Dombrowski relief in this case. See, however, City of Greenwood v. Peacock, 384 U.S. 808, 829, 86 S.Ct. 1800, 1813, 16 L.Ed.2d 944 (1966).
| 23
|
390 U.S. 719
88 S.Ct. 1318
20 L.Ed.2d 255
Jack Allen BARBER, Petitioner,v.Ray H. PAGE, Warden.
No. 703.
Argued March 28, 1968.
Decided April 23, 1968.
Ira G. Rothgerber, Jr., Denver, Colo., for petitioner.
Charles L. Owens, Oklahoma City, Okl., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The question presented is whether petitioner was deprived of his Sixth and Fourteenth Amendment right to be confronted with the witnesses against him at his trial in Oklahoma for armed robbery, at which the principal evidence against him consisted of the reading of a transcript of the preliminary hearing testimony of a witness who at the time of trial was incarcerated in a federal prison in Texas.
2
Petitioner and one Woods were jointly charged with the robbery, and at the preliminary hearing were represented by the same retained counsel, a Mr. Parks. During the course of the hearing, Woods agreed to waive his privilege against self-incrimination. Parks then withdrew as Woods' attorney but continued to represent petitioner. Thereupon Woods proceeded to give testimony that incriminated petitioner. Parks did not cross-examine Woods, although an attorney for another codefendant did.
3
By the time petitioner was brought to trial some seven months later, Woods was incarcerated in a federal penitentiary in Texarkana, Texas, about 225 miles from the trial court in Oklahoma. The State proposed to introduce against petitioner the transcript of Woods' testimony at the preliminary hearing on the ground that Woods was unavailable to testify because he was outside the jurisdiction. Petitioner objected to that course on the ground that it would deprive him of his right to be confronted with the witnesses against him. His objection was overruled and the transcript was admitted and read to the jury, which found him guilty. On appeal the Oklahoma Court of Criminal Appeals affirmed his conviction. Barber v. State, 388 P.2d 320 (Okl.Cr.App. 1963).
4
Petitioner then sought federal habeas corpus, claiming that the use of the transcript of Woods' testimony in his state trial deprived him of his federal constitutional right to confrontation in violation of the Sixth and Fourteenth Amendments. His contention was rejected by the District Court and on appeal the Court of Appeals for the Tenth Circuit, one judge dissenting, affirmed. 381 F.2d 479 (1966). We granted certiorari, 389 U.S. 819, 88 S.Ct. 115, 19 L.Ed.2d 69 (1967), to consider petitioner's denial of confrontation claim, and we reverse.
5
Many years ago this Court stated that '(t)he primary object of the (Confrontation Clause of the Sixth Amendment) * * * was to prevent depositions or ex parte affidavits * * * being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' Mattox v. United States, 156 U.S. 237, 242—243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895). More recently, in holding the Sixth Amendment right of confrontation applicable to the States through the Fourteenth Amendment, this Court said, 'There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.' Pointer v. State of Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). See also Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).
6
It is true that there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. E.g., Mattox v. United States, supra (witnesses who testified in original trial died prior to the second trial). This exception has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. See 5 Wigmore, Evidence §§ 1395—1396, 1402 (3d ed. 1940); C. McCormick, Evidence §§ 231, 234 (1954).
7
Here the State argues that the introduction of the transcript is within that exception on the grounds that Woods was outside the jurisdiction and therefore 'unavailable' at the time of trial, and that the right of cross-examination was afforded petitioner at the preliminary hearing, although not utilized then by him. For the purpose of this decision we shall assume that petitioner made a valid waiver of his right to cross-examine Woods at the preliminary hearing, although such an assumption seems open to considerable question under the circumstances.1
8
We start with the fact that the State made absolutely no effort to obtain the presence of Woods at trial other than to ascertain that he was in a federal prison outside Oklahoma. It must be acknowledged that various courts2 and commentators3 have heretofore assumed that the mere absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that 'it is impossible to compel his attendance, because the process of the trial Court is of no force without the jurisdiction, and the party desiring his testimony is therefore helpless.' 5 Wigmore, Evidence § 1404 (3d ed. 1940).
9
Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law.4 For example, in the case of a prospective witness currently in federal custody, 28 U.S.C. § 2241(c)(5) gives federal courts the power to issue writs of habeas corpus ad testificandum at the request of state prosecutorial authorities. See Gilmore v. United States, 129 F.2d 199, 202 (C.A.10th Cir. 1942); United States v. McGaha, 205 F.Supp. 949 (D.C.E.D.Tenn. 1962). In addition, it is the policy of the United States Bureau of Prisons to permit federal prisoners to testify in state court criminal proceedings pursuant to writs of habeas corpus ad testificandum issued out of state courts.5 Cf. Lawrence v. Willingham, 373 F.2d 731 (C.A.10th Cir. 1967) (habeas corpus ad prosequendum).
10
In this case the state authorities made no effort to avail themselves of either of the above alternative means of seeking to secure Woods' presence at petitioner's trial. The Court of Appeals majority appears to have reasoned that because the State would have had to request an exercise of discretion on the part of federal authorities, it was under no obligation to make any such request. Yet as Judge Aldrich, sitting by designation, pointed out in dissent below, 'the possibility of a refusal is not the equivalent of asking and receiving a rebuff.' 381 F.2d, at 481. In short, a witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly.
11
The State argues that petitioner waived his right to confront Woods at trial by not cross-examining him at the preliminary hearing. That contention is untenable. Not only was petitioner unaware that Woods would be in a federal prison at the time of his trial, but he was also unaware that, even assuming Woods' incarceration, the State would make no effort to produce Woods at trial. To suggest that failure to cross-examine in such circumstances constitutes a waiver of the right of confrontation at a subsequent trial hardly comports with this Court's definition of a waiver as 'an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966).
12
Moreover, we would reach the same result on the facts of this case had petitioner's counsel actually cross-examined Woods at the preliminary hearing. See Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900). The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial. While there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demand of the confrontation clause where the witness is shown to be actually unavailable, this is not, as we have pointed out, such a case.6
13
The judgment of the Court of Appeals for the Tenth Circuit is reversed and the case is remanded for further proceedings consistent with this opinion.
14
It is so ordered.
15
Reversed and remanded.
16
Mr. Justice HARLAN, concurring.
17
I agree that the State's failure to attempt to obtain the presence of the witness denied petitioner due process, and I therefore concur in the opinion of the Court on the premises of my opinion in Pointer v. State of Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, 1070, 13 L.Ed.2d 923.
1
Since Woods and his attorney Parks presumably discussed Woods' connection with the crime before the preliminary hearing, it would seem highly probable that effective cross-examination by Parks of Woods would have necessitated covering material about which Woods had made confidential communications to Parks. While the State may be correct in asserting that Woods had waived, under Oklahoma law, his right to assert the attorney-client privilege as to those matters by testifying, at the very least serious ethical questions would seem to be presented to Parks under those circumstances. And in fact, the cases cited by the State in support of its contention that the attorney-client privilege would not have barred cross-examination by Parks involved situations where the client had testified about the existence and nature of the communications between himself and his attorney prior to the introduction of the attorney's testimony by way of rebuttal. E.g., Brown v. State, 9 Okl.Cr. 382, 132 P. 359 (1913); Boring v. Harber, 130 Okl. 251, 267 P. 252 (1927). As far as the record reveals Woods did not testify about any communications between himself and Parks and hence the applicability of the foregoing cases is questionable.
2
See cases collected in 5 Wigmore, Evidence § 1404, n. 5 (3d ed. 1964 Supp.).
3
E.g., C. McCormick, Evidence § 234 (1954).
4
For witnesses not in prison, the Uniform Act To Secure the Attendance of Witnesses from Without a State in Criminal Proceedings provides a means by which prosecuting authorities from one State can obtain an order from a court in the State where the witness is found directing the witness to appear in court in the first State to testify. The State seeking his apparance must pay the witness a specified sum as a travel allowance and compensation for his time. As of 1967 the Uniform Act was in force in 45 States, the District of Columbia, the Canal Zone, Puerto Rico, and the Virgin Islands. See 9 Uniform Laws Ann. 50 (1967 Supp.). For witnesses in prison, quite probably many state courts would utilize the common-law writ of habeas corpus ad testificandum at the request of prosecutorial authorities of a sister State upon a showing that adequate safeguards to keep the prisoner in custody would be maintained.
5
Department of Justice, United States Marshals Manual §§ 720.04—720.06. Cf. Brief for the United States as Amicus Curiae, Smith v. Hooey, No. 495, Misc., October Term, 1967 (habeas corpus ad prosequendum from state court normally honored by Bureau of Prisons).
6
Cf. Holman v. Washington, 364 F.2d 618 (C.A.5th Cir. 1966); Government of Virgin Islands v. Aquino, 378 F.2d 540 (C.A.3d Cir. 1967).
| 01
|
390 U.S. 746
88 S.Ct. 1443
20 L.Ed.2d 276
Pearline SIMSv.Wilbur J. COHEN, Acting Secretary of Health, Education, and Welfare.
No. 386, Misc.
Supreme Court of the United States
October Term, 1967.
April 29, 1968
H. H. Gearinger, for petitioner.
Solicitor General Marshall, for respondent.
Israel Steingold, for the American Trial Lawyers Ass'n, amicus curiae.
On Petition for Writ of Certiorari to The United States Court of Appeals for the Sixth Circuit.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed. Hopkins v. Cohen, 390 U.S. 530, 88 S.Ct. 1146, 20 L.Ed.2d 87.
2
THE CHIEF JUSTICE and Mr. Justice WHITE dissent for the reasons stated in the dissenting opinion of Mr. Justice White in Hopkins v. Cohen, 390 U.S. 535, 88 S.Ct. 1149, 20 L.Ed.2d 91.
3
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
| 56
|
390 U.S. 727
88 S.Ct. 1323
20 L.Ed.2d 262
Phil A. ST. AMANT, Petitioner,v.Herman A. THOMPSON.
No. 517.
Argued April 4, 1968.
Decided April 29, 1968.
Russell J. Schonekas, New Orleans, La., for petitioner.
Robert L. Kleinpeter, Baton Rouge, La., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The question presented by this case is whether the Louisiana Supreme Court, in sustaining a judgment for damages in a public official's defamation action, correctly interpreted and applied the rule of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), that the plaintiff in such an action must prove that the defamatory publication '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.
2
On June 27, 1962, petitioner St. Amant, a candidate for public office, made a televised speech in Baton Rouge, Louisiana. In the course of this speech, St. Amant read a series of questions which he had put to J. D. Albin, a member of a Teamsters Union local, and Albin's answers to those questions. The exchange concerned the allegedly nefarious activities of E. G. Partin, the president of the local, and the alleged relationship between Partin and St. Amant's political opponent. One of Albin's answers concerned his efforts to prevent Partin from secreting union records; in this answer Albin referred to Herman A. Thompson, an East Baton Rouge Parish deputy sheriff and respondent here:
3
'Now, we knew that this safe was gonna be moved that night, but imagine our predicament, knowing of Ed's connections with the Sheriff's office through Herman Thompson, who made recent visits to the Hall to see Ed. We also knew of money that had passed hands between Ed and Herman Thompson * * * from Ed to Herman. We also knew of his connections with State Trooper Lieutenant Joe Green. We knew we couldn't get any help from there and we didn't know how far that he was involved in the Sheriff's office or the State Police office through that, and it was out of the jurisdiction of the City Police.'1
4
Thompson promptly brought suit for defamation, claiming that the publication had 'impute(d) * * * gross misconduct' and 'infer(red) conduct of the most nefarious nature.' The case was tried prior to the decision in New York Times Co. v. Sullivan, supra. The trial judge ruled in Thompson's favor and awarded $5,000 in damages. Thereafter, in the course of entertaining and denying a motion for a new trial, the Court considered the ruling in New York Times, finding that rule no barrier to the judgment already entered. The Louisiana Court of Appeal reversed because the record failed to show that St. Amant had acted with actual malice, as required by New York Times. 184 So.2d 314 (1966). The Supreme Court of Louisiana reversed the intermediate appellate court. 250 La. 405, 196 So.2d 255 (1967). In its view, there was sufficient evidence that St. Amant recklessly disregarded whether the statements about Thompson were true or false. We granted a writ of certiorari. 389 U.S. 1033, 88 S.Ct. 766, 19 L.Ed.2d 820 (1968).
5
For purposes of this case we accept the determinations of the Louisiana courts that the material published by St. Amant charged Thompson with criminal conduct, that the charge was false, and that Thompson was a public official2 and so had the burden of proving that the false statements about Thompson were made with actual malice as defined in New York Times Co. v. Sullivan and later cases. We cannot, however, agree with either the Supreme Court of Louisiana or the trial court that Thompson sustained this burden.
6
Purporting to apply the New York Times malice standard, the Louisiana Supreme Court ruled that St. Amant had broadcast false information about Thompson recklessly, though not knowingly. Several reasons were given for this conclusion. St. Amant had no personal knowledge of Thompson's activities; he relied solely on Albin's affidavit although the record was silent as to Albin's reputation for veracity; he failed to verify the information with those in the union office who might have known the facts; he gave no consideration to whether or not the statements defamed Thompson and went ahead heedless of the consequences; and he mistakenly believed he had no responsibility for the broadcast because he was merely quoting Albin's words.
7
These considerations fall short of proving St. Amant's reckless disregard for the accuracy of his statements about Thompson. 'Reckless disregard,' it is true, cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law. Our cases, however, have furnished meaningful guidance for the further definition of a reckless publication. In New York Times, supra, the plaintiff did not satisfy his burden because the record failed to show that the publisher was aware of the likelihood that he was circulating false information. In Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), also decided before the decision of the Louisiana Supreme Court in this case, the opinion emphasized the necessity for a showing that a false publication was made with a 'high degree of awareness of * * * probable falsity.' 379 U.S., at 74, 85 S.Ct., at 216. Mr. Justice Harlan's opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 153, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094 (1967), stated that evidence of either deliberate falsification or reckless publication 'despite the publisher's awareness of probable falsity' was essential to recovery by public officials in defamation actions. These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
8
It may be said that such a test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendants testimony that he published the statement in good faith and unaware of its probable falsity. Concededly the reckless disregard standard may permit recovery in fewer situations than would a rule that publishers must satisfy the standard of the reasonable man or the prudent publisher. But New York Times and succeeding cases have emphasized that the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies. Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones. We adhere to this view and to the line which our cases have drawn between false communications which are protected and those which are not.
9
The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.3
10
By no proper test of reckless disregard was St. Amant's broadcast a reckless publication about a public officer. Nothing referred to by the Louisiana courts indicates an awareness by St. Amant of the probable falsity of Albin's statement about Thompson. Failure to investigate does not in itself establish bad faith. New York Times Co. v. Sullivan, supra, 376 U.S. at 287—288, 84 S.Ct. at 729—730. St. Amant's mistake about his probable legal liability does not evidence a doubtful mind on his part. That he failed to realize the import of what he broadcast—and was thus 'heedless' of the consequences for Thompson is similarly colorless. Closer to the mark are considerations of Albin's reliability. However, the most the state court could say was that there was no evidence in the record of Albin's reputation for veracity, and this fact merely underlines the failure of Thompson's evidence to demonstrate a low community assessment of Albin's trustworthiness or unsatisfactory experience with him by St. Amant.
11
Other facts in this record support our view. St. Amant made his broadcast in June 1962. He had known Albin since October 1961, when he first met with members of the dissident Teamsters faction. St. Amant testified that he had verified other aspects of Albin's information and that he had affidavits from others. Moreover Albin swore to his answers, first in writing and later in the presence of newsmen. According to Albin, he was prepared to substantiate his charges. St. Amant knew that Albin was engaged in an internal struggle in the union; Albin seemed to St. Amant to be placing himself in personal danger by publicly airing the details of the dispute.
12
Because the state court misunderstood and misapplied the actual malice standard which must be observed in a public official's defamation action, the judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.
13
Reversed and remanded.
14
Mr. Justice BLACK and Mr. Justice DOUGLAS concur in the judgment of the Court for the reasons set out in their concurring opinions in New York Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733, 11 L.Ed.2d 686 (1964), and Garrison v. State of Louisiana, 379 U.S. 64, 79, 80, 85 S.Ct. 209, 218, 219, 13 L.Ed.2d 125 (1964).
15
Mr. Justice FORTAS, dissenting.
16
I do not believe that petitioner satisfied the minimal standards of care specified by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The affidavit that petitioner broadcast contained a seriously libelous statement directed against respondent. Respondent was a public official. He was not petitioner's adversary in the political contest. Petitioner's casual, careless, callous use of the libel cannot be rationalized as resulting from the heat of a campaign. Under New York Times, this libel was broadcast by petitioner with 'actual malice'—with reckless disregard of whether it was false or not. The principle of Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), in my opinion, should lead us to affirmance here.
17
The First Amendment is not so fragile that it requires us to immunize this kind of reckless, destructive invasion of the life, even of public officials, heedless of their interests and sensitivities. The First Amendment is not a shelter for the character assassinator, whether his action is heedless and reckless or deliberate. The First Amendment does not require that we license shotgun attacks on public officials in virtually unlimited open season. The occupation of public officeholder does not forfeit one's membership in the human race. The public official should be subject to severe scrutiny and to free and open criticism. But if he is needlessly, heedlessly, falsely accused of crime, he should have a remedy in law. New York Times does not preclude this minimal standard of civilized living.
18
Petitioner had a duty here to check the reliability of the libelous statement about respondent. If he had made a good-faith check, I would agree that he should be protected even if the statement were false, because the interest of public officials in their reputation must endure this degree of assault. But since he made no check, I agree with the Supreme Court of Louisiana that New York Times does not prohibit recovery.
19
I would affirm.
1
St. Amant had preceded this question and answer with other answers by Albin asserting that Partin, on learning that a union member had written to the Secretary of Labor charging that Partin had been stealing union funds, had become 'pretty riled up' and had decided to 'get rid of the safe' containing the union records.
2
The Louisiana Supreme Court concluded, after considering state law, that a deputy sheriff has 'substantial responsibility for or control over the conduct of governmental affairs,' the test established by Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 675, 15 L.Ed.2d 597 (1966), 'at least where law enforcement and police functions are concerned.' 250 La., at 422, 196 So.2d, at 261.
3
See, e.g., Curtis Publishing Co. v. Butts, 388 U.S. 130, 169—170, 87 S.Ct. 1975, 1998—1999 (WARREN, C.J., concurring in the result), and 172, 87 S.Ct. 2000 (BRENNAN, J., dissenting) (1967).
| 23
|
390 U.S. 736
88 S.Ct. 1437
20 L.Ed.2d 270
Josephine HANNER, petitioner,v.Cecil DeMARCUS et ux.
No. 497.
Supreme Court of the United States
October, Term, 1967.
April 29, 1968
Rehearing Denied June 10, 1968.
See 392 U.S. 917, 88 S.Ct. 2051.
Philip M. Haggerty, Phoenix, Ariz., for petitioner.
N. Pike Johnson, Jr., Phoenix, Ariz., for respondents.
On Writ of Certiorari to the Supreme Court of Arizona.
PER CURIAM.
1
The writ of certiorari is dismissed as improvidently granted.
2
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
3
Respondent was appointed Special Master in an Arizona divorce proceeding where petitioner, Josephine Hanner, was defendant. The divorce court ordered petitioner to pay respondent's $5,072.10 Special Master's fee. Respondent obtained a writ of execution and levied on certain real property of petitioner, which respondent purchased at the execution sale for the amount of judgment, later acquiring a sheriff's deed. The only notice of the execution and judicial sale was by newspaper publication and public posting. Three years after the execution, respondent commenced a quiet-title action in Arizona court. Petitioner pleaded as an affirmative defense that the execution and deed were 'null and void and of no effect' because neither respondent nor the sheriff gave her actual notice of the execution and judicial sale, although respondent knew her address and that of her attorney in the divorce action. Respondent was granted summary judgment, and, on appeal to the Arizona Supreme Court, petitioner urged that because no actual notice was given her, the procedure for execution violated the Due Process Clause of the Fourteenth Amendment. Petitioner urged the State Supreme Court to construe Rule 53(a) of the Arizona Rules of Civil Procedure, 16 A.R.S., concerning Master's fees, to require actual notice to the debtor of execution, in order to avoid the constitutional problem. That court, however, held that Rule 53(a) did not require notice of execution, but merely of the underlying debt, and concluded that the procedure did not deny due process.
4
In her petition for writ of certiorari, Mrs. Hanner urged that the failure to give her actual notice of the execution prejudiced her in three respects: (1) she was unable to invoke her privilege under state law, Ariz.Rev.Stat.Ann. § 12-1562, to specify which property the sheriff should seize to satisfy the debt; (2) she was unable to demand that the sheriff comply with Ariz.Rev.Stat.Ann. § 12-1553, providing that execution be levied on personal property rather than realty, where the personalty is sufficient to satisfy the judgment; and (3) respondent was enabled to acquire for less than $5,100 land which he in the divorce case had valued at $20,000 and which petitioner values at $40,000, because petitioner, not knowing of the judicial sale, was unable to protect her interests.
5
In his brief opposing certiorari, respondent argued that the only federal question presented, whether actual notice to the judgment debtor of execution and judicial sale was required by procedural due process, had been decided in Endicott-Johnson Corp. v. Encyclopedia Press, 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288, which held that notice of the underlying debt sufficed. We granted certiorari to determine whether Endicott should be overruled. 389 U.S. 926, 88 S.Ct. 288, 19 L.Ed.2d 277.
6
In his brief on the merits, respondent changed position and argued that the Endicott question was not properly before this Court. Sections 12-1562 and 12-1553 of the Arizona Statutes, he claims, do in fact require that the debtor be given actual notice. It is urged that by failing to invoke these sections but instead arguing that Rule 53(a) was unconstitutional unless construed to require actual notice petitioner bypassed state grounds which might have entitled her to relief.
7
Section 12-1553 provides that the writ of execution shall require the officer to satisfy a judgment against the property of the debtor 'out of the personal property of the debtor, and if sufficient personal property cannot be found, then out of his real property. * * *' Section 12-1562, subsec. B provides: 'A judgment debtor may point out to the levying officer the property he desires to be levied on, and if the officer deems it sufficient to satisfy the execution, he shall make levy on no other property.'
8
In Blasingame v. Wallace, 32 Ariz. 580, 261 P. 42, the Arizona Supreme Court held these provisions were 'not mandatory' but that the judicial sale 'may be set aside where it is shown that the judgment debtor had sufficient personal property which could have been applied upon the judgment, and that the officer knew it, or by the exercise of reasonable diligence could have discovered it, and failed to levy upon it, but instead levied upon and sold for the amount of the judgment real property worth many times that sum.' Id., at 586, 261 P., at 44.
9
We do not know precisely what petitioner argued in the Supreme Court of Arizona because the briefs of the parties in that court have not been made part of the record here. It appears, however, from the sketchy record that is before us that she did make timely objection that the sheriff did not consult with her respecting the property upon which he would levy. In her affidavit opposing summary judgment petitioner made two separate and distinct arguments regarding notice. The first states: 'Affiants allege that at no time did * * * these affiants receive any notice from the said Cecil DeMarcus or his agents or his attorney as required by Rule 53(A) Rules of Civil Procedure for the Superior Courts of the State of Arizona, which is a material issue of fact as to whether the notice required by said Rule 53(A) was given to these defendants by the plaintiff.' (Emphasis in original.)
10
In the next paragraph of the affidavit petitioner made a different allegation respecting notice: 'Affiants further allege that at no time did they receive any notice from the Sheriff of Maricopa County, State of Arizona as to any execution issued out of the above entitled Court and did not receive any notice as to any Sheriff's sale of said Lots. * * *' Since petitioner's position was that Rule 53(a), relating to special masters, required the Master to give notice, the allegations respecting failure of the sheriff to give notice could only be relevant under the State's Blasingame doctrine. The fact that this affidavit was before the State Supreme Court, coupled with respondent's concession that petitioner argued there that if actual notice were not provided for due process would be violated, compels the conclusion that for purposes of this Court's review of federal questions petitioner adequately presented to the Arizona courts the issue of the applicability of Blasingame, even though she may not have cited that case or §§ 12-1553 and 12-1562 until her petition for rehearing. Moreover, this Court will not decline to decide a constitutional question simply because of a State's technicalities respecting briefing and pleading. See NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325; Wright v. State of Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349; Staub v. City of Baxley, 355 U.S. 313, 318, 78 S.Ct. 277, 2 L.Ed.2d 302.
11
When the judgment below is viewed as holding by necessity that Blasingame does not entitle petitioner to relief, it is unquestionable that the Arizona Supreme Court has held constitutional a procedure for execution of judgment and judicial sale in which the debtor receives no actual notice of these proceedings.1 With all due respect, only a Baron Parke2 would say that the federal question respecting notice had not been raised and therefore that the writ should be dismissed as improvidently granted.
12
The propriety of overruling Endicott-Johnson Corp. v. Encyclopedia Press, supra, is therefore squarely presented.
13
Endicott was decided in 1924, and its holding that due process does not require notifying a judgment debtor of execution on his property has never been reaffirmed by this Court. Significantly, the Court in Endicott did not hold that absence of any notice at all was permissible, but rather that the judgment debtor, having had his day in court and being aware of the judgment against him, is expected to know that execution may follow.
14
Since the Endicott decision, there has been not only an expansion of the scope of the notice requirement itself (e. g., Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (adoption); Lambert v. People of State of California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (felon's duty to register); Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021 (property tax foreclosure)),3 but a new approach to the constitutional sufficiency of the means of giving notice in particular types of cases. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; Walker v. Hutchinson City, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178; Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255. 'The means employed must be such as one desirous of actually informing the [opposing party] might reasonably adopt to accomplish it.' Mullane v. Central Hanover Bank & Trust Co., 339 U.S., at 315, 70 S.Ct., at 657.
15
The Endicott rationale that a party who has litigated a case and had a judgment taken against him is deemed, for purposes of due process, to be on notice of further proceedings in the same action was rejected in Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635. There the wife won a divorce from her husband in 1926 and an award of $3,000 per year alimony. In 1938, without notifying her ex-husband, the debtor, she obtained a judgment for alimony arrears and a writ of execution. Under the applicable New York law, the husband could have defeated liability for the accrued arrearage by proof, for example, that the wife had remarried or of change of circumstances, such as comparative financial status, warranting retroactive modification of the alimony award.
16
We held failure to give actual notice to the husband of the 1938 proceedings violated due process, saying: 'While it is undoubtedly true that the 1926 decree, taken with the New York practice on the subject, gave petitioner notice at the time of its entry that further proceedings might be taken to docket in judgment form the obligation to pay installments accruing under the decree, we find in this no ground for saying that due process does not require further notice of the time and place of such further proceedings, inasmuch as they undertook substantially to affect his rights in ways in which the 1926 decree did not.' Id., at 229, 66 S.Ct., at 561.
17
Does not Griffin point the way to the demands of due process in the instant case? The further proceedings in Mrs. Hanner's case execution and judicial sale—certainly 'undertook substantially to affect [her] rights.' In Griffin substantial property rights were at stake at further proceedings because state law entitled the debtor to reduce his debt on proof of changed circumstances; in the instant case substantial property rights were at stake because state law gave the debtor the right to select the property to be levied on and to effectively prevent respondent from seizing property worth $20,000 or $40,000 for a $5,072.10 judgment. Is there any more reason to accept in this case the Endicott fiction of constructive notice because of knowledge of the underlying judgment than there was in Griffin?
18
We should face the question whether in light of our recent decisions Endicott should be overruled.
19
Mr. Justice BRENNAN, dissenting.
20
I agree with my Brother Douglas, for the reasons stated in his dissenting opinion, that the federal question respecting notice was raised and therefore that we have the duty to decide whether Endicott-Johnson Corp. v. Encyclopedia Press, 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed.2d 288, should be overruled. In my view the situation in this case is indistinguishable from that in Endicott—both involve money judgments and present the identical question whether actual notice to the judgment debtor of execution and judicial sale was required by procedural due process. In that circumstance the judgment before us cannot be reversed without overruling Endicott. Since the Court refuses to consider whether Endicott should be overruled, I see no alternative but to vote to affirm on its authority.
1
Rule 53(a) provides in relevant part: '[W]hen the party ordered to pay the compensation allowed by the court [to a Master] does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party.' The Arizona Supreme Court held: 'A cursory reading of the rule makes it evident that the word 'notice' refers to a notice to the debtor of his obligation and that the rule does not then further require a notice of an intent to execute, once notification of the judgment is properly given. Therefore whether or not [petitioner] had actual notice of the intended execution is immaterial. * * * Rule 53(a) * * * is clear in its terms. If the compensation is not paid, the rule provides a means by which payment may be secured. We disagree with defendant's contention that this method is either vague or lacking in the protections guaranteed by the due process clauses of either the Arizona or Federal Constitutions.' Knight v. DeMarcus, 102 Ariz. 105, 107-108, 425 P.2d 837, 839-840.
2
Sir James Parke served on England's bench from 1828-1855. 'His fault was an almost superstitious reverence for the dark technicalities of special pleading.' 15 Dictionary of National Biography 226.
3
'Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act.' Lambert v. People of State of California, 355 U.S. 225, 228, 78 S.Ct. 240, 243.
| 89
|
390 U.S. 747
88 S.Ct. 1344
20 L.Ed.2d 312
In re PERMIAN BASIN AREA RATE CASES.
Nos. 90, 95, 98—102, 105, 117, 181, 261, 262, 266, 388.
Argued Dec. 5, 6 and 7, 1967.
Decided May 1, 1968.
Rehearing Denied June 10, 1968.
See 392 U.S. 917, 88 S.Ct. 2050.
[Syllabus from pages 747-751 intentionally omitted]
Richard A. Solomon, Washington, D.C., for Federal Power commission.
J. Calvin Simpson, San Francisco, Cal., for Public Utilities Commission of Calif.
Malcolm H. Furbush, San Francisco, Cal., for Pacific Gas and Electric Co.
John Ormasa, Los Angeles, Cal., for Pacific Lighting Gas Supply Co. and others.
C. Hayden Ames, San Francisco, Cal., for San Diego Gas and Electric Co. All in support of order of the Federal Power Commission.
Bruce R. Merrill, Houston, Tex., for Continental Oil Co.
Crawford C. Martin, Hillsboro, Tex., for State of Texas.
Boston E. Witt, Santa Fe, N.M., for State of New Mexico.
Herbert W. Varner, Houston, Tex., for Superior Oil Co.
Robert W. Henderson, Dallas, Tex., for Hunt Oil Co.
J. Evans Attwell, Houston, Tex., for Perry R. Bass and others.
Justin R. Wolf, Washington, D.C., for Standard Oil Co. of Texas.
James L. Armour, Houston, Tex., for the Mobil Oil Co.
Louis Flax, Washington, D.C., for Sun Oil Co.
Carroll L. Gilliam, Washington, D.C., and Oliver L. Stone, New York City, for Amerada Petroleum Corp. and others. All in opposition to order of Federal Power Commission.
[Argument of Counsel from pages 752-754 intentionally omitted]
Mr. Justice HARLAN delivered the opinion of the Court.
1
These cases stem from proceedings commenced in 1960 by the Federal Power Commission under § 5(a) of the Natural Gas Act,1 52 Stat. 823, 15 U.S.C. § 717d(a), to determine maximum just and reasonable rates for sales in interstate commerce2 of natural gas produced in the Permian Basin.3 24 F.P.C. 1121. The Commission conducted extended hearings,4 and in 1965 issued a decision that both prescribed such rates and provided various ancillary requirements. 34 F.P.C. 159 and 1068. On petitions for review, the Court of Appeals for the Tenth Circuit sustained in part and set aside in part the Commission's orders. 375 F.2d 6 and 35. Because these proceedings began a new era in the regulation of natural gas producers, we granted certiorari and consolidated the cases for briefing and extended oral argument. 387 U.S. 902, 87 S.Ct. 1691, 18 L.Ed.2d 620; 388 U.S. 906, 87 S.Ct. 2117, 18 L.Ed.2d 1346; 389 U.S. 817, 88 S.Ct. 68, 19 L.Ed.2d 67. For reasons that follow, we reverse in part and affirm in part the judgments of the Court of Appeals, and sustain in their entirety the Commission's orders.
I.
2
The circumstances that led ultimately to these proceedings should first be recalled. The Commission's authority to regulate interstate sales of natural gas is derived entirely from the Natural Gas Act of 1938. 52 Stat. 821. The Act's provisions do not specifically extend to producers or to wellhead sales of natural gas,5 and the Commission declined until 1954 to regulate sales by independent producers6 to interstate pipelines.7 Its efforts to regulate such sales began only after this Court held in 1954 that independent producers are 'natural-gas compan(ies)' within the meaning of § 2(6) of the Act. 15 U.S.C. § 717a(6); Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035. The Commission has since labored with obvious difficulty to regulate a diverse and growing industry under the terms of an ill-suited statute.
3
The Commission initially sought to determine whether producers' rates were just and reasonable within the meaning of §§ 4(a)8 and 5(a) by examination of each producer's costs of service.9 Although this method has been widely employed in various rate-making situations,10 it ultimately proved inappropriate for the regulation of independent producers. Producers of natural gas cannot usefully be classed as public utilities.11 They enjoy no franchises or guaranteed areas of service. They are intensely competitive vendors of a wasting commodity they have acquired only by costly and often unrewarded search. Their unit costs may rise or decline with the vagaries of fortune. The value to the public of the services they perform is measured by the quantity and character of the natural gas they produce, and not by the resources they have expended in its search; the Commission and the consumer alike are concerned principally with 'what (the producer) gets out of the ground, not * * * what he puts into it * * *.' FPC v. Hope Natural Gas Co., 320 U.S. 591, 649, 64 S.Ct. 281, 310, 88 L.Ed. 333 (separate opinion). The exploration for and the production of natural gas are thus 'more erratic and irregular and unpredictable in relation to investment than any phase of any other utility business.' Id., at 647, 64 S.Ct., at 309. Moreover, the number both of independent producers and of jurisdictional sales is large,12 and the administrative burdens placed upon the Commission by an individual company costs-of-service standard were therefore extremely heavy.13
4
In consequence, the Commission's regulation of producers' sales became increasingly laborious, until, in 1960, it was described as the 'outstanding example in the federal government of the breakdown of the administrative process.'14 The Commission in 1960 acknowledged the gravity of its difficulties,15 and announced that it would commence a series of proceedings under § 5(a) in which it would determine maximum producers' rates for each of the major producing areas.16 One member of the Commission has subsequently described these efforts as 'admittedly * * * experimental * * *.'17 These cases place in question the validity of the first such proceeding.18
5
The perimeter of this proceeding was drawn by the Commission in its second Phillips decision and in its Statement of General Policy No. 61—1. The Commission in Phillips asserted that it possesses statutory authority both to determine and to require the application throughout a producing area of maximum rates for producers' interstate sales.19 It averred that the adoption of area maximum rates would appreciably reduce its administrative difficulties, facilitate effective regulation, and ultimately prove better suited to the characteristics of the natural gas industry. Each of these conclusions was reaffirmed in the Commission's opinion in these proceedings.20 Its Statement of General Policy tentatively designated various geographical areas as producing units for purposes of rate regulation; in addition, the Commission there provided two series of area guideline prices,21 which were expected to help to determine 'whether proposed initial rates should be certificated without a price condition and whether proposed rate changes should be accepted or suspended.'22 The Commission consolidated three of the producing areas listed in the Statement of General Policy for purposes of this proceeding.
6
The rate structure devised by the Commission for the Permian Basin includes two area maximum prices. The Commission provided one area maximum price for natural gas produced from gas wells and dedicated to interstate commerce after January 1, 1961.23 It created a second, and lower, area maximum price for all other natural gas produced in the Permian Basin. The Commission reasoned that it may employ price functionally, as a tool to encourage discovery and production of appropriate supplies of natural gas. It found that price could serve as a meaningful incentive to exploration and production only for gas-well gas committed to interstate commerce since 1960; the supplies of associated and dissolved gas,24 and of previously committed reserves of gas-well gas, were, in contrast, found to be relatively unresponsive to variations in price. The Commission expected that its adoption of separate maximum prices would both provide a suitable incentive to exploration and prevent excessive producer profits.
7
The Commission declined to calculate area rates from prevailing field prices. Instead, it derived the maximum just and reasonable rate for new gas-well gas from composite cost data, obtained from published sources and from producers through a series of cost questionnaires. This information was intended in combination to establish the national costs in 1960 of finding and producing gas-well gas; it was understood not to reflect any variations in cost peculiar either to the Permian Basin or to periods prior to 1960. The maximum just and reasonable rate for all other gas was derived chiefly from the historical costs of gas-well gas produced in the Permian Basin in 1960; the emphasis was here entirely local and historical. The Commission believed that the uncertainties of joint cost allocation made it difficult to compute accurately the cost of gas produced in association with oil.25 It held, however, that the costs of such gas could not be greater, and must surely be smaller, than those incurred in the production of flowing gas-well gas. In addition, the Commission stated that the exigencies of administration demanded the smallest possible number of separate area rates.
8
Each of the area maximum rates adopted for the Permian Basin includes a return to the producer of 12% on average production investment, calculated from the Commission's two series of cost computations. The Commission assumed for this purpose that production commences one year after investment, that gas wells deplete uniformly, and that they are totally depleted in 20 years. The rate of return was selected after study of the returns recently permitted to interstate pipelines, but, in addition, was intended to take fully into account the greater financial risks of exploration and production. The Commission recognized that producers are hostages to good fortune; they must expect that their programs of exploration will frequently prove unsuccessful, or that only gas of substandard quality will be found.
9
The allowances included in the return for the uncertainties of exploration were, however, paralleled by a system of quality and Btu adjustments.26 The Commission held that gas of less than pipeline quality must be sold at reduced prices, and it provided for this purpose a system of quality standards. The price reduction appropriate in each sale is to be measured by the cost of the processing necessary to raise the gas to pipeline quality; these costs are to be determined by agreement between the parties to the sale, subject to review and approval by the Commission. The Commission ultimately indicated that it would accept any agreement which reflects 'a good faith effort to approximate the processing costs involved * * *.' 34 F.P.C. 1068, 1071. In addition, the Commission prescribed that gas with a Btu content of less than 1,000 per cubic foot must be sold at a price proportionately lower than the applicable area maximum, and that gas with a Btu content greater than 1,050 per cubic foot may be sold at a price proportionately higher than the area maximum. The Commission acknowledged that the aggregate revenue consequences of these adjustments could not be precisely calculated, although its opinion denying applications for rehearing provided estimates of the average price reductions that would be necessary. Id., at 1073.
10
The Commission derived from these calculations the following rates for the Permian Basin.27 Gas-well gas, including its residue, and gas-cap gas, dedicated to interstate commerce after January 1, 1961, may be sold at 16.5¢ per Mcf (including state production taxes) in Texas, and 15.5¢ (excluding state production taxes) in New Mexico.28 Flowing gas, including oil-well gas and gas-well gas dedicated to interstate commerce before January 1, 1961, may be sold at 14.5¢ per Mcf (including taxes) in Texas, and 13.5¢ per Mcf (excluding taxes) in New Mexico. Further, the Commission created a minimum just and reasonable rate of 9¢ per Mcf for all gas of pipeline quality sold under its jurisdiction within the Permian Basin. It found that existing contracts that included lower rates would 'adversely affect the public interest.' FPC v. Sierra Pacific Power Co., 350 U.S. 348, 355, 76 S.Ct. 368, 372, 100 L.Ed. 388. The Commission permitted producers to file under § 4(d), 15 U.S.C. § 717c(d),29 for the area minimum rate despite existing contractual limitations, and without the consent of the purchaser.
11
The Commission acknowledged that area maximum rates derived from composite cost data might in individual cases produce hardship, and declared that it would, in such cases, provide special relief. It emphasized that exceptions to the area rates would not be readily or frequently permitted, but declined to indicate in detail in what circumstances relief would be given.
12
This rate structure is supplemented by a series of ancillary requirements. First, the Commission provided various special exemptions for producers whose annual jurisdictional sales throughout the United States do not exceed 10,000,000 Mcf. The prices in sales by these relatively small producers need not be adjusted for quality and Btu deficiencies. Moreover, the Commission by separate order commenced a rule-making proceeding to reduce the small producers' reporting and filing obligations under §§ 4 and 7, 15 U.S.C. §§ 717c, 717f. 34 F.P.C. 434.
13
Second, the Commission imposed a moratorium until January 1, 1968, upon filings under § 4(d) for prices in excess of the applicable area maximum rate. The Commission concluded that such a moratorium was imperative if the administrative benefits of an area proceeding were to be preserved. Further, it permanently prohibited the use of indefinite escalation clauses to increase prevailing contract prices above the applicable area maximum rate.30
14
Finally, the Commission announced that, by further order, it would require refunds of the difference between amounts that individual producers had actually collected in periods subject to refund, and the amounts that would have been permissible under the applicable area rate, including any necessary quality adjustments.31 Small producers, although obliged to make refunds, are not required to take into account price reductions for quality deficiencies, unless they wish to take advantage of upward adjustments in price because of high Btu content. The Commission rejected the examiner's conclusion that refunds were appropriate only if the aggregate area revenue actually collected exceeds the aggregate area revenue permissible under the applicable area rates. It held that such a formula would prove both inequitable to purchasers and difficult for the Commission to administer effectively.
15
On petitions for review, the Court of Appeals for the Tenth Circuit held that the Commission had authority under the Natural Gas Act to impose maximum area rates upon producers' jurisdictional sales. It sustained, but stayed enforcement of, the Commission's moratorium upon filings under § 4(d) in excess of the applicable area maximum rate. It approved both the Commission's two-price system and its exemptions for small producers. Nonetheless, the court concluded that the Commission failed to satisfy the requirements devised by this Court in FPC v. Hope Natural Gas Co., supra. It held that the Commission had not properly calculated the financial consequences of the quality and Btu adjustments, had not made essential findings as to aggregate revenue, and had not indicated with appropriate precision the circumstances in which relief from the area rates may be obtained by individual producers. 375 F.2d 6. On rehearing, the court also held that the Commission's treatment of refunds was erroneous; it concluded that refunds were permissible only if aggregate actual area revenues have exceeded aggregate permissible area revenues, and only to the amount of the excess, apportioned on 'some equitable contract-by-contract basis.' The Court of Appeals ordered the cases remanded to the Commission for further proceedings consistent with its opinions. 375 F.2d 35.
II.
16
The parties before this Court have together elected to place in question virtually every detail of the Commission's lengthy proceedings.32 It must be said at the outset that, in assessing these disparate contentions, this Court's authority is essentially narrow and circumscribed.
17
Section 19(b) of the Natural Gas Act provides without qualification that the 'finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.' More important, we have heretofore emphasized that Congress has entrusted the regulation of the natural gas industry to the informed judgment of the Commission, and not to the preferences of reviewing courts. A presumption of validity therefore attaches to each exercise of the Commission's expertise, and those who would overturn the Commission's judgment undertake 'the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.' FPC v. Hope Natural Gas Co., supra, 320 U.S., at 602, 64 S.Ct., at 288. We are not obliged to examine each detail of the Commission's decision; if the 'total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end.' Ibid.
18
Moreover, this Court has often acknowledged that the Commission is not required by the Constitution or the Natural Gas Act to adopt as just and reasonable any particular rate level; rather, courts are without authority to set aside any rate selected by the Commission which is within a 'zone of reasonableness.' FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 585, 62 S.Ct. 736, 743, 86 L.Ed. 1037. No other rule would be consonant with the broad responsibilities given to the Commission by Congress; it must be free, within the limitations imposed by pertinent constitutional and statutory commands, to devise methods of regulation capable of equitably reconciling diverse and conflicting interests. It is on these premises that we proceed to assess the Commission's orders.
III.
19
The issues in controversy may conveniently be divided into four categories. In the first are questions of the Commission's statutory and constitutional authority to employ area regulation and to impose various ancillary requirements. In the second are questions of the validity of the rate structure adopted by the Commission for natural gas produced in the Permian Basin. The third includes questions of the accuracy of the cost and other data from which the Commission derived the two area maximum prices. In the fourth are questions of the validity of the refund obligations imposed by the Commission.
20
We turn first to questions of the Commission's constitutional and statutory authority to adopt a system of area regulation and to impose various supplementary requirements. The most fundamental of these is whether the Commission may, consistently with the Constitution and the Natural Gas Act, regulate producers' interstate sales by the prescription of maximum area rates, rather than by proceedings conducted on an individual producer basis. This question was left unanswered in Wisconsin v. FPC, 373 U.S. 294, 83 S.Ct. 1266, 10 L.Ed.2d 35733. Its solution requires consideration of a series of interrelated problems.
21
It is plain that the Constitution does not forbid the imposition, in appropriate circumstances, of maximum prices upon commercial and other activities. A legislative power to create price ceilings has, in 'countries where the common law prevails,' been 'customary from time immemorial * * *.' Munn v. State of Illinois, 94 U.S. 113, 133, 24 L.Ed. 77. Its exercise has regularly been approved by this Court. See, e.g., Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S.Ct. 220, 74 L.Ed. 524; Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892. No more does the Constitution prohibit the determination of rates through group or class proceedings. This Court has repeatedly recognized that legislatures and administrative agencies may calculate rates for a regulated class without first evaluating the separate financial position of each member of the class; it has been thought to be sufficient if the agency has before it representative evidence, ample in quantity to measure with appropriate precision the financial and other reqirements of the pertinent parties. See Tagg Bros. & Moorhead v. United States, supra; Acker v. United States, 298 U.S. 426, 56 S.Ct. 824, 80 L.Ed. 1257; United States v. Corrick, 298 U.S. 435, 56 S.Ct. 829, 80 L.Ed. 1263. Compare New England Divisions Case, 261 U.S. 184, 196—199, 43 S.Ct. 270, 275 276, 67 L.Ed. 605; United States v. Abilene & S.R. Co., 265 U.S. 274, 290—291, 44 S.Ct. 565, 570, 68 L.Ed. 1016; State of New York v. United States, 331 U.S. 284, 67 S.Ct. 1207, 91 L.Ed. 1492; Chicago & N.W.R. Co. v. Atchison, T. & S.F.R. Co., 387 U.S. 326, 341, 87 S.Ct. 1585, 1594, 18 L.Ed.2d 803.
22
No constitutional objection arises from the imposition of maximum prices merely because 'high cost operators may be more seriously affected * * * than others,' Bowles v. Willingham, supra, 321 U.S., at 518, 64 S.Ct., at 649, or because the value of regulated property is reduced as a consequence of regulation. FPC v. Hope Natural Gas Co., supra, 320 U.S., at 601, 64 S.Ct., at 287. Regulation may, consistently with the Constitution, limit stringently the return recovered on investment, for investors' interests provide only one of the variables in the constitutional calculus of reasonableness. Govington & Lexington Turnpike Road Co. v. Sandford, 164 U.S. 578, 596, 17 S.Ct. 198, 205, 41 L.Ed. 560.
23
It is, however, plain that the 'power to regulate is not a power to destroy,' Stone v. Farmers' Loan & Trust Co., 116 U.S. 307, 331, 6 S.Ct. 334, 345, 29 L.Ed. 636; Covington & Lexington Turnpike Road Co. v. Sandford, supra, 164 U.S., at 593, 17 S.Ct., at 204, and that maximum rates must be calculated for a regulated class in conformity with the pertinent constitutional limitations. Price control is 'unconstitutional * * * if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt * * *.' Nebbia v. People of State of New York, 291 U.S. 502, 539, 54 S.Ct. 505, 517, 78 L.Ed. 940. Nonetheless, the just and reasonable standard of the Natural Gas Act 'coincides' with the applicable constitutional standards, FPC v. Natural Gas Pipeline Co., supra, 315 U.S., at 586, 62 S.Ct., at 743, and any rate selected by the Commission from the broad zone of reasonableness permitted by the Act cannot properly be attacked as confiscatory. Accordingly, there can be no constitutional objection if the Commission, in its calculation of rates, takes fully into account the various interests which Congress has required it to reconcile. We do not suggest that maximum rates computed for a group or geographical area can never be confiscatory; we hold only that any such rates, determined in conformity with the Natural Gas Act, and intended to 'balanc(e) * * * the investor and the consumer interests,' are constitutionally permissible. FPC v. Hope Natural Gas Co., supra, 320 U.S., at 603, 64 S.Ct., at 288.
24
One additional constitutional consideration remains. The producers have urged, and certain of this Court's decisions might be understood to have suggested, that if maximum rates are jointly determined for a group or area, the members of the regulated class must, under the Constitution, be proffered opportunities either to withdraw from the regulated activity or to seek special relief from the group rates.34 We need not determine whether this is in every situation constitutionally imperative, for such arrangements have here been provided by the Commission, and we cannot now hold them inadequate.
25
The Commission declared that a producer should be permitted 'appropriate relief' if it establishes that its 'out-of-pocket expenses in connection with the operation of a particular well' exceed its revenue from the well under the applicable area price. 34 F.P.C. at 226. It did not indicate which operating expenses would be pertinent for these calculations.35 The Commission acknowledged that there might be other circumstances in which relief should be given, but declined to enumerate them. It emphasized, however, that a producer's inability to recover either its unsuccessful exploration costs or the full 12% return on its production investment would not, without more, warrant relief. It announced that in many situations it would authorize abandonment under § 7(b), 15 U.S.C. § 717f(b),36 rather than an exception to the area maximum price. Finally, the Commission held that the burden would be upon the producer to establish the propriety of an exception, and that it therefore would not stay enforcement of the area rates pending disposition of individual petitions for special relief.
26
The Court of Appeals held that these arrangements were inadequate. It found the Commission's description of its intentions vague. The court would require the Commission to provide 'guidelines which if followed by an aggrieved producer will permit it to be heard promptly and to have a stay of the general rate order until its claim for exemption is decided.' 375 F.2d, at 30. We cannot agree. It would doubtless be desirable if the Commission provided, as quickly as may be prudent, a more precise summary of its conditions for special relief, but it was not obliged to delay area regulation until such guidelines could be properly drawn. The Commission quite reasonably believed that the terms of any exceptional relief should be developed as its experience with area regulation lengthens. Moreover, area regulation of producer prices is avowedly still experimental in its terms and uncertain in its ultimate consequences; it is entirely possible that the Commission may later find that its area rate structure for the Permian Basin requires significant modification.37 We cannot now hold that, in these circumstances, the Commission's broad guarantees of special relief were inadequate or excessively imprecise.
27
Nor is there reason now to suppose that petitions for relief will not be expeditiously evaluated; for the Commission has given assurance that they will be 'disposed of as promptly as possible.'38 If it subsequently appears that the Commission's provisions for special relief are for any reason impermissibly dilatory, this question may then be reconsidered.
28
Furthermore, it is pertinent that the Commission may supplement its provisions for special relief by permitting abandonment of unprofitable activities. The producers urge that this source of relief must be disregarded, since it is entirely conditional upon the Commission's assent. It is enough for present purposes that the Commission has in other circumstances allowed abandonment,39 and that it has indicated that it will, in appropriate cases, authorize it here. Indeed, the Commission has already acknowledged that only in 'exceptional situations' would the abandonment of unprofitable facilities prove detrimental to consumers, and thus impermissible under § 7(b). 34 F.P.C., at 226.
29
Finally, we cannot agree that the Commission abused its discretion by its refusal to stay, pro tanto, enforcement of the area rates pending disposition of producers' petitions for special relief. The Court of Appeals would evidently require the Commission automatically to issue such a stay each time a producer seeks relief. This is plainly inconsistent with the established rule that a party is not ordinarily granted a stay of an administrative order without an appropriate showing of irreparable injury. See, e.g., Virginia Petroleum Jobbers Assn. v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921, 925. Moreover, the issuance of a stay of an administrative order pending disposition by the Commission of a motion to 'modify or set aside, in whole or in part' the order is a matter committed by the Natural Gas Act to the Commission's discretion. § 19(a), (c), 15 U.S.C. § 717r(a), (c). We have no reason now to believe that it would in all cases prove an abuse of discretion for the Commission to deny a stay of the area rate order. There might be many situations in which a stay would be inappropriate; at a minimum, the Commission is entitled to give careful consideration to the substantiality of the claim for relief, and to the consequences of any delay in the full administration of the area rate structure. We therefore decline to bind the Commission to any inflexible obligation; we shall assume that it will, in situations in which stays prove appropriate, properly exercise its statutory authority.
30
For the reasons indicated, we find no constitutional infirmity in the Commission's adoption of an area maximum rate system for the Permian Basin.
31
We consider next the claims that the Commission has exceeded the authority given it by the Natural Gas Act. The first and most important of these questions is whether, despite the absence of any constitutional deficiency, area regulation is inconsistent with the terms of the Act. The producers that seek reversal of the judgments below offer three principal contentions on this question. First, they emphasize that the Act uniformly employs the singular to describe those subject to its requirements; § 4(a), for example, provides that rates received by 'any natural-gas company' must be just and reasonable. It is urged that the draftsman's choice of number indicates that each producer's rates must be individually computed from evidence of its own financial position. We cannot infer so much from so little; we see no more in the draftsman's choice of phrase than that the Act's obligations are imposed severally upon each producer.
32
Reliance is next placed upon one sentence in the Report of the House Committee on Interstate and Foreign Commerce, which in 1937 recommended passage of the Natural Gas Act. The Committee remarked that the 'bill provides for regulation along recognized and more or less standardized lines.' H.R.Rep. No. 709, 75th Cong., 1st Sess., 3. It added that the bill's provisions included nothing 'novel.' Ibid. We find these statements entirely inconclusive, particularly since, as the Committee doubtless was aware, regulation by group or class was a recognized administrative method even in 1937. Compare Tagg Bros. & Moorhead v. United States, supra; New England Divisions Case, supra. See also H.R.Rep. No. 77, 67th Cong., 1st Sess., 10—11; H.R.Rep. No. 456, 66th Cong., 1st Sess., 29—30.
33
Finally, the producers urge that two opinions of this Court establish the inconsistency of area regulation with the Natural Gas Act. It is asserted that the failure of a majority of the Court to adopt the reasoning of Mr. Justice Jackson's separate opinion in FPC v. Hope Natural Gas Co., supra, impliedly rejected the system of regulation now selected by the Commission. We find this without force. The Court in Hope emphasized that we may not impose methods of regulation upon the discretion of the Commission; for purposes of judicial review, the validity of a rate order is determined by 'the result reached not the method employed.' 320 U.S., at 602, 64 S.Ct., at 287; see also FPC v. Natural Gas Pipeline Co., supra, 315 U.S., at 586, 62 S.Ct., at 743. The Court there did not reject area regulation; it repudiated instead the suggestion that courts may properly require the Commission to employ any particular regulatory formula or combination of formulae.
34
The producers next rely upon a dictum in the opinion of the Court in Bowles v. Willingham, supra. The Court remarked that 'under other price-fixing statutes such as the Natural Gas Act of 1938 * * * Congress has provided for the fixing of rates which are just and reasonable in their application to particular persons or companies.' 321 U.S., at 517, 64 S.Ct., at 648. The dictum is imprecise, but even if it were not, we could not agree that it can now be controlling. The construction of the Natural Gas Act was not even obliquely at issue in Bowles, and this Court does not decide important questions of law by cursory dicta inserted in unrelated cases. Whatever the dictum's meaning, we do not regard it as decisive here. Compare Wisconsin v. FPC, 373 U.S. 294, 310, 83 S.Ct. 1266, 1275.
35
There are, moreover, other factors that indicate persuasively that the Natural Gas Act should be understood to permit area regulation. The Act was intended to create, through the exercise of the national power over interstate commerce, 'an agency for regulating the wholesale distribution to public service companies of natural gas moving interstate'; Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 506, 62 S.Ct. 384, 387, 86 L.Ed. 371; it was for this purpose expected to 'balanc(e) * * * the investor and the consumer interests.' FPC v. Hope Natural Gas Co., supra, 320 U.S., at 603, 64 S.Ct., at 288. This Court has repeatedly held that the width of administrative authority must be measured in part by the purposes for which it was conferred; see, e.g., Piedmont & Northern R. Co. v. Interstate Commerce Commission, 286 U.S. 299, 52 S.Ct. 541, 76 L.Ed. 1115; Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 193—194, 61 S.Ct. 845, 852, 85 L.Ed. 1271; National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344; American Trucking Assns. v. United States, 344 U.S. 298, 311, 73 S.Ct. 307, 315, 97 L.Ed. 337. Surely the Commission's broad responsibilities therefore demand a generous construction of its statutory authority.40
36
Such a construction is consistent with the view of administrative rate making uniformly taken by this Court. The Court has said that the 'legislative discretion implied in the rate making power necessarily extends to the entire legislative process, embracing the method used in reaching the legislative determination as well as that determination itself.' Los Angeles Gas & Electric Corp. v. Railroad Comm'n, 289 U.S. 287, 304, 53 S.Ct. 637, 643, 77 L.Ed. 1180. And see San Diego Land & Town Co. v. Jasper, 189 U.S. 439, 446, 23 S.Ct. 571, 574, 47 L.Ed. 892. It follows that rate-making agencies are not bound to the service of any single regulatory formula; they are permitted, unless their statutory authority otherwise plainly indicates, 'to make the pragmatic adjustments which may be called for by particular circumstances.' FPC v. Natural Gas Pipeline Co., supra, 315 U.S., at 586, 62 S.Ct., at 743.
37
We are unwilling, in the circumstances now presented, to depart from these principles. The Commission has asserted, and the history of producer regulation has confirmed, that the ultimate achievement of the Commission's regulatory purposes may easily depend upon the contrivance of more expeditious administrative methods. The Commission believes that the elements of such methods may be found in area proceedings. '(C)onsiderations of feasibility and practicality are certainly germane' to the issues before us. Bowles v. Willingham, supra, 321 U.S., at 517, 64 S.Ct., at 648. We cannot, in these circumstances, conclude that Congress has given authority inadequate to achieve with reasonable effectiveness the purposes for which it has acted.
38
We must now consider whether the Commission exceeded its statutory authority by the promulgation of various supplementary requirements. The first of these is its imposition of a moratorium until January 1, 1968, upon filings under § 4(d) for prices in excess of the applicable area maximum rate. Although the period for which the moratorium was to be effective has expired, the order is not without continuing effect. The Court of Appeals stayed enforcement of the moratorium until final disposition of the petitions for review, and a number of rate increases have therefore become effective subject to invalidation and refund if the moratorium order is now upheld. See Brief for the Federal Power Commission 69, n. 44.
39
The validity of the moratorium order turns principally upon construction of §§ 4 and 5 of the Act. Section 4(d)41 provides that no modification in existing rate schedules may be made by a natural gas company except after 30 days' notice to the Commission. When the Commission receives such notice, it is permitted by § 4(e),42 upon complaint or on its own motion, to suspend the proposed rate schedule for a period not to exceed five months. The Commission is to employ the period of suspension to conduct hearings upon the lawfulness of the proposed rates. If at the end of the suspension period appropriate orders have not been issued, the proposed rate schedule becomes effective, subject only to a refund obligation. In contrast, § 5(a)43 permits the Commission, upon complaint from a public agency or a gas distributing company, or on its own motion, to conduct proceedings to determine whether existing rates are just and reasonable, and to prescribe rates 'to be thereafter observed and in force * * *.' These investigatory powers are not conditional upon the filing by a natural gas company of any proposed change in existing rates.
40
Certain of the producers urge that §§ 4 and 5 must in combination be understood to preclude moratoria upon filings under § 4(d). They assert that the period of effectiveness of a rate determination under § 5(a) is limited by § 4(e); they reason that § 4(d) creates an unrestricted right to file rate changes, and that such changes may, under § 4(e), be suspended for a period no longer than five months. If this construction were accepted, it would follow that area proceedings would terminate in rate limitations that could be disregarded by producers five months after their promulgation. The result, as the Commission observed, would be that 'the conclusion of one area proceeding would only signal the beginning of the next, and just and reasonable rates for consumers would always be one area proceeding away.' 34 F.P.C., at 228.
41
We cannot construe the Commission's statutory authority so restrictively. Nothing in § 5(a) imposes limitations of time upon the effectiveness of rate determinations issued under it; rather, the section provides that rates held to be just and reasonable are 'to be thereafter observed * * *.' Moreover, this Court has already declined to find in § 4(d) or § 4(e) an 'invincible right to raise prices subject only to a six-month delay and refund liability.' United Gas Imp. Co. v. Callery Properties, 382 U.S. 223, 232, 86 S.Ct. 360, 366, 15 L.Ed.2d 284 (opinion concurring in part and dissenting in part). Section 4(d) merely requires notice to the Commission as a condition of any modification of existing rates; it provides that a 'change cannot be made without the proper notice to the Commission; it does not say under what circumstances a change can be made.' United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 339, 76 S.Ct. 373, 378, 100 L.Ed. 373. (Emphasis in original.) Nor does § 4(e) restrict the Commission's authority under § 5(a); it permits the Commission to preserve an existing situation pending consideration of a proposed change in rates, and thereafter to issue an order retroactively forbidding the change; but the 'scope and purpose of the Commission's review (under § 5(a)) remain the same * * *.' Id., at 341, 76 S.Ct., at 379.
42
The deficiencies of the producers' construction of §§ 4 and 5 are illustrated by United Gas Imp. Co. v. Callery Properties, supra. The Court held in Callery that permanent certifications issued under § 7 may be conditioned, even upon remand, by a moratorium upon filings under § 4(d) for rates in excess of a specified ceiling. At issue were conditions imposed under § 7(e) prior to the determination of just and reasonable rates; but nothing in the pertinent statutory provisions suggests that the Commission's authority under § 5(a) is more narrow. Indeed, if the producers' construction of §§ 4 and 5 were adopted, we should be forced to the uncomfortable result that filings under § 4(d) may be precluded by the Commission's relatively summary determination of a provisional in-line price, but not by its formal adjudication, after full deliberation, of a just and reasonable price. The consequences of such a construction would, as the Commission observed, be the enervation of § 5 and the effective destruction of area regulation. We are, in the absence of compelling evidence that such was Congress' intention, unwilling to prohibit administrative action imperative for the achievement of an agency's ultimate purposes. We have found no such evidence here, and therefore hold that the Commission may under §§ 5 and 16 restrict filings under § 4(d) of proposed rates higher than those determined by the Commission to be just and reasonable.
43
The question remains whether the imposition by the Commission of a moratorium until January 1, 1968, was a permissible exercise of this authority. The Commission found that in 1960 the costs of gas production had recently been, and would foreseeably remain, 'remarkably steady';44 it reasoned that in these circumstances a moratorium of 2 1/2 years, subject to 'modification of its original decision after appropriate proceedings held in that docket,'45 would both facilitate orderly administration and satisfactorily assure the protection of producers' rights. Individual producers would not have been prevented by the moratorium from seeking relief from the maximum area rates; relief would have been possible both through the Commission's provisions for special exemptions and through motions for modification or termination of the moratorium. This is not a case in which the Commission has sought to bind producers, without recourse and in the face of changing circumstances, to an unchanging rate structure.
44
We cannot, given the apparent stability of production costs, the Commission's relative inexperience with area regulation, and the administrative burdens of concurrent area proceedings, hold that this arrangement was impermissible. We need not attempt to prescribe the limitations of the Commission's authority under §§ 5 and 16 to impose moratoria upon § 4(d) filings; in particular, we intimate no views on the propriety of moratoria created in circumstances of changing costs. These and other difficult issues may more properly await both clarification of the Commission's intentions and the necessities of the particular circumstances. We hold only that this relatively brief moratorium did not, in the circumstances here presented, exceed or abuse the Commission's authority.
45
A collateral issue of statutory authority must be considered. The Commission supplemented its moratorium by prohibiting price increases that exceed the area maximum rates, if the increases are the products of certain varieties of contractual price escalation clauses. Unlike the more general moratorium upon filings under § 4(d), this proscription is without limit of time. The Commission's order is applicable to the most-favored-nation, spiral escalation, and redetermination clauses46 that in 1961 it entirely forbade in contracts executed on or after April 3, 1961;47 the additional limitation provided here by the Commission was intended to restrict the use of clauses included in contracts executed before the date of effectiveness of the Commission's earlier orders. The Commission reasoned, as had the examiner, that to permit producers to breach the area maximum rates by implementation of such clauses would not be 'in accordance with the principles upon which a rate structure should be based.' 34 F.P.C., at 236.
46
Indefinite escalation clauses 'cause price increases * * * to occur without reference to the circumstances or economics of the particular operation, but solely because of what happens under another contract.' 34 F.P.C., at 373. There is substantial evidence48 that in design and function they are 'incompatible with the public interest * * *.' Order No. 232, 25 F.P.C. 379, 380. Indeed, this Court has already entirely sustained the Commission's 1962 order. FPC v. Texaco, Inc., 377 U.S. 33, 84 S.Ct. 1105, 12 L.Ed.2d 112.
47
The producers do not suggest that the Commission and Court were there mistaken; they ruge instead that the Commission has acted inconsistently with its decision in Pure Oil Co., 25 F.P.C. 383, and that it has wrongly invalidated existing contracts. The Commission declined in Pure Oil to declare unenforceable escalation clauses included in previously executed contracts. It reasoned that since the contracts lacked severability provisions, to strike the escalation clauses would, under 'familiar principles of law,' destroy the contracts; it feared that this would prove 'many times' more prejudicial to the public interest than would the escalation clauses. Id., at 388—389. The producers assert that the Commission has now committed the error that it avoided in Pure Oil. The Commission rejoins that it has not stricken the escalation clauses; it has merely limited their application to prices no higher than the area maximum rates. Alternatively, the Commission avers that even if the contracts have been frustrated, neither the public nor the producers can suffer, since producers' prices may be as high as, but not higher than, the area maximum.
48
We think that the Commission did not exceed or abuse its authority. Section 5(a) provides without qualification or exception that the Commission may determine whether 'any rule, regulation, practice, or contract affecting * * * (any) rate * * * is unjust, unreasonable, unduly discriminatory, or preferential * * *,' and prescribe the 'rule, regulation, practice, or contract to be thereafter observed * * *.' Although the Natural Gas Act is premised upon a continuing system of private contracting, United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, the Commission has plenary authority to limit or to proscribe contractual arrangements that contravene the relevant public interests. Compare FPC v. Sierra Pacific Power Co., 350 U.S. 348, 76 S.Ct. 368, 100 L.Ed. 388. Nor may its order properly be set aside merely because the Commission has on an earlier occasion reached another result; administrative authorities must be permitted, consistently with the obligations of due process, to adapt their rules and policies to the demands of changing circumstances. Compare American Trucking Ass'n v. A., T. & S.F.R. Co., 387 U.S. 397, 416, 87 S.Ct. 1608, 1618. See 2 K. Davis, Administrative Law Treatise § 18.09, at 610 (1958). We need not, for present purposes, calculate what collateral consequences, if any, the Commission's order may have for the terms or validity of the contracts it reaches; we hold only that the Commission has here permissibly restricted the application of indefinite escalation clauses.
49
The next supplementary order to be considered is the Commission's creation of various exemptions for the smaller producers. The difficulties of the smaller producers differ only in emphasis from those of the larger independent producers and the integrated producer-distributors; but these differences are not without relevant importance.49 Although the resources of the small producers are ordinarily more limited, their activities are characteristically financially more hazardous.50 It appears that they drill a disproportionately large number of exploratory wells, and that these are frequently in areas in which relatively little exploration has previously occurred.51 Their contribution to the search for new gas reserves is therefore significant, but it is made at correspondingly greater financial risks and at higher unit costs. The record before the Commission included evidence that, for this and other reasons, small producers have regularly suffered higher percentages of dry wells, and higher average costs per Mcf of production.52 At the same time, the Commission found that small producers are the source of only a minor share of the total national gas production, and that the prices they have received have followed closely those obtained by the larger producers.53
50
The Commission reasoned that, in these circumstances carefully selected special arrangements for small producers would not improperly increase consumer prices. Moreover, it concluded that such exemptions might usefully both streamline the administrative process and strengthen the small producers' financial position.54 The Commission provided two forms of special relief: first, it released small producers from the requirement that quality adjustments be made in price;55 and second, it commenced a rule-making proceeding intended to relieve them from various filing and reporting obligations. See 34 F.P.C. 434. The Commission asserted that the consequences for consumer prices of the first would be de minimis; it expected that the second would measurably reduce the small producers' regulatory expenses.56
51
We conclude that these arrangements did not exceed the Commission's statutory authority. We recognize that the language of §§ 5 and 7 is without exception or qualification, but it must also be noted that the Commission is empowered, for purposes of its rules and regulations, to 'classify persons and matters within its jurisdiction and prescribe different requirements for different classes of persons or matters.' § 16, 15 U.S.C. § 717o. The problems and public functions of the small producers differ sufficiently to permit their separate classification, and the exemptions created by the Commission for them are fully consistent with the terms and purposes of its statutory responsibilities. It is not without relevance that this Court has previously expressed the belief that similar arrangements would ameliorate the Commission's administrative difficulties. See FPC v. Hunt, 376 U.S. 515, 527, 84 S.Ct. 861, 868, 11 L.Ed.2d 878.
52
Finally, we consider one additional question. Certain of the producers have urged that, having adopted a system of area regulation, the Commission improperly designated the Permian Basin as a regulatory area. It is contended that the Commission failed to provide appropriate opportunities for briefing and argument on questions of the size and composition of the area. We must, before considering the rate structure devised for the Permian Basin by the Commission, examine this contention.
53
The Commission's designation of the Permian Basin as a regulatory area stemmed from its Statement of General Policy, issued September 28, 1960. 24 F.P.C. The Commission there announced its intention to regulate producers' interstate sales through the imposition of maximum area prices; it provided, for this purpose, a provisional system of guideline prices for the principal producing areas. The Commission averred that these areas, although 'not necessarily in complete accord with geographical and economic factors,' are 'convenient and well known.' Id., at 819. It declared that, as 'experience and changing factors' require, it was prepared to alter the areas to eliminate any inequities. Ibid.
54
On December 23, 1960, the Commission ordered the institution of this proceeding, for which it merged three of the producing areas separately listed by the Statement of General Policy. 24 F.P.C. 1121. It unequivocally announced that 'no useful purpose would be served at this time by delaying the discharge of our primary responsibility * * * by entertaining issues * * * that the areas we have delineated * * * might be inappropriate for ratemaking purposes.' Id., at 1122. It appears that no hearings were conducted, and no evidence taken, on the propriety of the areas thus designated by the Commission for inclusion in this proceeding.
55
We do not doubt that significant economic consequences may, in certain situations, result from the definition of boundaries among regulatory areas. The calculation of average costs might, for example, be influenced by the inclusion or omission of a given group of producers; and the loss or retention of a price differential between regulatory areas might prove decisive to the success of marginal producers. Nonetheless, we hold that the Commission did not abuse its statutory authority by its refusal to complicate still further its first area proceeding by inclusion of issues relating to the proper size and composition of the regulatory area.
56
It must first be emphasized that the regulatory area designated by the Commission was evidently both convenient and familiar. There is no evidence before us, and the producers have not alleged, that the Permian Basin, as it was defined by the Commission, does not fit either with prevailing industry practice or with other programs of state or federal regulation.57 Moreover, the Commission was already confronted by an extraordinary variety of difficult issues of first impression; it quite reasonably preferred to simplify, so far as possible, its proceedings. Finally, it is not amiss to note that the Commission evidently has more recently permitted consideration of similar questions in area proceedings. Compare Area Rate Proceeding (Hugoton-Anadarko Area), 31 F.P.C. 888, 891. We assume that, consistent with this practice and with the terms of its Statement of General Policy, the Commission now would, upon an adequate request, permit interested parties to offer evidence and argument on the propriety of modification of the Permian Basin regulatory area. We hold only that the Commission was not obliged, in the circumstances of this case, to include among the disputed issues questions of the proper size and composition of the regulatory area.
57
We therefore conclude that the Commission did not, in these proceedings, violate pertinent constitutional limitations, and that its adoption of a system of area price regulation, supplemented by provisions for a moratorium upon certain price increases and for exceptions for smaller producers, did not abuse or exceed its authority. We accordingly turn to various questions that have been raised respecting the propriety of the rate structure devised by the Commission for the Permian Basin.
IV.
58
It is important first to delineate the criteria by which we shall assess the Commission's rate structure.58 We must reiterate that the breadth and complexity of the Commission's responsibilities demand that it be given every reasonable opportunity to formulate methods of regulation appropriate for the solution of its intensely practical difficulties. This Court has therefore repeatedly stated that the Commission's orders may not be overturned if they produce 'no arbitrary result.' FPC v. Natural Gas Pipeline Co., supra, 315 U.S., at 586, 62 S.Ct. at 743; FPC v. Hope Natural Gas Co., supra, 320 U.S., at 602, 64 S.Ct., at 287. Although neither law nor economics has yet devised generally accepted standards for the evaluation of rate-making orders,59 it must, nonetheless, be obvious that reviewing courts will require criteria more discriminating than justice and arbitrariness if they are sensibly to appraise the Commission's orders. The Court in Hope found appropriate criteria by inquiring whether 'the return to the equity owner (is) commensurate with returns on investments in other enterprises having corresponding risks,' and whether the return was 'sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital.' Id., at 603, 64 S.Ct. at 288. And compare State of Missouri ex rel. Southwestern Bell Tel. Co. v. Public Serv. Comm., 262 U.S. 276, 290—292, 43 S.Ct. 544, 547—548, 67 L.Ed. 981 (dissenting opinion). But see Edgerton, Value of the Service as a Factor in Rate Making, 32 Harv.L.Rev. 516. These criteria, suitably modified to reflect the special circumstances of area regulation, remain pertinent, but they scarcely exhaust the relevant considerations.
59
The Commission cannot confine its inquiries either to the computation of costs of service or to conjectures about the prospective responses of the capital market; it is instead obliged at each step of its regulatory process to assess the requirements of the broad public interests entrusted to its protection by Congress. Accordingly, the 'end result'60 of the Commission's orders must be measured as much by the success with which they protect those interests as by the effectiveness with which they 'maintain * * * credit and * * * attract capital.'
60
It follows that the responsibilities of a reviewing court are essentially three. First, it must determine whether the Commission's order, viewed in light of the relevant facts and of the Commission's broad regulatory duties, abused or exceeded its authority. Second, the court must examine the manner in which the Commission has employed the methods of regulation which it has itself selected, and must decide whether each of the order's essential elements is supported by substantial evidence. Third, the court must determine whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable. The court's responsibility is not to supplant the Commission's balance of these interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors. Judicial review of the Commission's orders will therefore function accurately and efficaciously only if the Commission indicates fully and carefully the methods by which, and the purposes for which, it has chosen to act, as well as its assessment of the consequences of its orders for the character and future development of the industry. We are, in addition, obliged at this juncture to give weight to the unusual difficulties of this first area proceeding; we must, however, emphasize that this weight must significantly lessen as the Commission's experience with area regulation lengthens. We shall examine the various issues presented by the rate structure in light of these interrelated criteria.
61
The first issue is whether the Commission properly rejected the producers' contention that area rates should be derived from field, or contract, prices. The producers have urged that prevailing contract prices provide an accurate index of aggregate revenue requirements, and that they are an appropriate mechanism for the protection of consumer interests. The record before the Commission, however, supports its conclusion that competition cannot be expected to reduce field prices in the Permian Basin to the 'lowest possible reasonable rate consistent with the maintenance of adequate service in the public interest.' Atlantic Rfg. Co. v. Public Service Commission, 360 U.S. 378, 388, 79 S.Ct. 1246, 1253, 3 L.Ed.2d 1312.
62
The field price of natural gas produced in the Permian Basin has in recent years steadily and significantly increased.61 These increases are in part the products of a relatively inelastic supply and steeply rising demand; but they are also symptomatic of the deficiencies of the market mechanism in the Permian Basin. Producers' contracts have in the past characteristically included indefinite escalation clauses. These clauses, in combination with the price leadership of a few large producers,62 and with the inability or unwillingness of interstate pipelines to bargain vigorously for reduced prices,63 have created circumstances in which price increases unconnected with changes in cost may readily be obtained. These market imperfections, operative despite an 'essentially monopsonistic environment,'64 have accentuated the consequences of inelastic supply and sharply rising demand. Once an increase has been obtained by the larger producers, the escalation clauses have guaranteed similar increases to others.65 In contrast, consumers have been left without effective protection against steadily rising prices. Their alternative sources of energy are in practice few, and the demand for natural gas, particularly in California, is therefore relatively unresponsive to price increases.66 The consumer is thus obliged to rely upon the Commission to provide 'a complete, permanent and effective bond of protection from excessive rates and charges.' Atlantic Rfg. Co. v. Public Service Commission, supra, at 388, 79 S.Ct., at 1253.
63
We do not now hold, and the Commission has not suggested,67 that field prices are without relevance to the Commission's calculation of just and reasonable rates under § 5(a). The records in subsequent area proceedings may more clearly establish that the market mechanism will adequately protect consumer interests.68 We hold only that, on this record, the Commission was not compelled to adopt field prices as the basis of its computations of area rates.
64
We next examine the Commission's decision to create two maximum area rates for the Permian Basin. Under the Commission's rate structure, the applicable maximum price for a producer's sale is determined both by the moment at which the gas was first dedicated to the interstate market, and by the method by which the gas was produced. It follows that two producers, simultaneously offering gas of identical quality and Btu content, may be confronted by different maximum prices.
65
The premises of this arrangement are two. First, the Commission evidently believed that price should be employed functionally, as a tool to encourage the production of appropriate supplies of natural gas. A price is thus just and reasonable within the meaning of §§ 4(a) and 5(a) not merely because it is 'somebody's idea of return on a 'rate base,"69 but because it results in satisfactory programs of exploration, development and productions.
66
Second, the Commission concluded that price could usefully serve as an incentive to exploration and production only if it were computed according to the method by which gas is produced. Natural gas produced jointly with oil is necessarily a relatively unimportant by-product. The value of oil-well gas is on average only one-seventeenth that of the oil with which it is produced. See 34 F.P.C., at 322. It cannot be separately sought or independently produced; its production is effectively restricted by state regulations intended to encourage the conservation of oil. Accordingly, the supply of oil-well gas is, as the examiner observed, 'almost perfectly inelastic.' Id., at 323.
67
On the other hand, gas-well gas is produced independently of oil, and of state restrictions on oil production. More important, the Commission found that a separate search can now be conducted for gas reservoirs; cumulative drilling experience permits at least the larger producers to direct their programs of exploration and development to the search for gas.70 The supply of gaswell gas is therefore relatively elastic, and its price can meaningfully be employed by the Commission to encourage exploration and production. The Commission reasoned that a higher maximum rate for gas-well gas dedicated to interstate commerce after the approximate moment at which a separate search became widely possible would provide an effective incentive.71 Correspondingly, the Commission adopted a relatively low price for all other natural gas produced in the Permian Basin, since price could not serve as an incentive, and since any price above average historical costs, plus an appropriate return, would merely confer windfalls.
68
We find no objection under the Natural Gas Act to this dual arrangement. We have emphasized that courts are without authority to set aside any rate adopted by the Commission which is within a 'zone of reasonableness.' FPC v. Natural Gas Pipeline Co., supra, 315 U.S., at 585, 62 S.Ct., at 742. The Commission may, within this zone, employ price functionally in order to achieve relevant regulatory purposes; it may, in particular, take fully into account the probable consequences of a given price level for future programs of exploration and production. Nothing in the purposes or history of the Act forbids the Commission to require different prices for different sales, even if the distinctions are unrelated to quality, if these arrangements are 'necessary or appropriate to carry out the provisions of this Act.' § 16, 15 U.S.C. § 717o. We hold that the statutory 'just and reasonable' standard permits the Commission to require differences in price for simultaneous sales of gas of identical quality, if it has permissibly found that such differences will effectively serve the regulatory purposes contemplated by Congress.
69
The Commission's responsibilities include the protection of future, as well as present, consumer interests. It has here found, on the basis of substantial evidence, that a two-price rate structure will both provide a useful incentive to exploration and prevent excessive producer profits. In these circumstances, there is no objection under the Natural Gas Act to the price differentials required by the Commission.
70
The symmetry of the Commission's incentive program is, however, marred. The Commission held in 1965 that the higher maximum rate should be applicable to gas-well gas committed to interstate commerce since January 1, 1961. It is difficult to see how the higher rate could reasonably have been expected to encourage, retrospectively, exploration and production that had already occurred. There is thus force in Commissioner Ross' contention that this arrangement is not fully consistent with the logic of the two-price system.72
71
Nonetheless, we are constrained to hold that this was a permissible exercise of the Commission's discretion. The Commission believed that its Statement of General Policy, issued September 28, 1960, had created reasonable expectations among producers that higher rates would thereafter be permitted for initial filings under § 7.73 The Commission evidently concluded that fairness obliged it to satisfy, at least in part, those expectations. We must also recognize that an unexpected downward revision of the guideline price for initial filings, with accompanying refunds, might have seriously diminished the producers' confidence in interstate prices, and perhaps threatened the future interstate supply of natural gas.74 We can assume that the Commission gave attention to this possibility. Compare 34 F.P.C., at 188. These factors provide a permissible basis for this exercise of the Commission's authority.75
72
We must next examine the methods by which the Commission reached the two maximum rates it created for gas produced in the Permian Basin. The Commission justified its adoption of a two-price rate structure by reliance upon functional pricing; it suggested that two prices, with an appropriate differential, may be used so as both to provide an incentive to exploration and to restrict to reasonable levels producers' profits. In turn, it computed the two area maximum prices directly from costs of service, without allowances for noncost factors. The price differential which the Commission expects to serve as an incentive is the product of difference in the time periods and geographical areas for which costs were computed, and not of noncost additives to cost components. Finally, the Commission, by its adoption of a moratorium until January 1, 1968, created a temporary price freeze in the Permian Basin.76
73
Although we would expect that the Commission will hereafter indicate more precisely the formulae by which it intends to proceed, we see no objection to its use of a variety of regulatory methods. Provided only that they do not together produce arbitrary or unreasonable consequences, the Commission may employ any 'formula or combination of formulas' it wishes, and if free 'to make the pragmatic adjustments which may be called for by particular circumstances.' FPC v. Natural Gas Pipeline Co., supra, 315 U.S., at 586, 62 S.Ct., at 743. We have already considered the Commission's adoption of a two-price system and of a moratorium, and have concluded that they are each reasonably calculated to achieve appropriate regulatory purposes. It remains now to examine its computation of the area maximum prices from the producers' costs of service.
74
The Commission derived the maximum rate for new gas-well gas from composite cost data intended to evidence the national costs in 1960 of finding and producing gas-well gas. It reasoned that these costs should be computed from national, and not area, data because, first the larger producers conduct national programs of exploration, and, second, 'much, if not most, of the relevant information'77 was available only on a national basis. It held, in addition, that costs in the Permian Basin did not 'vary sufficiently from the national average to warrant a different treatment * * *.' 34 F.P.C., at 191. The Commission found that 1960 cost data should be used, and historical data disregarded, because only relatively current cost data would adequately guarantee an effective incentive for future exploration and production. The Commission was obliged to obtain the relevant cost data from a variety of sources. Natural gas producers have not yet been required to adopt any uniform system of accounts, and no private or public agency had in 1965 collected all the pertinent information. Many of the data were taken from nationally published statistics;78 the balance was derived from questionnaires completed by the producers. The Commission concluded that these sources 'in combination provide an adequate basis for the costs we have found.' Ibid.
75
The maximum just and reasonable rate for all other Permian Basin gas was calculated from cost data intended to reflect the historical costs of gas-well gas produced in 1960 in the Permian Basin. The examiner had computed this rate by essentially the same method he had used for new gas-well gas, with certain cost components adjusted by back-trending. The Commission's staff, on the other hand, offered a comprehensive study of historical costs of service. The Commission adopted both methods, using the examiner's back-trended cost computations as a check upon the accuracy of the staff's presentation.
76
The Commission reasoned that excessive producer profits could be minimized only if the rate for flowing gas were derived from the most precise available evidence of actual historical costs. It therefore held that these costs should be taken from area, and not national data.
77
The Commission's staff obtained the data necessary for its computation of historical costs from questionnaires completed by producers. The information used by the staff, and ultimately adopted by the Commission was taken from questionnaires submitted by 42 major producers, which together account for 75% of all the gas produced in the Basin, and 85% of all the gas-well gas. Nonetheless, some two-thirds of all the gas produced in the Permian Basin is oil-well gas, and Sun Oil estimates that the staff's gas-well gas data were thus applicable only to some 15.3% of the total production of natural gas in the Basin in 1960.79
78
We hold that the Commission, in calculating cost data for the two maximum rates by differing geographical bases and time periods, did not abuse is authority. The Commission's use of separate sources of data for the two rates permitted the creation of a price differential between them without the inclusion of noncost components. Its selections of time periods and geographical bases were entirely consistent with the logic of its system of incentive pricing. In these circumstances, we can find no tenable objection to this aspect of the Commission's rate structure.
79
It is further contended that the Commission impermissibly used flowing gas-well gas cost data to calculate the maximum rate for old gas, thereby disregarding entirely the costs of gas produced in association with oil. The Commission's explanation was essentially pragmatic. It reasoned that the uncertainties of joint cost allocation preclude accurate computations of the cost of casinghead and residue gas. Further, the Commission averred that it is administratively imperative to simplify, so far as possible, the area rate structure. The Commission regarded its adoption of a single area maximum price for all gas, except new gas-well gas, its residue and gas-cap gas, as 'an important step toward simplified and realistic area price regulation.' 34 F.P., at 211.
80
We cannot say that these arrangements are impermissible. There is ample suport for the Commission's judgment that the apportionment of actual costs between two jointly produced commodities, only one of which is regulated by the Commission, is intrinsically unreliable.80 It is true that certain of the costs of gas-well gas must also be apportioned, but the Commission reasonably concluded that these difficulties are relatively less severe.81 The Commission was, in addition, entitled to give great weight to the administrative importance of a simplified rate structure. Finally, it is relevant that the Commission found that the cost of casinghead and residue gas could not be higher, and, if exploration and development costs are realistically discounted, must surely be lower than the costs of flowing gas-well gas.82 These considerations in combination warranted the Commission's judgment that a single area maximum price for all gas other than new gas-well gas should be imposed, and that this maximum rate should be derived entirely from the historic costs of flowing gas-well gas.
81
We turn now to the Commission's computation of the proper rate base. The Commission's method here differed significantly from that frequently preferred by regulatory authorities. It did not use a declining rate base and return, but instead computed an average net production investment, to which it applied a constant rate of return. The Commission assumed for this purpose that a gas well depletes at a uniform rate, and that it is, on average, totally depleted in 20 years. It found that the annual capital-recovery cost, including depletion, depreciation, and amortization, was 3.95¢ per Mcf. Allowing one year for a lag between investment and first production, the Commission obtained an average production investment of 43.45¢ per Mcf. The proper return per Mcf was then calculated by multiplying this figure by the rate of return.
82
The producers argue that this has the effect of postponing revenue, and thus discounting its present value; they suggest that the Commission should properly have employed a declining investment base and return. This is a question peculiarly within the Commission's discretion, and, while the method adopted by the Commission was evidently less favorable to the producers than various other possible formulae, we cannot hold that it was arbitrary or unreasonable.
83
We next consider whether the rate of return adopted by the Commission was a permissible exercise of its regulatory authority. The Commission first asserted that rates of return must be assessed by a comparable-earnings standard. Under such a standard, earnings should be permitted that are 'equal to that generally being made at the same time and in the same general part of the country on investments in other business undertakings which are attended by corresponding risks and uncertainties.' Bluefield Water Works & Improvement Co. v. Public Service Comm., 262 U.S. 679, 692, 43 S.Ct. 675, 679, 67 L.Ed. 1176; FPC v. Hope Natural Gas Co., supra, 320 U.S., at 603, 64 S.Ct., at 288. Although other standards might properly have been employed,83 the Commission's decision to examine comparable earnings was fully consistent with prevailing administrative practice, and manifestly was not an abuse of its authority.
84
The Commission relied for purposes of comparison chiefly upon the rates of return that have recently been permitted to the interstate pipelines. It found that pipelines had been given returns of 6.0 to 6.5% on net investment, with a yield on equity of 10 to 12%.84 The Commission noted that producers characteristically have less long-term debt than pipelines,85 and that the financial risks of production are somewhat greater than those of transmission.86 It reasoned that these differences warranted a more generous rate of return for producers. In addition, the Commission stated that the risk of finding gas of less than pipeline quality, created by the Commission's promulgation of quality and Btu standards, should be reflected in the rate of return. Finally, the Commission sought to determine the rate of return recently earned by producers of natural gas. It found that accurate rates of return could not be calculated with assurance, although the Commission's staff offered evidence of an average return for nine companies over five years of 12.4% on net investment.87 The Commission concluded that, despite its statistical deficiencies, this and similar evidence must be given 'heavy consideration in the decisional process.' 34 F.P.C., at 203.
85
On balance, the Commission selected 12% as the proper rate of return for gas of pipeline quality. We think that this judgment was supported by substantial evidence, and that it did not exceed or abuse the Commission's authority. The evidence before the Commission fairly suggests that this rate will be likely to 'maintain (the producers') financial integrity, to attract capital, and to compensate (their) investors for the risks assumed * * *.' FPC v. Hope Natural Gas Co., supra, 320 U.S., at 605, 64 S.Ct., at 289. Further, the distributors and public agencies before the Court have not suggested, and we find no reason to believe, that this return will exceed the proper requirements of the industry.88 Certainly, as we shall show below, this return is no more than comparable to that characteristically allowed interstate pipelines.
86
Nonetheless, there remains one further issue essential to an accurate appraisal of the return permitted by the Commission. The Commission's computation of the rate of return was specifically premised in part on the additional financial risks created for producers by the Commission's promulgation of quality and Btu standards.89 Its opinion in these proceedings included a series of specific quality standards.90 The Commission ruled that gas that fails to satisfy these standards must be sold at prices lower than the applicable area maximum; the amount of the reduction necessary in each sale is to be initially determined by the parties, subject to review by the Commission. Further, natural gas with a Btu content of less than 1,000 per cubic foot must be sold at a price proportionately lower than the applicable area maximum, and gas with a Btu content of more than 1,050 per cubic foot may be sold at a price proportionately higher than the area maximum.91 The Commission conceded that it could not precisely determine the revenue consequences of these adjustments, although its opinion denying applications for rehearing provided various estimates. It appears to be conceded that the quality of gas produced in the Basin is character-istically lower than the Commission's standards, and that the standards are therefore likely to be more significant than they might be in other producing areas.
87
The producers urge, and the Court of Appeals held, that this arrangement is doubly erroneous. First, it treats as a risk what properly is a cost, and thus evades the necessity of appropriate findings on the revenue consequences of the quality adjustments. Second, it reduces the rate of return actually permitted individual producers to an unascertainable figure of less than 12%, and thus prevents an accurate appraisal of its sufficiency. We find both suggestions unpersuasive.
88
We cannot now hold that it was impermissible for the Commission to treat the quality adjustments as a risk of production. It must be recalled that the Commission was in this first area rate case unable to determine with precision the average amount of the necessary price reductions, and that it thus would have been difficult to have included them as costs, as the Court of Appeals suggested. Further, we recognize that the Commission's method, premised on agreement between the parties to each sale, has at least the advantage of requiring discrete and accurate adjustments for each transaction. Finally, as we shall show below, treatment of these adjustments as risks of production did not in this case result in inadequate findings, and does not prevent proper appraisal of the rate of return permitted by the Commission. In any event, the Commission's discretion in such matters is necessarily broad, and its choice cannot be said to have abused its discretion.
89
The Commission estimated in its opinion denying applications for rehearing that the quality adjustments would result in average price reductions of from 0.7¢ to 1.5¢ per Mcf. In turn, the amount of these adjustments will be reduced by price increases for high Btu content, and by revenue from plant liquids.92 We believe that, in the circumstances presented, these estimates were adequate. The Commission's information about existing contracts was evidently not sufficiently complete to permit precise calculations from previous experience. Moreover, since the adjustments are to be, in the first instance, the product of agreement between the parties, a dimension of uncertainty is necessarily created. Despite these difficulties, the Commission provided reasonably specific estimates of the range of adjustments that it believed would result. We are entitled now to take notice that these are confirmed by subsequent events.93 We hold that the Commission's promulgation of quality standards was accompanied by adequate findings as to their revenue consequences.
90
The Commission did not provide specific findings as to the effect of these revenue adjustments upon the producers' rate of return. This was an unfortunate omission, but it does not preclude evaluation of the Commission's conclusions. It would appear, and counsel for the Commission have estimated, that the rate of return 'on average quality' natural gas sold in the Permian Basin might, after quality adjustments, yield 'as little' as 10 to 12% on equity.94 These figures presumably must be adjusted upward for sales of pipeline quality gas, sales of gas with a high Btu content, and revenue from plant liquids. Even as adjusted, however, the aggregate return permitted to producers will apparently exceed only slightly that customarily allowed pipelines, for the quantities of pipeline quality and high Btu content gas produced in the Permian Basin are evidently quite small. Nevertheless, the record before the Commission contained evidence sufficient to establish that these rates, as adjusted, will maintain the industry's credit and continue to attract capital. Although the Commission's position might at several places usefully be clarified,95 the producers have not satisfied the 'heavy burden' placed upon those who would set aside its decisions.96
V.
91
We have concluded that the various segments of the Commission's rate structure do not separately exceed or abuse its authority. Nonetheless, certain of the producers have argued vigorously that the aggregate revenue permitted by the rate structure is, or might be, inadequate. They urge that the imposition of maximum prices computed from composite costs reduces contract prices to a maximum premised on a cost average; and they conclude that the Commission has therefore denied them the revenue necessary for appropriate programs of exploration and development. Related questions troubled the Court of Appeals. It held that the Commission must, under Hope, place in balance revenue and requirements, and that findings must be provided that will permit reviewing courts to assess the skill with which the Commission has employed its scales. Although we sustain, for reasons stated above, the Commission's rate structure, we believe it proper to examine these additional contentions.
92
Three interrelated questions are pertinent. First, the adequacy of the Commission's aggregate revenue findings must be assessed. Second, we must consider the producers' contentions that the Commission has significantly underestimated the deficiencies of present programs of exploration. Finally, we must determine whether the Commission's use of averaged costs has created a rate structure that is unjust and unreasonable in its consequences.
93
We turn initially to the adequacy of the Commission's revenue findings. It must be emphasized that we perceive no imperative obligation upon the Commission, under either the Natural Gas Act or the decisions of this Court, to provide an apparatus of formal findings, in terms of absolute dollar amounts, as to aggregate revenue and aggregate requirements. It is enough if the Commission proffers findings and conclusions sufficiently detailed to permit reasoned evaluation of the purposes and implications of its order. Compare Chicago & N.W.R. Co. v. A., T. & S.F.R. Co., 387 U.S. 326, 345—347, 87 S.Ct. 1585, 1596—1598, 18 L.Ed.2d 803. As we shall show, the Commission's revenue findings were not, in the circumstances of these proceedings, unduly imprecise. The ambiguities about which the Court of Appeals expressed concern were two. First, the court faulted the Commission for the imprecision of its findings as to the revenue consequences of the quality and Btu adjustments. We have already found adequate the Commission's estimates of the necessary price reductions. Second, the court stated that the rate structure could not be accurately assessed, since the Commission has incorporated in its calculations both cost and noncost factors; it believed that 'the Commission decision rides two horses and we have no way of knowing the outcome of the race.' 375 F.2d, at 34.
94
We find this unpersuasive. Although the Commission's exposition of these questions might have been more carefully drawn, it has quite appropriately incorporated in its calculations factors other than producers' costs.97 Cost and noncost factors do not, as the Court of Appeals supposed, race one against the other; they must be, as they are here, harnessed side by side. The Commission's responsibilities necessarily oblige it to give continuing attention to values that may be reflected only imperfectly by producers' costs; a regulatory method that excluded as immaterial all but current or projected costs could not properly serve the consumer interests placed under the Commission's protection. We have already considered each of the points at which the Commission has given weight to noncost factors, and have found its judgments consistent with the terms and purposes of its statutory authority.98 There is no reason now to return these cases to the Commission for clarification of these issues.99
95
Nor can we hold that the Commission has underestimated the deficiencies of current programs of exploration. The producers' argument has been uniformly premised upon the assertion that the ratio of proved recoverable reserves to current production is an accurate index of the industry's financial requirements. The producers urge that this ratio has dangerously declined,100 and conclude that any reduction of prevailing field prices will jeopardize essential programs of exploration. There is, however, substantial evidence that additions to reserves have not been unsatisfactorily low,101 and that recent variations in the ratio of reserves to production are of quite limited significance.102 Nothing in the record establishes as proper or even minimal any particular ratio.103 We do not suggest, nor did the Commission,104 that the Commission should not continuously assess the level and success of exploration, or that the relationship between reserves and production is not a useful bench-mark of the industry's future. We hold only that the Commission here permissibly discounted the producers' reliance upon this relationship to establish the inadequacy of its rate structure.
96
Finally, we turn to the contention that these area maximum rates were derived from averaged costs, and therefore cannot, without further adjustment, provide aggregate revenue equal to the producers' aggregate requirements. The producers that support the judgments below emphasize that revenue in 1960 from all jurisdictional sales in the Permian Basin averaged 12.72¢ per Mcf.105 They contend that this revenue will, under the Commission's order, be reduced by the amount of any necessary quality deductions, by refunds, and by loss of revenue from abrogation of contract prices above the area maximum rates. The producers conclude that the Commission's rate structure will necessarily cause revenue deficiencies, measured by the difference between actual average revenue (12.72¢ less these adjustments) and 14.5¢ per Mcf, the rate assertedly found by the Commission to be just and reasonable for flowing gas. They urge that the Commission was properly obliged to balance revenue and costs either by increasing the area minimum rate, or by placing the area maximum rates above average costs.
97
The inadequacies of this reasoning are several. First, it neglects important characteristics of the rate structure. We understand the Commission, despite certain infelicities of its opinion,106 to hold that the just and reasonable rate for old gas not of pipeline quality is 14.5¢ per Mcf, less the cost of processing necessary to raise it to pipeline quality. The Commission's net just and reasonable rate for such gas is therefore 13.0¢ to 13.8¢, and not 14.5¢ per Mcf.107 Further, average unit revenue will not be simultaneously reduced, as the producers have suggested, by refunds and by abrogation of above-ceiling field prices. As to the past, the two are in large part synonymous; as to the future, only the latter will be applicable.
98
Moreover, the Commission's computation of its area rates was not intended to reflect with complete fidelity either the producers' average costs or their sources of revenue. First, the actual average unit costs of casinghead and residue gas are substantially lower than the average unit costs of flowing gas-well gas;108 yet the maximum rate for all associated and flowing gas was derived entirely from the latter. It follows that the producers' net revenues from sales of casinghead and residue gas will prove higher than the return formally permitted by the Commission. Second, producers receive significant payments for liquid hydrocarbons extracted by the pipelines during their processing of gas-well gas.109 The maximum rate for new gas-well gas evidently takes into account only part of these receipts, and that for old gas-well gas disregards altogether this source of additional revenue.110 Third, some 20% of all the gas sold under the Commission's jurisdiction in the Permian Basin is controlled by Spraberry contracts, by which producers are paid for liquids processed by the pipelines from oil-well gas.111 Much of the gas sold at prices below the applicable area maximum rate is governed by such contracts.112 This source of revenue was not incorporated in the Commission's calculation of the maximum rate for oil-well gas. The Commission was unable to compute with precision the revenue obtained by producers from these disparate sources, but it estimated it to be 'substantial.' 34 F.P.C., at 1073.
99
Finally, the producers have ignored the limits of the Commission's statutory authority. This Court has held, under the Federal Power Act, that the Commission may not abrogate existing contractual arrangements unless the contract price is so 'low as to adversely affect the public interest—-as where it might impair the financial ability of the public utility to continue its service, cast upon other consumers an excessive burden, or be unduly discriminatory.' FPC v. Sierra Pacific Power Co., 350 U.S. 348, 355, 76 S.Ct. 368, 372. It is not enough, the Court there held, that the contract price permits less than a fair return; the Commission may not, absent evidence of injury to the public interest, relieve a regulated company of 'its improvident bargain.' Ibid. The pertinent provisions of the Federal Power Act 'are in all material respects substantially identical to the equivalent provisions of the Natural Gas Act.' Id., at 353, 76 S.Ct., at 371. It follows that the Commission was here without authority to abrogate existing contract prices unless it first concluded that they 'adversely affect the public interest.' And see FPC v. Tennessee Gas Transmission Co., 371 U.S. 145, 153, 83 S.Ct. 211, 215, 9 L.Ed.2d 199. The Commission found that field prices of less than 9¢ per Mcf had such consequences, but it declined so to hold for all prices less than the two area maximum rates.113 There was no evidence before the Commission that required a different result, or that would now permit this Court to set aside the Commission's judgment.
100
It does not, however, necessarily follow that the Commission was forbidden to consider, as it selected maximum rates from within the zone of reasonableness, the aggregate revenue deficiencies that might result from improvident contractual limitations. Within this zone, the Commission is permitted to give weight to the consequences upon producers, and thereby upon supply, of such limitations. Nonetheless, the Commission permissibly declined to make adjustments in the area rates because of prevailing contract prices. It recognized that such adjustments would increase the cost of natural gas to some groups of consumers, in order simply to offset bargains previously obtained by others.
101
The regulatory system created by the Act is premised on contractual agreements voluntarily devised by the regulated companies; it contemplates abrogation of these agreements only in circumstances of unequivocal public necessity. See United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373. There was here no evidence of financial or other difficulties that required the Commission to relieve the producers, even obliquely, from the burdens of their contractual obligations. We do not suggest that the Commission need not continuously evaluate the revenue and other consequences of its area rate structures. A principal advantage of area regulation is that it centers attention upon the industry's aggregate problems, and we may expect that, as the Commission's experience with area regulation lengthens, it will treat these important questions more precisely and efficaciously. We hold only that, in the circumstances here presented, the Commission's rate structure has not been shown to deny producers revenues consonant with just and reasonable rates.114
VI.
102
There remain for consideration various additional objections by the producers to the Commission's cost determinations, and to the sources of information from which those determinations were derived. These questions were not decided by the Court of Appeals. Although this Court ordinarily does not 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; there are persuasive reasons now to reach and decide these remaining issues. Almost eight years have elapsed since the Commission commenced these proceedings; we are convinced that producers' rates may be fairly and effectively regulated only after this and the other area proceedings now before the Commission have been successfully terminated. These issues were briefed and argued at lenght before this Court; very extended additional proceedings would doubtless be necessary in order to review them yet again.
103
Moreover, the circumstances here parallel closely those in Chicago & N.W.R. Co. v. A., T. & S.F.R. Co., 387 U.S. 326, 87 S.Ct. 1585. It was there said that the 'presentation and discussion of evidence on cost issues constituted 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.' Id., at 356, 87 S.Ct., at 1602. This reasoning is entirely applicable to the circumstances presented here; we hold, as did the Court there, that no useful purpose would be served by further proceedings in the Court of Appeals, and that there is no legal infirmity in the Commission's findings115
VII.
104
Lastly, we reach questions of the validity of the refund obligations imposed by the Commission's orders. Two categories of refunds were created. First, producers must return amounts charged in excess of the applicable area rates, including quality and Btu adjustments, for periods following September 1, 1965, the date of effectiveness of the Commission's order. 34 F.P.C., at 243. The Commission imposed interest of 7% upon these refunds.116 Second, producers must refund amounts collected in excess of the applicable area rates, including quality and Btu adjustments, during previous periods in which their prices were subject to refund under § 4(e). Such obligations ultimately arise from filings by the producers under § 4(d) for increases in existing price schedules. The appropriate interest on these refunds was held to be that specified in each § 4(e) proceeding.117 Refunds in both categories were, under the Commission's order, to be measured by comparison of individual company price schedules with the applicable area rates.
105
The Court of Appeals initially sustained the Commission's refund orders. 375 F.2d, at 33. On petitions for rehearing, however, the court held that 'no refund obligation may be imposed for a period in which there is a group revenue deficiency.' Id., at 36. The court believed this to be an essential corollary of the Commission's asserted obligation to bring into balance group costs and group revenues; it would have permitted the Commission to order refunds only in periods in which aggregate revenue is found to exceed aggregate revenue requirements, and only as to the amount of the excess. The Commission was expected to apportion any refunds 'on some equitable contract-by-contract basis.' Ibid.
106
We find the court's reasoning unpersuasive. The Commission may, in the course of its examination of the producers' financial positions, consider the possible refund consequences of its rate-making orders; but its power to order refunds is not limited to situations in which group revenues exceed group revenue requirements. Area regulation offers a more expeditious method for the calculation of just and reasonable rates, and it will necessarily more rigorously focus the Commission's attention upon the producers' common problems. It does not, however, lessen the significance, or modify the incidents, of findings that specific rate levels are or are not just and reasonable within the meaning of §§ 4(a) and 5(a). A rate found to be unjust and unreasonable is declared by § 4(a) to be unlawful; if the rate has been the subject of a rate schedule modification under § 4(d), the Commission is empowered by § 4(e) to order its refund. We can see no warrant, either in the Act or in the terms of the Commission's orders, now to impose any additional limitations upon the Commission's authority; we hold that the Commission's discretion is not constricted in the fashion described by the Court of Appeals.
107
Wisconsin v. FPC, supra, does not require a different result. It did not, as the Court of Appeals evidently supposed, create any imperative procedure for the disposition of refunds from locked-in rates.118 The Commission there held that, given its decision to begin a system of area regulation, it was not in the public interest 'to reopen these proceedings, to determine a cost of service on the basis of completely new evidence and to attempt to determine rates on the basis of Phillips' individual cost of service.' 24 F.P.C., at 1009. No just and reasonable rates had been, or could then have been, calculated for Phillips' sales in the relevant periods. The Commission did not urge,119 and this Court did not hold, that Phillips' revenue deficiencies imposed a limitation upon the Commission's authority to require refunds; the Court merely sustained the Commission's refusal, in the circumstances there presented, to pursue further a lengthy and burdensome series of § 4(e) proceedings. See also Hunt Oil Co., 28 F.P.C. 623; and Wisconsin v. FPC, supra, at 306, n. 15, 83 S.Ct., at 1273.
108
The Commission reasonably concluded that the adoption of a system of refunds conditioned on findings as to aggregate area revenues would prove both inequitable to consumers and difficult to administer effectively. Such arrangements would require consumers to accede to unjust and unreasonable prices merely because other prices, perhaps ultimately benefiting other consumers, had proved improvident. Nor would these arrangements necessarily serve the interests of the improvident producers; they might merely permit more prudent competitors to escape refunds on concededly unlawful prices.120 We hold that the Commission's refund orders do not exceed or abuse its statutory authority.121
109
The motions for leave to adduce additional evidence are denied, the judgments of the Court of Appeals are affirmed in part and reversed in part, as herein indicated, and the cases are remanded to that court for further proceedings consistent with this opinion.
110
It is so ordered.
111
Judgments of Court of Appeals affirmed in part and reversed in part and cases remanded.
112
Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
113
Mr. Justice DOUGLAS, dissenting.
I.
114
What the Court does today cannot be reconciled with the construction given the Natural Gas Act by FPC v. Hope Natural Gas Co., 320 U.S. 591, 602, 64 S.Ct. 281, 287, 88 L.Ed. 333. In that case we said, in determining whether a rate had been properly found to be 'just and reasonable' under the Act, that
115
(1) 'it is the result reached not the method employed which is controlling';
116
(2) it is 'not theory but the impact of the rate order which counts';
117
(3) 'If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end.'
118
The area rate orders challenged here are based on averages.1 No single producer's actual costs, actual risks, actual returns, are known.
119
The 'result reached' as to any producer is not known.
120
The 'impact of the rate order' on any producer is not known.
121
The 'total effect' of the rate order on a single producer is not known.
122
It is said, however, that if any producer is aggrieved, it may apply for relief and if it fails to obtain relief it can resort to the courts. But unless we know the standards which will govern in case it applies for relief, we are, with all respect, mouthing mere words when we say the rate is 'just and reasonable.' In absence of knowledge, we cannot possibly perform our function of judicial review, limited though it be.
123
It was urged in the separate opinion of Mr. Justice Jackson in Hope that a system of regulation be authorized which would center not on the producer but on the product 'which would be regulated with an eye to average or typical producing conditions in the field.' 320 U.S., at 652, 64 S.Ct., at 311. But the Court rejected that approach, saying that §§ 4(a) and 5(a) of the Natural Gas Act contained 'only the conventional standards of rate-making for natural gas companies.' Id., at 616, 64 S.Ct., at 294.
124
Group regulation of rates is not, of course, novel. It has at times been authorized. The Federal Aviation Act of 1958, § 1002(e), 72 Stat. 789, 49 U.S.C. § 1482(e), permits it. And see General Passenger-Fare Investigation, 32 C.A.B. 291. Under the War Power, extensive price regulation on a group basis was sustained. Bowles v. Willingham, 321 U.S. 503, 517—519, 64 S.Ct. 641, 648 649, 88 L.Ed. 892. The Interstate Commerce Commission has undertaken it, as revealed by the Divisions of Revenue cases. New England Divisions Case, 261 U.S. 184, 43 S.Ct. 270, 67 L.Ed. 605; United States v. Abilene & S.R. Co., 265 U.S. 274, 44 S.Ct. 565, 68 L.Ed. 1016; Chicago & N.W.R. Co. v. A., T. & S.F.R. Co., 387 U.S. 326, 87 S.Ct. 1585, 18 L.Ed.2d 803. See also § 15 of the Interstate Commerce Act, as amended, 24 Stat. 384, 49 U.S.C. § 15(3). The requirement in the Divisions of Revenue cases is that the group evidence be 'typical in character, and ample in quantity, to justify the finding made in respect to each division of each rate of every carrier.' 261 U.S., at 196—197, 43 S.Ct., at 275. In other words, where the rates fixed will recover the typical group cost of service, the individual producer's right to a minimum of its operating expenses and capital charges is protected. Cost of service includes operating expenses and capital charges. FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 607, 62 S.Ct. 736, 753, 86 L.Ed. 1037 (concurring opinion). With that protection I can see no reason why group rates may not be sanctioned here. But more is required than the Commission undertook to do in these cases. In the present cases the Commission found averages; but there are no findings as to the typicality and representative nature of those averages.2 We certainly cannot take judicial notice that the averages are typical. Mr. Justice Brandeis in the leading Divisions of Revenue case said that 'averages are apt to be misleading' and they cannot be accepted 'as a substitute for typical evidence.' 265 U.S., at 291, 44 S.Ct., at 570. Cf. American Motors Corp. v. FTC, 384 F.2d 247, 251 259, 260—262 (C.A.6th Cir. 1967).
125
The Commission found no median. Moreover, as we observed in another context, it did not find what was 'the average cost' of groups made up of individual members who have 'a close resemblance' when it comes to the 'essential point or points which determine the costs considered.' United States v. Borden Co., 370 U.S. 460, 469, 82 S.Ct. 1309, 1314.
126
With respect to the cost of new gas-well gas, the Commission did not determine whether the average costs compiled from the questionnaires or derived from industry-wide data were typical or representative.
127
In finding the cost of flowing gas, the Commission noted that the 1960 level of costs compiled by the staff in large part from the questionnaire responses was 'fairly representative of the costs during the three year period ending in 1960' (34 F.P.C. 159, 213) and that '(t)he 1960 test year is * * * typical of current and future costs of the flowing gas * * *.' Ibid. This reference to 'representative' and 'typical' costs, however, dealt only with the question of time—i.e., the staff's use of 1960 data in developing its composite cost presentation was deemed permissible since 1960 was found to be a typical and representative year.
128
The Court professes to find that the Commission adequately determined that the averages it employed were 'typical' and 'representative.' Ante, at 802-803, n. 79. But the statements plucked from the Commission's opinion do not support that interpretation.
129
The Commission also observed, with respect to the questionnaire data, that 42 of the major producers (representing all but one of the major producers in the Permian area) responded on the Appendix B questionnaires. The Commission agreed with the Examiner that 'the data provided by the major producers with respect to their Permian production was fully representative of area costs,' and that exclusion of the Appendix C returns from small producers would have only a de minimis effect. 34 F.P.C., at 214. But although the data submitted by the major producers were found to be typical data for the area, and I assume also for the major producers in the area, there are no findings whether the averages compiled from the data were typical or representative of the costs of those major producers or of other producers in the area.
130
The Commission's statement that the sources used 'in combination provide an adequate basis for the costs we have found' certainly cannot be read as a finding that those sources were 'typical and representative.' Nor does the fact that the sources were 'recognized, published statistical data sources,' or 'well-recognized and authoritative,' mean they also contained typical and representative averages.
131
As Mr. Justice Brandeis said, 'averages' are apt to be 'misleading.' An average cost may indeed not be representative of any producer.
132
The Commission allowed a 12% rate of return, the return being 'on capital invested in finding new gas well gas.' 34 F.P.C., at 306, 343. 'Production investment costs' constituted this 'capital invested' and were the bases to which the Commission applied the 12% rate to arrive at a return of 5.21¢ per Mcf to be included in the rate base for new gas-well gas. 34 F.P.C., at 197, 204. These 'production investment costs' included successful well costs, lease acquisition costs, and the cost of other production facilities. But they were likewise determined on the basis of averages. See 34 F.P.C., at 197—198, 295, 377—382.
133
The average per capita income of a Middle East kingdom is said to be $1,800 a year. But since one man—or family—gets most of the money, $1,800 a year describes only a mythical resident of that country.
134
The 12% return allowed by the Commission and computed on an average-cost basis may likewise have no relation whatever to the reality of the actual costs of any producer.
135
One producer's cost, though varying from year to year, may average out at $1 per Mcf. Another's may average out at 5¢ per Mcf. Does that make 52.5¢ per Mcf representative of either producer or typical of all producers, or, indeed, typical of any producer, even if the 52.5¢ per Mcf is stable over the entire period of years?
136
The Commission could follow the lead of the Interstate Commerce Commission and produce rates on a group basis. But it simply has not done so in any rational way.
137
Averages are apt to take us with Alice into Wonderland. That is one reason why the case should be remanded to the Commission for further findings.
138
The Commission will allow individual application for relief from these new rates. But it has not prescribed the terms and conditions on which relief will be granted. It has said, however, that an individual producer must show more than that its cost of service is greater than the averages on which the rate is based. 34 F.P.C., at 180.
139
In a regulated industry there is no constitutional guarantee that the most inefficient will survive. Hegeman Farms Corp. v. Baldwin, 293 U.S. 163, 170—171, 55 S.Ct. 7, 9, 79 L.Ed. 259.
140
That assumes, however, an ability to withdraw from the business. But a producer of natural gas may not abandon its existing facilities that supply the interstate market without Commission approval. United Gas Pipe Line Co. v. FPC, 385 U.S. 83, 87 S.Ct. 265, 17 L.Ed.2d 181.
141
The Commission says that a producer will be able to obtain relief to cover its out-of-pocket expenses. 34 F.P.C., at 226. Do they include return, depreciation, depletion, exploration, development, and overhead? The Court of Appeals did not know (375 F.2d, at 30); and we certainly do not. The remand by the Court of Appeals for further definition was therefore clearly necessary. For even if we need not know the precise impact of the new group rate on each producer at the time of the group rate order, we certainly must know the conditions on which a producer can get relief before we can say that a rate as to it is 'just and reasonable.' Although we assume that the Act authorizes group rate-making, we cannot disregard the basic structure of the Act, patterned on the 'conventional standards of rate-making' (FPC v. Hope Natural Gas Co., supra, 320 U.S., at 616, 64 S.Ct., at 294) and providing in §§ 4(a) and 5(a) that all rates of 'any' natural gas company be 'just and reasonable.' Beyond the group is the single producer; beyond the community of producers is the individual. The ultimate thrust of the Act reaches the individual producer; and unless we know what the group rate in final analysis does to it or disables it from doing we cannot perform our duty of judicial review.
II.
142
If we move to the regulation of the group as such and consider the impact of these rate orders on it, we are likewise not able on the present record to perform our function of judicial review.
143
It is impossible to say whether the proper revenue requirements of the group can be satisfied under this rate order. For the costs represent averages; and there is no way for us to find from the record whether these averages are typical and what the impact of the rates on the group will be.
144
The error is compounded when the costs used are the purported costs of gas-well gas and do not include the costs of casinghead gas, residue gas derived therefrom, and gas-well gas from combination leases. The Commission concluded that the costs of casinghead gas and residue gas produced therefrom did not exceed the costs for gas-well gas. Yet at the same time it rejected proffered evidence of higher costs of processing gas to remove liquid hydrocarbons. Commission expertise should not be allowed to make its own 'facts' to justify the desired result.
145
Beyond that are the quality adjustments. Upward price adjustments are permitted for Btu content above 1,050 per cubic foot and downward adjustment for Btu content below 1,000. The Commission was concerned with the value of the 'energy content of the gas, which in reality is what the consumer is purchasing.' 34 F.P.C., at 223.
146
With that standard in mind it allowed price reductions
147
(1) where the gas contains more than 10 grains of hydrogen sulphide or 200 grains of total sulphur per Mcf;
148
(2) where it contains more than .009 pound per Mcf of water;
149
(3) where it contains more than 3% by volume of carbon dioxide;
150
(4) where the gas pressure is less than 500 pounds per square inch.
151
When any of these standards are not met, the applicable ceiling price is adjusted downward by the net cost of processing the gas to bring it up to standard.
152
Under the Commission's standards about 90% of the flowing gas moving interstate from the Permian Basin is not of the pipeline quality that the Commission has prescribed. 375 F.2d, at 30. What the costs will be to convert the gas to these new standards is not found in this record. Perhaps this deficiency is due to the fact that the Commission, almost as an afterthought and not with clear, advance notice, decided to deal with detailed quality standards. But without knowing these costs through competent evidence, neither we nor the Commission has any way even to guess at whether the new rates will satisfy the criteria of Hope.
III.
153
The Court approves the Commission's treatment of the quality adjustments as a risk of production. But whether they be labeled a risk of production or a cost would seem to be irrelevant. That is a matter of semantics as far as the standards of Hope are concerned. For the question is whether we can reasonably determine the end result from the computations of the Commission, including both risk and cost factors.
154
Any unknown cost is a risk. But the Commission should not be permitted to excuse its failure to solicit or proffer appropriate evidence concerning the cost of converting gas into pipeline quality by labeling that cost a 'risk.' The Court of Appeals recognized this point. See 375 F.2d, at 31—32, 35. Commissioner O'Connor noted in his opinion concurring in the denial of rehearing that: 'To bury the quality impact in our rate of return determination is to overlook the basis for the 12 per cent allowance: comparable return on equity of 10—12 per cent by the far less risky operations of transmission companies.' 34 F.P.C., at 1081. And, as one commentator recently observed:
155
'The Commission stated that the rate of return also reflected the risk of finding gas of less than pipeline quality—a clever way of avoiding the quality discount problem. Since there was no evidence in the record as to what those discounts would be, one can only say that 'risks' were involved. It is a novel doctrine, indeed, that the rate of return should be adjusted to reflect the risk that the regulatory cost computations are incorrect.'3
156
The Court concedes that the lack of specific findings concerning the effect of the quality adjustments upon the rate of return was 'an unfortunate omission.' Ante, at 812. But it proceeds to scratch about for evidence to support the Commission. With all respect, there is no competent evidence in the record to permit a meaningful determination of the impact of the quality deductions.4 The Court of Appeals was clearly correct in remanding to the Commission for proper findings on this point.
157
Behind the veneer of the Court's opinion may be an unstated premise that the complexity of the task of regulating the wellhead price of gas sold by producers is both so great and so novel that the Commission must be given great leeway. But the permissible bounds, so far as judicial review is concerned, are passed when guesswork is substituted for reasoned findings, when the Commission can avoid finding 'costs' by the convenience of calling them 'risks,' when rates of return are computed for those mythical producers who happen to meet the 'average' specifications.
158
If the task of regulating producer sales within the framework of the Natural Gas Act is as difficult as the present cases illustrate, perhaps the problem should be returned to Congress. But certainly we do little today to advance the cause of responsible administrative action. With all respect, we promote administrative irresponsibility by making an agency's fiat an adequate substitute for supported findings.
IV.
159
New Mexico and Texas, in which the Permian Basin is located, have comprehensive oil and gas conservation codes.5 A substantial portion of their taxes on the production of natural gas within their boundaries goes into school funds. They say that the 'public interest' entrusted to the Commission by 15 U.S.C. § 717(a) includes the interest of the States where the gas is found. They claim that pricing can be disastrous to the producing States and urge the need for threefold findings by the Commission to ensure an adequate supply of natural gas for future use:
160
'First, the Commission must determine the quantity of gas needed to constitute an adequate future supply. Secondly, it must make a conclusion as to the level of exploration and development which will produce the needed gas supply. Finally, it must prescribe a rate which will elicit that level of exploration and development.'
161
They argue that where Commission rates are lower than existing contract rates, continued operation is uneconomical in many so-called 'stripper fields':
162
'Although daily per well production from these fields is relatively low, their combined remaining recoverable reserves nevertheless constitute a considerable percentage of the total reserves for the area which will be forever lost if it becomes necessary to plug and abandon these fields for economic reasons.'
163
The Court of Appeals did not entertain these objections (375 F.2d, at 18) because it read the Hope case as foreclosing them.
164
Hope, however, did not involve regulation of producers of natural gas, only interstate pipelines. At that time Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, giving the Commission authority over these producers, had not been decided. In Hope we assumed that the Act meant what it said in § 1(b) when it did not extend federal control to the 'production or gathering of natural gas.' We were not then reviewing a federal order fixing wellhead gas prices for producers. Wellhead gas was not even involved in the Hope case. We were concerned there with abuses and overreaching by pipeline companies. We said:
165
'If the Commission is to be compelled to let the stockholders of natural gas companies have a feast so that the producing states may receive crumbs from that table, the present Act must be redesigned. Such a project raises questions of policy which go beyond our province.' 320 U.S., at 614, 64 S.Ct., at 293.
166
Now that Phillips has put the prices of producers under federal control, the interests of the producing States must be considered, appraised, and weighed as an important ingredient of the 'public interest.' Regulation of wellhead prices by the Commission directly influences the level and feasibility of production, and can significantly affect the producing States' regulation of production. See Phillips Petroleum Co. v. State of Wisconsin, supra, at 689—690, 74 S.Ct., at 802—803 (dissenting opinion).6
167
As the Court today says in another context, price in functional terms can be 'a tool to encourage' the production of gas. Ante, at 760. The effect of price on the regulatory responsibilities of the several States must therefore be weighed, unless contrary to the mandate of the Act regulation of production is to pass into federal hands.
168
What the merits may be on this issue we do not know. The matter is complicated. For example, it seems that the revenues of the processing plants are derived primarily (about 80%) from the liquids which they extract from the casinghead gas, rather than from the sale of the residue gas. We do not know how to appraise the chances that this gas would be flared rather than processed if the price were too low. For example, it might be that the processing plants would continue to purchase and process casinghead gas as long as the revenues from the liquids extracted plus those from the residue gas processed exceeded the cost of gathering, processing, and marketing the gas. As long as there is a market for the residue gas remaining after extraction of the liquids, it might be that the processor would sell it at almost any price rather than flare it, in order to recover at least part of his costs. This assumes, of course, that the processor has already made the investment in equipment necessary to purify the residue gas to make it salable, and that the operating costs of this process are not prohibitive. Conceivably, the price of the residue gas could influence the processing plants in deciding whether to maintain or install the equipment and procedures necessary to make salable quality residue gas as the liquids are being extracted. We do not know how many processors do not now have that necessary equipment or the cost of operating and maintaining that equipment.
169
If the processor is willing to gather and process the gas because of the value of the liquids extracted, it might be that a producer would be willing to sell its casinghead gas rather than flare it, in order to obtain some payment for the gas. On the other hand, the price of the casinghead gas might well be critical for marginal producers, whose revenues from the sale of casinghead gas justify keeping their oil wells in production. But we have no evidence concerning how many oil producers in the Permian Basin area could be termed 'marginal.'
170
It may be that the posture of Hope was the reason why this phase of the case was not developed. Whatever the reason, it must be developed if the interest of the producing States is not by judicial fiat to be subjected entirely to complete federal supremacy, contrary to the promise in the Natural Gas Act.
1
Section 5(a) provides in pertinent part that 'Whenever the Commission, after a hearing had upon its own motion or upon complaint of any State, municipality, State commission, or gas distributing company, shall find that any rate, charge, or classification demanded, observed, charged, or collected by any natural-gas company in connection with any transportation or sale of natural gas, subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory, or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order * * *.'
2
Section 1(b), 15 U.S.C. § 717(b), provides in part that the 'provisions of this chapter shall apply * * * to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use * * *.' We shall, for convenience, hereafter describe sales within the Commission's regulatory authority as 'jurisdictional' or 'interstate' sales.
3
The Permian Basin was defined by the Commission's order commencing these proceedings so as to include Texas Railroad Commission Districts Nos. 7—C and 8, and the New Mexico counties of Lea, Eddy, and Chaves. Area Rate Proceeding No. AR61—1, 24 F.P.C. 1121, 1125.
4
There were some 384 parties before the Commission, including 336 gas producers. Hearings began on October 11, 1961, and closed on September 10, 1963. The final transcript included more than 30,000 pages. The examiner's decision was issued on September 17, 1964. The Commission heard three days of oral argument, and issued its decision on August 5, 1965. A supplementary opinion denying applications for rehearing was issued on October 4, 1965.
5
Indeed, § 1(b), 15 U.S.C. § 717(b), provides in part that the 'provisions of this chapter * * * shall not apply to * * * the production or gathering of natural gas.'
6
Independent producers are those that do 'not engage in the interstate transmission of gas from the producing fields to consumer markets and (are) not affiliated with any interstate natural-gas pipeline company.' Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 675, 74 S.Ct. 794, 795.
7
This position was first adopted by the Commission in Columbian Fuel Corp., 2 F.P.C. 200. See also Billings Gas Co., 2 F.P.C. 288; Fin-Ker Oil & Gas Production Co., 6 F.P.C. 92; Tennessee Gas & Transmission Co., 6 F.P.C. 98.
8
Section 4(a), 15 U.S.C. § 717c(a), provides that 'All rates and charges made, demanded, or received by any natural-gas company for or in connection with the transportation or sale of natural gas subject to the jurisdiction of the Commission, and all rules and regulations affecting or pertaining to such rates or charges, shall be just and reasonable, and any such rate or charge that is not just and reasonable is hereby declared to be unlawful.'
9
See generally Phillips Petroleum Co., 24 F.P.C. 537, 542.
10
It has been observed that costs-of-service standards are 'most generally accepted in the regulation of the levels of rates' charged by both publicly and privately owned utilities. J. Bonbright, Principles of Public Utility Rates 67 (1961).
11
It has been said that 'the primary, even though not the sole, distinguishing feature of a public utility enterprise is to be found in a technology of production and transmission which almost inevitably leads to a complete or partial monopoly of the market for the service.' Bonbright, supra, at 10. See also Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 160, 80 S.Ct. 1392, 1405, 4 L.Ed.2d 1623 (dissenting opinion).
12
The Commission in its second Phillips opinion stated that there were then 3,372 independent producers with rates on file; these producers had on file 11,091 rate schedules and 33,231 supplements to those schedules. There were, at the moment of the Commission's opinion, 570 producers involved in 3,278 rate increase filings awaiting hearings and decisions. 24 F.P.C., at 545. See for listings by sales of natural gas producers, Federal Power Commission, Sales by Producers of Natural Gas to Natural Gas Pipeline Companies 1963, 1 (1965).
13
The Commission stated in its second Phillips opinion that 'if our present staff were immediately tripled, and if all new employees would be as competent as those we now have, we would not reach a current status in our independent producer rate work until 2043 A.D.—eighty-two and one half years from now.' 24 F.P.C., at 546. It added that if 'the plan of rate regulation we here announce is not lawful,' it would follow that 'as a practical matter, adequate regulation of producers appears to be impossible under existing law.' Id., at 547.
14
Landis, Report on Regulatory Agencies to the President-Elect, printed for use of the Senate Committee on the Judiciary, 86th Cong., 2d Sess., 54. Contrast Landis, Theoretical and Practical Considerations with Reference to Price Regulation in Production and Transmission of Natural Gas, 13th Oil & Gas Inst. 401, 406 (1962).
15
Phillips Petroleum Co., supra, at 542—548.
16
Id., at 547; Statement of General Policy No. 61—1, 24 F.P.C. 818.
17
Area Rate Proceeding (Hugoton-Anadarko Area) No. AR64—1, 30 F.P.C. 1354, 1359 (dissenting opinion of Commissioner Ross).
18
We are informed that four other area proceedings are pending in various stages before the Commission. These, in combination with the present proceeding, reach some 90% of the sales of natural gas subject to the Commission's jurisdiction. Brief for the Federal Power Commission 14—15.
19
Phillips Petroleum Co., supra, at 548.
20
It is proper to note that certain of the Commission's statements in Phillips concerning the difficulties of unit cost computations do not appear to have been entirely reaffirmed in its opinion in these proceedings. The two opinions are, however, broadly consistent, and the Commission is not, in any event, forbidden 'to adapt (its) rules and practices to the Nation's needs in a volatile, changing economy.' American Trucking Ass'n v. Atchison, T. & S.F.R. Co., 387 U.S. 397, 416, 87 S.Ct. 1608, 1618, 18 L.Ed.2d 847.
21
The Statement provided separate guideline prices for initial filings and for increased rates. The Commission said merely that 'prices in new contracts are, and in many cases by virtue of economic factors, must be higher than the prices contained in old contracts.' 24 F.P.C., at 819. The guideline prices applicable to the producing areas subsequently included in these proceedings were in each case 16¢ and 11¢ per Mcf, with the higher price for initial filings.
22
Statement of General Policy No. 61—1, supra, at 818.
23
The Commission defined gas-well gas as 'gas from dry gas reservoirs and gas condensate reservoirs, and gas from gas-cap wells.' It added that gas-cap gas is 'a special category of gas from an oil reservoir that can be produced free from the influence of oil production.' 34 F.P.C. 159, 189 and n. 23. Residue gas derived from new gas-well gas is also to be subject to higher maximum rate. See id., at 211.
24
Natural gas is variously classified, and certain of the descriptive names that will be employed in this opinion should be briefly explained. Casinghead gas is 'the common name for gas produced from oil wells in conjunction with the production of oil.' 34 F.P.C., at 208. Residue gas is 'the gas remaining after casinghead gas or gas-well gas has been processed to remove liquids present in the raw gas stream in the form of vapor or droplets.' Id., at 210. Associated gas is '(f)ree natural gas in immediate contact, but not in solution, with crude oil in the field or reservoir.' American Gas Association, 1966 Gas Facts 246 (1966). Dissolved gas is that 'in solution with crude oil in the reservoir.' Ibid. Oil-well gas encompasses associated, dissolved, and casinghead gas, together with residue derived from casinghead gas. In addition, we shall adopt the Commission's usage, and on occasion describe gas subject to the lower maximum rate as 'old' or 'flowing' gas. 34 F.P.C., at 212, n. 31.
25
Joint costs 'are incurred when products cannot be separately produced * * *.' M. Adelman, The Supply and Price of Natural Gas 25 (1962). Compare the following: 'Products are 'truly joint' if they must be produced together and in constant proportions. Truly joint costs are variable costs. They vary (as a total) with the output of the entire set (fixed combination) of joint products.' F. Machlup, The Economics of Sellers' Competition 21 (1952). And see Bonbright, supra, at 354—357. It appears to be conceded that even gas-well gas has costs jointly, a well as in common, with petroleum, but the Commission evidently, and permissibly, believed that the difficulties of allocation connected with gas-well gas were relatively uncomplicated. See 34 F.P.C., at 214—215, 339.
26
A Btu, or British thermal unit, is the amount of heat required to raise the temperature of one pound of water one degree Fahrenheit under stated conditions of pressure and temperature.
27
Tabular summaries of the cost components from which the distributors and the producers derived recommended rates for new gas-well gas may be found in the examiner's opinion. 34 F.P.C., at 343. Based on allowances for production investment costs, return, exploratory costs, royalty and production taxes, and other factors, the producers recommended a rate of 23.24¢ per Mcf; the distributors derived from the same factors a rate of 15.39¢ per Mcf. See also id., at 357. Similar tables summarizing the Commission's findings were included in its opinion. Id., at 192, 220.
28
The Commission excluded New Mexico state production taxes because they are not uniform throughout the three counties. See the Commission's opinion denying applications for rehearing, 34 F.P.C., at 1074.
29
Section 4(d), 15 U.S.C. § 717c(d), provides in part that '(u)nless the Commission otherwise orders, no change shall be made by any natural-gas company in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days' notice to the Commission and to the public.'
30
The restricted contract provisions include most-favored-nation, spiral escalation and redetermination clauses. See Pure Oil Co., 25 F.P.C. 383, 388, n. 3. They were said by the examiner to 'cause price increases * * * to occur without reference to the circumstances or economics * * *.' 34 F.P.C., at 373 (initial decision of the presiding examiner).
31
Many of the refund obligations in question here stem from the consolidation of proceedings conducted in connection with filings for rate increases under § 4(d). For purposes of these filings and of the attendant refund obligations, these proceedings were conducted under § 4(e). Area Rate Proceeding No. AR61—1, 24 F.P.C. 1121.
32
The various parties before the Court have taken quite disparate positions. The distributing companies, with the exception of amici, and the public authorities, with the exceptions of the States of Texas and New Mexico, have all supported the Commission's orders in their entirety. They urge that 'consumers . . . have waited long enough,' and assert that 'no good purpose can be served by further proceedings.' See Joint Brief for the City of San Diego and the City and County of San Francisco 24. Certain of the producers support the judgment below; others challenge the validity of portions of the Commission's orders that were sustained below. We have, nonetheless, frequently not indicated which of the parties join, and which oppose, various contentions. This does not suggest that we do not recognize differences in position; we want merely to simplify, so far as possible, an already lengthy opinion.
One further comment is pertinent. The organization and presentation of issues is, of course, a matter for the judgment of counsel. Nonetheless, it is proper to remark that the effectiveness and clarity with which issues are presented in cases of this complexity might be significantly increased if even greater efforts were made to focus and consolidate argumentation on behalf of parties with essentially similar views.
33
The opinion of the Court stated simply that '(w)e recognize the unusual difficulties inherent in regulating the price of a commodity such as natural gas. We respect the Commission's considered judgment, backed by sound and persuasive reasoning, that the individual company cost-of-service method is not a feasible or suitable one for regulating the rates of independent producers. We share the Commission's hopes that the area approach may prove to be the ultimate solution.' 373 U.S., at 310, 83 S.Ct., at 1275 (note omitted).
34
Compare Bowles v. Willingham, supra, 321 U.S., at 517, 64 S.Ct., at 648.
35
The Court of Appeals remarked that '(o)ut-of-pocket expenses are not defined and we do not know what they include.' 375 F.2d, at 30. It is certainly true that the Commission proffered no definition, but we cannot regard this as a fatal omission.
36
Section 7(b), 15 U.S.C. § 717f(b), provides that '(n)o natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment.'
37
Indeed, Commissioner Ross has already urged that the Commission modify its area proceedings so as to reflect the essentially national character of the relevant issues. Area Rate Proceeding (Hugoton-Anadarko Area) No. AR64—1, 30 F.P.C. 1354, 1359—1362 (dissenting opinion). Moreover, we note the 'essential amalgamation' of the Hugoton-Anadarko and Texas Gulf Coast area proceedings before the Commission, where 'identical issues were heard on a joint record.' 1 Joint Initial Staff Brief in Area Rate Proceedings Nos. AR64—1 and AR64—2, 1. Finally, we must emphasize that we understand the present proceeding to be merely the first of many steps toward a more expeditious and effective system of regulation.
38
34 F.P.C., at 227.
39
See, e.g., Transcontinental Gas Pipe Line Corp., 34 F.P.C. 584.
40
We obtain additional assistance from § 16; it provides that the Commission 'shall have power to perform any and all acts, and to prescribe * * * such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this' Act. 15 U.S.C. § 717o.
41
Section 4(d) is set out at n. 29, supra.
42
Section 4(e), 15 U.S.C. § 717c(e), provides in part that '(w)henever any such new schedule is filed the Commission shall have authority, either upon complaint * * * or upon its own initiative * * * to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission * * * may suspend the operation of such schedule and defer the use of such rate * * * but not for a longer period than five months beyond the time when it would otherwise go into effect; and after full hearings, either completed before or after the rate, charge, classification, or service goes into effect, the Commission may make such orders with reference thereto as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made at the expiration of the suspension period * * * the proposed change of rate * * * shall go into effect. Where increased rates or charges are thus made effective, the Commission may, by order, require the natural-gas company to furnish a bond * * * and, upon completion of the hearing and decision, to order such natural-gas company to refund, with interest, the portion of such increased rates or charges by its decision found not justified.'
43
See n. 1, supra.
44
34 F.P.C., at 228.
45
Id., at 230.
46
The Commission has elsewhere provided brief definitions of the pertinent types of clauses. See generally Pure Oil Co., 25 F.P.C. 383. Two-party most-favored-nation clauses are those 'activated by higher prices paid to any other supplier by the same purchaser.' Three-party most-favored-nation clauses are 'activated by higher prices paid to any other supplier by any purchaser.' Spiral escalation clauses provide 'that in the event the price which the buyer receives for the gas is increased, the price concurrently paid by the buyer to the supplier under the contract shall be increased in proportion to the buyer's increase.' Redetermination clauses provide 'that the price currently paid under the contract shall be subject to upward adjustment at certain specified times to reflect the average of the highest prices then paid by buyers to other suppliers for gas delivered under substantially similar terms and conditions.' Id., at 388, n. 3.
47
Order No. 232, 25 F.P.C. 379. This was subsequently modified by Order No. 242, 27 F.P.C. 339. See 18 CER § 154.93.
48
The Commission stated in its Order No. 242 that indefinite escalation clauses 'have created a significant portion of the administrative burdens under which this Commission is laboring,' and that they produce a 'flood of almost simultaneous filings' that 'bear no apparent relationship to the economic requirements of the producers who file them.' 27 F.P.C. 339, 340. See also 5 Joint Appendix 1858—1859.
49
The Commission defined a small producer as one 'selling jurisdictionally less than 10,000,000 Mcf annually on a nationwide basis.' 34 F.P.C., at 235. See further the testimony of producer witness Abel, 1 Joint Appendix 339—342. This would include some 250 of the filing producers in the Permian Basin, leaving some 40 large producers. Under this definition, there are some 2,000 small producers in the United States, and 75 large producers. 34 F.P.C., at 235. See also Federal Power Commission, Sales by Producers of Natural Gas to Natural Gas Pipeline Companies 1963, 1—6 (1965).
50
The examiner observed that the 'basic difference between the small and the large producer is that the risks of the business are materially different for each.' 34 F.P.C., at 360. Compare 1 Joint Appendix 318—319, 328—332.
51
These questions were discussed at length in testimony before the examiner on behalf of the Texas Independent Producers and Royalty Owners Association, and others. See generally 5 Joint Appendix 1655—1714, 1773—1787; 1 id., at 224—232, 255. And see Supplement to Joint Appendix 3s—6s.
52
The examiner stated that small producers had 'relatively larger dry hole expenses, a smaller proportion of geological and geophysical expenses, and a smaller proportion of lease acquisition expenditures'; he added that they had relatively larger depletion, depreciation, and amortization expenses. 34 F.P.C., at 361. The examiner also found that the 'ratios of income available for income taxes, cash dividends, and working capital to net investment were 7.8, 2.5, and 7.4 for the large producers, small producers and for the weighted average.' Ibid. See also testimony at 3 Joint Appendix 1114—1116.
53
The Commission found that they provide only about 15% of the total supply of natural gas moving in interstate commerce, and that 'they usually cannot obtain more for their gas than the regulated price we fix for the major producers.' 34 F.P.C., at 234. And see id., at 363. On the other hand, the Commission noted that in specific situations the small producers might have a very important portion of the relevant market. Id., at 235. The examiner indicated that '(f)ewer than 50' large producers sell 87% of the gas sold from the Permian Basin under the Commission's jurisdiction. Id., at 361.
54
It should be noted that the small producers did not at first wish any special exemptions; they evidently feared that any such exemptions might cause the Commission to ignore their difficulties, and ultimately perhaps to permit them to be priced out of the industry. These discussions may be traced at 5 Joint Appendix 1692—1714.
55
Correspondingly, the small producers need not take quality adjustments into account for purposes of refunds, unless they wish to take advantage of upward price adjustments because of high Btu content. 34 F.P.C., at 233.
