text
stringlengths 110
563k
| label
class label 13
classes |
|---|---|
394 U.S. 459
89 S.Ct. 1166
22 L.Ed.2d 418
William J. McCARTHY, Petitioner,v.UNITED STATES.
No. 43.
Argued Dec. 9, 1968.
Decided April 2, 1969.
Maurice J. McCarthy, Chicago, Ill., for petitioner.
James Van R. Springer, Washington, D.C., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This case involves the procedure that must be followed under Rule 11 of the Federal Rules of Criminal Procedure before a United States District Court may accept a guilty plea and the remedy for a failure to follow that procedure.
2
On April 1, 1966, petitioner was indicted on three counts in the United States District Court for the Northern District of Illinois for violating § 7201 of the Internal Revenue Code. He was charged with 'wilfully and knowingly' attempting to evade tax payments of $928.74 for 1959 (count 1), $5,143.70 for 1960 (count 2), and $1,207.12 for 1961 (count 3). At his arraignment two weeks later, petitioner, who was represented by retained counsel, pleaded not guilty to each count. The court scheduled his trial for June 30; but on June 29, it granted the Government's motion to postpone the trial because of petitioner's illness. The trial was rescheduled for July 15.
3
On that day, after informing the court that he had 'advised * * * (petitioner) of the consequences of a plea,' defense counsel moved to withdraw petitioner's plea of not guilty to count 2 and to enter a plea of guilty to that count. The District Judge asked petitioner if he desired to plead guilty and if he understood that such a plea waived his right to a jury trial and subjected him to imprisonment for as long as five years and to a fine as high as $10,000. Petitioner stated that he understood these consequences and wanted to plead guilty. The Government consented to this plea change and informed the court that if petitioner's plea of guilty to count 2 were accepted, the Government would move to dismiss counts 1 and 3. Before the plea was accepted, however, the prosecutor asked the judge to inquire whether it had been induced by any threats or promises. In response to the judge's inquiry, petitioner replied that his plea was not the product of either. He stated that it was entered of his 'own volition.' The court ordered a presentence investigation and continued the case to September 14, 1966.1
4
At the commencement of the sentencing hearing on September 14, petitioner asserted that his failure to pay taxes was 'not deliberate' and that they would have been paid if he had not been in poor health. The prosecutor stated that the 'prime consideration' for the Government's agreement to move to dismiss counts 1 and 3 was petitioner's promise to pay all taxes, penalties, and interest. The prosecutor then requested the court to refer expressly to this agreement. After noting that petitioner possessed sufficient attachable assets to meet these obligations, the court imposed a sentence of one year and a fine of $2,500. Petitioner's counsel immediately moved to suspend the sentence. He emphasized that petitioner, who was then 65 years of age, was in poor health and contended that his failure to pay his taxes had resulted from his 'neglectful' and inadvertent' method of bookkeeping during a period when he had been suffering from a very serious drinking problem. Consequently, asserted petitioner's counsel, 'there was never any disposition to deprive the United States of its due.' The judge, however, after indicating he had examined the presentence report, stated his opinion that 'the manner in which (petitioner's) books were kept was not inadvertent.' He declined, therefore, to suspend petitioner's sentence.2
5
On appeal to the United States Court of Appeals for the Seventh Circuit, petitioner argued that his plea should be set aside because it had been accepted in violation of Rule 11 of the Federal Rules of Criminal Procedure. Specifically, petitioner contended (1) that the District Court had accepted his plea 'without first addressing (him) * * * personally and determining that the plea (was) * * * made voluntarily with understanding of the nature of the charge * * *,'3 and (2) that the court had entered judgment without determining 'that there (was) * * * a factual basis for the plea.'4 In affirming petitioner's conviction,5 the Court of Appeals held that the District Judge had complied with Rule 11. The court implied that the Rule did not require the District Judge to address petitioner personally to determine if he understood the nature of the charge. The court also concluded that the colloquy at the sentencing hearing demonstrated that the judge had satisfied himself by an examination of the presentence report that the plea had a factual basis.6
6
Because of the importance of the proper construction of Rule 11 to the administration of criminal law in the federal court,7 and because of a conflict in the courts of appeals over the effect of a district court's failure to follow the provisions of the Rule,8 we granted certiorari. 390 U.S. 1038, 88 S.Ct. 1635, 20 L. d.2d 300 (1968). We agree with petitioner that the District Judge did not comply with Rule 11 in this case; and in reversing the Court of Appeals, we hold that a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11. This decision is based solely upon our construction of Rule 11 and is made pursuant to our supervisory power over the lower federal courts; we do not reach any of the constitutional arguments petitioner urges as additional grounds for reversal.
I.
7
Rule 11 expressly directs the district judge to inquire whether a defendant who pleads guilty understands the nature of the charge against him and whether he is aware of the consequences of his plea. At oral argument, however, counsel for the Government repeatedly conceded that the judge did not personally inquire whether petitioner understood the nature of the charge. At one point, counsel stated quite explicitly: 'The subject on which he (the District Judge) did not directly address the defendant, which is raised here, is the question of the defendant's understanding of the charges.' Nevertheless, the Government argues that since petitioner stated his desire to plead guilty, and since he was informed of the consequences of his plea, the District Court 'could properly assume that petitioner was entering that plea with a complete understanding of the charge against him.'9 (Emphasis added.) We cannot accept this argument, which completely ignores the two purposes of Rule 11 and the reasons for its recent amendment. First, although the procedure embodied in Rule 11 has not been held to be constitutionally mandated,10 it is designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary.11 Second, the Rule is intended to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination. Thus, the more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas.12
8
Prior to the 1966 amendment, however, not all district judges personally interrogated defendant before accepting their guilty pleas.13 With an awareness of the confusion over the Rule's requirements in this respect, the draftsmen amended it to add a provision 'expressly requir(ing) the court to address the defendant personally.'14 This clarification of the judge's responsibilities quite obviously furthers both of the Rule's purposes. By personally interrogating the defendant, not only will the judge be better able to ascertain the plea's voluntariness, but he also will develop a more complete record to support his determination in a subsequent post-conviction attack.
9
These two purposes have their genesis in the nature of a guilty plea. A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers.15 For this waiver to be valid under the Due Process Clause, it must be 'an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.16 Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.17
10
Thus, in addition to directing the judge to inquire into the defendant's understanding of the nature of the charge and the consequences of his plea, Rule 11 also requires the judge to satisfy himself that there is a factual basis for the plea. The judge must determine 'that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.'18 Requiring this examination of the relation between the law and the acts the defendant admits having committed is designed to 'protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.'19
11
To the extent that the district judge thus exposes the defendant's state of mind on the record through personal interrogation, he not only facilitates his own determination of a guilty plea's voluntariness, but he also facilitates that determination in any subsequent post-conviction proceeding based upon a claim that the plea was involuntary. Both of these goals are undermined in proportion to the degree the district judge resorts to 'assumptions' not based upon recorded responses to his i quiries. For this reason, we reject the Government's contention that Rule 11 can be complied with although the district judge does not personally inquire whether the defendant understood the nature of the charge.20
II.
12
Having decided that the Rule has not been complied with, we must also determine the effect of that noncompliance an issue that has engendered a sharp difference of opinion among the courts of appeals. In Heiden v. United States, 353 F.2d 53 (1965), the Court of Appeals for the Ninth Circuit held that when the district court does not comply fully with Rule 11 the defendant's guilty plea must be set aside and his case remanded for another hearing at which he may plead anew.21 Other courts of appeals, however, have consistently rejected this holding, either expressly22 or tacitly.23 Instead, they have adopted the approach urged by the Government, which is to place upon the Government the burden of demonstrating from the record of the Rule 11 hearing that the guilty plea was voluntarily entered with an understanding of the charge. See, e.g., Halliday v. United States, 380 F.2d 270 (C.A.1st Cir. 1967); Lane v. United States, 373 F.2d 570 (C.A.5th Cir. 1967).24 In these circuits, if voluntariness cannot be determined from the record, the case is remanded for an evidentiary hearing on that issue. See, e.g., Kennedy v. United States, 397 F.2d 16 (C.A.6th Cir. 1968); Halliday v. United States, supra.
13
We are persuaded that the Court of Appeals for the Ninth Circuit has adopted the better rule. From the defendant's perspective, the efficacy of shifting the burden of proof to the Government at a later voluntariness hearing is questionable. In meeting its burden, the Government will undoubtedly rely upon the defendant's statement that he desired to plead guilty and frequently a statement that the plea was not induced by any threats or promises. This prima facie case for voluntariness is likely to be treated as irrebuttable in cases such as this one, where the defendant's reply is limited to his own plaintive allegations that he did not understand the nature of the charge and therefore failed to assert a valid defense or to limit his guilty plea only to a lesser included offense. No matter how true these allegations may be, rarely, if ever, can a defendant corroborate them in a post-plea voluntariness hearing.
14
Rule 11 is designed to eliminate any need to resort to a later fact-finding proceeding 'in this highly subjective area.' Heiden v. United States, supra, 353 F.2d, at 55. The Rule 'contemplates that disputes as to the understanding of the defendant and the voluntariness of his action are to be eliminated at the outset * * *.' Ibid. As the Court of Appeals for the Sixth Circuit explained in discussing what it termed the 'persuasive rationale' of Heiden: 'When the ascertainment is subsequently made, greater uncertainty is bound to exist since in the resolution of disputed contentions problems of credibility and of reliability of memory cannot be avoided * * *.' Waddy v. Heer, 383 F.2d 789, 794 (6 Cir. 1967). There is no adequate substitute for demonstrating in the record at the time the plea is entered the defendant's understanding of the nature of the charge against him.
15
The wisdom of Rule 11's requirements and the difficulty of achieving its purposes through a post-conviction voluntariness hearing are particularly apparent in this case. Petitioner, who was 65 years old and in poor health at the time he entered his plea, had been suffering from a serious drinking problem during the time he allegedly evaded his taxes. He pleaded guilty to a crime that requires a 'knowing and willful' attempt to defraud the Government of its tax money;25 yet, throughout his sentencing hearing, he and his counsel insisted that his acts were merely 'neglectful,' 'inadvertent,' and committed without 'any disposition to deprive the United States of its due.' Remarks of this nature cast considerable doubt on the Government's assertion that petitioner pleaded guilty with full awareness of the nature of the charge. Nevertheless, confronted with petitioner's statement that he entered his plea of his 'own volition,' his counsel's statement that he explained the nature of the charges, and evidence that petitioner did owe the Government back taxes, both the District Court and the Court of Appeals concluded that petitioner's guilty plea was voluntary.
16
Despite petitioner's inability to convince the courts below that he did not fully understand the charge against him, it is certainly conceivable that he may have intended to acknowledge only that he in fact owed the Government the money it claimed without necessarily admitting that he committed the crime charged; for that crime requires the very type of specific intent that he repeatedly disavowed. See Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). Moreover, since the elements of the offense were not explained to petitioner, and since the specific acts of tax evasion do not appear of record, it is also possible that if petitioner had been adequately informed he would have concluded that he was actually guilty of one of two closely related lesser included offenses, which are mere misdemeanors.26
17
On the other hand, had the District Court scrupulously complied with Rule 11, there would be no need for such speculation. At the time the plea was entered, petitioner's own replies to the court's inquiries might we l have attested to his understanding of the essential elements of the crime charged, including the requirement of specific intent, and to his knowledge of the acts which formed the basis for the charge. Otherwise, it would be apparent to the court that the plea could not be accepted. Similarly, it follows that, if the record had been developed properly, and if it demonstrated that petitioner entered his plea freely and intelligently, his subsequent references to neglect and inadvertence could have been summarily dismissed as nothing more than overzealous supplications for leniency.
18
We thus conclude that prejudice inheres in a failure to comply with Rule 11, for noncompliance deprives the defendant of the Rule's procedural safeguards that are designed to facilitate a more accurate determination of the voluntariness of his plea. Our holding that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew not only will insure that every accused is afforded those procedural safeguards, but also will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate. It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.
19
We therefore reverse the judgment of the Court of Appeals for the Seventh Circuit and remand the case for proceedings consistent with this opinion. It is so ordered.
20
Judgment reversed and case remanded.
APPENDIX A TO OPINION OF THE COURT.
21
The relevant portion of the colloquy at the Rule 11 hearing on July 15 is as follows:
22
'Mr. Sokol (petitioner's counsel): * * * If the Court please, I have advised Mr. McCarthy of the consequences of a plea. At this time, in his behalf I would like to withdraw the plea of not guilty heretofore entered to Count 2, and enter a plea of guilty to Count 2. There are three Counts.
23
'The Court: Is that satisfactory to the government?
24
'Mr. Hughes (Government counsel): Satisfactory to the government, your Honor. The government will move to dismiss Counts 1 and 3.
25
'The Court: There will be a disposition in regard to the other Count?
26
'Mr. Sokol: He has just moved to dismiss Counts 1 and 3.
27
'The Court: Not until the plea is accepted and there is a judgment thereon.
28
'Mr. Hughes: Correct.
29
'The Court: This is tax evasion, five and ten?
30
'Mr. Hughes: Yes, your Honor, a maximum penalty of five years and $10,000.
31
'The Court: Mr. McCarthy, your lawyer tells me that you want to enter a plea of guilty to this second Count of this indictment; is that true?
32
'Defendant McCarthy: Yes, your Honor.
33
'The Court: You understand on your plea of guilty to the second Count of this indictment, you are waiving your right to a jury trial?
34
'Defendant McCarthy: Yes, your Honor.
35
'The Court: You understand on your plea of guilty you may be incarcerated for a term not to exceed five years?
36
'Defendant McCarthy: Yes, your Honor.
37
'The Court: You understand you may be fined in an amount not in excess of $10,000?
38
'Defendant McCarthy: Yes, your Honor.
39
'The Court: Knowing all that, you still persist in your plea of guilty?
40
'Defendant McCarthy: Yes, your Honor.
41
'The Court: The record will show that this defendant, after being advised of the consequences of his plea to Count 2 of this indictment, persists in his plea. The plea will be accepted. There will be a finding of guilty in the manner and form as charged in Count 2 of this indictment, judgment on that finding.
42
'Now, in regard to Counts 1 and 3? 'Mr. Hughes: Your Honor, the government will move to dismiss them. I would also request the Court to ask whether or not any promises or thre ts have been made.
43
'Mr. Sokol: No, no promises or threats.
44
'The Court: I am going to ask the defendant himself. Have any promises been made to you for entering a plea of guilty?
45
'Defendant McCarthy: No, your Honor.
46
'The Court: Has anybody threatened you that if you didn't enter a plea of guilty something would happen to you?
47
'Defendant McCarthy: I beg your pardon?
48
'The Court: Has anybody threatened you to enter a plea of guilty?
49
'Defendant McCarthy: That's right, of my own volition, your Honor.
50
'The Court: All right. Enter a pre-trial investigation order and continue the matter until the 14th day of September. Same bond may stand.'
APPENDIX B TO OPINION OF THE COURT.
51
The colloquy at the September 14 sentencing hearing included the following:
52
'Mr. Sokol (petitioner's counsel): * * * If the Court please, apart from the wrecking of his physical health that has attended a number of the problems that relate to the drinking in this case, this man has experienced a kind of punishment, self-inflicted, which almost is a categorical listing of how he flees, actually, and I use that word advisedly, flees from consequence to punishment to additional consequence. It is a sad thing when at the age of sixty-five a man who has been able to rear, with the help of his wife, a fine family, has to leave a legacy such as this. I submit to the Court that he needs no deterrent. I cannot imagine a man—apart from the conventional contrition, he has actively sought out help in order to overcome what has become a very, very serious physical and psychological problem.
53
'When I spoke with Mr. Sanculius (the probation officer), I knew that we had given to him some reference to the fact and some attestations of the the facts, that there had been a very, very serious psychological problem here.
54
'With respect to the tax case itself, he never took one single step to delude the investigating officer from the very, very start, and this was before Counsel was in the matter. He extended—in other words, he was open and he answered all questions readily.
55
'The Court: Yes, but his books were in such shape that it made it very difficult to—and that, in my opinion, was not inadvertent.
56
'Mr. Sokol: * * * When a man is neglectful and adopts a kind of a devious way of secreting himself from the government, that is one thing, and we are mindful they are kind of indicia of fraud. But where a man's pattern is neglect of not only something like this—he is sloppy with respect to that, but in gross, in gross, unaccountable, so to speak.
57
'There was no direct relationship to the consequences of taxation. Now, I would like to point out in that connection that when the investigation commenced it zeroed in, and very, very properly, there was a disclosure made from the very, very first that in the case of the Blue Cross check, the matter of depositing that in a second account actually had absolutely nothing whatever to do with the government. At that time he had been very, very deeply involved in a protracted drinking situation and had been in the hospital for several weeks. His family, in order to avoid the matter of him really needing somebody to lead him around by the nose said, and his wife said, 'You have to put yourself under the jurisdiction of your brother,' and there was some indication that he was supposed to deposit this and he would not have disposition over his own assets. They did not feel that he could look out for himself. He was oppressed, and there is no sense in going over how people become so. In this particular case with a history after sixty-five years of this kind of a situation, one can perhaps guess without going into Freudian terms he was oppressed, and in order to free himself—and this had nothing to do with the government—in order to free himself from what he felt was a trap situation where he, at the age of sixty-two or sixty-three was being treated like a little boy, he put it in a different bank account. But there was never any dis osition to deprive the United States of its due.
58
'He has never acted, actually, in what you would call normal consequence, because an interview with this man, even once, indicates that if he has—and it is like a little boy—if he has the consequence lying before him he says, 'Oh, yes.'
59
'Mr. Sokol: He did not act in contemplation of avoiding taxation. That was a natural consequence of what can best be described as gross neglect, and criminal neglect, if you please.
60
'I could not have, in good conscience, recommended that he go into a plea if I did not feel that neglect has become criminal when it reaches a certain stage. But this was not a part of any elaborate scheme or any devious course of conduct where he was acting in contemplation of a tax return that— 'The Court: It took place over a series of four years, didn't it, counsel?
61
'Mr. Sokol: No, your Honor, because, the real problem related to the matter of his avoiding the accountability not to his government but to the matter of the spending money.
62
'The Court: Well, I am sure that if the government had not stepped in, why, it would have lasted over a period of eight years.
63
'Mr. Sokol: No, he had already done this, apart from the fact that he had sought help with respect to the drinking, apart from the fact that he had sought help with respect to the psychiatric problem, and apart from the fact that he had already, so to speak, contained himself, he did, in addition, seek out the help of Mr. Abraham Angram, my associate counsel in the case, who was guiding him and he was on the right path. No, he had—I want to point out to the Court that this has occurred. This is fait accompli.'
64
Mr. Justice BLACK, concurring.
65
I concur, though not without some doubt, in the reversal of the judgment of conviction in this case. Rule 11 of the Federal Rules of Criminal Procedure requires that the trial judge personally address a defendant who pleads guilty in order to ascertain if he understands the nature of the crime of which he has pleaded guilty. In this case the trial judge did not personally address the defendant but seems to have accepted the statement of the defendant's lawyer that he had advised the petitioner of the consequences of a plea of guilty. I base my concurrence in the judgment not upon any 'supervisory power' of this Court, however, but exclusively on the failure of the judge to first address the defendant personally, as required by Rule 11.
1
The relevant portion of the colloquy at this hearing is quoted in Appendix A.
2
Defense counsel's account of petitioner's personal problems during the period he allegedly evaded his incomes taxes is quoted in Appendix B.
3
Fed.Rule Crim.Proc. 11.
4
Ibid. Both of these provisions were added by the 1966 amendment to Rule 11. The amendment became effective on July 1, 1966. It is italicized in the following quotation of the Rule:
'A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.'
5
387 F.2d 838 (C.A.7th Cir. 1968).
6
The Advisory Committee suggests three methods of determining that a factual basis exists for a guilty plea: (1) inquiring of the defendant; (2) inquiring of the prosecutor; (3) examining the presentence report. Fed.Rule Crim.Proc. 11, Notes of Advisory Committee on Criminal Rules.
7
During 1968 approximately 86% (22,055 out of 25,674) of all convictions obtained in the United States district courts were pursuant to a plea of guilty or its substantial equivalent, a plea of nolo contendere. 1968 Director of the Administrative Office of the United States Courts Ann.Rep. 261.
8
See nn. 22 and 23, infra.
9
The Government agrees with the Court of Appeals that the record of the September 14 sentencing hearing demonstrates that the District Judge satisfied himself by examining the presentence report that there was a factual basis for the plea. However, because of the Government's concession at oral argument that the judge did not inquire whether petitioner understood the nature of the charge, and because of our holding that any noncompliance with Rule 11 is reversible error, we need not consider the Government's contention that the record adequately supports the Court of Appeals' conclusion that the district judge satisfied himself that there was a factual basis for the plea.
10
See Waddy v. Heer, 383 F.2d 789 (C.A.6th Cir. 1967).
11
See, e.g., Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962); Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942).
12
See Stephens v. United States, 376 F.2d 23 (C.A.10th Cir.), cert. denied 389 U.S. 881, 88 S.Ct. 124, 19 L.Ed.2d 176 (1967); Rimanich v. United States, 357 F.2d 537 (C.A.5th Cir. 1966); Kadwell v. United States, 315 F.2d 667, 669 n. 6 (C.A.9th Cir. 1963); Orfield, Pleas in Federal Criminal Procedure, 35 Notre Dame Law. 1, 31—32 (1959).
Chief Judge Walter E. Hoffman of the United States District Court for he Eastern District of Virginia has stated than '(t)he multitude of questions presented by the arraignment and plea under Rules 10 and 11 furnish the most frequent basis for attack in the popular post-conviction remedy available to federal prisoners.' Hoffman, What Next in Federal Criminal Rules?, 21 Wash. & Lee L.Rev. 1, 8 (1964).
13
See Fed.Rule Crim.Proc. 11, Notes of Advisory Committee on Criminal Rules.
14
Ibid.
15
See L. Orfield, Criminal Procedure Under the Federal Rules § 11:12 (1966); A. Enker, Perspectives on Plea Bargaining, President's Comm'n on Law Enforcement and Administration of Justice, Task Force Report: The Courts, Appendix A, 116 (1967); Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U.Pa.L.Rev. 865, 871—872 (1964).
16
See n. 11, supra.
17
See D. Newman, Conviction, The Determination of Guilt or Innocence Without Trial 23 (1966); ABA Project on Minimum Standards for Criminal Justice: Standards Relating to Pleas of Guilty § 1.4(a), commentary (Tent.Draft 1967).
18
Fed.Rule Crim.Proc. 11, Notes of Advisory Committee on Criminal Rules.
19
Ibid.
20
The nature of the inquiry required by Rule 11 must necessarily vary from case to case, and, therefore, we do not establish any general guidelines other than those expressed in the Rule itself. As our discussion of the facts in this particular case suggests, however, where the charge encompasses lesser included offenses, personally addressing the defendant as to his understanding of the essential elements of the charge to which he pleads guilty would seem a necessary prerequisite to a determination that he understands the meaning of the charge. In all such inquiries, '(m)atters of reality, and not mere ritual, should be controlling.' Kennedy v. United States, 397 F.2d 16, 17 (C.A.6th Cir. 1968).
21
After two separate panels had applied Heiden retroactively without discussion in Geter v. United States, 353 F.2d 208 (1965), and Freeman v. United States, 350 F.2d 940, 943 (1965), in a subsequent en banc decision the Ninth Circuit held that it would not apply Heiden to cases in which the guilty plea was accepted before the date on which Heiden was decided. Castro v. United States, 396 F.2d 345 (C.A.9th Cir. 1968).
22
Kennedy v. United States, 397 F.2d 16 (C.A.6th Cir. 1968); Halliday v. United States, 380 F.2d 270 (C.A.1st Cir. 1967) ('at least with respect to (pre-amended) Rule 11'); Stephens v. United States, 376 F.2d 23 (C.A.10th Cir.), cert. denied, 389 U.S. 881, 88 S.Ct. 124, 19 L.Ed.2d 176 (1967); Brokaw v. United States, 368 F.2d 508 (C.A.4th Cir. 1966), cert. denied, 386 U.S. 996, 87 S.Ct. 1316, 18 L.Ed.2d 344 (1967) (at least where the defendant raises only the factual issues of voluntariness).
23
United States v. Del Piano, 386 F.2d 436 (C.A.3d Cir. 1967), cert. denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968); Lane v. United States, 373 F.2d 570 (C.A.5th Cir. 1967); United States v. Kincaid, 362 F.2d 939 (C.A.4th Cir. 1966); Bartlett v. United States, 354 F.2d 745 (C.A.8th Cir. 1966).
24
See 8 J. Moore, Federal Practice 11.03(1), at 11—22 (2d ed. 1968). But see United States ex rel. Irwin v. Pate, 357 F.2d 911 (C.A.7th Cir. 1966).
25
Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965).
26
Willfully filing a fraudulent or false return is a misdemeanor under § 7207 of the Internal Revenue Code, and willfully failing to pay taxes is a misdemeanor under § 7203 of the Code. The close interrelationship between these two offenses and the felony for which petitioner was convicted under § 7201 is explained in detail in Sansone.
| 01
|
394 U.S. 489
89 S.Ct. 1134
22 L.Ed.2d 442
John McMillan GREGG, Petitioner,v.UNITED STATES.
No. 453.
Argued Feb. 25, 1969.
Decided April 2, 1969.
Rehearing Denied May 19, 1969.
See 395 U.S. 917, 89 S.Ct. 1738.
Dean E. Richards, Indianapolis, Ind., for petitioner.
Sidney M. Glazer, Washington, D.C., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
One afternoon, petitioner and another man robbed the post office at Louisville, Kentucky, at gunpoint. Two women were in charge of the post office, which had just closed, and petitioner warned them: 'One flase move out of you, I'll blow your brains out.' They were then tied and gagged. A week later a bank in Indiana was robbed. Petitioner, found hiding in a motel closet with a pistol, and money orders stolen from the post office, was arrested for the bank robbery. After a one-day trial and 18 minutes of jury deliberation, petitioner was convicted of jeopardizing the lives of the postal custodians while robbing them.1 The offense carries a mandatory sentence of 25 years.
2
Immediately after the jury returned its verdict the jurors were polled and the judge, noting the mandatory 25-year sentence, invited petitioner and his lawyer to exercise the right of allocution. Both asked that petitioner be allowed to spend a few days with his family before commencing to serve the sentence. The judge refused, and counsel for petitioner asked that a presentence investigation be made. The judge interrupted:
3
'A pre-sentence investigation has been made. It is before me now, and I have read it. It shows a juvenile record. It shows in 1960 this defendant stole an automobile in violation of the Dyer Act and was given an indeterminate youth commitment sentence. He was paro ed in 1964. He was returned—no, he was paroled in '62, returned as a parole violator in '65 and was not released full time until May of last year.
4
'I am also informed that he was convicted of armed robbery in Yuma, Arizona, and given from seven to ten years. Several warrants are now pending against him for robbery with which he is charged.' Petitioner seeks a reversal of his conviction, asserting as his sole substantial argument that this record reveals that the trial judge had read the presentence report before the jury returned its verdict, in violation of Rule 32 of the Federal Rules of Criminal Procedure.2
5
Rule 32 is explicit. It asserts that the 'report shall not be submitted to the court * * * unless the defendant has pleaded guilty or has been found guilty.' This language clearly permits the preparation of a presentence report before guilty plea or conviction3 but it is equally clear that the report must not, under any circumstances, be 'submitted to the court' before the defendant pleads guilty or is convicted. Submission of the report to the court before that point constitutes error of the clearest kind.
6
Moreover, the rule must not be taken lightly. Presentence reports are documents which the rule does not make available to the defendant as a matter of right. There are no formal limitations on their contents, and they may rest on hearsay and contain information bearing no relation whatever to the crime with which the defendant is charged. To permit the ex parte introduction of this sort of material to the judge who will pronounce the defendant's guilt or innocence or who will preside over a jury trial would seriously contravene the rule's purpose of preventing possible prejudice from premature submission of the presentence report. No trial judge, therefore, should examine the report while the jury is delibe ating since he may be called upon to give further instructions or answer inquiries from the jury, in which event there would be the possibility of prejudice which Rule 32 intended to avoid. Although the judge may have that information at his disposal in order to give a defendant a sentence suited to his particular character and potential for rehabilitation, there is no reason for him to see the document until the occasion to sentence arises, and under the rule he must not do so.
7
However, on the facts of this case, it does not emerge with sufficient clarity that Rule 32 was violated, and we therefore affirm the judgment below. The trial judge did not state that he read the presentence report before the jury verdict was delivered, nor is there any direct evidence in this record that he did. Only a few minutes had elapsed between the delivery of the jury verdict and his statement that he had the report before him and had read it. But only a very short time was needed to read the well-organized five-page report, which was largely in widely spaced tabular form. It is entirely possible that the practice was followed of handing the report from the probation officer to the court just as the jury's verdict was delivered.
8
We also take note of the very special circumstances appearing in this case. Even if this record revealed that the judge had read the presentence report after the jury retired and before the return of the verdict, the judge could not have infected the jury with anything he learned from the report since there was no necessity or occasion for communicating with the jury once it began its deliberations, and the jury delivered its verdict immediately upon emerging from seclusion. Moreover, the judge had no discretion whatever in sentencing since the statute prescribed a 25-year sentence; and the only question before him was whether petitioner should be put on probation. Aside from the information about this particular crime which was developed at trial, the judge had had occasion to study a comprehensive psychiatric report on petitioner in determining his competence to stand trial. Every item of information to which the trial judge adverted in sentencing had been revealed to him in the psychiatric report. Moreover, the psychiatric report was three times as long as the presentence report, which was in every material respect a condensation of the psychiatric report. It must have been apparent at a glance to the trial judge that the presentence report contained no new information, and his decision to refuse probation was amply supported by what he had heard at trial and read in the psychiatric report alone. Since the brief presentence report came to the same conclusion on the basis of far less detailed information than the judge already had at his disposal, there was no occasion to study it.
9
We are unable to conclude from this record either that the presentence report was submitted to the court before the verdict was delivered, thus violating the letter of the rule, or that the handling of the presentence report raised any possibility of prejudice to petitioner's rights under Rule 32.
10
For these reasons, the judgment is affirmed.
11
Affirmed.
1
'Whoever assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years.' 18 U.S.C. § 2114.
2
'(a) Sentence.
'(1) Imposition of Sentence. Sentence shall be imposed without unreasonable delay. * * *
'(c) Presentence Investigation.
'(1) When Made. The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty.
'(2) Report. The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court. The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon. Any material disclosed to the defendant or his counsel shall also be disclosed to the attorney for the government.'
3
The history of the rule confirms this interpretation. The first Preliminary Draft of the rule would have required the consent of the defendant or his attorney to commence the investigation before the determination of guilt. Advisory Committee on Rules of Criminal Procedure, Fed.Rules Crim.Proc., Preliminary Draft 130, 133 (1943). The Second Preliminary Draft omitted this requirement and imposed no limitation on the time when the report could be made and submitted to the court. Advisory Committee on Rules of Criminal Procedure, Fed.Rules Crim.Proc., Second Preliminary Draft 126—128 (1944). The third and final draft, which was adopted as Rule 32, was evidently a compromise between those who opposed any time limitation, and those who preferred that the entire investigation be conducted after determination of guilt. See 5 L. Orfield, Criminal Procedure Under the Federal Rules § 32.2 (1967).
| 01
|
394 U.S. 542
89 S.Ct. 1234
22 L.Ed.2d 535
David I. WELLS, Appellant,v.Nelson A. ROCKEFELLER, as Governor of the State of New York, et al.
No. 238.
Argued Jan. 13, 1969.
Decided April 7, 1969.
Robert B. McKay, New York City, for appellant.
George D. Zuckerman, New York City, for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case was argued with Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519, which affirmed the judgment of a three-judge District Court declaring invalid Missouri's 1967 congressional districting statute. Before us ere is a judgment of a three-judge District Court for the Southern District of New York which sustained the validity of New York's 1968 congressional districting statute, N.Y.Laws 1968, c. 8, 281 F.Supp. 821 (1968). In 1967 that court had struck down an earlier districting statute apportioning New York's 41 congressional seats and had retained jurisdiction of the case pending action by the New York Legislature to redress the plan's deficiencies. The court recognized that a thorough revision of district lines might not be possible in time for the upcoming 1968 congressional election but concluded nevertheless that '(t)here are enough changes which can be superimposed on the present districts to cure the most flagrant inequalities.' 273 F.Supp. 984, 992, aff'd, 389 U.S. 421, 88 S.Ct. 578, 19 L.Ed.2d 651 (1967).
2
On February 28, 1968, a month and a half after the New York Legislature reconvened, the districting statute presently under attack was enacted. After a hearing, the three-judge court, on March 20, 1968, sustained the statute, stating that the districting plan afforded New York voters 'an opportunity to vote in the 1968 and 1970 elections on a basis of population equality within reasonably comparable districts.' 281 F.Supp., at 826. We noted probable jurisdiction. 393 U.S. 819, 89 S.Ct. 115, 21 L.Ed.2d 91 (1968). We reverse insofar as the judgment of the District Court sustains the plan for use in the 1970 congressional election.
3
Appellant levels two constitutional attacks against the statute: (1) that the statute violates the equal-population principle of Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), and (2) that the statute represents a systematic and intentional partisan gerrymander violating Art. I, § 2, of the Constitution and the Fourteenth Amendment. We do not reach, and intimate no view upon the merits of, the attack upon the statute as a constitutionally impermissible gerrymander. We hold that reversal of the District Court's judgment is compelled by our decision today in Kirkpatrick v. Preisler, supra, which elucidates the command of Wesberry that congressional districting meet the standard of equal representation for equal numbers of people as nearly as is practicable.
4
The District Court correctly held in its 1967 opinion that 'there is a burden on the proponent of any districting plan to justify deviations from equality.' 273 F.Supp., at 987. The District Court took no testimony on the question of justification at the hearing held to consider the 1968 statute. Recognizing that the statute, which was enacted with virtually no debate on its merits in either house of the New York Legislature, was the work of a Joint Legislative Committee, the court's 1968 opinion refers to the Report of the Joint Committee as the source of the justifications relied upon as sufficient to sustain the population disparities created by the plan. 281 F.Supp., at 823—824. We have been referred to the same source.
5
The Report recites that the Committee 'gave priority to the population totals in the several districts' as they appeared in the 1960 decennial census and that 'very limited consideration was given to population shifts within the State since 1960. The Report recites further that '(o)ther considerations were the geographical conformation of the area to be districted, the maintenance of county integrity, the facility by which the various Boards of Elections can 'tool up' for the forthcoming (1968) primary election, equality of population within the region, and equality of population throughout the state.' Interim Report of the Joint Legislative Committee on Reapportionment of N.Y. State Legislature (1968).
6
The heart of the scheme, however, lay in the decision to treat seven sections of the State as homogeneous regions and to divide each region into congressional districts of virtually identical population. Thirty-one of New York's 41 congressional districts were constructed on that principle. The remaining 10 istricts were composed of groupings of whole counties. A chart showing the population of each district under the 1968 statute appears in the Appendix to this opinion. The seven regions are: (a) Suffolk and Nassau Counties on Long Island with five districts having an average population of 393,391 and a maximum deviation from that average of 208; (b) Queens County with four districts having an average population of 434,672 and a maximum deviation from that average of 120; (c) Kings County plus a district made up of part of Kings and part of Queens, and a district made up of Richmond County and part of Kings, with seven districts having an average population of 417,171 and a maximum deviation from that average of 307; (d) New York and Bronx Counties with eight districts having an average population of 390,415 and a maximum deviation from that average of 496; (e) Westchester and Putnam Counties with two districts having an average population of 420,307 and a maximum deviation from that average of 161; (f) Wayne plus part of Monroe and the remainder of Monroe plus four other counties with two districts having an average population of 410,688 and a maximum deviation from that average of 256; and (g) Erie and Niagara Counties with three districts having an average population of 435,652 and a maximum deviation from that average of 228. The 10 remaining 'North country' districts were composed of groupings of whole counties.
7
It is clear that our decision in Kirkpatrick v. Preisler, supra, compels the conclusion that this scheme is unconstitutional. We there held, 394 U.S., at 531, 89 S.Ct., at 1239, that 'the command of Art. I, § 2, that States create congressional districts which provide equal representation for equal numbers of people permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.' The general command, of course, is to equalize population in all the districts of the State and is not satisfied by equalizing population only within defined sub-states. New York could not and does not claim that the legislature made a good-faith effort to achieve precise mathematical equality among its 41 congressional districts. Rather, New York tries to justify its scheme of constructing equal districts only within each of seven sub-states as a means to keep regions with distinct interests intact. But we made clear in Kirkpatrick that 'to accept population variances, large or small, in order to create districts with specific interest orientations is antithetical to the basic premise of the constitutional command to provide equal representation for equal numbers of people.' To accept a scheme such as New York's would permit groups of districts with defined interest orientations to be overrepresented at the expense of districts with different interest orientations. Equality of population among districts in a sub-state is not a justification for inequality among all the districts in the State.
8
Nor are the variations in the 'North country' districts justified by the fact that these districts are constructed of entire counties. Kirkpatrick v. Preisler, supra.
9
We appreciate that the decision of the District Court did not rest entirely on an appraisal of the merits of the New York plan. As noted earlier, when the three-judge District Court in 1967 held the then-existing districting plan unconstitutional, it recognized that the imminence of the 1968 election made redistricting an unrealistic possibility and therefore said only that '(t)here are enough changes which can be superimposed on the present districts to cure the most flagrant inequalities.' 273 F.Supp., at 992. On February 26, 1968, the New York Legislature enacted the plan before us. On March 20, 1968, the District Court approved the plan for both the 1968 and 1970 congressional elections. Since the 1968 primary election was only three months away on March 20, we cannot say that there was error in p rmitting the 1968 election to proceed under the plan despite its constitutional infirmities. See Kilgarlin v. Hill, 386 U.S. 120, 121, 87 S.Ct. 820, 821, 17 L.Ed.2d 771 (1967); Martin v. Bush, 376 U.S. 222, 223, 84 S.Ct. 709, 11 L.Ed.2d 656 (1964); Kirkpatrick v. Preisler, 390 U.S. 939, 88 S.Ct. 1053, 19 L.Ed.2d 1129 (1968). But ample time remains to promulgate a plan meeting constitutional standards before the election machinery must be set in motion for the 1970 election. We therefore reverse the judgment of the District Court insofar as it approved the plan for use in the 1970 election and remand the case for the entry of a new judgment consistent with this opinion.
10
It is so ordered.
11
Judgment of District Court reversed and case remanded.
12
APPENDIX.
13
POPULATION OF NEW YORK'S CONGRESSIONAL DISTRICTS UNDER 1968 PLAN.
14
C.D. Dev. % Description.
15
1 393,585 - 3.845 Part of Suffolk.
16
2 393,465 - 3.874 Part of Suffolk, Part of Nassau.
17
3 393,434 - 3.882 Part of Nassau.
18
4 393,183 - 3.943 Part of Nassau.
19
5 393,288 - 3.918 Part of Nassau.
20
6 434,615 + 6.178 Part of Queens.
21
7 434,750 + 6.212 Part of Queens.
22
8 434,552 + 6.163 Part of Queens.
23
9 434,770 + 6.217 Part of Queens.
24
10 417,122 + 1.905 Part of Queens, Part of Kings.
25
11 417,090 + 1.897 Part of Kings.
26
12 417,298 + 1.948 Part of Kings.
27
13 417,040 + 1.885 Part of Kings.
28
14 417,080 + 1.895 Part of Kings.
29
15 417,090 + 1.898 Part of Kings.
30
16 417,478 + 1.992 Richmond, Part of Kings.
31
17 390,742 - 4.540 Part of New York.
32
18 390,861 - 4.511 Part of New York.
33
19 390,023 - 4.715 Part of New York.
34
20 390,363 - 4.632 Part of New York.
35
21 390,552 - 4.586 Part of New York, Part of Bronx.
36
22 390,492 - 4.601 Part of Bronx.
37
23 390,228 - 4.665 Part of Bronx.
38
24 390,057 - 4.707 Part of Bronx.
39
25 420,146 + 2.644 Putnam, Part of Westchester.
40
26 420,467 + 2.722 Part of Westchester.
41
27 409,349 Rockland, Orange, Sullivan, Delaware.
42
28 396,122 - 3.225 Dutchess, Ulster, Columbia, Greene,
Schoharie.
43
29 425,822 + 4.031 Albany, Schenectady.
44
30 415,030 + 1.394 Rensselaer, Saratoga, Washington,
Warren, Fulton, Hamilton, Essex.
45
31 425,905 + 4.051 Clinton, St. Lawrence, Jefferson,
Lewis, Franklin, Oswego.
46
32 385,406 - 5.843 Oneida, Madison, Herkimer.
47
33 415,333 + 1.468 Chemung, Broome, Tioga, Tompkins.
48
34 423,028 + 3.348 Onondaga.
49
35 386,148 - 5.662 Ontario, Yates, Seneca, Cayuga,
Cortland, Chenango, Otsego, M'gomery.
50
36 410,943 + 0.396 Part of Monroe, Wayne.
51
37 410,432 + 0.271 Part of Monroe, Orleans, Genesee,
Wyoming, Livingston.
52
38 382,277 - 6.608 Chautaqua, Cattaraugus, Allegany,
Steuben, Schuyler.
53
39 435,393 + 6.369 Part of Erie.
54
40 435,684 + 6.440 Part of Erie, Niagara.
55
41 435,880 + 6.488 Part of Erie.
56
State Mean............................ 409,324
57
Largest District (41st C. D.)......... 435,880
58
Smallest District (38th C. D.)........ 382,277
59
Citizen Population Variance (largest district population
60
divided by the smallest district population). 1.139 to 1
61
Maximum Deviation above State Mean..... 6.488%
62
Maximum Deviation below State Mean..... 6.608%
63
Mr. Justice FORTAS, concurring.
64
I concur in the judgment of the Court and in its opinion except to the extent that the opinion relies upon the Court's opinion in the Missouri redistricting cases, Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519, which I have not joined for the reasons stated in my concurring opinion in those cases.
65
New York does not attempt to defend its plan as a good-faith effort to achieve districts of approximate equality. It argues that it devised a plan based upon the grouping of districts into regions. I agree with the majority that, for purposes of the congressional districting here involved, the State may not substantially or grossly disregard population or residence figures in order to recognize regional groupings within the State. See my dissent in Avery v. Midland County, 90 U.S. 474, 495, 88 S.Ct. 1114, 1126, 20
66
Mr. Justice HARLAN, with whom Mr. Justice STEWART joins, dissenting.
67
Whatever room remained under this Court's prior decisions for the free play of the political process in matters of reapportionment is now all but eliminated by today's Draconian judgments. Marching to the nonexistent 'command of Art. I, § 2' of the Constitution,1 the Court now transforms a political slogan into a constitutional absolute. Straight indeed is the path of the righteous legislator. Slide rule in hand, he must avoid all thought of county lines, local traditions, politics, history, and economics, so as to achieve the magic formula: one man, one vote.
68
As my Brothers WHITE and FORTAS demonstrate, insistence on mathematical perfection does not make sense even on its own terms. Census figures themselves are inexact; our mobile population rapidly renders them obsolete; large groups of ineligible voters are unevenly distributed throughout the State. Nevertheless, the Court refuses to permit any room for legislative common sense to compensate for Census Bureau inadequacies. If no 'scientific' data are available to justify a divergence from census figures, the Court holds that nothing can be done—'we mean to open no avenue for subterfuge.' Kirkpatrick v. Preisler, 394 U.S., at 535, 89 S.Ct., at 1231.
69
This all-pervasive distrust of the legislative process is completely alien to established notions of judicial review. See Butler v. Pennsylvania, 10 How. 402, 13 L.Ed. 472 (1851); Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942); Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Nor does it have precedent in the prior reapportionment decisions themselves. 'Reynolds v. Sims (377 U.S. 553, 84 S.Ct. 1362, 12 L.Ed.2d 506) recognized that mathematical exactness is not required in state apportionment plans. De minimis deviations are unavoidable * * *.' Swann v. Adams, 385 U.S. 440, 444, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967); see also Wesberry v. Sanders, 376 U.S. 1, 18, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964).2
70
Even more important, the Court's exclusive concentration upon arithmetic blinds it to the realities of the political process, as the Rockefeller case makes so clear. The fact of the matter is that the rule of absolute equality is perfectly compatible with 'gerrymandering' of the worst sort. A computer may grind out district lines which can totally frustrate the popular will on an overwhelming number of critical issues. The legislature must do more than satisfy one man, one vote; it must create a structure which will in fact as well as theory be responsive to the sentiments of the community On the record before us, however, there is absolutely no indication that the New York Legislature can satisfy this Court's demand for absolute equality and yet create a structure which will permit New York's multitude of political groups to have a fair chance at having their voices heard in Congress.
71
Even the appellant himself does not suggest that it is possible to create a proper apportionment plan which is at the same time consistent with the demands of perfect mathematical equality. The plan he advances contemplates a maximum deviation of 4.7% from the state average, which represents an improvement of only 1.9 percentage points on the State's 6.6% deviation. Moreover, under the State's plan, a majority of the congressional delegation can represent no less than 49.3% of the population. The appellant's scheme 'improves' this figure by 0.5%, increasing the number to 49.8% See Appellant's Appendix D. Perfection, however, is still 0.2% away.
72
Although the appellant's plan offers such marginal benefits of voting egalitarianism, and although the record contains no suggestion of any other plan which even arguably permits the coherent expression of the popular will, the Court rejects the legislature's considered proposal simply because it seeks to remain true to traditional county and regional lines. In doing so, the majority ignores the salutary warning to be found in Reynolds v. Sims, 377 U.S. 533, 578—579, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964): 'Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering.' Yet, today the Court condemns the legislature's approach because it 'permit(s) groups of districts with defined interest orientations to be over represented at the expense of districts with different interest orientations.' Wells v. Rockefeller, 394 U.S., at 546, 89 S.Ct., at 1237. Of course, all districting decisions inevitably involve choices between different interest groups. But as Reynolds recognized, legislatures prefer to follow traditional county and regional lines so that the demands of blatant partisanship will be tempered by the constraints of history and tradition. If the Court believes it has struck a blow today for fully responsive representative democracy, it is sorely mistaken. Even more than in the past, district lines are likely to be drawn to maximize the political advantage of the party temporarily dominant in public affairs.
73
We do not deal here with the hopelessly malapportioned legislature unwilling to set its own house in order. Rather, the question before us is whether the Constitution requires that mathematics be a substitute for common sense in the art of statecraft. As I do not think that the apportionment plans submitted by the States of New York and Missouri can properly be regarded as offensive to the requirement of equality imposed in Wesberry—a case whose constitutional reasoning I still find it impossible to swallow, but by whose dictate I consider myself bound—I dissent.
74
I would reverse the judgments of the District Court in the Missouri cases and affirm the decision of the District Court in the New York case.L.Ed.2d 45 (1968).
75
Mr. Justice WHITE, dissenting.
76
I have consistently joined the Court's opinions which establish as one of the ground rules for legislative districting that single member districts should be substantially equal in population. I would not now dissent if the Court's present judgments represented a measurable contribution to the ends whic I had thought the Court was pursuing in this area, or even if I thought the opinions not very useful but not harmful either. With all due respect, however, I am firmly convinced that the Court's new rulings are unduly rigid and unwarranted applications of the Equal Protection Clause which will unnecessarily involve the courts in the abrasive task of drawing district lines.
77
Accepting for constitutional purposes that a State may assign the task of apportioning its legislature or congressional delegation to the legislature itself, I would not quibble with the legislative judgment if variations between districts were acceptably small. And I would be willing to establish a population variation figure which if not exceeded would normally not call for judicial intervention. As a rule of thumb, a variation between the largest and the smallest district of no more than 10% to 15% would satisfy me, absent quite unusual circumstances not present in any of these cases. At the very least, at this trivial level, I would be willing to view state explanations of the variance with a more tolerant eye.
78
This would be far more reasonable than the Court's demand for an absolute but illusory equality or for an apportionment plan which approaches this goal so nearly that no other plan can be suggested which would come nearer. As Mr. Justice FORTAS demonstrates, the 1960 census figures were far from accurate when they were compiled by professional enumerators and statisticians bent on precision, in 1960. Massive growth and shifts in population since 1960 made the 1960 figures even more inaccurate by 1967. That is why a new census is taken every 10 years. When the Court finds a 3% variation from substantially inexact figures constitutionally impermissible it is losing perspective and sticking at a trifle.
79
It also seems arbitrary for the majority to discard the suggestion of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), that if a legislature seeks an apportionment plan which respects the boundaries of political subdivisions, some variations from absolute equality would be constitutionally permissible. Of course, Reynolds involved state legislative apportionment and took pains to say that there may be more leeway in that context. But the Court invokes Reynolds today and in no way distinguishes federal from state districting.
80
Reynolds noted that '(i)ndiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering.' 377 U.S., at 578—579, 84 S.Ct., at 1390. The Court nevertheless now rules that regard for these boundaries is no justification for districts which vary no more than 3% from the norm where another plan which may have no regard for district lines reduces the variation to an even smaller figure. I have similar objections to the Court's rejection of geographical compactness as an acceptable justification for minor variations among congressional districts. This rejection of the virtues of compactness will not be lost on those who would use congressional and legislative districting to bury their political opposition.
81
In reality, of course, districting is itself a gerrymandering in the sense that it represents a complex blend of political, economic, regional, and historical considerations. In terms of the gerrymander, the situation will not be much different if equality means what it literally says—a zero variation—rather than only 'substantial' equality which would countenance some variations among legislative districts. Either standard will prevent a minority of the population or a minority party from consistently controlling the state legislature or a congressional delegation, and both are powerful forces toward equalizing voter influence on legislative performance. In terms of effective representation for all voters there are only minuscule differences between the two standards. But neither rule can alone prevent de iberate partisan gerrymandering if that is considered an evil which the Fourteenth Amendment should attempt to proscribe.
82
Today's decisions on the one hand require precise adherence to admittedly inexact census figures, and on the other downgrade a restraint on a far greater potential threat to equality of representation, the gerrymander. Legislatures intent on minimizing the representation of selected political or racial groups are invited to ignore political boundaries and compact districts so long as they adhere to population equality among districts using standards which we know and they know are sometimes quite incorrect. I see little merit in such a confusion of priorities.
83
Moreover, today's decisions will lead to an unnecessary intrusion of the judiciary into legislative business. It would be one thing if absolute equality were possible. But, admittedly, it is not. The Court may be groping for a cleancut, per se rule which will minimize confrontations between courts and legislatures while also satisfying the Fourteenth Amendment. If so, the Court is wide of the mark. Today's results simply shift the area of dispute a few percentage points down the scale; the courts will now be engaged in quibbling disputes over such questions as whether a plan with a 1% variation is 'better' than one with a larger variation, say 1.1% or even 2%. If county and municipal boundaries are to be ignored, a computer can produce countless plans for absolute population equality, one differing very little from another, but each having its own very different political ramifications. Ultimately, the courts may be asked to decide whether some families in an apartment house should vote in one district and some in another, if that would come closer to the standard of apparent equality. Using the spacious language of the Equal Protection Clause to inject the courts into these minor squabbles is an unacceptable pre-emption of the legislative function. Not only will the Court's new rule necessarily precipitate a new round of congressional and legislative districting, but also I fear that in the long run the courts, rather than the legislatures or nonpartisan commissions, will be making most of the districting decisions in the several States. Since even at best, with compact and equal districts, the final boundary lines unavoidably have significant political repercussions, the courts should not draw district lines themselves unnecessarily. I therefore dissent.
1
See Wells v. Rockefeller, 394 U.S. 542, at 546, 89 S.Ct. 1234, at 1237, 22 L.Ed.2d 535; Kirkpatrick v. Preisler, 394 U.S. 526, at 531, 89 S.Ct. 1225 at 1229, 22 L.Ed.2d 519. I have discussed in my dissenting opinion in Wesberry v. Sanders, 376 U.S. 1, 20, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), the extraordinary historical leap involved in reading the straightforward constitutional provision that 'The House of Representatives shall be composed of Members chosen every second Year by the People of the several States * * *' as a command for equal districts.
2
While Wesberry cautions that 'it may not be possible to draw congressional districts with mathematical precision,' 376 U.S., at 18, 84 S.Ct., at 535, it did not attempt to delineate the extent to which the States may properly deviate from the 'ideal.'
| 12
|
394 U.S. 495
89 S.Ct. 1252
22 L.Ed.2d 495
FORTNER ENTERPRISES, INC., Petitioner,v.UNITED STATES STEEL CORP. et al.
No. 306.
Argued Jan. 23, 1969.
Decided April 7, 1969.
Kenneth L. Anderson, Louisville, Ky., for petitioner.
Macdonald Flinn, New York City, for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
This case raises a variety of questions concerning the proper standards to be applied by a United States district court in passing on a motion for summary judgment in a civil antitrust action. Petitioner, Fortner Enterprises, Inc., filed this suit seeking treble damages and an injunction against alleged violations of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2. The complaint charged that respondents, United States Steel Corp. and its wholly owned subsidiary, the United States Steel Homes Credit Corp., had engaged in a contract, combination, and conspiracy to restrain trade and to monopolize trade in the sale of prefabricated houses. It alleged that there was a continuing agreement between respondents 'to force corporations and individuals, including the plaintiff, as a condition to availing themselves of the services of United States Steel Homes Credit Corporation, to purchase at artificially high prices only United States Steel Homes * * *.' Specifically, petitioner claimed that in order to obtain loans totaling over $2,000,000 from the Credit Corp. for the purchase and development of certain land in the Louisville, Kentucky, area, it had been required to agree, as a condition of the loans, to erect a prefabricated house manufactured by U.S. Steel on each of the lots purchased with the loan proceeds. Petitioner claimed that the prefabricated materials were then supplied by U.S. Steel at unreasonably high prices and proved to be defective and unusable, thus requiring the expenditure of additional sums and delaying the completion date for the development. Petitioner sought treble damages for the profits thus lost, along with a decree enjoining respondents from enforcing the requirement of the loan agreement that petitioner use only houses manufactured by U.S. Steel.
2
After pretrial proceedings in which a number of affidavits and answers to interrogatories were filed, the District Court entered summary judgment for respondents, holding that petitioner's allegations had failed to raise any question of fact as to a possible violation of the antitrust laws, 293 F.Supp. 762. Noting that the agreement involved here was essentially a tying arrangement, under which the purchaser was required to take a tied product—here prefabricated homes—as a condition of being allowed to purchase the tying product—here credit, the District Judge held that petitioner had failed to establish the prerequisites of illegality under our tying cases, namely sufficient market power over the tying product and foreclosure of a substantial volume of commerce in the tied product. The Court of Appeals affirmed without opinion 6 Cir., 404 F.2d 936, and we granted certiorari, 393 U.S. 820, 89 S.Ct. 126, 21 L.Ed.2d 92 (1968). Since we find no basis for sustaining this summary judgment, we reverse and order that the case proceed to trial.
3
We agree with the District Court that the conduct challenged here primarily involves a tying arrangement of the traditional kind. The Credit Corp. sold its credit only on the condition that petitioner purchase a certain number of prefabricated houses from the Homes Division of U.S. Steel. Our cases have made clear that, at least when certain prerequisites are met, arrangements of this kind are illegal in and of themselves, and no specific showing of unreasonable competitive effect is required. The discussion in Northern Pacific R. Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), is dispositive of this question:
4
'(T)here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. * * *
5
'* * * Where (tying) conditions are successfully exacted competition on the merits with respect to the tied product is inevitably curbed. Indeed 'tying agreements serve hardly any purpose beyond the suppression of competition.' Standard Oil Co. of California v. United States, 337 U.S. 293, 305-306, 69 S.Ct. 1051, 1058, 93 L.Ed. 1371. They deny competitors free access to the market for the tied product, not because the party imposing the tying requirements has a better product or a lower price but because of his power or leverage in another market. At the same time buyers are forced to forego their free choice between competing products. For these reasons 'tying agreements fare harshly under the laws forbidding restraints of trade.' Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 606, 73 S.Ct. 872, 879, 97 L.Ed. 1277. They are unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a 'not insubstantial' amount of interstate commerce is affected. International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20.' (Footnote omitted.)
6
Despite its recognition of this strict standard, the District Court held that petitioner had not even made out a case for the jury. The court held that respondents did not have 'sufficient economic power' over credit, the tying product here, because although the Credit Corp.'s terms evidently made the loans uniquely attractive to petitioner, petitioner had not proved that the Credit Corp. enjoyed the same unique attractiveness or economic contr l with respect to buyers generally. The court also held that the amount of interstate commerce affected was 'insubstantial' because only a very small percentage of the land available for development in the area was foreclosed to competing sellers of prefabricated houses by the contract with petitioner. We think it plain that the District Court misunderstood the two controlling standards and misconceived the extent of its authority to evaluate the evidence in ruling on this motion for summary judgment.
7
A preliminary error that should not pass unnoticed is the District Court's assumption that the two prerequisites mentioned in Northern Pacific are standards that petitioner must meet in order to prevail on the merits. On the contrary, these standards are necessary only to bring into play the doctrine of per se illegality. Where the standards were found satisfied in Northern Pacific, and in International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947), this Court approved summary judgment against the defendants but by no means implied that inability to satisfy these standards would be fatal to a plaintiff's case. A plaintiff can still prevail on the merits whenever he can prove, on the basis of a more thorough examination of the purposes and effects of the practices involved, that the general standards of the Sherman Act have been violated. Accordingly, even if we could agree with the District Court that the Northern Pacific standards were not satisfied here, the summary judgment against petitioner still could not be entered without further examination of petitioner's general allegations that respondents conspired together for the purpose of restraining competition and acquiring a monopoly in the market for prefabricated houses. And such an examination could rarely justify summary judgment with respect to a claim of this kind, for as we said in Poller v. Columbia Broadcasting, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962):
8
'We believe that summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot. It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury which so long has been the hallmark of 'even handed justice." (Footnote omitted.)
9
We need not consider, however, whether petitioner is entitled to a trial on this more general theory, for it is clear that petitioner raised questions of fact which, if proved at trial, would bring this tying arrangement within the scope of the per se doctrine. The requirement that a 'not insubstantial' amount of commerce be involved makes no reference to the scope of any particular market or to the share of that market foreclosed by the tie, and hence we could not approve of the trial judge's conclusions on this issue even if we agreed that his definition of the relevant market was the proper one.1 An analysis of market shares might become relevant if it were alleged that an apparently small dollar-volume of business actually represented a substantial part of the sales for which competitors were bidding. But normally the controlling consideration is simply whether a total amount of business, substantial enough in terms of dollar-volume so as not to be merely de minimis, is foreclosed to competitors by the tie, for as we said in International Salt, it is 'unreasonable, per se, to foreclose competitors from any substantial market' by a tying arrangement, 332 U.S. at 396, 68 S.Ct. at 15.
10
The complaint and affidavits filed here leave no room for doubt that the volume of commerce allegedly foreclosed was substantial. It may be true, as respondents claim, that petitioner's annual purchases of houses from U.S. Steel under the tying arrangement never exceeded $190,000, while more than $500,000 in annual sales was involved in the tying arrangement held illegal in International Salt, but we cannot agree with respondents that a sum of almost $200,000 is paltry or 'insubstantial.' In any event, a narrow focus on the volume of commerce foreclosed by the particular contract or contracts in suit would not be appropriate in this context. As the special provision awarding treble damages to successful plaintiffs illustrates, Congress has encouraged private antitrust litigation not merely to compensate those who have been directly injured but also to vindicate the important public interest in free competition. See Perma Life Mufflers v. International Parts Corp., 392 U.S. 134, 138—139, 88 S.Ct. 1981, 1984, 20 L.Ed.2d 982 (1968). For purposes of determining whether the amount of commerce foreclosed is too insubstantial to warrant prohibition of the practice, therefore, the relevant figure is the total volume of sales tied by the sales policy under challenge, not the portion of this total accounted for by the particular plaintiff who brings suit. In International Salt the $500,000 total represented the volume of tied sales to all purchasers, and although this amount was directly involved because the case was brought by the Government against the practice generally, the case would have been no less worthy of judicial scrutiny if it had been brought by one individual purchaser who accounted for only a fraction of the $500,000 in tied sales. In the present case, the annual sales allegedly foreclosed by respondents' tying arrangements throughout the country totaled almost $4,000,000 in 1960, more than $2,800,000 in 1961, and almost $2,300,000 in 1962. These amounts could scarcely be regarded as insubstantial.
11
The standard of 'sufficient economic power' does not, as the District Court held, require that the defendant have a monopoly or even a dominant position throughout the market for the tying product. Our tie-in cases have made unmistakably clear that the economic power over the tying product can be sufficient even though the power falls far short of dominance and even though the power exists only with respect to some of the buyers in the market. See, e.g., International Salt; Northern Pacific; United States v. Loew's Inc., 371 U.S. 38, 83 S.Ct. 97, 9 L.Ed.2d 11 (1962). As we said in the Loew's case, 371 U.S. at 45, 83 S.Ct. at 102: 'Even absent a showing of market dominance, the crucial economic power may be inferred from the tying product's desirability to consumers or from uniqueness in its attributes.'
12
These decisions rejecting the need for proof of truly dominant power over the tying product have all been based on a recognition that because tying arrangements generally served no legitimate business purpose that cannot be achieved in some less restrictive way, the presence of any appreciable restraint on competition provides a sufficient reason for invalidating the tie. Such appreciable restraint results whenever the seller can exert some power over some of the buyers in the market, even if his power is not complete over them and over all other buyers in the market. In fact, complete dominance throughout the market, the concept that the District Court apparently had in mind, would never exist even under a pure monopoly. Market power is usually stated to be the ability of a single seller to raise price and restrict output, for reduced output is the almost inevitable result of higher prices. Even a complete monopolist can seldom raise his price without losing some sales; many buyers will cease to buy the product, or buy less, as the price rises. Market power is therefore a source of serious concern for essentially the same reason, regardless of whether the seller has the greatest economic power possible or merely some lesser degree of appreciable economic power. In both instances, despite the freedom of some or many buyers from the seller's power, other buyers—whether few or many, whether scattered throughout the market or part of some group within the market—can be forced to accept the higher price because of their stronger preferences for the product, and the seller could therefore choose instead to force them to accept a tying arrangement that would prevent free competition for their patronage in the market for the tied product. Accordingly, the proper focus of concern is whether the seller has the power to raise prices, or impose other burdensome terms such as a tie-in, with respect to any appreciable number of buyers within the market.
13
The affidavits put forward by petitioner clearly entitle it to its day in court under the standard. The construction company president stated that competitors of U.S. Steel sold prefabricated houses and built conventional homes for at least $400 less than U.S. Steel's price for comparable models. Since in a freely competitive situation buyers would not accept a tying arrangement obligating them to buy a tied product at a price higher than the going market rate, this substantial price differential with respect to the tied product (prefabricated houses) in itself may suggest that respondents had some special economic power in the credit market. In addition, petitioner's president, A. B. Fortner, stated that he accepted the tying condition on respondents' loan solely because the offer to provide 100% financing, lending an amount equal to the full purchase price of the land to be acquired, was unusually and uniquely advantageous to him. He found that no such financing was available to his corporation on any such cheap terms from any other source during the 1959—1962 period. His views on this were supported by the president of a finance company in the Louisville area, who stated in an affidavit that the type of advantageous financing plan offered by U.S. Steel 'was not available to Fortner Enterprises or any other potential borrower from or through Louisville Mortgage Service Company or from or through any other lending institution or mortgage company to this affiant's knowledge during this period.'
14
We do not mean to accept petitioner's apparent argument that market power can be inferred simply because the kind of financing terms offered by a lending company are 'unique and unusual.' We do mean, however, that uniquely and unusually advantageous terms can reflect a creditor's unique economic advantages over his competitors.2 Since summary judgment in antitrust cases is disfavored, Poller, supra, the claims of uniqueness in this case should be read in the light most favorable to petitioner. They could well mean that U.S. Steel's subsidiary Credit Corp. had a unique economic ability to provide 100% financing at cheap rates. The affidavits show that for a three-to-four-year period no other financial institution in the Louisville area was willing to match the special credit terms and rates of interest available from U.S. Steel. Since the possibility of a decline in property values, along with the difficulty of recovering full market value in a foreclosure sale, makes it desirable for a creditor to obtain collateral greater in value than the loan it secures, the unwillingness of competing financial institutions in the area to offer 100% financing probably reflects their feeling that they could not profitably lend money on the risks involved. U.S. Steel's subsidiary Credit Corp., on the other hand, may well have had a substantial competitive advantage in providing this type of financing because of economies resulting from the nationwide character of its operations. In addition, potential competitors such as banks and savings and loan associations may have been prohibited from offering 100% financing by state or federal law.3 Under these circumstances the pleadings and affidavits sufficiently disclose the possibility of market power over borrowers in the credit market to entitle petitioner to go to trial on this issue.
15
It may also be, of course, that these allegations will not be sustained when the case goes to trial. It may turn out that the arrangement involved here serves legitimate business purposes and that U.S. Steel's subsidiary does not have a competitive advantage in the credit market. But on the record before us it would be impossible to reach such conclusions as a matter of law, and it is not our function to speculate as to the ultimate findings of fact. We therefore conclude that the showing made by petitioner was sufficient on the market power issue.
16
Brief consideration should also be given to respondents' additional argument that even if their unique kind of financing reflected economic power in the credit market, and even if a substantial volume of commerce was affected, the arrangement involving credit should not be held illegal under normal tie-in principles. In support of this, respondents suggest that every sale on credit in effect involves a tie. They argue that the offering of favorable credit terms is simply a form of price competition equivalent to the offering of a comparable reduction in the cash price of the tied product. Consumers should not, they say, be deprived of such advantageous services, and they suffer no harm because they can buy the tangible product with credit obtained elsewhere if the combined price of the seller's credit-product package is less favorable than the cost of purchasing the components separately.
17
All of respondents' arguments amount essentially to the same claim—namely, that this opinion will somehow prevent those who manufacture goods from ever selling them on credit. But our holding in this case will have no such effect. There is, at the outset of every tie-in case, including the familiar cases involving physical goods, the problem of determining whether two separate products are in fact involved. In the usual sale on credit the seller, a single individual or corporation, simply makes an agreement determining when and how much he will be paid for his product. In such a sale the credit may constitute such an inseparable part of the purchase price for the item that the entire transaction could be considered to involve only a single product. It will be time enough to pass on the issue of credit sales when a case involving it actually arises. Sales such as that are a far cry from the arrangement involved here, where the credit is provided by one corporation on condition that a product be purchased from a separate corporation,4 and where the borrower contracts to obtain a large sum of money over and above that needed to pay the seller for the physical produ ts purchased. Whatever the standards for determining exactly when a transaction involves only a 'single product,' we cannot see how an arrangement such as that present in this case could ever be said to involve only a single product.
18
Nor does anything in respondents' arguments serve to distinguish credit from other kinds of goods and services, all of which may, when used as tying products, extend the seller's economic power to new markets and foreclose competition in the tied product. The asserted business justifications for a tie of credit are not essentially different from the justifications that can be advanced when the tying product is some other service or commodity. Although advantageous credit terms may be viewed as a form of price competition in the tied product, so is the offer of any other tying product on advantageous terms. In both instances, the seller can achieve his alleged purpose, without extending his economic power, by simply reducing the price of the tied product itself.5
19
The potential harm is also essentially the same when the tying product is credit. The buyer may have the choice of buying the tangible commodity separately, but as in other cases the seller can use his power over the tying product to win customers that would otherwise have constituted a market available to competing producers of the tied product. '(C)ompetition on the merits with respect to the tied product is inevitably curbed.' Northern Pacific, 356 U.S. at 6, 78 S.Ct. at 518, 2 L.Ed.2d 545. Nor can it be assumed that because the product involved is money needed to finance a purchase, the buyer would not have been able to purchase from anyone else without the seller's attractive credit. A buyer might have a strong preference for a seller's credit because it would eliminate the need for him to lay out personal funds, borrow from relatives, put up additional collateral, or obtain guarantors, but any of these expedients might have been chosen to finance a purchase from a competing producer if the seller had not captured the sale by means of his tying arrangement.
20
In addition, barriers to entry in the market for the tied product are raised since, in order to sell to certain buyers, a new company not only must be able to manufacture the tied product but also must have sufficient financial strength to offer credit comparable to that provided by larger competitors under tying arrangements. If the larger companies have achieved economies of scale in their credit operations, they can of course exploit these economies legitimately by lowering their credit charges to consumers who purchase credit only, but economies in financing should not, any more than economies in other lines of business, be used to exert economic power over other products that the company produces no more efficiently than its competitors.
21
For all these reasons we can find no basis for treating credit differently in principle from other goods and services. Although money is a fungible commodity—like wheat or, for that matter, unfinished steel—credit markets, like other markets, are often imperfect, and it is easy to see how a big company with vast sums of money in its treasury could wield very substantial power in a credit market. Where this is true, tie-ins involving credit can cause all the evils that the antitrust laws have always been intended to prevent, crippling other companies that are equally, if not more, efficient in producing their own products. Therefore, the same inquiries must be made as to economic power over the tying product and substantial effect in the tied market, but where these factors are present no special treatment can be justified solely because credit, rather than some other product, is the source of the tying leverage used to restrain competition.
22
The judgment of the Court of Appeals is reversed, and the case is remanded with directions to let this suit proceed to trial.
23
Reversed and remanded.
24
Mr. Justice WHITE, with whom Mr. Justice HARLAN joins, dissenting.
25
The judicially developed proscription of certain kinds of tying arrangements has been commonly understood to be this: an antitrust defendant who ties the availability of one product to the purchase of another violates § 1 of the Sherman Act if he both has sufficient market power in the tying product and affects a substantial quantity of commerce in the tied product. This case further defines the degree of market power which is sufficient to invoke the tying rule. Prior cases provide some guidance but are not dispositive. Admittedly, monopoly power or dominance in the tying market, Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 608-611, 73 S.Ct. 872, 97 L.Ed. 1277 (1953), is not necessary; it is enough if there is 'sufficient economic power to impose an appreciable restraint on free competition in the tied product,' Northern Pacific R. Co. v. United States, 356 U.S. 1, 11, 78 S.Ct. 514, 521, 2 L.Ed.2d 545 (1958). The Court indicated in United States v. Loew's Inc., 371 U.S. 38, 45, 83 S.Ct. 97, 102, 9 L.Ed.2d 11 (1962), that this could be inferred from 'the tying product's desirability to consumers or from uniqueness in its attributes.'
26
The Court does not purport to abandon the general rule that some market power in the tying product is essential to a § 1 violation. But it applies the rule to permit proscription of a seller's extension of favorable credit terms conditioned on the purchase of an agreed quantity of the seller's product without any offer of proof that the seller has any market power in the credit market itself. Although the credit extended was for the purchase and development of land on which the purchased houses were to be built, the Court's logic dictates the same result if unusually attractive credit terms had been offered simply for the purchase of the houses themselves. Proscription of the sale of goods on easy credit terms as an illegal tie without proof of market power in credit not only departs from established doctrine but also in my view should not be outlawed as per se illegal under the Sherman Act. Provision of favorable credit terms may be nothing more or less than vigorous competition in the tied product, on a basis very nearly approaching the price competition which it has always been the policy of the Sherman Act to encourage. Moreover, it is far from clear that, absent power in the credit market, credit financing of purchases should be regarded as a tie of two distinct products any more than a commodity should be viewed as tied to its own price. Since provision of credit by sellers may facilitate competition, since it may provide essential risk or working capital to entrepreneurs or businessmen, and since the logic of the majority's opinion does away in practice with the requirement of showing market power in the tying product while retaining that requirement in form, the majority's per se rule is inappropriate. I dissent.
27
In this case there is no offer to prove monopoly or dominance in the tying product—money. And in no sense is the money provided to petitioner unique, even though the terms on which it was furnished and was to be repaid may have been advantageous, and indeed the money itself available from no other source on equally good terms. United States Steel was principally interested in the sale of houses, and petitioner in the economical development of its housing project. Before concluding that the financing arrangements on hich U.S. Steel sold its houses amounted to anything more than a price reduction on the houses, or that easy financing terms show that their provider has market power in the money market, the Court should have in mind the rationale on which the illegality of tying arrangements is based.
28
There is general agreement in the cases1 and among commentators2 that the fundamental restraint against which the tying proscription is meant to guard is the use of power over one product to attain power over another, or otherwise to distort freedom of trade and competition in the second product. This distortion injures the buyers of the second product, who because of their preference for the seller's brand of the first are artificially forced to make a less than optimal choice in the second. And even if the customer is indifferent among brands of the second product and therefore loses nothing by agreeing to use the seller's brand of the second in order to get his brand of the first,3 such tying agreements may work significant restraints on competition in the tied product. The tying seller may be working toward a monopoly position in the tied product4 and, even if he is not, the practice of tying forecloses other sellers of the tied product and makes it more difficult for new firms to enter that market. They must be prepared not only to match existing sellers of the tied product in price and quality, but to offset the attraction of the tying product itself. Even if this is possible through simultaneous entry into production of the tying product, entry into both markets is significantly more expensive than simple entry into the tied market, and shifting buying habits in the tied product is considerably more cumbersome and less responsive to variations in competitive offers.5 In addition to these anticompetitive effects in the tied product, tying arrangements may be used to evade price control in the tying product through clandestine transfer of the profit to the tied product;6 they may be used as a counting device to effect price discrimination;7 and they may be used to force a full line of products on the customer8 so as to extract more easily from him a monopoly return on one unique product in the line.9
29
All of these distortions depend upon the existence of some market power in the tying product quite apart from any relationship which it might bear to the tied product. In this case, what proof of any market power in the tying product has been alleged? Only that the tying product—money—was not available elsewhere on equally good terms, and perhaps not at all. Let us consider these possibilities in turn.
30
First, if enough money to proceed was available elsewhere and U.S. Steel was simply offering credit at a lower price, in terms of risk of loss, repayment terms, and interest rate, surely this does not establish that U.S. Steel had market power by any measure in the money market. There was nothing unique about U.S. Steel's money except its low cost to petitioner. A low price on a product is ordinarily no reflection of market power. It proves neither the existence of such power nor its absence, although absence of power may be the more reasonable inference. One who has such power benefits from it precisely because it allows him to raise prices, not lower them, and ordinarily he does so.
31
A low price in the tying product—money, the most fungible item of trade since it is by definition an economic counter—is especially poor proof of market power when untied credit is available elsewhere. In this case, the low price of credit is functionally equivalent to a reduction in the price of the houses sold. Since the buyer has untied credit available elsewhere, he can compare the houses-credit package of U.S. Steel as competitive with the price of the united credit plus the cost of houses from another source. By cutting the price of his houses, a competitor of U.S. Steel can compete with U.S. Steel houses on equal terms since U.S. Steel's money is no more desirable to the purchaser than money from another source except in point of price. The same money which U.S. Steel is willing to risk or forgo by providing better credit terms it could sacrifice by cutting the price of houses. There is no good reason why U.S. Steel should always be required to make the price cut in one form rather than another, which its purchaser prefers.
32
Provision of credit financing by the seller of a commodity to its buyer is a very common event in the American economy. Often the seller is not willing to supply credit generally for the business and personal needs of the public at large, but restricts his credit to the purchasers of the commodity which he is principally in the business of selling. In all such cases, the commodity may be viewed as tied to the credit. In all such cases, the money itself is no more desirable form one source than from another. But in all such cases, under the majority opinion, the mere fact that the credit is offered on uniquely advantageous terms makes the transaction a per se violation of § 1 of the Sherman Act. And so long as the buyer has chosen to accept the seller's credit terms over any other available to him, the buyer, like petitioner here, must have viewed them as uniquely advantageous to him. The logic of the majority opinion, then, casts great doubt on credit financing by sellers. I would not proscribe credit financing by sellers who had no independently demonstrable power in the credit market. Unlike the majority, I am unable to read petitioner's affidavits, the fruit of years of pretrial discovery, to offer any independent proof whatever of such market power.10
33
Second, adopting the other assumption, that sufficient credit to go forward with the enterprise was simply unavailable to petitioner from any other source at all, the result in this case is even worse. Were it not for the credit extended by U.S. Steel, petitioner would have been unable to carry out its development. U.S. Steel would not have foreclosed anyone from selling houses to petitioner since no one would have sold any houses to petitioner. A seller who is willing to take credit risks which no one else finds acceptable is simply engaging in the hard and risky competition which it is the policy of the Sherman Act to encourage. And if he may not do so, then those business and entrepreneurs who depend for their survival and growth or for the initiation of new enterprises on the availability of credit financing from sellers may well fail for lack of credit availability from other sources. Of course, if the credit was unavailable elsewhere because U.S. Steel was a monopolist of credit in a relevant market—which petitioner does not assert—the tie would be illegal. But here it was evidently unavailable elsewhere simply because others were not willing to match U.S. Steel's r latively low price for acceptance of high risk.
34
Neither petitioner nor the Court asserts that under prior antitrust doctrine U.S. Steel would have violated § 1 of the Sherman Act or § 3 of the Clayton Act11 if it had simply contracted to supply all the houses Fortner required to develop the particular tract of land involved here—a requirements contract for the development—even if the price for the houses was particularly advantageous. What triggers the application of the antitrust laws is the asserted tying arrangement, the sale of one product conditioned on the purchase of another. And it is not all tying transactions in general but only those where leverage in one market has been used to distort another which so far have been held illegal restraints of trade. The basis for the rule is clear where the seller is dominant in the tying product market, where the product is patented, or where it is in short supply. In these cases the restraint on competitors in the tied product as well as on buyers of the tying product is reasonably apparent. But I question that buyers' acceptance of the tie-in—the simple fact that there are customers—will always suffice to prove market power in the tying product. Where the seller exercises no market power in the tying item but buyers prefer the tie-in because the seller offers the tying product on favorable terms—where the price is unusually low or where the seller gives the product away conditioned on buying other merchandise—the seller in effect is merely competing in the tied product market. Buyers are not burdened. They may buy both tied and tying products elsewhere on normal terms. Nor are the seller's competitors restrained. The economic advantage of the tie-in to buyers can be matched by other sellers of the tied product by offering lower prices on that product. Promotional tie-ins effected by underpricing the tying product do not themselves prove there is any market power to exercise in that product market, unless the economic resources to withstand lower profit margins and the willingness to compete in this manner are themselves suspect. If they are, however, they should as surely taint and muffle hard price competition in the tied market itself, a result which, short of a § 2 violation, it would be difficult to reach under the Sherman Act.
35
I cannot join such a complete evisceration of the requirement that market power in the tying product be shown before a tie-in becomes illegal under § 1. Certainly it is unnecessary to erect a § 1 per se ban on promotional tie-ins in order to protect the tied product market. If the resulting exclusion of competitors is of sufficient significance to threaten competition in that market, the transaction may be reached as a requirements contract under § 3 of the Clayton Act.12 If the promotional tie is in effect price discrimination, that too can be examined under statutes designed for that purpose.13 Moreover, the transaction could be dealt with as an unfair method of competition under § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. § 45. For example, in Hastings Mfg. Co. v. FTC, 153 F.2d 253 (C.A.6th Cir.), cert. denied, 328 U.S. 853, 66 S.Ct. 1344, 90 L.Ed. 1626 (1946), it was, inter alia, held an unfair method of competition for a seller of piston rings, ranking sixth or seventh in the industry, to attempt to obtain exclusive dealers or preferential dealers by guaranteeing profits to the dealers and making loans to them, tied to the purchase of the piston rings. Relying on the expertise of the FTC and the precedents of this Court, the Court of Appeals concluded that although it 'is not illegal for a manufacturer to finance his retail outlets,' 153 F.2d, at 257 (a proposition called into question by today's decision) tying this to exclusive or preferential dealing was an unfair method of competition.