56
It is pertinent that the Commission estimated regulatory expenses, for purposes of the calculation of area maximum rates, at 0.14¢ per Mcf. The Commission stated that 'no participant disputes its inclusion * * *.' 34 F.P.C., at 197. In contrast, it has been estimated that the total costs to producers of the Commission's regulation are some 1.,164¢ per Mcf. Of this total, 0.039¢ are said to arise from administration, 0.809¢ from delay, and 0.316¢ from contingencies. See Gerwig, Natural Gas Production: A Study of Costs of Regulation, 5 J. Law & Econ. 69, 85, 86, 88.
57
It is pertinent that much of the cost and other data upon which the Commission relied reflected national, and not area or local, circumstances. Further, the Commission found that production costs in the Permian Basin did not 'vary sufficiently from the natuional average to warrant a different treatment * * *.' 34 F.P.C., at 191. Moreover, no party offered a comprehensive cost study premised on a larger Permian Basin, although certain information relevant to adjacent areas was presented. See 1 Joint Appendix 37—41; 6 id., at 15e. But see 1 id., at 242—244.
58
The rate structure is summarized above, at 759—764.
59
Economists have frequently proved more candid about these difficulties. Social welfare and public interest standards have been described as 'almost unique in the extreme vagueness of (their) ultimate verbal norm.' Bonbright, supra, at 27. Similarly, it is said that no writer 'whose views on public utility rates command respect purports to find a single yardstick by sole reference to which rates that are reasonable or socially desirable can be distinguished from rates that are unreasonable or adverse to the public interest.' Id., at 67. But compare National Broadcasting Co. v. United States, 319 U.S. 190, 216, 63 S.Ct. 997, 1009, 87 L.Ed. 1344.
60
This phrase was taken by the Court of Appeals as the substance of the opinion of the Court in FPC v. Hope Natural Gas Co., supra. The court contrasted unfavorably the Commission's assertion that it had found a 'fair relationship' between the consumer interests and the producers' costs. See 34 F.P.C., at 1074; 375 F.2d, at 34. We are unable to find in the verbal differences between these two phrases any objection to the Commission's orders. The Commission's exercise of its regulatory authority must be assessed in light of its purposes and consequences, and not by references to isolated phrases from previous cases.
61
The Commission found that the 2.8¢ per Mcf paid as an average price in 1947 had risen to 9.0¢ in 1954, and to 13.8¢ in 1960. In 1960, EL Paso, the dominant pipeline company in the Basin, renegotiated its contracts and offered prices ranging from 13.5¢ to 17¢ per Mcf. 34 F.P.C., at 182. The examiner pointed out that between 1947 and 1960, the average price paid nationally by pipelines trebled, from 4.95¢ to 15.61¢ per Mcf. Id., at 312. And see 2 Joint Appendix 423—432.
62
It appears that five producers were responsible in 1960 for more than one-half of all the natural gas sold from the Basin under the Commission's regulation. Fifteen producers accounted for almost three-fourths of the sales. See Memorandum of the Texas Independent Producers and Royalty Owners Association, 5 Joint Appendix 1775, 1780. See also Analysis of Independent Producer Rate Schedules, 6 Joint Appendix 275e—293e. These questions are very usefully discussed by distributor witness Kahn at 2 Joint Appendix 410—432. He notes the significance of 'a sharply rising demand operating on a sluggishly responding supply,' id., at 423, but also emphasizes the importance of the escalation clauses and of various market imperfections.
63
The Commission stated that 'the entire history of pipeline purchasing activity, since the end of the EL Paso monopoly in the Permian Basin, has been characterized by the overriding needs of the pipelines to contract for the large blocks of uncommitted reserves essential to maintain their competitive position in developing markets * * * and their inability to accomplish this objective except at ever increasing prices.' 34 F.P.C., at 182. It is noteworthy that, despite the obvious importance of these proceedings, the pipeline companies did not take an active part here, in the Court of Appeals or before the Commission. See also 2 Joint Appendix 423—432. But see 4 id., at 1384—1388.
64
The phrase is Commissioner O'Connor's. 34 F.P.C., at 252 (opinion concurring and dissenting on limited issue). It is proper to note that he would have made much wider use of field prices for the calculation of the area rates. Monopsony is the term used to describe a situation in which the relevant market for a factor of production is dominated by a single purchaser. See J. Robinson, The Economics of Imperfect Competition 215 (1933). The relevant market here is that for uncommitted reserves. See 2 Joint Appendix 410. Finally, for a general examination of the usefulness of the competitive model for regulation, see Bon-bright, supra, at 106 108.
65
It should be observed that the significance of the escalation clauses will presumably be diminished by the Commission's series of orders restricting their use.
66
Some 85% of the gas sold in interstate commerce from the Permian Basin is ultimately consumed in California. 34 F.P.C., at 174, 312. The demand for natural gas among residential and commercial consumers, once they have purchased the necessary equipment, is relatively inelastic. Id., at 313. The demand among industrial consumers is more responsive to price, but restrictions in California on the use of various industrial fuels have left industrial demand less responsive to price there than in other parts of the country. Id., at 313—314.
67
Indeed, the Commission explicitly stated that '(w)e recognize that the history of negotiated prices in the area is an important element to be considered in reaching our decision.' 34 F.P.C., at 181.
68
We note that economists have sometimes concluded that the market mechanism works satisfactorily in the natural gas industry. 'There is * * * no question but that the field price of gas in the United States is competitively determined.' Adelman, supra, at 39. See also E. Neuner, The Natural Gas Industry 125—134, 238—290 (1960). In contrast, Professor Kahn said of oil and gas that 'few other industries in our entire economy * * * are so insulated * * * from the normal forces of the market.' 2 Joint Appendix 607. But see 1 id., at 217—218, 280—281. And see R. Hooley, Financing the Natural Gas Industry 5—25 (1961).
69
Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 612, 65 S.Ct. 829, 843, 89 L.Ed. 1206 (concurring opinion).
70
The examiner found that the larger producers could now predict with high accuracy whether drilling in a particular area would be likely to produce associated or unassociated gas. 34 F.P.C., at 325—329. This appears primarily to be the consequence of accumulated experience, and not of any improvement in technology. See also 2 Joint Appendix 558, 581; 1 id., at 56, 307 308. Useful statistical evidence of predictability be found in producer testimony. See 3 id., at 952—955, 963, 965—967, 1079 1080. And see 7 id., at 572e—575e. It should be noted that the Commission's staff denied that gas could be separately sought. 3 id., at 933—934.
71
Estimates of the moment at which directional search became possible varied; one witness testified that Phillips regarded January 1, 1959, as an appropriate date of calculation. 1 Joint Appendix 56.
72
See 34 F.P.C., at 273. But contrast the testimony of distributor witness Kahn, who recognized that it would be 'in some measure arbitrary' to give the lower price to gas wells that began production after 1960 but before the Commission's final decision in these proceedings. 2 Joint Appendix 635.
73
The Statement provided a guideline price of 16¢ per Mcf for initial filings, and 11¢ per Mcf for previously committed gas. 24 F.P.C. at 820. The Commission indicated that this was in recognition of 'economic factors.' Id., at 819.
74
It is pertinent that Gerwig found that a premium of 1.16 per Mcf is necessary before producers rationally enter the interstate market. Gerwig, supra, at 85. See also Kitch, The Permian Basin Area Rate Cases and the Regulatory Determination of Price, 116 U.Pa.L.Rev. 191, 207. Compare Johnson, Producer Rate Regulation in Natural Gas Certification Proceedings: CATCO in Context, 62 Col.L.Rev. 773, 784, n. 61. Finally, see the testimony of producer witness Foster, 1 Joint Appendix 142—144.
75
We see no objection to the Commission's preference for January 1, 1961, instead of December 23, 1960, the date on which it issued the order commencing these proceedings. This choice was adequately justified by administrative convenience.
76
It should be observed that the witness chiefly responsible for the contrivance of the two-price system ultimately adopted by the Commission, see 2 Joint Appendix 510—513, 576—585, 601—611, has elsewhere described the need for close restraints on increases in the price for natural gas. Kahn, Economic Issues in Regulating the Field Price of Natural Gas, 50 Am.Econ.Rev. 506, 510—514. See also Kitch, supra, at 211—212.
77
34 F.P.C., at 191. And see id., at 339—340.
78
It should be noted that the parties proffered a list of sources of information, to which the examiner gave his approval. See 1 Joint Appendix, 291—305, 309—310. These were said by the parties to be 'recognized, published statistical data sources.' Id., at 292. The Commission described them as 'well-recognized and authoritative.' 34 F.P.C., at 191. Nonetheless, careful efforts were made to determine whether these and other sources of evidence, including the producers' questionnaires, were, as to the various cost components, accurately representative of the relevant groups of producers. See, e.g., id., at 377, 378, 380, 381, 384, 387, 392, 393.
79
Three sets of questionnaires were used. Appendix A was applicable to all producers and concerned chiefly drilling costs. Appendix B was required of large producers, and concerned costs, revenues and production. Appendix C was a simplified version of Appendix B, which small producers were permitted to use. The producers have argued vigorously that these questionnaires did not provide a sufficient basis for the Commission's findings. We cannot agree. The Commission reasonably concluded, as had the examiner, that the Appendix C questionnaires received from small producers were not necessarily representative. 34 F.P.C., at 214. And see 3 Joint Appendix 1117—1118. Moreover, the addition of the Appendix C data from the small producers would evidently not have produced a significant change in the ultimate cost components. See 34 F.P.C., at 214, 392—393, 400. Further, the Commission found that the responses to the Appendix B questionnaires received from 25 small producers would not have 'change(d) the results.' Id., at 214, n. 34. Of the 43 large producers that filed Appendix B questionnaires, the staff and Commission disregarded only one, which had not been properly completed. See generally 2 Joint Appendix 731—748; 3 id., at 753—761. In these circumstances, the Commission concluded, we think reasonably, that 'the data provided by the major producers with respect to their Permian production was fully representative of area costs * * *.' 34 F.P.C., at 214. This Court has repeatedly held that administrative agencies may 'proceed on a group basis * * * on 'evidence which the Commission assumed was typical in character, and ample in quantity' to justify its findings * * *.' Chicago & N.W.R. Co. v. A., T. & S.F.R. Co., 387 U.S. 326, 341, 87 S.Ct. 1585, 1594, 18 L.Ed.2d 803, quoting New England Divisions Case, 261 U.S. 184, at 196—197, 43 S.Ct. 270, at 275—276, 67 L.Ed. 605. The Commission has here reasonably found that the evidence before it satisfied these requirements; we therefore find no objection.
80
See generally the examiner's discussion, 34 F.P.C., at 393—400. Economists have described these difficulties with repetitive pungency. 'To make laborious computations purporting to divide (such) costs is 'nonsense on stilts,' and has no more meaning than the famous example of predicting the banana crop by its correlation with expenditures on the Royal Navy.' Adelman, supra, at 25. See also Machlup, supra, n. 25, at 21; Bonbright, supra, at 339—342. Compare Eckstein, Natural Gas and Patterns of Regulation, 36 Harv.Bus.Rev. 126, 129—133; and Kahn, supra, at 510 514.
81
By one estimate, the costs of non-associated gas are 45% separate, 31% joint, and 24% common. See 34 F.P.C., at 339. All of the costs of associated gas are joint. Ibid. But see Kitch, supra, at 202.
82
34 F.P.C., at 1072. None of the distributors or public agencies before the Court, except amici, have argued that this permits excessively generous returns to producers. Indeed, representatives of the consumers who ultimately purchase most of the gas produced in the Permian Basin have urged us to avoid 'long extensive delays' and to affirm the Commission's orders in their entirety. See, e.g., Brief for the City of Los Angeles 6; Joint Brief for the City of San Diego and the City and County of San Francisco 24; Brief for People of the State of California 63. These parties did not petition the Court of Appeals to review the Commission's orders, and participated below only as intervenors in full support of the Commission's position. Even assuming arguendo that these questions are not now foreclosed by § 19(b), we can find no basis on which to set aside the area rates as excessive. As we shall show below, the rate of return permitted the producers does not substantially exceed that ordinarily allowed to pipelines. Further, it must be recalled that the area maximum rates were, even before adjustment for quality and Btu deficiencies, intended to approximate average unit costs. Finally, we note that the Commission's area rate for new gas-well gas, after adjustment for average quality deficiencies, very nearly equals that originally proposed by distributor and consumer representatives. Compare 34 F.P.C., at 343, and at 1073. We cannot say that the Commission's rates are above the 'zone of reasonableness' permitted by the Natural Gas Act.
83
These questions are usefully discussed in Bonbright, supra, at 240—283. See also the Commission's discussion of the true yield method. 34 F.P.C., at 202. Compare 4 Joint Appendix 1267, 1406—1416. And see the Initial Decision of the Presiding Examiner in Area Rate Proceeding (Southern Louisiana Area), No. AR61—2, issued December 30, 1966, at 75—85.
84
34 F.P.C., at 201. Compare id., at 343—352. And see for estimates of more recent equity allowances, Brief for the Federal Power Commission 144, n. 16.
85
The examiner found that nonintegrated producers had an average debt of approximately 12%. The pipelines were found to have debts 'sometimes as large as 70 percent of total capitalization * * *.' 34 F.P.C., at 345. See also contrasting testimony at 1 Joint Appendix 173—177; and 2 id., at 614—626. It is proper to observe that it has sometimes been argued that the leverage of high borrowings itself creates certain financial risks. But see G. Stigler, Capital and Rates of Return in Manufacturing Industries 64, n. 15 (1963). Finally, it should be noted that risk has on occasion been regarded as cause for a reduction of the rate of return. See C. Hardy, Risk and Risk-bearing 37—38 (1931).
86
As will appear below, we find the Commission's discussion of relative financial risks imprecise. There is, however, a plain statement in the Commission's opinion to the effect that exploration and production are financially more hazardous than transmission. See 34 F.P.C., at 201. The Commission did not indicate clearly whether it considered production taken in the aggregate as more hazardous than the affairs of an individual pipeline company, or indeed even whether it considered such aggregate calculations relevant.
87
See the discussion at 34 F.P.C., at 203—204. And see id., at 349—352. Finally, see 3 Joint Appendix 850—936.
88
But see Kitch, supra, at 201. See also Stigler, supra, at 62—64.
89
It has been argued with force that the producers were not given fair notice that the Commission might promulgate such standards. It appears that the Commission did not announce in terms that it might create quality standards, and that it tacitly denied a motion to consolidate this proceeding with a rule-making proceeding intended to devise national quality standards. We cannot say that the Commission impermissibly refused to complicate still further this proceeding by the addition of issues centering on national quality standards. Moreover, the general terms of the Commission's order commencing this proceeding reasonably encompassed questions of quality standards, 24 F.P.C. 1121, 1124, and we do not regard the Commission's denial of the consolidation motion as foreclosing the ultimate adoption of such standards. The producers' motion was premised on the desirability of national standards, and explicitly recognized that prices and differences in quality 'are so inextricably tied together that they cannot be meaningfully separated one from the other.' 9 Joint Appendix 69d, 71d. We cannot hold that the Commission denied the producers fair notice that it might as a consequence of these hearings impose quality standards.
90
It is argued vigorously that the standards adopted by the Commission lack substantial basis in the record. Emphasis is placed chiefly on the examiner's statement that it would be 'probably impossible on this record * * * to establish a complete set of differentials for the various value and quality characteristics of gas.' 34 F.P.C., at 368. See also 1 Joint Appendix 123—136. We believe this statement to be inapposite to the issues before us. The Commission did not create such a set of differentials; it merely posited a series of pipeline standards, and placed the responsibility for reaching specific price differentials upon the parties to each sale. It indicated that it would accept any agreement that appeared to be a good-faith effort to determine the pertinent processing costs. It should be noted that at least one witness testified that negotiation among the relevant parties is the proper method for measurement of processing costs. See 3 Joint Appendix 983. Further, various estimates of quality adjustments were provided by witnesses before the examiner. See 5 id., at 1769—1771, 1867—1899, 1907—1908. We conclude that the Commission's findings on these questions are adequately supported by the record.
91
Commissioner O'Connor argued forcefully in a concurring and dissenting opinion that the Commission's adoption of high and low Btu standards was unfair to producers. 34 F.P.C., at 267—268. The Court of Appeals indicated that it was unable to understand the reasons for the dual standard. 375 F.2d, at 31. We agree that the Commission might have dealt more clearly with these questions, but we have found no basis on which we can set aside its judgment. The Commission found that, by prevailing practice, the minimum Btu standard in the Permian Basin was 1,000 per cubic foot; the average Btu content is, however, in a range of 1,034 to 1,042 per cubic foot. 34 F.P.C., at 223, 267—268. It concluded that it would require downward price adjustments only where Btu content is less than 1,000, and permit upward adjustment only where it exceeds 1,050 per cubic foot. Although this is evidently less favorable to producers than other possible formulae, we have found no evidence that suggests that it is arbitrary, or an abuse of the Commission's authority. Compare Initial Decision, Area Rate Proceeding (Southern Louisiana Area), No. AR61—2, issued December 30, 1966, at 180—183.
92
The Commission pointed out that sellers of gas-well gas receive payments for 'liquid hydrocarbons extracted from the gas by the pipelines.' 34 F.P.C., at 1073. These payments may amount to 0.6¢ to 0.8¢ per Mcf in the Permian Basin. Ibid. An allowance of only 0.2¢ per Mcf was incorporated by stipulation in the new gas-well gas rate. Id., at 388. Moreover, producers receive 'substantial payments' for liquids extracted from oil-well gas sold under Spraberry contracts. Id., at 1073. And see n. 111, infra. Compare 34 F.P.C., at 208—209.
93
The Commission's order accepting quality statements filed by producers in the Permian Basin indicates that the adjustments average 0.78¢ per Mcf for old gas-well gas, and 0.8¢ per Mcf for old residue gas. 37 F.P.C. 52, 53.
94
Brief for the Federal Power Commission 141.
95
The Commission emphasized that because exploration 'is fraught with uncertainties foreign to its transmission,' a 'greater return' should be allowed. 34 F.P.C., at 201. Nonetheless, as we have found, the rate of return actually permitted by the Commission, after allowance for quality and other adjustments, does not substantially exceed that permitted to pipelines. We note, however, that the risks incidental to exploration have not always been thought to be greatly in excess of those incidental to transmission. See Kitch, supra, at 201. And see on the insurance principle, Nelson, Percentage Depletion and National Security, reprinted in Federal Tax Policy for Economic Growth and Stability, papers submitted to the Joint Committee on the Economic Report, 84th Cong., 1st Sess., 463, 470 (Comm.Print 1955). See also Dirlam, Natural Gas: Cost, Conservation, and Pricing, 48 Am.Econ.Rev. 491, 498. And compare 3 Joint Appendix 907.
96
FPC v. Hope Natural Gas Co., supra, at 602, 64 S.Ct., at 288.
97
The Commission first emphasized that 'we make clear that we do not confine ourselves to a cost calculation in determining just and reasonable rates.' 34 F.P.C., at 190. It later said that 'there is no justification in this area for any adjustment of a cost-determined ceiling price.' It added that 'no such (non-cost) adjustments are required in the Permian Basin.' Id., at 207. Yet it is quite plain that the Commission's rate structure is, and was intended to be, significantly influenced by 'non-cost considerations.' Unfortunately, the Commission never paused to reconcile these general observations with the specific terms of its rate structure.
98
We understand the principal points at which the Commission employed non-cost factors to be four. It used the logic of functional pricing to justify both its two-price rate structure and its selections of sources of cost data. Second, it explained its imposition of a single maximum rate upon all old gas by, among other reasons, the importance of a relatively uncomplicated rate structure. Third, the Commission justified its adoption of a temporary period of price restriction by exigencies of area regulation. Fourth, the Commission based its calculation of the rate of return upon risk factors that it did not directly reduce to cost components.
99
We are cognizant, as presumably is the Commission, of the forceful argument that the computation of rates from costs is ultimately circular. See Kitch, supra, at 195—196; compare Kahn, supra, at 510—514. See also Eckstein, supra, at 129—131. The Commission has not, however, relied simply upon cost computations, and we have found no basis on which we could now properly set aside the Commission's orders. We assume that the Commission will continue to examine both the premises of its regulatory methods and the consequences for the industry's future of its rate-making orders. Nothing under the Act or the cases of this Court compels the Commission to reduce its regulatory functions to self-fulfilling prophecies. Compare City of Detroit, Michigan v. FPC, 97 U.S.App.D.C. 260, 230 F.2d 810, 818.
100
The ratio 'has been as high as 32.5 to 1 in 1946 and it has steadily declined to about 18.7 to 1 in 1963 * * *.' 34 F.P.C., at 183. At year end of 1965, proved recoverable reserves totaled 286.5 trillion cubic feet; withdrawals in 1965 were 16.25 trillion cubic feet. American Gas Association, 1966 Gas Facts 1 (1966). These questions may be traced in testimony at 1 Joint Appendix 20—34, 76—95, 97—111, 352—360; 2 id., at 459—471. See also Hooley, supra, 5—25.
101
In 1965, '(g)ross additions to reserves aggregated 21.3 trillion cubic feet, the third highest since the Natural Gas Reserves Committee initiated its reports in 1946.' American Gas Association, supra, at 5. Further, '(o)ver the past twenty years, gross additions have resulted in more than 343 trillion cubic feet being added to the nation's proved reserves of natural gas. During this same period, net production of natural gas totaled 207 trillion cubic feet.' Ibid. See for similar evidence, American Gas Association, 1967 Gas Facts 5 (1967). It is, however, proper to recognize that the ratio of new discoveries to annual net production has generally declined since 1946, although the decline is neither steep nor consistent. See 34 F.P.C., at 319; 1 Joint Appendix 76—95, 97—111. And see generally Cram, Introduction to the Problem of Developing Adequate Supplies of Natural Gas, Southwestern Legal Foundation, Economics of the Gas Industry 1 (1962).
102
It is pertinent that the American Gas Association in 1957 observed of the reserves-to-production ratio that so 'long as new additions exceed production there need be little cause for concern about such an hypothetical ratio.' 1957 Gas Facts 6 (1957). See for similar evidence 34 F.P.C., at 309—317.
103
The producers have argued vigorously that 20 to 1 is the minimum reserves-to-production ratio. There is, however, ample evidence to support the Commission's judgment that lower ratios are permissible. One intervenor witness forcefully described the concern for that ratio as a 'neurotic preoccupation.' 1 Joint Appendix 357. See also id., at 352—360; and 2 id., at 459—471. These questions are usefully discussed in Terry, Future Life of the Natural Gas Industry, Southwestern Legal Foundation, supra, at 275, 284—285; and in Netschert, Economic Aspects of Natural Gas Supply, id., at 27, 56—68.
104
Indeed, the Commission described the adequacy of reserves as 'an important factor in our determination here,' and said that it will 'continue to be an important factor in reviewing area rates in the future * * *.' 34 F.P.C., at 185.
105
There appears to be some uncertainty about the appropriate figures. Compare Brief for the Federal Power Commission 96. The producers' use of 12.72¢ per Mcf is supported by 7 Joint Appendix 538e.
106
Certain of the producers urge that the Commission described 14.5¢ and 16.5¢, unadjusted for quality deficiencies, as the just and reasonable rates for the Permian Basin. This ellipsis may sometimes have entered the Commission's opinion, but on fair reading its intentions seem entirely clear. See 34 F.P.C., at 239.
107
It is pertinent to reiterate that the Commission has recently calculated the actual adjustments required by the quality statements filed by producers in the Permian Basin through August 31, 1966, as 0.78¢ per Mcf for old gas-well gas and 0.86¢ per Mcf for old residue gas. Area Rate Proceeding (Permian Basin Area), 37 F.P.C. 52, 53.
108
The Commission stated that 'the evidence in the record makes clear that with respect to casinghead gas and residue gas derived therefrom (which together make up by far the largest share of the Permian gas subject to quality adjustments) the costs are substantially below the 14.5 cents per Mcf ceiling price.' 34 F.P.C., at 1072. And see at 356—360.
109
The Commission pointed out that there was evidence that suggested that these payments average 0.6¢ to 0.8¢ per Mcf for gas-well gas in the Permian Basin. 34 F.P.C., at 1073.
110
The new gas-well gas rate includes a credit of 0.2¢ per Mcf for plant liquids. 34 F.P.C., at 197, 1073. This figure was determined by stipulation. Id., at 388. No such credit was included in the flowing gas rate.
111
The Spraberry, or EL Paso, contract is one which provides 'for the purchase of casinghead gas by a pipeline which processes the gas, pays the producer a contractual arrangements unless the of the extracted liquids, plus a fixed price for the residue gas delivered to the pipeline.' 34 F.P.C., at 208. The presiding examiner would have essentially prohibited such contracts in the Permian Basin, but the Commission declined to do so. Nonetheless, it asserted jurisdiction, we think properly, over the sale of casinghead gas under the contract. The Commission indicated that the producers' revenue from the contracts for the extracted liquids is 'substantial.' 34 F.P.C., at 1073.
112
Compare 34 F.P.C., at 209 and 1072.
113
The Commission's calculation of the minimum rate was, however, left largely unexplained. The Commission clearly found that 'the establishment of minimum rates in this case is in the public interest and that the price impact on the consumer will be de minimis.' 34 F.P.C., at 231. It failed to offer any explanation of its selection of 9¢ as the minimum rate, relying entirely on the examiner's preference for that figure. The examiner adopted two minimum rates: 9¢ per Mcf for residue and gas-well gas, and 7 per Mcf for casinghead gas. His calculations were evidently premised on his computation of the revenue standard for the various classes of natural gas. See id., at 369. The composite explanation for the choice of 9¢ as the area minimum rate is thus imprecise. Nonetheless, the Commission reasonably concluded that a minimum rate was imperative, and there is no evidence before us that permits the conclusion that its selection was unjust or unreasonable.
114
Two additional issues should properly be separately considered. First, the States of Texas and New Mexico have urged that we reconsider Hope, and require the Commission to give special weight to the probable effects of its orders on the economies of producing States. We have examined these contentions, but decline to modify the treatment of the similar questions in Hope. See 320 U.S., at
607—614, 64 S.Ct., at 290—293. As we said there, we do not 'suggest that Congress was unmindful of the interests of the producing states * * * when it drafted the Natural Gas Act.' Id., at 612, 64 S.Ct., at 292. But to go as far as Texas and New Mexico now ask 'raises questions of policy which go beyond our province.' Id., at 614, 64 S.Ct., at 293.
Second, the Commission indicated that it would apply these area rates to sales initiated during the pendency of these proceedings. 34 F.P.C., at 237. See order issuing certificates, id., at 418. The effect of this order is to impose these rates as the in-line rate for the Permian Basin for periods prior to the Commission's decision in these proceedings. See generally United Gas Imp. Co. v. Callery Properties, 382 U.S. 223, at 226—228, 86 S.Ct. 360, at 362—364, 15 L.Ed.2d 284. The Court of Appeals found it unnecessary to decide the propriety of this arrangement. 375 F.2d at 35—36. Nonetheless, we believe that in the circumstances here presented it is appropriate to resolve this issue without awaiting consideration by that court. Compare Chicago & N.W.R. Co. v. A., T. & S.F.R. Co., 387 U.S. 326, 355—356, 87 S.Ct. 1585, 1601 1602. We hold that the Commission was not forbidden to employ the area rates as the in-line rate for purposes of sales initiated after commencement of its proceedings, but before its final decision. The area rates were properly calculated as the just and reasonable rates for the Permian Basin for periods subsequent to the periods at issue, on the basis of cost factors believed to be stable throughout these periods. As the Commission observed, to prevent their use as the in-line rate 'would require an unending succession of Section 5 area rate proceedings, each covering only the sales instituted prior to the institution of the proceeding.' 34 F.P.C., at 237. We need not, however, determine for what further periods or in what other circumstances the Commission may use unadjusted area rates as in-line rates. Orders involving § 7 proceedings commenced after the Commission's decision in these proceedings were not before the Commission, and are not now before the Court.
115
It is, however, proper to take special notice of various arguments that have been vigorously pressed by certain of the producers. First, it is urged that the Commission should have included an allowance for federal income taxes in the rate for new gas-well gas. It appears that the producers originally presented no evidence supporting such an allowance, and that producer witnesses did not include such costs in their computations. Further, there was
evidence that the computation of such an allowance would be difficult, see 3 Joint Appendix 992, and that in any event, the producers will incur 'no Federal income tax liability at any return up to 15 percent.' 34 F.P.C., at 206. In these circumstances, we think that the Commission did not err in excluding such an allowance.
Second, it is urged that the Commission failed to include an adequate allowance for exploration costs. We must emphasize that we perceive no obligation upon the Commission, under the Constitution or the Natural Gas Act, to permit recovery of all exploration costs, regardless of their amount and prudence. Although other methods of computing these costs might have been used by the Commission, see id., at 192—193, we have found nothing that would properly permit reversal of the Commission's judgment.
Finally, Sun Oil asserts that it was at various points denied due process. It is enough to say that we have examined these contentions, and find them without substance.
116
We note that the terms of the stay entered by the Court of Appeals on January 20, 1966, would reduce this rate of interest to 4 1/2%. See 12 Transcript of Record 12, 13—14. The court offered no explanation of this modification of the Commission's orders. We perceive no basis for the court's order, particularly since the question was evidently not raised in the producers' applications to the Commission for rehearing. See § 19(b), 15 U.S.C. § 717r(b). And see Wisconsin v. FPC, 373 U.S. 294, 307, 83 S.Ct. 1266, at 1273. We hold that the Commission's order imposing interest of 7% must be restored.
117
We understand these interest rates to be in some cases 6% and in others 7%. Brief for the Federal Power Commission 169.
118
A locked-in rate is one in which an 'increased rate is later superseded by a further increase * * *.' It is thus 'effective only for the limited intervening period, called the 'locked-in' period, and retains significance in § 4(e) proceedings only in respect of its refundability if found unlawful.' Wisconsin v. FPC, supra, 373 U.S., at 298, n. 5, 83 S.Ct., at 1269.
119
See Brief for the Federal Power Commission in Nos. 72, 73, 74, October Term, 1962, 48—53.
120
Compare FPC v. Tennessee Gas Transmission Co., 371 U.S. 145, 152—153, 83 S.Ct. 211, 215—216, 9 L.Ed.2d 199.
121
We note that Mobil and others have argued vigorously that the Commission's refund formulae would impose obligations to refund amounts below the 'last clean rate.' The latter is a rate established by a final permanent certificate unconditioned by a refund obligation under either § 7 or § 4(e). The Commission concluded that it need not reach this question since 'no such situation has been presented as resulting from our order herein.' 34 F.P.C., at 1074—1075. And see Gulf Oil Corp., 35 F.P.C. 375. Given the Commission's postponement of the question, we intimate no views on the proper limitations of the Commission's authority in this regard.
1
In its effort to determine costs of production, the Commission sent out questionnaires (Appendices A, B and C), to 458 producers in the Permian Basin area, 361 of which were named respondents in these proceedings. Appendices B and C inquired as to production costs; Appendix A covered drilling costs. Appendix B was a comprehensive questionnaire designed for major producers, while Appendix C was a simplified form for small producers (those with under 10,000,000 Mcf in nationwide jurisdictional sales in 1960). Small producers, however, could answer either Appendix B or C.
The Commission received complete responses on Appendix B from 67 producers, of which 25 were small producers. Responses to Appendix C were filed by 105 small producers. (Some of the responses represented composite data for more than one company.) The Commission excluded the Appendix C replies from consideration. 34 F.P.C. 159, 213—214.
The Commission's staff used these responses to develop a composite cost of service study. The staff arranged the Appendix B replies on various charts, arraying the data from high to low in respect to various categories (e.g., total unit costs and allow-
ances, cash expense unit costs). Then, weighted cost averages were computed—i.e., the replies on Appendix B were given a weight proportional to the volume Mcf covered by the responses.
In establishing the rate for new gas-well gas, the Commission elected to proceed by determining costs on a national, rather than an area, basis. 34 F.P.C., at 191. It used the Permian questionnaire responses, however, as 'a vital source of information,' ibid., employing them in determining various components of the final national average cost. See id., at 191 200. The Commission also turned to various 'well-recognized and authoritative industry data sources (which) were utilized by various witnesses in the proceeding.' Id., at 191. These included such sources as the United States Census Bureau's Census of Mineral Industries for 1958 (wherever this source was used, the figures were trended to 1960 on the basis of the Permian questionnaire data), the 1961 Chase Manhattan Bank's Annual Analysis of the Petroleum Industry, and the 1958 Joint Association Survey (a survey made by three industry trade groups based on questionnaires mailed to all member companies).
Various adjustments were made because of factors such as atypical years or the Permian questionnaire data being disproportionate to the national figures. See 34 F.P.C., at 194 196.
The Commission's rate for flowing gas was based primarily on the questionnaire data which had been compiled by the staff into a composite cost of service study. The Commission in this instance based the ceiling price on Permian Basin area costs, although it used nationwide data in determining exploration and development costs. See 34 F.P.C., at 212—218. And, although the term 'flowing gas' was defined to include casinghead gas, residue gas derived therefrom, and old gas-well gas, the Commission used only the costs of the old gas-well gas in determining the area rate. Id., at 208—212.
2
Nor did the Commission discuss the distribution of the data within the grouping being considered—that is, matters of the concentration, symmetry, and uniformity of the data.
The Commission asserts in this Court that 'while producer costs vary widely from year to year on an individual-company basis, in the long run the costs of most producers tend to approximate the industry average.' In support of this assertion, it cites record testimony and refers to the existence of fairly stable industry averages for drilling costs of successful wells as compared with erratic figures for individual companies. Apart from the fact that not all of the testimony cited stands for the proposition stated by the Commission, but indicates at most only that there is less instability in individual producers' costs over time rather than that they tend to average out, there was conflicting testimony on the point of representativeness offered by a witness for the Sun Oil Company, who showed that certain averages were not representative of the basic data because the distribution of the data was so widely spread and skewed from the mean. The fact that there were no comprehensive cost data suitable for supplying all the necessary elements of a cost study (see 34 F.P.C., at 191) does not excuse the Commission from finding whether the data it chose to use were typical and representative. In fact, the necessity of making such a finding is accentuated, because of the number of different sources entering into the computation of virtually all of the individual cost components. See 34 F.P.C., at 191—207, 212—218.
The Commission stated that it would use national rather than area data in arriving at a cost for new gas-well gas, noting: 'It may be that in some areas production costs may vary sufficiently from the national average to warrant a different treatment but on the record in this case we agree that cost of new gas-well gas should be determined on the basis of nationwide data.' 34 F.P.C., at 191. Since the Commission was discussing the use of area versus national costs, that statement at most suggests only that the Permian
Basin composite costs did not vary sufficiently from the national average costs to warrant not using the latter, rather than that the Commission was comparing the national average with individual producer costs in the Permian Basin.
Perhaps for a group as large and diversified as that involved in this case, typical and representative averages cannot be computed. Hunt Oil Company presses this point strongly, contending that wide variations in unit costs are an inherent characteristic of gas and that a uniform ceiling rate fixed at the average composite cost level is unlawful per se because of the wide disparity in costs among different categories of gas as well as among different producers. The Commission itself noted this fact of wide variation in individual costs as part of its justification for basing costs on overall producer experience (see 34 F.P.C., at 179); but, as pointed out, it failed to go forward and determine whether the averages used to construct this overall producer experience were typical and representative. If they were not, then perhaps the Commission could have subdivided the group until it arrived at groupings whose members possessed essentially similar characteristics. Cf. United States v. Borden Co., 370 U.S. 460, 469, 82 S.Ct. 1309, 1314, 8 L.Ed.2d 627. This would not mean that the Commission would in effect be returning to an individual producer regulatory method; rather, the Commission could stop the subdivision at that point where group averages became typical and representative. But, as this case now stands, the Commission has not made the necessary findings; and, of course, this Court, lacking the required expertise, cannot undertake to supply those findings for the Commission, nor is it our function to do so. See, e.g., United States v. Abilene & S.R. Co., 265 U.S. 274, 44 S.Ct. 565, 68 L.Ed. 1016.
3
Kitch, The Permian Basin Area Rate Cases and the Regulatory Determination of Price, 116 U.Pa.L.Rev. 191, 201 (1967) (footnote omitted).
4
Counsel for the Commission observe in their brief to this Court that '(n)o more precise determination was possible in the state of the record' than the 0.7¢ to 1.5¢ range for the average adjustment for quality predicted by the Commission in its opinion denying rehearing. See 34 F.P.C., at 1073. Counsel also cite to certain record testimony and exhibits to support the Commission's determination of this 0.7¢ to 1.5¢ range.
It should be noted first that the 0.7¢ to 1.5¢ prediction is an average. I have already discussed the misleading nature of averages not found to be typical and representative, and those observations are equally pertinent here. Moreover, we have no idea whether the Commission relied in making its prediction on any of the sources cited by Commission counsel to this Court.
In computing the 0.7¢ to 1.5¢ range in its opinion denying rehearing, the Commission apparently relied on Commissioner O'Connor's statement in his concurring opinion to the initial decision that the average adjustment would be between 1.0¢ and 1.7 , and then adjusted those figures to allow for certain changes made with respect to quality standards in the decision denying rehearing. But at the time of the Commission's initial decision, Commissioner O'Connor did not and could not know the costs incurred by the pipelines in bringing gas up to pipeline quality, for the pipelines' processing costs were not in the record. Commissioner O'Connor based his estimate in large part on contract exhibits, as is evident from his opinion; and he noted that a precise adjustment for quality could not be ascertained from those exhibits. See 34 F.P.C., at 266. His view of the evidence on this point was clearly stated in his opinion concurring in the denial of rehearing, in which he observed that the record 'does not permit a meaningful determination of the impact.' 34 F.P.C., at 1081.
Commission counsel also note the Examiner's finding that 1 represented a reasonable estimate for bringing new gas-well gas up to pipeline quality and 1¢ to 1.5¢ for old gas-well gas. But, as counsel admit, this finding was not made in conjunction with defining pipeline quality standards on which the costs of conforming the quality of the gas would be based. In fact, the Examiner concluded that: 'This record does not permit the determination of a complete set of quality and value differentials.' 34 F.P.C., at 370.
The percentage calculations translating the 0.7¢ to 1.5 range into terms of rate of return, which are relied upon by the Court, were presented by Commission counsel to this Court and do not appear in the Commission's opinion or in the record.
5
See N.M.Stat.Ann., c. 65 (1953); Vernon's Ann.Tex.Stat.Ann. Art. 6004—6066d (1962). In 1935, Texas, New Mexico, Kansas, Oklahoma, Illinois, and Colorado agreed upon an interstate compact for the conservation of oil and gas. Congress subsequently gave its consent to the compact on August 27, 1935, for a period of two years. Pub.Res. No. 64, 49 Stat. 939. The compact has been extended by the compacting States, with the consent of Congress, for successive periods without interruption, the latest extension being from September 1, 1967, to September 1, 1969. Pub.L. No. 90—185, 81 Stat. 560.
6
See also H.R.Doc. No. 342, 84th Cong., 2d Sess., 2 (1956).
| 78
|
391 U.S. 1
88 S.Ct. 1503
20 L.Ed.2d 381
Robert T. MATHIS, Sr., Petitioner,v.UNITED STATES.
No. 726.
Argued April 2 and 3, 1968.
Decided May 6, 1968.
Nicholas J. Capuano, Miami, Fla., for petitioner.
Daniel M. Friedman, Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Petitioner was convicted by a jury in a United States District Court on two counts charging that he knowingly filed false claims against the Government in violation of 18 U.S.C. § 2871 and sentenced to 30 months' imprisonment on each count, the sentences to run concurrently. The frauds charged were claims for tax refunds growing out of petitioner's individual income taxes for 1960 and 1961. Both income tax returns for these two years asserted receipts of income from two different companies which the government agents were unable to locate and which evidence offered tended to show were nonexistent. The amount of income claimed in each tax return was calculated in such a way as to show that these two nonexistent employers had withheld taxes sufficient to justify substantial refunds to petitioner. The Government paid the 1960 tax refund to petitioner of $885.60 as claimed, but the record fails to show whether the 1961 claimed refund was paid. A part of the evidence on which the conviction rested consisted of documents and oral statements obtained from petitioner by a government agent while petitioner was in prison serving a state sentence. Before eliciting this information, the government agent did not warn petitioner that any evidence he gave the Government could be used against him, and that he had a right to remain silent if he desired as well as a right to the presence of counsel and that if he was unable to afford counsel one would be appointed for him. At trial petitioner sought several times without success to have the judge hold hearings out of the presence of the jury to prove that his statements to the revenue agent were given without these warnings and should therefore not be used as evidence against him. For this contention he relied exclusively on our case of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The District Court rejected this contention as did the Court of Appeals in affirming. 376 F.2d 595. We granted certiorari to decide whether the Miranda case calls for reversal. We hold that it does.
2
There can be no doubt that the documents and oral statements given by petitioner to the government agent and used against him were strongly incriminating.2 In the Miranda case this Court's opinion stated at some length the constitutional reasons why one in custody who is interrogated by officers about matters that might tend to incriminate him is entitled to be warned 'that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning, if he so desires.' 384 U.S., at 479, 86 S.Ct., at 1630. The Government here seeks to escape application of the Miranda warnings on two arguments: (1) that these questions were asked as a part of a routine tax investigation where no criminal proceedings might even be brought, and (2) that the petitioner had not been put in jail by the officers questioning him, but was there for an entirely separate offense. These differences are too minor and shadowy to justify a departure from the well-considered conclusions of Miranda with reference to warnings to be given to a person held in custody.
3
It is true that a 'routine tax investigation' may be initiated for the purpose of a civil action rather than criminal prosecution. To this extent tax investigations differ from investigations of murder, robbery, and other crimes. But tax investigations frequently lead to criminal prosecutions, just as the one here did. In fact, the last visit of the revenue agent to the jail to question petitioner took place only eight days before the full-fledged criminal investigation concededly began. And as the investigating revenue agent was compelled to admit, there was always the possibility during his investigation that his work would end up in a criminal prosecution. We reject the contention that tax investigations are immune from the Miranda requirements for warnings to be given a person in custody.
4
The Government also seeks to narrow the scope of the Miranda holding by making it applicable only to questioning one who is 'in custody' in connection with the very case under investigation. There is no substance to such a distinction, and in effect it goes against the whole purpose of the Miranda decision which was designed to give meaningful protection to Fifth Amendment rights. We find nothing in the Miranda opinion which calls for a curtailment of the warnings to be given persons under interrogation by officers based on the reason why the person is in custody. In speaking of 'custody' the language of the Miranda opinion is clear and unequivocal:
5
'To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized.' 384 U.S., at 478, 86 S.Ct., at 1630.
6
And the opinion goes on to say that the person so held must be given the warnings about his right to be silent and his right to have a lawyer.
7
Thus, the courts below were wrong in permitting the introduction of petitioner's self-incriminating evidence given without warning of his right to be silent and right to counsel. The cause is reversed and remanded for further proceedings consistent with this opinion. It is so ordered.
8
Reversed and remanded.
9
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
10
Mr. Justice WHITE, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
11
I dissented from the Court's decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because I thought that the Court had accepted an interpretation of the Fifth Amendment having 'no significant support in the history of the privilege or in the language of the Fifth Amendment,' 384 U.S., at 526, 86 S.Ct., at 1655, and because I disagreed with the Court's 'assessment of the (new) rule's consequences measured against community values,' 384 U.S., at 537, 86 S.Ct., at 1660. I continue to believe that the decision in Miranda was an extravagant and unwise interpretation of the Fifth Amendment, and I would prefer that Miranda be abandoned, thus avoiding the reversal of this criminal conviction because of introduction at trial of statements by the petitioner that were unquestionably voluntary by traditional standards but were made without the petitioner's having received the so-called Miranda warnings.
12
However, even were I to agree that Miranda was correctly decided, I would not join the unexplained extention which the Court gives Miranda in this case. At issue are two questions1 asked of petitioner by an Internal Revenue agent in the course of a civil investigation. The interview was indistinguishable from the thousands of inquiries into tax liability made annually as a necessary adjunct to operation of our tax system. The Court said in Miranda that 'proper safeguards' were needed for 'in-custody interrogation of persons suspected or accused of crime,' 384 U.S., at 467, 86 S.Ct. at 1624. In this case the majority states that criminal investigation of Mathis began soon after the second of the visits to him of Revenue Agent Lawless. This suggests a view, unsupported by the record before us, that the civil investigation had raised suspicions of criminal conduct by Mathis at the time of this visit.2 However, the majority also says that 'tax investigations frequently lead to criminal prosecutions,' a hint that any in-custody questioning by an employee of the Government must be preceded by warnings if it is within the immensely broad area of investigations which 'frequently lead' to criminal inquiries. For tunately, voluntary compliance with civil regulation is widespread in this country. Nevertheless, compliance must be supplemented and encouraged by constant and widespread investigations, during which questions are asked and data are required by employees of the Government whose goal is only to settle fairly the civil accounts between the United States and its citizens. Sometimes, of course, the possibility of a criminal violation is discovered through such inquiries. I had not thought that Miranda extended its checklist of warnings to these civil investigations. Certainly the explanation of the need for warnings given in the Miranda opinion does not cover civil investigations, and the Court's opinion in this case furnishes no additional support.
13
The Court is equally cavalier in concluding that petitioner was 'in custody' in the sense in which that phrase was used in Miranda. The State of Florida was confining petitioner at the time he answered Agent Lawless' questions. But Miranda rested not on the mere fact of physical restriction but on a conclusion that coercion—pressure to answer questions—usually flows from a certain type of custody, police station interrogation of someone charged with or suspected of a crime. Although petitioner was confined, he was at the time of interrogation in familiar surroundings. Neither the record nor the Court suggests reasons why petitioner was 'coerced' into answering Lawless' questions any more than is the citizen interviewed at home by a revenue agent or interviewed in a Revenue Service office to which citizens are requested to come for interviews. The rationale of Miranda has no relevance to inquiries conducted outside the allegedly hostile and forbidding atmosphere surrounding police station interrogation of a criminal suspect. The Court's willingness to reverse without explaining why the reasons given for the Miranda decision have any relevance to the facts of this case is deeply troubling.
1
18 U.S.C. § 287 provides: 'Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be fined not more than $10,000 or imprisoned not more than five years, or both.'
2
Internal Revenue Agent Lawless testified that on October 30, 1964, he interviewed petitioner in the Florida State Penitentiary to determine if the 1960 return had been prepared by petitioner and to obtain petitioner's consent in writing to extend the statute of limitations on the 1960 return. At this interview petitioner identified the 1960 tax return and the signature thereon as his; he also signed the extension form. Again on March 2, 1965, Agent Lawless interviewed petitioner at the penitentiary, and this time petitioner identified the 1961 tax return and signature thereon as his and signed an extension form for this return.
1
Petitioner was asked whether tax returns received by the Government bearing his name had in fact been prepared by him and whether he would consent to an extension of the statute of limitations for causes of action arising from those returns.
2
A civil investigator is required, whenever and as soon as he finds 'definite indications of fraud or criminal potential,' to refer a case to the Intelligence Division for investigation by a different agent who works regularly on criminal matters. In the case before us, such a reference was made eight days after the second visit to petitioner by Agent Lawless. The criminal agent visited petitioner, gave him the full set of 'Miranda warnings,' and was told petitioner did not wish to discuss the case with him. No further questions were asked.
| 01
|
391 U.S. 53
88 S.Ct. 1649
20 L.Ed.2d 415
INTERSTATE CIRCUIT, INC., et al.v.CITY OF DALLAS.
No. 42.
CITY OF DALLAS
v.
INTERSTATE CIRCUIT, INC., et al.
No. 44.
Supreme Court of the United States
October Term, 1967.
October Term, 1967.
May 6, 1968
Grover Hartt, Jr., and Edwin Tobolowsky, for petitioners Interstate Circuit, Inc., and others.
N. Alex Bickley and Ted P. MacMaster, for the City of Dallas.
On Petitions for Writs of Certiorari to the United States Court of Appeals for the Fifth Circuit.
PER CURIAM.
1
The petitions for writs of certiorari are granted. The judgment is vacated and the cases are remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of the opinion of this Court in Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225, decided April 22, 1968.
2
Mr. Justice BLACK and Mr. Justice DOUGLAS would grant certiorari and reverse the judgment of the Court of Appeals for the reasons stated in the dissenting opinion of Mr. Justice DOUGLAS in Ginsberg v. New York, 390 U.S. 629, 650, 88 S.Ct. 1274, 1286, 20 L.Ed.2d 195, decided April 22, 1968.
| 23
|
391 U.S. 9
88 S.Ct. 1526
20 L.Ed.2d 388
FEDERAL POWER COMMISSION, Petitioner,v.SUNRAY DX OIL COMPANY et al. The UNITED GAS IMPROVEMENT COMPANY, Petitioner, v. SUNRAY DX OIL COMPANY et al. The BROOKLYN UNION GAS COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION et al. FEDERAL POWER COMMISSION, Petitioner, v. STANDARD OIL CO. OF TEXAS, etc., et al. The UNITED GAS IMPROVEMENT COMPANY, Petitioner, v. SUNRAY DX OIL COMPANY. SHELL OIL COMPANY, Petitioner, v. PUBLIC SERVICE COMM'N OF NEW YORK. SKELLY OIL COMPANY et al., Petitioners, v. PUBLIC SERVICE COMMISSION OF NEW YORK et al. FEDERAL POWER COMMISSION, Petitioner, v. PUBLIC SERVICE COMMISSION OF NEW YORK et al. The SUPERIOR OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION et al.
Nos. 60, 61, 62, 80, 97, 111, 143, 144, 231.
Argued Jan. 22 and 23, 1968.
Decided May 6, 1968.
[Syllabus from pages 9-14 intentionally omitted]
Peter H. Schiff, Washington, D.C., for Federal Power commission.
William T. Coleman, Jr., Philadelphia, Pa., and Morton L. Simons, Chicago, Ill., for Public Service Commission of New York and Distributors.
William K. Tell, Jr., Houston, Tex., Thomas G. Johnson, New York City, William T. Kilbourne, II, Francis H. Caskin and Justin R. Wolf, Washington, D.C., for the Producers.
Mr. Justice HARLAN delivered the opinion of the Court.
1
These cases present questions arising out of the issuance by the Federal Power Commission, pursuant to § 7 of the Natural Gas Act, 52 Stat. 824, as amended, 15 U.S.C. § 717f, of 'permanent' certificates authorizing producers to sell natural gas to pipelines for transportation and resale in interstate commerce.
2
An understanding of the issues requires some background. Section 7(c) of the Natural Gas Act provides that a natural gas company may engage in a sale of natural gas subject to the Commission's jurisdiction only if it has obtained from the Commission a certificate of public convenience and necessity. Such a 'permanent' certificate may issue only after notice and hearing to interested parties, although a proviso to § 7(c) enables the Commission in cases of emergency to issue temporary certificates without notice and hearing, pending the determination of an application for a permanent certificate. Section 7(e) states that permanent certificates are to be granted if, and only if, the Commission finds that the proposed sale 'is or will be required by the present or future public convenience and necessity * * *.' That section further provides that the Commission may attach to certificates 'such reasonable terms and conditions as the public convenience and necessity may require.'
3
Prior to 1954, the Commission construed the Natural Gas Act as empowering it to regulate only sales of gas by pipelines and not sales by producers. This Court held to the contrary in Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035. Since then, the Commission has been engaged in a continuing effort to adapt the provisions of the Act to regulation of producer sales. The method finally resolved upon for determining the 'just and reasonable' rate at which § 4 of the Act requires that natural gas be sold was to conduct a number of area rate proceedings, looking to the establishment of maximum producer rates within each producing area. This method of regulation has recently been approved by us in the Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312. Other area rate proceedings are underway, and they will eventually encompass areas accounting for some 90% of all the gas sold in interstate commerce. See 390 U.S., at 758, n. 18, 88 S.Ct. at 1355.
4
The decision to rely on area rate regulation as the means for establishing just and reasonable rates under §§ 4 and 5 of the Act, and its implementation, have thus far occupied more than a decade. During this period, the Commission was obliged to rest interim producer rate regulation on § 7. In the early years following this Court's first Phillips decision, supra, the Commission took a narrow view of its § 7 powers, and the field price of natural gas began to soar.1 Matters came to a head in the so-called CATCO proceeding, in which the Commission certificated the sale of the largest quantity of natural gas theretofore dedicated to interstate commerce at a price above those then prevailing, on the ground that if it denied the certificate the refusal of producers to dedicate the gas might result in an eventual shortage in supply. This Court held in Atlantic Refining Co. v. Public Service Commission (CATCO), 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312, that the Commission should have done more.
5
The Court began in CATCO by stating that the Natural Gas Act 'was so framed as to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges.' 360 U.S., at 388, 79 S.Ct., at 1253. The Court then noted that the Act required that all rates charged be 'just and reasonable.' However, the Court stated that the determination of just and reasonable rates under §§ 4 and 5 was proving to be inordinately time-consuming, and that, because those rates became effective only prospectively, the consumer had no protection from excess charges collected during the pendency of those proceedings. The Court said:
6
'(T)he inordinate delay presently existing in the processing of § 5 proceedings requires a most careful scrutiny and responsible reaction to initial price proposals of producers under § 7. * * * The fact that prices have leaped from one plateau to the higher levels of another * * * (makes) price a consideration of prime importance. This is the more important during this formative period when the ground rules of producer regulation are being evolved. * * * The Congress, in § 7(e), has authorized the Commission to condition certificates in such manner as the public convenience and necessity may require. Where the proposed price is not in keeping with the public interest because it is out of line or because its approval might result in a triggering of general price rises or an increase in the applicant's existing rates by reason of 'favored nation' clauses or otherwise, the Commission in the exercise of its discretion might attach such conditions as it believes necessary.' 360 U.S., at 391, 79 S.Ct., at 1255.
7
After the CATCO decision, the Commission, under the scrutiny of the courts, began to work out a system for determining the maximum initial prices at which gas should move, pursuant to contracts of sale, during the interval preceding establishment of just and reasonable rates. It based this 'in-line' price upon current prices for gas in the area of the proposed sale, taking into account the possibility that the proposed rate might result in other price rises due to most-favored-nation clauses.2 The Commission and courts generally excluded from consideration or gave diminished weight to those current prices which were 'suspect' because they were embodied in permanent certificates still subject to judicial review; because they were contained in temporary certificates issued on the ex parte representations of producers; or because they had been certificated in proceedings which occurred before this Court's CATCO decision or in proceedings from which representatives of East Coast consumers and distributors (commonly referred to as the 'seaboard interests') had been erroneously excluded.3 After some hesitation,4 the Commission decided to bar producers from presenting cost evidence at in-line price proceedings, on the ground that its admission would make the hearings too long-drawn-out. After determining the in-line price, the Commission conditioned the permanent certificate to provide that the producer could not initially sell the gas at a greater price. The Commission also began to condition certificates so as to limit the level to which the price might be raised, pursuant to escalation clauses in the contract, during a given period or pending completion of the relevant area rate proceeding.5
8
This Court generally approved this method of regulation in United Gas Improvement Co. v. Callery Properties, Inc., 382 U.S. 223, 86 S.Ct. 360, 15 L.Ed.2d 284. There the Court held that the Commission might properly refuse to hear cost evidence in in-line proceedings, and that the Commission might impose moratoria on price increases above specified levels. The Court also held in Callery that when issuance of permanent certificates is held on judicial review to have been erroneous, the Commission may on remand insert in the new certificates conditions requiring refund of amounts collected under the erroneously issued certificates in excess of the subsequently determined in-line price.
9
The cases now before us originated in producer applications for permanent certificates to sell gas produced in three Texas Railroad Commission districts on the Texas Gulf Coast, under contracts entered into between 1958 and 1963. The Commission's conditional certification of proposed sales in District 4, 31 F.P.C. 623, was appealed to the Court of Appeals for the Tenth Circuit. That Court upheld the Commission's price line against challenges by both producers and the seaboard interests, rejecting in particular the charge of the seaboard interests that the Commission erred in taking account of prices at which gas had been sold under temporary certificates. 370 F.2d 181. In the same opinion, the Tenth Circuit stated that the Commission had no power to order refunds of amounts collected by producers in the past under temporary certificates which contained no refund conditions and had not been appealed, and it subsequently reiterated that view in reversing on appeal a Commission decision, 36 F.P.C. 309, ordering the District 4 producers to make such refunds. 376 F.2d 578.
10
Orders of the Commission conditionally certificating the proposed sales in Districts 2 and 3, 34 F.P.C. 897 and 930, were appealed together to the Court of Appeals for the District of Columbia Circuit. In a single opinion, that court held that in the circumstances of the cases before it the Commission had erred in giving weight to sales under temporary certificates when it set the in-line prices. No issue as to refund power was raised in the District of Columbia appeal, but the court did hold that the Commission committed further error in reserving to pipeline proceedings the question, raised by seaboard interests, of whether there was a public need for the gas which was to be sold. 126 U.S.App.D.C. 26, 373 F.2d 816.
11
We granted certiorari and consolidated the cases for argument, 389 U.S. 811, 88 S.Ct. 29, 19 L.Ed.2d 64, to consider the following matters: (1) Did the Commission err in determining the in-line prices here in issue? (2) May the Commission order refunds of amounts collected under unconditioned temporary certificates in excess of the eventually determined in-line price? (3) Must the Commission, on request of interested parties, decide in the certification proceeding itself whether the gas to be sold is actually needed by the public, or may it properly deal with that issue only in pipeline proceedings? For reasons which follow, we affirm the decision of the Court of Appeals for the Tenth Circuit and reverse that of the Court of Appeals for the District of Columbia Circuit on the in-line price question. We reverse the decision of the Tenth Circuit on the refund issue and that of the District of Columbia Circuit on the matter of 'need.' We uphold the orders of the Commission in full.
I.
12
The first issue is whether the Commission acted correctly in setting the in-line prices here under review. In order adequately to resolve that question, it is necessary to have a more precise idea of the functions of in-line prices.
13
One function of an in-line price is that it serves as a 'ceiling' on the rate at which gas may be sold under the certificate containing the price condition. However, its effect in preventing contractually authorized price rises is legally limited, for under § 4 of the Act a producer is free, upon 30 days' notice to the Commission, to raise its price to the extent that its contract permits, subject to the Commission's power under § 4(e) to suspend the effectiveness of the increase for a period of five months and to order refunds if the increased rate turns out to be higher than the just and reasonable rate thereafter found for the area.6
14
A second function of an in-line price is that it constitutes a 'floor' below which the Commission may not order refunds under § 4(e) of the Act. Section 4(e) states that upon the filing of a § 4 rate increase, the Commission may on its own authority undertake a hearing to determine whether the rate is just and reasonable, simultaneously suspending the rate increase for up to five months. If the suspension period expires before the completion of the hearing, the Commission may
15
'by order, require the natural-gas company to furnish a bond * * * to refund any amounts ordered by the Commission, to keep accurate accounts in detail of all amounts received by reason of such increase * * *, and, upon completion of the hearing and decision, to (sic) order such natural-gas company to refund, with interest, the portion of such increased rates or charges by its decision found not justified.' The Commission's practice has been that when a producer files a rate increase on a contract in an area where an area rate proceeding is in progress, its application is consolidated into the area rate proceeding, thereby rendering it subject to the refund provision of § 4(e).7
16
It has sometimes been contended that when a producer operating under a non-reviewable permanent certificate increases its price under § 4, the permanently certificated price is not a lower limit on the refund power, and that if the eventual just and reasonable area rate is below the permanently certificated price, the Commission may order a refund not merely of the price increase but of the entire difference between the increased rate and the just and reasonable rate.8 The Commission has never passed on this contention,9 and this Court has twice rejected it in dictum. In Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 146, 80 S.Ct. 1392, 4 L.Ed.2d 1623, the Court interpreted § 4(e) as meaning that 'the Commission is empowered to require the company to collect the increment under bond and accounting, and refund it if it could not make out its case for the increase.' In Callery, supra, the Court stated that '(t)he fixing of an initial 'in-line' price establishes a firm price at which a producer may operate, pending determination of a just and reasonable rate, without and contingent obligation to make refunds should a just and reasonable rate turn out to be lower than the 'in-line' price.' 382 U.S., at 227, 86 S.Ct., at 363.
17
We adhere to the dicta in Callery and Sunray Mid-Continent. That outcome comports better with the language of § 4(e) than does the alternative. It is true that § 4(e) in terms gives the Commission power to refund 'the portion of such increased rates or charges' found to be excessive, and does not expressly limit the refund to the rate increase or increment. However, the accounting provision, which appears earlier in the same sentence, requires that the producer account only for the 'amounts received by reason of such increase.' If it had been intended that the refund obligation should extend to greater amounts, the accounting requirement logically should have extended to them also. Viewing the Act more broadly, there is another reason why this interpretation of § 4(e) is preferable. It seems incontestable that if a producer consistently sells gas at the price specified in a final, permanent certificate, and does not attempt to increase its price, the Commission may not order it to make refunds simply because the just and reasonable rate for its area turns out to be below the in-line price. This would amount to a reparation order, and this Court has repeatedly held that the Commission has no reparation power.10 It would be anomalous to treat an increased price as a trigger for a refund obligation which would leave the producer with a smaller net return than if it had never increased its price at all. We therefore consider and hold that an initial price which is authorized in a final, unconditioned permanent certificate is a lower limit below which a refund cannot be ordered under § 4(e).
18
Since an initial price and a refund floor conceivably may serve significantly different ends,11 we shall give separate consideration to these two functions of the in-line prices now under review. It is appropriate to begin with the initial price function, because in the proceedings before us the Commission apparently viewed the in-line prices it was setting almost entirely as initial prices and gave no explicit consideration to their effects as refund floors.12
A.
19
The thrust of this court's CATCO opinion was that the Commission should use its § 7 conditioning power to prevent large jumps in initial contract prices, pending the determination of just and reasonable rates. At one time, the Commission apparently hoped that by receiving abridged cost evidence it could establish maximum initial prices which would be near approximations of the just and reasonable rates which would later be established. The Commission eventually concluded that this hope was illfounded, and in Callery this Court approved the Commission's exclusion of cost data from certification hearings. See 382 U.S., at 228 and n. 3, 86 S.Ct., at 363.
20
In view of the Commission's decision to rely solely upon contemporaneous contract prices in setting initial rates, there can be no assurance that an initial price arrived at by the Commission will bear any particular relationship to the just and reasonable rate. Any such assurance would necessarily be based on a belief that the current contract prices in an area approximate closely the 'true' market price—the just and reasonable rate. Although there is doubtless some relationship, and some economists have argued that it is intimate,13 such a belief would contradict the basic assumption that has caused natural gas production to be subjected to regulation and which must have underlain this Court's CATCO decision namely, that the purchasing pipeline, whose cost of purchase is a current operating expense which the pipeline is entitled to pass on to its customers as part of its rates, lacks sufficient incentive to bargain prices down.14
21
One was in which the Commission might have fulfilled the CATCO mandate to ensure that the lack of purchaser bargaining incentive did not result in too drastic an interim price rise would have been to freeze prices at their pre-CATCO levels. However, this would have resulted in locking into the price structure some of the abrupt leaps in price which had occurred prior to CATCO, as well as risking the eventual erosion of producer incentive through disregard of rising costs. Hence, it was reasonable for the Commission to set initial prices by reference to contemporary contract prices, which, though not an accurate reflection of the 'true' market price, were the only indirect evidence available to the Commission of cost trends. And it was also within the Commission's discretion to exclude, where possible, those contract prices still subject to Commission and court review, because those prices might reflect price jumps impermissible under CATCO.
22
Thus, the initial price doctrine as it had developed by the time of Callery, see 382 U.S., at 226—228, 86 S.Ct., at 362—363, was a rational and permissible way of implementing the CATCO requirement. Turning to the particular proceeding now under review, we hold that the methods there used by the Commission were also acceptable ways of determining initial prices.
23
On September 28, 1960, the Commission began its post-CATCO regulation of sales in the districts here involved by issuing its Statement of General Policy No. 61—1, 24 F.P.C. 818. The Policy Statement announced the ceiling price at which new sales would be certificated in each district. For each of Texas Railroad Commission Districts 2, 3, and 4, the Policy Statement ceiling was 18¢ per Mcf (thousand cubic feet) of gas. With respect to District 4, the Commission on August 30, 1962, determined an in-line price of 15¢ per Mcf for sales contracted prior to September 28, 1960, the date of the Policy Statement. 28 F.P.C. 401. That decision is not in issue here. On the same date, the Commission scheduled a proceeding, known as the Amerada proceeding, to determine the in-line price for sales contracted between September 28, 1960, and August 30, 1962. 28 F.P.C. 396.
24
On March 23, 1964, the Commission terminated the Amerada proceeding by issuing the first of the orders here under review. 31 F.P.C. 623. The Commission determined that the in-line price for the period under study should be 16¢ per Mcf. In reaching this conclusion, the Commission relied primarily on a comparison of prices in contracts entered into during the two-year life of the Policy Statement and the preceding two years, on the ground that the in-line price should mirror the price at which substantial quantities of gas were currently moving in interstate commerce.
25
This desire to reflect current conditions also caused the Commission to give some weight to prices under temporary certificates, because only 1.4% of the gas in the area was currently moving under permanent certificates. The Commission recognized that these temporary prices were 'suspect,' and that they largely consisted of the very prices whose 'in-lineness' was then being determined. However, the Commission decided that the risk of considering such prices was overbalanced by the fact that not to take them into account would be to ignore the prices at which the great bulk of gas was then moving in commerce. The Commission did take the unreliability of the temporary prices into consideration when it refused to accept the 17.2¢ average contract price for all sales as the in-line price, relying as well upon its belief that 'the teachings of CATCO require that we draw the line at the lowest reasonable level.' 31 F.P.C., at 637. The Commission also placed 'some measure of weight' on its Policy Statement guideline price promulgated in 1960. The Commission further noted that 82% of the gas sold under post-Policy Statement contracts moved at 16¢ or more per Mcf, and stated that '(i)n the final analysis our action in fixing the price at which these sales should be certificated requires an exercise of our informed judgment and utilization of the expertise developed in the handling of thousands of producer certificate applications.' 31 F.P.C., at 636—637.
26
On appeal, the Tenth Circuit approved the Commission's partial reliance upon temporary prices and upon its Policy Statement. 370 F.2d 181. That decision is challenged by the seaboard interests, who claim that the Commission's reliance upon these 'improper' factors caused it to set too high a price for the post-Policy Statement period.
27
We cannot conclude, given the extraordinary discretion which necessarily attends such a finding as the Commission was required to make, that the Commission took into account any impermissible factors or that the resulting initial price was too high as a matter of law. The seaboard interests apparently concede that contract prices are relevant in fixing initial prices, for they do not object to the Commission's consideration of permanently certificated prices. They complain only of the weight given the guideline and temporarily certificated prices. However, permanently certificated prices are germane only because they provide some indication of cost trends. See supra, at 25—26. Guideline and temporary prices may serve the same function.
28
The Commission's District 4 guideline price, though its exact level was admittedly arbitrary, did place a 'lid' on contract prices in the area for the period. The gideline price was therefore relevant to the determination of initial prices insofar as contract prices in the area would have been higher but for the guideline price, and to the extent that those higher prices would have represented cost trends and not merely the absence of a free market. The Commission evidently did not give the guideline price great weight, since it set the initial rate some 2¢ lower. We think that the weight given was justified.
29
Consideration of the temporary prices was also warranted because they pointed to cost trends, especially in light of the fact that 98.6% of the gas was then flowing under temporary certificates. Their use had an additional justification. In District 4, the seaboard interests evidently challenged almost all applications for permanent certificates at prices above 15¢ per Mcf, thereby greatly delaying the issuance of permanent certificates at higher levels.15 Had the Commission refused to consider any but permanently certificated prices in setting the initial price, it would in effect have allowed the seaboard interests to determine that price. We consider that the Commission did not abuse its discretion in giving the temporary prices some weight.
30
Finally, we hold that the ceiling price of 16¢ was within the 'zone of reasonableness' within which the courts may not set aside rates adopted by the Commission, see, e.g., FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 585—586, 62 S.Ct. 736, 742—743, 86 L.Ed. 1037, and that it fulfilled the CATCO mandate not to allow abrupt price rises. The 16¢ price was at the lower end of the spectrum of current prices considered by the Commission, and it embodied only a 1¢ price rise.
31
To determine the in-line prices in Texas Railroad Commission Districts 2 and 3, for which the Policy Statement had also set a ceiling price of 18¢ per Mcf for sales after September 28, 1960, the Commission set two separate proceedings. The District 2 or Sinclair proceeding, scheduled on March 25, 1964, involved the establishment of in-line prices for sales under contracts executed between May 12, 1958, and January 1, 1964.16 The District 3 or Hawkins proceeding, initiated on March 30, 1964, involved sales under contracts executed between September 16, 1958, and October 1, 1963. See 31 F.P.C. 725. In both proceedings, the Commission began by dividing all of the sales in question into two groups, those contracted prior to the date of the Policy Statement and those contracted afterward. The two proceedings were terminated by two Commission orders of September 22, 1965, determining in-line prices for each area during each period. 34 F.P.C. 897, 930.
32
In the District 2 or Sinclair proceeding the Commission set an initial price of 15¢ per Mcf for the pre-Policy Statement period and 16¢ for the later period. The 15¢ price is not here in issue. The seaboard interests contend that the 16¢ price was too high. In fixing the 16¢ price, the Commission took into account five factors. First, it apparently gave full weight to the permanently certificated prices at which about 40% of the gas in the area was currently moving. Second, it gave some but 'not undue' force to the temporary prices at which 60% of the gas currently flowed. Third, it assigned 'some weight' to the original, unconditioned contract prices in the area, on the ground that those prices 'do show economic trends in the area.' 34 F.P.C., at 937. Fourth, the Commission took into consideration the 16 volumetric median price and the 15.29¢ volumetric weighted average price of all permanently and temporarily certificated sales in the area after the date of the Policy Statement. Fifth, it took into account the fact that 53% of the gas in the area was presently moving at prices at or below 16¢.
33
In the District 3 or Hawkins proceeding, the Commission fixed an initial price of 17¢ per Mcf for the post-Policy Statement period and reaffirmed an earlier-established 16¢ initial price for previous sales. The seaboard interests attack the 17¢ price as too high. Superior Oil Company asserts that both prices are too low. We confine ourselves at present to the contention of the seaboard interests. In arriving at the 17¢ price, the Commission considered five factors. First, it gave full weight to the permanently certificated sales of moderate volumes of gas at 15¢ and 16.2¢, a small volume at 16.5¢, and large volumes at 18¢. Second, it accorded 'some weight' to temporary prices. Third, it noted that the 17¢ price '(reflects) the weighted average price of 16.17 cents' for permanently certificated sales. 34 F.P.C., at 903. Fourth, it gave 'some weight' to original, unconditioned contract prices, for exactly the same reason as in Sinclair. See 34 F.P.C., at 902. Fifth, the Commission took into consideration the fact that 43% of all permanently certificated sales in the area were at prices at or above 17¢.
34
On appeal, the Court of Appeals for the District of Columbia Circuit sustained the challenge of the seaboard interests to both the Sinclair and Hawkins post-Policy Statement prices, holding that it was error for the Commission to give any consideration to temporary and unconditioned contract prices. 126 U.S.App.D.C. 26, 373 F.2d 816. That decision is attacked by all of the producer parties.
35
The producers assert that the Court of Appeals erred in holding that the Commission should not have taken into account temporary and unconditioned contract prices when it fixed the post-Policy Statement prices for Districts 2 and 3. We sustain this contention. It is true that in Districts 2 and 3 a much larger percentage of the gas was currently moving under permanent certificates than in District 4. However, for reasons which appear in our discussion of the District 4 proceedings, see supra, at 28 29, the temporary and unconditioned contract prices were nonetheless germane as indicating cost trends.17 The Commission acknowledged their relative unreliability by according them only a diminished force. In these circumstances, we cannot conclude that the Commission exceeded its authority by giving them any weight at all.
36
Nor do we find any error in the Commission's selection of the 16¢ and 17¢ initial prices from the information before it. Although these prices, and particularly the 17¢ price in Hawkins, ranged nearer the high end of the price spectrum than did the District 4 price, we cannot say that either was so high as to fall outside the 'zone of reasonableness' within which the Commission has rate-setting discretion. See supra, at 29. And since the initial prices decided upon were only 1¢ above those previously prevailing, they did not breach the CATCO directive to avoid excessively large price increases.
37
The Superior Oil Company contends that the initial prices established in District 3 for both the pre- and post-Policy Statement periods were too low for a number of reasons, mainly because the Commission excluded from consideration certain relatively high prices at which gas was presently being sold in the area. All of these challenges were rejected by the Court of Appeals for the District of Columbia Circuit.
38
The data considered by the Commission in setting the 17 District 3 post-Policy Statement price have already been described. See supra, at 31. In establishing the 16¢ pre-Policy Statement price, the Commission took into account four factors. First, it gave full force to permanently certificated sales of small volumes of gas at prices below 16¢ and of comparatively large volumes at 16¢ and 16.2¢. Second, it took into consideration the fact that 72% of all sales, comprising 'a little more than half' the total volume of gas, occurred at prices of 16¢ or less. Third, the Commission gave 'some weight' to permanently certificated sales of very large volumes of gas at 17.5¢ or above, even though it regarded those prices as suspect. Fourth, the Commission apparently took into account the weighted average price of 15.16¢ for all sales except the suspect sales at 17.5¢ and above.
39
Superior's most strongly pressed contention is that the Commission erred in allegedly failing to consider nine large-volume sales at 20¢ per Mcf when it set the 16¢ initial price for the pre-Policy Statement period. The Commission recognized in its opinion that the inclusion of these sales at full strength would have a 'strong (upward) effect' upon the average of all prices for the period. However, it concluded that the impact of the price should be 'discounted.' The Commission noted that
40
'six of the nine sales were involved in Trunkline Gas Co., et al., 21 FPC 704 * * *, with respect to which (the New York Public Service Commission's) petition for review was dismissed because not timely.' 34 F.P.C., at 902.
41
The Commission then quoted from an earlier decision, Texaco Seaboard Inc., 29 F.P.C. 593, 597, in which it discounted the effect of the same sales on the ground that they 'would have been set aside, for failure to permit a proper party to intervene, save for the procedural defect in the PSC review action in the Trunkline case.' The Commission went on to point out that two of the three remaining 20¢ sales also had been certificated in proceedings from which the exclusion of the New York Commission had been upheld on the same procedural ground.18
42
We think that the Commission acted within its discretion in discounting the force of these 20¢ sales. Those sales were out of line with respect to the price structure which emerged after CATCO, and the Commission had reason to believe that they would have been set aside on judicial review that it not been for a procedural defect. We do not think that the Commission was compelled to give full weight to these prices.
43
Superior also contends that the initial prices established for the pre-Policy Statement period were too low because the Commission excluded from consideration a number of 1955—1956 sales at 17.5¢ to Coastal Transmission Company. In justification for giving discounted effect to these prices, the Commission again cited its Texaco Seaboard decision, 29 F.P.C. 593, in which it also discounted those sales. Among the justifications put forward in Texaco Seaboard was the fact that Coastal was at the time of the sales a new pipeline company, which neither had a certificate nor was yet in operation, so that the prices may have included a higher-than-normal allowance for risk. We think that this factor alone was sufficient to justify the Commission's exercise of discretion in discounting these sales.
44
Superior next asserts that with respect to both time periods the Commission erred in failing to take account of certain prices embodied in settlement orders. It is conceded by Superior that all of these settlements occurred at the then-prevailing guideline or in-line prices enforced by the Commission.19 We hold that the Hearing Examiner and the Commission had discretion to disregard these sales, since they did not supply independent evidence of market trends.
45
Superior further complains of the Commission's alleged failure to take enough notice of temporary prices and its refusal to consider prices of intrastate sales. The Commission did give some consideration to temporary prices, see supra, at 31, 33, and for reasons which appear sufficiently from what has gone before, see supra, at 26, we hold that it did not err in refusing to give them more weight. We also hold that the Commission acted within its discretion when it rejected evidence of intra-state prices submitted by the producers on the ground that:
46
'these prices do not cover the entire area nor is there anything to show that they are representative so as to make them comparable to the interstate arrays.' 34 F.P.C., at 904.
47
Finally, Superior asserts that the Commission acted incorrectly in relying on estimated rather than actual volumes of gas sold during both periods. We find acceptable the Commission's justification, which was that actual volumes were not known for the years 1962 and 1963. Moreover, use of actual volumes would have made no significant difference, since Superior agrees20 that the only result would have been to give enhanced force to the 20¢ sales, which properly were given only slight weight.21
B.
48
We now turn to the question whether the price levels established by the Commission in these proceedings were proper when regarded as refund floors. This Court stated in CATCO that the Natural Gas Act 'was so framed as to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges.' 360 U.S., at 388, 79 S.Ct., at 1253. Since the Natural Gas Act nowhere refers to 'in-line' prices, the 'excessive rates' referred to must be rates in excess of the just and reasonable rate at which § 4(a) commands that all gas must move. Logically, this would seem to imply that to assure the 'complete, permanent and effective bond of protection' referred to, any rate permitted to be charged during the interim period before a just and reasonable rate can be determined must be accompanied by a condition rendering the producer liable for refunds down to the just and reasonable rate, should that rate prove lower than the initial rate specified in the certificate.
49
Despite this apparent logic, the Commission seems never to have imposed a refund condition of this type, though it has occasionally considered the function of an in-line price as a refund floor in determining the level of the price.22 The courts seem never to have suggested that the Commission impose such conditions. in Callery, supra, this Court without dissent approved the Commission's imposition of an initial price unaccompanied by any such refund condition. The Callery Court also held, over a single dissent, that in compelling producers to refund excess amounts charged under permanent certificates later invalidated on judicial review,
50
'the Commission could properly measure the refund by the difference between the rates charged and the 'in-line' rates to which the original certificates should have been conditioned. The Court of Appeals would delay the payment of the refund until the 'just and reasonable' rate could be determined. We have said elsewhere that it is the duty of the Commission, 'where refunds are found due, to direct their payment at the earliest possible moment consistent with due process.' Federal Power Comm'n v. Tennessee Gas Transmission Co., 371 U.S. 145, 155, 83 S.Ct. 211, 9 L.Ed.2d 199' 382 U.S., at 230, 86 S.Ct., at 364.
51
In view of the fact that an initial price and a refund floor might be used to achieve distinct regulatory goals, see supra, n. 11, it seems regretable that the Commission and courts apparently have never entertained the possibility of separating these two aspects of an 'in-line price' in particular cases. However, we think that in light of Callery and the other precedents the Commission was not obliged in this instance to give explicit consideration to the establishment of a distinct refund floor. The same factors are present here as in Callery. The need to speed refunds to consumers and to assure producers of a firm price are identical. We cannot say, therefore, that the Commission breached any duty in failing expressly to consider whether the prices it fixed were suitable when regarded as refund floors.
52
Although we have approved the in-line prices in these cases when looked at as initial prices, we have yet to examine them in their role as refund floors. Viewing them in that way, we hold that they were not impermissibly high. In the District 4 or Amerada proceeding, the only disputed price is the 16¢ price for the post-Policy Statement period. The Commission fixed that price at a point near the lower end of the price range suggested by the price evidence before it, stating:
53
'While there is evidence that points in the direction of a higher price we believe the teachings of CATCO require that we draw the line at the lowest reasonable level.' 31 F.P.C., at 637.
54
We consider that the 16¢ price was not beyond the Commission's power, when regarded as a refund floor.
55
In the District 2 or Sinclair proceeding, the only price assailed as too high is the 16¢ price for the post-Policy Statement period. That price was nearer the high end of the spectrum of suggested prices than was the price established in District 4. The Commission did not enunciate the general principle which motivated it in selecting the 16¢ price level.23 Although it would have been preferable for the Commission to have explained its reasoning, we believe that the price was permissible when regarded as a refund floor. The 16¢ price embodied an increase of only 1¢ per Mcf over the previously prevailing price. Such evidence as is now available indicates that the 16¢ price probably will not exceed the just and reasonable price which will be established for the Texas Gulf Coast in a pending area rate proceeding.24 In addition, we are not unmoved by the obvious desirability of bringing to a close this already prolonged proceeding, which belongs to an era of regulation apparently now ended.25 We therefore hold that, despite the weaknesses in the Commission's opinion, the price established was within the Commission's authority when seen as a refund floor.
56
In the District 3 or Hawkins case, the only price challenged as excessive is the 17¢ price for the post-Policy Statement period. The District 3 proceeding was similar to that in District 2 (Sinclair). The price decided upon was again nearer the high end of the suggested range than that in District 4; again the Commission did not articulate the general principles which motivated it.26 The District 3 price is even more vulnerable to attack than that in District 2, because it is 1¢ higher and therefore more likely to be above the just and reasonable rate for the Texas Gulf Coast. Yet similar considerations lead us to approve it as being within the Commission's broad discretion. The 17¢ price represented only a 1¢ increase over the Previous District 3 price. The fragmentary evidence now available about the forthcoming just and reasonable rate indicates that it will be only slightly, if at all, below 17¢.27 It is again desirable that a prolonged and outmoded proceeding be brought finally to a close. Hence, we are constrained to hold that the 17¢ District 3 price was not excessive as a matter of law, when looked at as a refund floor.
II.
57
The next major issue is whether the Commission acted within its powers when it ordered the producers in the District 4 or Amerada proceeding to refund amounts previously collected under unconditioned temporary certificates, to the extent that the prices charged under those certificates exceeded the eventual in-line price.
A.
58
Section 7(c) of the Natural Gas Act, 15 U.S.C. § 717f(c), contains a proviso which permits the Commission to 'issue a temporary certificate in cases of emergency, to assure maintenance of adequate service or to serve particular customers, without notice or hearing, pending the determination of an application for a certificate.' Most of the producers involved in the Amerada proceeding applied for and were granted such temporary certificates, authorizing them to sell gas at or below the then-guideline price of 18¢ per Mcf. The 'emergency' which most of these producers cited to justify the issuance of the certificates was an economic emergency which threatened them with loss of all or part of their gas supply unless deliveries could begin.28 Eight of the certificates contained a condition specifying that should the eventual in-line price be lower than that charged under the certificate, a refund of the difference might be ordered. The other certificates did not include an express refund condition, although they did contain general cautionary language respecting further Commission action.29
59
The history of the refund orders now under review is as follows. When seaboard interests proposed the retroactive imposition of refunds in virtually identical circumstances in the 1962 Skelly Oil Company proceeding, the Commission decided not to order refunds because 'the producers here have been operating * * * pursuant to effective temporary certificates containing no price condition, the validity of which (has) never been challenged on appeal.' 28 F.P.C. 401, 413. In denying rehearing in Skelly, the Commission amplified its reasons, stating that because there was in the temporary certificates no explicit language to warn the producers of the possibility of a refund, 'to proceed now and order the producers to make refunds would not be equitable regardless of any ultimate right we may have to order such refunds.' 28 F.P.C. 1065, 1069. While Skelly was pending on appeal in the District of Columbia Circuit, the seaboard interests moved the Commission to insert prospective refund conditions in the temporary certificates of producers in the Amerada proceeding now before us. In denying that request, the Commission stated that, because the producers had relied on the absence of refund conditions when they dedicated their gas to interstate commerce, to impose prospective refund conditions would 'so denature the value of a Commission authorization as to place any reliance upon our actions in this area in serious jeopardy.' 29 F.P.C., at 225.
60
The Court of Appeals for the District of Columbia Circuit held on appeal in Skelly, 117 U.S.App.D.C. 287, 329 F.2d 242, not only that the Commission had power to order retroactive refunds but that in the Skelly proceeding itself it should subject the question to 'a broader and more penetrating analysis.' 117 U.S.App.D.C., at 295, 329 F.2d, at 250. In its subsequent in-line price decision in Amerada, the Commission noted that in Skelly the Court of Appeals had made it clear that the refund power did not depend upon the presence of express refund conditions but upon equitable considerations. Since the hearings before the Commission in Amerada had taken place prior to the decision on appeal in Skelly, the Commission deferred decision of the refund question in Amerada, so that the parties might submit further briefs. See 31 F.P.C., at 638—639. After full briefing of the refund issue, the Commission ordered the Amerada producers to refund all sums collected under the temporary certificates in excess of the in-line rate, with the exception of amounts expended for royalties and production taxes prior to the date of the decision on appeal in Skelly and in reasonable reliance upon the Commission's orders. 36 F.P.C. 309.
61
On appeal of the Commission's Amerada order setting the in-line price and deferring the refund question, the Court of Appeals for the Tenth Circuit noted the issuance of the subsequent Commission order compelling refunds and held that the refund issue was ripe for judicial review. Relying in part upon its earlier decision in Sunray Mid-Continent Oil Co. v. FPC, 270 F.2d 404, the Tenth Circuit held that the Commission lacked power to order refunds of amounts collected under unconditioned temporary certificates. 370 F.2d 181. It reasoned that to permit such refunds would undermine producer confidence and destroy stability. When the Commission's refund orders were themselves appealed, the Tenth Circuit reaffirmed its position in a per curiam opinion. 376 F.2d 578.
B.
62
We consider that in so holding the Tenth Circuit erred. The producers' initial contention in support of the opinion below is that temporary certificates are appealable orders, and that under § 19(b) of the Natural Gas Act, 15 U.S.C. § 717r(b), review must be sought within 60 days of the issuance of the certificate and not, as here, at the time of application for a permanent certificate. We find this argument unpersuasive. Temporary certificates normally are issued ex parte, upon receipt of an application from a producer in the form of a letter.30 This procedure is authorized by a proviso to § 7(c) of the Act, quoting supra, at 40, which permits the Commission to issue temporary certificates without any notice to potentially interested persons.31 Hence, no one but the producer recipient may be aware of the issuance of a temporary certificate within the appeal period.
63
Moreover, to hold that a temporary certificate must be challenged immediately or not at all, as the producers suggest, might encourage appeals which would impair the usefulness of temporary certificates. Temporary certificates are intended to permit immediate delivery of gas in emergencies. To delay the issuance of the certificate and the flow of the gas until the completion of judicial review which might consume months or years would severely hamper the performance of this function. We therefore hold that parties, at least those other than the producer itself,32 may challenge a temporary certificate at the time a permanent certificate is applied for.
64
The producers' second argument is that a temporary certificate is a 'final' order creating vested rights, and that it may be altered only prospectively. This contention is related to the last, and has much the same flaw. To encourage early attack on temporary certificates would diminish their utility. Yet to discourage prompt challenges and simultaneously to hold that refunds could not be ordered for the interim period would in large part frustrate the objectives of the Natural Gas Act by allowing producers to operate for long intervals33 on the basis of their own representations and with only minimal regulation by the Commission.
65
The producers' third contention, which coincides with the rationale of the Tenth Circuit below and in its previous decision in Sunray Mid-Continent, supra, is that temporary certificates must be retroactively unmodifiable in order that producers may be assured of a firm price at which to operate. We cannot accept this reasoning. When a producer has requested permission to begin delivery of gas prior to completion of normal certification procedures, due to an emergency, we think it not unfair that in return for that permission it accept the risk that at the termination of those procedures the terms proposed by it may be retrospectively altered to conform to the public interest.
66
We are strengthened in that view by this Court's decision in Callery, supra. The Court there held that when a permanent certificate, containing no refund condition, is held on judicial review to have embodied too high an in-line price, the Commission may on remand condition the new permanent certificate to require refund of the excessive charges received under the old. If the producer expectations created by a permanent certificate may thus be overridden by the public interest, then the surely lesser reliance induced by an 'unconditioned' temporary certificate issued on the producer's own representations should not bar a later refund requirement. For all of these reasons, we hold that in the exercise of its power to condition permanent certificates under § 7(e), the Commission may require producers to refund amounts collected under outstanding, unconditioned temporary certificates in excess of the finally established in-line price.34
C.
67
It remains to be considered whether the Commission was precluded from exercising its refund power in the particular circumstances of the Amerada proceeding.35 The background and nature of the Amerada refund orders have already been described. We conclude that neither the procedure followed nor the result reached by the Commission in imposing the Amerada refunds amounted to an abuse of discretion.
68
The producers assert that they were entitled to an irrevocable assurance of price in order that they might rationally decide whether to dedicate their gas to interstate commerce, and so that they might plan their budgets during the lives of the temporary certificates. However, we believe that such generally worded arguments are foreclosed by our decision upholding the Commission's refund power, for in the course of that decision we rejected the producers' claim that they were legally entitled to an assurance of a firm price at which to operate. See supra, at 44 45.
69
The producers further contend that the Commission's repeated indications that it would not order refunds, see supra, at 41—42, made the ordering of refunds inequitable in this instance, in that the Commission's pronouncements caused the producers to place unusual reliance upon the prices authorized by the temporary certificates. However, this kind of reliance is precisely what the Commission gave the producers an opportunity to prove on re-briefing. We cannot say that the Commission exceeded its discretion in finding that the producers did not show such reliance as to deprive the Commission entirely of refund power in this case. We note further that the Commission did give consideration to individual pleas for relief from the refund obligation, due to alleged hardship,36 and that in other proceedings the Commission has granted such relief.37 Therefore, although it is regrettable that the road which led to these refund requirements could not have been straighter,38 we hold that the Commission did not exceed its authority.
III.
70
The third and last major issue is whether the Commission erred in failing to make a reasoned finding that there was a public need for the gas certificated in the District 2 and District 3 (Sinclair and Hawkins) proceedings. In those proceedings, the New York Public Service Commission asserted that there was no public need for the gas, alleging in particular that several of the purchasing pipelines were already obligated under 'take-or-pay' provisions of existing contracts either to take more gas than they could foreseeably use or to pay fot it.39
71
In both proceedings, the Commission refused to give more than perfunctory consideration to the issue of 'need.' Its stated justification was that the need question should be dealt with in pipeline rather than producer proceedings. The Court of Appeals for the District of Columbia Circuit held that the Commission erred in declining to come to grips with the need issue in the course of producer certification. 126 U.S.App.D.C. 26, 373 F.2d 816. That court held that the Commission should have directed itself not only to the take-or-pay positions of the purchasing pipelines but to the question whether those pipelines proposed to sell the gas to customers who would use it in an 'economically 'inferior' way.'
72
The Commission regulates pipelines in a number of different ways. When a pipeline must expand its facilities significantly in order to take on new supplies of gas, it is required by § 7(c) of the Natural Gas Act, 15 U.S.C. § 717f(c), to obtain a certificate of public convenience and necessity, which may be issued only after notice and hearing. In these certification proceedings, the Commission considers many matters, including the needs of the pipeline's customers and its gas supply.40 The Commission also grants pipelines co-called 'budget' authority to spend limited amounts on gaspurchasing facilities on an annual basis, without further Commission approval.41 This authority is granted only after notice and opportunity for objection.42 In addition, the Commission requires periodic reports from all pipelines,43 and collects and publishes material on the supply of gas, including data on the pipelines' take-or-pay positions.44
73
We think that the Commission did not abuse its discretion in deciding that the need issue, in both its take-or-pay and end-use45 aspects, can be better dealt with in such pipeline proceedings than in producer proceedings. In the first place, the requisite information is more readily available in pipeline proceedings. To resolve the take-or-pay issue, it is necessary to have information about the total gas supply of the purchasing pipeline, its outstanding sales contracts, and its take-or-pay situation under those contracts. These data normally will be in the possession of the pipeline, but not of the producer. Decision of the end-use question must be based on information not only about the customers of the purchasing pipeline but about the alternative uses to which the gas might be put by other pipelines which might buy it. This information will be known collectively by a number of pipelines; an individual producer cannot even know what customer of the purchasing pipeline will receive the gas it supplies.46 Although it might be possible for the Commission to require the relevant pipeline or pipelines to furnish all this information in each producer certification proceeding,47 that procedure would be cumbersome and would lengthen the producer proceedings, which we have previously commended the Commission for endeavoring to shorten.48
74
In the second place, there is reason to believe that the pipline proceedings, supplemented by other forms of regulation available to the Commission, will provide an adequate forum in which to confront both aspects of the need issue. Turning first to the take-or-pay question, we note that the Commission has evinced a continuing concern about it. The current adverse take-or-pay positions of some pipelines, stressed by the seaboard interests in these proceedings, apparently were due in some part to a pre-1964 Commission requirement that each pipeline maintain a twelve-year supply of gas, in order to assure adequate reserves. In 1964 this requirement was made more flexible.49 The Commission in 1965 ordered pipelines to submit more detailed reports on their contractual take-or-pay provisions.50 And in 1967, at the termination of a rule-making proceeding begun in 1961, the Commission prescribed by rule that contractual take-or-pay provisions must allow the purchasing pipeline at least five years in which to take gas previously paid for without making additional payments.51
75
Thus, the Commission itself has taken steps to alleviate take-or-pay problems. Persons who want the Commission to take additional action have adequate opportunity to present their views during the Commission's rule-making52 or pipeline proceedings. If a pipeline must build substantial new facilities to handle the gas in question, then interested persons may express their objections in the certification proceeding.53 Those who believe that a pipeline which seeks 'budget' authority is in such a take-or-pay position that it should not be allowed to acquire new gas may ask that the authority be denied or conditioned. Although some gas may be taken by pipelines through existing facilities, without even 'budget' authority,54 these opportunities for a hearing seem sufficient to protect the public interest.
76
The Commission has undertaken to assure that gas is not devoted to wasteful end uses, and this Court has upheld its exercise of such authority. See FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 83 S.Ct. 435, 5 L.Ed.2d 377. The Commission has dealt with this question primarily in pipeline certification proceedings.55 This does not seem inappropriate, since any new use of significant amounts of gas will normally entail the erection of substantial new pipeline facilities, requiring certification. Persons who anticipate that a pipeline which is seeking 'budget' authority will devote the gas to inferior end uses may request that the authority be withheld or limited. We believe that these opportunities for objection are adequate to protect the public interest in conservation of gas.
77
Of course, our approval of the Commission's decision to deal with the need question in pipeline proceedings does not imply that the Commission may neglect its statutory duty to assure that sales of gas are required by the public 'necessity.'56 This statutory obligation implies that when interested parties assert that the Commission has permitted or is about to permit the sale of significant quantities of unneeded gas, then the Commission must supply an adequate forum in which to hear their contentions. We hold only that, so far as appears from the record before us, pipeline proceedings can serve as such a forum. If subsequent events should demonstrate that existing pipeline proceedings are inadequate, then the Commission must provide new arenas for objection.
78
For the foregoing reasons, we affirm the decision of the Court of Appeals for the Tenth Circuit and reverse that of the Court of Appeals for the District of Columbia Circuit on the in-line price issue. We reverse the decision of the Tenth Circuit on the question of refunds and that of the District of Columbia Circuit on the matter of need. It is so ordered.
79
Affirmed in part and reversed in part.
80
Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
1
| 78
|
391 U.S. 145
88 S.Ct. 1444
20 L.Ed.2d 491
Gary DUNCAN, Appellant,v.STATE OF LOUISIANA.
No. 410.
Argued Jan. 17, 1968.
Decided May 20, 1968.
Rehearing Denied June 17, 1968.
See 392 U.S. 947, 88 S.Ct. 2270.
Richard B. Sobol, New Orleans, La., for appellant.
Mrs. Dorothy D. Wolbrette, New Orleans, La., for appellee.
Mr. Justice WHITE delivered the opinion of the Court.
1
Appellant, Gary Duncan, was convicted of simple battery in the Twenty-fifth Judicial District Court of Louisiana. Under Louisiana law simple battery is a misdemeanor, punishable by a maximum of two years' imprisonment and a $300 fine. Appellant sought trial by jury, but because the Louisiana Constitution grants jury trials only in cases in which capital punishment or imprisonment at hard labor may be imposed,1 the trial judge denied the request. Appellant was convicted and sentenced to serve 60 days in the parish prison and pay a fine of $150. Appellant sought review in the Supreme Court of Louisiana, asserting that the denial of jury trial violated rights guaranteed to him by the United States Constitution. The Supreme Court, finding '(n)o error of law in the ruling complained of,' denied appellant a writ of certiorari.2 Pursuant to 28 U.S.C. s 1257(2) appellant sought review in this Court, alleging that the Sixth and Fourteenth Amendments to the United States Constitution secure the right to jury trial in state criminal prosecutions where a sentence as long as two years may be imposed. We noted probable jurisdiction,3 and set the case for oral argument with No. 52, Bloom v. State of Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d —-.
2
Appellant was 19 years of age when tried. While driving on Highway 23 in Plaquemines Parish on October 18, 1966, he saw two younger cousins engaged in a conversation by the side of the road with four white boys. Knowing his cousins, Negroes who had recently transferred to a formerly all-white high school, had reported the occurrence of racial incidents at the school, Duncan stopped the car, got out, and approached the six boys. At trial the white boys and a white onlooker testified, as did appellant and his cousins. The testimony was in dispute on many points, but the witnesses agreed that appellant and the white boys spoke to each other, that appellant encouraged his cousins to break off the encounter and enter his car, and that appellant was about to enter the car himself for the purpose of driving away with his cousins. The whites testified that just before getting in the car appellant slapped Herman Landry, one of the white boys, on the elbow. The Negroes testified that appellant had not slapped Landry, but had merely touched him. The trial judge concluded that the State had proved beyond a reasonable doubt that Duncan had committed simple battery, and found him guilty.
I.
3
The Fourteenth Amendment denies the States the power to 'deprive any person of life, liberty, or property, without due process of law.' In resolving conclicting claims concerning the meaning of this spacious language, the Court has looked increasingly to the Bill of Rights for guidance; many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment. That clause now protects the right to compensation for property taken by the State;4 the rights of speech, press, and religion covered by the First Amendment;5 the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized;6 the right guaranteed by the Fifth Amendment to be free of compelled self-incrimination;7 and the Sixth Amendment rights to counsel,8 to a speedy9 and public10 trial, to confrontation of opposing witnesses,11 and to compulsory process for obtaining witnesses.12
4
The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions," Powell v. State of Alabama, 287 U.S. 45, 67, 53 S.Ct. 55, 63, 77 L.Ed. 158 (1932);13 whether it is 'basic in our system of jurisprudence,' In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948); and whether it is 'a fundamental right, essential to a fair trial,' Gideon v. Wainwright, 372 U.S. 335, 343—344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963); Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 1492, 12 L.Ed.2d 653 (1964); Pointer v. State of Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965). The claim before us is that the right to trial by jury guaranteed by the Sixth Amendment meets these tests. The position of Louisiana, on the other hand, is that the Constitution imposes upon the States no duty to give a jury trial in any criminal case, regardless of the seriousness of the crime or the size of the punishment which may be imposed. Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court would come within the Sixth Amendment's guarantee.14 Since we consider the appeal before us to be such a case, we hold that the Constitution was violated when appellant's demand for jury trial was refused.
5
The history of trial by jury in criminal cases has been frequently told.15 It is sufficient for present purposes to say that by the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to Magna Carta.16 Its preservation and proper operation as a protection against arbitrary rule were among the major objectives of the revolutionary settlement which was expressed in the Declaration and Bill of Rights of 1689. In the 18th century Blackstone could write:
6
'Our law has therefore wisely placed this strong and two-fold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince: and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control, by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have, with excellent forecast, contrived that * * * the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion.'17
7
Jury trial came to America with English colonists, and received strong support from them. Royal interference with the jury trial was deeply resented. Among the resolutions adopted by the First Congress of the American Colonies (the Stamp Act Congress) on October 19, 1765—resolutions deemed by their authors to state 'the most essential rights and liberties of the colonists'18—was the declaration:
8
'That trial by jury is the inherent and invaluable right of every British subject in these colonies.'
9
The First Continental Congress, in the resolve of October 14, 1774, objected to trials before judges dependent upon the Crown alone for their salaries and to trials in England for alleged crimes committed in the colonies; the Congress therefore declared:
10
'That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.'19
11
The Declaration of Independence stated solemn objections to the King's making 'judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries,' to his 'depriving us in many cases, of the benefits of Trial by Jury,' and to his 'transporting us beyond Seas to be tried for pretended offenses.' The Constitution itself, in Art. III, § 2, commanded:
12
'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.'
13
Objections to the Constitution because of the absence of a bill of rights were met by the immediate submission and adoption of the Bill of Rights. Included was the Sixth Amendment which, among other things, provided:
14
'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.'20
15
The constitutions adopted by the original States guaranteed jury trial. Also, the constitution of every State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases.
16
Even such skeletal history is impressive support for considering the right to jury trial in criminal cases to be fundamental to our system of justice, an importance frequently recognized in the opinions of this Court. For example, the Court has said:
17
'Those who emigrated to this country from England brought with them this great privilege 'as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power."21
18
Jury trial continues to receive strong support. The laws of every State guarantee a right to jury trial in serious criminal cases; no State has dispensed with it; nor are there significant movements underway to do so. Indeed, the three most recent state constitutional revisions, in Maryland, Michigan, and New York, carefully preserved the right of the accused to have the judgment of a jury when tried for a serious crime.22
19
We are aware of prior cases in this Court in which the prevailing opinion contains statements contrary to our holding today that the right to jury trial in serious criminal cases is a fundamental right and hence must be recognized by the States as part of their obligation to extend due process of law to all persons within their jurisdiction. Louisiana relies especially on Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597 (1900); Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); and Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). None of these cases, however, dealt with a State which had purported to dispense entirely with a jury trial in serious criminal cases. Maxwell held that no provision of the Bill of Rights applied to the States—a position long since repudiated—and that the Due Process Clause of the Fourteenth Amendment did not prevent a State from trying a defendant for a noncapital offense with fewer than 12 men on the jury. It did not deal with a case in which no jury at all had been provided. In neither Palko nor Snyder was jury trial actually at issue, although both cases contain important dicta asserting that the right to jury trial is not essential to ordered liberty and may be dispensed with by the States regardless of the Sixth and Fourteenth Amendments. These observations, though weighty and respectable, are nevertheless dicta, unsupported by holdings in this Court that a State may refuse a defendant's demand for a jury trial when he is charged with a serious crime. Perhaps because the right to jury trial was not directly at stake, the Court's remarks about the jury in Palko and Snyder took no note of past or current developments regarding jury trials, did not consider its purposes and functions, attempted no inquiry into how well it was performing its job, and did not discuss possible distinctions between civil and criminal cases. In Malloy v. Hogan, supra, the Court rejected Palko's discussion of the self-incrimination clause. Respectfully, we reject the prior dicta regarding jury trial in criminal cases.
20
The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.23 Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.
21
Of course jury trial has 'its weaknesses and the potential for misuse,' Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965). We are aware of the long debate, especially in this century, among those who write about the administration of justice, as to the wisdom of permitting untrained laymen to determine the facts in civil and criminal proceedings.24 Although the debate has been intense, with powerful voices on either side, most of the controversy has centered on the jury in civil cases. Indeed, some of the severest critics of civil juries acknowledge that the arguments for criminal juries are much stronger.25 In addition, at the heart of the dispute have been express or implicit assertions that juries are incapable of adequately understanding evidence or determining issues of fact, and that they are unpredictable, quixotic, and little better than a roll of dice. Yet, the most recent and exhaustice study of the jury in criminal cases concluded that juries do understand the evidence and come to sound conclusions in most of the cases presented to them and that when juries differ with the result at which the judge would have arrived, it is usually because they are serving some of the very purposes for which they were created and for which they are now employed.26
22
The State of Louisiana urges that holding that the Fourteenth Amendment assures a right to jury trial will cast doubt on the integrity of every trial conducted without a jury. Plainly, this is not the import of our holding. Our conclusion is that in the American States, as in the federal judicial system, a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants. We would not assert, however, that every criminal trial—or any particular trial—held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury. Thus we hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial27 and prosecuting petty crimes without extending a right to jury trial.28 However, the fact is that in most places more trials for serious crimes are to juries than to a court alone; a great many defendants prefer the judgment of a jury to that of a court.29 Even where defendants are satisfied with bench trials, the right to a jury trial very likely serves its intended purpose of making judicial or prosecutorial unfairness less likely.30
II.
23
Louisiana's final contention is that even if it must grant jury trials in serious criminal cases, the conviction before us is valid and constitutional because here the petitioner was tried for simple battery and was sentenced to only 60 days in the parish prison. We are not persuaded. It is doubtless true that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision31 and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States. Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses, Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). But the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment. District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937). The penalty authorized by the law of the locality may be taken 'as a gauge of its social and ethical judgments.' 300 U.S., at 628, 57 S.Ct., at 663, of the crime in question. In Clawans the defendant was jailed for 60 days, but it was the 90-day authorized punishment on which the Court focused in determining that the offense was not one for which the Constitution assured trial by jury. In the case before us the Legislature of Louisiana has made simple battery a criminal offense punishable by imprisonment for up to two years and a fine. The question, then, is whether a crime carrying such a penalty is an offense which Louisiana may insist on trying without a jury.
24
We think not. So-called petty offenses were tried without juries both in England and in the Colonies and have always been held to be exempt from the otherwise comprehensive language of the Sixth Amendment's jury trial provisions. There is no substantial evidence that the Framers intended to depart from this established common-law practice, and the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive nonjury adjudications. These same considerations compel the same result under the Fourteenth Amendment. Of course the boundaries of the petty offense category have always been ill-defined, if not ambulatory. In the absence of an explicit constitutional provision, the definitional task necessarily falls on the courts, which must either pass upon the validity of legislative attempts to identify those petty offenses which are exempt from jury trial or, where the legislature has not addressed itself to the problem, themselves face the question in the first instance. In either case it is necessary to draw a line in the spectrum of crime, separating petty from serious infractions. This process, although essential, cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little.
25
In determining whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial, we are counseled by District of Columbia v. Clawans, supra, to refer to objective criteria, chiefly the existing laws and practices in the Nation. In the federal system, petty offenses are defined as those punishable by no more than six months in prison and a $500 fine.32 In 49 of the 50 States crimes subject to trial without a jury, which occasionally include simple battery, are punishable by no more than one year in jail.33 Moreover, in the late 18th century in America crimes triable without a jury were for the most part punishable by no more than a six-month prison term, although there appear to have been exceptions to this rule.34 We need not, however, settle in this case the exact location of the line between petty offenses and serious crimes. It is sufficient for our purposes to hold that a crime punishable by two years in prison is, based on past and contemporary standards in this country, a serious crime and not a petty offense.35 Consequently, appellant was entitled to a jury trial and it was error to deny it.
26
The judgment below is reversed and the case is remanded for proceedings not inconsistent with this opinion.
27
Reversed and remanded.
28
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring.
29
The Court today holds that the right to trial by jury guaranteed defendants in criminal cases in federal courts by Art. III of the United States Constitution and by the Sixth Amendment is also guaranteed by the Fourteenth Amendment to defendants tried in state courts. With this holding I agree for reasons given by the Court. I also agree because of reasons given in my dissent in Adamson v. People of State of California, 332 U.S. 47, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903. In that dissent, at 90, 67 S.Ct., at 1695, I took the position, contrary to the holding in Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, that the Fourteenth Amendment made all of the provisions of the Bill of Rights applicable to the States. This Court in Palko v. State of Connecticut, 302 U.S. 319, 323, 58 S.Ct. 149, 151, 82 L.Ed. 288, decided in 1937, although saying '(t)here is no such general rule,' went on to add that the Fourteenth Amendment may make it unlawful for a State to abridge by its statutes the
30
'freedom of speech which the First Amendment safeguards against encroachment by the Congress * * * or the like freedom of the press * * * or the free exercise of religion * * * or the right of peaceable assembly * * * or the right of one accused of crime to the benefit of counsel * * *. In these and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states.' Id., at 324—325, 58 S.Ct., at 151—152.
31
And the Palko opinion went on to explain, 302 U.S., at 326, 58 S.Ct., at 152, that certain Bill of Rights' provisions were made applicable to the States by bringing them 'within the Fourteenth Amendment by a process of absorption.' Thus Twining v. State of New Jersey, supra, refused to hold that any one of the Bill of Rights' provisions was made applicable to the States by the Fourteenth Amendment, but Palko, which must be read as overruling Twining on this point, concluded that the Bill of Rights Amendments that are 'implicit in the concept of ordered liberty' are 'absorbed' by the Fourteenth as protections against state invasion. In this situation I said in Adamson v. People of State of California, 332 U.S., at 89, 67 S.Ct., at 1695 that, while 'I would * * * extend to all the people of the nation the complete protection of the Bill of Rights,' that '(i)f the choice must be between the selective process of the Palko decision applying some of the Bill of Rights to the States, or the Twining rule applying none of them, I would choose the Palko selective process.' See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. And I am very happy to support this selective process through which our Court has since the Adamson case held most of the specific Bill of Rights' protections applicable to the States to the same extent they are applicable to the Federal Government. Among these are the right to trial by jury decided today, the right against compelled self-incrimination, the right to counsel, the right to compulsory process for witnesses, the right to confront witnesses, the right to a speedy and public trial, and the right to be free from unreasonable searches and seizures.
32
All of these holdings making Bill of Rights' provisions applicable as such to the States mark, of course, a departure from the Twining doctrine holding that none of those provisions were enforceable as such against the States. The dissent in this case, however, makes a spirited and forceful defense of that now discredited doctrine. I do not believe that it is necessary for me to repeat the historical and logical reasons for my challenge to the Twining holding contained in my Adamson dissent and Appendix to it. What I wrote there in 1947 was the product of years of study and research. My appraisal of the legislative history followed 10 years of legislative experience as a Senator of the United States, not a bad way, I suspect, to learn the value of what is said in legislative debates, committee discussions, committee reports, and various other steps taken in the course of passage of bills, resolutions, and proposed constitutional amendments. My Brother HARLAN'S objections to my Adamson dissent history, like that of most of the objectors, relies most heavily on a criticism written by Professor Charles Fairman and published in the Stanford Law Review. 2 Stan.L.Rev. 5 (1949). I have read and studied this article extensively, including the historical references, but am compelled to add that in my view it has completely failed to refute the inferences and arguments that I suggested in my Adamson dissent. Professor Fairman's 'history' relies very heavily on what was not said in the state legislatures that passed on the Fourteenth Amendment. Instead of relying on this kind of negative pregnant, my legislative experience has convinced me that it is far wiser to rely on what was said, and most importantly, said by the men who actually sponsored the Amendment in the Congress. I know from my years in the United States Senate that it is to men like Congressman Bingham, who steered the Amendment through the House, and Senator Howard, who introduced it in the Senate, that members of Congress look when they seek the real meaning of what is being offered. And they vote for or against a bill based on what the sponsors of that bill and those who oppose it tell them it means. The historical appendix to my Adamson dissent leaves no doubt in my mind that both its sponsors and those who opposed it believed the Fourteenth Amendment made the first eight Amendments of the Constitution (the Bill of Rights) applicable to the States.
33
In addition to the adoption of Professor Fairman's 'history,' the dissent states that 'the great words of the four clauses of the first section of the Fourteenth Amendment would have been an exceedingly peculiar way to say that 'The rights heretofore guaranteed against federal intrusion by the first eight Amendments are henceforth guaranteed against state intrusion as well." Dissenting opinion, n. 9. In response to this I can say only that the words 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States.1 What more precious 'privilege' of American citizenship could there be than that privilege to claim the protections of our great Bill of Rights? I suggest that any reading of 'privileges or immunities of citizens of the United States' which excludes the Bill of Rights' safeguards renders the words of this section of the Fourteenth Amendment meaningless. Senator Howard, who introduced the Fourteenth Amendment for passage in the Senate, certainly read the words this way. Although I have cited his speech at length in my Adamson dissent appendix, I believe it would be worthwhile to reproduce a part of it here.
34
'Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution (the Senator had just read from the old opinion of Corfield v. Coryell, 6 Fed.Cas. 546, No. 3,230 (E.D.Pa.1825)). To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.
35
'Now, sir, here is a mass of privileges, immunities and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. * * *
36
'* * * The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.' Cong. Globe, 39th Cong., 1st Sess., 2765—2766 (1866).
37
From this I conclude, contrary to my Brother HARLAN, that if anything, it is 'exceedingly peculiar' to read the Fourteenth Amendment differently from the way I do.
38
While I do not wish at this time to discuss at length my disagreement with Brother HARLAN'S forthright and frank restatement of the now discredited Twining doctrine,2 I do want to point out what appears to me to be the basic difference between us. His view, as was indeed the view of Twining, is that 'due process is an evolving concept' and therefore that it entails a 'gradual process of judicial inclusion and exclusion' to ascertain those 'immutable principles * * * of free government which no member of the Union may disregard.' Thus the Due Process Clause is treated as prescribing no specific and clearly ascertainable constitutional command that judges must obey in interpreting the Constitution, but rather as leaving judges free to decide at any particular time whether a particular rule or judicial formulation embodies an 'immutable principl(e) of free government' or is 'implicit in the concept of ordered liberty,' or whether certain conduct 'shocks the judge's conscience' or runs counter to some other similar, undefined and undefinable standard. Thus due process, according to my Brother HARLAN, is to be a phrase with no permanent meaning, but one which is found to shift from time to time in accordance with judges' predilections and understandings of what is best for the country. If due process means this, the Fourteenth Amendment, in my opinion, might as well have been written that 'no person shall be deprived of life, liberty or property except by laws that the judges of the United States Supreme Court shall find to be consistent with the immutable principles of free government.' It is impossible for me to believe that such unconfined power is given to judges in our Constitution that is a written one in order to limit governmental power.
39
Another tenet of the Twining doctrine as restated by my Brother HARLAN is that 'due process of law requires only fundamental fairness.' But the 'fundamental fairness' test is one on a par with that of shocking the conscience of the Court. Each of such tests depends entirely on the particular judge's idea of ethics and morals instead of requiring him to depend on the boundaries fixed by the written words of the Constitution. Nothing in the history of the phrase 'due process of law' suggests that constitutional controls are to depend on any particular judge's sense of values. The origin of the Due Process Clause is Chapter 39 of Magna Carta which declares that 'No free man shall be taken, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.'3 (Emphasis added.) As early as 1354 the words 'due process of law' were used in an English statute interpreting Magna Carta,4 and by the end of the 14th century 'due process of law' and 'law of the land' were interchangeable. Thus the origin of this clause was an attempt by those who wrote Magna Carta to do away with the so-called trials of that period where people were liable to sudden arrest and summary conviction in courts and by judicial commissions with no sure and definite procedural protections and under laws that might have been improvised to try their particular cases. Chapter 39 of Magna Carta was a guarantee that the government would take neither life, liberty, nor property without a trial in accord with the law of the land that already existed at the time the alleged offense was committed. This means that the Due Process Clause gives all Americans, whoever they are and wherever they happen to be, the right to be tried by independent and unprejudiced courts using established procedures and applying valid pre-existing laws. There is not one word of legal history that justifies making the term 'due process of law' mean a guarantee of a trial free from laws and conduct which the courts deem at the time to be 'arbitrary,' 'unreasonable,' 'unfair,' or 'contrary to civilized standards.' The due process of law standard for a trial is one in accordance with the Bill of Rights and laws passed pursuant to constitutional power, guaranteeing to all alike a trial under the general law of the land.
40
Finally I want to add that I am not bothered by the argument that applying the Bill of Rights to the States 'according to the same standards that protect those personal rights against federal encroachment,'5 interferes with our concept of federalism in that it may prevent States from trying novel social and economic experiments. I have never believed that under the guise of federalism the States should be able to experiment with the protections afforded our citizens through the Bill of Rights. As Justice Goldberg said so wisely in his concurring opinion in Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923:
41
'to deny to the States the power to impair a fundamental constitutional right is not to increase federal power, but, rather, to limit the power of both federal and state governments in favor of safeguarding the fundamental rights and liberties of the individual. In my view this promotes rather than undermines the basic policy of avoiding excess concentration of power in government, federal or state, which underlies our concepts of federalism.' 380 U.S., at 414, 85 S.Ct., at 1073.
42
It seems to me totally inconsistent to advocates on the one hand, the power of this Court to strike down any state law or practice which it finds 'unreasonable' or 'unfair' and, on the other hand, urge that the States be given maximum power to develop their own laws and procedures. Yet the due process approach of my Brothers HARLAN and FORTAS (see other concurring opinion, post, p. 211.) does just that since in effect it restricts the States to practices which a majority of this Court is willing to approve on a case-by-case basis. No one is more concerned than I that the States be allowed to use the full scope of their powers as their citizens sees fit. And that is why I have continually fought against the expansion of this Court's authority over the States through the use of a broad, general interpretation of due process that permits judges to strike down state laws they do not like.
43
In closing I want to emphasize that I believe as strongly as ever that the Fourteenth Amendment was intended to make the Bill of Rights applicable to the States. I have been willing to support the selective incorporation doctrine, however, as an alternative, although perhaps less historically supportable than complete incorporation. The selective incorporation process, if used properly, does limit the Supreme Court in the Fourteenth Amendment field to specific Bill of Rights' protections only and keeps judges from roaming at will in their own notions of what policies outside the Bill of Rights are desirable and what are not. And, most importantly for me, the selective incorporation process has the virtue of having already worked to make most of the Bill of Rights' protections applicable to the States.
44
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
45
Every American jurisdiction provides for trial by jury in criminal cases. The question before us is not whether jury trial is an ancient institution, which it is; nor whether it plays a significant role in the administration of criminal justice, which it does; nor whether it will endure, which it shall. The question in this case is whether the State of Louisiana, which provides trial by jury for all felonies, is prohibited by the Constitution from trying charges of simple battery to the court alone. In my view, the answer to that question, mandated alike by our constitutional history and by the longer history of trial by jury, is clearly 'no.'
46
The States have always borne primary responsibility for operating the machinery of criminal justice within their borders, and adapting it to their particular circumstances. In exercising this responsibility, each State is compelled to conform its procedures to the requirements of the Federal Constitution. The Due Process Clause of the Fourteenth Amendment requires that those procedures be fundamentally fair in all respects. It does not, in my view, impose or encourage nationwide uniformity for its own sake; it does not command adherence to forms that happen to be old; and it does not impose on the States the rules that may be in force in the federal courts except where such rules are also found to be essential to basic fairness.
47
The Court's approach to this case is an uneasy and illogical compromise among the views of various Justices on how the Due Process Clause should be interpreted. The Court does not say that those who framed the Fourteenth Amendment intended to make the Sixth Amendment applicable to the States. And the Court concedes that it finds nothing unfair about the procedure by which the present appellant was tried. Nevertheless, the Court reverses his conviction: it holds, for some reason not apparent to me, that the Due Process Clause incorporates the particular clause of the Sixth Amendment that requires trial by jury in federal criminal cases including, as I read its opinion, the sometimes trivial accompanying baggage of judicial interpretation in federal contexts. I have raised my voice many times before against the Court's continuing undiscriminating insistence upon fastening on the States federal notions of criminal justice,1 and I must do so again in this instance. With all respect, the Court's approach and its reading of history are altogether topsy-turvy.
I.
48
I believe I am correct in saying that every member of the Court for at least the last 135 years has agreed that our Founders did not consider the requirements of the Bill of Rights so fundamental that they should operate directly against the States.2 They were wont to believe rather that the security of liberty in America rested primarily upon the dispersion of governmental power across a federal system.3 The Bill of Rights was considered unnecessary by some4 but insisted upon by others in order to curb the possibility of abuse of power by the strong central government they were creating.5
49
The Civil War Amendments dramatically altered the relation of the Federal Government to the States. The first section of the Fourteenth Amendment imposes highly significant restrictions on state action. But the restrictions are couched in very broad and general terms: citizenship; privileges and immunities; due process of law; equal protection of the laws. Consequently, for 100 years this Court has been engaged in the difficult process Professor Jaffe has well called 'the search for intermediate premises.'6 The question has been, Where does the Court properly look to find the specific rules that define and give content to such terms as 'life, liberty, or property' and 'due process of law'?
50
A few members of the Court have taken the position that the intention of those who drafted the first section of the Fourteenth Amendment was simply, and exclusively, to make the provisions of the first eight Amendments applicable to state action.7 This view has never been accepted by this Court. In my view, often expressed elsewhere,8 the first section of the Fourteenth Amendment was meant neither to incorporate, nor to be limited to, the specific guarantees of the first eight Amendments. The overwhelming historical evidence marshalled by Professor Fairman demonstrates, to me conclusively, that the Congressmen and state legislators who wrote, debated, and ratified the Fourteenth Amendment did not think they were 'incorporating' the Bill of Rights9 and the very breadth and generality of the Amendment's provisions suggest that its authors did not suppose that the Nation would always be limited to mid-19th century conceptions of 'liberty' and 'due process of law' but that the increasing experience and evolving conscience of the American people would add new 'intermediate premises.' In short, neither history, nor sense, supports using the Fourteenth Amendment to put the States in a constitutional straitjacket with respect to their own development in the administration of criminal or civil law.
51
Although I therefore fundamentally disagree with the total incorporation view of the Fourteenth Amendment, it seems to me that such a position does at least have the virtue, lacking in the Court's selective incorporation approach, of internal consistency: we look to the Bill of Rights, word for word, clause for clause, precedent for precedent because, it is said, the men who wrote the Amendment wanted it that way. For those who do not accept this 'history,' a different source of 'intermediate premises' must be found. The Bill of Rights is not necessarily irrelevant to the search for guidance in interpreting the Fourteenth Amendment, but the reason for and the nature of its relevance must be articulated.
52
Apart from the approach taken by the absolute incorporationists, I can see only one method of analysis that has any internal logic. That is to start with the words 'liberty' and 'due process of law' and attempt to define them in a way that accords with American traditions and our system of government. This approach, involving a much more discriminating process of adjudication than does 'incorporation,' is, albeit difficult, the one that was followed throughout the 19th and most of the present century. It entails a 'gradual process of judicial inclusion and exclusion,'10 seeking, with due recognition of constitutional tolerance for state experimentation and disparity, to ascertain those 'immutable principles * * * of justice which inhere in the very idea of free government which no member of the Union may disregard.'11 Due process was not restricted to rules fixed in the past, for that 'would be to deny every quality of the law but its age, and to render it incapable of progress or improvement.'12 Nor did it impose nationwide uniformity in details, for
53
'(t)he Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own modes of judicial proceeding.'13
54
Through this gradual process, this Court sought to define 'liberty' by isolating freedoms that Americans of the past and of the present considered more important than any suggested contervailing public objective. The Court also, by interpretation of the phrase 'due process of law,' enforced the Constitution's guarantee that no State may imprison an individual except by fair and impartial procedures.
55
The relationship of the Bill of Rights to this 'gradual process' seems to me to be twofold. In the first place it has long been clear that the Due Process Clause imposes some restrictions on state action that parallel Bill of Rights restrictions on federal action. Second, and more important than this accidental overlap, is the fact that the Bill of Rights is evidence, at various points, of the content Americans find in the term 'liberty' and of American standards of fundamental fairness.
56
An example, both of the phenomenon of parallelism and the use of the first eight Amendments as evidence of a historic commitment, is found in the partial definition of 'liberty' offered by Mr. Justice Holmes, dissenting in Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138.
57
'The general principle of free speech * * * must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word 'liberty' as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States.' Id., at 672, 45 S.Ct., at 632.
58
As another example, Mr. Justice Frankfurter, speaking for the Court in Wolf v. People of State of Colorado, 338 U.S. 25, 27—28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, recognized that
59
'(t)he 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. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause.'
60
The Court has also found among the procedural requirements of 'due process of law' certain rules paralleling requirements of the first eight Amendments. For example, in Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, the Court ruled that a State could not deny counsel to an accused in a capital case:
61
'The fact that the right involved is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' * * * is obviously one of those compelling considerations which must prevail in determining whether it is embraced within the due process clause of the Fourteenth Amendment, although it be specifically dealt with in another part of the Federal Constitution.' Id., at 67, 53 S.Ct., at 63. (Emphasis added.) Later, the right to counsel was extended to all felony cases.14 The Court has also ruled, for example, that 'due process' means a speedy process, so that liberty will not be long restricted prior to an adjudication, and evidence of fact will not become stale;15 that in a system committed to the resolution of issues of fact by adversary proceedings the right to confront opposing witnesses must be guaranteed;16 and that if issues of fact are tried to a jury, fairness demands a jury impartially selected.17 That these requirements are fundamental to procedural fairness hardly needs redemonstration.
62
In all of these instances, the right guaranteed against the States by the Fourteenth Amendment was one that had also been guaranteed against the Federal Government by one of the first eight Amendments. The logically critical thing, however, was not that the rights had been found in the Bill of Rights, but that they were deemed, in the context of American legal history, to be fundamental. This was perhaps best explained by Mr. Justice Cardozo, speaking for a Court that included Chief Justice Hughes and Justices Brandeis and Stone, in Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288:
63
'If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed.' Id., at 326, 58 S.Ct., at 152.
64
Referring to Powell v. State of Alabama, supra, Mr. Justice Cardozo continued:
65
'The decision did not turn upon the fact that the benefit of counsel would have been guaranteed to the defendants by the provisions of the Sixth Amendment if they had been prosecuted in a federal court. The decision turned upon the fact that in the particular situation laid before us in the evidence the benefit of counsel was essential to the substance of a hearing.' Id., at 327, 58 S.Ct., at 153.
66
Mr. Justice Cardozo then went on to explain that the Fourteenth Amendment did not impose on each State every rule of procedure that some other State, or the federal courts, thought desirable, but only those rules critical to liberty:
67
'The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence. The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' * * * Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.' Id., at 325, 58 S.Ct., at 152. (Emphasis added.)
68
Today's Court still remains unwilling to accept the total incorporationists' view of the history of the Fourteenth Amendment. This, if accepted, would afford a cogent reason for applying the Sixth Amendment to the States. The Court is also, apparently, unwilling to face the task of determining whether denial of trial by jury in the situation before us, or in other situations, is fundamentally unfair. Consequently, the Court has compromised on the ease of the incorporationist position, without its internal logic. It has simply assumed that the question before us is whether the Jury Trial Clause of the Sixth Amendment should be incorporated into the Fourteenth, jot-for-jot and case-for-case, or ignored. Then the Court merely declares that the clause in question is 'in' rather than 'out.'18
69
The Court has justified neither its starting place nor its conclusion. If the problem is to discover and articulate the rules of fundamental fairness in criminal proceedings, there is no reason to assume that the whole body of rules developed in this Court constituting Sixth Amendment jury trial must be regarded as a unit. The requirement of trial by jury in federal criminal cases has given rise to numerous subsidiary questions respecting the exact scope and content of the right. It surely cannot be that every answer the Court has given, or will give, to such a question is attributable to the Founders; or even that every rule announced carries equal conviction of this Court; still less can it be that every such subprinciple is equally fundamental to ordered liberty.
70
Examples abound. I should suppose it obviously fundamental to fairness that a 'jury' means an 'impartial jury.'19 I should think it equally obvious that the rule, imposed long ago in the federal courts, that 'jury' means 'jury of exactly twelve,'20 is not fundamental to anything: there is no significance except to mystics in the number 12. Again, trial by jury has been held to require a unanimous verdict of jurors in the federal courts,21 although unanimity has not been found essential to liberty in Britain, where the requirement has been abandoned.22
71
One further example is directly relevant here. The co-existence of a requirement of jury trial in federal criminal cases and a historic and universally recognized exception for 'petty crimes' has compelled this Court, on occasion, to decide whether a particular crime is petty, or is included within the guarantee.23 Individual cases have been decided without great conviction and without reference to a guiding principle. The Court today holds, for no discernible reason, that if and when the line is drawn its exact location will be a matter of such fundamental importance that it will be uniformly imposed on the States. This Court is compelled to decide such obscure borderline questions in the course of administering federal law. This does not mean that its decisions are demonstrably sounder than those that would be reached by state courts and legislatures, let alone that they are of such importance that fairness demands their imposition throughout the Nation.
72
Even if I could agree that the question before us is whether Sixth Amendment jury trial is totally 'in' or totally 'out,' I can find in the Court's opinion no real reasons for concluding that it should be 'in.' The basis for differentiating among clauses in the Bill of Rights cannot be that only some clauses are in the Bill of Rights, or that only some are old and much praised, or that only some have played an important role in the development of federal law. These things are true of all. The Court says that some clauses are more 'fundamental' than others, but it turns out to be using this word in a sense that would have astonished Mr. Justice Cardozo and which, in addition, is of no help. The word does not mean 'analytically critical to procedural fairness' for no real analysis of the role of the jury in making procedures fair is even attempted. Instead, the word turns out to mean 'old,' 'much praised,' and 'found in the Bill of Rights.' The definition of 'fundamental' thus turns out to be circular.
II.
73
Since, as I see it, the Court has not even come to grips with the issues in this case, it is necessary to start from the beginning. When a criminal defendant contends that his state conviction lacked 'due process of law,' the question before this Court, in my view, is whether he was denied any element of fundamental procedural fairness. Believing, as I do, that due process is an evolving concept and that old principles are subject to re-evaluation in light of later experience, I think it appropriate to deal on its merits with the question whether Louisiana denied appellant due process of law when it tried him for simple assault without a jury.
74
The obvious starting place is the fact that this Court has, in the past, held that trial by jury is not a requisite of criminal due process. In the leading case, Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597, Mr. Justice Peckham wrote as follows for the Court:24
75
'Trial by jury has never been affirmed to be a necessary requisite of due process of law. * * *
76
'* * * The right to be proceeded against only by indictment, and the right to a trial by twelve jurors, are of the same nature, and are subject to the same judgment, and the people in the several States have the same right to provide by their organic law for the change of both or either. * * * (T)he State has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution. The legislation in question is not, in our opinion, open to either of these objections.' Id., at 603—605, 20 S.Ct., at 457—458.
77
In Territory of Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016 the question was whether the Territory of Hawaii could continue its preannexation procedure of permitting conviction by nonunanimous juries. The Congressional Resolution of Annexation had provided that municipal legislation of Hawaii that was not contrary to the United States Constitution could remain in force. The Court interpreted the resolution to mean only that those requirements of the Constitution that were 'fundamental' would be binding in the Territory. After concluding that a municipal statute allowing a conviction of treason on circumstantial evidence would violate a 'fundamental' guarantee of the Constitution, the Court continued:
78
'We would even go farther, and say that most, if not all, the privileges and immunities contained in the bill of rights of the Constitution were intended to apply from the moment of annexation; but we place our decision of this case upon the ground that the two rights alleged to be violated in this case (Sixth Amendment jury trial and grand jury indictment) are not fundamental in their nature, but concern merely a method of procedure which sixty years of practice had shown to be suited to the conditions of the islands, and well calculated to conserve the rights of their citizens to their lives, their property and their wellbeing.' Id., at 217—218, 23 S.Ct., at 791.
79
Numerous other cases in this Court have assumed that jury trial is not fundamental to ordered liberty.25
80
Although it is of course open to this Court to re-examine these decisions, I can see no reason why they should now be overturned. It can hardly be said that time has altered the question, or brought significant new evidence to bear upon it. The virtues and defects of the jury system have been hotly debated for a long time,26 and are hotly debated today, without significant change in the lines of argument.27
81
The argument that jury trial is not a requisite of due process is quite simple. The central proposition of Palko, supra, a proposition to which I would adhere, is that 'due process of law' requires only that criminal trials be fundamentally fair. As stated above, apart from the theory that it was historically intended as a mere shorthand for the Bill of Rights, I do not see what else 'due process of law' can intelligibly be thought to mean. If due process of law requires only fundamental fairness,28 then the inquiry in each case must be whether a state trial process was a fair one. The Court has held, properly I think, that in an adversary process it is a requisite of fairness, for which there is no adequate substitute, that a criminal defendant be afforded a right to counsel and to cross-examine opposing witnesses. But it simply has not been demonstrated, nor, I think, can it be demonstrated, that trial by jury is the only fair means of resolving issues of fact.
82
The jury is of course not without virtues. It affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law.29 It eases the burden on judges by enabling them to share a part of their sometimes awesome responsibility.30 A jury may, at times, afford a higher justice by refusing to enforce harsh laws (although it necessarily does so haphazardly, raising the questions whether arbitrary enforcement of harsh laws is better than total enforcement, and whether the jury system is to be defended on the ground that jurors sometimes disobey their oaths).31 And the jury may, or may not, contribute desirably to the willingness of the general public to accept criminal judgments as just.32
83
It can hardly be gainsaid, however, that the principal original virtue of the jury trial—the limitations a jury imposes on a tyrannous judiciary—has largely disappeared. We no longer live in a medieval or colonial society. Judges enforce laws enacted by democratic decision, not by regal fiat. They are elected by the people or appointed by the people's elected officials, and are responsible not to a distant monarch alone but to reviewing courts, including this one.33
84
The jury system can also be said to have some inherent defects, which are multiplied by the emergence of the criminal law from the relative simplicity that existed when the jury system was devised.34 It is a cumbersome process, not only imposing great cost in time and money on both the State and the jurors themselves,35 but also contributing to delay in the machinery of justice.36 Untrained jurors are presumably less adept at reaching accurate conclusions of fact than judges, particularly if the issues are many or complex.37 And it is argued by some that trial by jury, far from increasing public respect for law, impairs it: the average man, it is said, reacts favorably neither to the notion that matters he knows to be complex are being decided by other average men,38 nor to the way the jury system distorts the process of adjudication.39
85
That trial by jury is not the only fair way of adjudicating criminal guilt is well attested by the fact that it is not the prevailing way, either in England or in this country. For England, one expert makes the following estimates. Parliament generally provides that new statutory offenses, unless they are of 'considerable gravity' shall be tried to judges; consequently, summary offenses now outnumber offenses for which jury trial is afforded by more than six to one. Then, within the latter category, 84% of all cases are in fact tried to the court. Over all, 'the ratio of defendants actually tried by jury becomes in some years little more than 1 per cent.'40
86
In the United States, where it has not been as generally assumed that jury waiver is permissible,41 the statistics are only slightly less revealing. Two experts have estimated that, of all prosecutions for crimes triable to a jury, 75% are settled by guilty plea and 40% of the remainder are tried to the court.42 In one State, Maryland, which has always provided for waiver, the rate of court trial appears in some years to have reached 90%.43 The Court recognizes the force of these statistics in stating,
87
'We would not assert, however, that every criminal trial—or any particular trial—held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.' Ante, at 158.
88
I agree. I therefore see no reason why this Court should reverse the conviction of appellant, absent any suggestion that his particular trial was in fact unfair, or compel the State of Louisiana to afford jury trial in an as yet unbounded category of cases that can, without unfairness, be tried to a court.
89
Indeed, even if I were persuaded that trial by jury is a fundamental right in some criminal cases, I could see nothing fundamental in the rule, not yet formulated by the Court, that places the prosecution of appellant for simple battery within the category of 'jury crimes' rather than 'petty crimes.' Trial by jury is ancient, it is true. Almost equally ancient, however, is the discovery that, because of it,
90
'the King's most loving Subjects are much travailed and otherwise encumbered in coming and keeping of the said six Weeks Sessions, to their Costs, Charges, Unquietness.'44
91
As a result, through the long course of British and American history, summary procedures have been used in a varying category of lesser crimes as a flexible response to the burden jury trial would otherwise impose.
92
The use of summary procedures has long been widespread. British procedure in 1776 exempted from the requirement of jury trial
93
'(v)iolations of the laws relating to liquor, trade and manufacture, labor, smuggling, traffic on the highway, the Sabbath, 'cheats,' gambling, swearing, small thefts, assaults, offenses to property, servants and seamen, vagabondage * * * (and) at least a hundred more * * *.'45 (Emphasis added.)
94
Penalties for such offenses included heavy fines (with imprisonment until they were paid), whippings, and imprisonment at hard labor.46
95
Nor had the Colonies a cleaner slate, although practices varied greatly from place to place with conditions. In Massachusetts, crimes punishable by whipping (up to 10 strokes), the stocks (up to three hours), the ducking stool, and fines and imprisonment were triable to magistrates.47 The decision of a magistrate could, in theory, be appealed to a jury, but a stiff recognizance made exercise of this right quite rare.48 New York was somewhat harsher. For example, 'anyone adjudged by two magistrates to be an idle, disorderly or vagrant person might be transported whence he came, and on reappearance be whipped from constable to constable with thirty-one lashes by each.'49 Anyone committing a criminal offense 'under the degree of Grand Larceny' and unable to furnish bail within 48 hours could be summarily tried by three justices.50 With local variations, examples could be multiplied.
96
The point is not that many offenses that English-speaking communities have, at one time or another, regarded as triable without a jury are more serious, and carry more serious penalties, than the one involved here. The point is rather that until today few people would have thought the exact location of the line mattered very much. There is no obvious reason why a jury trial is a requisite of fundamental fairness when the charge is robbery, and not a requisite of fairness when the same defendant, for the same actions, is charged with assault and petty theft.51 The reason for the historic exception for relatively minor crimes is the obvious one: the burden of jury trial was thought to outweigh its marginal advantages. Exactly why the States should not be allowed to make continuing adjustments, based on the state of their criminal dockets and the difficulty of summoning jurors, simply escapes me.
97
In sum, there is a wide range of views on the desirability of trial by jury, and on the ways to make it most effective when it is used; there is also considerable variation from State to State in local conditions such as the size of the criminal caseload, the ease or difficulty of summoning jurors, and other trial conditions bearing on fairness. We have before us, therefore, an almost perfect example of a situation in which the celebrated dictum of Mr. Justice Brandeis should be invoked. It is, he said,
98
'one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory * * *.' New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (dissenting opinion).
99
This Court, other courts, and the political process are available to correct any experiments in criminal procedure that prove fundamentally unfair to defendants. That is not what is being done today: instead, and quite without reason, the Court has chosen to impose upon every State one means of trying criminal cases; it is a good means, but it is not the only fair means, and it is not demonstrably better than the alternatives States might devise.
100
I would affirm the judgment of the Supreme Court of Louisiana.
1
La.Const., Art. VII, § 41:
'All cases in which the punishment may not be at hard labor shall * * * be tried by the judge without a jury. Cases, in which the punishment may be at hard labor, shall be tried by a jury of five, all of whom must concur to render a verdict; cases, in which the punishment is necessarily at hard labor, by a jury of twelve, nine of whom must concur to render a verdict; cases in which the punishment may be capital, by a jury of twelve, all of whom must concur to render a verdict.'
La.Rev.Stat. § 14:35 (1950):
'Simple battery is a battery, without the consent of the victim, committed without a dangerous weapon.
'Whoever commits a simple battery shall be fined not more than three hundred dollars, or imprisoned for not more than two years, or both.'
2
250 La. 253, 195 So.2d 142 (1967).
3
389 U.S. 809, 88 S.Ct. 98, 19 L.Ed.2d 63 (1967).
4
Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897).
5
See, e.g., Fiske v. State of Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108 (1927).
6
See Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
7
Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).
8
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
9
Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).
10
In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948).
11
Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
12
Washington v. State of Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).
13
Quoting from Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270 (1926).
14
In one sense recent cases applying provisions of the first eight Amendments to the States represent a new approach to the 'incorporation' debate. Earlier the Court can be seen as having asked, when inquiring into whether some particular procedural safeguard was required of a State, if a civilized system could be imagined that would not accord the particular protection. For example, Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), stated: 'The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. * * * Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.' The recent cases, on the other hand, have proceeded upon the valid assumption that state criminal processes are not imaginary and theoretical schemes but actual systems bearing virtually every characteristic of the common-law system that has been developing contemporaneously in England and in this country. The question thus is whether given this kind of system a particular procedure is
fundamental—whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty. It is this sort of inquiry that can justify the conclusions that state courts must exclude evidence seized in violation of the Fourth Amendment, Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); that state prosecutors may not comment on a defendant's failure to testify, Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); and that criminal punishment may not be imposed for the status of narcotics addiction, Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Of immediate relevance for this case are the Court's holdings that the States must comply with certain provisions of the Sixth Amendment, specifically that the States may not refuse a speedy trial, confrontation of witnesses, and the assistance, at state expense if necessary, of counsel. See cases cited in nn. 8 12, supra. Of each of these determinations that a constitutional provision originally written to bind the Federal Government should bind the States as well it might be said that the limitation in question is not necessarily fundamental to fairness in every criminal system that might be imagined but is fundamental in the context of the criminal processes maintained by the American States.
When the inquiry is approached in this way the question whether the States can impose criminal punishment without granting a jury trial appears quite different from the way it appeared in the older cases opining that States might abolish jury trial. See, e.g., Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597 (1900). A criminal process which was fair and equitable but used no juries is easy to imagine. It would make use of alternative guarantees and protections which would serve the purposes that the jury serves in the English and American systems. Yet no American State has undertaken to construct such a system. Instead, every American State, including Louisiana, uses the jury extensively, and imposes very serious punishments only after a trial at which the defendant has a right to a jury's verdict. In every State, including Louisiana, the structure and style of the criminal process—the supporting framework and the subsidiary procedures—are of the sort that naturally complement jury trial, and have developed in connection with and in reliance upon jury trial.
15
E.g., W. Forsyth, History of Trial by Jury (1852); J. Thayer, A. Preliminary Treatise on Evidence at the Common Law (1898); W. Holdsworth, History of English Law.
16
E.g., 4 W. Blackstone, Commentaries on the Laws of England 349 (Cooley ed. 1899). Historians no longer accept this pedigree. See, e.g., 1 F. Pollock & F. Maitland, The History of English Law Before the Time of Edward I, at 173, n. 3 (2d ed. 1909).
17
Blackstone, supra, at 349—350.
18
R. Perry, ed., Sources of Our Liberties 270 (1959).
19
Id., at 288.
20
Among the proposed amendments adopted by the House of Representatives in 1789 and submitted to the Senate was Article Fourteen:
'No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.'
The Senate deleted this article in adopting the amendments which became the Bill of Rights. Journal of the First Session of the Senate 72; 1 Annals of Congress 76; Brennan, The Bill of Rights and the States, in E. Cahn, The Great Rights 65, 69 (1963); E. Dumbauld, The Bill of Rights 46, 215 (1957). This relatively clear indication that the framers of the Sixth Amendment did not intend its jury trial requirement to bind the States is, of course, of little relevance to interpreting the Due Process Clause of the Fourteenth Amendment, adopted specifically to place limitations upon the States. Cf. Fiske v. State of Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108 (1927); Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629 (1925).
21
Thompson v. State of Utah, 170 U.S. 343, 349—350, 18 S.Ct. 620, 622, 42 L.Ed. 1061 (1898), quoting 2 J. Story, Commentaries on the Constitution of the United States § 1779. See also Irvin v. Dowd, 366 U.S. 717, 721—722, 81 S.Ct. 1639, 1641 1642, 6 L.Ed.2d 651 (1961); United States ex rel. Toth v. Quarles, 350 U.S. 11, 16, 76 S.Ct. 1, 4, 100 L.Ed. 8 (1955); Ex parte Milligan, 4 Wall. 2, 122—123, 18 L.Ed. 281 (1866); People v. Garbutt, 17 Mich. 9, 27 (1868).
22
Proposed Maryland Constitution, Art. 1, § 1.07 (defeated at referendum May 14, 1968); Michigan Constitution, Art. 1, § 14; Proposed New York Constitution, Art. 1, § 7b (defeated at referendum Nov. 7, 1967).
23
'The (jury trial) clause was clearly intended to protect the accused from oppression by the Government * * *.' Singer v. United States, 380 U.S. 24, 31, 83 S.Ct. 783, 788, 13 L.Ed.2d 630 (1965). 'The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.' P. Devlin, Trial by Jury 164 (1956).
24
A thorough summary of the arguments that have been made for and against jury trial and an extensive bibliography of the relevant literature is available at Hearings on Recording of Jury Deliberations before the Subcommittee to Investigate the Administration of the Internal Security Act of the Senate Committee on the Judiciary, 84th Cong., 1st Sess., 63—81 (1955). A more selective bibliography appears at H. Kalven, Jr. & H. Zeisel, The American Jury 4, n. 2 (1966).
25
E.g., J. Frank, Courts on Trial 145 (1949); H. Sidgwick, The Elements of Politics 498 (4th ed. 1919).
26
Kalven & Zeisel, n. 24, supra.
27
See Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930).
28
See Part II, infra.
29
Kalven & Zeisel, n. 24, supra, c. 2.
30
Louisiana also asserts that if due process is deemed to include the right to jury trial, States will be obligated to comply with all past interpretations of the Sixth Amendment, an amendment which in its inception was designed to control only the federal courts and which throughout its history has operated in this limited environment where uniformity is a more obvious and immediate consideration. In particular, Louisiana objects to application of the decisions of this Court interpreting the Sixth Amendment as guaranteeing a 12-man jury in serious criminal cases, Thompson v. State of Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898); as requiring a unanimous verdict before guilt can be found, Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 448, 450, 44 L.Ed. 597 (1900); and as barring procedures by which crimes subject to the Sixth Amendment jury trial provision are tried in the first instance without a jury but at the first appellate stage by de novo trial with a jury, Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 1307, 32 L.Ed. 223 (1888). It seems very unlikely to us that our decision today will require widespread changes in state criminal processes. First, our decisions interpreting the Sixth Amendment are always subject to reconsideration, a fact amply demonstrated by the instant decision. In addition, most of the States have provisions for jury trials equal in breadth to the Sixth Amendment, if that amendment is construed, as it has been, to permit the trial of petty crimes and offenses without a jury. Indeed, there appear to be only four States in which juries of fewer than 12 can be used without the defendant's consent for offenses carrying a maximum penalty of greater than one year. Only in Oregon and Louisiana can a less-than-unanimous jury convict for an offense with a maximum penalty greater than one year. However 10 States authorize first-stage trials without juries for crimes carrying lengthy penalties; these States give a convicted defendant the right to a de novo trial before a jury in a different court. The statutory provisions are listed in the briefs filed in this case.
31
Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966); District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937); Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99 (1904); Natal v. State of Louisiana, 139 U.S. 621, 11 S.Ct. 636, 35 L.Ed. 288 (1891); see Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888). See generally Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917 (1926); Kaye, Petty Offenders Have No Peers!, 26 U.Chi.L.Rev. 245 (1959).
32
18 U.S.C. § 1.
33
Indeed, there appear to be only two instances, aside from the Louisiana scheme, in which a State denies jury trial for a crime punishable by imprisonment for longer than six months. New Jersey's disorderly conduct offense, N.J.Stat.Ann. § 2A:169—4 (1953), carries one-year maximum sentence but no jury trial. The denial of jury trial was upheld by a 4—3 vote against state constitutional attack in State v. Maier, 13 N.J. 235, 99 A.2d 21 (1953). New York State provides a jury within New York City only for offenses bearing a maximum sentence greater than one year. See People v. Sanabria, 42 Misc.2d 464, 249 N.Y.S.2d 66 (Sup.Ct.1964).
34
Frankfurter & Corcoran, n. 31, supra. In the instant case Louisiana has not argued that a penalty of two years' imprisonment is sufficiently short to qualify as a 'petty offense,' but only that the penalty actually imposed on Duncan, imprisonment for 60 days, is within the petty offense category.
35
It is argued that Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), interpreted the Sixth Amendment as meaning that to the extent that the length of punishment is a relevant criterion in distinguishing between serious crimes and petty offenses, the critical factor is not the length of the sentence authorized but the length of the penalty actually imposed. In our view that case does not reach the situation where a legislative judgment as to the seriousness of the crime is imbedded in the statute in the form of an express authorization to impose a heavy penalty for the crime in question. Cheff involved criminal contempt, an offense applied to a wide range of conduct including conduct not so serious as to require jury trial absent a long sentence. In addition criminal contempt is unique in that legislative bodied frequently authorize punishment without stating the extent of the penalty which can be imposed. The contempt statute under which Cheff was prosecuted, 18 U.S.C. § 401, treated the extent of punishment as a matter to be determined by the forum court. It is therefore understandable that this Court in Cheff seized upon the penalty actually imposed as the best evidence of the seriousness of the offense for which Cheff was tried.
1
My view has been and is that the Fourteenth Amendment, as a whole, makes the Bill of Rights applicable to the States. This would certainly include the language of the Privileges and Immunities Clause, as well as the Due Process Clause.
2
For a more thorough exposition of my views against this approach to the Due Process Clause, see my concurring opinion in Rochin v. People of State of California, 342 U.S. 165, 174, 72 S.Ct. 205, 210, 96 L.Ed. 183.
3
See Murray's Lessee v. Hoboken Land and Improvement Co., 18 How. 272, 276, 15 L.Ed. 372.
4
28 Edw. 3, c. 3 (1354).
5
See Malloy v. Hogan, 378 U.S. 1, 10, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653; Pointer v. State of Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923; Miranda v. State of Arizona, 384 U.S. 436, 464, 86 S.Ct. 1602, 1622, 16 L.Ed.2d 694.
1
See, e.g., my opinions in Mapp v. Ohio, 367 U.S. 643, 672, 81 S.Ct. 1684, 1700, 6 L.Ed.2d 1081 (dissenting); Ker v. State of California, 374 U.S. 23, 44, 83 S.Ct. 1623, 1635, 10 L.Ed.2d 726 (concurring); Malloy v. Hogan, 378 U.S. 1, 14, 84 S.Ct. 1489, 1497, 12 L.Ed.2d 653 (dissenting); Pointer v. State of Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, 1070, 13 L.Ed.2d 923 (concurring); Griffin v. State of California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (concurring); Klopfer v. State of North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (concurring).
2
Barron, for Use of Tiernan v. Mayor and City Council of City of Baltimore, 7 Pet. 243, 8 L.Ed. 672 (1833), held that the first eight Amendments restricted only federal action.
3
The locus classicus for this viewpoint is The Federalist No. 51 (Madison).
4
The Bill of Rights was opposed by Hamilton and other proponents of a strong central government. See The Federalist No. 84; see generally C. Rossiter, 1787: The Grand Convention 284, 302 303.
5
In Barron, for Use of Tiernan v. Mayor and City Council of City of Baltimore, supra, 7 Pet. at 250, Chief Justice Marshall said, 'These amendments demanded security against the apprehended encroachments of the general government—not against those of the local governments.'
6
Jaffe, Was Brandeis an Activist? The Search for Intermediate Premises, 80 Harv.L.Rev. 986 (1967).
7
See Adamson v. People v. State of California, 332 U.S. 46, 71, 67 S.Ct. 1672, 1686, 91 L.Ed. 1903 (dissenting opinion of BLACK, J.); O'Neil v. State of Vermont, 144 U.S. 323, 366, 370, 12 S.Ct. 693, 709, 711, 36 L.Ed. 450 (dissenting opinion of Harlan, J.) (1892); H. Black, 'Due Process of Law,' in a Constitutional Faith 23 (1968).
8
In addition to the opinions cited in n. 1, supra, see, e.g., my opinions in Poe v. Ullman, 367 U.S. 497, 522, at 539—545, 81 S.Ct. 1752, 1774—1778, 6 L.Ed.2d 989 (dissenting), and Griswold v. State of Connecticut, 381 U.S. 479, 499, 85 S.Ct. 1678, 1689, 14 L.Ed.2d 510 (concurring).
9
Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949). professor Fairman was not content to rest upon the overwhelming
fact that the great words of the four clauses of the first section of the Fourteenth Amendment would have been an exceedingly peculiar way to say that 'The rights heretofore guaranteed against federal intrusion by the first eight Amendments are henceforth guaranteed against state intrusion as well.' He therefore sifted the mountain of material comprising the debates and committee reports relating to the Amendment in both Houses of Congress and in the state legislatures that passed upon it. He found that in the immense corpus of comments on the purpose and effects of the proposed amendment, and on its virtues and defects, there is almost no evidence whatever for 'incorporation.' The first eight Amendments are so much as mentioned by only two members of Congress, one of whom effectively demonstrated (a) that he did not understand Barron, for Use of Tiernan v. Mayor and City Council of City of Baltimore, 7 Pet. 243, 8 L.Ed. 672, and therefore did not understand the question of incorporation, and (b) that he was not himself understood by his colleagues. One state legislative committee report, rejected by the legislature as a whole, found § 1 of the Fourteenth Amendment superfluous because it duplicated the Bill of Rights: the committee obviously did not understand Barron, for Use of Tiernan v. Mayor and City Council of City of Baltimore, either. That is all Professor Fairman could find, in hundreds of pages of legislative discussion prior to passage of the Amendment, that even suggests incorporation.
To this negative evidence the judicial history of the Amendment could be added. For example, it proved possible for a Court whose members had lived through Reconstruction to reiterate the doctrine of Barron, for Use of Tiernan v. Mayor and City Council of City of Baltimore, that the Bill of Rights did not apply to the State, without so much as questioning whether the Fourteenth Amendment had any effect on the continued validity of that principle. E.g., Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678; see generally Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Judicial Interpretation, 2 Stan.L.Rev. 140 (1949).
10
Davidson v. City of New Orleans, 96 U.S. 97, 104, 24 L.Ed. 616.
11
Holden v. Hardy, 169 U.S. 366, 389, 18 S.Ct. 383, 387, 42 L.Ed. 780.
12
Hurtado v. People of State of California, 110 U.S. 516, 529, 4 S.Ct. 111, 117, 28 L.Ed. 232.
13
State of Missouri v. Lewis, 101 U.S. 22, 31, 25 L.Ed. 989.
14
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The right to counsel was found in the Fourteenth Amendment because, the Court held, it was essential to a fair trial. See 372 U.S., at 342—345, 83 S.Ct., at 795—797.
15
Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.
16
Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.
17
Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 651.
18
The same illogical way of dealing with a Fourteenth Amendment problem was employed in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, which held that the Due Process Clause guaranteed the protection of the Self-Incrimination Clause of the Fifth Amendment against state action. I disagreed at that time both with the way the question was framed and with the result the Court reached. See my dissenting opinion, id., at 14, 84 S.Ct., at 1497. I consider myself bound by the Court's holding in Malloy with respect to self-incrimination. See my concurring opinion in Griffin v. State of California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106. I do not think that Malloy held, nor would I consider myself bound by a holding, that every question arising under the Due Process Clause shall be settled by an arbitrary decision whether a clause in the Bill of Rights is 'in' or 'out.'
19
The Court has so held in, e.g., Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 651. Compare Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734.
20
E.g., Rassmussen v. United States, 197 U.S. 516, 25 S.Ct. 514, 49 L.Ed. 862.
21
E.g., Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055. With respect to the common-law number and unanimity requirements, the Court suggests that these present no problem because 'our decisions interpreting the Sixth Amendment are always subject to reconsideration * * *.' Ante, at 158, n. 30. These examples illustrate a major danger of the 'incorporation' approach—that provisions of the Bill of Rights may be watered down in the needless pursuit of uniformity. Cf. my dissenting opinion in Ker v. State of California, 374 U.S. 23, 44, 83 S.Ct. 1623, 1645, 10 L.Ed.2d 726. MR. JUSTICE WHITE alluded to this problem in his dissenting opinion in Malloy v. Hogan, supra, 378 U.S., at 38, 84 S.Ct., at 1509.
22
Criminal Justice Act of 1967, § 13.
23
E.g., Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223; District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843; District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177.
24
The precise issue is Maxwell was whether a jury of eight rather than 12 jurors could be employed in criminal prosecutions in Utah. The Court held that this was permissible because the Fourteenth Amendment did not require the States to provide trial by jury at all. The Court seems to think this was dictum. As a technical matter, however, a statement that is critical to the chain of reasoning by which a result is in fact reached does not become dictum simply because a later court can imagine a totally different way of deciding the case. See Jordan v. Commonwealth of Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038, citing Maxwell for the proposition that 'the requirement of due process does not deprive a state of the power to dispense with jury trial altogether.'
25
E.g., Irvin v. Dowd, supra, 366 U.S. 717, at 721, 81 S.Ct. 1639, at 1641, 6 L.Ed.2d 651; Fay v. People of State of New York, 332 U.S. 261, 288, 67 S.Ct. 1613, 1627, 91 L.Ed. 2043; Palko v. State of Connecticut, supra, 302 U.S., at 325, 58 S.Ct., at 152; Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674; Brown v. State of New Jersey, 175 U.S. 172, 175, 20 S.Ct. 77, 78, 44 L.Ed. 119; State of Missouri v. Lewis, supra, 101 U.S., at 31.
26
E.g., Deady, Trial by Jury, 17 Am.L.Rev. 398, 399—400 (1883):
'Still in these days of progress and experiment, when everything is on trial at the bar of human reason or conceit, it is quite the fashion to speak of jury trial as something that has outlived its usefulness. Intelligent and well-meaning people often sneer at it as an awkward and useless impediment to the speedy and correct administration of justice, and a convenient loop-hole for the escape of powerful and popular rogues. Considering the kind of jury trials we sometimes have in the United States, it must be admitted that this criticism is not without foundation.'
27
See generally Kalven, Memorandum Regarding Jury System, printed in Hearings on Recording of Jury Deliberations before the Subcommittee to Investigate the Administration of the Internal Security Act of the Senate Committee on the Judiciary, 84th Cong., 1st Sess., 63—81. In particular,
'the debate has been going on for a long time (at least since 1780) and the arguments which were advanced pro and con haven't changed much in the interim. Nor, contrary to my first impression, does there seem to be any particular period in which the debate grows hotter or colder. It has always been a hot debate.' Id., at 63.
28
See, e.g., Snyder v. Commonwealth of Massachusetts, supra, 291 U.S. 97, at 107—108, 54 S.Ct. 330, at 333 (Cardozo, J.):
'So far as the Fourteenth Amendment is concerned, the presence of a defendant (at trial) is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'
29
The point is made by, among others, A. Tocqueville. 1 Democracy in America 285 (Reeve tr.).
30
The argument is developed by Curtis, The Trial Judge and the Jury, 5 Vand.L.Rev. 150 (1952). For example,
'Juries relieve the judge of the embarrassment of making the necessary exceptions. They do this, it is true, by violating their oaths, but this, I think, is better than tempting the judge to violate his oath of office.' Id., at 157.
31
See generally G. Williams, The Proof of Guilt 257—263; W. Forsyth, History of Trial of Jury 261.
32
See J. Stephen, A General View of the Criminal Law of England 208—209.
33
See, e.g., Sunderland, The Inefficiency of the American Jury, 13 Mich.L.Rev. 302, 305:
'But times have changed, and the government itself is now under the absolute control of the people. The judges, if appointed, are selected by the agents of the people, and if elected are selected by the people directly. The need for the jury as a political weapon of defense has been steadily diminishing for a hundred years, until now the jury must find some other justification for its continuance.'
34
See, e.g., Sunderland, supra, at 303:
'Life was simple when the jury system was young, but with the steadily growing complexity of society and social practices, the facts which enter into legal controversies have become much more complex.'
35
Compare Green, Jury Injustice, 20 Jurid.Rev. 132, 133.
36
Cf. Lummus, Civil Juries and the Law's Delay, 12 B.U.L.Rev. 487.
37
See, e.g., McWhorter, Abolish the Jury, 57 Am.L.Rev. 42. Statistics on this point are difficult to accumulate for the reason that the only way to measure jury performance is to compare the result reached by a jury with the result the judge would have reached in the same case. While judge-jury comparisons have many values, it is impossible to obtain a statistical comparison of accuracy in this manner. See generally H. Kalven & H. Zeisel, The American Jury, passim.
38
E.g., Boston, Some Practical Remedies for Existing Defects in the Administration of Justice, 61 U.Pa.L.Rev. 1, 16:
'There is not one important personal or property interest, outside of a Court of justice, which any of us would willingly commit to the first twelve men that come along the street * * *.'
39
E.g., McWhorter, supra, at 46:
'It is the jury system that consumes time at the public expense in gallery playing and sensational and theatrical exhibitions before the jury, whereby the public interest and the dignity of the law are swallowed up in a morbid, partisan or emotional personal interest in the parties immediately concerned.'
40
Williams, supra, at 302.
41
For example, in the federal courts the right of the defendant to waive a jury was in doubt as recently as 1930, when it was established in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854. It was settled in New York only in 1957, People v. Carroll, 7 Misc.2d 581, 161 N.Y.S.2d 339, aff'd, 3 N.Y.2d 686, 171 N.Y.S.2d 812, 148 N.E.2d 875.
42
Kalven & Zeisel, supra, at 12—32.
43
See Oppenheim, Waiver of Trial by Jury in Criminal Cases, 25 Mich.L.Rev. 695, 728.
44
37 Hen. 8, c. 7.
45
Frankfurter and Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917, 928. The source of the authors' information is R. Burn, Justice of the Peace (1776).
46
Frankfurter & Corcoran, supra, at 930—934.
47
See, id., at 938—942.
48
Ibid.
49
Frankfurter & Corcoran, supra, at 945. They refer to the Vagrancy Act of 1721, 2 Col.L.(N.Y.) 56.
50
Frankfurter & Corcoran, supra, at 945.
51
The example is taken from Day, Petty Magistrates' Courts in Connecticut, 17 J.Crim.L.C. & P.S., 343, 346—347, cited in Kalven & Zeisel, supra, at 17. The point is that the 'huge proportion' of criminal charges for which jury trial has not been available in America, E. Puttkammer, Administration of Criminal Law 87—88, is increased by the judicious action of weary prosecutors.
| 01
|
391 U.S. 234
88 S.Ct. 1556
20 L.Ed.2d 554
James P. CARAFAS, Petitioner,v.J. Edwin LaVALLEE, Warden.
No. 71.
Argued March 27, 1968.
Decided May 20, 1968.
James J. Cally, New York City, for petitioner.
Miss Brenda Soloff, New York City, for respondent.
Mr. Justice FORTAS delivered the opinion of the Court.
1
This case has a lengthy procedural history. In 1960, petitioner was convicted of burglary and grand larceny in New York state court proceedings and was sentenced to concurrent terms of three to five years. On direct appeal (following Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)), petitioner claimed that illegally obtained evidence had been introduced against him at trial. The Appellate Division affirmed the conviction without opinion, People v. Carafas, 14 A.D.2d 886, 218 N.Y.S.2d 536 (1961), as did the New York Court of Appeals, 11 N.Y.2d 891, 227 N.Y.S.2d 926, 182 N.E. 2d 413 (1962).1 This Court denied a petition for a writ of certiorari. Carafas v. New York, 372 U.S. 948, 83 S.Ct. 944, 9 L.Ed.2d 973 (1963).
2
Thereafter, complex proceedings took place in which petitioner sought in both federal and state courts to obtain relief by writ of habeas corpus, based on his claim that illegally seized evidence was used against him. United States ex rel. Carafas v. LaVallee, 2 Cir., 334 F.2d 331 (1964); petition for writ of certiorari denied, 381 U.S. 951, 85 S.Ct. 1798, 14 L.Ed.2d 725 (1965). On November 5, 1965, the United States District Court, as directed by the United States Court of Appeals for the Second Circuit (334 F.2d 331 (1964)), heard petitioner's claim on the merits. It dismissed his petition on the ground that he had failed to show a violation of his Fourth Amendment rights. Petitioner appealed in circumstances hereinafter related. The Court of Appeals for the Second Circuit dismissed the appeal. On March 20, 1967, a petition for a writ of certiorari was filed here. We granted the petition 389 U.S. 896, 88 S.Ct. 211, 19 L.Ed.2d 213 (1967), to consider whether, because of facts to which we later refer, the Court of Appeals' dismissal conformed to our holding in Nowakowski v. Maroney, 386 U.S. 542, 87 S.Ct. 1197, 18 L.Ed.2d 282 (1967). But first we must consider the State's contention that this case is now moot because petitioner has been unconditionally released from custody.
3
Petitioner applied to the United States District Court for a writ of habeas corpus in June 1963. He was in custody at that time. On March 6, 1967, petitioner's sentence expired,2 and he was discharged from the parole status in which he had been since October 4, 1964. We issued our writ of certiorari on October 16, 1967 (389 U.S. 896, 88 S.Ct. 211, 19 L.Ed.2d 213).
4
The issue presented, then, is whether the expiration of petitioner's sentence, before his application was finally adjudicated and while it was awaiting appellate review, terminates federal jurisdiction with respect to the application. Respondent relies upon Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960), and unless this case is overruled, it stands as an insuperable barrier to our further consideration of petitioner's cause or to the grant of relief upon his petition for a writ of habeas corpus.
5
Parker v. Ellis held that when a prisoner was released from state prison after having served his full sentence, this Court could not proceed to adjudicate the merits of the claim for relief on his petition for habeas corpus which he had filed with the Federal District Court. This Court held that upon petitioner's unconditional release the case became 'moot.' Parker was announced in a per curiam decision.3
6
It is clear that petitioner's cause is not moot. In consequence of his conviction, he cannot engage in certain businesses;4 he cannot serve as an official of a labor union for a specified period of time;5 he cannot vote in any election held in New York State;6 he cannot serve as a juror.7 Because of these 'disabilities or burdens (which) may flow from' petitioner's conviction, he has 'a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.' Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196 (1946). On account of these 'collateral consequences,'8 the case is not moot. Ginsberg v. New York, 390 U.S. 629, 633—634, n. 2, 88 S.Ct. 1274, 1277—1278, 20 L.Ed.2d 195 (1968); Fiswick v. United States, supra, 329 U.S. at 222, n. 10, 67 S.Ct., at 230; United States v. Morgan, 346 U.S. 502, 512—513, 74 S.Ct. 247, 253, 98 L.Ed. 248 (1954).
7
The substantial issue, however, which is posed by Parker v. Ellis, is not mootness in the technical or constitutional sense, but whether the statute defining the habeas corpus jurisdiction of the federal judiciary in respect of persons in state custody is available here. In Parker v. Ellis, as in the present case, petitioner's application was filed in the Federal District Court when he was in state custody, and in both the petitioner was unconditionally released from state custody before his case could be heard in this Court. For the reasons which we here summarize and which are stated at length in the dissenting opinions in Parker v. Ellis, we conclude that under the statutory scheme, once the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion of proceedings on such application.
8
The federal habeas corpus statute requires that the applicant must be 'in custody' when the application for habeas corpus is filed. This is required not only by the repeated references in the statute,9 but also by the history of the great writ.10 Its province, shaped to guarantee the most fundamental of all rights,11 is to provide an effective and speedy instrument by which judicial inquiry may be had into the legality of the detention of a person. See Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426.12
9
But the statute does not limit the relief that may be granted to discharge of the applicant from physical custody. Its mandate is broad with respect to the relief that may be granted. It provides that '(t)he court shall * * * dispose of the matter as law and justice require.' 28 U.S.C. § 2243. The 1966 amendments to the habeas corpus statute seem specifically to contemplate the possibility of relief other than immediate release from physical custody. At one point, the new § 2244(b) (1964 ed., Supp. II), speaks in terms of 'release from custody or other remedy.' See Peyton v. Rowe, supra; Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (1968). Cf. Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941).
10
In the present case, petitioner filed his application shortly after June 20, 1963, while he was in custody. He was not released from custody until March 6, 1967, two weeks before he filed his petition for certiorari here. During the intervening period his application was under consideration in various courts. Petitioner is entitled to consideration of his application for relief on its merits. He is suffering, and will continue to suffer, serious disabilities because of the law's complexities and not because of his fault, if his claim that he has been illegally convicted is meritorious. There is no need in the statute, the Constitution, or sound jurisprudence for denying to petitioner his ultimate day in court.
11
This case illustrates the validity of THE CHIEF JUSTICE'S criticism that the doctrine of Parker simply aggravates the hardships that may result from the 'intolerable delay(s) in affording justice.' Parker v. Ellis, supra, 362 U.S. at 585, 80 S.Ct. 909 (dissenting opinion). The petitioner in this case was sentenced in 1960. He has been attempting to litigate his constitutional claim ever since. His path has been long partly because of the inevitable delays in our court processes and partly because of the requirement that he exhaust state remedies.13 He should not be thwarted now and required to bear the consequences of assertedly unlawful conviction simply because the path has been so long that he has served his sentence.14 The federal habeas corpus statute does not require this result, and Parker v. Ellis must be overruled.
12
We turn now to the substance of the question as to which we granted certiorari. Petitioner's first hearing on the merits in the Federal District Court was held on November 5, 1965.15 The District Court dismissed the petition for habeas corpus, denying petitioner's claim that evidence used against him had been obtained by an illegal search and seizure. The District Court issued a certificate of probable cause pursuant to 28 U.S.C. § 2253 and ordered that the notice of appeal be filed without prepayment of the prescribed fee. A notice of appeal was filed, and the petitioner applied in the Court of Appeals for an order allowing him to appeal in forma pauperis. 28 U.S.C. § 1915. The State opposed petitioner's application for leave to appeal in forma pauperis and moved to dismiss the appeal on the ground that it was without merit. Petitioner filed a reply in July 1966 in which he opposed the State's motion to dismiss and in which he renewed his plea for leave to appeal in forma pauperis. On February 3, 1967, the Court of Appeals entered the following order: 'Application for Leave to Proceed in Forma Pauperis. Application denied. Motion to dismiss appeal granted.' Rehearing was thereafter denied. It is this action of the Court of Appeals that brings into issue our decision in Nowakowski v. Maroney, 386 U.S. 542, 87 S.Ct. 1197, 18 L.Ed.2d 282 (April 10, 1967).
13
In Nowakowski, we held that 'when a district judge grants * * * a certificate (of probable cause), the court of appeals must grant an appeal in forma pauperis (assuming the requisite showing of poverty), and proceed to a disposition of the appeal in accord with its ordinary procedure.' At 543, 87 S.Ct., at 1199. Although Nowakowski was decided after the Court of Appeals dismissed petitioner's appeal, its holding applies to a habeas corpus proceeding which, like this one, was not concluded at the time Nowakowski was decided. Cf. Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); see also Linkletter v. Walker, 381 U.S. 618, 628, n. 13, and 639, n. 20, 85 S.Ct. 1731, 1737, 1743, 14 L.Ed.2d 601 (1965); Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453 (1966).
14
Respondent argues that the denial of the motion to proceed in forma pauperis by the Court of Appeals in this case and the dismissal of the appeal were permissible because the Court had before it the entire District Court record and because respondent's motion to dismiss and petitioner's reply contained some argument on the merits. Nothing in the order entered by the Court of Appeals, however, indicates that the appeal was duly considered on its merits as Nowakowski requires in cases where a certificate of probable cause has been granted. Although Nowakowski does not necessarily require that the Court of Appeals give the parties full opportunity to submit briefs and argument in an appeal which, despite the issuance, of the certificate of probable cause, is frivolous, enough must appear to demonstrate the basis for the court's summary action. Anything less than this, as we held in Nowakowski, would negate the office of the certificate of probable cause. Indeed, it appears that since Nowakowski, the Court of Appeals for the Second Circuit has accorded this effect to that ruling. The State informs us that 'it appears to be the policy of the Court of Appeals for the Second Circuit that in cases where habeas corpus appeals have been dismissed, reargument will be granted and the appeal reinstated where the time to apply for certiorari had not expired prior to the decision in Nowakowski.' Brief for respondent 22—23.
15
Accordingly, the judgment below is vacated and the case is remanded to the United States Court of Appeals for the Second Circuit for further proceedings consistent with this opinion.
16
It is so ordered.
17
Judgment vacated and case remanded.
18
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
19
Mr. Justice HARLAN and Mr. Justice STEWART, concurring.
20
Although we joined the per curiam decision in Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963, we are now persuaded that what the Court there decided was wrong insofar as it held that even though a man be in custody when he initiates a habeas corpus proceeding, the statutory power of the federal courts to proceed to a final adjudication of his claims depends upon his remaining in custody. Consequently we concur in the opinion and judgment of the Court.
21
Mr. Justice HARLAN also notes that his views upon the issue discussed in his separate concurring opinion in Parker, id., at 576, 80 S.Ct., at 911, have not changed.
1
The New York Court of Appeals amended its remittitur to reflect that it had passed on petitioner's constitutional claim. 11 N.Y.2d 969, 229 N.Y.S.2d 417, 183 N.E.2d 697 (1962).
2
It appears that petitioner was on bail after conviction until this Court denied his earlier petition for a writ of certiorari. 372 U.S. 948, 83 S.Ct. 944, 9 L.Ed.2d 973 (March 18, 1963).
3
THE CHIEF JUSTICE and JUSTICES BLACK, DOUGLAS, and BRENNAN dissented.
4
E.g., New York Education Law, McKinney's Consol. Laws, c. 16, §§ 6502, 6702; New York General Business Law, McKinney's Consol.Laws, c. 20, § 74, subd. 2; New York Real Property Law, McKinney's Consol.Laws, c. 50, § 440—a; New York Alcoholic Beverage Control Law, McKinney's Consol.Laws, c. 3—B, § 126.
5
73 Stat. 536, 29 U.S.C. § 504.
6
New York Election Law, McKinney's Consol.Laws, c. 17, § 152, subd. 2.
7
New York Judiciary Law, McKinney's Consol. Laws, c. 30, §§ 596, 662.
8
Undoubtedly there are others. See generally Note, Civil Disabilities of Felons, 53 Va.L.Rev. 403 (1967).
9
See 28 U.S.C. §§ 2241, 2242, 2243, 2244, 2245, 2249, 2252, 2254.
10
See 9 W. Holdsworth, History of English Law 108—125 (1926).
11
E.g., Article 39 of the Magna Carta (see 9 W. Holdsworth, at 112—125). The federal habeas corpus statute grants jurisdiction to inquire into violations of the United States Constitution.
12
If there has been, or will be, an unconditional release from custody before inquiry can be made into the legality of detention, it has been held that there is no habeas corpus jurisdiction. See Parker v. Ellis, supra, 362 U.S. at 582, n. 8, 80 S.Ct. at 914 (Warren, C.J., dissenting); Ex parte Baez, 177 U.S. 378 (1900); United States ex rel. Rivera v. Reeves, 246 F.Supp. 599 (D.C.S.D.N.Y.1965); Burnett v. Gladden, 228 F.Supp. 527 (D.C.D.Ore.1964).
13
Petitioner was convicted in 1960. He took his case through the state appellate process, and this Court denied a writ of certiorari in March 1963. 372 U.S. 948, 83 S.Ct. 944, 9 L.Ed.2d 973. In June 1963 petitioner began his quest for a writ of habeas corpus in the federal courts. The District Court denied the petition without prejudice, suggesting, in view of what the judge thought was the unsettled state of New York law, that petitioner reapply to the state courts. See 28 U.S.C. § 2254. Petitioner did so, and apparently at the same time appealed to the United States Court of Appeals for the Second Circuit. The state courts denied relief a second time. The United States Court of Appeals reversed the District Court and ordered a hearing on the merits. 334 F.2d 331 (1964). This Court denied the State's petition for a writ of certiorari. 381 U.S. 951, 85 S.Ct. 1798, 14 L.Ed.2d 725 (1965). The hearing ordered by the Court of Appeals was held by the District Court on November 5, 1965. The petition was dismissed on the merits on May 2, 1966. Petitioner's appeal to the Second Circuit was dismissed on February 3, 1967, and a petition for rehearing was denied on February 21, 1967. A petition for a writ of certiorari was filed here on March 20, 1967, and granted on October 16, 1967, 389 U.S. 896, 88 S.Ct. 211, 19 L.Ed.2d 213, about seven years after petitioner's conviction.
14
See Thomas v. Cunningham, 335 F.2d 67 (C.A.4th Cir. 1964).
15
See n. 13, supra.
| 01
|
391 U.S. 216
88 S.Ct. 1472
20 L.Ed.2d 538
Wayne DYKE et al., Petitioners,v.TAYLOR IMPLEMENT MFG. CO., Inc.
No. 149.
Argued Jan. 18, 1968.
Decided May 20, 1968.
Michael H. Gottesman, Washington, D.C., for petitioners.
Allen H. Carter, Athens, Tenn., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Petitioners, Wayne Dyke, Ed McKinney, and John Blackwell, were found guilty of criminal contempt by the Chancery Court of McMinn County, Tennessee. All three were given the maximum sentence authorized by statute, 10 days in jail and a $50 fine.1 The Tennessee Supreme Court affirmed,2 rejecting contentions that the convictions violated the Federal Constitution because a jury trial was denied3 and because testimony concerning a gun, allegedly discovered during an unconstitutional search, was admitted at trial. Petitioners raised both challenges in their petition for a writ of certiorari, and we granted the writ. 389 U.S. 815, 88 S.Ct. 44, 19 L.Ed.2d 66 (1967).
2
In connection with a labor dispute, McMinn County Chancery Court issued, on January 24, 1966, an injunction against, inter alia,
3
'inflicting harm or damage upon the persons or property of (respondent Taylor Implement Company's) employees, customers, visitors or any other persons.'
4
On the night of February 25, 1966, a car was seen to drive past the home of Lloyd Duckett, a nonstriking Taylor Implement employee who lived in Monroe County which adjoins McMinn. Shots were fired from the car at or into the Duckett home. Robert Wayne Ellis, Duckett's son-in-law, was standing in the front yard with another son-in-law, Dale Harris; Ellis fired back at the car with a pistol, and thought his first shot hit the back of the car. Ellis informed Monroe County Sheriff Howard Kirkpatrick by telephone, and soon after, Monroe Deputy Sheriff Loyd Powers, contacted by Kirkpatrick on his radio and presumably told of the crime, spotted a suspicious car and began following it. The car raced away but was stopped by Athens, Tennessee, policemen, notified by Powers of a speeding car heading for Athens. When Powers reached the stopped car, which contained the three petitioners, he and the Athens policemen took them to McMinn County jail,4 and parked their car outside the jail. While petitioners were waiting inside the jail, Powers and several Athens policemen searched the car. Under the front seat they found an air rifle. At trial there was testimony that Ellis and Harris had recognized the car from which shots were fired as a two-tone 1960 or 1961 Dodge, that Ellis thought he hit the back of the Dodge with one shot, that the car stopped in Athens was a 1960 Dodge with a fresh bullet hole through the trunk lid, that an air rifle pellet was found the next day outside the Duckett home, and that an air rifle was found under the car's seat.5 The chancellor noted that the case against petitioners was 'premised entirely upon circumstantial evidence' but that nonetheless he had 'no trouble at all with the proof which I have heard and I have weighed it in its severest form, that the charges made must be proven beyond a reasonable doubt.' The three petitioners were found guilty.
5
Petitioners' first claim is that the Fourteenth Amendment was violated when their request for trial by jury was denied. We have held today, in Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, that the Fourteenth Amendment imposes upon the States the requirement of Article III and the Sixth Amendment that jury trials be available to criminal defendants. We have also held, in Bloom v. State of Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, that prosecutions for criminal contempt are within the constitutional guarantee. The Bloom and Duncan cases, however, have reaffirmed the view that the guarantee of jury trial does not extend to petty crimes. As Bloom makes clear, at 195—200, 88 S.Ct., at 1478—1481, criminal contempt has always been thought not to be a crime of the sort that requires a jury trial regardless of the penalty authorized. Alleged criminal contemnors must be given a jury trial, therefore, unless the legislature has authorized a maximum penalty within the 'petty offense' limit or, if the legislature has made no judgment about the maximum penalty that can be imposed, unless the penalty actually imposed is within that limit. This Court has not had occasion to state precisely where the line falls between punishments that can be considered 'petty' and those that cannot be. From Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), it is clear that a six-month sentence is short enough to be 'petty.' That holding is sufficient for resolution of this case. Here the maximum penalty which Tennessee statutes permitted the chancellor to impose was 10 days in jail and a fine of $50. The contempt was therefore a 'petty offense,' and petitioners had no federal constitutional right to a jury trial.
6
Petitioners next contend that admission at trial, over timely objection, of evidence concerning the discovery of an air rifle under the seat of the car in which they were riding when arrested violated the Fourth and Fourteenth Amendments. The State concedes that the search was without a warrant, but asserts that it was not in violation of the Constitution because 'reasonable.' While the record is not entirely clear, petitioners appear to have been arrested for reckless driving. Whether or not a car may constitutionally be searched 'incident' to arrest for a traffic offense, the search here did not take place until petitioners were in custody inside the courthouse and the car was parked on the street outside. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), holds that under such circumstances a search is 'too remote in time or place to (be) incidental to the arrest * * *.' 376 U.S., at 368, 84 S.Ct., at 884.
7
The search in question here is not saved by Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), which upheld a warrantless search of a car impounded 'as evidence' pursuant to a state statute. The police there were required to seize the car and to keep it until forfeiture proceedings could be completed. In those circumstances, said the Court, '(i)t would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it.' 386 U.S., at 61—62, 87 S.Ct., at 791. In the instant case there is no indication that the police had purported to impound or to hold the car, that they were authorized by any state law to do so, or that their search of the car was intended to implement the purposes of such custody. Here the police seem to have parked the car near the courthouse merely as a convenience to the owner, and to have been willing for some friend or relative to McKinney (or McKinney himself if he were soon released from custody) to drive it away. The reasons that made the warrantless search in Cooper reasonable thus do not apply to the search here. The Court discussed in Cooper, 386 U.S., at 61, 87 S.Ct., at 790, the reasons why that case was distinguishable from Preston. The case before us is like Preston and unlike Cooper according to each of the distinguishing tests set forth in the Cooper opinion.
8
Automobile, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The cases so holding have, however, always insisted that the officers conducting the search have 'reasonable or probable cause' to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search. The record before us does not contain evidence that Sheriff Kirkpatrick, Deputy Sheriff Powers, or the officers who assisted in the search had reasonable or probable cause to believe that evidence would be found in petitioners' car. Powers had not been told that Harris and Ellis had identified the car from which shots were fired as a 1960 or 1961 Dodge. He testified:
9
'All I got is just that it would be an old make model car. Kinda old make model car.'
10
The record also contains no suggestion that Ellis told Sheriff Kirkpatrick, Deputy Sheriff Powers, or any other law enforcement official that he had fired at the Dodge or that he thought he had hit it with one bullet. As far as this record shows, Powers knew only that the car he chased was 'an old make model car,' that it speeded up when he chased it, and that it contained a fresh bullet hole. The evidence placed upon the record is insufficient to justify a conclusion that McKinney's car was searched with 'reasonable or probable cause' to believe the search would be fruitful.
11
Since the search was not shown to have been based upon sufficient cause, we need not reach the question whether Carroll and Brinegar, supra, extend to a warrantless search, based upon probable cause, of an automobile which, having been stopped originally on a highway, is parked outside a courthouse.
12
Because evidence was admitted without a satisfactory showing that it was obtained in compliance with the Fourth and Fourteenth Amendments, the judgment below is reversed and the case is remanded to the Tennessee Supreme Court for disposition not inconsistent with this opinion.
13
Reversed and remanded.
14
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring.
15
I concur in the judgment in this case, and in that part of the Court's opinion dealing with the admission at petitioners' trial of evidence produced by an unlawful search.
16
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
17
The Court holds in this case, as it said in dictum in Bloom v. State of Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, that persons charged with so-called 'petty' crimes are not entitled to trial by jury. I am not as sure as the Court seems to be that this classification should be used to deprive a criminal defendant of a jury trial. See my dissenting opinion in Green v. United States, 356 U.S. 165, 193—219, 78 S.Ct. 632, 648—661, 2 L.Ed.2d 672. The word 'petty' has no exact meaning, and until it is given a better definition than that which the Court gives to it today, I do not desire to condemn the right to trial by jury to such an uncertain fate. See Cheff v. Schnackenberg, 384 U.S. 373, 384—393, 86 S.Ct. 1523, 1526—1530, 16 L.Ed.2d 629 (dissenting opinion). My Brother Harlan's dissent in Duncan v. State of Louisiana, 391 U.S., p. 171, 88 S.Ct., p. 1460, 20 L.Ed.2d 491, points out that whippings, even where 31 lashes were inflicted, were classified as petty crimes. And the Court here states that six months' punishment is petty. I am loath to hold whippings or six months' punishment as 'petty.' And here, where the offense is punishable by a $50 fine and 10 days in jail behind bars, I feel the same way. Even though there be some offenses that are 'petty,' I would not hold that this offense falls in that category. See my dissenting opinion in United States v. Barnett, 376 U.S. 681, 727, 84 S.Ct. 984, 1031, 12 L.Ed.2d 23. Since I would reverse and remand this case for a trial by jury, I do not find it necessary to consider the other questions decided by the Court.
1
TennCode Ann. § 23—903 (1955): 'The punishment for contempt may be by fine or imprisonment, or both; but where not otherwise specially provided, the circuit, chancery, and appellate courts are limited to a fine of fifty dollars ($50.00), and imprisonment not exceeding ten (10) days, and all other courts are limited to a fine of ten dollars ($10.00).'
2
Sub nom. Taylor Implement Mfg. Co., Inc. v. United Steelworkers of America, 219 Tenn. 472, 410 S.W.2d 881 (1966), rehearing denied, 219 Tenn. 481, 410 S.W.2d 885 (1967).
3
This claim by petitioners is based on the Fourteenth Amendment, and respondent calls our attention to the fact that at trial and on appeal to the Tennessee Supreme Court petitioners pointed only to specific Bill of Rights provisions. The opinion below demonstrates that the Tennessee Supreme Court considered and rejected the contention that the Fourteenth Amendment and the Sixth Amendment, taken together, required that petitioners be given a jury trial. We have frequently held that a party is not barred by failure to cite below the proper constitutional provisions when the lower courts consider the relevant provisions. E.g., Braniff Airways, Inc. v. Nebraska State Bd. of Equalization and Assessment, 347 U.S. 590, 598—599, 74 S.Ct. 757, 762, 98 L.Ed. 967 (1954); Gibbs v. Burke, 337 U.S. 773, 779, 69 S.Ct. 1247, 1250, 93 L.Ed. 1686 (1949).
4
The record suggests that petitioners were told they were under arrest for reckless driving.
5
The air rifle itself was not introduced. The trial judge treated it as 'filed and withdrawn.'
| 01
|
391 U.S. 73
88 S.Ct. 1515
20 L.Ed.2d 441
Minnie Brade GLONA, Petitioner,v.AMERICAN GUARANTEE & LIABILITY INSURANCE COMPANY et al.
Nos. 508 and 639.
Supreme Court of the United States
Argued March 27 and 28, 1968.
Decided May 20, 1968.
Rehearing Denied Oct. 14, 1968.
See 89 S.Ct. 66.
For dissenting opinion see 88 S.Ct. 1512.
William F. Wessel, New Orleans, La., for petitioner; Leonard J. Fagot, Marvin C. Grodsky and Benjamin E. Smith, on the brief.
David R. Normann, New Orleans, La., for respondents; Frank S. Normann and Margot Mazeau, on the brief. DJ Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This suit was brought in the Federal District Court under the head of diversity jurisdiction to recover for a wrongful death suffered in an automobile accident in Louisiana. The plaintiff, a Texas domiciliary, was the mother of the victim, her illegitimate son. Had the Texas wrongful death statute1 been applicable, it would, as construed, have authorized the action.2 But summary judgment was granted on the ground that under Louisiana law3 the mother had no right of action for the death of her illegitimate son. The Court of Appeals affirmed, rejecting the claim that the discrimination violated the Equal Protection Clause of the Fourteenth Amendment. 379 F.2d 545. We granted the petition for a writ of certiorari, 389 U.S. 969, 88 S.Ct. 477, 19 L.Ed.2d 460, in order to hear the case along with Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509.
2
Louisiana follows a curious course in its sanctions against illegitimacy. A common-law wife is allowed to sue under the Louisiana wrongful death statute.4 When a married woman gives birth to an illegitimate child, he is, with a few exceptions, conclusively presumed to be legitimate.5 Louisiana makes no distinction between legitimate children and illegitimate children where incest is concerned.6 A mother may inherit from an illegitimate child whom she has acknowledged and vice versa.7 If the illegitimate son had a horse that was killed by the defendant and then died himself, his mother would have a right to sue for the loss of that property.8 If the illegitimate son were killed in an industrial accident at his place of employment, the mother would be eligible for recovery under the Louisiana Workmen's Compensation Act, if she were a dependent of his.9 Yet it is argued that since the legislature is dealing with 'sin,' it can deal with it selectively and is not compelled to adopt comprehensive or even consistent measures. See McLaughlin v. State of Florida, 379 U.S. 184, 191, 85 S.Ct. 283, 287, 13 L.Ed.2d 222. In this sense the present case is different from the Levy case, where by mere accident of birth the innocent, although illegitimate child was made a 'nonperson' by the legislature, when it came to recovery of damages for the wrongful death of his mother.
3
Yet we see no possible rational basis (Morey v. Doud, 354 U.S. 457, 465—466, 77 S.Ct. 1344, 1349—1350, 1 L.Ed.2d 1485) for assuming that if the natural mother is allowed recovery for the wrongful death of her illegitimate child, the cause of illegitimacy will be served. It would, indeed, be farfetched to assume that women have illegitimate children so that they can be compensated in damages for their death. A law which creates an open season on illegitimates in the area of automobile accidents gives a windfall to tortfeasors. But it hardly has a causal connection with the 'sin,' which is, we are told, the historic reason for the creation of the disability. To saythat the test of equal protection should be the 'legal' rather than the biological relationship is to avoid the issue. For the Equal Protection Clause necessarily limits the authority of a State to draw such 'legal' lines as it chooses.
4
Opening the courts to suits of this kind may conceivably be a temptation to some to assert motherhood fraudulently. That problem, however, concerns burden of proof. Where the claimant is plainly the mother, the State denies equal protection of the laws to withhold relief merely because the child, wrongfully killed, was born to her out of wedlock.
5
Reversed.
6
Mr. Justice HARLAN, whom Mr. Justice BLACK and Mr. Justice STEWART join, dissenting.
7
These decisions can only be classed as constitutional curiosities.
8
At common law, no person had a legally cognizable interest in the wrongful death of another person, and no person could inherit the personal right of another to recover for tortious injuries to his body.1 By statute, Louisiana has created both rights in favor of certain classes of persons. The question in these cases is whether the way in which Louisiana has defined the classes of persons who may recover is constitutionally permissible. The Court has reached a negative answer to this question by a process that can only be described as brute force.
9
One important reason why recovery for wrongful death had everywhere to await statutory delineation is that the interest one person has in the life of another is inherently intractable. Rather than hear offers of proof of love and affection and economic dependence from every person who might think or claim that the bell had tolled for him, the courts stayed their hands pending legislative action. Legislatures, responding to the same diffuseness of interests, generally defined classes of proper plaintiffs by highly arbitrary lines based on family relationships, excluding issues concerning the actual effect of the death on the plaintiff.2
10
Louisiana has followed the traditional pattern. There the actions lie in favor of the surviving spouse and children of the deceased, if any; if none, then in favor of the surviving parents of the deceased, if any; if none, then in favor of the deceased's brothers and sisters, if any; if none, then no action lies. According to this scheme, a grown man may sue for the wrongful death of parents he did not love,3 even if the death relieves him of a great economic burden or entitles him to a large inheritance. But an employee who loses a job because of the death of his employer has no cause of action, and a minor child cared for by neighbors or relatives 'as if he were their own son' does not therefore have a right to sue for their death.4 Perhaps most dramatic, a surviving parent, for example, of a Louisiana deceased may sue if and only if there is no surviving spouse or child: it does not matter who loved or depended on whom, or what the economic situation of any survivor may be, or even whether the spouse or child elects to sue.5 In short, the whole scheme of the Louisiana wrongful death statute, which is similar in this respect to that of most other States, makes everything the Court says about affection and nurture and dependence altogether irrelevant. The only question in any case is whether the plaintiff falls within the classes of persons to whom the State has accorded a right of action for the death of another.
11
Louisiana has chosen, as have most other States in one respect or another, to define these classes of proper plaintiffs in terms of their legal rather than their biological relation to the deceased. A man may recover for the death of his wife, whether he loved her or not, but may not recover for the death of his paramour.6 A child may recover for the death of his adopted parents. An illegitimate may recover for the wrongful death of a parent who has taken a few hours to acknowledge him formally, but not for the death of a person who he claims is his parent but who has not acknowledged him.7 A parent may recover for the death of an illegitimate child he has acknowledge, but not for the death of an illegitimate child whom he did not bother to acknowledge until the possibility of tort recovery arose.
12
The Court today, for some reason which I am at a loss to understand, rules that the State must base its arbitrary definition of the plaintiff class on biological rather than legal relationships. Exactly how this makes the Louisiana scheme even marginally more 'rational' is not clear, for neither a biological relationship nor legal acknowledgment is indicative of the love or economic dependence that may exist between two persons. It is, frankly, preposterous to suggest that the State has made illegitimates into 'nonpersons,' or that, by analogy with what Louisiana has done here it might deny illegitimates constitutional rights or the benefits of doing business in corporate form.8 The rights at issue here stem from the existence of a family relationship, and the State has decided only that it will not recognize the family relationship unless the formalities of marriage, or of the acknowledgment of children by the parent in question, have been complied with.
13
There is obvious justification for this decision. If it be conceded, as I assume it is, that the State has power to provide that people who choose to live together should go through the formalities of marriage and, in default, that people who bear children should acknowledge them, it is logical to enfore these requirements by declaring that the general class of rights that are dependent upon family relationships shall be accorded only when the formalities as well as the biology of those relationships are present. Moreover, and for many of the same reasons why a State is empowered to require formalities in the first place, a State may choose to simplify a particular proceeding by reliance on formal papers rather than a contest of proof.9 That suits for wrongful death, actions to determine the heirs of intestates, and the like, must as a constitutional matter deal with every claim of biological paternity or maternity on its merits is an exceedingly odd proposition.
14
The Equal Protection Clause states a complex and difficult principle. Certain classifications are 'inherently suspect,' which I take to mean that any reliance upon them in differentiating legal rights requires very strong affirmative justification. The difference between a child who has been formally acknowledge and one who has not is hardly one of these. Other classifications are impermissible because they bear no intelligible proper relation to the consequences that are made to flow from them. This does not thinks could be better drawn is unconstitutional. But even if the power of stitutional. But even if the power of this Court to improve on the lines that Congress and the States have drawn were very much broader than I consider it to be, I could not understand why a State which bases the right to recover for wrongful death strictly on family relationships could not demand that those relationships be formalized.
15
I would affirm the decisions of the state court and the Court of Appeals for the Fifth Circuit.
1
Vernon's Ann.Tex.Rev.Civ.Stat. Art. 4675 (1952).
2
The Court of Appeals so indicated in this case. 379 F.2d, at 546, n. 2. See Galveston, H. & S.A.R. Co. v. Walker, 48 Tex.Civ.App. 52, 106 S.W. 705 (1907).
3
The applicable statutory provision is set out in Levy v. Louisiana, 391 U.S. 68, at 69, 88 S.Ct. 1509, at 1510, 20 L.Ed.2d 441, n. 1. As the Court of Appeals noted, Article 2315 of the Louisiana Civil Code, providing for wrongful death recovery, gives a cause of action to 'the surviving father and mother of the deceased, or either of them * * *.' The statute does not state 'legitimate' father or 'legitimate' mother, but the Louisiana courts have held that a decedent must be legitimate in order for an ascendant or sibling to recover for his death. Youchican v. Texas & P.R. Co., 147 La. 1080, 86 So. 551 (1920); Buie v. Hester, 147 So.2d 733 (Ct.App.La.1962). See also Green v. New Orleans, S. & G.I.R. Co., 141 La. 120, 74 So. 717 (1917); Jackson v. Lindlom, 84 So.2d 101 (Ct.App.La.1955). See also Vaughan v. Dalton-Lard Lumber Co., 119 La. 61, 43 So. 926 (1907).
4
Chivers v. Couch Motor Lines, 159 So.2d 544 (Ct.App.La.1964).
5
La.Civ.Code Ann. Art. 184 (1952). See Lambert v. Lambert, 164 So.2d 661 (Ct.App.La.1964); Harris v. Illinois Central R. Co., 220 F.2d 734 (C.A.5th Cir. 1955); cf. Lewis v. Powell, 178 So.2d 769 (Ct.App.La.1965).
6
La.Rev.Stat.Ann. § 14:78 (1952).
7
La.Civ.Code Ann. Arts. 918, 922 (1952).
8
La.Civ.Code Ann. Arts. 2315, 922 (1952 and Supp.1967).
9
La.Rev.Stat.Ann. §§ 23:1231, 23:1252, 23:1253 (1964); Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83, 119, 22 So.2d 842, 854 (1945); see Note, 20 Tulane L.Rev. 145 (1945).
1
See Van Beeck v. Sabine Towing Co., 300 U.S. 342, 344—345, 57 S.Ct. 452, 453—454, 81 L.Ed. 685, and cases there cited.
2
An English statute, Lord Campbell's Act, 9 & 10 Vict., c. 93 (1846), 'has served as the model for similar acts in most of the states in this country.' F. Tiffany, Death By Wrongful Act 5 (2d ed., 1913). The statute provided that the action 'shall be for the Benefit of the Wife, Husband, Parent, and Child * * *.' It is noteworthy that English and Canadian courts held the words 'child' and 'parent' to exclude illegitimate relationships. Dickinson v. North Eastern R. Co., 2 Hurl. & Colt. 735, 9 L.T.R.(N.S.) 299; Gibson v. Midland R. Co., 2 Ont. 658. A recent comprehensive survey of American law in the field comments that '(i)f there is a general rule today, it is probably that the word 'child' or 'children' when used in a statute pertaining to wrongful death beneficiaries, refers to a legitimate child or legitimate children, and thus only legitimates can recover for the wrongful death of their parents. This is merely an application of the principle that statutes patterned after Lord Campbell's Act which use the word 'kin' mean legitimate kin, and that where such statutes say 'father' or 'mother,' 'children,' 'brothers' or 'sisters,' they mean only legitimate father, mother, children, brothers or sisters.' S. Speiser, Recovery for Wrongful Death 587 (1966).
3
He may even, like Shakespeare's Edmund, have spent his life contriving treachery against his family. Supposing that the Bard had any views on the law of legitimacy, they might more easily be discerned from Edmund's character than from the words he utters in defense of the only thing he cares for, himself.
4
Numerous Louisiana cases, reflecting the difficulty of attempting to determine the 'real' interest of one person in the death of another, have insisted upon strict conformity to the required statutory relationship, and stated that the statute may not be extended by interpretation to analogous cases. E.g., Bradley v. Swift & Co., 167 La. 249, 119 So. 37 (1928). As it happens, this Court has had occasion to recognize Louisiana's interest in strict construction. See Mobile Life Ins. Co. v. Brame, 95 U.S. 754, 24 L.Ed. 580, holding that an insurance company, having paid the insurance after the wrongful death of its insured, had no cause of action against the tortfeasor under Louisiana law.
5
See, e.g., Burthlong v. Huber, La.App., 4 So.2d 480; Doucet v. Travelers Ins. Co., D.C., 91 F.Supp. 864. The Court speaks in Levy of tortfeasors going free. However, the deceased in that case left a legitimate parent. Under the Court's opinion, the right of legitimate and perhaps dependent parents to sue will henceforth be cut off by the mere existence of an illegitimate child, though the child be a self-supporting adult, and though the child elect not to sue. Incidentally, the burden of proving the nonexistence of such a child will be on the plaintiff parent. Trahan v. Southern Pacific Co., D.C., 209 F.Supp. 334.
6
Vaughan v. Dalton-Lard Lumber Co., 119 La. 61, 43 So. 926 (1907). At the same time, a wife may recover for the death of a man to whom she is lawfully married, although she is not dependent on him for support and, indeed, is living adulterously with someone else. Jones v. Massachusetts Bonding & Ins. Co., La.App., 55 So.2d 88.
7
In Thompson v. Vestal Lumber & Mfg. Co., La.App., 16 So.2d 594, 596, aff'd, 208 La. 83, 22 So.2d 842 (1944), the court stated: 'Children referred to in this law (the wrongful death statute) include only those who are the issue of lawful wedlock or who, being illegitimate, have been acknowledged or legitimated pursuant to methods expressly established by law.' Article 203 of the Louisiana Civil Code provides that children may be acknowledged by a declaration, by either or both parents, executed in the presence of a notary public and two witnesses.
8
A more obvious analogy from the law of corporations than the rather farfetched example the Court has suggested is the elementary rule that the benefits of doing business in corporate form may be denied, to the willful, the negligent, and the innocent alike, if the formalities of incorporation have not been properly complied with.
9
Even where liability arises under a federal statute defining rights in terms of a family relationship to the deceased, federal courts have generally looked to the law and the formalities of the appropriate State. In Seaboard Air Line v. Kenney, 240 U.S. 489, 36 S.Ct. 458, 60 L.Ed. 762, arising under the Federal Employers' Liability Act, 35 Stat. 65, as amended, 36 Stat. 291, this Court relied upon the North Carolina determination that the 'next of kin' of an illegitimate deceased were his half siblings rahter than his father. In De Sylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415, arising under the Copyright Act, 61 Stat. 652, 17 U.S.C. § 1 et seq., we held that the word 'children' in § 24 of that federal statute should be defined by reference to California law; California law provided that an illegitimate who had been acknowledged in writing by his father could inherit from him; since the illegitimate involved in De Sylva had been acknowledged, we held he was included within the statutory term. Two Justices, concurring in the unanimous result, argued that it was not proper to look to state law for a definition of the federal statutory term 'children.' Nowhere, however, was it suggested that we look to the Constitution. In Bell v. Tug Shrike, 332 F.2d 330, the Fourth Circuit looked to Virginia law to determine whether the plaintiff was a 'widow' entitled to bring suit under the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688. Plaintiff had 'married' her 'husband' at a time when he was already married. Although the pre-existing marriage was later dissolved by divorce, after which plaintiff continued to live with the 'husband,' Virginia does not recognize common-law marriages. Consequently, plaintiff was held not to be a 'widow.' There was no suggestion that equal protection was in any way involved.
| 12
|
391 U.S. 244
88 S.Ct. 1496
20 L.Ed.2d 562
UNITED STATES, Appellant,v.UNITED SHOE MACHINERY CORPORATION.
No. 597.
Argued April 1, 1968.
Decided May 20, 1968.
Donald F. Turner, Washington, D.C., for appellant.
Ralph M. Carson, New York City, for appellee.
Mr. Justice FORTAS delivered the opinion of the Court.
1
In 1953, in a civil suit brought by the United States, the District Court for the District of Massachusetts held that appellee had violated § 2 of the Sherman Antitrust Act by monopolizing the manufacture of shoe machinery. The court found that '(1) defendant has, and exercises, such overwhelming strength in the shoe machinery market that it controls that market, (2) this strength excludes some potential, and limits some actual, competition, and (3) this strength is not attributable solely to defendant's ability, economies of scale, research, natural advantages, and adaptation to inevitable economic laws.' United States v. United Shoe Machinery Corp., 110 F.Supp. 295, 343 (1953). The court did not order the relief requested by the Government—that appellee be dissolved into three separate shoe machinery manufacturing companies. Rather, the court imposed a variety of restrictions and conditions designed 'to recreate a competitive market.'1 Appellee appealed to this Court, which affirmed the decision of the District Court. United Shoe Machinery Corp. v. United States, 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910 (1954).
2
The decree of the District Court, entered on February 18, 1953, and subsequently modified on July 12 and September 17, 1954, provided in paragraph 18 that:
3
'On (January 1, 1965) both parties shall report to this Court the effect of this decree, and may then petition for its modification, in view of its effect in establishing workable competition. If either party takes advantage of this paragraph by filing a petition, each such petition shall be accompanied by affidavits setting forth the then structure of the shoe machinery market and defendant's power within that market.' 110 F.Supp., at 354.
4
Pursuant to this provision, the Government reported to the District Court on January 1, 1965, that appellee continued to dominate the shoe machinery market, that workable competition had not been established in that market, and that additional relief was accordingly necessary. The Government asked that appellee be required to submit to the Court a plan, pursuant to which United's business would be reconstituted so as to form two fully competing companies in the shoe machinery market. It also requested 'such other and further relief as may be necessary to establish workable competition in the shoe machinery market.'
5
The District Court, after a hearing, denied the Government's petition.2 It held that under United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932), its power to modify the original decree was limited to cases involving '(1) a clear showing of (2) grievous wrong (3) evoked by new and unforeseen conditions.' United States v. United Shoe Machinery Corp., 266 F.Supp. 328, 330 (1967). Analyzing its 1953 decree, as amended, the court said that the object of the decree was 'not to restore so-called workable competition but to move toward establishing it,' and that 'the 1953 decree has operated in the manner and with the effect intended. It has put in motion forces which, aided by new technology, have eroded United's power and already dissipated much of the effect of United's monopolization.' 266 F.Supp., at 330, 334. Accordingly, in view of the stringent requirements of Swift as the court construed that decision, the District Court denied the Government's petition.
6
From this decision the Government appealed to this Court. We noted probable jurisdiction. 389 U.S. 967, 88 S.Ct. 469, 19 L.Ed.2d 458 (1967). We reverse.
I.
7
The District Court misconceived the thrust of this Court's decision in Swift. That case in no way restricts the District Court's power to grant the relief requested by the Government in the present case. In Swift, a consent decree had been entered in 1920 order-in a measure of divestitute by and imposing a variety of restraints upon the defendant meat packers. In 1930, after various unsuccessful attempts to secure modification or vacation of the decree, the packers filed a petition 'to modify the consent decree and to adapt its restraints to the needs of a new day,' as Justice Cardozo phrased it. 286 U.S., at 113, 52 S.Ct. at 462. The lower court granted a measure of relief and the United States appealed. This Court reversed. It emphasized the power of a court of equity 'to modify an injunction in adaptation to changed conditions though it was entered by consent.' Id., at 114, 52 S.Ct., at 462. The question, it held, is 'whether enough has been shown to justify its exercise.' Id., at 115, 52 S.Ct., at 462. After reviewing the evidence, the Court concluded that the danger of monopoly and of the elimination of competition which led to the initial government complaint and the decree had not been removed and that, although in some respects the decree had been effectuated, there was still a danger of unlawful restraints of trade. The Court's language, quoted and relied on by the trial court here, to the effect that 'nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change,' id., at 119, the decree, must, of course, be read in light of this context. Swift teaches that a decree may be changed upon an appropriate showing, and it holds that it may not be changed in the interests of the defendants if the purposes of the litigation as incorporated in the decree (the elimination of monopoly and restrictive practices) have not been fully achieved.
8
The present case is the obverse of the situation in Swift if the Government's allegations are proved. Here, the Government claims that the provisions of the decree were specifically designed to achieve the establishment of 'workable competition' by various means and that the decree has failed to accomplish this result. Because time and experience have demonstrated this fact, according to the Government, it seeks modification of the decree. Nothing in Swift precludes this. In Swift, the defendants sought relief not to achieve the purposes of the provisions of the decree, but to escape their impact. Accordingly, we conclude that the District Court erred in denying the Government's petition 'on the authority of United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460 (76 L.Ed. 999).' 266 F.Supp., at 334.
II.
9
Decision as to the Government's petition to modify the decree in the present case must be based upon the specific facts and circumstances that are presented. In urging affirmance of the 1953 decision, the Government advised this Court that, in framing the decree, the District Court had 'proceeded on the premise that relatively mild remedies should be tried as a first resort, and that the possibility of more drastic measures should be held in abeyance.' Brief of the United States, No. 394, 1953 Term, 155. Paragraph 18 of the decree appeared to be in confirmation of this statement since it expressly required a report after 10 years of experience under the decree and contemplated that petitions for modification might be filed 'in view of (the decree's) effect in establishing workable competition.' Paragraph 18 then specifically provided that any such petition would have to be accompanied by 'affidavits setting forth the then structure of the shoe machinery market and defendant's power within that market.'3
10
These specifications were peculiarly apt because this is a monopoly case under § 2 of the Sherman Act and because the decree was shaped in response to findings of monopolization of the shoe machinery market. That the purpose of the 1953 decree was to eliminate this unlawful market domination was made clear beyond question by the District Court's statement at the beginning of the section of its opinion dealing with relief. This read as follows:
11
'Where a defendant has monopolized commerce in violation of § 2, the principal objects of the decrees are to extirpate practices that have caused or may hereafter cause monopolization, and to restore workable competition in the market.' 110 F.Supp., at 346—347.
12
It is of course established that, in a § 2 case, upon appropriate findings of violation, it is the duty of the court to prescribe relief which will terminate the illegal monopoly, deny to the defendant the fruits of its statutory violation, and ensure that there remain no practices likely to result in monopolization in the future. See, e.g., United States v. Grinnell Corp., 384 U.S. 563, 577, 86 S.Ct. 1698, 1707, 16 L.Ed.2d 778 (1966); Schine Chain Theatres v. United States, 334 U.S. 110, 128—129, 68 S.Ct. 947, 957, 92 L.Ed. 1245 (1948). The trial court is charged with inescapable responsibility to achieve this objective, although it may, if circumstances warrant, accept a formula for achieving the result by means less drastic than immediate dissolution or divestiture. The decree in the present case was carefully devised within the limits of this principle. Measures short of divestiture were prescribed with provisions for review and possible revision after 10 years.4
13
The District Court has now denied the Government's petition for modification of the decree on the ground that the decree is 'still working at its long-range task of freeing the market from all consequences of United's monopolization and keeping the door wide open for the arrival of an adequately provided challenger.' 266 F.Supp., at 334. According to the court, this was the intended effect of the decree.
14
If the decree had not contained paragraph 18—if it had been silent as to the time for submitting reports and, if necessary, petitions for modification—and if after 10 years it were shown that the decree had not achieved the adequate relief to which the Government is entitled in a § 2 case, it would have been the duty of the court to modify the decree so as to assure the complete extirpation of the illegal monopoly. The court's power to do this is clear. See, e.g., United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932); Chrysler Corp. v. United States, 316 U.S. 556, 62 S.Ct. 1146, 86 L.Ed. 1668 (1942). Its duty is implicit in the findings of violation of § 2 and in the decisions of this Court as to the type of remedy which must be prescribed.
15
We find nothing in the 1953 decree, as amended, or in the District Court's opinion relating thereto which presents an obstacle or embarrassment to the application of this principle in the present case. If the decree has not, after 10 years, achieved its 'principal objects,' namely, 'to extirpate practices that have caused or may hereafter cause monopolization, and to restore workable competition in the market'—the time has come to prescribe other, and if necessary more definitive, means to achieve the result. A decade is enough.5 Even if we should assume that paragraph 18, as the District Court now states, had only the limited purpose of calling for a 10-year report as to whether the decree was 'gradually eroding United's 1953 power to monopolize the market,' 266 F.Supp., at 330, its specific provisions did not exhaust the District Court's power. Relief in a Sherman Act case 'should put an end to the combination and deprive the defendants of any of the benefits of the illegal conduct, and break up or render impotent the monopoly power found to be in violation of the Act.' United States v. Grinnell Corp., 384 U.S. 563, 577, 86 S.Ct. 1698, 1707, 16 L.Ed.2d 778 (1966). See also United States v. United States Gypsum Co., 340 U.S. 76, 88—90, 71 S.Ct. 160, 169—170, 95 L.Ed. 89 (1950); United States v. E. I. Du Pont De Nemours & Co., 366 U.S. 316, 326, 81 S.Ct. 1243, 1250, 6 L.Ed.2d 318 (1961). The District Court should proceed to determine whether the relief in this case has met the standards which this Court has prescribed. If it has not, the District Court should modify the decree so as to achieve the required result with all appropriate expedition. It is so ordered.
16
Reversed and remanded.
17
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
Some of the major provisions of the decree were as follows: United was enjoined from further monopolization; it was ordered to offer for sale all types of machines (previously only leased) at 'such terms * * * as do not make it substantially more advantageous for a shoe factory to lease rather than to buy a machine'; if United continued leasing it was required to lease for no more than five-year terms under certain specified conditions; it was not to refuse a prospective customer's request to lease or buy a machine 'except for good cause'; it was to submit a plan for disposing of certain sectors of its business; it was to grant to any applicant, except a deliberate infringer, a nonexclusive license under any or all patents held by it on reasonable nondiscriminatory royalty terms; it was not to acquire any patents or patent applications except those acquired by reason of bona fide employment of the inventor, nor was it to acquire patents or patent applications under exclusive license; it was not to acquire any second-hand shoe machiney or any shoe machinery manufacturer or a manufacturer or distributor of supplies for shoe factories.
2
A petition by appellee, seeking to be relieved of certain restrictions contained in the original decree, was similarly denied. The judgment in this regard is not before us, since appellee has not appealed to this Court.
3
In paragraph 23 of the original decree jurisdiction was expressly retained 'for the purpose of enabling either of the parties to apply to this Court at any time for such further orders and directions as may be appropriate for the correction, construction, or carrying out of this Decree, and to set aside the Decree and take further proceedings if future developments justify that course in the appropriate enforcement of the Anti-Trust Act.' 110 F.Supp., at 354.
4
In rejecting the suggestion that United be forbidden to lease on any terms, the District Court stated specifically that it 'agrees that it would be undesirable, at least until milder remedies have been tried, to direct United to abolish leasing forthwith.' 110 F.Supp., at 349.
5
We emphasize that there is no issue here regarding the timing of the Government's petition for modification. No claim is made that the Government has petitioned for modification before the running of a reasonable period during which the effects of the original decree have become clear. Moreover, the Government may claim, persuasively, that paragraph 18 of the original decree specifically contemplated that the Government would petition when it did.
| 78
|
391 U.S. 352
88 S.Ct. 1502
20 L.Ed.2d 636
Willett WILSONv.CITY OF PORT LAVACA, TEXAS et al.
No. 1238.
Decided May 20, 1968.
Willett Wilson, pro se.
PER CURIAM.
1
A three-judge federal court, convened pursuant to 28 U.S.C. § 2281, determined that plaintiff's claim was not 'one which must be heard by a three-judge court.' 285 F.Supp. 85, 87. It also ruled that the relief sought by plaintiff was not warranted. The district judge in whose court the case was originally filed adopted the action of the court as his own. The resulting situation is similar, we think, to that which results when a single judge declines to convene a three-judge court and denies relief: an appeal lies to the appropriate United States Court of Appeals, and not to this Court. Schackman v. Arnebergh, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865. It does not appear from the record that a protective appeal was lodged in the Court of Appeals, and the time to do so may have expired. Therefore, we vacate the judgment below and remand the case to the District Court so that it may enter a fresh decree from which a timely appeal may be taken to the Court of Appeals. Pennsylvania Public Utility Comm. v. Pennsylvania R. Co., 382 U.S. 281, 282, 86 S.Ct. 423, 15 L.Ed.2d 324.
2
It is so ordered.
3
Judgment vacated and case remanded.
| 89
|
391 U.S. 123
88 S.Ct. 1620
20 L.Ed.2d 476
George William BRUTON, Petitioner,v.UNITED STATES.
No. 705.
Argued March 11, 1968.
Decided May 20, 1968.
Daniel P. Reardon, Jr., St. Louis, Mo., for petitioner.
Solicitor General Erwin N. Griswold, for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case presents the question, last considered in Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278, whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a codefendant's confession inculpating the defendant had to be disregarded in determining his guilt or innocence.
2
A joint trial of petitioner and one Evans in the District Court for the Eastern District of Missouri resulted in the conviction of both by a jury on a federal charge of armed postal robbery, 18 U.S.C. § 2114. A postal inspector testified that Evans orally confessed to him that Evans and petitioner committed the armed robbery. The postal inspector obtained the oral confession, and another in which Evans admitted he had an accomplice whom he would not name, in the course of two interrogations of Evans at the city jail in St. Louis, Missouri, where Evans was held in custody on state criminal charges. Both petitioner and Evans appealed their convictions to the Court of Appeals for the Eighth Circuit. That court set aside Evans' conviction on the ground that his oral confessions to the postal inspector should not have been received in evidence against him. 375 F.2d 355, 361.1 However, the court, relying upon Delli Paoli, affirmed petitioner's conviction because the trial judge instructed the jury that although Evans' confession was competent evidence against Evans it was inadmissible hearsay against petitioner and therefore had to be disregarded in determining petitioner's guilt or innocence. 375 F.2d, at 361—363.2 We granted certiorari to reconsider Delli Paoli. 389 U.S. 818, 88 S.Ct. 126, 19 L.Ed.2d 70. The Solicitor General has since submitted a memorandum stating that 'in the light of the record in this particular case and in the interests of justice, the judgment below should be reversed and the cause remanded for a new trial.' The Solicitor General states that this disposition is urged in part because '(h)ere it has been determined that the confession was wrongly admitted against (Evans) and his conviction has been reversed, leading to a new trial at which he was acquitted. To argue, in this situation, that (petitioner's) conviction should nevertheless stand may be to place too great a strain upon the (Delli Paoli) rule—at least, where, as here the other evidence against (petitioner) is not strong.' We have concluded, however, that Delli Paoli should be overruled. We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse.
3
The basic premise of Delli Paoli was that it is 'reasonably possible for the jury to follow' sufficiently clear instructions to disregard the confessor's extrajudicial statement that his codefendant participated with him in committing the crime. 352 U.S., at 239, 77 S.Ct., at 299. If it were true that the jury disregarded the reference to the codefendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the nonconfessor. But since Delli Paoli was decided this Court has effectively repudiated its basic premise. Before discussing this, we pause to observe that in Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, we confirmed 'that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him' secured by the Sixth Amendment, id., at 404, 85 S.Ct., at 1068; 'a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.' Id., at 406—407, 85 S.Ct., at 1069.
4
We applied Pointer in Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934, in circumstances analogous to those in the present case. There two persons, Loyd and Douglas, accused of assault with intent to murder, were tried separately. Loyd was tried first and found guilty. At Douglas' trial the State called Loyd as a witness against him. An appeal was pending from Loyd's conviction and Loyd invoked the privilege against self-incrimination and refused to answer any questions. The prosecution was permitted to treat Loyd as a hostile witness. Under the guise of refreshing Loyd's recollection the prosecutor questioned Loyd by asking him to confirm or deny statements read by the prosecutor from a document purported to be Loyd's confession. These statements inculpated Douglas in the crime. We held that Douglas' inability to cross-examine Loyd denied Douglas 'the right of cross-examination secured by the Confrontation Clause.' 380 U.S., at 419, 85 S.Ct. at 1077. We noted that 'effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer.' Id., at 420, 85 S.Ct., at 1077. The risk of prejudice in petitioner's case was even more serious than in Douglas. In Douglas we said, 'Although the Solicitor's reading of Loyd's alleged statement, and Loyd's refusals to answer, were not technically testimony, the Solicitor's reading may well have been the equivalent in the jury's mind of testimony that Loyd in fact made the statement; and Loyd's reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true.' Id., at 419, 85 S.Ct., at 1077. Here Evans' oral confessions were in fact testified to, and were therefore actually in evidence. That testimony was legitimate evidence against Evans and to that extent was properly before the jury during its deliberations. Even greater, then, was the likelihood that the jury would believe Evans made the statements and that they were true—not just the self-incriminating portions but those implicating petitioner as well. Plainly, the introduction of Evans' confession added substantial, perhaps even critical, weight to the Government's case in a form not subject to cross-examination, since Evans did not take the stand. Petitioner thus was denied his constitutional right of confrontation.
5
Delli Paoli assumed that this encroachment on the right to confrontation could be avoided by the instruction to the jury to disregard the inadmissible hearsay evidence.3 But, as we have said, that assumption has since been effectively repudiated. True, the repudiation was not in the context of the admission of a confession inculpating a codefendant but in the context of a New York rule which submitted to the jury the question of the voluntariness of the confession itself. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. Nonetheless the message of Jackson for Delli Paoli was clear. We there held that a defendant is constitutionally entitled at least to have the trial judge first determine whether a confession was made voluntrarily before submitting it to the jury for an assessment of its credibility. More specifically, we expressly rejected the proposition that a jury, when determining the confessor's guilt, could be relied on to ignore his confession of guilt should it find the confession involuntary. Id., at 388—389, 84 S.Ct., at 1786—1788. Significantly, we supported that conclusion in part by reliance upon the dissenting opinion of Mr. Justice Frankfurter for the four Justices who dissented in Delli Paoli. Id., at 388, n. 15, 84 S.Ct., at 1787.
6
That dissent challenged the basic premise of Delli Paoli that a properly instructed jury would ignore the confessor's inculpation of the nonconfessor in determining the latter's guilt. 'The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell.' 352 U.S., at 247, 77 S.Ct., at 302. The dissent went on to say, as quoted in the cited note in Jackson, 'The Government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.' Id., at 248, 77 S.Ct., at 303. To the same effect, and also cited in the Jackson note, is the statement of Mr. Justice Jackson in his concurring opinion in Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790: 'The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction. * * *'4
7
The significance of Jackson for Delli Paoli was suggested by Chief Justice Traynor in People v. Aranda, 63 Cal.2d 518, 528—529, 47 Cal.Rptr. 353, 358—359, 407 P.2d 265, 271—272:
8
'Although Jackson was directly concerned with obviating any risk that a jury might rely on an unconstitutionally obtained confession in determining the defendant's guilt, its logic extends to obviating the risks that the jury may rely on any inadmissible statements. If it is a denial of due process to rely on a jury's presumed ability to disregard an involuntary confession, it may also be a denial of due process to rely on a jury's presumed ability to disregard a codefendant's confession implicating another defendant when it is determining that defendant's guilt or innocence.
9
'Indeed, the latter task may be an even more difficult one for the jury to perform than the former. Under the New York procedure, which Jackson held violated due process, the jury was only required to disregard a confession it found to be involuntary. If it made such a finding, then the confession was presumably out of the case. In joint trials, however, when the admissible confession of one defendant inculpates another defendant, the confession is never deleted from the case and the jury is expected to perform the overwhelming task of considering it in determining the guilt or innocence of the declarant and then of ignoring it in determining the guilt or innocence of any codefendants of the declarant. A jury cannot 'segregate evidence into separate intellectual boxes.' * * * It cannot determine that a confession is true insofar as it admits that A has committed criminal acts with B and at the same time effectively ignore the inevitable conclusion that B has committed those same criminal acts with A.'5
10
In addition to Jackson, our action in 1966 in amending Rule 14 of the Federal Rules of Criminal Procedure also evidences our repudiation of Delli Paoli's basic premise. Rule 14 authorizes a severance where it appears that a defendant might be prejudiced by a joint trial.6 The Rule was amended in 1966 to provide expressly that '(i)n ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.' The Advisory Committee on Rules said in explanation of the amendment:
11
'A defendant may be prejudiced by the admission in evidence against a co-defendant of a statement or confession made by that co-defendant. This prejudice cannot be dispelled by cross-examination if the co-defendant does not take the stand. Limiting instructions to the jury may not in fact erase the prejudice. * * *
12
'The purpose of the amendment is to provide a procedure whereby the issue of possible prejudice can be resolved on the motion for severance. * * *'7
13
Those who have defended reliance on the limiting instruction in this area have cited several reasons in support. Judge Learned Hand, a particularly severe critic of the proposition that juries could be counted on to disregard inadmissible hearsay,8 wrote the opinion for the Second Circuit which affirmed Delli Paoli's conviction. 229 F.2d 319. In Judge Hand's view the limiting instruction, although not really capable of preventing the jury from considering the prejudicial evidence, does as a matter of form provide a way around the exclusionary rules of evidence that is defensible because it 'probably furthers, rather than impedes, the search for truth * * *.' Nash v. United States, 2 Cir., 54 F.2d 1006, 1007. Insofar as this implies the prosecution ought not to be denied the benefit of the confession to prove the confessor's guilt,9 however, it overlooks alternative ways of achieving that benefit without at the same time infringing the nonconfessor's right of confrontation.10 Where viable alternatives do exist, it is deceptive to rely on the pursuit of truth to defend a clearly harmful practice.
14
Another reason cited in defense of Delli Paoli is the justification for joint trials in general, the argument being that the benefits of joint proceedings should not have to be sacrificed by requiring separate trials in order to use the confession against the declarant. Joint trials do conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial. But the answer to this argument was cogently stated by Judge Lehman of the New York Court of Appeals, dissenting in People v. Fisher, 249 N.Y. 419, 432, 164 N.E. 336, 341:
15
'We still adhere to the rule that an accused is entitled to confrontation of the witnesses against him and the right to cross-examine them * * *. We destroy the age-old rule which in the past has been regarded as a fundamental principle of our jurisprudence by a legalistic formula, required of the judge, that the jury may not consider any admissions against any party who did not join in them. We secure greater speed, economy and convenience in the administration of the law at the price of fundamental principles of constitutional liberty. That price is too high.'
16
Finally, the reason advanced by the majority in Delli Paoli was to tie the result to maintenance of the jury system. 'Unless we proceed on the basis that the jury will follow the court's instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense.' 352 U.S., at 242, 77 S.Ct., at 300. We agree that there are many circumstances in which this reliance is justified. Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. 'A defendant is entitled to a fair trial but not a perfect one.' Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593; see Hopt v. People of Utah, 120 U.S. 430, 438, 7 S.Ct. 614, 617, 30 L.Ed. 708; cf. Fed.Rule Crim.Proc. 52(a). It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge's instructions to disregard such information. Nevertheless, as was recognized in Jackson v. Denno, supra, there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Compare Hopt v. People of Utah, supra; Throckmorton v. Holt, 180 U.S. 552, 567, 21 S.Ct. 474, 480, 45 L.Ed. 663; Mora v. United States, 5 Cir., 190 F.2d 749; Holt v. United States, 10 Cir., 94 F.2d 90. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others.11 The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.12 Pointer v. State of Texas, supra.
17
We, of course, acknowledge the impossibility of determining whether in fact the jury did or did not ignore Evans' statement inculpating petitioner in determining petitioner's guilt. But that was also true in the analogous situation in Jackson v. Denno, and was not regarded as militating against striking down the New York procedure there involved. It was enough that that procedure posed 'substantial threats to a defendant's constitutional rights to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined. These hazards we cannot ignore.' 378 U.S., at 389, 84 S.Ct., at 1787, 12 L.Ed.2d 908. Here the introduction of Evans' confession posed a substantial threat to petitioner's right to confront the witnesses against him, and this is a hazard we cannot ignore. Despite the concededly clear instructions to the jury to disregard Evans' inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross-examination. The effect is the same as if there had been no instruction at all. See Anderson v. United States, 318 U.S. 350, 356—357, 63 S.Ct. 599, 602, 87 L.Ed. 829; cf. Burgett v. State of Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319.
18
Reversed.
19
Mr. Justice BLACK concurs in the result for the reasons stated in the dissent in Delli Paoli v. United States, 352 U.S. 232, 246, 77 S.Ct. 294, 302, 1 L.Ed.2d 278.
20
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
21
Mr. Justice STEWART, concurring.
22
I join the opinion and judgment of the Court. Although I did not agree with the decision in Jackson v. Denno, 378 U.S. 368 (see id., at 427), 84 S.Ct. 1774, at 1807, 12 L.Ed.2d 908, I accept its holding and share the Court's conclusion that it compels the overruling of Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278.
23
Quite apart from Jackson v. Denno, however, I think it clear that the underlying rationale of the Sixth Amendment's Confrontation Clause precludes reliance upon cautionary instructions when the highly damaging out-ofcourt statement of a codefendant, who is not subject to cross-examination, is deliberately placed before the jury at a joint trial. A basic premise of the Confrontation Clause, it seems to me, is that certain kinds of hearsay (see, e.g., Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934) are at once so damaging, so suspect, and yet so difficult to discount, that jurors cannot be trusted to give such evidence the minimal weight it logically deserves, whatever instructions the trial judge might give. See the Court's opinion, ante, at 136, n. 12. It is for this very reason that an out-of-court accusation is universally conceded to be constitutionally inadmissible against the accused, rather than admissible for the little it may be worth. Even if I did not consider Jackson v. Denno controlling, therefore, I would still agree that Delli Paoli must be overruled.
24
Mr. Justice WHITE, dissenting.
25
Whether or not Evans' confession was inadmissible against him, nothing in that confession which was relevant and material to Bruton's case was admissible against Bruton. As to him it was inadmissible hearsay, a presumptively unreliable out-of-court statement of a nonparty who was not a witness subject to cross-examination. Admitting Evans' confession against Bruton would require a new trial unless the error was harmless.
26
The trial judge in this case had no different view. He admitted Evans' confession only against Evans, not against Bruton, and carefully instructed the jury to disregard it in determining Bruton's guilt or innocence.* Contrary to its ruling just a decade ago in Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), the Court now holds this instruction insufficient and reverses Bruton's conviction. It would apparently also reverse every other case where a court admits a codefendant's confession implicating a defendant, regardless of cautionary instructions and regardless of the circumstances. I dissent from this excessively rigid rule. There is nothing in this record to suggest that the jury did not follow the trial judge's instructions. There has been no new learning since Delli Paoli indicating that juries are less reliable than they were considered in that case to be. There is nothing in the prior decisions of this Court which supports this new constitutional rule.
27
The Court concedes that there are many instances in which reliance on limiting instructions is justified—'(N)ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently.' Ante, at 135. The Court asserts, however, that the hazards to the defendant of permitting the jury to hear a codefendant's confession implicating him are so severe that we must assume the jury's inability to heed a limiting instruction. This was the holding of the Court with respect to a confession of the defendant himself in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). There are good reasons, however, for distinguishing the codefendant's confession from that of the defendant himself and for trusting in the jury's ability to disregard the former when instructed to do so.
28
First, the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him. Though itself an out-of-court statement, it is admitted as reliable evidence because it is an admission of guilt by the defendant and constitutes direct evidence of the facts to which it relates. Even the testimony of an eyewitness may be less reliable than the defendant's own confession. An observer may not correctly perceive, understand, or remember the acts of another, but the admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so. This was the conclusion of the Court in Jackson, and I continue to believe that case to be sound law.
29
Second, it must be remembered that a coerced confession is not excluded because it is thought to be unreliable. Regardless of how true it may be, it is excluded because specific provisions of the Constitution demand it, whatever the consequences for the criminal trial. In Jackson itself it was stated that '(i)t is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession * * *.' 378 U.S., at 376, 84 S.Ct., at 1780. See id., at 385—386, 84 S.Ct., at 1785—1786. In giving prospective effect only to its rules in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court specifically reaffirmed the principle that coerced confessions are inadmissible regardless of their truth or falsity, Johnson v. State of New Jersey, 384 U.S. 719, 729, n. 9, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966). The Court acknowledged that the rules of Miranda apply to situations 'in which the danger (of unreliable statements) is not necessarily as great as when the accused is subjected to overt and obvious coercion.' Id., at 730, 86 S.Ct., at 1779. And, in Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453 (1966), holding the rule of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), not retroactive, the Court quite explicitly stated that 'the Fifth Amendment's privilege against self-incrimination is not an adjunct to the ascertainment of truth. That privilege, like the guarantees of the Fourth Amendment, stands as a protection of quite different constitutional values * * *.' The exclusion of probative evidence in order to serve other ends is sound jurisprudence but, as the Court concluded in Jackson v. Denno, 378 U.S., at 382, 84 S.Ct., at 1783, juries would have great difficulty in understanding that policy, in putting the confession aside, and in finding the confession involuntary if the consequence was that it could not be used in considering a defendant's guilt or innocence.
30
The situation in this case is very different. Here we deal with a codefendant's confession which is admitted only against the codefendant and with a firm instruction to the jury to disregard it in determining the defendant's guilt or innocence. That confession cannot compare with the defendant's own confession in evidentiary value. As to the defendant, the confession of the codefendant is wholly inadmissible. It is hearsay, subject to all the dangers of inaccuracy which characterize hearsay generally. Furthermore, the codefendant is no more than an eyewitness, the accuracy of whose testimony about the defendant's conduct is open to more doubt than would be the defendant's own account of his actions. More than this, however, the statements of a codefendant have traditionally been viewed with special suspicion. Crawford v. United States, 212 U.S. 183, 204, 29 S.Ct. 260, 268, 53 L.Ed. 465 (1909); Holmgren v. United States, 217 U.S. 509, 523—524, 30 S.Ct. 588, 591—592, 54 L.Ed. 861 (1910). See also Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 198, 61 L.Ed. 442 (1917); Mathes, Jury Instruction and Forms for Federal Criminal Cases, 27 F.R.D. 39, 68—69 (1961). Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant's statements about what the defendant said or did are less credible than ordinary hearsay evidence. Whereas the defendant's own confession possesses greater reliability and evidentiary value than ordinary hearsay, the codefendant's confession implicating the defendant is intrinsically much less reliable.
31
The defendant's own confession may not be used against him if coerced, not because it is untrue but to protect other constitutional values. The jury may have great difficulty understanding such a rule and following an instruction to disregard the confession. In contrast, the codefendant's admissions cannot enter into the determination of the defendant's guilt or innocence because they are unreliable. This the jury can be told and can understand. Just as the Court believes that juries can reasonably be expected to disregard ordinary hearsay or other inadmissible evidence when instructed to do so, I believe juries will disregard the portions of a codefendant's confession implicating the defendant when so instructed. Indeed, if we must pick and choose between hearsay as to which limiting instructions will be deemed effective and hearsay the admission of which cannot be cured by instructions, codefendants' admissions belong in the former category rather than the latter, for they are not only hearsay but hearsay which is doubly suspect. If the Court is right in believing that a jury can be counted on to ignore a wide range of hearsay statements which it is told to ignore, it seems very old to me to question its ability to put aside the codefendant's hearsay statements about what the defendant did.
32
It is a common experience of all men to be informed of 'facts' relevant to an issue requiring their judgment, and yet to disregard those 'facts' because of sufficient grounds for discrediting their veracity or the reliability of their source. Responsible judgment would be impossible but for the ability of men to focus their attention wholly on reliable and credible evidence, and jurymen are no less capable of exercising this capacity than other men. Because I have no doubt that serious-minded and responsible men are able to shut their minds to unreliable information when exercising their judgment, I reject the assumption of the majority that giving instructions to a jury to disregard a codefendant's confession is an empty gesture.
33
The rule which the Court announces today will severely limit the circumstances in which defendants may be tried together for a crime which they are both charged with committing. Unquestionably, joint trials are more economical and minimize the burden on witnesses, prosecutors, and courts. They also avoid delays in bringing those accused of crime to trial. This much the Court concedes. It is also worth saying that separate trials are apt to have varying consequences for legally indistinguishable defendants. The unfairness of this is confirmed by the common prosecutorial experience of seeing codefendants who are tried separately strenuously jockeying for position with regard to who should be the first to be tried.
34
In view of the practical difficulties of separate trials and their potential unfairness, I am disappointed that the Court has not spelled out how the federal courts might conduct their business consistent with today's opinion. I would suppose that it will be necessary to exclude all extrajudicial confessions unless all portions of them which implicate defendants other than the declarant are effectively deleted. Effective deletion will probably require not only omission of all direct and indirect inculpations of codefendants but also of any statement that could be employed against those defendants once their identity is otherwise established. Of course, the deletion must not be such that it will distort the statements to the substantial prejudice of either the declarant or the Government. If deletion is not feasible, then the Government will have to choose either not to use the confession at all or to try the defendants separately. To save time, money, and effort, the Government might best seek a ruling at the earliest possible stage of the trial proceedings as to whether the confession is admissible once offending portions are deleted. The failure of the Government to adopt and follow proper procedures for insuring that the inadmissible portions of confessions are excluded will be relevant to the question of whether it was harmless error for them to have gotten before the jury. Oral statements, such as that involved in the present case, will present special problems, for there is a risk that the witness in testifying will inadvertently exceed permissible limits. Except for recommending that caution be used with regard to such oral statements, it is difficult to anticipate the issues which will arise in concrete factual situations.
35
I would hope, but am not sure, that by using these procedures the federal courts would escape reversal under today's ruling. Even so, I persist in believing that the reversal of Delli Paoli unnecessarily burdens the already difficult task of conducting criminal trials, and therefore I dissent in this case.
36
Mr. Justice HARLAN joins this opinion without abandoning his original disagreement with Jackson v. Denno, 378 U.S. 368, 427, 84 S.Ct. 1774, 1807, 12 L.Ed.2d 908, expressed in his dissenting opinion in that case.
1
The trial began June 20, 1966, one week after the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Court of Appeals held, 375 F.2d, at 357, that Miranda and its companion cases were therefore applicable and controlling on the question of the admissibility in evidence of the postal inspector's testimony as to Evans' admissions. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. On April 8, 1966, St. Louis police officers, without giving Evans preliminary warnings of any kind and in the absence of counsel, obtained an oral confession during an interrogation at the city jail. The police informed the postal inspector, who interrogated Evans at the jail on April 11 and May 4, 1966; he obtained the oral confession expressly implicating petitioner on the latter date. On the merits, the Court of Appeals held, 375 F.2d, at 361, that Evans' admissions to the postal inspector 'were tainted and infected by the poison of the prior, concededly unconstitutional confession obtained by the local officer,' and were therefore inadmissible under Westover v. United States, decided with Miranda, 384 U.S., at 494—497, 86 S.Ct., at 1638 1640. On the retrial, Evans was acquitted.
2
At the close of the Government's direct case, the trial judge cautioned the jury that Evans' admission implicating petitioner 'if used, can only be used against the defendant Evans. It is hearsay insofar as the defendant George William Bruton is concerned, and you are not to consider it in any respect to the defendant Bruton, because insofar as he is concerned it is hearsay.'
The instructions to the jury included the following:
'A confession made outside of court by one defendant may not be considered as evidence against the other defendant, who was not present and in no way a party to the confession. Therefore, if you find that a confession was in fact voluntarily and intentionally made by the defendant Evans, you should consider it as evidence in the case against Evans, but you must not consider it, and should disregard it, in considering the evidence in the case against the defendant Bruton.FN
'It is your duty to give separate, personal consideration to the cause of each individual defendant. When you do so, you should analyze what the evidence shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant. Each defendant is entitled to have his case determined from his own acts and statements and the other evidence in the case which may be applicable to him.'
3
We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence, see Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790; Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196, the problem arising only because the statement was (but for the violation of Westover, supra, n. 1) admissible against the declarant Evans. See C. McCormick, Evidence § 239 (1954); 4 J. Wigmore, Evidence §§ 1048—1049 (3d ed. 1940); Morgan, Admissions as an Exception to the Hearsay Rule, 30 Yale L.J. 355 (1921). See generally Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159 (1954); Comment, Post-Conspiracy Admissions in Joint Prosecutions, 24 U.Chi.L.Rev. 710 (1957); Note, Criminal Conspiracy, 72 Harv.L.Rev. 920, 984—990 (1959). There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause. See Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409. See generally McCormick, supra § 224; 5 Wigmore, supra, §§ 1362—1365, 1397; Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177 (1948).
4
Several cases since Delli Paoli have refused to consider an instruction as inevitably sufficient to avoid the setting aside of convictions. See, e.g., United States ex rel. Floyd v. Wilkins, 2 Cir., 367 F.2d 990; United States v. Bozza, 2 Cir., 365 F.2d 206; Greenwell v. United States, 119 U.S.App.D.C. 43, 336 F.2d 962; Jones v. United States, 119 U.S.App.D.C. 284, 342 F.2d 863; Barton v. United States, 5 Cir., 263 F.2d 894; United States ex rel. Hill v. Deegan, D.C., 268 F.Supp. 580. In Bozza the Court of Appeals for the Second Circuit stated:
'It is impossible realistically to suppose that when the twelve good men and women had Jones' confession in the privacy of the jury room, not one yielded to the nigh irresistible temptation to fill in the blanks with the keys Kuhle had provided and ask himself the intelligent question to what extent Jones' statement supported Kuhle's testimony, or that if anyone did yield, his colleagues effectively persuaded him to dismiss the answers from his mind.' 365 F.2d, at 215.
State decisions which have rejected Delli Paoli include People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265; State v. Young, 46 N.J. 152, 215 A.2d 352. See also People v. Barbaro, 395 Ill. 264, 69 N.E.2d 692; State v. Rosen, 151 Ohio St. 339, 86 N.E.2d 24.
It has been suggested that the limiting instruction actually compounds the jury's difficulty in disregarding the inadmissible hearsay. See Broeder, The University of Chicago Jury Project, 38 Neb.L.Rev. 744, 753—755 (1959).
5
See Pointer v. State of Texas, supra, 380 U.S. at 405, 85 S.Ct. at 1068: 'Indeed, we have expressly declared that to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment's guarantee of due process of law.'
6
Joinder of defendants is governed by Rules 8(b) and 14 of the Federal Rules of Criminal Procedure. 'The rules are designed to promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.' Daley v. United States, 1 Cir., 231 F.2d 123, 125. An important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence. See, e.g., Blumenthal v. United States, 332 U.S. 539, 559—560, 68 S.Ct. 248, 257—258, 92 L.Ed. 154.
7
34 F.R.D. 419. See generally Note, Joint and Single Trials Under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 553 (1965).
8
Judge Hand addressed the subject several times. The limiting instruction, he said, is a 'recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody's else,' Nash v. United States, 2 Cir., 54 F.2d 1006, 1007; 'Nobody can indeed fail to doubt whether the caution is effective, or whether usually the practical result is not to let in hearsay,' United States v. Gottfried, 2 Cir., 165 F.2d 360, 367; 'it is indeed very hard to believe that a jury will, or for that matter can, in practice observe the admonition,' United States v. Delli Paoli, 2 Cir., 229 F.2d 319, 321. Judge Hand referred to the instruction as a 'placebo,' medically defined as 'a medicinal lie.' Judge Jerome Frank suggested that its legal equivalent 'is a kind of 'judicial lie': It undermines a moral relationship between the courts, the jurors, and the public; like any other judicial deception, it damages the decent judicial administration of justice.' United States v. Grunewald, 2 Cir., 233 F.2d 556, 574. See also 8 Wigmore, supra, n. 3, § 2272, at 416.
Compare E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 105 (1956), who suggests that the use of limiting instructions fosters an inconsistent attitude toward juries by 'treating them at times as a group of low-grade morons and at other times as men endowed with a superhuman ability to control their emotions and intellects.' See also Shepard v. United States, 290 U.S. 96, 104, 54 S.Ct. 22, 25, 78 L.Ed. 196; Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U.Chi.L.Rev. 317, 326 (1954).
9
In this case, however, Evans' conviction was reversed on the ground that his confessions were inadmissible in evidence even against him, and on his retrial he was acquitted. In People v. Aranda, supra, 63 Cal.2d, at 526, 47 Cal.Rptr., at 358, 407 P.2d, at 270, it was said: 'When, however, the confession implicating both defendants is not admissible at all, there is no longer room for compromise. The risk of prejudicing the nonconfessing defendant can no longer be justified by the need for introducing the confession against the one who made it. Accordingly, we have held that the erroneous admission into evidence of a confession implicating both defendants is not necessarily cured by an instruction that it is to be considered only against the declarant.' See also Jones v. United States and Greenwell v. United States, both supra, n. 4.
10
Some courts have required deletion of references to codefendants where practicable. See, e.g., Oliver v. United States, 118 U.S.App.D.C. 302, 335 F.2d 724; People v. Vitagliano, 15 N.Y.2d 360, 258 N.Y.S.2d 839, 206 N.E.2d 864; People v. La Belle, 18 N.Y.2d 405, 276 N.Y.S.2d 105, 222 N.E.2d 727. For criticisms suggesting that deletions (redaction) from the confession are ineffective, see, e.g., Note, 72 Harv.L.Rev. 920, 990 (1959); Comment, 24 U.Chi.L.Rev. 710, 713 (1957); Note, 74 Yale L.J. 553, 564 (1965).
In this case Evans' confessions were offered in evidence through the oral testimony of the postal inspector. It has been said: 'Where the confession is offered in evidence by means of oral testimony, redaction is patently impractical. To expect a witness to relate X's confession without including any of its references to Y is to ignore human frailty. Again, it is unlikely that an intentional or accidental slip by the witness could be remedied by instructions to disregard.' Note, 3 Col.J. of Law & Soc.Prob. 80, 88 (1967).
Some courts have promulgated rules governing the use of the confessions. See n. 4, supra. See also rules suggested by Judge Frank, dissenting in Delli Paoli v. United States, 2 Cir., 229 F.2d 319, 324.
11
See Crawford v. United States, 212 U.S. 183, 204, 29 S.Ct. 260, 268, 53 L.Ed. 465; Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 198, 61 L.Ed. 442; Stoneking v. United States, 8 Cir., 232 F.2d 385.
12
It is suggested that because the evidence is so unreliable the need for cross-examination is obviated. This would certainly seem contrary to the acceptance of the rule of evidence which would require exclusion of the confession as to Bruton as 'inadmissible hearsay, a presumptively unreliable out-of-court statement of a nonparty who was not a witness subject to cross-examination.' Post, at 138. 'The theory of the Hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of Cross-examination.' 5 Wigmore, Evidence § 1362, at 3. The reason for excluding this evidence as an evidentiary matter also requires its exclusion as a constitutional matter. Surely the suggestion is not that Pointer v. State of Texas, for example, be repudiated and that all hearsay evidence be admissible so long as the jury is properly instructed to weigh it in light of 'all the dangers of inaccuracy which characterize hearsay generally.' Post, at 141.
*
As the Court observes, '(i)f * * * the jury disregarded the reference to the codefendant, no question would arise under the Confrontation Clause * * *.' Ante, at 126. Because in my view juries can reasonably be relied upon to disregard the codefendant's references to the defendant, there is no need to explore the special considerations involved in the Confrontation Clause.
| 01
|
391 U.S. 353
88 S.Ct. 1666
20 L.Ed.2d 642
Robert ZWICKER et al.v.James BOLL et al.
No. 573, Misc.
Supreme Court of the United States
October Term, 1967.
May 20, 1968
Melvyn Zarr, William M. Kunstler and Anthony G. Amsterdam, for appellants.
Bronson C. La Follette, Atty. Gen. of Wisconsin, and William A. Platz, Thomas A. Lockyear, and Charles A. Bleck, Asst. Attys. Gen., for appellees.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis is granted. The motion to affirm is also granted and the judgment is affirmed. Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182.
2
Mr. Justice DOUGLAS, dissenting.
3
Appellants are graduate and undergraduate students at the University of Wisconsin and are active in student political and civil rights organizations. They brought an action in the District Court for the Western District of Wisconsin, seeking a declaratory judgment that the Wisconsin disorderly conduct statute1 is overbroad and therefore unconstitutional on its face, or an injunction restraining state criminal prosecutions under that statute which were pending against them.
4
Appellants alleged in their complaint that preceding their arrests they were engaged only in peaceful and constitutionally protected protest activities. Appellants were protesting against American policy in Vietnam. The arrests were made in various buildings of the University of Wisconsin in which appellants and others had gathered to object to a chemical manufacturer of napalm being permitted to conduct employment interviews in the buildings. Appellants were arrested under a 'disorderly conduct' statute. We know that such statutes historically have been used in reprisal against unpopular groups or persons who espouse unpopular causes. Cf. Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; Taylor v. State of Louisiana, 370 U.S. 154, 82 S.Ct. 1188, 8 L.Ed.2d 395; Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207. But that is a practice no longer permissible now that the First Amendment is applicable to the States by reason of the Fourteenth.
5
A three-judge court was convened which dismissed the complaint after oral argument but without conducting an evidentiary hearing. Judge Fairchild, concurring, believed that 28 U.S.C. § 22832 prohibited the issuance of an injunction; Judge Doyle, dissenting, was of the contrary opinion. Judge Gordon found it unnecessary to reach that question, deciding rather to abstain in favor of the state criminal proceedings.
6
In addition to attacking the statute as void on its face for overbreadth, appellants alleged that their arrests were made and prosecutions instituted for purposes of harassment and in a discriminatory manner on account of their political beliefs.3 Appellees in their answer denied these allegations and attached copies of the complaints filed in the state criminal proceedings which alleged that appellants were interfering with classes or interviews in the buildings by speaking in loud voices or by refusing to leave when requested to do so.
7
We stated in Dombrowski v. Pfister, 380 U.S. 479, 489-490, 85 S.Ct. 1116, 1122-1123, 14 L.Ed.2d 22, that the abstention doctrine is inappropriate for cases in which state statutes are justifiably challenged either on their face or 'as applied for the purpose of discouraging protected activities.' In my view, appellants have adequately alleged in their complaint that their arrests and prosecutions were effected in bad faith and in a discriminatory manner in order to punish and discourage exercise of constitutionally protected rights. Since an issue of fact is presented, I would remand to the court below with directions to conduct a plenary hearing on the point.4
8
Appellants have alleged in their complaint facts surrounding their arrests which suggest harassment solely on account of the nature of appellants' protest.5 Moreover, the criminal complaints filed against several of the appellants in the state court, and appended to the appellees' answer in this case, raise a strong suspicion that the arrests and prosecutions were carried out in bad faith.6
9
Where there are allegations of bad faith, harassment, and discrimination, critical evidence on the matter can only be drawn out upon cross-examination of the officials involved. The question is not the guilt or innocence of the persons charged, but whether their arrests were made and prosecutions commenced in bad faith, for purposes of harassment and in a discriminatory manner. See Cameron v. Johnson, 390 U.S. 611, 619-620, 621, 88 S.Ct. 1335, 1340-1341, 20 L.Ed.2d 182. If the charge that the statute was used in bad faith were shown, a federal claim would be established.7 And it would not matter what the state courts later did, for the interim 'continuing harassment' of appellants for exercising their First Amendment rights would entitle them to relief. See Dombrowski v. Pfister, 380 U.S., AT 490, 85 S.Ct., at 1123.
10
For these reasons I would note probable jurisdiction, vacate the judgment below, and remand the case for a preliminary hearing on the issue of the use of a disorderly conduct statute to punish people for expression of their unpopular views.
1
Wis.Stat. § 947.01 reads in pertinent part:
'947.01. Disorderly conduct. Whoever does any of the following may be fined not more than $100 or imprisoned not more than 30 days: (1) In a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance. * * *'
2
28 U.S.C. § 2283 provides:
'A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.'
3
Paragraphs 12 and 13 of appellants' complaint alleged:
'Plaintiffs allege that their arrest under this Statute is basically for the lawful purpose of depriving them of their rights of freedom of speech assembly association, and petitioning their Government for a redress of grievances guaranteed by the First and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983. Further enforcement of Section 947.01, Wisconsin Statutes, the Disorderly Conduct Statute, will have the effect of punishing those plaintiffs now being prosecuted for the exercise of rights, privileges and immunities secured to them by the Constitution and laws of the United States; has [sic] and will deter plaintiffs and others similarly situated from the future exercise of these rights, privileges and immunities; has encouraged and will encourage defendants and other State, County or local officials, acting under color of law, to engage in further acts of intimidation, harassment, threats and other actions meant to prevent and deter plaintiffs and others similarly situated from the exercise of these rights, privileges, and immunities.
* * *
'Plaintiffs allege that their arrests and prosecutions have been and are being carried on with the basic purpose and effects of intimidating and harassing them and punishing them for and deterring them from, exercise of their constitutionally protected rights of free speech and assembly and association to:
'1. Oppose and protest the policies of the United States Government, the State of Wisconsin, and the University of Wisconsin in supporting and contributing to the war effort in Vietnam;
'2. Oppose and protest the foreign policy of the United States;
'3. Or otherwise publicly express unpopular and unorthodox views on public issues of vital concern.
'This intimidation and harassment of plaintiffs is pursuant to a policy of political discrimination which is encouraged, followed and enforced by legislation including the Disorderly Conduct Statute, Section 947.01 of the Wisconsin Statutes, and by action of the executive or judicial branches of the State of Wisconsin. The Disorderly Conduct Statute, 947.01, Wisconsin Statutes, is unconstitutional on its face and as applied. It permits and encourages Wisconsin executive or judicial officials to discriminate against plaintiffs and others similarly situated by reason of political beliefs and ideas, and to intimidate and harass by arrest, detention, brutality, excessive bail and prosecution or the threat thereof, plaintiffs or all who exercise their rights of free speech, assembly, association and petitioning their Government for redress of grievances to express unpopular or unorthodox views on public issues of vital concern or to protest and oppose certain policies of the United States, the State of Wisconsin or the University of Wisconsin on vital public issues, contrary to the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States.'
4
Whether § 2283 constitutes a bar to issuance of an injunction is a question the Court has refrained from deciding in circumstances where it appears that an injunction might be improper on other grounds. See Cameron v. Johnson, 390 U.S. 611, 613, n. 3 (majority opinion), 628, n. 5 (dissenting opinion), 88 S.Ct. 1335, 1337, 1344, 20 L.Ed.2d 182.
5
The complaint alleges that appellant Cohen attempted to enter the university's Commerce Building carrying signs protesting the use of napalm in Vietnam and the university's policy permitting a chemical manufacturer of napalm to conduct employment interviews in the building. Cohen, who was alone, was stopped just inside the door by police officers and told he could not enter the building with signs. He attempted to enter with the signs and was grabbed by an officer and pushed away. Appellee Hansen (chief of the university's department of protection and security) was summoned. He allegedly grabbed Cohen's signs and threw them out the door into the snow. When Cohen asked why he did that, Hansen allegedly replied, 'Because you make me nervous all the time, you make me nervous.' Hansen then allegedly jostled Cohen and stated, 'I don't like you.' Cohen and Hansen then moved to a point in the building where some other students, including appellant Zwicker, were conducting a discussion. Cohen told the group that his signs had been destroyed; other signs appeared and one was handed to Cohen. Hansen allegedly began yelling that people could not talk in the building and could not have signs, and then began tearing up the signs. Some jostling and shoving apparently ensued as police allegedly attempted to grab the signs. Another university official then told Cohen to leave the building. When Cohen asked what regulation of the university he had broken, the official allegedly replied, 'I dont know, but the looks of you is enough.' Cohen was then arrested and taken from the building.
6
These documents suggest that the arrests may have been made because the appellants were a nuisance to the university rather than because of 'disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance.' Wis.Stat. § 947.01(1).
For example, while the complaint against appellant Webb formally charges disorderliness and tendency to cause a disturbance, nothing in the complaint's statement of 'essential facts' supports the charge. The complaint alleges that Webb 'was engaged in a protest demonstration in the Chemical Engineering Building on the University of Wisconsin Madison Campus. Defendant was sitting in an interview room interfering with interviews which were being conducted for students of the University for prospective employment. Defendant was asked to leave several times and refused.' Other complaints alleged similar facts; still others alleged that certain appellants spoke in loud voices and thereby disrupted classes, language which might come within the scope of § 947.01(1) ('unreasonably loud . . . conduct [tending] to cause or provoke a disturbance'). But if appellants can demonstrate at an evidentiary hearing that, as they allege, the statute has been purposefully or intentionally enforced against them in a discriminatory manner to suppress the ideas which they espouse, appellants could not constitutionally be convicted. See Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497; Note, Discriminatory Law Enforcement and Equal Protection From the Law, 59 Yale L.J. 354 (1950). Cf. Brown v. State of Louisiana, 383 U.S. 131, 141-142, 86 S.Ct. 719, 723-724, 15 L.Ed.2d 637. And see People v. Darcy, 59 Cal.App.2d 342, 360, 139 P.2d 118, 129 (Cal.Dist.Ct.App.1943) (dissenting opinion). ('It is much better for society that an accused should go free, than for our criminal processes to be polluted by prosecutions founded on prejudice against and hatred for the political beliefs of the accused.')
7
42 U.S.C. § 1983 provides:
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
| 23
|
391 U.S. 194
88 S.Ct. 1477
20 L.Ed.2d 522
S. Edward BLOOM, Petitioner,v.STATE OF ILLINOIS.
No. 52.
Argued Jan. 16, 17, 1968.
Decided May 20, 1968.
Anthony Bradley Eben, Chicago, Ill., for petitioner.
Edward J. Hladis, Chicago, Ill., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Petitioner was convicted in an Illinois state court of criminal contempt and sentenced to imprisonment for 24 months for willfully petitioning to admit to probate a will falsely prepared and executed after the death of the putative testator. Petitioner made a timely demand for jury trial which was refused. Since in Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, the Constitution was held to guarantee the right to jury trial in serious criminal cases in state courts, we must now decide whether it also guarantees the right to jury trial for a criminal contempt punished by a two-year prison term.
I.
2
Whether federal and state courts may try criminal contempt cases without a jury has been a recurring question in this Court. Article III, § 2, of the Constitution provides that '(t)he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury * * *.' The Sixth Amendment states that '(i)n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *.' The Fifth and Fourteenth Amendments forbid both the Federal Government and the States from depriving any person of 'life, liberty, or property, without due process of law.' Notwithstanding these provisions, until United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23, rehearing denied, 377 U.S. 973, 84 S.Ct. 1642, 12 L.Ed.2d 742 (1964), the Court consistently upheld the constitutional power of the state and federal courts to punish any criminal contempt without a jury trial. Eilenbecker v. District Court of Plymouth County, 134 U.S. 31, 36—39, 10 S.Ct. 424, 426—427, 33 L.Ed. 801 (1890); I.C.C. v. Brimson, 154 U.S. 447, 488—489, 14 S.Ct. 1125, 1137—1138, 38 L.Ed. 1047 (1894); In re Debs, 158 U.S. 564, 594—596, 15 S.Ct. 900, 910—911, 39 L.Ed. 1092 (1895); Gompers v. United States, 233 U.S. 604, 610—611, 34 S.Ct. 693, 695—696, 58 L.Ed. 1115 (1914); Green v. United States, 356 U.S. 165, 183—187, 78 S.Ct. 632, 642—645, 2 L.Ed.2d 672 (1958).1 These cases construed the Due Process Clause and the otherwise inclusive language of Article III and the Sixth Amendment as permitting summary trials in contempt cases because at common law contempt was tried without a jury and because the power of courts to punish for contempt without the intervention of any other agency was considered essential to the proper and effective functioning of the courts and to the administration of justice.
3
United States v. Barnett, supra, signaled a possible change of view. The Court of Appeals for the Fifth Circuit certified to this Court the question whether there was a right to jury trial in an impending contempt proceeding. Following prior cases, a five-man majority held that there was no constitutional right to jury trial in all contempt cases. Criminal contempt, intrinsically and aside from the particular penalty imposed, was not deemed a serious offense requiring the protection of the constitutional guarantees of the right to jury trial. However, the Court put aside as not raised in the certification or firmly settled by prior cases, the issue whether a severe punishment would itself trigger the right to jury trial and indicated, without explication, that some members of the Court were of the view that the Constitution limited the punishment which could be imposed where the contempt was tried without a jury. 376 U.S., at 694—695 and n. 12, 84 S.Ct. at 991—992.
4
Two years later, in Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), which involved a prison term of six months for contempt of a federal court, the Court rejected the claim that the Constitution guaranteed a right to jury trial in all criminal contempt cases. Contempt did not 'of itself' warrant treatment as other than a petty offense; the six months' punishment imposed permitted dealing with the case as a prosecution for 'a petty offense, which under our decisions does not require a jury trial.' 384 U.S. 373, 379—380, 86 S.Ct. 1523, 1525 (1966). See Callan v. Wilson, 127 U.S. 540, 88 S.Ct. 1301, 32 L.Ed. 223 (1888); Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99 (1904); District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937). It was not necessary in Cheff to consider whether the constitutional guarantees of the right to jury trial applied to a prosecution for a serious contempt. Now, however, because of our holding in Duncan v. State of Louisiana, supra, that the right to jury trial extends to the States, and because of Bloom's demand for a jury in this case, we must once again confront the broad rule that all criminal contempts can be constitutionally tried without a jury. Barnett presaged a re-examination of this doctrine at some later time; that time has now arrived.
5
In proceeding with this task, we are acutely aware of the responsibility we assume in entertaining challenges to a constitutional principle which is firmly entrenched and which has behind it weighty and ancient authority. Our deliberations have convinced us, however, that serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution, now binding on the States, and that the traditional rule is constitutionally infirm insofar as it permits other than petty contempts to be tried without honoring a demand for a jury trial. We accept the judgment of Barnett and Cheff that criminal contempt is a petty offense unless the punishment makes it a serious one; but, in our view, dispensing with the jury in the trial of contempts subjected to severe punishment represents an unacceptable construction of the Constitution, 'an unconstitutional assumption of powers by the (courts) which no lapse of time or respectable array of opinion should make us hesitate to correct.' Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab Transfer Co., 276 U.S. 518, 533, 48 S.Ct. 404, 408, 72 L.Ed. 681 (1928) (Holmes, J., dissenting). The rule of our prior cases has strong, though sharply challenged, historical support;2 but neither this circumstance nor the considerations of necessity and efficiency normally offered in defense of the established rule, justify denying a jury trial in serious criminal contempt cases. The Constitution guarantees the right to jury trial in state court prosecutions for contempt just as it does for other crimes.
II.
6
Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes:
7
'These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.' Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. 1115 (1914).3
8
Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical—protection of the institutions of our government and enforcement of their mandates.
9
Given that criminal contempt is a crime in every fundamental respect, the question is whether it is a crime to which the jury trial provisions of the Constitution apply. We hold that it is, primarily because in terms of those considerations which make the right to jury trial fundamental in criminal cases, there is no substantial difference between serious contempts and other serious crimes. Indeed, in contempt cases an even more compelling argument can be made for providing a right to jury trial as a protection against the arbitrary exercise of official power. Contemptuous conduct, though a public wrong, often strikes at the most vulnerable and human qualities of a judge's temperament. Even when the contempt is not a direct insult to the court or the judge, it frequently represents a rejection of judicial authority, or an interference with the judicial process or with the duties of officers of the court.
10
The court has long recognized the potential for abuse in exercising the summary power to imprison for contempt—it is an 'arbitrary' power which is 'liable to abuse.' Ex parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 82, 32 L.Ed. 405 (1888). '(I)ts exercise is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions.' Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 396, 69 L.Ed. 767 (1925).4
11
These apprehensions about the unbridled power to punish summarily for contempt are reflected in the march of events in both Congress and the courts since our Constitution was adopted. The federal courts were established by the Judiciary Act of 1789; § 17 of the Act provided that those courts 'shall have power to * * * punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same * * *.' 1 Stat. 83. See Anderson v. Dunn, 6 Wheat. 204, 227—228, 5 L.Ed. 242 (1821). This open-ended authority to deal with contempt, limited only as to mode of punishment, proved unsatisfactory to Congress. Abuses under the 1789 Act culminated in the unsuccessful impeachment proceedings against James Peck, a federal district judge who had imprisoned and disbarred one Lawless for publishing a criticism of one of Peck's opinions in a case which was on appeal. The result was drastic curtailment of the contempt power in the Act of 1831, 4 Stat. 487. Ex parte Robinson, 19 Wall. 505, 510—511, 22 L.Ed. 205 (1874); In re Savin, 131 U.S. 267, 275—276, 9 S.Ct. 699, 33 L.Ed. 150 (1889). That Act limited the contempt power to misbehavior in the presence of the court or so near thereto as to obstruct justice; misbehavior of court officers in their official transactions; and disobedience of or resistance to the lawful writ, process, order, or decree of the court.5 This major revision of the contempt power in the federal sphere, which 'narrowly confined' and 'substantially curtailed' the authority to punish contempt summarily, Nye v. United States, 313 U.S. 33, 47—48, 61 S.Ct. 810, 815—816, 85 L.Ed. 1172 (1941), has continued to the present day as the basis for the general power to punish criminal contempt.6 62 Stat. 701, 18 U.S.C. § 401.
12
The courts also proved sensitive to the potential for abuse which resides in the summary power to punish contempt. Before the 19th century was out, a distinction had been carefully drawn between contempts occurring within the view of the court, for which a hearing and formal presentation of evidence were dispensed with, and all other contempts where more normal adversary procedures were required. Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888); In re Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150 (1889). Later, the Court could say 'it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself.' Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797 (1911). See Michaelson v. United States ex rel. Chicago, St. P., M. & O.R. Co., 266 U.S. 42, 66, 45 S.Ct. 18, 20, 69 L.Ed. 162 (1924). Chief Justice Taft speaking for a unanimous Court in Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 395, 69 L.Ed. 767 (1925), said:
13
'Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the panalty to be imposed.'
14
Cf. Blackmer v. United States, 284 U.S. 421, 440, 52 S.Ct. 252, 255, 76 L.Ed. 375 (1932). It has also been recognized that the defendant in criminal contempt proceedings is entitled to a public trial before an unbiased judge, In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954); see Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); but cf. Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960).7 In the federal system many of the procedural protections available to criminal contemnors are set forth in Fed.Rule Crim.Proc. 42.
15
Judicial concern has not been limited to procedure. In Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186 (1918), the Court endorsed a broad construction of the language of the Act of 1831 permitting summary trial of contempts 'so near (to the court) as to obstruct the administration of justice.' It required only that the conduct have a 'tendency to prevent and obstruct the discharge of judicial duty * * *.' Id., at 419, 38 S.Ct. at 564. See Craig v. Hecht, 263 U.S. 255, 277, 44 S.Ct. 103, 106, 68 L.Ed. 293 (1923). This view proved aberrational and was overruled in Nye v. United States, 313 U.S. 33, 47—52, 61 S.Ct. 810, 815—817, 85 L.Ed. 1172 (1941), which narrowly limited the conduct proscribed by the 1831 Act to 'misbehavior in the vicinity of the court disrupting to quiet and order or actually interrupting the court in the conduct of its business.' Id., at 52, 61 S.Ct., at 1817. Cf. Toledo Newspaper Co. v. United States, supra, 247 U.S. at 422, 38 S.Ct. at 565 (Holmes, J., dissenting). The congressional purpose to fence in the power of the federal courts to punish contempt summarily was further implemented in Cammer v. United States, 350 U.S. 399, 407—408, 76 S.Ct. 456, 460—461, 100 L.Ed. 474 (1956). A lawyer, the Court held, 'is not the kind of 'officer' who can be summarily tried for contempt under 18 U.S.C. § 401(2).' In another development, the First Amendment was invoked to ban punishment for a broad category of arguably contemptuous out-of-court conduct. Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941); Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947). Finally, over the years in the federal system there has been a recurring necessity to set aside punishments for criminal contempt as either unauthorized by statute or too harsh. E.g., Ex parte Robinson, 19 Wall. 505, 22 L.Ed. 205 (1874); United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957).8
16
This course of events demonstrates the unwisdom of vesting the judiciary with completely untrammeled power to punish contempt, and makes clear the need for effective safeguards against that power's abuse. Prosecutions for contempt play a significant role in the proper functioning of our judicial system; but despite the important values which the contempt power protects, courts and legislatures have gradually eroded the power of judges to try contempts of their own authority. In modern times, procedures in criminal contempt cases have come to mirror those used in ordinary criminal cases. Our experience teaches that convictions for criminal contempt, not infrequently resulting in extremely serious penalties, see United States v. Barnett, 376 U.S. 681, 751, 84 S.Ct. 984, 1018 (Goldberg, J., dissenting), are indistinguishable from those obtained under ordinary criminal laws. If the right to jury trial is a fundamental matter in other criminal cases, which we think it is, it must also be extended to criminal contempt cases.
III.
17
Nor are there compelling reasons for a contrary result. As we read the earlier cases in this Court upholding the power to try contempts without a jury, it was not doubted that the summary power was subject to abuse or that the right to jury trial would be an effective check. Rather, it seems to have been thought that summary power was necessary to preserve the dignity, independence, and effectiveness of the judicial process—'To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency.' In re Debs, 158 U.S. 564, 595, 15 S.Ct. 900, 910, 39 L.Ed. 1092 (1895). It is at this point that we do not agree: in our judgment, when serious punishment for contempt is contemplated, rejecting a demand for jury trial cannot be squared with the Constitution or justified by considerations of efficiency or the desirability of vindicating the authority of the court.
18
We cannot say that the need to further respect for judges and courts is entitled to more consideration than the interest of the individual not to be subjected to serious criminal punishment without the benefit of all the procedural protections worked out carefully over the years and deemed fundamental to our system of justice. Genuine respect, which alone can lend true dignity to our judicial establishment, will be engendered, not by the fear of unlimited authority, but by the firm administration of the law through those institutionalized procedures which have been worked out over the centuries.
19
We place little credence in the notion that the independence of the judiciary hangs on the power to try contempts summarily and are not persuaded that the additional time and expense possibly involved in submitting serious contempts to juries will seriously handicap the effective functioning of the courts. We do not deny that serious punishment must sometimes be imposed for contempt, but we reject the contention that such punishment must be imposed without the right to jury trial. The goals of dispatch, economy, and efficiency are important, but they are amply served by preserving the power to commit for civil contempt and by recognizing that many contempts are not serious crimes but petty offenses not within the jury trial provisions of the Constitution. When a serious contempt is at issue, considerations of efficiency must give way to the more fundamental interest of ensuring the even-handed exercise of judicial power. In isolated instances recalcitrant or irrational juries may acquit rather than apply the law to the case before them. Our system has wrestled with this problem for hundreds of years, however, and important safeguards have been devised to minimize miscarriages of justice through the malfunctioning of the jury system. Perhaps to some extent we sacrifice efficiency, expedition, and economy, but the choice in favor of jury trial has been made, and retained, in the Constitution. We see no sound reason in logic or policy not to apply it in the area of criminal contempt.
20
Some special mention of contempts in the presence of the judge is warranted. Rule 42(a) of the Federal Rules of Criminal Procedure provides that '(a) criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.' This rule reflects the common-law rule which is widely if not uniformly followed in the States. Although Rule 42(a) is based in part on the premise that it is not necessary specially to present the facts of a contempt which occurred in the very presence of the judge, it also rests on the need to maintain order and a deliberative atmosphere in the courtroom. The power of a judge to quell disturbance cannot attend upon the impaneling of a jury. There is, therefore, a strong temptation to make exception to the rule we establish today for disorders in the courtroom. We are convinced, however, that no special rule is needed. It is old law that the guarantees of jury trial found in Article III and the Sixth Amendment do not apply to petty offenses. Only today we have reaffirmed that position. Duncan v. State of Louisiana, supra, 391 U.S., at 159—162, 88 S.Ct., at 1452—1454, 20 L.Ed.2d 491. By deciding to treat criminal contempt like other crimes insofar as the right to jury trial is concerned, we similarly place it under the rule that petty crimes need not be tried to a jury.
IV.
21
Petitioner Bloom was held in contempt of court for filing a spurious will for probate. At his trial it was established that the putative testator died on July 6, 1964, and that after that date Pauline Owens, a practical nurse for the decedent, engaged Bloom to draw and execute a will in the decedent's name. The will was dated June 21, 1964. Bloom knew the will was false when he presented it for admission in the Probate Division of the Circuit Court of Cook County. The State's Attorney of that county filed a complaint charging Bloom with contempt of court. At trial petitioner's timely motion for a jury trial was denied. Petitioner was found guilty of criminal contempt and sentenced to imprisonment for 24 months. On direct appeal to the Illinois Supreme Court, his conviction was affirmed. That court held that neither state law nor the Federal Constitution provided a right to jury trial in criminal contempt proceedings. 35 Ill.2d 255, 220 N.E.2d 475 (1966). We granted certiorari, 386 U.S. 1003, 87 S.Ct. 1346, 18 L.Ed.2d 431 (1967).
22
Petitioner Bloom contends that the conduct for which he was convicted of criminal contempt constituted the crime of forgery under Ill.Rev.Stat. c. 38, § 17—3. Defendants tried under that statute enjoy a right to jury trial and face a possible sentence of one to 14 years, a fine not to exceed $1,000, or both. Petitioner was not tried under this statute, but rather was convicted of criminal contempt. Under Illinois law no maximum punishment is provided for convictions for criminal contempt. People v. Stollar, 31 Ill.2d 154, 201 N.E.2d 97 (1964). In Duncan we have said that we need not settle 'the exact location of the line between petty offenses and serious crimes' but that 'a crime punishable by two years in prison is * * * a serious crime and not a petty offense.' 391 U.S., at 161, 162, 88 S.Ct., at 1454. Bloom was sentenced to imprisonment for two years. Our analysis of Barnett, supra, and Cheff v. Schnackenberg, 387 U.S. 373, 86 S.Ct. 1523, 16 L.Ed. 629, makes it clear that criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved. Under the rule in Cheff, when the legislature has not expressed a judgment as to the seriousness of an offense by fixing a maximum penalty which may be imposed, we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense. See Duncan, supra, 391 U.S., at 162, n. 35, 88 S.Ct., at 1454. Under this rule it is clear that Bloom was entitled to the right to trial by jury, and it was constitutional error to deny him that right. Accordingly, we reverse and remand for proceedings not inconsistent with this opinion.
23
Reversed and remanded.
24
For concurring opinion of Mr. Justice FORTAS, see 88 S.Ct. 1459.
25
Mr. JUSTICE FORTAS, concurring.*
26
I join the judgments and opinions of the Court in these cases because I agree that the Due Process Clause of the Fourteenth Amendment requires that the States accord the right to jury trial in prosecutions for offenses that are not petty. A powerful reason for reaching this conclusion is that the Sixth Amendment to the Constitution guarantees the right to jury trial in federal prosecutions for such offenses. It is, of course, logical and reasonable that in seeking, from time to time, the content of "due process of law," we should look to and be guided by the great Bill of Rights in our Constitution. Considerations of the practice of the forum States, of the States generally, and of the history and office of jury trials are also relevant to our task. I believe, as my Brother White's opinion for the Court in Duncan v. Louisiana persuasively argues, that the right to jury trial in major prosecutions, state as well as federal, is so fundamental to the protection of justice and liberty that "due process of law" cannot be accorded without it.
27
It is the progression of history, and especially the deepening realization of the substance and procedures that justice and the demands of human dignity require, which has caused this Court to invest the command of "due process of law" with increasingly greater substance. The majority lists outstanding stations in this progression, ante, at 147-148. This Court has not been alone in its progressive recognition of the content of the great phrase which my Brother WHITE describes as "spacious language" and Learned Hand called a "majestic generality." The Congress, state courts, and state legislatures have moved forward with the advancing conception of human rights in according procedural as well as substantive rights to individuals accused of conflict with the criminal laws.
28
But although I agree with the decision of the Court, I cannot agree with the implication, see ante, at 158-159, n. 30, that the tail must go with the hide: that when we hold, influenced by the Sixth Amendment, that "due process" requires that the States accord the right of jury trial for all but petty offenses, we automatically import all of the ancillary rules which have been or may hereafter be developed incidental to the right to jury trial in the federal courts. I see no reason whatever, for example, to assume that our decision today should require us to impose federal requirements such as unanimous verdicts or a jury of 12 upon the States. We may well conclude that these and other features of federal jury practice are by no means fundamental -- that they are not essential to due process of law -- and that they are not obligatory on the States.
29
I would then make these points clear today. Neither logic nor history nor the intent of the draftsmen of the Fourteenth Amendment can possibly be said to require that the Sixth Amendment or its jury trial provision be applied to the States together with the total gloss that this Court's decisions have supplied. The draftsmen of the Fourteenth Amendment intended what they said, not more or less; that no State shall deprive any person of life, liberty, or property without due process of law. It is ultimately the duty of this Court to interpret, to ascribe specific meaning to this phrase. There is no reason whatever for us to conclude that, in so doing, we are bound slavishly to follow not only the Sixth Amendment but all of its bag and baggage, however securely or insecurely affixed they may be by law and precedent to federal proceedings. To take this course, in my judgment, would be not only unnecessary but mischievous because it would inflict a serious blow upon the principle of federalism. The Due Process Clause commands us to apply its great standard to state court proceedings to assure basic fairness. It does not command us rigidly and arbitrarily to impose the exact pattern of federal proceedings upon the 50 States. On the contrary, the Constitution's command, in my view, is that in our insistence upon state observance of due process, we should, so far as possible, allow the greatest latitude for state differences. It requires, within the limits of the lofty basic standards that it prescribes for the States as well as the Federal Government, maximum opportunity for diversity and minimal imposition of uniformity of method and detail upon the States. Our Constitution sets up a federal union, not a monolith.
30
This Court has heretofore held that various provisions of the Bill of Rights such as the freedom of speech and religion guarantees of the First Amendment, the prohibition of unreasonable searches and seizures in the Fourth Amendment, the privilege against self-incrimination of the Fifth Amendment, and the right to counsel and to confrontation under the Sixth Amendment "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment." Malloy v. Hogan, 378 U.S. 1, 10 (1964); Pointer v. Texas, 380 U.S. 400, 406 (1965); Miranda v. Arizona, 384 U.S. 436, 464 (1966). I need not quarrel with the specific conclusion in those specific instances. But unless one adheres slavishly to the incorporation theory, body and substance, the same conclusion need not be superimposed upon the jury trial right. I respectfully but urgently suggest that it should not be. Jury trial is more than a principle of justice applicable to individual cases. It is s system of administration of the business of the State. While we may believe (and I do believe) that the right of jury trial is fundamental, it does not follow that the particulars of according that right must be uniform. We should be ready to welcome state variations which do not impair -- indeed, which may advance -- the theory and purpose of trial by jury.
31
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
32
I dissent for the reasons expressed in my dissenting opinion in Duncan v. State of Louisiana, 391 U.S. 171, 88 S.Ct. 1460, 20 L.Ed.2d 491, and in my separate opinion in Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629. See also United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23; Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672.
33
This case completes a remarkable circle. In Duncan, supra, the Court imposed on the States a rule of procedure that was neither shown to be fundamental to procedural fairness nor held to be part of the originally understood content of the Fourteenth Amendment. The sole justification was that the rule was found in the Bill of Rights. The Court now, without stating any additional reasons, imposes on the States a related rule that, as recently as Cheff v. Schnackenberg, supra, the Court declined to find in the Bill of Rights. That the words of Mr. Justice Holmes,* inveighing against a century of 'unconstitutional assumption of (state) powers by the Courts of the United States' in derogation of the central premise of our Constitution, should be invoked to support the Court's action here can only be put down to the vagaries of the times.
1
Many more cases have supported the rule that courts may punish criminal contempt summarily, or accepted that rule without question. See cases collected in Green v. United States, 356 U.S. 165, 191, n. 2, 78 S.Ct. 632, 647, 2 L.Ed.2d 672 (1958) (concurring opinion); United States v. Barnett, 376 U.S. 681, 694, n. 12, 84 S.Ct. 984, 991, 12 L.Ed.2d 23 (1964). The list of the Justices of this Court who have apparently subscribed to this view is long. See Green v. United States, supra, 356 U.S. at 192, 78 S.Ct. at 647.
The argument that the power to punish contempt was an inherent power of the courts not subject to regulation by Congress was rejected in Michaelson v. United States ex rel. Chicago St. P., M. & O.R. Co., 266 U.S. 42, 65—67, 45 S.Ct. 18, 19—20, 69 L.Ed. 162 (1924), which upheld the maximum sentence and jury trial provisions of the Clayton Act. Cf. Larremore, Constitutional Regulation of Contempt of Court, 13 Harv.L.Rev. 615 (1900).
2
Blackstone's description of the common-law practice in contempt cases appears in 4 Commentaries on the Laws of England 286—287:
'The process of attachment for these and the like contempts must necessarily be as ancient as the laws themselves; for laws without a competent authority to secure their administration from disobedience and contempt would be vain and negatory. A power, therefore, in the supreme courts of justice, to suppress such contempts by an immediate attachment of the offender results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal.
'If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any further proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient
ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him, or, in very flagrant instances of contempt, the attachment issues in the first instance; as it also does if no sufficient cause be shown to discharge; and thereupon the court confirms and makes absolute the original rule.' And see id., at 280. A similar account is contained in 2 W. Hawkins, A Treatise of the Pleas of the Crown 4, 141 (2d ed. 1724).
Of course, 'Blackstone's Commentaries are accepted as the most satisfactory exposition of the common law of England. * * * (U)ndoubtedly, the framers of the Constitution were familiar with it.' Schick v. United States, 195 U.S. 65, 69, 24 S.Ct. 826, 827, 49 L.Ed. 99 (1904).
Blackstone, however, was acutely aware that this practice was a significant departure from ordinary principles: 'It cannot have escaped the attention of the reader that this method of making the defendant answer upon oath to a criminal charge is not agreeable to the genius of the common law in any other instance. * * *' 4 Blackstone, supra, at 287.
The unalloyed doctrine that by 'immemorial usage' all criminal contempts could be tried summarily seems to derive from Mr. Justice (later Chief Justice) Wilmot's undelivered opinion in The King v. Almon (1765), first brought to public light by the posthumous publication of his papers, Wilmot, Notes 243 (1802), reprinted in 97 Eng.Rep. 94. Wilmot's opinion appears to have been the source of Blackstone's view, but did not become an authoritative part of the law of England until Rex v. Clement, 4 Barn. & Ald. 218, 233, 106 Eng.Rep. 918, 923 (K.B. 1821). Cf. Roach v. Garvan, 2 Atk. 469, 26 Eng.Rep. 683 (Ch. 1742). See discussion in 8 How.St.Tr. 14, 22—23, 49—59, and the subsequent civil action, Burdett v. Abbot, 14 East 1, 138, 104 Eng.Rep. 501, 554 (K.B. 1811); 4 Taunt. 401, 128 Eng.Rep. 384 (Ex. 1812); 5 Dow 165, 202, 3 Eng.Rep. 1289, 1302 (H.L. 1817). The historical authenticity of this view has been vigorously challenged, initially by Solly-Flood, The Story of Prince Henry of Monmouth and Chief-Justice Gascoign, 3 Transactions of the Royal Historical Society (N.S.) 47, 61—64, 147—150 (1886). This led to the massive reappraisal of the contempt power undertaken by Sir John Fox: The King v. Almon, Pts. 1 & 2, 24 L.Q.Rev. 184, 266 (1908); The Summary Process to Punish Contempt, Pts. 1 & 2, 25 L.Q.Rev. 238, 354 (1909); Eccentricities
of the Law of Contempt of Court, 36 L.Q.Rev. 394 (1920); The Nature of Contempt of Court, 37 L.Q.Rev. 191 (1921); The Practice in Contempt of Court Cases, 38 L.Q.Rev. 185 (1922); The Writ of Attachment, 40 L.Q.Rev. 43 (1924); J. Fox, The History of Contempt of Court (1927). On contempt generally, see R. Goldfarb, The Contempt Power (1963).