36
The principal evil at which the proscription of tying aims is the use of power in one market to acquire power in, or otherwise distort, a second market. This evil simply does not exist if there is no power in the first market. The first market here is money, a completely fungible item. I would not apply a per se rule here without independent proof of market power. Cutting prices in the credit market is more likely to reflect a competitive attempt to offset the market power of others in the tied product than it is to reflect existing market power in the credit market. Those with real power do not offer uniquely advantageous deals to their customers; they raise prices.
37
This is not, of course, to say that if market power were proved in the tying product the per se rule would be inapplicable, or that it is necessarily impossible to prove market power in the credit market. There may be so few suppliers of credit in a certain relevant market, for example, that they have the power among them to manipulate the price and terms of credit, not necessarily by conspiracy, but by parallel behavior. Through proof that such a situation existed, or through proof of some other sort, an antitrust plaintiff might be able to show market power in the credit market, and if this were coupled with a tie I would consider the arrangement per se illegal under conventional antitrust doctrine. However, I do not consider petitioner's allegations that U.S. Steel lowered its price of credit sufficient to establish market power in credit and I can find no offer by petitioner of the necessary supplementary proof.
38
Mr. Justice FORTAS, with whom Mr. Justice STEWART joins, dissenting.
39
I share my Brother WHITE'S inability to agree with the majority in this case, and, in general, I subscribe to his opinion. I add this separate statement of the reasons for my dissent.
40
The facts of this case are materially different from any tying case that this Court has heretofore decided. The tying doctrine originated in situations where the seller of product. A offers it for sale only on the condition that the buyer also agree to buy product B from the seller. In International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947), for example, the company leased its patented machines on the condition that the lessee agree to use only International's salt products in the machines. In Northern Pacific R. Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958), the railroad leased land from its vast holdings on condition that the lessee accept 'preferential routing' clauses compelling the lessee to ship on the railroad's lines all commodities produced or manufactured on the land unless another railroad offered more favorable terms.
41
Although the tying doctrine originated under the specific language of § 3 of the Clayton Act Northern Pacific was necessarily a Sherman Act case, because the Clayton Act provision applies only to 'goods, wares, merchandise, machinery, supplies, or other commodities,' and not to land. But Northern Pacific, in effect, applied the same standards to tying arrangements under the Sherman Act as under the Clayton Act, on the theory that the anticompetitive effect of a tie-in was such as to make the difference in language in the two statutes immaterial. The present case, like Northern Pacific, is also exclusively a Sherman Act proceeding. But, here, U.S. Steel is not selling or leasing land subject to an agreement that its prefabricated houses be used thereon. If these were the facts, and if U.S. Steel controlled enough land within an economically demarcated area or 'market,' however defined, the case might well be governed by Northern Pacific. But, here, U.S. Steel is not selling or providing land. It is selling prefabricated steel houses to be erected in a subdivision and it is providing financing for the land acquisition, improvement, development, and erection costs. Most of the financing is related not to the land cost but to the purchase and installation of the houses.
42
U.S. Steel neither owned not controlled any of the land involved in the venture. On the contrary, the building lots constituting the subdivision on which the houses were to be built were owned by another company of which the principal owner was Mr. Fortner, who owned the petitioner. Nor is U.S. Steel selling credit in any general sense. The financing which it agrees to provide is solely and entirely ancillary to its sale of houses. Under contract terms of a familiar sort in subdivision development, the credit advances are geared to progressive stages of the subdivision development and the purchase, erection, and resale of the houses.
43
U.S. Steel approached the petitioner seeking to sell it prefabricated steel houses to be erected on the land which Mr. Fortner's other company owned. In October 1960, after lengthy discussions, U.S. Steel offered, through its Credit Corporation, to lend petitioner about $2,000,000. This sum was to be secured by mortgages on the lots. The mortgage notes carried 6% interest, and petitioner also agreed to pay a 'Service Fee' of 1/2 of 1% of the principal amount of the notes. Provisions were made to insure that the funds would be progressively advanced and used for land acquisition (from Mr. Fortner's other company), for development and improvement of the area preparatory to construction, and for the purchase and erection of the houses themselves. Petitioner was obligated to erect on each lot a prefabricated house manufactured by U.S. Steel. Of the total of about $2,000,000 to be advanced, $1,700,000 was to be disbursed against purchase and installation of the houses from U.S. Steel and the balance for land acquisition and development.
44
The Court holds that this was a 'tying' agreement, and that, therefore, the extraordinarily onerous incidents of per se illegality which this Court has attached to 'tying' agreements must apply here as well.
45
I cannot agree. This is a sale of a single product with the incidental provision of financing. It is not a sale of one product on condition that the buyer will not deal with competitors for another product or will buy the other product exclusively from the seller.
46
As my Brother WHITE shows, to treat the financing of the housing development as a 'tying' product for the houses is to distort the doctrine and to depart from the reason for its existence. Such an extension of the tying doctrine entirely departs from the factual pattern which is described in § 3 of the Clayton Act and which has been the basis of this Court's extension of the doctrine to the Sherman Act and its development of the rule that such tying arrangements are illegal on a per se basis—i.e., without any showing that they constitute an unreasonable restraint of trade or trend to create a monopoly. The Court has established this rule because the kind of tying arrangement at issue in prior cases involved the use of a leverage position in the tying product—the patented machine, the copyrighted film, the unique land—to force the buyer to purchase the tied product. To apply this rule to a situation where the only 'leverage' is a lower price for the article sold or more advantageous financing or credit terms for the article sold and for ancillary costs connected with the sale is to distort the doctrine, and, indeed, to convert it into an instrument which penalizes price competition for the article that is sold.
47
It is, of course, not inconceivable that a case might arise where § 1 or § 2 of the Sherman Act would outlaw a combination of sale and credit on a specific showing of market power and anticompetitive effect. It is also possible that such a combination might, in some situations, constitute 'unfair methods of competition' in violation of § 5 of the Federal Trade Commission Act, or price discrimination or furnishing services on discriminatory terms, in violation of § 2 of the Clayton Act, as my Broth r WHITE suggests. The majority, however, does not rely on any such analysis of the actualities of market power or anticompetitive effect, but sweeps this kind of credit arrangement within the per se ban.*
48
The effect of this novel extension—this distortion, as I view it—of the tying doctrine may be vast and destructive. It is common in our economy for a seller to extend financing to a distributor or franchisee to enable him to purchase and handle the seller's goods at retail, to rent retail facilities, to acquire fixtures or machinery for service to customers in connection with distribution of the seller's goods, or, as here, to prepare the land for and to acquire and erect the seller's houses for sale to the public. It is hardly conceivable, except for today's opinion of the Court, that extension of such credit as a part of a general sale transaction or distribution method could be regarded as a 'tying' of the seller's goods to the credit, so that where the businessman receiving the credit agrees to handle the seller-lender's product, the arrangement is per se unlawful merely because the amount or terms of the credit were more favorable than could be obtained from banking institutions in the area. Arrangements of this sort run throughout the economy. They frequently, and perhaps characteristically, represent an indispensable method of financing distributive and service trades, and not until today has it been held that they are tying arrangements and therefore per se unlawful. Cf. Standard Oil Co. v. United States, 337 U.S. 293, 315, 321, 69 S.Ct. 1051, 1062, 93 L.Ed. 1371 (1949) (separate opinion of Douglas, J., and dissenting opinion of Jackson, J.).
49
In the present case in every respect, the provision of credit for construction of the houses and other associated costs of developing the subdivision, was, from U.S. Steel's point of view, ancillary and subordinated to the sale of the houses. The Credit Corporation did not operate at a loss, but its profit was comparatively low. Provision of special financing to the prospective purchaser of prefabricated houses by the Credit Corporation was intimately and exclusively related to the end object of the sale of the houses by the Homes Division. It was not a separate item of 'sale.'
50
This pattern is by no means limited to the provisions of financing, nor can the impact of the majority's opinion be so limited. Almost all modern selling involves providing some ancillary services in connection with making the sale—delivery, installation, supplying fixtures, servicing, training of the customer's personnel in use of the material sold, furnishing display material and sales aids, extension of credit. Customarily indeed lmost invariably—the seller offers these ancillary services only in connection with the sale of his own products, and they are often offered without cost or at bargain rates. It is possible that in some situations, such arrangements could be used to restrain competition or might have that effect, but to condemn them out-of-hand under the 'tying' rubric, is, I suggest, to use the antitrust laws themselves as an instrument in restraint of competition.
51
For these reasons, I dissent.
1
Since the loan agreements obligated petitioner to erect houses manufactured by U.S. Steel on the land acquired, the trial judge thought the relevant foreclosure was the percentage of the undeveloped land in the county that was no longer open for sites on which homes made by competing p oducers could be built. This apparently was an insignificant .00032%. But of course the availability of numerous vacant lots on which houses might legally be erected would be small consolation to competing producers once the economic demand for houses had been pre-empted by respondents. It seems plain that the most significant percentage figure with reference to the tied product is the percentage of annual sales of houses, or prefabricated houses, in the area that was foreclosed to other competitors by the tying arrangement.
2
Uniqueness confers economic power only when other competitors are in some way prevented from offering the distinctive product themselves. Such barriers may be legal, as in the case of patented and copyrighted products, e.g., International Salt; Loew's, or physical, as when the product is land, e.g., Northern Pacific. It is true that the barriers may also be economic, as when competitors are simply unable to produce the distinctive product profitably, but the uniqueness test in such situations is somewhat confusing since the real source of economic power is not the product itself but rather the seller's cost advantage in producing it.
3
See, e.g., Federal Reserve Act § 24, 38 Stat. 273, as amended, 12 U.S.C. § 371; 12 CFR § 545.6-14(c).
4
Cf. Perma Life Mufflers, 392 U.S., at 141-142, 88 S.Ct. 1981, 20 L.Ed.2d 982; Timken Roller Bearing Co. v. United States, 341 U.S. 593, 598, 71 S.Ct. 971, 974, 95 L.Ed. 1199 (1951); Kiefer-Stewart Co. v. Seagram & Sons, 340 U.S. 211, 215, 71 S.Ct. 259, 261, 95 L.Ed. 219 (1951); United States v. Yellow Cab Co., 332 U.S. 218, 227, 67 S.Ct. 1560, 1565, 91 L.Ed. 2010 (1947).
5
Where price reductions on the tied product are made difficult in practice by the structure of that market, the seller can still achieve his alleged objective by offering other kinds of fringe benefits over which he has no economic power.
1
E.g., United States v. Loew's Inc., 371 U.S. 38, 44-45, 83 S.Ct. 97, 102, 9 L.Ed.2d 11 (1962); Northern Pacific R. Co. v. United States, 356 U.S. 1, 6-7, 78 S.Ct. 514, 519, 2 L.Ed.2d 545 (1958); Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 611, 73 S.Ct. 872, 881, 97 L.Ed. 1277 (1953).
2
E.g., Report of the Attorney General's National Committee to Study the Antitrust Laws 145 (1955); Austin, The Tying Arrangement: A Critique and Some New Thoughts, 1967 Wis.L.Rev. 88; Bowman, Tying Arrangements and the Leverage Problem, 67 Yale L.J. 19 (1957); Day, Exclusive Dealing, Tying and Reciprocity—A Reappraisal, 29 Ohio St.L.J. 539, 540-541 (1968); Turner, The Validity of Tying Arrangements Under the Antitrust Laws, 72 Harv.L.Rev. 50, 60-61 (1958).
3
Theoretically, the tie may do the tier little good unless the buyer is in that position. Even if the seller has a complete monopoly in the tying product, this is the case. The monopolist can exact the maximum price which people are willing to pay for his product. By definition, if his price went up he would lose customers. If he then refuses to sell the tying product without the tied product, and raises the price of the tied product above market, he will also lose customers. The tying link works no magic. However, difficulty in extracting the full monopoly profit without the tie, Burstein, A Theory of Full-Line Forcing, 55 Nw.U.L.Rev. 62 (1960), or the marginal advantage of a guaranteed first refusal from otherwise indifferent customers of the tied product, or other advantages mentioned in the text, may make the tie beneficial to its originator.
4
If the monopolist uses his monopoly profits in the first market to underwrite sales below market price in the second, his monopoly business becomes less profitable. There remains an incentive to do so nonetheless when he thinks he can obtain a monopoly in the tied product as well, permitting him later to raise prices without fear of entry of recoup the monopoly profit he has foregone. But just as the firm whose deep pocket stems from monopoly profits in the tying product may make this takeover, so may anyone else with a deep pocket from whatever source.
5
Even when the terms of the tie allow a competitor to obtain the business in the tied product simply by offering a price lower than, rather than equal to, the tier's the Court has found sufficient restriction in the tied product, as in the Northern Pacific case.
6
Bowman, Tying Arrangements and the Leverage Problem, 67 Yale L.J. 19, 21—23 (1957).
7
Id., at 23-24.
8
Burstein, A Theory of Full-Line Forcing, 55 Nw.U.L.Rev. 62 (1960).
9
Tie-ins may also at times be beneficial to the economy. Apart from the justifications discussed in the text are the following. They may facilitate new entry into fields where established sellers have wedded their customers to them by ties of habit and custom. Brown Shoe Co. v. United States, 370 U.S. 294, 330, 82 S.Ct. 1502, 1526, 8 L.Ed.2d 510 (1962); Note, Newcomer Defenses: Reasonable Use of Tie-ins, Franchises, Territorials, and Exclusives, 18 Stan.L.Rev. 457 (1966). They may permit clandestine price cutting in products which otherwise would have no price competition at all because of fear of retaliation from the few other producers dealing in the market. They may protect the reputation of the tying product if failure to use the tied product in conjunction with it may cause it to misfunction. Compare International Business Machines Corp. v. United States, 298 U.S. 131, 138-140, 56 S.Ct. 701, 705, 80 L.Ed. 1085 (1936), and Standard Oil Co. v. United States, 337 U.S. 293, 306, 69 S.Ct. 1051, 1058, 93 L.Ed. 1371 (1949), with Pick Mfg. Co. v. General Motors Corp., 80 F.2d 641 (C.A.7th Cir. 1935), aff'd, 299 U.S. 3, 57 S.Ct. 1, 81 L.Ed. 4 (1936). And, if the tried and tying products are functionally related, they may reduce costs through economies of joint production and distribution. These benefits which may flow from tie-ins, though perhaps in some cases a potential basis for an affirmative defense, were not sufficient to avoid the imposition of a per se proscription, once market power has been demonstrated. But in determining whether even the market-power requirement should be eliminated, as the logic of the majority opinion would do, extending the per se rule to absolute dimensions, the fact that tie-ins are not entirely unmitigated evils should be borne in mind.
10
I agree with the majority that the affidavits are not inconsistent with a 'possibility of market power' and that such power might be shown by showing certain kinds of 'unique economic ability.' But I cannot see how petitioner offers to prove this, although by taking judicial notice of the possibility that U.S. Steel may have operated free of legal restraints on other lenders otherwise willing to provide 100% financing—a possibility not mentioned by petitioner—the majority suggests to petitioner an element of the sort of detailed description of one facet of the credit market which, with much more information about the whole of the market, would be relevant. But this was not the basis on which petitioner offered to go to trial and I would not remand for trial even under the applicable Poller standard.
11
38 Stat. 731, 15 U.S.C. § 14.
12
The arrangements proscribed by § 3 relate only to 'goods, wares, merchandise, machinery, supplies, or other commodities * * *.' 38 Stat. 731, 15 U.S.C. § 14
13
Robinson-Patman Price Discrimination Act, 49 Stat. 1526, as amended, 15 U.S.C. § 13 et seq.
*
The case is remanded for trial. I find it difficult to learn from the majority opinion just what is to be determined at that trial. Some parts of the discussion suggest that petitioner must establish that U.S. Steel had the market power over credit by showing facts in no way suggested at this stage by the pleadings. At another point the majority even suggests that if U.S. Steel can show 'legitimate business purposes' and the absence of 'competitive advantage' (ante, at 506) in the credit market, it will have made out a defense. But in an earlier part of the opinion, the majority says explicitly that 'it is clear that petitioner raised questions of fact which, if proved at trial, would bring this tying arrangement within the scope of the per se doctrine.' (Ante, at 500-501.) If it is this sentence which determines the range of issues open on remand there will be no examination at the trial of the business or economic background of the credit arrangements here attacked or of the effects, if any, of this arrangement on competition in the prefabricated house market. All petitioner will need to do is show that U.S. Steel did indeed condition the extension of its subsidiary's credit on an agreement to purchase U.S. Steel prefabricated houses and it will have demonstrated the automatic illegality of the credit arrangement.
| 78
|
394 U.S. 575
89 S.Ct. 1300
22 L.Ed.2d 557
Roosevelt ROLLERSONv.UNITED STATES.
No. 1425, Misc.
Supreme Court of the United States
April 7, 1969
William H. Allen, for petitioner.
Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg and Roger A. Pauley, for the United States.
On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia 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 vacated and the case is remanded to the United States District Court for the District of Columbia for furthr consideration in light of Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227.
2
Mr. Justice FORTAS concurs in the disposition of this case but notes that the Court's action does not imply any view as to the merits of any of the petitioner's claims including his assertions as to double jeopardy.
3
Mr. Justice BLACK, Mr. Justice HARLAN, and Mr. Justice STEWART dissent.
| 01
|
394 U.S. 557
89 S.Ct. 1243
22 L.Ed.2d 542
Robert Eli STANLEY, Appellant,v.State of GEORGIA.
No. 293.
Argued Jan. 14 and 15, 1969.
Decided April 7, 1969.
Wesley R. Asinof, Atlanta, Ga., for appellant.
J. Robert Sparks, Atlanta, Ga., for appellee.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
An investigation of appellant's alleged bookmaking activities led to the issuance of a search warrant for appellant's home. Under authority of this warrant, federal and state agents secured entrance. They found very little evidence of bookmaking activity, but while looking through a desk drawer in an upstairs bedroom, one of the federal agents, accompanied by a state officer, found three reels of eight-millimeter film. Using a projector and screen found in an upstairs living room, they viewed the films. The state officer concluded that they were obscene and seized them. Since a further examination of the bedroom indicated that appellant occupied it, he was charged with possession of obscene matter and placed under arrest. He was later indicted for 'knowingly hav(ing) possession of * * * obscene matter' in violation of Georgia law.1 Appellant was tried before a jury and convicted. The Supreme Court of Georgia affirmed. Stanley v. State, 224 Ga. 259, 161 S.E.2d 309 (1968). We noted probable jurisdiction of an appeal brought under 28 U.S.C. § 1257(2), 393 U.S. 819, 89 S.Ct. 124, 21 L.Ed.2d 90 (1968).
2
Appellant raises several challenges to the validity of his conviction.2 We find it necessary to consider only one. Appellant argues here, and argued below, that the Georgia obscenity statute, insofar as it punishes mere private possession of obscene matter, violates the First Amendment, as made applicable to the States by the Fourteenth Amendment. For reasons set forth below, we agree that the mere private possession of obscene matter cannot constitutionally be made a crime.
3
The court below saw no valid constitutional objection to the Georgia statute, even though it extends further than the typical statute forbidding commercial sales of obscene material. It held that '(i)t is not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was 'with intent to sell, expose or circulate the same." Stanley v. State, supra, 224 Ga., at 261, 161 S.E.2d, at 311. The State and appellant both agree that the question here before us is whether 'a statute imposing criminal sanctions upon the mere (knowing) possession of obscene matter' is constitutional. In this context, Georgia concedes that the present case appears to be one of 'first impression * * * on this exact point,'3 but contends that since 'obscenity is not within the area of constitutionally protected speech or press,' Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957), the States are free, subject to the limits of other provisions of the Constitution, see, e.g., Ginsberg v. New York, 390 U.S. 629, 637—645, 88 S.Ct. 1274, 1279—1283, 20 L.Ed.2d 195 (1968), to deal with it any way deemed necessary, just as they may deal with possession of other things thought to be detrimental to the welfare of their citizens. If the State can protect the body of a citizen, may it not, argues Georgia, protect his mind?
4
It is true that Roth does declare, seemingly without qualification, that obscenity is not protected by the First Amendment. That statement has been repeated in various forms in subsequent cases. See, e.g. Smith v. California, 361 U.S. 147, 152, 80 S.Ct. 215, 218, 4 L.Ed.2d 205 (1959); Jacobellis v. Ohio, 378 U.S. 184, 186—187, 84 S.Ct. 1676, 1677—1678, 12 L.Ed.2d 793 (1964) (opinion of Brennan, J.); Ginsberg v. New York, supra, 390 U.S., at 635, 88 S.Ct., at 1278. However, neither Roth nor any subsequent decision of this Court dealt with the precise problem involved in the present case. Roth was convicted of mailing obscene circulars and advertising, and an obscene book, in violation of a federal obscenity statute.4 The defendant in a companion case, Alberts v. California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), was convicted of 'lewdly keeping for sale obscene and indecent books, and (of) writing, composing and publishing an obscene advertisement of them * * *.' Id., at 481, 77 S.Ct., at 1307. None of the statements cited by the Court in Roth for the proposition that 'this Court has always assumed that obscenity is not protected by the freedoms of speech and press' were made in the context of a statute punishing mere private possession of obscene material; the cases cited deal for the most part with use of the mails to distribute objectionable material or with some form of public distribution or dissemination.5 Moreover, none of this Court's decisions subsequent to Roth involved prosecution for private possession of obscene materials. Those cases dealt with the power of the State and Federal Governments to prohibit or regulate certain public actions taken or intended to be taken with respect to obscene matter.6 Indeed, with one exception, we have been unable to discover any case in which the issue in the present case has been fully considered.7
5
In this context, we do not believe that this case can be decided simply by citing Roth. Roth and its progeny certainly do mean that the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity. But the assertion of that interest cannot, in every context, be insulated from all constitutional protections. Neither Roth nor any other decision of this Court reaches that far. As the Court said in Roth itself, '(c)easeless vigilance is the watchword to prevent * * * erosion (of First Amendment rights) by Congress or by the States. The door barring federal the state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.' 354 U.S., at 488, 77 S.Ct., at 1311. Roth and the cases following it discerned such an 'important interest' in the regulation of commercial distribution of obscene material. That holding cannot foreclose an examination of the constitutional implications of a statute forbidding mere private possession of such material.
6
It is now well established that the Constitution protects the right to receive information and ideas. 'This freedom (of speech and press) * * * necessarily protects the right to receive * * *.' Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943); see Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1965); Lamont v. Postmaster General, 381 U.S. 301, 307—308, 85 S.Ct. 1493, 1496 1497, 14 L.Ed.2d 398 (1965) (Brennan, J., concurring); cf. Pierce v. Society of the Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). This right to receive information and ideas, regardless of their social worth, see Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948), is fundamental to our free society. Moreover, in the context of this case—a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home—that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.
7
'The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized man.' Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).
8
See Griswold v. Connecticut, supra; cf. NAACP v. Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958).
9
These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as 'obscene' is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendmen means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.
10
And yet, in the face of these traditional notions of individual liberty, Georgia asserts the right to protect the individual's mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person's thoughts.8 To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment. As the Court said in Kingsley International Pictures Corp. v. Regents, 360 U.S. 684, 688—689, 79 S.Ct. 1362, 1365, 3 L.Ed.2d 1512 (1959), '(t)his argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. * * * And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.' Cf. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). Nor is it relevant that obscene materials in general, or the particular films before the Court, are arguably devoid of any ideological content. The line between the transmission of ideas and mere entertainment is much too elusive for this Court to draw, if indeed such a line can be drawn at all. See Winters v. New York, supra, 333 U.S., at 510, 68 S.Ct., at 667. Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.
11
Perhaps recognizing this, Georgia asserts that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence. There appears to be little empirical basis for that assertion.9 But more important, if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that '(a)mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law * * *.' Whitney v. California, 274 U.S. 357, 378, 47 S.Ct. 641, 649, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). See Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 938 (1963). Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.
12
It is true that in Roth this Court rejected the necessity of proving that exposure to obscene material would create clear and present danger of antisocial conduct or would probably induce its recipients to such conduct. 354 U.S., at 486—487, 77 S.Ct., at 1309—1310. But that case dealt with public distribution of obscene materials and such distribution is subject to different objections. For example, there is always the danger that obscene material might fall into the hands of children, see Ginsberg v. New York, supra, or that it might intrude upon the sensibilities or privacy of the general public.10 See Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct. 1414, 1415, 18 L.Ed.2d 515 (1967). No such dangers are present in this case.
13
Finally, we are faced with the argument that prohibition of possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution. That argument is based on alleged difficulties of proving an intent to distribute or in producing evidence of actual distribution. We are not convinced that such difficulties exist, but even if they did we do not think that they would justify infringement of the individual's right to read or observe what he pleases. Because that right is so fundamental to our scheme of individual liberty, its restriction may not be justified by the need to ease the administration of otherwise valid criminal laws. See Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).
14
We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.11 Roth and the cases following that decision are not impaired by today's holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home. Accordingly, the judgment of the court below is reversed and the case is remanded for proceedings not inconsistent with this opinion.
15
It is so ordered.
16
Judgment reversed and case remanded.
17
Mr. Justice BLACK, concurring.
18
I agree with the Court that the mere possession of reading matter or movie films, whether labeled obscene or not, cannot be made a crime by a State without violating the First Amendment, made applicable to the States by the Fourteenth. My reasons for this belief have been set out in many of my prior opinions, as for example, Smith v. California, 361 U.S. 147, 155, 80 S.Ct. 215, 219, 4 L.Ed.2d 205 (concurring opinion), and Ginzburg v. United States, 383 U.S. 463, 476, 86 S.Ct. 942, 950, 16 L.Ed.2d 31 (dissenting opinion).
19
Mr. Justice STEWART, with whom Mr. Justice BRENNAN and Mr. Justice WHITE join, concurring in the result.
20
Before the commencement of the trial in this case, the appellant filed a motion to suppres the films as evidence upon the ground that they had been seized in violation of the Fourth and Fourteenth Amendments. The motion was denied, and the films were admitted in evidence at the trial. In affirming the appellant's conviction, the Georgia Supreme Court specifically determined that the films had been lawfully seized. The appellant correctly contends that this determination was clearly wrong under established principles of constitutional law. But the Court today disregards this preliminary issue in its hurry to move on to newer constitutional frontiers. I cannot so readily overlook the serious inroads upon Fourth Amendment guarantees countenanced in this case by the Georgia courts.
21
The Fourth Amendment provides that 'no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' The purpose of these clear and precise words was to guarantee to the people of this Nation that they should forever be secure from the general searches and unrestrained seizures that had been a hated hallmark of colonial rule under the notorious writs of assistance of the British Crown. See Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 509, 13 L.Ed.2d 431. This most basic of Fourth Amendment guarantees was frustrated in the present case, I think, in a manner made the more pernicious by its very subtlety. For what happened here was that a search that began as perfectly lawful became the occasion for an unwarranted and unconstitutional seizure of the films.
22
The state and federal officers gained admission to the appellant's house under the authority of a search warrant issued by a United States Commissioner. The warrant described 'the place to be searched' with particularity.1 With like particularity, it described the 'things to be seized'—equipment, records, and other material used in or derived from an illegal wagering business.2 And the warrant was issued only after the Commissioner had been apprised of more than adequate probable cause to issue it.3
23
There can be no doubt, therefore, that the agents were lawfully present in the appellant's house, lawfully authorized to search for any and all of the items specified in the warrant, and lawfully empowered to seize and such items they might find.4 It follows, therefore, that the agents were acting within the authority of the warrant when they proceeded to the appellant's upstairs bedroom and pulled open the drawers of his desk. But when they found in one of those drawers not gambling material but moving picture films, the warrant gave them no authority to seize the films.
24
The controlling constitutional principle was stated in two sentences by this Court more than 40 years ago:
25
'The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.' Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231.
26
This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence5 in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection. And this is not a case that presents any questions as to the permissible scope of a search made incident to a lawful arrest. For the appellant had not been arrested when the agents found the films. After finding them, the agents spent some 50 minutes exhibiting them by means of the appellant's projector in another upstairs room. Only then did the agents return downstairs and arrest the appellant.
27
Even in the much-criticized case of United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, the Court emphasized that 'exploratory searches * * * cannot be undertaken by officers with or without a warrant.' Id., at 62, 70 S.Ct., at 434. This record presents a bald violation of that basic constitutional rule. To condone what happened here is to invite a government official to use a seemingly precise and legal warrant only as a ticket to get into a man's home, and, once inside, to launch forth upon unconfined searches and indiscriminate seizures as if armed with all the unbridled and illegal power of a general warrant.
28
Because the films were seized in violation of the Fourth and Fourteenth Amendments, they were inadmissible in evidence at the appellant's trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Accordingly, the judgment of conviction must be reversed.
1
'Any person who shall know ngly bring or cause to be brought into this State for sale or exhibition, or who shall knowingly sell or offer to sell, or who shall knowingly lend or give away or offer to lend or give away, or who shall knowingly have possession of, or who shall knowingly exhibit or transmit to another, any obscene matter, or who shall knowingly advertise for sale by any form of notice, printed, written, or verbal, any obscene matter, or who shall knowingly manufacture, draw, duplicate or print any obscene matter with intent to sell, expose or circulate the same, shall, if such person has knowledge or reasonably should know of the obscene nature of such matter, be guilty of a felony, and, upon conviction thereof, shall be punished by confinement in the penitentiary for not less than one year nor more than five years: Provided, however, in the event the jury so recommends, such person may be punished as for a misdemeanor. As used herein, a matter is obscene if, considered as a whole, applying contemporary community standards, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex or excretion.' Ga.Code Ann. § 26 6301 (Supp.1968).
2
Appellant does not argue that the films are not obscene. For the purpose of this opinion, we assume that they are obscene under any of the tests advanced by members of this Court. See Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967).
3
The issue was before the Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), but that case was decided on other grounds. Mr. Justice Stewart, although disagreeing with the majority opinion in Mapp, would have reversed the judgment in that case on the ground that the Ohio statute proscribing mere possession of obscene material was 'not 'consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment." Id., at 672, 81 S.Ct., at 1701.
4
18 U.S.C. § 1461.
5
Ex parte Jackson, 96 U.S. 727, 736—737, 24 L.Ed. 877 (1878) (use of the mails); United States v. Chase, 135 U.S. 255, 261, 10 S.Ct. 756, 758, 34 L.Ed. 117 (1890) (use of the mails); Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 329, 41 L.Ed. 715 (1897) (publication); Public Clearing House v. Coyne, 194 U.S. 497, 508, 24 S.Ct. 789, 793, 48 L.Ed. 1092 (1904) (use of the mails); Hoke v. United States, 227 U.S. 308, 322, 33 S.Ct. 281, 284, 57 L.Ed. 523 (1913) (use of interstate facilities); Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931) (publication); Chaplinsky v. New Hampshire, 315 U.S. 568, 571—572, 62 S.Ct. 766, 768—769, 86 L.Ed. 1031 (1942) (utterances); Hannegan v. Esquire, Inc., 327 U.S. 146, 158, 66 S.Ct. 456, 462, 90 L.Ed. 586 (1946) (use of the mails); Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948) (possession with intent to sell); Beauharnais v. Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919 (1952) (libel).
6
Many of the cases involved prosecutions for sale or distribution of obscene materials or possession with intent to sell or distribute. See Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967); Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966); Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). Our most recent decision involved a prosecution for sale of obscene material to children. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); cf. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968). Other cases involved federal or state statutory procedures for preventing the distribution or mailing of obscene material, or procedures for predistribution approval. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962). Still another case dealt with an attempt to seize obscene material 'kept for the purpose of being old, published, exhibited * * * or otherwise distributed or circulated * * *.' Marcus v. Search Warrant, 367 U.S. 717, 719, 81 S.Ct. 1708, 1709, 6 L.Ed.2d 1127 (1961); see also A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964). A Book named 'John Cleland's Memoirs of a Woman of Pleasure' v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), was a proceeding in equity against a book. However, possession of a book determined to be obscene in such a proceeding was made criminal only when 'for the purpose of sale, loan or distribution.' Id., at 422, 86 S.Ct., at 979.
7
The Supreme Court of Ohio considered the issue in State v. Mapp, 170 Ohio St. 427, 166 N.E.2d 387 (1960). Four of the seven judges of that court felt that criminal prosecution for mere private possession of obscene materials was prohibited by the Constitution. However, Ohio law required the concurrence of 'all but one of the judges' to declare a state law unconstitutional. The view of the 'dissenting' judges was expressed by Judge Herbert:
'I cannot agree that mere private possession of * * * (obscene) literature by an adult should constitute a crime. The right of the individual to read, to believe or disbelieve, and to think without governmental supervision is one of our basic liberties, but to dictate to the mature adult what books he may have in his own private library seems to the writer to be a clear infringement of his constitutional rights as an individual.' 170 Ohio St., at 437, 166 N.E.2d, at 393.
Shortly thereafter, the Supreme Court of Ohio interpreted the Ohio statute to require proof of 'possession and control for the purpose of circulation or exhibition.' State v. Jacobellis, 173 Ohio St. 22, 27—28, 179 N.E.2d 777, 781 (1962), rev'd on other grounds, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). The interpretation was designed to avoid the constitutional problem posed by the 'dissenters' in Mapp. See State v. Ross, 12 Ohio St.2d 37, 231 N.E.2d 299 (1967).
Other cases dealing with nonpublic distribution of obscene material or with legitimate uses of obscene material have expressed similar reluctance to make such activity criminal, albeit largely on statutory grounds. In United States v. Chase, 135 U.S. 255, 10 S.Ct. 756, 34 L.Ed. 117 (1890), the Court held that federal law did not make criminal the mailing of a private sealed obscene letter on the ground that the law's purpose was to purge the mails of obscene matter 'as far as was consistent with the rights reserved to the people, and with a due regard to the security of private correspondence * * *.' 135 U.S., at 261, 10 S.Ct., at 758. The law was later amended to include letters and was sustained in that form. Andrews v. United States, 162 U.S. 420, 16 S.Ct. 798, 40 L.Ed. 1023 (1896). In United States v. 31 Photographs, 156 F.Supp. 350 (D.C.S.D.N.Y.1957), the court denied an attempt by the Government to confiscate certain materials sought to be imported into the United States by the Institute for Sex Research, Inc., at Indiana University. The court found, applying the Roth formulation, that the materials would not appeal to the 'prurient interest' of those seeking to import and utilize the materials. Thus, the statute permitting seizure of 'obscene' materials was not applicable. The court found it unnecessary to reach the constitutional questions presented by the claimant, but did note its belief that 'the statement * * * (in Roth) concerning the rejection of obscenity must be interpreted in the light of the widespread distribution of the material in Roth.' 156 F.Supp., at 360, n. 40. See also Redmond v. United States, 384 U.S. 264, 86 S.Ct. 1415, 16 L.Ed. 521 (1966), where this Court granted the Solicitor General's motion to vacate and remand with instructions to dismiss an information charging a violation of a federal obscenity statute in a case where a husband and wife mailed undeveloped films of each other posing in the nude to an out-of-state firm for developing. But see Ackerman v. United States, 293 F.2d 449 (C.A 9th Cir. 1961).
8
'Communities believe, and act on the belief, that obscenity is immoral, is wrong for the individual, and has no place in a decent society. They believe, too, that adults as well as children are corruptible in morals and character, and that obscenity is a source of corruption that should be eliminated. Obscenity is not suppressed primarily for the protection of others. Much of it is suppressed for the purity of the community and for the salvation and welfare of the 'consumer.' Obscenity, at bottom, is not crime. Obscenity is sin.' Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Col.L.Rev. 391, 395 (1963).
9
See, e.g., Cairns, Paul, & Wishner, Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn.L.Rev. 1009 (1962); see also M. Jahoda, The Impact of Literature: A Psychological Discussion of Some Assumptions in the Censorship Debate (1954), summarized in the concurring opinion of Judge Frank in United States v. Roth, 237 F.2d 796, 814—816 (C.A.2d Cir. 1956).
10
The Model Penal Code provisions dealing with obscene materials are limited to cases of commercial dissemination. Model Penal Code § 251.4 (Prop. Official Draft 1962); see also Model Penal Code § 207.10 and comment 4 (Tent. Draft No. 6, 1957); H. Packer, The Limits of the Criminal Sanction 316—328 (1968); Schwartz, Morals Offenses and the Model Penal Code, 63 Col.L.Rev. 669 (1963).
11
What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute's infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal.
Nor do we mean to express any opinion on statutes making criminal possession of other types of printed, filmed, or recorded materials. See, e.g., 18 U.S.C. § 793(d), which makes criminal the otherwise lawful possession of materials which 'the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation * * *.' In such cases, compelling reasons may exist for overriding the right of the individual to possess those materials.
1
'(T)he premises known as 280 Springside Drive, S.E., two story residence with an annex on the main floor constructed of brick and frame, in Atlanta, Fulton County, Georgia, in the Northern District of Georgia * * *.'
2
'(B)ookmaking records, wagering paraphernalia consisting of bet slips, account sheets, recap sheets, collection sheets, adding machines, money used in or derived from the wagering business, records of purchases, records of real estate and bank transactions, the money for which was derived from the wagering business, and any other property used in the wagering business, which are being used and/or have been used in the operation of a bookmaking business or represent the fruits of a bookmaking business being operated in violation of Sections 4411, 4412 and 7203 IRC of 1954.'
3
Before the Commissioner were no less than four lengthy and detailed affidavits, setting out the grounds for the affiants' reasonable belief that the appellant was engaged in an illegal gambling enterprise, and that the paraphernalia of his trade were concealed in his house.
4
The fact that almost no gambling material was actually found has no bearing, of course, upon the validity of the search. The constitutionality of a search depends in no measure upon what it brings to light. Byars v. United States, 273 .S. 28, 29, 47 S.Ct. 248, 71 L.Ed. 520.
5
See Warden Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782.
| 23
|
394 U.S. 526
89 S.Ct. 1225
22 L.Ed.2d 519
James C. KIRKPATRICK, Secretary of State of Missouri, et al., Appellants,v.Paul W. PREISLER et al. F. V. HEINKEL et al., Appellants, v. Paul W. PREISLER et al.
Nos. 30, 31.
Argued Jan. 13, 1969.
Decided April 7, 1969.
Rehearing Denied May 19, 1969.
See 395 U.S. 917, 89 S.Ct. 1737.
Thomas J. Downey, Jefferson City, Mo., and David Collins, Macon, Mo., or appellants.
Irving Achtenberg, Kansas City, Mo., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
In Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct., 526, 11 L.Ed.2d 481 (1964), we held that '(w)hile it may not be possible (for the States) to draw congressional districts with mathematical precision,' id., at 18, 84 S.Ct. at 535, Art. I, § 2, of the Constitution requires that 'as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.' Id., at 7—8, 84 S.Ct. at 530. We are required in these cases to elucidate the 'as nearly as practicable' standard.
2
The Missouri congressional redistricting statute challenged in these cases resulted from that State's second attempt at congressional redistricting since Wesberry was decided. In 1965, a three-judge District Court for the Western District of Missouri declared that the Missouri congressional districting Act then in effect was unconstitutional under Wesberry but withheld any judicial relief 'until the Legislature of the State of Missouri has once more had an opportunity to deal with the problem * * *.' Preisler v. Secretary of State of Missouri, 238 F.Supp. 187, 191. Thereafter the General Assembly of Missouri enacted a redistricting statute, but this statute too was declared unconstitutional. The District Court, however, retained jurisdiction to review any further plan that might be enacted. Preisler v. Secretary of State of Missouri, 257 F.Supp. 953 (1966), aff'd, sub nom. Kirkpatrick v. Preisler, 385 U.S. 450, 87 S.Ct. 613, 17 L.Ed.2d 511 (1967). In 1967, the General Assembly enacted the statute under attack here, Mo.Rev.Stat., c. 128 (Cum.Supp.1967), and the Attorney General of Missouri moved in the District Court for a declaration sustaining the Act and an order dismissing the case.
3
Based on the best population data available to the legislature in 1967, the 1960 United States census figures, absolute population equality among Missouri's 10 congressional districts would mean a population of 431,981 in each district. The districts created by the 1967 Act, however, varied from this ideal within a range of 12,260 below it to 13,542 above it. The difference between the least and most populous districts was thus 25,802. In percentage terms, the most populous district was 3.13% above the mathematical ideal, and the least populous was 2.84% below.1
4
The District Court found that the General Assembly had not in fact relied on the census figures but instead had based its plan on less accurate data. In addition, the District Court found that the General Assembly had rejected a redistricting plan submitted to it which provided for districts with smaller population variances among them. Finally, the District Court found that the simple device of switching some counties from one district to another would have produced a plan with markedly reduced variances among districts. Based on these findings, the District Court, one judge dissenting, held that the 1967 Act did not meet the constitutional standard of equal representation for equal numbers of people 'as nearly as practicable,' and that the State had failed to make any acceptable justification for the variances. 279 F.Supp. 952 (1967). We noted probable jurisdiction but st yed the District Court's judgment pending appeal and expressly authorized the State 'to conduct the 1968 congressional elections under and pursuant to (the) 1967 * * * Act * * *.' 390 U.S. 939, 88 S.Ct. 1053, 19 L.Ed.2d 1129 (1968). We affirm.
5
Missouri's primary argument is that the population variances among the districts created by the 1967 Act are so small that they should be considered de minimis and for that reason to satisfy the 'as nearly as practicable' limitation and not to require independent justification. Alternatively, Missouri argues that justification for the variances was established in the evidence: it is contended that the General Assembly provided for variances out of legitimate regard for such factors as the representation of distinct interest groups, the integrity of county lines, the compactness of districts, the population trends within the State, the high proportion of military personnel, college students, and other nonvoters in some districts, and the political realities of 'legislative interplay.'
I.
6
We reject Missouri's argument that there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the 'as nearly as practicable' standard. The whole thrust of the 'as nearly as practicable' approach is inconsistent with adoption of fixed numerical standards which excuse population variances without regard to the circumstances of each particular case. The extent to which equality may practicably be achieved may differ from State to State and from district to district. Since 'equal representation for equal numbers of people (is) the fundamental goal for the House of Representatives,' Wesberry v. Sanders, supra, at 18, 84 S.Ct. at 535, the 'as nearly as practicable' standard requires that the State make a good-faith effort to achieve precise mathematical equality. See Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1389, 12 L.Ed.2d 506 (1964). Unless population variances among congressional districts are shown to have resulted despite such effort, the State must justify each variance, no matter how small.
7
There are other reasons for rejecting the de minimis approach. We can see no nonarbitrary way to pick a cutoff point at which population variances suddenly become de minimis. Moreover, to consider a certain range of variances de minimis would encourage legislators to strive for the range rather than for equality as nearly as practicable. The District Court found, for example, that at least one leading Missouri legislator deemed it proper to attempt to achieve a 2% level of variance rather than to seek population equality.
8
Equal representation for equal numbers of people is a principle designed to prevent debasement of voting power and diminution of access to elected representatives. Toleration of even small deviations detracts from these purposes. Therefore, the command of Art. I § 2, that States create congressional districts which provide equal representation for equal numbers of people permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.
9
Clearly, the population variances among the Missouri congressional districts were not unavoidable. Indeed, it is not seriously contended that the missouri Legislature came as close to equality as it might have come. The District Court found that, to the contrary, in the two reapportionment efforts of the Missouri Legislature since Wesberry 'the leadership of both political parties in the Senate and the House were given nothing better to work with than a makeshift bill produced by what has been candidly recognized to be no more than * * * an expedient political compromise.' 279 F.Supp., at 966. Legislative proponents of the 1967 Act frankly conceded at the District Court hearing that resort to the simple device of transferring entire political subdivisions of known population between contiguous districts would have produced istricts much closer to numerical equality. The District Court found, moreover, that the Missouri Legislature relied on inaccurate data in constructing the districts, and that it rejected without consideration a plan which would have markedly reduced population variances among the districts. Finally, it is simply inconceivable that population disparities of the magnitude found in the Missouri plan were unavoidable.2 The New York apportionment plan of regions divided into districts of almost absolute population equality described in Wells v. Rockefeller, post, at 394 U.S. 542, 89 S.Ct. 1234, 1236 1237, 22 L.Ed.2d 535, provides striking evidence that a state legislature which tries can achieve almost complete numerical equality among all the State's districts. In sum, 'it seems quite obvious that the State could have come much closer to providing districts of equal population than it did.' Swann v. Adams, 385 U.S. 440, 445, 87 S.Ct. 569, 573, 17 L.Ed.2d 501 (1967).
10
We therefore turn to the question whether the record establishes any legally acceptable justification for the population variances. It was the burden of the State 'to present * * * acceptable reasons for the variations among the populations of the various * * * districts. * * * Swann v. Adams, supra, at 443-444, 87 S.Ct. at 572.
II.
11
We agree with the District Court that Missouri has not satisfactorily justified the population variances among the districts.
12
Missouri contends that variances were necessary to avoid fragmenting areas with distinct economic and social interests and thereby diluting the effective representation of those interests in Congress. But to accept population variances, large or small, in order to create districts with specific interest orientations is antithetical to the basic premise of the constitutional command to provide equal representation for equal numbers of people. '(N)either history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes.' Reynolds v. Sims, supra, at 579—580, 84 S.Ct. at 1391. See also Davis v. Mann, 377 U.S. 678, 692, 84 S.Ct. 1441, 1448, 12 L.Ed.2d 609 (1964).
13
We also reject Missouri's argument that '(t)he reasonableness of the population differences in the congressional districts under review must * * * be viewed in the context of legislative interplay. The legislative leaders all testified that the act in question was in their opinion a reasonable legislative compromise. * * * It must be remembered * * * that practical political problems are inherent in the enactment of congressional reapportionment legislation.'3 We agree with the District Court that 'the rule is one of 'practicability' rather than political 'practicality." 279 F.Supp., at 989. Problems created by partisan politics cannot justify an apportionment which does not otherwise pass constitutional muster.
14
Similarly, we do not find legally acceptable the argument that variances are justified if they necessarily result from a State's attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing county, municipal, or other political subdivision boundaries. The State's interest in constructing congressional districts in this manner, it is suggested, is to minimize the opportunities for partisan gerrymandering. But an argument that deviations from equality are justified in order to inhibit legislators from engaging in partisan gerrymandering4 is no more than a variant of the argument, already rejected, that considerations of practical politics can justify population disparities.
15
Missouri further contends that certain population variances resulted from the legislature's taking account of the fact that the percentage of eligible voters among the total population differed significantly from district to district—some districts contained disproportionately large numbers of military personnel stationed at bases maintained by the Armed Forces and students in attendance at universities or colleges. There may be a question whether distribution of congressional seats except according to total population can ever be permissible under Art. I, § 2. But assuming without deciding that apportionment may be based on eligible voter population rather than total population, the Missouri plan is still unacceptable. Missouri made no attempt to ascertain the number of eligible voters in each district and to apportion accordingly. At best it made haphazard adjustments to a scheme based on total population: overpopulation in the Eighth District was explained away by the presence in that district of a military base and a university; no attempt was made to account for the presence of universities in other districts or the disproportionate numbers of newly arrived and short-term residents in the City of St. Louis. Even as to the Eighth District, there is no indication that the excess population allocated to that district corresponds to the alleged extraordinary additional numbers of noneligible voters there.
16
Missouri also argues that population disparities between some of its congressional districts result from the legislature's attempt to take into account projected population shifts. We recognize that a congressional districting plan will usually be in effect for at least 10 years and five congressional elections. Situations may arise where substantial population shifts over such a period can be anticipated. Where these shifts can be predicted with a high degree of accuracy, States that are redistricting may properly consider them. By this we mean to open no avenue for subterfuge. Findings as to population trends must be thoroughly documented and applied throughout the State in a systematic, not an ad hoc, manner. Missouri's attempted justification of the substantial under population in the Fourth and Sixth Districts falls far short of this standard. The District Court found 'no evidence * * * that the * * * General Assembly adopted any policy of population projection in devising Districts 4 and 6, or any other district, in enacting the 1967 Act.' 279 F.Supp., at 983.
17
Finally, Missouri claims that some of the deviations from equality were a consequence of the legislature's attempt to ensure that each congressional district would be geographically compact. However, in Reynolds v. Sims, supra, at 580, 84 S.Ct. at 1391, we said, 'Modern developments and improvements in transportation and communications make rather hollow, in the mid-1960's, most claims that deviations from population-based representation can validly be based solely on geographical considerations. Arguments for allowing such deviations in order to insure effective representation for sparsely settled areas and to prevent legislative districts from becoming so large that the availability of access of citizens to their representatives is impaired are today, for the most part, unconvincing.' In any event, Missouri's claim of compactness is based solely upon the unaesthetic appearance of the map of congressional boundaries that would result from an attempt to effect some of the changes in district lines which, according to the lower court, would achieve greater equality. A State's preference for pleasingly shaped districts can hardly justify population variances.
18
Affirmed.
19
Mr. Justice FORTAS, concurring.
20
I concur in the judgment of the Court in these cases, but I cannot subscribe to the standard of near-perfection which the Court announces as obligatory upon state legislatures facing the difficult problem of reapportionment for congressional elections.
21
In Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), this Court recognized that 'it may not be possible to draw congressional districts with mathematical precision,' and it held that the Constitution requires that they be drawn so that, 'as nearly as is practicable,' each representative should cast a vote on behalf of the same number of people.
22
The Court now not only interprets 'as nearly as practicable' to mean that the State is required to 'make a good-faith effort to achieve precise mathematical equality,' but it also requires that any remaining population disparities 'no matter how small,' be justified. It then proceeds to reject, seriatim, every type of justification that has been—possibly, every one that could be advanced.
23
I agree that the state legislatures should be required to make 'a good-faith effort to achieve' a result that allocates the population or the residents1 of the State in roughly equal numbers to each district, based upon some orderly and objective method.2 In my view, the State could properly arrive at figures for current population by taking the latest census returns and making modifications to allow for population movements since the last census (which the Court seems to find acceptable). It could also, in my opinion, discount the census figures to take account of the presence of significant transient or nonresident population in particular areas (an adjustment as to which the Court indicates doubt). If the State should proceed on some appropriate population basis such as I have suggested, producing approximately equal districts, trial courts, in my judgment, would be justified in declining to disapprove the result merely because of small disparities, in the absence of evidence of gerrymandering—the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes.
24
In considering whether the State has 'approximated' an equal division and allocation of the population, I sympathize with the majority's view that a de minimis rule of allowable disparities tends to demean in theory and in practice the constitutional objective because it suggests that it is not necessary even to aim at equality. On the other hand, to reject de minimis as a statement of the limits on the rule of equality should not lead us to toss aside the wise recognition of the inscrutability of fact and the imperfection of man which is implicit in the Wesberry standard: 'as nearly as practicable.' This phrase does not refer merely to arithmetical possibilities. Arithmetically, it is possible to achieve division of a State into districts of precisely equal size, as measured by the decennial census or any other population base. To carry out this theoretical possibility, however, a legislature might have to ignore the boundaries of common sense, running the congressional district line down the middle of the corridor of an apartment house or even dividing the residents of a single-family house between two districts. The majority opinion does not suggest so extreme a practical application of its teaching, and I mention it only because the example may dramatize the fallacy of inflexible insistence upon mathematical exactness, with no tolerance for reality.
25
Whatever might be the merits of insistence on absolute equality if it could be attained, the majority's pursuit of precision is a search for a will-o-'-the-wisp. The fact is that any solution to the apportionment and districting problem is at best an approximation because it is based upon figures which are always to some degree obsolete. No purpose is served by an insistence on precision which is unattainable because of the inherent imprecisions in the population data on which districting must be based. The base to which Missouri's legislature should have adhered precisely, according to the majority, is the 1960 decennial census. The legislature's plan here under review was enacted in 1967. Assuming perfect precision for the 1960 census when taken,3 by 1967, because of the movement of population within the State as well as in-and-out migration, substantial disparities had arisen between the real distribution of population in the State and that reflected in the 1960 census base here so zealously protected by the Court.4
26
Nothing that I have said should be taken as indicating that I do not believe that the Wesberry standard requires a high degree of correspondence between the demonstrated population or residence figures and the district divisions. Nor would I fix, at least at this relatively early stage of the reapportionment effort, a percentage figure for permissible variation.5
27
In the present cases, however, I agree that the judgment of the District Court should be affirmed. The history of this reapportionment and of the legislature's failure to comply with the plain and patient directions of the three-judge District Court and the failure of the legislature to use either accurate 1960 census figures or other systematically obtained figures for all the districts—these factors strongly support the District Court's refusal to accept the Missouri plan. It is true that on the average, there was only a 1.6% variation from what the majority quaintly calls the 'ideal' (meaning the 1960 census figures) and in only three of the 10 districts was there a variation of 2% or more, and it is also true that there is no finding of gerrymandering. But regardless of the possibility that variances within this range might in some situations be considered tolerable within Wesberry's standard, I agree that we should sustain the District Court's rejection of the plan in light of the history of the cases and the record of the plan's preparation.
1
The redistricting effected by the 1967 Act, based on a population of 4,319,813 according to the 1960 census, is as follows:
% Variation
District No. Population. From Ideal.
One 439,746 +1.80
Two 436,448 +1.03
Three 436,099 +0.95
Four 419,721 -2.84
Five 431,178 -0.19
Six 422,238 -2.26
Seven 436,769 +1.11
Eight 445,523 +3.13
Nine 428,223 -0.87
Ten 423,868 -1.88
Ideal population per district....... 431,981
Average variation from ideal........... 1.6%
Ratio of largest to smallest district. 1.06 to 1
Number of districts within 1.88% of ideal. 7
Population difference between largest and smallest districts 25,802
2
Contrary to appellants' assertion, we have not sustained the constitutionality of any congressional districting plan with population variances of the magnitude found in the Missouri plan. In Connor v. Johnson, 386 U.S. 483, 87 S.Ct. 1174, 18 L.Ed.2d 224 (1967), the only issue presented to this Court was whether the districting plan involved racial gerrymandering. Alton v. Tawes, 384 U.S. 315, 86 S.Ct. 1590, 16 L.Ed.2d 586 (1966), and Kirk v. Gong, 389 U.S. 574, 88 S.Ct. 695, 19 L.Ed.2d 784 (1968), involved situations where the lower courts themselves had reapportioned the districts on an emergency basis, and our affirmances were based on agreement with the use of the plans in that the circumstance, and not on any view that the plans in question achieved equality as nearly as practicable. DB (7) We therefore turn to the question whether the record establishes any legally acceptable justification for the population variances. It was the burden of the State 'to present * * * acceptable reasons for the variations among the populations of the various * * * districts * * *.' Swann v. Adams, supra, at 443—444, 87 S.Ct. at 572.
3
Brief for Appellants 37—38.
4
It is dubious in any event that the temptation to gerrymander would be much inhibited, since the legislature would still be free to choose which of several subdivisions, all with their own political complexion, to include in a particular congressional district. Besides, opportunities for gerrymandering are greatest when there is freedom to construct unequally populated districts. '(T)he artistry of the political cartographer is put to its highest test when he must work with constituencies of equal population. At such times, his skills can be compared to those of a surgeon, for both work under fixed and arduous rules. However, if the mapmaker is free to allocate varying populations to different districts, then the butcher's cleaver replaces the scalpel; and the results reflect sharply the difference in the method of operation.' A. Hacker, Congressional Districting 59 (1964 rev. ed.).
1
I would find it constitutionally entirely acceptable for a State to base its apportionment on numbers of residents, rather than total population, in each district at the time the districts are established. This would permit adjustments to take account, for example, of distortions resulting from large numbers of nonresidents at military installations or colleges in an area.
2
In Avery v. Midland County, 390 u.S. 474 495, 88 S.Ct. 1114, 1125, 20 L.Ed.2d 45 (1968), I argued in a dissenting opinion that consideration of disparate local interests might be appropriate with respect to defining certain types of local government units exercising limited governmental powers. I noted there, however, that the same factors could not justify departing from the one man, one vote theory in state legislatures—or, I might now add, congressional districts—because of the general and basic nature of the function performed.
3
The basic enumeration error in the census—that is the variation which would be observed between successive enumerations of the same area—is very low. Second surveys of selected areas, conducted by specially trained enumerators, produced counts varying by only about 1% for the whole population from the counts of the regular enumerators. For particular groups in the population, the variance was significantly larger. See U.S. Bureau of the Census, Evaluation and Research Program of the U.S. Censuses of Population and Housing, 1960, 'Accuracy of Data on Population Characteristics as Measured by Re-interviews,' Ser. ER 60, No. 4 (1964), Table 24, p. 22.
Far more significant than variations between successive enumerations are errors—virtually all undercountings—which are produced by the inherent limitations of the enumerating system. A Census Bureau estimate indicates that the 1960 census counted only 96.9% of the whole population, 3.1% of the people not being found and counted by the enumerators. Undercounting was not evenly distributed over the whole population. Instead, members of certain groups, notably young adult Negroes, were far more likely to be missed by the enumerators. For nonwhites in all age groups the census was estimated to understate the actual population by 9.5% For young adult Negro males undercounting reached nearly 20% for some five-year age groups. See generally, Siegel, Completeness of Coverage of the Nonwhite Population in the 1960 Census and Current Estimates, and Some Implications, Report, Conference on Social Statistics and the City (Washington, D.C., June 22—23, 1967) 13 (Heer ed., 1968). Because the heavily undercounted groups are not evenly distributed over the country, the differential rates of undercounting produce divergences between the actual relative populations of particular areas and those indicated by the census.
4
The Census Bureau has estimated that of Missouri's 114 counties, 50 lost population between 1960 and 1966, while 64 gained. The independent city of St. Louis lost 57,900, or 7.7%; St. Louis County gained 146,000 or 20.8%. Outside St. Louis City and County, the absolute change ranged from a 22,100 increase in St. Charles County to a 7,100 decrease in Dunklin County. The percentage change ranged from a 41.7% increase in St. Charles County to a 21.4% decrease in Holt County. Estimates of the Population of Counties: July 1, 1966 (Report No. 3), Current Population Reports, Population Estimates, Ser. P—25, No. 407 (Bureau of the Census, October 10, 1968) 11—13.
5
Cf. Reynolds v. Sims, 377 U.S. 533, 578, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964):
'For the present, we deem it expedient not to attempt to spell out any precise constitutional tests. What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case. Developing a body of doctrine on a case-by-case basis appears to us to provide the most satisfactory means of arriving at detailed constitutional requirements in the area of state legislative apportionment.'
| 12
|
394 U.S. 678
89 S.Ct. 1379
22 L.Ed.2d 642
UNITED § ATES, Petitioner,v.SKELLY OIL COMPANY.
No. 280.
Argued Jan. 15, 1969.
Decided April 21, 1969.
Rehearing Denied June 2, 1969.
See 395 U.S. 941, 89 S.Ct. 1992.
Sol. Gen. Erwin N. Griswold, for petitioner.
Robert J. Casey, New York City, for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
During its tax year ending December 31, 1958, respondent refunded $505,536.54 to two of its customers for over charges during the six preceding years. Respondent, an Oklahoma producer of natural gas, had set its prices during the earlier years in accordance with a minimum price order of the Oklahoma Corporation Commission. After that order was vacated as a result of a decision of this Court, Michigan Wisconsin Pipe Line Co. v. Corporation Comm. of Oklahoma, 355 U.S. 425, 78 S.Ct. 409, 2 L.Ed.2d 412 (1958), respondent found it necessary to settle a number of claims filed by its customers; the repayments in question represent settlements of two of those claims. Since respondent had claimed an unrestricted right to its sales receipts during the years 1952 through 1957, it had included the $505,536.54 in its gross income in those years. The amount was also included in respondent's 'gross income from the property' as defined in § 613 of the Internal Revenue Code of 1954, the section which allows taxpayers to deduct a fixed percentage of certain receipts to compensate for the depletion of natural resources from which they derive income. Allowable percentage depletion for recipts from oil and gas wells is fixed at 27 1/2% of the 'gross income from the property.' Since respondent claimed and the Commissioner allowed percentage depletion deductions during these years, 27 1/2% of the receipts in question was added to the depletion allowances to which respondent would otherwise have been entitled. Accordingly, the actual increase in respondent's taxable income attributable to the receipts in question was not $505,536.54, but only $366,513.99. Yet, when respondent made its refunds in 1958, it attempted to deduct the full $505,536.54. The Commissioner objected and assessed a deficiency. Respondent paid and, after its claim for a refund had been disallowed, began the present suit. The Government won in the District Court, 255 F.Supp. 228 (D.C.N.D.Okl.1966), but the Court of Appeals for the Tenth Circuit reversed, 392 F.2d 128 (1968). Upon petition by the Government, we granted certiorari, 393 U.S. 820, 89 S.Ct. 121, 21 L.Ed.2d 92 (1968), to consider whether the Court of Appeals decision had allowed respondent 'the practical equivalent of double deduction,' Charles Ilfeld Co. v. Hernandez, 292 U.S. 62, 68, 54 S.Ct. 596, 598, 78 L.Ed. 1127 (1934), in conflict with past decisions of this Court and sound principles of tax law. We reverse.
I.
2
The present problem is an out-growth of the so-called 'claim-of-right' doctrine. Mr. Justice Brandeis, speaking for a unanimous Court in North American Oil Consolidated v. Burnet, 286 U.S. 417, 424, 52 S.Ct. 613, 615, 76 L.Ed. 1197 (1932), gave that doctrine its classic formulation. 'If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.' Should it later appear that the taxpayer was not entitled to keep the money, Mr. Justice Brandeis explained, he would be entitled to a deduction in the year of repayment; the taxes due for the year of receipt would not be affected. This approach was dictated by Congress' adoption of an annual accounting system as an integral part of the tax code. See Burnet v. Sanford & Brooks Co., 282 U.S. 359, 365—366, 51 S.Ct. 150, 152, 75 L.Ed. 383 (1931). Of course, the tax benefit from the deduction in the year of repayment might differ from the increase in taxes attributable to the receipt; for example, tax rates ight have changed, or the taxpayer might be in a different tax 'bracket.' See Healy v. Commissioner of Internal Revenue, 345 U.S. 278, 284—285, 73 S.Ct. 671, 675, 97 L.Ed. 1007 (1953). But as the doctrine was originally formulated, these discrepancies were accepted as an unavoidable consequence of the annual accounting system.
3
Section 1341 of the 1954 Code was enacted to alleviate some of the inequities which Congress felt existed in this area.1 See H.R.Rep. No. 1337, 83d Cong., 2d Sess., 86—87 (1954); S.Rep. No. 1622, 83d Cong., 2d Sess., 118—119 (1954), U.S.Code Cong. & Admin.News, p. 4629. As an alternative to the deduction in the year of repayment2 which prior law allowed, § 1341(a)(5) permits certain taxpayers to recompute their taxes for the year of receipt. When ever § 1341(a)(5) applies, taxes for the current year are to be reduced by the amount taxes were increased in the year or years of receipt because the disputed items were included in gross income. Nevertheless, it is clear that Congress did not intend to tamper with the underlying claim-of-right doctrine; it only provided an alternative for certain cases in which the new approach favored the taxpayer. When the new approach was not advantageous to the taxpayer, the old law was to apply under § 1341(a)(4).
4
In this case, the parties have stipulated that § 1341(a)(5) does not apply. Accordingly, as the courts below recognized, respondent's taxes must be computed under § 1341(a)(4) and thus, in effect, without regard to the special relief Congress provided through the enactment of § 1341. Nevertheless, respondent argues, and the Court of Appeals seems to have held, that the language used in § 1341 requires that respondent be allowed a deduction for the full amount it refunded to its customers. We think the section has no such significance.
5
In describing the situations in which the section applies, § 1341(a)(2) talks of cases in which 'a deduction is allowable for the taxable year because it was established after the close of (the year or years of receipt) that the taxpayer did not have an unrestricted right to such item * * *.' The 'item' referred to is first mentioned in § 1341(a)(1); it § the item included in gross income in the year of receipt. The section does not imply in any way that the 'deduction' and the 'item' must necessarily be equal in amount. In fact, the use of the words 'a deduction' and the placement of § 1341 in subchapter Q—the subchapter dealing largely with side effects of the annual accounting system—make it clear that it is necessary to refer to other portions of the Code to discover how much of a deduction is allowable. The regulations promulgated under the section make the necessity for such a cross-reference clear. Treas.Reg. on Income Tax (1954 Code) § 1.1341—1 (26 CFR § 1.1341—1). Therefore, when § 1341(a)(4)—the subsection applicable here—speaks of 'the tax * * * computed with such deduction,' it is referring to the deduction mentioned in § 1341(a)(2); and that deduction must be determined, not by any mechanical equation with the 'item' originally included in gross income, but by reference to the applicable sections of the Code and the case law developed under those sections.
II.
6
There is some dispute between the parties about whether the refunds in question are deductible as losses under § 165 of the 1954 Code or as business expenses under § 162.3 Although in some situations the distinction may have relevance, cf. Equitable Life Ins. Co. of Iowa v. United States, 340 F.2d 9 (C.A.8th Cir. 1965), we do not think it makes any difference here. In either case, the Code should not be interpreted to allow respondent 'the practical equivalent of double deduction,' Charles Ilfeld Co. v. Hernandez, 292 U.S. 62, 68, 54 S.Ct. 596, 598, 78 L.Ed. 1127 (1934), absent a clear declaration of intent by Congress. See United States v. Ludey, 274 U.S. 295, 47 S.Ct. 608, 71 L.Ed. 1054 (1927). Accordingly, to avoid that result in this case, the deduction allowable in the year of repayment must be reduced by the percentage depletion allowance which respondent claimed and the Commissioner allowed in the years of receipt as a result of the inclusion of the later-refunded items in respondent's 'gross income from the property' in those years. Any other approach would allow respondent a total of $1.27 1/2 in deductions for every $1 refunded to its customers.
7
Under the annual accounting system dictated by the Code, each year's tax must be definitively calculable at the end of the tax year. 'It is the essence of any system of taxation that it should produce revenue ascertainable, and payable to the government, at regular intervals.' Burnet v. Sanford & Brooks Co., supra, 282 U.S. at 365, 51 S.Ct. at 152. In cases arising under the claim-of-right doctrine, this emphasis on the annual accounting period normally requires that the tax consequences of a receipt should not determine the size of the deduction allowable in the year of repayment. There is no requirement that the deduction save the taxpayer the exact amount of taxes he paid because of the inclusion of the item in income for a prior year. See Healy v. Commissioner of Internal Revenue, supra.
8
Nevertheless, the annual accounting concept does not require us to close our eyes to what happened in prior years. For instance, it is well settled that the prior year may be examined to determine whether the repayment gives rise to a regular loss or a capital loss. Arrowsmith v. Commissioner of Internal Revenue, 344 U.S. 6, 73 S.Ct. 71, 97 L.Ed. 6 (1952). The rationale for the Arrowsmith rule is easy to see; if money was taxed at a special lower rate when received, the taxpayer would be accorded an unfair tax windfall if repayments were generally deductible from receipts taxable at the higher rate applicable to ordinary income. The Court in Arrowsmith was unwilling to infer that Congress intended such a result.
9
This case is really no different.4 In essence, oil and gas producers are taxed on only 72 1/2% of their 'gross income from the property' whenever they claim percentage depletion. The remainder of their oil and gas receipts is in reality tax exempt. We cannot believe that Congress intended to give taxpayers a deduction for refunding money that was not taxed when received. Cf. O'Meara v. Commissioner, 8 T.C. 622, 634—635 (1947). Accordingly, Arrowsmith teaches that the full amount of the repayment cannot, in the circumstances of this case, be allowed as a deduction.
10
This result does no violence to the annual accounting system. Here, as in Arrowsmith, the earlier returns are not being reopened. And no attempt is being made to require the tax savings from the deduction to equal the tax consequences of the receipts in prior years.5 In addition, the approach here adopted will affect only a few cases. The percentage depletion allowance is quite unusual; unlike most other deductions provided by the Code, it allows a fixed portion of gross income to go untaxed. As a result, the depletion allowance increases in years when disputed amounts are received under claim of right; there is no corresponding decrease in the allowance because of later deductions for repayments.6 Therefore, if a deduction for 100% of the repayments were allowed, every time money is received and later repaid the taxpayer would make a profit equivalent to the taxes on 27 1/2% of the amount refunded. In other situations when the taxes on a receipt do not equal the tax benefits of a repayment, either the taxpayer or the Government may, depending on circumstances, be the beneficiary. Here, the taxpayer always wins and the Government always loses. We cannot believe that Congress would have intended such an inequitable result.
11
The parties have stipulated that respondent is entitled to a judgment for $20,932.64 plus statutory interest for claims unrelated to the matter in controversy here; the District Court entered a judgment for that amount. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to that court with instructions that it be returned to the District Court for re-entry of the original District Court judgment.
12
Reversed and remanded.
13
Mr. Justice DOUGLAS, dissenting.
14
I share Mr. Justice STEWART's views as to this case and add nly a word.
15
If we sat in chancery reviewing tax cases, much of what the Court says would have appeal. But we do not sit to do equity in tax cases; that is one of Congress' main concerns.
16
The search for equity in the tax laws is wondrous and elusive. As Edmond Cahn said: '(T)hose only are equal whom the law has elected to equalize.' E. Cahn, The Sense of Injustice 14 (1949).
17
Percentage depletion had its roots in granting a reward to men who go into undeveloped territory in search of oil and gas. But today it is granted anyone who has an interest in oil or gas; the beneficiary need not live the life of the oil wildcatter or bear his risks to obtain the benefits of percentage depletion.
18
When it comes to capital gains what 'equities' are to be applied? Is it fair that earned income pay a heavier tax?
19
A son who spends $1,000 on his destitute father does not get the same tax benefit as he who pays a like sum to his alma mater. Louis Eisenstein pursues example after example of so-called inequities in tax laws in his book The Ideologies of Taxation (1961). For example, the profits on the sale of unbred pigs are taxable as ordinary income, while the profits on the sale of pigs once bred are taxable as capital gains. Id., 174. The same is true of turkeys but not of chickens, even though 'a bred chicken and a bred turkey are similarly situated. Each has feathers and two legs.' Ibid.
20
Treasury recently noted numerous basic inequities resulting in preferred tax treatment for some people's dollars. Tax Reform Studies and Proposals, U.S. Treasury Dept., Joint Publication of House Committee on Ways and Means and Senate Committee on Finance, 91st Cong., 1st Sess., pt. 1, pp. 13, 17 (Comm. Print 1969).
21
Apart from certain aspects of percentage depletion were the reduced taxation on long-term capital gains and the exclusion of interest on state and local government bonds. The examples are legion. The Tax Reform study gives an unusual example:
22
'An individual had a total income of $1,284,718 of which $1,210,426 was in capital gains, the remaining $74,292 from wages, dividends, and interest. He excluded one-half of his capital gains, which he is allowed to do under present law, thereby reducing his present law (adjusted gross) income to $679,405 (after allowing for the $100 dividend exclusion). From this income he subtracted all his personal deductions, which amounted to $676,419 and which included $587,693 for interest on funds borrowed presumably for the purpose of purchasing the securities on which the capital gains were earned. As a result, after allowing $1,200 of personal exemptions his taxable income was reduced to $1,786 and he paid a tax of $274. His overall tax rate, therefore, was about two-hundredths of one percent.' Id., at 15.
23
This was made possible by using a taxpayer's deductions only against that part of his income which is subject to the tax, ignoring the excluded part.
24
Tax laws are indeed arbitrary; the lines they draw are the products of pressures inside the Congress with compromises carrying the day.
25
The Court of Appeals held that the 'item' here in question was properly included in 'gross income' prior to 1958 and was an allowable 'deduction' in 1958 because the taxpayer did not have 'an unrestricted right' to a 'portion of such item,' and that the amount of such deduction exceeds $3,000—all as provided in § 1341.1 Skelly Oil Co. v. United States, 10 Cir., 392 F.2d 128, 131.
26
There is no irregularity on the face of the return. There is no conflict with any decision of any other Court of Appeals. We are asked, however, to put a gloss on the statute that Treasury desires. I would adhere to the construction given by the Court of Appeals leaving to Congress the correction of any inequities in the tax scheme.
27
The Congress many years ago created the Joint Committee on Internal Revenue Taxation, which is a standing committee. 26 U.S.C. §§ 8001—8005, 8021—8023. One of its statutory mandates is '(t)o investigate the operation and effects of the Federal system of internal revenue taxes.' Id., § 8022.
In that connection a recent report states:
28
'(T)he Joint Committee staff has in recent years been used as a committee liaison with the Treasury Department in working on tax proposals for the committee. The staff aids the two tax committees in explaining provisions, in writing committee reports, and in aiding in the drafting of bills.'
29
The Joint Committee makes regular reports to Congress for revision of the tax laws. Inequities that arise as a result of interpretations that are given existing laws either at the administrative or judicial level can be quickly corrected by this agency of oversight.2
30
Treasury unhappily has developed the habit of jockeying in the courts, testing one theory against another. In California, it may take one position and in Massachusetts the opposite position, the issue in each being the same. The hope is that conflicts over litigious and important issues will develop and the case will be brought here.3
31
If we were trained in the art and science of taxation, we might serve a useful function. But taxation is a specialty in which we have only sporadic and no continuous experience. It has been said that one of our decisions is like a 'lightning bolt' that 'illuminates only a very small portion of the landscape,' leaving a darkness that later decisions do not remove. R. Paul, Studies in Federal Taxation 249—250 (3d series 1940). Our contributions, if such they can be called, are dubious indeed, for the Joint Committee can and does rewrite the Code frequently.
32
It is therefore the rare tax case4 we should consider, except the even rarer constitutional case. The present case has no constitutional overtones; the taxpayer followed the words of the tax law literally, using no new or strained construction of words to find a tax advantage; there is no conflict between this case and any other decision. The Solicitor General only claims that the result reached by the Court of Appeals does not fit the neat logic which he finds in a group of related tax cases.
33
An account of the cost, confusion, and inequity in tax administration that ensues while everyone waits for a conflict among the Circuits (which takes at least 10 years) is related in Griswold, The Need for a Court of Tax Appeals, 57 Harv.L.Rev. 1153 (1944). The role we presently play was stated as follows:
34
'Our present system of tax adjudication inevitably leaves nearly every question uncertain during the entire period while it must be dealt with, usually in thousands of instances, by the administrative officers. And yet that is just the period when there should be an authoritative rule if the system is to work smoothly, effectively, speedily, fairly, and without discrimination. Under our present system delay and discrimination are typical and inevitable.' Id., at 1161.
35
In absence of an unmistakably clear conflict among the Circuits, I would abide by the opinions of the Courts of Appeals in tax cases and leave to the Joint Committee whether the gloss which Treasury now tries to put on the statute is or is not desirable.
36
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS and Mr. Justice HARLAN join, dissenting.
37
The Court today denies the respondent a tax benefit fairly provided by the Code for no other discernible reasons than that, under the statute as written, 'the taxpayer always wins and the Government always loses,'1 and that 'the approach here adopted will affect only a few cases.' Ante, at 686. But we are not free, even in a few cases, to abandon settled principles of annual accounting and statutory construction merely to avoid what the Court thinks Congress might consider an 'inequitable result.'2
38
'(T)he rule that general equitable considerations do not control the measure of deductions or tax benefits cuts both ways. It is as applicable to the Government as to the taxpayer. Congress may be strict or lavish in its allowance of deductions or tax benefits. The formula it writes may be arbitrary and harsh in its applications. But where the benefit claimed by the taxpayer is fairly within the statutory language and the construction sought is in harmony with the statute as an organic whole, the benefits will not be withheld from the taxpayer though they represent an unexpected windfall.' Lewyt Corp. v. Commissioner of Internal Revenue, 349 U.S. 237, 240, 75 S.Ct. 736, 738, 99 L.Ed. 1029.
39
From any natural reading of § 1341, it is apparent that Congress believed the 'deduction' in § 1341(a)(2) would be in the amount of the 'item' described in § 1341(a)(1). If that understanding is not manifest from the face o the statute and the legislative history,3 it is the unavoidable inference from a study of the pre-1954 law which the Court concedes § 1341(a)(4) was intended to codify. In every case in this area previously decided by the Court the amount deductible in the year of repayment was considered to be exactly the same as the amount of the previously included item. In two of the cases most sharply in congressional focus in 1954, the Government had conceded without hesitation that the taxpayers were 'entitled to a deduction for a loss in the year of repayment of the amount earlier included in income. Healy v. Commissioner of Internal Revenue, 345 U.S. 278, 284, 73 S.Ct. 671, 675, 97 L.Ed. 1007. See also United States v. Lewis, 340 U.S. 590, 591, 71 S.Ct. 522, 523, 95 L.Ed. 560. That has been the express position of the Treasury since at least 1936,4 and the Court today has not cited a single instance of deviation from that understanding.
40
The Court says that § 1341 is not alone controlling and that 'it is necessary to refer to other portions of the Code to discover how much of a deduction is allowable.' Ante, at 683. I agree that § 1341 must be considered in the context of the Internal Revenue Code as an 'organic whole.' But no other provisions of the Code in any manner bolster the Court's argument. The Court assumes, quite correctly, that either § 162 or § 165 does permit a deduction for the refund. But it does not, and cannot, suggest that either of those sections—or any other statutory provision—limits the amount of the deduction for the undeniable loss of profits in the full amount of the repayment. Instead the Court assumes a broad equitable authority to weed out tax benefits which it calls 'double deductions'—a characterization wholly inapposite to the facts of this case.
41
In prior decisions disallowing what truly were 'double deductions,' the Court has relied on evident statutory indications, not just its own view of the equities, that Congress intended to preclude the second deduction. In those cases the taxpayers sought to enefit twice from the same statutory deduction.5 In this case, by contrast, the respondent had taken two different deductions accorded by Congress for distinct purposes. In the years 1952 through 1957 it deducted the proper amounts for depletion—a deduction which is allowed by Congress 'on the theory that the extraction of minerals gradually exhausts the capital investment in the mineral deposit,' and which is 'designed to permit a recoupment of the owner's capital investment in the minerals so that when the minerals are exhausted, the owner's capital is unimpaired.' Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 312, 76 S.Ct. 395, 397, 100 L.Ed. 347. The respondent's 1958 deduction was granted by Congress for the entirely different reason that the refund of previously reported income constituted a loss, or business expense. In purpose and effect the deductions are wholly unrelated, and each is sustainable on its own merits. Certainly it cannot be said either that the respondent did not in fact exhaust the capital assets for which the deductions were allowed in 1952 through 1957 or that it did not suffer a business loss by the 1958 repayment.