Learned writers have interpreted Fox's work as showing that until the late 17th or early 18th centuries, apart from the extraordinary proceedings of the Star Chamber, English courts neither had, nor claimed, power to punish contempts, whether in or out of court, by summary process. Frankfurter & Landis, Power of Congress over Procedure in Criminal Contempts in 'Inferior' Federal Courts—A Study in Separation of Powers, 37 Harv.L.Rev. 1010, 1042—1052 (1924). Cf. J. Oswald, Contempt of Court 3, n. (g) (Robertson ed., 1910). Fox's own appraisal of the evidence, however, seems to have been that prior to the 18th century there probably was no valid basis for summary punishment of a libel on the court by a stranger to the proceedings, but that summary punishment for contempts outside the court consisting in resistance to a lawful process or order of the court, or contumacious behavior by an officer of the court, was probably permissible. J. Fox, The History of Contempt of Court 4, 49—50, 98 100, 108—110, 208—209 (1927); Fox, The Summary Process to Punish Contempt, Pt. 1, 25 L.Q.Rev. 238, 244—246 (1909). Although jury trials had been provided in some instances of contempt in the face of the court, Fox does not seem to have questioned that such contempts could be punished summarily. J. Fox, The History of Contempt of Court 50 (1927).
We do not find the history of criminal contempt sufficiently simple or unambiguous to rest rejection of our prior decisions entirely on historical grounds, particularly since the Court has been aware of Solly-Flood's and Fox's work for many years. See Gompers v. United States, 233 U.S. 604, 611, 34 S.Ct. 693, 695, 58 L.Ed. 1115 (1914); Michaelson v. United States ex rel. Chicago, St. P., M. & O.R. Co., 266 U.S. 42, 66—67, 45 S.Ct. 18, 20, 69 L.Ed. 162 (1924); Green v. United States, 356 U.S. 165, 185, n. 18, 78 S.Ct. 632, 644, 2 L.Ed.2d 672 (1958). In any event, the ultimate question is not whether the traditional doctrine is historically correct but whether the rule that criminal contempts are never entitled to a jury trial is a necessary or an acceptable construction of the Constitution. Cf. Thompson v. Utah, 170 U.S. 343, 350, 18 S.Ct. 620, 622, 42 L.Ed. 1061 (1898).
3
See also City of New Orleans v. Steamship Co., 29 Wall. 387, 392, 22 L.Ed. 354 (1874) ('(c)ontempt of court is a specific criminal offence'); O'Neal v. United States, 190 U.S. 36, 38, 23 S.Ct. 776, 777, 47 L.Ed. 945 (1903) (an adjudication for contempt is 'in effect a judgment in a criminal case'); Bessette v. W. B. Conkey Co., 194 U.S. 324, 336, 24 S.Ct. 665, 670, 48 L.Ed. 997 (1904) (that criminal contempt proceedings are 'criminal in their nature has been constantly affirmed'); Michaelson v. United States ex rel. Chicago, St. P., M. & O.R. Co., 266 U.S. 42, 66, 45 S.Ct. 18, 20, 69 L.Ed. 162 (1924) ('(t)he fundamental characteristics of both (crimes and criminal contempts) are the same'); Green v. United States, 356 U.S. 165, 201, 78 S.Ct. 632, 652, 2 L.Ed.2d 672 (1958) (Black, J., dissenting) ('criminal contempt is manifestly a crime by every relevant test of reason or history'). The Court also held in Bessette, supra, 194 U.S. at 335, 24 S.Ct. at 670, that criminal contempt 'cannot be considered as an infamous crime.'
4
'That contempt power over counsel, summary or otherwise, is capable of abuse is certain. Men who make their way to the bench sometimes exhibit vanity, irascibility, narrowness, arrogance, and other weaknesses to which human flesh is heir.' Sacher v. United States, 343 U.S. 1, 12, 72 S.Ct. 451, 456, 96 L.Ed. 717 (1952). See also Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656 (1919); Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941); Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474 (1956).
5
Section 1 of the Act of 1831 stated:
'That the power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases except the misbehaviour of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehaviour of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts.' Fox concluded that the 1831 Act was in accord with the general common law of England. See J. Fox, The History of Contempt of Court 208 (1927). Section 2 of the Act provided for prosecution by the regular criminal procedures of those guilty of obstruction of justice. See generally Nelles & King, Pts. 1 & 2, Contempt by Publication in the United States, 28 Col.L.Rev. 401, 525 (1928).
6
At a later date, when passing the Clayton Act, Congress focused its attention on conduct which was not only criminally contemptuous but which also constituted other crimes under federal or state law. Contempts of this nature, unless committed in the presence of the court or so near thereto as to obstruct justice, or unless they involved disobedience to a court writ, process, order, or decree in a case brought by the United States, were required to be tried to a jury, and the possible punishment was limited to six months, a fine of $1,000, or both. 38 Stat. 738, § 21, now 18 U.S.C. § 402. Circumscription of the contempt power was carried further in the Norris-LaGuardia Act, which extended the right to jury trial to contempt cases arising out of injunctions issued in labor disputes. 47 Stat. 72, § 11, now 18 U.S.C. § 3692. The Civil Rights Act of 1957, 71 Stat. 638, § 151, 42 U.S.C. § 1995, provides a right to a de novo trial by jury to all criminal contemnors convicted in cases arising under the Act who are fined in excess of $300 or sentenced to imprisonment for more than 45 days, exception being made for contempts committed in the presence of the court or so near thereto as to obstruct justice, and misbehavior, misconduct, or disobedience of any officer of the court. The Civil Rights Act of 1964, 78 Stat. 268, § 1101, 42 U.S.C. § 2000h, provides a right to jury trial in all proceedings for criminal contempt arising under the Act, and limits punishment to a fine of $1,000 or imprisonment for six months. Again exception is made for contempts committed in the presence of the court, or so near thereto as to obstruct justice, and for the misbehavior, misconduct, or disobedience of court officers. Proof of criminal mens rea is specifically required. See Goldfarb & Kurzman, Civil Rights v. Civil Liberties: The Jury Trial Issue, 12 U.C.L.A.L.Rev. 486, 496—506 (1965).
7
It has also been held that a defendant in criminal contempt proceedings is eligible for executive pardon, Ex parte Grossman, 267 U.S. 87, 45 S.Ct. 332, 69 L.Ed. 527 (1925), and entitled to the protection of the statute of limitations, Gompers v. United States, 233 U.S. 604, 611—613, 34 S.Ct. 693, 695—696, 58 L.Ed. 1115 (1914); Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368 (1943).
8
Limitations on the maximum penalties for criminal contempt are common in the States. According to Note, Constitutional Law: The Supreme Court Constructs a Limited Right to Trial by Jury for Federal Criminal Contemnors, 1967 Duke L.J. 632, 654, n. 84, in 26 States the maximum penalty that can be imposed in the absence of a
jury trial is six months or less, in three States a jury trial must be provided upon demand of the defendant, in three other States the maximum penalty cannot exceed one year (this group of States includes Illinois, however, which, as the present case demonstrates, has no such limitation), in 15 States there is either no limitation upon the maximum penalty which may be imposed, or else that maximum exceeds one year, and finally, in three States, while there are statutes relating to particular kinds of contempt, there are no general contempt provisions. Independent examination suggests that the available materials concerning the law of contempt in some States are such that precise computation is difficult. It is clear, however, that punishment for contempt is limited to one year or less in over half the States.
Most other Western countries seem to be highly restrictive of the latitude given judges to try their own contempts without a jury. See Jann, Contempt of Court in Western Germany, 8 Am.U.L.Rev. 34 (1959); Bigelow, Contempt of Court, 1 Crim.L.Q. 475 (1959); Pekelis, Legal Techniques and Political Ideologies: A Comparative Study, 41 Mich.L.Rev. 665 (1943). By contrast, there was no right of appeal against a conviction for criminal contempt in England until the Administration of Justice Act, 1960, 8 & 9 Eliz. 2, c. 65. See Harnon, Civil and Criminal Contempts of Court, 25 Mod.L.Rev. 179 (1962).
*
[This opinion applies also to No. 410, Duncan v. Louisiana, ante, p. 145.]
See, e.g., Bail Reform Act of 1966, Pub. L. 89-465, 18 U.S.C. § 3141 et. seq. (1964 ed., Supp. II); Criminal Justice Act of 1964, Pub. L. 88-455, 18 U.S.C. § 3006A; Jury Selection and Service Act of 1968, Pub. L. 90-274, 82 Stat. 53; Schowgurow v. State, 240 Md. 121, 213 A. 2d 475 (1965); Note, The Proposed Penal Law of New York, 64 Col L. Rev. 1469 (1964).
*
Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 532, at 533, 48 S.Ct. 404, 408, 72 L.Ed. 681 (dissenting opinion, quoted ante, at 198).
| 01
|
391 U.S. 253
88 S.Ct. 1575
20 L.Ed.2d 569
FIRST NATIONAL BANK OF ARIZONA, etc., Petitioner,v.CITIES SERVICE CO.
No. 23.
Argued Nov. 9, 1967.
Decided May 20, 1968.
[Syllabus from pages 253-258 intentionally omitted]
William E. Kelly, New York City, for petitioner.
Simon H. Rifkind, New York City, for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
At issue in this case is the propriety of an award of summary judgment in favor of respondent Cities Service in a treble-damage antitrust action. The District Court held there was no genuine issue as to material facts between the parties and that respondent was entitled to judgment as a matter of law. 38 F.R.D. 170 (D.C.S.D.N.Y.1965). The Court of Appeals for the Second Circuit affirmed. 361 F.2d 671 (1966). This Court granted certiorari, 385 U.S. 1024, 87 S.Ct. 743, 17 L.Ed.2d 672 (1967), to determine whether the decisions below were in conformity with Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). We conclude that Poller and other decisions of this Court were correctly applied and, accordingly, we affirm.
2
Because the question whether summary judgment is appropriate in any case is one to be decided upon the particular facts of that case, we shall set forth the background of this litigation in some detail (Part I) before turning to the specific issues petitioner raises (Parts II—V).
I.
3
On June 11, 1956, petitioner Waldron1 filed a private antitrust complaint in the Southern District of New York against seven large oil companies: British Petroleum Co., Ltd. (formerly Anglo-Iranian Oil Co.), Gulf Oil Corp.,2 Socony Mobil Oil Co., Standard Oil Co. of California, Standard Oil Co. of New Jersey, The Texas Co., and Cities Service Co. The complaint contained essentially two series of allegations. The first was copied from the complaint in a thenpending civil action by the United States against those defendants other than Cities Service, alleging the formation and maintenance by them of a worldwide oil cartel since 1928. The second series of allegations dealt specifically with a conspiracy claimed to have been entered into at the time of the nationalization of the properties of the Anglo-Iranian Oil Co. by the Government of Iran in May 1951. The defendants other than Cities Service, it was asserted, agreed at that time to boycott Iranian oil in all world markets until Iran should agree to return Anglo-Iranian's property and concession rights. While the dispute between Anglo-Iranian and the Iranian Government under Premier Mossadegh was still continuing, Waldron and some of his associates allegedly succeeded in obtaining a contract to purchase 15,000,000 metric tons of crude oil or refined products from the National Iranian Oil Co. (NIOC), the company formed to take over Anglo-Iranian's nationalized properties, over a five-year period at a rate substantially less than the then current posted price for Persian Gulf oil. NIOC in return agreed not to deal with anybody other than Waldron in the United States market.
4
The complaint next stated that the defendants other than Cities Service conspired to prevent petitioner from selling any of the oil to which he was entitled under his contract with NIOC. It was further alleged that Cities Service, after first engaging in extensive negotiations with Waldron with an eye toward participating in the operation of the Iranian oil industry, broke off dealing and joined the conspiracy to boycott him as a result of having received what amounted to a bribe from Gulf and Anglo-Iranian, namely, a large supply of oil from Kuwait at a price even lower than that petitioner could offer Cities pursuant to his contract with NIOC. Finally, the defendants were alleged to have entered into a Consortium Agreement in 1954, pursuant to their attempt to monopolize Middle East oil production, which parceled out substantially all the Iranian oil production between them. Cities Service was claimed to have been permitted to purchase a share in the Consortium. Petitioner asserted that the boycott conspiracy carried out by all the defendants completely frustrated his ability to sell oil under his contract and accordingly sought treble damages from them in the amount of $109,000,000.
5
Within the time set for the defendants to answer the complaint, various of them moved to take petitioner's deposition, and all of them moved to postpone the filing of their answers until the completion of that deposition. The motions were accompanied by affidavits of counsel that the legal questions presented by the complaint were extraordinarily complex and that they had insufficient information about petitioner's business dealings with the Iranian Government to permit them adequately to prepare their clients' answers within the 20-day time limit set by Rule 12(a) of the Federal Rules of Civil Procedure. These motions were granted by Judge Weinfeld, who, in addition, stayed petitioner from any discovery of his own until completion of the defendants' discovery, apparently pursuant to then existing practice in the Southern District.3
6
The deposition of Waldron commenced on September 10, 1956, and continued until July 3, 1957, at which time petitioner's counsel announced his intention to limit further examination. Nothing further was done by any party until December 30, 1957, at which time a motion was made to terminate the taking of Waldron's deposition. By this time 62 days' testimony had been taken over a period of more than 15 months. All adjournments up to this point were either at Waldron's request or with his consent. Meanwhile, various of the defendants had noticed the depositions of petitioner's associates, Richard S. Nelson, James A. Bentley, James E. Zoes, Ray Carter, and Addison Brown, in October and November 1956. Pursuant to successive stipulations entered into between petitioner and the defendants, the taking of these depositions had been postponed up to the date of petitioner's motion to terminate the taking of his own deposition. In that motion petitioner also moved to vacate the notices to take depositions of his associates.
7
In response to petitioner's claims that the protracted examination of him by the defendants constituted harassment and an undue burden on him, the defendants pointed out that only one of their number had as yet examined Waldron and that the length of time over which the examination had proceeded had been with his complete acquiescence. As for petitioner's financial hardship contention, the defendants suggested that, in view of the damages sought by petitioner, it was not inappropriate that he be required to spend considerable time clarifying his claims before trial. Judge Herlands denied the motion on February 11, 1958, after argument; he ordered, however, that further examination of the petitioner by the seven defendants be limited to 52 working days, of which 10 were allotted to respondent Cities Service. In addition 174 1/2 days were scheduled for the examination of Waldron's five associates, of which 31 went to Cities Service. The examinations were to be consecutive and were set to commence on March 10, 1958, unless the parties agreed otherwise. The defendants were authorized to postpone the filing of their answers until 30 days after the completion of the depositions, and petitioner was stayed from undertaking any discovery proceedings of his own during that period.
8
Pursuant to stipulation the continued examination of petitioner did not resume until September 15, 1958, and was not terminated until October 1959. Twenty-six days were spent deposing Waldron in the latter part of 1958 and only six days during all of 1959, of which 3 1/2 were utilized by counsel for Cities Service. Petitioner's associates were deposed between January 1960 and April 1962 for 58 working days, of which 3 1/2 were used by counsel for Cities Service. Waldron was then examined for one additional day in 1962.
9
Thus, between September 1956 and May 1962, a period of over 5 1/2 years, Waldron and his associates were deposed for a total of 153 days, of which only seven days were attributable to Cities Service. The various stipulations that resulted in prolonging the period required for the taking of these depositions were all entered into either at the request, or with the agreement, of petitioner.
10
During the course of his deposition by Cities Service, Waldron stated that he had at first not attributed Cities' failure to conclude some sort of a deal with him for Iranian oil to its participation in the boycott. He explained that it was his discovery of Cities' purchase of substantial amounts of Kuwait oil from Gulf, plus its subsequent participation in the 1954 Consortium, that prompted him to join it in his complaint as a member of the conspiracy. Accordingly, when Cities moved for summary judgment in its favor in 1960, it did so on the ground that the affidavit of Cities' Senior Vice President in Charge of Foreign Operations, George H. Hill, and the accompanying documents from Cities' files that were submitted in support of the motion conclusively disproved petitioner's theory that it had joined the alleged boycott conspiracy because it had been bought off by the other conspirators.
11
In brief, the documents demonstrated that Cities had been engaged in negotiations with Gulf4 to purchase Kuwait crude oil since 1948, and that a substantially final agreement, although not the actual conclusion of a contract, had been reached on the proposed deal prior to the time petitioner first approached Cities.5 As for the Consortium, the documents showed that Cities had only commenced negotiations with the defendants to obtain participation therein some two years after it was alleged to have joined the conspiracy and that the share it was eventually offered, over its strenuous objections, was so small that it transferred the share to the Richfield Oil Co., in which it held a minority stock interest.
12
In reply to Cities' motion, petitioner's counsel reiterated his contention that the course of dealings between Waldron and his associates, on the one hand, and various of Cities' executive personnel, especially its president, W. Alton Jones, on the other, raised an inference of conspiracy because the most probable conclusion to be drawn from Cities' decision to pass up the assertedly extremely beneficials deal proposed by petitioner, notwithstanding its need for additional supplies of imported oil, was that in some manner Cities either had been 'reached' or had used its negotiations with Waldron as a means of forcing its way into the alleged Middle East oil cartel. Petitioner also suggested that Cities might well have made some sort of informal agreement with the other defendants concerning the Consortium that was not revealed by the documents and that Cities might have expected, at the time such an agreement was made, a more profitable share therein than it was eventually offered.
13
In response to these arguments, Judge Herlands, who had by this time been assigned to the case for all purposes, handed down a memorandum decision on March 30, 1961, postponing determination of Cities' motion for summary judgment. In his opinion Judge Herlands stated that it was 'doubtful' whether any issue as to any material fact existed and that Cities had been named a defendant on mere 'suspicion.' Because he judged petitioner's claim against Cities 'so insubstantial,' he ruled that petitioner would not be given 'carte blanche authority to conduct untrammeled pre-trial proceedings,' but that such proceedings would be 'closely regulated.' Subsequently, Judge Herlands entered an order providing that petitioner was to be allowed to take the deposition of Hill, the Cities' executive who had been in charge of negotiating the Kuwait deal with Gulf and who had also carried out Cities' attempts to secure a participation in the Consortium.
14
At the hearing in 1961 on the proposed order to implement the court's decision, counsel for Waldron asked to depose Cities' president Jones first. Contrary to what appears to be the position taken now, petitioner acknowledged and accepted Judge Herlands' order that his discovery of Cities was to be carried out pursuant to Rule 56(f), Fed.Rules Civ.Proc., which provides for comparatively limited discovery for the purpose of showing facts sufficient to withstand a summary judgment motion, rather than Rule 26, which provides for broad pretrial discovery. Petitioner's sole objection to the proposed order was that Jones should be deposed rather than Hill.
15
In response to Judge Herlands' observation that Hill was the man who was in the best position to provide information about the two alleged facts relied on in the complaint to link Cities to the conspiracy, petitioner's counsel for the first time argued that the Kuwait deal and the Consortium agreement were not crucial to the case. While maintaining the position that those two items were significant, counsel stated that Cities' motive for entering the alleged conspiracy was basically irrelevant. He argued that the evidence showed that Cities had embarked on a course of dealing with Waldron and then inexplicably had broken it off, and that this sequence of events was in itself sufficient evidence of conspiracy to withstand summary judgment and to entitle petitioner to sufficient discovery to ascertain the reason for the breakoff.
16
This argument was rejected and the trial judge clearly stated that to withstand summary judgment petitioner would have to produce some factual evidence of conspiracy beyond Cities' mere failure to carry through on a deal for Iranian oil. The taking of Hill's deposition was scheduled, without objection by petitioner, to commence upon the completion of the depositions of petitioner's associates.
17
More than a year then elapsed, during which time, again pursuant to stipulations between all the parties, only 25 days were spent taking the depositions of petitioner's associates. Immediately after the completion of these depositions, in response to motions to strike portions of the complaint made by various defendants other than Cities, petitioner announced his intention to amend his complaint and entered into a stipulation with the other parties extending their time to move or answer until 30 days after service on them of the amended complaint. This stipulation was entered into on June 1, 1962, approximately 30 days prior to the time by which, under Judge Herlands' previous order, the defendants would have been required to answer the complaint or move for summary judgment. Some five weeks later, at the request of petitioner's counsel, a new stipulation was entered into postponing the taking of Hill's deposition until September 10, 1962, and staying petitioner's undertaking to file an amended complaint pending completion of the Hill deposition.
18
Between September 10, 1962, and February 27, 1963, pursuant to stipulations between the parties, petitioner deposed Mr. Hill for a total of six working days. Then, at the beginning of May, petitioner moved for additional discovery. In response to this motion respondent Cities Service renewed its summary judgment motion in addition to opposing further discovery by petitioner. At oral argument on May 27, 1963, Judge Herlands reiterated his opinion that thus far Waldron was still unable to point to any facts tending to show that Cities had participated in the alleged conspiracy. Indeed, the deposition testimony of Hill, plus various additional documentary evidence supplied in connection therewith, had further disproved the Kuwait and Consortium payoff theories. This evidence showed that Cities had actively resisted formation of the Consortium by the other defendants, even to the extent of making approaches to the United States Government in the hope of securing its intervention in the situation.
19
While the respective motions were pending before Judge Herlands, petitioner on June 28, 1963, filed an amended complaint. It differed from the original complaint in that most of the specific facts alleged in the original were replaced by more general allegations of conspiracy and boycott. In regard to Cities, the complaint was amended to omit all reference to any factual allegations involving either Kuwait oil or membership in the 1954 Consortium. In addition, those allegations of the original complaint which were directed at the other defendants and which had specifically excluded Cities were made more general, and the language excluding Cities was replaced by language referring simply to unspecified co-conspirators. In place of the previous specific allegations directed at Cities, the amended complaint substituted two new formulations: first, a general allegation that Cities joined the conspiracy at a time and in a manner not known to the plaintiff; and, second, that the other defendants and various of their co-conspirators 'secretly threatened, induced, and conspired with defendant Cities Service to break off all dealings with plaintiff.'
20
Judge Herlands held petitioner's and Cities' cross-motions under advisement for a little more than a year while he considered motions for summary judgment against petitioner made by the other defendants. Then, on June 23, 1964, in a long and comprehensive opinion dealing with both sets of motions, he denied the motions for summary judgment made by the other defendants, again postponed final disposition of Cities' motion and granted Waldron the opportunity to conduct further discovery of Cities under Rule 56(f).6 Presumably, decision on petitioner's motion was deferred so long because, had the motions of the defendants other than Cities for summary judgment been granted, petitioner's case against Cities would have also been terminated. In any event, the order implementing the decision permitted petitioner to depose all those members of Cities' executive staff then alive7 who he alleged had participated at all in the dealings concerning Iranian oil, namely, Burl S. Watson, Cities' chairman of the board, Alfred P. Frame, Cities' first vice president, and J. Edgar Heston, Cities' manager of oil production. The order also directed Cities to produce all documents and memoranda relating to (a) the Kuwait and Consortium issues, (b) conversations and communications between it and any other defendant between June 11, 1952, and October 1, 1952, concerning petitioner, his associates, and Cities' dealings in connection with Iranian oil, (c) conversations and communications between Cities and any other defendant between June 11, 1953, and September 30, 1953, pertaining to negotiations between Waldron and the Richfield Oil Corp. concerning the purchase by Richfield of Iranian oil, and (d) conversations and communications between any deponent for Cities and any other Cities' employee involving the subject matter described in the preceding categories. The depositions of the three Cities' executives were completed during the months of July and August 1964 and in connection therewith more than 140 documents were produced.
21
In September 1964 petitioner moved for the following additional discovery: first, the production of all documents in the possession of Cities dealing with Cities' activities in connection with Iranian oil between June 1952 and January 1955; second, the production of all documents relating to the same subject matter in the possession of the other defendants; and third, the production of all relevant documents from, and oral examination of, Ray Carter, a former Cities employee who had acted as an intermediary between Cities and petitioner in their dealings. Petitioner further indicated a desire to depose various unspecified officials of the other defendants after the completion of the discovery detailed in his motion. Immediately thereafter, in October 1964, Cities for the third time renewed its motion for summary judgment8 and argument was had on both motions in February 1965. Judges Herlands granted Cities' motion on September 8, 1965, holding that petitioner had failed to fulfill the requirement of amended Rule 56(e) that a party opposing a properly supported summary judgment motion must produce by affidavit or otherwise 'specific facts showing that there is a genuine issue for trial.'9 As to petitioner's cross-motion for additional discovery under Rule 56(f), the court ruled that petitioner's total failure by that date to produce any evidence tending to show Cities' participation in a conspiracy to boycott him, despite considerable discovery, demonstrated that additional discovery would be merely a fishing expedition and would unduly harass respondent. The Court of Appeals for the Second Circuit affirmed the judgment of the District Court in all particulars.10
22
Petitioner states that three questions are presented by this case: first, whether he was improperly limited in the discovery permitted him prior to the rendering of summary judgment (Parts II, V, infra); second, whether sufficient material facts to raise genuine issues for trial were shown (Part III, infra)f and third, whether the lower courts held, erroneously, that amended Rule 56(e), Fed.Rules Civ.Proc., places the burden of showing that there is a genuine issue of material fact for trial on the party opposing a motion for summary judgment (Part IV, infra).
II.
23
We turn first to one aspect of petitioner's contention that his discovery was unduly restricted: whether certain orders of the trial judge imposed unfair limits on his access to relevant information. The second aspect of petitioner's discovery argument, addressed to what he viewed as the necessity for additional discovery to enable him adequately to oppose the summary judgment motion, we shall discuss in Part V of the opinion.
24
Petitioner's initial complaint, as set out more fully, supra, at 259-261, specifically alleged that Cities had adhered to the conspiracy by refusing to deal with petitioner after being bought off by the Kuwait contract and an opportunity to participate in the Consortium. Similarly, in his deposition, Waldron reiterated his belief that the only links between Cities and the conspiracy were those two payoffs. Thus, by petitioner's own doing, respondent Cities Service was from the beginning of the litigation placed in a vastly different position from the other alleged co-conspirators. Cities, realizing this, apparently felt that if it could show that it had in fact not received any payoff or bribe from the other defendants, petitioner would abandon his contention that it had joined the alleged conspiracy. Accordingly, immediately after it had taken Waldron's deposition, Cities made its motion for summary judgment accompanied by Hill's affidavit and the supporting documents described, supra, at 263—264. When Judge Herlands declined to grant Cities' motion at that time, he permitted petitioner to examine Cities about those specific facts that had theretofore been the only ones alleged as evidence of conspiracy on the part of Cities, other than its failure to make a deal with petitioner for Iranian oil. Petitioner appears to argue that it was erroneous for the trial court to limit his discovery initially to Hill rather than Jones, the person with whom he primarily dealt. However, since petitioner was the party who had injected Kuwait and Consortium into the case and since Hill had been the ranking Cities official in charge of both transactions, it is difficult to conclude that the trial judge abused his discretion in ordering petitioner to begin by examining Hill.
25
Even assuming arguendo that it was error for petitioner to have been required to begin his discovery with Hill rather than Jones, the issue is moot for purposes of appellate review because Jones' accidental death occurred prior to the time petitioner would have been able to commence deposing him had he been permitted by Judge Herlands to do so. There is no reason to believe that petitioner would have made any greater efforts to see that the examination of his associates, Bentley, Zoes, and Brown, was carried out in less than the 13 months that were actually taken had he been scheduled to depose Jones at the end of that time rather than Hill. Obviously it was Jones' death, rather than any action taken by Judge Herlands, that prevented his being deposed at some later date.
26
Although petitioner had begun to de-emphasize the significance of Kuwait and the Consortium to his claim of conspiracy by Cities at the first argument on Cities' motion for summary judgment, it was not until after the additional information described above was obtained through Hill's deposition, and the supporting documents accompanying it, that petitioner began to stress the contention that Cities had undergone a dramatic shift in its attitude towards him in September 1952, immediately after Jones had returned from a trip to Iran arranged for him by Waldron. While it is probably to overstate the case to say, as does respondent, that petitioner abandoned his Kuwait and Consortium claims at this time, it is fair to say that petitioner no longer seriously contended that the evidence relating to them was sufficient in itself to raise a genuine issue of material fact.
27
After again declining to grant Cities' motion for summary judgment, Judge Herlands entered an order permitting further discovery of Cities. It provided, as described in more detail, supra, at 268—269, for an examination of those Cities executives still alive who participated in the negotiations between petitioner, Cities, and the Government of Iran. It also directed the production of all documents in Cities' possession relating to any contemplated dealings in Iranian oil during the period of Waldron's active contact with Cities, i.e., between June 11, 1952, and October 1, 1952.11
28
This order had the effect of permitting Waldron to examine every surviving Cities official with whom he had dealt to any substantial degree in his attempts to arrange a sale of Iranian oil. He was permitted to examine them, and have production of all documents in connection therewith, concerning all the events that he had specified in his original complaint or in the two previous oral arguments on Cities' motion for summary judgment as being evidence of Cities' participation in the alleged conspiracy. Certainly the scope of this order, viewed as of the time it was made, does not seem open to any serious challenge as unduly restrictive, and petitioner did not make any such argument at the time the order was proposed. It was only when petitioner moved for additional discovery in the fall of 1964 that he began seriously to complain about the allegedly limited scope of the prior discovery order. Accordingly, we shall postpone more detailed discussion of this point to Part V, infra.
29
Petitioner did argue then, and still contends now, that he was prejudiced by the failure of Judge Herlands to let him examine various other Cities executives, in addition to Jones, at the time he was permitted to depose Hill. He bases this contention on the ground that many of these executives were men of advanced years at that time and that the deaths that in fact ensued12 could thus have been reasonably foreseen. The fallacy in this argument is that it was only after Hill testified that petitioner changed the focus of his argument before the trial judge to minimize the significance of Kuwait and Consortium and to suggest other possible motivations for Cities to conspire. Certainly Judge Herlands was not required to anticipate that petitioner would change the entire factual emphasis of his case so that individuals who did not at the time appear to be particularly vital to the litigation would subsequently become so. Moreover, petitioner did not even ask to depose any Cities official who subsequently died, other than Jones, at the time he was permitted to examine Hill. Therefore, petitioner's claim of prejudicial error here must fail also.
III.
30
In his affidavit in support of Waldron's motion for additional discovery, petitioner's attorney detailed the facts produced to date that assertedly showed Cities' participation in the conspiracy, in order both to support his contention that additional discovery was needed and to demonstrate that summary judgment in favor of Cities should not be granted. We shall first discuss the propriety of Judge Herlands' award of summary judgment before dealing further (in Part V) with petitioner's contentions relating to additional discovery.
A.
31
When petitioner moved for additional discovery in 1964, in opposition to Cities' still pending motion for summary judgment, his counsel's affidavit pointed to the following evidence as tending to show a participation by Cities in the alleged conspiracy13 to boycott his attempts to resell the Iranian oil to which he allegedly had access under his contract. Cities had a need to import substantial amounts of crude oil for its domestic operations in the United States, this need amounting to some 100,000 barrels per day. Cities had theretofore been unable to obtain an independent oil supply in the Middle East despite its long-existing desire to do so. Through petitioner, Cities had two assertedly attractive possibilities of fulfilling its crude oil needs. The first consisted of short-term purchases of Iranian oil at prices substantially below the going rates for Mideast oil via petitioner's contract with NIOC. The second, in which Cities was apparently more interested and on which tentative agreement with petitioner was allegedly reached, was for Cities to enter into a long-term arrangement to take over the operation of the entire Iranian oil industry (or a substantial portion thereof) in place of Anglo-Iranian, and to compensate Waldron for what would amount to a transfer of his contract rights.
32
The evidence further showed that Cities went to substantial lengths to explore the possibilities presented by petitioner. Waldron, at Jones' request, secured an invitation for Jones, together with other Cities executives, from Premier Mossadegh to go to Iran to look over the production facilities that NIOC had appropriated from Anglo-Iranian. Upon examination of the facilities, the Cities executives concluded that, notwithstanding the departure of the British personnel who had previously been in charge of operations, the Iranians had managed to keep them in relatively good operating condition. This conclusion was orally presented to Mossadegh by Jones and a comprehensive written report on specific details was promised to be transmitted later. During his stay in Iran, Jones also made a side trip to Kuwait to visit the Kuwait Oil Company, owned jointly by Anglo-Iranian and Gulf. On the return of the Cities party to the United States, Watson14 informed petitioner in October 1952 that Cities did not propose to take any steps relative to obtaining Iranian oil, although another Cities executive subsequently indicated to him that Cities had not entirely abandoned its interest in his proposals. However, Cities had no further significant dealings with Waldron thereafter. Meanwhile on September 21, 1952, Carter, acting on petitioner's behalf, had sent a telegram to Secretary of the Interior Chapman offering to sell a cargo of Iranian-produced aviation gasoline to the United States Air Force. Carter stated that Jones had said that he would use his good offices to get the United States to purchase the gasoline. Instead, Jones cabled Watson instructions to tell Chapman that he was disassociating himself from Carter's efforts and that he questioned the wisdom of Carter's proposal. This Watson did.
33
Subsequently, in January 1953, Jones wrote to the incoming Secretary of State and Attorney General informing them of his belief that the only solution to the Iranian oil problem would be some sort of agreement between Iran and Anglo-Iranian. He accompanied this missive with a legal memorandum which stated that under international law Iran appeared to have the right to nationalize the Anglo-Iranian oil properties, but he asserted that the memorandum had not been prepared as a step toward Cities' involving itself in the Iranian situation. Three weeks later the final contract with Gulf for a 15-year supply of 21,000 barrels per day of Kuwait oil, plus an option for an additional 30,000 barrels per day, was signed by Cities and Gulf.
34
Meanwhile Waldron continued his unsuccessful efforts to sell Iranian oil to various American companies. In particular, in June 1953, he entered into extensive negotiations with the Richfield Oil Company, in which Cities had about a one-third interest. Although great interest was shown initially by Richfield, petitioner was told in September that it had decided not to purchase Iranian oil after all. Then, in 1954 the Consortium was set up to take back Anglo-Iranian's properties and concession from NIOC, and Richfield obtained a share of about 1 1/2% therein.15
35
Petitioner argues that the inference that Cities was a participant in the alleged conspiracy to boycott him follows from the foregoing facts. Even viewed without reference to other facts of record, it is apparent that petitioner's main argument is that Cities' failure to follow through on its original substantial interest in dealing with him is substantial evidence of participation in the boycott allegedly organized by the other defendants. And undoubtedly, given no contrary evidence, a jury question might well be presented as to Cities' motives is not dealing with Waldron, cf. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), notwithstanding that such a failure to deal conceivably might also have resulted from a whole variety of non-conspiratorial motives involving the exercise of business judgment as to the attractiveness of the opportunity offered by petitioner. However, as we next show, the record in this case contains an overwhelming amount of such contrary evidence of Cities' motives, much of it supplied by petitioner himself.
B.
36
Immediately after the nationalization, Anglo-Iranian publicly announced both in the news media and throughout the oil industry its view that the nationalization of its properties and the abrogation of its concession rights amounted to an illegal act under international law and stated its intention to 'take all such action as may be necessary to protect its rights in any country,' including the bringing of lawsuits against any purchaser of Iranian oil. In addition, the evidence introduced by petitioner tended to show that the other major oil company defendants in this suit, as a result of their fear that countries in which they held concessions would follow the Iranian lead should the nationalization of Anglo-Iranian's property be successful, also communicated to Cities and other domestic oil companies their intention to support Anglo-Iranian by refusing to deal with any company that handled Iranian oil. That such threats were both substantial and effective is demonstrated by the testimony of petitioner that numerous American oil companies, not made parties defendant in this action, refused to deal with him for precisely the reason that they were afraid of retaliation. In addition, petitioner testified that the other defendants had threatened to boycott any companies that leased tankers for use in transporting Iranian oil.
37
It is thus clear that the evidence furnished by petitioner himself provides a much more compelling explanation for Cities' failure to purchase Iranian oil than does his argument that such failure is evidence of conspiratorial behavior by Cities. When this explanation is placed in juxtaposition with the evidence introduced by Cities showing that the Kuwait deal was arranged long before the nationalization, that Cities objected continually to the formation of the Consortium, and that Cities refused the minimal share offered it as a prospective participant therein after the failure of its efforts to block the formation of the Consortium, the suggestion that Cities was in some manner bought off becomes insupportable. Petitioner attempts to escape the force of this showing by arguing that he is obligated not to demonstrate why Cities conspired but only to show that Cities in fact conspired. However, this contention, though undoubtedly true in the abstract, has little relevance to Waldron's theory of how he has introduced evidence that Cities in fact conspired.
38
Petitioner himself consistently argues that Cities' interests in this entire situation were directly opposed to those of the other defendants. The others had large supplies of foreign oil; Cities did not. The others allegedly were members of an international cartel to control foreign oil; Cities was not. The others were interested in re-establishing the status quo prior to nationalization; Cities was not. It is doubtless due to the difficulty of suggesting a motive for Cities to conspire against him, coupled with Cities' demonstrated interest in his proposals for several months (to the extent that Cities even paid Waldron several thousand dollars to reimburse him for his time and expenses incurred in arranging Jones' trip to Iran), that prompts petitioner, understandably enough, to insist that motive is not controlling in his case. However, to suggest, as petitioner does, that Cities' participation in the conspiracy is shown by its failure to deal with him is itself to rely on motive.
39
Obviously it would not have been evidence of conspiracy if Cities refused to deal with Waldron because the price at which he proposed to sell oil was in excess of that at which oil could be obtained from others. Therefore, it is only the attractiveness of petitioner's offer that makes failure to take it up suggestive of improper motives. However, it has been demonstrated above that for Cities to enter into any deal with Waldron for Iranian oil would have involved it in a variety of unpleasant consequences sufficient to deter it from making any such deal.16 Therefore, not only is the inference that Cities' failure to deal was the product of factors other than conspiracy at least equal to the inference that it was due to conspiracy, thus negating the probative force of the evidence showing such a failure, but the former inference is more probable.
40
Petitioner does attempt to point to other evidence besides the simple failure to deal as showing conspiracy.17 He places considerable reliance on the report prepared for transmission to Mossadegh in October 1952, immediately after Jones' return from Iran and Watson's announcement to Waldron that Cities was no longer interested in Iranian oil. He stresses two aspects of the report as evidencing Cities' participation in the boycott: first, the statement that it was necessary for Iran to come to some sort of agreement with the British (Anglo-Iranian was owned 51% by the British Government) about compensation for the concession rights and expropriated property, and, second, the suggestion that there existed the possibility that an American company (presumably Cities) would import some Iranian oil purchased directly from NIOC. It is interesting to note that petitioner attempts to use this memorandum in two opposing ways. He suggests, on the one hand, that the reference to the necessity for British cooperation if the Iranian oil industry were to be reactivated is evidence of Cities' adherence to the scheme initiated by Anglo-Iranian to force Iran to return the properties, and, on the other, that the statement that it would be possible for Iran to sell substantial amounts of oil without such an agreement is evidence of Cities' continued interest in Iranian oil. It is difficult to see how the latter contention supports an inference of conspiracy. Petitioner also ignores the fact that the latter alternative was characterized by Jones in the report as less desirable insofar as Iran's long-term interests were concerned, and that, with regard to Cities' participation in such an arrangement, Jones also stated that '(d)evelopment of some method, possibly through agreement between United States and British Governments, (would have to be made) that would allow Iranian crude to move to U.S. markets without tie-ups, law suits and other similar harassments to the purchasers of the crude.'
41
Petitioner also emphasizes the statement sent by Jones to the incoming Secretary of State and Attorney General that the only solution for Iran lay in some sort of accommodation with the British. Since this was also the position taken, in effect, by the other alleged conspirators, petitioner suggests that it too shows common purpose. However, once Jones had decided that Cities could not risk trying to break the boycott itself, it was merely a factual observation to state that Iran would not be able to restore the operation of its oil industry without some kind of agreement being made with the boycotters. The use of the phraseology that this was the only 'honorable course' hardly changes the factual background of the letter.
42
In addition, the statement is substantially similar to that made in the report intended to be sent to Premier Mossadegh on which petitioner relies to show Cities' continued interest in Iranian oil. Petitioner himself notes that the agreement contemplated in the report between Iran and Anglo-Iranian would involve an American company (hopefully Cities) taking over the operation of the oil industry, while Anglo-Iranian would be compensated for its property. Since Anglo-Iranian was insisting that its property and concession rights be returned to it outright, and was rejecting proposals to substitute the payment of compensation therefor, this proposal by Jones is not reasonably susceptible of the interpretation sought to be placed on it by petitioner.
43
Moreover, the letter was accompanied by a legal memorandum, stating that Iran had a right under international law to nationalize its oil industry, that ran directly counter to the consistent position taken by the other defendants in this case. Indeed, it went to the heart of their defense, since one of the arguments being made below is that the other defendants were merely acting to protect their property rights. See 231 F.Supp., at 87.
44
Petitioner argues that the failure of the Richfield Oil Co. to deal with him is evidence of conspiracy by Cities because Cities was a major, although not a controlling, stockholder in Richfield. However, aside from Cities' stock interest in Richfield, petitioner has produced no evidence other than speculation to connect this failure with any action by Cities. As for the probative value of the failure to deal with Waldron, the same objection is applicable to the proposed transaction with Richfield that has been discussed in connection with the proposed deal with Cities, namely, the probability that it was due to a desire to avoid difficulties that would be presented by Anglo-Iranian and the other defendants. Moreover, since petitioner's contract had expired by the time the deal fell through, it is also possible that no agreement was reached because Waldron no longer had anything to offer. Therefore, the failure of petitioner to sell oil to Richfield adds nothing to his case against Cities.
45
Finally, petitioner places great reliance on Jones' alleged interference in his efforts to sell the United States Government a cargo of gasoline for military use. One difficulty with this contention is that the incident occurred at a time when, petitioner conceded in the trial court, Cities was not yet a member of the conspiracy. A more basic objection to it, however, is that it is apparent that Jones, in his cable to the Secretary of the Interior, was primarily concerned with disassociating himself from Carter's efforts to promote the sale, efforts which Carter intended to tell the Secretary were supported by Jones. Under those circumstances, what petitioner characterizes as vindictive interference by Jones appears far more likely to have been a desire not to be used in someone else's financial dealings. In any event, it is insufficient support, in light of all the other evidence, on which to base a case for participation by Cities in the conspiracy.
C.
46
In support of his contention that summary judgment against him was improper, petitioner relies heavily upon Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458. (1962). In Poller the plaintiff claimed that CBS canceled its affiliation agreement with his UHF station pursuant to a conspiracy between CBS and some third parties to drive him out of business in order to give CBS a short-term monopoly of the UHF market in the Milwaukee area, and ultimately to eliminate UHF competition there entirely. The plaintiff introduced evidence showing that CBS had canceled his affiliation, that it purchased and affiliated with another UHF station in competition with him, that he was driven out of business as a result of the competition with the other station, and that subsequently CBS terminated the operation of its station, thereby leaving the Milwaukee market without any UHF service at all. CBS in turn relied on evidence consisting largely of affidavits from, and depositions of, various of its executives asserting that the actions taken by it were the result not of conspiracy but of its legitimate business decision to enter into competition in the UHF market in the Milwaukee area. The basic issue between the parties, therefore, concerned the motives of CBS in canceling its affiliation with the plaintiff Poller. This Court held that where there was substantial factual evidence tending to show the existence of a conspiracy to eliminate a competitor and where the crucial question was motive, summary judgment was prematurely granted against the plaintiff, notwithstanding the fact that there was also substantial evidence tending to show the nonexistence of conspiratorial behavior.
47
At first glance the present case seems to present substantial similarities to the situation in Poller in that the issue as to Cities' motive in failing to conclude a deal with petitioner is likewise basic to the litigation here. However, there are crucial differences between the two cases. In Poller the competitive relationship between CBS and the plaintiff was such that it was plausible for the plaintiff to argue that CBS had embarked on a plan to drive him out of business. In this case, as Waldron has admitted right along, the business relationship between him, Cities, and the other defendants was such that it is much more plausible to believe that Cities' interests coincided, rather than conflicted, with those of petitioner. And, in fact, the course of dealings between petitioner and Cities over the strenuous objection of the other defendants gives ample evidence of precisely this similarity of interest. As Waldron himself candidly stated in the course of his deposition, he would not have originally included Cities as a co-conspirator had he not conceived the idea that the ultimate failure of Cities to deal with him was the result of some sort of payoff. Yet as described, supra, at 263—264, Cities has introduced overwhelming evidence that no such payoff was ever made or promised to it in return for an agreement not to deal with Waldron, a showing which petitioner has in no way rebutted. Petitioner is thus forced to take the position that the one fact that he has produced, Cities' failure to make a deal with him for Iranian oil, is sufficiently probative of conspiracy to entitle him to resist summary judgment.
48
In support of this position, petitioner relies heavily on Interstate Circuit, Inc. v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610 (1939), and Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 74 S.Ct. 257, 98 L.Ed. 273 (1954). In Interstate Circuit a group of motion picture distributors, at the request of two large first-run exhibitors, simultaneously imposed identical restrictions on subsequent showings of the films they distributed. These restrictions had the effect of forcing subsequent-run exhibitors to raise their admission prices substantially in the direction of the prices then charged by the competing first-run exhibitors at whose behest the restrictions were imposed. This in turn tended to restrain competition among the exhibitors by depriving the subsequent-run exhibitors of much of their ability to compensate for their competitive disadvantages by selling tickets at a considerably lower price than that charged by the first-run exhibitors. Other restrictions prohibiting the showing of double-features in subsequent-run theatres were imposed with similar anti-competitive effects. There was no direct evidence showing that the distributors agreed with one another to impose the identical restrictions, but it was shown that each distributor knew that all the other distributors had been approached with the same proposal and that the imposition of the restrictions would be feasible only if adhered to by all distributors. Finally, it was shown that the identical action taken had the effect of creating a likelihood of increased profits for each distributor. This Court held that on the foregoing facts a tacit agreement to restrain competition between the distributors could properly be inferred.
49
Interstate Circuit differs from the case at hand in precisely the same way that Poller does, namely, in the inferences of motive that can reasonably be drawn from the facts. The reason that the absence of direct evidence of agreement in Interstate Circuit was not fatal is that the distributors all had the same motive to enter into a tacit agreement. Adherence to such an agreement would enable them to increase their royalties by forcing a rise in admission prices without the danger of competitors enlarging their share of the subsequent-run market by refusing to impose similar restrictions. That such a step would also aid the first-run exhibitors proposing it to restrain competition between themselves and subsequent-run exhibitors would not significantly diminish the anti-competitive benefits to be obtained by the distributors. Here Waldron is unable to point to any benefits to be obtained by Cities from refusing to deal with him and, therefore, the inference of conspiracy sought to be drawn from Cities' 'parallel refusal to deal'18 does not logically follow.
50
Theatre Enterprises, also relied on by petitioner, merely reiterated the holding of Interstate Circuit that 'business behavior is admissible circumstantial evidence from which the fact finder may infer agreement,' 346 U.S., at 540, 74 S.Ct., at 259, in the course of ruling that the parallel behavior there shown did raise a conspiracy issue for the jury, which permissibly resolved it in the defendants' favor on the basis of the other contrary evidence in the case. It did not purport to deal with a situation where the interests of the parties whose behavior was 'consciously parallel' were substantially divergent and thus is inapplicable here. Thus neither precedent nor logic supports petitioner's contention that the evidence to which he points is significantly probative of conspiracy and, therefore, we hold that on the facts as shown summary judgment was correctly awarded to respondent.
IV.
51
Rule 56(e) of the Federal Rules of Civil Procedure states that '(w)hen a motion for summary judgment is made and supported * * * an adverse party may not rest upon the mere allegations or denials of his pleading, but his response * * * must set forth specific facts showing that there is a genuine issue for trial.' Petitioner contends that the lower courts misapplied Rule 56(e) in this case and erroneously placed the burden on him to show that there was a material issue of fact for trial, rather than first requiring respondent Cities Service, the movant, to demonstrate the absence of a 'genuine issue as to any material fact' under Rule 56(c). However, it should be noted that the decisions below did not purport to discuss burden of proof at all. Therefore petitioner must demonstrate that, regardless of what was specifically held, the effect of the decisions below was to so shift the burden of proof.
52
It is true that the issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial. The case at hand presents peculiar difficulties because the issue of fact crucial to petitioner's case is also an issue of law, namely the existence of a conspiracy. What Rule 56(e) does make clear is that a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him.19 Yet the analysis of the facts undertaken above demonstrates that, due to the absence of probative force of Cities' failure to deal with Waldron as being in itself evidence of conspiracy, petitioner's position is, in effect, that he is entitled to rest on the allegations of conspiracy contained in his pleadings. Thus petitioner repeatedly states that Cities has never disproved its participation in the alleged conspiracy, despite the fact that the only evidence of such participation is his allegation that the failure to deal resulted from conspiracy.
53
Essentially all that the lower courts held in this case was that Rule 56(e) placed upon Waldron the burden of producing evidence of the conspiracy he alleged only after respondent Cities Service conclusively showed that the facts upon which he relied to support his allegation were not susceptible of the interpretation which he sought to give them. That holding was correct. To the extent that petitioner's burden-of-proof argument can be interpreted to suggest that Rule 56(e) should, in effect, be read out of antitrust cases and permit plaintiffs to get to a jury on the basis of the allegations in their complaints, coupled with the hope that something can be developed at trial in the way of evidence to support those allegations, we decline to accept it. While we recognize the importance of preserving litigants' rights to a trial on their claims, we are not prepared to extend those rights to the point of requiring that anyone who files an antitrust complaint setting forth a valid cause of action be entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint.
V.
54
We have postponed our discussion of petitioner's contention that he should have been permitted additional discovery prior to the grant of summary judgment to this point in order that it may be evaluated in the light of what he had succeeded in accomplishing as of the date he made the motion.
A.
55
Petitioner makes much of the fact that the present action has been pending in the lower courts for 11 years and that he has not yet received a formal answer to his complaint from any defendant nor been permitted any general discovery. Petitioner also complains of the inequity of his being faced with a motion for summary judgment after having been deposed for thousands of pages by the defendants, but before he has had an opportunity to obtain discovery from them. In particular, he emphasizes that in an antitrust conspiracy case discovery is vital because most of the evidence of conspiracy will naturally be in the hands of the defendants. However, petitioner fails to come to grips with the problems presented in this extremely complicated suit by the fact that one of the defendants, Cities Service, has from the beginning of the litigation attempted to disassociate itself from the others on the ground that, as petitioner himself acknowledged and initially alleged, it was in a totally different position from the other defendants.
56
Thus when petitioner emphasizes the considerable discovery had of him by the defendants as a group, he implies that Cities has been unfairly permitted more discovery of him than he has of it. He attempts to minimize the significance of the fact that Cities' participation in his examination amounted to a total of 3 1/2 days of deposition testimony by arguing that Cities benefited from the extensive examination conducted by the other defendants. The record reveals, however, that much of the evidence obtained by the other defendants in deposing petitioner and his associates is relied on heavily by petitioner himself to bolster his case against Cities. Had the record in this case consisted only of the evidence obtained by petitioner from Cities together with the testimony taken by Cities from Waldron, petitioner's case against Cities would be even weaker than it is. In fact, petitioner would undoubtedly have chosen to submit affidavits in opposition to Cities' motion for summary judgment containing much of the same material incorporated in his and his associates' depositions. Hence petitioner benefited as much vis-a -vis Cities from the depositions taken by the other defendants as Cities did.
57
Under such circumstances petitioner cannot justifiably claim that Cities has been given an unfair advantage by the extent of his examination by the other defendants.
58
As for petitioner's general objections to the length of time that his case has been pending, it is clear that Cities Service has been the only party to the litigation that has exhibited any consistent desire to expedite the proceedings, and that, even where postponements and adjournments have been sought by either Cities or the other defendants, petitioner has always been willing to acquiesce in delay.20 Certainly petitioner cannot claim that it was the responsibility of the trial judge to hurry matters along by rejecting stipulations entered into by all the parties to the case.
59
Petitioner's more vehement objections have to do with his claim that he has been stayed from obtaining general discovery of the other defendants in the case throughout the period during which he has sought to build a case against Cities. Since there is no indication that petitioner will be unable to obtain general discovery at some future date of the other defendants for use against them in the case still pending below, the issue here is whether he can compel Cities to remain a party to the litigation pending such general discovery. Assuming the correctness of petitioner's claim that he has been stayed from conducting such discovery (a claim disputed not altogether unpersuasively by respondent), the fact remains that petitioner has had discovery of the one party he is presently opposing and, therefore, his right to additional discovery must depend on the strength of his argument that it is necessary to his case against that party.
60
While petitioner now asserts that he has been vigorously demanding discovery of the other defendants right along, the record reveals that back in 1960, on one of the occasions at which petitioner claims to have requested such discovery, his counsel stated, 'I think the obvious place to begin is with Cities Service * * * and whether we need to go farther than that I don't know, and it would depend very much on what turned up there * * *.' It was only after two examinations of Cities Service personnel that petitioner finally made a formal motion for discovery of the other defendants in anticipation of Cities' renewal of its motion for summary judgment. In support of this motion petitioner was able to point to no significant evidence that he had turned up to show any dealings between Cities and the other defendants, other than the largely abandoned Kuwait oil transaction. His basic argument was, and is, simply the general proposition that in a conspiracy case the evidence is usually in the hands of the conspirators and that, therefore, he should have been permitted to examine the other alleged conspirators to see if he could obtain anything from them that would tend to link Cities to them.
61
It is probably true that in the ordinary conspiracy case a plaintiff would be entitled to obtain discovery against all the alleged conspirators instead of being obligated to proceed against them seriatim. However, in this case, by the plaintiff's own doing, one of the alleged conspirators was singled out from the rest as having joined the conspiracy at a much later date as the result of specific inducements. Being placed by petitioner's complaint in the position of being what might be termed a tangential defendant, Cities legitimately attempted to extricate itself from an expensive and protracted lawsuit. We do not mean to imply that a plaintiff should be barred from changing the theory of his case in response to information he obtains in the course of discovery. But when the evidence so obtained shows both that the defendant is in fact tangential and that the allegations by which he was linked to the other defendants are factually incorrect, we think that a burden should indeed be placed on the party changing his theory to show a significant likelihood that discovery of the other defendants would produce evidence different from that obtained thus far. In this case petitioner has only speculation as to what discovery of the other defendants would reveal about their relations with Cities Service, and not very persuasive speculation at that, since all the evidence thus far produced by any party on this subject supports the hypothesis that Cities was opposed to the other defendants rather than in collusion with them. Accordingly, it was not error on the part of Judge Herlands on these facts to deny that portion of petitioner's motion in opposition to summary judgment that requested general discovery of all the other defendants in this case.
B.
62
Petitioner acknowledges the fact that he has had some discovery of Cities Service pursuant to court order. However, he contends vigorously that the discovery he has obtained has been too limited to enable him adequately to resist the motion for summary judgment. Petitioner points out that he was initially limited to taking the deposition of Hill instead of Jones, notwithstanding the fact that Jones was the person at Cities with whom he primarily dealt with regard to the Iranian oil situation. He claims prejudice from the fact that Jones died before he could be deposed in that those Cities' personnel whom he eventually deposed, namely, Watson, Frame, and Heston, were not an adequate substitute for Jones. He also argues that he should have been allowed to depose Carter. Finally, petitioner asserts that his examination of the three executives was improperly limited in scope by Judge Herlands and that he should have been permitted general access to Cities' files for all documents in connection with Cities' activities in Iranian oil between the time he first approached Cities and 1955 in order to compensate for his inability to examine Jones.
63
It has already been observed21 that the absence of testimony from Jones in this litigation is largely happenstance, since there is absolutely no indication that Judge Herlands would not have permitted him to be deposed when Watson, Frame, and Heston were examined had he been available. In addition, while it is doubtless true that Jones, as president of Cities, could have testified more authoritatively with regard to certain of the questions concerning Cities' dealings in Iranian oil, petitioner's consistent attempt to portray those Cities executives who were deposed as uninformed underlings is substantially overstated. Notwithstanding some areas of ignorance, Watson, Frame, and Heston were privy to a considerable amount of information in connection with Cities' dealings both with Iran and with the other defendants. While Jones may have been the dominant figure in the Cities operation, it is simply unrealistic for petitioner to suggest that Jones could have involved Cities in a conspiracy on the scale which is alleged to have existed here without any knowledge on the part of the other major executives of the company.
64
Petitioner's desire to depose Carter, which appeared for the first time in the litigation at this late date, is interesting in light of the fact that originally Carter had been listed as one of petitioner's associates and the defendants had formally noticed their intention to depose him in that capacity. Petitioner does not adequately explain why, if such were in fact the case, he required a court order to examine Carter, who was not an employee of Cities. It should be emphasized in this connection that so far as appears from the record petitioner has introduced absolutely no evidence on his own behalf in this case except the deposition testimony obtained from himself and his associates by the defendants and the testimony and documents obtained from Cities pursuant to Judge Herlands' various discovery orders.
65
Petitioner's counsel stated in his affidavit attached to the discovery motion that Carter became an adherent of Cities immediately after petitioner filed his complaint and implied that Carter would not voluntarily testify. Assuming that to be true, although such an assumption seems open to question in view of the absence of any specific allegation to that effect,22 no explanation is proffered as to why petitioner did not try to obtain discovery of Carter earlier if his testimony were thought necessary to petitioner's case. Petitioner was aware long before late 1964 that Cities was contending that it was not a member of any conspiracy that may have existed between the other defendants, and that it resisted being put to the expense of participating in what showed every sign of being an extremely protracted litigation. Given the fact that Judge Herlands had stated, in declining to grant Cities' original motion for summary judgment back in 1961, that he regarded petitioner's case against Cities as extremely weak, it seems quite proper to infer from the timing of petitioner's initial request to depose Carter that he did not regard Carter as someone whose testimony was significantly likely to help him resist a motion for summary judgment. On the contrary, the timing of the initial request suggests strongly that petitioner was more interested in establishing grounds on which to contend that Cities' motion for summary judgment should not yet be granted than he was in actually discovering what evidence Carter was in a position to furnish to him. There is no real indication, despite his arguments to the contrary, that petitioner obtained information in the course of his prior discovery that made Carter a more vital witness in 1964 than he would have been in 1961 or 1963.
66
As for petitioner's documentary requests, and his complaints about improper limitation of his previous discovery presented in support thereof, it is apparent that the time period to which they relate is in large part a period during which petitioner was no longer having any dealings with Cities. This is important because of two factors crucial to Waldron's conspiracy charge against respondent: first, petitioner argues that Cities joined the conspiracy when it refused to go through with a deal through him for Iranian oil, namely, in the latter part of 1952, and second, petitioner's contract with NIOC, the property right allegedly interfered with by the illegal boycott, expired in the spring of 1953. In addition, petitioner had at the time of this motion already obtained discovery of a very substantial number of documents having to do with Cities' dealings in Iranian oil prior to November 1, 1952, the latest point in time ever seriously suggested by petitioner for Cities to have joined the conspiracy.
67
In a proper case, of course, a party might well have the right to demand discovery of documents from an opposing party dealing with activities during a period outside that covered by the subject matter of the lawsuit in order the provide some indication of the ramifications of the actions forming the basis of the complaint. We do not doubt that, had petitioner introduced some significant evidence that Cities had become a member of the conspiracy alleged in his complaint, more extended discovery under Rule 56(f) of Cities' activities subsequent to its refusal to deal with him would have been proper. Likewise, given sufficient evidence of conspiracy, broader access to Cities' files for the period within which petitioner had already had discovery would have been in order. But in this case petitioner was attempting, in effect, to obtain discovery of peripheral aspects of Cities' alleged participation in the conspiracy, after having failed, despite already substantial discovery, to obtain any significant evidence of conspiracy for the period during which it was alleged to have directly injured him. It is precisely because the discovery obtainable under Rule 56(f)23 to oppose a motion for summary judgment would normally be less extensive in scope than the general discovery obtainable under Rule 26, that such a manner of proceeding was properly refused here.
68
Notwithstanding Waldron's complaints about the limitations placed on his discovery of materials and witnesses, it is evident that he has had sufficient discovery either to substantiate his claims of conspiracy to the extent of raising a material issue of fact thereon, or of providing a basis for investigation of his own to gather additional evidence during the five years for which Cities' motion was pending below. The fact that petitioner accomplished neither of these ends with the discovery he obtained is ample support for the trial judge's determination that additional discovery would be futile and would merely operate to require Cities to participate further in litigation in which it had been originally joined solely on the basis of conjecture.
69
For the foregoing reasons we hold that summary judgment was properly awarded in the courts below to respondent.
70
Affirmed.
71
Mr. Justice DOUGLAS took no part in the decision of this case.
72
Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice BRENNAN join, dissenting.
73
The Court here upholds a summary judgment against a plaintiff in a suit for treble damages under the Sherman Antitrust Act. The case is a complex one in which the summary judgment was entered 11 years after the action was brought. It is strange, indeed, that during the more than 11 years before the summary judgment was entered, the defendant Cities Service should have enjoyed the luxury of never having been compelled by the court to answer the complaint, never having been required either to admit or deny the plaintiff's charges that the defendant had entered into a conspiracy to destroy plaintiff's business by boycotting it. There is one thing still stranger and more fantastic about the case; although the court permitted the defendants to interrogate the plaintiff for 153 days over a period of 5 1/2 years, the same court refused during the 11 years to permit the plaintiff to ask any questions whatever of many of Cities' officers and employees who were most familiar with transactions about which the plaintiff complained. And all this was done in the face of our holding in Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491 (1962), that 'summary procedures should be used sparingly in complex antitrust litigation' and that '(t)rial by affidavit is no substitute for trial by jury which so long has been the hallmark of 'even handed justice." The following statement of the way this summary judgment was entered is sufficient, I think, to show the gross error of the Court's affirmance of the judgment.
74
In 1956 petitioner Waldron1 brought suit against the Standard Oil Company (New Jersey) and six other major oil companies including Cities Service Co., the respondent here. The complaint alleged a general conspiracy beginning in 1928 on the part of all the defendants but Cities. It was alleged that Cities joined the conspiracy after the Government of Iran nationalized the properties of the Anglo-Iranian Oil Company in May 1951, and that the defendants conspired together to prevent petitioner Waldron from selling any of the Iranian oil. To carry out the boycott the alleged conspirators threatened all other companies with dire economic consequences if they dealt in the Iranian oil. Despite these threats, Cities, which did not control sources of oil adequate to supply its customers and which therefore had been compelled to buy from the major companies, expressed to petitioner a desire to obtain Iranian oil. Petitioner was offering to sell the Iranian oil on very attractive terms, and Cities agreed to go to Iran in order to evaluate the prospects, provided it received an invitation from Iranian Premier Mossadegh. Petitioner thereupon went to Iran, secured a written invitation from the Premier, and in due course the President of Cities Service, W. Alton Jones, went to Iran, taking with him other high Cities officials who, as experts, could help him appraise the possibilities of operating the old Iranian plants. Petitioner Waldron also went along. The investigation in Iran was made, but during the trip, Jones made a secret side-trip to Kuwait to pursue negotiations for buying oil from Gulf Oil, one of the alleged conspirators. Jones' associates did not accompany him on this trip to Kuwait, and Cities made every effort to conceal the secret visit from petitioner. In fact, as late as 1960, during the course of this lawsuit, Cities continued to deny that Jones had ever gone to Kuwait while on the Iranian trip; the fact was not finally revealed until 1964 when petitioner was at last permitted to question some of the Cities officials who had been involved in the Iranian trip.
75
After the trip to Iran, Cities officials prepared a memorandum reporting favorably on the prospects for using Iranian oil, but then in October 1952 Cities abruptly informed Waldron that it had no further interest in the Iranian oil which petitioner was offering on such favorable terms. The intense pressure to which Cities was being subjected at this time by the major companies is suggested by an incident that occurred only a month later at the annual convention of the American Petroleum Institute. Jones, President of Cities, had been slated to receive the Institute's gold medal for being selected oil man of the year, but at the meetings representatives of the major companies threatened Jones that they would cut off Cities' supplies of its sorely needed crude oil if he dealt further in Iranian oil, and he was not presented with the gold medal. Three months later the agreement between Cities and Gulf for the purchase of the Kuwait oil was formally executed. Then, after petitioner's efforts to sell the Iranian oil had completely failed, the Iranian Government was forced to agree to turn over the nationalized properties to a Consortium of the major oil companies, and Cities was granted a small share in the Consortium.
76
Petitioner's antitrust complaint charged that Cities, which previously had eagerly pursued the prospect of purchasing Iranian oil, had changed its views and had forgone its chance to make the 'billions' that Jones had foreseen, in order to get the Kuwait oil and membership in the Consortium. After the complaint was filed, Cities examined petitioner at length, at the same time getting the court to postpone its time for answering the complaint until after these examinations could be completed. Then Cities filed affidavits charging that petitioner's allegations about the Kuwait and Consortium deals had no basis in fact and moved for summary judgment. The court deferred ruling on the summary judgment motion but at the same time refused to permit petitioner to obtain general discovery to enable him to prove his case against Cities; instead the court authorized a limited discovery relating only to the Kuwait purchase and the Consortium arrangement; petitioner's inquiry was also sharply limited both as to the subject matter and the time period of any transactions that could be questioned. At the same time the court refused to permit petitioner to take the deposition of Jones and those of his associates who had the greatest opportunity to know the reasons for the drastic change in Cities' attitude on buying Iranian oil. The Court instead ordered that only George H. Hill, a Cities vice president who had never met petitioner or known anything about the Iranian oil deal but who had been in charge of negotiating the Kuwait deal and who had let Cities' attempts to obtain a share in the Consortium, would be required to answer petitioner's questions.
77
After taking the deposition of Hill, petitioner filed an amended complaint which eliminated his specific reliance on the Kuwait and Consortium deals and stressed generally that Cities' participation in the conspiracy had been obtained by threats and inducements from the principal conspirators. The court again postponed a ruling on Cities' motion for summary judgment, and ordered that petitioner be permitted to make some further discovery, but once again the scope of discovery permitted to petitioner was sharply limited. In addition, Cities' president, Jones, had died during the period when petitioner was restricted by the court's order to taking only the deposition of Hill, and thus petitioner was never able to question the one man who was the crucial figure in the alleged Iranian transactions. Of the seven other Cities officials who had been involved in these transactions, three had also died during the long period in which the court had stayed petitioner from taking their depositions.
78
In spite of the fact that petitioner had amassed considerable evidence of Cities' liability, in spite of the fact that Cities had been given unrestricted freedom to question petitioner while petitioner was barred from getting any information at all from Cities employees familiar with the Iranian transactions, in spite of the fact that the discovery eventually allowed to petitioner had been sharply restricted, in spite of the fact that petitioner never had an opportunity to question four of the eight Cities officials who had been most intimately connected with the alleged transactions, and in spite of the fact that Cities had never been required to answer the allegations of the complaint, the court entered summary judgment for Cities in September 1965. 38 F.R.D. 170 (1965). The Court of Appeals, in a short, uninformative opinion, affirmed the decision of the District Court. 361 F.2d 671 (C.A.2d Cir., 1966).
I.
79
The Court's action in affirming this judgment cannot possibly be reconciled with this Court's holding in Poller v. Columbia Broadcasting System, supra. There the Court warned against using summary judgments to decide complex antitrust litigation where motive and intent play leading roles. This is just such a case. Its complexity is such that even with a summary judgment it took 11 years to end it. Literally months and years were spent in examining plaintiff, in getting affidavits and holding numerous hearings. It is little less than farcical to treat a case that eats up that much time as one suitable for a summary judgment. It certainly would not have taken one-tenth of that much time to give the case a full-dress trial, where sworn testimony before a jury rather than affidavits presented to a judge could have been used to adjudicate plaintiff's rights in accordance with due process of law. An excuse for summary judgments has always been that they save time. If the time has come when the best speed record they can make is to take 11 years to decide one of them, the idea of summary judgments as time-savers is a snare and delusion and the best service that could be rendered in this field would be to abolish summary judgment procedures, root and branch. The plain fact is that this case illustrates that the summary judgment technique tempts judges to take over the jury trial of cases, thus depriving parties of their constitutional right to trial by jury.
80
It seems clear to me that even with petitioner's very limited opportunity to gather evidence in support of his case, there is ample evidence in this record from which a jury could conclude that respondent Cities did indeed join the alleged conspiracy. Petitioner established that Cities needed Middle East oil, that he was offering Iranian oil on very attractive terms, and that Cities had in a number of ways manifested its considerable interest in purchasing this oil. Suddenly, Cities announced to petitioner that it did not intend to pursue the deal any further, and in fact took steps to make more difficult petitioner's efforts to sell the oil to others.2 This refusal to deal could of course be explained by a number of motivations, but petitioner contends that this record raises the significant possibility that Cities action was predominantly motivated not by legitimate business considerations but rather by a decision to join the alleged conspiracy, induced either by threats of the conspirators or by a payoff in the form of the Kuwait and Consortium deals. The Court rejects each of these theories, although for sharply contrasting reasons, and concludes that despite the possible illegitimate motivations, evidence now in the record suggests that other motivations were, in the Court's opinion, more probable. As I have already indicated, I could never accept this as the appropriate standard, under Poller, supra, for determining whether a defendant in a case such as this is entitled to summary judgment.
II.
81
The Court in this case has deprived plaintiff of his right to discovery on highly technical and wholly indefensible grounds. The heart of the complaint here was that Cities Service and others conspired to boycott plaintiff's sale of Iranian oil by use of threats and monopoly power in violation of the antitrust acts. Rule 56(e) comprehensively provides for the use of depositions and affidavits, and Rule 56(f) provides that where it appears that affidavits are unavailable the Court may refuse the application for summary judgment, or may order a continuance to permit affidavits to be obtained, or make such other order as is just. Thus it appears that the rules contemplate that a party may not be shut off from an opportunity to get affidavits to give him his day in court. No judge is granted power under Rule 56 or any other rule to completely deny a party all opportunity to take depositions or to get affidavits essentially needed to get a fair trial of his case. Such a course of conduct cannot possibly be called 'just' within the meaning of Rule 56(f), and yet here this plaintiff, over a course of years, repeatedly pleaded with the district judge for an opportunity to examine Jones and other Cities Service employees particularly familiar with the Iranian oil deal in order to present facts he had no other way to obtain. Of course, a party who is suing a company and who is dependent for proof on company employees must have the force of the law behind him or he cannot get testimony from such employees against their company. That the rule makers did not intend any such burdens to be imposed upon discovery is also shown by Rule 27, which even authorizes depositions to be taken, before any suit is filed, by any person who fears or expects that he may be a party to an action.
82
The excuse given by the trial court for cutting off plaintiff's right to discovery here will not hold water. It was that by pleading at one time that there were two possible reasons for Cities joining the conspiracy to boycott, he was perforce eternally barred from examining the defendants about any reasons other than those two in order to get more complete information as to why they conspired. To uphold this view of the District Court is to treat a lawsuit as a game in which the party who gets there first with the most questions wins the game. But lawsuits are not games. The end of each one of them, if courts remain true to the ancient traditions of justice, is to try each case in a way that permits truth to triumph. That has not been done here. This petitioner was and is yet entitled to examine the Cities Service employees still living who know about this case. Law and justice require it. Too much time has already been wasted in an effort to provide a summary disposition of a case that should not be disposed of that way.
83
I would reverse the case and direct that it go to trial.
1
Plaintiff, Gerald B. Waldron, died in November 1964. His executor has been substituted as the petitioner. We shall refer to both Waldron and the executor as 'petitioner' or 'Waldron' interchangeably.
2
Gulf subsequently settled with petitioner and is no longer a party defendant, although it remains as an alleged co-conspirator.
3
This practice has since been changed by rule. See 4 Moore, Federal Practice 26.13(3), at 1154 (2d ed. 1967).
4
Anglo-Iranian was a co-owner of the Kuwait Oil Co., the actual holder of the entire Kuwait oil concession, but does not appear to have participated in the negotiations with Cities.
5
Petitioner argues that a 'most-favorednations clause' was inserted at the last minute for the benefit of Cities. The record reveals that the so-called clause was simply a unilateral declaration from Gulf in the form of a letter from its chairman of the board that in the event of future price changes its policy would be to give Cities the benefit of the better price.
6
231 F.Supp. 72.
7
Cities' president, W. Alton Jones, died in an airplane crash on March 1, 1962. Three other Cities' executive who had participated in varying degrees in Cities' exploration of the possibility of purchasing Iranian oil had also died by this time.
8
Although petitioner's discovery motion preceded respondent's renewal of its summary judgment motion, it is evident that petitioner's motion was made with full knowledge that a renewal of respondent's motion would soon be forthcoming. In a very real sense it was thus a response to the summary judgment motion and was intended to serve as a ground for arguing that the motion should not be granted.
9
38 F.R.D. 170.
10
361 F.2d 671 (1966).
11
Documents covering internal Cities' discussion of these matters were also ordered to be produced for the period from October 1, 1952, to November 1, 1952.
12
See n. 7, supra.
13
For the purpose of evaluating Waldron's case against Cities, his allegations about a conspiracy to boycott him carried out by the other defendants herein must be taken both as true and as legally sufficient. We, of course, intimate no opinion on the merits of petitioner's claims against the other defendants that are still pending below.
14
At this date Watson was Cities' senior vice president. He subsequently became chairman of the board.
15
This percentage was made up of the three equal shares initially awarded to Richfield, Cities, and the Sinclair Oil Corp. (Sinclair also held about a one-third stock interest in Richfield.) Cities and Sinclair both transferred their shares to Richfield, apparently for no consideration.
16
In his brief in this Court petitioner drastically changes his theory of conspiracy. He now argues that Cities' participation in the conspiracy was obtained by threats of retaliation from the other defendants. While conceivably petitioner could have argued at the trial level that under such cases as Klors, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), and United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), acquiescence because of threats in an illegal scheme conceived and carried out by others for their own benefit makes the acquiescing party a member of an illegal combination, we decline to pass upon such a contention when it is presented for the first time in this Court. Although at one point in this complex and protracted case, which has thus far produced over 12,000 pages of record, the petitioner alleged that the other defendants have 'secretly threatened, induced and conspired with defendant Cities Service to break off all dealings with plaintiff,' this intimation of a coerced acquiescence theory was never properly pursued. Klors and Parke, Davis have not been cited or discussed by petitioner once in the entire course of these proceedings. One searches in vain among petitioner's papers prior to argument in this Court for a single intelligible statement of this theory. In these circumstances we cannot attribute error to the courts below for their failure to discern such a theory, nor would it be appropriate at this stage in the case for us to pass upon petitioner's theory of combination through coerced acquiescence and the accompanying difficult questions it would raise concerning Cities' liability to petitioner or possible rights over against the other defendants.
17
Petitioner argues that Cities has thus far failed specifically to deny the allegations in his complaint charging it with conspiracy. In his original complaint petitioner charged that Cities '(a)t this
time and by these acts (referring to the Kuwait deal and the Consortium Agreement) * * * entered into combination and conspiracy with the other defendants.' Cities submitted an affidavit denying that Kuwait oil and a share in the Consortium had been given it as part of a conspiracy. In other words, Cities denied the factual allegations of petitioner but not the ultimate legal conclusion based thereon, namely conspiracy. A fair reading of that document requires that it be given its intended effect as a denial of petitioner's claim against Cities. Moreover, petitioner never made this argument in either of the lower courts (especially not in the District Court where Cities could have remedied any defects in the papers supporting its motion had they been pointed out in time) and we are not disposed to consider it now, particularly in light of its extreme technicality as applied to the facts of this case.
Petitioner also objects that only W. Alton Jones could have adequately denied the allegations of conspiracy and urges, therefore, that Cities' submission of such an affidavit from Hill rather than from Jones should be held against Cities as evidence of conspiracy. However, as previously pointed out, Hill was the natural person to respond to petitioner's factual allegations about Kuwait and the Consortium. See supra, at 271. Contrary to petitioner's characterization of Hill as an attorney and an underling, Hill was an executive vice president o Cities, who had gone to law school many years before but who had not practiced law in a long time. As for petitioner's failure to examine Jones, that has been shown above to be due basically to his own lack of diligence. See also n. 20, infra.
18
See generally Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals To Deal, 75 Harv.L.Rev. 655 (1962).
19
Indeed it was for the precise purpose of overturning a line of cases in the Third Circuit holding that a party could successfully oppose summary judgment by relying on his well-pleaded allegations that Rule 56(e) was amended in 1963. See 6 Moore, Federal Practice 56.22(2), at 2821 (2d ed. 1966).
20
It must be remembered that the fact that approximately six years had elapsed between the date petitioner filed his complaint and the completion of the examination of petitioner and his associates is in no way the responsibility of the trial judge. Both parties had, as previously described, entered into numerous stipulations postponing the taking of depositions for months at a time. Petitioner argues that he cannot be penalized for not working full time at supplying the defendants with deposition testimony. This is certainly correct. However, petitioner cannot, by the same token, attempt to penalize respondent for delays in which he acquiesced with no hint of objection. Certainly no one will contend that over 5 1/2 years represents an example of the speed that a party interested in securing a swift resolution of his claims will require in order for himself and his associates to give 153 days of testimony.
21
See supra, at 272.
22
In fact, the affidavit submitted by petitioner's counsel in support of his discovery motion is replete with references to the ill-use Carter allegedly suffered at the hands of Cities rather than unpersuasive argument in support of the suggestion that in some way Cities had prevented Waldron from obtaining access to Carter.
23
Petitioner conceded below that his discovery should proceed under Rule 56(f) rather than Rule 26.
1
The original plaintiff Waldron, like several crucial witnesses in this case, is dead and this action is now being carried on by his executor. For the sake of clarity I will refer to the original plaintiff Waldron as the petitioner here.
2
Thus, Cities' president, Jones, instructed an associate to cable the Secretary of the Interior to advise the United States Government against purchasing gasoline from petitioner for military use. Although in the Court's view this cable was 'primarily' designed to disassociate Jones from petitioner's efforts to promote the sale, ante, at 284, this is certainly a rather narrow view of a cable that explicitly states, 'I seriously question wisdom of such action.' In any event I cannot understand how this Court can justify taking from the jury the responsibility for judging the primary purpose and effect of a piece of evidence such as this.
| 78
|
391 U.S. 308
88 S.Ct. 1601
20 L.Ed.2d 603
AMALGAMATED FOOD EMPLOYEES UNION LOCAL 590 et al., Petitioners,v.LOGAN VALLEY PLAZA, INC., et al.
No. 478.
Argued March 14, 1968.
Decided May 20, 1968.
Bernard Dunau, Washington, D.C., for petitioners.
Robert Lewis, New York City, for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case presents the question whether peaceful picketing of a business enterprise located within a shopping center can be enjoined on the ground that it constitutes an unconsented invasion of the property rights of the owners of the land on which the center is situated. We granted certiorari to consider petitioners' contentions that the decisions of the state courts enjoining their picketing as a trespass are violative of their rights under the First and Fourteenth Amendments of the United States Constitution. 389 U.S. 911, 88 S.Ct. 240, 19 L.Ed.2d 258 (1967).1 We reverse.
2
Logan Valley Plaza, Inc. (Logan), one of the two respondents herein, owns a large, newly developed shopping center complex, known as the Logan Valley Mall, located near the City of Altoona, Pennsylvania. The shopping center is situated at the intersection of Plank Road, which is to the east of the center, and Good's Lane, which is to the south. Plank Road, also known as U.S. Route 220, is a heavily traveled highway along which traffic moves at a fairly high rate of speed. There are five entrance roads into the center, three from Plank Road and two from Good's Lane. Aside from these five entrances, the shopping center is totally separated from the adjoining roads by earthen berms. The berms are 15 feet wide along Good's Lane and 12 feet wide along Plank Road.
3
At the time of the events in this case, Logan Valley Mall was occupied by two businesses, Weis Markets, Inc. (Weis), the other respondent herein, and Sears, Roebuck and Co. (Sears), although other enterprises were then expected and have since moved into the center. Weis operates a supermarket and Sears operates both a department store and an automobile service center. The Weis property consists of the enclosed supermarket building, an open but covered porch along the front of the building, and an approximately five-foot-wide parcel pickup zone that runs 30 to 40 feet along the porch. The porch functions as a sidewalk in front of the building and the pickup zone is used as a temporary parking place for the loading of purchases into customers' cars by Weis employees.
4
Between the Weis building and the highway berms are extensive macadam parking lots with parking spaces and driveways lined off thereon. These areas, to which Logan retains title, provide common parking facilities for all the businesses in the shopping center. The distance across the parking lots to the Weis store from the entrances on Good's Lane is approximately 350 feet and from the entrances on Plank Road approximately 400 to 500 feet. The entrance on Plant Road farthest from the Weis property is the main entrance to the shopping center as a whole and is regularly used by customers of Weis. The entrance on Plank Road nearest to Weis is almost exclusively used by patrons of the Sears automobile service station into which it leads directly.
5
On December 8, 1965, Weis opened for business, employing a wholly nonunion staff of employees. A few days after it opened for business, Weis posted a sign on the exterior of its building prohibiting trespassing or soliciting by anyone other than its employees on its porch or parking lot. On December 17, 1965, members of Amalgamated Food Employees Union, Local 590, began picketing Weis. They carried signs stating that the Weis market was nonunion and that its employees were not 'receiving union wages or other union benefits.' The pickets did not include any employees of Weis, but rather were all employees of competitors of Weis. The picketing continued until December 27, during which time the number of pickets varied between four and 13 and averaged around six. The picketing was carried out almost entirely in the parcel pickup area and that portion of the parking lot immediately adjacent thereto. Although some congestion of the parcel pickup area occurred, such congestion was sporadic and infrequent.2 The picketing was peaceful at all times and unaccompanied by either threats or violence.
6
On December 27, Weis and Logan instituted an action in equity in the Court of Common Pleas of Blair County, and that court immediately issued an ex parte order enjoining petitioners3 from, inter alia, '(p)icketing and trespassing upon * * * the (Weis) storeroom, porch and parcel pick-up area * * * (and) the (Logan) parking area and all entrances and exits leading to said parking area.'4 The effect of this order was to require that all picketing be carried on along the berms beside the public roads outside the shopping center. Picketing continued along the berms and, in addition, handbills asking the public not to patronize Weis because it was nonunion were distributed, while petitioners contested the validity of the ex parte injunction. After an evidentiary hearing, which resulted in the establishment of the facts set forth above, the Court of Common Pleas continued indefinitely its original ex parte injunction without modification.5
7
That court explicitly rejected petitioners' claim under the First Amendment that they were entitled to picket within the confines of the shopping center, and their contention that the suit was within the primary jurisdiction of the NLRB. The trial judge held that the injunction was justified both in order to protect respondents' property rights and because the picketing was unlawfully aimed at coercing Weis to compel its employees to join a union. On appeal the Pennsylvania Supreme Court, with three Justices dissenting, affirmed the issuance of the injunction on the sole ground that petitioners' conduct constituted a trespass on respondents' property.6
8
We start from the premise that peaceful picketing carried on in a location open generally to the public is, absent other factors involving the purpose or manner of the picketing, protected by the First Amendment. Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); AFL v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855 (1941); Bakery and Pastry Drivers and Helpers, Local 802 v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178 (1942); Chauffeurs, Teamsters and Helpers Local Union 795 v. Newell, 356 U.S. 341, 78 S.Ct. 779, 2 L.Ed.2d 809 (1958). To be sure, this Court has noted that picketing involves elements of both speech and conduct, i.e., patrolling, and has indicated that because of this intermingling of protected and unprotected elements, picketing can be subjected to controls that would not be constitutionally permissible in the case of pure speech. See, e.g., Hughes v. Superior Court of State of California in and for Contra Costa County, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985 (1950); International Brotherhood of Teamsters Local 695 v. Vogt, Inc., 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347 (1957); Cox v. State of Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182. Nevertheless, no case decided by this Court can be found to support the proposition that the nonspeech aspects of peaceful picketing are so great as to render the provisions of the First Amendment inapplicable to it altogether.
9
The majority of the cases from this Court relied on by respondents, in support of their contention that picketing can be subjected to a blanket prohibition in some instances by the States, involved picketing that was found either to have been directed at an illegal end, e.g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949); Building Service Employees International Union, Local 262 v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045 (1950); Local Union No. 10 United Ass'n of Journeymen, Plumbers and Steamfitters v. Graham, 345 U.S. 192, 73 S.Ct. 585, 97 L.Ed. 946 (1953), or to have been directed at coercing a decision by an employer which, although in itself legal, could validly be required by the State to be left to the employer's free choice, e.g., Carpenters and Joiners Union of America, Local No. 213 v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143 (1942) (secondary boycott); Brotherhood of International Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 309 v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995 (1950) (self-employer union shop). Compare NLRB v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951), and International Brotherhood of Electrical Workers, Local 501 v. NLRB, 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299 (1951).
10
Those cases are not applicable here because they all turned on the purpose for which the picketing was carried on, not its location. In this case the Pennsylvania Supreme Court specifically disavowed reliance on the finding of unlawful purpose on which the trial court alternatively based its issuance of the injunction.7 It did emphasize that the pickets were not employees of Weis and were discouraging the public from patronizing the Weis market. However, those facts could in no way provide a constitutionally permissible independent basis for the decision because this Court has previously specifically held that picketing of a business enterprise cannot be prohibited on the sole ground that it is conducted by persons not employees whose purpose is to discourage patronage of the business. AFL v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855 (1941). Compare Bakery and Pastry Drivers and Helpers Local 802 v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178 (1942). Rather, those factors merely supported the court's finding of a trespass by demonstrating that the picketing took place without the consent, and against the will, of respondents.
11
The case squarely presents, therefore, the question whether Pennsylvania's generally valid rules against trespass to private property can be applied in these circumstances to bar petitioners from the Weis and Logan premises. It is clear that if the shopping center premises were not privately owned but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943). The essence of those opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.
12
The fact that Lovell, Schneider, and Jamison were concerned with handbilling rather than picketing is immaterial so far as the question is solely one of right of access for the purpose of expression of views. Handbilling, like picketing, involves conduct other than speech, namely, the physical presence of the person distributing leaflets on municipal property. If title to municipal property is, standing alone, an insufficient basis for prohibiting all entry onto such property for the purpose of distributing printed matter, it is likewise an insufficient basis for prohibiting all entry for the purpose of carrying an informational placard. While the patrolling involved in picketing may in some cases constitute an interference with the use of public property greater than that produced by handbilling, it is clear that in other cases the converse may be true. Obviously, a few persons walking slowly back and forth holding placards can be less obstructive of, for example, a public sidewalk than numerous persons milling around handing out leaflets. That the manner in which handbilling, or picketing, is carried out may be regulated does not mean that either can be barred under all circumstances on publicly owned property simply by recourse to traditional concepts of property law concerning the incidents of ownership of real property.
13
This Court has also held, in Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), that under some circumstances property that is privately owned may, at least for First Amendment purposes, be treated as though it were publicly held. In Marsh, the appellant, a Jehovah's Witness, had undertaken to distribute religious literature on a sidewalk in the business district of Chickasaw, Alabama. Chickasaw, a so-called company town, was wholly owned by the Gulf Shipbuilding Corporation. 'The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block' on which business places are situated. * * * (T)he residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.' 326 U.S., at 502—503, 66 S.Ct. at 277.
14
The corporation had posted notices in the stores stating that the premises were private property and that no solicitation of any kind without written permission would be permitted. Appellant Marsh was told that she must have a permit to distribute her literature and that a permit would not be granted to her. When she declared that the company rule could not be utilized to prevent her from exercising her constitutional rights under the First Amendment, she was ordered to leave Chickasaw. She refused to do so and was arrested for violating Alabama's criminal trespass statute. In reversing her conviction under the statute, this Court held that the fact that the property from which appellant was sought to be ejected for exercising her First Amendment rights was owned by a private corporation rather than the State was an insufficient basis to justify the infringement on appellant's right to free expression occasioned thereby. Likewise the fact that appellant Marsh was herself not a resident of the town was not considered material.
15
The similarities between the business block in Marsh and the shopping center in the present case are striking. The perimeter of Logan Valley Mall is a little less than 1.1 miles. Inside the mall were situated, at the time of trial, two substantial commercial enterprises with numerous others soon to follow.8 Immediately adjacent to the mall are two roads, one of which is a heavily traveled state highway and from both of which lead entrances directly into the mall. Adjoining the buildings in the middle of the mall are sidewalks for the use of pedestrians going to and from their cars and from building to building. In the parking areas, roadways for the use of vehicular traffic entering and leaving the mall are clearly marked out. The general public has unrestricted access to the mall property. The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh.
16
It is true that, unlike the corporation in Marsh the respondents here do not own the surrounding residential property and do not provide municipal services therefore. Presumably, petitioners are free to canvass the neighborhood with their message about the nonunion status of Weis Market, just as they have been permitted by the state courts to picket on the berms outside the mall. Thus, unlike the situation in Marsh, there is no power on respondents' part to have petitioners totally denied access to the community for which the mall serves as a business district. This fact, however, is not determinative. In Marsh itself the precise issue presented was whether the appellant therein had the right, under the First Amendment, to pass out leaflets in the business district, since there was no showing made there that the corporate owner would have sought to prevent the distribution of leaflets in the residential areas of the town. While it is probable that the power to prevent trespass broadly claimed in Marsh would have encompassed such an incursion into the residential areas, the specific facts in the case involved access to property used for commercial purposes.
17
We see no reason why access to a business district in a company town for the purpose of exercising First Amendment rights should be constitutionally required, while access for the same purpose to property functioning as a business district should be limited simply because the property surrounding the 'business district' is not under the same ownership. Here the roadways provided for vehicular movement within the mall and the sidewalks leading from building to building are the functional equivalents of the streets and sidewalks of a normal municipal business district. The shopping center premises are open to the public to the same extent as the commercial center of a normal town. So far as can be determined, the main distinction in practice between use by the public of the Logan Valley Mall and of any other business district, were the decisions of the state courts to stand, would be that those members of the general public who sought to use the mall premises in a manner contrary to the wishes of the respondents could be prevented from so doing.
18
Such a power on the part of respondents would be, of course, part and parcel of the rights traditionally associated with ownership of private property. And it may well be that respondents' ownership of the property here in question gives them various rights, under the laws of Pennsylvania, to limit the use of that property by members of the public in a manner that would not be permissible were the property owned by a municipality. All we decide here is that because the shopping center serves as the community business block 'and is freely accessible and open to the people in the area and those passing through,' Marsh v. State of Alabama, 326 U.S., at 508, 66 S.Ct. at 279, the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.9
19
We do not hold that respondents, and at their behest the State, are without power to make reasonable regulations governing the exercise of First Amendment rights on their property. Certainly their rights to make such regulations are at the very least co-extensive with the powers possessed by States and municipalities, and recognized in many opinions of this Court, to control the use of public property. Thus where property is not ordinarily open to the public, this Court has held that access to it for the purpose of exercising First Amendment rights may be denied altogether. See Adderley v. State of Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). Even where municipal or state property is open to the public generally, the exercise of First Amendment rights may be regulated so as to prevent interference with the use to which the property is ordinarily put by the State. Thus we have upheld a statute prohibiting picketing 'in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any * * * county * * * courthouses.' Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 1338. Likewise it has been indicated that persons could be constitutionally prohibited from picketing 'in or near' a court 'with the intent of interfering with, obstructing, or impeding the administration of justice.' Cox v. State of Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965).
20
In addition, the exercise of First Amendment rights may be regulated where such exercise will unduly interfere with the normal use of the public property by other members of the public with an equal right of access to it. Thus it has been held that persons desiring to parade along city streets may be required to secure a permit in order that municipal authorities be able to limit the amount of interference with use of the sidewalks by other members of the public by regulating the time, place, and manner of the parade. Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); Poulos v. State of New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953). Compare Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949) (use of sound trucks making 'loud and raucous noises' on public streets may be prohibited).
21
However, none of these cases is applicable to the present case. Because the Pennsylvania courts have held that 'picketing and trespassing' can be prohibited absolutely on respondents' premises, we have no occasion to consider the extent to which respondents are entitled to limit the location and manner of the picketing or the number of pickets within the mall in order to prevent interference with either access to the market building or vehicular use of the parcel pickup area and parking lot.10 Likewise, Adderley furnishes no support for the decision below because it is clear that the public has virtually unrestricted access to the property at issue here. Respondents seek to defend the injunction they have obtained by characterizing the requirement that picketing be carried on outside the Logan Mall premises as a regulation rather than a suppression of it. Accepting arguendo such a characterization, the question remains, under the First Amendment, whether it is a permissible regulation.
22
Petitioners' picketing was directed solely at one establishment within the shopping center. The berms surrounding the center are from 350 to 500 feet away from the Weis store. All entry onto the mall premises by customers of Weis, so far as appears, is by vehicle from the roads alongside which the berms run. Thus the placards bearing the message which petitioners seek to communicate to patrons of Weis must be read by those to whom they are directed either at a distance so great as to render them virtually indecipherable—where the Weis customers are already within the mall—or while the prospective reader is moving by car from the roads onto the mall parking areas via the entrance ways cut through the berms. In addition, the pickets are placed in some danger by by being forced to walk along heavily traveled roads along which traffic moves constantly at rates of speed varying from moderate to high. Likewise, the task of distributing handbills to persons in moving automobiles is vastly greater (and more hazardous) than it would be were petitioners permitted to pass them out within the mall to pedestrians.11 Finally, the requirement that the picketing take place outside the shopping center renders it very difficult for petitioners to limit its effect to Weis only.12
23
It is therefore clear that the restraints on picketing and trespassing approved by the Pennsylvania courts here substantially hinder the communication of the ideas which petitioners seek to express to the patrons of Weis. The fact that the nonspeech aspects of petitioners' activity are also rendered less effective is not particularly compelling in light of the absence of any showing, or reliance by the state courts thereon, that the patrolling accompanying the picketing sought to be carried on was significantly interfering with the use to which the mall property was being put by both respondents and the general public.13 As we observed earlier, the mere fact that speech is accompanied by conduct does not mean that the speech can be suppressed under the guise of prohibiting the conduct. Here it is perfectly clear that a prohibition against trespass on the mall operates to bar all speech within the shopping center to which respondents object. Yet this Court stated many years ago, '(O)ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.' Schneider v. State of New Jersey, 308 U.S. 147, 163, 60 S.Ct. 146, 151 (1939).
24
The sole justification offered for the substantial interference with the effectiveness of petitioners' exercise of their First Amendment rights to promulgate their views through handbilling and picketing is respondents' claimed absolute right under state law to prohibit any use of their property by others without their consent. However, unlike a situation involving a person's home, no meaningful claim to protection of a right of privacy can be advanced by respondents here. Nor on the facts of the case can any significant claim to protection of the normal business operation of the property be raised. Naked title is essentially all that is at issue.
25
The economic development of the United States in the last 20 years reinforces our opinion of the correctness of the approach taken in Marsh. The largescale movement of this country's population from the cities to the suburbs has been accompanied by the advent of the suburban shopping center, typically a cluster of individual retail units on a single large privately owned tract. It has been estimated that by the end of 1966 there were between 10,000 and 11,000 shopping centers in the United States and Canada, accounting for approximately 37% of the total retail sales in those two countries.14
26
These figures illustrate the substantial consequences for workers seeking to challenge substandard working conditions, consumers protesting shoddy or overpriced merchandise, and minority groups seeking nondiscriminatory hiring policies that a contrary decision here would have. Business enterprises located in downtown areas would be subject to on-the-spot public criticism for their practices, but businesses situated in the suburbs could largely immunize themselves from similar criticism by creating a cordon sanitaire of parking lots around their stores. Neither precedent nor policy compels a result so at variance with the goal of free expression and communication that is the heart of the First Amendment.
27
Therefore, as to the sufficiency of respondents' ownership of the Logan Valley Mall premises as the sole support of the injunction issued against petitioners, we simply repeat what was said in Marsh v. State of Alabama, 326 U.S. at 506, 66 S.Ct. at 278, 'Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.' Logan Valley Mall is the functional equivalent of a 'business block' and for First Amendment purposes must be treated in substantially the same manner.15
28
The judgment of the Supreme Court of Pennsylvania is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
29
Mr. Justice DOUGLAS, concurring.
30
Picketing on the public walkways and parking area in respondents' shopping center presents a totally different question from an invasion of one's home or place of business. While Logan Valley Mall is not dedicated to public use to the degree of the 'company town' in Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, it is clear that respondents have opened the shopping center to public uses. They hold out the mall as 'public' for purposes of attracting customers and facilitating delivery of merchandise. Picketing in regard to labor conditions at the Weis Supermarket is directly related to that shopping center business. Why should respondents be permitted to avoid this incidence of carrying on a public business in the name of 'private property'? It is clear to me that they may not, when the public activity sought to be prohibited involves constitutionally protected expression respecting their business.
31
Picketing is free speech plus, the plus being physical activity that may implicate traffic and related matters. Hence the latter aspects of picketing may be regulated. See Bakery and Pastry Drivers and Helpers Local 802 v. Wohl, 315 U.S. 769, 776 777, 62 S.Ct. 816, 819—820, 86 L.Ed. 1178 (concurring opinion); Hughes v. Superior Court of State of California in and for Contra Costa County, 339 U.S. 460, 464—465, 70 S.Ct. 718, 720—721, 94 L.Ed. 985; Building Service Employees International Union Local 262 v. Gazzam, 339 U.S. 532, 536—537, 70 S.Ct. 784, 786—787, 94 L.Ed. 1045. Thus, the provisions of the injunction in this case which prohibit the picketers from interfering with employees, deliverymen, and customers are proper. It is said that the picketers may be banished to the publicly owned berms, several hundred feet from the target of their criticism. But that is to make 'private property' a sanctuary from which some members of the public may be excluded merely because of the ideas they espouse. Logan Valley Mall covers several acres and the number of picketers at any time has been small. The courts of Pennsylvania are surely capable of fashioning a decree that will ensure noninterference with customers and employees, while enabling the union members to assemble sufficiently close to Weis' market to make effective the exercise of their First Amendment rights.
32
Mr. Justice BLACK, dissenting.
33
While I generally accept the factual background of this case presented in the Court's opinion, I think it is important to focus on just where this picketing which was enjoined by the state courts was actually taking place. The following extract is taken from the trial court's 'Findings of Fact':1
34
'(7) * * *
35
'(a) small groups of men and women wearing placards * * * walked back and forth in front of the Weis supermarket, more particularly in the pick-up zone adjacent to the covered porch (emphasis added);
36
'(b) occasional picketing as above described has taken place on the covered porch itself (emphasis added)';
37
Respondent Weis Markets, Inc., the owner-occupant of the supermarket here being picketed, owns the real property on which it contructed its store, porch, and parcel pickup zone. Respondent Logan Valley Plaza, Inc., owns the other property in the shopping center, including the large area which has been paved and marked off as a general parking lot for customers of the shopping center.
38
Anyone familiar with the operations of a modern-day supermarket knows the importance of the so-called 'pick-up zone' an area where the frequently numerous bags of groceries bought in the store can be loaded conveniently into the customers' cars. The phenomenon of the supermarket combined with widespread ownership of automobiles and refrigeration facilities has made the purchase of large quantities of groceries on a single shopping trip a common occurrence in this country. And in line with this trend the stores have had to furnish adequate loading areas and facilities including in many instances, such as here for example, extra employees to assist in loading customers' cars. Respondent Weis' parcel pickup zone is fairly typical of the type of loading area that has been provided: it is located alongside the front of the store and is 4 to 5 feet wide, 30 to 40 feet in length, and is market off with bold double yellow lines; the words 'Parcel Pick-Up' are printed in large letters in the zone. Testimony at trial showed that this pickup area was used 'strictly for customers to come and enter to pick up their parcels which they had purchased. * * * They drive into this particular area, and there the groceries are loaded into the cars by (Weis employees) on * * * pick-up duty.'
39
It seems clear to me, in light of the customary way that supermarkets now must operate, that pickup zones are as much a part of these stores as the inside counters where customers select their goods or the check-out and bagging sections where the goods are paid for. I cannot conceive how such a pickup zone, even by the wildest stretching of Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct 276, 90 L.Ed. 265, could ever be considered dedicated to the public or to pickets. The very first section of the injunction issued by the trial court in this case recognizes this fact and is aimed only at protecting this clearly private property from trespass by the pickets. Thus the order of the court separately enjoins petitioners from:
40
'(a) Picketing and trespassing upon the private property of the plaintiff Weis Markets, Inc., Store No. 40, located at Logan Valley Mall, Altoona, Pennsylvania, including as such private property the storeroom, porch and parcel pick-up area.'
41
While there is language in the majority opinion which indicates that the state courts may still regulate picketing on respondent Weis' private property,2 this is not sufficient. I think that this Court should declare unequivocally that Section (a) of the lower court's injunction is valid under the First Amendment and that petitioners cannot, under the guise of exercising First Amendment rights, trespass on respondent Weis' private property for the purpose of picketing.3 It would be just as sensible for this Court to allow the pickets to stand on the check-out counters, thus interfering with customers who wish to pay for their goods, as it is to approve picketing in the pickup zone which interferes with customers' loading of their cars. At the very least, this wholly severable part of the injunction aimed at the pickup zone should be affirmed by the Court as valid under the First Amendment. And this is in fact the really important part of the injunction since, as the Court's opinion admits, '(t)he picketing was carried out almost entirely in the parcel pickup area and that portion of the parking lot immediately adjacent thereto.'
42
I would go further, however, and hold that the entire injunction is valid.4 With the exception of the Weis property mentioned above, the land on which this shopping center (composed of only two stores at the time of trial and approximately 17 now) is located is owned by respondent Logan Valley Plaza, Inc. Logan has improved its property by putting shops and parking spaces thereon for the use of business customers. Now petitioners contend that they can come onto Logan's property for the purpose of picketing and refuse to leave when asked, and that Logan cannot use state trespass laws to keep them out. The majority of this Court affirms petitioners' contentions. But I cannot accept them, for I believe that, whether this Court likes it or not, the Constitution recognizes and supports the concept of private ownership of property. The Fifth Amendment provides that '(n)o person shall * * * be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.' This means to me that there is no right to picket on the private premises of another to try to convert the owner or others to the views of the pickets. It also means, I think, that if this Court is going to arrogate to itself the power to act as the Government's agent to take a part of Weis' property to give to the pickets for their use, the Court should also award Weis just compensation for the property taken.
43
In affirming petitioners' contentions the majority opinion relies on Marsh v. State of Alabama, supra, and holds that respondents' property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets, alleys sewers, stores, residences, and everything else that goes to make a town. The particular company town involved was Chickasaw, Alabama, which, as we stated in the opinion, except for the fact that it 'is owned by the Gulf Shipbuilding Corporation * * * has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block' on which business places are situated.' 326 U.S., at 502, 66 S.Ct. at 277. Again toward the end of the opinion we emphasized that 'the town of Chickasaw does not function differently from any other town.' 326 U.S., at 508, 66 S.Ct. at 279. I think it is fair to say that the basis on which the Marsh decision rested was that the property involved encompassed an area that for all practical purposes had been turned into a town; the area had all the attributes of a town and was exactly like any other town in Alabama. I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama. There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a 'town.'5 Indeed, at the time this injunction was issued, there were only two stores on the property. Now there are supposed to be about 17, but they are all conceded to be 'commercial establishments.' The remainder of the property in the center has been laid out as a large parking lot with individually marked parking spaces provided for business customers. All I can say is that this sounds like a very strange 'town' to me.
44
The majority opinion recognizes the problem with trying to draw too close an analogy to Marsh, but faces a dilemma in that Marsh is the only possible authority for treating admittedly privately owned property the way the majority does. Thus the majority opinion concedes that 'the respondents here do not own the surrounding residential property and do not provide municipal services therefor.' But that is not crucial, according to the majority, since the petitioner in Marsh was arrested in the business district of Chickasaw. The majority opinion then concludes that since the appellant in Marsh was given access to the business district of a company town, the petitioners in this case should be given access to the shopping center which was functioning as a business district. But I respectfully suggest that this reasoning completely misreads Marsh and begs the question. The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i.e., 'residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block' on which business places are situated.' 326 U.S., at 502, 66 S.Ct. at 277. I can find nothing in Marsh which indicates that if one of these features is present, e.g., a business district, this is sufficient for the Court to confiscate a part of an owner's private property and give its use to people who want to picket on it.
45
In allowing the trespass here, the majority opinion indicates that Weis and Logan invited the public to the shopping center's parking lot. This statement is contrary to common sense. Of course there was an implicit invitation for customers of the adjacent stores to come and use the marked off places for cars. But the whole public was no more wanted there than they would be invited to park free at a pay parking lot. Is a store owner or are several owners together less entitled to have a parking lot set aside for customers than other property owners? To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country. And of course picketing, that is patrolling, is not free speech and not protected as such. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Hughes v. Superior Court of State of California, in and for Contra Costa County, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985. These pickets do have a constitutional right to speak about Weis' refusal to hire union labor, but they do not have a constitutional right to compel Weis to furnish them a place to do so on its property. Cox v. State of Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487; Adderley v. State of Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149; Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182.
46
For these reasons I respectfully dissent.
47
Mr. Justice HARLAN, dissenting.
48
The petitioners argue for reversal of the decision below on two separate grounds: first, that petitioners' picketing was protected by the First Amendment from state injunctive interference of this kind; second, that the Pennsylvania courts have strayed into a sphere where the power of initial decision is reserved by federal labor laws to the National Labor Relations Board. I think that, if available, the second or 'pre-emption' ground would plainly be a preferable basis for decision. Because reliance on pre-emption would invoke the authority of a federal statute through the Constitution's Supremacy Clause, it would avoid interpretation of the Constitution itself, which would be necessary if the case were treated under the First Amendment. See, e.g., Zschernig v. Miller, 389 U.S. 429, 443, 444—445, 88 S.Ct. 664, 672—673, 19 L.Ed.2d 683 (opinion of the writer concurring in the result). Dependence on pre-emption would also assure that the Court does not itself disrupt the statutory scheme of labor law established by the Congress, a point to which I shall return.
49
On the merits, it seems clear from the facts stated by the Court, see ante, at 310—312, and from our past decisions1 that the petitioners have a substantial pre-emption claim. However, upon examination of the record I have come reluctantly to the conclusion that this Court is precluded from reaching the merits of that question because of the petitioners' failure to raise any such issue in the Pennsylvania Supreme Court. The rule that in cases coming from state courts this Court may review only those issues which were presented to the state court is not discretionary but jurisdictional. Section 1257 of Title 28, which defines this Court's certiorari jurisdiction, states:
50
'Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court * * * (b)y writ of certiorari, * * * where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of * * * the United States.'
51
Since the Pennsylvania Supreme Court did not advert in its majority opinion to the pre-emption issue,2 it is necessary to determine whether that question was 'specially set up or claimed' within the meaning of § 1257. In deciding that question, it is relevant and usually sufficient to ask whether the petitioners satisfied the state rules governing presentation of issues. See, e.g., Beck v. Washington, 369 U.S. 541, 549—554, 82 S.Ct 955, 959 963, 8 L.Ed.2d 98; Wolfe v. State of North Carolina, 364 U.S. 177, 195, 80 S.Ct. 1482, 1492, 4 L.Ed.2d 1650; John v. Paullin, 231 U.S. 583, 585, 34 S.Ct. 178, 179, 58 L.Ed. 381.3 Rule 59 of the Pennsylvania Supreme Court provides:
52
'The (appellant's) statement of the questions involved must set forth each question separately, in the briefest and most general terms * * *. This rule is to be considered in the highest degree mandatory, admitting no exception; ordinarily no point will be considered which is not thus set forth in or necessarily suggested by the statement of questions involved.'
53
The Pennsylvania Supreme Court has consistently held that it will not consider points not presented in the manner prescribed by this rule, and that such points are regarded as abandoned or waived.4 In this case, the petitioners' statement of questions involved did not refer to the possibility of federal pre-emption,5 and of course the Pennsylvania Supreme Court's majority opinion did not mention it either. A similar rule of the Washington Supreme Court was involved in Beck v. Washington, supra, and we held that when a defendant has failed to comply with such a rule 'the argument cannot be entertained here under an unbroken line of precedent. E.g., Ferguson v. State of Georgia, 365 U.S. 570, 572, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961); Capital City Dairy Co. v. State of Ohio, 183 U.S. 238, 248, 22 S.Ct. 120, 46 L.Ed. 171 (1902).' 369 U.S., at 553—554, 82 S.Ct. at 962.6 I am therefore led to conclude that we have no jurisdiction to consider the question of pre-emption.7
54
Turning to the First Amendment question, I believe that in the circumstances it is not an appropriate one for this Court to decide. This controversy arose in the course of a labor union's efforts to achieve labor goals by informational picketing. Although no pre-emption question is properly before us, I do not think that we can take notice that this is an area in which Congress has enacted detailed legislation, see e.g., 29 U.S.C. § 158(b)(7)(C), and has set up an administrative agency to resolve such disputes in the first instance. The reason why it was deemed necessary to fashion the doctrine of pre-emption under the federal labor laws was that it would be intolerably disruptive if this statutory scheme were interpreted differently by state and federal courts. See, e.g., Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776, 346 U.S. 485, 490—491, 74 S.Ct. 161, 165—166, 98 L.Ed. 228; San Diego Bldg. Trades Council, Millmen's Union Local 2020 v. Garmon, 359 U.S. 236, 242—245, 79 S.Ct. 773, 778 780, 3 L.Ed.2d 775. It seems to me that a similar objection applies to this Court's resolution of such disputes by resort to the Constitution. For the establishment by this Court of a rigid constitutional rule in a field where Congress has attempted to strike a delicate balance between competing economic forces, and in circumstances where we cannot know how the controversy be settled by Congress' chosen instrument, may also have a considerable disruptive effect. I therefore believe that we should exercise our discretion not to reach the First Amendment issue, and that we should dismiss the writ as improvidently granted. Such a disposition would not be unfair to the petitioners, since the failure to bring the pre-emption question properly before us was their own.
55
Mr. Justice WHITE, dissenting.
56
The reason why labor unions may normally picket a place of business is that the picketing occurs on public streets which are available to all members of the public for a variety of purposes that include communication with other members of the public. The employer businessman cannot interfere with the pickets' communication because they have as much right to the sidewalk and street as he does and because the labor laws prevent such interference under various circumstances; the Government may not interfere on his behalf, absent obstruction, violence, or other valid statutory justification, because the First Amendment forbids official abridgment of the right of free speech.
57
In Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), the company town was found to have all of the attributes of a state-created municipality and the company was found effectively to be exercising official power as a delegate of the State. In the context of that case, the streets of the company town were as available and as dedicated to public purposes as the streets of an ordinary town. The company owner stood in the shoes of the State in attempting to prevent the streets from being used as public streets are normally used.
58
The situation here is starkly different. As Mr. Justice BLACK so clearly shows, Logan Valley Plaza is not a town but only a collection of stores. In no sense are any parts of the shopping center dedicated to the public for general purposes or the occupants of the Plaza exercising official powers. The public is invited to the premises but only in order to do business with those who maintain establishments there. The invitation is to shop for the products which are sold. There is no general invitation to use the parking lot, the pickup zone, or the sidewalk except as an adjunct to shopping. No one is invited to use the parking lot as a place to park his car while he goes elsewhere to work. The driveways and lanes for auto traffic are not offered for use as general thoroughfares leading from one public street to another. Those driveways and parking spaces are not public streets and thus available for parades, public meetings, or other activities for which public streets are used. It may be more convenient for cars and trucks to cut through the shopping center to get from one place to another, but surely the Court does not mean to say that the public may use the shopping center property for this purpose. Even if the Plaza has some aspects of 'public' property, it is nevertheless true that some public property is available for some uses and not for others; some public property is neither designed nor dedicated for use by pickets or for other communicative activities. E.g., Adderley v. State of Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). The point is that whether Logan Valley Plaza is public or private property, it is a place for shopping and not a place for picketing.
59
The most that can be said is that here the public was invited to shop, that except for their location in the shopping center development the stores would have fronted on public streets and sidewalks, and that the shopping center occupied a large area. But on this premise the parking lot, sidewalks, and driveways would be available for all those activities which are usually permitted on public streets. It is said that Logan Valley Plaza is substantially equivalent to a business block and must be treated as though each store was bounded by a public street and a public sidewalk. This rationale, which would immunize nonobstructive labor union picketing, would also compel the shopping center to permit picketing on its property for other communciative purposes, whether the subject matter concerned a particular business establishment or not. Nonobstructive handbilling for religious purposes, political campaigning, protests against government policies—the Court would apparently place all of these activities carried out on Logan Valley's property within the protection of the First Amendment, although the activities may have no connection whatsoever with the views of the Plaza's occupants or with the conduct of their businesses.
60
Furthermore, my Brother BLACK is surely correct in saying that if the invitation to the public is sufficient to permit nonobstructive picketing on the sidewalks, in the pickup zone, or in the parking area, only actual interference with customers or employees should bar pickets from quietly entering the store and marching around with their message on front and back.
61
It is not clear how the Court might draw a line between 'shopping centers' and other business establishments which have sidewalks or parking on their own property. Any store invites the patronage of members of the public interested in its products. I am fearful that the Court's decision today will be a license for pickets to leave the public streets and carry out their activities on private property, as long as they are not obstructive. I do not agree that when the owner of private property invites the public to do business with him he impliedly dedicates his property for other uses as well. I do not think the First Amendment, which bars only official interferences with speech, has this reach. In Marsh, the company ran an entire town and the State was deemed to have devolved upon the company the task of carrying out municipal functions. But here the 'streets' of Logan Valley Plaza are not like public streets; they are not used as thoroughfares for general travel from point to point, for general parking, for meetings, or for Easter parades.
62
If it were shown that Congress has thought it necessary to permit picketing on private property, either to further the national labor policy under the Commerce Clause or to implement and enforce the First Amendment, we would have quite a different case. But that is not the basis on which the Court proceeds, and I therefore dissent.
1
Petitioners also contend (1) that the state courts were without jurisdiction in this case because the controversy involves issues that are within the exclusive jurisdiction of the National Labor Relations Board, see Amalgamated Meat Cutters and Butcher Workmen of North America Local No. 427 v. Fairlawn Meats, Inc., 353 U.S. 20, 77 S.Ct. 604, 1 L.Ed.2d 613 (1957), and (2) that the picketing herein was protected as a 'concerted activit(y) for * * * mutual aid or protection' by § 7 of the National Labor Relations Act, as amended, 49 Stat. 452, 29 U.S.C. § 157. Because of our disposition of the case, we do not reach either contention.
2
Such congestion as there may have been was regulated by portions of the order not here challenged. See n. 4, infra.
3
In addition to Local 590, the petitioners herein are various members and officials of the local who were engaged in the picketing in one way or another.
4
The court also enjoined petitioners from blocking access by anyone to respondents' premises, making any threats or using any violence against customers, employees, and suppliers of Weis, and physically interfering with the performance by Weis employees of their duties. Petitioners make no challenge to these parts of the order and it appears conceded that there has been no subsequent picketing by petitioners in violation of these provisions. A portion of the order also directs that no more than '—- pickets' be used at any one time, but no number has ever been inserted into the blank space and thus no limitation appears to have ever been imposed.
5
We need not concern ourselves with deciding whether the injunction is to be characterized as permanent or temporary. Since the order provides in terms that it shall remain in effect until further modification by the court and since there is no indication that any modification affecting the issues presently before us will be forthcoming at any time in the near future, the judgment below upholding the issuance of the injunction is clearly final for purposes of review by this Court. Compare Local No. 438 Construction & General Laborers' Union v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963).
6
Petitioners did not argue their preemption contentions in their brief before the Pennsylvania Supreme Court and, accordingly, that court does not appear to have passed on them.
7
Needless to say, had the Pennsylvania Supreme Court relied on the purpose of the picketing and held it to be illegal, substantial questions of pre-emption under the federal labor laws would have been presented. Compare Hotel Employees Union, Local No. 255 v. Sax Enterprises, Inc., 358 U.S. 270, 79 S.Ct. 273, 3 L.Ed.2d 289 (1959).
8
We are informed that, in addition to Weis and Sears, 15 other commercial establishments are presently situated in the shopping center.
9
The picketing carried on by petitioners was directed specifically at patrons of the Weis Market located within the shopping center and the message sought to be conveyed to the public concerned the manner in which that particular market was being operated. We are, therefore, not called upon to consider whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put.
10
Compare Cox v. State of New Hampshire, supra; Cox v. State of Louisiana, supra; Cameron v. Johnson, supra. It should be noted that portions of the injunction, not contested here by petitioners, do accomplish precisely such a regulation of the picketing. See n. 4, supra.
11
Respondents argue that this case does not involve petitioners' right to distribute handbills, notwithstanding that the provision of the injunction prohibiting trespassing would seem to encompass entry for the purpose of distributing leaflets, because the petitioners were never engaged in handbilling with the mall. Similarly respondents suggest that the only question concerning picketing in this case relates to the picketing carried on in the parcel pickup area, since almost all the picketing occurred there prior to the issuance of the injunction. We reject the notion that an injunction that by its terms clearly prohibits entry onto the entire mall premises to picket should be given the reading suggested by the respondents simply because it is broader than the facts at the time required. The injunction is presently still operative and no limiting construction has been placed on it by the Pennsylvania courts. We see nothing to suggest that petitioners could not be immediately cited for contempt if they violated the plain terms of the injunction, whatever its relationship to their previous conduct may be. As for handbilling, the opinion of the trial court reveals that it was prepared to enjoin the handbilling being carried on along the berms had respondents so requested. Given that, the suggestion that the absolute prohibition against petitioners' trespassing on the mall does not include handbilling is likewise untenable. We do not treat petitioners' right to distribute leaflets separately in this opinion simply because a holding that petitioners are entitled to picket within the mall obviously extends to handbilling as well and also because petitioners themselves make no separate issue of it.
12
Petitioners point out that they could conceivably find themselves charged with conducting an illegal secondary boycott if they do not comply with the rules laid down by the NLRB and the courts governing common situs picketing. Compare Local 761, International Union of Electrical, Radio and Machine Workers v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961).
13
Moreover, the parts of the injunction not contested by petitioners already went a long way towards preventing any such interference. See n. 4, supra.
14
Kaylin, A Profile of the Shopping Center Industry, Chain Store Age, May 1966, at 17.
15
A number of state courts have reached similar conclusions as to shopping centers. See, e.g., Schwartz-Torrance Investment Corp. v. Bakery and Confectionery Workers Union, Local No. 31, 61 Cal.2d 766, 40 Cal.Rptr. 233, 394 P.2d 921 (1964), cert. denied, 380 U.S. 906, 85 S.Ct. 888, 13 L.Ed.2d 794 (1965); Moreland Corp. v. Retail Store Employees Union Local No. 444, 16 Wis.2d 499, 114 N.W.2d 876 (1962). Compare Amalgamated Clothing Workers of America v. Wonderland Shopping Center, Inc., 370 Mich. 547, 122 N.W.2d 785 (1963) (affirming four-to-four a lower court holding that handbilling in a shopping center is protected by the First Amendment).
1
This appears in the opinion of the Court of Common Pleas of Blair County, Pennsylvania, dated February 14, 1966, and unreported.
2
The majority opinion contains the following statement: 'Because the Pennsylvania courts have held that 'picketing and trespassing' can be prohibited absolutely on respondents' premises, we have no occasion to consider the extent to which respondents are entitled to limit the location and manner of the picketing or the number of pickets within the mall in order to prevent interference with either access to the market building or vehicular use of the parcel pickup area and parking lot.' Ante, at 321. This statement ignores the fact that the injunction order of the Common Pleas Court contains separately designated sections which are easily divisible.
3
Since the majority opinion does not reach any issue under the National Labor Relations Act, 29 U.S.C. § 141 et seq., neither do I. My declaration concerning the validity of the injunction is concerned with the First and Fourteenth Amendments. I do not find that the injunction, and most importantly § (a), violates any First Amendment rights.
4
See n. 3, supra.
5
In Marsh v. State of Alabama, supra, a deputy of the Mobile County Sheriff, paid by the company, served as the town's policeman. We are not told whether the Logan Valley Plaza shopping center had its own policeman.
1
See, e.g., Local No. 438 Construction & General Laborers' Union v. Curry, 371 U.S. 542, 546—548, 83 S.Ct. 531, 534—536, 9 L.Ed.2d 514; Hotel Employees Union, Local No. 255 v. Sax Enterprises, Inc., 358 U.S. 270, 79 S.Ct. 273, 3 L.Ed.2d 289; Youngdahl v. Rainfair Union, Inc., 355 U.S. 131, 139, 78 S.Ct. 206, 211, 2 L.Ed.2d 151; NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112—114, 76 S.Ct. 679, 684—685, 100 L.Ed. 975; NLRB v. Stowe Spinning Co., 336 U.S. 226, 229—232, 69 S.Ct. 541, 542—544, 93 L.Ed. 638; cf. Amalgamated Meat Cutters and Butcher Workmen of North America v. Fairlawn Meats, Inc., 353 U.S. 20, 24—25, 77 S.Ct. 604, 606, 1 L.Ed.2d 613. See also Marshall Field & Co., 98 N.L.R.B. 88, 93, enforced as modified sub nom. Marshall Field & Co. v. NLRB, 7 Cir., 200 F.2d 375, 380.
2
Where the highest state court has actually ruled on a federal question, this Court's concern with the proper raising of the question in the state court disappears. See, e.g., Raley v. State of Ohio, 360 U.S. 423, 436, 79 S.Ct. 1257, 1265, 3 L.Ed.2d 1344; Whitney v. People of State of California, 274 U.S. 357, 360 361, 47 S.Ct. 641, 642—643, 71 L.Ed. 1095; Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 134, 34 S.Ct. 874, 877, 58 L.Ed. 1245.
3
The only circumstances in which a federal claim will be entertained despite the petitioners' failure to raise it below in the prescribed manner are when the State's rules do not afford a reasonable opportunity for a hearing on the federal issue, see, e.g., Central Union Tel. Co. v. City of Edwardsville, 269 U.S. 190, 194—195, 46 S.Ct. 90, 91, 70 L.Ed. 229, or are applied in a discriminatory fashion to evade the federal claim, see, e.g., Hartford Life Ins. Co. v. Johnson, 249 U.S. 490, 493, 39 S.Ct. 336, 337, 63 L.Ed. 722. No such allegation is made in this case.
4
See, e.g., Dunmore v. McMillan, 396 Pa. 472, 152 A.2d 708; Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395, 68 A.L.R.2d 761; Kerr v. O'Donovan, 389 Pa. 614, 134 A.2d 213.
5
The petitioners stated that the question involved was:
'Did the lower court err in granting a Preliminary Injunction * * * where in a suit in equity by the owner of a shopping center and one of its tenants it is established that the appellant-union peacefully picketed near tenant's building within the confines of said shopping center; that no picketing efforts were directed toward the shopping center or other tenants; that picketing efforts were merely to inform the public of the labor dispute?'
6
See also Wolfe v. State of North Carolina, 364 U.S. 177, 195, 80 S.Ct. 1482, 1492, 4 L.Ed.2d 1650; Parker v. People of State of Illinois, 333 U.S. 571, 68 S.Ct. 708, 92 L.Ed. 886; CIO v. McAdory, 325 U.S. 472, 477, 65 S.Ct. 1395, 1398, 89 L.Ed. 1741.
7
The petitioners contend that this Court has jurisdiction to consider the pre-emption issue despite the petitioners' failure to raise it below, because the question is one of 'subject matter jurisdiction.' Although some implied support for this proposition may be found in Seaboard Air Line R. Co. v. Daniel, 333 U.S. 118, 122—123, 68 S.Ct. 426, 428—429, 92 L.Ed. 580, I am unable to perceive how the nature of the federal question involved can affect the specific limitation on our jurisdiction contained in 28 U.S.C. § 1257.
| 23
|
391 U.S. 54
88 S.Ct. 1549
20 L.Ed.2d 426
C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Petitioner,v.Robert Elmer ROWE et al.
No. 802.
Argued March 27, 1968.
Decided May 20, 1968.
Reno S. Harp, III, Richmond, Va., for petitioner.
John J. Kirby, Jr., Charlottesville, Va., for respondents, pro hac vice, by special leave of Court.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This case concerns the scope of 28 U.S.C. § 2241(c)(3), which specifies that the United States District Courts may issue writs of habeas corpus on behalf of prisoners who are 'in custody in violation of the Constitution * * * of the United States.' The question presented is whether a district court may entertain a petition for a writ of habeas corpus from a prisoner incarcerated under consecutive sentences who claims that a sentence that he is scheduled to serve in the future is invalid because of a deprivation of rights guaranteed by the Constitution. The Court considered this issue in McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), and held that the habeas corpus statute does not authorize attacks upon future consecutive sentences. We granted certiorari in this case to re-examine McNally. 389 U.S. 1035, 88 S.Ct. 782, 19 L.Ed.2d 822 (1968). We conclude that the decision in that case was compelled neither by statute nor by history and that today it represents an indefensible barrier to prompt adjudication of constitutional claims in the federal courts.
2
Respondents, Robert Rowe and Clyde Thacker, are serving prison terms in the Virginia State Penitentiary. In June 1963 Rowe was sentenced to 30 years' imprisonment after a jury found him guilty of rape. Subsequently, he pleaded guilty to an indictment charging him with felonious abduction with intent to defile arising from the same events which had led to the rape conviction.1 He was sentenced to a 20-year term on this conviction to run consecutively to the 30-year sentence. After exhausting state remedies,2 Rowe petitioned for a writ of habeas corpus in the United States District Court for the Western District of Virginia. He did not attack the rape conviction, but alleged that the conviction for felonious abduction was constitutionally defective because he had been subjected to doubt jeopardy, because his plea of guilty had been involuntary, because the indictment had failed to state an offense and because he had been inadequately represented by trial counsel. Without reaching the merits of Rowe's claims, the District Court denied relief. Applying McNally, the court found Rowe was then detained under the 30-year sentence for rape. Since he did not claim that sentence was invalid, it was held that he was not then 'in custody' under an unconstitutionally imposed sentence within the meaning of § 2241. The court concluded that it could not entertain Rowe's challenge to the conviction for felonious abduction until he was confined under the sentence imposed for that conviction. That time would not arrive until 1993.3
3
Thacker's § 2241 petition in the Eastern District of Virginia met a similar fate. He is imprisoned under a number of sentences totaling more than 60 years. He asserted that three consecutive five-year sentences imposed for housebreaking in 1953 were invalid because of inadequate representation by counsel at the time he entered pleas of guilty.4 Finding that Thacker's attack on these sentences was premature because he had not begun to serve them, the District Court dismissed the petition 'without prejudice to Thacker's reapplication at the proper time.' Under McNally, the 'proper time' will be in 1994 when Thacker commences service of the first of the three sentences he challenges.5
4
The Court of Appeals for the Fourth Circuit consolidated the two cases. After a hearing en banc, it reversed and remanded them to the District Courts. 383 F.2d 709 (1967). Recognizing that the District Courts had correctly applied McNally, the Court of Appeals declined to adhere to that decision. Writing for a unanimous court, Chief Judge Haynsworth reasoned that this Court would no longer follow McNally, which in his view represented a 'doctrinaire approach' based on an 'old jurisdictional concept' which had been 'thoroughly rejected by the Supreme Court in recent cases.'6 Id., at 714. We are in complete agreement with this conclusion and the considerations underlying it.
5
The writ of habeas corpus is a procedural device for subjecting executive,7 judicial,8 or private9 restraints on liberty to judicial scrutiny. Where it is available, it assures among other things that a prisoner may require his jailer to justify the detention under the law.10 In England where it originated and in the United States, this high purpose has made the writ both the symbol and guardian of individual liberty. 3 Blackstone, Commentaries *131—138; see Ex parte Bollman, 4 Cranch 75, 2 L.Ed. 554 (1807); Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874); Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
6
The habeas corpus jurisdiction of the federal courts is enumerated in 28 U.S.C. § 2241. Like the predecessor statute which controlled in McNally,11 § 2241 provides for the issuance of writs on behalf of persons 'in custody.' But the statute does not attempt to define the terms 'habeas corpus' or 'custody.' Confronted with this fact, the Court in McNally reasoned that '(t)o ascertain its meaning and the appropriate use of the writ in the federal courts, recourse must be had to the common law * * * and to the decisions of this Court interpreting and applying the common-law principles * * *.' McNally v. Hill, 293 U.S., at 136, 55 S.Ct. at 26. We need not look very far to discover three principal characteristics of the writ as it had developed in the federal courts even before the decision in McNally. First, though the writ in England had been utilized largely to secure the admission to bail and discharge of prisoners,12 its major office in the federal courts since the Civil War has been to provide post-conviction relief.13 Second, the partial codifications of the common-law writ in England and more recent legislation in this country have contained specific and detailed provisions requiring prompt adjudication of the validity of the challenged restraint. See and compare Habeas Corpus Act of 1679, 31 Car. 2, c. 2; Act of February 5, 1867, c. 28, 14 Stat. 385; and 28 U.S.C. § 2243. Third, at least tentatively in Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915), and more clearly in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct.265, 65 L.Ed. 543 (1923), this Court had recognized that a district court was authorized to look behind the bare record of a trial proceeding and conduct a factual hearing to determine the merits of alleged deprivations of constitutional rights14—a procedure that reached full flowering in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Thus, by the time McNally was decided, the federal writ of habeas corpus was substantially a post-conviction device which could afford prompt adjudication of factual as well as legal issues. Keeping these purposes of the writ in mind, we turn to consideration of the McNally holding and the reasons which compel us to overrule it.
7
A federal jury had found McNally guilty of three counts of an indictment charging offenses under the Motor Vehicle Theft Act (now 18 U.S.C. §§ 2312—2313).15 He had been sentenced to two years on the first count and four years each on the second and third counts, the sentences on the first and second counts to run concurrently and the sentence on the third consecutively. In his application in a district court for a writ of habeas corpus, McNally claimed that the indictment failed to state an offense as to the third count. He did not attack the convictions under the first and second counts. When he filed his petition he was serving under the second count. The lower courts denied relief on the merits. But this Court affirmed on a jurisdictional ground, holding that because McNally had not begun to serve the sentence on the third count—and therefore was not 'in custody' under that sentence—his petition for relief was premature:
8
'(W)ithout restraint which is unlawful, the writ may not be used. A sentence which the prisoner has not begun to serve cannot be the cause of restraint which the statute makes the subject of inquiry.' 293 U.S., at 138, 55 S.Ct. at 27.
9
The effect of this disposition was ameliorated somewhat by the Court's suggestion that McNally might seek relief by another route. Id., at 140, 55 S.Ct. at 131. See also Holiday v. Johnston, 313 U.S. 342, 349, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941). But cf. Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Moreover, McNally's challenge was directed at the face of the indictment. Therefore, postponement of adjudication of his claims probably would not have resulted in the loss of crucial evidence. But the harshness of a rule which may delay determination of federal claims for decades becomes obvious when applied to the cases of Rowe and Thacker. Their cases also exemplify the manner in which the decision in McNally cuts against the prior and subsequent development of the writ in the federal courts.
10
Both Rowe and Thacker allege that they were so inadequately represented at trial that they were denied the assistance of counsel in violation of the Sixth and Fourteenth Amendments. Petitioner concedes that, but for McNally, respondents' allegations would entitle them to plenary hearings in the District Courts. Brief for Petitioner 6. Yet, under the current schedules of confinement, it is argued, neither Rowe nor Thacker may obtain adjudication of his claims until after 1990. By that time, dimmed memories or the death of witnesses is bound to render it difficult or impossible to secure crucial testimony on disputed issues of fact. Of course prejudice to meritorious claims resulting from the kind of delay which McNally imposes is not limited to situations involving ineffective assistance of counsel. To name but a few examples, factual determinations are often dispositive of claims of coerced confession, e.g., Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961), Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954); lack of competency to stand trial, e.g., Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); and denial of a fair trial, e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Postponement of the adjudication of such issues for years can harm both the prisoner and the State and lessens the probability that final disposition of the case will do substantial justice.16 As the Court of Appeals observed:
11
'Years hence, the prisoner, at least, may be expected to give testimonial support to the allegations of his petition, but if they are false in fact, the Commonwealth of Virginia may be unable to refute them because of the unavailability of records and of the testimony of responsible officials and participants in the trial. The greater the lapse of time, the more unlikely it becomes that the state could reprosecute if retrials are held to be necessary. It is to the great interest of the Commonwealth and to the prisoner to have these matters determined as soon as possible when there is the greatest likelihood the truth of the matter may be established.'17 383 F.2d, at 715.
12
Clearly, to the extent that the rule of McNally postpones plenary consideration of issues by the district courts, it undermines the character of the writ of habeas corpus as the instrument for resolving fact issues not adequately developed in the original proceedings. To that extent, it also undermines Moore v. Dempsey, supra, and is inconsistent with subsequent decisions of this Court which have reaffirmed Moore. E.g., Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
13
McNally is also at odds with the purpose of the writ of habeas corpus in another respect. As noted above, a principal aim of the writ is to provide for swift judicial review of alleged unlawful restraints on liberty. Calendar congestion, considerations of federalism, see, e.g., Fay v. Noia, 372 U.S., at 415—420, 83 S.Ct. at 822; Ex parte Royall, 117 U.S. 241, 29 L.Ed. 868 (1886), and the exigencies of appellate review account for largely unavoidable delays in the processing of criminal cases. But the prematurity rule of McNally in many instances extends without practical justification the time a prisoner entitled to release must remain in confinement. Rowe and Thacker eventually may establish that the convictions they challenge were obtained in violation of the Constitution. If they do, each day they are incarcerated under those convictions while their cases are in the courts will be time that they might properly have enjoyed as free men. Common sense dictages that prisoners seeking habeas corpus relief after exhausting state remedies should be able to do so at the earliest practicable time.
14
The foregoing analysis demonstrates that McNally is inconsistent with the purposes underlying the federal writ of habeas corpus. Moreover, in arriving at its decision, the Court in McNally relied in part upon an unnecessarily narrow interpretation of the habeas corpus statute. Standing alone, the limitation of § 2241(c)(3)—that '(t)he writ of habeas corpus shall not extend to a prisoner unless * * * (h)e is in custody in violation of the Constitution'—is not free of ambiguity. However, in common understanding 'custody' comprehends respondents' status for the entire duration of their imprisonment. Practically speaking, Rowe is in custody for 50 years, or for the aggregate of his 3- and 20-year sentences. For purposes of parole eligibility, under Virginia law he is incarcerated for 50 years. Va.Code Ann. § 53 251 (1967); see n. 3, supra. Nothing on the face of § 2241 militates against an interpretation which views Rowe and Thacker as being 'in custody' under the aggregate of the consecutive sentences imposed on them. Under that interpretation, they are 'in custody in violation of the Constitution' if any consecutive sentence they are scheduled to serve was imposed as the result of a deprivation of constitutional rights. This approach to the statute is consistent with the canon of construction that remedial statutes should be liberally construed. It also eliminates the inconsistencies between purpose and practice which flow from the McNally holding. Meaningful factual hearings on alleged constitutional deprivations can be conducted before memories and records grow stale, and at least one class of prisoners will have the opportunity to challenge defective convictions and obtain relief without having to spend unwarranted months or years in prison.
15
We find unpersuasive the arguments made in McNally to support the narrower interpretation of the custody requirement. No prior decision of the Court was cited as clear authority for the prematurity doctrine.18 To fill the gap, the Court relied on the history of the writ in England prior to 1789 and a line of reasoning whose unexamined premise was doubtful before McNally and was subsequently rejected. Both the historical and conceptual bases of the opinion are revealed in the Court's observation that '(d)iligent search of the English authorities and the digests before 1789 has failed to disclose any case where the writ was sought or used * * * as a means of securing the judicial decision of any question which, even if determined in the prisoner's favor, could not have resulted in his immediate release.' McNally v. Hill, 293 U.S., at 137—138, 55 S.Ct. at 27. To the extent that the Court thought that the absence of eighteenth century English precedent demonstrated that McNally was not entitled to habeas corpus relief, the Court's reliance seems to have been misplaced. In light of the fact that English judges had no power to impose cumulative punishment in felony cases,19 and apparently did not assume such power in misdemeanor cases until 1769,20 it is not at all surprising that research failed to uncover a pre-1789 common-law analogy for McNally's petition for relief. In any event, the development of the writ of habeas corpus did not end in 1789. What we said of the writ in a similar context in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), is equally applicable here.
16
'(The writ) is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose—the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.' Id., at 243, 83 S.Ct. at 377.
17
Of course the excursion in McNally into history to determine that the writ of habeas corpus issued only to adjudicate entitlement to 'immediate release' was not unnecessary. Though McNally held only that the petitioner did not meet the custody requirements of the statute, see Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (1968), that holding rested in part on the premise that physical discharge from custody is the only relief available in a habeas corpus proceeding. But the statute does not deny the federal courts power to fashion appropriate relief other than immediate release. Since 1874, the habeas corpus statute has directed the courts to determine the facts and dispose of the case summarily, 'as law and justice require.' Rev.Stat. § 761 (1874), superseded by 28 U.S.C. § 2243. Consistently with this command, this Court has held that a prisoner whose first-sentence parole was revoked upon a second conviction could challenge the second conviction in a habeas corpus proceeding though he would not be released if he prevailed, Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941); that a person who was paroled after he filed his habeas corpus petition could still obtain relief from the restraints imposed by the parole conditions, Jones v. Cunningham, supra; and that a prisoner could attack the first of two consecutive sentences in a federal habeas corpus proceeding even though he would still be confined under the second sentence if he succeeded. Walker v. Wainwright, supra. See also United States v. Pridgeon, 153 U.S. 48, 63—64, 14 S.Ct. 746, 38 L.Ed. 631 (1894). Thus, to the extent that McNally relied on the notion that immediate physical release was the only remedy under the federal writ of habeas corpus, it finds no support in the statute and has been rejected by this Court in subsequent decisions.
18
We overrule McNally and hold that a prisoner serving consecutive sentences is 'in custody' under any one of them for purposes of § 2241(c)(3).21 This interpretation is consistent with the statutory language and with the purpose of the writ of habeas corpus in the federal courts.
19
Affirmed.
1
Rowe's initial plea of double jeopardy had been overruled by the trial court.
2
Rowe had filed an application for state habeas corpus relief in the Virginia Supreme Court of Appeals. This petition was denied under Virginia's version of the McNally rule. See Peyton v. Williams, 206 Va. 595, 145 S.Ed.2d 147 (1965). Subsequent to the decision below, the Virginia Legislature enacted a statute, effective June 28, 1968, which will abolish the rule of prematurity in the State. See n. 17, infra.
3
If Rowe receives full credit for 'good time,' the 30-year sentence will expire in 1982. Under the two sentences, he will be eligible for parole in 1974. If he were relieved of the 20-year term, he would be eligible for parole in 1970. See Va.Code Ann. § 53—251 (1967).
4
These sentences were originally suspended, but the suspension was revoked in 1956.
5
If Thacker does not receive good-time credit, he will commence service of the three sentences in 2009. He will be eligible for parole in 1976.
6
The decision of the Court of Appeals in the present case was receded by two cases in which it held that § 2241(c)(3) permits attack upon a future consecutive sentence which affects or may affect a prisoner's current parole eligibility. Williams v. Peyton, 372 F.2d 216 (C.A.4th Cir. 1967); Martin v. Commonwealth of Virginia, 349 F.2d 781 (C.A.4th Cir. 1965). In McNally, the Court rejected the prisoner's argument that he was entitled to habeas corpus relief because he would be eligible for parole if the challenged sentence were invalidated. 293 U.S., at 134, 140, 55 S.Ct. 24. In Williams and Martin, the Court of Appeals concluded that this Court's decision in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), represented a departure from this narrow reading of the habeas corpus statute.
7
E.g., Darnel's Case ('Five Knights' Case') 3 How.St.Tr. 1 59 (K.B. 1627); Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281 (1866). The proceedings in Darnel's Case are summarized in D. Meador, Habeas Corpus and Magna Carta 13—16 (1966).
8
E.g., Bushel's Case, Jones, T. 13, 84 Eng.Rep. 1123 (K.B.); Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (1968).
9
E.g., Rex v Clarkson, 1 Strange 444, 93 Eng.Rep. 625 (K.B. 1721); see Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240 (1962).
10
The indignation aroused by the decision in Darnel's Case, supra, n. 7, led to enactment in 1627 of the Petition of Right, 3 Car. 1, c. 1, which condemned a return reciting that imprisonment was by 'speciale mandatum Domini Regis' as insufficient under 'the law of the land.' See W. Church, A Treatise on the Writ of Habeas Corpus 8—9 (2d ed. 1893). In the United States, the Act of February 5, 1867, c. 28, 14 Stat. 385, made the writ available to 'any person * * * restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.'
11
Rev.Stat. § 753 (1874). For a collection and discussion of the federal habeas corpus statutes from the original Judiciary Act of 1789 to 1953, see G. Longsdorf, The Federal Habeas Corpus Acts Original and Amended, 13 F.R.D. 407 (1953).
12
The celebrated Habeas Corpus Act of 1679, 31 Car. 2, c. 2, was concerned exclusively with providing an efficacious remedy for pretrial imprisonment. See W. Church, A Treatise on the Writ of Habeas Corpus 21—32, 48—58 (2d ed. 1893).
13
This development is explained in part by this Court's recognition that certain trial or sentencing defects could invalidate the proceedings in a court which had jurisdiction over the crime and the defendant, e.g., Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874), by the Court's decisions holding that some of the safeguards of criminal procedure embodied in the Bill of Rights are applicable to state criminal proceedings by virtue of the Due Process Clause of the Fourteenth Amendment, and by the requirement that a state prisoner exhaust state remedies before applying for federal habeas corpus. Ex parte Royall, 117 U.S. 241, 29 L.Ed. 868 (1886); 28 U.S.C. § 2254; see Fay v. Noia, 372 U.S. 391, 415—420, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
14
The Court in Frank recognized that the Act of February 5, 1867, c. 28, 14 Stat. 385, substituted 'for the bare legal review that seems to have been the limit of judicial authority under the commonlaw practice * * * a more searching investigation, in which the applicant is put upon his oath to set forth the truth of the matter respecting the causes of his detention, and the court, upon determining the actual facts, is to 'dispose of the party as law and justice require." 237 U.S., at 330—331, 35 S.Ct. at 588. In Moore, the Court remanded the case to the District Court for determination of the truth of allegations that the pervading influence of a mob had denied the appellants a fair trial in the state court. 261 U.S., at 92, 43 S.Ct. at 265.
15
Because McNally was imprisoned by federal authorities, his application for habeas corpus relief could have rested on the clause of Rev.Stat. § 753 (1874) which authorized federal courts to entertain petitions from prisoners in the custody of the United States. However, the Court's interpretation of the custody requirement in McNally was equally applicable to state prisoners claiming their incarceration violated the Constitution. E.g., Darr v. Burford, 339 U.S. 200, 203, 70 S.Ct. 587, 94 L.Ed. 761 (1950).
16
Even where resolution of constitutional claims turns on record evidence, loss or destruction of a relevant document or failure to transcribe the record over a period of years, cf. Norvell v. State of Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456 (1963), could mean that a claim relegated to the limbo of prematurity might never be adequately determined.
17
This consideration has led at least two States which previously followed the prematurity doctrine to reject it in recent years. See Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965); Ore.Rev.Stat. § 138.510 (1961). See also Landreth v. Gladden, 213 Ore. 205, 324 P.2d 475 (1958). California does not follow the McNally rule. In re Chapman, 43 Cal.2d 385, 273 P.2d 817 (1954). Finally, while this case was under consideration in this Court, Virginia repudiated the prematurity doctrine by statute. See Va.S.No. 44, 1968 Sess., amending Va.Code Ann. § 8—596 (effective June 28, 1968). A committee of the American Bar Association which is inquiring into post-conviction remedies has recommended abandonment of the prematurity doctrine which it calls 'one of the most frustrating elements of present post-conviction practice.' Advisory Committee on Sentencing and Review, A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies 43 (Tent.Draft 1967).
18
Of the prior decisions of this Court cited in McNally, only In re Swan, 150 U.S. 637, 14 S.Ct. 225, 37 L.Ed. 1207 (1893), suggested a rule of prematurity. Even in Swan, the Court held no more than that the prisoner was not entitled to immediate discharge from confinement merely because the sentencing judge had imposed an allegedly unauthorized fine in addition to a valid prison term. 150 U.S., at 653, 14 S.Ct. at 225. In at least two cases, Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1915), and Ex parte Spencer, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010 (1913), the Court had reached the merits of habeas corpus applications by prisoners who had not served the valid portions of their sentences. Though relief was ultimately denied in Morgan and Spencer, they illustrate that the prior decisions of the Court by no means compelled the McNally result.
19
See Regina v. Albury, (1951) 1 All E.R. 491 (Crim.App.); 1 J. Stephen, History of the Criminal Law of England 291—292 (1883).
20
Wilkes v. Rex, 4 Bro.P.C. 360, 2 Eng.Rep. 244 (H.L. 1769).
21
We intimate no views on the merits of respondents' underlying claims.
| 01
|
391 U.S. 346
88 S.Ct. 1488
20 L.Ed.2d 630
Roy F. DARWINv.CONNECTICUT.
No. 794, Misc.
Decided May 20, 1968.
John F. Shea, Jr., for petitioner.
Joel H. Reed II and Etalo G. Gnutti, for respondent.
PER CURIAM.
1
Petitioner was convicted of second degree murder and sentenced to life imprisonment. The Connecticut Supreme Court affirmed the judgment. 155 Conn. 124, 230 A.2d 573 (1967). Petitioner seeks a writ of certiorari from this Court. We grant the writ and reverse.
2
On Friday, December 6, 1963, petitioner was arrested on a coroner's warrant charging him with murder. During that entire day until 9 p.m. petitioner was subjected to questioning. Some time that evening, the officer in charge brought in a revolving disc and sought to persuade petitioner to look at it and 'relax.' The trial judge said that '(the officer) was not completely unaware that this was a common hypnotic device.' the wheel turned for about half an hour, but petitioner refused to look at it.
3
The next morning the questioning resumed and continued intermittently until about 4 p.m. when petitioner fell forward, according to the trial judge, 'either fainting or pretending to faint.' He was revived and then confessed to the murder, as hereinafter described, in response to questioning by the officer in charge.
4
During the entire period petitioner was in custody, his counsel had been making determined but unsuccessful efforts to contact him or the officer in charge of him. On Friday, December 6, there were 19 phone calls to various police offices, including nine to the one at which petitioner was held. On Saturday, there were five calls, and on Sunday, there was one.
5
On Friday, there was a personal visit by one of the lawyers to the police barracks in Stafford Springs where petitioner had been taken that morning. But at about the same time that counsel arrived, the officer in charge took petitioner from the barracks and drove him around, apparently to protect him from what the officer thought were newspapermen.1 Counsel made four visits to various barracks on Saturday.
6
Each of these attempts was met with disclaimers of knowledge of the whereabouts of either petitioner or of the officer in charge. The trial judge found that it was 'routine procedure' for investigating officers not to be disturbed during an investigation. At about 1 or 1:30 p.m. Saturday, at counsel's request, a superior court judge issued a writ of habeas corpus. A deputy sheriff was instructed to serve the writ upon the officer in charge of petitioner and upon the coroner within half an hour. The sheriff could not locate the officer or the coroner, although the purpose of this inquiry was stated to the communications officer at the Hartford barracks. On Sunday, the sheriff called the Stafford Springs barracks in search of the officer and received a call informing him that the officer would be at the superior court at 2 p.m.2
7
Petitioner's first confession, made orally after the 'fainting' incident on the afternoon of Saturday, December 7, the second day of arrest and interrogation, was excluded from evidence by the trial judge. The trial judge also excluded petitioner's written confession made shortly thereafter. The trial judge, however, admitted a subsequent written confession made on Sunday, December 8, and evidence as to a partial re-enactment of the crime which petitioner staged on that day at the request of the police. During the course of this partial reenactment, petitioner, as he had done intermittently during his custody, denied that he committed the crime. The Connecticut Supreme Court affirmed.
8
Since the trial in this case began before the decisions of this Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), these cases are not controlling. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). But they are relevant on the issue of voluntariness. Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). In the present case, petitioner's lawyers made numerous attempts to communicate with petitioner or with the officer in charge. (Cf. Escobedo v. State of Illinois, supra, Miranda v. State of Arizona, supra, 384 U.S., at 465, n. 35, 86 S.Ct., at 1623.) A writ of habeas corpus issued by a state judge at the request of petitioner's counsel was fruitless; and petitioner on three separate occasions sought and was denied permission to communicate with the outside world.
9
The inference is inescapable that the officers kept petitioner incommunicado for the 30 to 48 hours during which they sought and finally obtained his confession. See Davis v. State of North Carolina, supra, at 745—746, 86 S.Ct., at 1766—1767; Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). Considering the 'totality of the circumstances' (see Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967)), we conclude that the court erred in holding that the confession and the partial re-enactment were voluntary. The denial of access to counsel and the outside world continued throughout, and there was 'no break in the stream of events' from arrest throughout the concededly invalid confessions of Saturday, December 7, to the confession and re-enactment of Sunday, December 8, 'sufficient to insulate' the final events 'from the effect of all that went before.' Clewis v. State of Texas, supra, at 710, 87 S.Ct., at 1340. See Beecher v. Alabama, 389 U.S. 35, 36, n. 2, 88 S.Ct. 189, 190, 19 L.Ed.2d 35 (1967).
10
Accordingly, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment below is reversed and the case remanded for further proceedings not inconsistent with our decision herein.
11
Reversed and remanded.
12
Mr. Justice WHITE dissents.
13
Mr. Justice HARLAN, concurring in part and dissenting in part.
14
I am unable to agree with the basis on which the Court reverses petitioner's conviction. The courts of the State of Connecticut conducted a careful and conscientious review of the 'totality of the circumstances' surrounding petitioner's three confessions. If the question in this case were simply whether the third confession was 'coercively extracted, I would vote to affirm. I cannot join the Court in what seems to me no more than a substitution of its view on a close factual question for that of the state courts.
15
In this case, however, a special element is present. The trial court ruled that the prosecution had not met its burden of proving that petitioner's first two confessions were voluntarily made. It then admitted his third confession. The Connecticut Supreme Court, affirming, evaluated petitioner's third confession by the rules that had been applied to the other two; finding that the atmosphere had changed enough to tip the balance in favor of voluntariness, it found this confession admissible. I do not think this reflected a proper approach to the problem of multiple confessions.
16
A principal reason why a suspect might make a second or third confession is simply that, having already confessed once or twice, he might think he has little to lose by repetition. If a first confession is not shown to be voluntary, I do not think a later confession that is merely a direct product of the earlier one should be held to be voluntary. It would be neither conducive to good police work, nor fair to a suspect, to allow the erroneous impression that he has nothing to lose to play the major role in a defendant's decision to speak a second or third time.
17
In consequence, when the prosecution seeks to use a confession uttered after an earlier one not found to be voluntary, it has, in my view, the burden of proving not only that the later confession was not itself the product of improper threats or promises or coercive conditions, but also that it was not directly produced by the existence of the earlier confession. See United States v. Bayer, 331 U.S. 532, 540—541, 67 S.Ct. 1394, 1398—1399, 91 L.Ed. 1654. Here, the facts as stated by the state courts fail to satisfy this additional burden. Petitioner's third confession followed the completion of his inadmissible second confession by only a few hours.* In the interval he appears to have talked to no one except his jailors and the coroner. There is no indication that he had any reason to think that a third confession would increase his peril. Since I would hold only that the state courts applied the wrong standard in this case, I would remand for further proceedings, in order to give the prosecution the opportunity to show that the third confession was not merely the product of the erroneous impression that the cat was already out of the bag.
1
When initially arrested, petitioner had asked to use the telephone but was not permitted to do so.
2
The trial judge specifically found that the officer in charge knew petitioner was represented by counsel at the coroner's inquest just one day before his arrest, and that the officer called one of petitioner's lawyers on Sunday to inform him that there would be a presentment at 2 p.m. The trial judge also found that the officer did not know whether or not counsel were on a retainer basis or had been engaged only for the inquest.
*
This Court indicates that the second confession occurred on Saturday and the third on Sunday. In fact, petitioner completed his signature on the second confession on Sunday morning and immediately thereafter agreed to re-enact the crime. After the re-enactment he dictated the third confession and had signed it by 1:50 Sunday afternoon. Although petitioner exhibited sporadic hesitation, the events of Sunday, as described by the Supreme Court of Connecticut, form a continuous sequence. The Connecticut courts rejected the argument that the Sunday completion of the signature on the Saturday confession was a 'voluntary' adoption of that statement.
| 01
|
391 U.S. 364
88 S.Ct. 1666
20 L.Ed.2d 641
Roger D. BRANIGIN et al.v.Dorothy S. DUDDLESTON et al.
No. 1252.
Joseph W. SUMMERS
v.
Dorothy S. DUDDLESTON et al.
No. 1263.
Supreme Court of the United States
October Term, 1967.
October Term, 1967.
May 20, 1968
John J. Dillon, Atty. Gen. of Indiana, and Charles S. White, for appellants Roger D. Branigin and others.
Marshall F. Kizer, for appellant Joseph W. Summers.
Leslie Duvall and William H. Sparrenberger, for appellees.
PER CURIAM.
1
The motions to affirm are granted and the judgment is affirmed.
2
Mr. Justice HARLAN, for reasons contained in his memorandum of March 4, 1968 (390 U.S. 932, 88 S.Ct. 1016, 19 L.Ed.2d 1124, sub nom. Branigin v. Grills), in which he acquiesced in the denial of stays of enforcement of the District Court's judgment, also acquiesces in the Court's affirmance of that judgment.
| 12
|
391 U.S. 99
88 S.Ct. 1562
20 L.Ed.2d 460
AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA et al., Petitioners,v.Joseph CARROLL et al. Joseph CARROLL et al., Petitioners, v. AMERICAN FEDERATION OF MUSICIANS OF the UNITED STATES AND CANADA et al.
Nos. 309, 310.
Argued March 4, 1968.
Decided May 20, 1968.
Rehearings Denied Oct. 14, 1968.
See 89 S.Ct. 64.
[Syllabus from pages 99-100 intentionally omitted]
Ronald Rosenberg, Washington, D.C., for American Federation of Musicians of United States and Canada and others.
Godfrey P. Schmidt, New York City, for Joseph Carroll and others.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This action for injunctive relief and treble damages alleging violations of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1 and 2, was brought in the District Court for the Southern District of New York against the petitioners in No. 309, American Federation of Musicians and its Local 802.1 The question is whether upon practices of the petitioners affecting orchestra leaders violate the Sherman Act as activities in combination with a 'non-labor' group, or are exempted by the Norris-LaGuardia Act as activities affecting a 'labor' group which is party to a 'labor dispute.'2 After a five-week trial without a jury the District Court dismissed the action on the merits, holding that all of the petitioners' practices brought in question 'come within the definition of the term 'labor dispute' * * * and are exempt from the antitrust laws.' 241 F.Supp. 865, 894. The Court of Appeals for the Second Circuit reversed on the issue of alleged price fixing, but in all other respects affirmed the dismissal. 372 F.2d 155. Both parties sought certiorari, in No. 309 the petitioners from the reversal of the dismissal in respect of alleged price fixing, and in No. 310 the respondents from the affirmance of the dismissal in the other respects. We granted both petitions, 389 U.S. 817, 88 S.Ct. 82, 19 L.Ed.2d 68. We hold that the District Court properly dismissed the action on the merits, and that the Court of Appeals should have affirmed the District Court judgment in its entirety.
I.
2
The petitioners are labor unions of professional musicians. The union practices questioned here are mainly those applied to 'club-date' engagements of union members. These are one-time engagements of orchestras to provide music, usually for only a few hours, at such social events as weddings, fashion shows, commencements, and the like.3 The purchaser of the music, e.g., the father of the bride, the chairman of the events, etc., makes arrangements with a musician, or with a musician's booking agent, for an orchestra of a conductor and a given number of instrumentalists, or 'sidemen,' at a specified time and place. The musician in such cases assumes the role of 'leader' of the orchestra, obtains the 'sidemen' and attends to the bookkeeping and other details of the engagement. Usually the 'leader' performs with the orchestra, sometimes only conducting but often also playing an instrument. When he does not personally appear, he designates a 'subleader' who conducts for him and often also plays an instrument.
3
A musician performing 'club-dates' may perform in different capacities on the same day or during the same week, at times as leader and other times as subleader or sideman. The four respondents, however, are musicians who usually act as leaders and maintain offices and employ personnel to solicit engagements through advertising and personal contacts. When two or more engagements are accepted for the same time, each of the respondents will conduct, and, except respondent Peterson, sometiomes play, at one and designate a subleader to perform the functions of leader at the other.4
4
The four respondents were members of the petitioner Federation and Local 802 when this suit was filed.5 Virtually all musicians in the United States and the great majority of the orchestra leaders are union members. There are no collective bargaining agreements in the club-date field.6 Club-date engagements are rigidly regulated by unilaterally adopted union bylaws and regulations. Under these bylaws and regulations
5
(1) Petitioners enforce a closed shop and exert various pressures upon orchestra leaders to become union members.
6
(2) Orchestra leaders must engage a minimum number of sidemen for club-date engagements.
7
(3) Orchestra leaders must charge purchasers of music minimum prices prescribed in a 'Price List Booklet.' The prices are the total of (a) the minimum wage scales for sidemen, (b) a 'leader's fee' which is double the sideman's scale when four or more musicians compose the orchestra, and (c) an additional 8% to cover social security, unemployment insurance, and other expenses. When the leader does not personally appear at an engagement, but designates a subleader and four or more musicians perform, the leader must pay the subleader one and one-half times the wage scale out of his 'leader's fee.'
8
(4) Orchestra leaders are required to use a form of contract, called the Form B contract, for all engagements. In the club-date field, however, Local 802 accepts assurances that the terms of club-date engagements comply with all union regulations and provide for payment of the minimum wage. Union business agents police compliance.
9
(5) Additional regulations apply to traveling engagements. The leader of a traveling orchestra must charge 10% more than the minimum price of either the home local or of the local in whose territory the orchestra is playing, whichever is greater.
10
(6) Orchestra leaders are prohibited from accepting engagements from or making any payments to caterers.
11
(7) Orchestra leaders may accept engagements made by booking agents only if the booking agents have been licensed by the unions under standard forms of license agreements provided by the unions.
12
The District Court assumed, and the Court of Appeals held, that orchestra leaders in the club-date field are employers and independent contractors.7 Respondents argue that petitioners' involvement of the orchestra leaders in the promulgation and enforcement of the challenged regulations and bylaws creates a combination or conspiracy with a 'non-labor' group which violates the Sherman Act. Allen Bradley Co. v. Local Union No. 3, etc., 325 U.S. 797, 800, 65 S.Ct. 1533, 1535, 89 L.Ed. 1939; Los Angeles Meat & Provision Drivers Union, etc. v. United States, 371 U.S. 94, 83 S.Ct. 162, 9 L.Ed.2d 150; United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626. But the Court of Appeals concurred in the finding of the District Court that such orchestra leaders, although deemed to be employers and independent contractors, constitute not a 'non-labor' group but a 'labor' group. 372 F.2d, at 168.8
13
The criterion applied by the District Court in determining that the orchestra leaders were a 'labor' group and parties to a 'labor dispute' was the 'presence of a job or wage competition or some other economic inter-relationship affecting legitimate union interests between the union members and the independent contractors. If such a relationship existed the independent contractors were a 'labor group' and party to a labor dispute under the Norris-LaGuardia Act.' 241 F.Supp., at 887. The Court of Appeals held, and we agree, that this is a correct statement of the applicable principles. The Norris-LaGuardia Act took all 'labor disputes' as therein defined outside the reach of the Sherman Act and established that the allowable area of union activity was not to be restricted to an immediate employer-employee relation. United States v. Hutcheson, 312 U.S. 219, 229—236, 61 S.Ct. 463, 464—468, 85 L.Ed. 788; Allen Bradley Co. v. Local Union No. 3, supra, 325 U.S. at 805—806, 65 S.Ct. at 1538; Los Angeles Meat & Provision Drivers Union v. United States, supra, 371 U.S. at 103, 83 S.Ct. at 167; Milk Wagon Drivers' Union etc. v. Lake Valley Farm Prods., 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63. 'This Court has recognized that a legitimate aim of any national labor organization is to obtain uniformity of labor standards and that a consequence of such union activity may be to eliminate competition based on differences in such standards.' United Mine Workers of America v. Pennington, 381 U.S. 657, 666, 85 S.Ct. 1585, 1591, 14 L.Ed.2d 626.
14
The District Court found that the orchestra leaders performed work and functions which actually or potentially affected the hours, wages, job security, and working conditions of petitioners' members.9 These findings have substantial support in the evidence and in the light of the job and wage competition thus established, both courts correctly held that it was lawful for petitioners to pressure the orchestra leaders to become union members, Los Angeles Meat Drivers, supra, and Milk Wagon Drivers', supra, to insist upon a closed shop, United States v. American Federation of Musicians, 318 U.S. 741, 63 S.Ct. 665, 87 L.Ed. 1120, affirming D.C., 47 F.Supp. 304, to refuse to bargain collectively with the leaders, see Hunt v. Crumboch, 325 U.S. 821, 65 S.Ct. 1545, 89 L.Ed. 1954, to impose the minimum employment quotas complained of, United States v. American Federation of Musicians, supra, to require the orchestra leaders to use the Form B contract, see Local 24, International Brotherhood of Teamsters etc. v. Oliver, 362 U.S. 605, 80 S.Ct. 923, 4 L.Ed.2d 987 (Oliver II), and to favor local musicians by requiring that higher wages be paid to musicians from outside a local's jurisdiction, Rambusch Decorating Co. v. Brotherhood of Painters, etc., 2 Cir., 105 F.2d 134.
15
The District Court also sustained the legality of the 'Price List' stating, 'In view of the competition between leaders and sidemen and subleaders which underlies the finding that the leaders are a labor group, the union has a legitimate interest in fixing minimum fees for a participating leader and minimum engagement prices equal to the total minimum wages of the sidemen and the participating leader.' 241 F.Supp., at 890. The Court of Appeals, one judge dissenting, disagreed that the 'Price List' was within the labor exemption, stating that 'the unions' establishment of price floors on orchestral engagements constitutes a per se violation of the Sherman Act.' 372 F.2d, at 165. The premise of the majority's conclusion was that the 'Price List' was disqualified for the exemption because its concern is 'prices' and not 'wages.' But this overlooks the necessity of inquiry beyond the form. Mr. Justice White's opinion in Local Union No. 189, Amalgamated Meat Cutters etc. v. Jewel Tea Co., 381 U.S. 676, 690, n. 5, 85 S.Ct. 1596, 1602, 14 L.Ed.2d 640, emphasized that '(t)he crucial determinant is not the form of the agreement—e.g., prices or wages—but its relative impact on the product market and the interests of union members.' It is therefore not dispositive of the question that petitioners' regulation in form establishes price floors. The critical inquiry is whether the price floors in actuality operate to protect the wages of the subleader and sidemen. The District Court found that the price floors were expressly designed to and did function as a protection of sidemen's and subleaders' wage scales against the job and wage competition of the leaders. The Court said:
16
'As a consequence of this relationship, the practices of (orchestra leaders) when they lead and play must have a vital effect on the working conditions of the non-leader members of the union. If they undercut the union wage scale or do not adhere to union regulations regarding hours or other working conditions when they perform they will undermine these union standards. They would put pressure on the union members they compete with to correspondingly lower their own demands.' 241 F.Supp., at 888.
17
The Court of Appeals itself expressed a similar view in saying:
18
'even those orchestra leaders who, as employers in club dates, lead but never perform as players, are proper subjects for membership because they are in job competition with union subleaders; each time a non-union orchestra leader performs, he displaces a 'union job' with a 'non-union job." 372 F.2d, at 168.
19
And of particular significance, the Court of Appeals noted that where the leader performs
20
'the services of a sub-leader would not be required and the leader may in this way save the wages he would otherwise have to pay. Consequently, he could make the services of his orchestra available at a lower price than could a non-performing leader.' 372 F.2d, at 166.
21
Thus the price floors, including the minimums for leaders, are simply a means for coping with the job and wage competition of the leaders to protect the wage scales of musicians who respondents concede are employees on club-dates, namely sidemen and subleaders. As such the provisions of the 'Price List' establishing those floors are indistinguishable in their effect from the collective bargaining provisions in Local 24 of International Brotherhood of Teamsters etc. v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (Oliver I), which we held governed not prices but the mandatory bargaining subject of wages. The precise issue in Oliver I was whether Article XXXII of a multi-employer, multi-state collective bargaining agreement between the Teamsters Union and a bargaining organization of motor carriers dealt with a mandatory subject of bargaining. Article XXXII provided that drivers who own and drive their own vehicles should be paid, in addition to the prescribed driver's wage, not less than a prescribed minimum rental for the use of their vehicles. We held that the article was a wage and not a price provision, saying:
22
'The inadequacy of a rental which means that the owner makes up his excess costs from his driver's wages not only clearly bears a close relation to labor's efforts to improve working conditions but is in fact of vital concern to the carrier's employed drivers; an inadequate rental might mean the progressive curtailment of jobs through withdrawal of more and more carrier-owned vehicles from service. * * *' 358 U.S., at 294, 79 S.Ct., at 304.
23
We disagree with the Court of Appeals that '(t)he circumstances constituting a possible threat to the employment of sub-leaders or the displacement of a sideman * * * are not at all comparable,' 372 F.2d, at 166. The price floors here serve the identical ends served by Article XXXII in Oliver I. The Price List has in common with Article XXXII the objective to protect employees' job opportunities and wages from job and wage competition of other union members—in the case of the Article, drivers when they drive their own vehicles, and in the case of the Price List, musicians on the occasions they are leaders and play a role as employers. Like the Article, the Price List is therefore 'a direct and frontal attack upon a problem throught to threaten the maintenance of the basic wage structure * * *.' 358 U.S., at 294, 79 S.Ct., at 304.10
24
The majority of the Court of Appeals apparently regarded Meat Cutters v. Jewel Tea, supra, as militating against this conclusion. The majority read the opinions of Mr. Justice White and Mr. Justice Goldberg in that case as requiring a holding that 'mandatory subjects of collective bargaining carry with them an exemption * * *,' but that '(o)n matters outside of the mandatory area * * * no such considerations govern * * *.' 372 F.2d, at 165. Even if only mandatory subjects of bargaining enjoy the exemption a question not in this case and upon which we express no view nothing Mr. Justice White or Mr. Justice Goldberg said remotely suggests that the distinction between mandatory and non-mandatory subjects turns on the form of the method taken to protect a wage scale, here a price floor. To the contrary, we pointed out above that Mr. Justice White's opinion emphasized that the 'crucial determinant is not the form of the agreement * * *' and cited Oliver I as settling that proposition. 381 U.S., at 690, n. 5, 85 S.Ct., at 1602.
25
The reasons which entitle the Price List to the exemption embrace the provision fixing the minimum price for a club-date engagement when the orchestra leader does not perform, and does not displace an employee-musician.11 That regulation is also justified as a means of preserving the scale of the sidemen and subleaders. There was evidence that when the leader does not collect from the purchaser of the music an amount sufficient to make up the total of his out-of-pocket expenses, including the sum of his wage-scale wages and the scale wages of the sidemen,12 he will, in fact, not pay the sidemen the prescribed scale. The District Court found:
26
'It is unquestionably true that skimping on the part of the person who sets up the engagement (the leader) so that his costs are not covered is likely to have an adverse effect on the fees paid to the participating musicians. By fixing a reasonable amount over the sum of the minimum wages of the musicians participating in an engagement to cover these expenses, the union insures that 'no part of the labor costs paid to a (leader) would be diverted by him for overhead or other non-labor costs." 241 F.Supp., at 891.
27
In other words, the price of the product—here the price for an orchestra for a club-date—represents almost entirely the scale wages of the sidemen and the leader. Unlike most industries, except for the 8% charge, there are no other costs contributing to the price. Therefore, if leaders cut prices, inevitably wages must be cut.
28
The analyses of Mr. Justice White and Mr. Justice Goldberg in Jewel Tea support our conclusion. Jewel Tea did not hold that an agreement respecting marketing hours would always come within the labor exemption. Rather, that case held that such an agreement was lawful because it was found that the marketing-hours restriction had a substantial effect on hours worked by the union members. Similarly, the price-list requirement is brought within the labor exemption under the finding that the requirement is necessary to assure that scale wages will be paid to the sidemen and the leader. If the union may not require that the full-time leader charge the purchaser of the music an amount sufficient to compensate him for the time he spends selecting musicians and performing the other musical functions involved in leading, the full-time leader may compete with other union members who seek the same jobs through price differentiation in the product market based on differences in a labor standard. His situation is identical to that of a truck owner in Oliver I who does not charge an amount sufficient to compensate him for the value of his labor services in driving the truck, and is a situation which the union can prevent consistent with its antitrust exemption. There can be no differentiation between the leader who appears with his orchestra and the one who on occasion hires a subleader. In either case part of the union-prescribed 'leader's fee' is attributable to service rendered in either conducting or playing and part to the service rendered in selecting musicians, bookkeeping, etc. The only difference is that in the former situation the leader keeps the entire fee while in the latter he is required to pay that part of it attributable to playing or conducting to the subleader. In this respect we agree with the view espoused by Judge Friendly in his separate opinion, 372 F.2d, at 168—170.
29
We think also that the caterer and booking agent restrictions 'are at least as intimately bound up with the subject of wages,' Oliver II, supra, 362 U.S. at 606, 80 S.Ct. at 924, as the price floors. The District Court found that the booking agent regulations were adopted because of experience that 'many booking agents charged exorbitant fees to members and booked engagements for musicians at wages which were below union scale.' 241 F.Supp., at 881—882. On the basis of these findings, the District Court concluded:
30
'Because the activities of the booking agents here have and had a direct and substantial effect on the wages of the members of (the unions), I find that they are in an economic interrelationship with the members * * * such that the (unions) are justified in regulating their activities * * *.' Furthermore, I find the regulations to be reasonably related to their interest in maintaining observance of union scale wages and working conditions.' 241 F.Supp., at 893.
31
The finding concerning the caterer regulations was to the same effect.
32
'The evidence discloses that caterers took advantage of their position before the union adopted its regulations to, in effect, book orchestras and they continue to do so, at least to some extent. Caterers recommend orchestras to customers and receive commissions from orchestra leaders. These practices actually or potentially affect the wages of the musicians involved.
33
'I believe that this constitutes an economic interrelationship which permits the defendants to regulate and prohibit the booking activities of the caterers without violating the Sherman Act.' 241 F.Supp., at 893.
34
The judgment of the Court of Appeals is vacated and the cases are remanded with direction to enter a judgment affirming the judgment of the District Court in its entirety.
35
It is so ordered.
36
Judgment of Court of Appeals vacated and case remanded with direction.
37
THE CHIEF JUSTICE and Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
38
Mr. Justice WHITE, with whom Mr. Justice BLACK joins, dissenting.
39
In my view the Court is misled by the peculiar role of bandleaders and the peculiar economics of the club-date music industry, and fashions a rule which, if comprehensible at all, has unfortunate consequences for the delicate and difficult area of conflict between antitrust and labor policy.
40
The four respondents in No. 309 (hereafter respondents) are successful bandleaders whose success has made it unnecessary for them to continue working from time to time as sidemen and subleaders. However, they do work as leaders.1 Indeed, their business practice was to lead individually whenever they obtained an engagement, hiring a subleader only when they obtained two or more engagements at conflicting times. Leading a band was obviously one important part of their working careers; it was not, however, the only part. Respondents also devoted much time and energy to organizing and managing their businesses. They advertised, and in other ways obtained engagements. They planned the music to be provided at those engagements. They chose, recruited, and supervised the subleaders and sidemen working for them. And they established and directed the administrative operation necessary for obtaining and fulfilling engagements.
41
The Court accepts the finding that respondents were a 'labor' group. I would think it beyond dispute that leading a band (a task which usually includes also occasional playing of an instrument) is 'labor group work,' but that it is equally beyond dispute that managing and administering a business whose function is supplying bands to fathers of brides is not 'labor group work.'2 The first task, leading, certainly possesses 'economic interrelationship(s) affecting legitimate union interests,'3 and the second clearly does not. The Court appears to feel that because respondents' work includes some 'labor group' tasks, all aspects of respondents' activities are proper subjects of union concern. I see no reason why the law in this area cannot be sufficiently flexible to grant the union antitrust immunity for regulation of those activities of bandleaders which sufficiently affect union members, while denying that immunity where the union has no proper concern.
42
Brotherhood of International Local 24 of Teamsters etc. v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959), is a difficult case, but an important one, with which I fully agree.4 Oliver, as I read it, holds that where independent contractors are doing work for an employer in competition with the work of union members, the union can bargain with the employer to make certain they are not doing that work at a lower wage than that paid to members.5 Since in Oliver an independent truck driver who claimed to be charging the union rate for his labor but received in addition less than his costs for equipment and gasoline would in fact be cutting the union wage scale, the Court held that the union did not violate the antitrust laws when it bargained about the total amount—including both wage and equipment costs—that the companies would pay to the independent ownerdrivers. On the facts before us, Oliver is relevant, but not across-the-board, as the Court seems to think. Here, when one of respondents leads, he does work—playing and leading—which is also done by union members, and for which the union has a proper concern. The union thus has a right to see that the respondent does not perform that work for less than the going scale for union musicians and subleaders. Since the leader fixes a single charge to compensate him for both leading and organizing, the union can require the leader to make that charge not less than the union scale for a subleader plus the leader's costs in obtaining the engagement, hiring the musicians, and planning the program. Since, as Judge Friendly said in his separate opinion below, the price the union requires leaders to charge has not been shown to be 'set so high as to cover not merely compensation for the additional services rendered by a leader but entrepreneurial profit as well,'6 the union should be free of antitrust liability for imposing this minimum rate on charges by leaders when they actually lead. Oliver so holds.
43
The question is quite different, however, when we deal with imposition of fixed minimum charges by leaders for engagements at which they do not themselves lead. For such engagements the role of the leader is solely that of entrepreneur: he obtains a customer (partly, it appears, through the attraction of his reputation as an established provider of music), makes the necessary arrangements for servicing the customer, including employment and supervision of staff, and maintains the administrative structure required for this work: office, payroll clerk, permanent telephone listing, and so forth. The union has of course a full right to impose on this leader, who is in effect an employer, its minimum scale for work by sidemen and subleaders. The musicians union, however, goes further. It requires that, for an engagement of four or more musicians, the leader charge his customer not less than the sideman's scale times the number of musicians (including the subleader), plus double the sideman's scale to compensate the leader, of which one-fourth-plus the sideman's scale—goes to the subleader. The union is clearly requiring that the leader charge his customer more than the total of the leader's wage bill, even though the leader himself does no 'labor group' work.
44
There is no clear holding by this Court that a union is not immune from antitrust liability when it requires that all the employers with whom it deals charge uniform prices. It has certainly been assumed, however, that the Norris-LaGuardia exemption to the antitrust laws does not extend this far. In Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965), the entire Court joined opinions strongly suggesting there is no antitrust immunity for a union which joins with employers to fix the prices at which the employers sell to the public. I wrote, in an opinion joined by The Chief Justice and Mr. Justice Brennan:
45
'Jewel, for example, need not have bargained about or agreed to a schedule of prices at which its meat would be sold and the unions could not legally have insisted that it do so. But if the unions had made such a demand, Jewel had agreed and the United States or an injured party had challenged the agreement under the antitrust laws, we seriously doubt that either the unions or Jewel could claim immunity by reason of the labor exemption, whatever substantive questions of violation there might be.' 381 U.S., at 689, 85 S.Ct., at 1602.
46
Mr. Justice Goldberg in his separate opinion, joined by Justices Harlan and Stewart, wrote:
47
'The direct and overriding interest of unions in such subjects as wages, hours, and other working conditions, which Congress has recognized in making them subjects of mandatory bargaining, is clearly lacking where the subject of the agreement is pricefixing and market allocation. Moreover, such activities are at the core of the type of anticompetitive commercial restraint at which the antitrust laws are directed.' 381 U.S., at 732—733, 85 S.Ct., at 1626.
48
Mr. Justice Douglas, dissenting in Jewel Tea and joined by Justices Black and Clark, wrote:
49
'(T)he unions can no more aid a group of businessmen to force their competitors to follow uniform store marketing hours than to force them to sell at fixed prices. Both practices take away the freedom of traders to carry on their business in their own competitive fashion.' 381 U.S., at 737, 85 S.Ct., at 1607.7
50
Unions are, of course, not without interest in the prices at which employers sell. As the majority points out, by seeing that employers sell at prices covering all their costs, a union can insure employer solvency and make more certain employee collection of wages owed them. In addition, assuring that competing employers charge at least a minimum price prevents price competition from exerting downward pressure on wages. On the other hand, price competition, a significant aid to satisfactory resource allocation and a deterrent to inflation, would be substantially diminished if industry-wide unions were free to dictate uniform prices through agreements with employers.8 I have always thought that this strong policy outweighed the legitimate union interest in the prices at which employers sell, and until today I had thought that the Court agreed. Of course the lack of discussion of this question in the majority's opinion, and the failure to refer to the unanimous rejection in Jewel Tea of antitrust immunity for union efforts to fix industry-wide prices, suggest that the Court takes this step without full awareness of the implications and the likely consequences. The step is nonetheless disturbing, and I must record my dissent.
51
I am also in disagreement with the majority about certain of the questions presented in No. 310. The musicians union imposes its rules not only on respondents, who sometimes lead and sometimes hire subleaders, but upon leaders who never lead personally. These leaders are merely independent businessmen, performing no 'labor group' work, and the union has no proper interest in regulating their activities. Even though the District Court found that the union imposed its rules on these leaders. I believe the facts as found below demonstrate that the union formed a combination with those independent businessmen.9 If the union and employers combined, I have no doubt that some of the regulations agreed upon were unlawful restraints of trade. Boycotting booking agents and caterers who occasionally did business with employers not living by the union's rules unreasonably restrained trade. So also did combining with willing caterers and booking agents to impose uniform business practices on bandleaders and to boycott those who did not abide by the established rules and policies. Agreeing with employers that the employers would not take their wares to other cities without charging prices 10% higher than the local employers charged was a blatant violation of the Sherman Act. Horizontal division of territories has always been held a per se violation of § 1, e.g., Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899), and it should make no difference that the instigation for this division came from the union and not from the employers. I am unable to see how the practice at issue here is distinguishable from an agreement by General Motors and Ford, at the behest of the UAW, for GM to sell west of the Mississippi only at prices 10% higher than those charged by Ford, while Ford would sell in the East only at prices higher than GM's. Since union combinations with nonlabor groups which restrain trade are not immune from antitrust attack, Allen Bradley Co. v. Union Local 3, etc., 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945); United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), I think respondents should be permitted to show that these unlawful and unimmunized restraints of trade injured them, and should be able to recover the trebled amount of such damages as they can establish.
52
By combining with a nonlabor group, the musicians union has obtained effective control of the entire club-date industry. The device for this control has been imposition of union membership and union rules on cooperating bandleaders, and on some who did not want to co-operate. I am sure the Clayton and Norris-LaGuardia Acts never intended to give unions this kind of stranglehold on any industry. It may be that the Court views this industry as having special problems of supply and demand requiring special treatment under the antitrust laws. If this is the case, the Court should frankly say so and seek to confine the misguided rules of law it announces. More appropriately, the Court should leave to Congress the task of making special provisions in the antitrust laws for the special circumstances of the music industry. On more than one occasion Congress has seen to it that the full rigors of the antitrust laws are not felt by industries which cannot survive under competitive conditions.10 The Court treads dangerous ground in seeking on its own motion to deny to a particular industry the normal competitive conditions envisioned by the antitrust laws, conditions usually viewed as essential for maintaining service and prices at satisfactory levels.
1
Peterson and Carroll, respondents in No. 309, filed the first action in July 1960 and the other in December 1960. The latter was brought to challenge an increase in the musicians' wage scale adopted after the first complaint was filed. The other respondents were allowed to intervene. By stipulation the testimony in Carroll v. Associated Musicians, etc., D.C., 206 F.Supp. 462, 2 Cir., 316 F.2d 574, and Cutler v. American Federation of Musicians, etc., D.C., 211 F.Supp. 433, 2 Cir., 316 F.2d 546, was made part of the record.
2
§ 13(c), 47 Stat. 73, 29 U.S.C. § 113(c); see also §§ 6 and 20 of the Clayton Act, 38 Stat. 731, 738, 15 U.S.C. § 17, 29 U.S.C. § 52.
3
'Musical engagements are generally classified as either 'steady,' those lasting for longer than one week, or 'single,' usually one day or one performance affairs but including all engagements lasting less than one week. The much sought after steady engagements are rare in comparison with the number of single engagements.
'The predominant form of single engagement is the 'club date' * * *. Single engagements also include the 'non-club date' field, consisting of television appearances or recording engagements, etc. * * *' 372 F.2d, at 158.
4
Both the District Court and the Court of Appeals held that respondents did not prove that they properly represented a class under former Fed.Rule Civ.Proc. 23(a), 241 F.Supp., at 884—886; 372 F.2d at 161—163. The record sustains this conclusion. Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673; Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22. Since all of the respondents either play an instrument or conduct their orchestras unless they book more than one engagement for the same time, we do not have before us a leader who merely books engagements and never appears with his orchestra.
5
Carroll and Peterson have since been expelled from membership. See 241 F.Supp., at 870. Both are still permitted to book engagements and hire musicians to play at them but cannot appear with their orchestra either as conductors or instrumentalists. See Carroll v. American Federation of Musicians, etc., 2 Cir., 310 F.2d 325.
6
'The distinction between the kinds of single engagements is vital; the non-club date engagements are ordinarily governed by collective bargaining agreements * * *. The same is usually true of the steady engagement field. Local 802 has collective bargaining agreements with the major users or 'purchasers' of live music within its area such as recording companies, hotels, television and film producers, opera companies and theatres.' 372 F.2d, at 158.
7
See 241 F.Supp., at 887; 372 F.2d, at 159. We need not decide the question.
8
The Court of Appeals also found 'no evidence of a conspiracy between Local 802, or the Federation, and orchestra leaders to eliminate competitors, fix prices or achieve any other commercial restraint, nor was such a finding made by the district judge. Rather, the record establishes that all restraints were instituted unilaterally by the unions and acquiesced in by the orchestra leaders.' 372 F.2d, at 164; see 241 F.Supp., at 891.
9
'(I)n the club date and hotel steady engagement fields * * * orchestra leaders are in competition with employee members of the * * * unions regarding jobs, wages and other working conditions. As a result, they comprise a labor group in these fields.' 241 F.Supp., at 887—888.
10
The 'Price List' establishes only a minimum charge; there is no attempt to set a maximum. Nor does the union attempt by its minimum charge to assure the leader a profit above the fair value of his labor services. The District Court found no evidence 'which indicates that the increment to the (leader) is unrelated to his costs in that function.' 241 F.Supp., at 891. See also 372 F.2d, at 170 (Friendly, J., in separate opinion): 'A different result might be warranted if the floor were set so high as to cover not merely compensation for the additional services rendered by a leader but entrepreneurial profit as well. But there has been no such showing here.'
11
Because of the intense competition for positions as leader, the full-time leader 'displaces' another union member simply by securing an engagement for himself. Union members who act principally as sidemen and subleaders but who act occasionally as leaders 'bid for the same jobs as full-time leaders such as plaintiffs and perform the same musical service when they get a job. They also perform in the same places as full-time leaders.' 241 F.Supp., at 872.
12
Only two things can happen when the leader does not charge the specified minimum; either he works below union scale or the musicians he employs work below union scale. In either event the result is price competition through differences of standards in the labor market.
1
Rather, they worked as leaders until their insubordination resulted in expulsion from the union. See 241 F.Supp. 865, 870 (D.C.S.D.N.Y.1965).
2
See Columbia River Packers Ass'n. v. Hinton, 315 U.S. 143, 62 S.Ct. 520, 86 L.Ed. 750 (1942).
3
241 F.Supp. at 887.
4
See Local Union No. 189, Amalgamated Meat Cutters etc. v. Jewel Tea Co., 381 U.S. 676, 690, n. 5, 85 S.Ct. 1596, 1602, 14 L.Ed.2d 640 (1965).
5
The union could have bargained for restrictions on contracting out of work by the employer. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964).
6
372 F.2d 155, 170 (C.A.2d Cir. 1967).
7
As one commentator has concluded, 'Although the Court split on the application of this proposition, all the justices agreed that the antitrust laws would be offended by a collective bargaining agreement binding employers to charge a certain price for their goods.' P. Areeda, Antitrust Analysis 52 (1967). See also United Mine Workers of America v. Pennington, 381 U.S. 657, 663, 85 S.Ct. 1585, 1589, 14 L.Ed.2d 626 (1965): 'If the UMW in this case, in order to protect its wage scale by maintaining employer income, had presented a set of prices at which the mine operators would be required to sell their coal, the union and the employers who happened to agree could not successfully defend this contract provision if it were challenged under the antitrust laws by the United States or by some party injured by the arrangement.'
8
See J. T. Dunlop, Wage Determination Under Trade Unions (1950); C. E. Lindblom, Unions and Capitalism (1949); E. S. Mason, Economic Concentration and the Monopoly Problem (1957).
9
United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960). See also Albrecht v. Herald Co., 390 U.S. 145, 150, n. 6, 88 S.Ct. 869, 872, 19 L.Ed.2d 998 (1968). I cannot believe that the Court intends its n. 8 to hold that unilateral demands, enforced by threats, combined with willing cooperation or reluctant acquiescence by leaders (who may join the union and in any event obey its rules), cannot amount to a combination in restraint of trade.
10
E.g., § 1 of the Capper-Volstead Act, 42 Stat. 388, 7 U.S.C. § 291 (agricultural co-operatives); § 2 of the Webb-Pomerene Act, 40 Stat. 517, 15 U.S.C. § 62 (foreign trade associations); § 6(b)(1) of the Act of Nov. 8, 1966, 80 Stat. 1515, 15 U.S.C. § 1291 (1964 ed., Supp. II) (joint agreements by professional football clubs).
| 67
|
391 U.S. 83
88 S.Ct. 1517
20 L.Ed.2d 448
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Irving GORDON et ux. Oscar E. BANN et ux., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE.
Nos. 760, 781.
Argued April 4, 1968.
Decided May 20, 1968.
Solicitor General, Erwin N. Griswold for petitioner in No. 760 and the respondent in No. 781.
Harry R. Horrow, San Francisco, Cal., for respondents in No. 760 and the petitioners in No. 781.
Mr. Justice HARLAN delivered the opinion of the Court.
1
These cases, involving the interpretation of § 355 of the Internal Revenue Code of 1954, have an appropriately complex history.
2
American Telephone and Telegraph Company (hereafter A.T. & T.) conducts its local communications business through corporate subsidiaries. Prior to July 1, 1961, communications services in California, Oregon, Washington, and Idaho were provided by Pacific Telephone and Telegraph Company (hereafter Pacific). A.T. & T. held about 90% of the common stock of Pacific at all relevant times. The remainder was widely distributed.
3
Early in 1961, it was decided to divide Pacific into two separate corporate subsidiaries of A.T. & T. The plan was to create a new corporation, Pacific Northwest Bell Telephone Company (hereafter Northwest) to conduct telephone business in Oregon, Wahington, and Idaho, leaving the conduct of the California business in the hands of Pacific. To this end, Pacific would transfer all its assets and liabilities in the first three States to Northwest, in return for Northwest common stock and debt paper. Then, Pacific would transfer sufficient Northwest stock to Pacific shareholders to pass control of Northwest to the parent company, A.T. & T.
4
Pacific had, however, objectives other than fission. It wanted to generate cash to pay off existing liabilities and meet needs for capital, but not to have excess cash left over. It also feared that a simple distribution of the Northwest stock would encounter obstacles under California corporation law.1 Consequently, the 'Plan for Reorganization' submitted to Pacific's shareholders on February 27, 1961, had two special features. It provided that only about 56% of the Northwest common stock would be offered to Pacific shareholders immediately after the creation of Northwest. It also provided that, instead of simply distributing Northwest stock pro rata to shareholders, Pacific would distribute to its shareholders transferable rights entitling their holders to purchase Northwest common from Pacific at an amount to be specified by Pacific's Board of Directors, but expected to be below the fair market value of the Northwest common.
5
In its February 27 statement to shareholders, Pacific said that it was seeking a ruling from the Internal Revenue Service
6
'with respect to the tax status of the rights to purchase which will be issued in connection with the offerings of capital stock of the New Company to shareholders of the Company. * * *'
7
The statement warned, however, that '(t)axable income to the holders of such shares may result with respect to such rights.'
8
The plan was approved by Pacific's shareholders on March 24, 1961. Pacific transferred its assets and liabilities in Oregon, Washington, and Idaho to Northwest, and ceased business in those States on June 30, 1961. On September 29, 1961, Pacific issued to its common stockholders one right for each outstanding share of Pacific stock. These rights were exercisable until October 20, 1961. Six rights plus a payment of $16 were required to purchase one share of Northwest common. The rights issued in 1961 were sufficient to transfer about 57% of the Northwest stock.
9
By September 29, 1961, the Internal Revenue Service had ruled that shareholders who sold rights would realize ordinary income in the amount of the sales price, and that shareholders who exercised rights would realize ordinary income in the amount of the difference between $16 paid in and the fair market value, measured as of the date of exercise, of the Northwest common received. The prospectus accompanying the distributed rights informed Pacific shareholders of this ruling.
10
On June 12, 1963, the remaining 43% of the Northwest stock was offered to Pacific shareholders. This second offering was structured much as the first had been, except that eight rights plus $16 were required to purchase one share of Northwest.
11
The Gordons, respondents in No. 760, and the Baans, petitioners in No. 781, were minority shareholders of Pacific as of September 29, 1961. In the rights distribution that occurred that day the Gordons received 1,540 rights under the plan. They exercised 1,536 of the rights on October 5, 1961, paying $4,096 to obtain 256 shares of Northwest, at a price of $16 plus six rights per share. The average price of Northwest stock on the American Stock Exchange was $26 per share on October 5. On the same day, the Gordons sold the four odd rights for $6.36. The Baans received 600 rights on September 29, 1961. They exercised them all on October 11, 1961, receiving 100 shares of Northwest in return for their 600 rights and $1,600. On October 11, the agreed fair market value of one Northwest share was $26.94.
12
In their federal income tax returns for 1961, neither the Gordons nor the Baans reported any income upon the receipt of the rights or upon exercising them to obtain Northwest stock at less than its fair market value. The Gordons also did not report any income on the sale of the four rights. The Commissioner asserted deficiencies against both sets of taxpayers. He contended, in a joint proceeding in the Tax Court, that the taxpayers received ordinary income in the amount of the difference between the sum they paid in exercising their rights and the fair market value of the Northwest stock received. He contended further that the Gordons realized ordinary income in the amount of $6.36, the sales price, upon the sale of their four odd rights.
13
The Tax Court upheld the taxpayers' contention that the 1961 distribution of Northwest stock met the requirements of § 355 of the Code, with the result that no gain or loss should be recognized on the receipt by them or their exercise of the rights. The Tax Court held, however, that the Gordons' sale of the four odd rights resulted in ordinary income to them. The Commissioner appealed the Baan case to the Court of Appeals for the Ninth Circuit, and the Gordon case to the Court of Appeals for the Second Circuit; in the latter, the Gordons cross-appealed. The Ninth Circuit reversed the Tax Court, holding that the spread between $16 and fair market value was taxable as ordinary income to the Baans. The Second Circuit disagreed, sustaining the Tax Court on this point in the Gordon case, Judge Friendly dissenting. The Second Circuit went on to hold that the amount received by the Gordons for the four odd rights was taxable as a capital gain rather than as ordinary income, reversing the Tax Court on this piont.
14
Because of the conflict, we granted certiorari. 389 U.S. 1033, 1034, 88 S.Ct. 775, 778, 19 L.Ed.2d 821, 822. We affirm the decision of the Court of Appeals for the Ninth Circuit, and reverse the decision of the Court of Appeals for the Second Circuit on both points.
15
Under §§ 301 and 316 of the Code, subject to specific exceptions and qualifications provided in the Code, and distribution of property by a corporation to its shareholders out of accumulated earnings and profits is a dividend taxable to the shareholders as ordinary income.2 Every distribution of corporate property, again except as otherwise specifically provided, 'is made out of earnings and profits to the extent thereof.'3 It is here agreed that on September 28, 1961, Pacific's accumulated earnings and profits were larger in extent than the total amount the Commissioner here contends was a dividend—the difference between the fair market value of all Northwest stock sold in 1961 and the total amount, at $16 per share, paid in by purchasers.
16
Whether the actual dividend occurs at the moment when valuable rights are distributed or at the moment when their value is realized through sale or exercise, it is clear that when a corporation sells corporate property to stockholders or their assigness at less than its fair market value, thus diminishing the net worth of the corporation, it is engaging in a 'distribution of property' as that term is used in § 316.4 Such a sale thus results in a dividend to shareholders unless some specific exception or qualification applies. In particular, it is here agreed that the spread was taxable to the present taxpayers unless the distribution of Northwest stock by Pacific met the requirements for nonrecognition stated in § 355, or § 354, or § 346(b) of the Code.5 Since the Tax Court concluded that the requirements of § 355 had been met, it did not reach taxpayers' alternative contentions. Under the disposition that we make here upon the § 355 question, these alternative contentions remain open for further proceedings in the Tax Court.
17
Section 355 provides that certain distributions of securities of corporations controlled by the distributing corporation do not result in recognized gain or loss to the distributee shareholders.6 The requirements of the section are detailed and specific, and must be applied with precision. It is no doubt true, as the Second Circuit emphasized, that the general purpose of the section was to distinguish corporate fission from the distribution of earnings and profits. However, although a court may have reference to this purpose when there is a genuine question as to the meaning of one of the requirements Congress has imposed, a court is not free to disregard requirements simply because it considers them redundant or unsuited to achieving the general purpose in a particular case. Congress has abundant power to provide that a corporation wishing to spin off a subsidiary must, however bona fide its intentions, conform the details of a distribution to a particular set of rules.
18
The Commissioner contends that the 1961 distribution of Northwest stock failed to qualify under § 355 in several respects.7 We need, however, reach only one. Section 355(a)(1)(D) requires that, in order to qualify for nonrecognition of gain or loss to shareholders, the distribution must be such that.
19
'as part of the distribution, the distributing corporation distributes—
20
'(i) all of the stock and securities in the controlled corporation held by it immediately before the distribution, or '(ii) an amount of stock in the controlled corporation constituting control within the meaning of section 368(c), and * * *.'
21
Section 368(c) provides in relevant part that
22
'the term 'control' means the ownership of stock possessing at least 80 percent of the total combined voting power of all classes of stock entitled to vote and at least 80 percent of the total number of shares of all other classes of stock of the corporation.'8
23
On September 28, 1961, the day before the first rights distribution, Pacific owned all of the common stock of Northwest, the only class of securities that company had issued. The 1961 rights offering contemplated transferring, and succeeded in transferring, about 57% of the Northwest common to Pacific shareholders. It therefore could not be clearer that this 1961 distribution did not transfer 'all' of the stock of Northwest held by Pacific prior to it, and did not transfer 'control' as that term is defined in § 368(c).
24
Nevertheless, taxpayers contend, and the Second Circuit agreed, that the requirements of subsection (a)(1)(D) were here met because Pacific distributed the remaining 43% of the Northwest stock in 1963. The court said that the purpose of the subsection 'in no way requires a single distribution.'9 The court apparently concluded that so long as it appears, at the time the issue arises, that the parent corporation has in fact distributed all of the stock of the subsidiary, the requirements of § (a)(1)(D)(i) have been satisfied.
25
We are forced to disagree. The Code requires that 'the distribution' divest the controlling corporation of all of, or 80% control of, the controlled corporation. Clearly, if an initial transfer of less than a controlling interest in the controlled corporation is to be treated for tax purposes as a mere first step in the divestiture of control, it must at least be identifiable as such at the time it is made. Absent other specific directions from Congress, Code provisions must be interpreted so as to conform to the basic premise of annual tax accounting.10 It would be wholly inconsistent with this premise to hold that the essential character of a transaction, and its tax impact, should remain not only undeterminable but unfixed for an indefinite and unlimited period in the future, awaiting events that might or might not happen. This requirement that the character of a transaction be determinable does not mean that the entire divestiture must necessarily occur within a single tax year. It does, however, mean that if one transaction is to be characterized as a 'first step' there must be a binding commitment to take the later steps.11
26
Here, it was little more than a fortuity that, by the time suit was brought alleging a deficiency in taxpayers' 1961 returns, Pacific had distributed the remainder of the stock. The plan for reorganization submitted to shareholders in 1961 promised that 56% of that stock would be distributed immediately. The plan went on,
27
'It is expected that within about three years after acquiring the stock of the New Company, the Company by one or more offerings will offer for sale the balance of such stock, following the procedures described in the preceding paragraph. The proceeds from such sales will be used by the Company to repay advances then outstanding and for general corporate purposes including expenditures for extensions, additions and improvements to its telephone plant.
28
'The prices at which the shares of the New Company will be offered pursuant to the offerings referred to * * * will be determined by the Board of Directors of the Company at the time of each offering.'
29
It was further stated that such subsequent distributions would occur '(a)t a time or times related to its (Pacific's) need for new capital.' Although there is other language in the plan that might be interpreted as preventing Pacific management from dealing with the Northwest stock in any way inconsistent with eventual sale to Pacific shareholders, there is obviously no promise to sell any particular amount of stock, at any particular time, at any particular price. If the 1961 distribution played a part in what later proved to be a total divestiture of the Northwest stock, it was not, in 1961, either a total divestiture or a step in a plan of total divestiture.
30
Accordingly, we hold that the taxpayers, having exercised rights to purchase shares of Northwest from Pacific in 1961, must recognize ordinary income in that year in the amount of the difference between $16 per share and the fair market value of a share of Northwest common at the moment the rights were exercised.
31
The second question presented by the petition in No. 760, whether the $6.36 received by taxpayers Gordon upon the sale of four rights was taxable as ordinary income, as a capital gain, or not at all, does not require extended discussion in light of our view upon the first question. Since receipt and exercise of the rights would have produced ordinary income, receipt and sale of the rights, constituting merely an alternative route to realization, also produced income taxable at ordinary rates. Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75; Gibson v. Commissioner of Internal Revenue, 133 F.2d 308 (C.A.2d Cir.).
32
The judgment of the Court of Appeals for the Second Circuit is reversed. The judgment of the Court of Appeals for the Ninth Circuit is affirmed. It is so ordered.
33
Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
1
The record indicates that Pacific's attorneys had advised that if Pacific distributed the Northwest shares without payment of consideration by Pacific's shareholders, the distribution would have to be charged to earned surplus; the attorneys further advised that Pacific had insufficient earned surplus for this purpose, and that if this difficulty were avoided by creation of a reduction surplus, the reduction surplus would, under California law, have to be used first to redeem Pacific's preferred shares.
2
Section 301(a) provides as follows:
'Except as otherwise provided in this chapter, a distribution of property (as defined in section 317(a)) made by a corporation to a shareholder with respect to its stock shall be treated in the manner provided in subsection (c).'
Section 317(a) provides that 'the term 'property' means money, securities, and any other property * * *.' Section 301(c) provides that the 'portion of the distribution which is a dividend (as defined in section 316) shall be included in gross income.' Section 316 says that 'the term 'dividend' means any distribution of property made by a corporation to its shareholders—(1) out of its earnings and profits accumulated after February 28, 1913, or * * *.'
3
Section 316(a) provides in part as follows:
'Except as otherwise provided in this subtitle, every distribution is made out of earnings and profits to the extent thereof * * *.'
4
See, e.g., Choate v. Commissioner of Internal Revenue, 129 F.2d 684 (C.A.2d Cir.). In Palmer the Commissioner of Internal Revenue, 302 U.S. 63, 69, 58 S.Ct. 67, 70, 82 L.Ed. 50, this Court said: 'While a sale of corporate assets to stockholders is, in a literal sense, a distribution of its property, such a transaction does not necessarily fall within the statutory definition of a dividend. For a sale to stockholders may not result in any diminution of its net worth and in that case cannot result in any distribution of its profits.
'On the other hand such a sale, if for substantially less than the value of the property sold, may be as effective a means of distributing profits among stockholders as the formal declaration of a dividend.' In Palmer, rights were distributed entitling shareholders to purchase from the corporation shares of stock in another corporation. Finding that the sales price represented the reasonable value of the shares at the time the corporation committed itself to sell them, this Court found no dividend. It held that the mere issue of rights was not a dividend. It has not, however, been authoritatively settled whether an issue of rights to purchase at less than fair market value itself constitutes a dividend, or the dividend occurs only on the actual purchase. In the present case this need not be decided.
5
It is important to begin from this premise. In our view, the Court of Appeals for the Second Circuit erred in its approach to the § 355 problem because it assumed, at the outset, that the Commissioner essentially sought to tax a transaction that brought no 'income' to Pacific shareholders. Whether the shareholders received income, however, cannot in practice be determined in the abstract, before looking at § 355.
Any common shareholder in some sense 'owns' a fraction of the assets of the corporation in which he holds stock, including those assets that reflect accumulated corporate earnings. Earnings are not taxed to the shareholder when they accrue to the corporation, but instead when they are passed to shareholders individually through dividends. Consequently it does not help to note, as the Second Circuit here did, that the distribution of Northwest stock merely changed the form of ownership that Pacific's shareholders enjoyed and did not increase their wealth. This is only very roughly true at best, but in the rough sense in which it is here true, it is true of any dividend. The question is not whether a shareholder ends up with 'more' but whether the change in the form of his ownership represents a transfer to him, by the corporation, of assets reflecting its accumulated earnings and profits.
There may be a genuine theoretical difference between a change in form representing a mere corporate fission, separating what the shareholder owns into two smaller but essentially similar parts, and a change in form representing a dividend, separating what a shareholder owns qua shareholder from what he owns as an individual. This difference, however, must be defined by objectively workable tests, such as Congress supplied in § 355. Neither the Second Circuit nor the taxpayers have suggested any other way of identifying a true fission.
6
Sec. 355. Distribution of stock and securities of a controlled corporation.
(a) Effect on distributees.
(1) General rule.
If—
(A) a corporation (referred to in this section as the 'distributing corporation')—
(i) distributes to a shareholder, with respect to its stock, or
(ii) distributes to a security holder, in exchange for its securities, solely stock or securities of a corporation (referred to in this section as 'controlled corporation') which it controls immediately before the distribution,
(B) the transaction was not used principally as a device for the distribution of the earnings and profits of the distributing corporation or the controlled corporation or both (but the mere fact that subsequent to the distribution stock or securities in one or more of such corporations are sold or exchanged by all or some of the distributees
(other than pursuant to an arrangement negotiated or agreed upon prior to such distribution) shall not be construed to mean that the transaction was used principally as such a device),
(C) the requirements of subsection (b) (relating to active business) are satisfied, and
(D) as part of the distribution, the distributing corporation distributes—
(i) all of the stock and securities in the controlled corporation held by it immediately before the distribution, or
(ii) an amount of stock in the controlled corporation constituting control within the meaning of section 368(c), and it is established to the satisfaction of the Secretary or his delegate that the retention by the distributing corporation of stock (or stock and securities) in the controlled corporation was not in pursuance of a plan having as one of its principal purposes the avoidance of Federal income tax, then no gain or loss shall be recognized to (and no amount shall be includible in the income of) such shareholder or security holder on the receipt of such stock or securities.
(2) Non pro rata distributions, etc.
Paragraph (1) shall be applied without regard to the following:
(A) whether or not the distribution is pro rata with respect to all of the shareholders of the distributing corporation,
(B) whether or not the shareholder surrenders stock in the distributing corporation, and
(C) whether or not the distribution is in pursuance of a plan of reorganization (within the meaning of section 368(a)(1)(D)).
(3) Limitation.
Paragraph (1) shall not apply if—
(A) the principal amount of the securities in the controlled corporation which are received exceeds the principal amount of the securities which are surrendered in connection with such distribution, or
(B) securities in the controlled corporation are received and no securities are surrendered in connection with such distribution.
For purposes of this section (other than paragraph (1)(D) of this subsection) and so much of section 356 as relates to this section,
stock of a controlled corporation acquired by the distributing corporation by reason of any transaction which occurs within 5 years of the distribution of such stock and in which gain or loss was recognized in whole or in part, shall not be treated as stock of such controlled corporation, but as other property.
(4) Cross reference.—
For treatment of the distribution if any property is received which is not permitted to be received under this subsection (including an excess principal amount of securities received over securities surrendered), see section 356.
(b) Requirements as to active business.—
(1) In general.
Subsection (a) shall apply only if either—
(A) the distributing corporation, and the controlled corporation (or, if stock of more than one controlled corporation is distributed, each of such corporations), is engaged immediately after the distribution in the active conduct of a trade or business, or
(B) immediately before the distribution, the distributing corporation had no assets other than stock of securities in the controlled corporations and each of the controlled corporations is engaged immediately after the distribution in the active conduct of a trade or business.
(2) Definition.
For purposes of paragraph (1), a corporation shall be treated as engaged in the active conduct of a trade or business if and only if—
(A) it is engaged in the active conduct of a trade or business, or substantially all of its assets consist of stock and securities of a corporation controlled by it (immediately after the distribution) which is so engaged,
(B) such trade or business has been actively conducted throughout the 5-year period ending on the date of the distribution,
(C) such trade or business was not acquired within the period
described in subparagraph (B) in a transaction in which gain or loss was recognized in whole or in part, and
(D) control of a corporation which (at the times of acquisition of control) was conducting such trade or business—
(i) was not acquired directly (or through one or more corporations) by another corporation within the period described in subparagraph (B), or
(ii) was so acquired by another corporation within such period, but such control was so acquired only by reason of transactions in which gain or loss was not recognized in whole or in part, or only by reason of such transactions combined with acquisitions before the beginning of such period.
7
The Commissioner contends, first, that Pacific did not distribute 'solely stock or securities' as required by § 355(a)(1)(A), because it distributed rights rather than stock. He contends, second, that Pacific did not distribute the Northwest stock 'to a shareholder, with respect to its stock' as required by § 355(a)(1)(A)(i), because it did not distribute the stock to shareholders but sold it to holders of transferable rights, for cash consideration. He contends, third, that Northwest did not meet the quantity requirements of § 355(a)(1)(D) because it parted with only 57% of the stock in 1961.
Any one of these arguments, if established, would support the result the Commissioner seeks. The Court of Appeals for the Second Circuit perforce rejected all three. The Court of Appeals for the Ninth Circuit accepted all three. We reach only the last.
8
In the Tax Court, the Commissioner did not argue that Pacific had failed to meet the requirement that it distribute at least 80% of the Northwest stock, but rested upon his other arguments against applying § 355. When the Tax Court rejected these arguments, the Commissioner raised the 80% question, as well as his other arguments in both Courts of Appeals. Both considered the point on the merits, dividing on it as on the others. Since the general issue of the applicability of § 355 has been in the case since its inception, taxpayers do not contend that the 80% question is not properly before this Court. Since the record leaves no disputed issue of fact with respect to this question, we find it proper to decide it here without reference to a trier of fact.
9
382 F.2d 499, 507.
10
See Burnet v. Sanford & Brooks Co., 282 U.S. 359, 363 365, 51 S.Ct. 150, 151—152, 75 L.Ed. 383.
11
The Commissioner contends that a multistep divestiture presents special problems in preventing bailouts of earnings and profits. The Second Circuit, recognizing such potential problems, held that they can be dealt with under § (a)(1)(B), which provides that nonrecognition shall result only when it appears that 'the transaction was not used principally as a device for the distribution of the earnings and profits of the distributing corporation or the controlled corporation or both * * *.'
Congress may, of course, have chosen not to leave problems created by multistep divestitures to specific adjudication under this 'device' subsection, but to require both a unitary divestiture and satisfaction of the 'device' requirement. Whether § (a)(1)(D) would prohibit or limit a divestiture of control committed from the outset but spread over a series of steps is a problem we need not reach.
| 1112
|
391 U.S. 224
88 S.Ct. 1491
20 L.Ed.2d 546
JOINT INDUSTRY BOARD OF the ELECTRICAL INDUSTRY et al., Petitioners,v.UNITED STATES.
No. 616.
Argued March 25, 1968.
Decided May 20, 1968.
Harold Stern, New York City, for petitioners.
Lawrence G. Wallace, for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Section 64a(2) of the Bankruptcy Act, 30 Stat. 563, 11 U.S.C. § 104(a)(2), grants priority over the claims of other creditors to 'wages * * * due to workmen, * * *' the priority being limited to $600 and to wages earned within three months before the commencement of the proceedings.1 The question before us is whether priority under § 64a(2) must be accorded to an employer's unpaid contributions to an employees' annuity plan established by a collective bargaining contract. The referee and the District Court denied the priority and the Court of Appeals affirmed. In re A & § Electric Corp., 379 F.2d 211 (C.A.2d Cir. 1967). We granted certiorari, sub nom. Joint Industry Board of Electrical Industry v. United States, 389 U.S. 969, 88 S.Ct. 474, 19 L.Ed.2d 459 (1967). We affirm the judgment.
2
The Annuity Plan of the Electrical Industry in New York City was established by a collective bargaining agreement between Local Union No. 3, International Brotherhood of Electrical Workers, AFL CIO, and four associations of electrical contractors. The plan covers all employees in the bargaining unit represented by the union and is funded by employer contributions of 'Four Dollars ($4.00) per day for each day worked or each holiday for which payment is received by his employees * * *.' Payments are made to trustees who are empowered to collect and administer the contributions under the provisions of the plan. These trustees are the petitioners here. Contributions received by the trustees are credited to the account of the individual employees but are 'payable to him only as hereinafter provided,' namely, upon death, retirement from the industry at age 60, permanent disability, entry into the Armed Forces, or ceasing to be a participant under the plan. Death benefits are paid only out of income, if available, and other benefits, though they may be payable in installments, will at a minimum return to the employee the total of the contributions credited to his name, without interest.
3
A & § Electric Corporation, an employer liable for contributions to the annuity plan, was adjudicated a bankrupt in 1963. The Joint Industry Board filed a claim which included $5,114 representing payments under the plan which fell due but were unpaid during the three months prior to the commencement of the proceedings. Priority for this amount was asserted under § 64a(2). The United States, with a fourth-class priority claim for unpaid taxes, objected to the allowance of the Joint Board's priority claim. The referee and the courts agreed with the United States, holding that payments due to the Joint Board were not wages due to workmen, relying for this conclusion principally upon United States v. Embassy Restaurant, Inc., 359 U.S. 29, 79 S.Ct. 554, 3 L.Ed.2d 601 (1959).
4
We agree that Embassy Restaurant controls this case. There the claim was for unpaid employer contributions to a welfare fund, the contributions being $8 per month for each full-time employee; the fund provided life insurance, weekly sick benefits, hospital and surgical payments, and other advantages for covered employees. That claim, the Court held, was not entitled to § 64a(2) priority because payments to such a welfare fund did not satisfy the manifest purpose of the priority, which was 'to enable employees displaced by bankruptcy to secure, with some promptness, the money directly due to them in back wages, and thus to alleviate in some degree the hardship that unemployment usually brings to workers and their families.' 359 U.S., at 32, 79 S.Ct., at 556.2 The contributions involved there were payable to trustees, not to employees, and were disbursable to employees only on the occurrence of certain events, not including the bankruptcy of the employer. Neither the contributions nor the plan provided any immediate support for workmen during the period of financial distress.
5
The case before us concerns employer contributions to the welfare fund which are similarly not due the employees and never were; they were payable only to the trustees, who had the exclusive right to hold and manage the fund. Though the contribution were credited to individual employee accounts, nothing was payable to employees except upon the occurrence of certain events. Until death, retirement after age 60, permanent disability, entry into military service, or cessation of participation under the plan, no benefits were payable. Further, as the referee pointed out, the employee could not assign, pledge, or borrow against the contributions, or otherwise use them as his own.3 Quite obviously the annuity fund was not intended to relieve the distress of temporary unemployment, whether arising from the bankruptcy of the employer or for some other reason. Hence, if Embassy Restaurant is to be followed, the unpaid contributions in this case do not satisfy the fundamental purpose of the § 64a(2) priority for wages due to workmen.
6
Nor are we inclined to overrule Embassy Restaurant's construction of § 64a(2). This is a matter more appropriately left to the Congress, which has not infrequently given attention to § 64a of the Bankruptcy Act and to the priorities it creates.4 The latest amendments to § 64a occurred in 1966, in the Acts of July 5, 1966, 80 Stat. 268 and 80 Stat. 271. Although the section was completely re-enacted in 1967,5 § 64a(2), was left unchanged despite the fact that in every Congress since Embassy Restaurant bills have been introduced to overrule or modify the result reached in that case.6
7
Despite the general policy of the Bankruptcy Act to distribute assets of the estate equally to creditors, the priorities established in § 64a give priority to wages due workmen up to $600 if earned within three months prior to bankruptcy. Other unpaid wages are allowable as general claims but are not entitled to priority. If delinquent contributions to welfare and annuity funds providing deferred benefits to employees were to have equal priority with wages payable directly to employees, the maximum payable immediately and directly to employees would be reduced whenever individual wage claims approached $600 or whenever the assets of the estate would not permit all wage claims to be paid in full. Also, increasing the amounts payable to second priority creditors would reduce the assets available for distribution to lower priority claimants and general creditors, including wage claimants not entitled to priority.7 Embassy Restaurant was decided nine years ago. If there is still any question as to whether claims for unpaid contributions to provide deferred benefits to employees should share the assets of bankrupts with general creditors or should be entitled to the limited priority granted wages due to workmen, any new resolution of that question should come from Congress.
8
Affirmed.
9
Mr. Justice FORTAS, with whom THE CHIEF JUSTICE and Mr. Justice BRENNAN join, dissenting.
10
I do not agree that United States v. Embassy Restaurant, Inc., 359 U.S. 29, 79 S.Ct. 554, 3 L.Ed.2d 601 (1959), controls this case. I believe the employer's unpaid contributions to the employees' annuity plan are 'wages * * * due to workmen' within § 64a(2) of the Bankruptcy Act. Those contributions accrued and unpaid within three months before the commencement of the bankruptcy proceedings are entitled to the statutory priority.
11
In this case, the employees and the employer agreed, in a collective bargaining agreement, that the employer would compensate each employee with stipulated wages and, additionally, $4 per day 'for each day worked or each holiday * * *.' The latter sum, instead of being paid directly to the employees, was remitted to trustees of an annuity plan. In the accounts of the plan, the sum remitted for each employee, and measured by his days of work, was credited to that employee. The employee was entitled to receive the sum credited to his account upon retirement from the industry at age 60, death, permanent disability, entrance into the Armed Forces, or ceasing to be a participant under the plan by leaving the electrical industry or by accepting employment with some electrical company that is not covered by the collective bargaining agreement.
12
It is unmistakably clear (1) that the sums in question were to be paid as part of the wage bargain between employer and employee; (2) that the sum due each employee was specifically related to and measured by his work; (3) that the sum which each employee earned was accounted for separately and individually; he was entitled to the amount paid to the trustee on account of his individual labor; and (4) that inevitably, as sure as death, there was to come a point of time when the sum remitted to the trustee on account of each individual's work would be paid to that individual or his heirs.
13
In my judgment, it is impossible to distinguish, on the basis of the purpose of the priority provisions of the Bankruptcy Act, between these payments to the annuity plan and direct payments to the employee for his labors. The Court, however, holds that payments to the plan do not satisfy the 'manifest purpose of the priority,' as that purpose was explained in Embassy Restaurant. This purpose, the Court says, was to enable employees, upon the bankruptcy of their employer, promptly to secure money directly due them in back wages and thereby to alleviate the hardship that unemployment brings. Embassy Restaurant demonstrates, the Court says, that since the contributions to the annuity plan were not immediately payable to the employees upon bankruptcy, they do not fall within the definition of 'wages' for priority purposes.
14
But the present case is materially different from Embassy Restaurant. In that case, the employee was never entitled to receive the sums which were paid into the fund on account of his labor. These sums and the sums paid by the employer for all other employees were used to provide life insurance, sick benefits, hospital and surgical payments, and other benefits. An employee was never entitled to demand and receive payment of sums that he had earned. These sums were not credited to him to be paid upon his death or retirement or other contingencies.
15
In a dissenting opinion in that case, Mr. Justice Black (joined by The Chief Justice and Mr. Justice Douglas) argued that the majority misconceived the nature of the payments into the fund in Embassy Restaurant and the purpose of the priority for wages. But we need not quarrel with the Court's conclusions in Embassy Restaurant, for purposes of the present case. Here, it is entirely clear that the sums paid and payable into the fund were payable to the individual employee. They were his. They were part of his wages. Only the time of receipt was deferred until retirement at age 60, separation from the industry, death, etc.
16
There is nothing whatever in § 64 to indicate, as the Court would have us believe, that 'wages' lose their priority position if they are not immediately payable upon the event of bankruptcy. There is no basis whatever, except this Court's ipse dixit in this case, to say that the priority is available only to provide 'immediate support for workmen during the period of financial distress.' Embassy Restaurant is not authority for this. Embassy Restaurant is authority for the proposition that when the 'wages' are never payable to the employee, but benefit him only through providing life insurance or various types of services, the priority is not applicable. That is not the present case.
17
I take it that the purpose of the 'wages' priority—just as in the case of all other priorities—is to give a preferred status to claims deemed particularly meritorious, so that the chances that the claimant will recover the sums due him on such claims will be enhanced. 'Wages * * * due to workmen' are in this category, as are other claims such as costs of administering the bankruptcy estate and taxes owed to the United States or any State. The lower court cases which the majority claims are 'in agreement' as to the purpose of the 'wages' priority1 are probably not in agreement with each other at all and certainly not in agreement with the majority's restrictive definition of that purpose. In re Lawsam Electric Co., Inc., 300 F. 736 (D.C.N.Y.), Judge Learned Hand said: 'The statute was intended to favor those who could not be expected to know anything of the credit of their employer, but must accept a job as it comes, to whom the personal factor in employment is not a practicable consideration.' In re Estey, 6 F.Supp. 570 (D.C.N.Y.), it was said that 'the intention of Congress was plainly to give special protection to a class of wage-earners who generally have no substantial savings or other reserves to fall back on in case of adversity and therefore cannot afford to lose.' Certainly neither of these statements, which the majority cites in support of its definition of the purpose of the 'wages' priority, constitutes authority for the proposition that the priority was intended only to alleviate the hardship caused by unemployment following immediately upon the bankruptcy of an employer. As a matter of fact, recognizing the priority does not assure immediate payment. Payment is made upon interim or final distribution of the estate. Priority merely increases the prospects of recovery.2
18
The Court's decision in this case, in my opinion, deprives the workers here concerned of the protection which congress accorded their claims. We should reverse the judgment below.
1
Section 64a, 30 Stat. 563 (as amended by Act of June 22, 1938, 52 Stat. 874, and Act of July 30, 1956, 70 Stat. 725), 11 U.S.C. § 104(a), provides in relevant part:
'The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be * * * (2) wages and commissions, not to exceed $600 to each claimant, which have been earned within three months before the date of the commencement of the proceeding, due to workmen, servants, clerks, or traveling or city salesmen on salary or commission basis, whole or part time, whether or not selling exclusively for the bankrupt; and for the purposes of this clause, the term 'traveling or city salesman' shall include all such salesmen, whether or not they are independent contractors selling the products or services of the bankrupt on a commission basis, with or without a drawing account or formal contract * * *.'
2
The cases in the lower courts are in agreement as to the purpose of § 64a(2). See 3 Collier on Bankruptcy, 64.201, at 2112, nn. 7—9 and related text (14th ed., 1967).
3
The plan also provides that no person claiming by or through any participant shall have any right, title, or interest in or to the annuity fund. Section 9(f) of the plan imposes additional limitations: 'The benefits payable to Participants or beneficiaries under this Plan cannot be assigned and shall not be liable to attachment, garnishment or other process, and shall not be taken, appropriated or applied by any legal or equitable process, or by operation of law, to pay any debt or liability of the Participant or of any beneficiary or next-of-kin who may have a right thereunder, either before or after payment.'
It seems agreed in this case that the employer contributions to the fund are not taxable to the employee at the time they are made, but only when later received as benefits.
4
The history of § 64a(2) is dealt with in both the majority and dissenting opinions in United States v. Embassy Restaurant, Inc., 359 U.S. 29, 79 S.Ct. 554, 3 L.Ed.2d 601 (1959). For a more complete consideration see 3 Collier on Bankruptcy 64.01, 64.201 (14th ed., 1967).
5
Act of November 28, 81 Stat. 511.
6
H.R. 2076, 90th Cong., 1st Sess. (1967); H.R. 991, 89th Cong., 1st Sess. (1965); H.R. 1784, 88th Cong., 1st Sess. (1963); H.R. 66, 88th Cong., 1st Sess. (1963); H.R. 2274, 87th Cong., 1st Sess. (1961); and H.R. 9831, 86th Cong., 2d Sess. (1960).
7
It is instructive that workmen's compensation claims were not provable in bankruptcy until 1934, when they were given a seventh priority. In 1938 the priority for compensation claims was abolished. Moreover, taxes and Social Security contributions which are withheld from wages are entitled to a fourth priority as taxes rather than a second priority as wages.
1
See ante, at 227, n. 2.
2
Even if I were to accept the majority's definition of the purpose of the 'wages' priority, I still could not agree with the decision to affirm. For the majority indulges in a major, unexplained, assumption with which I do not agree: the majority assumes, without any basis that I can find in the record or anywhere else, that upon the bankruptcy of an employer an employee is likely to suffer the hardship of unemployment yet unlikely to suffer the hardship of accepting a job outside the electrical industry or with an employer who is not covered by the collective bargaining contract and annuity plan. Of course, if an employee does choose, upon the bankruptcy of his employer, to seek work with an employer not covered by the contract, he ceases to participate in the annuity plan and may, under the terms of that plan, claim the monies that have accrued in his account. In this plausible and, I would suspect, common situation, the employee receives his annuity account 'immediately' after the bankruptcy. I see no significant difference—and certainly the majority suggests none—between payments that may alleviate the hardship of unemployment caused by bankruptcy and payments that may alleviate the hardship of unattractive employment after a discharge caused by bankruptcy.
| 1112
|
391 U.S. 341
88 S.Ct. 1507
20 L.Ed.2d 625
In the Matter of Buddy Lynn WHITTINGTON, Petitioner.
No. 701.
Argued April 2, 1968.
Decided May 20, 1968.
Jack Supman and Daniel A. Rezneck, for petitioner.
E. Raymond Morehart, Lancaster, Ohio, and Merritt W. Green, Toledo, Ohio, for respondent.
PER CURIAM.
1
Petitioner, who was 14 years old at the time, was adjudged a delinquent by the Juvenile Court of Fairfield County, Ohio, on September 7, 1966, on the basis of the trial judge's finding that there was 'probable cause' to believe that he had committed a crime that would be a felony if committed by an adult, namely, second-degree murder. Petitioner appealed to the Ohio Court of Appeals for Fairfield County, contending that the proceeding in the Juvenile Court which resulted in the order adjudicating him a delinquent violated his rights under the Due Process Clause of the Fourteenth Amendment. Specifically he argued that he had been determined to be a delinquent on the basis of an unconstitutionally low standard of proof, and that he had been denied his constitutional rights to trial by jury, to an impartial tribunal, and to bail pending disposition of the case against him; he also contended that his privilege against self-incrimination had been violated by the admission into evidence against him of statements made in response to questioning from police officers. The Ohio Court of Appeals rejected these contentions and affirmed the judgment of the Juvenile Court on January 3, 1967. 13 Ohio App.2d 11, 223 N.E.2d 333. On March 15, 1967, the Supreme Court of Ohio, sua sponte, dismissed petitioner's further appeal on the ground that it presented 'no substantial constitutional question.' Petitioner then filed a petition for certiorari in this Court, which we granted, 389 U.S. 819, 88 S.Ct. 112, 19 L.Ed.2d 69 (1967), raising the same issues presented in the Ohio courts.
2
Under Ohio law an adjudication that a child is a delinquent can have numerous substantial consequences. For example, once such a determination is made the Juvenile Court may place the child in a variety of state institutions or in a foster home. Ohio Rev. Code § 2151.35. Another alternative disposition in a case where the child has been found to have committed a felony is for the Juvenile Court to bind the child over to the Court of Common Pleas for trial under the criminal statutes applicable to adults. Ohio Rev. Code § 2151.26.* At the time the petition for certiorari was filed in this case on April 11, 1967, no disposition beyond the adjudication itself and ordering of a physical and mental examination of petitioner had been made by the Juvenile Court. We have since been informed by the parties that petitioner has been bound over for trial as an adult and that he has been indicted for the crime of first-degree murder.
3
The State argues vigorously that, because of the disposition subsequently made by the Juvenile Court, the proceeding at which the determination of delinquency was made was merely the equivalent of a probable cause hearing for an adult. Petitioner, on the other hand, asserts that his adjudication as a delinquent is final for purposes of appellate review and that substantial consequences of that decision continue despite the supervening transfer of jurisdiction over petitioner to the adult criminal courts. The resolution of this dispute is crucial to many of the issues presented by petitioner, since, for example, in ordinary probable cause hearings involving adults there is no right to either trial by jury or a finding of guilt beyond a reasonable doubt. The unresolved question under Ohio law is not whether the adjudication of delinquency is a final, appealable order. The Ohio Court of Appeals considered that issue and ruled that the order is appealable, and the Ohio Supreme Court necessarily accepted this conclusion because its dismissal of the appeal was not based on the jurisdictional issue. The question which the Ohio courts have not settled is what, if any, effect the 'disposition' order, entered after their decisions on the appeal and after the petition for certiorari was filed here, has upon the prior delinquency determination made by the Juvenile Court.
4
On the constitutional issues, petitioner relies havily on In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, which was decided on May 15, 1967, some two months after the dismissal by the Ohio Supreme Court in this case. In Gault, this Court held squarely, for the first time, that various of the federal constitutional guarantees accompanying ordinary criminal proceedings were applicable to state juvenile court proceedings where possible commitment to a state institution was involved. Because the Ohio courts have not had the opportunity to assess the impact of that decision on petitioner's claims, we deem it appropriate to vacate the judgment of the Ohio Court of Appeals and remand the case for reconsideration in light of Gault. Upon such remand, the Ohio court may, of course, also consider the impact, if any, on the questions raised by petitioner of the intervening order of the Juvenile Court requiring him to face trial in the adult courts.
5
The judgment is vacated and the case is remanded to the Ohio Court of Appeals for Fairfield County for consideration in light of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
6
Vacated and remanded.
7
Mr. Justice WHITE, with whom Mr. Justice BLACK joins, dissenting.
8
I would dismiss this case because the determination of delinquency which we have before us is not a final judgment within our appellate jurisdiction over proceedings in state courts. 28 U.S.C. § 1257. Eastman v. State of Ohio, 299 U.S. 505, 57 S.Ct. 21, 81 L.Ed. 374 (1936); Polakow's Realty Experts, Inc. v. Alabama, 319 U.S. 750, 63 S.Ct. 1155, 87 L.Ed. 1705 (1943); see Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937); Edwards v. People of State of California, 314 U.S. 160, 171, 62 S.Ct. 164, 86 L.Ed. 119 (1941); R. Stern & E. Gressman, Supreme Court Practice § 3—15 (3d ed. 1962); Robertson & Kirkham's Jurisdiction of the Supreme Court of the United States, § 39 (R. Wolfson & P. Kurland, eds. 1951). The Juvenile Court's formal order found petitioner to be delinquent but made no final disposition of his case; it did not relinquish jurisdiction to the adult court, place petitioner on probation, or commit him to a juvenile institution. Since that time, however, the Juvenile Court has entered an order relinquishing jurisdiction to the adult court. That order is now on appeal in the courts of Ohio, and that order may be a final judgment of the Juvenile Court falling within the reach of our appellate jurisdiction. If that order were properly before us now, it would raise the question of the constitutionality of the procedures employed to determine delinquency where such a determination is a prerequisite (as it may be under Ohio law) to relinquishing jurisdiction to the adult court. I do not believe that turnover proceedings require all of the formalities which should attend a determination of delinquency for purposes of final disposition in the Juvenile Court itself. I also have great doubt that the finding of delinquency in this case, and any consequences which normally attach to it, would in any way survive a trial and a not guilty verdict in the adult courts.
*
In addition, Ohio specifically provides that a delinquency judgment may be considered by any court with respect to sentencing or probation in subsequent criminal proceedings. Ohio Rev.Code § 2151.35. For a general discussion of the practical consequences for juveniles of a delinquency record, see the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 66—67, 75 (1967), and its Task Force Report: Juvenile Delinquency and Youth Crime 92—93, 360 361, 385, 417—418 (1967).
| 12
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391 U.S. 68
88 S.Ct. 1509
20 L.Ed.2d 436
Thelma LEVY, etc., Appellant,v.LOUISIANA, etc., et al.
No. 508.
Decided May 20, 1968.
May 20, 1968.
Rehearing Denied Oct. 14, 1968.
See 89 S.Ct. 65.
Norman Dorsen, New York City, for appellant.
William A. Porteous, III, New Orleans, La., for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Appellant sued on behalf of five illegitimate children to recover, under a Louisiana statute.1 (La.Civ.Code Ann. Art. 2315 (Supp.1967)) for two kinds of damages as a result of the wrongful death of their mother: (1) the damages to them for the loss of their mother; and (2) those based on the survival of a cause of action which the mother had at the time of her death for pain and suffering. Appellees2 are the doctor who treated her and the insurance company.
2
We assume in the present state of the pleadings that the mother, Louise Levy, gave birth to these five illegitimate children and that they lived with her; that she treated them as a parent would treat any other child; that she worked as a domestic servant to support them, taking them to church every Sunday and enrolling them, at her own expense, in a parochial school. The Louisiana District Court dismissed the suit. The Court of Appeal affirmed, holding that 'child' in Article 2315 means 'legitimate child,' the denial to illegitimate children of 'the right to recover' being 'based on morals and general welfare because it discourages bringing children into the world out of wedlock.' 192 So.2d 193, 195. The Supreme Court of Louisiana denied certiorari. 250 La. 25, 193 So.2d 530.
3
The case is here on appeal (28 U.S.C. § 1257(2)); and we noted probable jurisdiction, 389 U.S. 925, 88 S.Ct. 290, 19 l.Ed.2d 276, the statute as construed having been sustained against challenge under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
4
We start from the premise that illegitimate children are not 'nonpersons.' They are humans, live, and have their being.3 They are clearly 'persons' within the meaning of the Equal Protection Clause of the Fourteenth Amendment.4
5
While a State has broad power when it comes to making classifications (Ferguson v. Skrupa, 372 U.S. 726, 732, 83 S.Ct. 1028, 1032, 10 L.Ed.2d 93), it may not draw a line which constitutes an invidious discrimination against a particular class. See Skinner v. State of Oklahoma, 316 U.S. 535, 541—542, 62 S.Ct. 1110, 1113—1114, 86 L.Ed. 1655. Though the test has been variously stated, the end result is whether the line drawn is a rational one. See Morey v. Doud, 354 U.S. 457, 465—466, 77 S.Ct. 1344, 1349—1351, 1 L.Ed.2d 1485.
6
In applying the Equal Protection Clause to social and economic legistion, we give great latitude to the legislature in makig classifications. Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563; Morey v. Doud, supra, 354 U.S., at 465—466, 77 S.Ct., at 1349—1351. Even so, would a corporation, which is a 'person,' for certain purposes, within the meaning of the Equal Protection Clause (Pembina Consol. Silver Mining & Milling Co. v. Pennsylvania, 125 U.S. 181, 188, 8 S.Ct. 737, 740, 31 L.Ed. 650) be required to forgo recovery for wrongs done its interests because its incorporators were all bastards? However that might be, we have been extremely sensitive when it comes to basic civil rights (Skinner v. State of Oklahoma, supra, 316 U.S., at 541, 62 S.Ct., at 1113; Harper v. Virginia State Board of Elections, 383 U.S. 663, 669—670, 86 S.Ct. 1079, 1082 1083, 16 L.Ed.2d 169) and have not hesitated to strike down an invidious classification even though it had history and tradition on its side. (Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Harper v. Virginia State Board of Elections, supra, 383 U.S. at 669, 86 S.Ct., at 1082.) The rights asserted here involve the intimate, familial relationship between a child and his own mother. When the child's claim of damage for loss of his mother is in issue, why, in terms of 'equal protection,' should the tortfeasors go free merely because the child is illegitimate? Why should the illegitimate child be denied rights merely because of his birth out of wedlock? He certainly is subject to all the responsibilities of a citizen, including the payment of taxes and conscription under the Selective Service Act. How under our constitutional regime can he be denied correlative rights which other citizens enjoy? Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would.5
7
We conclude that it is invidious to discriminate against them when no action, conduct, or demeanor of theirs6 is possibly relevant to the harm that was done the mother.7
8
Reversed.
1
'Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
'The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
'The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
'As used in this article, the words 'child,' 'brother,' 'sister,' 'father,' and 'mother' include a child, brother, sister, father, and mother, by adoption, respectively.'
2
The State of Louisiana was dismissed from the action and exceptions relating to the Charity Hospital, at which the mother was treated, were continued indefinitely. No appeal was taken with respect to either of those defendants.
3
See Note, The Rights of Illegitimates Under Federal Statutes, 76 Harv.L.Rev. 337 (1962).
4
No State shall 'deny to any person within its jurisdiction the equal protection of the laws.'
5
Under Louisiana law both parents are under a duty to support their illegitimate children. La.Civ.Code Ann. Arts. 239, 240 (1952).
6
We can say with Shakespeare: 'Why bastard, wherefore base? When my dimensions are as well compact, My mind as generous, and my shape as true, As honest madam's issue? Why brand they us With base? with baseness? bastardy? base, base?' King Lear, Act I, Scene 2.
7
Under Louisiana's Workmen's Compensation Act (La.Rev.Stat.Ann. 23:1231, 23:1252, 23:1253 (1964)) an illegitimate child, who is a dependent member of the deceased parent's family, may recover compensation for his death. See Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83, 22 So.2d 842 (1945). Employers are entitled to recover from a wrongdoer workmen's compensation payments they make to the deceased's dependent illegitimate children. See Board of Commissioners, etc. v. City of New Orleans, 223 La. 199, 65 So.2d 313 (1953); Thomas v. Matthews Lumber Co., 201 So.2d 357 (Ct.App.La.1967).
| 12
|
391 U.S. 404
88 S.Ct. 1705
20 L.Ed.2d 697
MENOMINEE TRIBE OF INDIANS, Petitioner,v.UNITED STATES.
No. 187.
Reargued April 26, 1968.
Decided May 27, 1968.
Charles A. Hobbs, Washington, D.C., for petitioner.
Louis F. Claiborne, Washington, D.C., for respondent.
Bronson C. LaFollette, Madison, Wis., for State of Wisconsin, as amicus curiae, at the invitation of the Court.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The Menominee Tribe of Indians was granted a reservation in Wisconsin by the Treaty of Wolf River in 1854. 10 Stat. 1064. By this treaty the Menominees retroceded certain lands they had acquired under an earlier treaty and the United States confirmed to them the Wolf River Reservation 'for a home, to be held as Indian lands are held.' Nothing was said in the 1854 treaty about hunting and fishing rights. Yet we agree with the Court of Claims1 that the language 'to be held as Indian lands are held' includes the right to fish and to hunt. The record shows that the lands covered by the Wolf River Treaty of 1854 were selected precisely because they had an abundance of game. See Menominee Tribe of Indians v. United States, 95 Ct.Cl. 232, 240—241 (1941). The essence of the Treaty of Wolf River was that the Indians were authorized to maintain on the new lands ceded to them as a reservation their way of life which included hunting and fishing.2
2
What the precise nature and extent of those hunting and fishing rights were we need not at this time determine. For the issue tendered by the present decision of the Court of Claims, 388 F.2d 998, 179 Ct.Cl. 496, is whether those rights, whatever their precise extent, have been extinguished.
3
That issue arose because, beginning in 1962, Wisconsin took the position that the Menominees were subject to her hunting and fishing regulations. Wisconsin prosecuted three Menominees for violating those regulations and the Wisconsin Supreme Court held3 that the state regulations were valid, as the hunting and fishing rights of the Menominees had been abrogated by Congress in the Menominee Indian Termination Act of 1954. 68 Stat. 250, as amended, 25 U.S.C. §§ 891—902.
4
Thereupon the tribe brought suit in the Court of Claims against the United States to recover just compensation for the loss of those hunting and fishing rights.4 The Court of Claims by a divided vote held that the tribe possessed hunting and fishing rights under the Wolf River Treaty; but it held, contrary to the Wisconsin Supreme Court, that those rights were not abrogated by the Termination Act of 1954. We granted the petition for a writ of certiorari in order to resolve that conflict between the two courts. 389 U.S. 811, 88 S.Ct. 51, 19 L.Ed.2d 67. On oral argument both petitioner and respondent urged that the judgment of the Court of Claims be affirmed. The State of Wisconsin appeared as amicus curiae and argued that that judgment be reversed.
5
In 1953 Congress by concurrent resolution5 instructed the Secretary of the Interior to recommend legislation for the withdrawal of federal supervision over certain American Indian tribes, including the Menominees. Several bills were offered, one for the Menominee Tribe that expressly preserved hunting and fishing rights.6 But the one that became the Termination Act of 1954, viz., H.R. 2828, did not mention hunting and fishing rights. Moreover, counsel for the Menominees spoke against the bill, arguing that its silence would by implication abolish those hunting and fishing rights.7 It is therefore argued that they were abolished by the Termination Act.
6
The purpose of the 1954 Act was by its terms 'to provide for orderly termination of Federal supervision over the property and members' of the tribe. Under its provisions, the tribe was to formulate a plan for future control of tribal property and service functions theretofore conducted by the United States. On or before April 30, 1961, the Secretary was to transfer to a tribal corporation or to a trustee chosen by him all property real and personal held in trust for the tribe by the United States.8
7
The Menominees submitted a plan, looking toward the creation of a county in Wisconsin out of the former reservation and the creation by the Indians of a Wisconsin corporation to hold other property of the tribe and its members. The Secretary of the Interior approved the plan9 with modifications; the Menominee Enterprises, Inc., was incorporated;10 and numerous ancillary laws were passed by Wisconsin integrating the former reservation into its county system of government. The Termination Act provided that after the transfer by the Secretary of title to the property of the tribe, all federal supervision was to end and 'the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.'
8
It is therefore argued with force that the Termination Act of 1954, which became fully effective in 1961, submitted the hunting and fishing rights of the Indians to state regulation and control. We reach, however, the opposite conclusion. The same Congress that passed the Termination Act also passed Public Law 280, 67 Stat. 588, as amended, 18 U.S.C. § 1162. The latter came out of the same committees of the Senate and the House as did the Termination Act; and it was amended11 in a way that is critical here only two months after the Termination Act became law. As amended, Public Law 280 granted designated States, including Wisconsin, jurisdiction 'over offenses committed by or against Indians in the areas of Indian country' named in the Act, which in the case of Wisconsin was described as 'All Indian country within the State,' But Public Law 280 went on to say that 'Nothing in this section * * * shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.' (Emphasis added.) That provision on its face contains no limitation; it protects any hunting, trapping, or fishing right granted by a federal treaty. Public Law 280, as amended, became the law in 1954, nearly seven years before the Termination Act became fully effective in 1961. In 1954, when Public Law 280 became effective, the Menominee Reservation was still 'Indian country' within the meaning of Public Law 280.
9
Public Law 280 must therefore be considered in pari materia with the Termination Act. The two Acts read together mean to us that, although federal supervision of the tribe was to cease and all tribal property was to be transferred to new hands, the hunting and fishing rights granted or preserved by the Wolf River Treaty of 185412 survived the Termination Act of 1954.
10
This construction is in accord with the overall legislative plan. The Termination Act by its terms provided for the 'orderly termination of Federal supervision over the property and members' of the tribe. 25 U.S.C. § 891. (Emphasis added.) The Federal Government ceded to the State of Wisconsin its power of supervision over the tribe and the reservation lands, as evident from the provision of the Termination Act that the laws of Wisconsin 'shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within (its) jurisdiction.'
11
The provision of the Termination Act (25 U.S.C. § 899) that 'all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe' plainly refers to the termination of federal supervision. The use of the word 'statutes' is potent evidence that no treaty was in mind.
12
We decline to construe the Termination Act as a backhanded way a abrogating the hunting and fishing rights of these Indians. While the power to abrogate those rights exists (see Lone Wolf v. Hitchcock, 187 U.S. 553, 564—567, 23 S.Ct. 216, 220—222, 47 L.Ed. 299) 'the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.' Pigeon River, etc., Co. v. Charles W. Cox, Limited, 291 U.S. 138, 160, 54 S.Ct. 361, 367, 78 L.Ed. 695. See also Squire v. Capoeman, 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883.
13
Our conclusion is buttressed by the remarks of the legislator chiefly responsible for guiding the Termination Act to enactment, Senator Watkins, who stated upon the occasion of the signing of the bill that it 'in no way violates any treaty obligation with this tribe.'13
14
We find it difficult to believe that Congress, without explicit statement, would subject the United States to a claim for compensation14 by destroying a property rights conferred by treaty, particularly when Congress was purporting by the Termination Act to settle the Government's financial obligations toward the Indians.15
15
Accordingly the judgment of the Court of Claims is affirmed.
16
Affirmed.
17
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
18
Mr. Justice STEWART, with whom Mr. Justice BLACK joins, dissenting.
19
By the Treaty of Wolf River in 1854, 10 Stat. 1064, the United States granted to the Menominee Tribe of Indians a reservation 'to be held as Indian lands are held.' As the Court says, this language unquestionably conferred special hunting and fishing rights within the boundaries of the reservation. One hundred years later, in the Menominee Indian Termination Act of 1954, 68 Stat. 250, 25 U.S.C. §§ 891—902, Congress provided for the termination of the reservation and the transfer of title to a tribal corporation. The Act provided that upon termination of the reservation,
20
'(T)he laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.' 25 U.S.C. § 899.1
21
The reservation was formally terminated on April 30, 1961, seven years after the Termination Act, and the State of Wisconsin has ever since subjected the Menominees, just as any other citizens, to its hunting and fishing regulations. State v. Sanapaw, 21 Wis.2d 377, 124 N.W.2d 41.
22
The Menominees instituted this proceeding against the United States, asking compensation for the taking of their special rights. Shoshone Tribe, etc. v. United States, 299 U.S. 476, 57 S.Ct. 244, 81 L.Ed. 360. The Court of Claims denied compensation on the ground that the Termination Act had not in fact extinguished those rights, and that they remained immune from regulation by Wisconsin. The Court today agrees. I do not.
23
The statute is plain on its face: after termination the Memominees are fully subject to state laws just as other citizens are, and no exception is made for hunting and fishing laws. Nor does the legislative history contain any indication that Congress intended to say anything other than what the unqualified words of the statute express.2 In fact two bills which would have explicitly preserved hunting and fishing rights3 were rejected in favor of the bill ultimately adopted4—a bill which was opposed by counsel for the Menominees because it failed to preserve their treaty rights.5
24
The Court today holds that the Termination Act does not mean what it says. The Court's reason for reaching this remarkable result is that it finds 'in pari materia' another statute which, I submit, has nothing whatever to do with this case.
25
That statute, Public Law 280, 67 Stat. 588, as amended, 68 Stat. 795, 18 U.S.C. § 1162 and 28 U.S.C. § 1360, granted to certain States, including Wisconsin, general jurisdiction over 'Indian country' within their boundaries.6 Several exceptions to the general grant were enumerated, including an exception from the grant of criminal jurisdiction for treaty-based hunting and fishing rights. 18 U.S.C. § 1162(b). But this case does not deal with state jurisdiction over Indian country; it deals with state jurisdiction over Indians after Indian country has been terminated. Whereas Public Law 280 provides for the continuation of the special hunting and fishing rights while a reservation exists, the Termination Act provides for the applicability of all state laws without exception after the reservation has disappeared.7
26
The Termination Act by its very terms provides:
27
'(A)ll statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe * * *.' 25 U.S.C. § 899.
28
Public Law 280 is such a statute. It has no application to the Menominees now that their reservation is gone.8
29
The 1854 Treaty granted the Menominees special hunting and fishing rights. The 1954 Termination Act, by subjecting the Menominees without exception to state law, took away those rights. The Menominees are entitled to compensation.
30
I would reverse the judgment of the Court of Claims.
1
Menominee Tribe of Indians v. United States, 388 F.2d 998, 1002, 179 Ct.Cl. 496, 503—504.
2
As stated by the Supreme Court of Wisconsin:
'It would seem unlikely that the Menominees would have knowingly relinquished their special fishing and hunting rights which they enjoyed on their own lands, and have accepted in exchange other lands with respect to which such rights did not extend. They undoubtedly believed that these rights were guaranteed to them when these other lands were ceded to them 'to be held as Indian lands are held.' Construing this ambiguous provision of the 1854 treaty favorably to the Menominees, we determine that they enjoyed the same exclusive hunting rights free from the restrictions of the state's game laws over the ceded lands, which comprised the Menominee Indian Reservation, as they had enjoyed over the lands ceded to the United States by the 1848 treaty.' State v. Sanapaw, 21 Wis.2d 377, 383, 124 N.W.2d 41, 44 (1963).
The Court said in United States v. Winans, 198 U.S. 371, 380 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089, '(W)e will construe a treaty with the Indians as 'that unlettered people' understood it, and 'as justice and reason demand, in all cases where power is exerted by the strong over those to whom they owe care and protection,' and counterpoise the inequality 'by the superior justice which looks only to the substance of the right, without regard to technical rules."
As the Solicitor General points out in his brief, the words 'to be held as Indian lands are held' sum up in a single phrase the familiar provisions of earlier treaties which recognized hunting and fishing as normal incidents of Indian life. See Treaty of January 3, 1786, with the Choctaws, 7 Stat. 22; Treaty of January 31, 1786, with the Shawnees, 7 Stat. 27; Treaty of January 9, 1789, with the Wyandots, 7 Stat. 29; Treaty of August 3, 1795, with the Wyandots, 7 Stat. 52; Treaty of November 10, 1808, with the Osages, 7 Stat. 109; Treaty of August 24, 1835, with the Comanches, 7 Stat. 475.
3
State v. Sanapaw, 21 Wis.2d 377, 124 N.W.2d 41.
4
See Shoshone Tribe, etc. v. United States, 299 U.S. 476, 57 S.Ct. 244, 81 L.Ed. 360.
5
H.R.Con.Res. 108, 83d Cong., 1st Sess., 67 Stat. B132.
6
S. 2813 and H.R. 7135, 83d Cong., 2d Sess.
7
Joint Hearings, Subcommittees of Committees on Interior and Insular Affairs, 83d Cong., 2d Sess., Pt. 6, on S. 2813, H.R. 2828, and H.R. 7135, pp. 697, 704.
8
The Termination Act also provided for a closing of the membership roll of the tribe with distribution to the enrollees of certificates of beneficial interest in the tribal property. The roll was closed in December 1957. 22 Fed.Reg. 9951.
9
26 Fed.Reg. 3726.
10
Wisconsin questions whether Menominee Enterprises, Inc., to which all tribal assets were conveyed pursuant to the termination plan (26 Fed.Reg. 3726), should be viewed as the successor entity to the tribe and the present holder of the hunting and fishing rights, and, if so, to what extent the corporation or the tribal members thereof can withhold or parcel out these rights.
The Menominees, on the other hand, claim the rights are held by Menominee Indian Tribe of Wisconsin, Inc., a tribal body organized in 1962. Its Articles of Incorporation provide for four categories of membership (Article X): Menominee Indian membership (§ 1(a)) (all Menominee Indians appearing on the final roll of the tribe approved by the Secretary of the Interior, n. 8, supra); Associate membership of Menominee descendants (§ 1(b)) (any descendants of enrolled Menominee Indians or recipients through inheritance of Menominee Enterprises securities); Associate membership of persons married to enrolled Menominees (§ 1(c)); and Associate membership of non-Indians (§ 1(d)). In March 1968, the first category was enlarged by amendment of Art. X, § 1(a), of the Articles of Incorporation to include all descendants of enrolled Menominee Indians with at least one-quarter Menominee blood, one or both of whose parents resided on the Menominee Reservation at the time of the descendant's birth. The corporation also adopted a resolution defining those persons entitled to exercise the hunting and fishing rights, which provided:
'All tribal members, as defined in Article X of the Articles of Incorporation, Section 1(a), and only such members, shall have the right to exercise tribal hunting and fishing rights, subject to tribal regulations;
'PROVIDED, HOWEVER, that any member who violates any tribal hunting or fishing regulation may upon finding of the Council of Chiefs be declared ineligible to exercise such rights, for such period of time as the Council of Chiefs may specify.'
We believe it inappropriate, however, to resolve the question of who the beneficiaries of the hunting and fishing rights may be; and we expressly reserve decision on it. Neither it nor the nature of those rights nor the extent, if any, to which Wisconsin may regulate them has been fully briefed and argued by the parties either in the Court of Claims or in this Court, and the posture of the present litigation does not require their resolution.
11
As originally enacted Public Law 280 exempted the Menominees from its provisions. The House Reports on Pub.L. 280 (H.R. 1063, 83d Cong., 1st Sess.) and on Pub.L. 661 (H.R. 9821, 83d Cong., 2d Sess.) indicate that the Menominees had specifically asked for exemption from the provisions of the bill that eventually became Pub.L. 280, on the ground that their tribal law and order program was functioning satisfactorily. Subsequently, the tribe reconsidered its position and sponsored H.R. 9821, amending Pub.L. 280 to extend its provisions to the Menominee Reservation. The Department of the Interior recommended favorable action on the proposed amendment, and the amendment was enacted into law on August 24, 1954 (68 Stat. 795), two months after the passage of the Menominee Termination Act. See H.R.Rep.No. 848, 83d Cong., 1st Sess., 6 (1953); H.R.Rep.No. 2322, 83d Cong., 2d Sess. (1954).
12
The Act creating the Wisconsin Territory (5 Stat. 10) contained an express reservation of Indian rights, though both the Enabling Act of 1846 (9 Stat. 56), and the Act admitting Wisconsin to the Union in 1848 (9 Stat. 233) were silent on the subject. It was only a few months after Wisconsin achieved statehood that the Menominees ceded all of their Wisconsin lands to the United States in anticipation of the tribe's removal to other lands west of the Mississippi. Treaty of October 18, 1848, 9 Stat. 952. But as already noted, this removal never fully succeeded, and the Menominee Reservation created by the Treaty of Wolf River was carved out of the lands the Indians had previously ceded to the United States.
The State argues that since it was admitted into the Union on an equal footing with the original States, its sovereignty over the lands designated in 1854 as the Menominee Reservation attached in some degree between the time the Indians ceded all of their Wisconsin lands to the United States in 1848 and the time when the United States ceded back a certain portion of those lands for the reservation in 1854. Wisconsin contends that any hunting or fishing privileges guaranteed the Menominees free from state regulation did not survive the dissolution of the reservation and the termination of the trusteeship of the United States over the Menominees. At that time, it is said, Wisconsin's long dormant power to exercise jurisdiction over those reservation lands was awakened by the termination of the reservation.
If any hiatus in title to the reservation lands in question occurred between 1848 and 1854, any jurisdiction that the State may have acquired over those would not have survived the Treaty of 1854. The Treaty of Wolf River was, under Article VI of the Constitution, the 'supreme law of the land,' and the exercise of rights on reservation lands guaranteed to the tribe by the Federal Government would not be subject to state regulation, at least in absence of a cession by Congress. Cf. Ward v. Race Horse, 163 U.S. 504, 514, 16 S.Ct. 1076, 1079, 41 L.Ed. 244. In this connection it should be noted that in 1853 the Wisconsin Legislature consented to the establishment of the Menominee Reservation subsequently confirmed by the 1854 Treaty (1853 Wis.Jt.Res., c. I), an action which can be fairly construed as a disclaimer of any jurisdiction the State may have possessed.
13
100 Cong.Rec. 8538.
14
See n. 4, supra.
15
Compare the hearings on the Klamath Termination bill, which took place shortly before the Menominee bills were reached, in which Senator Watkins expressed the view that perhaps the Government should 'buy out' the Indians' hunting and fishing rights rather than preserve them after termination. See Joint Hearings, Subcommittees of the Committees on Interior and Insular Affairs, 83d Cong., 2d Sess., Pt. 4, on S. 2745 and H.R. 7320, pp. 254—255.
1
The Termination Act was adopted in response to an earlier congressional resolution which stated in part:
'(I)t is the policy of Congress, as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States * * *.' 67 Stat. B132.
2
I cannot attach any significant weight to an offhand remark in a speech made by one Senator after the enactment of the bill. Ante, at 413.
It is, of course, irrelevant that the legislative history reveals no intention by the Congress to incur a financial obligation to the Menominees. If what the Congress did took away the Menominees' property rights, then regardless of congressional intent they are entitled to compensation from the United States for the taking.
3
H.R. 7135 and S. 2813, 83d Cong., 2d Sess.
4
H.R. 2828, 83d Cong., 2d Sess.
5
'I think it is clear that (the bill) does affect those treaty rights and that those treaties are abrogated. Certainly it abolishes the tribal right to exclusive hunting and fishing privileges, because automatically upon the final termination date, the Menominee Reservation so far as hunting and fishing is concerned, would become subject to the laws of Wisconsin.' Joint Hearings on S. 2813, H.R. 2828, and H.R. 7135, Subcommittees of Committees on Interior and Insular Affairs, 83d Cong., 2d Sess., Pt. 6, pp. 692, 708.
6
'Indian country' is defined in 18 U.S.C. § 1151 as land within Indian reservations, dependent Indian communities, and Indian allotments.
Public Law 280 as originally enacted in 1953, 67 Stat. 588, did not include the Menominee reservation. In 1954 the statute was amended to include that reservation. 68 Stat. 795. From that time until the reservation was terminated in 1961, Public Law 280 governed the extent to which the State could assert jurisdiction over the Menominees on their reservation.
7
The only real relevance of Public Law 280 lies in its demonstration that when Congress wants to except treaty rights from jurisdictional grants, it knows how to do so. Cf. Klamath Termination Act, 68 Stat. 718, 25 U.S.C. § 564 et seq., enacted by the same Congress that enacted the Menominee Termination Act, which explicitly preserves fishing rights. 25 U.S.C. § 564m(b).
8
If, as the Court seems to say, the exceptions enumerated in Public Law 280 continue in effect after termination of Indian country, it follows that Wisconsin cannot now tax, or otherwise regulate the use of, property owned by the Memominees. 18 U.S.C. § 1162(b); 28 U.S.C. § 1360(b). Cf. Snohomish County v. Seattle Disposal Co., 70 Wash.2d 668, 425 P.2d 22, holding that Public Law 280 prohibits zoning regulation of a garbage dump on reservation land leased to non-Indians. Certiorari was denied, 389 U.S. 1016, 88 S.Ct. 585, 19 L.Ed.2d 662, MR. JUSTICE DOUGLAS, joined by MR. JUSTICE WHITE, dissenting.
| 12
|
391 U.S. 461
88 S.Ct. 1715
20 L.Ed.2d 748
WORLD AIRWAYS, INC. et al., Petitioners,v.PAN AMERICAN WORLD AIRWAYS, INC., et al. CIVIL AERONAUTICS BOARD, Petitioner, v. PAN AMERICAN WORLD AIRWAYS, INC., et al. AMERICAN SOCIETY OF TRAVEL AGENTS, INC., Petitioner, v. PAN AMERICAN WORLD AIRWAYS, INC., et al.
Nos. 800, 946, 969.
Supreme Court of the United States
Argued April 29 and 30, 1968.
May 27, 1968
Frank M. Wozencraft and Jerrold Scoutt, Jr., Washington, D.C., for petitioners.
Edward R. Neaher, New York City, for respondents.
PER CURIAM.
1
The judgment of the United States Court of Appeals for the Second Circuit, 380 F.2d 770, is affirmed by an equally divided Court.
2
Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
| 89
|
391 U.S. 418
88 S.Ct. 1717
20 L.Ed.2d 706
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, AFL-CIO, and Its LOCAL 22.
No. 796.
Argued April 30, 1968.
Decided May 27, 1968.
Norton J. Come, Washington, D.C., for petitioner.
Goldstein, Barkan, & Brodie, M. H. Goldstein, Philadelphia, Pa., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
One Holder, a member of respondent unions, filed with the National Labor Relations Board an unfair labor practice charge, alleging that Local 22 had violated § 8(b)(1)(A) of the National Labor Relations Act,1 61 Stat. 141, 29 U.S.C. § 158(b)(1)(A), by causing his employer to discriminate against him because he had engaged in protected activity with respect to his employment.2 The filing of this charge followed an accusation by Holder to Local 22 that its president had violated the constitution of the International. The local decided in favor of its president; but Holder did not pursue the intra-union appeals procedure that was available to him and filed the unfair labor practice charge instead, based on the same alleged violations by the president.
2
Section 5 of Article V of the constitution of the International Union, which was binding on Local 22, contained the following provision relative to grievances of union members:
3
'Every member * * * considering himself * * * aggrieved by any action of this Union, the (General Executive Board), a National Officer, a Local or other subdivision of this Union shall exhaust all remedies and appeals within the Union, provided by this Constitution, before he shall resort to any court or other tribunal outside of the Union.'
4
While Holder's charge was pending before the Board, Local 22 lodged a complaint in internal union proceedings against Holder alleging he had violated § 5 of Article V of the International's constitution by filing his charge with the Board before he had exhausted his internal remedies. After a hearing before Local 22, Holder was found guilty and expelled from both respondent unions. He then appealed to the General Executive Board of the International which affirmed the local's action on October 7, 1964.
5
On October 28, 1964, Holder filed a second charge with the Board, claiming his expulsion for filing the first charge was unlawful. That charge is the basis of the instant case.
6
A complaint issued; and the Board found that the respondent unions had violated § 8(b)(1)(A) of the Act by expelling Holder for filing a charge with the Board without first having exhausted the intra-union procedures. 159 N.L.R.B. 1065. It issued a remedial order, which the Court of Appeals refused to enforce, 3 Cir., 379 F.2d 702. The case is here on writ of certiorari, 389 U.S. 1034, 88 S.Ct. 781, 19 L.Ed.2d 821.
7
The important question is whether consistent with the applicable federal statutes a union may penalize one of its members for seeking the aid of the Board without exhausting all internal union remedies. There is a threshold question, however, concerning the adequacy of Holder's first or original charge to the Board against respondents. Holder charged discrimination practiced against him because, to use the words of the Regional Director as he paraphrased the charge in the complaint, Holder had engaged 'in certain protected activity' of an unspecified nature 'with respect to his employment.' It is pointed out that § 8(b)(1)(A) protects only 'the exercise of rights guaranteed by section 7';3 and that § 7 'says nothing about any right to file charges with the Board.' 379 F.2d, at 706. That, however, is not the issue. The charge by Holder that he was discriminated against because he had engaged 'in certain protected activity' was a sufficient way to allege an impairment of § 7 rights. 'The charge is not proof. It merely sets in motion the machinery of an inquiry.' NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9, 18, 63 S.Ct. 394, 400, 87 L.Ed. 579. Moreover, no issue was raised before the Board concerning the nature of the 'protected activity.' The answer of respondents insofar as the original charge is concerned said only that the charge made by Holder to the Board was based upon precisely the same facts as those on which his internal union charges against the president of the Local had been based. We must, therefore, assume that the initial charge was one within the ambit of § 7 and so plainly within it that no party undertook to question it.
8
The main issue in the case is whether Holder could be expelled for filing the charge with the Board without first having exhausted 'all remedies and appeals within the Union'4 as provided in § 5 of Article V of the constitution, already quoted.
9
Section 8(b)(1)(A) in its proviso5 preserves to a union 'the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.'
10
The Court of Appeals concluded that while this proviso would not permit a union to expel a member because he filed an unfair labor practice charge against the union, it permits a rule which gives the union 'a fair opportunity to correct its own wrong before the injured member should have recourse to the Board.' 379 F.2d, at 707.
11
We held in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123, that § 8(b)(1)(A) does not prevent a union from imposing fines on members who cross a picket line created to implement an authorized strike. The strike, we said, 'is the ultimate weapon in labor's arsenal for achieving agreement upon its terms' and the power to fine or expel a strikebreaker "is essential if the union is to be an effective bargaining agent." Id., at 181, 87 S.Ct. at 2007.
12
Thus § 8(b)(1)(A) assures a union freedom of self-regulation where its legitimate internal affairs are concerned. But where a union rule penalizes a member for filing an unfair labor practice charge with the Board other considerations of public policy come into play.
13
Section 10(b) of the Act, 61 Stat. 146, 29 U.S.C. § 160(b), forbids issuance of a complaint based on conduct occurring more than six months prior to filing of the charge—a provision promoting promptness. A proceeding by the Board is not to adjudicate private rights but to effectuate a public policy. The Board cannot initiate its own proceedings; implementation of the Act is dependent 'upon the initiative of individual persons.' Nash v. Florida Industrial Comm'n, 389 U.S. 235, 238, 88 S.Ct. 362, 365, 19 L.Ed.2d 438. The policy of keeping people 'completely free from coercion,' ibid., against making complaints to the Board is therefore important in the functioning of the Act as an organic whole. A restriction such as we find in § 5 of Article V of the International's constitution is contrary to that policy, as it is applied here. A healthy interplay of the forces governed and protected by the Act means that there should be as great a freedom to ask the Board for relief as there is to petition any other department of government for a redress of grievances.6 Any coercion used to discourage, retard, or defeat that access is beyond the legitimate interests of a labor organization. That was the philosophy of the Board in the Skura case, Local 138, International Union of Operating Engineers, 148 N.L.R.B. 679; and we agree that the overriding public interest makes unimpeded access to the Board the only healthy alternative, except and unless plainly internal affairs of the union are involved.
14
In the present case a whole complex of public policy issues was raised by Holder's original charge. It implicated not only the union but the employer. The employer might also have been made a party and comprehensive and coordinated remedies provided. Those issues cannot be fully explored in an internal union proceeding. There cannot be any justification to make the public processes wait until the union member exhausts internal procedures plainly inadequate to deal with all phases of the complex problem concerning employer, union, and employee member. If the member becomes exhausted, instead of the remedies, the issues of public policy are never reached and an airing of the grievance never had. The Court of Appeals recognized that this might be the consequence and said that resort to an intra-union remedy would not be required if it 'would impose unreasonable delay or hardship upon the complainant.' 379 F.2d, at 707.
15
The difficulty is that a member would have to guess what a court ultimately would hold. If he guessed wrong and filed the charge with the Board without exhausting internal union procedures, he would have no recourse against the discipline of the union. That risk alone is likely to chill the exercise of a member's right to a Board remedy and induce him to forgo his grievance or pursue a futile union procedure. That is the judgment of the Board; and we think it comports with the policy of the Act. That is to say, the proviso in § 8(b)(1)(A) that unions may design their own rules respecting 'the acquisition or retention of membership' is not so broad as to give the union power to penalize a member who invokes the protection of the Act for a matter that is in the public domain and beyond the internal affairs of the union.
16
The Court of Appeals found support for its contrary position in § 101(a)(4) of the Labor-Management Reporting and Disclosure Act of 1959.7 73 Stat. 522, 29 U.S.C. § 411(a)(4). While that provision prohibits a union from limiting the right of a member 'to institute an action in any court or in a proceeding before any administrative agency,' it provides that a member 'may be required to exhaust reasonable hearing procedures' 'not to exceed a four-month lapse of time.'
17
We conclude that 'may be required' is not a grant of authority to unions more firmly to police their members but a statement of policy that the public tribunals whose aid is invoked may in their discretion stay their hands for four months, while the aggrieved person seeks relief within the union. We read it, in other words, as installing in this labor field a regime comparable to that which prevails in other areas of law before the federal courts, which often stay their hands while a litigant seeks administrative relief before the appropriate agency.8
18
The legislative history is not very illuminating. Some members of the House who spoke indicated that there was room for judicial discretion whether to remit the member to available internal union remedies.9 In the Senate the fear was expressed that the new section would give unions power to punish their members for filing charges with the Board prior to exhaustion of their internal remedies.10 In the Senate the continuance of union grievance procedures under the new section was emphasized.11 It was indeed expressly stated by Senator John F. Kennedy reporting from the Conference Committee:12
19
'The 4-month limitation in the House bill also relates to restrictions imposed by unions rather than the rules of judicial administration or the action of Government agencies.'
20
Yet it plainly appears from those speaking for the Conference Report that a member was to be permitted to complain to the Board even before the end of the four-month period. Congressman Griffin reported:13
21
'(T)he proviso was not intended to limit in any way the right of a union member under the Labor-Management Relations Act of 1947, as amendmed, to file unfair labor practice charges against a union, or the right of the NLRB to entertain such charges, even though a 4-month period may not have elapsed.'
22
And on the Senate side, Senator Kennedy said that the proviso was not intended 'to invalidate the considerable body of State and Federal court decisions of many years standing which require, or do not require, the exhaustion of internal remedies prior to court intervention depending upon the reasonableness of such requirements in terms of the facts and circumstances of a particular case.' (Emphasis added.) Nor, he said, was it intended to prohibit 'the National Labor Relations Board * * * from entertaining charges by a member against a labor organization even though 4 months has not elapsed.'14
23
We conclude that unions were authorized to have hearing procedures for processing grievances of members, provided those procedures did not consume more than four months of time; but that a court or agency might consider whether a particular procedure was 'reasonable' and entertain the complaint even though those procedures had not been 'exhausted.' We also conclude, for reasons stated earlier in this opinion, that where the complaint or grievance does not concern an internal union matter, but touches a part of the public domain covered by the Act, failure to resort to any intra-union grievance procedure is not ground for expulsion from a union. We hold that the Board properly entertained the complaint of Holder and that its order should be enforced.
24
Reversed.
25
Mr. Justice STEWART dissents. He would affirm the judgment, agreeing substantially with the opinion of the Court of Appeals for the Third Circuit. 379 F.2d 702.
26
Mr. Justice HARLAN, concurring.
27
I am persuaded by the legislative history, summarized in part by the Court, that the proviso to § 101(a)(4) of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411(a)(4), was intended simply to permit a court or agency to require a union member to exhaust internal union remedies of less than four months' duration before invoking outside assistance. See generally Detroy v. American Guild of Variety Artists, 2 Cir., 286 F.2d 75, 78. I cannot, however, agree that a union may punish a member for his invocation of his remedies before a court or agency 'where the complaint or grievance * * * concern(s) an internal union matter,' and thus does not touch any 'part of the public domain covered by the Act * * *.' Ante, at 428. Assuming arguendo that there are member-union grievances untouched by the various federal labor statutes, this dichotomy has, it seems to me, precisely the disadvantage that the Court has found in the Third Circuit's construction of the proviso: it compels a member to gamble his union membership, and often his employment, on the accuracy of his understanding of the federal labor laws.
28
Finally, it is appropriate to emphasize that courts and agencies will frustrate an important purpose of the 1959 legislation if they do not, in fact, regularly compel union members 'to exhaust reasonable hearing procedures' within the union organization. Responsible union self-government demands, among other prerequisites, a fair opportunity to function.* See Detroy v. American Guild of Variety Artists, supra, at 79.
29
With these modifications, I concur in the opinion and judgment of the Court.
1
Section 8(b) provides in part: '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 * * *.'
Section 7, 61 Stat. 140, 29 U.S.C. § 157, contains the following guarantee of rights: 'Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).'
2
This charge, filed with the Board February 28, 1964, was directed solely against respondent International Union and alleged that:
'On or about October 8, 196(3), the above named labor organization caused the United States Lines (employer) to discriminate against Edwin D. Holder because he engaged in concerted activities with respect to the conditions of his employment.
'By these and other acts, the above named labor organization has interfered with, restrained and coerced, and continues to interfere with, restrain a coerce the Company's employees in the exercise of rights guaranteed in Section 7 of the Act.'
By letter of May 20, 1964, the Regional Director informed Holder that this charge was dismissed.
3
N. 1, supra.
4
These remedies are provided for in § 3 of Article V of the constitution:
'No Union member in good standing in any Local may be suspended or expelled or otherwise disciplined or penalized without a fair and open trial, of which reasonable notice shall be given the accused member, before the Trial Board of the Local Union * * *. The accused member or members or the accusers may appeal the decision of the local Union's Executive Board to the regular meeting of the General Membership of the Local Union next following the meeting of the Executive Board at which the decision was rendered, and within thirty (30) days after the membership's decision may appeal to the General Executive Board. The General Executive Board shall, after reasonable notice to the appellant of the time and place of hearing, hold a fair and open hearing on such appeal and, not later than 130 days after the first regular meeting of the General Executive Board following receipt of the appeal at the National Office, and in any event not later than the first day of the National Convention, shall render its decision affirming, overruling, or modifying either the findings of guilt or innocence, or the penalty imposed. Both the accused and the accuser shall have the right to file an appeal to the next National Convention by sending such appeal to the National Office of this Union by registered mail not later than thirty days after the decision by the General Executive Board.'
Although Holder did not take any internal appeal from the local's original adverse decision on his charge to it against the president, he did appeal his expulsion to the General Executive Board of the International, which affirmed.
5
N. 1, supra.
6
See Cox, Internal Affairs of Labor Unions under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 839 (1960); Summers, Legal Limitations in Union Discipline, 64 Harv.L.Rev. 1049, 1067—1068 (1951); Summers, The Usefulness of Law in Achieving Union Democracy, 48 Am.Econ.Rev. 44, 47 (May 1958).
7
Section 101(a)(4) provides: 'No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency * * * or the right of any member of a labor organization to appear as a witness in any judicial, administrative, or legislative proceeding, or to petition any legislature or to communicate with any legislator: Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings * * *.'
8
See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638; compare Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. The requirement of exhaustion is a matter within the sound discretion of the courts. See, e.g., McCulloch v. Sociedad Nacional, 372 U.S. 10, 16—17, 83 S.Ct. 671, 674—675, 9 L.Ed.2d 547. And see Leedom v. Kyne, 358 U.S. 184, 188—189, 79 S.Ct. 180, 183—184, 3 L.Ed.2d 210; Public Utilities Comm. of State of California v. United States, 355 U.S. 534, 539—540, 78 S.Ct. 446, 450, 2 L.Ed.2d 470. Exhaustion is not required when the administrative remedies are inadequate. Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576; McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622. See generally 3 K. Davis, Administrative Law Treatise § 20.07 (1958). When the complaint, as in the instant case, raises a matter that is in the public domain and beyond the internal affairs of the union, the union's internal procedures are, as previously explained, plainly inadequate.
9
105 Cong.Rec. 15835 (McCormack); id., at 15689—15690 (O'Hara); id., at 15563 (Foley).
10
105 Cong.Rec. 10095 (Goldwater).
11
105 Cong.Rec. 17899 (John F. Kennedy).
12
105 Cong.Rec. 17899.
13
105 Cong.Rec. 18152.
14
105 Cong.Rec. 17899.
*
It should be noted that many union constitutions have elaborate provisions for internal appeals, and that these provisions were often added or modified as a consequence of § 101(a)(4). See Kroner, Title I of the LMRDA: Some Problems of Legal Method and Mythology, 43 N.Y.U.L.Rev. 280, 302, n. 72.
| 67
|
391 U.S. 392
88 S.Ct. 1725
20 L.Ed.2d 689
The PUYALLUP TRIBE, etc., Petitioner,v.DEPARTMENT OF GAME OF WASHINGTON et al. Nugent KAUTZ et al., Petitioners, v. DEPARTMENT OF GAME OF WASHINGTON et al.
Nos. 247, 319.
Argued March 25 and 26, 1968.
Decided May 27, 1968.
Rehearing Denied Oct. 14, 1968.
See 89 S.Ct. 64.
Arthur R. Knodel and Jack E. Tanner, Tacoma, Wash., for petitioners.
Joseph L. Coniff, Jr., and Mike Richard Johnston, Olympia, Wash., for respondents.
George S. Woodworth, Portland, Ore., for State of Oregon, as amicus curiae.
Mr. T. J. Jones III, Boise, Idaho, for Idaho Fish and Game Dept. as amicus curiae.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
These cases present a question of public importance which involves in the first place a construction of the Treaty of Medicine Creek made with the Puyallup and Nisqually Indians in 1854 (10 Stat. 1132) and secondly the constitutionality of certain conservation measures adopted by the State of Washington allegedly impinging on those treaty rights.
2
These suits were brought by respondents in the state court against the Indians for declaratory relief and for an injunction. The trial court held for respondents and with exceptions not relevant to our problem the Supreme Court affirmed in part and remanded for further findings on the conservation aspect of the problem. Department of Game v. Puyallup Tribe, 70 Wash.2d 245, 422 P.2d 754; Department of Game v. Kautz, 70 Wash.2d 275, 422 P.2d 771. We granted the petitions for certiorari and consolidated the cases for oral argument. 389 U.S. 1013, 88 S.Ct. 584, 19 L.Ed.2d 659.
3
While the Treaty of Medicine Creek created a reservation for these Indians, no question as to the extent of those reservation rights, if any, is involved here.1 Our question concerns the fishing rights protected by Article III, which so far as relevant reads as follows:
4
'The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands * * *.'
5
The fish to which the Treaty rights pertain in these cases are salmon and steelhead, anadromous fish that hatch in the fresh water of the Puyallup River and the Nisqually River. The steelhead is a trout; the salmon are of four species—chinook, silver, chum, and pink. They come in from the ocean, pass through the salt water of Puget Sound, enter the fresh waters at the mouths of rivers, and go up these rivers to spawn. The adult salmon die after spawning, but not necessarily the steelhead. In time the fry return to the ocean and start the cycle anew.
6
People fish for these species far offshore.2 As respects fishing within its territorial waters, Washington specifies the time when fishing may take place, the areas open to fishing, and the gear that may be used.3
7
Fishing licenses are prescribed.4 Steelhead may be taken only by hook5 and not commercially. Salmon may be taken commercially with nets of a certain type in certain areas.6 Set nets or fixed appliances are barred in 'any waters' of the State for the taking of salmon or steelhead.7 So is 'monofilament gill net webbing.'8
8
Nearly every river in the State has a salmon preserve at its mouth;9 and Commencement Bay at the mouth of the Puyallup River is one of those preserves.10
9
The Puyallup Indians use set nets to fish in Commencement Bay and at the mouth of the Puyallup River and in areas upstream. The Nisqually Indians use set nets in the fresh waters of the Nisqually River. These Indians fish not only for their own needs but commercially as well, supplying the markets with a large volume of salmon. The nets used are concededly illegal if the laws and regulations of the State of Washington are valid; and it is to that question that we now turn.11
10
The 'right of taking fish at all usual and accustomed places, in common with' citizens of the Territory under a treaty with the Yakimas was involved in United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089. The lands bordering the Columbia River at those places were acquired by private owners who under license from the State acquired the right to fish there and sought to exclude the Indians by reason of their ownership. The Court held that the right to fish at these places was a 'continuing' one that could not be destroyed by a change in ownership of the land bordering the river. 198 U.S., at 381, 25 S.Ct., at 664. To construe the treaty as giving the Indians 'no rights but such as they would have without the treaty' (198 U.S., at 380, 25 S.Ct., at 664) would be 'an impotent outcome to negotiations and a convention which seemed to promise more, and give the word of the Nation for more.' Ibid. In Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555, the Court construed the same provision liberally so as to include all 'accustomed places' even though the Indians shared those places with other Indians and with white men, rejecting a strict, technical construction not in keeping with the justice of the case.
11
It is in that spirit that we approach these cases in determining the scope of the treaty rights which the Puyallups and Nisqually obtained.
12
The treaty right is in terms the rights to fish 'at all usual and accustomed places.' We assume that fishing by nets was customary at the time of the Treaty; and we also assume that there were commercial aspects to that fishing as there are at present. But the manner in which the fishing may be done and its purpose, whether or not commercial, are not memtioned in the Treaty. We would have quite a diferent case if the Treaty had preserved the right to fish at the 'usual and accustomed places' in the 'usual and accustomed' manner. But the Treaty is silent as to the mode or modes of fishing that are guaranteed. Moreover, the right to fish at those respective places is not an exclusive one. Rather, it is one 'in common with all citizens of the Territory.' Certainly the right of the latter may be regulated. And we see no reason why the right of the Indians may not also be regulated by an appropriate exercise of the police power of the State. The right to fish 'at all usual and accustomed' places may, of course, not be qualified by the State, even though all Indians born in the United States are now citizens of the United States. Act of June 2, 1924, 43 Stat. 253, as superseded by § 201(b) of the Nationality Act of 1940, 8 U.S.C. § 1401(a)(2). But the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians.
13
In Tulee v. State of Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115, we had before us for construction a like treaty with the Yakima Indians which guaranteed the right to fish 'at all usual and accustomed places, in common with citizens' of Washington Territory. 12 Stat. 951. Tulee, a member of the tribe, was fishing without a license off the Yakima Indian Reservation; the State convicted him for failure to obtain a license. We reversed, saying:
14
'(W)hile the treaty leaves the state with power to impose on Indians equally with others such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish, it forecloses the state from charging the Indians a fee of the kind in question here.' Id., at 684, 62 S.Ct. at 864.
15
In other words, the 'right' to fish outside the reservation was a treaty 'right' that could not be qualified or conditioned by the State. But 'the time and manner of fishing * * * necessary for the concervation of fish,' not being defined or established by the treaty, were within the reach of state power.
16
The overriding police power of the State, expressed in nondiscriminatory measures for conserving fish resources, is preserved. In United States v. Winans, supra, a forerunner of the Tulee case, the Court said:
17
'(S)urely it was within the competency competency of the nation to secure to the Indians such a remnant of the great rights they possessed as 'taking fish at all usual and accustomed places.' Nor does it restrain the state unreasonably, if at all, in the regulation of the right.' 198 U.S., at 384, 25 S.Ct., at 665.
18
Another forerunner of Tulee was Kennedy v. Becker, 241 U.S. 556, 36 S.Ct. 705, 60 L.Ed. 1166, which also involved a nonexclusive grant of fishing rights to Indians. Indians were charged with the spearing of fish contrary to New York law, their defense being the fishing rights granted by a treaty. The Court, in sustaining the judgments of conviction, said:
19
'We do not think that it is a proper construction of the reservation in the conveyance to regard it as an attempt either to reserve sovereign prerogative, or so to divide the inherent power of preservation as to make its competent exercise impossible. Rather are we of the opinion that the clause is fully satisfied by considering it a reservation of a privilege of fishing and hunting upon the granted lands in common with the grantees, and others to whom the privilege might be extended, but subject, nevertheless, to that necessary power of appropriate regulation, as to all those privileged, which inhered in the sovereignty of the state over the lands where the privilege was exercised.' 241 U.S., at 563—564, 36 S.Ct., at 707—708.
20
The use of purse seines and other nets12 in the salt waters is permitted for commercial purposes under terms and conditions prescribed by the State; and their use in these areas is open to all, Indians as well as others. The use of set nets13 in fresh water streams or at their mounths is barred not only to Indians but to all others. An expert for the State testified that the reason for that prohibition was conservation:
21
'The salmon are milling and delaying, and especially in times of law water or early arrival of the run or for any number of reasons, the delay may be considerable.
22
'Once again the fish are available to the net again and again. This is the main reason for the preserve, so that the milling stock will not be completely taken.
23
'Then further, this is a point in the bay at the river mouth where you very definitely have a funnelling effect.
24
The entire run is funneled into a smaller area and it is very vulnerable.'
25
Fishing by hook and line is allowed in these areas because when salmon are 'milling near the river mouth,' they are not 'feeding and they don't strike very well, so the hook and line fishery will take but a small percentage of the available stock no matter how hard they fish.'
26
Whether the prohibition of the use of set nets in these fresh waters was a 'reasonable and necessary' (70 Wash.2d, at 261, 422 P.2d, at 764) conservation measure14 was left for determination by the trial court when the Supreme Court, deeming the injunction in No. 247 too broad, remanded the case for further findings.15 When the case was argued here, much was said about the pros and the cons of that issue. Since the state court has given us no authoritative answer to the question, we leave it unanswered and only add that any ultimate findings on the conservation issue must also cover the issue of equal protection implicit in the phrase 'in common with.'
27
Affirmed.
1
It should be noted that while a reservation was created by Article II of the Treaty, Article VI provided that the President might remove the Indians from the reservation 'on remunerating them for their improvements and the expenses of their removal, or may consolidate them with other friendly tribes or bands.' Article VI also gave the President authority alternatively to divide the reservation into lots and assign them to those individuals or families who were willing to make these places their permanent home. In 1887 Congress passed the General Allotment Act (24 Stat. 388) authorizing the division of the reservation land among the individual Indians. In 1893 Congress passed the Puyallup Allotment Act, 27 Stat. 633, which established a commission to make the allotments. And by the Act of April 28, 1904, 33 Stat. 565, Congress gave 'the consent of the United States' to the removal of prior restrictions on alienation by these Indians. The trial court in No. 247 found that all lands within the boundaries of the reservation created by the Treaty have been transferred to private ownership pursuant to these Acts of Congress, with the exception of two small tracts used as a cemetery for members of the tribe; and much of it is now in the City of Tacoma. See State v. Satiacum, 50 Wash.2d 513, 314 P.2d 400 (1957). Whether in light of this history the reservation has been extinguished is a question we do not reach. Cf. Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 356—359, 82 S.Ct. 424, 427, 429, 7 L.Ed.2d 346. The Washington Supreme Court seems to hold that the right to fish in streams once within the old reservation is protected by the Article III guarantee. See 70 Wash.2d, at 261, 262, 422 P.2d, at 763, 764. There are indeed no other fishing rights specifically reserved in the Treaty of Medicine Creek except those covered by Article III.