42
The sole nexus between these distinct transactions on which the Court constructs its 'double deduction' theory is that the depletion deductions were computed as a percentage of gross income from the property. But this fact cannot distinguish percentage depletion from any other deduction. If the respondent had elected to take cost depletion in 1952 through 1957, for example, there would also have been a portion of the gross income in those years perhaps less than 27 1/2%, perhaps more—which was not included in taxable income. Whether a deduction is computed as a fixed percentage of income or in some other manner, it always reduces by some percentage the income which is ultimately taxed. There are other deductions, of course, whose amount is a function of a certain percentage of the taxpayer's income. With respect to the individual taxpayer, the standard 10% deduction, § 141, and those for charitable contributions, § 170, and medical expenses, § 213, are doubtless the most frequent. Under the Court's ruling today, any taxpayer who repays money included in gross income in a prior year in which he also took one of the above mentioned deductions will have to reduce his refund deduction by that portion of the previous year's deduction at ributable to the included income. Surely this result contravenes the purpose of the annual accounting concept to prevent recomputations of the prior year's tax.
43
The Court says today that there can be no deduction 'for refunding money that was not taxed when received.' Ante, at 685. This means nothing less than that, whenever a taxpayer seeks to deduct a refund of money received as income under a claim of right in a prior year, the deduction must be reduced by the percentage of gross income in that prior year which, for whatever reason, was not also taxable income. Otherwise there will be precisely the same kind of so-called 'double deduction' as the Court finds in this case.
44
It is clear that the Court has wrought a major transformation of the deduction which has heretofore been allowed and which Congress recognized in § 1341(a) (4). That deduction is permitted because, in the words of § 1341, the item 'was included in gross income for a prior taxable year' (emphasis added), not because it was included in taxable income. It is no answer to say that the 'annual accounting concept does not require us to close our eyes to what happened in prior years.' Ante, at 684. Of course we must look to the prior years to ascertain the amounts included in gross income and the nature of that income as it bears on the provision under which it is deductible in the year of repayment. Arrowsmith v. Commissioner of Internal Revenue, 344 U.S. 6, 73 S.Ct. 71, 97 L.Ed. 6.6 But the very purpose of the annual accounting concept is to preclude adjustments in the amount of the deduction to reflect the tax consequences of the item's inclusion in the prior year.
45
'Congress has enacted an annual accounting system under which income is counted up at the end of each year. It would be disruptive of an orderly collection of the revenue to rule that the accounting must be done over again to reflect events occurring after the year for which the accounting is made, and would violate the spirit of the annual accounting system. This basic principle cannot be changed simply because it is of advantage to a taxpayer or to the Government in a particular case that a different rule be followed.' Healy v. Commissioner of Internal Revenue, 345 U.S. 278, 284—285, 73 S.Ct. 671, 675.
46
One of the major factors, in addition to changes in tax rates and brackets, that determine who will benefit from adherence to the annual accounting principles embodied in § 1341(a)(4) is the extent to which the taxpayer had deductions in the prior or subsequent taxable years to offset gross income. And it is no less inconsistent with annual accounting principles to pare down the allowable loss deduction in the year of repayment because of other deductions in the year of inclusion than because of a lower tax rate or bracket in that year.
47
Because I cannot agree that the Court's equitable sensibilities empower it to depart from the sound principles of tax accounting specifically endorsed by Congress in § 1341, I respectfully dissent.
1
Section 1341(a) provides:
'If—
'(1) an item was included in gross income for a prior taxable year (or years) because it appeared that the taxpayer had an unrestricted right to such item;
'(2) a deduction is allowable for the taxable year because it was established after the close of such prior taxable year (or years) that the taxpayer did not have an unrestricted right to such item or to a portion of such item; and
'(3) the amount of such deduction exceeds $3,000,
'then the tax imposed by this chapter for the taxable year shall be the lesser of the following:
'(4) the tax for the taxable year computed with such deduction; or
'(5) an amount equal to—
'(A) the tax for the taxable year computed without such deduction, minus
'(B) the decrease in tax under this chapter (or the corresponding provisions of prior revenue laws) for the prior taxable year (or years) which would result solely from the exclusion of such item (or portion thereof) from gross income for such prior taxable year (or years).
'For purposes of paragraph (5)(B), the corresponding provisions of the Internal Revenue Code of 1939 shall be chapter 1 of such code (other than subchapter E, relating to self-employment income) and subchapter E of chapter 2 of such code.'
Section 1341(b)(2) contains an exclusion covering certain cases involving sales of stock in trade or inventory. However, because of special treatment given refunds made by regulated public utilities, both parties agree that § 1341(b)(2) is inapplicable to this case and that, accordingly, § 1341(a) applies.
2
In the case of an accrual-basis taxpayer, the legislative history makes it clear that the deduction is allowable at the proper time for accrual. H.R.Rep. No. 1337, 83 Cong., 2d Sess., A294 (1954); S.Rep. No. 1622, 83d Cong., 2d Sess., 451—452 (1954).
3
The Commissioner has long recognized that a deduction under some section is allowable. G.C.M. 16730, XV—1 Cum. Bull. 179 (1936).
4
The analogy would be even more striking if in Arrowsmith the individual taxpayers had not utilized the alternative tax for capital gains, as they were permitted to do by what is now § 1201 of the 1954 Code. Where the 25% alternative tax is not used, individual taxpayers are taxed at ordinary rates on 50% of their capital gains. See § 1202. In such a situation, the rule of the Arrowsmith case prevents taxpayers from deducting 100% of an item refunded when they were taxed on only 50% of it when it was received. Although Arrowsmith prevents this inequitable result by treating the repayment as a capital loss, rather than by disallowing 50% of the deduction, the policy behind the decision is applicable in this case. Here it would be inequitable to allow a 100% deduction when only 72 1/2% was taxed on receipt.
5
Compare the analogous approach utilized under the 'tax benefit' rule. Alice Phelan Sullivan Corp. v. United States, 381 F.2d 399, 180 Ct.Cl. 659 (1967); see Internal Revenue Code of 1954 § 111. In keeping with the analogy, the Commissioner has indicated that the Government will only seek to reduce the deduction in the year of repayment to the extent that the depletion allowance attributable to the receipt directly or indirectly reduced taxable income. Proposed Treas.Reg. § 1.613-2(c)(8), 33 Fed.Reg. 10702 10703 (1968).
6
The 10% standard deduction mentioned in Mr. Justice STEWART'S dissent, post, at 697, differs in that it allows as a deduction a percentage of adjusted gross income, rather than of gross income. See § 141; cf. §§ 170, 213. As a result, repayments may in certain cases cause a decrease in the 10% standard deduction allowable in the year of repayment, assuming that the repayment is of the character to be deducted in calculating adjusted gross income. See § 62.
1
Section 1341 reads as follows:
(a) General rule. If—
'(1) an item was included in gross income for a prior taxable year (or years) because it appeared that the taxpayer had an unrestricted right to such item;
'(2) a deduction is allowable for the taxable year because it was established after the close of such prior taxable year (or years) that the taxpayer did not have an unrestricted right to such item or to a portion of such item; and
'(3) the amount of such deduction exceeds $3,000,
'then the tax imposed by this chapter for the taxable year shall be the lesser of the following:
'(4) the tax for the taxable year computed with such deduction; or
'(5) an amount equal to—
'(A) the tax for the taxable year computed without such deduction, minus
'(B) the decrease in tax * * * for the prior taxable year * * *which would result solely from the exclusion of such item * * * from gross income for such prior taxable year * * *.'
2
Perhaps the most egregious error that we made in my time (one for which I take partial blame), was Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, an opinion for the Court, written by Mr. Justice Frankfurther that overruled Helvering v. St. Louis Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, and Becker v. St. Louis Union Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35. This is one classic example of the type of problem which should be left to the Joint Committee.
3
For a classic example see R. Paul, Studies in Federal Taxation 449—450 (3d series 1940).
4
The validity of Regulations and the effect of re-enactment of a statutory provision on them present distinct questions. Helvering v. Wilshire Oil Co., 308 U.S. 90, 60 S.Ct. 18, 84 L.Ed. 101; Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 68 S.Ct. 695, 92 L.Ed. 831; Commissioner of Internal Revenue v. Stidger, 386 U.S. 287, 87 S.Ct. 1065, 18 L.Ed.2d 53.
1
Section 1341, of course, is designed precisely to create a situation where 'the taxpayer always wins and the Government always loses.' Strict adherence to annual accounting and the claim-of-right doctrine before 1954 sometimes benefited the taxpayer, sometimes the Government. Section 1341 retains those principles where they benefit the taxpayer but allow recomputation of the taxes of a prior year if that method would result in a greater tax saving.
2
Judicial assumptions that Congress did not intend liberal benefits for taxpayers are particularly suspect in the area of percentage depletion, perhaps the most generous business deduction in the Code. And Congress had the recipients of percentage depletion specifically in mind when it drafted § 1341. The House bill excluded from the coverage of § 1341 all refunds relating to inventory sales. The Senate Committee promptly removed refunds by regulated utilities from this exclusion with the following remarks:
'Your committee's bill provides that the exclusion of refunds pertaining to inventory sales will not exclude from the benefits of this section refunds made by a regulated public utility where the refunds are required to be made by the regulatory body, such as the Federal Power Commission. It is made clear, for example, that refunds of charges for the sale of natural gas under rates approved temporarily would be eligible for the benefits of this section.' S.Rep. No. 1622, 83d Cong., 2d Sess., 118 (1954).
3
The House and Senate Reports give no indication that Congress thought the deduction would be other than the amount of the item included in gross income for the prior year. They refer to the amount of the deduction and of the item interchangeably.
'If the taxpayer included an item in gross income in one taxable year, and in a subsequent taxable year he becomes entitled to a deduction because the item or a portion thereof is no longer subject to his unrestricted use, and the amount of the deduction is in excess of $3,000, the tax for the subsequent year is reduced by either the tax attributable to the deduction or the decrease in the tax for the prior year attributable to the removal of the item, whichever is greater. Under the rule of the Lewis case (340 U.S. 590, 71 S.Ct. 522 (95 L.Ed. 560) (1951)), the taxpayer is entitled to a deduction only in the year of repayment.
'In the case of a cash-basis taxpayer, in order to be entitled to a deduction in the later year, the amount must be repaid. However, in the case of an accrual-basis taxpayer, if the item was accrued but never received, the section applies when the deduction accrues in the later year although there is, of course, no amount to be repaid.' S.Rep. No. 1622, supra, n. 2, at 451.
See also H.R.Rep. No. 1337, 83d Cong., 2d Sess., A294 (1954).
4
See G.C.M. 16730, XV—1 Cum.Bull. 179, 181 (1936):
'In the instant case the taxpayer received the income under a claim of right and without restriction as to its disposition. On authority of the cases cited herein, this office is of the opinion that the profits in question should not be eliminated from the taxpayer's gross income for the years 1928 and 1929 (the years of inclusion), but that the taxpayer is entitled to a deduction, for the year in which paid, of the amount of the profits paid * * *.' (Emphasis supplied.) See also 2 J. Mertens, Law of Federal Income Taxation § 12.106a, p. 431 (P. Zimet & J. Stanley rev. ed. 1967).
5
Charles Ilfeld Co. v. Hernandez, 292 U.S. 62, 54 S.Ct. 596, 78 L.Ed. 1127, and United States v. Ludey, 274 U.S. 295, 47 S.Ct. 608, 71 L.Ed. 1054, both involved situations in which the taxpayer tried to take the same deduction twice. In Ilfeld the taxpayer had taken deductions, through consolidated returns, for the annual losses of its subsidiaries; when the subsidiaries' assets were sold and the companies dissolved, the parent taxpayer sought to take deductions for losses of its investment in the subsidiaries. As the Court held, 'The allowance claimed would permit (the parent) twice to use the subsidiaries' losses for the reduction of its taxable income,' a double deduction that 'nothing in the Act * * * purports to authorize * * *.' 292 U.S., at 68, 54 S.Ct., at 598. In Ludey the taxpayer had taken deductions for depletion of his mining properties; but when the properties were sold in the taxable year in question, the taxpayer did not, in computing the gain from the sale, adjust the basis of the property to reflect the depletion deductions. The Court held that depletion allowances, like those for depreciation, are granted in recognition of the fact that the asset is disappearing year by year. When it is disposed of, therefore, 'the thing then sold is not the whole thing originally acquired. The amount of the depreciation must be deducted from the original cost of the whole in order to determine the cost of that disposed of in the final sale of properties. Any other construction would permit a double decuction for the loss of the same capital assets.' 274 U.S., at 301, 47 S.Ct., at 610.
6
As the Court recognizes, ante, at 685, n. 4, the Court in Arrowsmith did not hold that the amount of the deduction in the year of repayment would be reduced because in the year of inclusion the money had been taxed at a lower rate or had been offset by deductions. It held merely that the losses fell within the definition of 'capital losses' contained in the sections authorizing deductions for the repayment. The Court does not in this case point to any comparable statutory provision affecting the nature or amount of the deduction for the refund.
| 1112
|
394 U.S. 700
89 S.Ct. 1391
22 L.Ed.2d 658
NORFOLK MONUMENT COMPANY, Inc.v.WOODLAWN MEMORIAL GARDENS, INC., et al.
No. 1040.
April 21, 1969.
Howard I. Legum and Louis B. Fine, for petitioner.
1
Frederick S. Albrink, for respondent Woodlawn Memorial Gardens, Inc.
2
William C. Worthington, for respondents Rosewood Memorial Park, Inc., and others.
3
Jefferson B. Brown, for respondent Gr enlawn Cemetery Park Corp.
4
Bernard Glasser and Stuart D. Glasser, for respondent Roosevelt Memorial Park & Cemetery Corp.
5
William H. King, for respondents Jas. H. Matthews & Co. of Virginia and others.
6
PER CURIAM.
7
The petitioner, a retailer of burial monuments and bronze grave markers, brought this action for damages and injunctive relief under §§ 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U.S.C. §§ 15, 26, alleging that the respondents had violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2, by conspiring to monopolize and monopolizing the manufacture and sale of bronze grave markers. The respondents—Matthews, a manufacturer of such markers, and five operators of cemeteries (called 'memorial parks') that sell the markers—were charged with having jointly adopted various restrictive devices to prevent, restrict, and discourage sales of markers by the petitioner for installation in the cemeteries. After extensive pretrial discovery, the District Court granted the respondents' motion for summary judgment, concluding that there was no material issue of fact and no evidence of conspiracy. 290 F.Supp. 1. The Court of Appeals affirmed. 4 Cir., 404 F.2d 1008.
8
We cannot agree that on the record before the District Court a jury could not have found that the respondents had conspired to exclude the petitioner from and monopolize the market for bronze grave markers. As Circuit Judge Craven pointed out in his dissenting opinion, the record disclosed the following conduct on the part of the respondents:
9
'(1) Despite the unskilled nature of the work, all of the memorial parks refuse to permit the plaintiff to install markers sold by it; all of them insist that the work be done by the cemeteries themselves.
10
'(2) None of the memorial parks charges lot owners a separate installation fee in the case of markers purchased from the cemeteries.
11
'(3) All of the memorial parks require the payment of an installation fee by the plaintiff for installing markers purchased from the plaintiff. The plaintiff plausibly maintains that the actual cost of installation comes to about $3. Yet, enormous installation fees are charged plaintiff * * *.
12
'(4) All of the memorial parks require a specific alloy content in the bronze markers installed, and reserve the right to reject non-conforming markers. The alloy content requirement happens to be the same as manufacturer Matthews' markers and the same as is implicitly suggested in a pamphlet ('Modern Cemeteries') distributed by Matthews to its customers. All of the memorial parks except Roosevelt are customers of Matthews.
13
'(5) There is evidence that Greenlawn, Woodlawn and Princess Anne have attempted to dissuade lot owners from purchasing markers from the plaintiff. The affidavit of plaintiff's president states that numerous other incidents of this nature have occurred.
14
'(6) Defendant Matthews, in its pamphlet 'Modern Cemeteries,' suggests a number of practices which in effect erect competitive barriers to retailers other than the cemeteries themselves.
15
'(7) Many of these practices have been adopted by the memorial park defendants, as evidenced by affidavits in the record, and by the 'rule books' of Rosewood, Princess Anne and Greenlawn.
16
'(8) There is evidence of numerous visits to and conferences with the memorial parks by sales representatives of Matthews.' 404 F.2d, at 1012—1014.
17
The District Court found that the rules relating to the alloy content and installation of the markers were reasonable '(i)n view of the continuing obligation of perpetual care imposed upon the cemeteries, in (their) contracts with lot owners * * *.' 290 F.Supp., at 3. But the business justification for these restrictive rules was disputed by the petitioner, which proffered evidence that the markers required very little permanent care and that, in any event, the funds for that purpose were already provided from another source. The reasonableness of the rules was a material question of fact whose resolution was the function of the jury and not of the court on a motion for summary judgment. The same is true of the inferences to be drawn from respondent Matthews' pamphlet. The District Court dismissed it as without any possible significance because it was a mere 'form book,' which 'specifically points out * * * that it contains suggested standards of fair and reasonable regulations which the cemetery would be advised to adopt but says that '* * * Jas. H. Matthews & Co. is not permitted to make recommendations and suggests that the reader consult his own attorney."* 290 F.Supp., at 3. Again this self-serving disclaimer raised a question for the jury, and it surely did not alone conclusively rebut the petitioner's contention that the pamphlet evidenced an agreement among the respondents to participate in the alleged restrictive practices.
18
Nor do the other findings of the District Court necessarily dispel the inferences which the jury would be asked by the petitioner to draw. The District Court found, for example, that there was 'a wide divergence of prices' charged for installation 'which would completely negative any systematic scheming or conscious parallelism.' 290 F.Supp., at 3. The petitioner's complaint, however, was not that the respondent cemeteries were charging uniform fees but that they were charging deliberately 'excessive and unreasonable' fees for the purpose of injuring the petitioner. The fact that the District Court appeared to consider dispositive of the conspiracy allegations was that the petitioner's principal officer 'admitted that he has no letters, agreements, correspondence, or any other testimonials to a conspiracy among the several defendants * * *.' 290 F.Supp., at 3. But it is settled that '(n)o formal agreement is necessary to constitute an unlawful conspiracy,' American Tobacco Co. v. United States, 328 U.S. 781, 809, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575, and that 'business behavior is admissible circumstantial evidence from which the fact finder may infer agreement.' Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 540, 74 S.Ct. 257, 259, 98 L.Ed. 273.
19
We express no opinion, of course, on the strength or weakness of the petitioner's case, but hold only that the alleged conspiracy had not been conclusively disproved by pretrial discovery and that there remained material issues of fact which could only be resolved by the jury after a plenary trial. As we have cautioned before, 'summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.' Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458.
20
The writ of certiorari is granted. The judgment is reversed, and the case is remanded for further proceedings in the District Court consistent with this opinion.
21
It is so ordered.
22
Reversed and remanded.
23
Mr. Justice HARLAN, Mr. Justice FORTAS, and Mr. Justice MARSHALL are of the opinion that certiorari should be denied.
*
Judge Craven noted that the reason for the disclaimer is that 'Matthews is under an injunction prohibiting it from making any suggestions to memorial parks as to the quality of markers installed in the parks.' 404 F.2d, at 1013, n. 6. The injunction was entered in one of the three consent decrees which have settled prior antitrust actions against Matthews. See 404 F.2d, at 1014.
| 78
|
394 U.S. 705
89 S.Ct. 1399
22 L.Ed.2d 664
Robert WATTSv.UNITED STATES.
No. 1107, Misc.
Decided April 21, 1969.
Joseph Forer, for petitioner.
Solicitor General Griswold, for the United States.
Ralph J. Temple, Melvin L. Wulf and Lawrence Speiser, for the American Civil Liberties Union and others, as amici curiae.
PER CURIAM.
1
After a jury trial in the United States District Court for the District of Columbia, petitioner was convicted of violating a 1917 statute which prohibits any person from 'knowingly and willfully * * * (making) any threat to take the life of or to inflict bodily harm upon the President of the United States * * *.'* The incident which led to petitioner's arrest occurred on August 27, 1966, during a public rally on the Washington Monument grounds. The crowd present broke up into small discussion groups and petitioner joined a gathering scheduled to discuss police brutality. Most of those in the group were quite young, either in their teens or early twenties. Petitioner, who himself was 18 years old, entered into the discussion after one member of the group suggested that the young people present should get more education before expressing their views. According to an investigator for the Army Counter Intelligence Corps who was present, petitioner responded: 'They always holler at us to get an education. And now I have already received my draft classification as 1—A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.' 'They are not going to make me kill my black brothers.' On the basis of this statement, the jury found that petitioner had committed a felony by knowingly and willfully threatening the President. The United States Court of Appeals for for the District of Columbia Circuit affirmed by a two-to-one vote. 131 U.S.App.D.C. 125, 402 F.2d 676 (1968). We reverse.
2
At the close of the Government's case, petitioner's trial counsel moved for a judgment of acquittal. He contended that there was 'absolutely no evidence on the basis of which the jury would be entitled to find that (petitioner) made a threat against the life of the President.' He stressed the fact that petitioner's sta ement was made during a political debate, that it was expressly made conditional upon an event—induction into the Armed Forces—which petitioner vowed would never occur, and that both petitioner and the crowd laughed after the statement was made. He concluded, 'Now actually what happened here in all this was a kind of very crude offensive method of stating a political opposition to the President. What he was saying, he says, I don't want to shoot black people because I don't consider them my enemy, and if they put a rifle in my hand it is the people that put the rifle in my hand, as symbolized by the President, who are my real enemy.' We hold that the trial judge erred in denying this motion.
3
Certainly the statute under which petitioner was convicted is constitutional on its face. The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence. See H.R.Rep. No. 652, 64th Cong., 1st Sess. (1916). Nevertheless, a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech.
4
The judges in the Court of Appeals differed over whether or not the 'willfullness' requirement of the statute implied that a defendant must have intended to carry out his 'threat.' Some early cases found the willfullness requirement met if the speaker voluntarily uttered the charged words with 'an apparent determination to carry them into execution.' Ragansky v. United States, 253 F. 643, 645 (C.A.7th Cir. 1918) (emphasis supplied); cf. Pierce v. United States, 365 F.2d 292 (C.A. 10th Cir. 1966). The majority below seemed to agree. Perhaps this interpretation is correct, although we have grave doubts about it. See the dissenting opinion below, 131 U.S.App.D.C., at 135—142, 402 F.2d, at 686—693 (Wright, J.). But whatever the 'willfullness' requirement implies, the statute initially requires the Government to prove a true 'threat.' We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose 'against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.' New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). The language of the political arena, like the language used in labor disputes, see Linn v. United Plant Guard Workers of America, 383 U.S. 53, 58, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.
5
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted and the judgment of the Court of Appeals is reversed. The case is remanded with instructions that it be returned to the District Court for entry of a judgment of acquittal.
6
It is so ordered.
7
Judgment for Court of Appeals reversed and case remanded with instructions.
8
Mr. Justice STEWART would deny the petition for certiorari.
9
Mr. Justice WHITE dissents.
10
Mr. Justice DOUGLAS, concurring.
11
The charge in this case is of an ancient vintage.
12
The federal statute under which petitioner was convicted traces its ancestry to the Statute of Treasons (25 Edw. 3) which made it a crime to 'compass or imagine the Death of * * * the King.' Note, Threats to Take the Life of the Pre ident, 32 Harv.L.Rev. 724, 725 (1919). It is said that one Walter Walker, a 15th century keeper of an inn known as the 'Crown,' was convicted under the Statute of Treasons for telling his son: 'Tom, if thou behavest thyself well, I will make three heir to the CROWN.' He was found guilty of compassing and imagining the death of the King, hanged, drawn, and guartered. 1 J. Campbell, Lives of the Chief Justices of England 151 (1873).
13
In the time of Edward IV, one Thomas Burdet who predicted that the king would 'soon die, with a view to alienate the affections' of the people was indicted for 'compassing and imaging of the death of the King,' 79 Eng.Rep. 706 (1477)—the crime of constructive treason1 with which the old reports are filled.
14
In the time of Charles II, one Edward Brownlow was indicted 'for speaking these words, that he wished all the gentry in the land would kill one another, so that the comminalty might live the better.' 3 Middlesex County Rec. 326 (1888). In the same year (1662) one Robert Thornell was indicted for saying 'that if the Kinge did side with the Bishops, the Divell take Kinge and the Bishops too.' Id., at 327.
15
While our Alien and Sedition Laws were in force, John Adams, President of the United States, en route from Philadelphia, Pennsylvania, to Quincy, Massachusetts, stopped in Newark, New Jersey, where he was greeted by a crowd and by a committee that saluted him by firing a cannon.
16
A bystander said 'There goes the President and they are firing at his ass.' Luther Baldwin was indicted for replying that he did not care 'if they fired through his ass.' He was convicted in the federal court for speaking 'sedicious words tending to defame the President and Government of the United States' and fined, assessed court costs and expenses, and committed to jail until the fine and fees were paid. See J. Smith, Freedom's Fetters 270—274 (1956).
17
The Alien and Sedition Laws constituted one of our sorriest chapters; and I had thought we had done with them forever.2
18
Yet the present statute has hardly fared better. 'Like the Statute of Treasons, section 871 was passed in a 'relatively calm peacetime spring,' but has been construed under circumstances when intolerance for free speech was much greater than it normally might be.' Note, Threatening the President: Protected Dissenter or Political Assassin, 57 Geo.L.J. 553, 570 (1969). Convictions under 18 U.S.C. § 871 have been sustained for displaying posters urging passersby to 'hang (President) Roosevelt.' United States v. Apel, 44 F.Supp. 592, 593 (D.C.N.D.Ill.1942); for declaring that 'President Wilson ought to be killed. It is a wonder some one has not done it already. If I had an opportunity, I would do it myself.' United States v. Stickrath, 242 F. 151, 152 (D.C.S.D.Ohio 1917); for declaring that 'Wilson is a wooden-headed son of a bitch. I wish Wilson was in hell, and if I had the power I would put him there,' Clark v. United States, 250 F. 449 (C.A.5th Cir. 1918). In sustaining an indictment under the statute against a man who indicated that he would enjoy shooting President Wilson if he had the chance, the trial court explained the thrust of § 871:
19
'The purpose of the statute was undoubtedly not only the protection of the President, but also the prohibition of just such statements as those alleged in this indictment. The expression of such direful intentions and desires, not only indicates a spirit of disloyalty to the nation bordering upon treason, but is, in a very real sense, a menace to the peace and safety of the country. * * * It arouses resentment and concern on the part 933 (D.C.E.D.Mich.1918).
20
Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution.
21
Mr. Justice FORTAS, with whom Mr. Justice HARLAN joins, dissenting.
22
The Court holds, without hearing, that this statute is constitutional and that it is here wrongly applied. Neither of these rulings should be made without hearing, even if we assume that they are correct.
23
Perhaps this is a trivial case because of its peculiar facts and because the petitioner was merely given a suspended sentence. That does not justify the Court's action. It should induce us to deny certiorari, not to decide the case on its merits and to adjudicate the difficult questions that it presents.
*
18 U.S.C. § 871(a) provides:
'Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined not more than $1,000 or imprisoned not more than five years, or both.'
1
The prosecution in those cases laid bare to the juries that the treasonous thoughts were the heart of the matter; 'the original of his Treasons proceeded from the imagination of his heart; which imagination was in itself High-Treason, albeit the same proceeded not to any overt fact: and the heart being possessed with the abundance of his traitorous imagination, and not being able so to contain itself,' burst forth in vile and traitorous Speeches, and from thence to horrible and heinous actions.' Trial of Sir John Perrot, 1 Sow.St.Tr. 1315, 1318 (1592). '(T)he high treason charged, is the compassing or imagining (in other words, the intending or designing) the death of the king; I mean his NATURAL DEATH; which being a hidden operation of the mind, an overt act is any thing which legally proves the existence of such traitorous design and intention—I say that the design against the king's natural life, is the high treason under the first branch of the statute; and whatever is evidence, which may be legally laid before a jury to judge of the traitorous intention, is a legal overt act; because an overt act is nothing but legal evidence embodied upon the record.' Trial of Thomas Hardy, 24 How.St.Tr. 199, 894 (1794). And see 84 Eng.Rep. 1057 (1708).
For a discussion of the adequacy of mere words as overts acts see 3 W. Holdsworth, History of English Law 293 (1927).
2
'In the Sedition Act cases, the tendency of words to produce acts against the peace and security of the community was stretched to its utmost latitude. Likewise, judges and juries, in their willingness to presume evil intent on the part of Republican writers, largely nullified the safeguards erected by the Sedition Act itself. Criticism of the President and Congress—in which every American indulges as his birthright—was severely punished; yet this practice manifestly has only a remote tendency to injure and bring into contempt the government of the United States. In short, much that has become commonplace in Ame ican political life was put under the ban by the Federalist lawmakers and judges of 1798.' J. Miller, Crisis in Freedom 233 (1951).
| 23
|
394 U.S. 618
89 S.Ct. 1322
22 L.Ed.2d 600
Bernard SHAPIRO, Commissioner of Welfare of the State of Connecticut, Appellant,v.Vivian THOMPSON. Walter E. WASHINGTON et al., Appellants, v. Clay Mae LEGRANT et al. Roger A. REYNOLDS et al., Appellants, v. Juanita SMITH et al.
Nos. 9, 33, and 34.
Reargued Oct. 23 and 24, 1968.
Decided April 21, 1969.
[Syllabus from pages 618-620 intentionally omitted]
Francis J. MacGregor, Fairfield, Conn., Richard W. Barton, Washington, D.C., and William C. Sennett, Harrisburg, Pa., for appellants.
Archibald Cox, Washington, D.C., for appellees.
Lorna L. Williams, Sp. Asst. Atty. Gen., Des Moines, Iowa, for State or Iowa, as amicus curiae.
[The balance of this page intentionally left blank]
Mr. Justice BRENNAN delivered the opinion of the Court.
1
These three appeals were restored to the calendar for reargument. 392 U.S. 920, 88 S.Ct. 2272, 20 L.Ed.2d 1381 (1968). Each is an appeal from a decision of a three-judge District Court holding unconstitutional a State or District of Columbia statutory provision which denies welfare assistance to residents of the State or District who have not resided within their jurisdictions for at least one year immediately preceding their applications for such assistance.1 We affirm the judgments of the District Courts in the three cases.
I.
2
In No. 9, the Connecticut Welfare Department invoked § 17—2d of the Connecticut General Statutes2 to deny the application of appellee Vivian Marie Thompson for assistance under the program for Aid to Families with Dependent Children (AFDC). She was a 19-year-old unwed mother of one child and pregnant with her second child when she changed her residence in June 1966 from Dorchester, Massachusetts, to Hartford, Connecticut, to live with her mother, a Hartford resident. She moved to her own apartment in Hartford in August 1966, when her mother was no longer able to support her and her infant son. Because of her pregnancy, she was unable to work or enter a work training program. Her application for AFDC assistance, filed in August, was denied in November solely on the ground that, as required by § 17—2d, she had not lived in the State for a year before her application was filed. She brought this action in the District Court for the District of Connecticut where a three-judge court, one judge dissenting, declared § 17—2d unconstitutional. 270 F.Supp. 331 (1967). The majority held that the waiting-period requirement is unconstitutional because it 'has a chilling effect on the right to travel.' Id., at 336. The majority also held that the provision was a violation of the Equal Protection Clause of the Fourteenth Amendment because the denial of relief to those resident in the State for less than a year is not based on any permissible purpose but is solely designed as 'Connecticut states quite frankly,' 'to protect its fisc by discouraging entry of those who come needing relief.' Id., at 336—337. We noted probable jurisdiction. 389 U.S. 1032, 88 S.Ct. 784, 19 L.Ed.2d 820 (1968).
3
In No. 33, there are four appellees. Three of them—appellees Harrell, Brown, and Legrant—applied for and were denied AFDC aid. The fourth, appellee Barley, applied for and was denied benefits under the program for Aid to the Permanently and Totally Disabled. The denial in each case was on the ground that the applicant had not resided in the District of Columbia for one year immediately preceding the filing of her application, as required by § 3—203 of the District of Columbia Code.3
4
Appellee Minnie Harrell, now deceased, had moved with her three children from New York to Washington in September 1966. She suffered from cancer and moved to be near members of her family who lived in Washington.
5
Appellee Barley, a former resident of the District of Columbia, returned to the District in March 1941 and was committed a month later to St. Elizabeths Hospital as mentally ill. She has remained in that hospital ever since. She was deemed eligible for release in 1965, and a plan was made to transfer her from the hospital to a foster home. The plan depended, however, upon Mrs. Barley's obtaining welfare assistance for her support. Her application for assistance under the program for Aid to the Permanently and Totally Disabled was denied because her time spent in the hospital did not count in determining compliance with the one-year requirement.
6
Appellee Brown lived with her mother and two of her three children in Fort Smith, Arkansas. Her third child was living with appellee Brown's father in the District of Columbia. When her mother moved from Fort Smith of Oklahoma, appellee Brown, in February 1966, returned to the District of Columbia where she lived as a child. Her application for AFDC assistance was approved insofar as it sought assistance for the child who had lived in the District with her father but was denied to the extent it sought assistance for the two other children.
7
Appellee Legrant moved with her two children from South Carolina to the District of Columbia in March 1967 after the death of her mother. She planned to live with a sister and brother in Washington. She was pregnant and in ill health when she applied for and was denied AFDC assistance in July 1967.
8
The several cases were consolidated for trial, and a three-judge District Court was convened.4 The court, one judge dissenting, held § 3—203 unconstitutional. 279 F.Supp. 22 (1967). The majority rested its decision on the ground that the one-year requirement was unconstitutional as a denial of the right to equal protection secured by the Due Process Clause of the Fifth Amendment. We noted probable jurisdiction. Washington v. Harrell, 390 U.S. 940, 88 S.Ct. 1053, 19 L.Ed.2d 1129 (1968).
9
In No. 34, there are two appellees, Smith and Foster, who were denied AFDC aid on the sole ground that they had not been residents of Pennsylvania for a year prior to their applications as required by § 432(6) of the Pennsylvania Welfare Code.5Appellee Smith and her five minor children moved in December 1966 from Delaware to Philadelphia, Pennsylvania, where her father lived. Her father supported her and her children for several months until he lost his job. Appellee then applied for AFDC assistance and had received two checks when the aid was terminated. Appellee Foster, after living in Pennsylvania from 1953 to 1965, had moved with her four children to South Carolina to care for h r grandfather and invalid grandmother and had returned to Pennsylvania in 1967. A three-judge District Court for the Eastern District of Pennsylvania, one judge dissenting, declared § 432(6) unconstitutional. 277 F.Supp. 65 (1967). The majority held that the classification established by the waiting-period requirement is 'without rational basis and without legitimate purpose or function' and therefore a violation of the Equal Protection Clause. Id., at 67. The majority noted further that if the purpose of the statute was 'to erect a barrier against the movement of indigent persons into the State or to effect their prompt departure after they have gotten there,' it would be 'patently improper and its implementation plainly impermissible.' Id., at 67—68. We noted probable jurisdiction. 390 U.S. 940, 88 S.Ct. 1054, 19 L.Ed.2d 1129 (1968).
II.
10
There is no dispute that the effect of the waiting-period requirement in each case is to create two classes of needy resident families indistinguishable from each other except that one is composed of residents who have resided a year or more, and the second of residents who have resided less than a year, in the jurisdiction. On the basis of this sole difference the first class is granted and the second class is denied welfare aid upon which may depend the ability of the families to obtain the very means to subsist—food, shelter, and other necessities of life. In each case, the District Court found that appellees met the test for residence in their jurisdictions, as well as all other eligibility requirements except the requirement of residence for a full year prior to their applications. On reargument, appellees' central contention is that the statutory prohibition of benefits to residents of less than a year creates a classification which constitutes an invidious discrimination denying them equal protection of the laws.6 We agree. The interests which appellants assert are promoted by the classification either may not constitutionally be promoted by government or are not compelling governmental interests.
III.
11
Primarily, appellants justify the waiting-period requirement as a protective device to preserve the fiscal integrity of state public assistance programs. It is asserted that people who require welfare assistance during their first year of residence in a State are likely to become continuing burdens on state welfare programs. Therefore, the argument runs, if such people can be deterred from entering the jurisdiction by denying them welfare benefits during the first year, state programs to assist long-time residents will not be impaired by a ubstantial influx of indigent newcomers.7
12
There is weighty evidence that exclusion from the jurisdiction of the poor who need or may need relief was the specific objective of these provisions. In the Congress, sponsors of federal legislation to eliminate all residence requirements have been consistently opposed by representatives of state and local welfare agencies who have stressed the fears of the States that elimination of the requirements would result in a heavy influx of individuals into States providing the most generous benefits. See, e.g., Hearings on H.R. 10032 before the House Committee on Ways and Means, 87th Cong., 2d Sess., 309—310, 644 (1962); Hearings on H.R. 6000 before the Senate Committee on Finance, 81st Cong., 2d Sess., 324—327 (1950). The sponsor of the Connecticut requirement said in its support: 'I doubt that Connecticut can and should continue to allow unlimited migration into the state on the basis of offering instant money and permanent income to all who can make their way to the state regardless of their ability to contribute to the economy.' H.B. 82, Connecticut General Assembly House Proceedings, February Special Session, 1965, Vol. II, pt. 7, p. 3504. In Pennsylvania, shortly after the enactment of the one-year requirement, the Attorney General issued an opinion construing the one-year requirement strictly because '(a)ny other conclusion would tend to attract the dependents of other states to our Commonwealth.' 1937—1938 Official Opinions of the Attorney General, No. 240, p. 110. In the District of Columbia case, the constitutionality of § 3—203 was frankly defended in the District Court and in this Court on the ground that it is designed to protect the jurisdiction from an influx of persons seeking more generous public assistance than might be available elsewhere.
13
We do not doubt that the one-year waiting period device is well suited to discourage the influx of poor families in need of assistance. An indigent who desires to migrate, resettle, find a new job, and start a new life will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may be most acute. But the purpose of inhibiting migration by needy persons into the State is constitutionally impermissible.
14
This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. That proposition was early stated by Chief Justice Taney in the Passenger Cases, 7 How. 283, 492, 12 L.Ed. 702 (1849):
15
'For all the great purposes for w ich the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.'
16
We have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision.8 It suffices that, as Mr. Justice Stewart said for the Court in United States v. Guest, 383 U.S. 745, 757—758, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239 (1966):
17
'The constitutional right to travel from one State to another * * * occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.
18
'* * * (The) right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.'
19
Thus, the purpose of deterring the in-migration of indigents cannot serve as justification for the classification created by the one-year waiting period, since that purpose is constitutionally impermissible. If a law has 'no other purpose * * * than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it (is) patently unconstitutional.' United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968).
20
Alternatively, appellants argue that even if it is impermissible for a State to attempt to deter the entry of all indigents, the challenged classification may be justified as a permissible state attempt to discourage those indigents who would enter the State solely to obtain larger benefits. We observe first that none of the statutes before us is tailored to serve that objective. Rather, the class of barred newcomers is all-inclusive, lumping the great majority who come to the State for other purposes with those who come for the sole purpose of collecting higher benefits. In actual operation, therefore, the three statutes enact what in effect are non-rebuttable presumptions that every applicant for assistance in his first year of residence came to the jurisdiction solely to obtain higher benefits. Nothing whatever in any of these records supplies any basis in fact for such a presumption.
21
More fundamentally, a State may no more try to fence out those indigents who seek higher welfare benefits than it may try to fence out indigents generally. Implicit in any such distinctio is the notion that indigents who enter a State with the hope of securing higher welfare benefits are somehow less deserving than indigents who do not take this consideration into account. But we do not perceive why a mother who is seeking to make a new life for herself and her children should be regarded as less deserving because she considers, among others factors, the level of a State's public assistance. Surely such a mother is no less deserving than a mother who moves into a particular State in order to take advantage of its better educational facilities.
22
Appellants argue further that the challenged classification may be sustained as an attempt to distinguish between new and old residents on the basis of the contribution they have made to the community through the payment of taxes. We have difficulty seeing how long-term residents who qualify for welfare are making a greater present contribution to the State in taxes than indigent residents who have recently arrived. If the argument is based on contributions made in the past by the long-term residents, there is some question, as a factual matter, whether this argument is applicable in Pennsylvania where the record suggests that some 40% of those denied public assistance because of the waiting period had lengthy prior residence in the State.9 But we need not rest on the particular facts of these cases. Appellants' reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens. The Equal Protection Clause prohibits such an apportionment of state services.10
23
We recognize that a State has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens. It could not, for example, reduce expenditures for education by barring indigent children from its schools. Similarly, in the cases before us, appellants must do more than show that denying welfare benefits to new residents saves money. The saving of welfare costs cannot justify an otherwise invidious classification.11
24
In sum, neither deterrence of indigents from migrating to the State nor limitation of welfare benefits to those regarded as contributing to the State is a constitutionally permissible state objective.
IV.
25
Appellants next advance as justification certain administrative and related governmental objectives allegedly served by the waiting-period requirement.12 They argue that the requirement (1) facilitates the planning of the welfare budget; (2) provides an objective test of residency; (3) minimizes the opportunity for recipients fraudulently to receive payments from more than one jurisdiction; and (4) encourages early entry of new residents into the labor force.
26
At the outset, we reject appellants' argument that a mere showing of a rational relationship between the waiting period and these four admittedly permissible state objectives will suffice to justify the classification. See Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1372, 4 L.Ed.2d 1435 (1960); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). The waiting-period provision denies welfare benefits to otherwise eligible applicants solely because they have recently moved into the jurisdiction. But in moving from State to State or to the District of Columbia appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional. Cf. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944); Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480 (1960); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963).
27
The argument that the waiting-period requirement facilitates budget predictability is wholly unfounded. The records in all three cases are utterly devoid of evidence that either State or the District of Columbia in fact uses the one-year requirement as a means to predict the number of people who will require assistance in the budget year. None of the appellants takes a census of new residents or collects any other data that would reveal the number of newcomers in the State less than a year. Nor are new residents required to give advance notice of their need for welfare assistance.13 Thus, the welfare authorities cannot know how many new residents come into the jurisdiction in any year, much less how many of them will require public assistance. In these circumstances, there is simply no basis for the claim that the one-year waiting requirement serves the purpose of making the welfare budget more predictable. In Connecticut and Pennsylvania the irrelevance of the one-year requirement to budgetary planning is further underscored by the fact that temporary, partial assistance is given to some new residents14 and full assistance is given to other new residents under reciprocal agreements.15 Finally, the claim that a one-year waiting requirement is used for planning purposes is plainly belied by the fact that the requirement is not also imposed on applicants who are long-term residents, the group that receives the bulk of welfare payments. In short, the States rely on methods other than the one-year requirement to make budget estimates. In No. 34, the Director of the Pennsylvania Bureau of Assistance Policies and Standards testified that, based on experience in Pennsylvania and elsewhere, her office had already estimated how much the elimination of the one-year requirement would cost and that the estimates of costs of other changes in regulations 'have proven exceptionally accurate.' The argument that the waiting period serves as an administratively efficient rule of thumb for determining residency similarly will not withstand scrutiny. The residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites for assistance under these three statutes, and the facts relevant to the determination of each are directly examined by the welfare authorities.16 Before granting an application, the welfare authorities investigate the applicant's employment, housing, and family situation and in the course of the inquiry necessarily lern the facts upon which to determine whether the applicant is a resident.17
28
Similarly, there is no need for a State to use the one-year waiting period as a safeguard against fraudulent receipt of benefits;18 for less drastic means are available, and are employed, to minimize that hazard. Of course, a State has a valid interest in preventing fraud by any applicant, whether a newcomer or a long-time resident. It is not denied, however, that the investigations now conducted entail inquiries into facts relevant to that subject. In addition, cooperation among state welfare departments is common. The District of Columbia, for example, provides interim assistance to its former residents who have moved to a State which has a waiting period. As a matter of course, District officials send a letter to the welfare authorities in the recipient's new community 'to request the information needed to continue assistance.'19 A like procedure would be an effective safeguard against the hazard of double payments. Since double payments can be prevented by a letter or a telephone call, it is unreasonable to accomplish this objective by the blunderbuss method of denying assistance to all indigent newcomers for an entire year.
29
Pennsylvania suggests that the one-year waiting period is justified as a means of encouraging new residents to join the labor force promptly. But this logic would also require a similar waiting period for long-term residents of the State. A state purpose to encourage employment provides no rational basis for imposing a one-year waiting-period restriction on new residents only.
30
We conclude therefore that appellants in these cases do not use and have no need to use the one-year requirement for the governmental purposes suggested. Thus, even under traditional equal protection tests a classification of welfare applicants according to whether they have lived in the State for one year would seem irrational and unconstitutional.20 But, of course, the traditional criteria do not apply in these cases. Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest. Under this standard, the waiting-period requirement clearly violates the Equal Protection Clause.21
V.
31
Connecticut and Pennsylvania argue, however, that the constitutional challenge to the waiting-period requirements must fail because Congress expressly approved the imposition of the requirement by the States as part of the jointly funded AFDC program.
32
Section 402(b) of the Social Security Act of 1935, as amended, 42 U.S.C. § 602(b), provides that:
33
'The Secretary shall approve any (state assistance) plan which fulfills the conditions specified in subsection (a) of this section, except that he shall not approve any plan which imposes as a condition of eligibility for aid to families with dependent children, a residence requirement which denies aid with respect to any child residing in the State (1) who has resided in the State for one year immediately preceding the application for such aid, or (2) who was born within one year immediately preceding the application, if the parent or other relative with whom the child is living has resided in the State for one year immediately preceding the birth.'
34
On its face, the statute does not approve, much less prescribe, a one-year requirement. It merely directs the Secretary of Health, Education, and Welfare not to disapprove plans submitted by the States because they include such a requirement.22 The suggestion that Congress enacted that directive to encourage state participation in the AFDC program is completely refuted by the legislative history of the section. That history discloses that Congress enacted the directive to curb hardships resulting from lengthy residence requirements. Rather than constituting an approval or a prescription of the requirement in state plans, the direc ive was the means chosen by Congress to deny federal funding to any State which persisted in stipulating excessive residence requirements as a condition of the payment of benefits.
35
One year before the Social Security Act was passed, 20 of the 45 States which had aid to dependent children programs required residence in the State for two or more years. Nine other States required two or more years of residence in a particular town or county. And 33 jurisdictions required at least one year of residence in a particular town or county.23 Congress determined to combat this restrictionist policy. Both the House and Senate Committee Reports expressly stated that the objective of § 402(b) was to compel '(l)iberality of residence requirement.'24 Not a single instance can be found in the debates or committee reports supporting the contention that § 402(b) was enacted to encourage participation by the States in the AFDC program. To the contrary, those few who addressed themselves to waiting-period requirements emphasized that participation would depend on a State's repeal or drastic revision of existing requirements. A congressional demand on 41 States to repeal or drastically revise offending statutes is hardly a way to enlist their cooperation.25
36
But even if we were to assume, arguendo, that Congress did approve the imposition of a one-year waiting period, it is the responsive state legislation which infringes constitutional rights. By itself § 402(b) has absolutely no restrictive effect. It is therefore not that statute but only the state requirements which pose the constitutional question.
37
Finally, even if it could be argued that the constitutionality of § 402(b) is somehow at issue here, it follows from what we have said that the provision, insofar as it permits the one-year waiting-period requirement, would be unconstitutional. Congress may not authorize the States to violate the Equal Protection Clause. Perhaps Congress could induce wider state participation in school construction if it authorized the use of joint funds for the building of segregated schools. But could it seriously be contended that Congress would be constitutionally justified in such authorization by the need to secure state cooperation? Congress is without power to enlist state cooperation in a joint federal-state program by legislation which authorizes the States to violate the Equal Protection Clause. Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 1723, 16 L.Ed.2d 828, n. 10 (1966).
VI.
38
The waiting-period requirement in the District of Columbia Code involved in No. 33 is also unconstitutional even though it was adopted by Congress as an exercise of federal power. In terms of federal power, the discrimination created by the one-year requirement violates the Due Process Clause of the Fifth Amendment. '(W)hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process." Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). For the reasons we have stated in invalidating the Pennsylvania and Connecticut provisions, the District of Columbia provision is also invalid—the Due Process Clause of the Fifth Amendment prohibits Congress from denying public assistance to poor persons otherwise eligible solely on the ground that they have not been residents of the District of Columbia for one year at the time their applications are filed.
39
Accordingly, the judgments in Nos. 9, 33, and 34 are
40
Affirmed.
41
Mr. Justice STEWART, concurring.
42
In joining the opinion of the Court, I add a word in response to the dissent of my Brother HARLAN, who, I think, has quite misapprehended what the Court's opinion says.
43
The Court today does not 'pick out particular human activities, characterize them as 'fundamental,' and give them added protection * * *.' To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands.
44
'The constitutional right to travel from one State to another * * * has been firmly established and repeatedly recognized.' United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239. This constitutional right, which, of course, includes the right of 'entering and abiding in any state in the Union,' Truax v. Raich, 239 U.S. 33, 39, 36 S.Ct. 7, 9, 60 L.Ed. 131, is not a mere conditional liberty subject to regulation and control under conventional due process or equal protection standards.1 '(T)he right to travel freely from State to State finds constitutional protection that is quite independent of the Fourteenth Amendment.' United States v. Guest, supra, at 760, 86 S.Ct. at 1179, n. 17.2 As we made clear in Guest, it is a right broadly assertable against private interference as well as governmental action.3 Like the right of association, NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, it is a virtually unconditional personal right,4 guaranteed by the Constitution to us all.
45
It follows, as the Court says, that 'the purpose of deterring the in-migration of indigents cannot serve as justification for the classification created by the one-year waiting period, since that purpose is constitutionally impermissible.' And it further follows, as the Court says, that any other purposes offered in support of a law that so clearly impinges upon the constitutional right of interstate travel must be shown to reflect a compelling governmental interest. This is necessarily true whether the impinging law be a classification statute to be tested against the Equal Protection Clause, or a state of federal regulatory law, to be tested against the Due Process Clause of the Fourteenth or Fifth Amendment. As Mr. Justice Harlan wrote for the Court more than a decade ago, '(T)o justify the deterrent effect * * * on the free exercise * * * of their constitutionally protected right * * * a '* * * subordinating interest of the State must be compelling." NAACP v. Alabama, supra, at 463, 78 S.Ct. at 1172.
46
The Court today, therefore, is not 'contriving new constitutional principles.' It is deciding these cases under the aegis of established constitutional law.5
47
Mr. Chief Justice WARREN, with whom Mr. Justice BLACK joins, dissenting.
48
In my opinion the issue before us can be simply stated: May Congress, acting under one of its enumerated powers, impose minimal nationwide residence requirements or authorize the States to do so? Since I believe that Congress does have this power and has constitutionally exercised it in these cases, I must dissent.
I.
49
The Court insists that § 402(b) of the Social Security Act 'does not approve, much less prescribe, a one-year requirement.' Ante, at 639. From its reading of the legislative history it concludes that Congress did not intend to authorize the States to impose residence requirements. An examination of the relevant legislative materials compels, in my view, the opposite conclusion, i.e., Congress intended to authorize state residence requirements of up to one year.
50
The Great Depression of the 1930's exposed the inadequacies of state and local welfare programs and dramatized the need for federal participation in welfare assistance. See J. Brown, Public Relief 1929—1939 (1940). Congress determined that the Social Security Act, containing a system of unemployment and old-age insurance as well as the categorical assistance programs now at issue, was to be a major step designed to ameliorate the problems of economic insecurity. The primary purpose of the categorical assistance programs was to encourage the States to provide new and greatly enhanced welfare programs. See, e.g., S.Rep.No.628, 74th Cong., 1st Sess., 5—6, 18—19 (1935); H.R.Rep.No.615, 74th Cong., 1st Sess., 4 (1935). Federal aid would mean an immediate increase in the amount of benefits paid under state programs. But federal aid was to be conditioned upon certain requirements so that the States would remain the basic administrative units of the welfare system and would be unable to shift the welfare burden to local governmental units with inadequate financial resources. See Advisory Commission on Intergovernmental Relations, Statutory and Administr tive Controls Associated with Federal Grants for Public Assistance 9—26 (1964). Significantly, the categories of assistance programs created by the Social Security Act corresponded to those already in existence in a number of States. See J. Brown, Public Relief 1929—1939, at 26—32. Federal entry into the welfare area can therefore be best described as a major experiment in 'cooperative federalism,' King v. Smith, 392 U.S. 309, 317, 88 S.Ct. 2128, 2133, 20 L.Ed.2d 1118 (1968), combining state and federal participation to solve the problems of the depression.
51
Each of the categorical assistance programs contained in the Social Security Act allowed participating States to impose residence requirements as a condition of eligibility for benefits. Congress also imposed a one-year requirement for the categorical assistance programs operative in the District of Columbia. See H.R.Rep.No.891, 74th Cong., 1st Sess. (1935) (old-age pensions); H.R.Rep.No.201, 74th Cong., 1st Sess. (1935) (aid to the blind). The congressional decision to allow the States to impose residence requirements and to enact such a requirement for the District was the subject of considerable discussion. Both those favoring lengthy residence requirements1 and those opposing all requirements2 pleaded their case during the congressional hearings on the Social Security Act. Faced with the competing claims of States which feared that abolition of residence requirements would result in an influx of persons seeking higher welfare payments and of organizations which stressed the unfairness of such requirements to transient workers forced by the economic dislocation of the depression to seek work far from their homes. Congress chose a middle course. It required those States seeking federal grants for categorical assistance to reduce their existing residence requirements to what Congress viewed as an acceptable maximum. However, Congress accommodated state fears by allowing the States to retain minimal residence requirements.
52
Congress quickly saw evidence that the system of welfare assistance contained in the Social Security Act including residence requirements was operating to encourage States to expand and improve their categorical assistance programs. For example, the Senate was told in 1939:
53
'The rapid expansion of the program for aid to dependent children in the country as a whole since 1935 stands in marked contrast to the relatively stable picture of mothers' aid in the preceding 4-year period from 1932 through 1935. The extension of the program during the last 3 years is due to Federal contributions which encouraged the matching of State and local funds.' S.Rep.No.734, 76th Cong., 1st Sess., 29 (1939).
54
The trend observed in 1939 continued as the States responded to the federal stimulus for improvement in the scope and amount of categorical assistance programs. See Wedemeyer & Moore, The American Welfare System, 54 Calif.L.Rev. 326, 347—356 (1966). Residence requirements have remained a part of this combined state-federal welfare program for 34 years. Congress has adhered to its original decision that residence requirements were necessary in the face of repeated attacks against these requirements.3 The decision to retain residence requirements, combined with Congress' continuing desire to encourage wider state participation in categorical assistance programs, indicates to me that Congress has authorized the imposition by the States of residence requirements.
II.
55
Congress has impos d a residence requirement in the District of Columbia and authorized the States to impose similar requirements. The issue before us must therefore be framed in terms of whether Congress may create minimal residence requirements, not whether the States, acting alone, may do so. See Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 66 S.Ct. 1142, 90 L.Ed. 1342 (1946); In re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 32 S.Ct. 572 (1891). Appellees insist that a congressionally mandated residence requirement would violate their right to travel. The import of their contention is that Congress, even under its 'plenary'4 power to control interstate commerce, is constitutionally prohibited from imposing residence requirements. I reach a contrary conclusion for I am convinced that the extent of the burden on interstate travel when compared with the justification for its imposition requires the Court to uphold this exertion of federal power.
56
Congress, pursuant to its commerce power, has enacted a variety of restrictions upon interstate travel. It has taxed air and rail fares and the gasoline needed to power cars and trucks which move interstate. 26 U.S.C. § 4261 (air fares); 26 U.S.C. § 3469 (1952 ed.), repealed in part by Pub.L. 87—508, § 5(b), 76 Stat. 115 (rail fares); 26 U.S.C. § 4081 (gasoline). Many of the federal safety regulations of common carriers which cross state lines burden the right to travel. 45 U.S.C. §§ 1—43 (railroad safety appliances); 49 U.S.C. § 1421 (air safety regulations). And Congress has prohibited by criminal statute interstate travel for certain purposes. E.g., 18 U.S.C. § 1952. Although these restrictions operate as a limitation upon free interstate movement of persons, their constitutionality appears well settled. See Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 41, 36 S.Ct. 482, 485, 60 L.Ed. 874 (1916); Southern R. Co. v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911); United States v. Zizzo, 338 F.2d 577 (C.A.7th Cir., 1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1530, 14 L.Ed.2d 435 (1965). As the Court observed in Zemel v. Rusk, 381 U.S. 1, 14, 85 S.Ct. 1271, 1279, 14 L.Ed.2d 179 (1965), 'the fact that a liberty cannot be inhibited without due process of law does not mean that it can under no circumstances be inhibited.'
57
The Court's right-to-travel cases lend little support to the view that congressional action is invalid merely because it burdens the right to travel. Most of our cases fall into two categories: those in which state-imposed restrictions were involved, see, e.g., Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941); Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744 (1868), and those concerning congressional decisions to remove impediments to interstate movement, see, e.g., United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). Since the focus of our inquiry must be whether Congress would exceed permissible bounds by imposing residence requirements, neither group of cases offers controlling principles.
58
In only three cases have we been confronted with an assertion that Congress has impermissibly burdened the right to travel. Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), did invalidate a burden on the right to travel; however, the restriction was voided on the nonconstitutional basis that Congress did not intend to give the Secretary of State power to create the restriction at issue. Zemel v. Rusk, supra, on the other hand, sustained a flat prohibition of travel to certain designated areas and rejected an attack that Congress could not constitutionally impose this restriction. Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964), is the only case in which this Court invalidated on a constitutional basis a congressionally imposed restriction. Aptheker also involved a flat prohibi ion but in combination with a claim that the congressional restriction compelled a potential traveler to choose between his right to travel and his First Amendment right of freedom of association. It was this Hobson's choice, we later explained, which forms the rationale of Aptheker. See Zemel v. Rusk, supra, at 16, 85 S.Ct. at 1280. Aptherker thus contains two characteristics distinguishing it from the appeals now before the Court: a combined infringement of two constitutionally protected rights and a flat prohibition upon travel. Residence requirements do not create a flat prohibition, for potential welfare recipients may move from State to State and establish residence wherever they please. Nor is any claim made by appellees that residence requirements compel them to choose between the right to travel and another constitutional right.
59
Zemel v. Rusk, the most recent of the three cases, provides a framework for analysis. The core inquiry is 'the extent of the governmental restriction imposed' and the 'extent of the necessity for the restriction.' Id., at 14, 85 S.Ct. at 1279. As already noted, travel itself is not prohibited. Any burden inheres solely in the fact that a potential welfare recipient might take into consideration the loss of welfare benefits for a limited period of time if he changes his residence. Not only is this burden of uncertain degree,5 but appellees themselves assert there is evidence that few welfare recipients have in fact been deterred by residence requirements. See Harvith, The Constitutionality of Residence Tests for General and Categorical Assistance Programs, 54 Calif.L.Rev. 567, 615—618 (1966); Note, Residence Requirements in State Public Welfare Statutes, 51 Iowa L.Rev. 1080, 1083—1085 (1966).
60
The insubstantiality of the restriction imposed by residence requirements must then be evaluated in light of the possible congressional reasons for such requirements. See, e.g., McGowan v. Maryland, 366 U.S. 420, 425—427, 81 S.Ct. 1101, 1104—1105, 6 L.Ed.2d 393 (1961). One fact which does emerge with clarity from the legislative history is Congress' belief that a program of cooperative federalism combining federal aid with enhanced state participation would result in an increase in the scope of welfare programs and level of benefits. Given the apprehensions of many States that an increase in benefits without minimal residence requirements would result in an inability to provide an adequate welfare system, Congress deliberately adopted the intermediate course of a cooperative program. Such a program, Congress believed, would encourage the States to assume greater welfare responsibilities and would give the States the necessary financial support for such an undertaking. Our cases require only that Congress have a rational basis for finding that a chosen regulatory scheme is necessary to the furtherance of interstate commerce. See, e.g., Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Certainly, a congressional finding that residence requirements allowed each State to concentrate its resources upon new and increased programs of rehabilitation ultimately resulting in an enhanced flow of commerce as the economic condition of welfare recipients progressively improved is rational and would justify imposition of residence requirements under the Commerce Clasue. And Congress could have also determined that residence requirements fostered personal mobility. An individual no longer dependent upon welfare would be presented with an unfettered range of choices so that a decision to migrate could be made without regard to considerations of possible economic dislocation.
61
Appelle § suggest, however, that Congress was not motivated by rational considerations. Residence requirements are imposed, they insist, for the illegitimate purpose of keeping poor people from migrating. Not only does the legislative history point to an opposite conclusion, but it also must be noted that '(i)nto the motives which induced members of Congress to (act) * * * this court may not inquire.' Arizona v. California, 283 U.S. 423, 455, 51 S.Ct. 522, 526, 75 L.Ed. 1154 (1931). We do not attribute an impermissible purpose to Congress if the result would be to strike down an otherwise valid statute. United States v. O'Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672 (1968); McCray v. United States, 195 U.S. 27, 56, 24 S.Ct. 769, 776, 49 L.Ed. 78 (1904). Since the congressional decision is rational and the restriction on travel insubstantial, I conclude that residence requirements can be imposed by Congress as an exercise of its power to control interstate commerce consistent with the constitutionally guaranteed right to travel.
62
Without an attempt to determine whether any of Congress' enumerated powers would sustain residence requirements, the Court holds that congressionally imposed requirements violate the Due Process Clause of the Fifth Amendment. It thus suggests that, even if residence requirements would be a permissible exercise of the commerce power, they are 'so injustifiable as to be violative of due process.' Ante, at 642. While the reasons for this conclusion are not fully explained, the Court apparently believes that, in the words of Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954), residence requirements constitute 'an arbitrary deprivation' of liberty.
63
If this is the import of the Court's opinion, then it seems to have departed from our precedents. We have long held that there is no requirement of uniformity when Congress acts pursuant to its commerce power. Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 401, 60 S.Ct. 907, 916, 84 L.Ed. 1263 (1940); Currin v. Wallace, 306 U.S. 1, 13—14, 59 S.Ct. 379, 385—386, 83 L.Ed. 441 (1939).6 I do not suggest that Congress is completely free when legislating under one of its enumerated powers to enact wholly arbitrary classifications, for Bolling v. Sharpe, supra, and Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964) counsel otherwise. Neither of these cases, however, is authority for invalidation of congressionally imposed residence requirements. The classification in Bolling required racial segregation in the public schools of the District of Columbia and was thus based upon criteria which we subject to the most rigid scrutiny. Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967). Schneider involved an attempt to distinguish between native-born and naturalized citizens solely for administrative convenience. By authorizing residence requirements Congress acted not to facilitate an administrative function but to further its conviction that an impediment to the commercial life of this Nation would be removed by a program of cooperative federalism combining federal contributions with enhanced state benefits. Congress, not the courts, is charged with determining the proper prescription for a national illness. I cannot say that Congress is powerless to decide that residence requirements would promote this permissible goal and therefore must conclude that such requirements cannot be termed arbitrary.
64
The Court, after interpreting the legislative history in such a manner that the constitutionality of § 402(b) is not at issue, gratuitously adds that § 402(b) is unconstitutional. This method of approaching constitutional questions is sharply in contrast with the Court's approach in Street v. New York, 394 U.S. 576, at 585—590, 89 S.Ct. 1354, at 1362—1365, 22 L.Ed.2d 572. While in Street the Court strains to avoid the crucial constitutional question, here it summarily treats the constitutionality of a major provision of the Social Security Act when, given the Court's interpretation of the legislative materials, that provision is not at issue. Assuming that the constitutionality of § 402(b) is properly treated by the Court, the cryptic footnote in Katzenbach v. Morgan, 384 U.S. 641, 651—652, 86 S.Ct. 1717, 1723—1724, 16 L.Ed.2d 828, n. 10 (1966), does not support its conclusion. Footnote 10 indicates that Congress is without power to undercut the equal-protection guarantee of racial equality in the guise of implementing the Fourteenth Amendment. I do not mean to suggest otherwise. However, I do not understand this footnote to operate as a limitation upon Congress' power to further the flow of interstate commerce by reasonable residence requirements. Although the Court dismisses § 402(b) with the remark that Congress cannot authorize the States to violate equal protection, I believe that the dispositive issue is whether under its commerce power Congress can impose residence requirements.
65
Nor can I understand the Court's implication, ante, at 638, n. 21, that other state residence requirements such as those employed in determining eligibility to vote do not present constitutional questions. Despite the fact that in Drueding v. Devlin, 380 U.S. 125, 85 S.Ct. 807, 13 L.Ed.2d 792 (1965), we affirmed an appeal from a three-judge District Court after the District Court had rejected a constitutional challenge to Maryland's one-year residence requirement for presidential elections, 292 F.Supp. 610, the rationale employed by the Court in these appeals would seem to require the opposite conclusion. If a State would violate equal protection by denying welfare benefits to those who have recently moved interstate, then it would appear to follow that equal protection would also be denied by depriving those who have recently moved interstate of the fundamental right to vote. There is nothing in the opinion of the Court to explain this dichotomy. In any event, since the constitutionality of a state residence requirement as applied to a presidential election is raised in a case now pending, Hall v. Beals, No. 950, 1968 Term, I would await that case for a resolution of the validity of state voting residence requirements.
III.
66
The era is long past when this Court under the rubric of due process has reviewed the wisdom of a congressional decision that interstate commerce will be fostered by the enactment of certain regulations. Compare Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923), with United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941). Speaking for the Court in Helvering v. Davis, 301 U.S. 619, 644, 57 S.Ct. 904, 910, 81 L.Ed. 1307 (1937), Mr. Justice Cardozo said of another section of the Social Security Act:
67
'Whether wisdom or unwisdom resides in the scheme of benefits set forth * * * is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom.'
68
I am convinced that Congress does have power to enact residence requirements of reasonable duration or to authorize the States to do so and that it has exercised this power.
69
The Court's decision reveals only the top of the iceberg. Lurking beneath are the multitude of situations in which States have imposed residence requirements including eligibility to vote, to engage in certain professions or occupations or to attend a state-supported university. Although the Court takes pains to avoid acknowledging the ramifications of its decision, its imp ications cannot be ignored. I dissent.
70
Mr. Justice HARLAN, dissenting.
71
The Court today holds unconstitutional Connecticut, Pennsylvania, and District of Columbia statutes which restrict certain kinds of welfare benefits to persons who have lived within the jurisdiction for at least one year immediately preceding their applications. The Court has accomplished this result by an expansion of the comparatively new constitutional doctrine that some state statutes will be deemed to deny equal protection of the laws unless justified by a 'compelling' governmental interest, and by holding that the Fifth Amendment's Due Process Clause imposes a similar limitation on federal enactments. Having decided that the 'compelling interest' principle is applicable, the Court then finds that the governmental interests here asserted are either wholly impermissible or are not 'compelling.' For reasons which follow, I disagree both with the Court's result and with its reasoning.
I.
72
These three cases present two separate but related questions for decision. The first, arising from the District of Columbia appeal, is whether Congress may condition the right to receive Aid to Families with Dependent Children (AFDC) and aid to the permanently and totally disabled in the District of Columbia upon the recipient's having resided in the District for the preceding year.1 The second, presented in the Pennsylvania and Connecticut appeals, is whether a State may, with the approval of Congress, impose the same conditions with respect to eligibility for AFDC assistance.2 In each instance, the welfare residence requirements are alleged to be unconstitutional on two grounds: first, because they impose an undue burden upon the constitutional right of welfare applicants to travel interstate; second, because they deny to persons who have recently moved interstate and would otherwise be eligible for welfare assistance the equal protection of the laws assured by the Fourteenth Amendment (in the state cases) or the analogous protection afforded by the Fifth Amendment (in the District of Columbia case). Since the Court basically relies upon the equal protection ground, I shall discuss it first.
II.
73
In upholding the equal protection argument,3 the Court has applied an equal protection doctrine of relatively recent vintage: the rule that statutory classifications which either are based upon certain 'suspect' criteria or affect 'fundamental rights' will be held to deny equal protection unless justified by a 'compelling' governmental interest. See ante, at 627, 634, 638.
74
The 'compelling interest' doctrine, which today is articulated more explicitly than ever before, constitutes an increasingly significant exception to the longestablished rule that a statute does not deny equal protection if it is rationally related to a legitimate governmental objective.4 The 'compelling interest' doctrine has two branches. The branch which requires that classifications based upon 'suspect' criteria be supported by a compelling interest apparently had its genesis in cases involving racial classifications, which have, at least since Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944), been regarded as inherently 'suspect.'5 The criterion of 'wealth' apparently was added to the list of 'suspects' as an alternative justification for the rationale in Harper v. Virginia Bd. of Elec. tions, 383 U.S. 663, 668, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966), in which Virginia's poll tax was struck down. The criterion of political allegiance may have been added in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).6 Today the list apparently has been further enlarged to include classifications based upon recent interstate movement, and perhaps those based upon the exercise of any constitutional right, for the Court states, ante, at 634:
75
'The waiting-period provision denies welfare benefits to otherwise eligible applicants solely because they have recently moved into the jurisdiction. But in moving * * * appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.'7
76
I think that this branch of the 'compelling interest' doctrine is sound when applied to racial classifications, for historically the Equal Protection Clause was largely a product of the desire to eradicate legal distinctions founded upon race. However, I believe that the more recent extensions have been unwise. For the reasons stated in my dissenting opinion in Harper v. Virginia Bd. of Elections, supra, at 680, 683—686, 86 S.Ct. at 1088, 1090—1092, I do not consider wealth a 'suspect' statutory criterion. And when, as in Williams v. Rhodes, supra, and the present case, a classification is based upon the exercise of rights guaranteed against state infringement by the Federal Constitution, then there is no need for any resort to the Equal Protection Clause; in such instances, this Court may properly and straightforwardly invalidate any undue burden upon those rights under the Fourteenth Amendment's Due Process Clause. See, e.g., my separate opinion in Williams v. Rhodes, supra, at 41, 89 S.Ct. at 15.
77
The second branch of the 'compelling interest' principle is even more troublesome. For it has been held that a statutory classification is subject to the 'compelling interest' test if the result of the classification may be to affect a 'fundamental right,' regardless of the basis of the classification. This rule was foreshadowed in Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), in which an Oklahoma statute providing for compulsory sterilization of 'habitual criminals' was held subject to 'strict scrutiny' mainly because it affected 'one of the basic civil rights.' After a long hiatus, the principle re-emerged in Reynolds v. Sims, 377 U.S. 533, 561—562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964), in which state apportionment statutes were subjected to an unusually stringent test because 'any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.' Id., at 562, 84 S.Ct. at 1381. The rule appeared again in Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675 (1965), in which, as I now see that case,8 the Court applied an abnormally severe equal protection standard to a Texas statute denying certain servicemen the right to vote, without indicating that the statutory distinction between servicemen and civilians was generally 'suspect.' This branch of the doctrine was also an alternate ground in Harper v. Virginia Bd. of Elections, supra, see 383 U.S., at 670, 86 S.Ct., at 1083 and apparently was a basis of the holding in Williams v. Rhodes, supra.9 It has reappeared today in the Court's cryptic suggestion, ante, at 627, that the 'compelling interest' test is applicable merely because the result of the classification may be to deny the appellees 'food, shelter, and other necessities of life,' as well as in the Court's statement, ante, at 638, that '(s)ince the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest.'10
78
I think this branch of the 'compelling interest' doctrine particularly unfortunate and unnecessary. It is unfortunate because it creates an exception which threatens to swallow the standard equal protection rule. Virtually every state statute affects important rights. This Court has repeatedly held, for example, that the traditional equal protection standard is applicable to statutory classifications affecting such fundamental matters as the right to pursue a particular occupation,11 the right to receive greater or smaller wages12 or to work more or less hours,13 and the right to inherit property.14 Rights such as these are in principle indistinguishable from those involved here, and to extend the 'compelling interest' rule to all cases in which such rights are affected would go far toward making this Court a 'super-legislature.' This branch of the doctrine is also unnecessary. When the right affected is one assured by the Federal Constitution, any infringement can be dealt with under the Due Process Clause. But when a statute affects only matters not mentioned in the Federal Constitution and is not arbitrary or irrational, I must reiterate that I know of nothing which entitles this Court to pick out particular human activities, characterize them as 'fundamental,' and give them added protection under an unusually stringent equal protection test.
79
I shall consider in the next section whether welfare residence requirements deny due process by unduly burdening the right of interstate travel. If the issue is regarded purely as one of equal protection, then, for the reasons just set forth, this nonracial classification should be judged by ordinary equal protection standards. The applicable criteria are familiar and well established. A legislative measure will be found to deny equal protection only if 'it is without any reasonable basis, and therefore is purely arbitrary.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911). It is not enough that the measure results incidentally 'in some inequality,' or that it is not drawn 'with mathematical nicety,' ibid.; the statutory classification must instead cause 'different treatments * * * so disparate, relative to the difference in classification, as to be wholly arbitrary.' Walters v. City of St. Louis, 347 U.S. 231, 237, 74 S.Ct. 505, 509, 98 L.Ed. 660 (1954). Similarly, this Court has stated that where, as here, the issue concerns the authority of Congress to withhold 'a noncontractual benefit under a social welfare program * * *, the Due Process Clause (of the Fifth Amendment) can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking i rational justification.' Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1372, 1373, 4 L.Ed.2d 1435 (1960).
80
For reasons hereafter set forth, see infra, at 672—677, a legislature might rationally find that the imposition of a welfare residence requirement would aid in the accomplishment of at least four valid governmental objectives. It might also find that residence requirements have advantages not shared by other methods of achieving the same goals. In light of this undeniable relation of residence requirements to valid legislative aims, it cannot be said that the requirements are 'arbitrary' or 'lacking in rational justification.' Hence, I can find no objection to these residence requirements under the Equal Protection Clause of the Fourteenth Amendment or under the analogous standard embodied in the Due Process Clause of the Fifth Amendment.
III.
81
The next issue, which I think requires fuller analysis than that deemed necessary by the Court under its equal protection rationale, is whether a one-year welfare residence requirement amounts to an undue burden upon the right of interstate travel. Four considerations are relevant: First, what is the constitutional source and nature of the right to travel which is relied upon? Second, what is the extent of the interference with that right? Third, what governmental interests are served by welfare residence requirements? Fourth, how should the balance of the competing considerations be struck?
82
The initial problem is to identify the source of the right to travel asserted by the appellees. Congress enacted the welfare residence requirement in the District of Columbia, so the right to travel which is invoked in that case must be enforceable against congressional action. The residence requirements challenged in the Pennsylvania and Connecticut appeals were authorized by Congress in 42 U.S.C. § 602(b), so the right to travel relied upon in those cases must be enforceable against the States even though they have acted with congressional approval.
83
In my view, it is playing ducks and drakes with the statute to argue, as the Court does, ante, at 639—641, that Congress did not mean to approve these state residence requirements. In 42 U.S.C. § 602(b), quoted more fully, ante, at 638-639, Congress directed that:
84
'(t)he Secretary shall approve any (state assistance) plan which fulfills the conditions specified in subsection (a) of this section, except that he shall not approve any plan which imposes as a condition of eligibility for (AFDC aid) a residence requirement (equal to or greater than one year).'
85
I think that by any fair reading this section must be regarded as conferring congressional approval upon any plan containing a residence requirement of up to one year.
86
If any reinforcement is needed for taking this statutory language at face value, the overall scheme of the AFDC program and the context in which it was enacted suggest strong reasons why Congress would have wished to approve limited state residence requirements. Congress determined to enlist state assistance in financing the AFDC program, and to administer the program primarily through the States. A previous Congress had already enacted a one-year residence requirement with respect to aid for dependent children in the District of Columbia.15 In these circumstances, I think it only sensible to conclude that in allowing the States to impose limited residence conditions despite their possible impact on persons who wished to move interstate,16 Congress was motivated by a desire to encourage state participation in the AFDC program,17 as well as by a feeling that the States should at least be permitted to impose residence requirements as strict as that already authorized for the District of Columbia. Congress therefore had a genuine federal purpose in allowing the States to use residence tests. And I fully agree with THE CHIEF JUSTICE that this purpose would render § 602(b) a permissible exercise of Congress' power under the Commerce Clause, unless Congress were prohibited from acting by another provision of the Constitution.
87
Nor do I find it credible that Congress intended to refrain from expressing approval of state residence requirements because of doubts about their constitutionality or their compatibility with the Act's beneficent purposes. With respect to constitutionality, a similar residence requirement was already in effect for the District of Columbia, and the burdens upon travel which might be caused by such requirements must, even in 1935, have been regarded as within the competence of Congress under its commerce power. If Congress had thought residence requirements entirely incompatible with the aims of the Act, it could simply have provided that state assistance plans containing such requirements should not be approved at all, rather than having limited approval to plans containing residence requirements of less than one year. Moreover, when Congress in 1944 revised the AFDC program in the District of Columbia to conform with the standards of the Act, it chose to condition eligibility upon one year's residence,18 thus strongly indicating that it doubted neither the constitutionality of such a provision nor its consistency with the Act's purposes.19
88
Opinions of this Court and of individual Justices have suggested four provisions of the Constitution as possible sources of a right to travel enforceable against the federal or state governments: the Commerce Clause;20 the Privileges and Immunities Clause of Art. IV, § 2;21 the Privileges and Immunities Clause of the Fourteenth Amendment;22 and the Due Process Clause of the Fifth Amendment.23 The Commerce Clause can be of no assistance to these appellees, since that clause grants plenary power to Congress,24 and Congress either enacted or approved all of the residence requirements here challenged. The Privileges and Immunities Clause of Art. IV, § 2,25 is irrelevant, for it appears settled that this clause neither limits federal power nor prevents a State from distinguishing among its own citizens, but simply 'prevents a state from discriminating against citizens of other states in favor of its own.' Hague v. CIO, 307 U.S. 496, 511, 59 S.Ct. 954, 962, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.); see Slaughter-House Cases, 16 Wall. 36, 77, 21 L.Ed. 394 (1873). Since Congress enacted the District of Columbia residence statute, and since the Pennsylvania and Connecticut appellees were residents and therefore citizens of those States when they sought welfare, the clause can have no application in any of these cases.
89
The Privileges and Immunities Clause of the Fourteenth Amendment provides that: 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' It is evident that this clause cannot be applicable in the District of Columbia appeal, since it is limited in terms to instances of state action. In the Pennsylvania and Connecticut cases, the respective States did impose and enforce the residence requirements. However, Congress approved these requirements in 42 U.S.C. § 602(b). The fact of congressional approval, together with this Court's past statements about the nature of the Fourteenth Amendment Privileges and Immunities Clause, leads me to believe that the clause affords no additional help to these appellees, and that the decisive issue is whether Congress itself may impose such requirements. The view of the Privileges and Immunities Clause which has most often been adopted by the Court and by individual Justices is that it extends only to those 'privileges and immunities' which 'arise or grow out of the relationship of United States citizens to the national government.' Hague v. CIO, 307 U.S. 496, 520, 59 S.Ct. 954, 966 (1939) (opinion of Stone, J.).26 On the authority of Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744 (1868), those privileges and immunities have repeatedly been said to include the right to travel from State to State,27 presumably for the reason assigned in Crandall: that state restrictions on travel might interfere with intercourse between the Federal Government and its citizens.28 This kind of objection to state welfare residence requirements would seem necessarily to vanish in the face of congressional authorization, for except in those instances when its authority is limited by a constitutional provision binding upon it (as the Fourteenth Amendment is not), Congress has full power to define the relationship between citizens and the Federal Government.
90
Some Justices, notably the dissenters in the Slaughter-House Cases, 16 Wall. 36, 83, 111, 124 (1873) (Field, Bradley, and Swayne, JJ., dissenting), and the concurring Justices in Edwards v. California, 314 U.S. 160, 177, 181, 62 S.Ct. 164, 168, 170 (1941) (Douglas and Jackson, JJ., concurring), have gone further and intimated that the Fourteenth Amendment right to travel interstate is a concomitant of federal citizenship which stems from sources even more basic than the need to protect citizens in their relations with the Federal Government. The Sl ughter-House dissenters suggested that the privileges and immunities of national citizenship, including freedom to travel, were those natural rights 'which of right belong to the citizens of all free governments,' 16 Wall., at 98 (Field, J.). However, since such rights are 'the rights of citizens of any free government,' id., at 114 (Bradley, J.), it would appear that they must be immune from national as well as state abridgement. To the extent that they may be validly limited by Congress, there would seem to be no reason why they may not be similarly abridged by States acting with congressional approval.
91
The concurring Justices in Edwards laid emphasis not upon natural rights but upon a generalized concern for the functioning of the federal system, stressing that to allow a State to curtail 'the rights of national citizenship would be to contravene every conception of national unity,' 314 U.S., at 181, 62 S.Ct., at 170 (Douglas, J.), and that '(i)f national citizenship means less than (the right to move interstate) it means nothing.' Id., at 183, 62 S.Ct., at 171 (Jackson, J.). However, even under this rationale the clause would appear to oppose no obstacle to congressional delineation of the rights of national citizenship, insofar as Congress may do so without infringing other provisions of the Constitution. Mr. Justice Jackson explicitly recognized in Edwards that: 'The right of the citizen to migrate from state to state * * * (is) subject to all constitutional limitations imposed by the federal government,' id., at 184, 62 S.Ct., at 172. And nothing in the nature of federalism would seem to prevent Congress from authorizing the States to do what Congress might validly do itself. Indeed, this Court has held, for example, that Congress may empower the States to undertake regulations of commerce which would otherwise be prohibited by the negative implications of the Commerce Clause. See Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 66 S.Ct. 1142, 90 L.Ed. 1342 (1946). Hence, as has already been suggested, the decisive question is whether Congress may legitimately enact welfare residence requirements, and the Fourteenth Amendment Privileges and Immunities Clause adds no extra force to the appellees' attack on the requirements.
92
The last possible source of a right to travel is one which does operate against the Federal Government: the Due Process Clause of the Fifth Amendment.29 It is now settled that freedom to travel is an element of the 'liberty' secured by that clause. In Kent v. Dulles, 357 U.S. 116, 125—126, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958), the Court said:
93
'The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. * * * Freedom of movement across frontiers * * *, and inside frontiers as well, was a part of our heritage. * * *'
94
The Court echoed these remarks in Aptheker v. Secretary of State, 378 U.S. 500, 505—506, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992 (1964), and added:
95
'Since this case involves a personal liberty protected by the Bill of Rights, we believe that the proper approach to legislation curtailing that liberty must be that adopted by this Court in NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405, and Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. * * * (S)ince freedon of travel is a constitutional liberty closely related to rights of free speech and association, we believe that appellants * * * should not be required to assume the burden of demonstrating that Congress could not have written a statute constitutionally prohibiting their travel.' Id., at 516—517, 84 S.Ct., at 1669.
96
However, in Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), the First Amendment cast of the Aptheker opinion was explained as having stemmed from the fact that Aptheker was forbidden to travel because of 'expression or association on his part,' id., at 16, 85 S.Ct. at 1280. The Court noted that Zemel was 'not being forced to choose between membership in an organization and freedom to travel,' ibid., and held that the mere circumstance that Zemel's proposed journey to Cuba might be used to collect information of political and social significance was not enough to bring the case within the First Amendment category.
97
Finally, in United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), the Court again had occasion to consider the right of interstate travel. Without specifying the source of that right, the Court said:
98
'The constitutional right to travel from one State to another * * * occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. * * * (The) right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.' Id. at 757—758, 86 S.Ct. at 1178. (Footnotes omitted.)
99
I therefore conclude that the right to travel interstate is a 'fundamental' right which, for present purposes, should be regarded as having its source in the Due Process Clause of the Fifth Amendment.
100
The next questions are: (1) To what extent does a one-year residence condition upon welfare eligibility interfere with this right to travel?; and (2) What are the governmental interests supporting such a condition? The consequence of the residence requirements is that persons who contemplate interstate changes of residence, and who believe that they otherwise would qualify for welfare payments, must take into account the fact that such assistance will not be available for a year after arrival. The number or proportion of persons who are actually deterred from changing residence by the existence of these provisions is unknown. If one accepts evidence put forward by the appellees,30 to the effect that there would be only a minuscule increase in the number of welfare applicants were existing residence requirements to be done away with, it follows that the requirements do not deter an appreciable number of persons from moving interstate.
101
Against this indirect impact on the right to travel must be set the interests of the States, and of Congress with respect to the District of Columbia, in imposing residence conditions. There appear to be four such interests. First, it is evident that a primary concern of Congress and the Pennsylvania and Connecticut Legislatures was to deny welfare benefits to persons who moved into the jurisdiction primarily in order to collect those benefits.31 This seems to me an entirely legitimate objective. A legislature is certainly not obliged to furnish welfare assistance to every inhabitant of the jurisdiction, and it is entirely rational to deny benefits to those who enter primarily in order to receive them, since this will make more funds available for those whom the legislature deems more worthy of subsidy.32
102
A second possible purpose of residence requirements is the prevention of fraud. A residence requirement provides an objective and workable means of determining that an applicant intends to remain indefinitely within the jurisdiction. It therefore may aid in eliminating fraudulent collection of benefits by nonresidents and persons already receiving assistance in other States. There can be no doubt that prevention of fraud is a valid legislative goal. Third, the requirement of a fixed period of residence may help in predicting the budgetary amount which will be needed for public assistance in the future. While none of the appellant jurisdictions appears to keep data sufficient to permit the making of detailed budgetary predictions in consequence of the requirement,33 it is probable that in the event of a very large increase or decrease in tne number of indigent newcomers the waiting period would give the legislature time to make needed adjustments in the welfare laws. Obviously, this is a proper objective. Fourth, the residence requirements conceivably may have been predicated upon a legislative desire to restrict welfare payments financed in part by state tax funds to persons who have recently made some contribution to the State's economy, through having been employed, having paid taxes, or having spent money in the State. This too would appear to be a legitimate purpose.34
103
The next question is the decisive one: whether the governmental interests served by residence requirements outweigh the burden imposed upon the right to travel. In my view, a number of considerations militate in favor of constitutionality. First, as just shown, four separate, legitimate governmental interests are furthered by residence requirements. Second, th impact of the requirements upon the freedom of individuals to travel interstate is indirect and, according to evidence put forward by the appellees themselves, insubstantial. Third, these are not cases in which a State or States, acting alone, have attempted to interfere with the right of citizens to travel, but one in which the States have acted within the terms of a limited authorization by the National Government, and in which Congress itself has laid down a like rule for the District of Columbia. Fourth, the legislatures which enacted these statutes have been fully exposed to the arguments of the appellees as to why these residence requirements are unwise, and have rejected them. This is not, therefore, an instance in which legislatures have acted without mature deliberation.
104
Fifth, and of longer-range importance, the field of welfare assistance is one in which there is a widely recognized need for fresh solutions and consequently for experimentation. Invalidation of welfare residence requirements might have the unfortunate consequence of discouraging the Federal and State Governments from establishing unusually generous welfare programs in particular areas on an experimental basis, because of fears that the program would cause an influx of persons seeking higher welfare payments. Sixth and finally, a strong presumption of constitutionality attaches to statutes of the types now before us. Congressional enactments come to this Court with an extremely heavy presumption of validity. See, e.g., Brown v. Maryland, 12 Wheat. 419, 436, 6 L.Ed. 678 (1827); Hardware Dealers Mutual Fire Insurance Co. v. Glidden Co., 284 U.S. 151, 158, 52 S.Ct. 69, 71, 76 L.Ed. 214 (1931); United States v. Butler, 297 U.S. 1, 67, 56 S.Ct. 312, 319, 80 L.Ed. 477 (1936); United States v. National Dairy Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963). A similar presumption of constitutionality attaches to state statutes, particularly when, as here, a State has acted upon a specific authorization from Congress. See, e.g., Powell v. Pennsylvania, 127 U.S. 678, 684 685, 8 S.Ct. 992, 995—996, 32 L.Ed. 253 (1888); United States v. Des Moines Nav. & R. Co., 142 U.S. 510, 544—545, 12 S.Ct. 308, 317 318, 35 L.Ed. 1099 (1892).
105
I do not consider that the factors which have been urged to outweigh these considerations are sufficient to render unconstitutional these state and federal enactments. It is said, first, that this Court, in the opinions discussed, supra, at 669 671, has acknowledged that the right to travel interstate is a 'fundamental' freedom. Second, it is contended that the governmental objectives mentioned above either are ephemeral or could be accomplished by means which do not impinge as heavily on the right to travel, and hence that the requirements are unconstitutional because they 'sweep unnecessarily broadly and thereby invade the area of protected freedoms.' NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325 (1964). The appellees claim that welfare payments could be denied those who come primarily to collect welfare by means of less restrictive provisions, such as New York's Welfare Abuses Law;35 that fraud could be prevented by investigation of individual applicants or by a much shorter residence period; that budgetary predictability is a remote and speculative goal; and that assurance of investment in the community could be obtained by a shorter residence period or by taking into account prior intervals of residence in the jurisdiction.
106
Taking all of these competing considerations into account, I believe that the balance definitely favors constitutionality. In reaching tha conclusion, I do not minimize the importance of the right to travel interstate. However, the impact of residence conditions upon that right is indirect and apparently quite insubstantial. On the other hand, the governmental purposes served by the requirements are legitimate and real, and the residence requirements are clearly suited to their accomplishment. To abolish residence requirements might well discourage highly worthwhile experimentation in the welfare field. The statutes come to us clothed with the authority of Congress and attended by a correspondingly heavy presumption of constitutionality. Moreover, although the appellees assert that the same objectives could have been achieved by less restrictive means, this is an area in which the judiciary should be especially slow to fetter the judgment of Congress and of some 46 state legislatures36 in the choice of methods. Residence requirements have advantages, such as administrative simplicity and relative certainty, which are not shared by the alternative solutions proposed by the appellees. In these circumstances, I cannot find that the burden imposed by residence requirements upon ability to travel outweighs the governmental interests in their continued employment. Nor do I believe that the period of residence required to these cases—one year—is so excessively long as to justify a finding of unconstitutionality on that score.
107
I conclude with the following observations. Today's decision, it seems to me, reflects to an unusual degree the current notion that this Court possesses a peculiar wisdom all its own whose capacity to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises. For anyone who, like myself, believes that it is an essential function of this Court to maintain the constitutional divisions between state and federal authority and among the three branches of the Federal Government, today's decision is a step in the wrong direction. This resurgence of the expansive view of 'equal protection' carries the seeds of more judicial interference with the state and federal legislative process, much more indeed than does the judicial application of 'due process' according to traditional concepts (see my dissenting opinion in Duncan v. Louisiana, 391 U.S. 145, 171, 88 S.Ct. 1444, 1458, 20 L.Ed.2d 491, 522 (1968)), about which some members of this Court have expressed fears as to its potentialities for setting us judges 'at large.'37 I consider it particularly unfortunate that this judicial roadblock to the powers of Congress in this field should occur at the very threshold of the current discussions regarding the 'federalizing' of these aspects of welfare relief.
1
Accord: Robertson v. Ott, 284 F.Supp. 735 (D.C.Mass.1968); Johnson v. Robinson (D.C.N.D.Ill.1968); Ramos v. Health and Social Services Bd., 276 F.Supp. 474 (D.C.E.D.Wis.1967); Green v. Dept. of Pub. Welfare, 270 F.Supp. 173 (D.C.Del.1967). Contra: Waggoner v. Rosenn, 286 F.Supp. 275 (D.C.M.D.Pa.1968); see also People ex rel. Heydenreich v. Lyons, 374 Ill. 557, 30 N.E.2d 46, 132 A.L.R. 511 (1940).
All but one of the appellees herein applied for assistance under the Aid to Families with Dependent Children (AFDC) program which was established by the Social Security Act of 1935. 49 Stat. 627, as amended, 4 U.S.C. §§ 601—609. The program provides partial federal funding of state assistance plans which meet certain specifications. One appellee applied for Aid to the Permanently and Totally Disabled which is also jointly funded by the States and the Federal Government. 42 U.S.C. §§ 1351—1355.
2
Conn.Gen.Stat.Rev. § 17—2d (1965 Supp.), now § 17—2c, provides:
'When any person comes into this state without visible means of support for the immediate future and applies for aid to dependent children under chapter 301 or general assistance under part I of chapter 308 within one year from his arrival, such person shall be eligible only for temporary aid or care until arrangements are made for his return, provided ineligibility for aid to dependent children shall not continue beyond the maximum federal residence requirement.'
An exception is made for those persons who come to Connecticut with a bona fide job offer or are self-supporting upon arrival in the State and for three months thereafter. 1 Conn.Welfare Manual, c. II, §§ 219.1—219.2 (1966).
3
D.C.Code Ann. § 3—203 (1967) provides:
'Public assistance shall be awarded to or on behalf of any needy individual who either (a) has resided in the District for one year immediately preceding the date of filing his application for such assistance; or (b) who was born within one year immediately preceding the application for such aid, if the parent or other relative with whom the child is living has resided in the District for one year immediately preceding the birth; or (c) is otherwise within one of the categories of public assistance established by this chapter.' See D. C. Handbook of Pub. Assistance Policies and Procedures, HPA—2, EL 9.1, I, III (1966) (hereinafter c ted as D. C. Handbook).
4
In Ex parte Cogdell, 342 U.S. 163, 72 S.Ct. 196, 96 L.Ed. 181 (1951), this Court remanded to the Court of Appeals for the District of Columbia Circuit to determine whether 28 U.S.C. § 2282, requiring a three-judge court when the constitutionality of an Act of Congress is challenged, applied to Acts of Congress pertaining solely to the District of Columbia. The case was mooted below, and the question has never been expressly resolved. However, in Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954), this Court heard an appeal from a three-judge court in a case involving the constitutionality of a District of Columbia statute. Moreover, three-judge district courts in the District of Columbia have continued to hear cases involving such statutes. See, e.g., Hobson v. Hansen, 265 F.Supp. 902 (1967). Section 2282 requires a three-judge court to hear a challenge to the constitutionality of 'any Act of Congress.' (Emphasis supplied.) We see no reason to make an exception for Acts of Congress pertaining to the District of Columbia.
5
Pa.Stat., Tit. 62, § 432(6) (1968). See also Pa.Pub. Assistance Manual §§ 3150—3151 (1962). Section 432(6) provides:
'Assistance may be granted only to or in behalf of a person residing in Pennsylvania who (i) has resided therein for at least one year immediately preceding the date of application; (ii) last resided in a state which, by law, regulation or reciprocal agreement with Pennsylvania, grants public assistance to or in behalf of a person who has resided in such state for less than one year; (iii) is a married woman residing with a husband who meets the requirement prescribed in subclause (i) or (ii) of this clause; or (iv) is a child less than one year of age whose parent, or relative with whom he is residing, meets the requirement prescribed in subclause (i), (ii) or (iii) of this clause or resided in Pennsylvania for at least one year immediately preceding the child's birth. Needy persons who do not meet any of the requirements stated in this clause and who are transients or without residence in any state, may be granted assistance in accordance with rules, regulations, and standards established by the department.'
6
This constitutional challenge cannot be answered by the argument that public assistance benefits are a 'privilege' and not a 'right.' See Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963).
7
The waiting-period requirement has its antecedents in laws prevalent in England and the American Colonies centuries ago which permitted the ejection of individuals and families if local authorities thought they might become public charges. For example, the preamble of the Engligh Law of Settlement and Removal of 1662 expressly recited the concern, also said to justify the three statutes before us, that large numbers of the poor were moving to parishes where more liberal relief policies were in effect. See generally Coll, Perspectives in Public Welfare: The English Heritage, 4 Welfare in Review No. 3, p. 1 (1966). The 1662 law and the earlier Elizabethan Poor Law of 1601 were the models adopted by the American Colonies. Newcomers to a city, town, or county who might become public charges were 'warned out' or 'passed on' to the next locality. Initially, the funds for welfare payments were raised by local taxes, and the controversy as to responsibility for particular indigents was between localities in the same State. As States—first alone and then with federal grants—assumed the major responsibility, the contest of nonresponsibility became interstate.
8
In Corfield v. Coryell, 6 Fed.Cas. pp. 546, 552 (No. 3230) (C.C.E.D.Pa.1825), Paul v. Virginia, 8 Wall. (75 U.S.) 168, 180, 19 L.Ed. 357 (1869), and Ward v. Maryland, 12 Wall. (79 U.S.) 418, 430 20 L.Ed. 449 (1871), the right to travel interstate was grounded upon the Privileges and Immunities Clause of Art. IV, § 2. See also Slaughter-House Cases, 16 Wall. 36, 79, 21 L.Ed. 394 (1873); Twining v. New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 18, 53 L.Ed. 97 (1908). In Edwards v. California, 314 U.S. 160, 181, 183—185, 62 S.Ct. 164, 170, 171—172, 86 L.Ed. 119 (1941) (Douglas and Jackson, JJ., concurring), and Twining v. New Jersey, supra, reliance was placed on the Privileges and Immunities Clause of the Fourteenth Amendment. See also Crandall v. Nevada, 6 Wall. (73 U.S.) 35, 18 L.Ed. 744 (1868). In Edwards v. California, supra, and the Passenger Cases, 7 How. 283 (1849), a Commerce Clause approach was employed.
See also Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958); Aptheker v. Secretary of State, 378 U.S. 500, 505—506, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992 (1964); Zemel v. Rusk, 381 U.S. 1, 14, 85 S.Ct. 1271, 1279, 14 L.Ed.2d 179 (1965), where the freedom of Americans to travel outside the country was grounded upon the Due Process Clause of the Fifth Amendment.
9
Furthermore, the contribution rationale can hardly explain why the District of Columbia and Pennsylvania bar payments to children who have not lived in the jurisdiction for a year regardless of whether the parents have lived in the jurisdiction for that period. See D.C. Code § 3—203; D.C. Handbook, EL 9.1, I(C) (1966); Pa.Stat., Tit. 62, § 432(6) (1968). Clearly, the children who were barred would not have made a contribution during that year.
10
We are not dealing here with state insurance programs which may legitimately tie the amount of benefits to the individual's contributions.
11
In Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966), New Jersey attempted to reduce expenditures by requiring prisoners who took an unsuccessful appeal to reimburse the State out of their institutional earnings for the cost of furnishing a trial transcript. This Court held the New Jersey statute unconstitutional because it did not require similar repayments from unsuccessful appellants given a suspended sentence, placed on probation, or sentenced only to a fine. There was no rational basis for the distinction between unsuccessful appellants who were in prison and those who were not.
12
Appellant in No. 9, the Connecticut Welfare Commissioner, disclaims any reliance on this contention. In No. 34, the District Court found as a fact that the Pennsylvania requirement served none of the claimed functions. 277 F.Supp. 65, 68 (1967).
13
Of course, such advance notice would inevitably be unreliable since some who registered would not need welfare a year later while others who did not register would need welfare.
14
See Conn.Gen.Stat.Rev. § 17—2d, now § 17—2c, and Pa.Pub.Assistance Manual § 3154 (1968).
15
Both Connecticut and Pennsylvania have entered into open-ended interstate compacts in which they have agreed to eliminate the durational requirement for anyone who comes from another State which has also entered into the compact. Conn.Gen.Stat.Rev. § 17—21a (1968); Pa.Pub.Assistance Manual § 3150, App. I (1966). See 44 Stat. 758, § 1.
16
In Pennsylvania, the one-year waiting-period requirement, but not the residency requirement, is waived under reciprocal agreements. Pa.Stat., Tit. 62, § 432(6) (1968); Pa.Pub.Assistance Manual § 3151.21 (1962).
1 Conn.Welfare Manual, c. II, § 220 (1966), provides that '(r)esidence within the state shall mean that the applicant is living in an established place of abode and the plan is to remain.' A person who meets this requirement does not have to wait a year for assistance if he entered the State with a bona fide job offer or with sufficient funds to support himself without welfare for three months. Id., at § 219.2.
HEW Handbook of Pub. Assistance Administration, pt. IV, § 3650 (1946), clearly distinguishes between residence and duration of residence. It defines residence, as is conventional, in terms of intent to remain in the jurisdiction, and it instructs interviewers that residence and length of residence 'are two distinct aspects * * *.'
17
See, e.g., D. C. Handbook, chapters on Eligibility Payments, Requirements, Resources and Reinvestigation for an indication of how thorough these investigations are. See also 1 Conn.Welfare Manual, c. I (1967); Pa.Pub.Assistance Manual §§ 3170 3330 (1962).
The Department of Health, Education, and Welfare has proposed the elimination of individual investigations, except for spot checks, and the substitution of a declaration system, under which the 'agency accepts the statements of the applicant for or recipient of assistance, about facts that are within his knowledge and competence * * * as a basis for decisions regarding his eligibility and extent of entitlement.' HEW, Determination of Eligibility for Public Assistance Programs, 33 Fed.Reg. 17189 (1968). See also Hoshino, Simplification of the Means Test and its Consequences, 41 Soc.Serv.Rev. 237, 241—249 (1967); Burns, What's Wrong With Public Welfare?, 36 Soc.Serv.Rev. 111, 114—115 (1962). Presumably the statement of an applicant that he intends to remain in the jurisdiction would be accepted under a declaration system.
18
The unconcern of Connecticut and Pennsylvania with the one-year requirement as a means of preventing fraud is made apparent by the waiver of the requirement in reciprocal agreements with other States. See n. 15, supra.
19
D.C. Handbook, RV 2.1, I, II (B) (1967). See also Pa.Pub.Assistance Manual § 3153 (1962).
20
Under the traditional standard, equal protection is denied only if the classification is 'without any reasonable basis,' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911); see also Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367 (1960).
21
We imply no view of the validity of waiting-period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or, on the other, may not be penalties upon the exercise of the constitutional right of interstate travel.
22
As of 1964, 11 jurisdictions imposed no residence requirement whatever for AFDC assistance. They were Alaska, Georgia, Hawaii, Kentucky, New Jersey, New York, Rhode Island, Vermont, Guam, Puerto Rico, and the Virgin Islands. See HEW, Characteristics of State Public Assistance Plans under the Social Security Act (Pub.Assistance Rep.No. 50, 1964 ed.).
23
Social Security Board, Social Security in America 235—236 (1937).
24
H.R.Rep.No. 615, 74th Cong., 1st Sess., 24; S.Rep.No. 628, 74th Cong., 1st Sess., 35. Furthermore, the House Report cited President Roosevelt's statement in his Social Security Message that 'People want decent homes to live in; they want to locate them where they can engage in productive work * * *.' H.R.Rep. supra, at 2. Clearly this was a call for greater freedom of movement.
In addition to the statement in the above Committee report, see the remarks of Rep. Doughton (floor manager of the Social Security bill in the House) and Rep. Vinson. 79 Cong.Rec. 5474, 5602—5603 (1935). These remarks were made in relation to the waiting-period requirements for old-age assistance, but they apply equally to the AFDC program.
25
Section 402(b) required the repeal of 30 state statutes which imposed too long a waiting period in the State or particular town or county and 11 state statutes (as well as the Hawaii statute) which required residence in a particular town or county. See Social Security Board, Social Security in America 235—236 (1937).
It is apparent that Congress was not intimating any view of the constitutionality of a one-year limitation. The constitutionality of any scheme of federal social security legislation was a matter of doubt at that time in light of the decision in Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935). Throughout the House debates congressmen discussed the constitutionality of the fundamental taxing provisions of the Social Security Act, see, e.g., 79 Cong.Rec. 5783 (1935) (remarks of Rep. Cooper), but not once did they discuss the constitutionality of § 402(b).
1
By contrast, the 'right' of international travel has been considered to be no more than an aspect of the 'liberty' protected by the Due Process Clause of the Fifth Amendment. Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204; Aptheker v. Secretary of State, 378 U.S. 500, 505—506, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992. As such, this 'right,' the Court has held, can be regulated within the bounds of due process. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179.
2
The constitutional right of interstate travel was fully recognized long before adoption of the Fourteenth Amendment. See the statement of Chief Justice Taney in the Passenger Cases. 7 How. 283, 492, 12 L.Ed. 702:
'For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.'
3
Mr. Justice Harlan was alone in dissenting from this square holding in Guest. Supra, at 762, 86 S.Ct., at 1180.
4
The extent of emergency governmental power temporarily to prevent or control interstate travel, e.g., to a disaster area, need not be considered in these cases.
5
It is to be remembered that the Court today affirms the judgment of three different federal district courts, and that at least four other federal courts have reached the same result. See ante, at 622, n. 1.
1
See, e.g., Hearings on H.R. 4120 before the House Committee on Ways and Means, 74th Cong., 1st Sess., 831—832, 861 871 (1935).
2
See, e.g., Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 522—540, 643, 656 (1935).
3
See e.g., Hearings on H.R. 10032 before the House Committee on Ways and Means, 87th Cong., 2d Sess., 355, 385—405, 437 (1962); Hearings on H.R. 6000 before the Senate Committee on Finance, 81st Cong., 2d Sess., 142—143 (1950).
4
See e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256—260, 85 S.Ct. 348, 356—359, 13 L.Ed.2d 258 (1964).
5
The burden is uncertain because indigents who are disqualified from categorical assistance by residence requirements are not left wholly without assistance. All the appellees in these cases found alternative sources of assistance after their disqualification.
6
Some of the cases go so far as to intimate that at least in the area of taxation Congress is not inhibited by any problems of classification. See Helvering v. Lerner Stores Corp., 314 U.S. 463, 468, 62 S.Ct. 341, 343, 86 L.Ed. 343 (1941); Steward Machine Co. v. Davis, 301 U.S. 548, 584, 57 S.Ct. 883, 889, 81 L.Ed. 1279 (1937); LaBelle Iron Works v. United States, 256 U.S. 377, 392, 41 S.Ct. 528, 532, 65 L.Ed. 998 (1921).
1
Of the District of Columbia appellees, all sought AFDC assistance except appellee Barley, who asked for Aid to the Permanently and Totally Disabled. In 42 U.S.C. § 602(b). Congress has authorized 'States' (including the District of Columbia, see 42 U.S.C. § 1301(a)(1)) to require up to one year's immediately prior residence as a condition of eligibility for AFDC assistance. See n. 15, infra. In 42 U.S.C. §§ 1352(b)(1) and 1382(b)(2), Congress has permitted 'States' to condition disability payments upon the applicant's having resided in the State for up to five of the preceding nine years. However, D.C.Code § 3—203 prescribes a one-year residence requirement for both types of assistance, so the question of the constitutionality of a longer required residence period is not before us.
Appellee Barley also challenged in the District Court the constitutionality of a District of Columbia regulation which provided that time spent in a District of Columbia institution as a public charge did not count as residence for purposes of welfare eligibility. The District Court held that the regulation must fall for the same reasons as the residence statute itself. Since I believe that the District Court erred in striking down the statute, and since the issue of the regulation's constitutionality has been argued in this Court only in passing, I would remand appellee Barley's cause for further consideration of that question.
2
I do not believe that the Pennsylvania appeal presents the additional question of the validity of a residence condition for a purely state-financed and state-authorized public assistance program. The Pennsylvania welfare eligibility provision, Pa. Stat.Ann., Tit. 62, § 432 (1968), states:
'Except as hereinafter otherwise provided * * *, needy persons of the classes d fined in clauses (1) and (2) of this section shall be eligible for assistance:
'(1) Persons for whose assistance Federal financial participation is available to the Commonwealth as * * * aid to families with dependent children, * * * and which assistance is not precluded by other provisions of law.
'(2) Other persons who are citizens of the United States * * *.
'(6) Assistance may be granted only to or in behalf of a person residing in Pennsylvania who (i) has resided therein for at least one year immediately preceding the date of application * * *.'
As I understand it, this statute initially divides Pennsylvania welfare applicants into two classes: (1) persons for whom federal financial assistance is available and not precluded by other provisions of federal law (if state law, including the residence requirement, were intended, the 'Except as hereinafter otherwise provided' proviso at the beginning of the entire section would be surplusage); (2) other persons who are citizens. The residence requirement applies to both classes. However, since all of the Pennsylvania appellees clearly fall into the first or federally assisted class, there is no need to consider whether residence conditions may constitutionally be imposed with respect to the second or purely state-assisted class.
3
In characterizing this argument as one based on an alleged denial of equal protection of the laws, I do not mean to disregard the fact that this contention is applicable in the District of Columbia only through the terms of the Due Process Clause of the Fifth Amendment. Nor do I mean to suggest that these two constitutional phrases are 'always interchangeable,' see Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). In the circumstances of this case, I do not believe myself obliged to explore whether there may be any differences in the scope of the protection afforded by the two provisions.
4
See, e.g., New York Rapid Transit Corp. v. City of New York, 303 U.S. 573, 578, 58 S.Ct. 721, 724, 82 L.Ed. 1024 (1938). See also infra, at 662.
5
See Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); cf. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694 (1954). See also Hirabayashi v. United States, 320 U.S. 81, 00, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).
6
See n. 9, infra.
7
See n. 9, infra.
8
I recognize that in my dissenting opinion in Harper v. Virginia Bd. of Elections, supra, at 683, 86 S.Ct., at 1090. I characterized the test applied in Carrington as 'the traditional equal protection standard.' I am now satisfied that this was too generous a reading of the Court's opinion.
9
Analysis is complicated when the statutory lassification is grounded upon the exercise of a 'fundamental' right. For then the statute may come within the first branch of the 'compelling interest' doctrine because exercise of the right is deemed a 'suspect' criterion and also within the second because the statute is considered to affect the right by deterring its exercise. Williams v. Rhodes, supra, is such a case insofar as the statutes involved both inhibited exercise of the right of political association and drew distinctions based upon the way the right was exercised. The present case is another instance, insofar as welfare residence statutes both deter interstate movement and distinguish among welfare applicants on the basis of such movement. Consequently, I have not attempted to specify the branch of the doctrine upon which these decisions rest.
10
See n. 9, supra.
11
See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Kotch v. Board of River Pilot Com'rs, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947).
12
See, e.g., Bunting v. Oregon, 243 U.S. 426, 37 S.Ct. 435, 61 L.Ed. 830 (1917).
13
See, e.g., Miller v. Wilson, 236 U.S. 373, 35 S.Ct. 342, 59 L.Ed. 628 (1915).
14
See, e.g., Ferry v. Spokane, P. & S.R. Co., 258 U.S. 314, 42 S.Ct. 358, 66 L.Ed. 635 (1922).
15
See 44 Stat. 758, § 1.
16
The arguments for and against welfare residence requirements, including their impact on indigent migrants, were fully aired in congressional committee hearings. See, e.g., Hearings on H.R. 4120 before the House Committee on Ways and Means, 74th Cong., 1st Sess., 831—832, 861—871 (1935); Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 522—540, 643, 656 (1935).
17
I am not at all persuaded by the Court's argument that Congress' sole purpose was to compel "(l)iberality of residence requirement." See ante, at 640. If that was the only objective, it could have been more effectively accomplished by specifying that to qualify for approval under the Act a state assistance plan must contain no residence requirement.
18
See Act to provide aid to dependent children in the District of Columbia § 3, 58 Stat. 277 (1944). In 1962, this Act was repealed and replaced by D.C. Code § 3—203, the provision now being challenged. See 76 Stat. 914.
19
Cf., ante, at 639—641 and nn. 24—25.
20
See, e.g., Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941); the Passenger Cases, 7 How. 283, 12 L.Ed. 702 (1849).
21
See, e.g., Corfield v. Coryell, 6 Fed.Cas. p. 546 (No. 3230) (1825) (Mr. Justice Washington).
22
See, e.g., Edwards v. California, 314 U.S. 160, 177, 181, 62 S.Ct. 164, 168, 170 (1941) (Douglas and Jackson, JJ., concurring); Twining v. New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 18, 53 L.Ed. 97 (1908) (dictum).
23
See, e.g., Kent v. Dulles, 357 U.S. 116, 125—127, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958); Aptheker v. Secretary of State, 378 U.S. 500, 505—506, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992 (1964).
24
See, e.g., Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 423, 66 S.Ct. 1142, 1151, 90 L.Ed. 1342 (1946). See also Maryland v. Wirtz, 392 U.S. 183, 193—199, 88 S.Ct. 2017, 2022—2024, 20 L.Ed.2d 1020 (1968).
25
'The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.'
26
See Slaughter-House Cases, 16 Wall. 36, 79 (1873); In re Kemmler, 136 U.S. 436, 448, 10 S.Ct. 930, 934, 34 L.Ed. 519 (1890); McPherson v. Blacker, 146 U.S. 1, 38, 13 S.Ct. 3, 11, 36 L.Ed. 869 (1892); Giozza v. Tiernan, 148 U.S. 657, 661, 13 S.Ct. 721, 723, 37 L.Ed. 599 (1893); Duncan v. Missouri, 152 U.S. 377, 382, 14 S.Ct. 570, 571, 38 L.Ed. 485 (1894); Twining v. New Jersey, 211 U.S. 78, 97—98, 29 S.Ct. 14, 18—19 (1908).
27
See, e.g., Slaughter-House Cases, supra, at 79; Twining v. New Jersey, supra, at 97, 29 S.Ct., at 18.
28
The Crandall Court stressed the 'right' of a citizen to come to the national capital, to have access to federal officials, and to travel to seaports. See 6 Wall., at 44. Of course, Crandall was decided before the enactment of the Fourteenth Amendment.
29
Professor Chafee has suggested that the Due Process Clause of the Fourteenth Amendment may similarly protect the right to travel against state interference. See Z. Chafee, Three Human Rights in the Constitution of 1787, p. 192 (1956). However, that clause surely provides no greater protection against the States than does the Fifth Amendment clause against the Federal Government; so the decisive question still is whether Congress may enact a residence requirement.
30
See Brief for Appellees in No. 33, pp. 49—51 and n. 70; Brief for Appellees in No. 34, p. 24 n. 11; Supplemental Brief for Appellees on Reargument 27—30.
31
For Congress, see, e.g., Problems of Hungry Children in the District of Columbia, Hearings before the Subcommittee on Public Health, Education, Welfare, and Safety of the Senate Committee on the District of Columbia, 85th Cong., 1st Sess. For Connecticut, see Connecticut General Assembly, 1965 Feb.Spec.Sess., House of Representatives Proceedings, Vol. II, pt. 7, at 3505. For Pennsylvania, see Appendix in No. 34, pp. 96a—98a.
32
There is support for the view that enforcement of residence requirements can significantly reduce welfare costs by denying benefits to those who come solely to collect them. For example, in the course of a long article generally critical of residence requirements, and after a detailed discussion of the available information, Professor Harvith has stated:
'A fair conclusion seems to be that, in at least some states, it is not unreasonable for the legislature to conclude that a useful saving in welfare costs may be obtained by residence tests discouraging those who would enter the state solely because of its welfare programs. In New York, for example, a one per cent saving in welfare costs would amount to several million dollars.' Harvith, The Constitutionality of Residence Tests for General and Categorical Assistance Programs, 54 Calif.L.Rev. 567, 618 (1966). (Footnotes omitted.) See also Helvering v. Davis, 301 U.S. 619, 644, 57 S.Ct. 904, 909, 81 L.Ed. 1307 (1937).
For essentially the same reasons, I would uphold the Connecticut welfare regulations which except from the residence requirement persons who come to Connecticut with a bona fide job offer or with resources sufficient to support them for three months. See 1 Conn. Welfare Manual, c. II, §§ 219.1—219.2 (1966). Such persons are very unlikely to have entered the State primarily in order to receive welfare benefits.
33
For precise prediction to be possible, it would appear that a residence requirement must be combined with a procedure for ascertaining the number of indigent persons who enter the jurisdiction and the proportion of those persons who will remain indigent during the residence period.
34
I do not mean to imply that each of the above purposes necessarily was sought by each of the legislatures that adopted durational residence requirements. In Connecticut, for example, the welfare budget is apparently open-ended, suggesting that this State is not seriously concerned with the need for more accurate budgetary estimates.
35
That law, N.Y.Soc.Welfare Law, McKinney's Consol. Laws, c. 55, § 139—a, requires public welfare officials to conduct a detailed investigation in order to ascertain whether a welfare 'applicant came into the state for the purpose of receiving public assistance or care and accordingly is undeserving of and ineligible for assistance * * *.'
36
The figure may be variously calculated. There was testimony before the District Court in the Pennsylvania case that 46 States had some form of residence requirement for welfare assistance. Appendix in No. 34, pp. 92a—93a. It was stipulated in the Connecticut case that in 1965, 40 States had residence requirements for aid to dependent children. Appendix to Appellant's Brief in No. 9, p. 45a. See also, ante, at 639-640 and n. 22.
37
Cf. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 670, 675—680, 86 S.Ct. 1079, 1083, 1086—1088, 16 L.Ed.2d 169 (Black, J., dissenting).
| 12
|
394 U.S. 576
89 S.Ct. 1354
22 L.Ed.2d 572
Sidney STREET, Appellant,v.State of NEW YORK.
No. 5.
Argued Oct. 21, 1968.
Decided April 21, 1969.
David T. Goldstick, New York City, for appellant.
Harry Brodbar, Brooklyn, N.Y., for appellee.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Appellant Street has been convicted in the New York courts of violating former § 1425, subd. 16, par. d, of the New York Penal Law, McKinney's Consol.Laws, c. 40, which makes it a misdemeanor 'publicly (to) mutilate, deface, defile, or defy, trample upon, or ast contempt upon either by words or act (any flag of the United States).'1 He was given a suspended sentence. We must decide whether, in light of all the circumstances, that conviction denied to him rights of free expression protected by the First Amendment and assured against state infringement by the Fourteenth Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 269, 271, 276—277, 84 S.Ct. 710, 720, 721, 723—724, 11 L.Ed.2d 686 (1964).
2
According to evidence given at trial, the events which led to the conviction were these. Appellant testified that during the afternoon of June 6, 1966, he was listening to the radio in his Brooklyn apartment. He heard a news report that civil rights leader James Meredith had been shot by a sniper in Mississippi. Saying to himself, 'They didn't protect him,' appellant, himself a Negro, took from his drawer a neatly folded, 48-star American flag which he formerly had displayed on national holidays. Appellant left his apartment and carried the still-folded flag to the nearby intersection of St. James Place and Lafayette Avenue. Appellant stood on the northeast corner of the intersection, lit the flag with a match, and dropped the flag on the pavement when it began to burn.
3
Soon thereafter, a police officer halted his patrol car and found the burning flag. The officer testified that he then crossed to the northwest corner of the intersection, where he found appellant 'talking out loud' to a small group of persons. The officer estimated that there were some 30 persons on the corner near the flag and five to 10 on the corner with appellant. The officer testified that as he approached within 10 or 15 feet of appellant, he heard appellant say, 'We don't need no damn flag,' and that when he asked appellant whether he had burned the flag appellant replied: 'Yes; that is my flag; I burned it. If they let that happen to Meredith we don't need an American flag.' Appellant admitted making the latter response, but he denied that he said anything else and asserted that he always had remained on the corner with the flag.
4
Later the same day, appellant was charged, by an information sworn to before a judge of the New York City Criminal Court, with having committed 'the crime of Malicious Mischief in that (he) did wilfully and unlawfully defile, cast contempt upon and burn an American Flag, in violation of 1425—16—D of the Penal Law, under the following circumstances: * * * (he) did wilfully and unlawfully set fire to an American Flag and shout, 'If they did that to Meredith, We don't need an American Flag."
5
Appellant was tried before another Criminal Court judge, sitting without a jury, and was convicted of malicious mischief in violation of § 1425, subd. 16, par. d.2 He was subsequently given a suspended sentence. The Appellate Term, Second Department, affirmed without opinion. Leave was granted to appeal to the New York Court of Appeals, and after plenary consideration that court unanimously affirmed. 20 N.Y.2d 231, 282 N.Y.S.2d 491, 229 N.E.2d 187 (1967). We noted probable jurisdiction. 392 U.S. 923 (1968).3
6
Street argues that his conviction was unconstitutional for three different reasons. First, he claims that § 1425, subd. 16, par. d, is overbroad, both on its face and as applied, because the section makes it a crime 'publicly (to) defy * * * or cast contempt upon (an American flag) by words * * *.' (Emphasis added.) Second, he contends that § 1425, subd. 16, par. d, is vague and imprecise because it does not clearly define the conduct which it forbids. Third, he asserts that New York may not constitutionally punish one who publicly destroys or damages an American flag as a means of protest, because such an act constitutes expression protected by the Fourteenth Amendment. We deem it unnecessary to consider the latter two arguments, for we hold that § 1425, subd. 16, par. d, was unconstitutionally applied in appellant's case because it permitted him to be punished merely for speaking defiant or contemptuous words about the American flag. In taking this course, we resist the pulls to decide the constitutional issues involved in this case on a broader basis than the record before us imperatively requires.
7
Though our conclusion is a narrow one, it requires pursuit of four lines of inquiry: (1) whether the constitutionality of the 'words' part of the statute was passed upon by the New York Court of Appeals; (2) whether, if appellant's conviction may have rested in whole or in part on his utterances and if the statute as thus applied is unconstitutional, these factors in themselves require reversal; (3) whether Street's words may in fact have counted independently in his conviction; and (4) whether the 'words' provision of the statute, as presented by this case, is unconstitutional.
I.
8
The New York Court of Appeals did not mention in its opinion the constitutionality of the 'words' part of § 1425, subd. 16, par. d.4 Hence, in order to vindicate our jurisdiction to deal with this particular issue, we must inquire whether that question was presented to the New York courts in such a manner that it was necessarily decided by the New York Court of Appeals when it affirmed appellant's conviction. If the question was not so presented, then we have no power to consider it. See 28 U.S.C. §§ 1257(2), 1257(3); Bailey v. Anderson, 326 U.S. 203, 206—207, 66 S.Ct. 66, 68, 90 L.Ed. 3 (1945). Moreover, this Court has stated that when, as here, the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary. See, e.g., Bailey v. Anderson, supra; Chicago, I. & L.R. Co. v. McGuire, 196 U.S. 128, 131—133, 25 S.Ct. 200, 201, 49 L.Ed. 413 (1905).
9
In this case, any want of presentation by the appellant must have occurred at the trial level, for there appears to be no doubt that the issue of the constitutionality of the 'words' part of the statute was raised in appellant's briefs in both the Appellate Term and the Court of Appeals, and the State does not suggest the contrary. In the trial court, appellant's counsel raised the constitutional issues by means of the following motion:
10
'Before we plead to this case I would like to make a motion to dismiss the information upon the ground it does not state facts to constitute a crime on the following grounds: The defendant was engaged in a constitutionally protected activity, to wit, freedom of speech. The allegation simply says that the defendant did wilfully and unlawfully set fire to an American flag and did say: 'If they did that to Meredith we don't need an American flag.' Under the first amendment of the Constitution of the United States and under the New York State constitution on freedom of speech they provide for protest in many forms, whether it be by burning a flag, demonstration or picketing. This is a form of demonstration and protest.' The motion was denied. It was renewed at the end of the State's case and at the end of the trial, and on both occasions was again denied.
11
The issue whether a federal question was sufficiently and properly raised in the state courts is itself ultimately a federal question, as to which this Court is not bound by the decision of the state courts.5 However, it is not entirely clear whether in such cases the scope of our review is limited to determining whether the state court has 'by-passed the federal right under forms of local procedure' or whether we should decide the matter 'de novo for ourselves,' Ellis v. Dixon, 349 U.S. 458, 463, 75 S.Ct. 850, 853, 99 L.Ed. 1231 (1955). In either event, we think appellant has met the burden of showing that the issue of the constitutionality of the 'words' part of § 1425, subd. 16, par. d, was adequately raised in the state trial court. The motion quoted above explicitly referred to appellant's words. Appellant's counsel termed appellant's overall activity a 'demonstration' or 'protest,' terms which encompass words as well as conduct. Indeed, if appellant's intention was to protest alleged governmental inaction in connection with the shooting of James Meredith, his words were an essential element, for without them no one would have known the object of his protest.
12
To the extent that the matter is governed by New York law, we have found no New York statutes or decisions which require that an issue be raised in the trial court with greater specificity than occurred h re. In fact, in People v. McLucas, 15 N.Y.2d 167, 172, 256 N.Y.S.2d 799, 204 N.E.2d 846, 848 (1965), the New York Court of Appeals held that when an appellant claims 'deprivation of a fundamental constitutional right' New York appellate courts may review the correctness of a jury charge even though the appellant failed to except to the charge in the trial court. The Court of Appeals reached this result despite the fact that § 420-a of the New York Code of Criminal Procedure then required that an exception be taken 'expressly' if the issue of the correctness of a jury charge was to be preserved for appellate review. In the present case, the right asserted by appellant was surely 'fundamental,' and under New York law a less precise objection was required than to a jury instruction.6
13
Insofar as the question of sufficient presentation is one for our independent decision, the controlling principle was set forth in the leading case of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73 L.Ed. 184 (1928):
14
'There are various ways in which the validity of a state statute may be drawn in question on the ground that it is repugnant to the Constitution of the United States. No particular form of words or phrases is essential, but only that the claim of invalidity and the ground therefor be brought to the attention of the state court with fair precision and in due time. And if the record as a whole shows either expressly or by clear intendment that this was done, the claim is to be regarded as having been adequately presented.' (Footnote omitted.)
15
We think this requirement was satisfied by appellant's previously quoted motion in the trial court and his raising of the issue in the two appellate courts.7 We therefore conclude that the question is properly before us.
II.
16
We next consider whether it is our duty to reverse if we find, as we do in Parts III and IV, infra, that Street's words could have been an independent cause of his conviction and that a conviction for uttering such words would violate the Constitution.
17
That such is our duty is made apparent by a number of decisions of this Court. In the leading case of Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), the appellant was convicted by a jury under a California statute making it an offense publicly to display a red flag for any one of three purposes. Finding that it would be unconstitutional to punish one who displayed for the first-named reason, this Court rejected the state court's reasoning that the appellant's conviction could nevertheless be sustained because the other two statutory reasons were severable and constitutional. This Court said:
18
'The verdict against the appellant was a general one. It did not specify the ground upon which it rested. * * * (I)t is impossible to say under which clause of the statute the conviction was obta ned. If any one of these clauses * * * was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause. * * * It follows that * * * the conviction cannot be upheld.' Id., at 367—368, 51 S.Ct. at 535.
19
The principle established in Stromberg has been consistently followed. In Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942), this Court again held itself compelled to reverse a conviction based upon a general jury verdict when the record failed to prove that the conviction was not founded upon a theory which could not constitutionally support a verdict. The Court stated:
20
'To say that a general verdict of guilty should be upheld though we cannot know that it did not rest on the invalid constitutional ground * * * would be to countenance a procedure which would cause a serious impairment of constitutional rights.' Id., at 292, 63 S.Ct. at 210.
21
The rule was again applied in Cramer v. United States, 325 U.S. 1, 36, n. 45, 65 S.Ct. 918, 935, 89 L.Ed. 1441 (1945); Terminiello v. City of Chicago, 337 U.S. 1, 5—6, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949); and Yates v. United States, 354 U.S. 298, 311, 77 S.Ct. 1064, 1072, 1 L.Ed.2d 1356 (1957).
22
It is true that in the present case the general verdict was rendered by a judge, not a jury. However, if the ground of the judge's decision cannot be ascertained from the record, then the danger of unconstitutional conviction is not significantly less than in the cases just discussed. Cf. Thomas v. Collins, 323 U.S. 516, 528—529, 65 S.Ct. 315, 321—322, 89 L.Ed. 430 (1945). Nor would it be appropriate to remand the case to the trial judge for a post hoc explanation of the grounds of his decision. Cf. Central Greyhound Lines, Inc. of New York v. Mealey, 334 U.S. 653, 655, 68 S.Ct. 1260, 1262, 92 L.Ed. 1633 (1948). Hence, we conclude that the case is governed by the rule of Stromberg, and that appellant's conviction must be set aside if we find that it could have been based solely upon his words and that a conviction resting on such a basis would be unconstitutional—a matter to which we shall turn in a moment.
23
Moreover, even assuming that the record precludes the inference that appellant's conviction might have been based solely on his words, we are still bound to reverse if the conviction could have been based upon both his words and his act. This is made apparent by Thomas v. Collins, supra. The Court in that case noted that Thomas had been cited for contempt because during a meeting he allegedly had violated a court restraining order both by soliciting a single individual to join a union and by soliciting all nonunion men present. The Court found it unnecessary to consider the State's contention that the judgment could be sustained on the basis of the individual solicitation alone. The Court said:
24
'The motion for the fiat in contempt was filed and the fiat itself was issued on account of both invitations. The order adjudging Thomas in contempt was in general terms, finding that he had violated the restraining order, without distinction between the solicitations set forth in the petition and proved as violations. The sentence was a single penalty. In this state of the record it must be taken that the order followed the prayer of the motion and the fiat's recital, and that the penalty was imposed on account of both invitations. The judgment therefore must be affirmed as to both or as to neither. Cf. Williams v. North Carolina, 317 U.S. 287, 292, 63 S.Ct. 207, 210, 87 L.Ed. 279, 143 A.L.R. 1273; Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117, 73 A.L.R. 1484.' 323 U.S., at 528 529, 65 S.Ct., at 322. (Footnotes omitted.)
25
Finding that a conviction based upon the general solicitation could not stand, the Court reversed the entire conviction.8
26
As in Thomas, appellant here was charged with two acts violative of the statute: burning a flag and publicly speaking defiant or contemptuous words about the flag; and evidence was introduced to show the commission of both acts. Here too the verdict was general and the sentence a single penalty. Hence, unless the record negates the possibility that the conviction was based on both alleged violations, Thomas dictates that '(t)he judgment * * * must be affirmed as to both or as to neither.'
27
We take the rationale of Thomas to be that when a single-count indictment or information charges the commission of a crime by virtue of the defendant's having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as 'intertwined' and have rested the conviction on both together. See 323 U.S., at 528—529, 540—541, 65 S.Ct., at 321—322, 327. There is no comparable hazard when the indictment or information is in several counts and the conviction is explicitly declared to rest on findings of guilt on certain of those counts,9 for in such instances there is positive evidence that the trier of fact considered each count on its own merits and separately from the others.
III.
28
We turn to considering whether appellant's words could have been the sole cause of his conviction, or whether the conviction could have been based on both his words and his burning of the flag. As Stromberg teaches, we cannot take the opinion of the New York Court of Appeals as obviating our duty to examine the record for ourselves in order to ascertain whether the conviction may have rested upon such grounds. The sworn information which charged appellant with the crime of malicious mischief, and which is quoted more fully supra, at 579, recited not only that appellant had burned an American flag but also that he '(did) shout, 'If they did that to Meredith, We don't need an American Flag." Section 1425, subd. 16, par. d, the statute which appellant was charged with violating, made it a crime not only publicly to mutilate a flag but also 'publicly (to) defy * * * or cast contempt upon (any American flag) by words.'
29
The State argues that appellant's words were at most used to establish his unlawful intent in burning the flag.10 However, after a careful examination of the comparatively brief trial record, we find ourselves unable to say with certainty that appellant's words were not an independent cause of his conviction. While it is true that at trial greater emphasis was placed upon appellant's action in burning the flag than upon his words, a police officer did testify to the utterance of the words. The State never announced that it was relying exclusively upon the burning. The trial judge never indicated during the trial that he regarded appellant's words as relating solely to intent. The judge found appellant guilty immediately after the end of the trial, and he delivered no oral or written opinion.
30
In the face of an information explicitly setting forth appellant's words as an element of his alleged crime, and of appellant's subsequent conviction under a statute making it an offense to speak words of that sort, we find this record insufficient to eliminate the possibility either that appellant's words were the sole basis of his conviction or that appellant was convicted for both his words and his deed.
IV.
31
We come finally to the question whether, in the circumstances of this case, New York may constitutionally inflict criminal punishment upon one who ventures 'publicly (to) defy * * * or cast contempt upon (any American flag) by words * * *.'
32
The relevant evidence introduced at appellant's trial, considered in the light most favorable to the State, must be taken to establish the following. At the time of his arrest, appellant was standing on a street corner and speaking to a small crowd; on the opposite corner lay the burning flag. Appellant said to the crowd: 'We don't need no damn flag'; and when questioned by a police officer appellant stated: 'If they let that happen to Meredith we don't need an American flag.' According to the officer, the crowds which gathered around appellant and around the flag did not obstruct the street or sidewalk and were neither unruly nor threatening.
33
In these circumstances, we can think of four governmental interests which might conceivably have been furthered by punishing appellant for his words: (1) an interest in deterring appellant from vocally inciting others to commit unlawful acts; (2) an interest in preventing appellant from uttering words so inflammatory that they would provoke others to retaliate physically against him, thereby causing a breach of the peace; (3) an interest in protecting the sensibilities of passers-by who might be shocked by appellant's words about the American flag; and (4) an interest in assuring that appellant, regardless of the impact of his words upon others, showed proper respect for our national emblem.
34
In the circumstances of this case, we do not believe that any of these interests may constitutionally justify appellant's conviction under § 1425, subd. 16, par. d, for speaking as he did. We begin with the interest in preventing incitement. Appellant's words, taken alone, did not urge anyone to do anything unlawful. They amounted only to somewhat excited public advocacy of the idea that the United States should abandon, at least temporarily, one of its national symbols. It is clear that the Fourteenth Amendment prohibits the States from imposing criminal punishment for public advocacy of peaceful change in our institutions. See, e.g., Cox v. Louisiana (I), 379 U.S. 536, 546—552, 85 S.Ct. 453, 459—463, 13 L.Ed.2d 471 (1965); Edwards v. South Carolina, 372 U.S. 229, 237 238, 83 S.Ct. 680, 684, 9 L.Ed.2d 697 (1963); Terminiello v. City of Chicago, 337 U.S. 1, 4—5, 69 S.Ct. 894, 895—896, 93 L.Ed. 1131 (1949); cf. Yates v. United States, 354 U.S. 298, 318—319, 77 S.Ct. 1064, 1076—1077, 1 L.Ed.2d 1356 (1957). Even assuming that appellant's words might be found incitive when considered together with his simultaneous burning of the flag, § 1425, subd. 16, par. d, does not purport to punish only those defiant or contemptuous words which amount to incitement, and there is no evidence that the state courts regarded the statute as so limited. Hence, a conviction for words could not be upheld on this basis. See, e.g., Yates v. United States, supra; Terminiello v. City of Chicago, supra.
35
Nor could such a conviction be justified on the second ground mentioned above: the possible tendency of appellant's words to provoke violent retaliation. Though it is conceivable that some listeners might have been moved to retaliate upon hearing appellant's disrespectful words, we cannot say that appellant's remarks were so inherently inflammatory as to come within that small class of 'fighting words' which are 'likely to provoke the average person to retaliation, and thereby cause a breach of the peace.' Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 770, 86 L.Ed. 1031 (1942). And even if appellant's words might be found within that category, § 1425, subd. 16, par. d, is not narrowly drawn to punish only words of that character, and there is no indication that it was so interpreted by the state courts. Hence, this case is again distinguishable from Chaplinsky, supra, in which the Court emphasized that the statute was 'carefully drawn so as not unduly to impair liberty of expression * * *.' Id., at 574, 62 S.Ct., at 770. See also Terminiello v. City of Chicago, supra.
36
Again, such a conviction could not be sustained on the ground that appellant's words were likely to shock passers-by. Except perhaps for appellant's incidental use of the word 'damn,' upon which no emphasis was placed at trial,11 any shock effect of appellant's speech must be attributed to the content of the ideas expressed. It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers. See, e.g., Cox v. Louisiana (I), supra; Edwards v. South Carolina, supra; Terminiello v. City of Chicago, supra; cf. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). And even if such a conviction might be upheld on the ground of 'shock,' there is again no indication that the state courts regarded the statute as limited to that purpose.
37
Finally, such a conviction could not be supported on the theory that by making the above-quoted remarks about the flag appellant failed to show the respect for our national symbol which may properly be demanded of every citizen. In West Virginia State Board of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), this Court held that to require unwilling school-children to salute the flag would violate rights of free expression assured by the Fourteenth Amendment. In his opinion for the Court, Mr. Justice Jackson wrote words which are especially apposite here:
38
'The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. * * * (F)reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
39
'If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.' Id., at 641—642, 63 S.Ct., at 1186. (Footnote omitted.)
40
We have no doubt that the constitutionally guaranteed 'freedom to be intellectually * * * diverse or even contrary,' and the 'right to differ as to things that touch the heart of the existing order,' encompass the freedom to express publicly one's opinions about our flag, including those opinions which are defiant or contemptuous.
41
Since appellant could not constitutionally be punished under § 1425, subd. 16, par. d, for his speech, and since we have found that he may have been so punished, his conviction cannot be permitted to stand. In so holding, we reiterate that we have no occasion to pass upon the validity of this conviction insofar as it was sustained by the state courts on the basis that Street could be punished for his burning of the flag, even though the burning was an act of protest. Nor do we perceive any basis for our Brother WHITE's fears that our decision today may be taken to require reversal whenever a defendant is convicted for burning a flag in protest, following a trial at which his words have been introduced to prove some element of that offense. Assuming that such a conviction would otherwise pass constitutional muster, a matter about which we express no view, nothing in this opinion would render the conviction impermissible merely because an element of the crime was proved by the defendant's words rather than in some other way. See United States v. O'Brien, 391 U.S. 367, 369—370, 376—377, 88 S.Ct. 1673, 1675, 1678—1679, 20 L.Ed.2d 672 (1968).
42
We add that disrespect for our flag is to be deplored no less in these vexed times than in calmer periods of our history. Cf. Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907). Nevertheless, we are unable to sustain a conviction that may have rested on a form of expression, however distasteful, which the Constitution tolerates and protects.
43
For the reasons previously set forth, we reverse the judgment of the New York Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.
44
It is so ordered.
45
Reversed and remanded.
46
Mr. Chief Justice WARREN, dissenting.
47
I dissent from the reversal of this judgment, not only because the Court in my opinion has strained to bring this trial within Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), but more particularly because it has declined to meet and resolve the basic question presented in the case. That question has been variously stated by the New York Court of Appeals and the parties. The court below employed the following statement of the question:
48
'We are called upon to decide whether the deliberate act of burning an American flag in public as a 'protest' may be punished as a crime.'1
49
Appellant tells us that the issue presented is:
50
'May New York State constitutionally impose penal sanctions upon an individual charged with destroying or damaging an American flag in an attempt to dramatize his concern with social conditions existing in the country?'2
51
New York's statement of the issue is identical:
52
'May the State of New York constitutionally impose penal sanctions upon one who is charged with publicly and deliberately desecrating an American flag as a means of dramatizing his dissatisfaction with social conditions existing within our Country?'3
53
Any distinctions between the above questions are without a significant difference. The parties obviously believe that the constitutionality of flag-desecration statutes is before the Court. The question posed by the Court of Appeals is the most succinct. Chief Judge Fuld, writing for a unanimous Court of Appeals, answered the question squarely; we should do likewise if we are to meet our responsibility. But the Court specifically refuses to decide this issue. Instead, it searches microscopically for the opportunity to decide the case on the peripheral Stromberg ground, holding that it is impossible to determine the basis for appellant's conviction. In my opinion a reading of he short trial record leaves no doubt that appellant was convicted solely for burning the American flag.
I.
54
From the beginning to the end of the proceedings below the parties placed only two matters in issue: (1) is burning the flag protected symbolic speech and (2) did appellant burn the flag for the purpose of casting contempt upon it or did he burn it in a dignified manner?4 The information alleged that 'Sidney Street did commit the crime of Malicious Mischief in that the defendant did wilfully and unlawfully defile, cast contempt upon and burn an American Flag, in violation of 1425—16—D of the Penal Law, under the following circumstances: On the aforesaid date, place and time, the defendant did wilfully and unlawfully set fire to an American Flag and shout, 'If they did that to Meredith, We don't need an American Flag." Although the Court stresses the mention of appellant's words in the information as indicative that he was convicted for uttering these words, the trial proceedings demonstrate that the words were employed only to show appellant's purpose in burning the flag.
55
At the outset of the trial appellant's counsel moved to dismiss the information, clearly revealing the theory of appellant's defense that flag burning is constitutionally protected and that appellant burned the flag in a dignified manner.
56
'Mr. Goldstick (appellant's counsel): Before we plead to this case I would like to make a motion to dismiss the information upon the ground it does not state facts to constitute a crime on the following grounds: The defendant was engaged in a constitutionally protected activity, to wit, freedom of speech. The allegation simply says that the defendant did wilfully and unlawfully set fire to an American flag and did say: 'If they did that to Meredith we don't need an American flag.' Under the first amendment of the constitution of the United States and under the New York State constitution on freedom of speech they provide for protest in many forms, whether it be by burning a flag, demonstration or picketing. This is a form of demonstration and protest.
57
'Court: You say burning the flag is a form of demonstration?
58
'Mr. Goldstick: Yes.
59
'Court: Motion denied.
60
'Mr. Goldstick: Also, there is a Federal statute which provides for burning the flag. I refer Your Honor
61
'Court, interposing: So does Section 1425 provide for the lawful disposition of a flag!
62
'Mr. Goldstick, continuing: I refer Your Honor to page 6 of my brief, referring to the United States Code that a flag, when it is in such a condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.
63
'Now, under the supremacy clause, if there is any conflict with any statute the Federal statute takes precedence; if a State law is in conflict with a Federal law the Federal law takes precedence. The Federal law provides you may burn an American flag; therefore, New York State is without power to make a complaint and convict a man for the burning of an American flag.
64
'Court: Motions denied. The question here would be whether he burned it because it was in such poor condition that it should be burned, or if it was an illegal demonstration.' (Emphasis added.)
65
Defense counsel insisted that burning the flag, an act he equated with a demonstration or picketing, was a form of speech for which his client could not be constitutionally punished. His colloquy with the trial judge does not give even the slightest suggestion that appellant was being prosecuted for words he might have spoken. The defense counsel believed that appellant's act, not his words, was at issue is further demonstrated by counsel's pre-emption argument. The federal statute to which counsel referred, 56 Stat. 377, c. 435, 36 U.S.C. § 173 et seq., concerns the manner in which the flag is to be displayed and in § 4(j), 56 Stat. 380, 36 U.S.C. § 176(j), mandates that the flag, when no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning. At the time of appellant's trial the federal prohibition of flag desecration, which in all material particulars was identical to New York's, applied only to the District of Columbia and could therefore not have pre-empted state legislation on the same subject.5
66
The trial testimony confirms my belief that appellant's act was the sole basis for the verdict as it contains nothing to suggest that either the parties or the trial judge believed that appellant was on trial for his words. The arresting officer testified that, as he was investigating the source of a fire, he heard appellant say, 'We don't need no damn flag.' The officer then asked appellant whether he was responsible for the burning of the flag; appellant replied that he was and that: 'If they let that happen to Meredith we don't need an American flag.' The officer's testimony concluded with a description of the number of people in the vicinity and the extinguishing of the fire. During cross-examination of the officer, defense counsel asked not one question concerning what, if anything, appellant said.
67
Appellant did not dispute the prosecution's version of the facts. He testified that, hearing the news report of Meredith's shooting, he removed a flag from his dresser drawer, walked to the corner of St. James Place and Lafayette Avenue and burned the flag. According to appellant, he made no remarks to the crowd that had gathered and his reference to Meredith was made to the police officer. Cross-examination by the prosecution explored appellant's motivation for burning the flag; no mention was made of words appellant might have spoken.
68
We are told by the Court that at least in part appellant's conviction rests on his words. If it does, the trial record is strangely silent, for the State made no attempt to prove that appellant's words were heard by the crowd. Appellant insisted that he spoke only to the officer, yet the New York statute requires that the accused's flag desecration be public. The State argues, without contradiction by appellant, that words spoken to a policeman would not be spoken publicly for purposes of the statute.6 I think it evident that appellant's words were mentioned in the indictment and introduced at trial only to show that he burned the flag with an intent to desecrate it, a necessary element of the State's case. In the absence of such evidence, the State would have proved that appellant burned a flag but would have left open the possibility that the burning was designed to destroy it in a dignified manner. The fact that appellant's words supplied an element of the State's case does not mean that he was convicted for uttering these words. See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 688, 93 L.Ed. 834 (1949).
69
Neither the prosecution nor the defense nor the New York courts attached any independent significance to his words. To interpret this record in any other manner ignores the very basic fact that the trial judge and the parties thought that there was one issue in this trial—whether appellant could be criminally punished for burning the flag. This record is not sufficiently ambiguous to justify the Court's speculation that the verdict below might rest even in part upon a conviction for appell nt's words.
II.
70
I do not believe that the Stromberg line of cases allows us to avoid deciding whether flag burning is protected by the First Amendment. This case does not fit the Stromberg mold.
71
Miss Stromberg was one of the supervisors of a children's summer camp. She directed a daily ceremony during which the children raised the Soviet flag and recited a pledge of allegiance 'to the worker's red flag.' A California statute made it a criminal offense for any person to display a red flag (1) as a symbol of opposition to organized government or (2) as an invitation to anarchistic action or (3) as an aid to propaganda of a seditious character. The trial judge, following the express terms of the statute, charged that Miss Stromberg could be convicted if she displayed a red flag for any one of the three prohibited purposes. The Court first determined that a criminal conviction for display of a red flag as a symbol of opposition to organized government would impinge upon First Amendment freedoms. Since the jury charge was disjunctive, i.e., Miss Stromberg could be convicted if the jury found that she conducted the ceremony for any of the three statutorily prohibited goals, it was possible that her conviction rested totally upon an act entitled to constitutional protection. Presumably gives the jury's general verdict, it could have convicted Miss Stromberg for raising a red flag solely as a symbol of opposition to organized government but not as either an invitation to anarchistic action or an aid to propaganda of a seditious character.
72
The teaching of Stromberg is that, if there is any possibility the general verdict below rests on speech or conduct entitled to constitutional protection, then the conviction must be reversed. The Strombery analysis cannot be applied to appellant's conviction as the factual patterns in the two cases are distinct. The record leaves no doubt that appellant did burn the flag. Nor can appellant argue that his act was not an act of desecration. The trial judge emphatically stated that the issue was whether appellant burned the flag to destroy it in a dignified manner or to cast contempt upon it. Appellant's conviction therefore must be based upon a finding that he desecrated the flag by burning and neither he nor the Court suggests otherwise. We are not confronted with a jury trial and the consequent inability to determine the basis for the verdict below. The trial judge at the very outset of the trial made known his view that appellant's motivation for burning the flag was the probative issue. Combining this act of burning with a verbalization of the reasons for it does not allow the Court to avoid determining the constitutionality of appellant's conduct. Since there can be no claim that appellant was convicted for his speech, Stromberg simply does not apply.
73
My analysis is confirmed by an examination of the other cases upon which the Court relies. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942), presents a factual pattern identical to Stromberg. Williams, a resident of North Carolina, obtained a Nevada divorce and then remarried in Nevada. Upon his return to North Carolina, Williams was convicted of bigamous cohabitation. The jury was charged that it could convict Williams if it found either that he procured the divorce based upon substituted service or that he went to Nevada not to establish a bona fide residence but rather to obtain a divorce through a fraud upon the Nevada courts. Holding that the Full Faith and Credit Clause required North Carolina to respect Williams' Nevada divorce even though acquired by substituted service, the Court reversed Williams' conviction since it was possible that the jury found the divorce was not procured by fraud yet convicted Williams. Under this state of facts, the conviction could have been based upon the acquisition of a divorce North Carolina was constitutionally compelled to honor.
74
Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 3 L.Ed. 1131 (1949), reflects the same approach. Terminiello was charged with disorderly conduct. The jury was allowed to convict if it found that Terminiello's speech either stirred the public to anger or constituted 'fighting words.' Since only the latter may be constitutionally prohibited, the Court reversed. It was possible that the jury found that Terminiello's speech merely stirred the public to anger yet convicted him. Terminiello could have been convicted for constitutionally protected conduct; he was therefore entitled to a reversal. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), also conforms to this pattern. Charged with a violation of the Smith Act, Yates was convicted under instructions which made either 'advocacy' or 'organizing' a statutory violation. The Court decided that the jury instruction with regard to the organizing charge was erroneous; since the jury could have convicted Yates for organizing even if it found that he was not guilty of advocacy, the conviction was reversed.
75
The Court does not, however, base its reversal only upon a misapplication of Stromberg. Relying also on Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945), the Court holds that even if 'the record precludes the inference that appellant's conviction might have been based solely on his words, we are still bound to reverse if the conviction could have been based upon both his words and his act.' Ante, at 587. My reading of Thomas v. Collins indicates, however, that Thomas does not serve as justification for the Court's disposition of this case.7 In Thomas a union organizer was held in contempt, fined, and imprisoned for disobeying a state court order enjoining him from violating a Texas statute. The statute required that labor organizers register with and procure an organizer's card from a designated Texas official before soliciting memberships in labor unions. Without either registering or procuring a card, the organizer made a speech before a group of workers. He extolled the virtues of union membership in general terms and also asked a specific individual to become a union member. As I read the case, Thomas, holds that both the general solicitation and the solicitation of a named individual were within the protection of the First Amendment:
76
'The occasion was clearly protected. The speech was an essential part of the occasion, unless all meaning and purpose were to be taken from it. And the invitations, both general and particular, were parts of the speech, inseparable incidents of the occasion and of all that was said or done. * * * How one might 'laud unionism,' as the State and the State Supreme Court concede Thomas was free to do, yet in these circumstances not imply an invitation, is hard to conceive. This is the nub of the case, which the State fails to meet because it cannot do so.' Id., at 534—535, 65 S.Ct., at 324.
77
Having so held, it was unnecessary for the Court to determine if an individual solicitation could have been enjoined. The union organizer therefore was entitled to relief without regard to whether his conviction was based upon the general or the individual solicitation.
78
I reiterate my belief that appellant was convicted for his act not his words. Stromberg and the cases based upon it do not allow us the luxury of refusing to treat appellant's claim that the burning of the flag as a protest is worthy of constitutional protection.
III.
79
I am in complete agreement with the general rule that this Court should not treat broad constitutional questions when narrow ones will suffice to dispose of the litigation. However, w ere only the broad question is presented, it is our task and our responsibility to confront that question squarely and resolve it. In a time when the American flag has increasingly become an integral part of public protests, the constitutionality of the flag-desecration statutes enacted by all of the States8 and Congress9 is a matter of the most widespread concern. Both those who seek constitutional shelter for acts of flag desecration perpetrated in the course of a political protest and those who must enforce the law are entitled to know the scope of constitutional protection. The Court's explicit reservation of the constitutionality of flag-burning prohibitions encourages others to test in the streets the power of our States and National Government to impose criminal sanctions upon those who would desecrate the flag.
80
I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace. But because the Court has not met the issue, it would serve no purpose to delineate my reasons for this view. However, it is difficult for me to imagine that, had the Court faced this issue, it would have concluded otherwise. Since I am satisfied that the constitutionality of appellant's conduct should be resolved in this case and am convinced that this conduct can be criminally punished, I dissent.
81
APPENDIX TO OPINION OF WARREN, C.J., DISSENTING.
82
'Mr. Goldstick (appellant's counsel): Before we plead to this case I would like to make a motion to dismiss the information upon the ground it does not state facts to constitute a crime on the following grounds: The defendant was engaged in a constitutionally protected activity, to wit, freedom of speech. The allegation simply says that the defendant did wilfully and unlawfully set fire to an American flag and did say: 'If they did that to Meredith we don't need an American flag.' Under the first amendment of the Constitution of the United States and under the New York State constitution on freedom of speech they provide for protest in many forms, whether it be by burning a flag, demonstration or picketing. This is a form of demonstration and protest.
83
'Court: You say burning the flag is a form of demonstration?
84
'Mr. Goldstick: Yes.
85
'Court: Motion denied.
86
'Mr. Goldstick: Also, there is a Federal statute which provides for burning the flag. I refer Your Honor—
87
'Court, interposing: So does Section 1425 provide for the lawful disposition of a flag!
88
'Mr. Goldstick, continuing: I refer Your Honor to page 6 of my brief, referring to the United States Code that a flag, when it is in such a condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.
89
'Now, under the supremacy clause, if there is any conflict with any statute the Federal statute takes precedence; if a State law is in conflict with a Federal law the Federal law takes precedence. The Federal law provides you may burn an American flag; therefore, New York State is without power to make a complaint and convict a man for the burning of an American flag.
90
'Court: Motions denied. The question here would be whether he burned it because it was in such poor condition that it should be burned, or if it was an illegal demonstration.
91
'Mr. Goldstick: Under the supremacy—
92
'Court, interposing: Next motion!
93
'No more argument, please!
94
'Mr. Goldstick: I plead the defendant not guilty and take exception to Your Honor's rulings.
95
'Court: Proceed! You may sit down, counselor! Now, we have two cases! One is Disorderly Conduct and one is Malicious Mischief.
96
'Mr. Goldstick: I see nothing in the information regarding a charge of Disorderly Conduct.
97
'Court: We have two ch rges before me!
98
'Show the complaints to counsel!
99
'Mr. Bonomo (the prosecutor): We have two separate complaints! (Handing papers to Mr. Goldstick.)
100
'Mr. Goldstick: I plead not guilty to the Disorderly Conduct charge, too, Your Honor.
101
'Court: Are you ready for trial in each case?
102
'Mr. Goldstick: Yes.
103
'Court: Do you stipulate that the two cases will be tried together and the facts adduced in one will be applied to the other wherever necessary, and there will be separate findings on the facts and the law and separate judgments may be rendered?
104
'Mr. Goldstick: I so stipulate.
105
'Court: Let us proceed!
106
'Mr. Bonomo: I will call Patrolman James Copeland!'
107
(Officer Copeland testified on direct examination concerning the investigation of the source of a fire and his subsequent discovery that appellant had burned a flag.)
108
'Mr. Bonomo: That's all!
109
'Mr. Goldstick: Before I cross-examine I move to dismiss both charges upon the ground the People failed to make out a prima facie case.
110
'Court: Are you going to cross-examine?
111
'Mr. Goldstick: Yes, but I am making a motion before cross-examination!
112
'Court: You better cross-examine!'
113
(The cross-examination of Officer Copeland explored the size of the crowd that had gathered; no mention was made of appellant's words.)
114
'Mr. Goldstick: No further questions.
115
'Mr. Bonomo: People's case, in each case!
116
'Mr. Goldstick: I renew my motions to dismiss upon the ground the People failed to prove a prima facie case.
117
'Court: Motion denied as to each case.
118
'Mr. Goldstick: Exception. The defendant will take the stand!'
119
(Appellant then gave his version of the incident. Reproduced below is his testimony concerning the words spoken.)
120
'Q. Did the officer speak to you or did you speak to him? A. He spoke to me.
121
'Q. What did he say? A. He asked me if I set fire to the flag. I said yes.
122
'Q. Then what happened? A. I said: 'If they do what they had (sic) to Meredith we don't need this flag.'
123
'Q. While you were burning this flag did anybody say anything to you other than this police officer? A. Nobody.
124
'Q. Did anybody stop? A. I noticed no unusual crowd.
125
'Q. Where is that corner? A. St. James and Lafayette.
126
'Q. Were you on the curb or in the street? A. I was on the curb. The flag was laying on the curb.
127
'Q. When the police officer came up to you were you still by the flag? A. Yes.
128
'Q. The flag was still burning when the officer came? A. Yes.
129
'Q. Other than saying to the police officer 'if they did that to Meredith we don't need an American flag,' did you speak to anybody else at the time? A. No.
130
'Mr. Goldstick: No further questions!'
131
(Cross-examination of appellant contains no reference to any of his words.) 'Mr. Bonomo: That's all!
132
'Mr. Goldstick: The defendant rests.
133
'Mr. Bonomo: The People rest.
134
'Mr. Goldstick: I move to dismiss on all the constitutional grounds previously made on all the grounds provided for in the Code of Criminal Procedure, and also upon the ground the People failed to prove a case beyond a reasonable doubt.
135
'Court: On the charge of Disorderly Conduct the defendant is acquitted; on the charge of Malicious Mischief the defendant is convicted.
136
'Mr. Goldstick: May we have next Tuesday for sentence?
137
'Court: No, that is not enough time! August 9th for sentence; bail continued.'
138
Mr. Justice BLACK, dissenting.
139
I agree with the excellent opinion written by Chief Judge Fuld for a unanimous Court of Appeals, upholding the New York statute which this Court now holds unconstitutional as applied. The entire state court construed the statute as applied to this appellant as making it an offense publicly to burn an American flag in order to protest something that had occurred. In other words the offense which that court sustained was the burning of the flag and not the making of any statements about it. The Court seems to console itself for holding this New York flag-burning law unconstitutional as applied by saying that, as it reads the record, the conviction could have been based on the words spoken by the appellant as he was burning the flag. Those words indicated a desire on appellant's part to degrade and defame the flag. If I could agree with the Court's interpretation of the record as to the possibility of the conviction's resting on these spoken words, I would firmly and automatically agree that the law is unconstitutional. I would not feel constrained, as the Court seems to be, to search my imagination to see if I could think of interests the State may have in suppressing this freedom of speech. I would not balance away the First Amendment mandate that speech not be abridged in any fashion whatsoever. But I accept the unanimous opinion of the New York Court of Appeals that the conviction does not and could not have rested merely on the spoken words but that it rested entirely on the fact that the defendant had publicly burned the American flag—against the law of the State of New York.
140
It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense. It is immaterial to me that words are spoken in connection with the burning. It is the burning of the flag that the State has set its face against. 'It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.' Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 688, 93 L.Ed. 834 (1949). In my view this quotation from the Giboney case precisely applies here. The talking that was done took place 'as an integral part of conduct in violation of a valid criminal statute' against burning the American flag in public. I would therefore affirm this conviction.
141
Mr. Justice WHITE, dissenting.
142
The Court has spun an intricate, technical web but I fear it has ensnared itself in its own remorseless logic and arrived at a result having no support in the facts of the case or the governing law.
143
The Court's schema is this: the statute forbids insults to the flag either by act or words; the charge alleged both flag burning and speech; the court rendered a general judgment; since the conviction might logically have been for speech alone or for both words and deeds and since in either event the conviction is invalid, the judgment of the New York courts must be set aside without passing upon the validity of a conviction for burning the flag.1 I reach precisely the opposite conclusion; before Street's conviction can be either reversed or affirmed, the Court must reach and decide the validity of a conviction for flag burning.