2
Fishing for salmon in the high seas is governed by a convention agreed to by Canada, Japan, and the United States on May 9, 1952, 4 U.S.T., Pt. I, p. 380, T.I.A.S. No. 2786. As to sockeye salmon and pink salmon, the United States and Canada have a separate convention first signed May 26, 1930, and amended as of July 3, 1957. 8 U.S.T., Pt. I, p. 1057, T.I.A.S. No. 3867.
Washington bars the use of nets in fishing for salmon in the international waters of the Pacific. Wash.Rev.Code § 75.12.220.
3
Wash.Admin.Code §§ 220—16—010 to 220—48—060 (salmon); Wash. Dept. of Game, Perm.Regs. Nos. 32—35 (1964), Temp.Reg. no. 273 (1968) (steelhead).
4
Wash.Rev.Code. §§ 75,28.010—75.28.380; §§ 77.32.005 77.32.280.
5
Wash. Dept. of Game, Perm.Reg. No. 34 (1964).
6
Wash.Rev.Code § 75.12.140 defines the permissible areas for reef net fishing. Section 75.12.010, while containing a prohibition against commercial fishing in a large salt water area, allows the director of fisheries to permit commercial fishing there within stated times and with prescribed gear. And see Wash.Admin.Code §§ 220—32—010 to 220—32—030 (Columbia River area); §§ 220—36—010 to 220—36—020 (Grays Harbor area); §§ 220—40—010 to 220—40—020 (Willapa Harbor area); §§ 220—48—010 to 220—48—060 (Puget Sound area). Commercial fishing in other areas is banned. Wash.Rev.Code § 75.12.160; Wash.Admin.Code § 220—20—010.
7
Wash.Rev.Code §§ 75.12.060, 77.16.060.
8
Wash.Rev.Code § 75.12.280. It appears that the monofilament type of gear (made of plastic) is less visible in clear water in daylight than the nylon web.
9
Wash.Admin.Code § 220—48—020.
10
Wash.Admin.Code § 220—48—020(10).
11
Petitioners in No. 247 argue that the Washington courts lacked jurisdiction to entertain an action against the tribe without the consent of the tribe or the United States Governement (citing United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 and Turner v. United States, 248 U.S. 354, 39 S.Ct. 109, 63 L.Ed. 291), viewing the suit as one to 'extinguish a Tribal communal fishing right guaranteed by federal Treaty.' This case, however, is a suit to enjoin violations of state law by individual tribal members fishing off the reservation. As such, it is analogous to prosecution of individual Indians for crimes committed off reservation lands, a matter for which there has been no grant of exclusive jurisdiction to federal courts.
See, e.g., DeMarrias v. State of South Dakota, 319 F.2d 845 (C.A.8th Cir. 1963); Buckman v. State, 139 Mont. 630, 366 P.2d 346 (1961). With respect to crimes committed by Indians within reservation boundaries, see 18 U.S.C. §§ 1153, 1162. And see § 401(a) of Title IV of the 1968 Civil Rights Act, Pub.L. No. 90284, 82 Stat. 78; Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346; United States v. Celestine, 215 U.S. 278, 30 S.Ct. 93, 54 L.Ed. 195.
12
A purse seine is a type of gear that encircles a school of fish, lead weights taking the net down, and a boat operating at each end of the net. A line runs through rings on the bottom of the net, making it possible to close the bottom of the net. Wash.Admin.Code § 220—16—010(15).
A gill net has a mesh which fish cannot back out of once their heads get through. Gill net fishing is drift fishing, the net being up to 1,800 feet in length. Wash.Admin.Code § 220—16 010(8).
Purse seines and drift gill nets are used in salt water.
13
Set gill nets are often anchored at one end, stretched on a cork line, and held down by weights, while drifting at the other end. They are often located one above another at a short distance. Fish are taken by hadn out of the nets as a boat travels its length. The mesh in the gill net varies, depending on the size of the species of salmon that are running—chinook, 8 to 8 1/2 inches; silver, chum, and sockeye, 5 1/2 inches. Set gill nits and sockeye, 5 1/2 inches. Set gill nets width of the river at the point they are used. Wash.Admin.Code § 220—16—010(19).
14
Much emphasis is placed on Maison v. Confederated Tribes of Umatilla Indian Reservation, 314 F.2d 169 (C.A.9th Cir. 1963), where another treaty right pertaining to other Indians was tendered in opposition to Oregon's power to regulate salmon fishing in the interests of conservation. This Treaty gave the Indians the right to fish off the reservation at all 'usual and accustomed stations in common with citizens of the United States.' Id., at 170. The Court of Appeals held that Oregon could regulate the Indians' Treaty right to fish under two conditions: first, that there is a need to limit the taking of fish, second, that the particular regulation sought to be imposed is 'indispensable' to the accomplishment of the needed limitation.' Id., at 172.
The idea that the conservation measure be 'indispensable' is derived from Tulee v. Washington, supra, where in striking down the license fee we said that 'the imposition of license fees is not indispensable to the effectiveness of a state conservation program.' 315 U.S., at 685, 62 S.Ct., at 864. But that statement in its context meant no more than that it would, indeed, be unusual for a State to have the power to tax the exercise of a 'federal right.' As stated by the Court in the sentence immediately following, the license fee 'acts upon the Indians as a charge for exercising the very right their ancestors intended to reserve.' Ibid. Cf. Murdock v. Com. of Pennsylvania, 319 U.S. 105, 112, 63 S.Ct. 870, 874, 87 L.Ed. 1292. 'The power to tax the exercise of a privilege is the power to control or suppress its enjoyment.'
As to a 'regulation' concerning the time and manner of fishing outside the reservation (as opposed to a 'tax'), we said that the power of the State was to be measured by whether it was 'necessary for the conservation of fish.' 315 U.S., at 684, 62 S.Ct., at 864.
The measure of the legal propriety of those kinds of conservation measures is therefore distinct from the federal constitutional standard concerning the scope of the police power of a State. See Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93; Williamson v. Lee Optical Co. of Okl., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220, 69 S.Ct. 550, 93 L.Ed. 632; Olsen v. State of Nebraska, etc., 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305.
15
In No. 319, the parties entered into a stipulation of facts which, because of its scope, made unnecessary 'the tailoring of the injunction to meet a specific situation, as in the Puyallup case * * *.' 70 Wash.2d, at 280, 422 P.2d, at 774. The Washington Supreme Court did, however, remand to the trial court with instructions to limit the injunction only to those violations of Washington law that had been stipulated to be presently necessary to the conservation of the fish runs. It was stipulated that the 'usual and accustomed fishing grounds' (within the meaning of the Treaty) encompassed the Nisqually River and its tributaries downstream from the Nisqually Reservation. The parties further stipulated that the defendants had fished contrary to state fishing conservation laws and regulations since 1960; that '(i)f permitted to continue, the defendants' commercial fishery would virtually exterminate the salmon and steelhead fish runs of the Nisqually River'; and that 'it is necessary for proper conservation of the salmon and steelhead fish runs of the Nisqually River * * * that the plaintiffs enforce state fishery conservation laws and regulations to the fishing activities of the defendants at their usual and accustomed grounds.'
| 12
|
391 U.S. 462
88 S.Ct. 1716
20 L.Ed.2d 741
David RABECKv.NEW YORK.
No. 611.
May 27, 1968.
Stanley Fleishman, Osmond K. Fraenkel and Sam Rosenwein, for appellant.
Isidore Dollinger and Daniel J. Sullivan, for appellee.
PER CURIAM.
1
Appellant, in seeking reversal of his conviction for selling 'girlie' magazines to a minor under 18 years of age in violation of former § 484—i, New York Penal Law, Consol.Laws, c. 40,* argues among other grounds that the statute is impermissibly vague. We agree. While we rejected a like claim as to § 484—h in Ginsberg v. State of New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195, § 484—i in part prohibited the sale of 'any * * * magazines * * * which would appeal to the lust of persons under the age of eighteen years or to their curiosity as to sex or to the anatomical differences between the sexes * * *.' That standard in our view is unconstitutionally vague. 'Nor is it an answer to an argument that a particular regulation of expression is vague to say that it was adopted for the salutary purpose of protecting children. The permissible extent of vagueness is not directly proportional to, or a function of, the extent of the power to regulate or control expression with respect to children.' Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 689, 88 S.Ct. 1298, 1306, 20 L.Ed.2d 225.
2
Reversed.
3
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, would reverse for the reasons stated in his dissenting opinion in Ginsberg v. State of New York, 390 U.S. 629, 650, 88 S.Ct. 1274, 1286.
4
Mr. Justice HARLAN would affirm the judgment of the state court on the premises stated in his separate opinion in Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 704, 88 S.Ct. 1298, 1313. In addition, he considers it a particularly fruitless judicial act to strike down on the score of vagueness a state statute which has already been repealed.
*
Section 484—i was repealed by N.Y.Laws 1967, c. 791. See Ginsberg v. State of New York, 390 U.S. 629, 631—632, 88 S.Ct. 1274, 1276, n. 1.
| 23
|
391 U.S. 450
88 S.Ct. 1700
20 L.Ed.2d 733
Brenda K. MONROE et al., Petitioners,v.BOARD OF COMMISSIONERS OF the CITY OF JACKSON, TENN. et al.
No. 740.
Argued April 3, 1968.
Decided May 27, 1968.
[Syllabus from pages 450-451 intentionally omitted]
James M. Nabrit III, New York City, for petitioners.
Russell Rice, Jackson, Tenn., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case was argued with No. 695, Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, and No. 805, Raney v. Board of Education of Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727. The question for decision is similar to the question decided in those cases. Here, however, the principal feature of a desegregation plan—which calls in question its adequacy to effectuate a transition to a racially nondiscriminatory system in compliance with Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II)—is not 'freedom of choice' but a variant commonly referred to as 'free transfer.'
2
The respondent Board of Commissioners is the School Board for the City of Jackson, located in midwestern Tennessee. The school district coincides with the city limits. Some one-third of the city's population of 40,000 are Negroes, the great majority of whom live in the city's central area. The school system has eight elementary schools, three junior high schools, and two senior high schools. There are 7,650 children enrolled in the system's schools, about 40% of whom, over 3,200, are Negroes.
3
In 1954 Tennessee by law required racial segregation in its public schools. Accordingly, five elementary schools, two junior high schools, and one senior high school were operated as 'white' schools, and three elementary schools, one junior high school, and one senior high school were operated as 'Negro' schools. Racial segregation extended to all aspects of school life including faculties and staffs.
4
After Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, (Brown I), declared such state-imposed dual systems unconstitutional, Tennessee enacted a pupil placement law, Tenn.Code § 49—1741 et seq. (1966). That law continued previously enrolled pupils in their assigned schools and vested local school boards with the exclusive authority to approve assignment and transfer requests. No white children enrolled in any 'Negro' school under the statute and the respondent Board granted only seven applications of Negro children to enroll in 'white' schools, three in 1961 and four in 1962. In March 1962 the Court of Appeals for the Sixth Circuit held that the pupil placement law was inadequate 'as a plan to convert a biracial system into a nonracial one.' Northcross v. Board of Education of City of Memphis, 302 F.2d 818, 821.
5
In January 1963 petitioners brought this action in the District Court for the Western District of Tennessee. The complaint sought a declaratory judgment that respondent was operating a compulsory racially segregated school system, injunctive relief against the continued maintenance of that system, an order directing the admission to named 'white' schools of the plaintiff Negro school children, and an order requiring respondent Board to formulate a desegregation plan. The District Court ordered the Board to enroll the children in the schools in question and directed the Board to formulate and file a desegregation plan. A plan was duly filed and, after modifications directed by the court were incorporated, the plan was approved in August 1963 to be effective immediately in the elementary schools and to be gradually extended over a four-year period to the junior high schools and senior high schools. 221 F.Supp. 968.
6
The modified plan provides for the automatic assignment of pupils living within attendance zones drawn by the Board or school officials along geographic or 'natural' boundaries and 'according to the capacity and facilities of the (school) buildings * * *' within the zones. Id., at 974. However, the plan also has the 'free-transfer' provision which was ultimately to bring this case to this Court: Any child, after he has complied with the requirement that he register annually in his assigned school in his attendance zone, may freely transfer to another school of his choice if space is available, zone residents having priority in cases of overcrowding. Students must provide their own transportation; the school system does not operate school buses.
7
By its terms the 'free-transfer' plan was first applied in the elementary schools. After one year of operation petitioners, joined by 27 other Negro school children, moved in September 1964 for further relief in the District Court, alleging respondent had administered the plan in a racially discriminatory manner. At that time, the three Negro elementary schools remained all Negro; and 118 Negro pupils were scattered among four of the five formerly all-white elementary schools. After hearing evidence, the District Court found that in two respects the Board had indeed administered the plan in a discriminatory fashion. First, it had systematically denied Negro children—specifically the 27 intervenors—the right to transfer from their all-Negro zone schools to schools where white students were in the majority, although white students seeking transfers from Negro schools to white schools had been allowed to transfer. The court held this to be a constitutional violation, see Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632, as well as a violation of the terms of the plan itself. 244 F.Supp. 353, 359. Second, the court found that the Board, in drawing the lines of the geographic attendance zones, had gerrymandered three elementary school zones to exclude Negro residential areas from white school zones and to include those areas in zones of Negro schools located farther away. Id., at 361—362.
8
In the same 1964 proceeding the Board filed with the court its proposed zones for the three junior high schools, Jackson and Tigrett, the 'white' junior high schools, and Merry, the 'Negro' junior high school. As of the 1964 school year the three schools retained their racial identities, although Jackson did have one Negro child among its otherwise allwhite student body. The faculties and staffs of the respective schools were also segregated. Petitioners objected to the proposed zones on two grounds, arguing first that they were racially gerrymandered because so drawn as to assign Negro children to the 'Negro' Merry school and white children to the 'white' Jackson and Tigrett schools, and alternatively that the plan was in any event inadequate to reorganize the system on a nonracial basis. Petitioners, through expert witnesses, urged that the Board be required to adopt a 'feeder system,' a commonly used method of assigning students whereby each junior high school would draw its students from specified elementary schools. The groupings could be made so as to assure racially integrated student bodies in all three junior high schools, with due regard for educational and administrative considerations such as building capacity and proximity of students to the schools.
9
The District Court held that petitioners had not sustained their allegations that the proposed junior high school attendance zones were gerrymandered, saying
10
'Tigrett (white) is located in the western section, Merry (Negro) is located in the central section and Jackson (white) is located in the eastern section. The zones proposed by the defendants would, generally, allocate the western section to Tigrett, the central section to Merry, and the eastern section to Jackson. The boundaries follow major streets or highways and railroads. According to the school population maps, there are a considerable number of Negro pupils in the southern part of the Tigrett zone, a considerable number of white pupils in the middle and northern parts of the Merry zone, and a considerable number of Negro pupils in the southern part of the Jackson zone. The location of the three schools in an approximate east-west line makes it inevitable that the three zones divide the city in three parts from north to south. While it appears that proximity of pupils and natural boundaries are not as important in zoning for junior highs as in zoning for elementary schools, it does not appear that Negro pupils will be discriminated against.' 244 F.Supp., at 362.
11
As for the recommended 'feeder system,' the District Court concluded simply that 'there is no constitutional requirement that this particular system be adopted.' Ibid. The Court of Appeals for the Sixth Circuit affirmed except on an issue of faculty desegregation, as to which the case was remanded for further proceedings. 380 F.2d 955. We granted certiorari, 389 U.S. 1033, and set the case for oral argument immediately following Green v. County School Board, supra. Although the case presented by the petition for certiorari concerns only the junior high schools, the plan in its application to elementary and senior high schools is also necessarily implicated since the right of 'free transfer' extends to pupils at all levels.
12
The principles governing determination of the adequacy of the plan as compliance with the Board's responsibility to effectuate a transition to a racially nondiscriminatory system are those announced today in Green v. County School Board, supra. Tested by those principles the plan is clearly inadequate. Three school years have followed the District Court's approval of the attendance zones for the junior high schools. Yet Merry Junior High School was still completely a 'Negro' school in the 1967—1968 school year, enrolling some 640 Negro pupils, or over 80% of the system's Negro junior high school students. Not one of the 'considerable number of white pupils in the middle and northern parts of the Merry zone' assigned there under the attendance zone aspect of the plan chose to stay at Merry. Every one exercised his option to transfer out of the 'Negro' school. The 'white' Tigrett school seemingly had the same experience in reverse. Of the 'considerable number of Negro pupils in the southern part of the Tigrett zone' mentioned by the District Court, only seven are enrolled in the student body of 819; apparently all other Negro children assigned to Tigrett chose to go elsewhere. Only the 'white' Jackson school presents a different picture; there, 349 white children and 135 Negro children compose the student body. How many of the Negro children transferred in from the 'white' Tigrett school does not appear. The experience in the junior high schools mirrors that of the elementary schools. Thus the three elementary schools that were operated as Negro schools in 1954 and continued as such until 1963 are still attended only by Negroes. The five 'white' schools all have some Negro children enrolled, from as few as three (in a student body of 781) to as many as 160 (in a student body of 682).
13
This experience with 'free transfer' was accurately predicted by the District Court as early as 1963:
14
'In terms of numbers * * * the ratio of Negro to white pupils is approximately 40—60. This figure is, however, somewhat misleading as a measure of the extent to which integration will actually occur under the proposed plan. Because the homes of Negro children are concentrated in certain areas of the city, a plan of unitary zoning, even if prepared without consideration of race, will result in a concentration of Negro children in the zones of heretofore 'Negro' schools and white children in the zones of heretofore 'white' schools. Moreover, this tendency of concentration in schools will be further accentuated by the exercise of choice of schools * * *.' 221 F.Supp. at 971. (Emphasis supplied.)
15
Plainly, the plan does not meet respondent's 'affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.' Green v. County School Board, supra, 391 U.S., at 437—438, 88 S.Ct., at 1694. Only by dismantling the state-imposed dual system can that end be achieved. And manifestly, that end has not been achieved here nor does the plan approved by the lower courts for the junior high schools promise meaningful progress toward doing so. 'Rather than further the dismantling of the dual system, the ('free transfer') plan has operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board.' Green v. County School Board, supra, at 441—442, 88 S.Ct., at 1696. That the Board has chosen to adopt a method achieving minimal disruption of the old pattern is evident from its long delay in making any effort whatsoever to desegregate, and the deliberately discriminatory manner in which the Board administered the plan until checked by the District Court.
16
The District Court approved the junior high school attendance-zone lines in the view that as drawn they assigned students to the three schools in a way that was capable of producing meaningful desegregation of all three schools. But the 'free-transfer' option has permitted the 'considerable number' of white or Negro students in at least two of the zones to return, at the implicit invitation of the Board, to the comfortable security of the old, established discriminatory pattern. Like the transfer provisions held invalid in Goss v. Board of Education, 373 U.S. 683, 686, 83 S.Ct. 1405, 1408, 10 L.Ed.2d 632, '(i)t is readily apparent that the transfer (provision) lends itself to perpetuation of segregation.' While we there indicated that 'free-transfer' plans under some circumstances might be valid, we explicitly stated that 'no official transfer plan or provision of which racial segregation is the inevitable consequence may stand under the Fourteenth Amendment.' Id., at 689, 83 S.Ct. at 1409. So it is here; no attempt has been made to justify the transfer provision as a device designed to meet 'legitimate local problems,' ibid.; rather it patently operates as a device to allow resegregation of the races to the extent desegregation would be achieved by geographically drawn zones. Respondent's argument in this Court reveals its purpose. We are frankly told in the Brief that without the transfer option it is apprehended that white students will flee the school system altogether. 'But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.' Brown II, 349 U.S. at 300, 75 S.Ct., at 756.
17
We do not hold that 'free transfer' can have no place in a desegregation plan. But like 'freedom of choice,' if it cannot be shown that such a plan will further rather than delay conversion to a unitary, nonracial, nondiscriminatory school system, it must be held unacceptable. See Green v. County School Board, supra, 391 U.S., at 439—441, 88 S.Ct., at 1696.
18
We conclude, therefore, that the Board 'must be required to formulate a new plan and, in light of other courses which appear open to the Board, * * * fashion steps which promise realistically to convert promptly to a system without a 'white' school and a 'Negro' school, but just schools.' Id., at 442, 88 S.Ct., at 1696.*
19
The judgment of the Court of Appeals is vacated insofar as it affirmed the District Court's approval of the plan in its application to the junior high schools, and the case is remanded for further proceedings consistent with this opinion and with our opinion in Green v. County School Board, supra. It is so ordered.
20
Remanded.
*
We imply no agreement with the District Court's conclusion that under the proposed attendance zones for junior high schools 'it does not appear that Negro pupils will be discriminated against.' We note also that on the record as it now stands, it appears that petitioners' recommended 'feeder system,' the feasibility of which respondent did not challenge in the District Court, is an effective alternative reasonably available to respondent to abolish the dual system in the junior high schools.
| 12
|
391 U.S. 464
88 S.Ct. 1687
20 L.Ed.2d 744
Sylvester Lee GARRISONv.Wayne PATTERSON, Warden.
No. 791, Misc.
May 27, 1968.
E. Barrett Prettyman, Jr., and Isaac Mellman, for petitioner.
Duke W. Dunbar, Atty. Gen. of Colorado, Frank E. Hickey, Deputy Atty. Gen., and John P. Moore, Asst. Atty. Gen., for respondent.
PER CURIAM.
1
On November 27, 1959, petitioner was found guilty of first degree murder by a Colorado jury, which fixed his penalty at death. Following subsequent state proceedings, he sought a writ of habeas corpus in the United States District Court for the District of Colorado. He alleged that he had received inadequate representation by appointed trial counsel,1 that the trial court had not properly determined the voluntariness of confessions admitted against him, and that the procedure used to determine his sanity fell short of constitutional requirements. On June 2, 1967, the District Court denied the writ, denied a certificate of probable cause to appeal, see 28 U.S.C. § 2253, but granted a stay of execution to June 16, 1967, to allow time for appeal. The District Court filed a written opinion and order to that effect on June 5, 1967.
2
Three days later, on June 8, petitioner's attorneys filed with the Court of Appeals for the Tenth Circuit a three-page document requesting a further stay of execution, a certificate of probable cause to appeal, and leave to appeal in forma pauperis. This document merely stated the formal history of the case in numbered paragraphs, noted one of the issues, and alleged that 'this petition merits further hearing by this Court.' On the following day, June 9, counsel were heard orally by a panel of the Court of Appeals. The hearing was not recorded. The court granted a further stay of execution. On June 18, without further argument or submissions by counsel, the Court of Appeals issued an order granting the certificate of probable cause, and, in the next sentence, affirming the District Court's denial of habeas corpus. Petitioner sought a writ of certiorari in this Court, alleging that the procedure followed by the Court of Appeals violated the standards established by, or implicit in, Nowakowski v. Maroney, 386 U.S. 542, 87 S.Ct. 1197, 18 L.Ed.2d 282.
3
We grant the writ, vacate the judgment of the Court of Appeals, and remand to that court for further appropriate proceedings. Nowakowski, supra, held that when a district court grants a certificate of probable cause the court of appeals must 'proceed to a disposition of the appeal in accord with its ordinary procedure.' 386 U.S., at 543, 87 S.Ct. at 1199. The principle underlying that decision was that if an appellant persuades an appropriate tribunal that probable cause for an appeal exists, he must then be afforded an opportunity to address the underlying merits. This principle is no less applicable when a court of appeals, having received submissions relating only to probable cause and other procedural matters, decides that probable cause indeed exists.
4
As we only recently noted in Carafas v. La Vallee, 391 U.S. 234, at 242, 88 S.Ct. 1556 at 1562, 20 L.Ed.2d 554, Nowakowski does not prevent the courts of appeals from adopting appropriate summary procedures for final disposition of such cases. Carafas requires the courts of appeals to give sufficient indication that an appeal has been disposed of on the merits but nothing in Nowakowski and nothing we say here prevents the courts of appeals from considering the questions of probable cause and the merits together, and nothing said there or here necessarily requires full briefing and oral argument in every instance in which a certificate is granted. We hold only that where an appeal possesses sufficient merit to warrant a certificate, the appellant must be afforded adequate opportunity to address the merits, and that if a summary procedure is adopted the appellant must be informed, by rule or otherwise, that his opportunity will or may be limited.2 Within this general framework, the promulgation of specific procedures is a matter for the courts of appeals.
5
The motion to proceed in forma pauperis and petition for a writ of certiorari are granted. The judgment of the Court of Appeals affirming the judgment of the District Court is vacated, and the case is remanded for further proceedings in conformity with this opinion. The stay of execution heretofore granted by Mr. JUSTICE WHITE is continued in force pending the disposition of the matter by the Court of Appeals, on condition that the petitioner proceed with due diligence in that court.
6
It is so ordered.
7
Judgment of Court of Appeals vacated and case remanded.
1
Petitioner's statement of facts alleges not only that trial counsel was guilty of egregious neglect at trial but also that there were understandable reasons: there is said to be evidence that during the period of the trial the attorney's attention was preoccupied with other matters, to wit, the commission of a series of felonies.
2
In an effort to determine whether the merits had been addressed, and whether petitioner was on notice that they should be addressed in full, at the unrecorded hearing on June 9, this Court solicited further submissions from the parties in this case. Petitioner replied that the merits had been raised only to the extent necessary to show grounds for a certificate of probable cause. Respondent replied that petitioner was given all the time he wanted. Respondent was unable, however, to point to any rule or decision forewarning an applicant for a certificate of probable cause to make his argument on the underlying issues in full.
| 01
|
391 U.S. 367
88 S.Ct. 1673
20 L.Ed.2d 672
UNITED STATES, Petitioner,v.David Paul O'BRIEN. David Paul O'BRIEN, Petitioner, v. UNITED STATES.
Nos. 232, 233.
Argued Jan. 24, 1968.
Decided May 27, 1968.
[Syllabus from pages 367-368 intentionally omitted]
Solicitor Gen. Erwin N. Griswold for the United States.
Marvin M. Karpatkin, New York City, for David Paul O'Brien.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
On the morning of March 31, 1966, David Paul O'Brien and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse. A sizable crowd, including several agents of the Federal Bureau of Investigation, witnessed the event.1 Immediately after the burning, members of the crowd began attacking O'Brien and his companions. An FBI agent ushered O'Brien to safety inside the courthouse. After he was advised of his right to counsel and to silence, O'Brien stated to FBI agents that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law. He produced the charred remains of the certificate, which, with his consent, were photographed.
2
For this act, O'Brien was indicted, tried, convicted, and sentenced in the United States District Court for the District of Massachusetts.2 He did not contest the fact that he had burned the certificate. He stated in argument to the jury that he burned the certificate publicly to influence others to adopt his antiwar beliefs, as he put it, 'so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position.'
3
The indictment upon which he was tried charged that he 'willfully and knowingly did multilate, destroy, and change by burning * * * (his) Registration Certificate (Selective Service System Form No. 2); in violation of Title 50, App., United States Code, Section 462(b).' Section 462(b) is part of the Universal Military Training and Service Act of 1948. Section 462(b)(3), one of six numbered subdivisions of § 462(b), was amended by Congress in 1965, 79 Stat. 586 (adding the words italicized below), so that at the time O'Brien burned his certificate an offense was committed by any person,
4
'who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate * * *.' (Italics supplied.)
5
In the District Court, O'Brien argued that the 1965 Amendment prohibiting the knowing destruction or mutilation of certificates was unconstitutional because it was enacted to abridge free speech, and because it served no legitimate legislative purpose.3 The District Court rejected these arguments, holding that the statute on its face did not abridge First Amendment rights, that the court was not competent to inquire into the motives of Congress in enacting the 1965 Amendment, and that the Amendment was a reasonable exercise of the power of Congress to raise armies.
6
On appeal, the Court of Appeals for the First Circuit held the 1965 Amendment unconstitutional as a law abridging freedom of speech.4 At the time the Amendment was enacted, a regulation of the Selective Service System required registrants to keep their registration certificates in their 'personal possession at all times.' 32 CFR § 1617.1 (1962).5 Wilful violations of regulations promulgated pursuant to the Universal Military Training and Service Act were made criminal by statute. 50 U.S.C. App. § 462(b)(6). The Court of Appeals, therefore, was of the opinion that conduct punishable under the 1965 Amendment was already punishable under the nonpossession regulation, and consequently that the Amendment served no valid purpose; further, that in light of the prior regulation, the Amendment must have been 'directed at public as distinguished from private destruction.' On this basis, the court concluded that the 1965 Amendment ran afoul of the First Amendment by singling out persons engaged in protests for special treatment. The court ruled, however, that O'Brien's conviction should be affirmed under the statutory provision, 50 U.S.C. App. § 462(b)(6), which in its view made violation of the nonpossession regulation a crime, because it regarded such violation to be a lesser included offense of the crime defined by the 1965 Amendment.6
7
The Government petitioner for certiorari in No. 232, arguing that the Court of Appeals erred in holding the statute unconstitutional, and that its decision conflicted with decisions by the Courts of Appeals for the Second7 and Eighth Circuits8 upholding the 1965 Amendment against identical constitutional challenges. O'Brien cross-petitioned for certiorari in No. 233, arguing that the Court of Appeals erred in sustaining his conviction on the basis of a crime of which he was neither charged nor tried. We granted the Government's petition to resolve the conflict in the circuits, and we also granted O'Brien's cross-petition. We hold that the 1965 Amendment is constitutional both as enacted and as applied. We therefore vacate the judgment of the Court of Appeals and reinstate the judgment and sentence of the District Court without reaching the issue raised by O'Brien in No. 233.
I.
8
When a male reaches the age of 18, he is required by the Universal Military Training and Service Act to register with a local draft board.9 He is assigned a Selective Service number,10 and within five days he is issued a registration certificate (SSS Form No. 2).11 Subsequently, and based on a questionnaire completed by the registrant,12 he is assigned a classification denoting his eligibility for induction,13 and '(a)s soon as practicable' thereafter he is issued a Notice of Classification (SSS Form No. 110).14 This initial classification is not necessarily permanent,15 and if in the interim before induction the registrant's status changes in some relevant way, he may be reclassified.16 After such a reclassification, the local board 'as soon as practicable' issues to the registrant a new Notice of Classification.17
9
Both the registration and classification certificates are small white cards, approximately 2 by 3 inches. The registration certificate specifies the name of the registrant, the date of registration, and the number and address of the local board with which he is registered. Also inscribed upon it are the date and place of the registrant's birth, his residence at registration, his physical description, his signature, and his Selective Service number. The Selective Service number itself indicates his State of registration, his local board, his year of birth, and his chronological position in the local board's classification record.18
10
The classification certificate shows the registrant's name, Selective Service number, signature, and eligibility classification. It specifies whether he was so classified by his local board, an appeal board, or the President. It contains the address of his local board and the date the certificate was mailed.
11
Both the registration and classification certificates bear notices that the registrant must notify his local board in writing of every change in address, physical condition, and occupational, marital, family, dependency, and military status, and of any other fact which might change his classification. Both also contain a notice that the registrant's Selective Service number should appear on all communications to his local board.
12
Congress demonstrated its concern that certificates issued by the Selective Service System might be abused well before the 1965 Amendment here challenged. The 1948 Act, 62 Stat. 604, itself prohibited many different abuses involving 'any registration certificate, * * * or any other certificate issued pursuant to or prescribed by the provisions of this title, or rules or regulations promulgated hereunder * * *.' 62 Stat. 622. Under §§ 12(b)(1)—(5) of the 1948 Act, it was unlawful (1) to transfer a certificate to aid a person in making false identification; (2) to possess a certificate not duly issued with the intent of using it for false identification; (3) to forge, alter, 'or in any manner' change a certificate or any notation validly inscribed thereon; (4) to photograph or make an imitation of a certificate for the purpose of false identification; and (5) to possess a counterfeited or altered certificate. 62 Stat. 622. In addition, as previously mentioned, regulations of the Selective Service System required registrants to keep both their registration and classification certificates in their personal possession at all times. 32 CFR § 1617.1 (1962) (Registration Certificates);19 32 CFR § 1623.5 (1962) (Classification Certificates).20 And § 12(b)(6) of the Act, 62 Stat. 622, made knowing violation of any provision of the Act or rules and regulations promulgated pursuant thereto a felony.
13
By the 1965 Amendment, Congress added to § 12(b)(3) of the 1948 Act the provision here at issue, subjecting to criminal liability not only one who 'forges, alters, or in any manner changes' but also one who 'knowingly destroys (or) knowingly mutilates' a certificate. We note at the outset that the 1965 Amendment plainly does not abridge free speech on its face, and we do not understand O'Brien to argue otherwise. Amended § 12(b)(3) on its face deals with conduct having no connection with speech. It prohibits the knowing destruction of certificates issued by the Selective Service System, and there is nothing necessarily expressive about such conduct. The Amendment does not distinguish between public and private destruction, and it does not punish only destruction engaged in for the purpose of expressing views. Compare Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).21 A law prohibiting destruction of Selective Service certificates no more abridges free speech on its face than a motor vehicle law prohibiting the destruction of drivers' licenses, or a tax law prohibiting the destruction of books and records.
14
O'Brien nonetheless argues that the 1965 Amendment is unconstitutional in its application to him, and is unconstitutional as enacted because what he calls the 'purpose' of Congress was 'to suppress freedom of speech.' We consider these arguments separately.
II.
15
O'Brien first argues that the 1965 Amendment is unconstitutional as applied to him because his act of burning his registration certificate was protected 'symbolic speech' within the First Amendment. His argument is that the freedom of expression which the First Amendment guarantees includes all modes of 'communication of ideas by conduct,' and that his conduct is within this definition because he did it in 'demonstration against the war and against the draft.'
16
We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling;22 substantial;23 subordinating;24 paramount;25 cogent;26 strong.27 Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12(b)(3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O'Brien can be constitutionally convicted for violating it.
17
The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping. Lichter v. Uniter States, 334 U.S. 742, 755 758, 68 S.Ct. 1294, 1301—1303, 92 L.Ed. 1694 (1948); Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918); see also Ex parte Quirin, 317 U.S. 1, 25—26, 63 S.Ct. 1, 9—10, 87 L.Ed. 3 (1942). The power of Congress to classify and conscript manpower for military service is 'beyond question.' Lichter v. United States, supra, 334 U.S. at 756, 68 S.Ct. at 1302; Selective Draft Law Cases, supra. Pursuant to this power, Congress may establish a system of registration for individuals liable for training and service, and may require such individuals within reason to cooperate in the registration system. The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. And legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system's administration.
18
O'Brien's argument to the contrary is necessarily premised upon his unrealistic characterization of Selective Service certificates. He essentially adopts the position that such certificates are so many pieces of paper designed to notify registrants of their registration or classification, to be retained or tossed in the wastebasket according to the convenience or taste of the registrant. Once the registrant has received notification, according to this view, there is no reason for him to retain the certificates. O'Brien notes that most of the information on a registration certificate serves no notification purpose at all; the registrant hardly needs to be told his address and physical characteristics. We agree that the registration certificate contains much information of which the registrant needs no notification. This circumstance, however, does not lead to the conclusion that the certificate serves no purpose, but that, like the classification certificate, it serves purposes in addition to initial notification. Many of these purposes would be defeated by the certificates' destruction or mutilation. Among these are:
19
1. The registration certificate serves as proof that the individual described thereon has registered for the draft. The classification certificate shows the eligibility classification of a named but undescribed individual. Voluntarily displaying the two certificates is an easy and painless way for a young man to dispel a question as to whether he might be delinquent in his Selective Service obligations. Correspondingly, the availability of the certificates for such display relieves the Selective Service System of the administrative burden it would otherwise have in verifying the registration and classification of all suspected delinquents. Further, since both certificates are in the nature of 'receipts' attesting that the registrant has done what the law requires, it is in the interest of the just and efficient administration of the system that they be continually available, in the event, for example, of a mix-up in the registrant's file. Additionally, in a time of national crisis, reasonable availability to each registrant of the two small cards assures a rapid and uncomplicated means for determining his fitness for immediate induction, no matter how distant in our mobile society he may be from his local board.
20
2. The information supplied on the certificates facilitates communication between registrants and local boards, simplifying the system and benefiting all concerned. To begin with, each certificate bears the address of the registrant's local board, an item unlikely to be committed to memory. Further, each card bears the registrant's Selective Service number, and a registrant who has his number readily available so that he can communicate it to his local board when he supplies or requests information can make simpler the board's task in locating his file. Finally, a registrant's inquiry, particularly through a local board other than his own, concerning his eligibility status is frequently answerable simply on the basis of his classification certificate; whereas, if the certificate were not reasonably available and the registrant were uncertain of his classification, the task of answering his questions would be considerably complicated.
21
3. Both certificates carry continual reminders that the registrant must notify his local board of any change of address, and other specified changes in his status. The smooth functioning of the system requires that local boards be continually aware of the status and whereabouts of registrants, and the destruction of certificates deprives the system of a potentially useful notice device.
22
4. The regulatory scheme involving Selective Service certificates includes clearly valid prohibitions against the alteration, forgery, or similar deceptive misuse of certificates. The destruction or mutilation of certificates obviously increases the difficulty of detecting and tracing abuses such as these. Further, a mutilated certificate might itself be used for deceptive purposes.
23
The many functions performed by Selective Service certificates establish beyond doubt that Congress has a legitimate and substantial interest in preventing their wanton and unrestrained destruction and assuring their continuing availability by punishing people who knowingly and wilfully destroy or mutilate them. And we are unpersuaded that the pre-existence of the nonpossession regulations in any way negates this interest.
24
In the absence of a question as to multiple punishment, it has never been suggested that there is anything improper in Congress' providing alternative statutory avenues of prosecution to assure the effective protection of one and the same interest. Compare the majority and dissenting opinions in Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).28 Here, the pre-existing avenue of prosecution was not even statutory. Regulations may be modified or revoked from time to time by administrative discretion. Certainly, the Congress may change or supplement a regulation.
25
Equally important, a comparison of the regulations with the 1965 Amendment indicates that they protect overlapping but not identical governmental interests, and that they reach somewhat different classes of wrongdoers.29 The gravamen of the offense defined by the statute is the deliberate rendering of certificates unavailable for the various purposes which they may serve. Whether registrants keep their certificates in their personal possession at all times, as required by the regulations, is of no particular concern under the 1965 Amendment, as long as they do not mutilate or destroy the certificates so as to render them unavailable. Although as we note below we are not concerned here with the nonpossession regulations, it is not inappropriate to observe that the essential elements of nonpossession are not identical with those of mutilation or destruction. Finally, the 1965 Amendment, like § 12(b) which it amended, is concerned with abuses involving any issued Selective Service certificates, not only with the registrant's own certificates. The knowing destruction or mutilation of someone else's certificates would therefore violate the statute but not the nonpossession regulations.
26
We think it apparent that the continuing availability to each registrant of his Selective Service certificates substantially furthers the smooth and proper functioning of the system that Congress has established to raise armies. We think it also apparent that the Nation has a vital interest in having a system for raising armies that functions with maximum efficiency and is capable of easily and quickly responding to continually changing circumstances. For these reasons, the Government has a substantial interest in assuring the continuing availability of issued Selective Service certificates.
27
It is equally clear that the 1965 Amendment specifically protects this substantial governmental interest. We perceive no alternative means that would more precisely and narrowly assure the continuing availability of issued Selective Service certificates than a law which prohibits their wilful mutilation or destruction. Compare Sherbert v. Verner, 374 U.S. 398, 407—408, 83 S.Ct. 1790, 1795—1796, 10 L.Ed.2d 965 (1963), and the cases cited therein. The 1965 Amendment prohibits such conduct and does nothing more. In other words, both the governmental interest and the operation of the 1965 Amendment are limited to the noncommunicative aspect of O'Brien's conduct. The governmental interest and the scope of the 1965 Amendment are limited to preventing harm to the smooth and efficient functioning of the Selective Service System. When O'Brien deliberately rendered unavailable his registration certificate, he wilfully frustrated this governmental interest. For this noncommunicative impact of his conduct, and for nothing else, he was convicted.
28
The case at bar is therefore unlike one where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. In Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), for example, this Court struck down a statutory phrase which punished people who expressed their 'opposition to organized government' by displaying 'any flag, badge, banner, or device.' Since the statute there was aimed at suppressing communication it could not be sustained as a regulation of noncommunicative conduct. See also, NLRB v. Fruit & Vegetable Packers Union, 377 U.S. 58, 79, 84 S.Ct. 1063, 1074, 12 L.Ed.2d 129 (1964) (concurring opinion).
29
In conclusion, we find that because of the Government's substantial interest in assuring the continuing availability of issued Selective Service certificates, because amended § 462(b) is an appropriately narrow means of protecting this interest and condemns only the independent noncommunicative impact of conduct within its reach, and because the noncommunicative impact of O'Brien's act of burning his registration certificate frustrated the Government's interest, a sufficient governmental interest has been shown to justify O'Brien's conviction.
III.
30
O'Brien finally argues that the 1965 Amendment is unconstitutional as enacted because what he calls the 'purpose' of Congress was 'to suppress freedom of speech.' We reject this argument because under settled principles the purpose of Congress, as O'Brien uses that term, is not a basis for declaring this legislation unconstitutional.
31
It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. As the Court long ago stated:
32
'The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted.' McCray v. United States, 195 U.S. 27, 56, 24 S.Ct. 769, 776, 49 L.Ed. 78 (1904).
33
This fundamental principle of constitutional adjudication was reaffirmed and the many cases were collected by Mr. Justice Brandeis for the Court in State of Arizona v. State of California, 283 U.S. 423, 455, 51 S.Ct. 522, 526, 75 L.Ed. 1154 (1931).
34
Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature,30 because the benefit to sound decision-making inthis circumstance is thought sufficient to risk the possibility of misreading Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a 'wiser' speech about it.
35
O'Brien's position, and to some extent that of the court below, rest upon a misunderstanding of Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936), and Gomillion v. Lighfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). These cases stand, not for the proposition that legislative motive is a proper basis for declaring a statute unconstitutional, but that the inevitable effect of a statute on its face may render it unconstitutional. Thus, in Grosjean the Court, having concluded that the right of publications to be free from certain kinds of taxes was a freedom of the press protected by the First Amendment, struck down a statute which on its face did nothing other than impose just such a tax. Similarly, in Gomillion, the Court sustained a complaint which, if true, established that the 'inevitable effect,' 364 U.S., at 341, 81 S.Ct. at 127, of the redrawing of municipal boundaries was to deprive the petitioners of their right to vote for no reason other than that they were Negro. In these cases, the purpose of the legislation was irrelevant, because the inevitable effect—the 'necessary scope and operation,' McCray v. United States, 195 U.S. 27, 59, 24 S.Ct. 769, 777, 49 L.Ed. 78 (1904)—abridged constitutional rights. The statute attacked in the instant case has no such inevitable unconstitutional effect, since the destruction of Selective Service certificates is in no respect inevitably or necessarily expressive. Accordingly, the statute itself is constitutional.
36
We think it not amiss, in passing, to comment upon O'Brien's legislative-purpose argument. There was little floor debate on this legislation in either House. Only Senator Thurmond commented on its substantive features in the Senate. 111 Cong.Rec. 19746, 20433. After his brief statement, and without any additional substantive comments, the bill, H.R. 10306, passed the Senate. 111 Cong.Rec. 20434. In the House debate only two Congressment addressed themselves to the Amendment—Congressmen Rivers and Bray. 111 Cong.Rec. 19871, 19872. The bill was passed after their statements without any further debate by a vote of 393 to 1. It is principally on the basis of the statements by these three Congressmen that O'Brienmakes his congressional-'purpose' argument. We note that if we were to examine legislative purpose in the instant case, we would be obliged to consider not only these statements but also the more authoritative reports of the Senate and House Armed Services Committees. The portions of those reports explaining the purpose of the Amendment are reproduced in the Appendix in their entirety. While both reports make clear a concern with the 'defiant' destruction of so-called 'draft cards' and with 'open' encouragement to others to destroy their cards, both reports also indicate that this concern stemmed from an apprehension that unrestrained destruction of cards would disrupt the smooth functioning of the Selective Service System.
IV.
37
Since the 1965 Amendment to § 12(b)(3) of the Universal Military Training and Service Act is constitutional as enacted and as applied, the Court of Appeals should have affirmed the judgment of conviction entered by the District Court. Accordingly, we vacate the judgment of the Court of Appeals, and reinstate the judgment and sentence of the District Court. This disposition makes unnecessary consideration of O'Brien's claim that the Court of Appeals erred in affirming his conviction on the basis of the nonpossession regulation.31
38
It is so ordered.
39
Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
APPENDIX TO OPINION OF THE COURT.
40
PORTIONS OF THE REPORTS OF THE COMMITTEES ON ARMED SERVICES OF THE SENATE AND HOUSE EXPLAINING THE 1965 AMENDMENT.
41
The 'Explanation of the Bill' in the Senate Report is as follows:
42
'Section 12(b)(3) of the Universal Military Training and Service Act of 1951, as amended, provides, among other things, that a person who forges, alters, or changes a draft registration certificate is subject to a fine of not more than $10,000 or imprisonment of not more than 5 years, or both. There is no explicit prohibition in this section against the knowing destruction or mutilation of such cards.
43
'The committee has taken notice of the defiant destruction and mutilation of draft cards by dissident persons who disapprove of national policy. If allowed to continue unchecked this contumacious conduct represents a potential threat to the exercise of the power to raise and support armies.
44
'For a person to be subject to fine or imprisonment the destruction or mutilation of the draft card must be 'knowingly' done. This qualification is intended to protect persons who lose or mutilate draft cards accidentally.' S.Rep. No. 589, 89th Cong., 1st Sess. (1965). And the House Report explained:
45
'Section 12(b)(3) of the Universal Military Training and Service Act of 1951, as amended, provides that a person who forges, alters, or in any manner changes his draft registration card, or any notation duly and validly inscribed thereon, will be subject to a fine of $10,000 or imprisonment of not more than 5 years. H.R. 10306 would amend this provision to make it apply also to those persons who knowingly destroy or knowingly mutilate a draft registration card.
46
'The House Committee on Armed Services is fully aware of, and shares in, the deep concern expressed throughout the Nation over the increasing incidences in which individuals and large groups of individuals openly defy and encourage others to defy the authority of their Government by destroying or mutilating their draft cards.
47
'While the present provisions of the Criminal Code with respect to the destruction of Government property may appear broad enough to cover all acts having to do with the mistreatment of draft cards in the possession of individuals, the committee feels that in the present critical situation of the country, the acts of destroying or mutilating these cards are offenses which pose such a grave threat to the security of the Nation that no question whatsoever should be left as to the intention of the Congress that such wanton and irresponsible acts should be punished.
48
'To this end, H.R. 10306 makes specific that knowingly mutilating or knowingly destroying a draft card constitutes a violation of the Universal Military Training and Service Act and is punishable thereunder; and that a person who does so destroy or mutilate a draft card will be subject to a fine of not more than $10,000 or imprisonment of not more than 5 years.' H.R.Rep. No. 747, 89th Cong., 1st Sess. (1965) U.S. Congressional and Administrative News, p. 2890.
49
Mr. Justice HARLAN, concurring.
50
The crux of the Court's opinion, which I join, is of course its general statement, ante, at 377, that:
51
'a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.'
52
I wish to make explicit my understanding that this passage does not foreclose consideration of First Amendment claims in those rare instances when an 'incidental' restriction upon expression, imposed by a regulation which furthers an 'important or substantial' governmental interest and satisfies the Court's other criteria, in practice has the effect of entirely preventing a 'speaker' from reaching a significant audience with whom he could not otherwise lawfully communicate. This is not such a case, since O'Brien manifestly could have conveyed his message in many ways other than by burning his draft card.
53
Mr. Justice DOUGLAS, dissenting.
54
The Court states that the constitutional power of Congress to raise and support armies is 'broad and sweeping' and that Congress' power 'to classify and conscript manpower for military service is 'beyond question." This is undoubtedly true in times when, by declaration of Congress, the Nation is in a state of war. The underlying and basic problem in this case, however, is whether conscription is permissible in the absence of a declaration of war.1 That question has not been briefed nor was it presented in oral argument; but it is, I submit, a question upon which the litigants and the country are entitled to a ruling. I have discussed in Holmes v. United States, 390 U.S. 936, 88 S.Ct. 1835, the nature of the legal issue and it will be seen from my dissenting opinion in that case that this Court has never ruled on the question. It is time that we made a ruling. This case should be put down for reargument and heard with Holmes v. United States and with Hart v. United States, 390 U.S. 956, 88 S.Ct. 1851, 20 L.Ed.2d 871, in which the Court today denies certiorari.2
55
The rule that this Court will not consider issues not raised by the parties is not inflexible and yields in 'exceptional cases' (Duignan v. United States, 274 U.S. 195, 200, 47 S.Ct. 566, 71 L.Ed. 996) to the need correctly to decide the case before the court. E.g., Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131.
56
In such a case it is not unusual to ask for reargument (Sherman v. United States, 356 U.S. 369, 379, n. 2, 78 S.Ct. 819, 2 L.Ed.2d 848, Frankfurter, J., concurring) even on a constitutional question not raised by the parties. In Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, the petitioner had conceded that an administrative deportation arrest warrant would be valid for its limited purpose even though not supported by a sworn affidavit stating probable cause; but the Court ordered reargument on the question whether the warrant had been validly issued in petitioner's case. 362 U.S., at 219, n., par. 1, 80 S.Ct. at 687; 359 U.S. 940, 79 S.Ct. 720, 3 L.Ed.2d 674. In Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819, the petitioner argued that an exclusionary rule should apply to the fruit of an unreasonable search by state officials solely because they acted in concert with federal officers (see Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520). The Court ordered reargument on the question raised in a then pending case, Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, applicability of the Fourth Amendment to the States. U.S.Sup.Ct. Journal, October Term, 1947, p. 298. In Donaldson v. Read Magazine, 333 U.S. 178, 68 S.Ct. 591, 92 L.Ed. 628, the only issue presented, according to both parties, was whether the record contained sufficient evidence of fraud to uphold an order of the Postmaster General. Reargument was ordered on the constitutional issue of abridgment of First Amendment freedoms. 333 U.S., at 181—182, 68 S.Ct. at 593—594; Journal, October Term, 1947, p. 70. Finally, in Musser v. Utah, 333 U.S. 95, 96, 68 S.Ct. 397, 92 L.Ed. 562, reargument was ordered on the question of unconstitutional vagueness of a criminal statute, an issue not raised by the parties but suggested at oral argument by Justice Jackson. Journal, October Term, 1947, p. 87.
57
These precedents demonstrate the appropriateness of restoring the instant case to the calendar for reargument on the question of the constitutionality of a peacetime draft and having it heard with Holmes v. United States and Hart v. United States.
1
At the time of the burning, the agents knew only that O'Brien and his three companions had burned small white cards. They later discovered that the card O'Brien burned was his registration certificate, and the undisputed assumption is that the same is true of his companions.
2
He was sentenced under the Youth Corrections Act, 18 U.S.C. § 5010(b), to the custody of the Attorney General for a maximum period of six years for supervision and treatment.
3
The issue of the constitutionality of the 1965 Amendment was raised by counsel representing O'Brien in a pretrial motion to dismiss the indictment. At trial and upon sentencing, O'Brien chose to represent himself. He was represented by counsel on his appeal to the Court of Appeals.
4
O'Brien v. United States, 376 F.2d 538 (C.A.1st Cir. 1967).
5
The portion of 32 CFR relevant to the instant case was revised as of January 1, 1967. Citations in this opinion are to the 1962 edition which was in effect when O'Brien committed the crime, and when Congress enacted the 1965 Amendment.
6
The Court of Appeals nevertheless remanded the case to the District Court to vacate the sentence and resentence O'Brien. In the court's view, the district judge might have considered the violation of the 1965 Amendment as an aggravating circumstance in imposing sentence. The Court of Appeals subsequently denied O'Brien's petition for a rehearing, in which he argued that he had not been charged, tried, or convicted for nonpossession, and that nonpossession was not a lesser included offense of mutilation or destruction. O'Brien v. United States, 376 F.2d 538, 542 (C.A.1st Cir. 1967).
7
United States v. Miller, 367 F.2d 72 (C.A.2d Cir. 1966), cert. denied, 386 U.S. 911, 87 S.Ct. 855, 17 L.Ed.2d 787 (1967).
8
Smith v. United States, 368 F.2d 529 (C.A.8th Cir. 1966).
9
See 62 Stat. 605, as amended, 65 Stat. 76, 50 U.S.C. App. § 453; 32 CFR § 1613.1 (1962).
10
32 CFR § 1621.2 (1962).
11
32 CFR § 1613.43a (1962).
12
32 CFR §§ 1621.9, 1623.1 (1962).
13
32 CFR §§ 1623.1, 1623.2 (1962).
14
32 CFR § 1623.4 (1962).
15
32 CFR § 1625.1 (1962).
16
32 CFR §§ 1625.1, 1625.2, 1625.3, 1625.4, and 1625.11 (1962).
17
32 CFR § 1625.12 (1962).
18
32 CFR § 1621.2 (1962).
19
32 CFR § 1617.1 (1962), provides, in relevant part:
'Every person required to present himself for and submit to registration must, after he is registered, have in his personal possession at all times his Registration Certificate (SSS Form No. 2) prepared by his local board which has not been altered and on which no notation duly and validly inscribed thereon has been changed in any manner after its preparation by the local board. The failure of any person to have his Registration Certificate (SSS Form No. 2) in his personal possession shall be prima facie evidence of his failure to register.'
20
32 CFR § 1623.5 (1962), provides, in relevant part:
'Every person who has been classified by a local board must have in his personal possession at all times, in addition to his Registration Certificate (SSS Form No. 2), a valid Notice of Classification (SSS Form No. 110) issued to him showing his current classification.'
21
See text, infra, at 382.
22
NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); see also Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963).
23
NAACP v. Button, 371 U.S. 415, 444, 83 S.Ct. 328, 343, 9 L.Ed.2d 405 (1963); NAACP v. State of Alabama ex rel. Patterson, 357 U.S. 449, 464, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).
24
Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480 (1960).
25
Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945); see also Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963).
26
Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480 (1960).
27
Sherbert v. Verner, 374 U.S. 398, 408, 83 S.Ct. 1790, 1796, 10 L.Ed.2d 965 (1963).
28
Cf. Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961); Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957).
29
Cf. Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961); Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957).
30
The Court may make the same assumption in a very limited and well-defined class of cases where the very nature of the constitutional question requires an inquiry into legislative purpose. The principal class of cases is readily apparent—those in which statutes have been challenged as bills of attainder. This Court's decisions have defined a bill of attainder as a legislative Act which inflicts punishment on named individuals or members of an easily ascertainable group without a judicial trial. In determining whether a particular statute is a bill of attainder, the analysis necessarily requires an inquiry into whether the three definitional elements—specificity in identification, punishment, and lack of a judicial trial—are contained in the statute. The inquiry into whether the challenged statute contains the necessary element of punishment has on occasion led the Court to examine the legislative motive in enacting the statute. See, e.g., United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). Two other decisions not involving a bill of attainder analysis contain an inquiry into legislative purpose or motive of the type that O'Brien suggests we engage in in this case. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169—184, 83 S.Ct. 554, 568—575, 9 L.Ed.2d 644 (1963); Trop v. Dulles, 356 U.S. 86, 95—97, 78 S.Ct. 590, 595—596, 2 L.Ed.2d 630 (1958). The inquiry into legislative purpose or motive in Kennedy and Trop, however, was for the same limited purpose as in the bill of attainder decisions—i.e., to determine whether the statutes under review were punitive in nature. We face no such inquiry in this case. The 1965 Amendment to § 462(b) was clearly penal in nature, designed to impose criminal punishment for designated acts.
31
The other issues briefed by O'Brien were not raised in the petition for certiorari in No. 232 or in the cross-petition in No. 233. Accordingly, those issues are not before the Court.
1
Neither of the decisions cited by the majority for the proposition that Congress' power to conscript men into the armed services is "beyond question" concerns peacetime conscription. As I have shown in my dissenting opinion in Holmes v. United States, 391 U.S. 936, 88 S.Ct. 1835, 20 L.Ed.2d 856, the Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, decided in 1918, upheld the constitutionality of a conscription act passed by Congress more than a month after war had been declared on the German Empire and which was then being enforced in time of war. Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694, concerned the constitutionality of the Renegotiation Act, another wartime measure, enacted by Congress over the period of 1942—1945 (id., at 745, n. 1, 68 S.Ct. at 1297) and applied in that case to excessive war profits made in 1942—1943 (id., at 753, 68 S.Ct. at 1300). War had been declared, of course, in 1941 (55 Stat. 795). The Court referred to Congress' power to raise armies in discussing the 'background' (334 U.S., at 753, 68 S.Ct., at 1300) of the Renegotiation Act, which it upheld as a valid exercise of the War Power.
2
Today the Court also denies stays in Shiffman v. Selective Service Local Board No. 5, 391 U.S. 930, 88 S.Ct. 1831, 20 L.Ed.2d 849, and Zigmond v. Selective Service Local Board No. 16, 391 U.S. 930, 88 S.Ct. 1831, 20 L.Ed.2d 851, where punitive delinquency regulations are invoked against registrants, decisions that present a related question.
| 23
|
391 U.S. 443
88 S.Ct. 1697
20 L.Ed.2d 727
Arthur Lee RANEY et al., Petitioners,v.The BOARD OF EDUCATION OF the GOULD SCHOOL DISTRICT et al.
No. 805.
Argued April 3, 1968.
Decided May 27, 1968.
Jack Greenberg, New York City, for petitioners.
Robert V. Light, Little Rock, Ark., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case presents the question of the adequacy of a 'freedom-of-choice' plan as compliance with Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II), a question also considered today in No. 695, Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716. The factual setting is very similar to that in Green.
2
This action was brought in September 1965 in the District Court for the Eastern District of Arkansas. Injunctive relief was sought against the continued maintenance by respondent Board of Education of an alleged racially segregated school system. The school district has an area of 80 square miles and a population of some 3,000, of whom 1,800 are Negroes and 1,200 are whites. Persons of both races reside throughout the county; there is no residential segregation. The school system consists of two combination elementary and high schools located about 10 blocks apart in Gould, the district's only major town. One combination, the Gould Schools, is almost all white and the other, the Field Schools, is all-Negro. In the 1964—1965 school year the schools were totally segregated; 580 Negro children attended the Field Schools and 300 white children attended the Gould Schools. Faculties and staffs were and are segregated. There are no attendance zones, each school complex providing any necessary bus transportation for its respective pupils.
3
The state-imposed segregated system existed at the time of the decisions in Brown v. Broard of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. Thereafter racial separation was required by School Board policy. As in Green, respondent first took steps in 1965 to abandon that policy to remain eligible for federal financial aid. The Board adopted a 'freedom-of-choice' plan embodying the essentials of the plan considered in Green. It was made immediately applicable to all grades. Pupils are required to choose annually between the Gould Schools and the Field Schools and those not exercising a choice are assigned to the school previously attended.
4
The experience after three years of operation with 'freedom of choice' has mirrored that in Green. Not a single white child has sought to enroll in the all-Negro Field Schools, and although some 80 to 85 Negro children were enrolled in the Gould Schools in 1967, over 85% of the Negro children in the system still attend the all-Negro Field Schools.
5
This litigation resulted from a problem that arose in the operation of the plan in its first year. The number of children applying for enrollment in the fifth, tenth, and eleventh grades at Gould exceeded the number of places available and applications of 28 Negroes for those grades were refused. This action was thereupon filed on behalf of 16 of these children and others similarly situated. Their complaint sought injunctive relief, among other things, against their being required to attend the Field Schools, against the provision by respondent of public school facilities for Negro pupils inferior to those provided for white pupils, and against respondent's 'otherwise operating a racially segregated school system.' While the case was pending in the District Court, respondent made plans to replace the high school building at Field Schools. Petitioners sought unsuccessfully to enjoin construction at that site, contending that the new high school should be built at the Gould site to avoid perpetuation of the segregated system. Thereafter the District Court, in an unreported opinion, denied all relief and dismissed the complaint. In the District Court's view the fact that respondent had adopted 'freedom of choice' without the compulsion of a court order, that the plan was approved by the Department of Health, Education, and Welfare, and that some Negro pupils had enrolled in the Gould Schools 'seems to indicate that this plan is more than a pretense or sham to meet the minimum requirements of the law.' In light of this conclusion the District Court held that petitioners were not entitled to the other relief requested, including an injunction against building the new high school at the Field site. The Court of Appeals for the Eighth Circuit affirmed the dismissal. 381 F.2d 252. We granted certiorari, 389 U.S. 1034, 88 S.Ct. 783, 19 L.Ed.2d 822, and set the case for argument following No. 740, Monroe v. Board of Commissioners of the City of Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733.
6
The Court of Appeals suggested that 'no issue on the adequacy of the plan adopted by the Board or its implementation was raised in the District Court. Issues not fairly raised in the District Court cannot ordinarily be considered upon appeal.' 381 F.2d, at 257. Insofar as this refers to the 'freedom-of-choice' plan the suggestion is refuted by the record. Not only was the issue embraced by the prayer in petitioners' complaint for an injunction against respondent 'otherwise operating a racially segregated school system' but the adequacy of the plan was tried and argued by the parties and decided by the District Court. Moreover, the Court of Appeals went on to consider the merits, holding, in agreement with the District Court, that 'we find no substantial evidence to support a finding that the Board was not proceeding to carry out the plan in good faith.' Ibid.1 In the circumstances the question of the adequacy of 'freedom of choice' is properly before us. On the merits, our decision in Green v. County School Board, supra, establishes that the plan is inadequate to convert to a unitary, nonracial school system. As in Green, 'the school system remains a dual system. Rather than further the dismantling of the dual system, the plan has operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board. The Board must be required to formulate a new plan and, in light of other courses which appear open to the Board, such as zoning, fashion steps which promise realistically to convert promptly to a system without a 'white' school and a 'Negro' school, but just schools.' Id., 391 U.S., at 441—442, 88 S.Ct., at 1696.
7
The petitioners did not press in the Court of Appeals their appeal from the denial of their prayer to have the new high school facilities constructed at the Gould Schools site rather than at the Field Schools site. Due to the illness of the court reporter there was delay in the filing of the transcript of the proceedings in the District Court and meanwhile the construction at the Field Schools site was substantially completed. Petitioners therefore modified their position and urged in the Court of Appeals that respondent be required to convert the Gould Schools to a completely desegregated high school and the Field site to a completely desegregated primary school. The Court of Appeals rejected the proposition on the ground that it 'was not presented to the trial court and no opportunity was afforded the parties to offer evidence on the feasibility of such a plan, nor was the trial court given any opportunity to pass thereon.' 381 F.2d, at 254. Since there must be a remand, petitioners are not foreclosed from making their proposal an issue in the further proceedings.2
8
Finally, we hold that in the circumstances of this case, the District Court's dismissal of the complaint was an improper exercise of discretion. Dismissal will ordinarily be inconsistent with the responsibility imposed on the district courts by Brown II. 349 U.S., at 299—301, 75 S.Ct. 753. In light of the complexities inhering in the disestablishment of state-established segregated school systems, Brown II contemplated that the better course would be to retain jurisdiction until it is clear that disestablishment has been achieved. We agree with the observation of another panel of judges of the Court of Appeals for the Eighth Circuit in another case that the district courts 'should retain jurisdiction in school segregation cases to insure (1) that a constitutionally acceptable plan is adopted, and (2) that it is operated in a constitutionally permissible fashion so that the goal of a desegregated, non-racially operated school system is rapidly and finally achieved.' Kelley v. Altheimer, 378 F.2d 483, 489. See also Kemp v. Beasley, 389 F.2d 178.
9
The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion and with our opinion in Green v. County School Board, supra.
10
It is so ordered.
11
Judgment of Court of Appeals reversed and case remanded to the District Court.
1
Compare the developing views of the feasibility of 'freedom-of-choice' plans expressed by various panels of the Court of Appeals for the Eighth Circuit in Kemp v. Beasley, 352 F.2d 14; Clark v. Board of Education, 374 F.2d 569; Kelley v. Altheimer, 378 F.2d 483; Kemp v. Beasley, 389 F.2d 178; and Jackson v. Marvell School District No. 22, 389 F.2d 740.
2
The Court of Appeals, while denying petitioners' request for relief on appeal, did observe that
'there is no showing that the Field facilities with the new construction added could not be converted at a reasonable cost into a completely integrated grade school or into a completely integrated high school when the appropriate time for such course arrives. We note that the building now occupied by the predominantly white Gould grade school had originally been built to house the Gould High School.' 381 F.2d, at 255.
| 12
|
391 U.S. 430
88 S.Ct. 1689
20 L.Ed.2d 716
Charles C. GREEN et al.v.COUNTY SCHOOL BOARD OF NEW KENT COUNTY, VIRGINIA et al.
No. 695.
Argued April 3, 1968.
Decided May 27, 1968.
Samuel Tucker, Richmond, Va., for petitioners.
Frederick T. Gray, Richmond, Va., for respondents.
Louis F. Claiborne, Washington, D.C., for the United States, as amicus curiae, by special leave of Court. (Also in Nos. 740 and 805)
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question for decision is whether, under all the circumstances here, respondent School Board's adoption of a 'freedom-of-choice' plan which allows a pupil to choose his own public school constitutes adequate compliance with the Board's responsibility 'to achieve a system of determining admission to the public schools on a non-racial basis * * *.' Brown v. Board of Education of Topeka, Kan., 349 U.S. 294, 300 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (Brown II).
2
Petitioners brought this action in March 1965 seeking injunctive relief against respondent's continued maintenance of an alleged racially segregated school system. New Kent County is a rural county in Eastern Virginia. About one-half of its population of some 4,500 are Negroes. There is no residential segregation in the county; persons of both races reside throughout. The school system has only two schools, the New Kent school on the east side of the county and the George W. Watkins school on the west side. In a memorandum filed May 17, 1966, the District Court found that the 'school system serves approximately 1,300 pupils, of which 740 are Negro and 550 are White. The School Board operates one white combined elementary and high school (New Kent), and one Negro combined elementary and high school (George W. Watkins). There are no attendance zones. Each school serves the entire county.' The record indicates that 21 school buses—11 serving the Watkins school and 10 serving the New Kent school—travel overlapping routes throughout the county to transport pupils to and from the two schools.
3
The segregated system was initially established and maintained under the compulsion of Virginia constitutional and statutory provisions mandating racial segregation in public education, Va.Const., Art. IX, § 140 (1902); Va.Code § 22—221 (1950). These provisions were held to violate the Federal Constitution in Davis v. County School Board of Prince Edward County, decided with Brown v. Board of Education of Topeka, 347 U.S. 483, 487, 74 S.Ct. 686, 688, 98 L.Ed. 873 (Brown I). The respondent School Board continued the segregated operation of the system after the Brown decisions, presumably on the authority of several statutes enacted by Virginia in resistance to those decisions. Some of these statutes were held to be unconstitutional on their face or as applied.1 One statute, the Pupil Placement Act, Va.Code § 22—232.1 et seq. (1964), not repealed until 1966, divested local boards of authority to assign children to particular schools and placed that authority in a State Pupil Placement Board. Under that Act children were each year automatically reassigned to the school previously attended unless upon their application the State Board assigned them to another school; students seeking enrollment for the first time were also assigned at the discretion of the State Board. To September 1964, no Negro pupil had applied for admission to the New Kent school under this statute and no white pupil had applied for admission to the Watkins school.
4
The School Board initially sought dismissal of this suit on the ground that petitioners had failed to apply to the State Board for assignment to New Kent school. However on August 2, 1965, five months after the suit was brought, respondent School Board, in order to remain eligible for federal financial aid, adopted a 'freedom-of-choice' plan for desegregating the schools.2 Under that plan, each pupil, except those entering the first and eighth grades, may annually choose between the New Kent and Watkins schools and pupils not making a choice are assigned to the school previously attended; first and eighth grade pupils must affirmatively choose a school. After the plan was filed the District Court denied petitioners' prayer for an injunction and granted respondent leave to submit an amendment to the plan with respect to employment and assignment of teachers and staff on a racially nondiscriminatory basis. The amendment was duly filed and on June 28, 1966, the District Court approved the 'freedom-of-choice' plan as so amended. The Court of Appeals for the Fourth Circuit, en banc, 382 F.2d 338,3 affirmed the District Court's approval of the 'freedom-of-choice' provisions of the plan but remanded the case to the District Court for entry of an order regarding faculty 'which is much more specific and more comprehensive' and which would incorporate in addition to a 'minimal, objective time table' some of the faculty provisions of the decree entered by the Court of Appeals for the Fifth Circuit in United States v. Jefferson County Board of Education, 372 F.2d 836, aff'd en banc, 380 F.2d 385 (1967). Judges Sobeloff and Winter concurred with the remand on the teacher issue but otherwise disagreed, expressing the view 'that the District Court should be directed * * * also to set up procedures for periodically evaluating the effectiveness of the (Board's) 'freedom of choice' (plan) in the elimination of other features of a segregated school system.' Bowman v. County School Board of Charles City County, Va., 382 F.2d 326, at 330. We granted certiorari, 389 U.S. 1003, 88 S.Ct. 565, 19 L.Ed.2d 598.
5
The pattern of separate 'white' and 'Negro' schools in the New Kent County school system established under compulsion of state laws is precisely the pattern of segregation to which Brown I and Brown II were particularly addressed, and which Brown I declared unconstitutionally denied Negro school children equal protection of the laws. Racial identification of the system's schools was complete, extending not just to the composition of student bodies at the two schools but to every facet of school operations—faculty, staff, transportation, extracurricular activities and facilities. In short, the State, acting through the local school board and school officials, organized and operated a dual system, part 'white' and part 'Negro.'
6
It was such dual systems that 14 years ago Brown I held unconstitutional and a year later Brown II held must be abolished; school boards operating such school systems were required by Brown II 'to effectuate a transition to a racially nondiscriminatory school system.' 349 U.S., at 301, 75 S.Ct. at 756. It is of course true that for the time immediately after Brown II the concern was with making an initial break in a long-established pattern of excluding Negro children from schools attended by white children. The principal focus was on obtaining for those Negro children courageous enough to break with tradition a place in the 'white' schools. See, e.g., Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5. Under Brown II that immediate goal was only the first step, however. The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about; it was because of the 'complexities arising from the transition to a system of public education freed of racial discrimination' that we provided for 'all deliberate speed' in the implementation of the principles of Brown I. 349 U.S., at 299—301, 75 S.Ct. at 755. Thus we recognized the task would necessarily involve solution of 'varied local school problems.' Id., at 299, 75 S.Ct. at 756. In referring to the 'personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,' we also noted that '(t)o effectuate this interest may call for elimination of a variety of obstacles in making the transition * * *.' Id., at 300, 75 S.Ct. at 756. Yet we emphasized that the constitutional rights of Negro children required school officials to bear the burden of establishing that additional time to carry out the ruling in an effective manner 'is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date.' Ibid. We charged the district courts in their review of particular situations to
7
'consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system.' Id., at 300—301, 75 S.Ct. at 756.
8
It is against this background that 13 years after Brown II commanded the abolition of dual systems we must measure the effectiveness of respondent School Board's 'freedom-of-choice' plan to achieve that end. The School Board contends that it has fully discharged its obligation by adopting a plan by which every student, regardless of race, may 'freely' choose the school he will attend. The Board attempts to cast the issue in its broadest form by arguing that its 'freedom-of-choice' plan may be faulted only by reading the Fourteenth Amendment as universally requiring 'compulsory integration,' a reading it insists the wording of the Amendment will not support. But that argument ignores the thrust of Brown II. In the light of the command of that case, what is involved here is the question whether the Board has achieved the 'racially nondiscriminatory school system' Brown II held must be effectuated in order to remedy the established unconstitutional deficiencies of its segregated system. In the context of the state-imposed segregated pattern of long standing, the fact that in 1965 the Board opened the doors of the former 'white' school to Negro children and of the 'Negro' school to white children merely begins, not ends, our inquiry whether the Board has taken steps adequate to abolish its dual, segregated system. Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. See Cooper v. Aaron, supra, 358 U.S. at 7, 78 S.Ct. at 1404; Bradley v. School Board of City of Richmond, Va., 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187; cf. Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529. The constitutional rights of Negro school children articulated in Brown I permit no less than this; and it was to this end that Brown II commanded school boards to bend their efforts.4
9
In determining whether respondent School Board met that command by adopting its 'freedom-of-choice' plan, it is relevant that this first step did not come until some 11 years after Brown I was decided and 10 years after Brown II directed the making of a 'prompt and reasonable start.' This deliberate perpetuation of the unconstitutional dual system can only have compounded the harm of such a system. Such delays are no longer tolerable, for 'the governing constitutional principles no longer bear the imprint of newly enunciated doctrine.' Watson v. City of Memphis, supra, 373 U.S. at 529, 83 S.Ct. at 1316; see Bradley v. School Board, City of Richmond, Va., supra; Rogers v. Paul, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265. Moreover, a plan that at this late date fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is also intolerable. 'The time for mere 'deliberate speed' has run out,' Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 234, 84 S.Ct. 1226, 1235, 12 L.Ed.2d 256, 'the context in which we must interpret and apply this language (of Brown II) to plans for desegregation has been significantly altered.' Goss v. Board of Education of City of Knoxville, Tenn., 373 U.S. 683, 689, 83 S.Ct. 1405, 1409, 10 L.Ed.2d 632. See Calhoun v. Latimer, 377 U.S. 263, 84 S.Ct. 1235, 12 L.Ed.2d 288. The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.
10
The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives which may be shown as feasible and more promising in their effectiveness. Where the court finds the board to be acting in good faith and the proposed plan to have real prospects for dismantling the state-imposed dual system 'at the earliest practicable date,' then the plan may be said to provide effective relief. Of course, the availability to the board of other more promising courses of action may indicate a lack of good faith; and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method. Moreover, whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed. See Raney v. Board of Education of Gould School District, 391 U.S. 443, at 449, 88 S.Ct. 1697, at 1700, 20 L.Ed.2d 727.
11
We do not hold that 'freedom of choice' can have no place in such a plan. We do not hold that a 'freedom-of-choice' plan might of itself be unconstitutional, although that argument has been urged upon us. Rather, all we decide today is that in desegregating a dual system a plan utilizing 'freedom of choice' is not an end in itself. As Judge Sobeloff has put it,
12
"Freedom of choice' is not a sacred talisman; it is only a means to a constitutionally required end—the abolition of the system of segregation and its effects. If the means prove effective, it is acceptable, but if it fails to undo segregation, other means must be used to achieve this end. The school officials have the continuing duty to take whatever action may be necessary to create a 'unitary, nonracial system." Bowman v. County School Board of Charles City County, 382 F.2d 326, 333 (C.A.4th Cir. 1967) (concurring opinion).
13
Accord, Kemp v. Beasley, 389 F.2d 178 (C.A.8th Cir. 1968); United States v. Jefferson County Board of Education, supra. Although the general experience under 'freedom of choice' to date has been such as to indicate its ineffectiveness as a tool of desegregation,5 there may well be instances in which it can serve as an effective device. Where it offers real promise of aiding a desegregation program to effectuate conversion of a state-imposed dual system to a unitary, non-racial system there might be no objection to allowing such a device to prove itself in operation. On the other hand, if there are reasonably available other ways, such for illustration as zoning, promising speedier and more effective conversion to a unitary, nonracial school system, 'freedom of choice' must be held unacceptable.
14
The New Kent School Board's 'freedom-of-choice' plan cannot be accepted as a sufficient step to 'effectuate a transition' to a unitary system. In three years of operation not a single white child has chosen to attend Watkins school and although 115 Negro children enrolled in New Kent school in 1967 (up from 35 in 1965 and 111 in 1966) 85% of the Negro children in the system still attend the all-Negro Watkins school. In other words, the school system remains a dual system. Rather than further the dismantling of the dual system, the plan has operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board. The Board must be required to formulate a new plan and, in light of other courses which appear open to the Board, such as zoning,6 fashion steps which promise realistically to convert promptly to a system without a 'white' school and a 'Negro' school, but just schools.
15
The judgment of the Court of Appeals is vacated insofar as it affirmed the District Court and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.
1
E.g., Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256; Green v. School Board of City of Roanoke, 304 F.2d 118 (C.A.4th Cir. 1962); Adkins v. School Board of City of Newport News, 148 F.Supp. 430 (D.C.E.D.Va.), aff'd, 246 F.2d 325 (C.A.4th Cir. 1957); James v. Almond, 170 F.Supp. 331 (D.C.E.D.Va.1959); Harrison v. Day, 200 Va. 439, 106 S.E.2d 636 (1959).
2
Congress, concerned with the lack of progress in school desegregation, included provisions in the Civil Rights Act of 1964 to deal with the problem through various agencies of the Federal Government. 78 Stat. 246, 252, 266, 42 U.S.C. §§ 2000c et seq., 2000d et seq., 2000h—2. In Title VI Congress declared that
'No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.' 42 U.S.C. § 2000d.
The Department of Health, Education, and Welfare issued regulations covering racial discrimination in federally aided school systems, as directed by 42 U.S.C. § 2000d—1, and in a statement of policies, or 'guidelines,' the Department's Office of Education established standards according to which school systems in the process of desegregation can remain qualified for federal funds. 45 CFR §§ 80.1—80.13, 181.1—181.76 (1967). 'Freedom-of-choice' plans are among those considered acceptable, so long as in operation such a plan proves effective. 45 CFR § 181.54. The regulations provide that a school system 'subject to a final order of a court of the United States for the desegregation of such school * * * system' with which the system agrees to comply is deemed to be in compliance with the statute and regulations. 45 CFR § 80.4(c). See also 45 CFR § 181.6. See generally Dunn, Title VI, the Guidelines and School Desegregation in the South, 53 Va.L.Rev. 42 (1967); Note, 55 Geo.L.J. 325 (1966); Comment, 77 Yale L.J. 321 (1967).
3
This case was decided per curiam on the basis of the opinion in Bowman v. County School Board of Charles City County, 382 F.2d 326, decided the same day. Certiorari has not been sought for the Bowman case itself.
4
'We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.' Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709. Compare the remedies discussed in, e.g., NLRB v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 60 S.Ct. 203, 84 L.Ed. 219; United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160; Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 34 L.R.A.,N.S., 834. See also Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 232—234, 84 S.Ct. 1226, 1233—1235, 12 L.Ed.2d 256.
5
The views of the United States Commission on Civil Rights, which we neither adopt nor refuse to adopt, are as follows:
'Freedom of choice plans, which have tended to perpetuate racially identifiable schools in the Southern and border States, require affirmative action by both Negro and white parents and pupils before such disestablishment can be achieved. There are a number of factors which have prevented such affirmative action by substantial numbers of parents and pupils of both races:
'(a) Fear of retaliation and hostility from the white community continue to deter many Negro families from choosing formerly all-white schools;
'(b) During the past school year (1966—1967), as in the previous year, in some areas of the South, Negro families with children attending previously all-white schools under free choice plans were targets of violence, threats of violence and economic reprisal by white persons and Negro children were subjected to harassment by white classmates notwithstanding conscientious efforts by many teachers and principals to prevent such misconduct;
'(c) During the past school year, in some areas of the South public officials improperly influenced Negro families to keep their children in Negro schools and excluded Negro children attending formerly all-white schools from official functions;
'(d) Poverty deters many Negro families in the South from choosing formerly all-white schools. Some Negro parents are embarrassed to permit their children to attend such schools without suitable clothing. In some districts special fees are assessed for courses which are available only in the white schools;
'(e) Improvements in facilities and equipment * * * have been instituted in all-Negro schools in some school districts in a manner that tends to discourage Negroes from selecting white schools.'
Southern School Desegregation, 1966—1967, at 88 (1967). See id., at 45—69; Survey of School Desegregation in the Southern and Border States 1965—1966, at 30—44, 51—52) U.S. Comm'n on Civil Rights 1966).
6
'In view of the situation found in New Kent County, where there is no residential segregation, the elimination of the dual school system and the establishment of a 'unitary, non-racial system' could be readily achieved with a minimum of administrative difficulty by means of geographic zoning—simply by assigning students living in the eastern half of the county to the New Kent School and those living in the western half or the county to the Watkins School. Although a geographical formula is not universally appropriate, it is evident that here the Board, by separately busing Negro children across the entire county to the 'Negro' school, and the white children to the 'white' school, is deliberately maintaining a segregated system which would vanish with non-racial geographic zoning. The conditions in this county present a classical case for this expedient.' Bowman v. County School Board of Charles City County, supra, n. 3, at 332 concurring opinion).
Petitioners have also suggested that the Board could consolidate the two schools, one site (e.g., Watkins) serving grades 1—7 and the other (e.g., New Kent) serving grades 8—12, this being the grade division respondent makes between elementary and secondary levels. Petitioners contend this would result in a more efficient system by eliminating costly duplication in this relatively small district while at the same time achieving immediate dismantling of the dual system.
These are two suggestions the District Court should take into account upon remand, along with any other proposed alternatives and in light of considerations respecting other aspects of the school system such as the matter of faculty and staff desegregation remanded to the court by the Court of Appeals.
| 12
|
391 U.S. 492
88 S.Ct. 1743
20 L.Ed.2d 763
W. Willard WIRTZ, Secretary of Labor, United States Dept. of Labor, Petitioner,v.HOTEL, MOTEL AND CLUB EMPLOYEES UNION, LOCAL 6.
No. 891.
Argued April 29, 1968.
Decided June 3, 1968.
Harris Weinstein, Washington, D.C., for petitioner.
Sidney E. Cohn, New York City, for respondent.
Laurence Gold, Washington, D.C., for American Federation of Labor and Congress of Industrial Organizations, as amicus curiae.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This action was brought by petitioner, the Secretary of Labor, in the District Court for the Southern District of New York for a judgment declaring void the May 1965 election of officers conducted by respondent Local 6, and ordering a new election under the Secretary's supervision. The action is authoritzed by § 402(b) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 534, 29 U.S.C. § 482(b). The Secretary charged that a bylaw of the Local which limited eligibility for major elective offices to union members who hold or have previously held elective office1 was not a 'reasonable qualification' within the intendment of the provision of § 401(e) of the Act, 29 U.S.C. § 481(e), that 'every member in good standing shall be eligible to be a candidate and to hold office (subject to * * * reasonable qualifications uniformly imposed) * * *.'2 He charged further that enforcement of the bylaw 'may have affected the outcome' of the election within the meaning of § 402(c), 29 U.S.C. § 482(c).3
2
The District Court, after hearing, entered a judgment which declared that the prior-office requirement was not reasonable, but also declared that it could not be found that its enforcement in violation of § 401(e) 'may have affected the outcome' of the election. The court therefore refused to set aside the May 1965 election and to order a new election under the Secretary's supervision, but did grant an injunction against enforcement of the bylaw in future elections. 265 F.Supp. 510. The Court of Appeals for the Second Circuit reversed the provision of the judgment which declared the bylaw not to be reasonable and its enforcement violative of § 401(e), and set aside the injunction.4 The court found it unnecessary in that circumstance to decide whether enforcement of the bylaw at the election may have affected the outcome. 381 F.2d 500. We granted certiorari. 390 U.S. 919, 88 S.Ct. 852, 19 L.Ed.2d 979. We hold that the restriction was not reasonable and that its enforcement may have affected the outcome of the election. The Secretary is therefore entitled to an order directing a new election under his supervision.
I.
3
Title IV is one of the seven titles of the Labor-Management Reporting and Disclosure Act (LMRDA). Earlier this Term, we observed that 'Title IV's special function in furthering the overall goals of the LMRDA is to insure 'free and democratic' elections. 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.' Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U.S. 463, 470 471, 88 S.Ct. 643, 647—648, 19 L.Ed.2d 705. The Court of Appeals, however, in considering the reasonableness of the bylaw, emphasized only the congressional concern not to intervene unnecessarily in internal union affairs, stating that '(i)n deciding the issue of reasonableness we must keep in mind the fact that the Act did not purport to take away from labor unions the governance of their own internal affairs and hand that governance over either to the courts or to the Secretary of Labor. The Act strictly limits official interference in the internal affairs of unions.' 381 F.2d, at 504. But this emphasis overlooks the fact that the congressional concern to avoid unnecessary intervention was balanced against the policy expressed in the Act to protect the public interest by assuring that union elections would be conducted in accordance with democratic principles. As we said in Wirtz v. Local 153, Glass Bottle Blowers Assn., supra, 389 U.S. at 473, 88 S.Ct. at 649, decided after the Court of Appeals decided this case, '* * * 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.' Thus, 'the freedom allowed unions to run their own elections was reserved for those elections which conform to the democratic principles written into § 401.' Id., at 471, 88 S.Ct. at 648. In a companion case, Wirtz v. Local Union No. 125, Laborers' Int'l Union, etc., 389 U.S. 477, 483, 88 S.Ct. 639, 642, 19 L.Ed.2d 716, we said that the provisions of § 401 are 'necessary protections of the public interest as well as of the rights and interests of union members.' In sum, in § 401 '* * * Congress emphatically asserted a vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member.' Wirtz v. Local 153, Glass Bottle Blowers Assn., supra, 389 U.S. at 475, 88 S.Ct. at 650.
4
A pervasive theme in the congressional debates about the election provisions was that revelations of corruption, dictatorial practices and racketeering in some unions investigated by Congress5 indicated a need to protect the rights of rank-and-file members to participate fully in the operation of their union through processes of democratic self-government, and, through the election process, to keep the union leadership responsive to the membership. This theme is made explicit in the reports of the Labor Committees of both Houses of Congress.6 It is reflected in the discrete provisions of Title IV and also of Title I, the 'Bill of Rights' for union members. 29 U.S.C. § 411. Title IV, and particularly § 401, was the vehicle by which Congress expressed its policy. That section prescribes standards to govern the conduct of union elections: International union elections must be held at least once every five years and local elections at least once every three years. Elections must be by secret ballot. Specific provisions insure equality of treatment in the mailing of campaign literature; require adequate safeguards to insure a fair election; guarantee a 'reasonable opportunity' for the nomination of candidates, the right to vote, and the right of every member in good standing to be a candidate subject to 'reasonable qualifications uniformly imposed,' the guarantee with which we are concerned in this case. 29 U.S.C. § 481(a)—(e). Furthermore, although Congress emphatically gave unions the primary responsibility for enforcing compliance with the Act, Congress also settled enforcement authority on the Secretary of Labor to insure that serious violations would not go unremedied and the public interest go unvindicated. See Wirtz v. Local 153, Glass Bottle Blowers Assn., supra; Wirtz v. Laborers' Int'l Union, etc., supra; Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190.7
5
Congress plainly did not intend that the authorization in § 401(e) of 'reasonable qualifications uniformly imposed' should be given a broad reach. The contrary is implicit in the legislative history of the section and in its wording that 'every member in good standing shall be eligible to be a candidate and to hold office * * *.' This conclusion is buttressed by other provisions of the Act which stress freedom of members to nominate candidates for office.8 Unduly restrictive candidacy qualifications can result in the abuses of entrenched leadership that the LMRDA was expressly enacted to curb. The check of democratic elections as a preventive measure is seriously impaired by candidacy qualifications which substantially deplete the ranks of those who might run in opposition to incumbents.
6
It follows therefore that whether the Local 6 bylaw is a 'reasonable qualification' within the meaning of § 401(e) must be measured in terms of its consistency with the Act's command to unions to conduct 'free and democratic' union elections.
II.
7
Local 6 has 27,000 members, assets of $2,300.000, and assets in welfare, pension, and medical funds of some $30,000,000. The Local represents bartenders, maids, dining room employees, and kitchen employees of hotels, motels, and private clubs in New York. It is structured into six geographic districts, each with five craft departments, for hotel and motel employees, and a seventh district for private clubs. The various crafts have their own representatives in each hotel, motel, or club. An Assembly, composed in 1965 of 372 members, meets four times a year and is the basic representative body. The delegates are elected from among the craft units within each of the seven districts on the basis of one delegate for each 75 members of a craft. The Assembly in turn elects from its membership an Executive Board on the basis of one board member for each 500 members, augmented by principal officers and by nonvoting business agents, 31 of whom are elected from the seven districts and others who are appointed by the Assembly. The Executive Board meets monthly. There is also an Administrative Board made up of, in addition to general officers, seven district vice-presidents elected from the districts and elected or appointed delegates to the New York Hotel and Motel Trades Council. Finally there are four paid full-time general officers—President, Secretary-Treasurer, General Organizer, and Recording Secretary, all elected by the membership at large. Terms of office are three years. In practice the affairs of the Local are administered by the general officers and the Administrative Board.
8
The bylaw under challenge9 limited eligibility for positions as a general officer, district vice-president or elected business agent to members of either the Assembly or the Executive Board or members who, 'at some time in the past, have served at least one term on either the Executive Board, the Assembly, or the old Shop Delegates Council.' The Shop Delegates Council was abolished in 1951 and replaced by the Assembly. These qualifications apply, however, only to members who stand for election for office. Vacancies may not always be filled by election; the general officers may in such cases fill vacancies by appointment of members without prior office-holding experience, with the approval of the Executive Board and the Assembly.
9
By the terms of the bylaw, in the May 1965 election only 1,725 of the 27,000 members were eligible to run for office. Of these, 1,182, or 70%, were eligible only because of service on the Shop Delegates Council which had been abolished 14 years earlier. Thus, only 543 of the eligibles, some 2% of the membership, had at some time or other served at least a term in the Assembly, designated in the bylaws as 'the highest body of the Union,' since its creation in 1951.
10
Five elections were held between 1951 and 1965. All of them were won by the 'Administration Party,' whose slates were composed largely of incumbents. Until the May 1965 election there was only token opposition to those slates. Early in 1965, however, a 'Membership Party' was organized. It attempted to field a slate of candidates to oppose the 'Administration Party' slate for, among others, the four general offices and for 13 of the 27 vice-president and business agent posts. But enforcement of the bylaw disqualified the 'Membership Party' candidates for the general office of Secretary-Treasurer and for eight of the district offices.10 Other 'Membership Party' nominees were disqualified for lack of good standing. In result, the 'Membership Party' slate was reduced to candidates for the offices of president, general organizer, and business agent in two districts. The 'Administration Party' ran a full slate and elected its candidates by margins up to 7 to 1. Following the election, 'Membership Party' members protested the validity of the bylaw and, after unsuccessfully exhausting internal union remedies as required by § 402(a) (1), filed the complaint with the Secretary of Labor as authorized by that section which in due course led to the Secretary's filing this action.
11
Plainly, given the objective of Title IV, a candidacy limitation which renders 93% of union members ineligible for office can hardly be a 'reasonable qualification.' The practical effect of the limitation was described by the District Court:
12
'In practice it was not possible to be elected to the Assembly except with the blessing of the Administration Party conferred by selection to run for the Assembly on Row A (of a voting machine). This was doubtless in large part because there was never a full slate of opposing candidates for the Assembly. The candidates to run on Row A for the Assembly were selected by the incumbent group of officers and were put in nomination after caucuses of invited members, attended by officers. It was only natural that candidates selected to run on Row A for the Assembly would be supporters of the administration. All candidates on Row A were pledged to support each other. Dissidents could not be elected to the Assembly. * * *
13
'Since 1951 the only way new members could become eligible for office was to win election to the Assembly. But in this period the only candidates which won such election were those who ran on Row A, the administration ticket. The only way to run on Row A was to be selected by the administration. Thus, dissidents could not become eligible to be opposing candidates for office and effective opposition was thus sharply curtailed.' 265 F.Supp., at 516, 520.
14
The Local attempts to defend the restriction as a 'reasonable qualification' by citing the concededly impressive record of the 'Administration Party' in running the Local's affairs since 1951. There is no reason to doubt that the Local has enjoyed enlightened and aggressive leadership. But that fact does not sustain the Local's burden. Congress designed Title IV to curb the possibility of abuse by benevolent as well as malevolent entrenched leaderships.
15
The Local also argues that the high annual turnover in membership, the diverse interests of the various craft units and the multimillion-dollar finances of the Local justify the bylaw as a measure to limit the holding of important union offices to those members who have acquired a familiarity with the Local's problems by service in lesser offices. That argument was persuasive with the Court of Appeals, which said:
16
'(I)t is not self-evident that basic minimum principles of union democracy require that every union entrust the administration of its affairs to untrained and inexperienced rank and file members. * * * It does not Seem to us to be surprising that the union should hesitate to permit a cook or a waiter or a dishwasher without any training or experience in the management of union affairs to take on responsibility for the complex and difficult problems of administration of this union.
17
'We do not believe that it is unreasonable for a union to condition candidacy for offices of greater responsibility upon a year (sic) of the kind of experience and training that a union member will acquire in a position such as that of membership in Local 6's Assembly.' 381 F.2d, at 505.
18
That argument is not, however, persuasive to us. It assumes that rank-and-file union members are unable to distinguish qualified from unqualified candidates for particular offices without a demonstration of a candidate's performance in other offices. But Congress' model of democratic elections was political elections in this country, and they are not based on any such assumption. Rather, in those elections the assumption is that voters will exercise common sense and judgment in casting their ballots. Local 6 made no showing that citizens assumed to make discriminating judgments in public elections cannot be relied on to make such judgments when voting as union members. Indeed the Local is not faithful to its own premise. A member need not have prior service in union office to be appointed to a vacancy in any office. Also, many members of the powerful Administrative Board become such by reason of their appointments as delegates to the New York Hotel and Motel Trades Council, another example of important officers who are not required to have had prior service. Moreover, as the District Court found, 'once such an officer is appointed, he automatically becomes a member of the Assembly and immediately becomes eligible to run thereafter for any union office. This enables the incumbent group to qualify members for elective office by a procedure not available to dissidents.' 265 F.Supp., at 520.
19
The bylaw is virtually unique in trade union practice. It has its counterpart in some other locals of this International Union but not in all; and it is not a requirement included in the International's constitution. Among other large unions only the International Ladies Garment Workers Union has a similar restriction, but that union provides members with the alternative of a union-conducted course in union management. Of 66 unions reporting receipts over $1,000,000 for 1964, only locals of ILGWU and Local 6 reported having this requirement.
20
Control by incumbents through devices which operate in the manner of this bylaw is precisely what Congress legislated against in the LMRDA. Cf. Wirtz v. Local 153, Glass Bottle Blowers Assn., supra, 389 U.S. at 474—475, 88 S.Ct. at 649—650, 19 L.Ed.2d 705. Accordingly, we hold that the bylaw is not a 'reasonable qualification' within the meaning of § 401(e).
III.
21
The Secretary was not entitled to an order for a supervised election unless the enforcement of the bylaw 'may have affected' the outcome of the May 1965 election, § 402(c), 29 U.S.C. § 482(c). The 'may have affected' language appeared in the bill passed by the Senate, S. 1555.11 The bill passed by the House, H.R. 8342, and the Kennedy-Ervin bill introduced in the Senate, S. 505, required the more stringent showing that the violation actually 'affected' the outcome. The difference was resolved in conference by the adoption of the 'may have affected' language.12 Senator Goldwater explained,
22
The provision that the finding should be made 'upon a preponderance of the evidence' was left undisturbed when the change was made. That provision is readily satisfied, however, as is the congressional purpose in changing 'affected' to 'may have affected' in order to avoid rendering the proposed 'remedy practically worthless,' by ascribing to a proved violation of § 401 the effect of establishing a prima facie case the the violation 'may have affected' the outcome. This effect may of course be met by evidence which supports a finding that the violation did not affect the result. This construction is peculiarly appropriate when the violation of § 401, as here, takes the form of a substantial exclusion of candidates from that ballot. In such case we adopt the reasoning of the Court of Appeals for the Second Circuit in Wirtz v. Local Unions 410, IUOE, 366 F.2d 438, 443:
23
'The proviso was intended to free unions from the disruptive effect of a voided election unless there is a meaningful relation between a violation of the Act and results of a particular election. For example, if the Secretary's investigation revealed that 20 percent of the votes in an election had been tampered with, but that all officers had won by an 8—1 margin, the proviso should prevent upsetting the election. * * * But in the cases at bar, the alleged violations caused the exclusion of willing candidates from the ballots. In such circumstances, there can be no tangible evidence available of the effect of this exclusion on the election; whether the outcome would have been different depends upon whether the suppressed candidates were potent vote-getters, whether more union members would have voted had candidates not been suppressed, and so forth. Since any proof relating to effect on outcome must necessarily be speculative, we do not think Congress meant to place as stringent a burden on the Secretary as the district courts imposed here.'
24
The District Court acknowledged that the issue was 'governed by the teaching of Wirtz v. Local Unions 410, etc.' and correctly held that under its principle 'a violation by disqualification of candidates does not automatically require a finding that the outcome may have been affected.' 265 F.Supp. at 520—521. We cannot make out from the court's opinion, however, whether the violation was regarded as establishing a prima facie case that the outcome was affected. But if we assume that the court accorded the violation that effect, we disagree with its conclusion that the evidence met that case. The court cited the substantial defeat of those 'Membership Party' candidates who did run, the lack of evidence that any of the disqualified nominees was a proven vote-getter, the lack of a substantial grievance or issue asserted by the 'Membership Party' against the incumbents, and the overwhelming advantage enjoyed by the 'Administration Party' of having a full slate of candidates. 265 F.Supp., at 521. We do not think that these considerations constitute proof supporting the court's conclusion. None of the factors relied on is tangible evidence against the reasonable possibility that the wholesale exclusion of members did affect the outcome. Nothing in them necessarily contradicts the logical inference that some or all of the disqualified candidates might have been elected had they been permitted to run. The defeat sufferee by the few candidates allowed to run proves nothing about the performance that might have been made by those who did not. The District Court properly perceived that the bylaw necessarily inhibited the membership generally from considering making the race, but held that any inference from this was disproved by 'the heavy vote in favor of the administration candidates * * *.' Ibid. But since 93% of the membership was ineligible under the invalid bylaw it is impossible to know that the election would not have attracted many more candidates but for the bylaw. In short, the considerations relied on by the court are pure conjecture, not evidence. We therefore conclude that the prima facie case established by the violation was not met by evidence which supports the District Court's finding that the violation did not affect the result.
25
The judgment of the Court of Appeals is reversed and the case is remanded to the District Court with direction to order a new election under the Secretary's supervision.
26
It is so ordered.
27
Reversed and remanded with directions.
28
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
1
The bylaw provided:
'In order to be eligible for nomination as an officer, a candidate must possess the following qualifications: (1) He must be a member of the Union in continuous good standing for a period of two years immediately preceding his nomination; (2) He must be a member of either the Assembly or the Executive Board, or else, at some time in the past, have served at least one term on either the Executive Board, the Assembly, or the old Shop Delegates Council. In order to be eligible for nomination as a member of the Executive Board, as a delegate to the Assembly, or as a department delegate, a candidate must be a member of the Union in continuous good standing for a period of at least one year immediately preceding his nomination.'
2
Section 401(e) provides in pertinent part:
'In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office (subject to section 504 of this title and to reasonable qualifications uniformly imposed) and shall have the right to vote for or otherwise support the candidate or candidates of his choice, without being subject to penalty, discipline, or improper interference or reprisal of any kind by such organization or any member thereof. * * *' 29 U.S.C. § 481(e).
3
Section 402(c) provides:
'If, upon a preponderance of the evidence after a trial upon the merits, the court finds—
'(2) that the violation of section 481 of this title 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. * * *' 29 U.S.C. § 482(c).
4
Judge Dimock dissented from the reversal of the declaratory judgment but concurred in the setting aside of the injunction. However, he did not join the majority in holding that the District Court was without power to enjoin future violations; his concurrence was 'based upon the Secretary's concession of lack of power in the district court.' 381 F.2d, at 507. This issue is not before us.
The District Court did not consider other violations alleged in the complaint because no member of Local 6 had first invoked union remedies to redress them pursuant to § 402(a). In light of our decision we need not consider the Secretary's argument that a member's protest triggers a § 402 enforcement action in which the Secretary may challenge any violation of § 401 discovered in his investigation of the member's complaint and brought to the attention of the union. Cf. Wirtz v. Local Union No. 125, Laborers' Int'l Union, etc., 389 U.S. 477, 481—482, 88 S.Ct. 639, 641—642, 19 L.Ed.2d 716.
5
See Report of the Senate Committee on Improper Activities in the Labor or Management Field, S.Rep. No. 1417, 85th Cong., 2d Sess. (1958). See discussion in Wirtz v. Local 153, Glass Bottle Blowers Assn., supra, at 469—470, 88 S.Ct. at 647—648.
6
'* * * Like other American institutions some unions have become large and impersonal; they have acquired bureaucratic tendencies and characteristics; their members like other Americans have sometimes become apathetic in the exercise of their personal responsibility for the conduct of union affairs. * * *
'* * * (E)ffective measures to stamp out crime and corruption and guarantee internal union democracy, cannot be applied to all unions without the coercive powers of government * * *.
'* * * Union members have a vital interest * * * in the policies and conduct of union affairs. To the extent that union procedures are democratic they permit the individual to share in the formulation of union policy. This is not to say that in order to have democratically responsive unions, it is necessary to have each union member make decisions on detail as in a New England town meeting. What is required is the opportunity to influence policy and leadership by free and periodic elections.
'It needs no argument to demonstrate the importance of free and democratic union elections. * * * The Government which gives unions * * * power has as 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 union elections.' S.Rep. No. 187, 86th Cong., 1st Sess., 6—7, 20 (1959); I Leg.Hist. 402—403, 416. And see H.R.Rep. No. 741, 86th Cong., 1st Sess., 6—7, 15—16 (1959); I Leg.Hist. 764—765, 773—774 U.S. Code Congressional and Administrative News, p. 2336.
7
See, e.g., S.Rep. No. 187, supra, n. 6, at 34; H.R.Rep. No. 741, supra, n. 6, at 26—27; I Leg.Hist. 430, 784—785.
For the general background and legislative history of the Act, see generally Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv.L.Rev. 851 (1960); Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819 (1960); Levitan & Loewenberg, The Politics and Provisions of the Landrum-Griffin Act, in Regulating Union Government 28 (M. Estey, P. Taft, & M. Wagner eds. 1964); Rezler, Union Elections: The Background of Title IV of LMRDA, in Symposium on LMRDA 475 (R. Slovenko ed. 1961).
8
See 29 U.S.C. § 481(e): 'a reasonable opportunity shall be given for the nomination of candidates * * *'; id., § 411(a)(1): 'Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates * * *.'
9
The Local has amended its bylaw to liberalize the candidacy requirements (making eligible department delegates and members of five years' good standing) and the amended bylaw was to govern an election scheduled for May 16, 1968. The District Court held the amended bylaw also unreasonable, but that ruling is not before us. 265 F.Supp., at 522—523. In any event, respondent's argument that the amendment renders this case moot is foreclosed by Wirtz v. Local 153, Glass Bottle Blowers Assn., supra, 389 U.S. at 475—476, 88 S.Ct. at 650—651. See also Wirtz v. Local Union No. 125, Laborers' Int'l Union, etc., supra, 389 U.S. at 479, 88 S.Ct. at 640.
10
For example, the 'Membership Party' nominee for one of the vice presidencies was a department delegate (or shop steward) who had been active in his district council meetings; but he was ruled ineligible since he had not held office in the Assembly.
11
Senator Kennedy had introduced, and the Senate had passed, similar legislation in the 85th Congress which died in the House. Senator Kennedy's bill, S. 3751, included the 'may have affected' language. In introducing the measure, he noted that '(i)f the United States District Court agrees with the Secretary, that there has been a substantial violation of the provisions of the bill, then he shall void the election * * *.' 104 Cong.Rec. 7954. (Emphasis supplied.) The Senate-passed version, S. 3974, retained the language and the report on the bill sais this:
'Since an election is not to be set aside for technical violations but only if there is reason to believe that the violations has probably affected the outcome of the election, the Secretary would not file a complaint unless there were also probable cause to believe that this condition was satisfied. * * * After a hearing on the merits the court would determine whether a violation had occurred which might have affected the outcome of an election.' S.Rep. No. 1684, 85th Cong., 2d Sess., 13 (1958). (Emphasis supplied.)
Why Senator Kennedy modified the language in S. 505 is not explained.
12
The Conference Report noted the change as follows:
'In subsection (c) of section 402, the conference substitute adopts the provision of the Senate bill that directs the court to set aside an election if the violation 'may have' affected the outcome. Under the House amendment an election could be set aside only if the violation did affect the outcome.' H.R.Conf.Rep. No. 1147, 86th Cong., 1st Sess., 35 (1959); I Leg.Hist. 939.
'The Kennedy-Ervin bill (S. 505), as introduced, authorized the court to declare an election void only if the violation of section 401 actually affected the outcome of the election rather than may have affected such outcome. The difficulty of proving such an actuality would be so great as to render the professed remedy practically worthless. Minority members in committee secured an amendment correcting this glaring defect and the amendment is contained in the conference report.' 105 Cong.Rec. 19765.
| 67
|
391 U.S. 596
88 S.Ct. 1713
20 L.Ed.2d 838
Harvey JOHNSONv.FLORIDA.
No. 1393, Misc.
June 3, 1968.
Earl Faircloth, Atty. Gen. of Florida, and Harold Mendelow, Asst. Atty. Gen., for appellee.
PER CURIAM.
1
Appellant was charged with violating a Florida vagrancy statute, Fla.Stat. § 856.02, F.S.A., which makes it a misdemeanor to be found 'wandering or strolling around from place to place without any lawful purpose or object.'
2
Officer Havens testified that he and Officer Carani were patrolling the Bird Road area of Dade County at about 4:25 a.m. when they saw appellant seated on a bench at a bus stop. The officers stopped and asked him why he was there. He replied that he was waiting for a bus. Havens told him that the last Bird Road bus had run at 11 p.m. and that buses did not resume service until 7 a.m. Havens then asked him where he had been. He said he had been to a theatre (which was about two miles away) and afterwards had gone to the house of his girl friend, Joyce, who lived near the theatre.
3
On Havens' request, appellant supplied identification which showed he was age 18 and lived in that area of the county.
4
Havens then asked him if he had ever been in trouble with the law. He replied that he was on probation from a breaking and entering charge and had a 10 p.m. curfew. He was then asked to account for his whereabouts from 11 p.m. to 4:30 a.m. He explained that he got out of the movie about 10:30 or 10:45, went to Joyce's house, and after leaving her place, and reaching the bus stop had waited some three hours for a bus. The officers did not discuss with appellant the means or manner by which he got to the bus stop from the theatre and Joyce's house; and the record does not supply that information. Appellant apparently had phoned for a cab after waiting on the bench two or three hours for a bus. Havens asked appellant how much money he had on his person. Appellant said he had 70¢ or 80¢. Havens told appellant this was not enough cabfare to get to appellant's residence. It was then that he was arrested.
5
The area where appellant was arrested is a mixed residential-business area with several stores, including a store, open 24 hours a day, directly across from where appellant sat on the bench. That store was well lighted. Where appellant sat was not lighted. Officer Carani added that there was a cab stand nearby (some 1,200 feet away) but that no cabs were seen in the area by him at the time appellant was interrogated.
6
Appellant, who waived a trial by jury, moved for directed verdict, arguing there was no proof that he wandered, no proof of absence of lawful purpose and no proof that a bus would not soon have come to the bus stop.
7
The motion was denied, the defense presented no evidence, appellant was convicted, and he was placed on probation for a year. The Florida Supreme Court affirmed. The case is here by appeal.*
8
The prosecution emphasized that appellant had failed to account for any 'lawful purpose' during the time he sat on the bench for some three hours. The burden, however, is on the State to prove that an accused has committed an act bringing him within a criminal statute. The essential ingredients of the crime charged were 'wandering or strolling around from place to place without any lawful purpose or object.' The fact that he was on probation with a 10 p.m. curfew and out long after that hour may be held to establish that ingredient of the crime of no 'lawful purpose or object.' But he was not wandering, or strolling, only sitting. The bench where he sat was made for sitting and he was using it for that purpose in the precise place where the bench had been placed. And he had sat there for some hours. We therefore conclude that so far as the 'wandering or strolling' ingredient of the crime is concerned, the record is lacking in any evidence to support the judgment. In line with Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, and without reaching other constitutional questions that are tendered, we must therefore grant the motion for leave to proceed in forma pauperis and reverse the judgment below.
9
Reversed.
10
Mr. Justice BLACK and Mr. Justice STEWART would dismiss the appeal.
11
Mr. Justice WHITE, with whom Mr. Justice HARLAN joins, dissenting.
12
Florida's courts have obviously interpreted their statute to permit a showing that a defendant was on a park bench at 4:25 a.m. 'without any lawful purpose or object' to establish a prima facie case that the defendant was 'wandering or strolling around' without lawful purpose. Most inhabitants of park benches reach their bench by wandering or strolling. So interpreting the statute, constitutionally sufficient amounts of evidence were presented.
13
The Court does not reach the claim appellant makes here, that Florida's statute offends the Constitution because it is vague. That claim is substantial, and I would note probable jurisdiction and set the case for oral argument.
*
The judgment of the Florida Supreme Court from which this appeal is taken was entered October 4, 1967. Appellant's notice of appeal, filed December 30, 1967, was timely under Rule 11(1) of the Rules of this Court. The appeal was not docketed until 56 days after the time provided in Rule 13(1) expired. This defect, however, is not jurisdictional. Pittsburgh Towing Co. v. Mississippi Valley Barge Line Co., 385 U.S. 32, 87 S.Ct. 195, 17 L.Ed.2d 31.
| 34
|
391 U.S. 585
88 S.Ct. 1755
20 L.Ed.2d 828
Johnny SABBATH, Petitioner,v.UNITED STATES.
No. 898.
Argued May 2, 1968.
Decided June 3, 1968.
Murray H. Bring, Washington, D.C., for petitioner.
John S. Martin, Jr., Washington, D.C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The issue in this case is whether petitioner's arrest was invalid because federal officers opened the closed but unlocked door of petitioner's apartment and entered in order to arrest him without first announcing their identity and purpose. We hold that the method of entry vitiated the arrest and therefore that evidence seized in the subsequent search incident thereto should not have been admitted at petitioner's trial.
2
On February 19, 1966, one William Jones was detained at the border between California and Mexico by United States customs agents, who found in his possession and ounce of cocaine. After some questioning, Jones told the agents that he had been given the narcotics in Tijuana, Mexico, by a person named 'Johnny,' whom he had accompanied there from Los Angeles. He said he was to transport the narcotics to 'Johnny' in the latter city.
3
Also found in Jones' possession was a card on which was written the name 'Johnny' and a Los Angeles telephone number. On the following day at about 3 p.m., Jones made a call to the telephone number listed on the card; a customs agent dialed the number, and with Jones' permission, listened to the ensuing conversation. A male voice answered the call, and Jones addressed the man as 'Johnny.' Jones said he was in San Diego, and still had 'his thing.' The man asked Jones if he had 'any trouble getting through the line.' Jones replied that he had not. Jones inquired whether 'Johnny' planned to remain at home, and upon receiving an affirmative answer, indicated that he was on his way to Los Angeles, and would go to the man's apartment.
4
At about 7:30 that evening, the customs agents went with Jones to an apartment building in Los Angeles. The agents returned to Jones the cocaine they had seized from him, and placed a small broadcasting device on him. The agents waited outside the building, listening on a receiving apparatus. Jones knocked on the apartment door; a woman answered. Jones asked if 'Johnny' was in, and was told to wait a minute. Steps were heard and then a man asked Jones something about 'getting through the line.' Because of noise from a phonograph in the apartment, reception from the broadcasting device on Jones' person was poor, but agents did hear the word 'package.'
5
The customs agents waited outside for five to ten minutes, and then proceeded to the apartment door. One knocked, waited a few seconds, and, receiving no response, opened the unlocked door, and entered the apartment with his gun drawn. Other agents followed, at least one of whom also had his gun drawn. They saw petitioner sitting on a couch, in the process of withdrawing his hand from under the adjacent cushion. After placing petitioner under arrest, an agent found the package of cocaine under the cushion, and subsequently other items (e.g., small pieces of tin foil) were found in the apartment; officers testified at trial they were adapted to packaging narcotics.
6
Petitioner and Jones were indicted for knowingly importing the cocaine into this country and concealing it, in violation of § 2 of the Narcotic Drugs Import and Export Act, as amended, 35 Stat. 614, 21 U.S.C. §§ 173 and 174. Petitioner was tried alone. The narcotics seized at petitioner's apartment were admitted into evidence, over objection. On appeal, following the conviction, the Court of Appeals for the Ninth Circuit ruled that the officers, in effecting entry to petitioner's apartment by opening the closed but unlocked door, did not 'break open' the door within the meaning of 18 U.S.C. § 3109 and therefore were not required by the statute to make a prior announcement of 'authority and purpose.' 380 F.2d 108. We granted certiorari, 389 U.S. 1003, 88 S.Ct. 570, 19 L.Ed.2d 598 (1967), to consider the somewhat uncomplicated but nonetheless significant issue of whether the agents' entry was consonant with federal law.1 We hold that it was not, and therefore reverse.
7
The statute here involved, 18 U.S.C. § 3109,2 deals with the entry of federal officers into a dwelling in terms only in regard to the execution of a search warrant. This Court has held, however, that the validity of such an entry of a federal officer to effect an arrest without a warrant 'must be tested by criteria identical with those embodied in' that statute. Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 1194, 2 L.Ed.2d 1332 (1958); Wong Sun v. United States, 371 U.S. 471, 482—484, 83 S.Ct. 407, 414—415, 9 L.Ed.2d 441 (1963).3 We therefore agree with the parties and with the court below that we must look to § 3109 as controlling.
8
In Miller v. United States, supra, the common-law background to § 3109 was extensively examined.4 The Court there condluded, id., at 313, 78 S.Ct. at 1198:
9
'The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. Congress, codifying a tradition embedded in Anglo-American law, had declared in § 3109 the reverence of the law for the individual's right of privacy in his house.'
10
It was also noted, id., at 313, n. 12, 78 S.Ct. at 1197, 1198, that another facet of the rule of announcement was, generally, to safeguard officers, who might be mistaken, upon an unannounced intrustion into a home, for someone with no right to be there. See also McDonald v. United States, 335 U.S. 451, 460 461, 69 S.Ct. 191, 195—196, 93 L.Ed. 153 (concurring opinion).
11
Considering the purposes of § 3109, it would indeed be a 'grudging application' to hold, as the Government urges, that the use of 'force' is an indispensable element of the statute. To be sure, the statute uses the phrase 'break open' and that connotes some use of force. But linguistic analysis seldom is adequate when a statute is designed to incorporate fundamental values and the ongoing development of the common law.5 Thus, the California Supreme Court has recently interpreted the common-law rule of announcement codified in a state statute identical in relevant terms to § 3109 to apply to an entry by police through a closed but unlocked door. People v. Rosales, 68 Cal.2d 299, 437 P.2d 489 (1968). And it has been held that § 3109 applies to entries effected by the use of a passkey,6 which requires no more force than does the turning of a doorknob. An unannounced intrusion into a dwelling—what § 3109 basically proscribes—is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or, as here, open a closed but unlocked door.7 The protection afforded by, and the values inherent in, § 3109 must be 'governed by something more than the fortuitous circumstance of an unlocked door.' Keiningham v. United States, 109 U.S.App.D.C. 272, 276, 287 F.2d 126, 130 (1960).
12
The Government seeks to invoke an exception to the rule of announcement, contending that the agents' lack of compliance with the statute is excused because an announcement might have endangered the informant Jones or the officers themselves. See, e.g., Gilbert v. United States, 366 F.2d 923, 931 (C.A.9th Cir. 1966), cert. denied, 388 U.S. 922, 87 S.Ct. 2123, 18 L.Ed.2d 1370 (1967); cf. Ker v. State of California, 374 U.S. 23, 39—40, 83 S.Ct. 1623, 1632—1633, 10 L.Ed.2d 726 (1963) (opinion of Clark, J.); id., at 47, 83 S.Ct. at 1636 (opinion of BRENNAN, J.). However, whether or not 'exigent circumstances,' Miller v. United States, supra, 357 U.S. at 309, 78 S.Ct. at 1195, would excuse compliance with § 3109,8 this record does not reveal any substantial basis for excusing the failure of the agents here to announce their authority and purpose. The agents had no basis for assuming petitioner was armed or might resist arrest, or that Jones was in any danger. Nor, as to the former, did the agents make any independent investigation of petitioner prior to setting the stage foir his arrest with the narcotics in his possession.
13
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
14
Reversed and remanded.
15
Mr. Justice BLACK dissents.
1
The Government contends in this Court that petitioner did not adequately raise at trial the issue of the agents' manner of entry, and therefore that it did not have sufficient opportunity to indicate the full circumstances surrounding the entry and petitioner's arrest. However, petitioner's trial counsel, in the course of objecting, clearly stated there were no facts 'sufficient to justify this officer's breaking into' the apartment, and his objection was truncated by a ruling of the trial judge. In any event, the Government met the issue on the merits in the Court of Appeals, and apparently did not there contend the record was inadequate for its resolution; and the Court of Appeals decided the issue on the merits. In these circumstances, we are justified in likewise doing so.
2
'The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.'
3
See also, e.g., Ng Pui Yu v. United States, 352 F.2d 626, 631 (C.A.9th Cir. 1965); Gatlin v. United States, 117 U.S. App.D.C. 123, 130, 326 F.2d 666, 673 (C.A.D.C. Cir. 1963); United States v. Cruz, 265 F.Supp. 15, 21 (W.D.Tex. 1967).
4
See also Ker v. State of California, 374 U.S. 23, 47—59, 83 S.Ct. 1623, 1636—1642, 10 L.Ed.2d 726 (1963) (opinion of Brennan, J.).
5
While distinctions are obvious, a useful analogy is nonetheless afforded by the common and case law development of the law of burglary: a forcible entry has generally been eliminated as an element of that crime under statutes using the word 'break,' or similar words. See R. Perkins, Criminal Law 149—150 (1957); J. Michael & H. Wechsler, Criminal Law and Its Administration 367—382 (1940); Note, A Rationale of the Law of Burglary, 51 Col.L.Rev. 1009, 1012—1015 (1951). Commentators on the law of arrest have viewed the development of that body of law as similar. See H. Voorhees, Law of Arrest §§ 159, 172—173 (1904); Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 806 (1924):
'What constitutes 'breaking' seems to be the same as in burglary: lifting a latch, turning a door knob, unhooking a chain or hasp, removing a prop to, or pushing open, a closed door of entrance to the house,—even a closed screen door * * * is a breaking. * * *' (Footnotes omitted.)
See generally Blakey, The Rule of Announcement and Unlawful Entry, 112 U.Pa.L.Rev. 499 (1964).
6
See, e.g., Munoz v. United States, 325 F.2d 23, 26 (C.A.9th Cir. 1963); United States v. Sims, D.C., 231 F.Supp. 251, 254 (D.C.Md.1964); cf. People v. Stephens, 249 Cal.App.2d 113, 57 Cal.Rptr. 66 (1967). See also Ker v. State of California, 374 U.S., at 38, 83 S.Ct., at 1632.
7
We do not deal here with entries obtained by ruse, which have been viewed as involving no 'breaking.' See, e.g., Smith v. United States, 357 F.2d 486, 488 n. 1 (C.A. 5th Cir. 1966); Leahy v. United States, 272 F.2d 487, 489 (C.A.9th Cir. 1959). See also Wilgus, n. 5, supra, at 806.
8
Exceptions to any possible constitutional rule relating to announcement and entry have been recognized, see Ker v. State of California, supra, 374 U.S. at 47, 83 S.Ct. at 1636 (opinion of Brennan, J.), and there is little reason why those limited exceptions might not also apply to § 3109, since they existed at common law, of which the statute is a codification. See generally Blakey, n. 5, supra.
| 01
|
391 U.S. 592
88 S.Ct. 1753
20 L.Ed.2d 842
James A. WATTS et al., Petitioners,v.SEWARD SCHOOL BOARD et al.
No. 325.
Supreme Court of the United States
Argued March 26, 1968.
June 3, 1968
George Kaufmann, Washington, D.C., for petitioners.
Theodore M. Pease, Jr., Anchorage, Alaska, for respondents.
PER CURIAM.
1
The judgment, 421 P.2d 586; 423 P.2d 678, is vacated and the case is remanded to the Supreme Court of Alaska for further consideration in light of Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811.
2
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK joins, would reverse the judgment outright for the reasons stated by him in Pickering v. Board of Education, 391 U.S., p. 575, 88 S.Ct., p. 1738, 20 L.Ed. 811.
3
Mr. Justice WHITE dissents.
| 23
|
391 U.S. 543
88 S.Ct. 1788
20 L.Ed.2d 797
Wayne Darnell BUMPER, Petitioner,v.STATE OF NORTH CAROLINA.
No. 1016.
Argued April 24 and 25, 1968.
Decided June 3, 1968.
Norman B. Smith, Greensboro, N.C., for petitioner, pro hac vice, by special leave of Court.
Harry W. McGalliard, Raleigh, N.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner was brought to trial in a North Carolina court upon a charge of rape, an offense punishable in that State by death unless the jury recommends life imprisonment.1 Among the items of evidence introduced by the prosecution at the trial was a .22-caliber rifle allegedly used in the commission of the crime. The jury found the petitioner guilty, but recommended a sentence of life imprisonment.2 The trial court imposed that sentence, and the Supreme Court of North Carolina affirmed the judgment.3 We granted certiorari4 to consider two separate constitutional claims pressed unsuccessfully by the petitioner throughout the litigation in the North Carolina courts. First, the petitioner argues that his constitutional right to an impartial jury was violated in this capital case when the prosecution was permitted to challenge for cause all prospective jurors who stated that they were opposed to capital punishment or had conscientious scruples against imposing the death penalty. Secondly, the petitioner contends that the .22-caliber rifle introduced in evidence against him was obtained by the State in a search and seizure violative of the Fourth and Fourteenth Amendments.
I.
2
In Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, we have held that a death sentence cannot constitutionally be executed if imposed by a jury from which have been excluded for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty. Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant's guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; Turner v. State of Louisiana, 379 U.S. 466, 471—473, 85 S.Ct. 546, 548—550, 13 L.Ed.2d 424; Irvin v. Dowd, 366 U.S. 717, 722—723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751. We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily 'prosecution prone,'5 and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon.6 Accordingly, we decline to reverse the judgment of conviction upon this basis.
II.
3
The petitioner lived with his grandmother, Mrs. Hattie Leath, a 66-year-old Negro widow, in a house located in a rural area at the end of an isolated mile-long dirt road. Two days after the alleged offense but prior to the petitioner's arrest, four white law enforcement officers—the county sheriff, two of his deputies, and a state investigator—went to this house and found Mrs. Leath there with some young children. She met the officers at the front door. One of them announced, 'I have a search warrant to search your house.' Mrs. Leath responded, 'Go ahead,' and opened the door. In the kitchen the officers found the rifle that was later introduced in evidence at the petitioner's trial after a motion to suppress had been denied.
4
At the hearing on this motion, the prosecutor informed the court that he did not rely upon a warrant to justify the search, but upon the consent of Mrs. Leath.7 She testified at the hearing, stating, among other things: read it to me or nothing. So, I just told him to come on in and go ahead and search, and I went on about my work. I wasn't concerned what he was about. I was just satisfied. He just told me he had a search warrant, but he didn't read it to me. He did tell me he had a search warrant.
5
'* * * He said he was the law and had a search warrant to search the house, why I thought he could go ahead. I believed he had a search warrant. I took him at his word. * * * I just seen them out there in the yard. They got through the door when I opened it. At that time, I did not know my grandson had been charged with crime. Nobody told me anything. They didn't tell me anything, just picked it up like that. They didn't tell me nothing about my grandson.'8
6
Upon the basis of Mrs. Leath's testimony, the trial court found that she had given her consent to the search, and denied the motion to suppress.9 The Supreme Court of North Carolina approved the admission of the evidence on the same basis.10
7
The issue thus presented is whether a search can be justified as lawful on the basis of consent when that 'consent' has been given only after the official conducting the search has asserted that he possesses a warrant.11 We hold that there can be no consent under such circumstances.
8
When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.12 This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.13 A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.14 The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.15
9
When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent.
10
We hold that Mrs. Leath did not consent to the search, and that it was constitutional error to admit the rifle in evidence against the petitioner. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Because the rifle was plainly damaging evidence against the petitioner with respect to all three of the charges against him, its admission at the trial was not harmless error. Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.16
11
The judgment of the Supreme Court of North Carolina is, accordingly, reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
12
Judgment reversed and case remanded.
13
Mr. Justice DOUGLAS joins Part II of the opinion of the Court. Since, however, the record shows that 16 of 53 prospective jurors were excused for cause because of their opposition to capital punishment, he would also reverse on the ground that petitioner was denied the right to trial on the issue of guilt by a jury representing a fair cross-section of the community. Witherspoon v. State of Illinois, 391 U.S., at 523, 88 S.Ct., at 1778, 20 L.Ed.2d 776 (separate opinion). Under North Carolina law, rape is punishable by death unless the jury recommends life imprisonment. N.C.Gen.Stat. § 14—21 (1953). But an indictment for rape includes the lesser offense of an assault with intent to commit rape, and the court has the duty to submit to the jury the lesser degrees of the offense of rape which are supported by the evidence. State v. Green, 246 N.C. 717, 100 S.E.2d 52 (1957). See N.C.Gen.Stat. §§ 15—169, 15—170 (1953). These include assault with intent to commit rape, for which the range of punishment is one to 15 years' imprisonment (N.C.Gen.Stat. § 14—22), and assault (N.C.Gen.Stat. § 14—33). In the instant case, the trial judge did in fact charge the jury with respect to these lesser offenses.
14
Mr. Justice HARLAN, concurring.
15
While I join in the judgment of the Court and in Part II of its opinion, I am prompted to add a brief note.
16
I share, as I am sure every member of the majority does, Mr. Justice BLACK'S abhorrence of the brutal crime of which petitioner stands convicted. To avoid any misapprehension, I wish to make it perfectly clear that reversal of this conviction is not a 'penalty' imposed on the State for infringement of federal constitutional rights. Reversal by this Court results, as always, only from a decision that petitioner was not constitutionally proved guilty and hence there is no legally valid basis for imposition of a penalty upon him.
17
In determining whether a criminal defendant was convicted 'according to law,' the test is not and cannot be simply whether this Court finds credible the evidence against him. Crediting or discrediting evidence is the function of the trier of fact, in this case a jury. The jury's verdict is a lawful verdict, however, only if it is based upon evidence constitutionally admissible. When it is not, as it is not here, reversal rests on the oldest and most fundamental principle of our criminal jurisprudence—that a defendant is entitled to put the prosecution to its lawful proof.
18
The evidence against petitioner consisted in part of a gun that he alleged was unlawfully taken from the home of Mrs. Leath, where petitioner was living. The State contended that Mrs. Leath had consented to the search of her home. However, this 'consent' was obtained immediately after a sheriff told Mrs. Leath that he had a search warrant, that is, that he had a lawful right to enter her home with or without consent. Nothing Mrs. Leath said in response to that announcement can be taken to mean that she considered the officers welcome in her home with or without a warrant. What she would have done if the sheriff had not said he had a warrant is, on this record, a hypothetical question about an imaginary situation that Mrs. Leath never faced.
19
Of course, if the officers had a valid search warrant, no consent was required to make the search lawful. There was a search warrant in this case, and it remains possible that this warrant was issued under circumstances meeting all the requirements of the Federal Constitution. Consequently, if this were a situation where a state court had simply chosen the wrong line of constitutional analysis of this search, I would vote to remand the case to give the prosecution an opportunity to justify the search on proper grounds. However, as noted by the Court, the prosecution here explicitly and repeatedly renounced any reliance on the warrant. Like all other parties to lawsuits, a prosecutor has an obligation to the courts (including this Court) and to other parties to present its claims at the earliest appropriate time, and to create an adequate record. Cf. Ciucci v. State of Illinois, 356 U.S. 571, 573, 78 S.Ct. 839, 840, 2 L.Ed.2d 983 (separate note of Mr. Justice Frankfurter and Mr. Justice Harlan).
20
Finally, if I were persuaded that the admission of the gun was 'harmless error,' I would vote to affirm, and if I were persuaded that it was arguably harmless error, I would vote to remand the case for state consideration of the point. But the question cannot be whether, in the view of this Court, the defendant actually committed the crimes charged, so that the error was 'harmless' in the sense that petitioner got what he deserved. The question is whether the error was such that it cannot be said that petitioner's guilt was adjudicated on the basis of constitutionally admissible evidence, which means, in this case, whether the properly admissible evidence was such that the improper admission of the gun could not have affected the result.
21
I do not think this can be said here. The critical question was the identity of the perpetrator of these crimes. The State introduced eyewitness identification of petitioner by his two victims, and a gun with which there was evidence these victims were shot, together with testimony that it had been found in petitioner's place of abode. The jury could, of course, have found the testimony of the victims credible beyond a reasonable doubt, and convicted petitioner on this basis alone. But it might well not have. The addition of a tangible cross-check linking petitioner with the crime can hardly be said, from the judicial vantage point, to have been harmless surplusage.
22
Mr. Justice BLACK, dissenting.
I.
23
This case, like Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, decided today, was brought to this Court primarily to decide the question whether the constitutional rights of a criminal defendant are violated when prospective jurors who state they are opposed to capital punishment or who have conscientious scruples against imposing the death penalty are excluded for cause. As the Court in Witherspoon limited its holding to the question of punishment and not of guilt,1 the jury issue became moot in this case since petitioner had been sentenced to life imprisonment. Ironically, however, this case now becomes about as good an example as can be found of the fallacious assumption of the holding in Witherspoon. For the Witherspoon decision rests on the premise that a jury '(c) ulled of all who harbor doubts about the wisdom of capital punishment' is somehow prosecution-prone, callous or even lacking in 'charity.'2 Yet the jury in this case, from which had been excluded all persons who stated they were opposed to the death penalty, unanimously recommended life imprisonment in a case where, but for their recommendation, the death sentence would have been automatic.3 And this is a case where the evidence conclusively showed that the accused twice raped a young woman at gunpoint, shot both the woman and her companion while they were tied helplessly to trees with the announced intention of killing them, and left them for dead. Even with these horrible facts before it, this so-called 'prosecution-prone,' 'callous,' and 'uncharitable' jury refused to allow imposition of the death penalty and recommended life imprisonment instead. In these circumstances, where the real reason for granting certiorari in the case has disappeared, it seems to me that the Court should dismiss the petition as improvidently granted. This is especially true here, where, as I point out at the end of this opinion, there is an open-and-shut case of guilt, and the petitioner received the lightest sentence available under state law.
II.
24
Passing over the jury issue, the Court still reverses the conviction in this case and sends it back for a new trial on the ground that the rifle, which the record shows was used to shoot the victims, and which is held by the majority to have been obtained through an unconstitutional search and seizure, was admitted into evidence at petitioner's trial. One of the reasons that I cannot agree with the Court's reversal is because I believe the searching officers had valid permission to conduct their search. The facts surrounding the search are these: Petitioner had been raised by his grandmother, Mrs. Hattie Leath, with whom he was living at the time the rape and assaults were committed. Shortly after the victims were able to recount to the police what had happened to them, the county sheriff, with two of his deputies and a state police officer, went to Mrs. Leath's house. One of the deputies went up on the porch of the house and stated to Mrs. Leath, who was standing inside the screen door, that he had a warrant to search her house. He did not appear to have any paper in his hand, and he did not read anything to her. Mrs Leath's immediate response, without mentioning anything about a warrant or asking to see it or read it or have it read to her, was to tell the deputy 'to come on in.' At the trial Mrs. Leath described her reaction to the visit of the law officers as follows:
25
'He did tell me he had a search warrant. I don't know if Sheriff Stockard was with him. I was not paying much attention. I told Mr. Stockard (after he had come up on the porch) to go ahead and look all over the house. I had no objection to them making a search of my house. I was willing to let them look in any room or drawer in my house they wanted to. Nobody threatened me with anything. Nobody told me they were going to hurt me if I didn't let them search my house. Nobody told me they would give me any money if I would let them search. I let them search, and it was all my own free will. Nobody forced me at all.' (Emphasis added.)
26
My study of the record in this case convinces me that Mrs. Leath voluntarily consented to this search,4 and in fact that she actually wanted the officers to search her house—to prove to them that she had nothing to hide. Mrs. Leath's readiness to permit the search was the action of a person so conscious of her innocence, so proud of her own home,5 that she was not going to require a search warrant, thus indicating a doubt about the rectitude of her household. There are such people in this world of ours,6 and the evidence in this case causes me to believe Mrs. Leath is one of them. As she herself testified, 'I just give them a free will to look because I felt like the boy wasn't guilty.'
27
Despite the statements of Mrs. Leath cited above, and despite the clear finding of consent by the trial judge, who personally saw and heard Mrs. Leath testify,7 this Court, refusing to accept Mrs. Leath's sworn testimony that she did freely consent and overruling the trial judge's findings, concludes on its own that she did not consent. I do not believe the Court should substitute what it believes Mrs. Leath should have said for what she actually said—'it was all my own free will.' I cannot accept what I believe to be an unwarranted conclusion by the Court.
III.
28
Even assuming for the purposes of argument that there was no consent to search and that the rifle which was seized from Mrs. Leath's house should not have been admitted into evidence, I still believe the conviction should stand. For the overwhelming evidence in this case, even when the rifle and related testimony are excluded, amply demonstrates petitioner's guilt. Unfortunately, to show this, it is necessary to go into the sordid facts of the case. The victims were a young man and his girl friend. At trial both testified in detail to the following: They were parked shortly after dusk on a country road not far from where the petitioner Bumper lived. Bumper approached the car, stuck a rifle barrel up to the window and ordered the girl to get out of the car, indicating that if she refused he would shoot her. Both got out of the car and Bumper ordered the girl to undress, stating that 'I want a white girl's p—-.' When the girl adamantly refused, Bumper pointed the rifle at the young man, and the girl, understanding that she must submit or her boy friend would be killed, followed Bumper's orders. Bumper then forced the young man into the rear seat of the car, requiring him to stay down on the floor, while Bumper raped the girl on the back of the car. A short time after this, Bumper forced the couple to drive to another spot. Here he made them get out of the car and walk down a dirt road into some bushes. At this time Bumper told the couple he was going to kill them, and when they pleaded with him to let them go, he replied, 'I can't do it; you will go to the cops.' The couple then suggested that if Bumper would tie them up and blindfold them that he could get away with no problem. This Bumper did, tying each to a separate tree. But he did not leave. Instead he raped the girl again while she was tied to the tree. After this, Bumper went over to the young man and felt his chest, asking him where his heart was and if he was scared. He then coolly proceeded to shoot the young man where he thought his heart was. The girl, tied to the tree and blindfolded, heard the shot, and a moment later herself was shot through the left breast close to her heart. Bumper then took the car and drove away, obviously believing he had killed the young couple. They were able to free themselves, however, and with much difficulty made their way to a nearby house where the owner got them to a hospital.8 The time during which the couple was held captive was approximately an hour and a half. During that time they clearly got to know who their assailant was. Both got a plain view of Bumper right at the beginning of their ordeal when they opened the car doors and saw his face in the light coming from the inside of the car. Moreover, the undisputed evidence in the record shows that the night of the attack was a bright moonlit night. Both testified positively at trial that it was Bumper.9 Also there was substantial corroborating evidence outside of that relating to the rifle. Here we have the clear and convincing testimony of the two victims, whose characters were in no way impeached or challenged. The only witnesses at the trial were state witnesses (the two victims plus medical and police testimony), and none of their testimony was refuted or denied in any way. Thus, this is a case where every word of evidence introduced at trial pointed to guilt, and there was no challenge to the truthfulness of the State's evidence, nor to the character of any of its witnesses. Yet even with all this, the Court persists in reversing the case, thus requiring the State to hold a new trial if it wishes to punish Bumper for his crimes.
29
When it is clear beyond all shadow of a doubt, as here, that a defendant committed the crimes charged, I do not believe that this Court should enforce on the States a 'per se' rule automatically requiring a new trial in every case where this Court concludes that some part of the evidence was obtained by an unreasonable search and seizure. The primary reason the 'exclusionary rule' was adopted by this Court was to deter unreasonable searches and seizures in violation of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. But see my concurring opinion at 661—666, 81 S.Ct., at 1694 1697. I believe that the deterrence desired by some can be served adequately without blind adherence to a mechanical formula that requires automatic reversal in every case where the exclusionary rule is violated. While little is known about the effect the exclusionary rule really has on actual police practices, I think it is a fair assumption that refusal to reverse a conviction of a defendant, because of the admission of illegally seized evidence, where other evidence conclusively demonstrates his guilt, is not going to lessen police sensitivity to the exclusionary rule, thereby reducing its deterrent effect. Obviously at the time a search is carried out the police are not going to know whether the evidence they hope to obtain is going to be necessary for the prosecution's case, and, of course, if they know it will not be necessary, no search is needed. Thus the only effect of not automatically reversing all cases in which there has been a violation of the exclusionary rule will be to allow state convictions of obviously guilty defendants to stand. And they should stand.
IV.
30
In this case, as I have shown, the evidence of the two victims points positively to guilt without any doubt. When there is added to this the fact that the rifle, from which came the bullets which went into the bodies of the two victims, was found where Bumper lived, which was not far from the scene of the assault, this makes, as the North Carolina Supreme Court pointed out, assurance doubly sure. Whether one views the evidence of guilt with or without the rifle, the conclusion is inescapable that this defendant committed the crimes for which the jury convicted him. In these circumstances no State should be forced to give a new trial; justice does not require it.10
31
Mr. Justice WHITE, dissenting.
32
When 'consent' to a search is given after the occupant has been told by police officers that they have a warrant for the search, it seems reasonable to me for Fourth Amendment purposes to view the consent as conditioned on there being a valid warrant, absent clear proof that the consent was actually unconditional. The evidence in this record does not show unconditional consent with sufficient clarity, and perhaps this would be the result in most cases. But this does not mean that every search following conditional consent is invalid. If upon a motion to suppress or upon an objection to evidence offered at the trial, the State produces a valid warrant for the search, there is no good reason to exclude the evidence simply because police at the time of the search relied on the consent and neither served nor returned the warrant. In the case before us the State represented in this Court that there was a warrant for the challenged search. Unlike the Court and Mr. Justice HARLAN, I would not brush this matter aside. Since the existence and validity of the warrant have not been determined in the state courts, the case is not ripe for reversal or affirmance. I would therefore not reverse, but vacate, this conviction, returning the case to the state courts for a determination of the validity of the warrant. If because of the absence of probable cause, or for some other reason, the warrant would not have been a proper predicate for the search, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), would require reversal of the conviction unless it is saved under the harmless-error rule of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).*
1
'Every person who is convicted of ravishing and carnally knowing any female of the age of twelve years or more by force and against her will, or who is convicted of unlawfully and carnally knowing and abusing any female child under the age of twelve years, shall suffer death: Provided, if the jury shall so recommend at the time of rendering its verdict in open court, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury.' N.C.Gen.Stat. § 14—21 (1953).
2
The petitioner was also convicted upon two charges of felonious assault and sentenced to consecutive 10-year prison terms.
3
270 N.C. 521, 155 S.E.2d 173.
4
389 U.S. 1034, 88 S.Ct. 801, 19 L.Ed.2d 823.
5
He did submit affidavits to the North Carolina Supreme Court referring to studies by W. C. Wilson and F. J. Goldberg, see Witherspoon v. State of Illinois, 391 U.S., at 517, 88 S.Ct., at 1774, n. 10. The court made no findings with respect to those studies and did not mention them in its opinion.
6
In addition to the materials mentioned in Witherspoon, 391 U.S., at 517, 88 S.Ct., at 1774, n. 10, the petitioner's brief in this Court cites an unpublished dissertation by R. Crosson, An Investigation Into Certain Personality Variables Among Capital Trial Jurors (Western Reserve University, January 1966), involving a sample of 72 jurors in Ohio.
7
'THE COURT: There is a motion here that says the property (was) seized against the will of Mrs. Hattie Leath and without a search warrant. Now, the question is, are we going into the search warrant?
'MR. COOPER: The State is not relying on the search warrant.
'THE COURT: Are you stating so for the record?
'MR. COOPER: Yes, sir.'
'Four of them came. I was busy about my work, and they walked into the house and one of them walked up and said, 'I have a search warrant to search your house,' and I walked out and told them to come on in. * * * He just come on in and said he had a warrant to search the house, and he didn't
8
She also testified, at another point:
'I had no objection to them making a search of my house. I was willing to let them look in any room or drawer in my house they wanted to. Nobody threatened me with anything. Nobody told me they were going to hurt me if I didn't let them search my house. Nobody told me they would give me any money if I would let them search. I let them search, and it was all my own free will. Nobody forced me at all.
'I just give them a free will to look because I felt like the boy wasn't guilty.'