144
I reject first the Court's suggestion that we must assume from the trial court's judgment—which was that 'on the charge of Malicious Mischief the defendant is convicted'—that Street might have been convicted for speech alone. True, the complaint referred to both burning and speaking and the statute permits conviction for either insulting words or physical desecration. But surely the Court has its tongue in its check when it infers from this record the possibility that Street was not convicted for burning the flag but only for the words he uttered. It is a distortion of the record to read it in this manner, as THE CHIEF JUSTICE convincingly demonstrates. But even if it were fair to infer that he was convicted for speaking as well as burning, it is sheer fancy to conclude that the trial court convicted him for speech alone and acquitted him of flag burning. The appellant does not seriously argue such a claim; his major point is that he was convicted for burning as a protest and that such a conviction c nnot stand. The Court of Appeals of New York characterized the issue before it as whether the defendant could be validly convicted for burning the flag as a protest. Moreover, without clear indication from the state courts, I would not assume that the particular words which Street spoke in this case would be deemed within the coverage of the statute. In any event, if Street was convicted for speaking, he most certainly was also convicted for flag burning. Hence, Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), and like cases to which I adhere, have no application by their own terms.
145
I reject also the proposition that if Street was convicted for both burning and talking, his conviction must be reversed if the speech conviction is unconstitutional. The Court initially cites Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945), for the rule that where two acts violative of a statute are charged, a verdict of guilty on both acts and a single sentence must be reversed if conviction for either act is invalid. This has never been the prevailing rule in this country or in this Court, either before or after Thomas v. Collins. The Court in that case cited no authority for the proposition other than Stromberg and Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942), neither of which announced that rule. I am not convinced that the rule stated by the Thomas court was necessary for reversal, but whether dictum or not the rule on which the Court relies today is at odds with many cases in this Court.
146
Claassen v. United States, 142 U.S. 140, 146—147, 12 S.Ct. 169, 170, 35 L.Ed. 966 (1891), speaks for the law at that time:
147
'And it is settled law in this court, and in this country generally, that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only. Locke v. U.S., 7 Cranch, 339, 344 (3 L.Ed. 364); Clifton v. U.S., 4 How.
148
242, 250 (11 L.Ed. 957); Snyder v. U.S., 112 U.S. 216, 5 Sup.Ct.Rep. 118 (28 L.Ed. 697); Bond v. Dustin, 112 U.S. 604, 609, 5 Sup.Ct.Rep. 296 (28 L.Ed. 835) 1 Bish.Crim.Proc. § 1015; Whart.Crim.Pl. & Pr. § 771.'
149
Many years later, in Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959), the Court was equally clear. There the defendant was indicted in five counts for contempt in refusing to answer questions put by a congressional committee. The case was tried to a court without a jury and upon conviction under all counts a general sentence of six months' imprisonment and a fine of $200 was imposed. Because the conviction on at least some of the counts was warranted, the judgment was affirmed. Relying on Claassen among other cases, the Court said:
150
'Since this sentence was less than the maximum punishment authorized by the statute for conviction under any one Count, the judgment below must be upheld if the conviction upon any of the Counts is sustainable.' 360 U.S., at 115, 79 S.Ct., at 1087. (Footnote omitted.)
151
There are a host of other cases to the same effect.2
152
Even accepting the notion that where there is a conviction on each of several counts and a general sentence is imposed, affirmance requires upholding the conviction on each and every count, the rule would have no application to the facts of this case. Such a rule would be based on the notion that the trial judge might have given a lesser sentence if he had known that some of the counts were infirm. Reversal of the judgment on less than all the counts would call only for resentencing, not for reversal of the convictions on the other counts.
153
Viewed in this light, the judgment of the New York courts, insofar as it convicted Street for flag burning, cannot be reversed simply because Street was also convicted for speaking and a general sentence was given. Neither can the case be remanded for resentencing since no sentence was imposed. Sentence was suspended under the then applicable New York law and the time for imposing a sentence had expired even before the judgment was reviewed in the New York Court of Appeals.
154
Recognizing the aberrance of Thomas, the Court now gives that case a new and more confusing gloss. The general finding of guilt for both speaking at a meeting and for an individual solicitation was reversed, we are told, because the speech and solicitation were intertwined, making it uncertain that there was or would have been a judgment of guilty on the solicitation alone. Aside from the fact that Thomas itself said the penalty was imposed for both violations, the rationale which the Court extracts from the facts and judgment in that case hardly qualifies as a constitutional standard to be applied willy-nilly in all cases where there is a general verdict on a count charging dual violations. The Court is capable of more discriminating judgment than to insist on its newly fashioned doctrine in a case like Street's where it is so clear that there was at least a conviction for a public burning of the American flag.
155
The Court is obviously wrong in reversing the judgment below because it believes that Street was unconstitutionally convicted for speaking. Reversal can follow only if the Court reaches the conviction for flag burning and finds that conviction, as well as the assumed conviction for speech, to be violative of the First Amendment.3 For myself, without the benefit of the majority's thinking if it were to find flag burning protected by the First Amendment, I would sustain such a conviction. I must dissent.
156
Mr. Justice FORTAS, dissenting.
157
I agree with the dissenting opinion filed by THE CHIEF JUSTICE, but I believe that it is necessary briefly to set forth the reasons why the States and the Federal Government have the power to protect the flag from acts of desecration committed in public.
158
If the national flag were nothing more than a chattel, subject only to the rules governing the use of private personalty, its use would nevertheless be subject to certain types of state regulation. For example, regulations concerning the use of chattels which are reasonably designed to avoid danger to life or property, or impingement upon the rights of others to the quiet use of their property and of public facilities, would unquestionably be a valid exercise of police power. They would not necessarily be defeated by a claim that they conflicted with the rights of the owner of the regulated property. See, e.g., Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954).
159
If a statute provided that it is a misdemeanor to burn one's shirt or trousers or shoes on the public thoroughfare, it could hardly be asserted that the citizen's constitutional right is violated. If the arsonist asserted that he was burning his shirt or trousers or shoes as a protest against the Government's fiscal policies, for example, it is hardly possible that his claim to First Amendment shelter would prevail against the State's claim of a right to avert danger to the public and to avoid obstruction to traffic as a result of the fire. This is because action, even if clearly for serious protest purposes, is not entitled to the pervasive protection that is given to speech alone. See Cantwell v. Connecticut, 310 U.S. 296, 303—304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). It may be subjected to reasonable regulation that appropriately takes into account the competing interests involved.
160
The test that is applicable in every case where conduct is restricted or prohibited is whether the regulation or prohibition is reasonable, due account being taken of the paramountcy of First Amendment values. If, as I submit, it is permissible to prohibit the burning of personal property on the public sidewalk, there is no basis for applying a different rule to flag burning. And the fact that the law is violated for purposes of protest does not immunize the violator. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); see Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949).
161
Beyond this, however, the flag is a special kind of personalty. Its use is traditionally and universally subject to special rules and regulation. As early as 1907, this Court affirmed the constitutionality of a state statute making it a crime to use a representation of the United States flag for purposes of advertising. Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907). Statutes prescribe how the flag may be displayed; how it may lawfully be disposed of; when, how, and for what purposes it may and may not be used. See, .e.g., 4 U.S.C. § 3; 56 Stat. 377, c. 435, 36 U.S.C. §§ 172—177. A person may 'own' a flag, but ownership is subject to special burdens and responsibilities. A flag may be property, in a sense; but it is property burdened with peculiar obligations and restrictions. Certainly, as Halter v. Nebraska, supra, held, these special conditions are not per se arbitrary or beyond governmental power under our Constitution.
162
One may not justify burning a house, even if it is his own, on the bround, however sincere, that he does so so a protest. One may not justify breaking the windows of a government building on that basis. Protest does not exonerate lawlessness. And the prohibition against flag burning on the public thoroughfare being valid, the misdemeanor is not excused merely because it is an act of flamboyant protest.
1
N.Y.Penal Law § 1425, subd. 16, par. d (1909). In 1967 § 1425, subd. 16, was superseded by § 136 of the General Business Law, McKinney's Consol. Laws, c. 20, which in par. d defines the offense in identical language. See N.Y.Laws, 1965, c. 1031, § 52.
2
Appellant was simultaneously tried for disorderly conduct in connection with the same events. He was acquitted of that offense.
3
At one stage of the proceedings in this Court, the State moved for dismissal on the ground that we lacked jurisdiction over this appeal because the case was moot. The State pointed out that appellant received a suspended sentence, and that the one-year period within which the suspended sentence might have been replaced with a prison sentence under New York law had expired. It further asserted that there were no significant collateral consequences under
either New York or federal law. In response, appellant stated that his employer, the New York Transit Authority, had instituted disciplinary proceedings against him as a result of his conviction. Appellant was charged with 'misconduct,' and according to Transit Authority rules he may be punished by a fine of up to $100 or suspension without pay for up to two months if the still-pending charges are finally sustained. Appellant also noted that §§ 393—c, 482, and 510 of the New York Code of Criminal Procedure provide respectively that his conviction may be used to rebut any character evidence adduced by him in future criminal proceedings: that a record of his conviction must be made available to the judge prior to imposition of any future criminal sentence; and that if convicted of a felony he may now be sentenced as a 'habitual criminal.'
Only last Term, this Court held in Ginsberg v. New York, 390 U.S. 629, 633, n. 2, 88 S.Ct. 1274, 1277, 20 L.Ed.2d 195 (1968), that the case of a New York appellant was not moot even though the time for revocation of his suspended sentence had expired, because it was possible that his license to operate a luncheonette might be withdrawn in consequence of his conviction. Here there is an actual rather than merely a potential threat that appellant will be deprived of his employment, albeit only temporarily. This Court also held last Term, in Sibron v. New York, 392 U.S. 40, 50—58, 88 S.Ct. 1889, 1896—1900, 20 L.Ed.2d 917 (1968), that the case of a New York appellant who had fully served his misdemeanor sentence was not moot because he apparently could not have brought his case to this Court before completion of his sentence and because the conviction could be used for impeachment and sentencing purposes in future criminal proceedings. Appellant Street similarly was unable, despite diligent prosecution of his appeals, to bring his case here within a year of his sentencing. He is subject to all of the collateral penalties to which Sibron was liable. Hence, both Ginsberg and Sibron dictate that this case is not moot.
4
Also, we are unable to read the opinion of the Court of Appeals as reading the 'words' clause out of the statute and authoritatively construing it to reach only the act of flag burning, whether as a protest or otherwise.
5
See, e.g., Parker v. Illinois, 333 U.S. 571, 574, 68 S.Ct. 708, 709, 92 L.Ed. 886 (1948); Carter v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 689, 44 L.Ed. 839 (1900); R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States, § 63, at 112 & n. 1 (R. Wolfson & P. kurland ed. 1951), and other cases there cited.
6
At the time of appellant's trial, § 420—a of the New York Code of Criminal Procedure provided that with respect to trial rulings other than jury instructions:
'An exception shall be deemed to have been taken by the party adversely affected to every ruling either before or after the cause is finally submitted, when such party, at the time when such ruling is sought or made, makes known to the court or judge his position thereon by objection or otherwise.'
7
We find unpersuasive the State's argument that appellant's omission to raise the question of the constitutionality of the 'words' provision is shown by his failure at any stage to invoke the exclusionary rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), with respect to the admission of his words into evidence. For the State concedes that appellant's words were probative at least with respect to his unlawful intent in burning the flag, see Brief for Appellee 45—46, and appellant therefore would have had reason to invoke Miranda even had he believed the 'words' part of the statute to be irrelevant.
8
There can be no doubt that the Court's disposition in Thomas, including its decision to reverse the conviction and not simply to remand for resentencing, was arefully considered. The case was originally argued during the 1943 Term but was ordered to be restored to the docket and reargued the following Term, with the parties directed to brief, inter alia, the question whether the general solicitation was a basis of Thomas' conviction.
9
See, e.g., Claassen v. United States, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966 (1891); Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959).
10
The State also contends that appellant's words could not have been a ground of conviction because they obviously were not spoken 'publicly,' as required by § 1425, subd. 16, par. d. However, although appellant testified that he spoke solely to a police officer, the officer himself gave evidence from which the trial judge might have concluded that appellant's remarks were made either to or within hearing of a small crowd. See supra, at 578—579. Moreover, the sworn information recited that appellant 'shout(ed)' his words on a city street, thereby apparently satisfying the statutory requirement that the words be said 'publicly.'
Nor do we think it impossible for the trial judge to have found that by his statements, 'We don't need no damn flag' and 'If they let that happen to Meredith we don't need an American flag,' appellant 'def(ied) * * * or cast contempt upon (an American flag) by words' in violation of § 1425, subd. 16, par. d.
11
The State admits that there was only a 'single and casual reference to this statement at the trial * * *.' Brief for Appellee 45.
1
People v. Street, 20 N.Y.2d 231, 234, 282 N.Y.S.2d 491, 493, 229 N.E.2d 187, 189 (1967).
2
Brief for Appellant 2. Appellant also suggests that the New York statute is unconstitutionally vague. The Court does not deal with this issue, nor do I.
3
Brief for Appellee 5.
4
The Appendix to this opinion reproduces in full those portions of the trial record which have any conceivable bearing upon the basis for the verdict.
5
See 4 U.S.C. § 3. Federal legislation enacting flag-desecration prohibitions on a national scale was not passed until July 5, 1968, two years after appellant's trial. This legislation specifically does not preempt state flag-burning statutes. See 82 Stat. 291, 18 U.S.C. § 700(c) (1964 ed., Supp. IV).
6
It appears that the New York courts would so construe their legislation. See People v. La Sister, 9 Misc.2d 518, 170 N.Y.S.2d 702 (Ct.Spec.Sess.1958); cf. State v. Peacock, 138 Me. 339, 25 A.2d 491 (1942).
7
I need not consider to what extent the Thomas Court's implicit assumption that Thomas could test the constitutionality of the restraining order without first attempting to secure judicial relief is inconsistent with Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); see id., at 336, 87 S.Ct. at 1840 (Douglas, J., dissenting).
8
Desecration of the Flag, Hearings on H.R. 271 before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 1st Sess., ser. 4, 324—346 (1967).
9
82 Stat. 291, 18 U.S.C. § 700 (1964 ed., Supp. IV).
1
The Court's theory is not that of unconstitutional overbreadth; it does not argue that New York may not convict for burning because the entire statute is unconstitutional for permitting convictions for insulting speech as well as for the act of flag burning.
2
E.g., Pinkerton v. United States, 328 U.S. 640, 641—642, n. 1, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489 (1946); Whitfield v. Ohio, 297 U.S. 431, 438, 56 S.Ct. 532, 534, 80 L.Ed. 778 (1936); Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692 (1929); Abrams v. United States, 250 U.S. 616, 619, 40 S.Ct. 17, 18, 63 L.Ed. 1173 (1919); Ballew v. United States, 160 U.S. 187, 197—203, 16 S.Ct. 263, 267—269, 40 L.Ed. 388 (1895); Goode v. United States, 159 U.S. 663, 669, 16 S.Ct. 136, 137, 40 L.Ed. 297 (1895); Evans v. United States, 153 U.S. 584, 595, 14 S.Ct. 934, 939, 38 L.Ed. 830 (1894); Evans v. United States, 153 U.S. 608, 14 S.Ct. 939, 38 L.Ed. 839 (1894). This Court h § recognized the applicability of the same rule to court-martial proceedings, Carter v. McClaughry, 183 U.S. 365, 384—387, 22 S.Ct. 181, 189—190, 46 L.Ed. 236 (1902); to forfeiture actions, Snyder v. United States, 112 U.S. 216, 217, 5 S.Ct. 118, 119, 28 L.Ed. 697 (1884), Clifton v. United States, 4 How. 242, 250, 11 L.Ed. 957 (1846), Locke v. United States, 7 Cranch 339, 344, 3 L.Ed. 364 (1813); and to civil cases under state law, Bond v. Dustin, 112 U.S. 604, 609, 5 S.Ct. 296, 298, 28 L.Ed. 835 (1884). In United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 756, 13 L.Ed.2d 658 (1965), the Court applied the related concurrent sentence rule to a general sentence on a guilty verdict on an indictment charging several counts. See Transcript of Record, 48—50, No. 13, October Term, 1964.
3
Arguably, under today's decision any conviction for flag burning where the defendant's words are critical to proving intent or some other element of the crime would be invalid since the conviction would be based in part on speech. The Court disclaims this result, but without explaining why it would not reverse a conviction for burning where words spoken at the time are necessarily used to prove a case and yet reverse burning convictions on precisely the same evidence simply because on that evidence the defendant might also have been convicted for speaking. The Court's seemingly narrow holding may be of potentially broader application, particularly in view of Thomas v. Collins as now rewritten by the Court.
| 23
|
394 U.S. 721
89 S.Ct. 1394
22 L.Ed.2d 676
John DAVIS, Petitioner,v.State of MISSISSIPPI.
No. 645.
Argued Feb. 26 and 27, 1969.
Decided April 22, 1969.
Melvyn Zarr, New York City, for petitioner.
G. Garland Lyell, Jr., Jackson, Miss., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioner was convicted of rape and sentenced to life imprisonment by a jury in the Circ it Court of Lauderdale County, Mississippi. The only issue before us is whether fingerprints obtained from petitioner should have been excluded from evidence as the product of a detention which was illegal under the Fourth and Fourteenth Amendments.
2
The rape occurred on the evening of December 2, 1965, at the victim's home in Meridian, Mississippi. The victim could give no better description of her assailant than that he was a Negro youth. Finger and palm prints found on the sill and borders of the window through which the assailant apparently entered the victim's home constituted the only other lead available at the outset of the police investigation. Beginning on December 3, and for a period of about 10 days, the Meridian police, without warrants, took at least 24 Negro youths to police headquarters where they were questioned briefly, fingerprinted, and then released without charge. The police also interrogated 40 or 50 other Negro youths either at police headquarters, at school, or on the street. Petitioner, a 14-year-old youth who had occasionally worked for the victim as a yardboy, was brought in on December 3 and released after being fingerprinted and routinely questioned. Between December 3 and December 7, he was interrogated by the police on several occasions—sometimes in his home or in a car, other times at police headquarters. This questioning apparently related primarily to investigation of other potential suspects. Several times during this same period petitioner was exhibited to the victim in her hospital room. A police officer testified that these confrontations were for the purpose of sharpening the victim's description of her assailant by providing 'a gauge to go by on size and color.' The victim did not identify petitioner as her assailant at any of these confrontations.
3
On December 12, the police drove petitioner 90 miles to the city of Jackson and confined him overnight in the Jackson jail. The State conceded on oral argument in this Court that there was neither a warrant nor probable cause for this arrest. The next day, petitioner, who had not yet been afforded counsel, took a lie detector test and signed a statement.1 He was then returned to and confined in the Meridian jail. On December 14, while so confined, petitioner was fingerprinted a second time. That same day, these December 14 prints, together with the fingerprints of 23 other Negro youths apparently still under suspicion, were sent to the Federal Bureau of Investigation in Washington, D.C., for comparison with the latent prints taken from the window of the victim's house. The FBI reported that petitioner's prints matched those taken from the window. Petitioner was subsequently indicted and tried for the rape, and the fingerprint evidence was admitted in evidence at trial over petitioner's timely objections that the fingerprints should be excluded as the product of an unlawful detention. The Mississippi Supreme Court sustained the admission of the fingerprint evidence and affirmed the conviction. 204 So.2d 270 (1967). We granted certiorari. 393 U.S. 821, 89 S.Ct. 149, 21 L.Ed.2d 93 (1968). We reverse.
4
At the outset, we find no merit in the suggestion in the Mississippi Supreme Court's opinion that fingerprint evidence, because of its trustworthiness, is not subject to the proscriptions of the Fourth and Fourteenth Amendments.2 Our decisions recognize no exception to the rule that illegally seized evidence is inadmissible at trial, however relevant and trustworthy the seized evidence may be as an item of proof. The exclusionary rule was fashioned as a sanction to redress and deter overreaching governmental conduct prohibited by the Fourth Amendment. To make an exception for illegally seized evidence which is trustworthy would fatally undermine these purposes. Thus, in Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), we held that 'all evidence obtained by searches and seizures in violation of the Constitution is by that same authority, inadmissible in a state court.' (Italics supplied.) Fingerprint evidence is no exception to this comprehensive rule. We agree with and adopt the conclusion of the Court of Appeals for the District of Columbia Circuit in Bynum v. United States, 104 U.S.App.D.C. 368, 370, 262 F.2d 465, 467 (1958):
5
'True, fingerprints can be distinguished from statements given during detention. They can also be distinguished from articles taken from a prisoner's possession. Both similarities and differences of each type of evidence to and from the others are apparent. But all three have the decisive common characteristic of being something of evidentiary value which the public authorities have caused an arrested person to yield to them during illegal detention. If one such product of illegal detention is proscribed, by the same token all should be proscribed.'
6
We turn then to the question whether the detention of petitioner during which the fingerprints used at trial were taken constituted an unreasonable seizure of his person in violation of the Fourth Amendment. The opinion of the Mississippi Supreme Court proceeded on the mistaken premise that petitioner's prints introduced at trial were taken during his brief detention on December 3. In fact, as both parties before us agree, the fingerprint evidence used at trial was obtained on December 14, while petitioner was still in detention following his December 12 arrest. The legality of his arrest was not determined by the Mississippi Supreme Court. However, on oral argument here, the State conceded that the arrest on December 12 and the ensuing detention through December 14 were based on neither a warrant nor probable cause and were therefore constitutionally invalid. The State argues, nevertheless, that this invalidity should not prevent us from affirming petitioner's conviction. The December 3 prints were validly obtained, it is argued, and 'it should make no difference in the practical or legal sense which (fingerprint) card was sent to the F.B.I. for comparison.'3 It may be that it does make a difference in light of the objectives of the exclusionary rule, see Bynum v. United States, supra, at 371—372, 262 F.2d, at 468—469,4 but we need not decide the question since we have concluded that the prints of December 3, were not validly obtained.
7
The State makes no claim that petitioner voluntarily accompanied the police officers to headquarters on December 3 and willingly submitted to fingerprinting. The State's brief also candidly admits that '(a)ll that the Meridian Police could possi ly have known about petitioner at the time * * * would not amount to probable cause for his arrest * * *.'5 The State argues, however, that the December 3 detention was of a type which does not require probable cause. Two rationales for this position are suggested. First, it is argued that the detention occurred during the investigatory rather than accusatory stage and thus was not a seizure requiring probable cause. The second and related argument is that, at the least, detention for the sole purpose of obtaining fingerprints does not require probable cause.
8
It is true that at the time of the December 3 detention the police had no intention of charging petitioner with the crime and were far from making him the primary focus of their investigation. But to argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment. Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention. Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed 'arrests' or 'investigatory detentions.'6 We made this explicit only last Term in Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 1879, 20 L.Ed.2d 889 (1968), when we rejected 'the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a 'technical arrest or a 'full-blown search."
9
Detentions for the sole purpose of obtaining fingerprints are no loss subject to the constraints of the Fourth Amendment. It is arguable, however, that, because of the unique nature of the fingerprinting process, such detentions might, under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense. See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Detention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person's prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the 'third degree.' Finally, because there is no danger of destruction of fingerprints, the limited detention need not come unexpectedly or an an inconvenient time. For this same reason, the general requirement that the authorization of a judicial officer be obtained in advance of detention would seem not to admit of any exception in the fingerprinting context.
10
We have no occasion in this case, however, to determine whether the requirements of the Fourth Amendment could be met by narrowly circumscribed procedures for obtaining, during the course of a criminal investigation, the fingerprints of individuals for whom there is no probable cause to arrest. For it is clear that no attempt was made here to employ procedures which might co ply with the requirements of the Fourth Amendment: the detention at police headquarters of petitioner and the other young Negroes was not authorized by a judicial officer; petitioner was unnecessarily required to undergo two fingerprinting sessions; and petitioner was not merely fingerprinted during the December 3 detention but also subjected to interrogation. The judgment of the Mississippi Supreme Court is therefore reversed.
11
Reversed.
12
Mr. Justice FORTAS took no part in the consideration or decision of this case.
13
Mr. Justice HARLAN, concurring.
14
I join the opinion of the Court, with one reservation. The Court states in dictum that, because fingerprinting may be scheduled for a time convenient to the citizen, 'the general requirement that the authorization of a judicial officer be obtained in advance of detention would seem not to admit of any exception in the fingerprinting context.' Ante, this page. I cannot concur in so sweeping a proposition. There may be circumstances, falling short of the 'dragnet' procedures employed in this case, where compelled submission to fingerprinting would not amount to a violation of the Fourth Amendment even in the absence of a warrant, and I would leave that question open.
15
Mr. Justice BLACK, dissenting.
16
The petitioner here was convicted of a brutal rape of a woman, committed in her own home. Fingerprints of the petitioner, left on the window sill of her home, were the clinching evidence bringing about petitioner's conviction. The Court, by once more expanding the reach of the judicially declared exclusionary rule, ostensibly resting on the Fourth Amendment, holds the fingerprint evidence constitutionally inadmissible and thereby reverses petitioner's conviction. The rape occurred on December 2, 1965, and, as was their duty, the police authorities began to make a searching investigation the morning of December 3. The raped woman was originally able to describe the rapist only as a young Negro male. With this evidence the police proceeded to interrogate a number of young Negroes on the streets, at their homes, or at the police station, and then permitted them to go on their way. The petitioner was among those so interrogated on December 3, at which time his fingerprints were made. The fingerprints were again taken on December 14. The record does not show that petitioner or any other young man who was questioned and fingerprinted over made the slightest objection. Apparently all of them cooperated with the police in efforts to find out who had committed the rape. This case is but one more in an ever-expanding list of cases in which this Court has been so widely blowing up the Fourth Amendment's scope that its original authors would be hard put to recognize their creation.* For this most unnecessary expansion of the Amendment, the Court is compelled to put its chief reliance on a Court of Appeals decision, Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465. I think it is high time this Court, in the interest of the administration of criminal justice, made a new appraisal of the language and history of the Fourth Amendment and cut it down to its intended size. Such a judicial action would, I believe, make our cities a safer place for men, women, and children to life.
17
I dissent from this reversal.
18
Mr. Justice STEWART, dissenting.
19
I do not disagree with the Court's conclusion that the petitioner was arrested and detained without probable cause. But it does not follow that his fingerprints were inadmissible at the trial.
20
Fingerprints are not 'evidence' in the conventional sense that weapons or stolen goods might be. Like the color of a man's eyes, his height, or his very physiognomy, the tips of his fingers are an inherent and unchanging characteristic of the man. And physical impressions of his fingertips can be exactly and endlessly reproduced.
21
We do not deal here with a confession wrongfully obtained or with property wrongfully seized—so tainted as to be forever inadmissible as evidence against a defendant. We deal, instead, with 'evidence' that can be identically reproduced and lawfully used at any subsequent trial.**
22
I cannot believe that the doctrine of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, requires so useless a gesture as the reversal of this conviction.
1
The statement was not introduced at the trial.
2
Fingerprint evidence would seem no more 'trustworthy' than other types of evidence—such as guns, narcotics, gambling equipment—which are routinely excluded if illegally obtained.
3
Brief for Respondent 8.
4
The Government argued in Bynum that the controversy over the introduction in evidence of a particular set of fingerprints was 'much ado over very little,' because another set properly taken was available and might have been used. The Court of Appeals rejected this argument: 'It bears repeating that the matter of primary judicial concern in all cases of this type is the imposition of effective sanctions implementing the Fourth Amendment guarantee against illegal arrest and detention. Neither the fact that the evidence obtained through such detention is itself trustworthy or the fact that equivalent evidence and conveniently be obtained in a wholly proper way militates against this overriding consideration. It is entirely irrelevant that it may be relatively easy for the government to prove guilt without using the product of illegal detention. The important thing is that those administering the criminal law understand that they must do it that way.' 104 U.S.App.D.C., at 371—372, 262 F.2d, at 468—469. On Bynum's retrial another set of fingerprints in no way connected with his unlawful arrest was used, and he was again convicted. The Court of Appeals affirmed this conviction. 107 U.S.App.D.C. 109, 274 F.2d 767 (1960).
5
Brief for Respondent 3.
6
The State relies on various statements in our cases which approve general questioning of citizens in the course of investigating a crime. See Miranda v. Arizona, 384 U.S. 436, 477 478, 86 S.Ct. 1602, 1629—1630, 16 L.Ed.2d 694 (1966); Culombe v. Connecticut, 367 U.S. 568, 635, 81 S.Ct. 1860, 1896, 6 L.Ed.2d 1037 (concurring opinion) (1961). But these statements merely reiterated the settled principle that while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer.
*
See, e.g., Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797—another rape case; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 1723; Recznik v. City of Lorain, 393 U.S. 166, 89 S.Ct. 342, 21 L.Ed.2d 317 and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510.
**
At the original trial the victim of the rape, under oath, positively identified the petitioner as her assailant. There now exists, therefore, ample probable cause to detain him and take his fingerprints.
| 01
|
394 U.S. 731
89 S.Ct. 1420
22 L.Ed.2d 684
Martin Rene FRAZIER, Petitioner,v.H. C. CUPP, Warden.
No. 643.
Argued Feb. 26, 1969.
Decided April 22, 1969.
Howard M. Feuerstein, Portland, Or., for petitioner.
Arlen Specter, Philadelphia, Pa., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Petitioner was convicted in an Oregon state court of second-degree murder in connection with the September 22, 1964, slaying of one Russell Anton Marleau. After the Supreme Court of Oregon had affirmed his conviction, 245 Or. 4, 418 P.2d 841 (1966), petitioner filed a petition for a writ of habeas corpus in the United States District Court for the District of Oregon. The District Court granted the writ, but the Court of Appeals for the Ninth Circuit reversed, 388 F.2d 777 (1968). We granted certiorari to consider three contentions of error raised by petitioner. 393 U.S. 821, 89 S.Ct. 222, 21 L.Ed.2d 93 (1968). Although petitioner's case has been ably briefed and argued by appointed counsel, we find none of these allegations sufficient to warrant reversal.
I.
2
Petitioner's first argument centers on certain allegedly prejudicial remarks made during the prosecutor's opening statement. Petitioner had been indicted jointly with his cousin, Jerry Lee Rawls, who pleaded guilty to the same offense. Prior to petitioner's trial, petitioner's defense counsel told the prosecutor that Rawls would invoke his privilege against self-incrimination if he were called to the stand; defense counsel warned the prosecutor not to rely in his opening statement upon Rawls' expected testimon . The prosecutor replied that he would act on the basis of 'all of the information I have concerning (Rawls') testimony.' Before trial, he consulted with a police officer who had spoken to Rawls and with Rawls' probation officer; each indicated his belief that Rawls would testify. Similar information came, through a sheriff's report, from some of Rawls' close relatives. Because of these reports, the prosecutor concluded that Rawls would testify if asked to do so. The court below felt that the prosecutor also relied on the fact that Rawls had pleaded guilty and was awaiting sentence. This would give him reason, the court felt, to cooperate with the prosecutor.
3
In any case, after the trial began the prosecutor included in his opening statement a summary of the testimony he expected to receive from Rawls. The summary was not emphasized in any particular way; it took only a few minutes to recite and was sandwiched between a summary of petitioner's own confession and a description of the circumstantial evidence the State would introduce. At one point the prosecutor referred to a paper he was holding in his hands to refresh his memory about something Rawls had said. Although the State admitted in argument here that the jury might fairly have believed that the prosecutor was referring to Rawls' statement, he did not explicitly tell the jury that this paper was Rawls' confession, nor did he purport to read directly from it. A motion for a mistrial was made at the close of the opening statement, but it was denied. Later, the prosecutor called Rawls to the stand. Rawls informed the court that he intended to assert his privilege against self-incrimination in regard to every question concerning his activities on the morning of September 22, 1964. The matter was not further pursued, and Rawls was dismissed from the stand. His appearance could not have lasted more than two or three minutes. The motion for mistrial was renewed and once again denied.
4
Petitioner argues that this series of events placed the substance of Rawls' statement before the jury in a way that 'may well have been the equivalent in the jury's mind of testimony,' Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 1077, 13 L.Ed.2d 934 (1965), and that, as in Bruton v. United States, 391 U.S. 123, 128, 88 S.Ct. 1620, 1623, 20 L.Ed.2d 476 (1968), the statement 'added substantial, perhaps even critical, weight to the Government's case in a form not subject to cross-examination * * *.' In this way, petitioner claims he was denied his constitutional right of confrontation, guaranteed by the Sixth and Fourteenth Amendments to the Constitution. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Although the judge did caution the jurors that they 'must not regard any statement made by counsel in your presence during the proceedings concerning the facts of this case as evidence,' petitioner contends that Bruton v. United States, supra, disposes of the contention that limiting instructions of this sort can be relied upon to cure the error which occurred. Although the question thus posed is not an easy one, we cannot agree with petitioner's conclusion.
5
First of all, it is clear that this case is quite different from either Douglas or Bruton. In Douglas, the prosecutor called the defendant's coconspirator to the stand and read his alleged confession to him; the coconspirator was required to assert his privilege against self-incrimination repeatedly as the prosecutor asked him to confirm or deny each statement. The Court found that this procedure placed powerfully incriminating evidence before the jury in a manner which effectively denied the right of cross-examination. Here, Rawls was on the stand for a very short time and only a paraphrase of the statement was placed before the jury. This was done not during the trial, while the person making the statement was on the stand, but in an opening statement. In addition, the jury was told that the opening statement should not be considered as evidence. Certainly the impact of the procedure used here was much less damaging than was the case in Douglas. And unlike the situation in Bruton, the jury was not being asked to perform the mental gymnastics of considering an incriminating statement against only one of two defendants in a joint trial. Moreover, unlike the situation in either Douglas or Bruton, Rawls' statement was not a vitally important part of the prosecution's case.
6
We believe that in these circumstances the limiting instructions given were sufficient to protect petitioner's constitutional rights.* As the Court said in Bruton, 391 U.S. at 135, 88 S.Ct. at 1627, '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.' See Hopt v. Utah, 120 U.S. 430, 438, 7 S.Ct. 614, 30 L.Ed. 708 (1887). It may be that some remarks included in an opening or closing statement could be so prejudicial that a finding of error, or even constitutional error, would be unavoidable. But here we have no more than an objective summary of evidence which the prosecutor reasonably expected to produce. Many things might happen during the course of the trial which would prevent the presentation of all the evidence described in advance. Certainly not every variance between the advance description and the actual presentation constitutes reversible error, when a proper limiting instruction has been given. Even if it is unreasonable to assume that a jury can disregard a coconspirator's statement when introduced against one of two joint defendants, it does not seem at all remarkable to assume that the jury will ordinarily be able to limit its consideration to the evidence introduced during the trial. At least where the anticipated, and unproduced, evidence is not touted to the jury as a crucial part of the prosecution's case, 'it is hard for us to imagine that the minds of the jurors would be so influenced by such incidental statements during this long trial that they would not appraise the evidence objectively and dispassionately.' United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239, 60 S.Ct. 811, 852, 84 L.Ed. 1129 (1940).
7
The Court of Appeals seemed to feel that this aspect of the case turned on whether or not the prosecutor acted 'in a good faith expectation that Rawls would testify.' 388 F.2d, at 780—781. While we do not believe that the prosecutor's good faith, or lack of it, is controlling in determining whether a defendant has been deprived of the right of confrontation guaranteed by the Sixth and Fourteenth Amendments, we agree with the Court of Appeals' factual determination in this case. The evidence presented in the record is sufficient to support the Oregon Supreme Court's conclusion that 'the state could reasonably expect (Rewls) to testify in line with his previous statements.' 245 Or. at 9, 418 P.2d at 843. Accordingly, there is no need to decide whether the type of prosecutorial misconduct alleged to have occurred would have been sufficient to constitute reversible constitutional error. Cf. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967). Therefore, because we find neither prosecutorial misconduct nor a deprivation of the right of confrontation, we agree with the Court of Appeals that nothing which occurred during the prosecution's opening statement would warrant federal habeas relief.
II.
8
Petitioner's second argument concerns the admission into evidence of his own confession. The circumstances under which the confession was obtained can be summarized briefly. Petitioner was arrested about 4:15 p.m. on September 24, 1964. He was taken to headquarters where questioning began at about 5 p.m. The interrogation, which was tape-recorded, ended slightly more than an hour later, and by 6:45 p.m. petitioner had signed a written version of his confession.
9
After the questioning had begun and after a few routine facts were ascertained, petitioner was questioned briefly about the location of his Marine uniform. He was next asked where he was on the night in question. Although he admitted that he was with his cousin Rawls, he denied being with any third person. Then petitioner was given a somewhat abbreviated description of his constitutional rights. He was told that he could have an attorney if he wanted one and that anything he said could be used against him at trial. Questioning thereafter became somewhat more vigorous, but petitioner continued to deny being with anyone but Rawls. At this point, the officer questioning petitioner told him, falsely, that Rawls had been brought in and that he had confessed. Petitioner still was reluctant to talk, but after the officer sympathetically suggested that the victim had started a fight by making homosexual advances, petitioner began to spill out his story. Shortly after he began he again showed signs of reluctance and said, 'I think I had better get a lawyer before I talk any more. I am going to get into trouble more than I am in now.' The officer replied simply, 'You can't be in any more trouble than you are in now,' and the questioning session proceeded. A full confession was obtained and, after further warnings, a written version was signed.
10
Since petitioner was tried after this Court's decision in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), but before the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), only the rule of the former case is directly applicable. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Petitioner argues that his statement about getting a lawyer was sufficient to bring Escobedo into play and that the police should immediately have stopped the questioning and obtained counsel for him. We might agree were Miranda applicable to this case, for in Miranda this Court held that '(i)f * * * (a suspect) indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.' 384 U.S. at 444—445, 86 S.Ct. at 1612. But Miranda does not apply to this case. This Court in Johnson v. New Jersey pointedly rejected the contention that the specific commands of Miranda should apply to all post-Escobedo cases. The Court recognized '(t)he disagreements among other courts concerning the implications of Escobedo,' Johnson v. New Jersey, supra, 384 U.S. at 734, 86 S.Ct. at 1781, and concluded that the States, although free to apply Miranda to post-Escobedo cases, id., at 733, 86 S.Ct. 1772, were not required to do so. The Oregon Supreme Court, in affirming petitioner's conviction, concluded that the confession was properly introduced into evidence. Under Johnson, we would be free to disagree with this conclusion only if we felt compelled to do so by the specific holding of Escobedo.
11
We do not believe that Escobedo covers this case. Petitioner's statement about seeing an attorney was neither as clear nor as unambiguous as the request Escobedo made. The police in Escobedo were unmistakably informed of their suspect's wishes; in fact Escobedo's attorney was present and repeatedly requested permission to see his client. Here, on the other hand, it is possible that the questioning officer took petitioner's remark not as a request that the interrogation cease but merely as a passing comment. Petitioner did not pursue the matter, but continued answering questions. In this context, we cannot find the denial of the right to counsel which was found so crucial in Escobedo.
12
Petitioner also presses the alternative argument that his confession was involuntary and that it should have been excluded for that reason. The trial judge, after an evidentiary hearing during which the tape recording was played, could not agree with this contention, and our reading of the record does not lead us to a contrary conclusion. Before petitioner made any incriminating statements, he received partial warnings of his constitutional rights; this is, of course, a circumstance quite relevant to a finding of voluntariness. Davis v. North Carolina, 384 U.S. 737, 740—741, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). The questioning was of short duration, and petitioner was a mature individual of normal intelligence. The fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the 'totality of the circumstances,' see, e.g., Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967), and on the facts of this case we can find no error in the admission of petitioner's confession.
III.
13
Petitioner's final contention can be dismissed rather quickly. He argues that the trial judge erred in permitting some clothing seized from petitioner's duffel bag to be introduced into evidence. This duffel bag was being used jointly by petitioner and his cousin Rawls and it had been left in Rawls' home. The police, while arresting Rawls, asked him if they could have his clothing. They were directed to the duffel bag and both Rawls and his mother consented to its search. During this search, the officers came upon petitioner's clothing and it was seized as well. Since Rawls was a joint user of the bag, he clearly had authority to consent to its search. The officers therefore found evidence against petitioner while in the course of an otherwise lawful search. Under this Court's past decisions, they were clearly permitted to seize it. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Petitioner argues that Rawls only had actual permission to use one compartment of the bag and that he had no authority to consent to a search of the other compartments. We will not, however, engage in such metaphysical subtleties in judging the efficacy of Rawls' consent. Petitioner, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside. We find no valid search and seizure claim in this case.
14
Because we find none of petitioner's contentions meritorious, we affirm the judgment of the Court of Appeals.
15
Affirmed.
16
Mr. Chief Justice WARREN and Mr. Justice DOUGLAS concur in the result.
17
Mr. Justice FORTAS took no part in the consideration or decision of this case.
*
A more specific limiting instruction might have been desirable, but none was requested.
| 01
|
394 U.S. 741
89 S.Ct. 1439
22 L.Ed.2d 695
John H. BINGLER, District Director of Internal Revenue, Petitioner,v.Richard E. JOHNSON et al.
No. 473.
Argued March 3 and 4, 1969.
Decided April 23, 1969.
Harris Weinstein, Washington, D.C., for petitioner.
James C. Larrimer, Pittsburgh, Pa., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
We are called upon in this case to examine for the first time § 117 of the Internal Revenue Code of 1954, which excludes from a taxpayer's gross income amounts received as 'scholarships' and 'fellowships.' The question before us concerns the tax treatment of payments received by the respondents1 from their employer, the Westinghouse Electric Corporation, while they were on 'educational leave' from their jobs with Westinghouse.
2
During the period here in question the respondents held engineering positions at the Bettis Atomic Power Laboratory in Pittsburgh, Pennsylvania, which Westinghouse operates under a 'costplus' contract with the Atomic Energy Commission. Their employment status enabled them to participate in what is known as the Westinghouse Bettis Fellowship and Doctoral Program. That program, designed both to attract new employees seeking further education and to give advance training to persons already employed at Bettis, offers a two-phase schedule of subsidized postgraduate study in engineering, physics, or mathematics.
3
Under the first, or 'work-study,' phase, a participating employee holds a regular job with Westinghouse and in addition pursues a course of study at either the University of Pittsburgh or Carnegie-Mellon University.2 The employee is paid for a 40-hour work week, but may receive up to eight hours of 'release time' per week for the purpose of attending classes.3 'Tuition remuneration,' as well § reimbursement for various incidental academic expenses, is provided by the company.4
4
When an employee has completed all preliminary requirements for his doctorate, he may apply for an educational leave of absence, which constitutes the second phase of the Fellowship Program. He must submit a proposed dissertation topic for approval by Westinghouse and the AEC. Approval is based, inter alia, on a determination that the topic has at least some general relevance to the work done at Bettis. If the leave of absence is secured, the employee devotes his full attention for a period of at least several months,5 to fulfilling his dissertation requirement. During this period he receives a 'stipend' from Westinghouse, in an amount based on a specified percentage (ranging from 70% to 90%) of his prior salary plus 'adders,' depending upon the size of his family.6 He also retains his seniority status and receives all employee benefits, such as insurance and stock option privileges. In return he not only must submit periodic progress reports, but under the written agreement that all participants in the program must sign, also is obligated to return to the employ of Westinghouse for a period of at least two years following completion of his leave.7 Upon return he is, according to the agreement, to 'assume * * * duties commensurate with his education and experience,' at a salary 'commensurate with the duties assigned.'
5
The respondents all took leaves under the Fellowship Program at varying times during the period 1960—1962,8 and eventually received their doctoral degrees in engineering. Respondents Johnson and Pomerantz took leaves of nine months and were paid $5,670 each, representing 80% of their prior salaries at Westinghouse. Respondent Wolfe, whose leave lasted for a year, received $9,698.90, or 90% of his previous salary. Each returned to Westinghouse for the required period of time following his educational leave.
6
Westinghouse, which under its own accounting system listed the amounts paid to the respondents as 'indirect labor' expenses, withheld federal income tax from those amounts.9 The respondents filed claims for refund, contending that the payments they had received were 'scholarships,' and hence were excludable from income under § 117 of the Code, which provides in pertinent part:
7
'(a) General rule. In the case of an individual, gross income does not include—
8
'(1) any amount received—
9
'(A) as a scholarship at an educational institution (as defined in section 151(e)(4)), or
10
'(B) as a fellowship grant * * *.'10
11
When those claims were rejected, the respondents instituted this suit in the District Court for the Western District of Pennsylvania, against the District Director of Internal Revenue. After the basically undisputed evidence regarding the Bettis Program and been presented, the trial judge instructed the jury in accordance with Treas.Reg. on Income Tax (1954 Code) § 1.117—4(c), 26 CFR § 1.117—4(c) which provides that amounts representing 'compensation for past, present, or future employment services,' and amounts 'paid * * * to * * * an individual to enable him to pursue studies or research primarily for the benefit of the grantor,' are not excludable as scholarships.11 The jury found that the amounts received by the respondents were taxable income. Respondents then sought review in the Court of Appeals for the Third Circuit, and that court reversed, holding that the Regulation referred to was invalid, that the jury instructions were therefore improper, and that on the essentially undisputed facts it was clear as a matter of law that the amounts received by the respondents were 'scholarships' excludable under § 117. 396 F.2d 258.
12
The holding of the Court of Appeals with respect to Treas.Reg. § 1.117—4(c) was contrary to the decisions of several other circuits—most notably, that of the Fifth Circuit in Ussery v. United States, 296 F.2d 582, which explicitly sustained the Regulation against attack and held amounts received under an arrangement quite similar to the Bettis Program to be taxable income.12 Accordingly, upon the District Director's petition, we granted certiorari to resolve the conflict and to determine the proper scope of § 117 and Treas.Reg. § 1.117—4(c) with respect to payments such as those involved here. 393 U.S. 949, 89 S.Ct. 374, 21 L.Ed.2d 361.
13
In holding invalid the Regulation that limits the definitions of 'scholarship' and 'fellowship' so as to exclude amounts received as 'compensation,' the Court of Appeals emphasized that the statute itself expressly adverts to certain situations in which funds received by students may be thought of as remuneration. After the basic rule excluding scholarship funds from gross income is set out in § 117(a), for instance, subsection (b)(1) stipulates:
14
'In the case of an individual who is a candidate for a degree at an educational institution * * *, subsection (a) shall not apply to that portion of any amount received which represents payment for teaching, research, or other services in the nature of part-time employment required as condition to receiving the scholarship or the fellowship grant.'13
15
In addition, subsection (b)(2) limits the exclusion from income with regard to nondegree candidates in two respects: first, the grantor must be a governmental agency, an international organization, or an organization exempt from tax under § 501(a), (c)(3) of the Code; and second, the maximum exclusion from income available to a nondegree candidate is $300 per month for not more than 36 months. Since these exceptions are expressly set out in the statute, the Court of Appeals, relying on the canon of construction that expressio unius est exclusio alterius, concluded that no additional restrictions may be put on the basic exclusion from income granted by subsection (a)—a conclusion forcefully pressed upon us by the respondents.
16
Congress' express reference to the limitations just referred to concededly lends some support to the respondents' position. The difficulty with that position, however, lies in its implicit assumption that those limitations are limitations on an exclusion of all funds received by students to support them during the course of their education. Section 117 provides, however, only that amounts received as 'scholarships' or 'fellowships' shall be excludable. And Congress never defined what it meant by the quoted terms. As the Tax Court has observed:
17
'(A) proper reading of the statute requires that before the exclusion comes into play there must be a determination that the payment sought to be excluded has the normal characteristics associated with the term 'scholarship." Reese v. Commissioner, 45 T.C. 407, 413, aff'd, 373 F.2d 742.
18
The regulation here in question represents an effort by the Commissioner to supply the definitions that Congress omitted.14 And it is fundamental, of course, that as 'contemporaneous constructions by those charged with administration of' the Code, the Regulations 'must be sustained unless unreasonable and plainly inconsistent with the revenue statutes,' and 'should not be overruled except for weighty reasons.' Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 698, 92 L.Ed. 831. In this respect our statement last Term in United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 19 L.Ed.2d 537, bears emphasis:
19
'(W)e do not sit as a committee of revision to perfect the administration of the tax laws. Congress has delegated to the Commissioner, not to the courts, the task of prescribing 'all needful rules and regulations for the enforcement' of the Internal Revenue Code. 26 U.S.C. § 7805(a). In this area of limitless factual variations 'it is the province of Congress and the Commissioner, not the courts, to make the appropriate adjustments." Id., at 306 307, 88 S.Ct. at 449.
20
Here, the definitions supplied by the Regulation clearly are prima facie proper, comporting as they do with the ordinary understanding of 'scholarships' and 'fellowships' as relatively disinterested, 'no-strings' educational grants, with no requirement of any substantial quid pro quo from the recipients.
21
The implication of the respondents' expressio unius reasoning is that any amount paid for the purpose of supporting one pursuing a program of study or scholarly research should be excludable from gross income as a 'scholarship' so long as it does not fall within the specific limitations of § 117(b). Pay received by a $30,000 per year engineer or executive on a leave of absence would, according to that reasoning, be excludable as long as the leave was granted so that the individual could perform work required for a doctoral degree. This result presumably would not be altered by the fact that the employee might be performing, in satisfaction of his degree requirements, precisely the same work which he was doing for his employer prior to his leave and which he would be doing after his return to 'employment'—or by the fact that the fruits of that work were made directly available to and exploited by the employer. Such a result would be anomalous indeed, especially in view of the fact that under § 117 the comparatively modest sums received by part-time teaching assistants are clearly subject to taxation.15 Particularly in light of the principle that exemptions from taxation are to be construed narrowly,16 we decline to assume that Congress intended to sanction—indeed, as the respondents would have it, to compel—such an inequitable situation.17
22
The legislative history underlying § 117 is, as the Court of Appeals recognized, 'far from clear.'18 We do not believe, however, that it precludes, as 'plainly inconsistent' with the statute, a definition of 'scholarship' that excludes from the reac of that term amounts received as compensation for services performed. The 1939 Internal Revenue Code, like predecessor Codes, contained no specific provision dealing with scholarship grants. Whether such grants were includable in gross income depended simply upon whether they fell within the broad provision excluding from income amounts received as 'gifts.'19 Thus case-by-case determinations regarding grantors' motives were necessary. The cases decided under this approach prior to 1954 generally involved two types of financial assistance: grants to research or teaching assistants—graduate students who perform research or teaching services in return for their stipends—and foundation grants to post-doctoral researchers. In cases decided shortly before the 1954 Code was enacted, the Tax Court, relying on the 'gift' approach to scholarships and fellowships, held that amounts received by a research assistant were taxable income,20 but reached divergent results in situations involving grants to post-doctoral researchers.21
23
In enacting § 117 of the 1954 Code, Congress indicated that it wished to eliminate the necessity for reliance on 'case-by-case' determinations with respect to whether 'scholarships' and 'fellowships' were excludable as 'gifts.' Upon this premise the respondents hinge their argument that Congress laid down a standard under which all case-by-case determinations such as those that may be made under Treas.Reg. § 1.117—4(c)—are unnecessary and improper. We have already indicated, however, our reluctance to believe that § 117 was designed to exclude from taxation all amounts, no matter how large or from what source, that are given for the support of one who happens to be a student. The sounder inference is that Congress was merely 'recogni(zing) that scholarships and fellowships are sufficiently unique * * * to merit (tax) treatment separate from that accorded gifts,'22 and attempting to provide that grants falling within those categories should be treated consistently—as in some instances, under the generic provisions of the 1939 Code, they arguably had not been. Delineation of the precise contours of those categories was left to the Commissioner.
24
Furthermore, a congressional intention that not all grants received by students were necessarily to be 'scholarships' may reasonably be inferred from the legislative history. In explaining the basis for its version of § 117(b) (2),23 the House Ways and Means Committee stated that its purpose was to 'tax those grants which are in effect merely payments of a salary during a period while the recipient is on leave from his regular job.'24 This comment related, it is true, to a specific exception to the exclusion from income set out in subsection (a). But, in view of the fact that the statute left open the definitions of 'scholarship' and 'fellowship,' it is not unreasonable to conclude that in adding subsection (b) to the statute Congress was merely dealing explicitly with those problems that had come explicitly to its attention—viz., those involving research and teaching assistantships and post-doctoral research grants—without intending to forbid application to similar situations of the general principle underlying its treatment of those problems. One may justifiably suppose that the Congress that taxed funds received by 'part-time' teaching assistants, presumably on the ground that the amounts received by such persons really represented compensation for services performed,25 would also deem proper a definition of 'scholarship' under which comparable sorts of compensation—which often, as in the present case, are significantly greater in amount—are likewise taxable.26 In providing such a definition, the Commissioner has permissibly implemented an underlying congressional concern.27 We cannot say that the provision of Treas.Reg. § 1.117—4(c) that taxes amounts received as 'compensation' is 'unreasonable or plainly inconsistent with the * * * statut(e).'28
25
Under that provision, as set out in the trial court's instructions,29 the jury here properly found that the amounts received by the respondents were taxable 'compensation' rather than excludable 'scholarships.'30 The employer-employee relationship involved is immediately suggestive, of course, as is the close relation between the respondents' prior salaries and the amount of their 'stipends.' In addition, employee benefits were continued. Topics were required to relate at least generally to the work of the Bettis Laboratory. Periodic work reports were to be submitted. And, most importantly, Westinghouse unquestionably extracted a quid pro quo. The respondents not only were required to hold positions with Westinghouse throughout the 'work-study' phase of the program, but also were obligated to return to Westinghouse's employ for a substantial period of time after completion of their leave.31 The thrust of the provision dealing with compensation is that bargained-for payments, given only as a 'quo' in return for the quid of services rendered—whether past, present, or future—should not be excludable from income as 'scholarship' funds.32 That provision clearly covers this case.
26
Accordingly, the judgment of the Court of Appeals is reversed, and that of the District Court reinstated.
27
It is so ordered.
28
Judgment of Court of Appeals reversed and judgment of District Court reinstated.
29
Mr. Justice DOUGLAS would affirm the judgment for the reasons stated by the Court of Appeals in 396 F.2d 258.
1
We refer only to respondents Richard E. Johnson, Richard A. Wolfe, and Martin L. Pomerantz; their wives are parties to this action solely because joint tax returns were filed for the years in question.
2
Formerly Carnegie Institute of Technology.
3
A maximum of 156 hours of release time per year is allowed.
4
The Fellowship Program is funded jointly by Westinghouse and the AEC, but the amounts paid to participating employees are channeled through the company's payroll office.
5
The ordinary leave period is nine months.
6
Maximum monthly limits are placed on the amounts paid.
7
Respondent Wolfe began his leave at a time when Westinghouse did not require agreement in writing to the two-year 'return' commitment. He was formally advised before he went on leave, however, that he was 'expected' to return to Westinghouse for a period of time equal to the duration of his leave, and he in fact honored that obligation.
8
Respondent Wolfe was on leave from March 1, 1960, to February 28, 1961; respondent Johnson from October 1, 1960, to June 30, 1961; and respondent Pomerantz from November 1, 1961, to July 31, 1962.
9
Tuition and incidental fees were also paid by Westinghouse, but no withholding was made from those payments, and their tax status is not t issue in this case. Although conceptually includable in income, such sums presumably would be offset by educational expense deductions. See Treas.Reg. on Income Tax (1954 Code) § 1.162—5, 26 CFR § 1.162—5.
10
The entire section reads as follows:
'§ 117. Scholarships and fellowship grants
'(a) General rule.—
'In the case of an individual, gross income does not include—
'(1) any amount received—
'(A) as a scholarship at an educational institution (as defined in section 151(e)(4)), or
'(B) as a fellowship grant, including the value of contributed services and accommodations; and
'(2) any amount received to cover expenses for—
'(A) travel,
'(B) research,
'(C) clerical help, or
'(D) equipment,
'which are incident to such a scholarship or to a fellowship grant, but only to the extent that the amount is so expended by the recipient.
'(b) Limitations.—
'(1) Individuals who are candidates for degrees.—
'In the case of an individual who is a candidate for a degree at an educational institution (as defined in section 151(e)(4)), subsection (a) shall not apply to that portion of any amount received which represents payment for teaching, research, or other services in the nature of part-time employment required as a condition to receiving the scholarship or the fellowship grant. If teaching, research, or other services are required of all candidates (whether or not recipients of scholarships or fellowship grants) for a particular degree as a condition to receiving such degree, such teach-
ing, research, or other services shall not be regarded as part-time employment within the meaning of this paragraph.
'(2) Individuals who are not candidates for degrees.—
'In the case of an individual who is not a candidate for a degree at an educational institution (as defined in section 151(e)(4)), subsection (a) shall apply only if the condition in subparagraph (A) is satisfied and then only within the limitations provided in subparagraph (B).
'(A) Conditions for exclusion.—
'The grantor of the scholarship or fellowship grant is—
'(i) an organization described in section 501(c)(3) which is exempt from tax under section 501(a),
'(ii) a foreign government,
'(iii) an international organization, or a binational or multinational education and cultural foundation or commission created or continued pursuant to the Mutual Educational and Cultural Exchange Act of 1961, or
'(iv) the United States, or an instrumentality or agency thereof, or a State, a territory, or a possession of the United States, or any political subdivision thereof or the District of Columbia.
'(B) Extent of exclusion.—
'The amount of the scholarship or fellowship grant excluded under subsection (a)(1) in any taxable year shall be limited to an amount equal to $300 times the number of months for which the recipient received amounts under the scholarship or fellowship grant during such taxable year, except that no exclusion shall be allowed under subsection (a) after the recipient has been entitled to exclude under this section for a period of 36 months (whether or not consecutive) amount received as a scholarship or fellowship grant while not a candidate for a degree at an educational institution (as defined in section 151(e)(4)).'
11
'§ 1.117—4. Items not considered as scholarships or fellowship grants.
'The following payments or allowances shall not be considered to be amounts received as a scholarship or a fellowship grant for the purpose of section 117:
'(c) Amounts paid as compensation for services or primarily for the benefit of the grantor. (1) Except as provided in paragraph (a) of § 1.117—2, any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present, or future employment services or represents payment for services which are subject to the direction or supervision of the grantor.
'(2) Any amount paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research primarily for the benefit of the grantor.
'However, amounts paid or allowed to, or on behalf of, an individual to enable him to pursue studies or research are considered to be amounts received as a scholarship or fellowship grant for the purpose of section 117 if the primary purpose of the studies or research is to further the education and training of the recipient in his individual capacity and the amount provided by the grantor for such purpose does not represent compensation or payment for the services described in subparagraph (1) of this paragraph. Neither the fact that the recipient is required to furnish reports of his progress to the grantor, nor the fact that the results of his studies or research may be of some incidental benefit to the grantor shall, of itself, be considered to destroy the essential character of such amount as a scholarship or fellowship grant.'
12
Generally in accord with Ussery are Reese v. Commissioner, 373 F.2d 742 (C.A.4th Cir.); Stewart v. United States, 363 F.2d 355 (C.A.6th Cir.); and Woddail v. Commissioner, 321 F.2d 721 (C.A.10th Cir.). See also Reiffen v. United States, 376 F.2d 883, 180 Ct.Cl. 296.
13
Subsection (b) goes on to except from that limitation situations in which 'teaching, research, or other services are required of all candidates (whether or not recipients of scholarships or fellowship grants) for a particular degree as a condition to receiving such degree * * *.' In those situations, scholarship or fellowship funds received for such services are nontaxable. See n. 10, supra.
14
See also Treas.Reg. on Income Tax (1954 Code) §§ 1.117 3(a), (c), 26 CFR §§ 1.117—3(a), (c), which set out the 'normal characteristics' associated with scholarships and fellowships:
'§ 1.117—3 Definitions.
'(a) Scholarship. A scholarship generally means an amount paid
or allowed to, or for the benefit of, a student, whether an undergraduate or a graduate, to aid such individual in pursuing his studies. The term includes the valud of contributed services and accomodations (see paragraph (d) of this action) and the amount of tuition, matriculation, and other fees which are furnished or remitted to a student to aid him in pursuing his studies. The term also includes any amount received in the nature of a family allowance as a part of a scholarship. However, the term does not include any amount provided The term includes the value of contributed friend, or other individual in pursuing his studies where the grantor is motivated by family or philanthropic considerations. If an educational institution maintains or participates in a plan whereby the tuition of a child of a faculty member of such institution is remitted by any other participating educational institution attended by such child, the amount of the tuition so remitted shall be considered to b an amount received as a scholarship.
'(c) Fellowship grant. A fellowship grant generally means an amount paid or allowed to, or for the benefit of, an individual to aid him in the pursuit of study or research. The term includes the value of contributed services and accommodations (see paragraph (d) of this section) and the amount of tuition, matriculation, and other fees which are furnished or remitted to an individual to aid him in the pursuit of study or research. The term also includes any amount received in the nature of a family allowance as a part of a fellowship grant. However, the term does not include any amount provided by an individual to aid a relative, friend, or other individual in the pursuit of study or research where the grantor is motivated by family or philanthropic considerations.'
We are not concerned in this case with distinctions between the terms 'scholarship' and 'fellowship.'
15
Cf. 1 J. Mertens, Law of Federal Income Taxation § 7.42, p. 110 (P. Zimet & W. Oliver rev. ed. 1962).
16
See Commissioner of Internal Revenue v. Jacobson, 336 U.S. 28, 48—49, 69 S.Ct. 358, 368—369, 93 L.Ed. 477; Helvering v. Northwest Steel Rolling Mills, Inc., 311 U.S. 46, 49, 61 S.Ct. 109, 85 L.Ed. 29.
17
The opinion of the Court of Appeals reiterates that the stipends received by the respondents were 'reasonable.' Those payments approximated, of course, the respondents' previous engineering salaries. In any event, given the court's expressio unius reasoning, the source of a limitation based on the 'reasonableness' of amounts granted to bona fide students is difficult to identify.
18
396 F.2d, at 263.
19
Int.Rev.Code of 1939, c. 1, § 22(b)(3), 53 Stat. 10; see Int.Rev.Code of 1954, § 102.
20
See, e.g., Banks v. Commissioner, 17 T.C. 1386.
21
Compare Ti Li Loo v. Commissioner, 22 T.C. 220 (university grant for National Health Service research held taxable), with Stone v. Commissioner, 23 T.C. 254 (foundation grant held nontaxable).
22
Gordon, Scholarship and Fellowship Grants as Income: A Search for Treasury Policy, 1960 Wash.U.L.Q. 144, 151.
23
That version provided for the exclusion only of grants that, together with compensation received from the recipient's former employer, were less than 75% of his salary for the preceding year. Noting that the House bill would have taxed many modest grants simply because the recipient had no substantial earned income in the previous year, the Senate rejected that formulation and substituted the present $300 per month, 36-month provision of § 117(b)(2). See H.R.Rep. No. 1337, 83d Cong., 2d Sess., 17, U.S. Code Cong. & Admin. News 1954, p. 4025; S.Rep. No. 1622, 83d Cong., 2d Sess., 18, U.S. Code Cong. & Admin. News 1954, p. 4629.
24
H.R.Rep.No.1337, supra, n. 23, at 17; U.S.Code Cong. & Admin.News 1954, p. 4042.
25
The House version of § 117(b)(1) taxed only amounts received as payment for teaching and research services. The Senate amended the provision, however, to include payments for 'other services' as well. See S.Rep.No.1622, supra, n. 23, at 18; U.S.Code Cong. & Admin.News 1954, p. 4648.
26
In connection with the question of what Congress may have intended to denote by the terms 'scholarship' and 'fellowship,' it is noteworthy that the House Report stated, 'Such grants generally are of small amount and are usually received by individuals who would have little or no tax liability in any case.' H.R.Rep. No. 1337, supra, n. 23, at 17.
27
The Court of Appeals viewed the 'primary purpose' of § 117 as the 'encourage(ment of) financial aid to education through tax relief.' 396 F.2d, at 262. But while some desire to aid scholarship students no doubt underlay enactment of the statute, that desire must be reconciled with an apparent congressional intent—manifested in the limitations set out in subsection (b)—to tax amounts that represent compensation for services performed. As the text makes clear, we cannot view the Commissioner's attempt to achieve that reconciliation as improper.
28
The Court of Appeals seems to have recognized that in some circumstances the Commissioner's approach is justified. Its opinion stated:
'A significant commitment by the student in return for a grant would, of course, place that grant outside the category 'scholarship', at least to the extent of the value of that commitment. For if the grantee had to barter for his stipend, giving full value for it, this arrangement would hardly serve the primary purpose of the § 117 exclusion: to encourage financial aid to education through tax relief.' 396 F.2d, at 262.
It is not clear how this position can be squared with the Court of Appeals' holding that Treas.Reg. § 1.117—4(c) is invalid. In any event, as we suggest infra, we cannot agree with the conclusion of the Court of Appeals that the grants received by the respondents were not 'bartered for.'
29
The instructions included, inter alia, the following passage:
'You are * * * instructed that, one, any amount of money paid to an individual to enable him to pursue studies or research, if such amount represents either compensation for past, present or future employment services, or represents payment for services which are subject to the direction or supervision of the grantor, * * * is not a scholarship or fellowship under the tax laws.
'Two, any amount of money paid to an individual to enable him to pursue studies or research which studies or research are primarily for the benefit of the grantor is not a scholarship under the tax laws.'
30
We thus endorse the decisions of the Fifth and Sixth Circuits in Ussery v. United States, 296 F.2d 582, and Stewart v. United States, 363 F.2d 355. In Ussery, the Court of Appeals for the Fifth Circuit specifically upheld Treas.Reg. § 1.117—4(c) and held taxable monthly payments received by an employee of the Mississippi Department of Public Welfare who had been given leave to secure a master's degree in social work. The taxpayer there received employee benefits while on leave, and was obligated to return to the department following completion of his studies. Stewart involved a similar arrangement under which an employee of the Tennessee Department of Public Welfare received monthly stipends and other benefits during an educational leave of absence but was required to return thereafter to her previous position. See Reese v. Commissioner, 373 F.2d 742 (C.A.4th Cir.), affirming 45 T.C. 407 (student-teacher); Woddail v. Commissioner, 321 F.2d 721 (C.A.10th Cir.) (resident physician; obligated to remain following part-time participation in training program); cf. Reiffen v. United States, 376 F.2d 883, 180 Ct.Cl. 296 (relying solely on characterization of payments as 'primarily for benefit of grantor'). Several Tax Court decisions point in the same direction, although treatment of various factual situations under § 117 has not been marked by a great deal of consistency. See generally Tabac, Scholarships and Fellowship Grants: An Administrative Merry-Go-Round, 46 Taxes 485 (1968).
The Commissioner has acquiesced in Evans v. Commissioner, 34 T.C. 720 (see 1965—1 Cum.Bull. 4), which allowed exclusion where, although the taxpayer was obligated to work for the grantor following completion of her studies, there had been no previous employment relationship. See Rev.Rul. 65—146, 1965—1 Cum.Bull. 66. We are informed by the Solicitor General, however, that the Evans acquiescence will be modified. See also Broniwitz v. Commissioner, P—H 1968 TC Mem.Dec. 68,221 (Sept. 30, 1968) (requirement of summer employment with grantor; held excludable).
31
The contract's provision that employees who avail themselves of educational leave will be assigned duties 'commensurate with (their) education and experience,' and compensated at rates 'commensurate with' those duties, is hardly sufficient to avoid the clear inference that their grants are fully bargained for and in the nature of compensation. The program is featured in Westinghouse's recruiting efforts as a benefit attractive to many potential employees. Moreover, as suggested in the text, participation in the program undeniably means giving up the right to take more remunerative employment elsewhere for a considerable period of time. Had the company modified its program so that the amounts of the 'fellowship' grants were spread over the years preceding and following the educa ional leave—as increments to the respondents' salary, set aside in a company-administered 'educational fund'—there could be little doubt that those amounts would have represented compensation. We see no persuasive reason why a different tax result should be reached under Treas.Reg. § 1.117—4(c) on the actual facts involved here. There is no merit in the respondents' oblique suggestion that payment for present services is somehow different, with respect to the question before us, from deferred or anticipatory payments.
32
We accept the suggestion in the Government's brief that the second paragraph of Treas.Reg. § 1.117—4(c)—which excepts from the definition of 'scholarship' any payments that are paid to an individual 'to enable him to pursue studies or research primarily for the benefit of the grantor'—is merely an adjunct to the initial 'compensation' provision:
'By this paragraph, the Treasury has supplemented the first in order to impose tax on bargained-for arrangements that do not create an employer-employee relation, as, for example, in the case of an independent contractor. But the general idea is the same: 'scholarship' or 'fellowship' does not include arrangements where the recipient receives money and in return provides a quid pro quo.' Brief for Petitioner 22.
The respondents point out that the Internal Revenue Service is considering possible revisions of the Regulations under § 117. The Solicitor General informs us, however, that although revisions might 'conform the Regulations to the results reached' in such cases as Wells v. Commissioner, 40 T.C. 40, no changes are contemplated with respect to situations such as that involved here. Reply Brief for Petitioner in support of certiorari 3, n. 2; see Rev.Rul. 65—59, 1965—1 Cum.Bull. 67.
| 1112
|
394 U.S. 759
89 S.Ct. 1426
22 L.Ed.2d 709
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.WYMAN-GORDON COMPANY.
No. 463.
Argued March 3, 1969.
Decided April 23, 1969.
[Syllabus from 760 intentionally omitted]
Sol. Gen. Erwin N. Griswold for petitioner.
Quentin O. Young, Boston, Mass., for respondent.
Mr. Justice FORTAS announced the judgment of the Court and delivered an opinion in which the CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice WHITE join.
1
On the petition of the International Brotherhood of Boilermakers and pursuant to its powers under § 9 of the National Labor Relations Act, 49 Stat. 453, 29 U.S.C. § 159, the National Labor Relations Board ordered an election among the production and maintenance employees of the respondent company. At the election, the employees were to select one of two labor unions as their exclusive bargaining representative, or to choose not to be represented by a union at all. In connection with the election, the Board ordered the respondent to furnish a list of the names and addresses of its employees who could vote in the election, so that the unions could use the list for election purposes. The respondent refused to comply with the order, and the election was held without the list. Both unions were defeated in he election.
2
The Board upheld the unions' objections to the election because the respondent had not furnished the list, and the Board ordered a new election. The respondent again refused to obey a Board order to supply a list of employees, and the Board issued a subpoena ordering the respondent to provide the list or else produce its personnel and payroll records showing the employees' names and addresses. The Board filed an action in the United States District Court for the District of Massachusetts seeking to have its subpoena enforced or to have a mandatory injunction issued to compel the respondent to comply with its order.
3
The District Court held the Board's order valid and directed the respondent to comply. 270 F.Supp. 280 (1967). The United States Court of Appeals for the First Circuit reversed. 397 F.2d 394 (1968). The Court of Appeals thought that the order in this case was invalid because it was based on a rule laid down in an earlier decision by the Board, Excelsior Underwear Inc., 156 N.L.R.B. 1236 (1966), and the Excelsior rule had not been promulgated in accordance with the requirements that the Administrative Procedure Act prescribes for rule making, 5 U.S.C. § 553.* We granted certiorari to resolve a conflict among the circuits concerning the validity and effect of the Excelsior rule. 393 U.S. 932, 89 S.Ct. 301, 21 L.Ed.2d 268 (1968).1
I.
4
The Excelsior case involved union objections to the certification of the results of elections that the unions had lost at two companies. The companies had denied the unions a list of the names and addresses of employees eligible to vote. In the course of the proceedings, the Board 'invited certain interested parties' to file briefs and to participate in oral argument of the issue whether the Board should require the employer to furnish lists of employees. 156 N.L.R.B., at 1238. Various employer groups and trade unions did so, as amici curiae. After these proceedings, the Board issued its decision in Excelsior. It purported to establish the general rule that such a list must be provided, but it declined to apply its new rule to the companies involved in the Excelsior case. Instead, it held that the rule would apply 'only in those elections that are directed, or consented to, subsequent to 30 days from the date of (the) Decision.' Id., at 1240, n. 5.
5
Specifically, the Board purported to establish 'a requirement that will be applied in all election cases. That is, within 7 days after the Regional Director has approved a consent-election agreement entered into by the parties * * *, or after the Regional Director or the Board has directed an election * * *, the employer must file with the Regional Director an election eligibility list, containing the names and addresses of all the eligible voters. The Regional Director, in turn, shall make this information available to all parties in the case Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.' Id., at 1239—1240.
6
Section 6 of the National Labor Relations Act empowers the Board 'to make * * *, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of this Act.' 29 U.S.C. § 156. The Administrative Procedure Act contains specific provisions governing agency rule making, which it defines as 'an agency statement of general or particular applicability and future effect,' 5 U.S.C. § 551(4).2 The Act requires among other things, publication in the Federal Register of notice of proposed rule making and of hearing; opportunity to be heard; a statement in the rule of its basis and purposes; and publication in the Federal Register of the rule as adopted. See 5 U.S.C. § 553. The Board asks us to hold that it has discretion to promulgate new rules in adjudicatory proceedings, without complying with the requirements of the Administrative Procedure Act.
7
The rule-making provisions of that Act, which the Board would avoid, were designed to assure fairness and mature consideration of rules of general application. See H.R.Rep. No. 1980, 79th Cong., 2d Sess., 21—26 (1946); S.Rep. No. 752, 79th Cong., 1st Sess., 13—16 (1945). They may not be avoided by the process of making rules in the course of adjudicatory proceedings. There is no warrant in law for the Board to replace the statutory scheme with a rule-making procedure of its own invention. Apart from the fact that the device fashioned by the Board does not comply with statutory command, it obviously falls short of the substance of the requirements of the Administrative Procedure Act. The 'rule' created in Excelsior was not published in the Federal Register, which is the statutory and accepted means of giving notice of a rule as adopted; only selected organizations were given notice of the 'hearing,' whereas notice in the Federal Register would have been general in character; under the Administrative Procedure Act, the terms or substance of the rule would have to be stated in the notice of hearing, and all interested parties would have an opportunity to participate in the rule making.
8
The Solicitor General does not deny that the Board ignored the rule-making provisions of the Administrative Procedure Act.3 But he appears to argue that Excelsior's command is a valid substantive regulation, binding upon this respondent as such, because the Board promulgated it is the Excelsior proceeding, in which the requirements for valid adjudication had been met. This argument misses the point. There is no question that, in an adjudicatory hearing, the Board could validly decide the issue whether the employer must furnish a list of employees to the union. But that is not what the Board did in Excelsior. The Board did not even apply the rule it made to the parties in the adjudicatory proceeding, the only entities that could properly be subject to the order in that case. Instead, the Board purported to make a rule: i.e., to exercise its quasi-legislative power.
9
Adjudicated cases may and do, of course, serve as vehicles for the formulation of agency policies, which are applied and announced therein. See H. Friendly, The Federal Administrative Agencies 36—52 (1962).4 They generally provide a guide to action that the agency may be expected to take in future case . Subject to the qualified role of stare decisis in the administrative process, they may serve as precedents. But this is far from saying, as the Solicitor General suggests, that commands, decisions, or policies announced in adjudication are 'rules' in the sense that they must, without more, be obeyed by the affected public.
10
In the present case, however, the respondent itself was specifically directed by the Board to submit a list of the names and addresses of its employees for use by the unions in connection with the election.5 This direction, which was part of the order directing that an election be held, is unquestionably valid. See, e.g., NLRB v. Waterman S.S. Co., 309 U.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 704 (1940). Even though the direction to furnish the list was followed by citation to 'Excelsior Underwear Inc., 156 NLRB No. 111,' it is an order in the present case that the respondent was required to obey. Absent this direction by the Board, the respondent was under no compulsion to furnish the list because no statute and no validly adopted rule required it to do so.
11
Because the Board in an adjudicatory proceeding directed the respondent itself to furnish the list, the decision of the Court of Appeals for the First Circuit must be reversed.6
II.
12
The respondent also argues that it need not obey the Board's order because the requirement of disclosure of employees' names and addresses is substantively invalid. This argument lacks merit. The objections that the respondent raises to the requirement of disclosure were clearly and correctly answered by the Board in its Excelsior decision. All of the United States Courts of Appeals that have passed on the question have upheld the substantive validity of the disclosure requirement,7 and the court below strongly intimated a view that the requirement was substantively a proper one, 397 F.2d, at 396.
13
We have held in a number of cases that Congress granted the Board a wide discretion to ensure the fair and free choice of bargaining representatives. See, e.g., NLRB v. Waterman S.S. Co., supra, 309 U.S. at 226, 60 S.Ct. at 503; NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946). The disclosure requirement furthers this objective by encouraging an informed employee electorate and by allowing unions the right of access to employees that management already possesses. It is for the Board and not for this Court to weigh against this interest the asserted interest of employees in avoiding the problems that union solicitation may present.
III.
14
The respondent contends that even if the disclosure requirement is valid, the Board lacks power to enforce it by subpoena. Section 11(1) of the National Labor Relations Act provides that the Board shall have access to 'any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question,' and empowers the Board to issue subpoenas 'requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation.' Section 11(2) gives the district courts jurisdiction, upon application by the Board, to issue an order requiring a person who has refused to obey the Board's subpoena 'to appear before the Board * * * there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question * * *.' 29 U.S.C. §§ 161(1), (2).
15
The respondent takes the position that these statutory provisions do not give the Board authority to subpoena the list here in question because they are not 'evidence' within the meaning of the statutory language. The District Court held, however, that 'in the context of § 11 of the Act, 'evidence' means not only proof at a hearing but also books and records and other papers which will be of assistance to the Board in conducting a particular investigation.'8 The courts of appeals that have passed on the question have construed the term 'evidence' in a similar manner. NLRB v. Hanes Hosiery Division, 384 F.2d 188, 191—192 (C.A.4th Cir. 1967). See NLRB v. Rohlen, 385 F.2d 52, 55—58 (C.A.7th Cir. 1967); NLRB v. Beech-Nut Life Savers, Inc., 406 F.2d 253, 259 (C.A.2d Cir. 1968); British Auto Parts, Inc. v. NLRB, 405 F.2d 1182, 1184 (C.A.9th Cir. 1968); NLRB v. Q—T Shoe Mfg. Co., 409 F.2d 1247 (C.A.3d Cir. 1969). We agree that the list here in issue is within the scope of § 11 so that the Board's subpoena power may be validly exercised.
16
The judgment of the Court of Appeals is reversed, and the case is remanded to that court with directions to enforce the Board's order against the respondent.
17
It is so ordered.
18
Judgment of Court of Appeals reversed and case remanded to that court with directions.
19
Mr. Justice BLACK, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, concurring in the result.
20
I agree with Parts II and III of the prevailing opinion of Mr. Justice FORTAS, holding that the Excelsior requirement1 that an employer supply the union with the names and addresses of its employees prior to an election is valid on its merits and can be enforced by a subpoena. But I cannot subscribe to the criticism in that opinion of the procedure followed by the Board in adopting that requirement in the Excelsior case, 156 N.L.R.B. 1236 (1966). Nor can I accept the novel theory by which the opinion manages to uphold enforcement of the Excelsior practice in spite of what it considers to be statutory violations present in the procedure by which the requirement was adopted. Although the opinion is apparently intended to rebuke the Board and encourage it to follow the plurality's conception of proper administrative practice, the result instead is to free the Board from all judicial control whatsoever regarding compliance with procedures specifically required by applicable federal statutes such as the National Labor Relations Act, 29 U.S.C. § 151 et seq., and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Apparently, under the prevailing opinion, courts must enforce any requirement announced in a purported 'adjudication' even if it clearly was not adopted as an incident to the decision of a case before the agency, and must enforce 'rules' adopted in a purported 'rule making' even if the agency materially violated the specific requirements that Congress has directed for such proceedings in the Administrative Procedure Act. I for one would not give judicial sanction to any such illegal agency action.
21
In the present case, however, I am convinced that the Excelsior practice was adopted by the Board as a legitimate incident to the adjudication of a specific case before it, and for that reason I would hold that the Board properly followed the procedures applicable to 'adjudication' rather than 'rule making.' Since my reasons for joining in reversal of the Court of Appeals differ so substantially from those set forth in the prevailing opinion, I will spell them out at some length.
22
Most administrative agencies, like the Labor Board here, are granted two functions by the legislation creating them: (1) the power under certain conditions to make rules having the effect of laws, that is, generally speaking, quasi-legislative power; and (2) the power to hear and adjudicate particular controversies, that is quasi-judicial power. The line between these two functions is not always a clear one and in fact the two functions merge at many points. For example, in exercising its quasi-judicial function an agency must frequently decide controversies on the basis of new doctrines, not theretofore applied to a specific problem, though drawn to be sure from broader principles reflecting the purposes of the statutes involved and from the rules invoked in dealing with related problems. If the agency decision reached under the adjudicatory power becomes a precedent, it guides future conduct in much the same way as though it were a new rule promulgated under the rule-making power, and both an adjudicatory order and a formal 'rule' are alike subject to judicial review. Congress gave the Labor Board both of these separate but almost inseparably related powers.2 No language in the National Labor Relations Act requires that the grant or the exercise of one power was intended to exclude the Board's use of the other.
23
Nor does any language in the Administrative Procedure Act require such a conclusion. The Act does specify the procedure by which the rule-making power is to be exercised, requiring publication of notice for the benefit of interested parties and provision of an opportunity for them to be heard, and, after establishment of a rule as provided in the Act, it is then to be published in the Federal Register. Congress had a laudable purpose in prescribing these requirements, and it was evidently contemplated that administrative agencies like the Labor Board would follow them when setting out to announce a new rule of law to govern parties in the future. In this same statute however, Congress also conferred on the affected administrative agencies the power to proceed by adjudication, and Congress specified a distinct procedure by which this adjudicatory power is to be exercised.3 The Act defines 'adjudication' as 'agency process for the formulation of an order,' and 'order' is defined as 'the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.' 5 U.S.C. §§ 551(7), (6). Thus, although it is true that the adjudicatory approach frees an administrative agency from the procedural requirements specified for rule making, the Act permits this to be done whenever the action involved can satisfy the definition of 'adjudication' and then imposes separate procedural requirements that must be met in adjudication. Under these circumstances, so long as the matter involved can be dealt with in a way satisfying the definition of either 'rule making' or 'adjudication' under the Administrative Procedure Act, that Act, along with the Labor Relations Act, should be read as conferring upon the Board the authority to decide, within its informed discretion, whether to proceed by rule making or adjudication. Our decision in SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), though it did not involve the Labor Board or the Administrative Procedure Act, is nonetheless equally applicable here. As we explained in that case, 'the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.' Id., at 203, 67 S.Ct., at 1580.
24
In the present case there is no dispute that all the procedural safeguards required for 'adjudication' were fully satisfied in connection with the Board's Excelsior decision, and it seems plain to me that that decision did constitute 'adjudication' within the meaning of the Administrative Procedure Act, even though the requirement was to be prospectively applied. See Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932). The Board did not abstractly decide out of the blue to announce a brand new rule of law to govern labor activities in the future, but rather established the procedure as a direct consequence of the proper exercise of its adjudicatory powers. Sections 9(c)(1) and (2) of the Labor Relations Act empower the Board to conduct investigations, hold hearings, and supervise elctions to determine the exclusive bargaining representative that the employees wish to represent them. This is a key provision of the plan Congress adopted to settle labor quarrels that might interrupt the free flow of commerce. A controversy arose between the Excelsior Company and its employees as to the bargaining agent the employees desired to act for them. The Board's power to provide the procedures for the election was invoked, an election was held, and the losing unions sought to have that election set aside. Undoubtedly the Board proceeding for determination of whether to confirm or set aside that election was 'agency process for the formulation of an order' and thus was 'adjudication' within the meaning of the Administrative Procedure. Act.
25
The prevailing opinion seems to hold that the Excelsior requirement cannot be considered the result of adjudication because the Board did not apply it to the parti § in the Excelsior case itself, but rather announced that it would be applied only to elections called 30 days after the date of the Excelsior decision. But the Excelsior order was nonetheless an inseparable part of the adjudicatory process. The principal issue before the Board in the Excelsior case was whether the election should be set aside on the ground, urged by the unions, that the employer had refused to make the employee lists available to them. See 156 N.L.R.B., at 1236—1238. The Board decided that the election involved there should not be set aside and thus rejected the contention of the unions. In doing so, the Board chose to explain the reasons for its rejection of their claim, and it is this explanation, the Board's written opinion, which is the source of the Excelsior requirement. The Board's opinion should not be regarded as any less an appropriate part of the adjudicatory process merely because the reason it gave for rejecting the unions' position was not that the Board disagreed with them as to the merits of the disclosure procedure but rather, see 156 N.L.R.B., at 1239, 1240, n. 5, that while fully agreeing that disclosure should be required, the Board did not feel that it should upset the Excelsior Company's justified reliance on previous refusals to compel disclosure by setting aside this particular election.
26
Apart from the fact that the decisions whether to accept a 'new' requirement urged by one party and, if so, whether to apply it retroactively to the other party are inherent parts of the adjudicatory process, I think the opposing theory accepted by the Court of Appeals and by the prevailing opinion today is a highly impractical one. In effect, it would require an agency like the Labor Board to proceed by adjudication only when it could decide, prior to adjudicating a particular case, that any new practice to be adopted would be applied retroactively. Obviously, this decision cannot properly be made until all the issues relevant to adoption of the practice are fully considered in connection with the final decision of that case. If the Board were to decide, after careful evaluation of all the arguments presented to it in the adjudicatory proceeding, that it might be fairer to apply the practice only prospectively, it would be faced with the unpleasant choice of either starting all over again to evaluate the merits of the question, this time in a 'rule-making' proceeding, or overriding the considerations of fairness and applying its order retroactively anyway, in order to preserve the validity of the new practice and avoid duplication of effort. I see no good reason to impose any such inflexible requirement on the administrative agencies.
27
For all of the foregoing reasons I would hold that the Board acted well within its discretion in choosing to proceed as it did, and I would reverse the judgment of the Court of Appeals on this basis.
28
Mr. Justice DOUGLAS, dissenting.
29
The Administrative Procedure Act, 5 U.S.C. § 553(b) provides that general notice 'of proposed rule making' shall be published in the Federal Register. Public participation—in essence a hearing is provided, § 553(c). And 'interested' persons are given the right to petition for the issuance, amendment, or repeal of a rule, § 553(c).
30
In Excelsior Underwear Inc., 156 N.L.R.B. 1236, the Board in 1966 decided (1) that an employer would be required to furnish the Regional Director, prior to the conducting of a representation election, the names and addresses of the eligible voters, which list would then be made available to all contestants in the election, but (2) that this requirement would apply only prospectively, to all elections directed or consented to subsequent to 30 days after the date of its decision there.
31
The notice and hearing procedure prescribed by § 553(b) was not followed; and in this case, an election was directed seven months after the Excelsior decision, the Board applying the Excelsior rule.
32
I am willing to assume that, if the Boar decided to treat each case on its special facts and perform its adjudicatory function in the conventional way, we should have no difficulty in affirming its action. The difficulty is that it chose a different course in the Excelsior case and, having done so, it should be bound to follow the procedures prescribed in the Act as may Brother HARLAN has outlined them. When we hold otherwise, we let the Board 'have its cake and eat it too.'
33
The Committee reports make plain that the Act 'provides quite different procedures for the 'legislative' and 'judicial' functions of administrative agencies.' S.Rep.No.752, 79th Cong., 1st Sess., 7; H.R.Rep.No.1980, 79th Cong., 2d Sess., 17.
Section 553(b)(3) provides in part:
34
'Except when notice or hearing is required by statute, this subsection does not apply—
35
'(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.'
36
We need not stop to inquire what the word 'procedure' in that context embraces. For § 553(d) provides, with exceptions not material1 here that:
37
'The required publication or service of a substantive rule shall be made not less than 30 days before its effective date * * *.' The Board apparently decided the Excelsior case with § 553(d) in mind, for it made the proposed new rule effective after 30 days. The House report states that § 553(d) (which was § 4(c) in its draft) 'does not provide procedures alternative to notice and other public proceedings required by the prior sections.' Id., at 25. And that report added, 'It will afford persons affected a reasonable time to prepare for the effective date of a rule or rules or to take any other action which the issuance of rules may prompt.' Ibid. And see S.Rep., supra. at 15.
38
The 'substantive' rules described by § 553(d) may possibly cover 'adjudications,' even though they represent performance of the 'judicial' function. But it is no answer to say that the order under review was 'adjudicatory.' For as my Brother HARLAN says, an agency is not adjudicating when it is making a rule to fit future cases. A rule like the one in Excelsior is designed to fit all cased at all times. It is not particularized to special facts. It is a statement of far-reaching policy covering all future represention elections.
39
It should therefore have been put down for the public hearing prescribed by the Act.
40
The rule-making procedure performs important functions. It gives notice to an entire segment of society of those controls or regimentation that is forthcoming. It gives an opportunity for persons affected to be heard. Recently the proposed Rules of the Federal Highway Administration governing the location and design of freeways, 33 Fed.Reg. 15663, were put down for a hearing; and the Governor of every State appeared or sent an emissary. The result was a revision of the Rules before they were promulgated. 34 Fed.Reg. 727.
41
That is not an uncommon experience. Agencies discover that they are not always repositories of ultimate wisdom; they learn from the suggestions of outsiders and often benefit from that advice. See H. Friendly, The Federal Administrative Agencies 45 (1962).
42
This is a healthy process that helps make a society viable. The Multiplication of agencies and their growing power make them more and more remote from the people aff cted by what they do and make more likely the arbitrary exercise of their powers. Public airing of problems through rule making makes the bureaucracy more responsive to public needs and is an important brake on the growth of absolutism in the regime that now governs all of us.
43
Many federal agencies touch on numerous aspects of the lives of the poor. Rule making for this group is discussed in Bonfield, Representation for the Poor in Federal Rulemaking, 67 Mich.L.Rev. 511, 512 (1969):
44
'An agency promulgating rules affecting the poor cannot assume that it automatically knows what is best for such people. Government administrators are usually persons with middle-class backgounds, experiences, and associations; therefore, they tend to have middle-class viewpoints, orientations, and understandings. This means that the personnel of federal agencies may be expected to reflect more accurately the interests of the affluent than those of the economically underprivileged. Consequently, there is a special reason for concern when, as is now the case, the interests of poor people are inadequately represented in the rulemaking process.'
45
While that suggestion may not be relevant to the present labor-management area and the sophisticated opponents with which this case is concerned, it does illustrate that when we are lax and allow federal agencies to play fast and loose with rule making, we set a precedent with dangerous repercussions.
46
It has been stated that 'the survival of a questionable rule seems somewhat more likely when it is submerged in the facts of a given case' than when rule making is used. See Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv.L.Rev. 921, 946—947 (1965). Moreover, 'agencies appear to be freer to disregard their own prior decisions than they are to depart from their regulations.' Id., at 947. Failure to make full use of rule-making power is attributable at least in part 'to administrative inertia and reluctance to take a clear stand.' Id., at 972.
47
Rule making is no cure-all; but it does force important issues into full public display and in that sense makes for more responsible administrative action.
48
I would hold the agencies governed by the rule making procedure strictly to its requirements and not allow them to play fast and loose as the National Labor Relations Board apparently likes to do.2
49
As stated by the Court of Appeals, the procedure used in the Excelsior case plainly flouted the Act:
50
'Recognizing the problem to be one affecting more than just the parties before it, the Board chose to solicit the assistance of selected amici curiae, and, ultimately, to establish a rule which not only did not apply to the parties before it, but did not take effect for thirty days. In so doing we consider that the Board, to put it bluntly, designed its own rule-making procedure, adopting such part of the Congressional mandate as it chose, and rejecting the rest.' 397 F.2d 394, 396—397.
51
I would affirm the judgment.
52
Mr. Justice HARLAN, dissenting.
53
The language of the Administrative Procedure Act does not support the Government's claim that an agency is 'adjudicating' when it announces a rule which it refuses to apply in the dispute before it. The Act makes it clear that an agency 'adjudicates' only when its procedures result in the 'formulation of an order.' 5 U.S.C. § 551(7). (Emphasis supplied.) An 'order' is defined to include 'the whole or a part of a final disposition * * * of an agency in a matter other than rule making * * *.' 5 U.S.C. § 551(6). (Emphasis supplied.) This definition makes it apparent that an agency is not adjudicating when it is making a rule, which the Act defines as 'an agency statement of general or particular applicability and future effect * * *.' 5 U.S.C. § 551(4). (Emphasis supplied.) Since the Labor Board's Excelsior rule was to be effective only 30 days after its promulgation, it clearly falls within the rule-making requirements of the Act.1
54
Nor can I agree that the natural interpretation of the statute should be rejected because it requires the agency to choose between giving its rules immediate effect or initiating a separate rule-making proceeding. An agency chooses to apply a rule prospectively only because it represents such a departure from preexisting understandings that it would be unfair to impose the rule upon the parties in pending matters. But it is precisely in these situations, in which established patterns of conduct are revolutionized, that rule-making procedures perform the vital functions that my Brother DOUGLAS describes so well in a dissenting opinion with which I basically agree.
55
Given the fact that the Labor Board has promulgated a rule in violation of the governing statute, I believe that there is no alternative but to affirm the judgment of the Court of Appeals in this case. If, as the plurality opinion suggests, the NLRB may properly enforce an invalid rule in subsequent adjudications, the rule-making provisions of the Administrative Procedure Act are completely trivialized. Under today's prevailing approach, the agency may evade the commands of the Act whenever it desires and yet coerce the regulated industry into compliance. It is no answer to say that ' respondent was under no compulsion to furnish the list because no statute and no validly adopted rule required it to do so,' ante, at 766, when the Labor Board was threatening to issue a subpoena which the courts would enforce. In what other way would the administrative agency compel obedience to its invalid rule?
56
One cannot always have the best of both worlds. Either the rule-making provisions are to be enforced or they are not. Before the Board may be permitted to adopt a rule that so significantly alters pre-existing labor-management understandings, it must be required to conduct a satisfactory rule-making proceeding, so that it will have the benefit of wide-ranging argument before it enacts its proposed solution to an important problem.
57
In refusing to adopt this position, the prevailing opinion not only undermines the Administrative Procedure Act, but also compromises the most basic principles governing judicial review of agency action established in our past decisions. This Court's landmark opinion in SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943), makes it clear that we are obliged to remand a case if the agency has relied upon an improper reason to justify its action:
58
'If the action rests upon an administrative determination—an exercise of judgment in an area which Congress has entrusted to the agency—of course it must not be set aside because the reviewing court might have made a different determination were it empowered to do so. But if the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law. In either even the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.'
59
Chenery's teachings are applicable here. The Regional ffice that issued the order under review refused to consider the merits of the arguments against the Excelsior rule which were raised by Wyman-Gordon on the ground that they had been rejected by the Board in the Excelsior case itself:
60
'(It) is well known that Excelsior issued only after oral argument and briefs, including amicus curiae briefs by interested parties. The Board has considered arguments such as those made here and nevertheless established the requirement embodied in Excelsior and the undersigned (Acting Regional Director) is bound by it.' Appendix 33.
61
The Board denied review of this decision on the ground that 'it raises no substantial issues warranting review.' Appendix 35.
62
Since the major reason the Board has given in support of its order is invalid, Chenery requires remand. See also Bell v. United States, 366 U.S. 393, 412—413, 81 S.Ct. 1230, 1240—1241, 6 L.E.2d 365 (1961); Burlington Truck Lines v. United States, 371 U.S. 156, 167—168, 83 S.Ct. 239, 245—246, 9 L.Ed.2d 207 (1962); cf. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 196—197, 61 S.Ct. 845, 853—854, 85 L.Ed. 1271 (1941). The prevailing opinion explains its departure from our leading decisions in this area on the ground that: 'There is not the slightest uncertainty as to the outcome of (this) proceeding' on remand. Ante, n. 6, at 767. I can perceive no justification whatever for this assertion. Since the Excelsior rule was invalidly promulgated, it is clear that, at a minimum, the Board is obliged on remand to recanvass all of the competing considerations before it may properly announce its decision in this case.2 We cannot know what the outcome of such a reappraisal will be. Surely, it cannot be stated with any degree of certainty that the Board will adopt precisely the same solution as the one which was embraced in Excelsior. The plurality simply usurps the function of the National Labor Relations Board when it says otherwise.
63
I would affirm the judgment of the Court of Appeals.
*
(Reporter's Note: The citations to the Administrative Procedure Act in the opinions in this case are to Supplement IV of the 1964 edition of the U.S.Code.)
1
When we granted certiorari, the Fifth Circuit had expressly approved the procedure the Board followed in adopting the Excelsior rule. Howell Refining Co. v. NLRB, 400 F.2d 213 (1968). Two other circuits had approved enforcement of the Excelsior rule without explicitly passing on the correctness of the method by which it was adopted. NLRB v. Hanes Hosiery Division, 384 F.2d 188 (C.A.4th Cir. 1967); NLRB v. Rohlen, 385 F.2d 52 (C.A.7th Cir. 1967). After our grant of certiorari in the present case, three more courts of appeals explicitly upheld the Excelsior rule and the procedure by which it was adopted, NLRB v. Beech-Nut Life Savers, Inc., 406 F.2d 253 (C.A.2d Cir. 1968); British Auto Parts, Inc. v. NLRB, 405 F.2d 1182 (C.A.9th Cir. 1968); NLRB v. Q-T Shoe Mfg. Co., 409 F.2d 1247 (C.A.3d Cir. 1969); and the Fifth Circuit reaffirmed its earlier holding in Howell Refining Co., Groendyke Transport, Inc. v. Davis, 406 F.2d 1158 (1969).
2
We agree with the opinion of Chief Judge Aldrich below that the Excelsior rule involves matters of substance and that it therefore does not fall within any of the Act's exceptions. See 5 U.S.C. § 553(b)(A).
3
The Board has never utilized the Act's rule-making procedures. It has been criticized for contravening the Act in this manner. See, e.g., 1 K. Davis, Administrative Law Treatise § 6.13 (Supp.1965); Peck, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 Yale L.J. 729 (1961).
4
The Solicitor General argues that this Court has previously approved 'rules' articulated by the Board in the adjudication of particular cases without questioning the propriety of that procedure. He cites Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); NLRB v. A. J. Tower Co., 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 (1946); NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953); and Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954). In none of these cases has this Court ruled upon or sanctioned the exercise of quasilegislative power—i.e., rule making—without compliance with § 6 of the NLRA and the rule-making provisions of the Administrative Procedure Act.
5
In his Decision and Direction of Election, the Regional Director ordered that '(a)n election eligibility list, containing the names and addresses of all the eligible voters, must be filed with the Regional Director within seven (7) days of the date of this Decision and Direction of Election. The Regional Director shall make the list available to all parties to the election. * * *'
6
Mr. Justice HARLAN'S dissent argues that because the Board improperly relied upon the Excelsior 'rule' in issuing its order, we are obliged to remand. He relies on SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). To remand would be an idle and useless formality. Chenery does not require that we convert judicial review of agency action into a ping-pong game. In Chenery, the Commission had applied the wrong standards to the adjudication of a complex factual situation, and the Court held that it would not undertake to decide whether the Commission's result might have been justified on some other basis. Here, by contrast, the substance of the Board's command is not seriously contestable. There is not the slightest uncertainty as to the outcome of a proceeding before the Board, whether the Board acted through a rule or an order. It would be meaningless to remand.
7
See NLRB v. J. P. Stevens & Co., 409 F.2d 1207 (C.A.4th Cir. 1969), and the cases cited in n. 1, upra.
8
270 F.Supp., at 285. The Court of Appeals did not reach the issue whether the Board could subpoena the lists in question.
1
This requirement first announced in the Excelsior case, 156 N.L.R.B. 1236 (1966), has often been referred to by the Board, the lower courts, and the commentators as 'the Excelsior rule.' I understand the use of the word 'rule' in this context to imply simply that the requirement is a rule of law such as would be announced in a court opinion and not necessarily that it is the kind of 'rule' required to be promulgated in accordance with the 'rule-making' procedures of the Administrative Procedure Act. For the sake of clarity, however, I have chosen in this opinion to avoid use of the word 'rule' when referring to the procedure required by the Excelsior decision.
2
See National Labor Relations Act §§ 6, 9(c)(1), 10; 29 U.S.C. §§ 156, 159(c)(1), 160.
3
The procedure to be followed in 'adjudication,' which includes notice of the issues, an opportunity for responsive pleadings, a hearing, and decision, is specified in 5 U.S.C. §§ 554, 556, and 557. The Administrative Procedure Act expressly exempts proceedings for 'the certification of worker representatives' from these requirements, 5 U.S.C. §§ 554(a)(6), 556(a), 557(a), and these proceedings are therefore governed only by the requirements specified in the National Labor Relations Act, 29 U.S.C. § 151 et seq.
1
The rule-making provision does not apply to
'(1) a military or foreign affairs function of the United States; or
'(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.' 5 U.S.C. § 553(a).
These exceptions exclude, inter alia, the National Forest Service, the National Park System, the Bureau of Land Management, and other agencies dealing with 'public property' such as the Interior Department and its leases of off-shore oil properties.
For a compilation of federal agency rules on rule making see J. Pike & H. Fisher, Administrative Law (2d series 1952).
2
'The NLRB has never used its rule-making power; it misuses the methods of adjudication for making rules, and it uses press releases not published in the Federal Register, for announcing policies that ought to be embodied in formal rules. It seems to be violating § 3 and § 4 of the Administrative Procedure Act, and the result in some instances is serious injustice.' 1 K. Davis, Administrative Law Treatise § 6.13 (Supp.1965). And see Peck, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 Yale L.J. 729 (1961).
1
For the reasons advanced by Chief Judge Aldrich in his opinion below, 397 F.2d 394, I think it clear that the Excelsior rule invoves matters of substance and not procedure, and so does not fall within the exception created by 5 U.S.C. § 553(b)(A) of the Act.
2
As I have indicated, supra, at 781, I would go further and require the Board to initiate a new rule-making proceeding where, as here, it has previously recognized that the proposed new rule so departs from prior practices that it cannot fairly be applied retroactively. In the absence of such a proceeding, the administrative agency must be obliged to follow its earlier decisions which did not require employers to furnish Excelsior lists to unions during organizing campaigns.
| 89
|
394 U.S. 784
89 S.Ct. 1410
22 L.Ed.2d 726
UNITED STATES, Petitioner,v.AN ARTICLE OF DRUG . . . BACTO-UNIDISK . . .
No. 343.
Argued Jan. 23, 1969.
Decided April 28, 1969.
Rehearing Denied June 9, 1969.
See 395 U.S. 954, 89 S.Ct. 2013.
Lawrence G. Wallace, Dept. of Justice, Washington, D.C., for petitioner.
Edward Brown Williams, Washington, D.C., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the court.
1
At issue here is the scope of the statutory definition of drug contained in the Federal Food, Drug, and Cosmetic Act and the extent of the Secretary of Health, Education, and Welfare's regulatory authority under that definition. The specific item involved in this definitional controversy is a laboratory aid known as an antibiotic sensitivity disc, used as a screening test for help in determining the proper antibiotic drug to administer to patients. If the article is a 'drug' within the general definition of § 201 of the Federal Food, Drug, and Cosmetic Act (52 Stat. 1040, 21 U.S.C. § 321 (1964 ed., Supp. II)), then the Secretary can subject it to pre-market clearance regulations promulgated pursuant to § 507 of the Act (21 U.S.C. § 357). Section 507 authorizes the Secretary to require batch certification of any antibiotic product which also meets the general drug definition of § 201. If, on the other hand, the article is merely a 'device' under the Act, it is subject only to the misbranding and adulteration proscriptions of the Act and does not have to be pretested before marketing; and, of course, if the disc does not fall under either definition, the Act itself is totally inapplicable.
2
When the discs were marketed without complying with the certification regulations of the Secretary, the Government condemned them pursuant to § 334 of the Act (21 U.S.C. § 331) on the assumption that the discs were drugs and thus validly subject to pre-market regulation. In this action following the condemnation, however, the United States District Court for the Eastern District of Michigan held that the discs were not drugs within the meaning of the Act, suggesting that, if anything, they were devices. It therefore ruled that, since pre-market clearance was not required or authorized, the seizure was improper. The Court of Appeals for the Sixth Circuit affirmed on the same reasoning. We reverse.
I.
3
Some background information about the development of the discs and the controlling legislation is necessary for an understanding of the determinations made by the Secretary and the courts below. Various antibiotics, known more commonly as 'wonder drugs' under such familiar names as penicillin, aureomycin, terramycin, tetracycline, and streptomycin, have proved very useful since World War II in treating numerous infectious dieas s.1 Produced biologically, however, these drugs tend to vary greatly in their quality and potency unless developed, and thereafter tested, under very carefully controlled conditions. Consequently,2 Congress enacted § 507 of the Food, Drug, and Cosmetic Act, directing the Secretary of Health, Education, and Welfare to promulgate regulations establishing such standards of identity, potency, quality, and purity as necessary to ensure the 'safety' and 'efficacy' of those antibiotics. At present, more than 30 antibiotic drugs are listed (21 CFR § 145.3) with accompanying regulations covering more than 700 pages in the Code of Federal Regulations (21 CFR §§ 141.1—148z.4).
4
With the proliferation of the various types of antibiotics, doctors found a need for a screening test to help choose which antibiotic to use in treating a particular infection. A diffusion test, using antibiotic sensitivity descs like the one in question here, soon became a widely employed screening method.3 In this test, a round paper disc, which has been impregnated with a specific antibiotic, is placed in contact with sample cultures, or isolates, of a patient's virus, grown in a special culture medium (agar) from a specimen of the patient's fluid (blood, spinal fluid, sputum, urine, etc.). In those places impregnated with an antibiotic to which the patient's infection is sensitive, no new isolate will grow, leaving a clear area (an 'inhibition zone'); in those places impregnated with a drug to which the infection is resistant, the isolate will grow, leaving no clear area. The disc is used in conjunction with a patient's specimen, in laboratory work exclusively, and never comes in contact with any part of the patient's body itself.
5
The discs had been in general use for some four years when, in 1960, the Secretary of Health, Education, and Welfare determined to regulate them pursuant to § 507. After notice and an opportunity for public participation, the Commissioner of Food and Drugs, under authority delegated by the Secretary, promulgated regulations requiring pre-clearance, batch-testing, and certification of antibiotic sensitivity discs (25 Fed.Reg. 9369). The Commissioner's action, the regulations noted, followed 'numerous complaints by the medical profession, hospitals, and laboratory technicians' and a resulting extensive survey of the use of the discs. That study found the discs unreliable in their statements of potency with resulting loss of safety and efficacy, and thus found it 'vital for the protection of the public health' to adopt the regulations (25 Fed.Reg. 9370).
6
This case arose in May 1962 as an in rem seizure proceeding against an interstate shipment of a number of cases of sensitivity discs, manufactured by Difco Laboratories, Inc., under the trade name of 'Bacto-Unidisk.' In condemning the product pursuant to § 301 et seq. of the Food, Drug, and Cosmetic Act, the United States claimed, inter alia, that the product, as a 'drug' within the meaning of the Act, had not been certified nor exempted from certification as required by § 507 (21 U.S.C. § 357) and the regulations thereunder and was therefore misbranded under § 502 (21 U.S.C. § 352).4 The seizure was proper only if the Secretary's regulations subjecting the discs to the pre-market clearance requirements were authorized by the Act. Since the scope of the Secretary's pre-market regulatory power over antibiotic drugs under § 507 depends ultimately on the Act's general definition of 'drug' in § 201(g), the validity of the disc regulations allegedly violated turned on the coverage of the drug definition:
7
'For the purposes of this chapter—
8
'(g) (1) The term 'drug' means (A) articles recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (B) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (C) articles (other than food) intended to affect the structure or any function of the body of man or other animals; and (D) articles intended for use as a component of any article specified in clauses (A), (B), or (C) of this paragraph; but does not include devices or their components, part , or accessories.' 21 U.S.C. § 321 (1964 ed., Supp. II).
9
If, on the other hand, the product was a 'device,' only the misbranding, adulteration, and labeling provisions of §§ 501 and 502 applied, and the Secretary's disc certification regulations were invalidly promulgated. Although a 'device' expressly cannot be a 'drug' under the last phrase of the drug definition above, a device is given almost a parallel definition in § 201(h):
10
'The term 'device' * * * means instruments, apparatus, and contrivances, including their components, parts, and accessories, intended (1) for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; or (2) to affect the structure or any function of the body of man or other animals.' 21 U.S.C. § 321(h).
11
Finally, it was established at trial that of the various definitions given above, the operative ones in this case were § 201(g)(1)(B) of the drug provision and § 201(h)(1) of the parallel device definition;5 the essential question underlying the validity of the regulations, then, was whether the Bacto-Unidisks were 'articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals.'
12
In resolving this question in the negative and holding the seizure invalid, the District Court noted in a memorandum opinion6 that the concept of drug is limited in a medical sense to articles administered to man either externally or internally, and ruled that the 'evidence affords no basis for the conclusion that the definition of 'drug' in the Federal Food, Drug, and Cosmetic Act * * * was intended by Congress to extend beyond the meaning of that term in medical science, to encompass these sensitivity disks.' The District Court pointed out that although a 'literal reading' of § 201(g)(1)(B) 'clearly has application to the article libeled herein,' enforcing such an application would be 'ridiculous and contrary to common sense.' The court therefore held that the Bacto-Unidisk did not fall within the purview of the Act for the reason that it was not medically a drug, and suggested, without deciding, that the discs would be more appropriately classified as 'devices' under the Act.
13
On appeal, the Court of Appeals for the Sixth Circuit affirmed, accepting the District Court's conclusions that the Bacto-Unidisk was not a 'drug' in the medical sense of the term and that Congress did not intend the statutory definition of 'drug' to be any broader than the medical one. 392 F.2d 21, 23. The court noted that the discs did aid physicians in the determination of what antibiotic to use for the cure, mitigation, or treatment of disease by furnishing useful information, but held that Congress did not intend to apply the statutory phrase 'intended for use in the * * * cure, mitigation, (or) treatment' in such an indirect manner. 392 F.2d 21, 22. We granted the Government's petition for certiorari because this interpretation of the Act raised issues of importance in the administration of the Federal Food, Drug, and Cosmetic Act (393 U.S. 911, 89 S.Ct. 236, 21 L.Ed.2d 197 (1968)).
II.
14
Although there was some testimony below debating the precise extent of the public health dangers posed by the sensitivity discs, the courts below declined to substitute their judgment for that of the Commissioner of Food and Drugs by determining whether his action was really necessary to protect the public health from a purely medical viewpoint. Rather, the courts below quite properly confined the inquiry to an examination of whether the disc regulations, even if medically unwise, wer authorized by the Act, and more specifically, by the Act's definition of 'drug.' Despite the renewed effort here to relitigate the public health issue, we agree with the decision implicitly made by the courts below not to base a resolution of this case on the public need for, or medical wisdom of, the Secretary's regulations requiring premarket clearance of antibiotic sensitivity discs. It is enough for us that the expert agency charged with the enforcement of remedial legislation has determined that such regulation is desirable for the public health, for we are hardly qualified to second-guess the Secretary's medical judgment. Our sole concern is whether the statute's definition of 'drug' authorizes the disc regulations contested here; and while we agree with the lower courts' limited conception of the issue, for reasons outlined below, we reverse their disposition of it.
15
Respondent's primary contention here is that the sensitivity discs are not subject to any of the provisions of the Act because Congress did not intend it to cover articles used so indirectly in the 'cure, mitigation, (and) treatment' of disease. Respondent uses the same two-step analysis relied on by the courts below: (1) Congress did not intend to write the drug definition more broadly than does the medical profession, and (2) the medical concept of drug is limited to articles that are administered to man either internally or externally. Alternatively, respondent argues, even if the Act's 'intended for use' language does cover the discs, they must clearly be classified as devices. In view of the legislative history discussed below and the broad, remedial purpose of the Act itself, however, we hesitate to give the critical language such a narrow, restrictive reading in the absence of congressional direction to do so, and we therefore reject the contention that the discs do not properly fall within the purview of the Act. For the same basic reasons, we furthermore reject the argument that the discs, once found to come under the Act's coverage, must be classified specifically as devices and not drugs.
16
We need not stop to parse the language of the Act's definition of drug, for the District Court found, and the parties do not disagree here, that a literal reading of the words 'intended for use in the * * * cure, mitigation, (or) treatment' of disease 'clearly has application' to the Bacto-Unidisk. Although respondent again urges that the disc itself does not 'treat' a patient in the same way an antibiotic does in terms of personal application, the disc plays at least some role in the selection of the appropriate drug. Thus, the essential question for our determination is whether Congress intended the definition of drug to have the broad coverage the courts below and the parties agree its words allow. Viewing the structure, the legislative history, and the remedial nature of the Act, we think it plain that Congress intended to define 'drug' far more broadly than does the medical profession. The reason for including a separate, almost parallel, definition of 'devices' in the Act is, as the legislative history shows, relevant to congressional intent. It is therefore helpful to consider both the question of the Act's initial application and the question of the drug-device dichotomy at the same time.
III.
17
At the outset, it is clear from § 201 that the word 'drug' is a term of art for the purposes of the Act, encompassing far more than the strict medical definition of that word. If Congress had intended to limit the statutory definition to the medical one, it could have so stated explicitly, or simply have made reference to the official United States Pharmacopoeia (or the National Formulary), as it did in the first of the three subsections of § 201(g)(1), and let the definition rest there. The historical expansion of the statute's definition, furthermore, clearly points out Congress' intention of going beyond the medical usage. The 1906 Food and Drug Act, for instance, defined 'drug' in a rather limited way to include 'all medicines and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or external use, and any substance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease of either man or other animals.' 34 Stat. 768, 769. As subsequent congressional action clearly indicates, however, the scope of that original definition has since been greatly enlarged.
18
The enactment of the 1938 Federal Food, Drug, and Cosmetic Act illustrates the expansion of the definition of drug. One of the changes contemplated in S. 2800, an early version of the Act,7 defined 'drug' to include
19
'(1) all substances and preparations recognized in the United States Pharmacopoeia, Homoeopathic Pharmacopoeia of the United States, or National Formulary or supplements thereto; and (2) all substances, preparations, and devices intended for use in the cure, mitigation, treatment, or prevention of disease in man or other animals; and (3) all substances and preparations, other than food, and all devices intended to affect the structure or any function of the body.' (See S.Rep. No. 493, 73d Cong., 2d Sess. (1934).) (Emphasis added.)
20
Senator Copeland of New York, who sponsored the Act, remarked about the inclusion of the word 'devices' in his prepared statement introducing S. 2800 as follows:
21
'The present law defines drugs as substances or mixtures of substances intended to be used for the cure, mitigation, or prevention of disease. This narrow definition permits escape from legal control of all therapeutic or curative devices like electric belts, for example. It also permits the escape of preparations which are intended to alter the structure or some function of the body, as, for example, preparations intended to reduce excessive weight. There are many worthless and some dangerous devices and preparations falling within these classifications. S. 2800 contains ample authority to control them.' (78 Cong.Rec. 8960 (1934).)
22
The definition was revised in S. 5, 74th Cong., 1st Sess. (1935), to include substances, preparations, and devices intended for diagnostic purposes, as well as for cure, mitigation, treatment, or prevention of disease (S. 5, § 201(b), S.Rep. No. 361, 74th Cong., 1st Sess. (1935)).8 As the inclusion of the word 'diagnosis' came before the Senate for consideration, a controversy developed on the floor, aimed more at the word 'devices,' which was not then before the Senate, than at the word 'diagnosis.' 79 Cong.Rec. 4841—4845 (1935).9 Senator Clark contended that it was not proper to classify devices as drugs, and that diagnostic devices were so broadly defined as to make even a bathroom scale a drug:
23
'(I)f the devices ought to be outlawed, they ought to be outlawed, and I have no objection to that; but to maintain that a purely mechanical device is a drug and to be treated as a drug in law and in logic and in lexicography is a palpable absurdity, in my opinion.' Id., at 4841.
24
In answer to Senator Clark's remark that a bathroom scale would be classified as a drug, Senator Copeland made the following comment:
25
'Mr. President, I desire to state the effect of this amendment. There are on the market certain electrical devices. A man takes hold of the handles of the machine, and the indicator spins around.
26
It stops at 'appendicitis,' or it stops at 'meningitis' * * *. Such a device is manifestly a fraud pon society. That is what the amendment is designed to deal with.' Id., at 4842.
27
Despite Senator Copeland's proffered explanation, there was continued criticism during the Senate debates (79 Cong.Rec. 4905 4920, 5215—5234)10 of the definition on the ground that it would lead to the incongruous result of calling the following items 'drugs': shoulder braces (id., at 4841), radium belts (ibid.), electrical devices (id., at 4842), bathroom weight scales (ibid.), and hospital air conditioning apparatus (id., at 5231).11 The opposition finally settled on 'crutches' (id., at 4913)12 to signify the ultimate absurdity of the drug definition's broad coverage.
28
As a result of the criticism on the Senate floor, Senator Copeland proposed an amendment to add a definition of 'device' to parallel that of drug, an amendment which was included13 when the bill was returned to the Senate Committee on Commerce and later agreed to by the Senate without debate. (Id., at 8351—8355.14) The ultimate effect of the various amendments, of course, was still to include devices under the control of the Act for the first time, the goal Senator Copeland had originally set out to achieve. As Congressman Chapman of Kentucky explained to the House after the bill had passed the Senate, 'For the first time it is proposed in a bill before Congress to control therapeutic devices * * *. There are hundreds of worthless contrivances being sold to and used by gullible people. Suffice it to say that a fake contraption for the cure of consumption is just as serious a menace to health as is a worthless drug sold for the same disease.' 80 Cong.Rec. 10236 (1936).15 According to the Chief of the Food and Drug Administration, the reason for providing a separate definition of devices, instead of using Senator Copeland's original drug definition was simply to avoid 'the incongruity of classifying certain devices, such as the electric belt, therapeutic lamps, and so forth, as drugs * * *.' (Testimony given during hearings held on S. 5 by a subcommittee of the House Committee on Interstate and Foreign Commerce, 74th Cong., 1st Sess. (1935).16) Because of that incongruity as 'pointed out by the Senate in the last consideration of the bill,' the official explained, '(t) hey felt it proper to provide an independent definition of 'devices." Thus, it is clear that two parallel definitions were provided for semantic reasons only; for the purposes of the Act, the two definitions had the same effect of subjecting both drugs and devices to the adulteration and misbranding provisions. No practical significance to the distinction between the two words arose until the pre-market clearance provisions, similar to the certification regulations for antibiotics enacted in 1945, were added after a drug tragedy in the fall of 1937.17 (S. 3073, 75th Cong., 2d Sess.) The excepting clause of § 201(g)(1), stating clearly that a drug cannot be a device, was also added in 1938 (S. 5, 75th Cong., 3d Sess., H.R.Rep. No. 2139).
29
The historical expansion of the definition of drug, and the creation of a parallel concept of devices, clearly show, we think, that Congress fully intended that the Act's coverage be as broad as its literal language indicates—and equally clearly, broader than any strict medical definition might otherwise allow. Strong indications from legislative history that Congress intended the broad coverage the District Court thought 'ridiculous' should satisfy us that the lower courts erred in refusing to apply the Act's language as written. But we are all the more convinced that we must give effect to congressional intent in view of the well-accepted principle that remedial legislation such as the Food, Drug, and Cosmetic Act is to be given a liberal construction consistent with the Act's overriding purpose to protect the public health, and specifically, § 507's purpose to ensure that antibiotic products marketed serve the public with 'efficacy' and 'safety.' Cf. United States v. Sullivan, 332 U.S. 689, 693—695, 68 S.Ct. 331, 334—335, 92 L.Ed. 297 (1948); United States v. Dotterweich, 320 U.S. 277, 283—284, 64 S.Ct. 134, 137—138, 88 L.Ed. 48 (1943).
IV.
30
Respondent's alternative contention, that even if its product does fall within the purview of the Act, it is plainly a 'device' and therefore by definition necessarily not a 'drug,' must also be rejected, we believe, in light of the foregoing analysis. At the outset, it must be conceded that the language of the statute is of little assistance in determining precisely what differentiates a 'drug' from a 'device': to the extent that both are intended for use in the treatment, mitigation and cure of disease, the former is an 'article' and the latter includes 'instruments,' 'apparatus,' and 'contrivances.' Despite the obvious areas of overlap in definition, we are not entirely without guidance in determining the propriety of the Secretary's decision below, given the overall goals of the Act and its legislative history.
31
More specifically, as we have previously held in an analogous situation where the statute's language seemed insufficiently precise, the 'natural way' to draw the line 'is in light of the statutory purpose' (SEC v. Ralston Purina Co., 346 U.S. 119, 124 125, 73 S.Ct. 981, 984—985, 97 L.Ed. 1494 (1953)).18 Since the patient will tend to derive less benefit and perhaps some harm from a particular antibiotic if, though the drug itself was properly batch-tested, it was not the proper antibiotic to use, it was entirely reasonable for the Secretary to determine that the discs, like the antibiotics they serve, are drugs and similarly subject to pre-clearance certification under § 507. An opposite conclusion might undercut the value of testing the antibiotics themselves, for such testing would be a useless exercise if the wrong drug were ultimately administered, even partially as the result of an unreliable disc.
32
Furthermore, the legislative history, read in light of the statute's remedial purpose, directs us to read the classification 'drug' broadly, and to confine the device exception as nearly as is possible to the types of items Congress suggested in the debates,19 such as electric belts, quack diagnostic scales, and therapeutic lamps, as well as bathroom weight scales, shoulder braces, air conditioning units, and crutches. In upholding the Secretary's determination here, without deciding the precise contours of the 'device' classification, we need only point out that the exception was created primarily for the purpose of avoiding the semantic incongruity of classifying as drugs (1) certain quack contraptions and (2) basic aids used in the routine operation of a hospital—items characterized more by their purely mechanical nature than by the fact that they are composed of complex chemical compounds or biological substances. Finally, we are supported in the decision to uphold the FDA's determination that the sensitivity discs fall under the coverage of the Act and specifically under the drug provision thereof by the knowledge that the classification of these discs as drugs may not be as contrary to common medical usage as the District Court and respondent would have us believe.20
33
In upholding the Secretary's construction of the Act, we are not unmindful of our warning that '(i)n our anxiety to effectuate the congressional purpose of protecting the public, we must take care not to exend the scope of the statute beyond the point where Congress indicated it would stop.' 62 Cases of Jam v. United States, 340 U.S. 593, 600, 71 S.Ct. 515, 520, 95 L.Ed. 566 (1951). Our holding here simply involves an obvious corollary to that principle, that we must take care not to narrow the coverage of a statute short of the point where Congress indicated it should extend.
34
Reversed.
35
Mr. Justice DOUGLAS, being of the view that an antibiotic sensitivity disc used by physicians to aid them in determining what antibiotic drug, if any, to give to a patient, is a 'device' as defined in § 201(h)* of the Act, not a 'drug' as defined in § 201(g), would affirm the judgment.
1
See generally L. Goodman & A. Gilman, The Pharmacological Basis of Therapeutics (3d ed., 1965).
2
See H.R.Rep. No. 702, 79th Cong., 1st Sess. (1945). Section 507, as set forth in 21 U.S.C. § 357, reads as follows:
'(a) The Secretary of Health, Education and Welfare, pursuant to regulations promulgated by him, shall provide for the certification of batches of drugs composed wholly or partly of any kind of penicillin, streptomycin, chlortetracycline, chloramphenicol, bacitracin, or any other antibiotic drug, or any derivative thereof. A batch of any such drug shall be certified if such drug has such characteristics of identity and such batch has such characteristics of strength, quality, and purity, as the Secretary prescribes in such regulations as necessary to adequately insure safety and efficacy of use, but shall not otherwise be certified. Prior to the effective date of such regulations the Secretary, in lieu of certification, shall issue a release for any batch which, in his judgment, may be released without risk as to the safety and efficacy of its use. Such release shall prescribe the date of its expiration and other conditions under which it shall cease to be effective as to such batch and as to portions thereof. For purposes of this section and of section 352(l) of this title, the term 'antibiotic drug' means any drug intended for use by man containing any quantity of any chemical substance which is produced by a microorganism and which has the capacity to inhibit or destroy microorganisms in dilute solution (including the chemically synthesized equivalent of any such substance).
'(b) Regulations providing for such certifications shall contain such provisions as are necessary to carry out the purposes of this section, including provisions prescribing (1) standards of identity and of strength, quality, and purity; (2) tests and methods of assay to determine compliance with such standards; (3) effective periods for certificates, and other conditions under which they shall cease to be effective as to certified batches and as to portions thereof; (4) administration and procedure; and (5) such fees, specified in such regulations, as are necessary to provide, equip, and maintain an adequate certification service. Such regulations shall prescribe only such tests and methods of assay as will provide for certification or rejection within the shortest time consistent with the purposes of this section.'
3
See generally Bauer, Kirby, Sherris, & Turck, Antibiotic Susceptibility Testing by a Standardized Single Disk Method, 45 American Journal of Clinical Pathology 493 (1966); Petersdorf & Sherris, Methods and Significance of In Vitro Testing of Bacterial Sensitivity to Drugs, 39 American Journal of Medicine 766 (1965); Gould, The Laboratory Control of Antibiotic Therapy, 3 Chemotherapia 477 (1961); Second Report of the Expert Committee on Antibiotics, Standardization of Methods for Conducting Microbis Sensitivity Tests, World Health Organization Technical Report Series No. 210, pp. 12—17 (1961).
4
Section 502, as set forth in 21 U.S.C. § 352, reads, in part, as follows:
'A drug or device shall be deemed to be misbranded—
'(l) If it is, or purports to be, or is represented as a drug composed wholly or partly of any kind of penicillin, streptomycin, chlortetracycline, chloramphenicol, bacitracin, or any other antibiotic drug, or any derivative thereof, unless (1) it is from a batch with respect to which a certificate or release has been issued pursuant to section 357 of this title, and (2) such certificate or release is in effect with respect to such drug: Provided, That this subsection shall not apply to any drug or class of drugs exempted by regulations promulgated under section 357(c) or (d) of this title.'
5
Respondent's witnesses established that sensitivity discs are not listed in the United States Pharmacopoeia or the National Formulary, and thus do not come within that portion of the definition of 'drug' in § 201(g)(1)(A).
6
The District Court's opinion is unreported; its pertinent findings of fact and conclusions of law are quoted in the opinion of the Court of Appeals, 392 F.2d 21, 22—23 (1968).
7
The earliest versions were S. 1944, 73d Cong., 1st Sess. (1933), and S. 2000, 73d Cong., 2d Sess. (1934). S. 2800 was succeeded by S. 5, 74th Cong., 1st Sess. (1935). S. 5 died in the House, but was succeeded by S. 5, 75th Cong., 1st Sess. (1937), and was the bill eventually enacted into law, as supplemented by S. 3073, 75th Cong., 2d Sess. (1937), and H.R. 9341, 75th Cong., 3d Sess. (1938).
Most of the Act's legislative history is reprinted in C. Dunn, Federal Food, Drug, and Cosmetic Act (1938).
8
See Dunn, supra, n. 7, at 214, 237, 239.
9
Id., at 286—296.
10
Id., at 348—385, 429—476.
11
Id., at 429 (remarks of Senator Clark).
12
Id., at 369. Senator Bailey of North Carolina remarked:
'I do not think the President of the United States would tolerate for a moment a piece of legislation that described crutches as 'drugs' and advertising as 'adulteration,' carrying the English language and the law very far.'
13
The substitute committee report noted only that: 'A definition of devices is provided paralleling that of drugs. This expansion of the definition of the term 'drug' and the inclusion of devices are essential if the consumer is to be protected against a multiplicity of abuses not subject to the present law.' (S.Rep.No.646, 74th Cong., 1st Sess. (1935).) See Dunn, supra, n. 7, at 477.
14
Id., at 495—496.
15
Id., at 571.
16
Id., at 1235, 1247.
17
This was the 'Elixir-Sulfanilamide' tragedy of September-October, 1937, where nearly 100 persons died as the result of consuming an untested drug. See Report of the Secretary o Agriculture on Deaths Due to Elixir Sulfanilamide-Massengill (submitted in response to S. Res. 194 of November 16, 1937), in Dunn, supra, n. 7, at 1316—1327.
18
Cf. Cawley v. United States, 272 F.2d 443, 445 (C.A.2d Cir. 1959): '(U) nless they explicitly forbid it, the purpose of a statutory provision is the best test of the meaning of the words chosen.'
19
Cf. AMP Inc. v. Gardner, 389 F.2d 825, 830 (C.A.2d Cir.), cert. denied sub nom., AMP Inc. v. Cohen, 393 U.S. 825, 89 S.Ct. 86, 21 L.Ed.2d 95 (1968), petition for rehearing pending.
20
See W. Dorland's Illustrated Medical Dictionary 449 (24th ed., 1965), where 'drug' is defined as: 'Any chemical compound or any non-infections biological substance, not used for its mechanical properties, which may be administered to or used on or for patients, either human or animal, as an aid in the diagnosis, treatment or prevention of disease or other abnormal condition, for the relief of pain or suffering, or to control or improve any physiological or pathological condition.'
*
'The term 'device' * * * means instruments, apparatus, and contrivances * * * for use in the diagnosis * * * of disease in man * * *.' It would indeed be difficult to write a clearer description of an antibiotic sensitivity disc.
| 78
|
394 U.S. 802
89 S.Ct. 1404
22 L.Ed.2d 739
Sam L. McDONALD et al., Appellants,v.BOARD OF ELECTION COMMISSIONERS OF CHICAGO.
No. 68.
Argued Nov. 19, 1968.
Decided April 28, 1969.
Stanley A. Bass, Chicago, Ill., for appellants.
Stanley T. Kusper, Jr., Chicago, Ill., for appellees.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
Appellants and the class they represent are unsentenced inmates awaiting trial in the Cook County jail who, though they are qualified Cook County electors, cannot readily appear at the polls either because they are charged with nonbailable offenses or because they have been unable to post the bail imposed by the courts of Illinois.1 They cannot obtain absentee ballots, for they constitute one of a number of classes for whom no provision for absentee voting has yet been made by the Illinois Legislature. The constitutionality of Illinois' failure to include them with those who are entitled to vote absentee is the primary issue in this direct appeal from a three-judge court.
2
The specific provisions attack d here, Ill.Rev.Stat., c. 46, §§ 19—1 to 19—3, have made absentee balloting available to four classes of persons: (1) those who are absent from the county of their residence for any reason whatever; (2) those who are 'physically incapacitated,' so long as they present an affidavit to that effect from a licensed physician; (3) those whose observance of a religious holiday precludes attendance at the polls; and (4) those who are serving as poll watchers in precincts other than their own on election day.2 The availability of the absentee ballot in Illinois has been extended to its present coverage by various amendments over the last 50 years. Prior to 1917, Illinois had no provision for absentee voting, requiring personal attendance at the polls, and in that year the legislature made absentee voting available to those who would be absent from the county on business or other duties. In 1944 absentee voting was made available to all those absent from the county for any reason. The provisions for those remaining in the county but unable to appear at the polls because of physical incapacity, religious holidays, or election duties were added in 1955, 1961, and 1967, respectively.
3
On March 29, 1967, appellants made timely3 application for absentee ballots for the April 4 primary because of their physical inability to appear at the polls on that election day. The applications were accompanied by an affidavit from the warden of the Cook County jail attesting to that inability. These applications were refused by the appellee Board of Election Commissioners on the ground that appellants were not 'physically incapacitated' within the meaning of §§ 19—1 and 19—2 of the Illinois Election Code. On the same day appellants filed a complaint, alleging that they were unconstitutionally excluded from the coverage of the absentee provisions. They requested that a three-judge court be convened to rule the provisions violative of equal protection insofar as the provisions required denial of an absentee ballot to one judicially incapacitated while making it available at the same time to one medically incapacitated; and they sought an injunction to restrain appellee Board 'from refusing to grant (appellants') timely applications for absentee ballots.' The District Court granted appellants' request for temporary relief on March 30, before the three-judge court was convened, and ordered the Board to issue ballots to qualified Illinois electors awaiting trial in the Cook County jail.4 Both parties then filed motions for summary judgment, the Board asserting that to honor the applications would subject its members to criminal liability under Illinois law.5
4
On December 11, the District Court, 277 F.Supp. 14 granted summary judgment for the Board, holding that the Illinois provisions extending absentee voting privileges to those physically incapacitated because of medical reasons from appearing at the polls constituted a proper and reasonable legislative classification not violative of equal protection. The case was brought here by appellants on direct appeal, 390 U.S. 1038, 88 S.Ct. 1645, 20 L.Ed.2d 300 (1968), and we affirm.
5
Appellants argue that Illinois' absentee ballot provisions violate the Equal Protection Clause of the Fourteenth Amendment for two reasons. First, they contend that since the distinction between those medically incapacitated and those 'judicially' incapacitated bears no reasonable relationship to any legitimate state objective, the classifications are arbitrary and therefore in violation of equal protection. Secondly, they argue that since pretrial detainees imprisoned in other States or in counties within the State other than those of their own residence can vote absentee as Illinois citizens absent from the county for any reason, it is clearly arbitrary to deny the absentee ballot to other unsentenced inmates simply because they happen to be incarcerated within their own resident counties. Underlying appellants' contentions is the assertion that since voting rights are involved, there is a narrower scope for the operation of the presumption of constitutionality than would ordinarily be the case with state legislation challenged in this Court. See Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886).
6
Before confronting appellants' challenge to Illinois' absentee provisions, we must determine initially how stringent a standard to use in evaluating the classifications made thereunder and whether the distinctions must be justified by a compelling state interest; for appellants assert that we are dealing generally with an alleged infringement of a basic, fundamental right. See, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). Thus, while the 'States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised,' Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072 (1959), we have held that once the States grant the franchise, they must not do so in a discriminatory manner. See Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). More importantly, however, we have held that because of the overriding importance of voting rights, classifications 'which might invade or restrain them must be closely scrutinized and carefully confined' where those rights are asserted under the Equal Protection Clause; Harper v. Virginia Board of Elections, supra, 383 U.S. at 670, 86 S.Ct. at 1083. And a careful examination on our part is especially warranted where lines are drawn on the basis of wealth or race, Harper v. Virginia State Board of Elections, supra, two factors which would independently render a classification highly suspect and thereby demand a more exacting judicial scrutiny. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288, 13 L.Ed.2d 222 (1964).
7
Such an exacting approach is not necessary here, however, for two readily apparent reasons. First, the distinctions made by Illinois' absentee provisions are not drawn on the basis of wealth or race. Secondly, there is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants' ability to exercise the fundamental right to vote. It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots. Despite appellants' claim to the contrary, the absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants the exercise of the franchise; nor, indeed, does Illinois' Election Code so operate as a whole, for the State's statutes specifically disenfranchise only those who have been convicted and sentenced, and not those similarly situated to appellants. Ill.Rev.Stat., c. 46, § 3—5 (1967). Faced as we are with a constitutional question, we cannot lightly assume, with nothing in the record to support such an assumption, that Illinois has in fact precluded appellants from voting.6 We are then left with the more traditional standards for evaluating appellants' equal protection claims.7 Though the wide leeway allowed the States by the Fourteenth Amendment to enact legislation that appears to affect similarly situated people differently, and the presumption of statutory validity that adheres thereto, admit of no settled formula, some basic guidelines have been firmly fixed. The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them. See McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947); Lindseley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911). With this much discretion, a legislature traditionally has been allowed to take reform 'one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,' Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955); and a legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked. See Ozan Lumber Co. v. Union County National Bank, 207 U.S. 251, 28 S.Ct. 89, 52 L.Ed. 195 (1907).
8
Since there is nothing to show that a judicially incapacitated, pretrial detainee is absolutely prohibited from exercising the franchise, it seems quite reasonable for Illinois' Legislature to treat differently the physically handicapped, who must, after all, present affidavits from their physicians attesting to an absolute inability to appear personally at the polls in order to qualify for an absentee ballot. Illinois could, of course, make voting easier for all concerned by extending absentee voting privileges to those in appellants' class. Its failure to do so, however, hardly seems arbitrary, particularly in view of the many other classes of Illinois citizens not covered by the absentee provisions, for whom voting may be extremely difficult, if not practically impossible.8
9
Similarly, the different treatment accorded unsentenced inmates incarcerated within and those incarcerated without their resident counties may reflect a legislative determination that without the protection of the voting booth, local officials might be too tempted to try to influence the local vote of in-county inmates. Such a temptation with its attendant risks to prison discipline would, of course, be much less urgent with prisoners incarcerated out of state or outside their resident counties. Constitutional safeguards are not thereby offended simply because some prisoners, as a result, find voting more convenient than appellants.
10
We are satisfied then that appellants' challenge to the allegedly unconstitutional incompleteness of Illinois' absentee voting provisions cannot be sustained Ironically, it is Illinois' willingness to go further than many States9 in extending the absentee voting privileges so as to include even those attending to election duties that has provided appellants with a basis for arguing that the provisions operate in an invidiously discriminatory fashion to deny them a more convenient method of exercising the franchise. Indeed, appellants' challenge seems to disclose not an arbitrary scheme or plan but, rather, the very opposite—a consistent and laudable state policy of adding, over a 50-year period, groups to the absentee coverage as their existence comes to the attention of the legislature. That Illinois has not gone still further, as perhaps it might, should not render void its remedial legislation, which need not, as we ave stated before, 'strike at all evils at the same time.' Semler v. Dental Examiners, 294 U.S. 608, 610, 55 S.Ct. 570, 571, 79 L.Ed. 1086 (1935).
11
Accordingly, the judgment of the District Court is affirmed.
12
Affirmed.
13
Mr. Justice HARLAN and Mr. Justice STEWART concur in the result.
1
At the time of bringing suit, appellant McDonald was being held without bail on a charge of murder; his subsequent trial resulted in a hung jury, and he then pleaded to a reduced charge of manslaughter, a bailable offense. Appellant Byrd, who was discharged after his robbery complaint was dismissed at his preliminary hearing, had been held because of his inability to post a $5,000 bond.
2
Section 19—1 of the Illinois Election Code identifies those persons who can apply for absentee ballots. Section 19—2 provides for the time and manner in which such application must be made, including the requirement that affidavits from a licensed attending physician or a 'Christian Science practitioner accompany applications from those physically incapacitated. Section 19—3 sets out the format of the applications and accompanying affidavits. In addition to their allegations that these provisions violate equal protection, appellants also sought below a ruling that appellee Board, in interpreting these laws, had misconstrued them not to include judicially incapacitated persons. Reading § 19 1 together with § 19—2, the District Court concluded that appellants were not included within the coverage of the provisions, and this statutory construction is not challenged here.
3
Appellants do not challenge the provisions setting out the time within which the applications must be made and thus concede that those persons incarcerated just prior to election day are not entitled to an absentee ballot.
4
The grant of temporary relief was based in part on an earlier suit brought by appellant McDonald in the District Court for such equitable relief as would allow him to vote in the February 28, 1967, primary an aldermanic election in Chicago. In ordering the Board to furnish appellant with an absentee ballot for that election, the one-judge court noted that Illinois statutes specifically disfranchised only those who were convicted and sentenced (Ill.Rev.Stat., c. 46, § 3—5 (1967)), that persons awaiting trial in jails in counties other than their resident counties could qualify for an absentee ballot as one 'absent from the county in which he is a qualified elector,' and that the Illinois Legislature did not intend to exclude individuals in appellant's circumstances from among those 'physically incapacitated.' McDonald v. Board of Election Commissioners of Chicago, 265 F.Supp. 816 (D.C. 1967).
5
Ill.Rev.Stat., c. 46, §§ 29A—1, 29A—5 (1967), provide for penalties of up to five years' imprisonment, or a fine not to exceed $5,000, or both, for violating the Illinois Election Code. Although there are no controlling Illinois cases, neither party contends here that the absentee ballot provisions are permissive only, allowing the grant of absentee ballots to any one not specified in the statute.
6
Appellants agree that the record is barren of any indication that the State might not, for instance, possibly furnish the jails with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates, or entertain motions for temporary reductions in bail to allow some inmates to get to the polls on their own.
7
Appellants make two additional claims here, which were asserted below and which are unrelated to their argument based on the statute and its alleged denial of equal protection. They llege first that, wholly apart from the absentee provisions, they are constitutionally entitled to cast their ballots by mail in order to avoid an impermissible consequence of pretrial detention. They argue that of all voters they are the only class forcibly restrained by the State from attending the polls in person; and they contend that they should get an absentee ballot only because Illinois has set up such a system, obviating any necessity to march them to the polls under armed guard—a procedure they concede would be disruptive and expensive. Appellants claim secondly that to the extent that they cannot afford the posted bail, they are being denied their right to vote solely because of their indigency, contrary to Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). Since there is nothing in the record to show that appellants are in fact absolutely prohibited from voting by the State, see n. 6, supra, we need not reach these two contentions.
8
A number of identifiable groups are not yet entitled to vote absentee under Illinois legislation: those serving on juries within the county of their residence, mothers with children who cannot afford a baby sitter, persons attending ill relations within their own county, servicemen stationed in their own counties, doctors who are often called on to do emergency work, and businessmen called away from their precincts on business. On the other hand, any person in the above groups, including an unsentenced prisoner, presumably can get an absentee ballot if he is outside his resident county, ill, or observing a religious holiday.
9
Only three other States make provision for election duties, and 14 others for religious observance. Several States have gone further than Illinois, Wisconsin making provision for jury duty, Wis.Stat. § 6.85 (1967), and Alaska, California, and Oregon making provision for inaccessibility of polls, Alaska Stat. § 15.20.010 (1962), Cal.Elections Code § 14620 (1961), Ore.Rev.Stat. §§ 253.010(1)(a), 253.510 (1965). Maine appears to be the only State to allow the absentee ballot for absence from the polls for any 'sufficient' reason, Me.Rev.Stat.Ann., Tit. 21, §§ 1251, 1306 (1964).
On the other hand, all States make provisions for the Armed Forces, either expressly or impliedly. All but five States have extended the ballot to the physically disabled, and only six require absence from the State, rather than county or precinct, as a condition. See appellants' survey of state laws, submitted after argument.
| 12
|
394 U.S. 836
89 S.Ct. 1614
23 L.Ed.2d 22
UNITED STATES of America, plaintiff,v.State of LOUISIANA et al.
No. 9, Original.
Supreme Court of the United States
May 5, 1969
SUPPLEMENTAL DECREE
PER CURIAM.
1
For the purpose of giving effect to the conclusions of this Court as stated in its opinions announced December 4, 1967, and March 3, 1969, supplementing the decree entered herein on December 12, 1960, it is ordered, adjudged and decreed as follows:
2
1. As against the State of Texas, the United States is entitled to——
3
(a) All the lands, minerals and other natural resources underlying the Gulf of Mexico that are more than three marine leagues gulfward from the present or future coastline as referred to in § 2(c) of the Submerged Lands Act, 67 Stat. 29, 43 U.S.C. § 1301(c); and
4
(b) All the lands, minerals and other natural resources underlying the Gulf of Mexico, more than three geographical miles gulfward from the present or future coastline as referred to in § 2(c) of the Submerged Lands Act, 43 U.S.C. § 1301(c), that are gulfward of the following line:
5
Beginning at a point on the international boundary with Mexico (wherever that boundary may be located), three marine leagues gulfward from the point x=2,447,033, y=105,994 (Texas Plane Coordinate System, South Zone), latitude 25°57'05.90" N., longitude 97°08'22.85" W., and proceeding thence northwardly and eastwardly as follows:
South Zone
Course Latitude Longitude
x y
6
1. By arc centered at 2,447,033 105,994 25x57'05.90" 97x08'22.85"
7
to 2,498,223 125,226 26x00'10.59" 96x58'59.59"
8
2. By straignt line to 2,498,068 126,760 26x00'25.80" 96x59'01.09"
South Zone
Course Latitude Longitude
x y
9
3. By arc centered at 2,443,661 121,256 25x59'37.4" 97x08'58.0"
10
to 2,497,383 131,474 26x01'12.56" 96x59'07.98"
11
4. By straight line to 2,497,076 135,704 26x01'54.49" 96x59'10.78"
12
5. By straight line to 2,497,119 137,947 26x02'16.70" 96x59'10.0%
13
6. By straight line to 2,497,240 139,652 26x02'33.58" 96x59'08.47"
14
7. By arc centered at 2,442,693 143,530 26x03'18.1" 97x09'06.0"
15
to 2,496,942 150,421 26x04'20.26" 96x59'10.32"
16
8. By straight line to 2,496,723 152,145 26x04'37.36" 96x59'12.50"
17
9. By arc centered at 2,442,474 145,254 26x03'35.2" 97x00'08.2"
18
to 2,496,370 154,510 26x05'00.83" 96x59'16.06"
19
10. By straight line to 2,495,553 159,267 26x05'48.04" 96x59'24.39"
20
11. By arc centered at 2,441,657 150,011 26x04'22.4" 97x09'16.6"
21
to 2,495,161 161,316 26x06'08.37" 96x59'28.42"
22
12. By straight line to 2,494,875 162,668 26x06'21.79" 96x59'31.38"
23
13. By straight line to 2,494,746 163,636 26x06'31.39" 96x59'32.67"
24
14. By straight line to 2,492,451 182,957 26x09'43.01" 96x59'44.32"
25
15. By arc centered at 2,438,148 176,509 26x08'45.2" 97x09'52.0"
26
to 2,492,330 183,907 26x09'52.44" 96x59'56.52"
27
16. By straight line to 2,490,612 196,490 26x11'57.26" 97x00'13.74"
28
17. By arc centered at 2,436,430 189,092 26x10'50.0" 97x10'09.4"
29
to 2,490,574 196,764 26x11'59.99" 97x00'14.12"
30
18. By straitht line to 2,488,714 209,890 26x14'10.20" 97x00'32.84"
31
19. By arc centered at 2,434,570 202,218 26x13'00.2" 97x10'28.3"
32
to 2,488,423 211,722 26x14'28.37" 97x00'35.80"
33
20. By straight line to 2,486,399 223,191 26x16'22.20" 97x00'56.54"
34
21. By arc centered at 2,432,546 213,687 26x14'54.0" 97x10'49.2"
35
to 2,486,322 223,615 26x16'26.40" 97x00'57.33"
36
22. B straight line to 2,484,084 235,738 26x18'26.73" 97x01'20.36"
37
23. By arc centered at 2,430,308 225,810 26x16'54.3" 97x11'12.4"
38
to 2,483,535 238,353 26x18'52.69" 97x01'26.05"
39
24. By straight line to 2,478,947 257,823 26x22'06.05" 97x02'13.99"
40
25. By arc centered at 2,425,720 245,280 26x20'07.6" 97x12'00.6"
41
to 2,478,775 258,531 26x22'13.09" 97x02'15.79"
42
26. By straight line to 2,475,739 270,687 26x24'13.83" 97x02'46.63"
43
27. By arc centered at 2,422,684 257,436 26x22'08.3" 97x12'32.6"
44
to 2,475,708 270,811 26x24'15.06" 97x02'47.96"
45
28. By straight line to 2,472,116 285,051 26x26'36.50" 97x03'25.67"
46
29. By arc centered at 2,419,092 271,676 26x24'29.7" 97x13'10.5"
47
to 2,471,287 287,990 26x27'05.71" 97x03'34.42"
48
30. By straight line to 2,466,585 303,033 26x29'35.22" 97x04'24.28"
49
31. By straight line to 2,461,419 319,706 26x32'20.92" 97x05'19.08"
50
32. By arc centered at 2,409,184 303,522 26x29'46.1" 97x14'56.0"
51
to 2,461,209 320,369 26x32'27.52" 97x05'21.31"
52
33. By straight line to 2,450,926 352,124 26x37'43.15" 97x07'10.71"
53
34. By arc centered at 2,398,901 335,277 26x35'01.6" 97x16'45.8"
54
to 2,449,710 355,498 26x38'16.70" 97x07'23.71"
55
35. By straight line to 2,447,122 362,000 26x39'21.38" 97x07'51.45"
56
36. By straight line to 2,445,524 366,527 26x40'06.38" 97x08'08.52"
57
37. By straight line to 2,442,108 376,994 26x41'50.42" 97x08'44.95"
58
38. By straight line to 2,437,787 392,060 26x44'20.08" 97x09'30.83"
59
39. By straight line to 2,437,079 394,740 26x44'46.70" 97x09'38.32"
60
40. By arc centered at 2,384,205 380,784 26x42'33.7" 97x19'23.0"
61
to 2,435,953 398,463 26x45'23.70" 97x09'50.30"
South Zone
Course Latitude Longitude
x y
62
41. By straight line to 2,435,511 399,759 26x45'36.57" 97x09'55.03"
63
42. By straight line to 2,432,474 410,567 26x47'23.94" 97x10'27.28"
64
43. By straight line to 2,427,617 431,540 26x50'52.15" 97x11"18.47"
65
44. By straight line to 2,424,278 447,618 26x53'31.73" 97x11'54.51"
66
45. By straight line to 2,422,538 459,109 26x55'25.72" 97x12'11.42"
67
46. By arc centered at 2,368,469 450,923 26x54'09.8" 97x22'09.6"
68
to 2,422,177 461,213 26x55'46.59" 97x12'15.17"
69
47. By straight line to 2,421,519 468,580 26x56'11.43" 97x12'22.16"
70
48. By arc centered at 2,367,051 463,714 26x56'16.6" 97x22'25.0"
71
to 2,421,383 469,914 26x57'12.85" 97x12'22.95"
72
49. By straight line to 2,420,872 474,392 26x57'57.25" 97x12'28.09"
73
50. By arc centered at 2,366,540 468,192 26x57'01.0" 97x22'29.2"
74
to 2,420,613 476,347 26x58'16.64" 97x12'30.73"
75
51. By straight line to 2,419,889 487,832 27x00'10.46" 97x12'37.44"
76
52. By straight line to 2,419,593 493,822 27x01'09.82" 97x12'40.04"
77
53. By straight line to 2,419,571 498,661 27x01'57.74" 97x12'39.73"
78
54. By arc centered at 2,364,887 498,418 27x02'00.5" 97x22'44.5"
79
to 2,419,564 499,351 27x02'04.57" 97x12'39.74"
80
55. By straight line to 2,419,442 506,501 27x03'15.40" 97x12'40.28"
81
56. By straight line to 2,419,750 514,047 27x04'30.10" 97x12'36.02"
82
57. By straight line to 2,419,951 517,831 27x05'07.56" 97x12'33.36"
83
58. By straight line to 2,420,165 521,009 27x05'39.01" 97x12'30.64"
84
59. By arc centered at 2,365,603 524,676 27x06'20.5" 97x22'34.0"
85
to 2,420,260 522,916 27x05'57.88" 97x12'29.38"
86
60. By straight line to 2,420,367 526,247 27x06'30.86" 97x12'27.81"
87
61. By straight line to 2,421,336 538,406 27x08'31.18" 97x12'15.70"
88
62. By arc centered at 2,366,824 542,751 27x09'19.4" 97x22'18.7"
89
to 2,421,429 539,789 27x08'44.87" 97x12'14.52"
90
63. By straight line to 2,421,449 540,167 27x08'48.61" 97x12'14.25"
91
64. By straight line to 2,421,591 540,986 27x08'56.71" 97x12'12.59"
92
65. By arc centered at 2,367,705 550,301 27x10'34.1" 97x22'08.2"
93
to 2,422,109 544,769 27x09'34.13" 97x12'06.42"
94
66. By straight line to 2,422,522 548,828 27x10'14.28" 97x12'01.39"
95
67. By straight line to 2,422,909 550,953 27x10'35.28" 97x11'56.86"
96
68. By arc centered at 2,369,110 560,755 27x12'17.5" 97x21'51.6"
97
to 2,423,074 551,906 27x10'44.71" 97x11'54.92"
98
69. By straight line to 2,423,600 555,114 27x11'16.42" 97x11'48.73"
99
70. By straight line to 2,425,604 565,501 27x12'59.09" 97x11'25.35"
100
71. By straight line to 2,425,955 567,201 27x13'15.88" 97x11'21.25"
101
72. By straight line to 2,430,188 585,397 27x16'15.65" 97x10'32.25"
102
73. By straight line to 2,435,271 602,898 27x19'08.44" 97x09'33.87"
103
74. By straight line to 2,437,860 611,265 27x20'31.02" 97x09'04.17"
104
75. By straight line to 2,440,773 619,882 27x21'56.05" 97x08'30.84"
105
76. By straight line to 2,443,622 627,687 27x23'13.04" 97x07'48.31"
106
77. By straight line to 2,449,412 641,292 27x25'27.14" 97x06'52.41"
107
78. By straight line to 2,455,945 656,139 27x27'53.45" 97x05'38.08"
108
79. By straight line to 2,459,158 662,847 27x28'59.52" 96x05'01.59"
109
80. By straight line to 2,400,858 666,346 27x29'33.99" 97x04'42.27"
110
81. By arc centered at 2,419,058 701,605 27x35'27.6" 97x12'22.4"
111
to 2,468,926 679,163 27x31'40.01" 97x03'11.05"
112
82. By straight line to 2,473,113 688,467 27x33'11.66" 97x02'23.35"
113
83. By arc centered at 2,423,245 710,909 27x36'59.3" 97x11'34.8"
114
to 2,477,118 701,518 27x35'20.43" 97x01'37.17"
South Zone
Course Latitude Longitude
x y
115
84. By straight line to 2,477,226 701,748 27x35'22.70" 97x01'35.93"
116
85. By straight line 2,484,830 715,453 27x37'37.53" 97x00'09.62"
117
86. By straight line to 2,492,830 728,654 27x39'47.30" 96x58'38.91"
118
87. By straight line to 2,503,178 744,730 27x42'25.23" 96x56'41.63"
119
88. By straight line to 2,511,491 757,057 27x44'26.26" 96x55'07.44"
120
89. By straight line to 2,515,272 762,240 27x45'17.11" 96x54'24.63"
121
90. By arc centered at 2,471,092 794,467 27x50'41.5" 97x02'32.2"
122
to 2,522,680 776,327 27x47'35.66" 96x53'00.17"
123
91. By straight line to 2,523,498 778,651 27x47'58.57" 96x52'50.74"
124
92. By straight line to 2,523,986 779,631 27x48'08.21" 96x52'45.16"
125
93. By straight line to 2,526,031 782,992 27x48'41.29" 96x52'22.00"
126
94. By straight line to 2,535,804 796,133 ........... ............
South Zone
Course Latitude Longitude
x y
127
(Repeating two courses)