The transcript of the suppression hearing comes to us from North Carolina in the form of a narrative; i.e., the actual questions and answers have been rewritten in the form of continuous first person testimony. The effect is to put into the mouth of the witness some of the words of the attorneys. In the case of an obviously compliant witness like Mrs. Leath, the result is a narrative that has the tone of decisiveness but is shot through with contradictions.
9
'The Court finds that from the evidence of Mrs. Hattie Leath that it is of a clear and convincing nature that she, the said Mrs. Hattie Leath, voluntarily consented to the search of her premises, as is more particularly set forth in her evidence, and that that consent was specifically given and is not the result of coercion from the officers.'
10
That court also stated: 'The fact that (the search) did reveal the presence of the guilty weapon * * * justifies the search * * *. (The petitioner's) rights have not been violated. Rather, his wrongs have been detected.' 270 N.C., at 530—531, 155 S.E.2d, at 180.
Any idea that a search can be justified by what it turns up was long ago rejected in our constitutional jurisprudence. 'A search prosecuted in violation of the Constitution is not made lawful by what it brings to light * * *.' Byars v. United States, 273 U.S. 28, 29, 47 S.Ct. 248, 71 L.Ed. 520. See also United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 228, 92 L.Ed. 210; Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134.
11
Mrs. Leath owned both the house and the rifle. The petitioner concedes that her voluntary consent to the search would have been binding upon him. Conversely, there can be no question of the petitioner's standing to challenge the lawfulness of the search. He was the 'one against whom the search was directed,' Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697, and the house searched was his home. The rifle was used by all members of the household and was found in the common part of the house.
12
Wren v. United States, 10 Cir., 352 F.2d 617; Simmons v. Bomar, 6 Cir., 349 F.2d 365; Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649; Kovach v. United States, 6 Cir., 53 F.2d 639.
13
See, e.g., Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 267, 65 L.Ed. 654; Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 368, 92 L.Ed. 436; Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819; United States v. Marra, D.C., 40 F.2d 271; MacKenzie v. Robbins, D.C., 248 F.Supp. 496.
14
'Orderly submission to law-enforcement officers who, in effect, represented to the defendant that they had the authority to enter and search the house, against his will if necessary, was not such consent as constituted an understanding, intentional and voluntary waiver by the defendant of his fundamental rights under the Fourth Amendment to the Constitution.' United States v. Elliott, D.C., 210 F.Supp. 357, 360.
'One is not held to have consented to the search of his premises where it is accomplished pursuant to an apparently valid search warrant. On the contrary, the legal effect is that consent is on the basis of such a warrant and his permission is construed as an intention to abide by the law and not resist the search under the warrant, rather than an invitation to search.' Bull v. Armstrong, 254 Ala. 390, 394, 48 So.2d 467, 470.
'One who, upon the command of an officer authorized to enter and search and seize by search warrant, opens the door to the officer and acquiesces in obedience to such a request, no matter by what language used in such acquiescence, is but showing a regard for the supremacy of the law. * * * The presentation of a search warrant to those in charge at the place to be searched, by one authorized to serve it, is tinged with coercion, and submission thereto cannot be considered an invitation that would waive the constitutional right against unreasonable searches and seizures, but rather is to be considered a submission to the law.' Meno v. State, 197 Ind. 16, 24, 164 N.E. 93, 96.
'See also Salata v. United States, 6 Cir., 286 F. 125; Brown v. State, 42 Ala.App. 429, 167 So.2d 281; Mattingly v. Commonwealth, 199 Ky. 30, 250 S.W. 105. Cf. Gibson v. United States, 80 U.S.App.D.C. 81, 149 F.2d 381; Naples v. Maxwell, D.C., 271 F.Supp. 850; Atwood v. State, 44 Okl.Cr. 206, 280 P. 319; State v. Watson, 133 Miss. 796, 98 So. 241.
15
During the course of the argument in this case we were advised that the searching officers did, in fact, have a warrant. But no warrant was ever returned, and there is no way of knowing the conditions under which it was issued, or determining whether it was based upon probable cause.
16
It is suggested in dissent that '(e)ven assuming * * * that there was no consent to search and that the rifle * * * should not have been admitted into evidence, * * * the conviction should stand.' This suggestion seems to rest on the 'horrible' facts of the case, and the assumption that the petitioner was guilty. But it is not the function of this Court to determine innocence or guilt, much less to apply our own subjective notions of justice. Our duty is to uphold the Constitution of the United States.
In view of the discursive factual recital contained in the dissenting opinion, however, an additional word may be in order. There can be no doubt that the crimes were grave and shocking. There can be doubt that the petitioner was their perpetrator. The crimes were committed at night. When, at first, the victims separately viewed a lineup that included the petitioner, each of the victims identified the same man as their assailant. That man was not the petitioner. Later, the victims together viewed another lineup, and every man in the lineup was made to speak his name for 'voice identification.' This time the victims identified the petitioner as their assailant. At the time of the lineups a local newspaper had reported that a man named Wayne Bumper was being held by the sheriff as the 'prime suspect' in the case, and at least one of the victims knew of that fact. Earlier both victims had been shown a collection of photographs. One victim identified a picture of the petitioner; the petitioner's name was written on the back of the photograph.
1
See 391 U.S., at 522, n. 21, 88 S.Ct., at 1777.
2
See 391 U.S., at 520, n. 17, 88 S.Ct., at 1776.
3
See N.C.Gen.Stat. § 14—21. The Court imposed additional sentences of 10 years' imprisonment, to run consecutively, on the two felonious assault charges.
4
Mrs. Leath's voluntary consent was sufficient to validate the search since she owned the house which was searched and the rifle that was taken. It should also be noted that the rifle was not found in petitioner's private room, nor in any part of the house assigned to him, but in the kitchen behind the door.
5
Mrs. Leath owned the house in which she was living and throughout her questioning repeatedly referred to 'my house.'
6
See Commonwealth v. Tucker, 189 Mass. 457, 469, 76 N.E. 127, 131, 7 L.R.A.,N.S., 1056. In this case a mother consented for officers who were looking for broken pieces of a knife used in a murder to search her home. The Court found that officers went 'to the door of the house where Tucker resided, and stated to his mother, at the outside door of the house, that they had this search warrant to search for the article named therein * * * that she * * * invited the officers to make all the search they desired, saying that she knew her son to be innocent, and thereupon the officers made search, not upon the warrant, but in consequence of her invitation * * *.' The knife blade was admitted against the contention that it was barred by the Fourth and Fourteenth Amendments.
7
The finding of the court was as follows: 'The Court finds that from the evidence of Mrs. Hattie Leath that it is of a clear and convincing nature that she, the said Mrs. Hattie Leath, voluntarily consented to the search of her premises, as is more particularly set forth in her evidence, and that that consent was specifically given and is not the result of coercion from the officers.'
8
It was on these facts and this testimony, it must be remembered, that this jury, selected in the way Witherspoon holds is designed to produce a 'hanging' jury, recommended a life sentence for petitioner.
9
The Court's opinion attempts to convey the impression that the victims were not sure of their assailant's identification because of an alleged mistake during a police lineup. See majority opinion, n. 16. This completely overlooks the fact, however, that before Bumper was arrested, and before the victims had any idea of their attacker's name or where he was from, the girl, while still in the hospital, identified Bumper's picture from a number of others. The young man also had identified Bumper's picture days before the lineup was held. After the girl went through the lineup the first time she confessed that she was too scared to look at the men and that she had made no real attempt at identification. And it should not be forgotten that she testified positively under oath at trial that 'In my own mind I am certain (that Bumper was my assailant), and nothing could really dissuade me from it. I haven't made up my mind; I know.'
10
28 U.S.C. § 2106 provides: 'The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.' (Emphasis added.)
*
Of course, if it was determined that the grandmother's consent was not good against petitioner, who had standing to raise the validity of the search, it would be unnecessary to deal with the issues which have been argued and determined in this case.
| 01
|
391 U.S. 604
88 S.Ct. 1864
20 L.Ed.2d 843
Julia IOANNOUv.NEW YORK.
No. 191.
Supreme Court of the United States
October Term, 1962.
June 3, 1968
Sydney J. Schwartz, on the motion.
Louis J. Lefkowitz, Atty. Gen. of New York, and Daniel M. Cohen, Asst. Atty. Gen., in opposition.
On Motion for Leave to File a Petition for Rehearing.
PER CURIAM.
1
The motion for leave to file a petition for rehearing is denied upon the representation of the Attorney General of New York that the movant may file a new application 'to withdraw the funds deposited with the New York City Treasurer' in the light of changed circumstances. See Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683; Goldstein v. Cox, 389 U.S. 581, 88 S.Ct. 694, 19 L.Ed.2d 781.
2
Mr. Justice DOUGLAS.
3
Since the only changed circumstances concern the intervening decision of this Court in Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683, and since the rationale of that decision applies to custodial statutes such as New York has as well as to escheat statutes like Oregon's, I would dispose of the case here and now (either after or without oral argument) and not require petitioner to retravel once more the long, arduous, and expensive path from New York's surrogate court.
4
Mr. Justice HARLAN would deny unconditionally the motion for leave to file a petition for rehearing, substantially for the reasons given in his dissenting opinion in United States v. Ohio Power Co., 353 U.S. 98, 99, 77 S.Ct. 652, 1 L.Ed.2d 683.
5
Mr. Justice FORTAS and Mr. Justice MARSHALL took no part in the consideration or decision of this motion.
| 89
|
391 U.S. 563
88 S.Ct. 1731
20 L.Ed.2d 811
Marvin L. PICKERING, Appellant,v.BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT 205, WILL COUNTY, ILLINOIS.
No. 510.
Argued March 27, 1968.
Decided June 3, 1968.
John Ligtenberg, Chicago, Ill., for appellant.
John F. Cirricione, Joliet, Ill., for appellee.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Appellant Marvin L. Pickering, a teacher in Township High School District 205, Will County, Illinois, was dismissed from his position by the appellee Board of Education for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way in which the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. Appellant's dismissal resulted from a determination by the Board, after a full hearing, that the publication of the letter was 'detrimental to the efficient operation and administration of the schools of the district' and hence, under the relevant Illinois statute, Ill.Rev.Stat., c. 122, § 10—22.4(1963), that 'interests of the schools require(d) (his dismissal).'
2
Appellant's claim that his writing of the letter was protected by the First and Fourteenth Amendments was rejected. Appellant then sought review of the Board's action in the Circuit Court of Will County, which affirmed his dismissal on the ground that the determination that appellant's letter was detrimental to the interests of the school system was supported by substantial evidence and that the interests of the schools overruled appellant's First Amendment rights. On appeal, the Supreme Court of Illinois, two Justices dissenting, affirmed the judgment of the Circuit Court. 36 Ill.2d 568, 225 N.E.2d 1 (1967). We noted probable jurisdiction of appellant's claim that the Illinois statute permitting his dismissal on the facts of this case was unconstitutional as applied under the First and Fourteenth Amendments.1 389 U.S. 925 88 S.Ct. 291, 19 L.Ed.2d 276 (1967). For the reasons detailed below we agree that appellant's rights to freedom of speech were violated and we reverse.
I.
3
In February of 1961 the appellee Board of Education asked the voters of the school district to approve a bond issue to raise $4,875,000 to erect two new schools. The proposal was defeated. Then, in December of 1961, the Board submitted another bond proposal to the voters which called for the raising of $5,500,000 to build two new schools. This second proposal passed and the schools were built with the money raised by the bond sales. In May of 1964 a proposed increase in the tax rate to be used for educational purposes was submitted to the voters by the Board and was defeated. Finally, on September 19, 1964, a second proposal to increase the tax rate was submitted by the Board and was likewise defeated. It was in connection with this last proposal of the School Board that appellant wrote the letter to the editor (which we reproduce in an Appendix to this opinion) that resulted in his dismissal.
4
Prior to the vote on the second tax increase proposal a variety of articles attributed to the District 205 Teachers' Organization appeared in the local paper. These articles urged passage of the tax increase and stated that failure to pass the increase would result in a decline in the quality of education afforded children in the district's schools. A letter from the superintendent of schools making the same point was published in the paper two days before the election and submitted to the voters in mimeographed form the following day. It was in response to the foregoing material, together with the failure of the tax increase to pass, that appellant submitted the letter in question to the editor of the local paper.
5
The letter constituted, basically, an attack on the School Board's handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools' educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue.
6
The Board dismissed Pickering for writing and publishing the letter. Pursuant to Illinois law, the Board was then required to hold a hearing on the dismissal. At the hearing the Board charged that numerous statements in the letter were false and that the publication of the statements unjustifiably impugned the 'motives, honesty, integrity, truthfulness, responsibility and competence' of both the Board and the school administration. The Board also charged that the false statements damaged the professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment 'controversy, conflict and dissension' among teachers, administrators, the Board of Education, and the residents of the district. Testimony was introduced from a variety of witnesses on the truth or falsity of the particular statements in the letter with which the Board took issue. The Board found the statements to be false as charged. No evidence was introduced at any point in the proceedings as to the effect of the publication of the letter on the community as a whole or on the administration of the school system in particular, and no specific findings along these lines were made.
7
The Illinois courts reviewed the proceedings solely to determine whether the Board's findings were supported by substantial evidence and whether, on the facts as found, the Board could reasonably conclude that appellant's publication of the letter was 'detrimental to the best interests of the schools.' Pickering's claim that his letter was protected by the First Amendment was rejected on the ground that his acceptance of a teaching position in the public schools obliged him to refrain from making statements about the operation of the schools 'which in the absence of such position he would have an undoubted right to engage in.' It is not altogether clear whether the Illinois Supreme Court held that the First Amemdment had no applicability to appellant's dismissal for writing the letter in question or whether it determined that the particular statements made in the letter were not entitled to First Amendment protection.
8
In any event, it clearly rejected Pickering's claim that, on the facts of this case, he could not constitutionally be dismissed from his teaching position.
II.
9
To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E.g., Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247 (1960); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675 (1967). '(T)he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.' Keyishian v. Board of Regents, supra, 385 U.S. at 605—606, 87 S.Ct. at 685. At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
III.
10
The Board contends that 'the teacher by virtue of his public employment has a duty of loyalty to support his superiors in attaining the generally accepted goals of education and that, if he must speak out publicly, he should do so factually and accurately, commensurate with his education and experience.' Appellant, on the other hand, argues that the test applicable to defamatory statements directed against public officials by persons having no occupational relationship with them, namely, that statements to be legally actionable must be made 'with knowledge that (they were) * * * false or with reckless disregard of whether (they were) * * * false or not,' New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964), should also be applied to public statements made by teachers. Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run.
11
An examination of the statements in appellant's letter objected to by the Board2 reveals that they, like the letter as a whole, consist essentially of criticism of the Board's allocation of school funds between educational and athletic programs, and of both the Board's and the superintendent's methods of informing, or preventing the informing of, the district's taxpayers of the real reasons why additional tax revenues were being sought for the schools. The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant's employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning. Accordingly, to the extent that the Board's position here can be taken to suggest that even comments on matters of public concern that are substantially correct, such as statements (1)—(4) of appellant's letter, see Appendix, infra, may furnish grounds for dismissal if they are sufficiently critical in tone, we unequivocally reject it.3
12
We next consider the statements in appellant's letter which we agree to be false. The Board's original charges included allegations that the publication of the letter damaged the professional reputations of the Board and the superintendent and would foment controversy and conflict among the Board, teachers, administrators, and the residents of the district. However, no evidence to support these allegations was introduced at the hearing. So far as the record reveals, Pickering's letter was greeted by everyone but its main target, the Board, with massive apathy and total disbelief. The Board must, therefore, have decided, perhaps by analogy with the law of libel, that the statements were per se harmful to the operation of the schools.
13
However, the only way in which the Board could conclude, absent any evidence of the actual effect of the letter, that the statements contained therein were per se detrimental to the interest of the schools was to equate the Board members' own interests with that of the schools. Certainly an accusation that too much money is being spent on athletics by the administrators of the school system (which is precisely the import of that portion of appellant's letter containing the statements that we have found to be false, see Appendix, infra) cannot reasonably be regarded as per se detrimental to the district's schools. Such an accusation reflects rather a difference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest.
14
In addition, the fact that particular illustrations of the Board's claimed undesirable emphasis on athletic programs are false would not normally have any necessary impact on the actual operation of the schools, beyond its tendency to anger the Board. For example, Pickering's letter was written after the defeat at the polls of the second proposed tax increase. It could, therefore, have had no effect on the ability of the school district to raise necessary revenue, since there was no showing that there was any proposal to increase taxes pending when the letter was written.
15
More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.
16
In addition, the amounts expended on athletics which Pickering reported erroneously were matters of public record on which his position as a teacher in the district did not qualify him to speak with any greater authority than any other taxpayer. The Board could easily have rebutted appellant's errors by publishing the accurate figures itself, either via a letter to the same newspaper or otherwise. We are thus not presented with a situation in which a teacher has carelessly made false statements about matters so closely related to the day-to-day operations of the schools that any harmful impact on the public would be difficult to counter because of the teacher's presumed greater access to the real facts. Accordingly, we have no occasion to consider at this time whether under such circumstances a school board could reasonably require that a teacher make substantial efforts to verify the accuracy of his charges before publishing them.4
17
What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom5 or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.
IV.
18
The public interest in having free and unhindered debate on matters of public importance—the core value of the Free Speech Clause of the First Amendment—is so great that it has been held that a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Compare Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). The same test has been applied to suits for invasion of privacy based on false statements where a 'matter of public interest' is involved. Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). It is therefore perfectly clear that, were appellant a member of the general public, the State's power to afford the appellee Board of Education or its members any legal right to sue him for writing the letter at issue here would be limited by the requirement that the letter be judged by the standard laid down in New York Times.
19
This Court has also indicated, in more general terms, that statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors. Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). In Garrison, the New York Times test was specifically applied to a case involving a criminal defamation conviction stemming from statements made by a district attorney about the judges before whom he regularly appeared.
20
While criminal sanctions and damage awards have a somewhat different impact on the exercise of the right to freedom of speech from dismissal from employment, it is apparent that the threat of dismissal from public employment is nonetheless a potent means of inhibiting speech. We have already noted our disinclination to make an across-the-board equation of dismissal from public employment for remarks critical of superiors with awarding damages in a libel suit by a public official for similar criticism. However, in a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.
21
In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him,6 a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. Since no such showing has been made in this case regarding appellant's letter, see Appendix, infra, his dismissal for writing it cannot be upheld and the judgment of the Illinois Supreme Court must, accordingly, be reversed and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered.
22
Judgment reversed and case remanded with directions.
23
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK joins, concurs in the judgment of the Court for the reasons set out in his concurring opinions in Time, Inc. v. Hill, 385 U.S. 374, 401, 87 S.Ct. 534, 548, Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597, and Garrison v. Louisiana, 379 U.S. 64, 80, 85 S.Ct. 209, 218, and in the separate opinions of Mr. Justice Black in Curtis Publishing Co. v. Butts, 388 U.S. 130, 170, 87 S.Ct. 1975, 1999, 18 L.Ed.2d 1094 and New York Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733.
APPENDIX TO OPINION OF THE COURT
24
A. Appellant's letter.
LETTERS TO THE EDITOR
25
* * * Graphic Newspapers, Inc. Thursday, September 24, 1964, Page 4
Dear Editor:
26
I enjoyed reading the back issues of your paper which you loaned to me. Perhaps others would enjoy reading them in order to see just how far the two new high schools have deviated from the original promises by the Board of Education. First, let me state that I am referring to the February thru November, 1961 issues of your paper, so that it can be checked.
27
One statement in your paper declared that swimming pools, athletic fields, and auditoriums had been left out of the program. They may have been left out but they got put back in very quickly because Lockport West has both an auditorium and athletic field. In fact, Lockport West has a better athletic field than Lockport Central. It has a track that isn't quite regulation distance even though the board spent a few thousand dollars on it. Whose fault is that? Oh, I forgot, it wasn't supposed to be there in the first place. It must have fallen out of the sky. Such responsibility has been touched on in other letters but it seems one just can't help noticing it. I am not saying the school shouldn't have these facilities, because I think they should, but promises are promises, or are they?
28
Since there seems to be a problem getting all the facts to the voter on the twice defeated bond issue, many letters have been written to this paper and probably more will follow, I feel I must say something about the letters and their writers. Many of these letters did not give the whole story. Letters by your Board and Administration have stated that teachers' salaries total $1,297,746 for one year. Now that must have been the total payroll, otherwise the teachers would be getting $10,000 a year. I teach at the high school and I know this just isn't the case. However, this shows their 'stop at nothing' attitude. To illustrate further, do you know that the superintendent told the teachers, and I quote, 'Any teacher that opposes the referendum should be prepared for the consequences.' I think this gets at the reason we have problems passing bond issues. Threats take something away; these are insults to voters in a free society. We should try to sell a program on its merits, if it has any.
29
Remember those letters entitled 'District 205 Teachers Speak,' I think the voters should know that those letters have been written and agreed to by only five or six teachers, not 98% of the teachers in the high school. In fact, many teachers didn't even know who was writing them. Did you know that those letters had to have the approval of the superintendent before they could be put in the paper? That's the kind of totalitarianism teachers live in at the high school, and your children go to school in.
30
In last week's paper, the letter written by a few uninformed teachers threatened to close the school cafeteria and fire its personnel. This is ridiculous and insults the intelligence of the voter because properly managed school cafeterias do not cost the school district any money. If the cafeteria is losing money, then the board should not be packing free lunches for athletes on days of athletic contests. Whatever the case, the taxpayer's child should only have to pay about 30¢ for his lunch instead of 35¢ to pay for free lunches for the athletes.
31
In a reply to this letter your Board of Administration will probably state that these lunches are paid for from receipts from the games. But $20,000 in receipts doesn't pay for the $200,000 a year they have been spending on varsity sports while neglecting the wants of teachers.
32
You see we don't need an increase in the transportation tax unless the voters want to keep paying $50,000 or more a year to transport athletes home after practice and to away games, etc. Rest of the $200,000 is made up in coaches' salaries, athletic directors' salaries, baseball pitching machines, sodded football fields, and thousands of dollars for other sports equipment.
33
These things are all right, provided we have enough money for them. To sod football fields on borrowed money and then not be able to pay teachers' salaries is getting the cart before the horse.
34
If these things aren't enough for you, look at East High. No doors on many of the classrooms, a plant room without any sunlight, no water in a first aid treatment room, are just a few of many things. The taxpayers were really taken to the cleaners. A part of the sidewalk in front of the building has already collapsed. Maybe Mr. Hess would be interested to know that we need blinds on the windows in that building also.
35
Once again, the board must have forgotten they were going to spend $3,200,000 on the West building and $2,300,000 on the East building.
36
As I see it, the bond issue is a fight between the Board of Education that is trying to push tax-supported athletics down our throats with education, and a public that has mixed emotions about both of these items because they feel they are already paying enough taxes, and simply don't know whom to trust with any more tax money.
37
I must sign this letter as a citizen, taxpayer and voter, not as a teacher, since that freedom has been taken from the teachers by the administration. Do you really know what goes on behind those stone walls at the high school?
38
Respectfully,
39
Marvin L. Pickering.
40
B. Analysis.
41
The foregoing letter contains eight principal statements which the Board found to be false.1 Our independent review of the record2 convinces us that Justice Schaefer was correct in his dissenting opinion in this case when he concluded that many of appellant's statements which were found by the Board to be false were in fact substantially correct. We shall deal with each of the statements found to be false in turn. (1) Appellant asserted in his letter that the two new high schools when constructed deviated substantially from the original promises made by the Board during the campaign on the bond issue about the facilities they would contain. The Board based its conclusion that this statement was false on its determination that the promises referred to were those made in the campaign to pass the second bond issue in December of 1961. In the campaign on the first bond issue the Board stated that the plans for the two schools did not include such items as swimming pools, auditoriums, and athletic fields. The publicity put out by the Board on the second bond issue mentioned nothing about the addition of an auditorium to the plans and also mentioned nothing specific about athletic fields, although a general reference to 'state required physical education' facilities was included that was similar to a reference made in the material issued by the Board during the first campaign.
42
In sum, the Board first stated that certain facilities were not to be included in the new high schools as an economy measure, changed its mind after the defeat of the first bond issue and decided to include some of the facilities previously omitted, and never specifically or even generally indicated to the taxpayers the change. Appellant's claim that the original plans, as disclosed to the public, deviated from the buildings actually constructed is thus substantially correct and his characterization of the Board's prior statement as a 'promise' is fair as a matter of opinion. The Board's conclusion to the contrary based on its determination that appellant's statement referred only to the literature distributed during the second bond issue campaign is unreasonable in that it ignores the word 'original' that modifies 'promises' in appellant's letter.
43
(2) Appellant stated that the Board incorrectly informed the public that 'teachers' salaries' total $1,297,746 per year. The Board found that statement false. However, the superintendent of schools admitted that the only way the Board's figure could be regarded as accurate was to change the word 'teachers' to 'instructional' whereby the salaries of deans, principals, librarians, counselors, and four secretaries at each of the district's three high schools would be included in the total. Appellant's characterization of the Board's figure as incorrect is thus clearly accurate.
44
(3) Pickering claimed that the superintendent had said that any teacher who did not support the 1961 bond issue referendum should be prepared for the consequences. The Board found this claim false. However, the statement was corroborated by the testimony of two other teachers, although the superintendent denied making the remark attributed to him. The Illinois Supreme Court appears to have agreed that something along the lines stated by appellant was said, since it relied, in upholding the Board's finding that appellant's version of the remark was false, on testimony by one of the two teachers that he interpreted the remark to be a prediction about the adverse consequences for the schools should the referendum not pass rather than a threat against noncooperation by teachers. However, the other teacher testified that he didn't know how to interpret the remark. Accordingly, while appellant may have misinterpreted the meaning of the remark, he did not misreport it.
45
(4) Appellant's letter stated that letters from teachers to newspapers had to have the approval of the superintendent before they could be submitted for publication. The Board relied in finding this statement false on the testimony by the superintendent that no approval was required by him. However, the Handbook for Teachers of the district specifically stated at that time that material submitted to local papers should be checked with the building principal and submitted in triplicate to the publicity coordinator. In particular, the teachers' letters to which appellant was specifically referring in his own letter had in fact been submitted to the superintendent prior to their publication. Thus this statement is substantially correct.
46
The other four statements challenged by the Board, are factually incorrect in varying degrees. (5) Appellant's letter implied that providing athletes in the schools with free lunches meant that other students must pay 35¢ instead of 30¢ for their lunches. This statement is erroneous in that while discontinuing free lunches for athletes would have permitted some small decrease in the 35¢ charge for lunch to other students, the decrease would not have brought the price down to 30¢. (6) Appellant claimed that the Board had been spending $200,000 a year on athletics while neglecting the wants of teachers. This claim is incorrect in that the $200,000 per year figure included over $130,000 of nonrecurring capital expenditures. (7) Appellant also claimed that the Board had been spending $50,000 a year on transportation for athletes. This claim is completely false in that the expenditures on travel for athletes per year were about $10,000. (8) Finally, appellant stated that football fields had been sodded on borrowed money, while the Board had been unable to pay teachers' salaries. This statement is substantially correct as to the football fields being sodded with borrowed money because the money spent was the proceeds of part of the bond issue, which can fairly be characterized as borrowed. It is incorrect insofar as it suggests that the district's teachers had actually not been paid upon occasion, but correct if taken to mean that the Board had at times some difficulty in obtaining the funds with which to pay teachers. The manner in which the last four statements are false is perfectly consistent with good-faith error, and there is no evidence in the record to show that anything other than carelessness or insufficient information was responsible for their being made.
47
Mr. Justice WHITE, concurring in part and dissenting in part.
48
The Court holds that truthful statements by a school teacher critical of the school board are within the ambit of the First Amendment. So also are false statements innocently or negligently made. The State may not fire the teacher for making either unless, as I gather it, there are special circumstances, not present in this case, demonstrating an overriding state interest, such as the need for confidentiality or the special obligations which a teacher in a particular position may owe to his superiors.1 The core of today's decision is the holding that Pickering's discharge must be tested by the standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964). To this extent I am in agreement.
49
The Court goes on, however, to reopen a question I had thought settled by New York Times and the cases that followed it, particularly Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209 (1964). The Court devotes several pages to reexamining the facts in order to reject the determination below that Pickering's statements harmed the school system, ante, at 570—573, when the question of harm is clearly irrelevant given the Court's determination that Pickering's statements were neither knowingly nor recklessly false and its ruling that in such circumstances a teacher may not be fired even if the statements are injurious. The Court then gratuitously suggests that when statements are found to be knowingly or recklessly false, it is an open question whether the First Amendment still protects them unless they are shown or can be presumed to have caused harm. Ante, at 574, n. 6. Deliberate or reckless falsehoods serve no First Amendment ends and deserve no protection under that Amendment. The Court unequivocally recognized this in Garrison, where after reargument the Court said that 'the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.' 379 U.S., at 75, 85 S.Ct., at 216. The Court today neither explains nor justifies its withdrawal from the firm stand taken in Garrison. As I see it, a teacher may be fired without violation of the First Amendment for knowingly or recklessly making false statements regardless of their harmful impact on the schools. As the Court holds, however, in the absence of special circumstances he may not be fired if his statements were true or only negligently false, even if there is some harm to the school system. I therefore see no basis or necessity for the Court's foray into fact-finding with respect to whether the record supports a finding as to injury.2 If Pickering's false statements were either knowingly or recklessly made, injury to the school system becomes irrelevant, and the First Amendment would not prevent his discharge. For the State to be constitutionally precluded from terminating his employment, reliance on some other constitutional provision would be required.
50
Nor can I join the Court in its findings with regard to whether Pickering knowingly or recklessly published false statements. Neither the State in presenting its evidence nor the state tribunals in arriving at their findings and conclusions of law addressed themselves to the elements of the new standard which the Court holds the First Amendment to require in the circumstances of this case. Indeed, the state courts expressly rejected the applicability of both New York Times and Garrison. I find it wholly unsatisfactory for this Court to make the initial determination of knowing or reckless falsehood from the cold record now before us. It would be far more appropriate to remand this case to the state courts for further proceedings in light of the constitutional standard which the Court deems applicable to this case, once the relevant facts have been ascertained in appropriate proceedings.
1
Appellant also challenged that statutory standard on which the Board based his dismissal as vague and overbroad. See Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). Because of our disposition of this case we do not reach appellant's challenge to the statute on its face.
2
We have set out in the Appendix our detailed analysis of the specific statements in appellant's letter which the Board found to be false, together with our reasons for concluding that several of the statements were, contrary to the findings of the Board, substantially correct.
3
It is possible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal. Likewise, positions in public employment in which the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship between them can also be imagined. We intimate no views as to how we would resolve any specific instances of such situations, but merely note that significantly different considerations would be involved in such cases.
4
There is likewise no occasion furnished by this case for consideration of the extent to which teachers can be required by narrowly drawn grievance procedures to submit complaints about the operation of the schools to their superiors for action thereon prior to bringing the complaints before the public.
5
We also note that this case does not present a situation in which a teacher's public statements are so without foundation as to call into question his fitness to perform his duties in the classroom. In such a case, of course, the statements would merely be evidence of the teacher's general competence, or lack thereof, and not an independent basis for dismissal.
6
Because we conclude that appellant's statements were not knowingly or recklessly false, we have no occasion to pass upon the additional question whether a statement that was knowingly or recklessly false would, if it were neither shown nor could reasonably be presumed to have had any harmful effects, still be protected by the First Amendment. See also n. 5, supra.
1
We shall not bother to enumerate some of the statements which the Board found to be false because their triviality is so readily apparent that the Board could not rationally have considered them as detrimental to the interests of the schools regardless of their truth or falsity.
2
This Court has regularly held that where constitutional rights are in issue an independent examination of the record will be made in order that the controlling legal principles may be applied to the actual facts of the case. E.g., Norris v. State of Alabama, 294 U.S. 587, 55S.Ct. 579, 79 L.Ed. 1074 (1935); Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728 (1964). However, even in cases where the upholding or rejection of a constitutional claim turns on the resolution of factual questions, we also consistently give great, if not controlling, weight to the findings of the state courts. In the present case the trier of fact was the same body that was also both the victim of appellant's statements and the prosecutor that brought the charges aimed at securing his dismissal. The state courts made no independent review of the record but simply contented themselves with ascertaining, in accordance with statute, whether there was substantial evidence to support the Board's findings.
Appellant requests us to reverse the state courts' decisions upholding his dismissal on the independent ground that the procedure followed above deprived him of due process in that he was not afforded an impartial tribunal. However, appellant makes this contention for the first time in this Court, not having raised it at any point in the state proceedings.
Because of this, we decline to treat appellant's claim as an independent ground for our decision in this case. On the other hand, we do not propose to blind ourselves to the obvious defects in the fact-finding process occasioned by the board's multiple functioning vis-a -vis appellant. Compare Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Accordingly, since the state courts have at no time given de novo consideration to the statements in the letter, we feel free to examine the evidence in this case completely independently and to afford little weight to the factual determinations made by the Board.
1
See ante, at 569-570, 572 and nn. 3, 4. The Court does not elaborate upon its suggestion that there may be situations in which, with reference to certain areas of public comment, a teacher may have special obligations to his superiors. It simply holds that in this case, with respect to the particular public comment made by Pickering, he is more like a member of the general public and, apparently, too remote from the school board to require placing him into any special category. Further, as I read the Court's opinion, it does not foreclose the possibility that under the First Amendment a school system may have an enforceable rule, applicable to teachers, that public statements about school business must first be submitted to the authorities to check for accuracy.
2
Even if consideration of harm were necessary in this case, I could not join the Court in concluding on this record that harm to the school administration was not proved and could not be presumed.
| 23
|
391 U.S. 593
88 S.Ct. 1753
20 L.Ed.2d 835
KAISER STEEL CORP.v.W. S. RANCH CO.
No. 1328.
June 3, 1968.
J. R. Modrall, for petitioner.
William R. Federici, for respondent.
Boston E. Witt, Atty. Gen., and F. Harlan Flint, Sp. Asst. Atty. Gen., for the State of New Mexico ex rel. New Mexico State Engineer, amicus curiae.
PER CURIAM.
1
Respondent brought this diversity suit in the United States District Court for the District of New Mexico, claiming an illegal trespass by petitioner and seeking damages and an injunction. Petitioner admitted the alleged trespass but claimed it was authorized to do this by N.M.Stat.Ann. § 75—1—3 (1953), in order to use water rights it had been granted by the State. Respondent contended that if § 75—1—3 were construed to authorize condemnation of private land to secure water for a private business, the law would violate the New Mexico Constitution, which permits the taking of private property only for 'public use.' N.M.Const., Art. II, § 20. The crucial issue thus became the interpretation of the term 'public use' in the State Constitution. The District Court held that the property had been taken for a public use, rejecting the suggestion in petitioner's brief that the action be stayed pending decision of the crucial question by the state courts. The Court of Appeals reversed on the merits, 388 F.2d 257 (10 Cir. 1967), and rejected petitioner's motion to stay the federal court's action until the state law issues could be settled in a declaratory judgment suit then pending in the state courts, 388 F.2d, at 262 (1968) (on petition for rehearing).
2
The Court of Appeals erred in refusing to stay its hand. The state law issue which is crucial in this case is one of vital concern in the arid State of New Mexico, where water is one of the most valuable natural resources. The issue, moreover, is a truly novel one. The question will eventually have to be resolved by the New Mexico courts, and since a declaratory judgment action is actually pending there, in all likelihood that resolution will be forthcoming soon. Sound judicial administration requires that the parties in this case be given the benefit of the same rule of law which will apply to all other businesses and landowners concerned with the use of this vital state resource.
3
The writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded with directions that the action be stayed in accordance with the prayer of petitioner. Federal jurisdiction will be retained in the District Court in order to insure a just disposition of this litigation should anything prevent a prompt state court determination.
4
It is so ordered.
5
Judgment of the Court of Appeals reversed and case remanded with directions.
6
Mr. Justice BRENNAN, whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, concurring.
7
I concur solely on the ground that this case presents one of the 'narrowly limited 'special circumstances" which justify the invocation of '(t)he judge-made doctrine of abstention,' Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444. The 'special circumstances,' as the Court states, arise from the fact that '(t)he state law issue which is crucial in this case is one of vital concern in the arid State of New Mexico, where water is one of the most valuable natural resources.' Cf. Alabama Public Service 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; see Zwickler v. Koota, supra, 389 U.S. at 249, n. 11, 88 S.Ct. at 396. I adhere however to my view, expressed in dissent in Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 31, 79 S.Ct. 1070, 1074, 3 L.Ed.2d 1058, that in a diversity case abstention from decision of a state law question is improper in the absence of such 'special circumstances.'
| 89
|
391 U.S. 471
88 S.Ct. 1759
20 L.Ed.2d 751
READING COMPANY, Petitioner,v.Francis Shunk BROWN, 3d, etc., et al.
No. 127.
Argued March 4 and 5, 1968.
Decided June 3, 1968.
[Syllabus from pages 471-472 intentionally omitted]
Thomas Raeburn White, Jr., Philadelphia, Pa., for petitioner.
Owen B. rhoads, Philadelphia, Pa., and Richard M. Roberts, Washington, D.C., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
On November 16, 1962, I. J. Knight Realty Corporation filed a petition for an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. §§ 701—799. The same day, the District Court appointed a receiver, Francis Shunk Brown, a respondent here. The receiver was authorized to conduct the debtor's business, which consisted principally of leasing the debtor's only significant asset, an eight-story industrial structure located in Philadelphia.
2
On January 1, 1963, the building was totally destroyed by a fire which spread to adjoining premises and destroyed real and personal property of petitioner Reading Company and others. On April 3, 1963, petitioner filed a claim for $559,730.83 in the arrangement, based on the asserted negligence of the receiver. It was styled a claim for 'administrative expenses' of the arrangement. Other fire loss claimants filed 146 additional claims of a similar nature. The total of all such claims was in excess of $3,500,000, substantially more than the total assets of the debtor.
3
On May 14, 1963, Knight Realty was voluntarily adjudicated a bankrupt and respondent receiver was subsequently elected trustee in bankruptcy. The claims of petitioner and others thus became claims for administration expenses in bankruptcy which are given first priority under § 64a(1) of the Bankruptcy Act, 11 U.S.C. § 104(a)(1).1 The trustee moved to expunge the claims on the ground that they were not for expenses of administration. It was agreed that the decision whether petitioner's claim is provable as an expense of administration would establish the status of the other 146 claims. It was further agreed that, for purposes of deciding whether the claim is provable, it would be assumed that the damage to petitioner's property resulted from the negligence of the receiver and a workman he employed.2 The United States, holding a claim for unpaid prearrangement taxes admittedly superior to the claims of general creditors and inferior to claims for administration expenses, entered the case on the side of the trustee.
4
The referee disallowed the claim for administration expenses. He also ruled that petitioner's claim was not provable as a general claim against the estate, a ruling challenged by neither side.3 On petition for review, the referee was upheld by the District Court. On appeal, the Court of Appeals for the Third Circuit, sitting en banc, affirmed the decision of the District Court by a 4—3 vote. We granted certiorari, 389 U.S 895, because the issue is important in the administration of the bankruptcy laws and is one of first impression in this Court. For reasons to follow, we reverse.
5
Section 64a of the Bankruptcy Act provides in part as follows:
6
'The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be (1) the costs and expenses of administration, including the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition * * *.'
7
It is agreed that this section, applicable by its terms to straight bankruptcies, governs payment of administration expenses of Chapter XI arrangements. Furthermore, it is agreed that for the purpose of applying this section to arrangements, the words 'subsequent to filing the petition' refer to the period subsequent to the arrangement petition,4 and the words 'preserving the estate' include the larger objective, common to arrangements, of operating the debtor's business with a view to rehabilitating it.5
8
The question in this case is whether the negligence of a receiver administering an estate under a Chapter XI arrangement gives rise to an 'actual and necessary' cost of operating the debtor's business. The Act does not define 'actual and necessary,' nor has any case directly in point been brought to our attention.6 We must, therefore, look to the general purposes of § 64a, Chapter XI, and the Bankruptcy Act as a whole.
9
The trustee contends that the relevant statutory objectives are (1) to facilitate rehabilitation of insolvent businesses and (2) to preserve a maximum of assets for distribution among the general creditors should the arrangement fail. He therefore argues that first priority as 'necessary' expenses should be given only to those expenditures without which the insolvent business could not be carried on. For example, the trustee would allow first priority to contracts entered into by the receiver because suppliers, employees, landlords, and the like would not enter into dealings with a debtor in possession or a receiver of an insolvent business unless priority is allowed. The trustee would exclude all negligence claims, on the theory that first priority for them is not necessary to encourage third parties to deal with an insolvent business, that first priority would reduce the amount available for the general creditors, and that first priority would discourage general creditors from accepting arrangements.
10
In our view the trustee has overlooked one important, and here decisive, statutory objective: fairness to all persons having claims against an insolvent. Petitioner suffered grave financial injury from what is here agreed to have been the negligence of the receiver and a workman. It is conceded that, in principle, petitioner has a right to recover for that injury from their 'employer,' the business under arrangement, upon the rule of respondeat superior.7 Respondents contend, however, that petitioner is in no different position from anyone else injured by a person with scant assets: its right to recover exists in theory but is not enforceable in practice.
11
That, however, is not an adequate description of petitioner's position. At the moment when an arrangement is sought, the debtor is insolvent. Its existing creditors hope that by partial or complete postponement of their claims they will, through successful rehabilitation, eventually recover from the debtor either in full or in larger proportion than they would in immediate bankruptcy. Hence the present petitioner did not merely suffer injury at the hands of an insolvent business: it had an insolvent business thrust upon it by operation of law. That business will, in any event, be unable to pay its fire debts in full. But the question is whether the fire claimants should be subordinated to, should share equally with, or should collect ahead of those creditors for whose benefit the continued operation of the business (which unfortunately led to a fire instead of the hoped-for rehabilitation) was allowed.
12
Recognizing that petitioner ought to have some means of asserting its claim against the business whose operation resulted in the fire, respondents have suggested various theories as alternatives to 'administration expense' treatment. None of these has case support, and all seem to us unsatisfactory.
13
Several need not be pursued in detail. The trustee contends that if the present claims are not provable in bankruptcy they would survive as claims against the shell. He also suggests that petitioner may be able to recover from the receiver personally, or out of such bond as he posted. Without deciding whether these possible avenues are indeed open,8 we merely note that they do not serve the present purpose. The 'master,' liable for the negligence of the 'servant' in this case was the business operating under a Chapter XI arrangement for the benefit of creditors and with the hope of rehabilitation. That benefit and that rehabilitation are worthy objectives. But it would be inconsistent both with the principle of respondeat superior and with the rule of fairness in bankruptcy to seek these objectives at the cost of excluding tort creditors of the arrangement from its assets, or totally subordinating the claims of those on whom the arrangement is imposed to the claims of those for whose benefit it is instituted.
14
The United States, as a respondent, suggests instead that tort claims arising during an arrangement are, if properly preserved, provable general claims in any subsequent bankruptcy under § 63a of the Act, 11 U.S.C. § 193(a). That section reads as follows:
15
'Debts of the bankrupt may be proved and allowed against his estate which are founded upon * * * (7) the right to recover damages in any action for negligence instituted prior to and pending at the time of the filing of the petition in bankruptcy * * *.'
16
It is agreed by all parties that this section will not avail the present petitioner who, it appears, did not file suit on its claim prior to the bankruptcy proper. This, the United States argues, is its own fault: it could have filed suit after the tort, during the arrangement, and before the petition in bankruptcy, and thus preserved its claim.
17
This was not the view of the District Court. Section 302 of the Act, the section which provides that Chapters I to VII of the Act (including §§ 63 and 64) shall be applicable to arrangements under Chapter XI as well as straight bankruptcies, contains the following provision:
18
'For the purposes of such application the date of the filing of the petition in bankruptcy shall be taken to be the date of the filing of an original petition under section 722 of this title (§ 322 of the Act, 11 U.S.C. § 722, which provides for filing original petitions for arrangements) * * *.'
19
Section 278(2) of the Act, 11 U.S.C. § 778(2), dealing with procedure when bankruptcy ensues upon an arrangement, provides that
20
'in the case of a petition filed under section 722 of this title, the proceeding shall be conducted, so far as possible, in the same manner and with like effect as if a voluntary petition for adjudication in bankruptcy had been filed and a decree of adjudication had been entered on the day when the petition under this chapter (i.e., the petition for an arrangement) was filed * * *.'
21
The effect of these two sections is that, whether or not an arrangement is superseded by bankruptcy, for purposes of applying § 63 to arrangements the date of the arrangement petition is deemed to be the date of a petition in bankruptcy.
22
From this fact, the District Court concluded, and petitioner now argues, that a person negligently injured during the course of an arrangement could never have a provable general claim under § 63a. For that section requires that suit be filed before the filing of the petition in bankruptcy, and, when the section is applied to an arrangement, the date of the filing of the petition in bankruptcy is deemed to be the date of the filing of the arrangement petition.
23
In response, the United States notes that § 378(2) is qualified by the words 'so far as possible.' The Government therefore suggests a holding that it is not 'possible' to treat the date of the arrangement petition as the critical date in a case such as the present, because that point in time antedates the tort. On that theory, it is suggested that, for present purposes, § 63a's reference to the date of filing the bankruptcy petition be taken to refer to the date of the petition in bankruptcy proper.
24
We do not find this an acceptable alternative. The only thing that renders it not 'possible' to follow the statutory scheme and meld the arrangement into the bankruptcy is the Government's insistence that petitioner's claim must be held to have been provable under § 63a if only petitioner had taken the proper steps. There is nothing 'impossible' about construing the sections here involved to mean what they say: a tort claim arising during an arrangement, like a tort claim arising during a bankruptcy proceeding proper, is not provable as a general claim in the bankruptcy.
25
There are additional reasons for reading the sections literally in this case. In the first place, the United States' suggestion will not work where bankruptcy does not ensue upon the arrangement, for then there is no later date that can be used as the cutoff for 63a(7) claims. In that case, it would be necessary either to hold that a tort claim arising during an arrangement is a provable general claim if bankruptcy ensues but is not a provable general claim in the arrangement itself, or to hold that there is no time limit on filing suit so long as the arrangement remains an arrangement. Nothing in the qualifying language of § 378(2) grants permission to read the time limitation out of § 63a(7) of the Act.
26
An even greater difficulty is presented by the fact that § 63a refers to provable debts of the bankrupt, and distinguishes the bankrupt from his estate. Section 302 provides that in applying § 63a to arrangements, the word 'bankrupts' shall be deemed to relate also to 'debtors.' Thus the natural reading of § 63a, when applied to arrangements as if they were bankruptcies, is that in order to be provable under § 63a(7) a tort claim must be a claim against the debtor and not against the estate in a Chapter XI arrangement. Respondents might argue this question as they do the time limitation: that it would be preferable to deem the words 'debts of the bankrupt' to mean 'debts of the debtor or of his estate arising up to the time of bankruptcy proper.' This argument is open, however, to the same objections as the argument on time limitations: it is a strained reading of the statute which makes no allowance for the occasions when straight bankruptcy does not ensue.
27
In any event, we see no reason to indulge in a strained construction of the relevant provisions, for we are persuaded that it is theoretically sounder, as well as linguistically more comfortable, to treat tort claims arising during an arrangement as actual and necessary expenses of the arrangement rather than debts of the bankrupt. In the first place, in considering whether those injured by the operation of the business during an arrangement should share equally with, or recover ahead of, those for whose benefit the business is carried on, the latter seems more natural and just. Existing creditors are, to be sure, in a dilemma not of their own making, but there is no obvious reason why they should be allowed to attempt to escape that dilemma at the risk of imposing it on others equally innocent.
28
More directly in point is the possibility of insurance. An arrangement may provide for suitable coverage, and the court below recognized that the cost of insurance against tort claims arising during an arrangement is an administrative expense payable in full under § 64a(1) before dividends to general creditors.9 It is of course obvious that proper insurance premiums must be given priority, else insurance could not be obtained; and if a receiver or debtor in possession is to be encouraged to obtain insurance in adequate amounts, the claims against which insurance is obtained should be potentially payable in full. In the present case, it is argued, the fire was of such incredible magnitude that adequate insurance probably could not have been obtained and in any event would have been foolish; this may be true, as it is also true that allowance of a first priority to the fire claimants here will still only mean recovery by them of a fraction of their damages. In the usual case where damages are within insurable limits, however, the rule of full recovery for torts is demonstrably sounder.
29
Although there appear to be no cases dealing with tort claims arising during Chapter XI proceedings, decisions in analogous cases suggest that 'actual and necessary costs' should include costs ordinarily incident to operation of a business, and not be limited to costs without which rehabilitation would be impossible. It has long been the rule of equity receiverships that torts of the receivership create claims against the receivership itself;10 in those cases the statutory limitation to 'actual and necessary costs' is not involved, but the explicit recognition extended to tort claims in those cases weighs heavily in favor of considering them within the general category of costs and expenses.
30
In some cases arising under Chapter XI it has been recognized that 'actual and necessary costs' are not limited to those claims which the business must be able to pay in full if it is to be able to deal at all. For example, state and federal taxes accruing during a receivership have been held to be actual and necessary costs of an arrangement.11 The United States, recognizing and supporting these holdings, agrees with petitioner that costs that form 'an integral and essential element of the continuation of the business' are necessary expenses even though priority is not necessary to the continuation of the business. Thus the Government suggests that 'an injury to a member of the public—a business invitee—who was injured while on the business premises during an arrangement would present a completely different problem (i.e., could qualify for first priority)' although it is not suggested that priority is needed to encourage invitees to enter the premises.
31
The United States argues, however, that each tort claim 'must be analyzed in its own context.' Apart from the fact that it has been assumed throughout this case that all 147 claimants were on an equal footing and it is not very helpful to suggest here for the first time a rule by which lessees, invitees, and neighbors have different rights, we perceive no distinction. No principle of tort law of which we are aware offers guidance for distinguishing, within the class of torts committed by receivers while acting in furtherance of the business, between those 'integral' to the business and those that are not.12
32
We hold that damages resulting from the negligence of a receiver acting within the scope of his authority as receiver give rise to 'actual and necessary costs' of a Chapter XI arrangement.
33
The judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with this opinion.
34
It is so ordered.
35
Judgment of Court of Appeals reversed and case remanded.
36
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
37
Mr. Chief Justice WARREN, with whom Mr. Justice DOUGLAS joins, dissenting.
38
In my opinion, the Court has misinterpreted the term 'costs and expenses of administration' as intended by s 64a(1) of the Bankruptcy Act and, by deviating from the natural meaning of those words, has given the administrative cost priority an unwarranted application. The effect of the holding in this case is that the negligence of a workman may completely wipe out the claims of all other classes of public and private creditors. I do not believe Congress intended to accord tort claimants such a preference. Accordingly, I would affirm the judgment below.
39
On other occasions, this Court has observed that '(t)he theme of the Bankruptcy Act is 'equality of distribution' * * *; and if one claimant is to be preferred over the others, the purpose should be clear from the statute.' Nathanson v. NLRB, 344 U.S. 25, 29, 73 S.Ct. 80, 83, 97 L.Ed. 23 (1952); see Sampsell v. Imperial Paper Corp., 313 U.S. 215, 219, 61 S.Ct. 904, 907, 85 L.Ed. 1293 (1941). More particularly, the Act expressly directs that eligible negligence claims are to share equally with the unsecured claims in a pro rata distribution of the debtor's nonexempt assets. Bankruptcy Act §§ 63a(7), 65a, 11 U.S.C. §§ 103(a)(7), 105(a). Departing from this statutory scheme, the Court today singles out one class of tort claims for special treatment. After today's decision, the status of a tort claimant depends entirely upon whether he is fortunate enough to have been injured after rather than before a receiver has been appointed. And if the claimant is in the select class, he may be permitted to exhaust the estate to the exclusion of the general creditors as well as of the wage claims and government tax claims for which Congress has shown an unmistakable preference.1 In my view, this result frustrates rather than serves the underlying purposes of a Chapter XI proceeding, and I would not reach it without a clear indication that Congress so intended.
40
Congress enacted Chapter XI as an alternative to straight bankruptcy for individuals and small businesses which might be successfully rehabilitated instead of being subjected to economically wasteful liquidation. The success of a Chapter XI proceeding depends largely on two factors: first, whether creditors will take the chance of permitting an arrangement; second, whether other businesses will continue to deal with the distressed business. With respect to the first of these considerations, today's decision will undoubtedly discourage creditors from permitting arrangements, because it subjects them to unpredictable and probably uninsurable tort liability. I do not believe the statutory language requires such an interpretation. I would construe § 64a(1) with reference to the second consideration mentioned above. In my opinion, the Court would reach a result more in line with congressional intent and the Bankruptcy Act generally by regarding as administrative costs only those costs required for a smooth and successful arrangement. Accordingly, the administrative cost priority should be viewed as a guaranty to the receiver and those who deal with or are employed by him that they will be paid for their goods and services. Any broader interpretation will discourage creditors from permitting use of the rehabilitative machinery of Chapter XI and tend to force distressed businesses into straight bankruptcy.
41
It is equitable, the Court believes, that the general creditors (and wage and tax claimants) bear the loss in this case because they have 'thrust' an insolvent business upon petitioner for their own benefit. I respectfully submit that this is a most unfair characterization of arrangements. An economically distressed businessman seeks an arrangement for his own and not for his creditors' benefit.2 Of course the creditors will benefit if the arrangement is successful, just as they would have benefited if the businessman had been successful without resorting to an arrangement. But a business in arrangement is no more thrust on the public than is any other business enterprise which is conducted for the mutual prosperity of the owners, the wage earners and the creditors. Realistically, the only difference is that a business administered under Chapter XI has not been prosperous. If the arrangement is successful, the owners, wage earners and creditors will all benefit; if it is not, they will all be injured. Thus, I would not distinguish in this case between petitioner and the other general creditors, none of whom was responsible for the catastrophe for which all of them must sustain some loss. Instead, in deciding this case, I would adhere to the Act's basic theme of equality of distribution.
42
The Court states that its decision will encourage Chapter XI receivers to obtain 'adequate' insurance. The Court fairly well concedes, however, that in this case 'adequate' insurance 'probably could not have been obtained and in any event would have been foolish.' In other words, so far as this Court knows, the insurance taken out by the receiver in this case was in fact 'adequate,' in the sense that no reasonable receiver could or should obtain fire insurance in the amount of $3,500,000 on the assumption that his workman might accidentally cause a fire of the proportions which occurred here. Moreover, quite apart from the case at bar, there is absolutely no indication that today's decision is needed to encourage receivers to obtain insurance.3 I see no basis in the Act or in sound policy for a ruling that the creditors of an estate under a Chapter XI arrangement become involuntary insurers against a liability which probably would not and should not be insurable by more traditional means.
43
The Court also relies, in my opinion mistakenly, upon analogies to equity receiverships. In reorganizations under Chapter X4 and § 77,5 Congress has directed the courts to apply the rules of priority developed in equity.6 However, arrangements under Chapter XI are governed strictly by the statutory priorities fixed by § 64a. These statutory priorities differ in many respects from those applicable to equity receiverships,7 and they have been amended repeatedly to narrow the class of claimants which may participate ahead of the general creditors.8 Furthermore, even in the case of § 77 reorganizations where the priorities developed in equity are controlling, Congress has specifically provided for one exception to the rule that tort claimants are to be treated as general creditors. Bankruptcy Act § 77(n), 11 U.S.C. § 205(n). That exception is in favor of a narrowly defined class of claimants. Congress has not expressly provided a similar exception to cover petitioner's tort claim, and I would not infer one.
44
Finally, the Court concludes, for two reasons, that it is 'linguistically more comfortable' to treat petitioner's claim as an administrative cost rather than as a negligence claim which could have been proven under § 63a(7). First, § 63a refers to provable claims against the debtor and not against his estate. Second, §§ 63a(7) and 302 require that an action be commenced on the claim before the filing of the arrangement petition, and allowing claims like petitioner's would in effect toll the time limitation imposed by these sections. With respect to the first of the Court's reasons, I find no statutory or practical basis for distinguishing between the debtor and his estate in this case. Had the arrangement been successful, the debtor would have been liable for any damages occasioned during the administration under the line of cases relied upon by the Court. Texas & Pacific R. Co. v. Bloom, 164 U.S. 636, 17 S.Ct. 216, 41 L.Ed. 580 (1897). The suggested distinction between 'debtor' and 'estate' would be meaningful only if the two words pointed to different sources of liability. Here, petitioner's negligence claim, if allowed, would diminish the debtor's estate irrespective of whether it were treated as an administrative cost under § 64a or as an ordinary negligence claim under § 63a(7). With respect to the Court's second argument, Chapter XI provides that the straight bankruptcy provisions, including § 63a(7), are applicable to arrangement proceedings only 'so far as possible.' Bankruptcy Act § 378(2), 11 U.S.C. § 778(2). I have no difficulty in concluding that, where the claim does not arise until after the arrangement petition is filed, it is manifestly impossible for a lawsuit on that claim to precede the filing of the petition. Further, I know of no more complete way to 'read the time limitation out of § 63a(7) of the Act' than by treating certain negligence claims as administrative costs as the Court does in this case.
45
I see no basis in equity or in the statutory language or purpose for subjecting every class of creditors except petitioner's to a loss caused by the negligence of a workman. Consequently, I would construe 'actual and necessary costs' as limited to those costs actually and necessarily incurred in preserving the debtor's estate and administering it for the benefit of the creditors. I would not include ordinary negligence claims within this class.
1
Section 302 of the Act, as set forth in 11 U.S.C. § 702, provides in part as follows:
'The provisions of chapters 1—7 of this title shall, insofar as they are not inconsistent with or in conflict with the provisions of this chapter (XI), apply in proceedings under this chapter.' Section 64a(1), a part of Chapter VII and hence applicable to Chapter XI arrangements by virtue of § 302, itself provides that where, as here, ordinary bankruptcy ensues upon a proceeding under another chapter,
'the costs and expenses of administration incurred in the ensuing bankruptcy proceeding shall have priority in advance of payment of the unpaid costs and expenses of administration * * * incurred in the superseded proceeding * * *.'
We deal here, therefore, with a claim that will in any event be subordinate to administration expenses of the bankruptcy proper.
2
Thus the merits of negligence claims have not been adjudicated, and, of course, we intimate no views upon them.
3
See infra, at 480.
4
This is explicitly provided in § 302.
5
Compare 3 Collier, Bankruptcy 62.15:
'Section 2a(5) empowers the court to authorize the business of bankrupts to be conducted for a limited period by a marshal, receiver or trustee. Such continued operation of a business is in substance a means of preservation, namely as a going concern, sometimes with a view to rehabilitation * * *. Expenditure incurred by continued operation of a bankrupt's business will, therefore, on principle, follow the rules * * * as to expenditure in connection with preservation. The difference, if any, lies in the greater variety of types of expenses * * *.' (Footnotes omitted.)
6
The case that petitioner finds most chosely in point is Vass v. Conron Bros., 59 F.2d 969. Vass was the receiver of certain bankrupts who had been dealers in cold meats and had leased space in their cold storage plant to Conron. Vass confirmed the lease, one of whose covenants provided that the lessor would maintain sufficient refrigeration; thereafter, Vass allegedly failed to refrigerate properly, damaging stored property of the lessee. The lessee then attempted to sue Vass in a state court, alleging breach of the covenant and negligence. Vass, however, obtained an injunction from the bankruptcy court against the state action; the Court of Appeals affirmed in an opinion by L. Hand.
The issue in Vass was whether the state action would conflict with the bankruptcy court's jurisdiction over the estate. In ruling that the action could not be maintained, Judge Hand concluded, inter alia, that the action did not fall within the federal statutory permission for actions based on any liability arising out of 'any act or transaction' of the trustee 'in carrying on the business connected with' the property entrusted to him. Judge Hand concluded, on special facts, that the trustee in confirming the lease was merely holding matters in statu quo, not continuing the business. Consequently, he said that 'the liquidation of the lessee's resulting damages was as much a part of the usual administration in bankruptcy, as that of the pay of accountants, custodians or other assistants.' 59 F.2d, at 971. In context, the language just quoted is of little assistance in the present case.
7
28 U.S.C. § 959(b) provides as follows:
'A trustee, receiver or manager appointed in any cause pending in any court of the United States, including a debtor in possession, shall manage and operate the property in his possession as such trustee, receiver or manager according to the requirements of the valid laws of the State in which such property is situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof.'
This provision of course establishes only the principle of liability under state tort and agency law, and does not decide from whom or with what priority tort claims may be collected. In McNulta v. Lochridge, 141 U.S. 327, 332, 12 S.Ct. 11, 13, 35 L.Ed. 796, this Court had occasion to note that
'(a)ctions against the receiver are in law actions against the receivership or the funds in the hands of the receiver, and his contracts, misfeasances, negligences and liabilities are official and not personal, and judgments against him as receiver are payable only from the funds in his hands.'
This statement of course means only that torts of a receiver are in principle compensable out of the assets of the estate in receivership and, again, does not indicate whether such claims shall be paid prior to, equally with, or after other claims against the receivership.
We do not here reach, and do not mean to reaffirm the implication of McNulta that an action against the receiver personally, or against the debtor after termination of the receivership, would never lie under any circumstances. As to such questions, the statement of McNulta is dictum.
8
See n. 7, supra.
9
3 Cir., 370 F.2d 624, 628.
10
E.g., Texas & Pacific R. Co. v. Bloom, 164 U.S. 636, 17 S.Ct. 216, 41 L.Ed. 580; Bereth v. Sparks, 7 Cir., 51 F.2d 441; § 77(n), 11 U.S.C. § 205(n), according particular recognition to the tort claims of railroad employees, does not, as the dissent suggests, mean that other tort claims are not chargeable against a receivership itself. Rather, as the United States concedes, 'tort claims arising during a receivership or reorganization period * * * have generally been given the priority status of general administrative expenses.'
11
E.g., Nicholas v. United States, 384 U.S. 678, 86 S.Ct. 1674, 16 L.Ed.2d 853. At pages 687—688, 86 S.Ct. at page 1682 we stated:
'Taxes incurred in the pre-arrangement period must be content with a fourth priority under § 64a(4) of the Bankruptcy Act. On the other hand, taxes incurred during the arrangement period are expenses of Chapter XI proceedings and are therefore technically a part of the first priority under § 64a(1).'
The Court also ruled that interest accruing on such claims during the arrangement period would also fall within § 64a(1). Ibid. See also Boteler v. Ingels, 308 U.S. 57, 60 S.Ct. 29, 84 L.Ed. 78.
12
Compare 3 Collier, Bankruptcy 62.15:
'Among other expenses incident to conducting a business and therefore allowable as administrative expenditure may be * * * payments on claims for personal injuries inflicted in the operation of a business, rent, insurance, commissions, cost of raw material or merchandise purchased for manufacturing or resale and any other expense ordinarily attendant upon active participation in commercial or industrial life.' (Footnotes omitted.)
1
Certain wage claims and government taxes obtain second and fourth priorities respectively under the second and fourth subdivisions of § 64a, 11 U.S.C. §§ 104(a)(2), 104(a)(4). The government tax claims in this case, nearly all of which will be excluded from sharing in the estate under today's decision, amount to approximately $245,000.
2
Unlike straight bankruptcy, only the debtor himself may file a petition for an arrangement under Chapter XI. Bankruptcy Act §§ 321, 322, 11 U.S.C. §§ 721, 722; 8 Collier, Bankruptcy 4.02(1).
3
In fact, the absence of any other adjudicated case on the question here presented is a strong indication that the receiver's insurance is usually perfectly adequate.
4
11 U.S.C. §§ 501—676.
5
11 U.S.C. § 205.
6
Bankruptcy Act §§ 77b, 115, 11 U.S.C. §§ 205(b), 515; see In re Chicago Express, Inc., 332 F.2d 276, 278 (C.A.2d Cir. 1964). Section 102 of the Act (11 U.S.C. § 502), which is applicable to corporate reorganizations, specifically provides that § 64 'shall not apply in such proceedings unless an order shall be entered directing that bankruptcy be proceeded with * * *.'
7
To take but two examples, government tax claims obtain a higher priority in equity receiverships and under Chapter X than they do under § 64a, see Bankruptcy Act § 199, 11 U.S.C. § 599; 6A Collier, Bankruptcy 9.13(2); and the 'six-months rule' applied to equity receiverships has no analogue under § 64a. See Dudley v. Mealey, 147 F.2d 268 (C.A.2d Cir. 1945).
8
E.g., compare Act of July 1, 1898, c. 541, § 64a, 30 Stat. 563, with Act of May 27, 1926, c. 406, § 15(64a), 44 Stat. 666; compare 80 Stat. 270, 11 U.S.C. §§ 35, 104(a)(4) (1964 ed., Supp. II), with Act of June 22, 1938, c. 575, amending §§ 17a(1), 64a(4), 52 Stat. 851, 874.
| 78
|
391 U.S. 510
88 S.Ct. 1770
20 L.Ed.2d 776
William C. WITHERSPOON, Petitioner,v.STATE OF ILLINOIS et al.
No. 1015.
Argued April 24, 1968.
Decided June 3, 1968.
Rehearing Denied Oct. 14, 1968.
See 89 S.Ct. 67.
[Syllabus from pages 510-511 intentionally omitted]
Albert E. Jenner, Jr., Chicago, Ill., for petitioner.
Donald J. Veverka, Westchester, Ill., for respondent.
James B. Zagel, Chicago, Ill., for respondent, pro hac vice, by special leave of Court.
Robert R. Granucci, San Francisco, Calif., for the State of California, as amicus curiae.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner was brought to trial in 1960 in Cook County, Illinois, upon a charge of murder. The jury found him guilty and fixed his penalty at death. At the time of his trial an Illinois statute provided:
2
'In trials for murder it shall be a cause for challenge of any juror who shall, on being examined, state that he has conscientious scruples against capital punishment, or that he is opposed to the same.'1
3
Through this provision the State of Illinois armed the prosecution with unlimited challenges for cause in order to exclude those jurors who, in the words of the State's highest court, 'might hesitate to return a verdict inflicting (death).'2 At the petitioner's trial, the prosecution eliminated nearly half the venire of prospective jurors by challenging, under the authority of this statute, any venireman who expressed qualms about capital punishment. From those who remained were chosen the jurors who ultimately found the petitioner guilty and sentenced him to death. The Supreme Court of Illinois denied post-conviction relief,3 and we granted certiorari4 to decide whether the Constitution permits a State to execute a man pursuant to the verdict of a jury so composed.
I.
4
The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant's guilt.5 Nor does it involve the State's assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them. For the State of Illinois did not stop there, but authorized the prosecution to exclude as well all who said that they were opposed to capital punishment and all who indicated that they had conscientious scruples against inflicting it.
5
In the present case the tone was set when the trial judge said early in the voir dire, 'Let's get these conscientious objectors out of the way, without wasting any time on them.' In rapid succession, 47 veniremen were successfully challenged for cause on the basis of their attitudes toward the death penalty. Only five of the 47 explicitly stated that under no circumstances would they vote to impose capital punishment.6 Six said that they did not 'believe in the death penalty' and were excused without any attempt to determine whether they could nonetheless return a verdict of death.7 Thirtynine veniremen, including four of the six who indicated that they did not believe in capital punishment, acknowledged having 'conscientious or religious scruples against the infliction of the death penalty' or against its infliction 'in a proper case' and were excluded without any effort to find out whether their scruples would invariably compel them to vote against capital punishment.
6
Only one venireman who admitted to 'a religious or conscientious scruple against the infliction of the death penalty in a proper case' was examined at any length. She was asked: 'You don't believe in the death penalty?' She replied: 'No. It's just I wouldn't want to be responsible.' The judge admonished her not to forget her 'duty as a citizen' and again asked her whether she had 'a religious or conscientious scruple' against capital punishment. This time, she replied in the negative. Moments later, however, she repeated that she would not 'like to be responsible for * * * deciding somebody should be put to death.'8 Evidently satisfied that this elaboration of the prospective juror's views disqualified her under the Illinois statute, the judge told her to 'step aside.'9
II.
7
The petitioner contends that a State cannot confer upon a jury selected in this matter the power to determine guilt. He maintains that such a jury, unlike one chosen at random from a crosssection of the community, must necessarily be biased in favor of conviction, for the kind of juror who would be unperturbed by the prospect of sending a man to his death, he contends, is the kind of juror who would too readily ignore the presumption of the defendant's innocence, accept the prosecution's version of the facts, and return a verdict of guilt. To support this view, the petitioner refers to what he describes as 'competent scientific evidence that death-qualified jurors are partial to the prosecution on the issue of guilt or innocence.'10
8
The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt.11 We simply cannot con clude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.
III.
9
It does not follow, however, that the petitioner is entitled to no relief. For in this case the jury was entrusted with two distinct responsibilities: first, to determine whether the petitioner was innocent or guilty; and second, if guilty, to determine whether his sentence should be imprisonment or death.12 It has not been shown that this jury was biased with respect to the petitioner's guilt. But it is self-evident that, in its role as arbiter of the punishment to be imposed, this jury fell woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments. See Glasser v. United States, 315 U.S. 60, 84—86, 62 S.Ct. 457, 471—472, 86 L.Ed. 680; Irvin v. Dowd, 366 U.S. 717, 722—723, 81 S.Ct. 1639, 1642 1643, 6 L.Ed.2d 751; Turner v. State of Louisiana, 379 U.S. 466, 471—473, 85 S.Ct. 546, 549—550, 13 L.Ed.2d 424.
10
The only justification the State has offered for the jury-selection technique it employed here is that individuals who express serious reservations about capital punishment cannot be relied upon to vote for it even when the laws of the State and the instructions of the trial judge would make death the proper penalty. But in Illinois, as in other States,13 the jury is given broad discretion to decide whether or not death is 'the proper penalty' in a given case, and a juror's general views about capital punishment play an inevitable role in any such decision.
11
A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it. Guided by neither rule nor standard, 'free to select or reject as it (sees) fit,'14 a jury that must choose between life imprisonment and capital punishment can do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life or death.15 Yet, in a nation less than half of whose people believe in the death penalty,16 a jury composed exclusively of such people cannot speak for the community. Culled of all who harbor doubts about the wisdom of capital punishment—of all who would be reluctant to pronounce the extreme penalty—such a jury can speak only for a distinct and dwindling minority.17
12
If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply 'neutral' with respect to penalty.18 But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die.19
13
It is, of course, settled that a State may not entrust the determination of whether a man is innocent or guilty to a tribunal 'organized to convict.' Fay v. People of State of New York, 332 U.S. 261, 294, 67 S.Ct. 1613, 1630, 91 L.Ed. 2043. See Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. It requires but a short step from that principle to hold, as we do today, that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict or death.20 Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.21 No defendant can constitutionally be put to death at the hands of a tribunal so selected.22
14
Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution. The State of Illinois has stacked the deck against the petitioner. To execute this death sentence would deprive him of his life without due process of law.
15
Reversed.
16
Mr. Justice DOUGLAS.
17
My difficulty with the opinion of the Court is a narrow but important one. The Court permits a State to eliminate from juries some of those who have conscientious scruples against the death penalty; but it allows those to serve who have no scruples against it as well as those who, having such scruples, nevertheless are deemed able to determine after a finding of guilt whether the death penalty or a lesser penalty should be imposed. I fail to see or understand the constitutional dimensions of those distinctions.
18
The constitutional question is whether the jury must be 'impartially drawn from a cross-section of the community,' or whether it can be drawn with systematic and intentional exclusion of some qualified groups, to use Mr. Justice Murphy's words in his dissent in Fay v. People of State of New York, 332 U.S. 261, 296, 67 S.Ct. 1613, 1631, 91 L.Ed. 2043.
19
Fay v. New York, which involved a conviction of union leaders for extortion, was the 'blue ribbon' jury case in which the jury was weighted in favor of propertied people more likely to convict for certain kinds of crimes. The decision was 5—4, Mr. Justice Murphy speaking for Mr. Justice Black, Mr. Justice Rutledge, and myself:
20
'There is no constitutional right to a jury drawn from a group of uneducated and unintelligent persons. Nor is there any right to a jury chosen solely from those at the lower end of the economic and social scale. But there is a constitutional right to a jury drawn from a group which represents a cross-section of the community. And a cross-section of the community includes persons with varying degrees of training and intelligence and with varying economic and social positions. Under our Constitution, the jury is not to be made the representative of the most intelligent, the most wealthy or the most successful, nor of the least intelligent, the least wealthy or the least successful. It is a democratic institution, representative of all qualified classes of people.' Id., at 299—300, 67 S.Ct., at 1633.
21
The idea that a jury should be 'impartially drawn from a cross-section of the community'1 certainly should not mean a selection of only those with a predisposition to impose the severest sentence or with a predisposition to impose the least one that is possible.
22
The problem is presented in different postures under several types of state laws. Many States, including Illinois, specifically grant the jury discretion as to penalty;2 in some, this discretion is exercised at a special penalty trial, convened after a verdict of guilt has been returned.3 In other States, death is imposed upon a conviction of first degree murder unless the jury recommends mercy or life imprisonment,4 although in these States the jury is allowed to find a lesser degree of murder (or to find manslaughter, if under state law there are no degrees of murder), if the evidence will permit, without regard to the formal charge.5 In some States, the death penalty is mandatory for certain types of crimes.6 In still others, it has been abolished either in whole or in part.7 And a few States have special rules which do not fit precisely into the above categories.8
23
A fair cross-section of the community may produce a jury almost certain to impose the death penalty if guilt were found; or it may produce a jury almost certain not to impose it. The conscience of the community is subject to many variables, one of which is the attitude toward the death sentence. If a particular community were overwhelmingly opposed to capital punishment, it would not be able to exercise a discretion to impose or not impose the death sentence. A jury representing the conscience of that community would do one of several things depending on the type of state law governing it: it would avoid the death penalty by recommending mercy or it would avoid it by finding guilt of a lesser offense.
24
In such instance, why should not an accused have the benefit of that controlling principle of mercy in the community? Why should his fate be entrusted exclusively to a jury that was either enthusiastic about capital punishment or so undecided that it could exercise a discretion to impose it or not, depending on how it felt about the particular case?
25
I see no constitutional basis for excluding those who are so opposed to capital punishment that they would never inflict it on a defendant. Exclusion of them means the selection of jurors who are either protagonists of the death penalty or neutral concerning it. That results in a systematic exclusion of qualified groups, and the deprivation to the accused of a cross-section of the community for decision on both his guilt and his punishment.
26
The Court in Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 628, 36 L.Ed. 429, held that prospective jurors who had conscientious scruples concerning infliction of the death penalty were rightly challenged by the prosecution for cause, stating that such jurors would be prevented 'from standing indifferent between the government and the accused, and from trying the case according to the law and the evidence * * *.' That was a federal prosecution, the requirement being 'an impartial jury' as provided in the Sixth Amendment, a requirement now applicable to the States by reason of the incorporation of the Jury Clause of the Sixth Amendment into the Due Process Clause of the Fourteenth. Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491.
27
But where a State leaves the fixing of the penalty to the jury, or provides for a lesser penalty on recommendation of mercy by the jury, or gives the jury power to find guilt in a lesser degree, the law leaves the jury great leeway. Those with scruples against capital punishment can try the case 'according to the law and the evidence,' because the law does not contain the inexorable command of 'an eye for an eye.' Rather 'the law' leaves the degree of punishment to the jury. Logan v. United States in the setting of the present case9 does not state what I believe is the proper rule. Whether in other circumstances it states a defensible rule is a question we need not reach. Where the jury has the discretion to impose the death penalty or not to impose it, the Logan rule is, in my opinion, an improper one. For it results in weeding out those members of the community most likely to recommend mercy and to leave in those most likely not to recommend mercy.10
28
Challenges for cause and peremptory challenges do not conflict with the constitutional right of the accused to trial by an 'impartial jury.' No one is guaranteed a partial jury. Such challenges generally are highly individualized not resulting in depriving the trial of an entire class or of various shades of community opinion or of the 'subtle interplay of influence' of one juror on another. Ballard v. United States, 329 U.S. 187, 193, 67 S.Ct. 261, 264, 91 L.Ed. 181. In the present case, however, where the jury is given discretion in fixing punishment,11 the wholesale exclusion of a class that makes up a substantial portion of the population12 produces an unrepresentative jury.13
29
Although the Court reverses as to penalty, it declines to reverse the verdict of guilt rendered by the same jury. It does so on the ground that petitioner has not demonstrated on this record that the jury which convicted him was 'less than neutral with respect to guilt,' ante, at 520, n. 18, because of the exclusion of all those opposed in some degree to capital punishment. The Court fails to find on this record 'an unrepresentative jury on the issue of guilt.' Ante, at 518. But we do not require a showing of specific prejudice when a defendant has been deprived of his right to a jury representing a cross-section of the community. See Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181; Ware v. United States, 123 U.S.App.D.C. 34, 356 F.2d 787 (1965). We can as easily assume that the absence of those opposed to capital punishment would rob the jury of certain peculiar qualities of human nature as would the exclusion of women from juries. Ballard v. United States, 329 U.S., at 193—194, 67 S.Ct., at 264. I would not require a specific showing of a likelihood of prejudice, for I feel that we must proceed on the assumption that in many, if not most, cases of class exclusion on the basic of beliefs or attitudes some prejudice does result and many times will not be subject to precise measurement. Indeed, that prejudice 'is so subtle, so intangible, that it escapes the ordinary methods of proof.' Fay v. New York, 332 U.S., at 300, 67 S.Ct., at 1633 (dissenting opinion). In my view, that is the essence of the requirement that a jury be drawn from a cross-section of the community.
30
Mr. Justice BLACK, with whom Mr. Justice HARLAN and Mr. Justice WHITE join, dissenting.
31
The Court closes its reversal of this murder case with the following graphic paragraph:
32
'Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution. The State of Illinois has stacked the deck against the petitioner. To execute this death sentence would deprive him of his life without due process of law.'
33
I think this charge against the Illinois courts is completely without support in the record. The opinion affirming this conviction for a unanimous Illinois Supreme Court was written by Justice Walter Schaefer, a judge nationally recognized as a protector of the constitutional rights of defendants charged with crime. It seems particularly unfortunate to me that this Court feels called upon to charge that Justice Schaefer and his associates would let a man go to his death after the trial court had contrived a 'hanging jury' and, in this Court's language, 'stacked the deck' to bring about the death sentence for petitioner. With all due deference it seems to me that one might much more appropriately charge that this Court has today written the law in such a way that the States are being forced to try their murder cases with biased juries. If this Court is to hold capital punishment unconstitutional, I think it should do so forthrightly, not by making it impossible for States to get juries that will enforce the death penalty.
34
Now to the case.
35
On April 29, 1959, more than nine years ago, petitioner shot and killed a policeman in order to escape arrest. Petitioner had been struggling on the street with a woman whom he had met in a tavern when a police patrol car assigned to the vicinity stopped at a nearby traffic light. The woman was able to free herself from petitioner's grasp and rushed to the patrol car where she told the two policemen in it that petitioner was carrying a gun. Petitioner overheard this conversation and fled to a nearby parking lot and hid in one of the many parked trailers and tractors. It was while one of the policemen was searching this trailer that petitioner shot him. There is no doubt that petitioner killed the policeman since the dying officer himself identified petitioner at the hospital, and petitioner later lectured the police on using such young and inexperienced officers. And as I read the majority's opinion, even those who agreed to it are unwilling to cast any doubt on petitioner's conviction. See n. 21, majority opinion.
36
At his trial for murder petitioner was represented by three appointed counsel, the chief of whom was the then Chairman of the Chicago Bar Association Committee for the Defense of the Indigent. It is important to note that when those persons who acknowledged having 'conscientious or religious scruples against the infliction of the death penalty' were excluded from the jury, defense counsel made no attempt to show that they were nonetheless competent jurors. In fact, when the jurors finally were accepted by defense counsel, the defense still had three peremptory challenges left to exercise. In the past this has frequently been taken as an indication that the jurors who were impaneled were impartial. See cases collected in United States v. Puff, 211 F.2d 171, 185 (C.A.2d Cir. 1954). And it certainly amounts to a clear showing that in this case petitioner's able and distinguished counsel did not believe petitioner was being tried by a biased, much less a 'hanging,' jury.
37
After petitioner's conviction, another very distinguished attorney was appointed to prosecute his appeal, and an extensive brief alleging some 15 separate trial errors was filed in the Supreme Court of Illinois. Again, however, there was no indication that anyone thought petitioner had been convicted by a biased jury. On March 25, 1963, the Supreme Court of Illinois affirmed petitioner's conviction in a lengthy opinion. People v. Witherspoon, 27 Ill.2d 483, 190 N.E.2d 281. Petitioner attacked his conviction by pursuing both habeas corpus relief and the statutory post-conviction remedy. Again no mention was made of any alleged bias in the jury. When the Supreme Court of Illinois on January 17, 1964, refused the requested relief, petitioner sought federal habeas corpus, and was assisted by a third court-appointed attorney. As in his previous attacks no claim was made that petitioner was denied an impartial jury. Petitioner was unsuccessful in this federal habeas corpus bid, United States ex rel. Witherspoon v. Ogilvie, 337 F.2d 427 (C.A.7th Cir. 1964), and we denied certiorari. Witherspoon v. Ogilvie, 379 U.S. 950, 85 S.Ct. 452, 13 L.Ed.2d 547. Then in February 1965, petitioner filed a petition in the state courts requesting whatever form of remedy is 'provided for by Illinois law.' Among other claims, now appeared the contention that petitioner's constitutional rights were violated when the trial court excused for cause prospective jurors having scruples against capital punishment. The state trial judge dismissed the petition on the ground that it failed to set forth facts sufficient to entitle the petitioner to relief. Petitioner then appealed to the Illinois Supreme Court where he was appearing for the third time in this case and where, more than six years after his trial, he argued that the disqualification for cause of jurors having conscientious or religious scruples against capital punishment was unconstitutional.1 That court disallowed petitioner's claim concluding that 'we adhere to the system in which each side is allowed to examine jurors and eliminate those who can not be impartial.' 36 Ill.2d, at 476, 224 N.E.2d, at 262. This Court subsequently granted certiorari to review the decision of the Illinois Supreme Court.
38
At the time of petitioner's trial, § 743 of Ill.Rev.Stat., c. 38, provided:
39
'In trials for murder it shall be a cause for challenge of any juror who shall, on being examined, state that he has conscientious scruples against capital punishment, or that he is opposed to the same.'
40
The obvious purpose of this section is to insure, as well as laws can insure such a thing, that there be an impartial jury in cases in Illinois where the death sentence may be imposed. And this statute recognizes that the people as a whole, or as they are usually called, 'society' or 'the state,' have as much right to an impartial jury as do criminal defendants. This Court itself has made that quite clear:
41
'It is to be remembered that such impartiality requires not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.' Hayes v. State of Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 30 L.Ed. 578.
42
See also Swain v. State of Alabama, 380 U.S. 202, 219—220, 85 S.Ct. 824, 835, 13 L.Ed.2d 759.
43
As I see the issue in this case, it is a question of plain bias. A person who has conscientious or religious scruples against capital punishment will seldom if ever vote to impose the death penalty. This is just human nature, and no amount of semantic camouflage can cover it up. In the same manner, I would not dream of foisting on a criminal defendant a juror who admitted that he had conscientious or religious scruples against not inflicting the death sentence on any person convicted of murder (a juror who claims, for example, that he adheres literally to the Biblical admonition of 'an eye for an eye'). Yet the logical result of the majority's holding is that such persons must be allowed so that the 'conscience of the community' will be fully represented when it decides 'the ultimate question of life or death.' While I have always advocated that the jury be as fully representative of the community as possible, I would never carry this so far as to require that those biased against one of the critical issues in a trial should be represented on a jury. I still subscribe to the words of this Court written over 75 years ago in Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 628, 36 L.Ed. 429:
44
'As the defendants were indicted and to be tried for a crime punishable with death, those jurors who stated on voir dire that they had 'conscientious scruples in regard to the infliction of the death penalty for crime' were rightly permitted to be challenged by the government for cause. A juror who has conscientious scruples on any subject, which prevent him from standing indifferent between the government and the accused, and from trying the case according to the law and the evidence, is not an impartial juror. This court has accordingly held that a person who has a conscientious belief that polygamy is rightful may be challenged for cause on a trial for polygamy. Reynolds v. United States, 98 U.S. 145, 147, 157, 25 L.Ed. 244; Miles v. United States, 103 U.S. 304, 310, 26 L.Ed. 481. And the principle has been applied to the very question now before us by Mr. Justice Story in United States v. Cornell, 2 Mason, 91, 105, and by Mr. Justice Baldwin in United States v. Wilson, Baldwin, 78, 83, as well as by the courts of every state in which the question has arisen, and by express statute in many states. Whart.Crim.Pl. (9th ed.) § 664.'
45
The majority opinion attempts to equate those who have conscientious or religious scruples against the death penalty with those who do not in such a way as to balance the allegedly conflicting viewpoints in order that a truly representative jury can be established to exercise the community's discretion in deciding on punishment. But for this purpose I do not believe that those who have conscientious or religious scruples against the death penalty and those who have no feelings either way are in any sense comparable. Scruples against the death penalty are commonly the result of a deep religious conviction or a profound philosophical commitment developed after much soul-searching. The holders of such scruples must necessarily recoil from the prospect of making possible what they regard as immoral. On the other hand, I cannot accept the proposition that persons who do not have conscientious scruples against the death penalty are 'prosecution prone.'2 With regard to this group, I would agree with the following statement of the Court of Appeals for the District of Columbia Circuit: posed to capital punishment is not synonymous with favoring it. Individuals may indeed be so prejudiced in respect to serious crimes that they cannot be impartial arbiters, but that extreme is not indicated by mere lack of opposition to capital punishment. The two antipathies can readily coexist; contrariwise either can exist without the other; and, indeed, neither may exist in a person. It seems clear enough to us that a person or a group of persons may not be opposed to capital punishment and at the same time may have no particular bias against any one criminal or, indeed, against criminals as a class; people, it seems to us, may be completely without a controlling conviction one way or the other on either subject. * * *' Turberville v. United States, 112 U.S.App.D.C. 400, 409—410, 303 F.2d 411, 420—421 (1962), cert. denied, 370 U.S. 946, 82 S.Ct. 1596, 8 L.Ed.2d 813.
46
It seems to me that the Court's opinion today must be read as holding just the opposite from what has been stated above. For no matter how the Court might try to hide it, the implication is inevitably in its opinion that people who do not have conscientious scruples against the death penalty are somehow callous to suffering and are, as some of the commentators cited by the Court called them, 'prosecution prone.' This conclusion represents a psychological foray into the human mind that I have considerable doubt about my ability to make, and I must confess that the two or three so-called 'studies' cited by the Court on this subject are not persuasive to me.
47
Finally, I want to point out that the real holding in this case is, at least to me, very ambiguous. If we are to take the opinion literally, then I submit the Court today has decided nothing of substance, but has merely indulged itself in a semantic exercise. For as I read the opinion, the new requirement placed upon the States is that they cease asking prospective jurors whether they have 'conscientious or religious scruples against the infliction of the death penalty,' but instead ask whether 'they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them.' (See majority opinion, n. 21.) I believe that this fine line the Court attempts to draw is based on a semantic illusion and that the practical effect of the Court's new formulation of the question to be asked state juries will not produce a significantly different kind of jury from the one chosen in this case. And I might add that the States will have been put to a great deal of trouble for nothing. Yet, as I stated above, it is not clear that this is all the Court is holding. For the majority opinion goes out of its way to state that in some future case a defendant might well establish that a jury selected in the way the Illinois statute here provides is 'less than neutral with respect to guilt.' (Majority opinion, n. 18.) This seems to me to be but a thinly veiled warning to the States that they had better change their jury selection procedures or face a decision by this Court that their murder convictions have been obtained unconstitutionally.
48
I believe that the Court's decision today goes a long way to destroying the concept of an impartial jury as we have known it. This concept has been described most eloquently by Justice Story:
49
'To insist on a juror's sitting in a cause when he acknowledges himself to be under influences, no matter whether they arise from interest, from prejudices, or from religious opinions, which will prevent him from giving a true verdict according to law and evidence, would be to subvert the objects of a trial by jury, and to bring into disgrace and contempt, the proceedings of courts of justice. We do not sit here to produce the verdicts of partial and prejudiced men; but of men, honest and indifferent in causes. This is the administration of justice (which is required).' United States v. Cornell, 25 Fed.Cas. 650, 655—656, No. 14,868 (1820).
50
It is just as necessary today that juries be impartial as it was in 1820 when Justice Story made this statement. I shall not contribute in any way to the destruction of our ancient judicial and constitutional concept of trial by an impartial jury by forcing the States through 'constitutional doctrine' laid down by this Court to accept jurors who are bound to be biased. For this reason I dissent.
51
Mr. Justice WHITE, dissenting.
52
The Court does not hold that imposition of the death penalty offends the Eighth Amendment. Nor does it hold that a State Legislature may not specify only death as the punishment for certain crimes, so that the penalty is imposed automatically upon a finding of guilt, with no discretion in judge or jury. Either of these holdings might furnish a satisfactory predicate for reversing this judgment. Without them, the analytic basis of the result reached by the Court is infirm; the conclusion is reached because the Court says so, not because of reasons set forth in the opinion.
53
The Court merely asserts that this legislative attempt to impose the death penalty on some persons convicted of murder, but not on everyone so convicted, is constitutionally unsatisfactory:
54
'It is, of course, settled that a State may not entrust the determination of whether a man is innocent or guilty to a tribunal 'organized to convict.' It requires but a short step from that principle to hold, as we do today, that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death.' Ante, at 521. (Citations and footnote omitted.)
55
The sole reason connecting the two sentences is the raw assertion that the situations are closely related. Yet the Constitution, which bars a legislative determination that everyone indicted should be convicted, and so requires the judgment of a guilt-determining body unprejudiced as to the result,1 speaks in entirely different terms to the determination of sentence, even when that sentence is death. The Court does not deny that the legislature can impose a particular penalty, including death, on all persons convicted of certain crimes. Why, then, should it be disabled from delegating the penalty decision to a group who will impose the death penalty more often than would a group differently chosen?
56
All Illinois citizens, including those who oppose the death penalty, are assured by the Constitution a fair opportunity to influence the legislature's determinations about criminal sentences. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and succeeding cases. Those opposing the death penalty have not prevailed in that forum, however. The representatives of the people of Illinois have determined that the death penalty decision should be made in individual cases by a group of those citizens without conscientious scruples about one of the sentencing alternatives provided by the legislature. This method of implementing the majority's will was presumably related to a desire to preserve the traditional policy of requiring that jury verdicts be unanimous. The legislature undoubtedly felt that if all citizens could serve on the jury, and if one citizen with especially pronounced 'scruples' could prevent a decision to impose death, the penalty would almost never be imposed.2 We need not decide today whether any possible delegation of the sentencing decision, for example a delegation to the surviving relatives of the victim, would be constitutionally impermissible because it would offend the conscience of civilized men. Rochin v. People of California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). The delegation by Illinois, which merely excludes those with doubts in policy about one of the punishments among which the legislature sought to have them choose, seems an entirely reasonable and sensible legislative act.
57
The Court may have a strong dislike for this particular sentence and it may desire to meet Mr. Koestler's standards of charity. Those are laudable motives, but hardly a substitute for the usual processes of reasoned analysis. If the Court can offer no better constitutional grounds for today's decision than those provided in the opinion, it should restrain its dislike for the death penalty and leave the decision about appropriate penalties to branches of government whose members, selected by popular vote, have an authority not extended to this Court.
1
Ill.Rev.Stat., c. 38, § 743 (1959). The section was re-enacted in 1961 but was not expressly repeated in the Code of Criminal Procedure of 1963. Ill.Rev.Stat., c. 38, § 115—4(d) (1967) now provides only that '(e)ach party may challenge jurors for cause,' but the Illinois Supreme Court has held that § 115 4(d) incorporates former § 743. People v. Hobbs, 35 Ill.2d 263, 274, 220 N.E.2d 469, 475.
2
'In the trial of the case where capital punishment may be inflicted a juror who has religious or conscientious scruples against capital punishment might hesitate to return a verdict inflicting such punishment, and in the present proceedings (a post-sentence sanity hearing) a juror having such scruples might like-wise hesitate in returning a verdict finding (the defendant) sane, which in effect confirms the death sentence.' People v. Carpenter, 13 Ill.2d 470, 476, 150 N.E.2d 100, 103. (Emphasis added.)
3
36 Ill.2d 471, 224 N.E.2d 259.
4
389 U.S. 1035, 88 S.Ct. 793, 19 L.Ed.2d 822.
5
Unlike the statutory provision in this case, statutes and rules disqualifying jurors with scruples against capital punishment are often couched in terms of reservations against finding a man guilty when the penalty might be death. See, e.g., Cal.Penal Code, § 1074, subd. 8. Yet, despite such language, courts in other States have sometimes permitted the exclusion for cause of jurors opposed to the death penalty even in the absence of a showing that their scruples would have interfered with their ability to determining
guilt in accordance with the evidence and the law. See, e.g., State v. Thomas, 78 Ariz. 52, 58, 275 P.2d 408, 412; People v. Nicolaus, 65 Cal.2d 866, 882, 56 Cal.Rptr. 635, 646, 423 P.2d 787, 798; Piccott v. State, 116 So.2d 626, 628 (Fla); Commonwealth v. Ladetto, 349 Mass. 237, 246, 207 N.E.2d 536, 542; State v. Williams, 50 Nev. 271, 278, 257 P. 619, 621; Smith v. State, 5 Okl.Cr. 282, 284, 114 P. 350, 351; State v. Jensen, 209 Or. 239, 281, 296 P.2d 618, 635; State v. Leuch, 198 Wash. 331, 333—337, 88 P.2d 440, 441—442.
6
The State stresses the fact that the judge who presided during the voir dire implied several times that only those jurors who could never agree to a verdict of death should deem themselves disqualified because of their scruples against capital punishment. The record shows, however, that the remarks relied upon by the State were not made within the hearing of every venireman ultimately excused for cause under the statute. On the contrary, three separate venires were called into the courtroom, and it appears that at least 30 of the 47 veniremen eliminated in this case were not even present when the statements in question were made.
7
It is entirely possible, of course, that even a juror who believes that capital punishment should never be inflicted and who is irrev-
ocably committed to its abolition could nonetheless subordinate his personal views to what he perceived to be his duty to abide by his oath as a juror and to obey the law of the State. See Commonwealth v. Webster, 59 Mass. 295, 298. See also Atkins v. State, 16 Ark. 568, 580; Williams v. State, 32 Miss. 389, 395—396; Rhea v. State, 63 Neb. 461, 472—473, 88 N.W. 789, 792.
8
Compare Smith v. State, 55 Miss. 410, 413—414: 'The declaration of the rejected jurors, in this case, amounted only to a statement that they would not like * * * a man to be hung. Few men would. Every right-thinking man would regard it as a painful duty to pronounce a verdict of death upon his fellow-man. * * * For the error in improperly rejecting (these) two members of the special venire the case must be reversed.'
9
As the voir dire examination of this venireman illustrates, it cannot be assumed that a juror who describes himself as having 'conscientious or religious scruples' against the infliction of the
death penalty or against its infliction 'in a proper case' (see People v. Bandhauer, 66 Cal.2d 524, 531, 58 Cal.Rptr. 332, 337, 426 P.2d 900, 905) thereby affirmed that he could never vote in favor of it or that he would not consider doing so in the case before him. See also the voir dire in Rhea v. State, 63 Neb. 461, 466—468, 88 N.W. 789, 790. Cf. State v. Williams, 50 Nev. 271, 278, 257 P. 619, 621. Obviously many jurors 'could, notwithstanding their conscientious scruples (against capital punishment), return * * * (a) verdict (of death) and * * * make their scruples subservient to their duty as jurors.' Stratton v. People, 5 Colo. 276, 277. Cf. Commonwealth v. Henderson, 242 Pa. 372, 377, 89 A. 567, 569. Yet such jurors have frequently been deemed unfit to serve in a capital case. See, e.g., Rhea v. State, supra, 63 Neb., at 470—471, 88 N.W., at 791—792. See generally Oberer, Does Disqualification of Jurors for Scruples Against Capital Punishment Constitute Denial of Fair Trial on Issue of Guilt?, 39 Tex.L.Rev. 545, 547—548 (1961); Comment, 1968 Duke L.J. 283, 295—299.
The critical question, of course, is not how the phrases employed in this area have been construed by courts and commentators. What matters is how they might be understood—or misunderstood—by prospective jurors. Any 'layman * * * (might) say he has scruples if he is somewhat unhappy about death sentences. * * * (Thus) a general question as to the presence of * * * reservations (or scruples) is far from the inquiry which separates those who would never vote for the ultimate penalty from those who would reserve it for the direct cases.' Id., at 308—309. Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.
10
In his brief, the petitioner cites two surveys, one involving 187 college students, W. C. Wilson, Belief in Capital Punishment and Jury Performance (Unpublished Manuscript, University of Texas, 1964), and the other involving 200 college students, F. J. Goldberg, Attitude Toward Capital Punishment and Behavior as a Juror in Simulated Capital Cases (Unpublished Manuscript, Morehouse College, undated). In his petition for certiorari, he cited a study based upon interviews with 1,248 jurors in New York and Chicago. A preliminary, unpublished summary of the results of that study stated that 'a jury consisting only of jurors who have no scruples against the death penalty is likely to be more prosecution prone than a jury on which objectors to the death penalty sit,' and that 'the defendant's chances of acquittal are somewhat reduced if the objectors are excluded from the jury.' H. Zeisel, Some Insights Into the Operation of Criminal Juries 42 (Confidential First Draft, University of Chicago, November 1957).
11
During the post-conviction proceedings here under review, the petitioner's counsel argued that the prosecution-prone character of 'death-qualified' juries presented 'purely a legal question,' the resolution of which required 'no additional proof' beyond 'the facts * * * disclosed by the transcript of the voir dire examination * * *.' Counsel sought an 'opportunity to submit evidence' in support of several contentions unrelated to the issue involved here. On this issue, however, no similar request was made, and the studies relied upon by the petitioner in this Court were not mentioned. We can only speculate, therefore, as to the precise meaning of the terms used in those studies, the accuracy of the techniques employed, and the validity of the generalization made. Under these circumstances, it is not surprising that the amicus curiae brief filed by the NAACP Legal Defense and Educational Fund finds it necessary to observe that, with respect to bias in favor of the prosecution on the issue of guilt, the record in this case is 'almost totally lacking in the sort of factual information that would assist the Court.'
12
At the time of the petitioner's trial, the jury's penalty determination was binding upon the judge. Ill.Rev.Stat., c. 38, §§ 360, 801 (1959). That is no longer the case in Illinois, for the trial judge is now empowered to reject a jury recommendation of death, Ill.Rev.Stat., c. 38, § 1—7(c)(1) (1967), but nothing in our decision turns upon whether the judge is bound to follow such a recommendation.
13
See generally H. Kalven & H. Zeisel, The American July 435, 444, 448—449 (1966).
14
People v. Bernette, 30 Ill.2d 359, 370, 197 N.E.2d 436, 443.
15
It is suggested in a dissenting opinion today that the State of Oillinois might 'impose a particular penalty, including death, on all persons convicted of certain crimes.' Post, at 541. But Illinois has attempted no such things. Nor has it defined a category of capital cases in which 'death (is) the preferred penalty.' People v. Bernette, supra, at 369, 197 N.E.2d, at 442. (Emphasis added.)
Instead, it has deliberately 'made * * * the death penalty * * * an optional form of punishment which (the jury remains) free to select or reject as it (sees) fit.' 30 Ill.2d, at 370, 197 N.E.2d, at 443. And one of the most important functions any jury can perform in making such a selection is to maintain a link between contemporary community values and the penal system—a link without whith the determination of punishment would hardly reflect 'the evolving standards of decency that mark the progress of a maturing society.' Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (opinion of THE CHIEF JUSTICE, joined by MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE WHITTAKER). Cf. n. 19, infra.
16
It appears that, in 1966, approximately 42% of the American public favored capital punishment for convicted murderers, while 47% opposed it and 11% were undecided. Polls, International Review on Public Opinion, Vol. II, No. 3, at 84 (1967). In 1960, the comparable figures were 51% in favor, 36% opposed, and 13% undecided. Ibid.
17
Compare Arthur Koestler's observation:
'The division is not between rich and poor, highbrow and lowbrow, Christians and atheists: it is between those who have charity and those who have not. * * * The test of one's humanity is whether one is able to accept this fact—not as lip service, but with the shuddering recognition of a kinship: here but for the grace of God, drop I.' Koestler, Reflections on Hanging 166—167 (1956).
18
Even so, a defendant convicted by such a jury in some further case might still attempt to establish that the jury was less than neutral with respect to guilt. If he were to succeed in that effort, the question would then arise whether the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant's interest in a completely fair determination of guilt or innocence—given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment. That problem is not presented here, however, and we intimate no view as to its proper resolution.
19
The amicus curiae brief filed in this case by the American Friends Service Committee et al. notes that the number of persons under sentence of death in this country climbed from 300 at the end of 1963 to 406 at the end of 1966, while the number of persons actually executed fell from 21 in 1963 to 15 in 1964, seven in 1965, and one in 1966. The brief suggests that this phenomenon might be explained in part by society's 'deep reluctance actually to inflict the death sentence' and by a widening 'divergence of belief between the juries we select and society generally.'
20
It should be understood that much more is involved here than a simple determination of sentence. For the State of Illinois empowered the jury in this case to answer 'yes' or 'no' to the question whether this defendant was fit to live. To be sure, such a determination is different in kind from a finding that the defendant committed a specified criminal offense. Insofar as a determination that a man should be put to death might require 'that there be taken into account the circumstances of the offense together with the character and propensities of the offender,' Commonwealth of Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43, for example, it may be appropriate that certain rules of evidence with respect to penalty should differ from the corresponding evidentiary rules with respect to guilt. See, e.g., Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. But this does not mean that basic requirements of procedural fairness can be ignored simply because the determination involved in this case differs in some respects from the traditional assessment of whether the defendant engaged in a proscribed course of conduct. See, e.g., Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326. Cf. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336.
One of those requirements, at least, is that the decision whether a man deserves to live or die must be made on scales that are not deliberately tipped toward death. It was in part upon such a premise that the Fourth Circuit recently invalidated a North Carolina murder conviction, noting that a juror who felt it his 'duty' to sentence every convicted murderer to death was allowed to serve in that case, 'while those who admitted to scruples against capital punishment were dismissed without further interrogation.' This 'double standard,' the court concluded, 'inevitably resulted in (a) denial of due process.' Crawford v. Bounds, 395 F.2d 297, 303—304 (alternative holding). Cf. Stroud v. United States, 251 U.S. 15, 20—21, 40 S.Ct. 50, 52, 64 L.Ed. 103, on petition for rehearing, id., at 380, 381, 40 S.Ct. 176, 177, 64 L.Ed. 317 (dictum).
21
Just as veniremen cannot be excluded for cause on the ground that they hold such views, so too they cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment. And a prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out even if applicable statutory or case law in the relevant jurisdiction would appear to support only a narrower ground of exclusion. See nn. 5 and 9, supra.
We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today's holding render invalid the conviction, as oppose to the sentence, in this or any other case.
22
We have considered the suggestion, advanced in an amicus curiae brief filed by 27 States on behalf of Illinois, that we should 'give prospective application only to any new constitutional ruling in this area,' particularly since a dictum in an 1892 decision of this Court approved the practice of challenging for cause those jurors who expressed 'conscientious scruples in regard to the infliction of the death penalty for crime.' Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 628, 36 L.Ed. 429. But we think it clear, Logan notwithstanding, that the jury-selection standards employed here necessarily undermined 'the very integrity of the * * * process' that decided the petitioner's fate, see Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601, and we have concluded that neither the reliance of law enforcement officials, cf. Tehan v. Shott, 382 U.S. 406, 417, 86 S.Ct. 459, 465, 15 L.Ed.2d 453; Johnson v. United States ex rel. State of New Jersey, 384 U.S. 719, 731, 86 S.Ct. 1772, 1780, 16 L.Ed.2d 882; nor the impact of a retroactive holding on the administration of justice, cf. Stovall v. Denno, 388 U.S. 29o, 300, 87 S.Ct. 1967, 1971, 18 L.Ed.2d 1199, warrants a decision against the fully retroactive application of the holding we announce today.
1
'It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.' Smith v. State of Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84. And see Ballard v. United States, 329 U.S. 187, 191, 67 S.Ct. 261, 263, 91 L.Ed. 181. Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 ('The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community'); Glasser v. United States, 315 U.S. 60, 85—86, 62 S.Ct. 457, 86 L.Ed. 680.
2
Ala.Code, Tit. 14, § 318 (1958); Ariz.Rev.Stat.Ann. § 13 453 (1956); Colo.Rev.Stat.Ann. § 40—2—3 (1963); Haw.Rev.Laws § 291 5 (1955); Idaho Code Ann. § 18—4004 (1948); Ill.Rev.Stat., c. 38, § 1—7(c)(1) (1967); Ind.Ann.Stat. § 9—1819 (1956); Kan.Stat.Ann. § 21—403 (1964); Ky.Rev.Stat. § 435.010 (1962), Ky.Rule Crim.Proc. 9.84 (1965); Mo.Rev.Stat. § 559.030 (1959), V.A.M.S.; Neb.Rev.Stat. § 28—401 (1964); Nev.Rev.Stat. § 200.030 (1963); Okla.Stat.Ann., Tit. 21, § 707 (1958); Tenn.Code Ann. § 39—2406 (1955); Vernon's Ann.Tex.Pen.Code Art. 1257 (1961), Tex.Code Crim.Proc., Art. 37.07 (1967 Supp.); Va.Code Ann. §§ 18.1—22, 19.1 291 (1960). In most of these States, a jury decision of death is binding on the court. In a few States, however, the judge may overrule the jury and impose a life sentence. Ill.Rev.Stat., c. 38, § 1—7(c)(1) (1967); State v. Anderson, 384 S.W.2d 591 (Mo.1964); S.D.Code § 13.2012 (1960 Supp.).
3
Cal.Pen.Code, § 190.1 (1967 Supp.); N.Y. Penal Law, McKinney's Consol.Laws, c. 40, §§ 125.30, 125.35 (1967); Pa.Stat., Tit. 18, § 4701 (1963). And see S.D.Code § 13.2012 (1960 Supp.) (trial court may ask jury to retire to deliberate on penalty after verdict of guilt returned).
4
Ark.Stat.Ann. §§ 41—2227, 43—2153 (1964); Conn.Gen.Stat.Rev. § 53—10 (1965 Supp.); Del.Code Ann., Tit. 11, §§ 571, 3901 (1966 Supp.); Fla.Stat. §§ 782.04, 919.23 (1965), F.S.A.; Ga.Code Ann. § 26—1005 (1953); La.Rev.Stat. § 14:30 (1950); Md.Ann.Code, Art. 27, § 413 (1967); Mass.Gen.Laws Ann., c. 265, § 2 (1959); Miss.Code Ann. § 2217 (1957); Mont.Rev.Codes Ann. § 94—2505 (1949); N.J.Rev.Stat. § 2A:113—4 (1953), N.J.S.A.; N.M.Stat.Ann. § 40A—29—2 (1953); N.C.Gen.Stat. § 14—17 (1953); Ohio Rev.Code Ann. § 2901.01 (1954); S.C.Code Ann. § 16—52 (1962); Utah Code Ann. § 76—30—4 (1953); Wyo.Stat.Ann. § 6—54 (1959). In two of these States, the court possesses discretion to impose a life sentence despite the failure of the jury to recommend mercy. Ga.Code Ann. § 26—1005 (1953) (if conviction based solely on circumstantial evidence); Md.Ann.Code, Art. 27, § 413 (1967). In Delaware and Utah the court may overrule a jury recommendation of life imprisonment and impose the death penalty. Del.Code Ann., Tit. 11, §§ 571, 3901 (1966 Supp.); Utah Code Ann. § 76—30—4 (1953), State v. Romeo, 42 Utah 46, 128 P. 530 (1912).
5
Arkansas: Ark.Stat.Ann. § 43—2152 (1964); Connecticut: Conn.Gen.Stat.Rev. § 53—9 (1965 Supp.); Delaware: State v. Price, 30 Del. 544, 108 A. 385 (1919); Florida; Brown v. State, 124 So.2d 481 (1960); Georgia: (no degrees of murder) Graham v. State, 34 Ga.App. 598, 130 S.E. 354 (1925); Louisiana: (no degrees of murder) State v. Goodwin, 189 La. 443, 179 So. 591 (1938); Maryland: Md.Ann.Code, Art. 27, § 412 (1967), and see Chisley v. State, 202 Md. 87, 95 A.2d 577 (1953), Gunther v. State, 228 Md. 404, 179 A.2d 880 (1962); Massachusetts: Commonwealth v. Kavalauskas, 317 Mass. 453, 58 N.E.2d 819 (1945), Commonwealth v. DiStasio, 298 Mass. 562, 11 N.E.2d 799 (1937); Mississippi: (no degrees of murder) Anderson v. State, 199 Miss. 885, 25 So.2d 474 (1946); Montana: State v. Le Duc, 89 Mont. 545, 300 P. 919 (1931); State v. Miller, 91 Mont. 596, 9 P.2d 474 (1932); New Jersey: State v. Sullivan, 43 N.J. 209, 203 A.2d 177 (1964), State v. Wynn, 21 N.J. 264, 121 A.2d 534 (1956); New Mexico: State v. Smith, 26 N.M. 482, 194 P. 869 (1921); North Carolina: State v. Lucas, 124 N.C. 825, 32 S.E. 962 (1899); Ohio: State v. Muskus, 158 Ohio St. 276, 109 N.E.2d 15 (1952); South Carolina: (no degrees of murder) State v. Byrd, 72 S.C. 104, 51 S.E. 542 (1905); Utah: State v. Mewhinney, 43 Utah 135, 134 P. 632 (1913); Wyoming: Brantley v. State, 9 Wyo. 102, 61 P. 139 (1900).
6
Ala.Code, Tit. 14, § 319 (1958) (person serving life term at time of commission of offense); Ariz.Rev.Stat.Ann. § 13—701 (1956) (treason); Mass.Gen.Laws Ann., c. 265, § 2 (1959) (rape murders); Miss.Code Ann. § 2397 (1957) (treason); Ohio Rev.Code Ann. §§ 2901.09, 2901.10 (1954) (murder of President, Vice-President, Governor, or Lieutenant Governor); R.I.Gen.Laws Ann. § 11—23—2 (1956) (person serving life term at time of commission of offense).
7
Alaska Stat. § 11.15.010 (1962); Iowa Code Ann., § 690.2 (1967 Supp.); Me.Rev.Stat.Ann., Tit. 17, § 2651 (1964); Mich.Stat.Ann. § 28.548, Comp.Laws 1948, § 750.316 (1954); Minn.Stat. § 609.185 (1965); Ore.Rev.Stat. § 163.010 (1967); W.Va.Code Ann. § 61—2—2 (1966); Wis.Stat. § 940.01 (1965). In North Dakota the death penalty has been abolished except in the case of murder committed while under a life sentence for murder in which case the death penalty may be imposed at the jury's discretion. N.D.Cent.Code §§ 12—27—13, 12—27—22 (1960). Vermont has also abolished the death penalty except in the cases of an unrelated second offense of murder or the killing of a peace officer or prison official, in which cases the death penalty may be imposed at the jury's discretion. Vt.Stat.Ann., Tit. 13, § 2303 (1967 Supp.). In Rhode Island the death penalty has been abolished except that it is mandatory in cases of murder committed while under a life sentence for murder. R.I.Gen.Laws Ann. § 11—23—2 (1956). In Georgia the death penalty may not be imposed if the person convicted was under 17 years of age at the time of the offense. Ga.Code Ann. § 26—1005 (1967 Supp.). In California it may not be imposed if the person was under 18 years of age. Cal.Pen.Code § 190.1 (1967 Supp.). In New York capital punishment has been abolished except that it may be imposed at the jury's discretion in cases of the murder of a peace officer while in the course of performing his official duties or of murder committed while under a life sentence for murder. N.Y. Penal Law § 125.30 (1967).
8
New Hampshire and Washington provide for life imprisonment unless the jury recommends death. N.H.Rev.Stat.Ann. § 585:4 (1955); Wash.Rev.Code § 9.48.030 (1956). Maryland permits the trial court alone to decide the penalty in its discretion without submitting the matter to the jury in cases of rape and aggravated kidnaping. Md.Ann.Code, Art. 27, §§ 461, 338 (1967).
9
The ruling on the 'impartial jury' in Logan v. United States, seems erroneous on the facts and the applicable law of that case. The governing statute (a Texas statute), 144 U.S., at 264, n. 1, 12 S.Ct., at 618, left to the jury 'the degree of murder, as well as the punishment.'
10
'(T)he gulf between the community and the death-qualified jury grows as the populace becomes the more infected with modern notions of criminality and the purpose of punishment. Accordingly, the community support for the death verdict becomes progressively narrower, with all that this connotes for the administration of justice. Moreover, as the willingness to impose the death penalty that is, to be sworn as a juror in a capital case—wanes in a particular community, the prejudicial effect of the death-qualified jury upon the issue of guilt or innocence waxes; to man the capital jury, the resort must increasingly be to the extremists of the community—those least in touch with modern ideas of criminal motivation, with the constant refinement of the finest part of our cultural heritage, the dedication to human charity and understanding. The due-process implications of this flex seem obvious. Yesterday's practice becomes less and less relevant to today's problem.'
Oberer, Does Disqualification of Jurors for Scruples Against Capital Punishment Constitute Denial of Fair Trial on Issue of Guilt?, 39 Tex.L.Rev. 545, 556—557 (1961).
11
In the words of the Illinois Supreme Court, the death penalty is 'an optional form of punishment which (the jury is) free to select or reject as it (sees) fit.' People v. Bernette, 30 Ill.2d 359, 370, 197 N.E.2d 436, 443 (1964). See also People v. Dukes, 12 Ill.2d 334, 146 N.E.2d 14 (1957); People v. Weisberg, 396 Ill. 412, 71 N.E.2d 671 (1947); People v. Martellaro, 281 Ill. 300, 117 N.E. 1052 (1917).
12
As the Court points out, a substantial number of the veniremen (47 out of 95), who we may assume represented a fair cross-section of the community, were excluded because of their opposition to the death penalty.
13
In Rudolph v. State of Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119, I joined the opinion of Mr. Justice Goldberg, dissenting from the Court's denial of certiorari, who expressed the view that this Court should consider the question whether the Eighth Amendment prohibits 'the imposition of the death penalty on a convicted rapist who has neither taken nor endangered human life.' Ibid. In contrast, the instant case concerns a convicted murderer who has been sentenced to death for his crime. The requirement imposed by the Sixth and the Fourteenth Amendments that a jury be representative of a cross-section of the community is, of course, separate and distinct from the question whether the death penalty offends the Eighth Amendment.
1
Certainly long delays in raising objections to trial proceedings should not be condoned except to prevent intolerable miscarriages of justice. Cf. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837.
2
See Bumper v. North Carolina, 391 U.S. 543, at 554, 88 S.Ct. 1788, at 1794, 20 L.Ed.2d 797 (dissenting opinion).
'No proof is available, so far as we know, and we can imagine none, to indicate that, generally speaking, persons not opposed to capital punishment are so bent in their hostility to criminals as to be incapable of rendering impartial verdicts on the law and the evidence in a capital case. Being not op-
1
While I agree generally with the opinion of MR. JUSTICE BLACK, and so have joined it, I would not wholly foreclose the possibility of a showing that certain restrictions on jury membership imposed because of jury participation in penalty determination produce a jury which is not constitutionally constituted for the purpose of determining guilt.
2
The States should be aware of the ease with which they can adjust to today's decision. They continue to be permitted to impose the penalty of death on all who commit a particular crime. And replacing the requirement of unanimous jury verdicts with majority decisions about sentence should achieve roughly the same result reached by the Illinois Legislature through the procedure struck down today.
| 01
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392 U.S. 219
88 S.Ct. 2008
20 L.Ed.2d 1047
Eddie M. HARRISON, Petitioner,v.UNITED STATES.
No. 876.
Argued April 4, 1968.
Decided June 10, 1968.
Alfred V. J. Prather, Washington, D.C., for petitioner.
Francis X. Beytagh, Jr., Cleveland, Ohio, for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner was brought to trial before a jury in the District of Columbia upon a charge of felony murder.1 At that trial the prosecution introduced three confessions allegedly made by the petitioner while he was in the custody of the police. After these confessions had been admitted in evidence, the petitioner took the witness stand and testified to his own version of the events leading to the victim's death. The jury found the petitioner guilty, but the Court of Appeals reversed his conviction, holding that the petitioner's confessions had been illegally obtained and were therefore inadmissible in evidence against him. Harrison v. United States, 123 U.S.App.D.C. 230, 238, 359 F.2d 214, 222; on rehearing en banc, 123 U.S.App.D.C. 239, 359 F.2d 223.2
2
The substance of the confessions was that the petitioner and two others, armed with a shotgun, had gone to the victim's house intending to rob him, and that the victim had been killed while resisting their entry into his home. In his testimony at trial the petitioner said that he and his companions had gone to the victim's home hoping to pawn the shotgun, and that the victim was accidently killed while the petitioner was presenting the gun to him for inspection.
3
Upon remand, the case again came to trial before a jury. This time the prosecutor did not, of course, offer the alleged confessions in evidence. But he did read to the jury the petitioner's testimony at the prior trial—testimony which placed the petitioner, shotgun in hand, at the scene of the killing. The testimony was read over the objection of defense counsel, who argued that the petitioner had been induced to testify at the former trial only because of the introduction against him of the inadmissible confessions. The petitioner was again convicted, and the Court of Appeals affirmed.3 We granted certiorari to decide whether the petitioner's trial testimony was the inadmissible fruit of the illegally procured confessions.4
4
In this case we need not and do not question the general evidentiary rule that a defendant's testimony at a former trial is admissible in evidence against him in later proceedings.5 A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.
5
Here, however, the petitioner testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained,6 and the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby—the fruit of the poisonous tree, to invoke a time-worn metaphor. For the 'essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.' Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319.7
6
In concluding that the petitioner's prior testimony could be used against him without regard to the confessions that had been introduced in evidence before he testified, the Court of Appeals relied on the fact that the petitioner had 'made a conscious tactical decision to seek acquittal by taking the stand after (his) in-custody statements had been let in * * *.'8 But that observation is beside the point. The question is not whether the petitioner made a knowing decision to testify, but why. If he did so in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.9 As Justice Tobriner wrote for the Supreme Court of California,
7
'If the improper use of (a) defendant's extrajudicial confession impelled his testimonial admission of guilt, * * * we could not, in order to shield the resulting conviction from reversal, separate what he told the jury on the witness stand from what he confessed to the police during interrogation.'10
8
The remaining question is whether the petitioner's trial testimony was in fact impelled by the prosecution's wrongful use of his illegally obtained confessions. It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. 'The springs of conduct are subtle and varied,' Mr. Justice Cardozo once observed. 'One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others.'11 Having 'released the spring' by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.12
9
No such showing has been made here. In his opening statement to the jury, defense counsel announced that the petitioner would not testify in his own behalf. Only after his confessions had been admitted in evidence did he take the stand. It thus appears that, but for the use of his confessions, the petitioner might not have testified at all.13 But even if the petitioner would have decided to testify whether or not his confessions had been used, it does not follow that he would have admitted being at the scene of the crime and holding the gun when the fatal shot was fired. On the contrary, the more natural inference is that no testimonial admission so damaging would have been made if the prosecutor had not already spread the petitioner's confessions before the jury.14 That is an inference the Government has not dispelled.
10
It has not been demonstrated, therefore, that the petitioner's testimony was obtained 'by means sufficiently distinguishable' from the underlying illegality 'to be purged of the primary taint.' Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441. Accordingly, the judgment must be reversed.
11
Reversed.
12
Mr. Justice BLACK, dissenting.
13
It seems to me that the Court in this case carries the Court-made doctrine of excluding evidence that is 'fruit of the poisonous tree' to a wholly illogical and completely unreasonable extent. For this and many of the reasons suggested by my Brother WHITE'S dissent, I agree that holdings like this make it far more difficult to protect society 'against those who have made it impossible to live today in safety.' I would affirm this conviction.
14
Mr. Justice HARLAN, dissenting.
15
Like my Brother BLACK and my Brother WHITE, I am unable to understand why the Court reverses this petitioner's conviction. There is no suggestion that the testimony in question, given on the stand with the advice of counsel, was somehow unreliable. Nor, as the opinion of Mr. Justice WHITE amply demonstrates, is there any plausible argument that a rule excluding such evidence from use at a later trial adds an ounce of deterrence against police violation of the Mallory rule.
16
I do not doubt that 'voluntariness' is not always a purely subjective question as to the defendant's state of mind; it may involve an objective analysis of the fairness of the situation in which government agents placed him. Nor would I rule out the possibility that a direct product of unlawful official activity might properly be excludable as a fruit of that activity—even where the product is so unforeseeable that a deterrent rationale for exclusion will not suffice—on the ground that the Government should not play an ignoble part.
17
But these concepts do not reach this case. Here, apparently in all good faith, the Government offered at one trial an out-of-court confession by petitioner. It was objected to on the ground that it had been obtained in violation of the Mallory rule. That objection was overruled, and the defense had to decide how to proceed. While defense counsel may have believed he had good grounds for reversal on appeal (as the Court of Appeals later held he did) he also had to present a defense in an effort to persuade the jury to acquit. That defense had of course to be structured to meet the Government's case as it stood—including but not limited to the admitted confession—and counsel decided to put his client on the stand.*
18
The situation was one that criminal and civil defendants face all the time: believing that error has been committed that will result in reversal on appeal, they must nevertheless present a defense, and in doing so may help the other side on retrial. The situation here is no different in principle from the sacrifice of surprise, or the conveyance of important leads to the other side, that may occur because a trial continues even after error has been committed. It is a price that is paid for having a system of justice that insists, generally upon full trials before appellate review of points of law. It is a problem that can be avoided, within our system, only by doing what is done here, namely, reaching the wrong result as between the litigants. For me this is not acceptable doctrine.
19
Mr. Justice WHITE, dissenting.
20
This case and others like it would be more comprehensible if they purported to make procedures for trying criminals more reliable for finding facts and minimizing mistakes. Cases like United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), for example, at least could claim this redeeming virtue. But here, as in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), decision has emanated from the Court's fuzzy ideology about confessions, an ideology which is difficult to relate to any provision of the Constitution and which excludes from the trial evidence of the highest relevance and probity.
21
Three times petitioner has been convicted of murdering his robbery victim with a shotgun. The first trial was in 1960. At the second trial, in 1963, written and oral statements by petitioner and his codefendants were introduced. Petitioner then took the stand and gave his version of the events leading to the killing. He admitted being at the scene of the crime. Conviction followed. The Court of Appeals again reversed, this time on the ground that petitioner's statements were wrongfully admitted, not because they were involuntary or in any way coerced, but because they violated Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), and recent decisions of the Court of Appeals in Killough v. United States, 119 U.S.App.D.C. 10, 336 F.2d 929 (1964), and Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161 (1961). By the time of the third trial, in 1966, prosecution witnesses were dead or unavailable. Considerable reliance was placed on the testimony which had been given at the second trial, including petitioner's admissions when he took the stand in his own defense. Harrison was convicted for a third time. It is this conviction which the Court now reverses, contrary to the judgment of the Court of Appeals. That court found no reason to exclude petitioner's voluntary statements, made under oath in open court and with the advice of counsel.
22
There is no suggestion that petitioner's testimony at his second trial was untruthful or unreliable. Nor does the Court hold that Harrison was compelled to take the stand and incriminate himself contrary to his privilege under the Fifth Amendment. The reason is obvious. If a defendant were held to be illegally 'compelled' when he takes the stand to counter strong evidence offered by the prosecution and admitted into evidence, he would be as much 'compelled' whether it was error to admit the evidence or not. To avoid this absurd construction of the Self-Incrimination Clause, the Court casts about for a different label. Harrison's testimony at the second trial, the Court now says was not 'compelled' but only 'impelled' by the confessions. Alternatively it suggests that except for the confessions Harrison would not have taken the stand and admitted being at the scene of the crime. On either basis, his testimony at the second trial is deemed a fruit of illegally obtained confessions from which the Government should be permitted no benefit whatever. I disagree.
23
The doctrine that the 'fruits' of illegally obtained evidence cannot be used to convict the defendant is complex and elusive. There are many unsettled questions under it. The Court, however, seems to overlook all of these problems in adopting an overly simple and mechanical notion of 'fruits' to which I cannot subscribe. In the view of the Court, if some evidentiary matter is causally linked to some illegal activity of the Government—linked in that broad 'but for' sense of causality which rarely excludes relevant matters which come later in time—it is a 'fruit' and excludable as such. This strictly causal notion of fruits is, of course, consistent with the dictum in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920), that '(i)f knowledge of (the facts) is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it * * *.' In Silverthorne, however, the 'fruits' were copies and photographs of original documents illegally seized; it would be difficult to imagine a case where the fruits hung closer to the trunk of the poison tree. The Court seems to overlook the critical limitation placed upon the fruits doctrine in Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939), where Mr. Justice Frankfurter stated that:
24
'Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.'
25
Cf. Wong Sun v. United States, 371 U.S. 471, 487—488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); United States v. Wade, 388 U.S. 218, 239—242, 87 S.Ct. 1926, 1938—1940, 18 L.Ed.2d 1149 (1967). The concept implicit in the quoted statement, as I understand it, is that mere causal connection is insufficient to make something an inadmissible fruit. Rather it must be shown that suppression of the fruit would serve the same purpose as suppression of the illegal evidence itself. When one deals with the fruits of an illegal search or seizure, as in Silverthorne, or with the fruits of an illegal confession, as the Court decides that we do in this case,1 the reason for suppression of the original illegal evidence itself is prophylactic—to deter the police from engaging in such conduct in the future by denying them its past benefits. See Linkletter v. Walker, 381 U.S. 618, 634 639, 85 S.Ct. 1731, 1740—1743, 14 L.Ed.2d 601 (1965). Since deterrence is the only justification for excluding the original evidence, there is no justification for excluding the fruits of such evidence unless suppression of them will also serve the prophylactic end. I deem this the crucial issue, and proper resolution of it requires a different result from that to which the Court has bulled its way.
26
As the Court makes plain, it is 'difficult to unravel the many considerations that might have led the petitioner to take the witness stand * * *.' Ante, at 224. Given the difficulty of determining after the fact why the petitioner took the stand, it would seem patent that at the confession stage the police would be wholly without a basis for predicting whether the defendant would be more likely to waive his privilege against self-incrimination and take the stand if they were to obtain a confession than if they were not. Accordingly, it cannot realistically be supposed that the police are spurred on to greater illegality by any rational supposition that success in that illicit endeavor will make it more likely that the defendant will make incriminatory admissions on the witness stand. If this is the case, and I see no grounds for doubting that it is, then suppression of the petitioner's testimony, even if it was in fact induced by the wrongful admission into evidence of an illegal confession, does not remove a source of further temptation to the police to violate the Constitution.2
27
Even if it were true that the rule adopted by the Court served some minimal deterrent function, I would not be able to join the Court. Marginal considerations such as these, especially when one is dealing with confessions excludable because of violation of the technical requirements of cases like Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356 (1957); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), are insufficient to override the interest in presenting all evidence which is relevant and probative. When one adds the fact that in this case, as in most others where the issue will now arise, the defendant took the stand only upon advice of counsel, the argument for deterrence seems virtually to vanish altogether. Police now know that interrogation without warnings will void a confession, and the Federal Government at least is apprised that unduly long detention prior to arraignment will invalidate a confession obtained during the detention period. When this knowledge is coupled with their realization that a defendant's subsequent act of taking the stand to diminish the impact of an improperly admitted confession is guided by the advice of counsel, we have a situation in which the inducements to the police to refrain from illegality are already so clear and so strong that excluding testimony as the Court does in this case cannot conceivably be thought to decrease illegal conduct by the police. The police will know that if they fail to give warnings or if they detain the prisoner too long, any confession thus obtained will be unusable and that timely and effective objection to it will be taken as soon as the defendant acquires a lawyer. In such circumstances they could not reasonably believe that the confession will ever actually induce the defendant to take the witness stand. In short, the fact that the defendant has counsel who gives him specific advice deprives the Court's 'fruits' argument of the last vestige of deterrence. Of course, in a situation where the illegality of the methods used to obtain the initial evidence is open to doubt, as was true in this case, the fact that the defendant has counsel has little if any effect on the deterrence value of excluding the fruits. Even in such a case, however, I find the deterrence value of such exclusion too minimal. In any event it is clear that the deterrence value in such cases provides insufficient justification for the general rule which the Court adopts today.
28
I am deeply concerned about the implications of the Court's unexplained and unfounded decision. If Harrison's trial testimony was tainted evidence because induced by an illegal confession, then it follows, as the Court indicates by quoting from People v. Spencer, 66 Cal.2d 158, 164, 57 Cal.Rptr. 163, 168, 424 P.2d 715, 719 (1967), that Harrison's testimony would be automatically excluded even if the confessions had not been admitted. Similarly, an inadmissible confession preceding a plea of guilty would taint the plea. And, as a final consequence, today's decision would seem to bar the use of confessions defective under Miranda or Mallory from being used for impeachment when a defendant takes the stand and deliberately lies. All these results would seem to flow necessarily from the Court's adoption of a test for inadmissible fruits which relies only upon the existence of a causal link between the original evidence seized illegally and any subsequent product of it. Since precluding the prosecution from any of these uses will not serve the prophylactic end which alone justifies the exclusion of the original illegal evidence, and because all of these uses of evidence admittedly of relevance and high probative value are important to the overriding goal of criminal law—the just conviction of the guilty—I must dissent.
29
The Court compounds its substantive error today by the procedural ploy of switching the burden of proof to the prosecution. It rules that once it is shown that the defendant testified after inadmissible confessions were used, 'the Government must show that its illegal action did not induce his testimony.' This despite the fact that the only person with actual knowledge of the subtle and varied 'springs of conduct' which caused the defendant to take the stand is the defendant himself. This despite the fact that only five years ago this Court clearly affirmed the traditional rule that the defendant bears the burden of showing that the evidence complained of was an inadmissible fruit of illegality. Fahy v. State of Connecticut, 375 U.S. 85, 91, 84 S.Ct. 229, 232, 11 L.Ed.2d 171 (1963). See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939). The switch in the burden can be justified only by the Court's misguided desire to exclude important evidence for which it has somehow acquired a constitutional distaste. Because I reject the end which the Court seeks to serve, I cannot endorse this naked manipulation of means to achieve that end.
30
Given the Court's current ideology about confessions, there is perhaps some logic on the side of the Court. But common sense and policy are squarely opposed. The important human values will not be served by the obstacles which the Court now places in the path of policeman, prosecutor, and trial judge alike. Criminal trials will simply become less effective in protecting society against those who have made it impossible to live today in safety.
1
An earlier conviction had been vacated on appeal. See n. 4, infra.
2
Two of the confessions were found to have been obtained in violation of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. The third was found to have been obtained in violation of a prior en banc decision of the Court of Appeals, Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161. See n. 6, infra.
3
128 U.S.App.D.C. 245, 387 F.2d 203.
4
389 U.S. 969, 88 S.Ct. 495, 19 L.Ed.2d 460. The petitioner's further contention that he was denied the right to a speedy trial is wholly without merit and was properly rejected by the Court of Appeals. See 128 U.S.App.D.C., at 248—250, 387 F.2d, at 206—208. The petitioner was indicted more than eight years ago and has been tried and convicted three times for the offense here involved. His first conviction was vacated on appeal when it became clear that the man who had represented him in certain post-verdict proceedings was an ex-convict posing as an attorney, see 123 U.S.App.D.C. 230, 232—233, 359 F.2d 214, 216—217; his second conviction was reversed because the Government employed inadmissible confessions against him on retrial, see 123 U.S.App.D.C. 230, 238, 239, 359 F.2d 214, 222, 223; and his third conviction is presently before us. Virtually all of the delays of which the petitioner complains occurred in the course of appellate proceedings and resulted either from the actions of the petitioner or from the need to assure careful review of an unusually complex case.
5
See, e.g., Edmonds v. United States, 106 U.S.App.D.C. 373, 377—378, 273 F.2d 108, 112—113; Ayres v. United States, 5 Cir., 193 F.2d 739, 740—741. And see generally C. McCormick, Evidence §§ 131, 230—235, 239 (1954).
6
In the present posture of this case, the earlier holding of the Court of Appeals that the petitioner's confessions were illegally obtained, see 123 U.S.App.D.C. 230, 238, 239, 359 F.2d 214, 222, 223, is not in dispute. We therefore proceed upon the assumption that the Court of Appeals was correct in ruling the confessions inadmissible, but we intimate no view upon how we would evaluate that ruling if it were properly before us.
7
See also Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267, 84 L.Ed. 307; Wong Sun v. United States, 371 U.S. 471, 484—488, 83 S.Ct. 407, 415—417, 9 L.Ed.2d 441. Cf. Fahy v. State of Connecticut, 375 U.S. 85, 91, 84 S.Ct. 229, 232, 11 L.Ed.2d 171. See also the opinions of Chief Justice Traynor in People v. Jackson, 67 Cal.2d 96, 97, 60 Cal.Rptr. 248, 251, 429 P.2d 600, 603, and People v. Polk, 63 Cal.2d 443, 449, 47 Cal.Rptr. 1, 4, 406 P.2d 641, 644, and the opinions of Justice Tobriner in People v. Spencer, 66 Cal.2d 158, 164—169, 57 Cal.Rptr. 163, 167—172, 424 P.2d 715, 719—724, and People v. Bilderbach, 62 Cal.2d 757, 763—768, 44 Cal.Rptr. 313, 316—319, 401 P.2d 921, 924—927.
8
128 U.S.App.D.C. 245, 252, 387 F.2d 203, 210.
9
We have no occasion in this case to canvass the complex and varied problems that arise when the trial testimony of a witness other than the accused is challenged as 'the evidentiary product of the poisoned tree.' R. Ruffin, Out on a Limb of the Poisonous Tree: The Tainted Witness, 15 U.C.L.A. Law Rev. 32, 44 (1967). See also Comment, Fruit of the Poisonous Tree—A Plea for Relevant Criteria, 115 U.Pa.L.Rev. 1136, 1143—1153 (1967). Compare United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 272 273, 87 S.Ct. 1951, 1956—1957, 18 L.Ed.2d 1178. And, contrary to the suggestion made in a dissenting opinion today, post, at 234, we decide here only a case in which the prosecution illegally introduced the defendant's confession in evidence against him at trial in its case-in-chief.
10
People v. Spencer, supra, 66 Cal.2d, at 164, 57 Cal.Rptr., at 168, 424 P.2d, at 719—720.
It is argued in dissent that the petitioner's trial testimony should not be suppressed 'even if it was in fact induced by the wrongful admission into evidence of an illegal confession,' post, at 232, since any deterrence such suppression might achieve is insufficient to warrant placing new 'obstacles * * * in the path of policeman, prosecutor, and trial judge alike.' Post, at 235. Of course, no empirical evidence on the deterrence issue is available. And '(s)ince as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled.' Elkins v. United States, 364 U.S. 206, 218, 80 S.Ct. 1437, 4 L.Ed.2d 1669. But it is not deterrence alone that warrants the exclusion of evidence illegally obtained—it is 'the imperative of judicial integrity.' Id., at 222, 80 S.Ct. at 1444. The exclusion of an illegally procured confession and of any testimony obtained in its wake deprives the Government of nothing to which it has any lawful claim and creates no impediment to legitimate methods of investigating and prosecuting crime. On the contrary, the exclusion of evidence causally linked to the Government's illegal activity no more than restores the situation that would have prevailed if the Government had itself obeyed the law.
11
De Cicco v. Schweizer, 221 N.Y. 431, 438, 117 N.E. 807, 810, L.R.A.1918E 1004.
12
See People v. Spencer, supra, 66 Cal.2d, at 168, 424 P.2d, at 722, 57 Cal.Rptr., at 170. As Mr. Justice Harlan recently observed, 'when the prosecution seeks to use a confession uttered after an earlier one not found to be voluntary, it has * * * the burden of proving * * * that the later confession * * * was not directly produced by the existence of the earlier confession.' Darwin v. Connecticut, 391 U.S. 346, 351, 88 S.Ct. 1488, 1490, 20 L.Ed.2d 630 (concurring in part and dissenting in part). The same principle compels the conclusion that, when the prosecution seeks to use testimony given after the introduction in evidence of a confession unlawfully obtained, it has the burden of proving that the defendant's testimony was not produced by the illegal use of his confession at trial. Compare Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705: 'Certainly error * * * in illegally admitting highly prejudicial evidence * * * casts on someone other than the person prejudiced by it a burden to show that it was harmless.'
13
'In evaluating the possibility that the erroneous introduction of (a) defendant's extrajudicial confession might have induced his subsequent testimonial confession, we must assess (the) defendant's reaction to the use of his confession at trial on the basis of the information then available to him * * *.' People v. Spencer, supra, 66 Cal.2d, at 165, 57 Cal.Rptr., at 168, 424 P.2d, at 720.
14
Compare United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654: 'Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first.' Id., at 540, 67 S.Ct. at 1398 (dictum). Compare also Darwin v. Connecticut, supra, 391 U.S. 346, 349, at 351, 88 S.Ct. 1488, 1489, at 1490 (separate opinion of MR. JUSTICE HARLAN); Beecher v. Alabama, 389 U.S. 35, 36, n. 2, 88 S.Ct. 189, 190, 19 L.Ed.2d 35; Clewis v. State of Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 1340, 18 L.Ed.2d 423.
*
This case is altogether different from Darwin v. Connecticut, 391 U.S. 346, 350, 88 S.Ct. 1488, 1490, 20 L.Ed.2d 630, in which I took the position that when a first confession is involuntary a later confession produced by the erroneous impression that the cat was already out of the bag should also be considered involuntary. Here (1) petitioner's out-of-court confession was not involuntary; (2) petitioner's in-court statements were given upon the advice of counsel, and there is no indication whatever that petitioner misunderstood the position he was in; (3) the in-court testimony could not possibly have been thought merely cumulative of the confession, for it (a) was given in order to rebut the confession and (b) damaged petitioner's position in a manner quite independent of the use of the confession.
1
The essential predicate for excluding petitioner's testimony is the illegality of his confessions. That issue, seemingly a condition precedent to reversal, the Court avoids. It simply assumes, without deciding, both that the confessions were properly rejected by the Court of Appeals and that the prior decisions of the Court of Appeals in Killough and Harling were correctly decided. I would not reverse without reaching those questions.
2
'The purpose of depriving the government of any gain is to remove any incentive which exists toward the unlawful practice. The focus is forward—to prevent future violations, not punish for past ones. Consequently, where the chain between the challenged evidence and the primary illegality is long or the linkage can be shown only by 'sophisticated argument,' exclusion would seem inappropriate. In such a case it is highly unlikely that the police officers foresaw the challenged evidence as a probable product of their illegality; thus it could not have been a motivating force behind it. It follows that the threat of exclusion could not possibly operate as a deterrent in that situation. Absent this, exclusion carries with it no benefit to society and should not prejudice society's case against a criminal.' Comment, Fruit of the Poisonous Tree—A Plea for Relevant Criteria, 115 U.Pa.L.Rev. 1136, 1148—1149 (1967). In the past the Court has shown greater appreciation of the significance of the deterrence element as well as of the causal element, for both must be present to present a substantial question for this Court. See Smith v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879 (1963), cert. denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964); Harlow v. United States, 301 F.2d 361 (C.A.5th Cir.), cert. denied, 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56 (1962).
| 01
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392 U.S. 273
88 S.Ct. 1913
20 L.Ed.2d 1082
Robert Vincent GARDNER, Appellant,v.Vincent L. BRODERICK, as Police Commissioner of the City of New York, et al.
No. 635.
Argued April 30, 1968.
Decided June 10, 1968.
Ronald Podolsky, New York City, for appellant.
J. Lee Rankin, New York City, for appellees.
Mr. Justice FORTAS delivered the opinion of the Court.
1
Appellant brought this action in the Supreme Court of the State of New York seeking reinstatement as a New York City patrolman and back pay. He claimed he was unlawfully dismissed because he refused to waive his privilege against self-incrimination. In August 1965, pursuant to subpoena, appellant appeared before a New York County grand jury which was investigating alleged bribery and corruption of police officers in connection with unlawful gambling operations. He was advised that the grand jury proposed to examine him concerning the performance of his official duties. He was advised of his privilege against self-incrimination,1 but he was asked to sign a 'waiver of immunity' after being told that he would be fired if he did not sign.2 Following his refusal, he was given an administrative hearing and was discharged solely for this refusal, pursuant to § 1123 of the New York City Charter.3
2
The New York Supreme Court dismissed his petition for reinstatement, 27 A.D.2d 800, 279 N.Y.S.2d 150 (1967), and the New York Court of Appeals affirmed. 20 N.Y.2d 227, 282 N.Y.S.2d 487, 229 N.E.2d 184 (1967). We noted probable jurisdiction. 390 U.S. 918, 88 S.Ct. 848, 19 L.Ed.2d 978 (1968).