128
93. By straight line to 2,687,786 -1,695 ........................
129
94. By straight line to 2,697,492 11,498 27x50'50.13" 96x50'31.25"
130
95. By straight line to 2,705,230 21,472 27x52'27.43" 96x49'03.01"
131
96. By straight line to 2,710,958 28,002 27x53'31.00" 96x47'57.84"
132
97. By arc centered at 2,669,848 64,063 27x59'35.4" 96x55'28.7"
133
to 2,712,719 30,115 27x53'51.59" 96x47'37.77"
134
98. By straight line to 2,714,852 32,807 27x54'17.84" 96x47'13.45"
135
99. By straight line to 2,720,377 38,910 27x55'17.21" 96x46'10.59"
136
100. By straight line to 2,724,705 43,579 27x56'02.60" 96x45'21.36"
137
101 By straight line to 2,727,377 46,418 27x56'30.20" 96x44'50.97"
138
102. By arc centered at 2,691,713 87,873 28x03'27.2" 96x51'20.0"
139
to 2,733,517 52,619 27x57'30.40" 96x43'41.20"
140
103. By straight line to 2,745,287 64,045 27x59'21.23" 96x41'27.48"
141
104. By straight line to 2,759,114 76,842 28x01'25.17" 96x38'50.43"
142
105. By straight line to 2,760,917 78,432 28x01'40.55" 96x38'29.96"
143
106. By straight line to 2,775,278 90,137 28x03'33.53" 96x35'47.09"
144
107. By straight line to 2,780,827 94,573 28x04'16.30" 96x34'44.15"
145
108. By arc centered at 2,746,685 137,290 28x11'26.0" 96x40'55.7"
146
to 2,782,550 96,009 28x04'30.16" 96x34'24.59"
147
109. By straight line to 2,783,852 97,140 28x04'41.08" 96x35'09.80"
148
110. By straight line to 2,791,476 102,789 28x05'35.43" 96x32'43.40"
149
111. By straight line to 2,800,074 109,137 28x06'36.47" 96x31'05.92"
150
112. By straight line to 2,807,482 114,230 28x07'25.32" 96x29'42.01"
151
113. By straight line to 2,814,202 118,283 28x08'04.00" 96x28'26.00"
152
114. By arc centered at 2,785,963 165,112 28x15'53.5" 96x33'30.4"
153
to 2,815,384 119,016 28x08'11.01" 96x28'12.63"
154
115. By straight line to 2,824,561 124,874 28x09'07.01" 96x26'28.73"
155
116. By straight line to 2,831,319 128,676 28x09'43.18" 96x25'12.32"
156
117. By straight line to 2,836,670 131,276 28x10'07.75" 96x24'11.92"
157
118. By straight line to 2,839,197 132,254 28x10'16.87" 96x23'43.45"
158
119. By arc centered at 2,819,460 183,253 28x18'46.0" 96x27'11.5"
159
to 2,840,053 132,594 28x10'20.04" 96x23'33.80"
160
120. By straight line to 2,844,564 134,428 28x10'37.20" 96x22'42.95"
161
121. By straight line to 2,846,278 135,087 28x10'43.34" 96x22'23.64"
South Zone
Course Latitude Longitude
x y
162
122. By arc centered at 2,833,368 188,226 28x19'32.2" 96x24'34.7"
163
to 2,864,032 142,947 28x11'57.16" 96x19'03.31"
164
123. By straight line to 2,865,389 143,866 28x12'05.95" 96x18'47.92"
165
124. By arc centered at 2,834,725 189,145 28x19'41.0" 96x24'19.3"
166
to 2,879,517 157,775 28x14'20.38" 96x16'06.44"
167
125. By straight line to 2,880,106 158,616 28x14'28.57" 96x15'59.64"
168
126. By arc centered at 2,835,314 189,986 28x19'49.2" 96x24'12.5"
169
to 2,883,104 163,406 28x15'15.29" 96x15'24.87"
170
127. By straight line 2,885,158 167,099 28x15'51.36" 96x15'00.94"
171
128. By arc centered at 2,837,368 193,679 28x20'25.3" 96x23'48.6"
172
to 2,886,819 170,332 28x16'22.99" 96x14'41.53"
173
129. By straight line to 2,890,783 177,022 28x17'28.27" 96x13'55.43"
174
130. By arc centered at 2,843,740 204,903 28x22'15.0" 96x22'34.5"
175
to 2,893,218 181,614 28x18'13.16" 96x13'26.99"
176
131. By straight line to 2,899,305 186,971 28x19'04.75" 96x12'17.48"
177
131a. By straight line to 2,899,402 187,052 28x19'05.53" 96x12'16.38"
178
132. By straight line to 2,908,291 193,515 28x20'07.38" 96x10'35.21"
179
133. By straight line to 2,912,716 196,355 28x20'34.44" 96x09'44.93"
180
134. By straight line to 2,927,833 205,781 28x22'04.08" 96x06'53.21"
181
135. By straight line to 2,936,888 211,198 28x22'55.48" 96x95'19.38"
182
136. By straight line to 2,950,886 219,194 28x24'11.14" 96x92'31.45"
183
137. By straight line to 2,961,311 224,721 28x25'03.23" 96x00'33.18"
184
138. By straight line to 2,978,776 233,372 28x26'24.39" 95x57'15.13"
185
139. By straight line to 2,987,582 237,367 28x27'01.65" 95x55'35.35"
186
140. By arc centered at 2,964,991 287,167 28x35'20.4" 95x59'34.0"
187
to 2,988,795 237,935 28x27'06.96" 95x55'21.60"
188
141. By straight line to 2,998,740 242,743 28x27'51.95" 95x53'28.80
189
142. By straight line to 3,002,406 244,493 28x28'08.31" 95x52'47.22"
190
143. By straight line to 3,005,833 246,002 28x28'22.33" 95x52'08.38"
191
144. By arc centered at 2,983,797 296,051 28x36'43.5" 95x56'00.5"
192
to 3,007,526 246,783 28x28'29.61" 95x51'49.18"
193
145. By straight line to 3,026,416 255,881 28x29'54.60" 95x48'14.81"
194
146. By arc centered at 3,002,687 305,149 28x38'08.6" 95x52'25.9"
195
to 3,028,326 256,847 28x30'03.64" 95x47'53.12"
196
147. By straight line to 3,047,657 267,108 28x31'39.91" 95x44'13.33"
197
148. By arc centered at 3,022,018 315,410 28x39'45.0" 95x48'45.9"
198
to 3,048,496 267,563 28x31'44.18" 95x44'03.79"
199
149. By straight line to 3,059,100 273,431 28x32'39.31" 95x42'03.10"
200
150. By arc centered at 3,032,622 321,278 28x40'40.2" 95x46'45.1"
201
to 3,060,936 274,494 28x32'49.32" 95x41'42.19"
202
151. By straight line to 3,078,889 285,359 28x34'31.79" 95x38'17.46"
203
152. By arc centered at 3,050,575 332,143 28x42'22.8" 95x43'20.2"
204
to 3,080,687 286,496 28x34'42.53" 95x37'56.93"
205
153. By straight line to 3,084,317 288,890 28x35'05.20" 95x37'15.45"
206
154. By straight line to 3,092,292 293,735 28x35'50.86" 95x35'44.46"
207
155. By arc centered at 3,063,896 340,470 28x43'41.5" 95x49'48.0"
208
to 3,092,642 293,950 28x35'52.89" 95x35'40.46"
209
156. By straight line to 3,110,764 305,148 28x37'38.45" 95x32'13.53"
210
157. By arc centered at 3,082,018 351,668 28x45'27.2" 95x37'20.9"
211
to 3,111,027 305,312 28x37'39.99" 95x32'10.52"
212
158. By straight line to 3,128,977 316,545 28x39'25.86" 95x28'45.39"
213
159. By arc centered at 3,099,968 362,901 28x47'13.2" 95x33'55.6"
214
to 3,129,951 317,169 28x39'31.75" 95x28'34.25"
South Zone
Course Latitude Longitude
x y
215
160. By straight line to 3,152,081 331,678 28x41'48.68" 95x24'20.95"
216
161. By arc centered at 3,122,098 377,410 28x49'30.3" 95x29'42.1"
217
to 3,153,769 332,830 28x41'59.57" 95x24'01.60"
218
162. By straight line to 3,158,904 336,478 28x42'34.10" 95x23'0.71"
219
163. By straight line to 3,168,664 342,866 28x43'34.32" 95x21'10.91"
220
164. By arc centered at 3,138,717 388,622 28x51'16.3" 95x26'31.5"
221
to 3,172,530 345,644 28x44'00.62" 95x20'26.53"
222
165. By straight line to 3,177,771 349,049 28x44'32.69" 95x19'26.48"
223
166. By arc centered at 3,147,981 394,907 28x52'15.7" 95x24'45.2"
224
to 3,178,426 349,481 28x44'36.76" 95x19'18.98"
225
167. By straight line to 3,184,351 353,452 28x45'14.21" 95x18'11.04"
226
168. By arc centered at 3,153,906 398,878 28x52'53.2" 95x23'37.2"
227
to 3,185,298 354,101 28x45'20.34" 95x18'00.17"
228
169. By straight line to 3,196,291 361,808 28x46'33.16" 95x15'53.96"
229
170. By arc centered at 3,164,899 406,585 28x54'06.1" 95x21'30.9"
230
to 3,197,099 362,386 28x46'38.61" 95x15'44.67"
231
171. By straight line to 3,203,248 366,865 28x47'21.00" 95x14'33.99"
232
171a. By straight line to 3,203,445 366,995 28x47'22.22" 95x14'31.73"
233
172. By straight line to 3,205,264 368,190 28x47'33.46" 95x14'10.87"
234
173. By arc centered at 3,182,950 418,115 28x55'54.6" 95x18'03.8"
235
to 3,213,259 372,598 28x48'14.53" 95x12'39.45"
236
174. By straight line to 3,214,103 373,160 28x48'19.82" 95x12'29.76"
237
175. By arc centered at 3,183,794 418,677 28x55'59.9" 95x17'54.1"
238
to 3,230,736 390,625 28x51'07.29" 95x09'16.44"
239
176. By straight line to 3,240,421 399,503 28x52'31.99" 95x07'24.26"
240
177. By straight line to 3,258,176 414,679 28x54'56.30" 95x03'48.91"28
241
178. By straight line to 3,262,578 418,206 28x55'29.73" 95x03'08.07"
242
179. By straight line to 3,266,484 420,949 28x55'55.57" 95x02'23.08"
243
180. By arc centered at 3,239,802 468,683 29x03'56.8" 95x07'05.4"
244
to 3,282,040 433,949 28x57'58.97" 94x59'23.10"
245
181. By straight line to 3,282,364 434,343 28x58'02.76" 94x59'19.30"
246
182. By arc centered at 3,240,126 469,077 29x04'00.6" 95x07'01.6"
247
to 3,290,005 446,661 29x00'02.05" 94x57'48.53"
248
183. By straight line to 3,296,652 452,104 29x00'53.63" 94x56'31.59"
249
184. By straight line to 3,302,419 456,606 29x01'36.20" 94x55'24.90"
250
185. By straight line to 3,315,160 466,352 29x03'08.22" 94x52'57.60"
251
186. By straight line to 3,320,930 470,564 29x03'47.89" 94x51'50.94"
252
187. By straight line to 3,328,195 475,602 29x04'35.19" 94x50'27.11"
253
188. By straight line to 3,342,587 484,679 29x05'59.91" 94x47'41.32"
254
189. By arc centered at 3,313,417 530,934 29x13'47.9" 94x52'51.6"
255
to 3,345,594 486,717 29x06'19.02" 94x47'06.62"
256
190. By straight line to 3,350,192 490,063 29x06'50.48" 94x46'13.45"
257
191. By arc centered at 3,318,015 534,280 29x14'19.4" 94x51'58.4"
258
to 3,351,664 491,173 29x07'00.94" 94x45'56.41"
259
192. By straight line to 3,366,438 502,706 29x08'49.73" 94x43'05.18"
260
193. By straight line to 3,373,759 508,167 29x09'41.10" 94x41'49.41"
261
194. By arc centered at 3,341,062 552,000 29x17'06.6" 94x47'31.2"
262
to 3,376,113 510,025 29x09'58.63" 94x41'13.09"
263
195. By straight line to 3,379,502 512,855 29x10'25.40" 94x40'33.71"
264
196. By arc centered at 3,344,451 554,830 29x17'33.4" 94x46'51.8"
265
to 3,382,463 515,517 29x10'50.64" 94x39'59.22"
266
197. By straight line to 3,385,938 518,877 29x11'22.61" 94x39'18.63"
South Zone
Course Latitude Longitude
x y
267
198. By arc centered at 3,347,926 558,190 29x18'05.4" 94x46'11.2"
268
to 3,393,316 527,691 29x12'47.10" 94x37'51.73"
269
199. By straight line to 3,394,123 528,892 29x12'58.69" 94x37'42.12"
270
200. By arc centered at 3,348,733 559,391 29x18'17.0" 94x46'01.6"
271
to 3,399,047 537,969 29x14'26.68" 94x36'42.74"
272
201. By straight line to 3,399,847 539,848 29x14'44.97" 94x36'32.92"
273
202. By arc centered at 3,349,533 561,270 29x18'35.3" 94x45'51.8"
274
to 3,401,544 544,379 29x15'29.17" 94x36'11.86"
275
203. By straight line to 3,402,301 546,710 29x15'51.96" 94x36'02.31"
276
204. By arc centered at 3,350,290 563,601 29x18'58.1" 94x45'42.3"
277
to 3,404,498 556,395 29x17'26.97" 94x35'33.41"
278
205. By straight line to 3,404,679 557,758 29x17'40.38" 94x35'30.79"
279
206. By straight line to 3,405,303 558,363 29x17'46.13" 94x35'23.49"
280
207. By straight line to 3,407,136 559,951 29x18'01.16" 94x35'02.12"
281
208. By straight line to 3,409,314 561,570 29x18'16.36" 94x34'36.85"
282
209. By straight line to 3,413,751 564,517 29x18'43.86" 94x33'45.50"
283
210. By straight line to 3,421,690 569,297 29x19'28.16" 94x32'13.83"
284
211. By straitht line to 3,429,293 573,476 29x20'06.63" 94x30'46.17"
285
212. By straight line to 3,447,430 582,437 29x21'28.35" 94x27'17.47"
286
213. By straight line to 3,466,717 591,592 29x22'51.47" 94x23'35.58"
287
214. By arc centered at 3,443,267 640,994 29x31'09.3" 94x27'38.8"
288
to 3,467,072 591,762 29x22'53.01" 94x23'31.50"
289
215. By straight line to 3,480,531 598,270 29x23'52.12" 94x20'56.55"
290
216. By straight line to 3,497,178 605,998 29x25'01.98" 94x17'44.98"
291
217. By arc centered at 3,474,153 655,599 29x33'21.8" 94x21'42.9"
292
to 3,497,492 606,145 29x25'03.31" 94x17'41.36"
293
218. By straight line to 3,512,863 613,399 29x26'08.92" 94x14'44.35"
294
219. By arc centered at 3,489,524 662,853 29x34'27.5" 94x18'45.7"
295
to 3,513,624 613,765 29x26'12.24" 94x14'35.58"
296
220. By straight line to 3,530,376 621,990 29x27'26.82" 94x11'22.44"
297
221. By straight line to 3,554,680 633,780 29x29'13.49" 94x06'42.17"
298
222. By arc centered at 3,530,811 682,981 29x37'30.0" 94x10'49.1"
299
to 3,555,470 634,171 29x29'17.03" 94x06'33.05"
300
223. By straight line to 3,571,673 642,357 29x30'31.26" 94x03'25.94"
301
224. By straight line to 3,579,924 646,355 29x31'07.35" 94x01'50.72"
302
225. By arc centered at 3,564,669 698,869 29x39'53.2" 94x04'18.2"
303
to 3,583,947 647,695 29x31'18.91" 94x01'04.58"
304
226. By arc centered at 3,570,700 700,751 29x40'09.3" 94x03'09.0"
305
to 3,583,971 647,701 29x31'18.96" 94x01'04.31"
306
227. By arc centered at 3,585,544 702,363 29x40'19.0" 94x00'20.1"
307
to 3,587,641 647,718 29x31'17.58" 94x00'22.79"
308
228. By arc centered at 3,588,465 702,397 29x40'18.1" 93x59'47.0"
309
to 3,597,166 648,409 29x31'20.37" 93x58'34.73"
310
229. By arc centered at 3,598,298 703,082 29x40'20.7" 93x57'55.3"
311
to 3,611,182 649,936 29x31'29.50" 93x55'55.45"
312
230. By arc centered at 3,616,758 704,337 29x40'25.2" 93x54'25.6"
313
to 3,617,980 649,666 29x31'23.90" 93x54'38.73"
314
231. By straight line to 3,622,052 649,757 29x31'23.04" 93x53'52.62"
315
232. By straight line to 3,628,661 649,851 29x31'21.11" 93x52'37.85"
316
233. By arc centered at 3,627,884 704,530 29x40'22.3" 93x52'19.5"
317
to 3,632,508 650,041 29x31'21.32" 93x51'54.24"
318
234. By straight line to 3,634,971 650,250 29x31'22.32" 93x51'26.29"
South Zone
Course Latitude Longitude
x y
319
235. By arc centered at 3,630,347 704,739 29x40'23.3" 93x51'51.5"
320
to 3,651,368 654,256 29x31'54.77" 93x48'18.84"
321
236. By straignt line to 3,653,430 655,115 29x32'02.36" 93x47'55.08"
322
237. By arc centered at 3,632,410 705,598 29x40'30.9" 93x51'27.7"
323
to 3,663,602 660,681 29x32'52.93" 93x45'57.22"
324
238. By straight line to 3,664,862 661,556 29x33'01.02" 93x45'42.53"
325
239. By arc centered at 3,633,670 706,473 29x40'39.0" 93x51'13.0"
326
to 3,677,669 674,000 29x34'58.40" 93x43'11.30"
327
240. By straight line to 3,678,810 675,546 29x35'13.18" 93x42'46.60"
328
241. By arc centered at 3,634,811 708,019 29x40'53.8" 93x50'59.3"
329
to 3,680,595 678,115 29x35'37.80" 93x42'36.08"
330
242. By straight line to 3,686,069 686,496 29x36'58.24" 93x41'29.83"
331
The State of Texas is not entitled to any interest in such lands, minerals or resources, and said State, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the United States in such lands, minerals and resources.
332
2. As against the United States, with the exceptions provided by § 5 of the Submerged Lands Act, 43 U.S.C. § 1313, the State of Texas is entitled to——
333
(a) All the lands, minerals and other natural resources underlying the Gulf of Mexico, bounded on the south by the international boundary with Mrxico and on the east by the western boundary of Louisiana and an extension thereof, that are within three geographical miles from the present or future coastline as referred to in § 2(c) of the Submerged Lands Act, 43 U.S.C. § 1301(c); and
334
(b) All the lands, minerals and other natural resources underlying the Gulf of Mexico, bounded on the south by the international boundary with Mexico and on the east by the western boundary of Louisiana and an extension thereof, less than three marine leagues gulfward from the present or future coastline as referred to in § 2(c) of the Submerged Lands Act, 43 U.S.C. § 1301(c) that are landward of the line described in paragraph 1(b) hereof.
335
3. As used herein——
336
(a) 'Geographical mile' means a distance of 1852 meters (6076.10333 . . . U. S. Survey Feet or approximately 6076.11549 International Feet);
337
(b) 'Marine league' means a distance of three geographical miles;
338
(c) Plane coordinates refer to the Texas Coordinate Systems, South Zone or South Central Zone, as indicated.
339
(d) Latitudes and longitudes refer to the North American 1927 Datum.
340
(e) All distances referred to herein are expressed at grid scale, Texas Plane Coordinate Systems.
341
4. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree, or to the decree of December 12, 1960, herein, or to effectuate the rights of the parties in the premises.
342
THE CHIEF JUSTICE and Mr. Justice MARSHALL took no part in the consideration or formulation of this Supplemental Decree.
| 910
|
394 U.S. 831
89 S.Ct. 1498
23 L.Ed.2d 16
Russell T. HALLIDAYv.UNITED STATES.
No. 642, Misc.
Decided May 5, 1969.
Rehearing Denied June 16, 1969.
See 395 U.S. 971, 89 S.Ct. 2106.
Laurence M. Johnson, for petitioner.
Solicitor General Griswold, assistant Attorney General Vinson, Jerome M. Feit and Mervyn Hamburg, for the United States.
PER CURIAM.
1
The motion to proceed in forma pauperis is granted. The petition for a writ of certiorari is also granted, limited to one issue: Should petitioner's conviction be reversed because the United States District Judge who accepted his guilty plea failed to comply with Rule 11 of the Federal Rules of Criminal Procedure? In our recent decision of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, we held that when a guilty plea is accepted in violation of Rule 11 the defendant must be afforded an opportunity to plead anew. Petitioner's plea was entered in 1954. The question we must decide, therefore, is whether McCarthy should be applied to guilty pleas accepted prior to the date of that decision. We hold that it should not.
2
After an evidentiary hearing on October 17, 1967, petitioner's motion to set aside his sentence under 28 U.S.C. § 2255 was denied by the United States District Court for the District of Massachusetts. The United States Court of Appeals for the First Circuit affirmed per curiam. Although it acknowledged that the District Court had not complied with Rule 11 when it accepted petitioner's plea, it held that he was not entitled to relief because 'ample evidence' supported the District Court's finding that the Government had met its burden of demonstrating that petitioner entered his plea voluntarily with an understanding of the nature of the charges against him.
3
In deciding whether to apply newly adopted constitutional rulings retroactively, we have considered three criteria: (1) the purpose of the new rule; (2) the extent of reliance upon the old rule; and (3) the effect retroactive application would have upon the administration of justice. E.g., Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). In McCarthy we took care to note that our holding was based solely upon the application of Rule 11 and not upon constitutional grounds. Nevertheless, it is appropriate to analyze the question of that decision's retroactivity in terms of the same criteria we have employed to determine whether constitutionally grounded decisions that depart from precedent should be applied retroactively. See Linkletter v. Walker, 381 U.S. 618, 622—629, 85 S.Ct. 1731, 1733—1737, 14 L.Ed.2d 601 (1965).
4
The rule we adopted in McCarthy has two purposes: (1) to insure that every defendant who pleads guilty is afforded Rule 11's procedural safeguards, which are designed to facilitate the determination of the voluntariness of his plea; (2) to provide a complete record at the time the plea is entered of the factors relevant to this determination, thereby facilitating a more expeditious disposition of a post-conviction attack on the plea. Unquestionably, strict compliance with Rule 11 enhances the reliability of the voluntariness determination, and we have retroactively applied constitutionally grounded rules of criminal procedure designed to correct 'serious flaws in the fact-finding process at trial.' Stovall v. Denno, supra, 388 U.S. at 298, 87 S.Ct. at 1970. However, a defendant whose plea has been accepted without full compliance with Rule 11 may still resort to appropriate post-conviction remedies to attack his plea's voluntariness. Thus, if his plea was accepted prior to our decision in McCarthy, he is not without a remedy to correct constitutional defects in his conviction. Cf. Johnson v. New Jersey, supra, 384 U.S. at 730, 86 S.Ct. at 1779. And as we pointed out in Stovall, the extent to which a 'condemned practice infects the integrity of the truth-determining process * * * must * * * be weighed against the prior justified reliance upon the old standards and the impact of retroactivity upon the administration of justice.' Stovall v. Denno, supra, 388 U.S. at 298, 87 S.Ct. at 1970. In McCarthy we noted that the practice we were requiring had been previously followed by only one Circuit; that over 85% of all convictions in the federal courts are obtained pursuant to guilty pleas; and that prior to Rule 11's recent amendment, not all district judges personally questioned defendants before accepting their guilty pleas. Thus, in view of the general application of Rule 11 in a manner inconsistent with our holding in McCarthy, and in view of the large number of constitutionally valid convictions that may have been obtained without full compliance with Rule 11, we decline to apply McCarthy retroactively. We hold that only those defendants whose guilty pleas were accepted after April 2, 1969, are entitled to plead anew if their pleas were accepted without full compliance with Rule 11.
5
Accordingly, the judgment of the Court of Appeals for the First Circuit is affirmed.
6
Affirmed.
7
Mr. Justice HARLAN, concurring in the result.
8
McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, announced no new constitutional or general procedural doctrine. That decision, on a matter of first impression in this Court, merely interpreted Rule 11 of the Federal Rules of Criminal Procedure, as amended effective July 1, 1966, and held that the rule must be strictly applied according to its terms. I see no reason why other federal prisoners whose pleas were accepted in plain violation of the requirements of the amended rule should be deprived of the relief accorded McCarthy. See generally my dissent in Desist v. United States, 394 U.S. 244, at 256, 89 S.Ct. 1030, at 1037, 22 L.Ed.2d 248. I would therefore apply the per se rule enunciated in McCarthy to all pleas entered on or after July 1, 1966.
9
While the amended Rule 11 requires the trial judge to follow specific procedures before accepting a plea of guilty, and was promulgated for that very purpose, see Notes of Advisory Committee on Rules, the pre-1966 Rule 11 was 'substantially a restatement of existing law and practice,' ibid., and required only that the judge 'determine' that the plea is made 'voluntarily with understanding of the nature of the charge,' without, however, specifying a procedure for making this determination. Thus, in a pre-1966 proceeding, the trial judge may have relied on the circumstances surrounding a plea of guilty, without making a specific inquiry or findings, to conclude that the plea was voluntarily and understandingly given.
10
I agree with the court below that the absence of an explicit inquiry may sometimes entitle the defendant to a subsequent hearing, pursuant to 28 U.S.C. § 2255, to determine whether the plea was in fact made voluntarily and understandingly. In view of the wholly inexplicit directives of the old rule, however, I believe that such a hearing suffices, and that a plea made under that rule should not automatically be set aside as in the case of a plea made under the 1966 rule—the situation in McCarthy.
11
Petitioner's plea was accepted in 1954, without an explicit inquiry at that time whether it was voluntarily and understandingly made. Petitioner moved to vacate the plea, and after a full hearing the District Court, 274 F.Supp. 737, 738—739 (1967), affirmed by the Court of Appeals, 394 F.2d 149 (1968), determined that 'the Government has sustained its burden of showing that at the time petitioner Halliday changed his plea he in fact did understand the nature of the three charges against him and that he changed his plea voluntarily, with full awareness of the consequences of the change of plea.'
12
On the basis of these findings, and not on any theory as to the nonretroactivity of McCarthy, I would affirm.
13
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
14
I do not understand why there should be any discussion of the retroactivity of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, a decision of this Court this Term interpreting a Federal Rule of Criminal Procedure. If the rule's relevant portions were in full force and effect when petitioner's guilty plea was entered in 1954, then it should of course be enforced in this case; if not, the McCarthy decision simply has no application here at all. For this reason and for all others set out in my dissenting opinion in Linkletter v. Walker, 381 U.S. 618, 640, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965), I would reverse the judgment below and order that petitioner's guilty plea be vacated so that he may have an opportunity to plead again.
| 01
|
394 U.S. 847
89 S.Ct. 1622
23 L.Ed.2d 30
William H. ROBINSON et al.v.Gwendolyn JOHNSON et al.
No. 67.
Supreme Court of the United States
May 5, 1969
William G. Clark, Atty. Gen. of Illinois, Thomas E. Brannigan, Asst. Atty. Gen., John J. Stamos and Daniel P. Coman, for appellants.
PER CURIAM.
1
The judgment is affirmed.
2
Mr. Justice BLACK dissents for the reasons given in the dissenting opinion of The Chief Justice in Shapior v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600.
3
Mr. Justice HARLAN dissents for the reasons given in his dissenting opinion in Shapiro v. Thompso, 394 U.S. 655, 89 S.Ct. 1342.
| 12
|
394 U.S. 814
89 S.Ct. 1493
23 L.Ed.2d 1
James L. MOORE et al., Appellants,v.Richard B. OGILVIE, etc., et al.
No. 620.
Argued March 27, 1969.
Decided May 5, 1969.
Richard F. Watt, Chicago, Ill., for appellants.
John J. O'Toole and Richard E. Friedman, Chicago, Ill., for appellees.
Opinion of the Court by Mr. Justice DOUGLAS, announced by Mr. Justice BRENNAN.
1
This is a suit for declaratory relief and for an injunction, 28 U.S.C. §§ 2201, 2202, brought by appellants who are independent candidates for the offices of electors of President and Vice President of the United States from Illinois. The defendants or appellees are members of the Illinois Electoral Board. Ill.Rev.Stat. c. 46, § 7—14. In 1968 appellants filed with appellees petitions containing the names of 26,500 qualified voters who desired that appellants be nominated. The appellees ruled that appellants could not be certified to the county clerks for the November 1968 election because of a proviso added in 1935 to an Illinois statute requiring that at least 25,000 electors sign a petition to nominate such candidates. The proviso reads:
2
'* * * that included in the aggregate total of 25,000 signatures are the signatures of 200 qualified voters from each of at least 50 counties.' Ill.Rev.Stat., c. 46, § 10—3 (1967).
3
A three-judge District Court was convened, 28 U.S.C. §§ 2281, 2284, which, feeling bound by MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3, dismissed the complaint for failure to state a cause of action. 293 F.Supp. 411. The case is here on appeal. 28 U.S.C. § 1253.
4
On October 8, 1968, the same day the case was docketed, appellants filed a motion to advance and expedite the hearing and disposition of this cause. Appellees opposed the motion. On October 14, 1968, we entered the following order:
5
'Because of the representation of the State of Illinois that 'It would be a physical impossibility' for the State 'to effectuate the relief which the appellants seek,' the 'Motion to Advance and Expedite the Hearing and Disposition of this Cause' is denied. Mr. Justice Fortas would grant the motion.' 393 U.S. 814, 89 S.Ct. 138, 21 L.Ed.2d 90.
6
Appellees urged in a motion to dismiss that since the November 5, 1968, election has been held, there is no possibility of granting any relief to appellants and that the appeal should be dismissed. But while the 1968 election is over, the burden which MacDougall v. Green, supra, allowed to be placed on the nomination of candidates for statewide offices remains and controls future elections, as long as Illinois maintains her present system as she has done since 1935. The problem is therefore 'capable of repetition, yet evading review,' Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310. The need for its resolution thus reflects a continuing controversy in the federalstate area where our 'one man, one vote' decisions have thrust. We turn then to the merits.
7
MacDougall v. Green is indistinguishable from the present controversy. The allegations in that case were that 52% of the State's registered voters were residents of Cook County alone, 87% were residents of the 49 most populous counties, and only 13% resided in the 53 least populous counties. The argument was that a nominating procedure so weighted violates the Equal Protection Clause.
8
Today, in contrast, 93.4% of the State's registered voters reside in the 49 most populous counties, and only 6.6% are resident in the remaining 53 counties. The constitutional argument, however, remains the same.
9
Five members of the Court held in MacDougall that a State has 'the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.' 335 U.S., at 284, 69 S.Ct. at 3. Three members of the Court dissented on the ground that the nominating procedure violated the Equal Protection Clause. One member of the Court voted not to exercise this Court's jurisdiction in equity to resolve the dispute.
10
While the majority cited Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, as their authority for denying relief and while a few who took part in Colegrove put this type of question in the 'political' as distinguished from the 'justiciable' category, 328 U.S., at 552, 66 S.Ct. at 1199 that matter was authoritatively resolved in Baker v. Carr, 369 U.S. 186, 202, 82 S.Ct. 691, 702, 7 L.Ed.2d 663. When a State makes classifications of voters which favor residents of some counties over residents of other counties, a justiciable controversy is presented. 369 U.S., at 198—204, 82 S.Ct. at 699—703.
11
When we struck down the Georgia county-unit system in statewide primary elections, we said:
12
'How then can one person be given twice or 10 times the voting power of another person in a statewide election merely because he lives in ar ural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment.' Gray v. Sanders, 372 U.S. 368, 379, 83 S.Ct. 801, 808, 9 L.Ed.2d 821.
13
Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, held that a State in an apportionment of state representatives and senators among districts and counties could not deprive voters in the more populous counties of their proportionate share of representatives and senators.
14
'The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.' 377 U.S., at 555, 84 S.Ct., at 1378.
15
We have said enough to indicate why MacDougall v. Green is out of line with our recent apportionment cases. The use of nominating petitions by independents to obtain a place on the Illinois ballot is an integral part of her elective system. See People ex rel. v. Board of Election Commissioners, 221 Ill. 9, 18, 77 N.W. 321, 323. All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgment of the right to vote. United States v. Classic, 313 U.S. 299, 314—318, 61 S.Ct. 1031, 1037 1039, 85 L.Ed. 1368; Smith v. Allwright, 321 U.S. 649, 664, 64 S.Ct. 757, 765, 88 L.Ed. 897.
16
Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656, is not relevant to the problem of this case. There each councilman was required to be a resident of the borough from which he was elected. Like the residence requirement for state senators from a multi-district county (Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401), the place of residence did not mark the voting unit; for in Dusch all the electors in the city voted for each councilman.
17
It is no answer to the argument under the Equal Protection Clause that this law was designed to require statewide support for launching a new political party rather than support from a few localities. This law applies a rigid, arbitrary formula to sparsely settled counties and populous counties alike, contrary to the constitutional theme of equality among citizens in the exercise of their political rights. The idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.
18
Under this Illinois law the electorate in 49 of the counties which contain 93.4% of the registered voters may not form a new political party and place its candidates on the ballot. Yet 25,000 of the remaining 6.6% of registered voters properly distributed among the 53 remaining counties may form a new party to elect candidates to office. This law thus discriminates against the residents of the populous counties of the State in favor of rural sections. It, therefore, lacks the equality to which the exercise of political rights is entitled under the Fourteenth Amendment.
19
MacDougall v. Green is overruled.
20
Reversed.
21
Mr. Justice STEWART, with whom Mr. Justice HARLAN joins, dissenting.
22
I cannot join in the Court's casual extension of the 'one voter, one vote' slogan to a case that involves neither voters, votes, nor even an ongoing dispute.
23
First of all, the case is moot. The appellants brought this action merely as prospective 'candidates for the offices of Electors of President and Vice-President of the United States from the State of Illinois to be voted on at the general election tob e held on November 5, 1968.' But the 1968 election is now history, and no relief relating to its outcome is sought. In the absence of any assertion that the appellants intent to participate as candidates in any future Illinois election, the Court's reference to cases involving 'continuing controversies' between the parties is wide of the mark. Cf. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113. There simply remains no judicially cognizable dispute in this case. Since, however, the Court reaches a contrary conclusion, I shall indicate briefly the reasons for my disagreement with its holding on the merits.
24
The legislative apportionment cases, upon which the Court places its entire reliance, were decided on the theory that voters residing in 'underrepresented' electoral districts were denied equal protection.
25
'Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there.' Reynolds v. Sims, 377 U.S. 533, 563, 84 S.Ct. 1362, 1382, 12 L.Ed.2d 506.
26
In this case, by contrast, the appellants have sued merely as prospective candidates for office. They claim no impairment whatever of any interests they might have as voters; indeed, their complaint contains no allegation that any of them is in fact a qualified Illinois voter. Undeterred by the appellants' failure to explain how or as against whom they themselves are denied equal protection, however, the Court reaches out to hold that this statute 'discriminates against the residents of the populous counties of the State in favor of rural sections.' But since no 'residents of the populous counties of the State' have asserted any rights, the Court's decision represents at best an advisory vindication of interests not involved in this case.
27
Even if the interests of voters in Illinois' 'populous counties' were actually represented here, the Court's conclusion would still be completely unjustified. Reynolds v. Sims, supra, and its offspring at least involved situations in which the 'debasement' or 'dilution' of voting power found by the Court was the 'certain' result of population variations among electoral districts. Under the Illinois statute now before us, however, no injury whatever is suffered by voters in heavily populated areas so long as their favored candidates are able to secure places on the ballot. And there is absolutely no indication in the record that the appellants could not, if they had made the effort, have easily satisfied Illinois' 50-county, 200-signature requirement. Indeed, there is no suggestion that the counties from which the appellants drew their support were 'populous' rather than 'rural.' The rationale of Reynolds v. Sims simply does not control this case.
28
Any reliance by the Court on Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24, would also be misplaced. That case involved an Ohio requirement that new political parties secure the support of over 433,000 persons—15% of the electorate—before their candidates could appear on the ballot. Here, the 25,000 signatures required by Illinois represent only about one-half of one percent of the total number of Illinois voters—a percentage requirement permissible, one would hope, under any view of the Rhodes case. Nor do the appellants make any showing that securing 200 signatures in less than half of the State's counties would be a burden at all comparable to that involved in Williams v. Rhodes.
29
The Court held in MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3 in sustaining the very statutory requirement here at issue,1 that Illinois had pursued an 'allowable State policy (of) requir(ing) that candidates for statewide office should have support not limited to a concentrated locality.' Id., at 283, 69 S.Ct. at 2. That conclusion seems to me to be no less sound today than it was at the time of the MacDougall decision.2 Illinois' policy is, in fact, not at all unlike that p held by the Court only two Terms ago in Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656, in which a district-residence requirement imposed upon municipal officers despite population variations among districts was nevertheless held proper as reasonably 'reflect(ing) a detente between urban and rural communities * * *.' Id., at 117, 87 S.Ct. at 1556. Cf. Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 744, 84 S.Ct. 1459, 1477, 12 L.Ed.2d 632 (Stewart, J., dissenting); Reynolds v. Sims, supra, at 589, 84 S.Ct. at 1395 (Harlan, J., dissenting).
30
I respectfully dissent.
1
MacDougall involved Ill.Rev.Stat., c. 46, § 10—2, relating to ballot position for candidates of new political parties; Ill.Rev.Stat., c. 46, § 10—3, involved here, imposes identical signature requirements for independent candidates.
2
While MacDougall involved candidates for various offices, the appellants here all sought election as presidential electors. See U.S.Const., Art. II, § 1:
'Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress * * *.' (Emphasis added.)
| 12
|
394 U.S. 848
89 S.Ct. 1623
23 L.Ed.2d 31
John MONTGOMERY, Director, California Department of Social Welfare, et al.v.Fannie Mae Burns et al.
No. 438.
Supreme Court of the United States
May 5, 1969
Thomas C. Lynch, Atty. Gen. of California, and Elizabeth Palmer and Donald B. Day, Deputy Attys. Gen., for appellants.
PER CURIAM.
1
The motion of appellees for leave to proceed in forma paupris is granted. The motion to affirm is granted and the judgment is affirmed.
2
Mr. Justice BLACK dissents for the reasons given in the dissenting opinion of The Chief Justice in Shapior v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600.
3
Mr. Justice HARLAN dissents for the reasons given in his dissenting opinion in Shapiro v. Thompson, 394 U.S. 655, 89 S.Ct. 1342.
| 12
|
394 U.S. 823
89 S.Ct. 1487
23 L.Ed.2d 9
Clayton S. KRAMER, Petitioner,v.CARIBBEAN MILLS, INC.
No. 156.
Argued Jan. 23, 1969.
Decided May 5, 1969.
Eugene Gressman, Washington, D.C., for petitioner.
Dennis G. Lyons, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The sole question presented by this case is whether the Federal District Court in which it was brought had jurisdiction over the cause, or whether that court was deprived of jurisdiction by 28 U.S.C. § 1359. That section provides:
2
'A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.'
3
The facts were these. Respondent Caribbean Mills, Inc. (Caribbean) is a Haitian corporation. In May 1959 it entered into a contract with an individual named Kelly and the Panama and Venezuela Finance Company (Panama), a Panamanian Corporation. The agreement provided that Caribbean would purchase from Panama 125 shares of corporate stock, in return for payment of $85,000 down and an additional $165,000 in 12 annual installments.
4
No installment payments ever were made, despite requests for payment by Panama. In 1964, Panama assigned its entire interest in the 1959 contract to petitioner Kramer, an attorney in Wichita Falls, Taxas. The stated consideration was $1. By a separate agreement dated the same day, Kramer promised to pay back to Panama 95% of any net recovery on the assigned cause of action,1 'solely as a Bonus.'
5
Kramer soon thereafter brought suit aga nst Caribbean for $165,000 in the United States District Court for the Northern District of Texas, alleging diversity of citizenship between himself and Caribbean.2 The District Court denied Caribbean's motion to dismiss for want of jurisdiction. The case proceeded to trial, and a jury returned a $165,000 verdict in favor of Kramer.
6
On appeal, the Court of Appeals for the Fifth Circuit reversed, holding that the assignment was 'improperly or collusively made' within the meaning of 28 U.S.C. § 1359, and that in consequence the District Court lacked jurisdiction. We granted certiorari, 393 U.S. 819, 89 S.Ct. 99, 21 L.Ed.2d 91 (1968). For reasons which follow, we affirm the judgment of the Court of Appeals.
I.
7
The issue before us is whether Kramer was 'improperly or collusively made' a party 'to invoke the jurisdiction' of the District Court, within the meaning of 28 U.S.C. § 1359. We look first to the legislative background.
8
Section 1359 has existed in its present form only since the 1948 revision of the Judicial Code. Prior to that time, the use of devices to create diversity was regulated by two federal statutes. The first, known as the 'assignee clause,' provided that, with certain exceptions not here relevant:
9
'No district court shall have cognizance of any suit * * * to recover upon any promissory note or other chose in action in favor of any assignee * * * unless such suit might have been prosecuted in such court * * * if no assignment had been made.'3
10
The second pre-1948 statute, 28 U.S.C. § 80 (1940 ed.),4 stated that a district court should dismiss an action whenever:
11
'it shall appear to the satisfaction of the * * * court * * * that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of (the) court, or that the parties to said suit have been improperly or collusively made or joined * * * for the purpose of creating (federal jurisdiction).'
12
As part of the 1948 revision, § 80 was amended to produce the present § 1359. The assignee clause was simultaneously repealed. The Reviser's Note describes the amended assignee clause as a "jumble of legislative jargon,"5 and states that '(t)he revised section changes this clause by confining its application to cases wherein the assignment is improperly or collusively made * * *. Furthermore, * * * the original purpose of (the assignee) clause is better served by substantially following section 80.' That purpose was said to be 'to prevent the manufacture of Federal jurisdiction by the device of assignment.' Ibid.
II.
13
Only a small number of cases decided under § 1359 have involved diversity jurisdiction based on assignments,6 and this Court has not considered the matter since the 1948 revision. Because the approach of the former assignee clause was to forbid the grounding of jurisdiction upon any assignment, regardless of its circumstances or purpose,7 decisions under that clause are of little assistance. However, decisions of this Court under the other predecessor statute, 28 U.S.C. § 80 (1940 ed.), seem squarely in point. These decisions, together with the evident purpose of § 1359, lead us to concl de that the Court of Appeals was correct in finding that the assignment in question was 'improperly or collusively made.'
14
The most compelling precedent is Farmington Village Corp. v. Pillsbury, 114 U.S. 138, 5 S.Ct. 807, 29 L.Ed. 114 (1885). There Maine holders of bonds issued by a Maine village desired to test the bonds' validity in the federal courts. In an effort to accomplish this, they cut the coupons from their bonds and transferred them to a citizen of Massachusetts, who gave in return a non-negotiable two-year note for $500 and a promise to pay back 50% of the net amount recovered above $500. The jurisdictional question was certified to this Court, which held that there was no federal jurisdiction because the plaintiff had been 'improperly or collusively' made a party within the meaning of the predecessor statute to 28 U.S.C. § 80 (1940 ed.). The Court pointed out that the plaintiff could easily have been released from his non-negotiable note, and found that apart from the hoped-for creation of federal jurisdiction the only real consequence of the transfer was to enable the Massachusetts plaintiff to 'retain one-half of what he collects for the use of his name and his trouble in collecting.' 114 U.S., at 146, 5 S.Ct., at 811. The Court concluded that 'the transfer of the coupons was 'a mere contrivance, a pretense, the result of a collusive arrangement to create" federal jurisdiction. Ibid.
15
We find the case before us indistinguishable from Farmington and other decisions of like tenor.8 When the assignment to Kramer is considered together with his total lack of previous connection with the matter and his simultaneous reassignment of a 95% interest back to Penama, there can be little doubt that the assignment was for purposes of collection, with Kramer to retain 5% of the net proceeds 'for the use of his name and his trouble in collecting.'9 If the suit had been unsuccessful, Kramer would have been out only $1, plus costs. Moreover, Kramer candidly admits that the 'assignment was in substantial part motivated by a desire by (Panama's) counsel to make diversity jurisdiction available * * *.'10
16
The conclusion that this assignment was 'improperly or collusively made' within the meaning of § 1359 is supported not only by precedent but also by consideration of the statute's purpose. If federal jurisdiction could be created by assignments of this kind, which are easy to arrange and involve few disadvantages for the assignor, then a vast quantity of ordinary contract and tort litigation could be channeled into the federal courts at the will of one of the parties. Such 'manufacture of Federal jurisdiction' was the very thing which Congress intended to prevent when it enacted § 1359 and its predecessors.
III.
17
Kramer nevertheless argues that the assignment to him was not 'improperly or collusively made' within the meaning of § 1359, for two main reasons. First, he suggests that the undisputed legality of the assignment under Texas law necessarily rendered it valid for purposes of federal jurisdiction. We cannot accept this contention. The existence of federal jurisdiction is a matter of federal, not state law. See, e.g., Missouri P.R. Co. v. Fitzgerald, 160 U.S. 556, 582, 16 S.Ct. 389, 396, 40 L.Ed. 536 (1896). Under the predecessor section, 28 U.S.C. § 80 (1940 ed.), this Court several times held that an assignment could be 'improperly or collusively made' even though binding under state law,11 and nothing in the language or legislative history of § 1359 suggests that a different result should be reached under that statute. Moreover, to accept this argument would render § 1359 largely incapable of accomplishing its purpose; this very case demonstrates the ease with which a party may 'manufacture' federal jurisdiction by an assignment which meets the requirements of state law.
18
Second, Kramer urges that this case is significantly distinguishable from earlier decisions because it involves diversity jurisdiction under 28 U.S.C. § 1332(a)(2), arising from the alienage of one of the parties, rather than the more common diversity jurisdiction based upon the parties' residence in different States. We can perceive no substance in this argument: by its terms, § 1359 applies equally to both types of diversity jurisdiction, and there is no indication that Congress intended them to be treated differently.
IV.
19
In short, we find that this assignment falls not only within the scope of § 1359 but within its very core. It follows that the District Court lacked jurisdiction to hear this action, and that petitioner must seek his remedy in the state courts.12 The judgment of the Court of Appeals is affirmed.
20
Affirmed.
21
Mr. Justice FORTAS took no part in the consideration or decision of this case.
1
That is, Kramer would receive 5%, and Panama 95%, of the net proceeds remaining after payment of attorneys' fees and expenses of litigation.
2
Title 28 U.S.C. § 1332(a)(2) grants district courts original jurisdiction of civil actions in which the matter in controversy exceeds $10,000 and is between 'citizens of a State, and foreign states or citizens or subjects thereof * * *.' The District Court would have had no jurisdiction of a suit brought by Panama against Caribbean, since both were alien corporations.
3
28 U.S.C. § 41(a) (1940 ed.). The clause first appeared as § 11 of the Judiciary Act of 1789, 1 Stat. 79.
4
This statute was first enacted in 1875. See 18 Stat. 470.
5
The quotation is from a Comment, Chaos of Jurisdiction in the Federal District Courts, 35 Ill.L.Rev. 566, 569 (1941); it refers primarily to the obscure wording of certain exceptions contained in the clause. See id., at 569—571.
6
See cases cited in 3A J. Moore, Federal Practice 17.05(3 1), nn. 7—9 (2d ed. 1968).
7
There were exceptions for particular types of assignments, none of which is relevant here.
8
See, e.g., Williams v. Nottawa, 104 U.S. 209, 26 L.Ed. 719 (1881); Little v. Giles, 118 U.S. 596, 7 S.Ct. 32, 30 L.Ed. 269 (1886).
9
Hence, we have no occasion to re-examine the cases in which this Court has held that where the transfer of a claim is absolute, with the transferor retaining no interest in the subject matter, then the transfer is not 'improperly or collusively made,' regardless of the transferor's motive. See, e.g., Cross v. Allen, 141 U.S. 528, 12 S.Ct. 67, 35 L.Ed. 843 (1891); South Dakota v. North Carolina, 192 U.S. 286, 24 S.Ct. 269, 48 L.Ed. 448 (1904); Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 48 S.Ct. 404, 72 L.Ed. 681 (1928); cf. Williamson v. Osenton, 232 U.S. 619, 34 S.Ct. 442, 58 L.Ed. 758 (1914).
Nor is it necessary to consider whether, in cases in which suit is required to be brought by an administrator or guardian, a motive to create diversity jurisdiction renders the appointment of an out-of-state representative 'improper' or 'collusive.' See, e.g., McSparran v. Weist, 402 F.2d 867 (3 Cir. 1968); Lang v. Elm City Constr. Co., 324 F.2d 235 (2 Cir. 1963); County of Todd v. Loegering, 297 F.2d 470 (8 Cir. 1961); cf. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233 (1931). Cases involving representatives vary in several respects from those in which jurisdiction is based on assignments: (1) in the former situation, some representative must be appointed before suit can be brought, while in the latter the assignor normally is himself capable of suing in state court; (2) under state law, different kinds of guardians and administrators may prossess discrete sorts o powers; and (3) all such representatives owe their appointment to the decree of a state court, rather than solely to an action of the parties. It is not necessary to decide whether these distinctions amount to a difference for purposes of § 1359.
10
Brief for Petitioner 16.
11
See, e.g., Little v. Giles, 118 U.S. 596, 602, 7 S.Ct. 32, 36, 30 L.Ed. 269 (1886); Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 327, 336, 16 S.Ct. 307, 311, 40 L.Ed. 444 (1895); cf. Smith v. Kernochen, 7 How. 198, 215—216, 12 L.Ed. 666 (1849).
12
Petitioner asks that we make our ruling prospective only, asserting that he reasonably believed he had a right to invoke federal jurisdiction, and that the four-year Texas statute of limitations governing contract actions, Vernon's Ann.Tex.Rev.Civ.Stat. Art. 5527 (1948), may bar him from recovering in the state courts as to some of the installments allegedly due him. However, another Texas statute, Tex.Rev.Civ.Stat. Art. 5539a (1948), provides:
'When * * * a judgment * * * shall be set aside or annulled in a direct proceeding, because of a want of jurisdiction of the Trial Court * * * and within sixty (60) days after such dismissal * * * becomes final, such action shall be commenced in a Court of Proper Jurisdiction, the period between the date of first filing and that of commencement in the second Court shall not be counted as a part of the period of limitation unless the opposite party shall * * * show the first filing to have been in intentional disregard of jurisdiction.'
This statute has been held to apply when the dismissal on jurisdictional grounds was by a federal court. See, e.g., Burford v. Sun Oil Co., 186 S.W.2d 306 (Tex.Civ.App.1944). Petitioner alleges that the first contract installment accrued on July 1, 1962. Hence, Art. 5539a appears to assure him a full state-court remedy, and thus obviates the need for further discussion of prospectivity.
| 89
|
395 U.S. 147
89 S.Ct. 1503
23 L.Ed.2d 162
Ben H. FRANK, Petitioner,v.UNITED STATES.
No. 200.
Argued Dec. 12, 1968.
Decided May 19, 1969.
Rehearing Denied Oct. 13, 1969.
See 90 S.Ct. 34.
John B. Ogden, Oklahoma City, Okl., for petitioner.
Peter L. Strauss for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Petitioner was charged with criminal contempt of the United States District Court for the Western District of Oklahoma. The charge resulted from his violation of an injunction issued by that court at the request of the Securities and Exchange Commission. The injunction restrained petitioner from using interstate facilities in the sale of certain oil interests without having filed a registration statement with the Commission. Petitioner's demand for a jury trial was denied. He was convicted, and the court suspended imposition of sentence and placed him on probation for three years. The Court of Appeals affirmed. Frank v. United States, 384 F.2d 276 (C.A.10th Cir. 1967). We granted certiorari, 392 U.S. 925, 88 S.Ct. 2295, 20 L.Ed.2d 1384 (1968), to determine whether petitioner was entitled to a jury trial. We conclude that he was not.
2
The Sixth Amendment to the Constitution gives defendants a right to a trial by jury in 'all criminal prosecutions.' However, it has long been the rule that so-called 'petty' offenses may be tried without a jury. See, e.g., District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937). For purposes of the right to trial by jury, criminal contempt is treated just like all other criminal offenses. The defendant is entitled to a jury trial unless the particular offense can be classified as 'petty.' Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966).
3
In determining whether a particular offense can be classified as 'petty,' this Court has sought objective indications of the seriousness with which society regards the offense. District of Columbia v. Clawans, supra, at 628, 57 S.Ct. at 663. The most relevant indication of the seriousness of an offense is the severity of the penalty authorized for its commission. Thus, in Clawans this Court held that a jury trial was not required in a prosecution for engaging in a certain business without a license, an offense carrying a maximum sentence of 90 days. Recently, we held that a jury trial was required in a state prosecution for simple battery, an offense carrying a possible prison sentence of two years. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).
4
In ori nary criminal prosecutions, the severity of the penalty authorized, not the penalty actually imposed, is the relevant criterion. In such cases, the legislature has included within the definition of the crime itself a judgment about the seriousness of the offense. See Duncan v. Louisiana, supra, at 162, 88 S.Ct at 1454, n. 35. But a person may be found in contempt of court for a great many different types of offenses, ranging from disrespect for the court to acts otherwise criminal. Congress, perhaps in recognition of the scope of criminal contempt, has authorized courts to impose penalties but has not placed any specific limits on their discretion; it has not categorized contempts as 'serious' or 'petty.' 18 U.S.C. §§ 401, 402.1 Accordingly, this Court has held that in prosecutions for criminal contempt where no maximum penalty is authorized, the severity of the penalty actually imposed is the best indication of the seriousness of the particular offense.2 See, e.g., Cheff v. Schnackenberg, supra. Thus, this Court has held that sentences for criminal contempt of up to six months may constitutionally be imposed without a jury trial. Ibid.3
5
The Government concedes that a jury trial would have been necessary in the present case if petitioner had received a sentence in excess of six months. Indeed, the Government concedes that petitioner may be sentenced to no more than six months if he violates the terms of his probation.4 However, the Government argues that petitioner's actual penalty is one which may be imposed upon those convicted of otherwise petty offenses, and, thus, that a jury trial was not required in the present case. We agree.
6
Numerous federal and state statutory schemes allow significant periods of probation to be imposed for otherwise petty offenses. For example, under federal law, most offenders may be placed on probation for up to five years in lieu of or, in certain cases, in addition to a term of imprisonment. See 18 U.S.C. § 3651. Congress, in making the probation statute applicable to 'any offense not punishable by death or life imprisonment,' clearly made it apply to petty, as well as more serious, offenses. In so doing, it did not indicate that the additional penalty of a term of probation was to place otherwise petty offenses in the 'serious' category. In other words, Congress decided that petty offenses may be punished by any combination of penalties authorized by 18 U.S.C. § 1 and 18 U.S.C. § 3651. Therefore, the maximum penalty authorized in petty offense cases is not simply six months' imprisonment and a $500 fine. A petty offender may be placed on probation for up to five years and, if the terms of probation are violated, he may then be imprisoned for six months. 18 U.S.C. § 3653.
7
In Cheff, this Court undertook to categorize criminal contempts for purposes of the right to trial by jury. In the exercise of its supervisory power over the lower federal courts, the Court decided by analogy to 18 U.S.C. § 1 that penalties not exceeding those authorized for petty offenses could be imposed in criminal contempt cases without affording the right to a jury trial.5 We think the analogy used in Cheff should apply equally here. Penalties presently authorized by Congress for petty offenses, including a term on probation, may be imposed in federal criminal contempt cases without a jury trial. Probation is, of course, a significant infringement of personal freedom, but it is certainly less onerous a restraint than jail itself.6 In noncontempt cases, Congress has not viewed the possibility of five years'probation as onerous enough to make an otherwise petty offense 'serious.' This Court is ill-equipped to make a contrary determination for contempt cases. As this Court said in Clawans, '(d)oubts must be resolved, not subjectively by recourse of the judge to his own sympathy and emotions, but by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgments.' 300 U.S., at 628, 57 S.Ct., at 663.
8
Petitioner's sentence is within the limits of the congressional definition of petty offenses. Accordingly, it was not error to deny him a jury trial.
9
Affirmed.
10
Mr. Justice HARLAN and Mr. Justice STEWART, adhering to the views expressed in the dissenting opinion of Mr. Justice Harlan in Bloom v. Illinois, 391 U.S. 194, 215, 88 S.Ct. 1477, 1487, and in Part I of Mr. Justice Harlan's separate opinion in Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, but considering themselves bound by the decisions of the Court in those cases, join in the above opinion on these premises.
11
Mr. Chief Justice WARREN, with whom Mr. Justice DOUGLAS joins, dissenting.
12
The Court's decision today marks an unfortunate retreat from our recent decisions enforcing the Constitution's command that those accused of criminal offenses be afforded their fundamental right to a jury trial. See, e.g. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). At the same time, the Court announces an alarming expansion of the nonjury contempt power, the excessive use of which we have so recently limited in Bloom v. Illinois, supra, and Cheff v. Schnackenberg, supra. The inescapable effect of this recession will be to put a new weapon for chilling political expression in the unrestrained hands of trial judges. Now freed from the checks and restraints of the jury system, local judges can achieve, for a term of years, significant control over groups with unpopular views through the simple use of the injunctive and contempt power together with a punitive employment of the probation device, the conditions of which offer almost unlimited possibilities for abuse. Because I do not desire to contribute to such a result, and because I believe the Court's rationale rests on a misreading of the probation statute, I must note my dissent.
I.
13
Today's decision stands as an open suggestion to the courts to utilize oppressive practices for avoiding, in unsettled times such as these, issues that must be squarely faced and for denying our minorities their full rights under the First Amendment. In order to inhibit, summarily, a group seeking to propagate even the least irritating views, a trial judge need only give a quick glance at the Court's opinion to recognize the numerous options now open to him. If, for instance, a large number of civil rights advocates, labor unionists, or student demonstrators are brought into court on minor trespass or disturbance charges, a jury will not be required even though the court proposes to control their lives for as long as five years. Without having to wait for a jury conviction, the trial judge would be free to impose, at will, such a lengthy probation sentence with onerous probation conditions—the effect of which could be oppressive. A trial judge need not wait until laws are violated and prosecutions are actually brought. He can simply issue a blanket injunction against an unpopular group, cite its members for contempt en masse for the slightest injunction violation, deny them a jury, and then, by imposing strict conditions, effectively deprive them of any meaningful freedom for an indefinite period of up to five years. Despite our recent efforts to curb its use (see Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968)) the injunction power has today become, when used with this newly liberated contempt power, too awesome a weapon to place in the hands of one man. The situation presented by Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), is but one example of the power now made freely available to trial judges.
14
The probation conditions imposed in this case (see n. 6, ante) illustrate the high degree of control that courts, together with their probation officers, can maintain over those brought before them. Thus, a court can require defendants to keep 'reasonable hours' and, in addition, prohibit them from leaving the court's jurisdiction without the probation officer's permission. By instructing the probation officer to construe the reasonable hours restriction strictly and to refuse permission to leave the jurisdiction, a trial court can thereby virtually nullify a person's freedom of movement. Moreover, a court can insist that a defendant 'work regularly,' and thereby regulate his working life as well. Finally, a court can order a defendant to associate only with 'law-abiding' persons, thereby significantly limiting his freedom of association, for this condition, which does not limit revocation of probation to 'knowing association, 'forces him to choose his acquaintances at his peril.
15
Even these conditions, restrictive as they are, do not represent all the conditions available to a trial judge; he may impose others, and, of course, change or add to the conditions at any time during the five-year period.1 The court's ability, further, to impose a six-month prison term for a probation violation at any time during that period, even after four years and 11 months, leaves no room for doubt as to the power of the probation officer to enforce the restrictions most severely. And finally, the ease with which a probation officer can find a violation of so many broad conditions enhances the value of the probation device as a harassment tactic. Once having found a violation, of course, a trial court need not bother with a fair adversary hearing before committing the offenders to prison, for Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), does not require counsel at proa tion revocation hearings in misdemeanor cases.
16
If, in hamstringing protest groups, a trial judge is bound only by a five-year maximum probation period and the limits of his imagination in conceiving restrictive conditions, I would at least require that those on the receiving end be tried frist by a jury. And the trend may be to allow the States even more leeway than federal courts, for there is nothing in the Court's opinion to prohibit a State from allowing more than five years' probation, or as much as 10 or 15 years. Thus far, we have not held the States to as strict a standard as the federal system; for while we have ruled that no crime punishable by more than six months may be tried without a jury in the federal courts (see Cheff, supra), we have yet to find a jury necessary for any crime punishable by less than two years in state courts (see Duncan, supra). Furthermore, under the Court's practice of looking to legislative definitions and 'existing * * * practices in the Nation,' Duncan, supra, at 161, 88 S.Ct. at 1453, for indications of the seriousness of crimes in determining when the right to jury attaches, the Court might accept a State's legislative efforts to allow an indefinite period of probation for professed 'petty' offenses. Even at present many States allow more than five years' probation, and some States allow trial courts to impose unlimited probationary sentences.2
II.
17
The painful aspect of today's decision is that its rationale is as impermissible as its consequences. The Court's holding that petitioner's sentence is 'within the limits of the congressonal definition of petty offenses' is no less than astounding. In the first place, Congress acted quite without regard to the crime classification set out in 1909 (the present section is based on the Act on March 4, 1909, c. 321, § 335, 35 Stat. 1152) when it passed the probation system in 1925 (Act of March 4, 1925, c. 521, § 1, 43 Stat. 1259). There is simply no indication in the statute itself or its legislative history that 18 U.S.C. § 3651 was intended to modify, complement, add to, or even relate to the petty offense definition, or any definition, in 18 U.S.C. § 1; the reference to capital or life sentence cases, for which probation is prohibited, is made in § 3651 itself, without citation to 18 U.S.C. § 1. More importantly, however, there is every indication that Congress affirmatively determined that probation should not affect its earlier definitions by making probation freely available to virtually all crimes—including most felonies not thereby rendered 'petty' because of probation's imposition. In the second place, even if Congress did 'add' probation to the 'petty' offense definition, the expanded definition would not necessarily be as binding on us as the Court seems to suggest. We cannot, it seems to me, place unlimited reliance on legislative definitions and 'existing * * * practices in the Nation' and thereby allow Congress and the States to rewrite the Sixth Amendment of the Constitution by simply terming 'petty' any offense regardless of the underlying sentence.
18
The Court's misapprehension of the probation statute can better be understood by analyzing first how it arrived at its decision. In holding that a trial judge, acting without a jury conviction, can sentence a man to serve at least five years on probation and an additional six months, the Court purports to rely on, and not overrule, Cheff, supra, where we held that six months' imprisonment was the maximum sentence that could be imposed without a jury in federal cases. We arrived at that determination by seeking 'objective indications of the seriousness with which society regards the offense,' ante, at 148, the standard we have traditionally used in determining whether a partiu lar crime can be classified as 'petty' and thus tried without a jury. See District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937); Duncan v. Louisiana, supra; Bloom v. Illinois, supra. As the Court notes, Cheff found the 'objective criteria' by analogy to 18 U.S.C. § 1, the congressional definitional section which states that an offense punishable by six months or less is a 'petty' offense, and followed that determination in ruling that a six months', nonjury contempt sentence was permissible. The Court pursues that analogy in this case. Thus, it argues that since Congress has also provided that up to five years' probation can be imposed for a 'petty' offense, apparently without making such an offense 'serious' under the definitional section, petitioner, whose sentence fell within that five-year limit, was not entitled to a jury trial.
19
Such a leap from the definition of petty offenses in 18 U.S.C. § 1 to the provision for probation in 18 U.S.C. § 3651 ascribes to Congress a determination I am certain it did not make, and misconstrues the nature of the probation statute. The probationary scheme does not purport to set specific sentences for particular classes of crimes, thus evincing an 'objective indication' of the 'seriousness with which society regards the offense,' the standard we have used in determining when the right to jury trial attaches. Rather, it is designed to allow a sentencing judge to put aside the statutorily prescribed prison term and to try instead to fashion a specific, ameliorative sentence for the individual criminal before the court. The sentence should be consistent with probations's basic purpose of providing 'an individualized program offering a young or unhardened offender an opportunity to rehabilitate himself without institutional confinement,' Roberts v. United States, 320 U.S. 264, 272, 64 S.Ct. 113, 117, 88 L.Ed. 41 (1943), before such imprisonment 'should stain the life of the convict,' United States v. Murray, 275 U.S. 347, 357, 48 S.Ct. 146, 149, 72 L.Ed. 309 (1928).
20
The focus of probation is not on how society views the offense, but on how the sentencing judge views the offender. 'Through the social investigation of the probation officer and the power to place suitable cases on probation,' the House Judiciary Committee stated in support of the first probation bill to be signed into law, 'the court is enabled to discriminate and adapt its treatment to fit the character and circumstances of the individual offender.' H.R. Rep. No. 423, 68th Cong., 1st Sess., 2 (1924). The necessity to 'individualize each case, to give that careful, humane, and comprehensive consideration to the particular situation of each offender,' we have held, requires the 'exercise of a broad discretion' and 'an exceptional degree of flexibility.' Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266 (1932). In exercising that broad discretion, of course, a sentencing judge can utilize probation in all but capital or life sentence cases.
21
In orienting the probation system toward the individual criminal and not the crime itself, and in making it available for felonies and misdemeanors as well as petty offenses, Congress clearly did no intend the maximum five-year probation period to be any indication of society's views of the seriousness of crimes in general, except to provide that probation is inappropriate for capital or life sentence cases. Although the Court holds that 'Congress has not viewed the possibility of five years' probation as onerous enough to make an otherwise petty offense 'serious," presumably the Court would not be willing to hold that the upper limit of only five years' probation is light enough to make any serious offense 'petty.' For I do not take the Court's opinion to mean that in areas of economic and public health regulation such as tax, antitrust, and drug control, where probation is often granted, a trial judge could deny a defendant's demand for a jury trial by stating at the outset his intentiont o grant probation with a maximum of six months' imprisonment on violation of its terms. I raise the possibility3 only because I think its shows that Congress enacted the probation system quite without regard to the 'petty-serious' crime distinction, intending the system to have no impact on legislative judgments as to the relative seriousness of classes of crimes generally.
22
In view of this background, the fact that Congress could not, in all events, limit the right to a jury trial by the use of statutory 'definitions,' and the dangers noted above in allowing a six-months-plus sentence to be imposed without a jury, I would stand by this Court's decision in Cheff, supra, and say that six months is the maximum permissible nonjury sentence, whether served on probation or in prison, or both. Thus, only a two months' jail term could be imposed in federal courts, for instance, if probation were revoked after four months. I dissent from the Court's opinion holding otherwise.
23
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
24
I cannot say what is and what is not a 'petty crime.' I certainly believe, however, that where punishment of as much as six months can be imposed, I could not classify the offense as 'petty' if that means that people tried for it are to be tried as if we had no Bill of Rights. Art. III, § 2, of the Constitution provides that:
25
'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury * * *.'
And in Amendment VI it is provided that:
26
'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *.'
27
Neither of these provisions gives any support for holding that a defendant charged with a crime is not entitled to a jury trial merely because a court thinks the crime is a 'petty' one. I do not deny that there might possibly be some offenses charged for which the punishment is so minuscule that it might be thought of as petty. But to my way of thinking, when a man is charged by a governmental unit with conduct for which the Government can impose a penalty of imprisonment for any amount of time, I doubt if I could ever hold it petty. (See my dissent in Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 223, 88 S.Ct. 1472, 1476, 20 L.Ed.2d 538.) Nor do I take any stock in the idea that by naming an offense for which a man can be imprisoned a 'contempt,' he is any the less charged with a crime. See Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 648, 2 L.Ed.2d 672 (dissenting opinion), and United States v. Barnett, 376 U.S. 681, 724, 84 S.Ct. 984, 1007, 12 L.Ed.2d 23 (dissenting opinion). Those who commit offenses against courts should be no less entitled to the Bill of Rights than those who commit offenses against the public in general.
28
For these reasons I dissent from the Court's holding that the petitioner in this case is not netitled to a trial by jury.
1
Congress has provided for a jury trial in certain cases of criminal contempt. See, e.g., 18 U.S.C. §§ 402, 3691, 3692. Section 3691 provides for a jury trial in constempts involving willful disobedience of court orders where the 'act or thing done or omitted also constitutes a criminal offense under any Act of Congress, or under the laws of any state * * *.' The present case falls within an exception to that rule for cases involving disobedience of any court order 'entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.'
2
If the statute creating the offense specifies a maximum penalty, then of course that penalty is the relevant criterion. See Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472 (1968).
3
The Court in Cheff relied on 18 U.S.C. § 1, which defines a petty offense as '(a)ny misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both * * *.'
4
If imposition of sentence is suspended, the court may upon revocation of probation 'impose any sentence which might originally have been imposed.' 18 U.S.C. § 3653. Under Cheff, that sentence would be limited to six months' imprisonment.
5
'(W)e are constrained to view the (contempt) proceedings here as equivalent to a procedure to prosecute a petty offense, which under our decisions does not require a jury trial. * * * According to 18 U.S.C. § 1 (1964 ed.), '(a)ny misdemeanor, the penalty for which does not exceed imprisonment for a period of six months' is a 'petty offense.' Since Cheff received a sentence of six months' imprisonment * * *, and since the nature of criminal contempt, an offense sui generis, does not, of itself, warrant treatment otherwise * * *, Cheff's offense can be treated only as 'petty' in the eyes of the statute and our prior decisions. We conclude therefore that Cheff was properly convicted without a jury.' Cheff v. Schnackenberg, supra, at 379—380, 86 S.Ct. at 1525 1526.
6
Petitioner is required to make monthly reports to his probation officer, associate only with law-abiding persons, maintain reasonable hours, work regularly, report all job changes to his probation officer, and not leave the probation district without the permission of his probation officer.
1
If its onerous conditions multiplied, probation could be even more restrictive than the emerging prison work-release programs.
2
See the appendix to the Government's brief before this Court for a survey of state probation law and practices.
3
The actual question could never arise, of course, under the Court's present practice of looking, in noncontempt cases, to the statute for the maximum penalty that could be imposed, rather than the sentence actually meted out, for its determination that a jury is or is not required.
| 01
|
395 U.S. 100
89 S.Ct. 1562
23 L.Ed.2d 129
ZENITH RADIO CORPORATION, Petitioner,v.HAZELTINE RESEARCH, INC., et al.
No. 49.
Argued Jan. 22, 1969.
Deciding May 19, 1969.
[Syllabus from pages 100-103 intentionally omitted]
Thomas C. McConnell, Chicago, Ill., for petitioner.
John T. Chadwell and Victor P. Kayser, Chicago, Ill., for respondents.
[The balance of this page intentionally left blank]
Mr. Justice WHIT delivered the opinion of the Court.
1
Petitioner Zenith Radio Corporation (Zenith) is a Delaware Corporation which for many years has been successfully engaged in the business of manufacturing radio and television sets for sale in the United States and foreign countries. A necessary incident of Zenith's operations has been the acquisition of licenses to use patented devices in the radios and televisions it manufactures, and its transactions have included licensing agreements with respondent Hazeltine Research, Inc. (HRI), an Illinois corporation which owns and licenses domestic patents, principally in the radio and television fields. HRI is the wholly owned subsidiary of respondent Hazeltine Corporation (Hazeltine), a substantially larger and more diversified company that has among its assets numerous foreign patents—including the foreign counterparts of HRI's domestic patents—which it licenses for use in foreign countries.
2
Until 1959, Zenith had obtained the right to use all HRI domestic patents under HRI's so-called standard package license. In that year, however, with the expiration of Zenith's license imminent, Zenith declined to accept HRI's offer to renew, asserting that it no longer required a license from HRI. Negotiations proceeded to a stalemate, and in November 1959, HRI brought suit in the Northern District of Illinois, claiming that Zenith television sets infringed HRI's patents on a particular automatic control system. Zenith's answer alleged invalidity of the patent asserted and noninfringement, and further alleged that HRI's claim was unenforceable because of patent misuse as well as unclean hands through conspiracy with foreign patent pools. On May 22, 1963, more than three years after its answer had been filed, Zenith filed a counterclaim against HRI for treble damages and injunctive relief, alleging violations of the Sherman Act by misuse of HRI patents, including the one in suit, as well as by conspiracy among HRI, Hazeltine, and patent pools in Canada, England, and Australia. Zenith contended that these three patent pools had refused to license the patents placed within their exclusive licensing authority, including Hazeltine patents to Zenith and others seeking to export Americanmade radios and televisions into those foreign markets.
3
The District Court, sitting without a jury, ruled for Zenith in the infringement action, 239 F.Supp. 51, 68—69, and its judgment in that respect, which was affirmed by the Court of Appeals, 388 F.2d 25, 30—33, is not in issue here. On the counterclaim, the District Court ruled, first that HRI had misused its domestic patents by attempting to coerce Zenith's acceptance of a five-year package license, and by insisting on extracting royalties from unpatented products. 239 F.Supp., at 69—72, 76—77. Judgment was entered in Zenith's favor for treble the amount of its actual damages of approximately $50,000, and injunctive relief against further patent misuse was awarded. Second, HRI and Hazeltine were found to have conspired with the foreign patent pools to exclude Zenith from the Canadian, English, and Australian markets. Hazeltine had granted the pools the exclusive right to license Hazeltine patents in their respective countries and had shared in the pools' profits, knowing that each pool refused to license its patents for importation and that each enforced its ban on imports with threats of infringement suits. HRI, along with its coconspirator, Hazeltine, was therefore held to have conspired with the pools to restrain the trade or commerce of the United States, in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1, and was liable for injury caused Zenith's foreign business by the operation of the pools. 239 F.Supp., at 77 78. Total damages with respect to the three markets, when trebled, amounted to nearly $35,000,000.1 Judgment in this amount was awarded Zenith, along with injunctive relief against further participation in any arrangement to prevent Zenith from exportig electronic equipment into any foreign market.
4
Relying upon its finding that HRI and Zenith had stipulated before trial that HRI and Hazeltine were to be considered as one entity for purposes of the litigation, see 239 F.Supp., at 69, the court entered judgments for treble damages and injunctive relief, both with respect to patent misuse and conspiracy, against Hazeltine as well as against the named counter-defendant, HRI.
5
On appeal by HRI and Hazeltine, the Court of Appeals set aside entirely the judgments for damages and injunctive relief entered against Hazeltine, ruling that the District Court lacked jurisdiction over that company and that the stipulation relied upon by the District Court was an insufficient basis for entering judgment against Hazeltine. 388 F.2d, at 28—30. With respect to Zenith's patent misuse claim, the Court of Appeals affirmed the treble-damage award against HRI, but modified in certain respects the District Court's injunction against further misuse. 388 F.2d, at 33—35, 39.
6
The Court of Appeals also reversed the treble-damage award for conspiracy to restrain Zenith's export trade. Without reaching any of the other issues presented by the appeal on this phase of the case, the court held that Zenith had failed to sustain its burden under § 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, to prove the fact of damage—injury to its business-within the relevant four-year period preceding May 22, 1963, the date Zenith's counterclaim was filed.2 Finally, the Court of Appeals struck the injunction against HRI's participation in conspiracies restricting Zenith's trade in foreign markets.
7
We granted certiorari, 391 U.S. 933, 88 S.Ct. 1844, 20 L.Ed.2d 853, to consider among other things the question whether the Court of Appeals properly discharged its appellate function under Rule 52(a) of the Federal Rules of Civil Procedure, which specifies that the findings of fact made by a District Court sitting without a jury are not to be set aside unless 'clearly erroneous.'
I. THE JUDGMENTS AGAINST HAZELTINE
8
The named plaintiff in the patent infringement complaint which began this litigation was HRI, not its parent, Hazeltine; Zenith's counterclaim named only HRI as the 'counter-defendant,' identifying HRI and Hazeltine as 'counter-defendant and its parent.' After Zenith had filed its answer and had delivered a draft of its counterclaim to HRI's attorneys—both the answer and the counterclaim alleging that HRI had unlawfully conspired with Hazeltine and foreign patent pools—HRI and Zenith stipulated that 'for purposes of this litigation Plaintiff and its parent Hazeltine Corporation will be considered to be one and the same company.'
9
On May 22, 1963, two weeks after the stipulation had been signed, Zenith filed its counterclaim, seeking money damages from HRI and an injunction against HRI and those 'in privity' with it. Hazeltine was not served with the counterclaim and was not named as a party, although it was alleged to be a coconspirator with HRI and the foreign patent pools. Hazeltine made no appearance in the litigation until Zenith proposed that judgment be entered against it, at which time Hazeltine filed a 'special appearance.' Insofar as the record reveals, Hazeltine did not formally participate in the proceedings until after the District Court had entered its initial findings of fact and conclusions of law. On April 5, 1965, after Hazeltine's special appearance, the trial judge entered judgment against Hazeltine as well as HRI, thereby rejecting Hazeltine's objection that the court was without jurisdiction over it. Apparently, the trial court based its decision on the pretrial stipulation3 and its earlier finding that:
10
'The parties stipulated that for the purposes of this litigation Hazeltine Research, Inc. and its parent, Hazeltine Corporation, would be considered as one entity operating as a patent holding and licensing company, engaged in the exploitation of patent rights in the electronics industry in the United States and in foreign countries.' 239 F.Supp., at 69.
11
The Court of Appeals was quite right in vacating the judgments against Hazeltine. It is elementary that one is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process. Hansberry v. Lee, 311 U.S. 32, 40—41, 61 S.Ct. 115, 117, 85 L.Ed. 22 (1940). The consistent constitutional rule has been that a court has no power to adjudict e a personal claim or obligation unless it has jurisdiction over the person of the defendant. E.g., Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878); Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1362, 1 L.Ed.2d 1456 (1957).
12
Here, Hazeltine was not named as a party, was never served and did not formally appear at the trial. Nor was the stipulation an adequate substitute for the normal methods of obtaining jurisdiction over a person or a corporation. The stipulation represented HRI's agreement to be bound by and to be liable for the acts of its parent, but it was signed only by HRI, through its attorney, Dodds. Hazeltine did not execute the stipulation, and Dodds, although an officer of Hazeltine, did not purport to be signing on its behalf. The trial court apparently viewed the stipulation as binding Hazeltine, as equivalent to an entry of appearance, or as consent to entry of judgment against it. The stipulation on its face, however, hardly warrants this construction, and if there were other circumstances which justified the trial court's conclusion, the findings do not reveal them.
13
Perhaps Zenith could have proved and the trial court might have found that HRI and Hazeltine were alter egos; but absent jurisdiction over Hazeltine, that determination would bind only HRI. If the alter ego issue had been litigated, and if the trial court had decided that HRI and Hazeltine were one and the same entity and that jurisdiction over HRI gave the court jurisdiction over Hazeltine, perhaps Hazeltine's appearance before judgment with full opportunity to contest jurisdiction would warrant entry of judgment against it. But that is not what occurred here. The trial court's judgment against Hazeltine was based wholly on HRI's stipulation. HRI may have executed the stipulation to avoid litigating the alter ego issue,4 but this fact cannot foreclose Hazeltine, which has never had its day in court on the question of whether it and its subsidiary should be considered the same entity for purposes of this litigation.
14
Likewise, were it shown that Hazeltine through its officer, Dodds, in fact controlled the litigation on behalf of HRI, and if the claim were made that the judgment against HRI would be res judicata against Hazeltine because of this control, that claim itself could be finally adjudicated against Hazeltine only in a court with jurisdiction over that company.5 See G. & C. Merriam Co. v. Saalfield, 241 U.S. 22, 36 S.Ct. 477, 60 L.Ed. 868 (1916); Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 81 S.Ct. 557, 5 L.Ed.2d 546 (1961).
15
Neither the judgment for damages nor the injunction against Hazeltine was proper. Although injunctions issued by federal courts bind not only the parties defendant in a suit, but also those persons 'in active concert or participation with them who receive actual notice of the order by personal service or otherwise,' Fed.Rule Civ.Proc. 65(d), a nonparty with notice cannot be held in contempt until shown to be in concert or participation. It was error to enter the injunction against Hazeltine, without having made this determination in a proceeding to which Hazeltine was a party.6
II. THE FOREIGN PATENT POOLS
A. The Treble-Damage Award
16
HRI's major points in the Court of Appeals were that no injury to Zenith's business during the damage period had been proved; that if Zenith had suffered injury, it resulted wholly or partly from conduct prior to May 22, 1959, and to this extent was barred by the statute of limitations and by Zenith's 1957 settlement of certain antitrust litigation against RCA, General Electric, and Western Electric, which had the effect of releasing HRI from all liability for presettlement acts of the foreign patent pools;7 that the Hazeltine companies had not illegally conspired with foreign pools; and that the damage award was excessive. Passing the other issues pressed by HRI, including the limitations defense, the Court of Appeals held that Zenith had failed to prove any injury to its export business during the damage period which resulted from pool activities either before or after the beginning of the damage period, and that the District Court's finding to the contrary was clearly erroneous.8
17
We have concluded that the Court of Appeals erred in setting aside the District Court's decision with respect to the fact of damage in Canada. Zenith's evidence, although by no means conclusive, was sufficient to sustain the inference that Zenith had in fact been injured to some extent9 by the Canadian pool's restraints upon imports of radio and television sets. On the other hand, we agree with the Court of Appeals that the District Court erred as to the English and Australian markets.
18
The findings of the District Court with respect to the operations of the Canadian pool may be briefly summarized. The Canadian patent pool, Canadian Radio Patents, Ltd. (CRPL), was formed in 1926 by the General Electric Company of the United States through its subsidiary, Canadian General Electric Company, and by Westinghouse through its Canadian subsidiary. The pool was made up largely of Canadian manufacturers, most of which were subsidiaries of American companies. The pool for many years had the exclusive right to sublicense the patents of its member companies and also those of Hazeltine and a number of other foreign concerns. About 5,000 patents were available to the pool for licensing, and only package licenses were granted, covering all patents in the pool and strictly limited to manufacture in Canada. No license to importers was available. The chief purpose of the pool was to protect the manufacturing members and licensees from competition by American and other foreign companies seeking to export their products into Canada.
19
CRPL's efforts to prevent importation of radio and television sets from the United States were highly organized and effective. Agents, investigators, and manufacturer and distributor trade associations systematically policed the market; warning notices and advertisememts advised distributors, dealers, and even consumers against selling or using unlicensed equipment. Infringement suits or threats thereof were regularly and effectively employed to dissuade dealers from handling American-made sets.
20
For many years Zenith attempted to establish distribution in Canada, but distributors were warned off by the pool, and Zenith's efforts to secure a license for American-made goods were unsuccessful. Zenith then brought an antitrust suit against RCA, General Electric, and Western Electric.10 This litigation was favorably settled, Zenith receiving, among other things, worldwide licenses on patents owned by the named defendants. Armed with these and other licenses, Zenith in 1958 began exporting radio and television products to Canada. It was promptly informed by CRPL that to continue business in Canada, Zenith would be required to sign CRPL's standard license, which did not permit importation, ad that to sell in Canada it must manufacture there. Zenith was notified at the time that it was infringing at least one of Hazeltine's patents which had been placed with CRPL for licensing in Canada. Soon after this demand by CRPL, HRI began its infringement suit against Zenith.