3
Our decisions establish beyond dispute the breadth of the privilege to refuse to respond to questions when the result may be self-incriminatory and the need fully to implement its guaranty. See Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); Counselman v. Hitchcock, 142 U.S. 547, 585—586, 12 S.Ct. 195, 206—207, 35 L.Ed. 1110 (1892); Albertson v. SACB, 382 U.S. 70, 80, 86 S.Ct. 194, 199, 15 L.Ed.2d 165 (1965). The privilege is applicable to state as well as federal proceedings. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). The privilege may be waived in appropriate circumstances if the waiver is knowingly and voluntarily made. Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying. Counselman v. Hitchcock, supra, 142 U.S. at 585—586, 12 S.Ct. at 206—207; Murphy v. Waterfront Commission, supra, 378 U.S. at 79, 84 S.Ct. at 1609.
4
The question presented in the present case is whether a policeman who refuses to waive the protections which the privilege gives him may be dismissed from office because of that refusal.
5
About a year and a half after New York City discharged petitioner for his refusal to waive this immunity, we decided Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). In that case, we held that when a policeman had been compelled to testify by the threat that otherwise he would be removed from office, the testimony that he gave could not be used against him in a subsequent prosecution. Garrity had not signed a waiver of immunity and no immunity statute was applicable in the circumstances. Our holding was summarized in the following statement (at 500, 87 S.Ct. at 620):
6
'We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.'
7
The New York Court of Appeals considered that Garrity did not control the present case. It is true that Garrity related to the attempted use of compelled testimony. It did not involve the precise question which is presented here: namely, whether a State may discharge an officer for refusing to waive a right which the Constitution guarantees to him. The New York Court of Appeals also distinguished our post-Garrity decision in Spevack v. Klein, supra. In Spevack, we ruled that a lawyer could not be disbarred solely because he refused to testify at a disciplinary proceeding on the ground that his testimony would tend to incriminate him. The Court of Appeals concluded that Spevack does not control the present case because different considerations apply in the case of a public official such as a policeman. A lawyer, it stated, although licensed by the state is not an employee. This distinction is now urged upon us. It is argued that although a lawyer could not constitutionally be confronted with Hobson's choice between self-incrimination and forfeiting his means of livelihood, the same principle should not protect a policeman. Unlike the lawyer, he is directly, immediately, and entirely responsible to the city or State which is his employer. He owes his entire loyalty to it. He has no other 'client' or principal. He is a trustee of the public interest, bearing the burden of great and total responsibility to his public employer. Unlike the lawyer who is directly responsible to his client, the policeman is either responsible to the State or to no one.4
8
We agree that these factors differentiate the situations. If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties,5 without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself. Garrity v. State of New Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal.
9
The facts of this case, however, do not present this issue. Here, petitioner was summoned to testify before a grand jury in an investigation of alleged criminal conduct. He was discharged from office, not for failure to answer relevant questions about his official duties, but for refusal to waive a constitutional right. He was dismissed for failure to relinquish the protections of the privilege against self-incrimination. The Constitution of New York State and the City Charter both expressly provided that his failure to do so, as well as his failure to testify, would result in dismissal from his job. He was dismissed solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege. Garrity v. State of New Jersey, supra.
10
We need not speculate whether, if appellant had executed the waiver of immunity in the circumstances, the effect of our subsequent decision in Garrity v. State of New Jersey, supra, would have been to nullify the effect of the waiver. New York City discharged him for refusal to execute a document purporting to waive his constitutional rights and to permit prosecution of himself on the basis of his compelled testimony. Petitioner could not have assumed—and certainly he was not required to assume—that he was being asked to do an idle act of no legal effect. In any event, the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment. It is clear that petitioner's testimony was demanded before the grand jury in part so that it might be used to prosecute him, and not solely for the purpose of securing an accounting of his performance of his public trust. If the latter had been the only purpose, there would have been no reason to seek to compel petitioner to waive his immunity.
11
Proper regard for the history and meaning of the privilege against self-incrimination,6 applicable to the States under our decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), and for the decisions of this Court,7 dictate the conclusion that the provision of the New York City Charter pursuant to which petitioner was dismissed cannot stand. Accordingly, the judgment is reversed.
12
Reversed.
13
Mr. Justice BLACK concurs in the result.
1
The Assistant District Attorney said to appellant:
'You understand * * * that under the Constitution of the United States, as well as the Constitution of New York, no one can be compelled to testify against himself, and that he has a right, the absolute right to refuse to answer any questions that would tend to incriminate him?'
2
Appellant was told:
'You understand * * * that under the Constitution of the United States, as as the Charter of the City of New York, * * * a public officer, which includes a police officer, when called before a Grand Jury to answer questions concerning the conduct of his public office and the performance of his duties is required to sign a waiver of immunity if he wishes to retain that public office?'
The document appellant was asked to sign was phrased as follows:
'I * * * do hereby waive all benefits, privileges, rights and immunity which I would otherwise obtain from indictment, prosecution, and punishment for or on account of, regarding or relating to any matter, transaction or things, concerning the conduct of my office or the performance of my official duties, or the property, government or affairs of the State of New York or of any county included within its territorial limits, or the nomination, election, appointment or official conduct of any officer of the city or of any such county, concerning any of which matters, transactions or things I may testify or produce evidence documentary or otherwise, before the (blank) Grand Jury in the County of New York, in the investigation being conducted by said Grand Jury.'
3
That section provides:
'If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board by body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.'
Section 6 of Article I of the New York Constitution provides:
'No person shall be * * * compelled in any criminal case to be a witness against himself, providing, that any public officer who, upon being called before a grand jury to testify concerning the conduct of his present office * * * or the performance of his official duties * * * refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years * * * and shall be removed from his present office by the appropriate authority or shall forfeit his present office at the suit of the attorney-general.'
4
Cf. Spevack v. Klein, supra, 385 U.S. at 519—520, 87 S.Ct. at 630—631 (concurring in judgment).
5
The statements in my separate opinion in Spevack v. Klein, supra, at 519—520, 87 S.Ct. at 630—631, to which the New York Court of Appeals referred, are expressly limited to situations of this kind.
6
See Miranda v. State of Arizona, 384 U.S. 436, 458—466, 86 S.Ct. 1602, 1619—1624, 16 L.Ed.2d 694 (1966), and authorities cited therein.
7
See, e.g., Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Malloy v. Hogan, supra.
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392 U.S. 286
88 S.Ct. 1978.
20 L.Ed.2d 1094
GEORGE CAMPBELL PAINTING CORP., Appellant,v.William REID et al.
No. 673.
Argued April 30, 1968.
Decided June 10, 1968.
Albert A. Blinder, New York City, for appellant.
Paul W. Hessel and Samuel A. Hirshowitz, New York City, for appellees.
Mr. Justice FORTAS delivered the opinion of the Court.
1
The Public Authorities Law of New York, McKinney's Consol.Laws, c. 43—A, § 2601, provides that a clause must be inserted in all contracts awarded by a public authority of the State for work or services to provide that upon refusal of 'a person' to testify before a grand jury, to answer any relevant question, or to waive immunity against subsequent criminal prosecution, such person and any firm or corporation of which he is a member, officer, or director shall be disqualified for five years from contracting with any public authority, and any existing contracts may be canceled by the public authority without incurring any penalty or damages.1
2
During 1964, appellant, a closely held family corporation, entered into three painting contracts with appellee New York City Housing Authority. Each of these contained the standard disqualification clause. The contracts were executed by appellant's president, George Campbell, Jr., who was also a director and stockholder of the corporation.
3
Early in 1965, appellant became aware that the District Attorney of New York County was conducting an investigation before a grand jury of alleged bid rigging on public contracts, including those of appellant. Thereafter, George Campbell, Jr., resigned as appellant's president and director and divested himself of his stock. He remained in appellant's employ as an 'estimator.'
4
A few weeks thereafter, Campbell was subpoenaed to appear before the grand jury. He refused to sign the waiver of immunity. In due course, the Public Housing Authority notified appellant that, pursuant to the provision in its contracts, the contracts were terminated and Campbell and the corporation were disqualified from doing business with the Authority for five years.
5
After proceedings in the lower courts of New York, the New York Court of Appeals denied relief to appellant. It held that the disqualification was valid and that § 2601 of the Public Authorities Law is constitutional, citing Gardner v. Broderick, 20 N.Y.2d 227, 282 N.Y.S.2d 487, 229 N.E.2d 184 (1967) (reversed this day, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082). The Court of Appeals also rejected appellant's claim that it should not have been disqualified because Campbell resigned as president and director before he was called to testify.2 We noted probable jurisdiction. 390 U.S. 918, 88 S.Ct. 848, 19 L.Ed.2d 978 (1968).
6
We do not consider the constitutionality of § 2601 of New York's Public Authorities Law or the validity or effect of the contract provisions incorporating that section. Appellant's claim is that these provisions operated unconstitutionally to require its president, Mr. Campbell, to waive the benefits of his privilege against self-incrimination. But appellant cannot avail itself of this point, assuming its validity. It has long been settled in federal jurisprudence that the constitutional privilege against self-incrimination is 'essentially a personal one, applying only to natural individuals.' It 'cannot be utilized by or on behalf of any organization, such as a corporation.' United States v. White, 322 U.S. 694, 698, 699, 64 S.Ct. 1248, 1251, 83 L.Ed. 1542 (1944); see also Essgee Co. v. United States, 262 U.S. 151, 43 S.Ct. 514, 67 L.Ed. 917 (1923); Baltimore & Ohio R. Co. v. ICC, 221 U.S. 612, 622, 31 S.Ct. 621, 626, 55 L.Ed. 878 (1911); Wilson v. United States, 221 U.S. 361, 382—385, 31 S.Ct. 538, 945 946, 55 L.Ed. 771 (1911); Hale v. Henkel, 201 U.S. 43, 74—75, 26 S.Ct. 370, 378—379, 50 L.Ed. 652 (1906). If a corporation cannot avail itself of the privilege against self- incrimination, it cannot take advantage of the claimed invalidity of a penalty imposed for refusal of an individual, its president, to waive the privilege. Since the privilege is not available to it, appellant, a corporation, cannot invoke the privilege to challenge the constitutionality of § 2601 of the Public Authorities Law. A fortiori, it cannot assail the validity of the provision in the contracts into which it entered, incorporating the substance of that section.
7
As to appellant's claim that its due process rights were denied by the imposition of the penalty despite Mr. Campbell's purported resignation from managerial positions, we do not reach the abstract legal question that is urged upon us. We see no reason to disturb the finding of the New York Court of Appeals that 'the resignation was tendered and accepted solely for the purpose of avoiding the statutory disqualification,' and the conclusion of that court that the purported resignation should be disregarded for purposes of this case.
8
Affirmed.
9
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
10
Appellant corporation has been disqualified as a contractor with the State of New York because its president, George Campbell, Jr., who was also a director and an owner of 10% of its stock, invoked the protection of the Self-Incrimination Clause of the Fifth Amendment when summond before the grand jury. All other officers, directors, and the controlling stockholders of this closely held corporation appeared and indicated a willingness to sign waivers of immunity and to testify. The president, who invoked the Self-Incrimination Clause, resigned as officer and director and agreed to sell his 10% stock interest, though so far as appears the contract of sale has not been consummated.1
11
In the old days when a culprit, unpopular person, or suspect was punished by a bill of attainder, the penalty imposed often reached not only his own property, but also interests of his family.2 When the present law blacklists this family corporation, it has a like impact.
12
I fail to see how any penalty—direct or collateral—can be imposed on anyone for invoking a constitutional guarantee. A corporation, to be sure, is not a beneficiary of the Self-Incrimination Clause, in the sense that it may invoke it. United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542. Yet placing this family corporation on the blacklist and disqualifying it from doing business with the State of New York is one way of reaching the economic interest of the recalcitrant president.3 If, as I felt in Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574, placing the penalty of disbarment on a lawyer for invoking the Self-Incrimination Clause is unconstitutional, so is placing a monetary penalty on a businessman for doing the same.4 Reducing the value of appellant corporation by putting it on the State's blacklist is a penalty which every stockholder suffers. If New York provided that where a businessman invokes the Self-Incrimination Clause of the Fifth Amendment he shall forfeit, say, $10,000, the law would plainly be unconstitutional as exacting a penalty for asserting a constitutional privilege. What New York could not do directly, it may not do indirectly. Yet penalizing this man's family corporation for his assertion of immunity has precisely that effect.
13
The Supremacy Clause of the Constitution (Art. VI, cl. 2) gives the Fifth Amendment, now applicable to the States by reason of the Fourteenth, controlling authority over New York's law.
1
Section 2602 provides for disqualification on the same basis without reference to any contractual clause.
2
The Court of Appeals noted that § 2603 of the Public Authorities Act vests the State Supreme Court with jurisdiction, for stated reasons, to remove the disqualification.
1
One of the directors of the corporation testified before appellee New York City Housing Authority that no consideration was paid for the stock at the time of transfer, and that there was as yet no formal or informal agreement as to payment for the stock.
Moreover, the pleadings reveal that George Campbell, Jr., was at all times relevant here a 10% residuary legatee under the estate of his late father. That estate contained 50% of the stock of appellant corporation. Thus, George Campbell, Jr., possessed a substantial additional interest in the corporation which would likely be affected by any increase or decrease in the value of the stock.
2
E.g., Delaware Laws 1778, c. 29b; New Jersey, Act of Dec. 11, 1778, N.J.Rev.Laws 40 (Paterson ed. 1800). Compare North Carolina Laws, Session of April 14, 1778, c. 5, calling for confiscation of the estates of certain persons 'inimical to the United States,' but specifically providing that members of their families should be allowed that portion of the estate forfeited which they might have enjoyed had the owner died intestate. See also Bayard v. Singleton, 1 Martin's N.C.Rep. 42 (1878). And see Comment, The Supreme Court's Bill of Attainder Doctrine: A Need for Clarification, 54 Calif.L.Rev. 212, 214, 216 (1966).
3
Damage to shareholders which results indirectly from damage done to the corporation can, of course, be rectified through suit by the corporation itself or by a stockholder's derivative action. E.g., Paulson v. Margolis, 234 App.Div. 496, 255 N.Y.S. 568 (Sup.Ct. 1932). See generally Ballantine, Corporations 333—339 (1946); 13 Flectcher Cyclopedia, Corporations §§ 5908—5911 (1961). There is no indication in the opinion of the New York Court of Appeals that that remedy is inappropriate on the facts of this case.
4
The fact that appellant may petition the New York courts for discretionary relief under § 2603 of the New York Public Authorities Law does not cure the defect. For appellant's claim is that its disqualification was improper, and that it was penalized pursuant to an unconstitutional statute. Its remedy cannot be limited by § 2603, which was construed by the New York Court of Appeals below to grant the state courts discretion to afford relief from a proper disaqualification when the application of the statute would cause an unnecessary hardship. Indeed, § 2603 by its terms does not even involve a review of the basis for the disqualification, but provides that any disqualified corporation may apply to the New York Supreme Court to discontinue the disqualification:
'Such application shall be in the form of a petition setting forth grounds, including that the cooperation by petitioner with the grand jury at the time of the refusal was such, and the amount and degree of control and financial interest, if any, in the petitioning firm, partnership or corporation by the member, partner, officer or director who refused to waive immunity is such that it will not be in the public interest to cancel or terminate petitioner's contracts or to continue the disqualification * * *.'
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392 U.S. 134
88 S.Ct. 1981
20 L.Ed.2d 982
PERMA LIFE MUFFLERS, INC., et al., Petitioners,v.INTERNATIONAL PARTS CORP. et al.
No. 733.
Argued April 22 and 23, 1968.
Decided June 10, 1968.
Robert F. Rolnick, Washington, D.C., for petitioners.
Glenn W. McGee, Chicago, Ill., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
The principal question presented is whether the plaintiffs in this private antitrust action were barred from recovery by a doctrine known by the Latin phrase in pari delicto, which literally means 'of equal fault.' The plaintiffs, petitioners here, were all dealers who had operated 'Midas Muffler Shops' under sales agreements granted by respondent Midas, Inc. Their complaint charged that Midas had entered into a conspiracy with the other named defendants—its parent corporation International Parts Corp., two other subsidiaries, and six individual defendants who were officers or agents of the corporations—to restrain and substantially lessen competition in violation of § 1 of the Sherman Act1 and § 3 of the Clayton Act.2 They also charged that the defendants had violated § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act,3 by granting discriminations in prices and services to some of their customers without offering the same advantages to the plaintiffs. The District Court entered summary judgment for respondents with respect to all of petitioners' claims. On appeal the Court of Appeals reversed the judgment for respondents on the Robinson-Patman claim but, over Judge Cummings' dissent, affirmed the District Court's ruling that the other claims were barred by the doctrine of in pari delicto. The court also held that petitioners' Sherman Act claim was barred because Mides and International, while functioning as separate corporations, had a common ownership and therefore could cooperate without creating an illegal conspiracy.4 376 F.2d 692 (7 Cir. 1967). Because these rulings by the Court of Appeals seemed to threaten the effectiveness of the private action as a vital means for enforcing the antitrust policy of the United States, we granted certiorari. 389 U.S. 1034, 88 S.Ct. 770, 19 L.Ed.2d 821 (1968). For reasons to be stated, we reverse.
2
The economic arrangements that led to this lawsuit have a long history. Respondent International Parts has been in the business of manufacturing automobile mufflers and other exhaust system parts since 1938. In 1955 the owners of International initiated a detailed plan for promoting the sale of mufflers by extensively advertising the 'Midas' trade name and establishing a nationwide chain of dealers who would specialize in selling exhaust system equipment. Each prospective dealer was offered a sales agreement prepared by Midas, Inc., a wholly owned subsidiary of International. The agreement obligated the dealer to purchase all his mufflers from Midas, to honor the Midas guarantee on mufflers sold by any dealer, and to sell the mufflers at resale prices fixed by Midas and at locations specified in the agreement. The dealers were also obligated to purchase all their exhaust system parts from Midas, to carry the complete line of Midas products, and in general to refrain from dealing with any of Midas' competitors. In return Midas promised to underwrite the cost of the muffler guarantee and gave the dealer permissing to use the registered trademark 'Midas' and the service mark 'Midas Muffler Shops.' The dealer was also granted the exclusive right to sell 'Midas' products within his defined territory. He was not required to pay a franchise fee or to purchase or lease substantial capital equipment from Midas, and the agreement was cancelable by either party on 30 days' notice.
3
Petitioners' complaint challenged as illegal restraints of trade numerous provisions of the agreements, such as the terms barring them from purchasing from other sources of supply, preventing them from selling outside the designated territory, tying the sale of mufflers to the sale of other products in the Midas line, and requiring them to sell at fixed retail prices. Petitioners alleged that they had often requested Midas to eliminate these restrictions but that Midas had refused and had threatened to terminate their agreements if they failed to comply. Finally they alleged that one of the plaintiffs had had his agreement canceled by Midas for purchasing exhaust parts from a Midas competitor, and that the other plaintiff dealers had themselves canceled their agreements. All the plaintiffs claimed treble damages for the monetary loss they had suffered from having to abide by the restrictive provisions.
4
The Court of Appeals, agreeing with the District Court, held the suit barred because petitioners were in pari delicto. The court noted that each of the petitioners had enthusiastically sought to acquire a Midas franchise with full knowledge of these provisions and had 'solemnly subscribed' to the agreement containing the restrictive terms. Petitioners had all made enormous profits as Midas dealers, had eagerly sought to acquire additional franchises, and had voluntarily entered into additional franchise agreements, all while fully aware of the restrictions they now challenge. Under these circumstances, the Court of Appeals concluded, '(i)t would be difficult to visualize a case more appropriate for the application of the pari delicto doctrine.' 376 F.2d, at 699.
5
We find ourselves in complete disagreement with the Court of Appeals. There is nothing in the language of the antitrust acts which indicates that Congress wanted to make the common-law in pari delicto doctrine a defense to treble-damage actions, and the facts of this case suggest no basis for applying such a doctrine even if it did exist. Although in pari delicto literally means 'of equal fault,' the doctrine has been applied, correctly or incorrectly, in a wide variety of situations in which a plaintiff seeking damages or equitable relief is himself involved in some of the same sort of wrongdoing. We have often indicated the inappropriateness of invoking broad common-law barriers to relief where a private suit serves important public purposes. It was for this reason that we held in Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951), that a plaintiff in an antitrust suit could not be barred from recovery by proof that he had engaged in an unrelated conspiracy to commit some other antitrust violation. Similarly, in Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964), we held that a dealer whose consignment agreement was canceled for failure to adhere to a fixed resale price could bring suit under the antitrust laws even though by signing the agreement he had to that extent become a participant in the illegal, competition-destroying scheme. Both Simpson and Kiefer-Stewart were premised on a recognition that the purposes of the antitrust laws are best served by insuring that the private action will be an ever-present threat to deter anyone contemplating business behavior in violation of the antitrust laws. The plaintiff who reaps the reward of treble damages may be no less morally reprehensible than the defendant, but the law encourages his suit to further the overriding public policy in favor of competition. A more fastidious regard for the relative moral worth of the parties would only result in seriously undermining the usefulness of the private action as a bulwark of antitrust enforcement. And permitting the plaintiff to recover a windfall gain does not encourage continued violations by those in his position since they remain fully subject to civil and criminal penalties for their own illegal conduct. Kiefer-Stewart, supra.
6
In light of these considerations, we cannot accept the Court of Appeals' idea that courts have power to undermine the antitrust acts by denying recovery to injured parties merely because they have participated to the extent of utilizing illegal arranements formulated and carried out by others. Although petitioners may be subject to some criticism for having taken any part in respondents' allegedly illegal scheme and for eagerly seeking more franchises and more profits, their participation was not voluntary in any meaningful sense. They sought the franchises enthusiastically but they did not actively seek each and every clause of the agreement. Rather, many of the clauses were quite clearly detrimental to their interests, and they alleged that they had continually objected to them. Petitioners apparently accepted many of these restraints solely because their acquiescence was necessary to obtain an otherwise attractive business opportunity. The argument that such conduct by petitioners defeats their right to sue is completely refuted by the following statement from Simpson: 'The fact that a retailer can refuse to deal does not give the supplier immunity if the arrangement is one of those schemes condemned by the antitrust laws.' 377 U.S., at 16, 84 S.Ct., at 1054. Moreover, even if petitioners actually favored and supported some of the other restrictions, they cannot be blamed for seeking to minimize the disadvantages of the agreement once they had been forced to accept its more onerous terms as a condition of doing business. The possible beneficial byproducts of a restriction from a plaintiff's point of view can of course be taken into consideration in computing damages, but once it is shown that the plaintiff did not aggressively support and further the monopolistic scheme as a necessary part and parcel of it, his understandable attempts to make the best of a bad situation should not be a ground for completely denying him the right to recover which the antitrust acts give him. We therefore hold that the doctrine of in pari delicto, with its complex scope, contents, and effects, is not to be recognized as a defense to an antitrust action.
7
Respondents, however, seek to support the judgment below on a considerably narrower ground. They picture petitioners as actively supporting the entire restrictive program as such, participating in its formulation and encouraging its continuation. We need not decide, however, whether such truly complete involvement and participation in a monopolistic scheme could ever be a basis, wholly apart from the idea of in pari delicto, for barring a plaintiff's cause of action, for in the present case the factual picture respondents attempt to paint is utterly refuted by the record. One of the restrictions which petitioners most strenuously challenge is the requirement that dealers purchase their supplies exclusively from Midas. Another is the requirement that dealers carry Midas' full line of parts. Neither of these provisions could be in a dealer's self-interest since they obligate him to buy from Midas regardless of whether more favorable prices can be obtained from other sources of supply and regardless of whether he needs certain parts at all.5 In addition, the depositions refer to numerous instances in which petitioners asked Midas for permission to purchase from some other source of supply. The record shows that these requests were repeatedly refused by Midas representatives, who underscored the refusals by describing the very requests as 'heresy' and by commenting that dealers who bought from outside sources of supply were 'asking for trouble' or 'were going to be punished.' A Midas official warned petitioner Pierce, who had been buying some exhaust parts from other manufacturers, 'Joe, this is just like cheating on your wife; it is grounds for divorce.'
8
These statements completely refute respondents' argument that petitioners were active participants and show, to the contrary, that the illegal scheme was thrust upon them by Midas.
9
There remains for consideration only the Court of Appeals' alternative holding that the Sherman Act claim should be dismissed because respondents were all part of a single business entity and were therefore entitled to cooperate without creating an illegal conspiracy. But since respondents Midas and International availed themselves of the privilege of doing business through separate corporations, the fact of common ownership could not save them from any of the obligations that the law imposes on separate entities. See Timken Roller Bearing Co. v. United States, 341 U.S. 593, 598, 71 S.Ct. 971, 974, 95 L.Ed. 1199 (1951); United states v. Yellow Cab Co., 332 U.S. 218, 227, 67 S.Ct. 1560, 1565, 91 L.Ed. 2010 (1947). In any event each petitioner can clearly charge a combination between Midas and himself, as of the day he unwillingly complied with the restrictive franchise agreements, Albrecht v. Herald Co., 390 U.S. 145, 150, n. 6, 88 S.Ct. 869, 872, 19 L.Ed.2d 998 (1968); Simpson v. Union Oil Co., supra, or between Midas and other franchise dealers, whose acquiescence in Midas' firmly enforced restraints was induced by 'the communicated danger of termination,' United States v. Arnold, Schwinn & Co., 388 U.S. 365, 372, 87 S.Ct. 1856, 1862, 18 L.Ed.2d 1249 (1967); United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960). Although respondents object that these particular theories of conspiracy now pressed by petitioners were not alleged with sufficient specificity in their complaint, this suggestion is completely without merit. Our modern rules provide for trying cases to serve the ends of justice and require that pleadings 'be so construed as to do substantial justice.' Rule 8(f), Fed.Rules Civ.Proc. The gist of petitioners' cause of action has been clear from the outset, and respondents will in no way be prejudiced if petitioners are permitted to rely on these alternative theories of conspiracy.
10
It follows that the judgment of the Court of Appeals must be reversed. The case is remanded to that court with directions to reverse in full the judgment of the District Court and to remand the case for trial.
11
It is so ordered.
12
Judgment of Court of Appeals reversed and case remanded with directions.
13
Mr. Justice WHITE, concurring.
14
I join the opinion and judgment of the Court with the following observations.
15
As long ago as 1927, in Eastman Kodak Co. of N.Y. v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684, the Court recognized that participation in an unlawful course of conduct would not bar recovery where the defendant' superior bargaining power led to plaintiff's participation in the unlawful arrangement. In Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951), where plaintiff was said to have participated in an illegal scheme other than the one charged in his complaint, the Court made it clear that a plaintiff' own delinquency under the antitrust laws would not always bar his treble-damage suit. See also Bales v. Kansas City Star Co., 336 F.2d 439, 444 (C.A.8th Cir. 1964); Jewel Tea Co. v. Local Unions, 274 F.2d 217, 223 (C.A.7th Cir.), cert. denied, 362 U.S. 936, 80 S.Ct. 757, 4 L.Ed.2d 747 (1960). These cases are enough to warrant reversal in this case, once it is concluded that the illegal arrangement in which petitioners participated was thrust on them by respondents. This is the conclusion reached by the Court and I agree with it.
16
I also agree that the in pari delicto defense in its historic formulation is not a useful concept for sorting out those situations in which the plaintiff might be barred because of his own conduct from those in which he may have been a party to an illegal venture but is still entitled to damages from other participants. Judgments like these would be better made by hewing closer to the aims and purposes of § 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, which gives treble-damage recovery to the private plaintiff injured by conduct which violates the antitrust laws.
17
Under § 4, plaintiff must show not only that the defendant violated the antitrust laws but that his conduct caused the damages alleged in the complaint. Normally, it would be enough with respect to causation if the defendant 'materially contributed' to plaintiff's injury, Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 702, 82 S.Ct. 1404, 1412, 8 L.Ed.2d 777 (1962); or 'substantially contributed, notwithstanding other factors contributed also,' Momand v. Universal Film Exchanges, Inc., 172 F.2d 37, 43 (C.A.1st Cir. 1948), cert. denied, 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118 (1949). The plaintiff need not show that the illegality was a more substantial cause than any other. Haverhill Gazette Co. v. Union Leader Corp., 333 F.2d 798, 805—806 (C.A.1st Cir.), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964).
18
Under this rule, a third party proving an illegal undertaking between two defendants may recover for all damages caused by the combination. Those damages normally may be had from either or both defendants without regard to their relative responsibility for originating the combination or their different roles in effectuating its ends. This is because neithr defendant, if he acted alone, could be charged with the violation; some degree of participation by both is essential to create a combination within the reach of § 1 of the Sherman Act. Either defendant is therefore deemed to have been a material cause of the damages, sufficient to permit a third party to recover.
19
This may be the result required under § 4 when conspirators are sued by an injured outsider. But what is the situation when one party to the combination sues the other' Assume three situations: first, A, a manufacturer, sells to B, a retailer. A, over B's objection, insists on B's adhering to specified resale prices. B agrees since A's product is an important part of his business and he can get it nowhere else. B suffers a decline in business because of an inability to match or better the price for competing products. B sues A. He is obviously in a position to prove that A was a substantial cause of his injury.
20
Second, suppose that when B maintains the suggested price on A's product, he simply sells more of C's competing product, which he also handles. B is not hurt, but A is. A sues B.
21
Third, suppose that D and E, competitors, combine to fix higher prices. D's best customer sets up his own source of supply to D's great damage. D sues E, claiming that E was a substantial cause of his injury.
22
It is arguable that in each supposed situation recovery should be denied because the plaintiff was a party to the illegality and wrongdoers should be left where they are found. In terms of the deterrent aims of the statute permitting injured plaintiffs to recover treble damages, however, this undiscriminating approach makes little sense. When those with market power and leverage persuade, coerce, or influence others to cooperate in an illegal combination to their damage, allowing recovery to the latter is wholly consistent with the purpose of § 4, since it will deter those most likely to be responsible for organizing forbidden schemes. The principles of Eastman Kodak Co. of N.Y. v. Southern Photo Materials Co., supra, clearly permit recovery by the less responsible, but injured, party. In the first hypothetical case, therefore, B should recover from A in order to deter A and others like him from imposing resale price maintenance schemes on their customers.
23
In the second case, where manufacturer A, contrary to his expectations, was injured and retailer B was not, there is no reason, based on the deterrent purposes of § 4, to permit recovery from B, even though his cooperation was essential to the combination and even though had a third party been injured he could have recovered from either A or B, or from both. A, the moving force, should not be rewarded for his efforts to further an unlawful price arrangement and in effect to take from B the profits, trebled, that B made by selling the products of A's competitor. B was unwilling to enter the illegal scheme, was motivated principally by what he thought was economic necessity the need to avoid losing business by being unable to offer a major product line—and would have been only marginally deterred by the prospect of antitrust liability.
24
In the third case, where D and E are competitors, if D simply proves the agreement and the resulting loss, should he recover from E, absent some believable showing that E was the more responsible for the illegal scheme' No doubt E was a substantial factor in the combination and hence in the injury; a judgment for damages might deter him and others from violating the law. But D is equally responsible for his own damages. To permit him a recovery may be a counterdeterrent. By bassuring him illegal profits if the agreement in restraint of trade succeeds, and treble damages if it fails, it may encourage what the Act was designed to prevent. In this situation, it is doubtful that the ends of § 4 would be measurably served by permitting D's recovery. If judge or jury finds the parties equally responsible for the conduct which caused injury, D's recovery under § 4 should be denied for failure of proof that E was the more substantial cause of the injury.
25
No simple formula can encompass the infinite variety of possible situations. Generally speaking, however, I would deny recovery where plaintiff and defendant bear substantially equal responsibility for injury resulting to one of them but permit recovery in favor of the one less responsible where one is more responsible than the other. This rule would simply pose the issue of causation in particularized form. There will be little mystery as to what evidence would be relevant proof: facts as to the relative responsibility for originating, negotiating, and implementing the scheme; evidence as to who might reasonably have been expected to benefit from the provision or conduct making the scheme illegal under § 1; proof of whether one party attempted to terminate the arrangement and encountered resistance or counter-measures from the other; facts showing who ultimately profite dor suffered from the arrangement.
26
As I view the record in the case before us, the evidence is insufficient to show that petitioners were as responsible as repondents, or more so, for the admittedly illegal scheme. The evidence before us does not suggest that petitioners were equal partners with respondents with respect to the origin and implementation of this scheme for distributing respondents' mufflers, or in terms of benefits from the scheme. In such circumstances summary judgment for respondents was improper.
27
Mr. Justice FORTAS, concurring in the result.
28
I agree with the result in this case. Petitioners' right to recover in their own interest and as 'private attorneys general' to enforce the antitrust laws cannot be denied on the basis of the doctrine of in pari delicto. Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964).
29
The doctrine has, however, a significant if limited role in private antitrust law. If the fault of the parties is reasonably within the same scale—if the 'delictum' is approximately 'par' then the doctrine should bar recovery. This might be the case, for example, if a manufacturer of mufflers and a manufacturer of other parts had combined to formulate and operate a collusive scheme. One co-adventurer could not sue the other for discriminatory or restrictive practices which allegedly diminished its take from the enterprise.
30
But equality of position of this general nature is necessary before in pari delicto may apply to bar an antitrust remedy. Unless the doctrine is so limited, the private remedy provided by the antitrust laws is nullified to a significant extent. The owner of a gas station may enter into an arrangement with the distributor and may benefit from its restrictive provisions. But this less-thanequal participation in the crime must not bar him from recovering in his own and the public interest if he can show that he has suffered compensable harm. Our decision in Simpson indicates this quite clearly. The antitrust laws are intended to protect individuals 'from combinations fashioned by others and offered to (them) * * * as the only feasible method by which (they) may do business.' Ring v. Spina, 148 F.2d 647, 653, 160 A.L.R. 371 (2 Cir. 1945).
31
As the Court points out, it is possible that the franchisee may be proved to be a collaborator, or co-adventurer, or a true particeps criminis with respect to a particular aspect of the plan for example, if he originated and insisted upon the inclusion of a territorial exclusivity clause which was not in the franchise as drafted by the franchisor. He could not recover damages based upon this, if, essentially, it is his own act.
32
Clearly, petitioners here are not coadventurers or partners in the franchise arrangement as a whole, and they are not barred by in pari delicto. On remand, as the Court orders, if petitioners are chargeable with responsibility for a particular clause of the agreement or restrictive covenant because it is, in substance, their own act, they should not be allowed to recover for injury they may have suffered because of it.
33
Mr. Justice MARSHALL, concurring in the result.
34
While I agree with the result and much of the reasoning in the opinion of the Court in this case, I find myself unable to accept what I take to be the holding that the doctrine of in pari delicto has no place in a treble-damage antitrust action. Not only is it unnecessary to pass on such a broad proposition on the facts of this case, as the Court's opinion reveals, but the holding itself is, in my opinion, incorrect.
35
I agree that the 'complex scope, contents, and effects' of the doctrine as it has grown up in the common law should not be applied mechanically to private antitrust actions under the relevant federal statute. On the other hand, I believe that a limited application of the basic principle behind the doctrine of in pari delicto is both proper and desirable in he antitrust filed. As the Court notes, ante, at 138, the literal meaning of in pari delicto is of equal fault. I would hold that where a defendant in a private antitrust suit can show that the plaintiff actively participated in the formation and implementaion of an illegal scheme, and is substantially equally at fault, the plaintiff should be barred from imposing liability on the defendant.
36
Such an approach would still require reversal of the decision of the Court of Appeals in this case. As this Court's opinion makes perfectly clear, the mere fact that a party enters into an agreement containing provisions that are violative of the antitrust laws with the intent to make money by operating under the agreement is not in itself sufficient to show that he is equally responsible for the existence of the illegal provisions. Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964). Furthermore, the Court is certainly correct in concluding that the record is replete with evidence, relating to the tying and exclusive-dealing provisions of the franchise agreement, which indicates, with sufficient probative force to withstand respondents' motion for summary judgment, that the petitioners did not actively seek out or support all the anticompetitive restraints embodied in the franchise.
37
However, the inquiry should not stop here. The franchise agreement also contains provisions requiring both resale price maintenance and the observance of territorial restrictions on sales by franchises. Both of these sets of restrictions are ones which, at least on their face, would ordinarily be expected to benefit the franchisees more than Midas. Both restrict competition between franchisees, not between Midas and other suppliers competing to sell parts to Midas franchisees. If Midas can make an adequate showing that those provisions were inserted into the franchise agreement at the behest and for the benefit of petitioners and their fellow franchisees, petitioners should, in my opinion, be barred from contending that they were damaged by the existence and enforcement of the provisions.
38
I agree with the Court that petitioners should not be barred from recovering damages attributable to the enforcement of the tying and exclusive dealing provisions against them on the sole ground that they participated in the formulation of other anticompetitive provisions in the agreement. Cf. Moore v. Mead Service Co., 340 U.S. 944, 71 S.Ct. 528, 95 L.Ed. 681 (1951), vacating 184 F.2d 338 (C.A.10th Cir. 1950). However, if Midas could show, which it has quite clearly not done at this stage of the litigation, that petitioners actually participated in the formulation of the entire agreement, trading off anticompetitive restraints on their own freedom of action (such as the tying and exclusive dealing provisions) for anticompetitive restraints intended for their benefit (such as resale price maintenance or exclusive territories), petitioners should be barred from seeking damages as to the agreement as a whole.
39
It may be argued that the course I propose unduly complicates private antitrust litigation. A holding that a party who voluntarily enters into an agreement containing provisions that violate the antitrust laws is barred from any recovery on that agreement altogether (as the Court of Appeals has held here) or, at the other extreme, is absolutely free to recover any damages that he can show to stem from his operations under the agreement (as this Court's opinion seems to hold) would presumably be considerably easier to apply in most cases. It seems to me, however, that neither holding would represent a satisfactory resolution of the difficult problems concerning the administration of the antitrust laws raised by agreements such as the one involved in the present case.
40
The reasons for rejecting the approach taken by the Court of Appeals are, as I have said, persuasively set forth in the opinion of the Court. The reasons I see for rejecting the approach taken by this Court are, perhaps, less related to the public interest in eliminating all forms of anticompetitive business conduct and more related to the equities as between the parties. The principle that a wrongdoer shall not be permitted to profit through his own wrongdoing is fundamental in our jurisprudence. The traditional doctrine of in pari delicto is itself firmly based on this principle. I nevertheless agree, because of the strong public interest in eliminating restraints on competition, that many of he refinements of moral worth demanded of plaintiffs by such traditional legal and equitable doctrines as volenti non fit injuria, unclean hands, and many of the variation of in pari delicto should not be applicalble in the antitrust field. However, I cannot agree that the public interest requires that a plaintiff who has actively sought to bring about illegal restraints on competition for his own benefit be permitted to demand redress—in the form of treble damages—from a partner who is no more responsible for the existence of the illegality than the plaintiff.
41
The possible added deterrence to violations of the antitrust laws that would be produced by the Court's holding may well be equaled, if not surpassed, by the new incentive it will create to commit such violations, for a potential violator will have less to lose if he can attempt to recover his losses from his partner should the scheme not work out to his benefit.
42
The Court's opinion appears to seek to minimize the consequences of doing away with the in pari delicto defense by suggesting that a defendant will be able to have the 'beneficial byproducts of a restriction' (ante, at 140) to the plaintiff taken into account in the computation of damages. This, of course, is to some extent already true in any antitrust case. Illegal conduct does not per se result in a money judgment for a plaintiff; injury must always be shown. However, a defendant might also be permitted to show that the plaintiff's financial rewards from some of the illegal provisions of an agreement outweighed the harm suffered from other illegal provisions, and accordingly on some sort of offset theory the plaintiff would recover nothing.
43
If such an offset approach on the issue of damages is envisioned by the Court, it hardly seems an adequate means of preventing unjust enrichment. First, that approach clearly permits damages to be awarded when injury is shown to outweigh benefit regardless of the nature of the plaintiff's participation in the scheme. Second, it adds an unnecessarily speculative element to the factual inquiry required in an antitrust case. While a trier of fact may have some difficulty in allocating responsibility between the parties to an agreement, the allocation can be made for the most part on the basis of hard evidence as to the facts surrounding the making of the agreement. The determination of damages in an antitrust suit, however, almost invariably requires a certain amount of speculation, no matter how informed. Cf. Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264—266, 66 S.Ct. 574, 579-581, 90 L.Ed. 652 (1946). Such speculation is ordinarily unavoidable if damages are to be provable. Here there is no necessity for permitting additional speculation as to offsetting benefits in order to prevent unjust enrichment because the same goal can be achieved by a factual evaluation of the parties' respective fault.
44
For example, it is obviously much easier to determine in this case whether petitioners actively participated in the formulation and implementation of the various illegal provisions of the franchise agreement than it is to decide whether the monetary benefits that petitioners obtained through the resale price maintenance and exclusive territorial provisions surpassed the losses they suffered from the exclusive dealing and tying arrangements. Since I regard a respectivefault approach as superior to a damage-offset approach on principle, the compliations inherent in the latter inquiry merely reinforce my conviction that the Court is being unwise in broadly rejecting the doctrine of in pari delicto.
45
Mr. Justice HARLAN, with whom Mr. Justice STEWART joins, concurring in part and dissenting in part.
46
The variety of views this case has engendered seems to me to stem from lack of agreement on a definition of the term 'in pari delicto,' as well as a disagreement, perhaps, on the standards that should govern the use of the defense to which that term is properly applied. I believe that the courts below misused the term, but that properly used it refers to a defense that should be permitted in antitrust cases. Consequently, I would remand this case not for immediate trial but for fresh consideration of the motion for summary judgment upon proper standards.
47
Plaintiffs who are truly in pari delicto are those who have themselves violated the law in cooperation with the defendant.1 If the law is the Sherman Act, both are, in principle, liable equally to criminal prosecution. For example, two manufacturers who agree on a price at which they will sell are 'of equal fault,' as are a manufacturer and a dealer who strike a bargain whereby each accepts an illegal restriction that benefits the other.
48
When a peron suffers losses as a result of activities the law forbade him to engage in, I see no reason why the law should award him treble damages from his fellow offenders. It seems to me a bizarre way to 'further the overriding public policy in favor of competition,' ante, at 139, to pay violators three times their losses in doing what public policy seeks to deter them from doing. Even if the threat of intra-conspiracy treble damages had some deterrent effect, however, I should not think it a too 'fastidious regard for the relative moral worth of the parties,' ibid., to decline to sanction a kind of antitrust enforcement that rests upon a principle of well-compensated dishonor among thieves.
49
There are, however, three situations quite disinct from that to which I think the term in pari delicto is properly applied. The first is the 'consent' situation in which the Latin maxim 'volenti non fit injuria' is sometimes invoked. Where X and Y conspire to fix prices at which they will sell, they are in pari delicto. If Z, knowing of the conspiracy, nevertheless purchases from X, he is not in pari delicto. He has committed no offense: the most that can be said is that he knowingly allowed an offense to be committed against him. I would agree, for many of the reasons stated in the opinions of Mr. Justice BLACK, Mr. Justice FORTAS, and Mr. Justice MARSHALL, that there should be no defense in such a situation, where the plaintiff has done nothing the law told him not to do.
50
A second situation distinguishable from true in pari delicto is illustrated by Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219, relied on by the Court. It was there alleged in defense to a trebledamage action that the defendants' illegal actions were taken in reprisal against altogether independent illegal actions by the plaintiff. Here again, I accept the decision that this is no defense. Our law frowns on vigilante justice. Since the plaintiff is in part enforcing the public interest against the defendants' violations, I would permit him to do so, and leave punishment for any independent violation by him to proper means of enforcement.
51
The third distinguishable situation may or may not be illustrated by Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98, and Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998, two cases that I find it quite difficult to understand.2 In each of them, the plaintiff had been offered a dealership, on terms that he did not participate in formulating, and in each case he at first 'accepted' such a dealership. Since neither case stated satisfactorily where the alleged combination in restraint of trade was to be found, it is not clear whether the plaintiff's acceptance of a dealership was itself a forbidden act. If it was not, then these cases fall under the heading of 'consent' cases. A person who engaged in a lawful business on the terms offered should not be prevented from suing merely by his knowledge that others violated the law in contriving those terms. If, however, those plaintiffs were doing something the law told them not to do, I suggest that recovery in those cases can best be understood on the theory of a 'coercion' exception to the in pari delicto doctrine. That is, although a large business with the power to dictate terms and a small business that can only accept them or cease doing business may both, in principle, be liable to legal sanctions for the contract that results from the offer and acceptance, it is considered that the liability is not 'par,' and that the business accepting dictation is only minimally blameworthy.
52
In my view, the District Court and the Court of Appeals did not apply the true in pari delicto standard to this case. The District Court said that 'each plaintiff voluntarily entered into the franchise agreement * * * and accepted the benefits therefrom. They are * * * (therefore?) in pari delicto with defendants * * *.'3 At another point the court said, 'We have repeatedly held that a person who freely assents to an act suffers 'no legal injury' if harm results therefrom.'4 Although the District Court made a passing distinction of the 'coercion' and 'unclean hands' doctrines, it is not clear that it meant to hold that the violation of the Sherman Act, if any, was one for which plaintiffs were subject to public-law sanctions along with the defendants.
53
The Court of Appeals decision was similar. That court relied on the District Court's language quoted above, adding that each of the plaintiffs had made a substantial profit from selling auto parts, a fact that might bear on the measure of any damages but which, apart from illegal action on the part of the plaintiffs, should not afford an absolute defense.5
54
It is by no means clear on this record, however, that the plaintiffs may not be said to have been in pari delicto in the proper sense of that term. This question is rendered more difficult by the complexity of the record history of plaintiffs' activities, and by the formidable obscurity of the law of dealer liability for vertical restraints, an obscurity fostered by Simpson, supra Albrecht, supra, and above all by United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505. Although I make no attempt to drain the bog at this point, I am of the view that before this case goes to trial the lower courts should be given another opportunity to consider the in pari delicto defense. I would remand this case to determine whether any agreement alleged to be in restraint of trade was one for which the plaintiffs were substantially as much responsible, and as much legally liable, as the defendants. I would permit the lower courts to consider this question upon the existing affidavits and such additional material as either side may wish to adduce.
1
26 Stat. 209, 15 U.S.C. § 1.
2
38 Stat. 731, 15 U.S.C. § 14.
3
49 Stat. 1526, 15 U.S.C. § 13.
4
In their motion for summary judgment respondents also argued that the restraints were permissible as reasonable means to protect their registered trade and service marks, but because they had failed to answer interrogatories pertinent to this defense, the district judge ordered it stricken, without prejudice to renewal if respondents promptly answered the relevant interrogatories. Because of its disposition of the case, the Court of Appeals reached neither the merits of this defense nor the question whether respondents had ever properly renewed it. In the circumstances of this case, we think the merits of this defense cannot be decided as a summary judgment question but must be resolved, along with all the other issues, by a trial on the merits.
5
Respondents suggest that these requirements were beneficial to a dealer because they helped him win customers who had confidence in the 'Midas' brand, and some dealers evidently did try to reap some benefit from thes requirements by advertising, 'You get only nationally-advertised Midas products.' It seems highly unlikely, however, that benefits of this kind could do more than mitigate very slightly the losses that a dealer would suffer when forced to buy higher-priced Midas products, particularly since dealers would have bought the higher-priced midas products voluntarily if they thought customer preferences for the brand would be sufficiently strong to offset the higher price.
1
This is at least the traditional use of the term. See, e.g., Williams v. Hedley, 8 East 378, 381—382, 103 Eng.Rep. 388, 389. See generally Note, In Pari Delicto and Consent as Defenses in Private Antitrust Suits, 78 Harv.L.Rev. 1241, distinguishing the two defenses. The present cases is as good an illustration as any of the usefulness of maintaining distinct terms for the distinct situations properly characterized by 'in pari delicto,' 'consent,' 'unclean hands,' and so forth.
2
See my dissenting opinion in Albrecht, 390 U.S., at 156, 88 S.Ct., at 875.
3
1966 Trade Cases 71,801, at 82,705.
4
Id., at 82,706.
5
See 376 F.2d 692, at 693, 695.
| 78
|
392 U.S. 206
88 S.Ct. 1970
20 L.Ed.2d 1037
CHENG FAN KWOK, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE.
No. 638.
Argued May 2, 1968.
Decided June 10, 1968.
Jules E. Coven, New York City, for petitioner.
Charles Gordon, Washington, D.C., for respondent.
William H. Dempsey, Jr., Washington, D.C., as amicus curiae, in support of judgment below, at the invitation of the Court.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The narrow question presented by this case is whether jurisdiction to review the denial of a stay of deportation, if the pertinent order has not been entered in the course of a proceeding conducted under § 242(b) of the Immigration and Nationality Act, 66 Stat. 209, 8 U.S.C. § 1252(b), is, under § 106(a) of the Act, 75 Stat. 651, 8 U.S.C. § 1105a(a), vested exclusively in the courts of appeals.1 The question arises from the following circumstances.
2
Petitioner, a native and citizen of China, evidently entered the United States in 1965 as a seaman.2 The terms of his entry permitted him to remain in this country for the period during which his vessel was in port, provided that this did not exceed 29 days. See 8 U.S.C. § 1282(a).3 He deserted his vessel, and remained unlawfully in the United States. After petitioner's eventual apprehension, deportation proceedings were conducted by a special inquiry officer under the authority of § 242(b). Petitioner conceded his deportability, but sought and obtained permission to depart the United States voluntarily.4 Despite his protestations of good faith, petitioner did not voluntarily depart, and was ultimately ordered to surrender for deportation. He then requested a stay of deportation from a district director of immigration, pending the submission and disposition of an application for adjustment of status under 8 U.S.C. § 1153(a)(7) (1964 ed., Supp. II).5 The district director concluded that petitioner is ineligible for such an adjustment of status, and denied a stay of deportation.
3
Petitioner thereupon commenced these proceedings in the Court of Appeals for the Third Circuit, petitioning for review of the denial of a stay. The Court of Appeals held that the provisions of § 106(a), under which it would otherwise have exclusive jurisdiction to review the district director's order, are inapplicable to orders denying ancillary relief unless those orders either are entered in the course of a proceeding conducted under § 242(b), or are denials of motions to reopen such proceedings. The court dismissed the petition for want of jurisdiction. 381 F.2d 542. We granted certiorari because the courts of appeals have disagreed as to the proper construction of the pertinent statutory provisions.6 390 U.S. 918, 88 S.Ct. 848, 19 L.Ed.2d 978. For reasons that follow, we affirm.
I.
4
It is useful first to summarize the relevant provisions of the Immigration and Nationality Act and of the regulations promulgated under the Act's authority. Section 242(b) provides a detailed administrative procedure for determining whether an alien may be deported. It permits the entry of an order of deportation only upon the basis of a record made in a proceeding before a special inquiry officer, at which the alien is assured rights to counsel, to a reasonable opportunity to examine the evidence against him, to cross-examine witnesses, and to present evidence in his own behalf. By regulation, various forms of discretionary relief may also be sought from the special inquiry officer in the course of the deportation proceeding; an alien may, for example, request that his deportation be temporarily withheld, on the ground that he might, in the country to which he is to be deported, 'be subject to persecution * * *.' See 8 U.S.C. § 1253(h) (1964 ed., Supp. II); 8 CFR § 242.8(a).
5
Other forms of discretionary relief may be requested after termination of the deportation proceeding. The regulations thus provide that an alien 'under a final administrative order of deportation' may apply to the district director 'having jurisdiction over the place where the alien is at the time of filing' for a stay of deportation. 8 CFR § 243.4. The stay may be granted by the district director 'in his discretion.' Ibid. If the stay is denied, the denial 'is not appealable' to the Board of Immigration Appeals. Ibid.
6
Section 106(a)7 provides that the procedures for judicial review prescribed by the Hobbs Act, 64 Stat. 1129, 68 Stat. 961, 'shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hearafter made against aliens * * * pursuant to administrative proceedings under section 242(b) of this Act * * *.' These procedures vest in the courts of appeals exclusive jurisdiction to review final orders issued by specified federal agencies. In situations to which the provisions of § 106(a) are inapplicable, the alien's remedies would, of course, ordinarily lie first in an action brought in an appropriate district court.
7
The positions of the various parties may be summarized as follows. We are urged by both petitioner and the Immigration Service to hold that the provisions of § 106(a) are applicable to the circumstances presented by this case, and that judicial review thus is available only in the courts of appeals. The Immigration Service contends that § 106(a) should be understood to embrace all determinations 'directly affecting the execution of the basic deportation order,' whether those determinations have been reached prior to, during, or subsequent to the deportation proceeding.8 In contrast, amicus9 urges, as the Court of Appeals held, that § 106(a) encompasses only those orders made in the course of a proceeding conducted under § 242(b) or issued upon motions to reopen such proceedings.
II.
8
This is the third case in which we have had occasion to examine to effect of § 106(a). In the first, Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281, the petitioner, in the course of a proceeding conducted under § 242(b), conceded his deportability but requested a suspension of deportation under § 244(a)(5). The special inquiry officer denied such a suspension, and petitioner's appeal from the denial was dismissed by the Board of Immigration Appeals. Petitioner commenced an action in the district court, but the action was dismissed on the ground that, under § 106(a), his exclusive remedy lay in the courts of appeals. He then petitioned for review to the Court of Appeals for the Second Circuit, but it dismissed for want of jurisdiction. A divided court held en banc that the procedures of § 106(a) were inapplicable to denials of discretionary relief under § 244(a)(5). 308 F.2d 779. On certiorari, we reversed, holding that 'all determinations made during and incident to the administrative proceeding conducted by a special inquiry officer, and reviewable together by the Board of Immigration Appeals * * * are * * * included within the ambit of the exclusive jurisdiction of the Court of Appeals under § 106(a).' 375 U.S., at 229, 84 S.Ct. at 314.
9
In the second case, Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90, petitioner moved before the Board of Immigration Appeals to reopen proceedings, previously conducted under § 242(b), that had terminated in an order for his deportation. The Board denied relief. The Court of Appeals for the Ninth Circuit concluded that the Board's denial was not embraced by § 106(a), and dismissed the petition for want of jurisdiction. 308 F.2d 347. On certiorari, this Court held, in a brief per curiam opinion, that such orders were within the exclusive jurisdiction of the courts of appeals.
10
Although Foti strongly suggests the result that we reach today, neither it nor Giova can properly be regarded as controlling in this situation. Unlike the order in Foti, the order in this case was not entered in the course of a proceeding conducted by a special inquiry officer under § 242(b); unlike the order in Giova the order here did not deny a motion to reopen such a proceeding. We regard the issue of statutory construction involved here as markedly closer than the questions presented in those cases; at the least, it is plainly an issue upon which differing views may readily be entertained. In these circumstances, it is imperative, if we are accurately to implement Congress' purposes, to 'seiz(e) everything from which aid can be derived.' Fisher v. Blight, 2 Cranch 358, 386, 2 L.Ed. 304.
11
It is important, first, to emphasize the character of the statute with which we are concerned. Section 106(a) is intended exclusively to prescribe and regulate a portion of the jurisdiction of the federal courts. As a jurisdictional statute, it must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes. Utah Junk Co. v. Porter, 328 U.S. 39, 44, 66 S.Ct. 889, 892, 90 L.Ed. 1071. Further, as a statute addressed entirely to 'specialists,' it must, as Mr. Justice Frankfurter observed, 'be read by judges with the minds of * * * specialists.'10
12
We cannot, upon close reading, easily reconcile the position urged by the Immigration Service with the terms of § 106(a). A denial by a district director of a stay of deportation is not literally a 'final order of deportation,' nor is it, as was the order in Foti, entered in the course of administrative proceedings conducted under § 242(b).11 Thus, the order in this case was issued more than three months after the entry of the final order of deportation,12 in proceedings entirely distinct from those conducted under § 242(b), by an officer other than the special inquiry officer who, as required by § 242(b), presided over the deportation proceeding. The order here did not involve the denial of a motion to reopen proceedings conducted under § 242(b), or to reconsider any final order of deportation. Concededly, the application for a stay assumed the prior existence of an order of deportation, but petitioner did not 'attack the deportation order itself but instead (sought) relief not inconsistent with it.' Mui v. Esperdy, 371 F.2d 772, 777 (C.A.2nd cir.). If, as the Immigration Service urges, § 106(a) embraces all determinations 'directly affecting the execution of' a final deportation order, Congress has selected language remarkably inapposite for its purpose. As Judge Friendly observed in a similar case, if 'Congress had wanted to go that far, presumably it would have known how to say so.' Ibid.
13
The legislative history of § 106(a) does not strengthen the position of the Immigration Service. The 'basic purpose' of the procedural portions of the 1961 legislation was, as we stated in Foti, evidently 'to expedite the deportation of undesirable aliens by preventing successive dilatory appeals to various federal courts * * *.' 375 U.S., at 226, 84 S.Ct. at 312. Congress prescribed for this purpose several procedural innovations, among them the device of direct petitions for review to the courts of appeals. Although, as the Immigration Service has emphasized, the broad purposes of the legislation might have been expected to encompass orders denying discretionary relief entered outside § 242(b) proceedings, there is evidence that Congress deliberately restricted the application of § 106(a) to orders made in the course of proceedings conducted under § 242(b).
14
Thus, during a colloquy on the floor of the House of Representatives, to which we referred in Foti,13 Representative Moore, co-sponsor of the bill then under discussion, suggested that any difficulties resulting from the separate consideration of deportability and of discretionary relief could be overcome by 'a change in the present administrative practice of considering the issues * * * piecemeal. There is no reason why the Immigration Service could not change its regulations to permit contemporaneous court consideration of deportability and administrative application for relief.' 105 Cong.Rec. 12728. In the same colloquy, Representative Walter, the chairman of the subcommittee that conducted the pertinent hearings, recognized that certain forms of discretionary relief may be requested in the course of a deportation proceeding, and stated that § 106(a) would apply to the disposition of such requests, 'just as it would apply to any other issue brought up in deportation proceedings.' 105 Cong.Rec. 12728 (emphasis added). Similarly, Representative Walter, in a subsequent debate, responded to a charge that judicial review under § 106(a) would prove inadequate because of the absence of a suitable record, by inviting 'the gentleman's attention to the law in section 242, in which the procedure for the examiner is set forth in detail.' 107 Cong.Rec. 12179.
15
We believe that, in combination with the terms of § 106(a) itself, these statements lead to the inference that Congress quite deliberately restricted the application of § 106(a) to orders entered during proceedings conducted under § 242(b), or directly challenging deportation orders themselves.14 This is concededly 'a choice between uncertainties,' but we are 'content to choose the lesser.' Burnet v. Guggenheim, 288 U.S. 280, 288, 53 S.Ct. 369, 371, 77 L.Ed. 748.
16
We need not speculate as to Congress' purposes. Quite possible, as Judge Browning has persuasively suggested, 'Congress visualized a single administrative proceeding in which all questions relating to an alien's deportation would be raised and resolved, followed by a single petitiion in a court of appeals for judicial review * * *.' Yamada v. Immigration & Naturalization Service, 384 F.2d 214, 218. It may therefore be that Congress expected the Immigration Service to include within the § 242(b) proceeding 'all issues which might affect deportation.' Ibid. Possibly, as amicus cogently urges, Congress wished to limit petitions to the courts of appeals to situations in which quasi-judicial hearings had been conducted.15 It is enough to emphasize that neither of these purposes would be in any fashion impeded by the result we reach today. We hold that the judicial review provisions of § 106(a) embrace only those determinations made during a proceeding conducted under § 242(b), including those determinations made incident to a motion to reopen such proceedings.16
17
This result is entirely consistent with our opinion in Foti. There, it was repeatedly stated in the opinion of THE CHIEF JUSTICE that the order held reviewable under § 106(a) had, as the regulations required, been entered in the course of a proceeding conducted under § 242(b). 375 U.S., at 218, 222—223, 224, 226, 228, 229, 232, 84 S.Ct. at 308, 310—311, 312, 313, 314, 315. It was emphasized that 'the administrative discretion to grant a suspension of deportation,' the determination involved in Foti, 'has historically been consistently exercised as an integral part of the proceedings which have led to the issuance of a final deportation order.' Id., at 223, 84 S.Ct. at 310. A suspension of deportation 'must be requested prior to or during the deportation hearing.' Ibid. Moreover, it was explicitly recognized that, although modification of the pertinent regulations might 'effectively broaden or narrow the scope of review available in the Courts of Appeals,' this was 'nothing anomalous.'17 Id., at 229—230, 84 S.Ct. at 314. An essential premise of Foti was thus that the application of § 106(a) had been limited to orders 'made during the same proceedings in which deportability is determined * * *.' Id., at 224, 84 S.Ct. at 311.
18
The per curiam opinion in Giova did not take a wider view of § 106(a). The denial of an application to reopen a deportation proceeding is readily distinguishable from a denial of a stay of deportation, in which there is no attack upon the deportation order or upon the proceeding in which it was entered. Petitions to reopen, like motions for rehearing or reconsideration, are, as the Immigration Service urged in Foti, 'intimately and immediately associated' with the final orders they seek to challenge.18 Thus, petitions to reopen deportation proceedings are governed by the regulations applicable to the deportation proceeding itself, and, indeed, are ordinarily presented for disposition to the special inquiry officer who entered the deportation order.19 The result in Giova was thus a logical concomitant of the construction of § 106(a) reached in Foti; it did not, explicitly or by implication, broaden that construction in any fashion that encompasses this situation.
19
The result we reach today will doubtless mean that, on occasion, the review of denials of discretionary relief will be conducted separately from the review of an order of deportation involving the same alien. Nonetheless, this does not seem an onerous burden, nor is it one that cannot be avoided, at least in large part, by appropriate action of the Immigration Service itself. More important, although 'there is no table of logarithms for statutory construction,'20 it is the result that we believe most consistent both with Congress' intentions and with the terms by which it has chosen to express those intentions.
20
Affirmed.
21
Mr. Justice WHITE, dissenting.
22
If the special inquiry officer had possessed jurisdiction to issue a stay order pending petitioner's efforts to obtain discretionary relief from the District Director, I take it that his denial of the stay, like a refusal to re-open, would have been appealable to the Court of Appeals. But, as I understand it, no stay could have been granted by the hearing officer and it was sought from the District Director as an immediate consequence of there being outstanding a final order of deportation, which, if executed, might moot the underlying request for relief from the District Director. Section 106 does not limit judicial review in the Court of Appeals to orders entered 'in the course of' § 242(b) proceedings, but extends it to all orders against aliens entered 'pursuant' to such proceedings, that is, at least as Webster would have it,* 'acting or done in consequence' of the § 242(b) proceedings. Except for the order of deportation, there would have been no occasion of need to seek a stay. It hardly strains congressional intention to give the word 'pursuant' its ordinary meaning in the English language. If there are reasons based on policy for the Court's contrary conclusion, they are not stated. I would reverse the judgment.
1
We emphasize that no questions are presented as to petitioner's deportability or as to the propriety in his situation of any discretionary relief. We intimate no views on any such questions.
2
The facts concerning petitioner's entry into, and subsequent stay in, the United States appear to have been conceded in the proceeding before the special inquiry officer.
3
Section 1282(a) provides in relevant part that '(a) No alien crewman shall be permitted to land temporarily in the United States except * * * for a period of time, in any event, not to exceed—(1) the period of time (not exceeding twenty-nine days) during which the vessel * * * remains in port * * *.'
4
We note, as we did in Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281, that the 'granting of voluntary departure relief does not result in the alien's not being subject to an outstanding final order of deportation.' Id., at 219, n. 1, 84 S.Ct. at 308.
5
Section 1153(a)(7) (1964 ed., Supp. II) provides in part that '(c) onditional entries shall next be made available * * * to aliens who satisfy an Immigration and Naturalization Service officer * * * that (1) because of persecution or fear of persecution * * * they have fled * * * from any Communist or Communist-dominated country * * *.' Conditional entries are available only to refugees, and, like the parole system, grant 'temporary harborage in this country for humane considerations or for reasons rooted in public interest.' C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.54 (1967). See also id., at § 2.27h.
6
Compare the following: Skiftos v. Immigration & Naturalization Service, 332 F.2d 203 (C.A.7th Cir.); Talavera v. Pederson, 334 F.2d 52 (C.A.6th Cir.); Samala v. Immigration & Naturalization Service, 336 F.2d 7 (C.A.5th Cir.); Mendez v. Major, 340 F.2d 128 (C.A.8th Cir.); Melone v. Immigration & Naturalization Service, 355 F.2d 533 (C.A.7th Cir.); Mui v. Esperdy, 371 F.2d 772 (C.A.2d Cir.); Yamada v. Immigration & Naturalization Service, 384 F.2d 214 (C.A.9th Cir.); De Lucia v. Attorney General, 403 F.2d 565 (D.C. Cir.).
7
Section 106(a), 8 U.S.C. § 1105a(a), was added to the Immigration and Nationality Act by § 5(a) of Public Law 87—301, approved September 26, 1961, 75 Stat. 651.
8
Brief for Respondent 28.
9
Since the Immigration Service had aligned itself with petitioner on this question, the Court invited William H. Dempsey, Jr., Esquire, a member of the Bar of this Court, to appear and present oral argument as amicus curiae in support of the judgment below. 390 U.S. 918, 88 S.Ct. 848, 19 L.Ed.2d 978.
10
Frankfurter, Some Reflections on the Reading of Statutes, 2 Record of N.Y.C.B.A. 213, 225.
11
We find the emphasis placed in dissent upon the word 'pursuant' in § 106(a) unpersuasive. First, § 106(a) was evidently limited to those final orders of deportation made 'pursuant to administrative proceedings under section 242(b)' simply because Congress preferred to exclude from it those deportation orders entered without a § 242(b) proceeding. This would, for example, place orders issued under 8 U.S.C. § 1282(b), by which the Immigration Service may revoke a seaman's conditional permit to land and deport him, outside the judicial review procedures of § 106(a). See generally C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.11 (1967). Perhaps this suggests, as amicus urges, that § 106(a) was intended to be limited to situations in which quasi-judicial proceedings, such as those under § 242(b), have been conducted. It certainly indicates that the reference in § 106(a) to § 242(b) proceedings was intended to limit, and not to broaden, the classes of orders to which § 106(a) may be applied. Second, it must be reiterated that § 106(a) does not, as the dissenting opinion suggests, encompass 'all orders' entered pursuant to § 242(b) proceedings; it is limited to 'final orders of deportation.' The textual difficulty, with which the dissenting opinion does not deal, is that the order in question here neither is a final order of deportation, nor is it, as was the order in Foti, 'made during the same proceedings' in which a final order of deportation has been issued. 375 U.S., at 224, 84 S.Ct. at 311. This cannot be overcome merely by examination of the meaning of the word 'pursuant.'
12
The special inquiry officer's decision, which established deportability and granted voluntary departure, was issued on March 3, 1966. Petitioner filed his application for a stay on June 20, 1966. The application was evidently denied on the same day.
13
See 375 U.S., at 223—224, 84 S.Ct. at 310—311.
14
The Immigration Service has argued that the limiting language in § 106(a) may be explained by Congress' wish to restrict its application to deportation cases, preventing its application to questions arising from exclusion proceedings. We have found nothing in the pertinent legislative history that offers meaningful support to this view.
15
Note, e.g., the apparent exclusion from § 106(a) of orders entered under 8 U.S.C. § 1282(b). See generally supra, n. 11.
16
We intimate no views on the possibility that a court of appeals might have 'pendent jurisdiction' over denials of discretionary relief, where it already has before it a petition for review from a proceeding conducted under § 242(b). See Foti v. Immigration and Naturalization Service, supra, 375 U.S. at 227, n. 14, 84 S.Ct. at 313.
17
The opinion of the Court emphasized, in addition, that '(c)learly, changes in administrative procedures may affect the scope and content of various types of agency orders and thus the subject matter embraced in a judicial proceeding to review such orders.' Id., at 230, n. 16, 84 S.Ct. at 314.
18
Brief for Respondent, No. 28, October Term 1963, at 53.
19
See 8 CFR § 242.22. If, however, the order of the special inquiry officer is appealed to the Board of Immigration Appeals, a subsequent motion to reopen or reconsider is presented to the Board for disposition. Ibid. The motion in Giova was presented to the Board and decided by it.
*
Merriam-Webster, Webster's New International Dictionary, Second Edition, unabridged (1957), defines 'pursuant' as:
'1. Acting or done in consequence or in prosecution (of anything); hence, agreeable; conformable; following; according * * *
'2. That is in pursuit or pursuing * * *.'
20
Frankfurter, Some Reflections on the Reading of Statutes, supra, at 234.
| 12
|
392 U.S. 83
88 S.Ct. 1942
20 L.Ed.2d 947
Florence FLAST et al., Appellants,v.Wilbur J. COHEN, Secretary of Health, Education, and Welfare, et al.
No. 416.
Argued March 12, 1968.
Decided June 10, 1968.
[Syllabus from pages 83-84 intentionally omitted]
Leo Pfeffer, New York City, for appellants.
Sol. Gen. Erwin N. Griswold, for appellees.
Sam J. Ervin, Jr., for Americans for Public Schools and Baptist General Assn. of Virginia, as amicus curiae.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
In Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), this Court ruled that a federal taxpayer is without standing to challenge the constitutionality of a federal statute. That ruling has stood for 45 years as an impenetrable barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers. In this case, we must decide whether the Frothingham barrier should be lowered when a taxpayer attacks a federal statute on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment.
2
Appellants filed suit in the United States District Court for the Southern District of New York to enjoin the allegedly unconstitutional expenditure of federal funds under Titles I and II of the Elementary and Secondary Education Act of 1965, 79 Stat. 27, 20 U.S.C. §§ 241a et seq., 821 et seq. (1964 ed., Supp. II). The complaint alleged that the seven appellants had as a common attribute that 'each pay(s) income taxes of the United States,' and it is clear from the complaint that the appellants were resting their standing to maintain the action solely on their status as federal taxpayers.1 The appellees, who are charged by Congress with administering the Elementary and Secondary Education Act of 1965, were sued in their official capacities.
3
The gravamen of the appellants' complaint was that federal funds appropriated under the Act were being used to finance instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks and other instructional materials for use in such schools. Such expenditures were alleged to be in contravention of the Establishment and Free Exercise Clauses of the First Amendment. Appellants' constitutional attack focused on the statutory criteria which state and local authorities must meet to be eligible for federal grants under the Act. Title I of the Act establishes a program for financial assistance to local educational agencies for the education of low-income families. Federal payments are made to state educational agencies, which pass the payments on in the form of grants to local educational agencies. Under § 205 of the Act, 20 U.S.C. § 241e, a local educational agency wishing to have a plan or program funded by a grant must submit the plan or program to the appropriate state educational agency for approval. The plan or program must be 'consistent with such basic criteria as the (appellee United States Commissioner of Education) may establish.' The specific criterion of that section attacked by the appellants is the requirement
4
'that, to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate * * *.' 20 U.S.C. § 241e(a)(2).
5
Under § 206 of the Act, 20 U.S.C. § 241f, the Commissioner of Education is given broad powers to supervise a State's participation in Title I programs and grants. Title II of the Act establishes a program of federal grants for the acquisition of school library resources, textbooks, and other printed and published instructional materials 'for the use of children and teachers in public and private elementary and secondary schools.' 20 U.S.C. § 821. A State wishing to participate in the program must submit a plan to the Commissioner for approval, and the plan must
6
'provide assurance that to the extent consistent with law such library resources, textbooks, and other instructional materials will be provided on an equitable basis for the use of children and teachers in private elementary and secondary schools in the State * * *.' 20 U.S.C. § 823(a)(3)(B). While disclaiming any intent to challenge as unconstitutional all programs under Title I of the Act, the complaint alleges that federal funds have been disbursed under the Act, 'with the consent and approval of the (appellees),' and that such funds have been used and will continue to be used to finance 'instruction in reading, arithmetic and other subjects and for guidance in religious and sectarian schools' and 'the purchase of textbooks and instructional and library materials for use in religious and sectarian schools.' Such expenditures of federal tax funds, appellants alleged, violate the First Amendment because 'they constitute a law respecting an establishment of religion' and because 'they prohibit the free exercise of religion on the part of the (appellants) * * * by reason of the fact that they constitute compulsory taxation for religious purposes.' The complaint asked for a declaration that appellees' actions in approving the expenditure of federal funds for the alleged purposes were not authorized by the Act or, in the alternative, that if appellees' actions are deemed within the authority and intent of the Act, 'the Act is to that extent unconstitutional and void.' The complaint also prayed for an injunction to enjoin appellees from approving any expenditure of federal funds for the allegedly unconstitutional purposes. The complaint further requested that a three-judge court be convened as provided in 28 U.S.C. §§ 282, 2284.
7
The Government moved to dismiss the complaint on the ground that appellants lacked standing to maintain the action. District Judge Frankel, who considered the motion, recognized that Frothingham v. Mellon, supra, provided 'powerful' support for the Government's position, but he ruled that the standing question was of sufficient substance to warrant the convening of a three-judge court to decide the question. 267 F.Supp. 351 (1967). The three-judge court received briefs and heard arguments limited to the standing question, and the court ruled on the authority of Frothingham that appellants lacked standing. Judge Frankel dissented. 271 F.Supp. 1 (1967). From the dismissal of their complaint on that ground, appellants appealed directly to this Court, 28 U.S.C. § 1253, and we noted probable jurisdiction. 389 U.S. 895, 88 S.Ct. 218, 19 L.Ed.2d 212 (1967). For reasons explained at length below, we hold that appellants do have standing as federal taxpayers to maintain this action, and the judgment below must be reversed.
I.
8
We must deal first with the Government's contention that this Court lacks jurisdiction on direct appeal because a three-judge court was improperly convened below.2 Under 28 U.S.C. § 1253, direct appeal to this Court from a district court lies only 'from an order granting or denying * * * an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.' Thus, if the Government is correct, we lack jurisdiction over this direct appeal.
9
The Government's argument on this question is two-pronged. First, noting that appellants have conceded that the case should be deemed one limited to the practices of the New York City Board of Education, the Government contends that appellants wish only to forbid specific local programs which they find objectionable and not to enjoin the operation of the broad range of programs under the statutory scheme. Only if the latter relief is sought, the Government argues, can a three-judge court properly be convened under 28 U.S.C. § 2282. We cannot accept the Government's argument in the context of this case. It is true that the appellants' complaint makes specific reference to the New York City Board of Education's programs which are funded under the challenged statute, and we can assume that appellants' proof at trial would focus on those New York City programs. However, we view these allegations of the complaint as imparting specificity and focus to the issues in the lawsuit and not as limiting the impact of the constitutional challenge made in this case. The injunctive relief sought by appellants is not limited to programs in operation in New York City but extends to any program that would have the unconstitutional features alleged in the complaint. Congress enacted § 2282 '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 (1963). If the District Court in this case were to rule for appellants on the merits of their constitutional attack on New York City's federally funded programs, that decision would cast sufficient doubt on similar programs elsewhere as to cause confusion approaching paralysis to surround the challenged statute. Therefore, even if the injunction which might issue in this case were narrower than that sought by appellants, we are satisfied that the legislative policy underlying § 2282 was served by the convening of a three-judge court, despite appellants' focus on New York City's programs.
10
Secondly, the Government argues that a three-judge court should not have been convened because appellants question not the constitutionality of the Elementary and Secondary Education Act of 1965 but its administration.3 The decision in Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), is dispositive on this issue. It is true that appellants' complaint states a nonconstitutional ground for relief, namely, that appellees' actions in approving the expenditure of federal funds for allegedly unconstitutional programs are in excess of their authority under the Act. However, the complaint also requests an alternative and constitutional ground for relief, namely, a declaration that, if appellees' actions 'are within the authority and intent of the Act, the Act is to that extent unconstitutional and void.' The Court noted in Zemel v. Rusk, supra, '(W)e have often held that a litigant need not abandon his nonconstitutional arguments in order to obtain a three-judge court.' 381 U.S., at 5—6, 85 S.Ct. at 1275. See also Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960); Allen v. Grand Central Aircraft Co., 347 U.S. 535, 74 S.Ct. 745, 98 L.Ed. 933 (1954). The complaint in this case falls within that rule.
11
Thus, since the three-judge court was properly convened below,4 direct appeal to this Court is proper. We turn now to the standing question presented by this case.
II.
12
This Court first faced squarely5 the question whether a litigant asserting only his status as a taxpayer has standing to maintain a suit in a federal court in Frothingham v. Mellon, supra, and that decision must be the starting point for analysis in this case. The taxpayer in Frothingham attacked as unconstitutional the Maternity Act of 1921, 42 Stat. 224, which established a federal program of grants to those States which would undertake programs to reduce maternal and infant mortality. The taxpayer alleged that Congress, in enacting the challenged statute, had exceeded the powers delegated to it under Article I of the Constitution and had invaded the legislative province reserved to the several States by the Tenth Amendment. The taxpayer complained that the result of the allegedly unconstitutional enactment would be to increase her future federal tax liability and 'thereby take her property without due process of law.' 262 U.S., at 486, 43 S.Ct. at 600. The Court noted that a federal taxpayer's 'interest in the moneys of the treasury * * * is comparatively minute and indeterminable' and that 'the effect upon future taxation, of any payment out of the (Treasury's) funds, * * * (is) remote, fluctuating and uncertain.' Id., at 487, 43 S.Ct. at 601. As a result, the Court ruled that the taxpayer had failed to allege the type of 'direct injury' necessary to confer standing. Id., at 488, 43 S.Ct. at 601.
13
Although the barrier Frothingham erected against federal taxpayer suits has never been breached, the decision has been the source of some confusion and the object of considerable criticism. The confusion has developed as commentators have tried to determine whether Frothingham establishes a constitutional bar to taxpayer suits or whether the Court was simply imposing a rule of self-restraint which was not constitutionally compelled.6 The conflicting viewpoints are reflected in the arguments made to this Court by the parties in this case. The Government has pressed upon us the view that Frothingham announced a constitutional rule, compelled by the Article III limitations on federal court jurisdiction and grounded in considerations of the doctrine of separation of powers. Appellants, however, insist that Frothingham expressed no more than a policy of judicial self-restraint which can be disregarded when compelling reasons for assuming jurisdiction over a taxpayer's suit exist. The opinion delivered in Frothingham can be read to support either position.7 The concluding sentence of the opinion states that, to take jurisdiction of the taxpayer's suit, 'would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.' 262 U.S., at 489, 43 S.Ct. 601. Yet the concrete reasons given for denying standing to a federal taxpayer suggest that the Court's holding rests on something less than a constitutional foundation. For example, the Court conceded that standing had previously been conferred on municipal taxpayers to sue in that capacity. However, the Court viewed the interest of a federal taxpayer in total federal tax revenues as 'comparatively minute and indeterminable' when measured against a municipal taxpayer's interest in a smaller city treasury. Id., at 486—487, 43 S.Ct. at 579—601. This suggests that the petitioner in Frothingham was denied standing not because she was a taxpayer but because her tax bill was not large enough. In addition, the Court spoke of the 'attendant inconveniences' of entertaining that taxpayer's suit because it might open the door of federal courts to countless such suits 'in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned.' Id., at 487, 43 S.Ct. at 601. Such a statement suggests pure policy considerations.
14
To the extent that Frothingham has been viewed as resting on policy considerations, it has been criticized as depending on assumptions not consistent with modern conditions. For example, some commentators have pointed out that a number of corporate taxpayers today have a federal tax liability running into hundreds of millions of dollars, and such taxpayers have a far greater monetary stake in the Federal Treasury than they do in any municipal treasury.8 To some degree, the fear expressed in Frothingham that allowing one taxpayer to sue would inundate the federal courts with countless similar suits has been mitigated by the ready availability of the devices of class actions and joinder under the Federal Rules of Civil Procedure, adopted subsequent to the decision in Frothingham.9 Whatever the merits of the current debate over Frothingham, its very existence suggests that we should undertake a fresh examination of the limitations upon standing to sue in a federal court and the application of those limitations to taxpayer suits.
III.
15
The jurisdiction of federal courts is defined and limited by Article III of the Constitution. In terms relevant to the question for decision in this case, the judicial power of federal courts is constitutionally restricted to 'cases' and 'controversies.' As is so often the situation in constitutional adjudication, those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words 'cases' and 'controversies' are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine.
16
Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question,10 when the parties are asking for an advisory opinion,11 when the question sought to be adjudicated has been mooted by subsequent developments,12 and when there is no standing to maintain the action.13 Yet it remains true that '(j)usticiability is * * * not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures * * *.' Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1759, 6 L.Ed.2d 989 (1961).
17
Part of the difficulty in giving precise meaning and form to the concept of justiciability stems from the uncertain historical antecedents of the case-and-controversy doctrine. For example, Mr. Justice Frankfurter twice suggested that historical meaning could be imparted to the concepts of justiciability and case and controversy by reference to the practices of the courts of Westminster when the Constitution was adopted. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 150, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (concurring opinion); Coleman v. Miller, 307 U.S. 433, 460, 59 S.Ct. 972, 985, 83 L.Ed. 1385 (1939) (separate opinion). However, the power of English judges to deliver advisory opinions was well established at the time the Constitution was drafted. 3 K. Davis, Administrative Law Treatise 127—128 (1958). And it is quite clear that 'the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions.' C. Wright, Federal Courts 34 (1963).14 Thus, the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III. See Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911); 3 H. Johnston, Correspondence and Public Papers of John Jay 486—489 (1891) (correspondence between Secretary of State Jefferson and Chief Justice Jay). However, the rule against advisory opinions also recognizes that such suits often 'are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaced situation embracing conflicting and demanding interests.' United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 554, 5 L.Ed.2d 476 (1961). Consequently, the Article III prohibition against advisory opinions reflects the complementary constitutional considerations expressed by the justiciability doctrine: Federal judicial power is limited to those disputes which confine federal courts to a rule consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.
18
Additional uncertainty exists in the doctrine of justiciability because that doctrine has become a blend of constitutional requirements and policy considerations. And a policy limitation is 'not always clearly distinguished from the constitutional limitation.' Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586 (1953). For example, in his concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (1936), Mr. Justice Brandeis listed seven rules developed by this Court 'for its own governance' to avoid passing prematurely on constitutional questions. Because the rules operate in 'cases confessedly within (the Court's) jurisdiction,' id., at 346, 56 S.Ct. at 482, they find their source in policy, rather than purely constitutional, considerations. However, several of the cases cited by Mr. Justice Brandeis in illustrating the rules of self-governance articulated purely constitutional grounds for decision. See, e.g., Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499 (1922); Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 12 S.Ct. 400, 36 L.Ed. 176 (1892). The 'many subtle pressures'15 which cause policy considerations to blend into the constitutional limitations of Article III make the justiciability doctrine one of uncertain and shifting contours.
19
It is in this context that the standing question presented by this case must be viewed and that the Government's argument on that question must be evaluated. As we understand it, the Government's position is that the constitutional scheme of separation of powers, and the deference owed by the federal judiciary to the other two branches of government within that scheme, present an absolute bar to taxpayer suits challenging the validity of federal spending programs. The Government views such suits as involving no more than the mere disagreement by the taxpayer 'with the uses to which tax money is put.'16 According to the Government, the resolution of such disagreements is committed to other branches of the Federal Government and not to the judiciary. Consequently, the Government contends that, under no circumstances, should standing be conferred on federal taxpayers to challenge a federal taxing or spending program.17 An analysis of the function served by standing limitations compels a rejection of the Government's position.
20
Standing is an aspect of justiciability and, as such, the problem of standing is surrounded by the same complexities and vagaries that inhere in justiciability. Standing has been called one of 'the must amorphous (concepts) in the entire domain of public law.'18 Some of the complexities peculiar to standing problems result because standing 'serves, on occasion, as a shorthand expression for all the various elements of justiciability.'19 In addition, there are at work in the standing doctrine the many subtle pressures which tend to cause policy considerations to blend into constitutional limitations.20
21
Despite the complexities and uncertainties, some meaningful form can be given to the jurisdictional limitations placed on federal court power by the concept of standing. The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.21 Thus, a party may have standing in a particular case, but the federal court may nevertheless decline to pass on the merits of the case because, for example, it presents a political question.22 A proper party is demanded so that federal courts will not be asked to decide 'illdefined controversies over constitutional issues,' United Public Workers of America v. Mitchell, 330 U.S. 75, 90, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1947), or a case which is of 'a hypothetical or abstract character.' Aetna Life Insurance Co. of Hartford, Conn. v. Haworth, 300 U.S. 27, 240, 57 S.Ct. 461, 463, 81 L.Ed. 617 (1937). So stated, the standing requirement is closely related to, although more general than, the rule that federal courts will not entertain friendly suits, Chicago & Grand Trunk R. Co. v. Wellman, supra, or those which are feigned or collusive in nature, United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413 (1943); Lord v. Veazie, 8 How. 251, 12 L.Ed. 1067 (1850).
22
When the emphasis in the standing problem is placed on whether the person invoking a federal court's jurisdiction is a proper party to maintain the action, the weakness of the Government's argument in this case becomes apparent. The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has 'a personal stake in the outcome of the controversy,' Baker v. Carr, supra, 369 U.S. at 204, 82 S.Ct. at 703, and whether the dispute touches upon 'the legal relations of parties having adverse legal interests.' Aetna Life Insurance Co. v. Haworth, supra, 300 U.S. at 240—241, 57 S.Ct. at 464. A taxpayer may or may not have the requisite personal stake in the outcome, depending upon the circumstances of the particular case. Therefore, we find no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs. There remains, however, the problem of determining the circumstances under which a federal taxpayer will be deemed to have the personal stake and interest that impart the necessary concrete adverseness to such litigation so that standing can be conferred on the taxpayer qua taxpayer consistent with the constitutional limitations of Article III.
IV.
23
The various rules of standing appplied by federal courts have not been developed in the abstract. Rather, they have been fashioned with specific reference to the status asserted by the party whose standing is challenged and to the type of question he wishes to have adjudicated. We have noted that, in deciding the question of standing, it is not relevant that the substantive issues in the litigation might be nonjusticiable. However, our decisions establish that, in ruling on standing, it is both appropriate and necessary to look to the substantive issues for another purpose, namely, to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. For example, standing requirements will vary in First Amendment religion cases depending upon whether the party raises an Establishment Clause claim or a claim under the Free Exercise Clause. See McGowan v. State of Maryland, 366 U.S. 420, 429—430, 81 S.Ct. 1101, 1106—1107, 6 L.Ed.2d 393 (1961). Such inquiries into the nexus between the status asserted by the litigant and the claim he presents are essential to assure that he is a proper and appropriate party to invoke federal judicial power. Thus, our point of reference in this case is the standing of individuals who assert only the status of federal taxpayers and who challenge the constitutionality of a federal spending program. Whether such individuals have standing to maintain that form of action turns on whether they can demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements.
24
The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses are established, the litigant will have shown a taxpayer's stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court's jurisdiction.
25
The taxpayer-appellants in this case have satisfied both nexuses to support their claim of standing under the test we announce today. Their constitutional challenge is made to an exercise by Congress of its power under Art. I, § 8, to spend for the general welfare, and the challenged program involves a substantial expenditure of federal tax funds.23 In addition, appellants have alleged that the challenged expenditures violate the Establishment and Free Exercise Clauses of the First Amendment. Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general. James Madison, who is generally recognized as the leading architect of the religion clauses of the First Amendment, observed in his famous Memorial and Remonstrance Against Religious Assessments that 'the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever.' 2 Writings of James Madison 183, 186 (Hunt ed. 1901). The concern of Madison and his supporters was quite clearly that religious liberty ultimately would be the victim if government could employ its taxing and spending powers to aid one religion over another or to aid religion in general.24 The Establishment Clause was designed as a specific bulwark against such potential abuses of governmental power, and that clause of the First Amendment25 operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, § 8.
26
The allegations of the taxpayer in Frothingham v. Mellon, supra, were quite different from those made in this case, and the result in Frothingham is consistent with the test of taxpayer standing announced today. The taxpayer in Frothingham attacked a federal spending program and she, therefore, established the first nexus required. However, she lacked standing because her constituional attack was not based on an allegation that Congress, in enacting the Maternity Act of 1921, had breached a specific limitation upon its taxing and spending power. The taxpayer in Frothingham alleged essentially that Congress, by enacting the challenged statute, had exceeded the general powers delegated to it by Art. I, § 8, and that Congress had thereby invaded the legislative province reserved to the States by the Tenth Amendment. To be sure, Mrs. Frothingham made the additional allegation that her tax liability would be increased as a result of the allegedly unconstitutional enactment, and she framed that allegation in terms of a deprivation of property without due process of law. However, the Due Process Clause of the Fifth Amendment does not protect taxpayers against increases in tax liability, and the taxpayer in Frothingham failed to make any additional claim that the harm she alleged resulted from a breach by Congress of the specific constitutional limitations imposed upon an exercise of the taxing and spending power. In essence, Mrs. Frothingham was attempting to assert the States' interest in their legislative prerogatives and not a federal taxpayer's interest in being free of taxing and spending in contravention of specific constitutional limitations imposed upon Congress' taxing and spending power.
27
We have noted that the Establishment Clause of the First Amendment does specifically limit the taxing and spending power conferred by Art. I, § 8. Whether the Constitution contains other specific limitations can be determined only in the context of future cases. However, whenever such specific limitations are found, we believe a taxpayer will have a clear stake as a taxpayer in assuring that they are not breached by Congress. Consequently, we hold that a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power. The taxpayer's allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power. Such an injury is appropriate for judicial redress, and the taxpayer has established the necessary nexus between his status and the nature of the allegedly unconstitutional action to support his claim of standing to secure judicial review. Under such circumstances, we feel confident that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution. We lack that confidence in cases such as Frothingham where a taxpayer seeks to employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.
28
While we express no view at all on the merits of appellants' claims in this case,26 their complaint contains sufficient allegations under the criteria we have outlined to give them standing to invoke a federal court's jurisdiction for an adjudication on the merits.
29
Reversed.
30
Mr. Justice DOUGLAS, concurring.
31
While I have joined the opinion of the Court, I do not think that the test it lays down is a durable one for the reasons stated by my Brother HARLAN. I think, therefore, that it will suffer erosion and in time result in the demise of Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. It would therefore be the part of wisdom, as I see the problem, to be rid of Frothingham here and now.
32
I do not view with alarm, as does my Brother HARLAN, the consequences of that course. Frothingham, decided in 1923, was in the heyday of substantive due process, when courts were sitting in judgment on the wisdom or reasonableness of legislation. The claim in Frothingham was that a federal regulatory Act dealing with maternity deprived the plaintiff of property without due process of law. When the Court used substantive due process to determine the wisdom or reasonableness of legislation, it was indeed transforming itself into the Council of Revision which was rejected by the Constitutional Convention. It was that judicial attitude, not the theory of standing to sue rejected in Frothingham, that involved 'important hazards for the continued effectiveness of the federal judiciary,' to borrow a phase from my Brother HARLAN. A contrary result in Frothingham in that setting might well have accentuated an ominous trend to judicial supremacy.
33
But we no longer undertake to exercise that kind of power. Today's problem is in a different setting.
34
Most laws passed by Congress do not contain even a ghost of a constitutional question. The 'political' decision, as distinguished from the 'justiciable' ones, occupy most of the spectrum of congressional action. The case or controversy requirement comes into play only when the Federal Government does something that affects a person's life, his liberty, or his property. The wrong may be slight or it may be grievous. Madison in denouncing state support of churches said the principle was violated when even 'three pence' was appropriated to that cause by the Government.1 It therefore does not do to talk about taxpayers' interest as 'infinitesimal.' The restraint on 'liberty' may be fleeting and passing and still violate a fundamental constitutional guarantee. The 'three pence' mentioned by Madison may signal a monstrous invasion by the Government into church affairs, and so on.
35
The States have experimented with taxpayers' suits and with only two exceptions2 now allow them. A few state decisions are frankly based on the theory that a taxpayer is a private attorney general seeking to vindicate the public interest.3 Some of them require that the taxpayer have more than an infinitesimal financial stake in the problem.4 At the federal level, Congress can of course define broad categories of 'aggrieved' persons who have standing to litigate cases or controversies. But, contrary to what my Brother HARLAN suggests, the failure of Congress to act has not barred this Court from allowing standing to sue and from providing remedies. The multitude of cases under the Fourth, as well as the Fourteenth Amendment, are witness enough.5
36
The constitutional guide is 'cases' or 'controversies' within the meaning of § 2 of Art. III of the Constitution. As respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of § 2, Art. III. See Ex parte McCardle, 7 Wall, 506, 74 U.S. 506, 19 L.Ed. 264. But where there is judicial power to act, there is judicial power to deal with all the facets of the old issue of standing.
37
Taxpayers can be vigilant private attorneys general. Their stake in the outcome of litigation may be de minimis by financial standards, yet very great when measured by a particular constitutional mandate. My Brother HARLAN'S opinion reflects the British, not the American, tradition of constitutionalism. We have a written Constitution; and it is full of 'thou shalt nots' directed at Congress and the President as well as at the courts. And the role of the federal courts is not only to serve as referee between the States and the center but also to protect the individual against prohibited conduct by the other two branches of the Federal Government.
38
There has long been a school of thought here that the less the judiciary does, the better. It is often said that judicial intrusion should be infrequent, since it is 'always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors'; that the effect of a participation by the judiciary in these processes is 'to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.' J. Thayer, John Marshall 106, 107 (1901).
39
The late Edmond Cahn, who opposed that view, stated my philosophy. He emphasized the importance of the role that the federal judiciary was designed to play in guarding basic rights against majoritarian control. He chided the view expressed by my Brother HARLAN: 'we are entitled to reproach the majoritarian justices of the Supreme Court * * * with straining to be reasonable when they ought to be adamant.' Can the Supreme Court Defend Civil Liberties? in Samuel, ed., Toward a Better America 132, 144 (1968). His description of our constitutional tradition was in these words:
40
'Be not reasonable with inquisitions, anonymous informers, and secret files that mock American justice. Be not reasonable with punitive denationalizations, ex post facto deportations, labels of disloyalty, and all the other stratagems for outlawing human beings from the community of mankind. These devices have put us to shame. Exercise the full judicial power of the United States; nullify them, forbid them; and make us proud again.' Id., 144—145.
41
The judiciary is an indispensable part of the operation of our federal system. With the growing complexities of government it is often the one and only place where effective relief can be obtained. If the judiciary were to become a super-legislative group sitting in judgment on the affairs of people, the situation would be intolerable. But where wrongs to individuals are done by violation of specific guarantees, it is abdication for courts to close their doors.
42
Marshall wrote in Marbury v. Madison, 1 Cranch 137, 178, 5 U.S. 137, 178, 2 L.Ed. 60, that if the judiciary stayed its hand in deference to the legislature, it would give the legislature 'a practical and real omnipotence.' My Brother HARLAN'S view would do just that, for unless Congress created a procedure through which its legislative creation could be challenged quickly and with ease, the momentum of what it had done would grind the dissenter under.
43
We have a Constitution designed to keep government out of private domains. But the fences have often been broken down; and Frothingham denied effective machinery to restore them. The Constitution even with the judicial gloss it has acquired plainly is not adequate to protect the individual against the growing bureaucracy in the Legislative and Executive Branches. He faces a formidable opponent in government, even when he is endowed with funds and with courage. The individual is almost certain to be plowed under, unless he has a well-organized active political group to speak for him. The church is one. The press is another. The union is a third. But if a powerful sponsor is lacking, individual liberty withers—in spite of glowing opinions and resounding constitutional phrases.
44
I would not be niggardly therefore in giving private attorneys general standing to sue. I would certainly not wait for Congress to give its blessing to our deciding cases clearly within our Article III jurisdiction. To wait for a sign from Congress is to allow important constitutional questions to go undecided and personal liberty unprotected.
45
There need be no inundation of the federal courts if taxpayers' suits are allowed. There is a wise judicial discretion that usually can distinguish between the frivolous question and the substantial question, between cases ripe for decision and cases that need prior administrative processing, and the like.6 When the judiciary is no longer 'a great rock'7 in the storm, as Lord Sankey once put it, when the courts are niggardly in the use of their power and reach great issues only timidly and reluctantly, the force of the Constitution in the life of the Nation is greatly weakened.
46
Gideon Hausner, after reviewing the severe security measures sometimes needed for Israel's survival and the vigilance of her courts in maintaining the rights of individuals, recently stated, 'When all is said and done, one is inclined to think that a rigid constitutional frame is on the whole preferable even if it serves no better purpose than obstructing and embarrassing an over-active Executive.' Individuals' Rights in the Courts of Israel, International Lawyers Convention In Israel, 1958, pp. 201, 228 (1959).
47
That observation is apt here, whatever the transgression and whatever branch of government may be implicated. We have recently reviewed the host of devices used by the States to avoid opening to Negroes public facilities enjoyed by whites. Green v. County School Board of New Kent County, Va., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716; Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727; Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733. There is a like process at work at the federal level in respect to aid to religion. The efforts made to insert in the law an express provision which would allow federal aid to sectarian schools to be reviewable in the courts was defeated.8 The mounting federal aid to sectarian schools is notorious and the subterfuges numerous.9
48
I would be as liberal in allowing taxpayers standing to object to these violations of the First Amendment as I would in granting standing to people to complain of any invasion of their rights under the Fourth Amendment or the Fourteenth or under any other guarantee in the Constitution itself or in the Bill of Rights.
49
Mr. Justice STEWART, concurring.
50
I join the judgment and opinion of the Court, which I understand to hold only that a federal taxpayer has standing to assert that a specific expenditure of federal funds violates the Establishment Clause of the First Amendment. Because that clause plainly prohibits taxing and spending in aid of religion, every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution. The present case is thus readily distinguishable from Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, where the taxpayer did not rely on an explicit constitutional prohibition but instead questioned the scope of the powers delegated on the national legislature by Article I of the Constitution.
51
As the Court notes, 'one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general.' Ante, at 103. Today's decision no more than recognizes that the appellants have a clear stake as taxpayers in assuring that they not be compelled to contribute even 'three pence * * * of (their) property for the support of any one establishment.' Ibid. In concluding that the appellants therefore have standing to sue, we do not undermine the salutary principle, established by Frothingham and reaffirmed today, that a taxpayer may not 'employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.' Ante, at 106.
52
Mr. Justice FORTAS, concurring.
53
I would confine the ruling in this case to the proposition that a taxpayer may maintain a suit to challenge the validity of a federal expenditure on the ground that the expenditure violates the Establishment Clause. As the Court's opinion recites, there is enough in the constitutional history of the Establishment Clause to support the thesis that this Clause includes a specific prohibition upon the use of the power to tax to support an establishment of religion.* There is no reason to suggest, and no basis in the logic of this decision for implying, that there may be other types of congressional expenditures which may be attacked by a litigent solely on the basis of his status as a taxpayer.
54
I agree that Frothingham does not foreclose today's result. I agree that the congressional powers to tax and spend are limited by the prohibition upon Congress to enact laws 'respecting an establishment of religion.' This thesis, slender as its basis is, provides a direct 'nexus,' as the Court puts it, between the use and collection of taxes and the congressional action here. Because of this unique 'nexus,' in my judgment, it is not far-fetched to recognize that a taxpayer has a special claim to status as a litigant in a case raising the 'establishment' issue. This special claim is enough, I think, to permit us to allow the suit, coupled, as it is, with the interest which the taxpayer and all other citizens have in the church-state issue. In terms of the structure and basic philosophy of our constitutional government, it would be difficult to point to any issue that has a more intimate, pervasive, and fundamental impact upon the life of the taxpayer and upon the life of all citizens.
55
Perhaps the vital interest of a citizen in the establishment issue, without reference to his taxpayer's status, would be acceptable as a basis for this challenge. We need not decide this. But certainly, I believe, we must recognize that our principle of judicial scrutiny of legislative acts which raise important constitutional questions requires that the issue here presented—the separation of state and church—which the Founding Fathers regarded as fundamental to our constitutional system should be subjected to judicial testing. This is not a question which we, if we are to be faithful to our trust, should consign to limbo, unacknowledged, unresolved, and undecided.
56
On the other hand, the urgent necessities of this case and the precarious opening through which we find our way to confront it, do not demand that we open the door to a general assault upon exercises of the spending power. The status of taxypayer should not be accepted as a launching pad for an attack upon any target other than legislation affecting the Establishment Clause. See concurring opinion of STEWART, J., ante, p. 114.
57
Mr. Justice HARLAN, dissenting.
58
The problems presented by this case are narrow and relatively abstract, but the principles by which they must be resolved involve nothing less than the proper functioning of the federal courts, and so run to the roots of our constitutional system. The nub of my view is that the end result of Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, was correct, even though, like others,1 I do not subscribe to all of its reasoning and premises. Although I therefore agree with certain of the conclusions reached today by the Court,2 I cannot accept the standing doctrine that it substitutes for Frothingham, for it seems to me that this new doctrine rests on premises that do not withstand analysis. Accordingly, I respectfully dissent.
I.
59
It is desirable first to restate the basic issues in this case. The question here is not, as it was not in Frothingham, whether 'a federal taxpayer is without standing to challenge the constitutionality of a federal statute.' Ante, at 85. It could hardly be disputed that federal taxpayers may, as taxpayers, contest the constitutionality of tax obligations imposed severally upon them by federal statute. Such a challenge may be made by way of defense to an action by the United States to recover the amount of a challenged tax debt, see, e.g., Hylton v. United States, 3 Dall. 171, 1 L.Ed. 556; McCray v. United States, 195 U.S. 27, 24 S.Ct. 769, 49 L.Ed. 78; United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, or to a prosecution for willful failure to pay or to report the tax. See, e.g., Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889. Moreover, such a challenge may provide the basis of an action by a taxpayer to obtain the refund of a previous tax payment. See, e.g., Bailey v. Drexel Furniture Co., 259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817.
60
The lawsuits here and in Frothingham are fundamentally different. They present the question whether federal taxpayers qua taxpayers may, in suits in which they do not contest the validity of their previous or existing tax obligations, challenge the constitutionality of the uses for which Congress has authorized the expenditure of public funds. These differences in the purposes of the cases are reflected in differences in the litigants' interests. An action brought to contest the validity of tax liabilities assessed to the plaintiff is designed to vindicate interests that are personal and proprietary. The wrongs alleged and the relief sought by such a plaintiff are unmistakably private; only secondarily are his interests representative of those of the general population. I take it that the Court, although it does not pause to examine the question, believes that the interests of those who as taxpayers challenge the constitutionality of public expenditures may, at least in certain circumstances, be similar. Yet this assumption is surely mistaken.3
61
The complaint in this case, unlike that in Frothingham, contains no allegation that the contested expenditures will in any fashion affect the amount of these taxpayers' own existing or forseeable tax obligations. Even in cases in which such an allegation is made, the suit cannot result in an adjudication either of the plaintiff's tax liabilities or of the propriety of any particular level of taxation. The relief available to such a plaintiff consists entirely of the vindication of rights held in common by all citizens. It is thus scarcely surprising that few of the state courts that permit such suits require proof either that the challenged expenditure is consequential in amount or that it is likely to affect significantly the plaintiff's own tax bill; these courts have at least impliedly recognized that such allegations are surplusage, useful only to preserve the form of an obvious fiction.4
62
Nor are taxpayers' interests in the expenditure of public funds differentiated from those of the general public by any special rights retained by them in their tax payments. The simple fact is that no such rights can sensibly be said to exist. Taxes are ordinarily levied by the United States without limitations of purpose; absent such a limitation, payments received by the Treasury in satisfaction of tax obligations lawfully created become part of the Government's general funds. The national legislature is required by the Constitution to exercise its spending powers to 'provide for the common Defence and general Welfare.' Art. I, § 8, cl. 1. Whatever other implications there may be to that sweeping phrase, it surely means that the United States holds its general funds, not as stakeholder or trustee for those who have paid its imposts, but as surrogate for the population at large. Any rights of a taxpayer which respect to the purposes for which those funds are expended are thus subsumed in, and extinguished by, the common rights of all citizens. To characterize taxpayers' interests in such expenditures as proprietary or even personal either deprives those terms of all meaning or postulates for taxpayers a Scintilla juris in funds that no longer are theirs.
63
Surely it is plain that the rights and interests of taxpayers who contest the constitutionality of public expenditures are markedly different from those of 'Hohfeldian' plaintiffs,5 including those taxpayer-plaintiffs who challenge the validity of their own tax liabilities. We must recognize that these non-Hohfeldian plaintiffs complain, just as the petitioner in Frothingham sought to complain, not as taxpayers, but as 'private attorneys-general.'6 The interests they represent, and the rights they espouse, are bereft of any personal or proprietary coloration. They are, as litigants, indistinguishable from any group selected at random from among the general population, taxpayers and nontaxpayers alike. These are and must be, to adopt Professor Jaffe's useful phrase, 'public actions' brought to vindicate public rights.7
64
It does not, however, follow that suits brought by non-Hohfeldian plaintiffs are excluded by the 'case or controversy' clause of Article III of the Constitution from the jurisdiction of the federal courts. This and other federal courts have repeatedly held that individual litigants, acting as private attorneys-general, may have standing as 'representatives of the public interest.' Scripps-Howard Radio v. Federal Communications Comm., 316 U.S. 4, 14, 62 S.Ct. 875, 882, 86 L.Ed. 1229. See also Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 477, 60 S.Ct. 693, 698, 84 L.Ed. 869; Associated Industries of New York State v. Ickes, 134 F.2d 694; Reade v. Ewing, 205 F.2d 630; Scenic Hudson Preservation Conf. v. FPC, 2 Cir., 354 F.2d 608; Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994. Compare Oklahoma v. United States Civil Service Comm., 330 U.S. 127, 137 139, 67 S.Ct. 544, 550—551, 91 L.Ed. 794. And see, on actions qui tam, Marvin v. Trout, 199 U.S. 212, 225, 26 S.Ct. 31, 34, 50 L.Ed. 157; United States ex rel. Marcus v. Hess, 317 U.S. 537, 546, 63 S.Ct. 379, 385, 87 L.Ed. 443. The various lines of authority are by no means free of difficulty, and certain of the cases may be explicable as involving a personal, if remote, economic interest, but I think that it is, nonetheless, clear that non-Hohfeldian plaintiffs as such are not constitutionally excluded from the federal courts. The problem ultimately presented by this case is, in my view, therefore to determine in what circumstances, consonant with the character and proper functioning of the federal courts, such suits should be permitted.8 With this preface, I shall examine the position adopted by the Court.
II.
65
As I understand it, the Court's position is that it is unnecessary to decide in what circumstances public actions should be permitted, for it is possible to identify situations in which taxpayers who contest the constitutionality of federal expenditures assert 'personal' rights and interests, identical in principle to those asserted by Hohfeldian plaintiffs. This position, if supportable, would of course avoid many of the difficulties of this case; indeed, if the Court is correct, its extended exploration of the subtleties of Article III is entirely unnecessary. But, for reasons that follow, I believe that the Court's position is untenable.
66
The Court's analysis consists principally of the observation that the requirements of standing are met if a taxpayer has the 'requisite personal stake in the outcome' of this suit. Ante, at 101. This does not, of course, resolve the standing problem; it merely restates it. The Court implements this standard with the declaration that taxpayers will be 'deemed' to have the necessary personal interest if their suits satisfy two criteria: first, the challenged expenditure must form part of a federal spending program, and not merely be 'incidental' to a regulatory program; and second, the constitutional provision under which the plaintiff claims must be a 'specific limitation' upon Congress' spending powers. The difficulties with these criteria are many and severe, but it is enough for the moment to emphasize that they are not in any sense a measurement of any plaintiff's interest in the outcome of any suit. As even a cursory examination of the criteria will show, the Court's standard for the determination of standing and its criteria for the satisfaction of that standard are entirely unrelated.
67
It is surely clear that a plaintiff's interest in the outcome of a suit in which he challenges the constitutionality of a federal expenditure is not made greater or smaller by the unconnected fact that the expenditure is, or is not, 'incidental' to an 'essentially regulatory' program.9 An example will illustrate the point. Assume that two independent federal programs are authorized by Congress, that the first is designed to encourage a specified religious group by the provision to it of direct grants-in-aid, and that the second is designed to discourage all other religious groups by the imposition of various forms of discriminatory regulation. Equal amounts are appropriated by Congress for the two programs. If a taxpayer challenges their constitutionality in separate suits,10 are we to suppose, as evidently does the Court, that his 'personal stake' in the suit involving the second is necessarily smaller than it is in the suit involving the first, and that he should therefore have standing in one but not the other?
68
Presumably the Court does not believe that regulatory programs are necessarily less destructive of First Amendment rights, or that regulatory programs are necessarily less prodigal of public funds than are grants-in-aid, for both these general propositions are demonstrably false. The Court's disregard of regulatory expenditures is not even a logical consequence of its apparent assumption that taxpayer-plaintiffs assert essentially monetary interests, for it surely cannot matter to a taxpayer qua taxpayer whether an unconstitutional expenditure is used to hire the services of regulatory personnel or is distributed among private and local governmental agencies as grants-inaid. His interest as taxpayer arises, if at all, from the fact of an unlawful expenditure, and not as a consequence of the expenditure's form. Apparently the Court has repudiated the emphasis in Frothingham upon the amount of the plaintiff's tax bill, only to substitute an equally irrelevant emphasis upon the form of the challenged expenditure.
69
The Court's second criterion is similarly unrelated to its standard for the determination of standing. The intensity of a plaintiff's interest in a suit is not measured, even obliquely, by the fact that the constitutional provision under which he claims is, or is not, a 'specific limitation' upon Congress' spending powers. Thus, among the claims in Frothingham was the assertion that the Maternity Act, 42 Stat. 224, deprived the petitioner of property without due process of law. The Court has evidently concluded that this claim did not confer standing because the Due Process Clause of the Fifth Amendment is not a specific limitation upon the spending powers.11 Disregarding for the moment the formidable obscurity of the Court's categories, how can it be said that Mrs. Frothingham's interests in her suit were, as a consequence of her choice of a constitutional claim, necessarily less intense than those, for example, of the present appellants? I am quite unable to understand how, if a taxpayer believes that a given public expenditure is unconstitutional, and if he seeks to vindicate that belief in a federal court, his interest in the suit can be said necessarily to vary according to the constitutional provision under which he states his claim.
70
The absence of any connection between the Court's standard for the determination of standing and its criteria for the satisfaction of that standard is not merely a logical ellipsis. Instead, it follows quite relentlessly from the fact that, despite the Court's apparent belief, the plaintiffs in this and similar suits are non-Hohfeldian, and it is very nearly impossible to measure sensibly any differences in the intensity of their personal interests in their suits. The Court has thus been compelled simply to postulate situations in which such taxpayer-plaintiffs will be 'deemed' to have the requisite 'personal stake and interest.' Ante, at 101. The logical inadequacies of the Court's criteria are thus a reflection of the deficiencies of its entire position. These deficiencies will, however, appear more plainly from an examination of the Court's treatment of the Establishment Clause.
71
Although the Court does not altogether explain its position, the essence of its reasoning is evidently that a taxpayer's claim under the Establishment Clause is 'not merely one of ultra vires,' but one which instead asserts 'an abridgment of individual religious liberty' and a 'governmental infringement of individual rights protected by the Constitution.' Choper, The Establishment Clause and Aid to Parochial Schools, 56 Calif.L.Rev. 260, 276. It must first be emphasized that this is apparently not founded upon any 'preferred' position for the First Amendment, or upon any asserted unavailability of other plaintiffs.12 The Court's position is instead that, because of the Establishment Clause's historical purposes, taxpayers retain rights under it quite different from those held by them under other constitutional provisions.
72
The difficulties with this position are several. First, we have recently been reminded that the historical purposes of the religious clauses of the First Amendment are significantly more obscure and complex than this Court has heretofore acknowledged.13 Careful students of the history of the Establishment Clause have found that 'it is impossible to give a dogmatic interpretation of the First Amendment, and to state with any accuracy the intention of the men who framed it * * *.'14 Above all, the evidence seems clear that the First Amendment was not intended simply to enact the terms of Madison's Memorial and Remonstrance against Religious Assessments.15 I do not suggest that history is without relevance to these questions, or that the use of federal funds for religious purposes was not a form of establishment that many in the 18th century would have found objectionable. I say simply that, given the ultimate obscurity of the Establishment Clause's historical purposes, it is inappropriate for this Court to draw fundamental distinctions among the several constitutional commands upon the supposed authority of isolated dicta extracted from the clause's complex history. In particular, I have not found, and the opinion of the Court has not adduced, historical evidence that properly permits the Court to distinguish, as it has here, among the Establishment Clause, the Tenth Amendment, and the Due Process Clause of the Fifth Amendment as limitations upon Congress' taxing and spending powers.16
73
The Court's position is equally precarious if it is assumed that its premise is that the Establishment Clause is in some uncertain fashion a more 'specific' limitation upon Congress' powers than are the various other constitutional commands. It is obvious, first, that only in some Pickwickian sense are any of the provisions with which the Court is concerned 'specific(ally)' limitations upon spending, for they contain nothing that is expressly directed at the expenditure of public funds. The specificity to which the Court repeatedly refers must therefore arise, not from the provisions' language, but from something implicit in their purposes. But this Court has often emphasized that Congress' powers to spend are coterminous with the purposes for which, and methods by which, it may act, and that the various constitutional commands applicable to the central government, including those implicit both in the Tenth Amendment and in the General Welfare Clause, thus operate as limitations upon spending. See United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477. And see, e.g., Veazie Bank v. Fenno, 8 Wall. 533, 541, 19 L.Ed. 482; Loan Association v. City of Topeka, 20 Wall. 655, 665, 22 L.Ed. 455; Thompson v. Consolidated Gas Co., 300 U.S. 55, 80, 57 S.Ct. 364, 376, 81 L.Ed. 510; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245; Everson v. Board of Education, supra, 330 U.S. 1, 6, 67 S.Ct. 504, 506. Compare Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279; Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307. I can attach no constitutional significance to the various degrees of specificity with which these limitations appear in the terms or history of the Constitution. If the Court accepts the proposition, as I do, that the number and scope of public actions should be restricted, there are, as I shall show, methods more appropriate, and more nearly permanent, than the creation of an amorphous category of constitutional provisions that the Court has deemed, without adequate foundation, 'specific limitations' upon Congress' spending powers.
74
Even if it is assumed that such distinctions may properly be drawn, it does not follow that federal taxpayers hold any 'personal constitutional right' such that they may each contest the validity under the Establishment Clause of all federal expenditures. The difficulty, with which the Court never comes to grips, is that taxpayers' suits under the Establishment Clause are not in these circumstances meaningfully different from other public actions. If this case involved a tax specifically designed for the support of religion, as was the Virginia tax opposed by Madison in his Memorial and Remonstrance,17 I would agree that taxpayers have rights under the religious clauses of the First Amendment that would permit them standing to challenge the tax's validity in the federal courts. But this is not such a case, and appellants challenge an expenditure, not a tax. Where no such tax is involved, a taxpayer's complaint can consist only of an allegation that public funds have been, or shortly will be, expended for purposes inconsistent with the Constitution. The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation. His tax payments are received for the general purposes of the United States, and are, upon proper receipt, lost in the general revenues. Compare Steward Machine Co. v. Davis, supra, 301 U.S. at 585, 57 S.Ct. at 890. The interests he represents, and the rights he espouses, are, as they are in all public actions, those held in common by all citizens. To describe those rights and interests as personal, and to intimate that they are in some unspecified fashion to be differentiated from those of the general public, reduces constitutional standing to a word game played by secret rules.18
75
Apparently the Court, having successfully circumnavigated the issue, has merely returned to the proposition from which it began. A litigant, it seems, will have standing if he is 'deemed' to have the requisite interest, and 'if you * * * have standing then you can be confident you are' suitably interested. Brown, Quis Custodiet Ipsos Custodes?—The School-Prayer Cases, 1963 Sup.Ct.Rev. 1, 22.
III.
76
It seems to me clear that public actions, whatever the constitutional provisions on which they are premised, may involve important hazards for the continued effectiveness of the federal judiciary. Although I believe such actions to be within the jurisdiction conferred upon the federal courts by Article III of the Constitution, there surely can be little doubt that they strain the judicial function and press to the limit judicial authority. There is every reason to fear that unrestricted public actions might well alter the allocation of authority among the three branches of the Federal Government. It is not, I submit, enough to say that the present members of the Court would not seize these opportunities for abuse, for such actions would, even without conscious abuse, go far toward the final transformation of this Court into the Council of Revision which, despite Madison's support, was rejected by the Constitutional Convention.19 I do not doubt that there must be 'some effectual power in the government to restrain or correct the infractions'20 of the Constitution's several commands, but neither can I suppose that such power resides only in the federal courts. We must as judges recall that, as Mr. Justice Holmes wisely observed, the other branches of the Government 'are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.' Missouri, Kansas & Texas R. Co. of Texas v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971. The powers of the federal judiciary will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of representative government.
77
Presumably the Court recognizes at least certain of these hazards, else it would not have troubled to impose limitations upon the situations in which, and purposes for which, such suits may be brought. Nonetheless, the limitations adopted by the Court are, as I have endeavored to indicate, wholly untenable. This is the more unfortunate because there is available a resolution of this problem that entirely satisfies the demands of the principle of separation of powers. This Court has previously held that individual litigants have standing to represent the public interest, despite their lack of economic or other personal interests, if Congress has appropriately authorized such suits. See especially Oklahoma v. United States Civil Service Comm., 330 U.S. 127, 137—139, 67 S.Ct. 544, 550—551. Compare Perkins v. Lukens Steel Co., 310 U.S. 113, 125—127, 60 S.Ct. 869, 875—876, 84 L.Ed. 1108. I would adhere to that principle.21 Any hazards to the proper allocation of authority among the three branches of the Government would be substantially diminished if public actions had been pertinently authorized by Congress and the President. I appreciate that this Court does not ordinarily await the mandate of other branches of the Government, but it seems to me that the extraordinary character of public actions, and of the mischievous, if not dangerous, consequences they involve for the proper functioning of our constitutional system, and in particular of the federal courts, makes such judicial forbearance the part of wisdom.22 It must be emphasized that the implications of these questions of judicial policy are of fundamental significance for the other branches of the Federal Government.
78
Such a rule could readily be applied to this case. Although various efforts have been made in Congress to authorize public actions to contest the validity of federal expenditures in aid of religiously affiliated schools and other institutions, no such authorization has yet been given.23
79
This does not mean that we would, under such a rule, be enabled to avoid our constitutional responsibilities, or that we would confine to limbo the First Amendment or any other constitutional command. The question here is not, despite the Court's unarticulated premise, whether the religious clauses of the First Amendment are hereafter to be enforced by the federal courts; the issue is simply whether plaintiffs of an additional category, heretofore excluded from those courts, are to be permitted to maintain suits. The recent history of this Court is replete with illustrations, including even one announced today (supra, at n. 12), that questions involving the religious clauses will not, if federal taxpayers are prevented from contesting federal expenditures, be left 'unacknowledged, unresolved, and undecided.'
80
Accordingly, for the reasons contained in this opinion, I would affirm the judgment of the District Court.
1
The complaint alleged that one of the appellants 'has children regularly registered in and attending the elementary or secondary grades in the public schools of New York.' However, the District Court did not view that additional allegation as being relevant to the question of standing, and appellants have made no effort to justify their standing on that additional ground.
2
This issue was not raised in the court below, and the Government argued it for the first time in its brief in this Court. The Government claims the inappropriateness of convening a three-judge court became apparent only as the issues in the case have been clarified by appellants. Because the question now presented goes to our jurisdiction on direct appeal, the lateness of the claim is irrelevant to our consideration of it. United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct. 601, 602, 82 L.Ed. 764 (1938).
3
The Government also seems to argue that, if any administrative action is suspect, it is the action of state officials and not of appellees. For example, the Government describes federal participation in the challenged programs as 'remote.' Brief for the Appellees. The premise for this argument is apparently that, under 20 U.S.C. § 241e, programs of local educational agencies require only the direct approval of state officials to be eligible for grants. However, appellees are given broad powers of supervision over state participation by 20 U.S.C. § 241f, and it is federal funds administered by appellees that finance the local programs. We cannot characterize such federal participation as 'remote.'
4
An additional requirement for the convening of a three-judge court is that the constitutional question presented be substantial. See Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933). The Government does not dispute the substantiality of the constitutional attack made by appellants on the Elementary and Secondary Education Act of 1965. See Flast v. Gardner, 267 F.Supp. 351, 352 (1967).
5
In at least three cases prior to Frothingham, the Court accepted jurisdiction in taxpayer suits without passing directly on the standing question. Wilson v. Shaw, 204 U.S. 24, 31, 27 S.Ct. 233, 234, 51 L.Ed. 351 (1907); Millard v. Roberts, 202 U.S. 429, 438, 26 S.Ct. 674, 676 (1906); Bradfield v. Roberts, 175 U.S. 291, 295, 20 S.Ct. 121, 122, 44 L.Ed. 168 (1899).
6
The prevailing view of the commentators is that Frothingham announced only a nonconstitutional rule of self-restraint. See, e.g., Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv.L.Rev. 255, 302—303 (1961); Arthur Garfield Hays Civil Liberties Conference: Public Aid to Parochial Schools and Standing to Bring Suit, 12 Buffalo L.Rev. 35, 48—65 (1962); Davis, Standing to Challenge Governmental Action, 39 Minn.L.Rev. 353, 386—391 (1955). But see Hearings on S. 2097 before the Subcommittee on Constitutional Rights of the Senate Judiciary Committee, 89th Cong., 2d Sess., 465, 467—468 (1966) (statement of Prof. William D. Valente). The lastcited hearings contain the best collection of recent expression of views on this question.
7
'Although the Court in the latter part of the opinion used language suggesting that it did not find the elements of a justiciable controversy present in the case, the case in its central aspect turns on application of the judicially formulated (i.e., nonconstitutional) rules respecting standing.' Hearings on S. 2097, supra, n. 6, at 503 (statement of Prof. Paul G. Kauper).
8
See, e.g., Hearings on S. 2097, supra, n. 6, at 493 (statement of Prof. Kenneth C. Davis); Note, 69 Yale L.J. 895, 917, and n. 127 (1960).
9
Judge Frankel's dissent below also noted that federal courts have learned in recent years to cope effectively with 'huge litigations' and 'redundant actions.' 271 F.Supp., at 17.
10
See, e.g., Commercial Trust Co. of New Jersey v. Miller, 262 U.S. 51, 43 S.Ct. 486, 67 L.Ed. 858 (1923); Luther v. Borden, 7 How. 1, 12 L.Ed. 581 (1849).
11
See, e.g., United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961); Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911).
12
See, e.g., California v. San Pablo & T.R. Co., 149 U.S. 308, 13 S.Ct. 876, 37 L.Ed. 747 (1893).
13
See, e.g., Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943); Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923).
14
The rule against advisory opinions was established as early as 1793, see 3 H. Johnston, Correspondence and Public Papers of John Jay 486—489 (1891), and the rule has been adhered to without deviation. See United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 553, 5 L.Ed.2d 476 (1961), and cases cited therein.
15
Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1759, 6 L.Ed.2d 989 (1961).
16
Brief for Appellees 7.
17
The logic of the Government's argument would compel it to concede that a taxpayer would lack standing even if Congress engaged in such palpably unconstitutional conduct as providing funds for the construction of churches for particular sects. See Flast v. Gardner, D.C., 271 F.Supp. 1, 5 (1967) (dissenting opinion of Frankel, J.). The Government professes not to be bothered by such a result because it contends there might be individuals in society other than taxpayers who could invoke federal judicial power to challenge such unconstitutional appropriations. However, if as we conclude there are circumstances under which a taxpayer will be a proper and appropriate party to seek judicial review of federal statutes, the taxpayer's access to federal courts should not be barred because there might be at large in society a hypothetical plaintiff who might possibly bring such a suit.
18
Hearings on S. 2097, supra, n. 6, at 498 (statement of Prof. Paul A. Freund).
19
Lewis, Constitutional Rights and the Misuse of 'Standing,' 14 Stan.L.Rev. 433, 453 (1962).
20
Thus, a general standing limitation imposed by federal courts is that a litigant will ordinarily not be permitted to assert the rights of absent third parties. See, e.g., Heald v. District of Columbia, 259 U.S. 114, 123, 42 S.Ct. 434, 435, 66 L.Ed. 852 (1922); Yazoo & Miss. Valley R. Co. v. Jackson Vinegar Co., 226 U.S 217, 33 S.Ct. 40, 57 L.Ed. 193 (1912). However, this rule has not been imposed uniformly as a firm constitutional restriction on federal court jurisdiction. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 486—487, 85 S.Ct. 1116, 1120—1121, 14 L.Ed.2d 22 (1965); Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953).
21
This distinction has not always appeared with clarity in prior cases. See Bickel, Foreword: The Passive Virtues, The Supreme Court, 1960 Term, 75 Harv.L.Rev. 40, 75—76 (1961).
22
One contemporary commentator advanced such an explanation for the holding in Frothingham, suggesting that the standing rationale was simply a device used by the Court to avoid judicial inquiry into questions of social policy and the political wisdom of Congress. See Finkelstein, Judicial Self-Limitation, 37 Harv.L.Rev. 338, 359—364 (1924).
23
Almost $1,000,000,000 was appropriated to implement the Elementary and Secondary Education Act in 1965. 79 Stat. 832.
24
The Memorial and Remonstrance was Madison's impassioned reaction to a bill introduced in the Virginia General Assembly in 1785 to provide a tax levy to support teachers of the Christian religion. Madison's eloquent opposition to the levy generated strong support in Virginia and the Assembly postponed consideration of the proposal until its next session. When the bill was revived, it died in committee and the Assembly instead enacted the famous Virginia Bill for Religious Liberty authored by Thomas Jefferson. The Virginia experience is recounted in S. Cobb, Rise of Religious Liberty in America 490—499 (1902).
25
Appellants have also alleged that the Elementary and Secondary Education Act of 1965 violates the Free Exercise Clause of the First Amendment. This Court has recognized that the taxing power can be used to infringe the free exercise of religion. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). Since we hold that appellants' Establishment Clause claim is sufficient to establish the nexus between their status and the precise nature of the constitutional infringement alleged, we need not decide whether the Free Exercise claim, standing alone, would be adequate to conver standing in this case. We do note, however, that the challenged tax in Murdock operated upon a particular class of taxpayers. When such exercises of the taxing power are challenged, the proper party emphasis in the federal standing doctrine would require that standing be limited to the taxpayers within the affected class.
26
In fact, it is impossible to make any such judgment in the present posture of this case. The proceedings in the court below thus far have been devoted solely to the threshold question of standing, and nothing in the record bears upon the merits of the substantive questions presented in the complaint.
1
Memorial and Remonstrance against Religious Assessments, 2 Writings of James Madison 186 (Hunt ed. 1901).
2
The two clear exceptions are municipal taxpayers' suits in Kansas (see Asendorf v. Common School Dist. No. 102, 175 Kan. 601, 266 P.2d 309 (1954)) and state taxpayers' suits in New York (see Schieffelin v. Komfort, 212 N.Y. 520, 106 N.E. 675, L.R.A.1915D, 485 (1914); St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, 242 N.Y.S.2d 43, 192 N.E.2d 15 (1963); but see Kuhn v. Curran, 294 N.Y. 207, 61 N.E.2d 513 (1945).
3
See, e.g., Clapp v. Town of Jaffrey, 97 N.H. 456, 91 A.2d 464 (1952); Vibberts v. Hart, 85 R.I. 35, 125 A.2d 193 (1956); Lien v. Northwestern Engineering Co., 74 S.D. 476, 54 N.W.2d 472 (1952). ('It is now the settled law of this state that a taxpayer or elector having no special interest may institute an action to protect a public right.' 74 S.D., at 479, 54 N.W.2d, at 474.)
4
See, e.g., Crews v. Beattie, 197 S.C. 32, 14 S.E.2d 351 (1941); Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943) (taxpayer may not enjoin state expenditure of $1.49); contra, Richardson v. Blackburn, 41 Del.Ch. 54, 187 A.2d 823 (1963); Woodard v. Reily, 244 La. 337, 152 So.2d 41 (1963).
The estimates of commentators as to how many jurisdictions have specifically upheld taxpayers' suits range from 32 to 40. See generally 3 K. Davis, Administrative Law Treatise § 22.09 (1958), §§ 22.09—22.10 (1965 Supp.); Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.L.Rev. 1265, 1276—1281 (1961); Comment, Taxpayers' Suits: A Survey and Summary, 69 Yale L.J. 895 (1960); St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, 77—81, 242 N.Y.S.2d 43, 45—49, 192 N.E.2d 15, 16—19 (1963) (dissenting opinion of Fuld, J.).
5
See, e.g., NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070. As the Court said in Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586, apart from Article III jurisdictional questions, standing involves a 'rule of self-restraint for its own governance' which 'this Court has developed' itself. And attempts by Congress to confer standing when it is constitutionally lacking are unavailing. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246.
6
'The general indifference of private individuals to public omissions and encroachments, the fear of expense in unsuccessful and even in successful litigation, and the discretion of the court, have been, and doubtless will continue to be, a sufficient guard to these public officials against too numerous and unreasonable attacks.' State ex rel. Ferry v. Williams, 41 N.J.L. 332, 339 (Sup.Ct.1879).
7
Quoted in the Law Times, March 17, 1928, at 242.
8
These efforts, commencing in 1961, are discussed in S.Rep. No. 85, 90th Cong., 1st Sess., 2—3 (1967), and S.Rep. No. 473, 90th Cong., 1st Sess., 10—15 (1967). The Senate added such a provision to the Higher Education Facilities Act of 1963, but it did not survive conference. S.Rep. No. 85, at 2. A bill, S. 3, to make certain 'establishment' questions reviewable has been reported by the Senate in the Ninetieth Congress.
9
'Tuition grants to parents of students in church schools is considered by the clerics and their helpers to have possibilities. The idea here is that the parent receives the money, carries it down to the school, and gives it to the priest. Since the money pauses a moment with the parent before going to the priest, it is argued that this evades the constitutional prohibition against government money for religion! This is a diaphanous trick which seeks to do indirectly what may not be done directly.
'Another one is the 'authority.' The state may not grant aid directly to church schools. But how about setting up an authority like the Turnpike Authority? The state could give the money to the authority which, under one pretext or another, could channel it into the church schools.
'Yet another favorite of those who covet sectarian subsidies is 'child benefit.' Government may not aid church schools, but it may aid the children in the schools. The trouble with this argument is that it proves too much. Anything that is done for a school would presumably be of some benefit to the children in it. Government could even build church school classrooms under this theory because it would benefit the children to have nice rooms to study in.' 21 Church & State (June 1968), p. 5 (editorial).
*
See ante, at 104, n. 24.
1
See, e.g., Davis, Standing to Challenge Governmental Action, 39 Minn.L.Rev. 353; L. Jaffe, Judicial Control of Administrative Action 483—495 (1965).
2
In particular, I agree, essentially for the reasons stated by the Court, that we do not lack jurisdiction under 28 U.S.C. § 1253 to consider the judgment of the three-judge District Court.
3
I put aside, for the moment, the suggestion that a taxpayer's rights under the Establishment Clause are more 'personal' than they are under any other constitutional provision.
4
See generally Comment, Taxpayers' Suits: A Survey and Summary, 69 Yale L.J. 895, 905—906.
5
The phrase is Professor Jaffe's, adopted, of course, from W. Hohfeld, Fundamental Legal Conceptions (1923). I have here employed the phrases 'Hohfeldian' and 'non-Hohfeldian' plaintiffs to mark the distinction between the personal and proprietary interests of the traditional plaintiff, and the representative and public interests of the plaintiff in a public action. I am aware that we are confronted here by a spectrum of interests of varying intensities, but the distinction is sufficiently accurate, and convenient, to warrant its use at least for purposes of discussion.
6
Cf. Associated Industries of New York State v. Ickes, 2 Cir., 134 F.2d 694, 704; Reade v. Ewing, 2 Cir., 205 F.2d 630, 632.
7
L. Jaffe, Judicial Control of Administrative Action 483 (1965).
8
I agree that implicit in this question is the belief that the federal courts may decline to accept for adjudication cases or questions that, although otherwise within the perimeter of their constitutional jurisdiction, are appropriately thought to be unsuitable at least for immediate judicial resolution. Compare Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (concurring opinion); H. Wechsler, Principles, Politics, and Fundamental Law 9—15 (1961); and Bickel, Foreword: The Passive Virtues, The Supreme Court, 1960 Term, 75 Harv.L.Rev. 40, 45—47 (1961).
9
I must note at the outset that I cannot determine with any certainty the Court's intentions with regard to this first criterion. Its use of Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475, as an analogue perhaps suggests that it intends to exclude only those cases in which there are vitually no public expenditures. See, e.g., Howard v. City of Boulder, 132 Colo. 401, 290 P.2d 237. On the other hand, the Court also emphasizes that the contested programs may not be 'essentially regulatory' programs, and that the statute challenged here 'involves a substantial expenditure of federal tax funds.' Ante, at 102, 103 (emphasis added). Presumably this means that the Court's standing doctrine also excludes any program in which the expenditures are 'insubstantial' or which cannot be characterized as a 'spending' program.
10
I am aware that the attack upon the second program would presumably be premised, at least in large part, upon the Free Exercise Clause, and that the Court does not today hold that that clause is within its standing doctrine. I cannot, however, see any meaningful distinction for these purposes, even under the Court's reasoning, between the two religious clauses.
11
It should be emphasized that the Court finds it unnecessary to examine the history of the Due Process Clause to determine whether it was intended as a 'specific limitation' upon Congress' spending and taxing powers. Nor does the Court pause to examine the purposes of the Tenth Amendment, another of the premises of the constitutional claims in Frothingham. But see Gibbons v. Ogden, 9 Wheat. 1, 199, 6 L.Ed. 23; Veazie Bank v. Fenno, 8 Wall. 533, 541, 19 L.Ed. 482; United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477. And compare Everson v. Board of Education, 330 U.S. 1, 6, 67 S.Ct. 504, 506, 91 L.Ed. 711.
12
The Court does make one reference to bhe availability vel non of other plaintiffs. It indicates that where a federal statute is directed at a specified class, 'the proper party emphasis in the federal standing doctrine would require that standing be limited to the taxpayers within the affected class.' Ante, at 104, n. 25. Assuming arguendo the existence of such a federal 'best-plaintiff' rule, it is difficult to see why this rule would not altogether exclude taxpayers as plaintiffs under the Establishment Clause, since there plainly may be litigants under the Clause with the personal rights and interests of Hohfeldian plaintiffs. See, e.g., Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed. 1060, decided today.
13
See, in particular, M. Howe, The Garden and the Wilderness, 1—31 (1965); C. Antieau, A. Downey & E. Roberts, Freedom from Federal Establishment (1964). Not all members of the Court have of course ignored the complexities of the clause's history. See especially People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. 203, 238, 68 S.Ct. 461, 473, 92 L.Ed. 649 (dissenting opinion of Reed, J.).
14
Antieau, Downey & Roberts, supra, at 142. See also Howe, supra, at 10—12.
15
See, in particular, Antieau, Downey & Roberts, supra, at 126—128, 144—146, 207—208. And see 1 Annals of Cong. 730—731. It has elsewhere been observed, I think properly, that 'to treat (Madison's Remonstrance) as authoritatively incorporated in the First Amendment is to take grotesque liberties with the simple legislative process, and even more with the complex and diffuse process of ratification of an Amendment by three-fourths of the states.' Brown, Quis Custodiet Ipson Custodes?—The School-Prayer Cases, 1963 Sup.Ct.Rev. 1, 8.
16
I will of course grant that claims under, for example, the Tenth Amendment may present 'generalized grievances about the conduct of government or the allocation of power in the Federal System.' Ante, at 106. I will also grant that it would be well if such questions could be avoided by the federal courts. Unfortunately, I cannot see how these considerations are relevant under the Court's principal criterion, which I understand to be merely whether any given constitutional provision is, or is not, a limitation upon Congress' spending powers. It is difficult to see what there is in the fact that a constitutional provision is held to be such a limitation that could sensibly give the Court 'confidence' about the fashion in which a given plaintiff will present a given issue.
17
The bill was intended to establish 'a provision for teachers of the Christian religion.' It and the Memorial and Remonstrance are reprinted in Everson v. Board of Education, supra, 330 U.S. at 63—74, 67 S.Ct. at 534—539.
18
I have equal difficulty with the argument that the religious clauses of the First Amendment create a 'personal constitutional right,' held by all citizens, such that any citizen may, under those clauses, contest the constitutionality of federal expenditures. The essence of the argument would presumably be that freedom from establishment is a right that inheres in every citizen, thus any citizen should be permitted to challenge any measure that conceivably involves establishment. Certain provisions of the Constitution, so the argument would run, create the basic structure of our society and of its government, and accordingly should be enforceable at the demand of every individual. Unlike the position taken today by the Court, such a doctrine of standing would at least be internally consistent, but it would also threaten the proper functioning both of the federal courts and of the principle of separation of powers. The Establishment Clause is, after all, only one of many provisions of the Constitution that might be characterized in this fashion. Certain of these provisions, e.g., the Ninth and Tenth Amendments, would provide the basis for cases that, absent a standing question, could not readily be excluded from the federal courts as involving political questions, or as otherwise unsuitable for adjudication under the principles formulated for these purposes by the Court. Compare United Public Workers v. Mitchell, 330 U.S. 75, 94—96, 67 S.Ct. 556, 566—567, 91 L.Ed. 754; Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510. Indeed, it might even be urged that the Ninth and Tenth Amendments, since they are largely confirmatory of rights created elsewhere in the Constitution, were intended to declare the standing of individual citizens to contest the validity of governmental activities. It may, of course, also be argued that these amendments are merely 'tub(s) for the whale,' 1 W. Crosskey, Politics and the Constitution 688 (1953); but lacking such an argument, any doctrine of standing premised upon the generality or relative importance of a constitutional command would, I think, very substantially increase the number of situations in which individual citizens could present for adjudication 'generalized grievances about the conduct of government.' I take it that the Court, apart from my Brother DOUGLAS, and I are agreed that any such consequence would be exceedingly undesirable.
19
See 1 M. Farrant, The Records of the Federal Convention of 1787, at 21, 97—98, 108—110, 138—140 (1911); 2 Farrand, id., at 73—80.
20
The Federalist No. 82 (Hamilton).
21
My premises is, as I have suggested, that non-Hohfeldian plaintiffs as such are not excluded by Article III from the jurisdiction of the federal courts. The problem is therefore to determine in what situations their suits should be permitted, and not whether a 'statute constitutionally could authorize a person who shows no case or controversy to call on the courts * * *.' Scripps-Howard Radio v. Comm., 316 U.S. 4, at 21, 62 S.Ct. 875, at 885 (dissenting opinion). I do not, of course, suggest that Congress' power to authorize suits by specified classes of litigants is without constitutional limitation. This Court has recognized a panoply of restrictions upon the actions that may properly be brought in federal courts, or reviewed by this Court after decision in state courts. It is enough now to emphasize that I would not abrogate these restrictions in situations in which Congress has authorized a suit. The difficult case of Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246, does not require more. Whatever the other implications of that case, it is enough to note that there the United States, as statutory defendant, evidently had 'no interest adverse to the claimants.' Id., at 361, 31 S.Ct. at 255.
22
I am aware that there is a second category of cases in which the Court has entertained claims by non-Hohfeldian plaintiffs: suits brought by state or local taxpayers in state courts to vindicate federal constitutional claims. A certain anomaly may be thought to have resulted from the Court's consideration of such cases while it has refused similar suits bought by federal taxpayers in the federal courts. This anomaly, if such it is, will presumably continue even under the standing doctrine announced today, since we are not told that the standing rules will hereafter be identical for the two classes of taxpayers. Although these questions are not now before the Court, I think it appropriate to note that one possible solution would be to hold that standing to raise federal questions is itself a federal question. See Freund, in E. Cahn, Supreme Court and Supreme Law 35 (1954). This would demand partial reconsideration of, for example, Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475. Cf. United States v. Raines, 362 U.S. 17, 23, n. 3, 80 S.Ct. 519, 523, 4 L.Ed.2d 524; Cramp v. Board of Public Instruction, 368 U.S. 278, 282, 82 S.Ct. 275, 278, 7 L.Ed.2d 285; Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663.
23
This question was, however, extensively discussed in the course of the debates upon the Elementary and Secondary Education Act of 1965, 79 Stat. 27. See, e.g., 111 Cong.Rec. 5973, 6132, 7316—7318.
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