21
Some of the trial court's findings describing the operations of the Canadian pool and its 'drastic' impact upon Zenith's foreign commerce did not date the events or state whether they had occurred before or after May 22, 1959. The damage award was confined to injuries sustained during the statutory period, but the trial court apparently deemed it immaterial whether the damage-causing acts occurred before or after the start of the damage period. Damages were awarded on the assumption that Zenith, absent the conspiracy, would have had 16% of the Canadian television market on May 22, 1959, and throughout the damage period rather than its actual 3% share.11 Since the failure to have 16% of the market on the first day of the damage period was ascribed to pool operations, those operations must have occurred prior to May 22, 1959. Some part of the damages awarded, therefore, necessarily resulted from pre-damage period conduct.12
22
The Court of Appeals reversed the District Court because it considered the evidence insufficient to prove the fact of any damage to Zenith after May 22, 1959. Having put aside HRI's statute of limitations defense, belatedly raised in the District Court and pressed in the Court of Appeals,13 the import of the court's decision was that Zenith had not been damaged after May 22, 1959, by any act of the pool, whether occurring before or after that date. The Court of Appeals' overriding judgment—as it had to be if its no-injury rationale were to meet claims of damage period injury from pre-damage period conduct—was that Zenith would have done no more business in Canada after May 22, 1959, had the patent pool never operated in that country.
23
The Court of Appeals was clearly in error. The evidence was quite sufficient to sustain a finding that competing business concerns and patentees joined together to pool their Canadian patents, granting only package licenses and refusing to license imported goods. Their clear purpose was to exclude concerns like Zenith from the Canadian market unless willing to manufacture there. Zenith, consequently, was never able to obtain a license. This fact and the pool's vigorous campaign to discourage importers, distributors, dealers, and consumers from selling, handling, or using unlicensed foreign merchandise effectively prevented Zenith from making any headway in the Canadian market until after the 1957 settlement with RCA and its codefendants. And even in 1958, when Zenith undertook in earnest to establish its distribution system in Canada and to market its merchandise, Zenith was met with further pool advertisements threatening action against imported goods and further notifications, continuing past May 22, 1959, that its products were infringing pool patents and that no license was available unless Zenith manufactured in Canada.
24
This evidence clearly warrants the inference that CRPL's past conduct interfered with and made more difficult the distribution of Zenith products in 1959 and later years. The District Court could reasonably conclude that the cumulative effects of the pool's campaign against imported goods had consequences lasting well into the damage period. It could also rationally be found from the evidence that Zenith, beginning in 1958, could not have reached its maximum potential by May 22, 1959, that the pool had effectively prevented an earlier beginning, and that Zenith therefore suffered damage during the damage period from having a smaller share of the market than it would have had if the pool had never existed.
25
We also conclude that the record evidence is sufficient to support a finding of damage resulting from events occurring after the beginning of the damage period. We need not merely assume that the Canadian pool continued throughout the period of this suit, as we are entitled to do in the absence of clear evidence of its termination. See, e.g., Local 167 of International Brother-hood of Teamsters, Chauffeurs, Stablemen & Helpers of America v. United States, 291 U.S. 293, 297—298, 54 S.Ct. 396, 398, 78 L.Ed. 804 (1934); United States v. Oregon State Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 695, 96 L.Ed. 978 (1952). HRI frankly conceded the continuation of the pool before the District Court,14 and it appears sufficiently clear that throughout this time Zenith was deprived of what had always been refused it—a license on pool patents permitting it to sell American-made merchandise in Canada.
26
On May 12, 1959, the pool manager conferred with Zenith's vice president, informing him that Zenith was infringing pool patents and would require a license, but that licenses were granted only for local manufacture. This was followed on June 5, 1959, by a letter stating without reservation that Zenith receivers were infringing, and enclosing the pool's standard license form. This was nothing more nor less than a demand during the damage period that Zenith either manufacture in canada and take the standard package license or cease its activities in that country.15 There is no evidence that the pool ever retreated from that position during the next four years.
27
Zenith thus continued to operate without a patent license unburdened by conspiratorial conduct and granted on terms which would satisfy the antitrust laws. This deprivation in itself necessarily had an impact on Zenith and constituted an injury to its business. We find singularly unpersuasive the argument that Zenith was as well off without a license as with one. This is little more than an assertion that pool licenses, from which CRPL and its participants enjoyed substantial income, were without value. Without the license, doing business in Canada obviously involved weighty risks for Zenith itself, besides requiring it to convince the trade that it could legally and effectively do business without clearance from CRPL.16
28
Of course, Zenith determined to take these risks, serious as they were. Although HRI brought the instant litigation claiming infringement of an HRI domestic patent, the foreign counterpart of which had been made available to the Canadian pool by Hazeltine, Zenith persevered in its Canadian efforts. The claim is now pressed, and the Court of Appeals held, that the pool bothered neither Zenith nor its distributors after mid-1959 and that Zenith ran the gantlet so successfully that not having a license made no difference whatsoever.
29
It is true that the record discloses no specific instance of subsequent infringement suits or threats against Zenith's existing or potential distributors or dealers But there is evidence that the pool was not dormant after May 1959. The record contains a letter from the pool to a distributor of Motorola products containing clear warnings against handling unlicensed, imported merchandise.17 More significant, the fair import of the testimony by Zenith officers was that the pool remained active during the damage period and prevented Zenith from establishing an effective distribution system throughout Canada. Zenith was able to obtain independent distributors in the Western Provinces, but it was unable to do so in the Central and the Maritime Provinces, where it necessarily relied on its own subsidiaries for distribution. These officers, experienced businessmen, also testified to the similarities between the Canadian and American markets, attributing Zenith's much poorer Canadian performance to the discouraging and repressive effects of the pool. The Court of Appeals did not refuse to credit this testimony, as HRI insists we should do,18 but accepting it as some evidence of damage, considered it of insufficient weight to prove injury to Zenith's business. In this respect the Court of Appeals both gave insufficient deference to the findings of the trial judge and failed tc adhere to the teachings of Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946), and other cases dealing with the standard of proof in treble-damage actions.
30
In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. The authority of an appellate court, when reviewing the findings of a judge a well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence. The question for the appellate court under Rule 52(a) is not whether it would have made the findings the trial court did, but whether 'on the entire evidence (it) is left with the definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). See also United States v. National Assn. of Real Estate Boards, 339 U.S. 485, 495—496, 70 S.Ct. 711, 717, 94 L.Ed. 1007 (1950); Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 289 291, 80 S.Ct. 1190, 1198—1199, 4 L.Ed.2d 1218 (1960).
31
Trial and appellate courts alike must also observe the practical limits of the burden of proof which mnay be demanded of a treble-damage plaintiff who seeks recovery for injuries from a partial or total exclusion from a market; damage issues in these cases are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other contexts. The Court has repeatedly held that in the absence of more precise proof, the factfinder may 'conclude as a matter of just and reasonable inference from the proof of defendants' wrongful acts and their tendency to injure plaintiffs' business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants' wrongful acts had caused damage to the plaintiffs.' Bigelow v. RKO Pictures, Inc., supra, 327 U.S., at 264, 66 S.Ct., at 579. See also Eastman Kodak Co. v. Southern Photo Materials Co of New York, 273 U.S. 359, 377—379, 47 S.Ct. 400, 404—405, 71 L.Ed. 684 (1927); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 561—566, 51 S.Ct. 248, 250—251, 75 L.Ed. 544 (1931).
32
In Bigelow, a treble-damage plaintiff claimed injury from a conspiracy among film distributors to deny him first-run pictures. He offered evidence comparing his profits with those of a competing theater granted first-run showings and also measuring his current profits against those earned when first-run films had been available to him. This Court, reversing the Court of Appeals, found the evidence sufficient to sustain an award of damages. Although the factfinder is not entitled to base a judgment on speculation or guesswork,
33
'the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances, 'juries are allowed to act on probable and inferential as well as direct and positive proof.' Story Parchment Co. v. Paterson Parchment Paper Co., supra, 282 U.S. 561—564, 51 S.Ct. 250, 251, 75 L.Ed. 544; Eastman Kodak Co. v. Southern Photo Material Co., supra, 273 U.S. 377—379, 47 S.Ct. 404, 405, 71 L.Ed. 684. Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery.' 327 U.S., at 264—265, 66 S.Ct., at 580.
34
Here, Zenith was denied a valuable license and submitted testimony that without the license it had encountered distribution difficulties which prevented its securing a share of the market comparable to that which it enjoyed in the United States, and which its business proficiency, demonstrated in the United States, dictated it should have obtained in Canada. CRPL was an established organization with a long history of successfully excluding imported merchandise; and in view of its continued existence during the damage period, the injury alleged by Zenith was precisely the type of loss that the claimed violations of the antitrust laws would be likely to cause. The trial court was entitled to infer from this circumstantial evidence that the necessary causal relation between the pool's conduct and the claimed damage existed. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 9 0, 696—701, 82 S.Ct. 1404, 1409—1411, 8 L.Ed.2d 777 (1962).
35
2. The English Pool.
36
Hazeltine patents were made available to the English pool in 1930. The pool issued only package licenses, restricted to local manufacture. Although pool radio patents had expired prior to the beginning of the damage period, the trial court found, and we assume, that the pool held television patents which would not be licensed for television sets made in the United States.19 Zenith was interested in the English market and made exclusive arrangements with one distributor desiring to handle its merchandise. At no time during or before the damage period, however, did Zenith make available or offer for sale a substantial number of television sets suitable for the English market or make any other serious efforts to enter that market. It attained no appreciable position in the English television market.
37
Having initially found the patent pool responsible over the years for Zenith's failure to participate in the English market, the trial court, after further proceedings, held that a government embargo, not the patent pool, was the sole reason for Zenith's not entering the English market prior to the beginning of the damage period in 1959; until then, the District Court found, the pool '(was) not called upon to exercise the type of conduct that (it) exercised in Canada.' It did not, however, retreat from its conclusion that restraints imposed by the pool had foreclosed Zenith during the damage period.20 In this respect we agree with the Court of Appeals that the trial court clearly erred. Based on our own examination of the record, we are convinced that even with the ending of the embargo in mid-1959, Zenith faced other obstacles which effectively discouraged its entry into the English market and for which the pool was not responsible.
38
Positing that Zenith could not get a license from the English pool and that it did not enter the British market before or during the damage period, the issue is whether, once the embargo was lifted, Zenith wanted and intended to enter, had the capacity to do so, and was prevented from entering by its inability to secure a patent license and by other operations of the English patent pool. Section 4 of the Clayton Act required that Zenith show an injury to its 'business or property by reason of anything forbidden in the antitrust laws.' If Zenith's failure to enter the English market was attributable to its lack of desire, its limited production capabilities, or to other factors independent of HRI's unlawful conduct, Zenith would not have met its burden under § 4.21
39
Zenith was interested in the English market; this muchi § clear. But its standard domestic television set was manufactured to operate on 525- and 625-line-per-second scanning signals, whereas the 405-line signal was standard in England until after the damage period. Similarly, while FM transmission was utilized in the United States for the audio portion, AM signals were used in England. Zenith's regular product thus was not salable in the English market. To succeed at all, Zenith had either to produce a differently equipped set or to provide for the mass conversion of its standard receivers. Unquestionably, the company had the facilities and the ability to follow either course. But it is equally clear that it pursued neither.22 A change in the standard British broadcast to include a 625-line signal was under consideration, even imminent, during the damage period. Zenith's merchandise would in any event have sold at prices substantially higher than those prevailing in the English market; tariffs and freight costs tended to widen the differential. ential. Producing a new set for the English market, or modifying existent models on a large-scale basis, would have involved substantial costs.
40
Based on the evidence before us, including the correspondence between Zenith and its British representative, we think the Court of Appeals correctly rejected the inference that 'Zenith intended to and was prepared to enter the English television market during the damage period,' and correctly concluded that Zenith was in fact 'waiting for a change in English standards to a 625-line system.' 388 F.2d, at 37. It clearly emerges from the evidence that Zenith had every intention to promote the sale of its television sets if and when the signal change occurred. Given that event, neither the absence of a pool license nor pool threats against it or its customers would have deterred Zenith from a major effort to penetrate the British market. Why the existence of the pool, which as far as the record shows was quiescent during the damage period, should be credited with the power to discourage Zenith's entry before the signal change but not after is difficult to grasp. But the question at hand is not whether, if Zenith had decided to enter the market, the pool would have been a deterrent and inflicted damage. Rather, it is whether Zenith was in fact constrained by the pool to stay out of England during the damage period or whether Zenith's own business calculus led it to await more favorable conditions. As we have said, the latter is the only permissible inference from this record.
41
3. The Australian Pool.
42
The Australian patent pool, which had exclusive rights to license Hazeltine patents, also granted licenses only for local manufacture. Had HRI and Hazeltine's conspiracy with the Australian pool effectively kept Zenith from that market, a compensable violation of the antitrust laws unquestionably would have occurred. But the findings of the District Court are wholly silent as to how the Australian pool had any impact on Zenith's business. An officer of Zenith revealed that Zenith had exported no products to Australias ince the 1920's or early 1930's. Zenith had not requested a pool license during the 20-year period preceding the trial. A government embargo was found by the District Court to have foreclosed Zenith's American-made merchandise until well into the damage period. High tariffs and shipping costs were additional barriers, as well as the prospect of vigorous competition. Nothing in the record before us would permit the inference that Zenith either intended or was prepared to enter the Australian market during the damage period. The Court of Appeals was correct in reversing the District Court's award of damages with respect to the Australian market.
43
B. The Injunction.
44
In setting aside the District Court's grant of injunctive relief against continued participation by HRI and Hazeltine in any patent pool or similar association restricting Zenith's export trade,23 the Court of Appeals stated, without more:
45
'It follows from our conclusion with respect to the foreign patent pools that injunctive relief against 'threatened loss or damage' directed at those pools, alleged by Zenith to be unlawful conspiracies, cannot be justified under 15 U.S.C. Sec. 26. Paragraph C of the injunction granted must be stricken.' 388 F.2d, at 39.
46
The evident premise for striking Paragraph C was that Zenith's failure to prove the fact of injury barred injunctive relief as well as treble damages. This was unsound, for § 16 of the Clayton Act, 15 U.S.C. § 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes injunctive relief upon the demonstration of 'threatened' injury.24 That remedy is characteristically available even though the plaintiff has not yet suffered actual injury, see Bedford Cut Stone Co. v. Journeymen Stone Cutters' Assn., 274 U.S. 37, 54—55, 47 S.Ct. 522, 527, 71 L.Ed. 916 (1927); he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur. See Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518 (1905); Bedford Cut Stone Co. v. Journeymen Stone Cutters' Assn., supra, 274 U.S. at 54, 47 S.Ct. at 527; United States v. Oregon State Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 695, 96 L.Ed. 978 (1952); United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953).
47
Moreover, the purpose of giving private parties treble-damage and injunctive remedies was not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust laws. E.g., United States v. Borden Co., 347 U.S. 514, 518, 74 S.Ct. 703, 706, 98 L.Ed. 903 (1954). Section 16 should be construed and applied with this purpose in mind, and with the knowledge that the remedy it affords, like other equitable remedies, is flexible and capable of nice 'adjustment and reconciliation betwen the public interest and private needs as well as between competing private claims.' Hecht Co. v. Bowles, 321 U.S. 321, 329—330, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944). Its availability should be 'conditioned by the necessities of the public interest which Congress has sought to protect.' Id., at 330, 64 S.Ct., at 592.
48
Judged by the proper standard, the record before us warranted the injunction with respect to Canada. The findings of the District Court were that HRI and CRPL were conspiring to exclude Zenith and others from the Canadian market; there was nothing indicating that this clear violation of the antitrust laws had terminated or that the threat to Zenith inherent in the conduct would cease in the foreseeable future. Neither the relative quiescence of the pool during the litigation nor claims that objectionable conduct would cease with the judgment negated the threat to Zenith's foreign trade.25 That threat was too clear for argument, and injunctive relief against HRI with respect to the Canadian market was wholly proper.
49
We also reinstate the injunction entered by the District Court insofar as it more broadly barred HRI from conspiring with others to restrict or prevent Zenith from entering any other foreign market. In exercising its equitable jurisdiction, '(a) federal court has broad power to restrain acts which are of the same type or class as unlawful acts which the court has found to have been committed or whose commission in the future unless enjoined, may fairly be anticipated from the defendant's conduct in the past.' NLRB v. Express Publishing Co., 312 U.S. 426, 435, 61 S.Ct. 693, 699, 85 L.Ed. 930 (1941). See also United States v. National Lead Co., 332 U.S. 319, 328—335 and n. 4, 67 S.Ct. 1634, 1638—1641, 91 L.Ed. 2077 (1947). Given the findings that HRI was conspiring with the Canadian pool, its purpose to exclude Zenith from Canada and its violation of the Sherman Act were clearly established. Its propensity for arrangements of this sort was also indicated by the findings revealing its participation in similar pools operating in England and Australia.26 Zenith, a company interested in expanding its foreign commerce and having suffered at the hands of HRI and its coconspirators in the Canadian market, was entitled to injunctive relief against like conduct by HRI in other world markets. We see no reason that the federal courts, in exercising the traditional equitable powers extended to them by § 16, should not respond to the 'salutary principle that when one has been found to have committed acts in violation of a law he may be restrained from committing other related unlawful acts.' NLRB v. Express Publishing Co., supra, 312 U.S. at 436, 61 S.Ct. at 699. Although a district court may not enjoin all future illegal conduct of the defendant, or even all future violation of the antitrust laws, however unrelated to the violation found by the court, e.g., New York, N.H. & H.R. Co. v. ICC, 200 U.S. 361, 401, 26 S.Ct. 272, 280, 50 L.Ed. 515 (1906), '(w)hen the purpose to restrain trade appears from a clear violation of law, it is not necessary that all of the untraveled roads to that end be left open and that only the worn one be closed.' International Salt Co. v. United States, 332 U.S. 392, 400, 68 S.Ct. 12, 17, 92 L.Ed. 20 (1947). This is particularly true in treble-damage cases, which are brought for private ends, but which also serve the public interest in that 'they effectively pry open to competition a market that has been closed by defendants' illegal restraints.' Id., at 401, 68 S.Ct. at 17.
50
III. THE PATENT-MISUSE ISSUE.
51
Since the District Court's treble damage award for patent misuse was affirmed by the Court of Appeals, and HRI has not challenged that award in this Court, the only misuse issue we need consider at length is whether the Court of Appeals was correct in striking the last clause from Paragraph A of the injunction,27 which enjoined HRI from
52
'A. Conditioning directly or indirectly the grant of a license to defendant-counterclaimant, Zenith Radio Corporation, or any of its subsidiaries, under any domestic patent upon the taking of a license under any other patent or upon the paying of royalties on the manufacture, use or sale of apparatus not covered by such patent.' (Emphasis added.)
53
This paragraph of the injunction was directed at HRI's policy of insisting upon acceptance of its standard five-year package license agreement, covering the 500-odd patents within its domestic licensing portfolio and reserving royalties of the licensee's total radio and television sales, irrespective of whether the licensed patents were actually used in the products manufactured.28
54
In striking the last clause of Paragraph A the Court of Appeals, in effect, made two determinations. First, under its view of Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312 (1950), conditioning the grant of a patent license upon payment of royalties on unpatented products was not misuse of the patent. Second, since such conduct did not constitute patent misuse, neither could it be violative of the antitrust laws within the meaning of § 16 of the Clayton Act, under which Zenith had sought and the District Court had granted the injunction. With respect to the first determination, we reverse the Court of Appeals. We hold that conditioning the grant of a patent license upon payment of royalties on products which do not use the teaching of the patent does amount to patent misuse.
55
The trial court's injunction does not purport to prevent the parties from serving their mutual convenience by basing royalties on the sale of all radios and television sets, irrespective of the use of HRI's inventions. The injunction reaches only situations where the patentee directly or indirectly 'conditions' his license upon the payment of royalties on unpatented products—that is, where the patentee refuses to license on any other basis and leaves the licensee with the choice between a license so providing and no license at all. Also, the injunction takes effect only if the license is conditioned upon the payment of royalties 'on' merchandise not covered by the patent—where the express provisions of the license or their necessary effect is to employ the patent monopoly to collect royalties, not for the use of the licensed invention, but for using, making, or selling an article not within the reach of the patent.
56
A patentee has the exclusive right to manufacture, use, and sell his invention. See, e.g., Bement & Sons v. National Harrow Co., 186 U.S. 70, 88—89, 22 S.Ct. 747, 754, 46 L.Ed. 1058 (1902). The heart of his legal monopoly is the right to invoke the State's power to prevent others from utilizing his discovery without his consent. See, e.g., Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 28 S.Ct. 748, 52 L.Ed. 1122 (1908); Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 43 S.Ct. 254, 67 L.Ed. 516 (1923). The law also recognizes that he may assign to another his patent, in whole or in part, and may license others to practice his invention. See, e.g., Waterman v. Mackenzie, 138 U.S. 252, 255, 11 S.Ct. 334, 335, 34 L.Ed. 923 (1891). But there are established limits which the patentee must not exceed in employing the leverage of his patent to control or limit the operations of the licensee. Among other restrictions upon him, he may not condition the right to use his patent on the licensee's agreement to purchase, use, or sell, or not to purchase, use, or sell, another article of commerce not within the scope of his patent monopoly. E.g., Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 455—459, 60 S.Ct. 618, 624 626, 84 L.Ed. 852 (1940); International Salt Co. v. United States, 332 U.S. 392, 395—396, 68 S.Ct. 12, 14—15, 92 L.Ed. 20 (1947). His right to set the price for a license does not extend so far, whatever privilege he has 'to exact royalties as high as he can negotiate.' Brulotte v. Thys Co., 379 U.S. 29, 33, 85 S.Ct. 176, 179, 13 L.Ed.2d 99 (1964). And just as the patent's leverage may not be used to extract from the licensee a commitment to purchase, use, or sell other products according to the desires of the patentee, neither can that leverage be used to garner as royalties a percentage share of the licensee's receipts from sales of other products; in either case, the patentee seeks to extend the monopoly of his patent to derive a benefit not attributable to use of the patent's teachings.
57
In Brulotte v. Thys Co., supra, the patentee licensed the use of a patented machine, the license providing for the payment of a royalty for using the invention after, as well as before, the expiration date of the patent. Recognizing that the patentee could lawfully charge a royalty for practicing a patented invention prior to its expiration date and that the payment of this royalty could be postponed beyond that time, we noted that the post-expiration royaltis were not for prior use but for current use, and were nothing less than an effort by the patentee to extend the term of his monopoly beyond that granted by law. Brulotte thus articulated in a particularized context the principle that a patentee may not use the power of his patent to levy a charge for making, using, or selling products not within the reach of the monopoly granted by the Government.
58
Automatic Radio is not to the contrary; it is not authority for the proposition that patentees have carte blanche authority to condition the grant of patent licenses upon the payment of royalties on unpatented articles. In that case, Automatic Radio acquired the privilege of using all present and future HRI patents by promising to pay a percentage royalty based on the selling price of its radio receivers, with a minimum royalty of $10,000 per year. HRI sued for the minimum royalty and other sums. Automatic Radio asserted patent misuse in that the agreement extracted royalties whether or not any of the patents were in any way used in Automatic Radio receivers. The District Court and the Court of Appeals approved the agreement as a convenient method designed by the parties to avoid determining whether each radio receiver embodied an HRI patent. The percentage royalty was deemed an acceptable alternative to a lump-sum payment for the privilege to use the patents. This Court affirmed.
59
Finding the tie-in cases such as International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947), inapposite, and distinguishing United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948), as involving a conspiracy between patentee and licensees to eliminate competition, the Court considered reasonable the 'payment of royalties according to an agreed percentage of the licensee's sales,' since '(s)ound business judgment could indicate that such payment represents the most convenient method of fixing the business value of the privileges granted by the licensing agreement.' 339 U.S., at 834, 70 S.Ct., at 898. It found nothing 'inherent' in such a royalty provision which would extend the patent monopoly. Finally, the holding by the Court was stated to be that in licensing the use of patents 'it is not per se a misuse of patents to measure the consideration by a percentage of the licensee's sales.' Ibid.
60
Nothing in the foregoing is inconsistent with the District Court's injunction against conditioning a license upon the payment of royalties on unpatented products or with the principle that patent leverage may not be employed to collect royalties for producing merchandise not employing the patented invention. The Court's opinion in Automatic Radio did not deal with the license negotiations which spawned the royalty formula at issue and did not indicate that HRI used its patent leverage to coerce a promise to pay royalties on radios not practicing the learning of the patent. No such inference follows from a mere license provision measuring royalties by the licensee's total sales even if, as things work out, only some or none of the merchandise employs the patented idea or process, or even if it was foreseeable that some undetermined portion would not contain the invention. It could easily be, as the Court indicated in Automatic Radio, that the licensee as well as the patentee would find it more convenient and efficient from several standpoints to base royalties on total sales than to face the burden of figuring royalties based on actual use.29 If convenience of the parties rather than patent power dictates the total-sales royalty provision, there are no misuse of the patents and no forbidden conditions attached to the license.
61
The Court also said in Automatic Radio that if the licensee bargains for the privilege of using the patent in all of hisp roducts and agrees to a lump sum or a percentage-of-total-sales royalty, he cannot escape payment on this basis by demonstrating that he is no longer using the invention disclosed by the patent. We neither disagree nor think such transactions are barred by the trial court's injunction. If the licensee negotiates for 'the privilege to use any or all of the patents and developments as (he) desire(s) to use them,' 339 U.S., at 834, 70 S.Ct., at 898, he cannot complain that he must pay royalties if he chooses to use none of them. He could not then charge that the patentee had refused to license except on the basis of a total-sales royalty.
62
But we do not read Automatic Radio to authorize the patentee to use the power of his patent to insist on a total-sales royalty and to override protestations of the licensee that some of his products are unsuited to the patent or that for some lines of his merchandise he has no need or desire to purchase the privileges of the patent. In such event, not only would royalties be collected on unpatented merchandise, but the obligation to pay for nonuse would clearly have its source in the leverage of the patent.
63
We also think patent misuse inheres in a patentee's insistence on a percentage-of-sales royalty, regardless of use, and his rejection of licensee proposals to pay only for actual use. Unquestionably, a licensee must pay if he uses the patent. Equally, however, he may insist upon paying only for use, and not on the basis of total sales, including products in which he may use a competing patent or in which no patented ideas are used at all. There is nothing in the right granted the patentee to keep others from using, selling, or manufacturing his invention which empowers him to insist on payment not only for use but also for producing products which do not employ his discoveries at all.
64
Of course, a licensee cannot expect to obtain a license, giving him the privilege of use and insurance against infringement suits, without at least footing the patentee's expenses in dealing with him. He cannot insist upon paying on use alone and perhaps, as things turn out, pay absolutely nothing because he finds he can produce without using the patent. If the risks of infringement are real and he would avoid them, he must anticipate some minimum charge for the license—enough to insure the patentee against loss in negotiating and administering his monopoly, even if in fact the patent is not used at all. But we discern no basis in the statutory monopoly granted the patentee for his using that monopoly to coerce an agreement to pay a percentage royalty on merchandise not employing the discovery which the claims of the patent define.
65
Although we have concluded that Automatic Radio does not foreclose the injunction entered by the District Court, it does not follow that the injunction was otherwise proper. Whether the trial court correctly determined that HRI was conditioning the grant of patent licenses upon the payment of royalties on unpatented products has not yet been determined by the Court of Appeals. And if there was such patent misuse, it does not necessarily follow that the misuse embodies the ingredients of a violation of either § 1 or § 2 of the Sherman Act, or that Zenith was threatened by a violation so as to entitle it to an injunction under § 16 of the Clayton Act. See, e.g., Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 490, 62 S.Ct. 402, 404, 86 L.Ed. 363 (1942); Transparent-Wrap Machine Corp. v. Stokes & Smith Co., 329 U.S. 637, 641, 67 S.Ct. 610, 613, 91 L.Ed. 563 (1947); Laitram Corp. v. King Crab, Inc., 245 F.Supp. 1019 (D.C.Alaska 1965). See also Report of the Attorney General's National Committee to Study the Antitrust Laws 254 (1955); R. Nordhaus & E. Jurow, Patent-Antitrust Law 122—123 (1961); Frost, Patent Misuse As A Per Se Antitrust Violation, in Conference on the Antitrust Laws and the Attorney General's Committee Report 113—123 (J. Rahl & E. Zaidins ed., 1955). Cf. Staff of Antitrust Subcommt tee of House Committee on the Judiciary, 84th Cong., 2d Sess., Antitrust Problems in the Exploitation of Patents 23 (Comm.Print.1956); Schueller, The New Antitrust Illegality Per Se: Forestalling and Patent Misuse, 50 Col.L.Rev. 170, 184—200 (1950). Whether the findings and the evidence are sufficient to make out an actual or threatened violation of the antitrust laws so as to justify the injunction issued by the District Court has not been considered by the Court of Appeals, and we leave the matter to be dealt with by that court in the first instance.
66
Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to that court for further proceedings consistent with this opinion.
67
It is so ordered.
68
Judgment of Court of Appeals affirmed in part and reversed in part, and case remanded.
69
Mr. Justice HARLAN, concurring in part and dissenting in part.
70
I concur in Parts I and II of the Court's opinion. However, I do not join Part III, in which the Court holds that a patent license provision which measures royalties by a percentage of the licensee's total sales is lawful if included for the 'convenience' of both parties but unlawful if 'insisted upon' by the patentee.
71
My first difficulty with this part of the opinion is that its test for validity of such royalty provisions is likely to prove exceedingly difficult to apply and consequently is apt to engender uncertainty in this area of business dealing, where certainty in the law is particularly desirable. In practice, it often will be very hard to tell whether a license provision was included at the instance of both parties or only at the will of the licensor. District courts will have the unenviable task of deciding whether the course of negotiations establishes 'insistence' upon the suspect provision. Because of the uncertainty inherent in such determinations, parties to existing and future licenses will have little assurance that their agreements will be enforced. And it may be predicted that after today's decision the licensor will be careful to embellish the negotiations with an alternative proposal, making the court's unravelling of the situation that much more difficult.
72
Such considerations lead me to the view that any rule which causes the validity of percentage-of-sales royalty provisions to depend upon subsequent judicial examination of the parties' negotiations will disserve rather than further the interests of all concerned. Hence, I think that the Court has fallen short in failing to address itself to the question whether employment of such royalty provisions should invariably amount to patent misuse.1
73
My second difficulty with this part of the Court's opinion is that in reality it overrules an aspect of a prior decision of this Court, Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312 (1950), without offering more than a shadow of a reason in law or economics for departing from that earlier ruling. Despite the Court's efforts to distinguish Automatic Radio, it cannot be denied that the Court there sustained a Hazeltine patent license of precisely the same tenor as the one involved here, on the ground that '(t)his royalty provision does not create another monopoly; it creates no restraint of competition beyond the legitimate grant of the patent.' 339 U.S., at 833, 70 S.Ct., at 897.
74
In finding significance for present purposes in some of the qualifying language in Automatic Radio, I believe that the Court today has misconstrued that opinion. A reading of the opinion as a whole satisfies me that the Automatic Radio Court did not consider it relevant whether Hazeltine Research had 'insisted' upon inclusion of the disputed provision, and that in emphasizing that the royalty terms had no 'inherent' tendency to extend the patent monopoly and were not a 'per se' i suse of patents, the Court was simply endeavoring to distinguish prior decisions in which patent misuse was found when the patent monopoly had been employed to 'create another monopoly or restraint of competition'. 39 U.S., at 832, 70 S.Ct., at 8972 (Emphasis added.) Until now no subsequent decision has in any way impaired this aspect of Automatic Radio.3
75
Since the Court's decision finds little if any support in the prior case law, one would expect from the Court an exposition of economic reasons for doing away with the Automatic Radio doctrine. However, the nearest thing to an economic rationale is the Court's declaration that:
76
'just as the patent's leverage may not be used to extract from the licensee a commitment to purchase, use, or sell other products according to the desires of the patentee, neither can that leverage be used to garner as royalties a percentage share of the licensee's receipts from sales of other products; in either case, the patentee seeks to extend the monopoly of his patent to derive a benefit not attributable to use of the patent's teachings.' Ante, at 136.
77
The Court then finds in the patentee a heretofore nonexistent right to 'insist upon paying only for use, and not on the basis of total sales * * *.' Ante, at 139.
78
What the Court does not undertake to explain is how insistence upon a percentage-of-sales royalty enables a patentee to obtain an economic 'benefit not attributable to use of the patent's teachings,' thereby involving himself in patent misuse. For it must be remembered that all the patentee has to license is the right to use his patent. It is solely for that right that a percentage-of-sales royalty is paid, and it is not apparent from the Court's opinion why this method of determining the amount of the royalty should be any less permissible than the other alternatives, whether or not it is 'insisted' upon by the patentee.
79
One possible explanation for the Court's result, which seems especially likely in view of the Court's exception for cases where the provision was included for the 'convenience' of both parties, is a desire to protect licensees against overreaching. But the Court does not cite, and the parties have not presented, any evidence that licensees as a class need such protection.4 Moreover, the Court does not explain why a royalty based simply upon use could not be equally overreaching.
80
Another possible justification for the Court's result might be that a royalty based directly upon use of the patent will tend to spur the licensee to 'invent around' the patent or otherwise acquire a substitute which costs less, while a percentage-of-sales royalty can have no such effect because of the licensee's knowledge that he must pay the royalty regardless of actual patent use. No hint of such a rationale appears in the Court's opinion. Moreover, under this theory a percentage-of-sales royalty would be objectionable largely because of resulting damage to the rest of the economy, through less efficient allocation of resources, rather than because of possible harm to the licensee. Hence, the theory might not admit of the Court's exception for provisions included for the 'convenience' of both parties.
81
Because of its failure to explain the reasons for the result reached in Part III, the Court's opinion is of little assistance in answering the question which I consider to be the crux of this part of the case: whether percentage-of-sales royalty provisions should be held without exception to constitute patent misuse. A recent economic analysis5 argues that such provisions may have two undesirable consequences. First, as has already been noted, employment of such provisions may tend to reduce the licensee's incentive to substitute other, cheaper 'inputs' for the patented item in producing an unpatented end-product. Failure of the licensee to substitute will, it is said, cause the price of the end-product to be higher and its output lower than would be the case if substitution had occurred.6 Second, it is suggested that under certain conditions a percentage-of-sales royalty arrangement may enable the patentee to garner for himself elements of profit, above the norm for the industry or economy, which are properly attributable not to the licensee's use of the patent but to other factors which cause the licensee's situation to differ from one of 'perfect competition,' and that this cannot occur when royalties are based upon use.7
82
If accepted, this economic analysis would indicate that percentage-of-sales royalties should be entirely outlawed. However, so far as I have been able to find, there has as yet been little discussion of these matters either by lawyers or by economists. And I find scant illumination on this score in the briefs and arguments of the parties in this case. The Court has pointed out both today and in Automatic Radio that percentage-of-sales royalties may be administratively advantageous for both patentee and licensee. In these circumstances, confronted, as I believe we are, with the choice of holding such royalty provisions either valid or invalid across the board, I would, as an individual member of the Court, adhere for the present to the rule of Automatic Radio.
1
In its initial findings, handed down on January 25, 1965, 239 F.Supp., at 76, the District Court concluded that Zenith had suffered actual damages of $16,238,872 as a result of the restraints imposed by the three pools upon Zenith's export business during the four-year damage period:
Canada:
Television............... $5,826,896
Radio....................... 470,495
England:
Television................ 8,079,859
Radio..................... 1,169,067
Australia:
Television.................. 625,786
Radio........................ 66,769
Total...................... 16,238,872
On April 5, 1965, the District Court entered partial judgment, awarding Zenith treble damages for patent misuse and treble damages with respect to Canada, but reserving jurisdiction for further hearings on damages in the English and Australian markets. The further proceedings were held in October and November 1965, after which the District Court amended its findings on damages for England and Australia:
England:
Television..................... $4,312,924
Radio............................. 745,102
Australia:
Television........................ 223,508
Radio.............................. 24,952
Total........................... 5,306,486
These revisions reflect the proof submitted at the further proceedings, showing that government embargoes in England and Australia, in effect until 1959 and 1960 respectively, precluded entry by Zenith into the English and Australian markets. The District Court found, with respect to England, that because of the embargoes, Zenith's damages were zero for the first year of the damage period, 50% of the figure initially accepted by the court for the second year, 75% for the third, and 100% for the fourth. With respect to Australia, the District Court adopted a similar 0 50—75—100% revision of the original figures used by the court in computing the damage findings of January 25, 1965.
2
The record discloses that Zenith, HRI, and the courts below all considered the damage period to be the four years prior to the date on which Zenith filed its counterclaim. No argument was made that the counterclaim, in whole or in part, related back to an earlier pleading, thereby expanding the damage period to include years prior to 1959. Cf. Bull v. United States, 295 U.S. 247, 262 and n. 10, 55 S.Ct. 695, 700-701, 79 L.Ed. 1421 (1935); Cold Metal Process Co. v. E. W. Bliss Co., 285 F.2d 231 (C.A.6th Cir. 1960), cert. denied, 366 U.S. 911, 81 S.Ct. 1085, 6 L.Ed.2d 235 (1961). Cf. Fed.Rule Civ.Proc. 15(c) (amended pleading relates back to date of original pleading if the 'claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading').
3
During the proceedings before the District Court on April 2, 1965, the trial judge noted: 'Well, of course, Hazeltine Corporation wasn't a party to the lawsuit.' The court's reliance upon the stipulation as a basis for its decision to enter judgment against Hazeltine as well as HRI is reflected by the interchanges between the court and counsel for Hazeltine during those proceedings. An example is the following:
'Mr. Kayser (counsel for Hazeltine): * * * Could anyone really believe for a minute that if he had any thought of bringing the parent into this lawsuit that he would not have named them and that he would be relying on this stipulation which was intended to simplify and expedite the trial? Would any lawyer who has been practicing for two years expect to hold somebody liable on a judgment when he didn't even name them? He relied on some pretrial stipulation.
'The Court: You mean that pretrial stipulations are worthless?'
4
There is some indication that the genesis of the stipulation was a pretrial conference, when a question was raised as to whether or not a subpoena served upon HRI could reach certain records of Hazeltine relating to the latter's foreign patents. Hazeltine, of course, argues that the stipulation's only purpose and effect were to facilitate discovery and trial by obviating the necessity of litigating whether or not Zenith could 'pierce the corporate veil' between HRI and its parent.
5
In its brief in this Court, Zenith seems to argue that Hazeltine is estopped to deny that it is bound by the stipulation. Not only was HRI's counsel, Dodds, an officer of Hazeltine, but also Ruestow and Westermann, Hazeltine's general patent counsel and general counsel, were present during trial and failed to 'repudiate' the construction allegedly given the stipulation by the parties at trial to the effect that it bound Hazeltine to any adjudication on the counterclaim. We find this theory untenable on the record of this case, for the references during trial to the stipulation are equally consistent with the interpretation advanced by Hazeltine that the stipulation merely eliminated the necessity for Zenith to perform the time-consuming task of piercing the corporate veil in proving its counterclaim against HRI. Also, Ruestow and Westermann were called as witnesses during trial, and assuming they were present throughout the trial—a fact wi ch is neither proved nor disproved by the record—their failure to repudiate Zenith's proposed construction of the stipulation is entirely consistent with the proposition that they were present only as witnesses, and not as authorized representatives for a person who might be bound by the litigation.
6
Just as the alter ego issue was not litigated after Hazeltine had made its special appearance and while it had an opportunity to be heard, see supra, at 111, so the District Court evidently did not rely upon anything more than the stipulation as a basis for entering the injunction against Hazeltine as well as HRI. The record does not support the contention, implicit in Zenith's brief, that when Hazeltine appeared to contest jurisdiction it was found by the District Court to be 'in active concert or participation' with HRI and that, by entering its special appearance, Hazeltine consented to be bound by such a finding. See generally Dobbs, The Validation of Void Judgments: The Bootstrap Principle (pts. 1 and 2), 53 Va.L.Rev. 1003, 1241 (1967).
7
Although HRI and Hazeltine were not parties to this prior litigation and did not enter the settlement agreement, HRI urged that all joint tortfeasors, including HRI and Hazeltine, were released from liability for injuries flowing from the presettlement acts of the pools. The 1957 release appears to be relevant only to Zenith's claim for injury to its Canadian trade; the embargoes in England and Australia were thought by the District Court to preclude any injury from acts of the English and Australian pools, and the embargoes were not lifted until well after the settlement was executed.
8
The Court of Appeals did not disturb, nor do we, the findings of the District Court that HRI and Hazeltine conspired with the Canadian pool to deny patent licenses to companies seeking to export American-made goods to Canada. Accepting these findings, we have no doubt that the Sherman Act was violated. See, e.g., Timken Roller Bearing Co. v. United States, 341 U.S. 593, 599, 71 S.Ct. 971, 975, 95 L.Ed. 1199 (1951); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 704, 82 S.Ct. 1404, 1413, 8 L.Ed.2d 777 (1962). Once Zenith demonstrated that its exports from the United States had been restrained by pool activities, the trebledamage liability of the domestic company participating in the conspiracy was beyond qus tion. Continental Ore Co. v. Union Carbide & Carbon Corp., supra. Cf. American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826 (1909); United States v. Aluminum Co. of America, 148 F.2d 416, 443 (C.A.2d Cir. 1945). Although patent rights are here involved, the same conclusions follow. See, for example, United States v. Line Material Co., 333 U.S. 287, 305—315, 68 S.Ct. 550, 559—564, 92 L.Ed. 701 (1948); United States v. Singer Mfg. Co., 374 U.S. 174, 196—197, 83 S.Ct. 1773, 1784—1785, 10 L.Ed.2d 823 (1963).
9
Zenith's burden of proving the fact of damage under § 4 of the Clayton Act is satisfied by its proof of some damage flowing from the unlawful conspiracy; inquiry beyond this minimum point goes only to the amount and not the fact of damage. It is enough that the illegality is shown to be a material cause of the injury; a plaintiff need not exhaust all possible alternative sources of injury in fulfilling his burden of proving compensable injury under § 4. Continental Ore Co. v. Union Carbide & Carbon Corp., supra, 370 U.S., at 702, 82 S.Ct., at 1412 (1962); Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 143 144, 88 S.Ct. 1981, 1986—1987, 20 L.Ed.2d 982 (1968) (concurring opinion).
1. The Canadian Pool.
10
Zenith's antitrust claim was asserted as a counterclaim in a patent infringement suit brought by RCA against Zenith and its subsidiary, the Rauland Corporation.
11
The computation of damages, prepared by Zenith's experts and accepted by the District Court, see 239 F.Supp., at 76, reflects a comparison between Zenith's percentage share of the United States television market, ranging from 15.6% in 1959 to 21.7% in 1963, and Zenith's actual share of the Canadian market during the same period, ranging from 3.1% in 1959 to 5.2% in 1961 and down to 3.2% in 1963. Although we discuss only the measure of damages utilized for computing Zenith's injury in the Canadian television market, a comparable method was employed to determine Zenith's lost radio sales.
12
On November 22, 1965, during the further proceedings held to consider damages for England and Australia, Zenith's executive vice-president and treasurer, Kaplan, testified:
'In Canada, our assumption was that we commenced the period starting June 1, 1959 as if we had had a full blown organization, and had enjoyed the benefits of doing business there for years prior to that date.'
13
HRI's answer to Zenith's counterclaim did not plead a statute of limitations defense. However, in the course of proceedings after entry of the District Court's initial findings of fact and conclusions of law, but before judgment, the trial court granted the oral motion of HRI's new counsel for 'leave to file' defenses based on the statute of limitations and on the release given by Zenith pursuant to the 1957 settlement agreement. The thrust of the former was primarily that the findings as to Canada had erroneously included damages resulting from conduct occurring prior to May 22, 1959. The trial court, without further mention of these defenses, forthwith refused to set aside or amend the damage award as to Canada, thus either rejecting the statute of limitations defense or considering it to have been waived under Fed.Rule Civ.Proc. 12(h), as urged by Zenith in both the District Court and the Court of Appeals.
Zenith itself had requested damages only for the four-year period prior to the filing of its counterclaim, and the findings of the District Court expressly limited the damages awarded to those occurring 'during the 4-year statutory damage period.' 239 F.Supp., at 76. The Court of Appeals, although not purporting to pass on the statute of limitations defense, referred to the 'four year damage period' and identified it as '(f)our years prior to the May 22, 1963, filing date of Zenith's counterclaim. 15 U.S.C. Sec. 15b.' 388 F.2d, at 35 and n. 4. The parties have not argued the matter here, and we make no further effort to penetrate the confusion surrounding this issue or to deal with the question of whether damage period injury from predamage period conduct is recoverable where an unwaived statute of limitations defense is properly as erted.
14
On April 1, 1965, during the further proceedings held by the District Court before judgment, counsel for HRI stated: 'Now, what (counsel for Zenith) is really trying to sell this court is the idea that if he can show that these pools continued after 1957 and, as he defines the pools, yes, yes, they did. There is no question about it, that these arrangements in relation to patents that characterized necessarl y as he characterizes them, but that these arrangements have continued and, so far as I know, are in existence today. There is no question about that.'
HRI does contend, however, that the ties between the Canadian pool and the Hazeltine companies were broken in December 1965, when Hazeltine secured an early termination of its licensing agreement with CRPL. See n. 25, infra.
15
That Zenith failed to make a formal request for a CRPL license during the damage period can properly be attributed to Zenith's recognition that such a request would have been futile. The pool had made its position entirely clear, and under these circumstances the absence of a formal request is not fatal to Zenith's case. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699—702, 82 S.Ct. 1404, 1410—1412, 8 L.Ed.2d 777 (1962); Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 487, n. 5, 88 S.Ct. 2224, 2228, 20 L.Ed.2d 1231 (1968).
16
In 1960, the Report of the Royal Commission on Patents, Copyright and Industrial Designs was published. This Report described the magnitude of the risk taken by Zenith and its distributors in selling imported products in Canada:
'The portfolio in respect of which CRPL had the right to grant licences consisted of 5,000 patents, and in the absence of a licence from CRPL it is doubtful if anyone could sell in Canada a radio or television receiver.
'CRPL indicated that it does not grant a licence to any importer of radio or television receivers * * *. It is particularly in respect of the policy of CRPL in precluding importers from bringing into Canada radio and television receivers that the complaint was made to this Commission.
'It was stated to be the policy of CRPL to enforce its patent rights against any person who sells in Canada an imported radio or television receiver which infringes any one or more of the patents in its portfolio * * *.'
17
This letter, brought to Zenith's attention by an ex-Zenith dealer, warned the Motorola dealer that his importation of American-made television sets and FM radios probably infringed pool patents. The dealer not only was cautioned that CRPL remained willing to litigate infringements, describing two recent and successful suits, but also was reminded of CRPL's policy against licensing imports:
'In closing, I wish to inform you that we would be most happy to issue a license to you to make or have made in Canada any equipment coming within the ambit of our patents.'
18
HRI urges that the trial testimony as to Canada of each of two Zenith officers, Wright and Kaplan, was inconsistent with his own testimony on recall, inconsistent with the testimony of the other, and inconsistent with documentary evidence, and that we should therefore disregard their testimony. It is true that the trial judge's views as to credibitility are not completely impervious, but Rule 52(a) admonishes due regard for the trial court's opportunity to assess the credibility of witnesses. The Court of Appeals clearly took into account this evidence, and we see no adequate basis in the record for refusing to accept the testimony of the two Zenith officers as probative evidence. See United States v. United Shoe Machinery Co., 247 U.S. 32, 37—38, 38 S.Ct. 473, 475, 62 L.Ed. 968 (1918); Walling v. General Industries Co., 330 U.S. 545, 550, 67 S.Ct. 883, 885, 91 L.Ed. 1088 (1947); Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 609—612, 70 S.Ct. 854, 856—858, 94 L.Ed. 1097 (1950); United States v. Oregon State Medical Society, 343 U.S. 326, 332, 72 S.Ct. 690, 695, 96 L.Ed. 978 (1952); Orvis v. Higgins, 180 F.2d 537, 539—540 (C.A.2d Cir.), cert. denied, 340 U.S. 810, 71 S.Ct. 37, 95 L.Ed. 595 (1950); Ruth v. Utah Construction & Mining Co., 344 F.2d 952 (C.A.10th Cir. 1965). HRI relies heavily in this respect on Zenith's annual reports for the years 1957—1962, but aside from the fact that these reports, except for 1962, were never admitted into evidence, we find them quite insufficient to undermine the credibility of Wright and Kaplan.
19
Wright testified that in mid-1955 a representative of the English pool had confirmed his understanding that 'the policy of the Pool * * * required that (radio and television) sets be made in England, and that nothing would be licensed if it was imported from abroad.' Wright further testified that the pool representative 'saw no possibility' that this restrictive policy would be changed in the future. Subsequently, during its dealings with its Engligh radio distributor, Zenith was 'given to understand that television was just out of the question.'
20
Because the embargo precluded any recovery by Zenith for the first year of the damage period, the trial court modified its initial measure of damages to reflect the time it would have taken Zenith, starting with the removal of the embargo, to build up its market share. See n. 1, supra.
21
See American Banana Co. v. United Fruit Co., 166 F. 261, 264 (C.A.2d Cir. 1908), affirmed without specific reference to this issue, 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826 (1909); Stearns v. Tinker & Rasor, 252 F.2d 589, 606 (C.A.9th Cir. 1958); Volasco Products Co. v. Lloyd A. Fry Roofing Co., 308 F.2d 383, 395—396 (C.A.6th Cir. 1962), cert. denied, 372 U.S. 907, 83 S.Ct. 721, 9 L.Ed.2d 717 (1963). Cf. Pennsylvania Sugar Rfg. Co. v. American Sugar Rfg. Co., 166 F. 254, 260 (C.A.2d Cir. 1908).
22
During trial, Wright and Kaplan testified that adjustments could be made by Zenith's English distributor in his shop to adapt Zenith television sets to the English transmission system. However, the fair import of their testimony, both during trial and in November 1965 on recall, was that conversion of Zenith sets to the English system, whether done before shipment to England or in the distributor's shop, had in fact been carried out only occasionally in the past and was of questionable utility on a commercial basis. Wright and Kaplan stated that Zenith could have manufactured a television set suitable for English use without appreciably more difficulty than Zenith faced in producing a new model for the American market, but the record does not indicate that Zenith took any steps in this direction before the end of the damage period, except in anticipation of the British changeover to the 625-line-per-second transmission system.
23
Paragraph C of the District Court's injunction prohibits HRI from
'Entering into, adhering to, enforcing or claiming any rights under any contract, agreement, understanding, plan or program, with any other person, company, patent pool, organization, association, corporation or entity which directly or indirectly restricts or prevents defendant-counterclaimant, Zenith Radio Corporation, or any of its subsidiaries, from exporting any electronic apparatus from the United States into any foreign market.'
24
Section 16 provides:
'Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, * * * when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings * * *.' (Emphasis added.) 15 U.S.C. § 26.
25
HRI informs us that Hazeltine, having obtained an early termination of its licensing agreement with CRPL, is now prepared to license any one or more of its Canadian patents 'with no restrictions on imports.' Since Hazeltine's abandonment of its participation in the Canadian pool occurred only after—and, apparently, in response to—the District Court's judgment and decree, we cannot agree with the suggestion that injunctive relief as to Canada has been rendered unnecessary and inappropriate. See United States v. Oregon State Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 695, 96 L.Ed. 978 (1952); United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 202—203, 89 S.Ct. 361, 363—364, 21 L.Ed.2d 344 (1968). Although HRI is free to attempt to demonstrate in the future that the need for injunctive relief with respect to Canada has been eliminated, or that a change of circumstances elsewhere justifies additional modification of the injunction, see, e.g., United States v. W. T. Grant Co., 345 U.S. 629, 633—636, 73 S.Ct. 894, 897—899, 97 L.Ed. 1303 (1953), we are not willing at this time to undertake a reappraisal of the injunction in light of post-trial developments.
26
Having not disturbed the District Court's findings that HRI and Hazeltine were conspiring with English and Australian patent pools which refused to license imports, the Court of Appeals in any event should have sustained the injunction with respect to the English and Australian markets. These findings, together with Zenith's demonstrated intent to expand its export business, were sufficient foundation for the conclusion that continued participation by HRI and Hazeltine in the English and Australian pools posed a significant threat of loss or damage to Zenith's business.
27
The District Court's injunction also included a paragraph barring HRI from continuing to coerce acceptance of its package license through the mechanism of offering a much lower royalty rate for those licensees who take a license on the entire package of patents rather than a license on merely a few of them. Paragraph B enjoined HRI from
'Conditioning directly or indirectly the grant of any license to defendant-counterclaimant, Zenith Radio Corporation, or any of its subsidiaries, under any domestic patent upon the payment of the same or greater royalty rate than the rate at which licenses have been granted or offered to others under a group of domestic patents which includes said patent.'
The Court of Appeals modified this paragraph in certain respects, 388 F.2d, at 39, but we do not disturb these modifications.
28
The District Court concluded:
'Plaintiff's demands that royalties be paid on admittedly unpatented apparatus constitute misuse of its patent rights and plaintiff cannot justify such use of the monopolies of its patents, by arguing the necessities and convenience to it of such a policy. While parties in an arms-length transaction are free to select any royalty base that may suit their mutual convenience, a patentee has no right to demand or force the payment of royalties on unpatented products.' 239 F.Supp., at 77.
29
The record and oral argument in Automatic Radio disclose no basis for the conclusion that Automatic Radio was forced into accepting the total-sales royalty rate by HRI's use of its patent leverage.
1
I find it unnecessary to consider the further question whether inclusion of such a provision should be held to violate the antitrust laws.
2
The Automatic Radio Court explictly distinguished a number of cases of that kind, including United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948), and Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376 (1944). See 339 U.S., at 832—833, 70 S.Ct., at 896—897.
3
Brulotte v. Thys Co., 379 U.S. 29, 85 S.Ct. 176, 13 L.Ed.2d 99 (1964), involved a different question: whether a royalty based solely upon use of the invention could be collected for use occurring after the patent's expiration.
4
Cf. American Photocopy Equip. Co. v. Rovico, 7 Cir., 359 F.2d 745 (1966).
5
Baxter, Legal Restrictions on Exploitation of the Patent Monopoly: An Economic Analysis, 76 Yale L.J. 267 (1966).
6
See id., at 299—301, 302—306.
7
See id., at 300—301, 302—306, 331—332.
| 78
|
395 U.S. 85
89 S.Ct. 1511
23 L.Ed.2d 117
The NATIONAL BOARD OF YOUNG MEN'S CHRISTIAN ASSOCIATIONS et al., Petitioners,v.UNITED STATES.
No. 517.
Argued March 3, 1969.
Decided May 19, 1969.
Ronald A. Jacks, Washington, D.C., for petitioners.
Peter L. Strauss, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioners brought this suit against the United States in the Court of Claims1 seeking just compensation under the Fifth Amendment for damages done by rioters to buildings occupied by United States troops during the riots in Panama in January 1964. The Court of Claims held that the actions of the Army did not constitute a 'taking' within the meaning of the Fifth Amendment and entered summary judgment for the United States. 396 F.2d 467, 184 Ct.Cl. 427 (1968). We granted certiorari. 393 U.S. 959, 89 S.Ct. 399, 21 L.Ed.2d 372 (1968). We affirm.
2
Petitioners' buildings, the YMCA Building and the Masonic Temple, are situated next to each other on the Atlantic side of the Canal Zone at its boundary with the Republic of Panama. Rioting began in this part of the Zone at 8 p.m. on January 9, 1964. Between 9:15 and 9:30 p.m., an unruly mob of 1,500 persons marched to the Panama Canal Administration Building at the center of the Atlantic segment of the Zone and there raised a Panamanian flag. Many members of the mob then proceeded to petitioners' buildings—and to the adjacent Panama Canal Company Office and Storage Building. They entered these buildings, began looting and wrecking the interiors, and started a fire in the YMCA Building.
3
At 9:50 p.m. Colonel Sachse, the commander of the 4th Battalion, 10th Infantry, of the United States Army, was ordered to move his troops to the Atlantic segment of the Zone with the mission of clearing the rioters from the Zone and sealing the border from further encroachment. The troops entered the three buildings, ejected the rioters, and then were deployed outside of the buildings. The mob began to assault the soldiers with rocks, bricks, plate glass, Molotov cocktails, and intermittent sniper fire. The troops did not return the gunfire but sought to contain the mob with tear gas grenades. By midnight, one soldier had been killed and several had been wounded by bullets; many others had been injured by flying debris. Shortly after midnight, Colonel Sachse moved his troops inside the three buildings so that the men might be better protected from the sniper fire.
4
The buildings remained under siege throughout the night. On the morning of January 10, the YMCA Building was the subject of a concentrated barrage of Molotov cocktails. The building was set afire, and in the early afternoon the troops were forced to evacuate it and take up positions in the building's parking lot which had been sandbagged during the night. Following the evacuation, the YMCA Building continued to be a target for Molotov cocktails. The troops also withdrew from the Masonic Temple on the afternoon of January 10, except that a small observation post on the top floor of the building was maintained. The Temple, like the YMCA Building continued to be under heavy attack following withdrawal of the troops, the greatest damage being suffered on January 12 as a result of extensive fire-bomb activity. The third building under heavy attack in the area—the Panama Canal Company Office and Storage Building—was totally destroyed on January 11 by a fire started by Molotov cocktails.
5
On January 13, the mob dispersed, and all hostile action in the area ceased. The auditorium-gymnasium in the YMCA Building had been destroyed, and the rest of the building was badly damaged. The Masonic Temple suffered considerably less damage because of its predominantly concrete and brick construction. Other buildings in the Atlantic segment of the Canal Zone were also damaged or destroyed. These buildings were all located along the boundary between the Zone and the Republic of Panama, and none, except the Office and Storgae Building, had been occupied by troops during the riot.
6
Petitioners' suit in the Court of Claims sought compensation for the damage done to their buildings by the rioters after the troops had entered the buildings. The basic facts were stipulated, and all parties moved for summary judgment. The Court found it 'abundantly clear from the record * * * that the military units dispatched to the Atlantic side of the Zone by General O'Meara were not sent there for the purpose or with the intention of requisitioning or taking (petitioners') buildings to house soldiers. Both buildings had previously been looted and damaged by the rioters. Colonel Sachse's men wee ordered to remove the Panamanians from the buildings in order to prevent further loss or destruction and then to seal off the border from further incursions by the rioters into the Atlantic portion of the Canal Zone.' 396 F.2d, at 473—474, 184 Ct.Cl., at 438. Accordingly, the court held that 'the temporary occupancy of (petitioners') buildings and the damage inflicted on them by the rioters during such occupancy did not constitute a taking of the buildings for use by the Army within the contemplation of the fifth amendment * * *.' Id., 396 F.2d, at 473, 184 Ct.Cl., at 438. The Government's motion for summary judgment was granted, petitioners' motion for summary judgment was denied, and the case was dismissed.
7
At the outset, we note that although petitioners claim compensation for all the damage which occurred after the troops retreated into the buildings in the early hours of January 10, there was no showing that any damage occurred because of the presence of the troops. To the contrary, the record is clear that buildings which were not occupied by troops were destroyed by rioters, and that petitioners' very buildings were under severe attack before the troops even arrived. Indeed, if the destroyed buildings have any common characteristic, it is not that they were occupied by American soldiers, but that they were on the border and thus readily susceptible to the attacks of the mobs coming from the Republic of Panama. We do not rest our decision on this basis, however, for petitioners would not have a claim for compensation under the Fifth Amendment even if they could show that damage inflicted by rioters occurred because of the presence of the troops.
8
The Just Compensation Clause was 'designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.' Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960); see also United States v. Sponenbarger, 308 U.S. 256, 266, 60 S.Ct. 225, 229, 84 L.Ed. 230 (1939).2 Petitioners argue that the troops entered their buildings not for the purpose of protecting those buildings but as part of a general defense of the Zone as a whole. Therefore, petitioners contend, they alone should not be made to bear the cost of the damage to their buildings inflicted by the rioters while the troops were inside. The stipulated record, however, does not support petitioners' factual premise; rather, it demonstrates that the troops were acting primarily in defense of petitioners' buildings.
9
The military had made no advance plans to use petitioners' buildings as fortresses in case of a riot. Nor was the deployment of the troops in the area of petitioners' buildings strategic to a defense of the Zone as a whole. The simple fact is that the troops were sent to that area because that is where the rioters were.3 And once the troops arrived in the area, their every action was designed to protect the buildings under attack. First, they expelled the rioters from petitioners' buildings and the Office and Storage Building, putting out the fire started by the rioters in the YMCA Building. Then they stood guard outside to defend the buildings from renewed attack by the 2,000 to 3,000 Panamanian rioters who remained in the area. In this defense of petitioners' property the troops suffered considerable losses and were forced to retreat into the buildings.
10
It is clear that the mission of the troops forced inside the buildings continued to be the protection of those buildings. In a fact sheet, to which the parties have stipulated, the General Counsel of the United States Department of the Army stated that:
11
'(T)he troops had occupied the buildings in the YMCA-Masonic Temple vicinity under instructions to protect the property, (and) their actions, according to all statements taken, were consistent with instructions. A captain, in his affidavit, states that he was given a message by the battalion commander to convey to the officer who had been placed in charge of the Masonic Temple. The order was, in the captain's words, '* * * that if the rioters attempted to enter the building with the intent to do damage to persons or property that appropriate action * * * could be used. * * *' According to the captain, the order went on to state, '* * * Those people on the 1st floor could assume that rioters forcibly entering the building had the intent to do damage to either property or persons.' The officer in charge receive that order, and it was passed along to the men. One sergeant's affidavit names the officer, and recounts receiving the order from him. In the sergeant's own words, 'The building would be defended at all costs.'
12
'Other statements by individual soldiers describe actions taken to minimize damage which the rioters were attempting to cause. Several soldiers describe throwing and firing rifle-launched tear gas grenades at rioters who were hurling Molotov cocktails at the buildings. Another describes using similar agents 'to keep the crowd from entering the YMCA,' while still others describe action by themselves or other soldiers in physically routing Panamanians from the YMCA after they had come in through the windows.' (Italics supplied.) Colonel Sachse, the commanding officer in the Atlantic riot area, testified to the same effect:
13
'The YMCA building was on fire from Molotov cocktails being thrown from the Republic of Panama side into the front of it. We were unable to protect it due to the fact that it is set on the border between the Canal Zone and the Republic of Panama. Therefore we practically lost most of this building by Molotov cocktails.'
14
Thus, there can be doubt that the United States Army troops were attempting to defend petitioners' buildings. Of course, any protection of private property also serves a broader public purpose. But where, as here, the private party is the particular intended beneficiary of the governmental activity, 'fairness and justice' do not require that losses which may result from that activity 'be borne by the public as a whole,' even though the activity may also be intended incidentally to benefit the public. See Armstrong v. United States, supra, 364 U.S. at 49, 80 S.Ct. at 1569; United States v. Sponenbarger, supra, 308 U.S. at 266, 60 S.Ct. at 229. Were it otherwise, governmental bodies would be liable under the Just Compensation Clause to property owners every time policemen break down the doors of buildings to foil burglars thought to be inside.
15
Petitioners' claim must fail for yet another reason. On oral argument, petitioners conceded that they would have had no claim had the troops remained outside the buildings, even if such presence would have incited the rioters to do greater damage to the buildings. We agree. But we do not see that petitioners' legal position is improved by the fact that the troops actually did occupy the buildings. Ordinarily, of course, governmental occupation of private property deprives the private owner of his use of the property, and it is this deprivation for which the Constitution requires compensation. See, e.g. United States v. General Motors, 323 U.S. 373, 378, 65 S.Ct. 357, 359, 89 L.Ed. 311 (1945). There are, however, unusual circumstances in which governmental occupation does not deprive the private owner of any use of his property. For example, the entry by firemen upon burning premises cannot be said to deprive the private owners of any use of the premises. In the instant case, the physical occupation by the troops did not deprive petitioners of any use of their buildings. At the time the troops entered, the riot was already well under way, and petitioners' buildings were already under heavy attack. Throughout the period of occupation, the buildings could not have been used by petitioners in any way. Thus, petitioners could only claim compensation for the increased damage by rioters resulting from the presence of the troops. But such a claim would not seem to depend on whether the troops were positioned in the buildings. Troops standing just outside a building could as well cause increased damage by rioters to that building as troops positioned inside. In either case—and in any case where government action is causally related to private misconduct which leads to property damage—a determination must be made whether the government involvement in the deprivation of private property is sufficiently direct and substantial to require compensation under the Fifth Amendment. The Constitution does not require compensation every time violence aimed against government officers damages private property. Certainly, the Just Compensation Clause could not successfully be invoked in a situation where a rock hurled at a policemen walking his beat happens to damage private property. Similarly, in the instant case, we conclude that the temporary, unplanned occupation of petitioners' buildings in the course of battle does not constitute direct and substantial enough government involvement to warrant compensation under the Fifth Amendment. We have no occasion to decide whether compensation might be required where the Government in some fashion not present here makes private property a particular target for destruction by private parties.
16
Affirmed.
17
Mr. Justice STEWART, concurring.
18
If United States military forces should use a building for their own purposes—as a defense bastion or command post, for example—it seems to me this would be a Fifth Amendment taking, even though the owner himself were not actually deprived of any personal use of the building. Since I do not understand the Court to hold otherwise, I join its judgment and opinion.
19
Mr. Justice HARLAN, concurring in the result.
20
At the time the military retreated into the YMCA and the Masonic Temple three alternative courses of action were open to the army commander. First, the troops could have continued their prior strategy and stood their ground in front of the buildings without returning the rioters' hostile sniper fire; second, the troops could have stood their ground and attempted to repel the mob by the use of deadly force; third, the troops could have retreated from the entire area, leaving the mob temporarily in control. The petitioners argue that if the troops had adopted either of the first two of these alternative strategies, their buildings would not have suffered the damage which resulted from the military's occupation.
21
But what if the military had adopted the third strategy open to it? If the army had completely abandoned the area to the rioters, and regrouped for a later counter-attack, there can be little doubt on this record that the rioters would have subjected the buildings to greater damage than that which was in fact suffered. I believe this fact to be decisive. For it appears to me that, in riot control situations, the Just Compensation Clause may only be properly invoked when the military had reason to believe that its action placed the property in question in greater peril than if no form of protection had been provided at all.
I.
22
I start from the premise that, generally speaking, the Government's complete failure to provide police protection to a particular property owner on a single occasion does not amount to a 'taking' within the meaning of the Fifth Amendment. Every man who is robbed n the street cannot demand compensation from the Government on the ground that the Fifth Amendment requires fully effective police protection at all times. The petitioners do not, of course, argue otherwise. Yet surely the Government may not be required to guarantee fully effective protection during serious civil disturbances when it is apparent that the police and the military are unable to defend all the property which is threatened by the mob. If the owners of unprotected property remain uncompensated, however, there seems little justice in compensating petitioners, who merely contend that the military occupation of their buildings provided them with inadequate protection.
23
Petitioners' claim that they may recover on a bare showing that they were afforded 'inadequate' protection has an additional defect which should be noted. If courts were required to consider whether the military or police protection afforded a particular property owner was 'adequate,' they would be required to make judgments which are best left to officials directly responsible to the electorate. In the present case, for example, petitioners could argue that it was possible for the troops to maintain their position in front of the buildings if they had been willing to kill a large number of rioters. In rebuttal, the Government could persuasively argue that the indiscriminate use of deadly force would have enraged the mob still further and would have increased the likelihood of future disturbances. Which strategy is a court to accept? Clearly, it is far sounder to defer to the other duly constituted branches of government in this regard.
24
It is, then, both unfair and unwise to favor those who have obtained some form of police protection over those who have received none at all. It is only if the military or other protective action foreseeably increased the risk of damage that compensation should be required. Since, in the present case, the military reasonably believed that petitioners' property was better protected if the troops retreated into the buildings, rather than from the entire area, the property owners have no claim to compensation on the ground that the protection afforded to them was 'inadequate.'
25
I must emphasize, however, that the test I have advanced should be applied only to gevernment actions taken in an effort to control a riot. The Army could not, for example, appropriate the YMCA today and claim that no payment was due because the building would have been completely demolished if the military had not intervened during the riot. Once tranquility has been restored, property owners may legitimately expect that the Government will not deprive them of the property saved from the mob. But while the rioters are surging through the streets out of control, everyone must recognize that the Government cannot protect all property all of the time. I think it appropriate to say, however, that our decision today does not in any way suggest that the victims of civil disturbances are undeserving of relief. But it is for the Congress, not this Court, to decide the extent to which those injured in the riot should be compensated, regardless of the extent to which the police or military attempted to protect the particular property which each individual owns.
II.
26
While I agree with the Court that no compensation is constitutionally available under the facts of this case, I have thought it appropriate to state my own views on this matter since the precise meaning of the rules the majority announces remains obscure at certain critical points. Moreover, in deciding this particular case we should spare no effort to search for principles that seem best calculated to fit others that may arise before American democracy once again regains its equilibrium.
27
The Court sets out two tests to govern the application of the Just Compensation Clause in riot situations. It first denies petitioners' recovery on the ground that each was the 'particular intended beneficiary' of the Governe nt's military operations. Ante, at 92. I do not disagree with this formula if it means that the Fifth Amendment does not apply whenever the policing power reasonably believes that its actions will not increase the risk of riot damage beyond that borne by the owners of unprotected buildings. But the language the Court has chosen leaves a good deal of ambiguity as to its scope. If, for example, the military deliberately destroyed a building so as to prevent rioters from looting its contents and burning it to the ground, it would be difficult indeed to call the building's owner the 'particular intended beneficiary' of the Government's action. Nevertheless, if the military reasonably believed that the rioters would have burned the building anyway, recovery should be denied for the same reasons it is properly denied in the case before us. Cf. United States v. Caltex, Inc., 344 U.S. 149, 73 S.Ct. 200, 97 L.Ed. 157 (1952).
28
Moreover, the Court's formula might be taken to indicate that if the military's subjective intention was to protect the building, the courts need not consider whether this subjective belief was a reasonable one. While the widest leeway must, of course, be given to good-faith military judgment, I am not prepared to subscribe to judicial abnegation to this extent. If a court concludes, upon convincing evidence, that the military had good reason to know that its actions would significantly increase the risk of riot damage to a particular property, compensation should be awarded regardless of governmental good faith.
29
While I accept the Court's 'intended beneficiary' test with these caveats, I cannot subscribe to the second ground the majority advances to deny recovery in the present case. The majority analogizes this case to one in which the military simply posted a guard in front of petitioners' properties. It is said that if the rioters had damaged the buildings as a part of their attack on the troops standing in front of them, the property damage caused would be too 'indirect' a consequence of the military's action to warrant awarding Fifth Amendment compensation. It follows, says the Court, that even if the military's occupation of the buildings increased the risk of harm far beyond any alternative military strategy, the Army's action is nevertheless too 'indirect' a cause of the resulting damage.
30
This argument, however, ignores a salient difference between the case the Court hypothesizes and the one which we confront. If the troops had remained on the street, they would not have obtained any special benefit from the use of petitioners' buildings. In contrast, the military did in this instance receive a benefit not enjoyed by members of the general public when the troops were ordered to occupy the YMCA and the Masonic Temple. As the Court's statement of the facts makes clear, the troops retreated into the buildings to protect themselves from sniper fire. Ordinarily, the Government pays for private property used to shelter its officials, and I would see no reason to make an exception here if the military had reason to know that the buildings would have been exposed to a lesser risk of harm if they had been left entirely unprotected.
31
On the premises set forth in this opinion, I concur in the judgment of the Court.
32
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
33
The Court says that: 'Shortly after midnight, Colonel Sachse moved his troops inside the three buildings (which included the two buildings for which compensation is here sought) so that the men might be better protected from the sniper fire.' Ante, at 87. The Army selected those two buildings to protect itself while carrying out its mission of safeguarding the entire zone from the rioters. Thus, the Army made the two buildings the particular targets of the rioters and the buildings suffered heavy damage. The Army's action was taken not to save the buildings but to use them as a shelter and fortress from which, as the Court of Claims found, 'tos eal off the border from further incursions by the rioters into the Atlantic portion of the Canal Zone.' 396 F.2d 467, 474, 184 Ct.Cl. 427, 438 (1968). At that time, I think it can hardly be said that these private buildings were taken for the good of the owners. Instead, the taking by the Army was for the benefit of the public generally. I still feel that 'the guiding principle should be this: Whenever the Government determines that one person's property—whatever it may be—is essential to the war effort and appropriates it for the common good, the public purse, rather than the individual, should bear the loss.' United States v. Caltex, Inc., 344 U.S. 149, 156, 73 S.Ct. 200, 204, 97 L.Ed. 157 (1952) (dissenting opinion of Mr. Justice Douglas).
1
Jurisdiction in the Court of Claims was based upon 28 U.S.C. § 1491.
2
For a general discussion of the purposes of the Just Compensation Clause, see Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of 'Just Compensation' Law, 80 Harv.L.Rev. 1165 (1967); Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964).
3
It is significant that at the outset of the rioting Colonel Sachse sent one of his companies—'B' Company—to an area several blocks away from petitioners' buildings. It was only because '(t)he number of rioters in the 'B' Company area was practically none' that 'B' Company was sb sequently sent to the area near petitioners' buildings.
| 34
|
395 U.S. 6
89 S.Ct. 1532
23 L.Ed.2d 57
Timothy F. LEARY, Petitioner,v.UNITED STATES.
No. 65.
Argued Dec. 11 and 12, 1968.
Decided May 19, 1969.
[Syllabus from pages 6-9 intentionally omitted]
Robert J. Haft, New York City, for petitioner.
John S. Martin, Jr., Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case presents constitutional questions arising out of the conviction of the petitioner, Dr. Timothy Leary, for violation of two federal statutes governing traffic in marihuana.
2
The circumstances surrounding petitioner's conviction were as follows. On December 20, 1965, petitioner left New York by automobile, intending a vacation trip to Yucatan, Mexico. He was accompanied by his daughter and son, both teenagers, and two other persons. On December 22, 1965, the party drove across the International Bridge between the United States and Mexico at Laredo, Texas. They stopped at the Mexican customs station and, after apparently being denied entry, drove back across the bridge. They halted at the American secondary inspection area, explained the situation to a customs inspector, and stated that they had nothing from Mexico to declare. The inspector asked them to alight, examined the interior of the car, and saw what appeared to be marihuana seeds on the floor. The inspector then received permission to search the car and passengers. Small amounts of marihuana were found on the car floor and in the glove compartment. A personal search of petitioner's daughter revealed a silver snuff box containing semirefined marihuana and three partially smoked marihuana cigarettes.
3
Petitioner was indicted and tried before a jury in the Federal District for the Southern District of Texas, on three counts. First, it was alleged that he had knowingly smuggled marihuana into the United States, in violation of 21 U.S.C. § 176a.1 Second, it was charged that he had knowingly transported and facilitated the transportation and concealment of marihuana which had been illegally imported or brought into the United States, with knowledge that it had been illegally imported or brought in, all again in violation of § 176a.2 Third, it was alleged that petitioner was a transferee of marihuana and had knowingly transported, concealed, and facilitated the transportation and concealment of marihuana without having paid the transfer tax imposed by the Marihuana Tax Act, 26 U.S.C. § 4741 et seq., thereby violating 26 U.S.C. § 4744(a)(2).3
4
After both sides had presented their evidence and the defense had moved for a judgment of acquittal, the District Court dismissed the first or smuggling count.4 The jury found petitioner guilty on the other two counts. He was tentatively sentenced to the maximum punishment, pending completion of a study and recommendations to be used by the District Court in fixing his final sentence.5 On appeal, the Court of Appeals for the Fifth Circuit affirmed. 383 F.2d 851 (1967). That court subsequently denied a petition for rehearing and rehearing en banc. 392 F.2d 220 (1968).
5
We granted certiorari, 392 U.S. 903, 88 S.Ct. 2058, 20 L.Ed.2d 1362 (1968), to consider two questions: (1) whether petitioner's conviction for failing to comply with the transfer tax provisions of the Marihuana Tax Act violated his Fifth Amendment privilege against self-incrimination; (2) whether petitioner was denied due process by the application of the part of 21 U.S.C. § 176a which provides that a defendant's possession of marihuana shall be deemed sufficient evidence that the marihuana was illegally imported or brought into the United States, and that the defendant knew of the illegal importation or bringing in, unless the defendant explains his possession to the satisfaction of the jury. For reasons which follow, we hold in favor of the petitioner on bt h issues and reverse the judgment of the Court of Appeals.
I.
6
We consider first petitioner's claim that his conviction under the Marihuana Tax Act violated his privilege against self-incrimination.
A.
7
Petitioner argues that reversal of his Marihuana Tax Act conviction is required by our decisions of last Term in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d. 889 (1969); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968). In Marchetti, we held that a plea of the Fifth Amendment privilege provided a complete defense to a prosecution for failure to register and pay the occupational tax on wagers, as required by 26 U.S.C. §§ 4411—4412. We noted that wagering was a crime in almost every State, and that 26 U.S.C. § 6107 required that lists of wagering taxpayers be furnished to state and local prosecutors on demand. We concluded that compliance with the statute would have subjected petitioner to a "real and appreciable"6 risk of self-incrimination. We further recognized that the occupational tax was not imposed in "an essentially non-criminal and regulatory area * * *," 390 U.S., at 57, 88 S.Ct., at 707,7 but was 'directed to a 'selective group inherently suspect of criminal activities."8 We found that it would be inappropriate to impose restrictions on use of the information collected under the statute—a course urged by the Government as a means of removing the impact of the statute upon the privilege against self-incrimination—because of the evident congressional purpose to provide aid to prosecutors. We noted that, unlike the petitioner in Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948), Marchetti was not required to supply information which had a 'public aspect' or was contained in records of the kind he customarily kept.
8
In Grosso, we held that the same considerations required that a claim of the privilege be a defense to prosecution under 26 U.S.C. § 4401, which imposes an excise tax on proceeds from wagering. And in Haynes we held for the same reasons that assertion of the Fifth Amendment privilege provided a defense to prosecution for possession of an unregistered weapon under the National Firearms Act, 26 U.S.C. § 5851, despite the fact that in 'uncommon' instances registration under the statute would not be incriminating. See 390 U.S., at 96—97, 99, 88 S.Ct. at 730—731.
B.
9
In order to understand petitioner's contention that compliance with the Marihuana Tax Act would have obliged him to incriminate himself within the meaning of the foregoing decisions, it is necessary to be familiar with the statutory scheme. The Marihuana Tax Act has tow main subparts. The first imposes a tax on transfers of marihuana, the second an occupational tax upon those who deal in the drug. It is convenient to begin with the occupational tax provisions, 26 U.S.C. §§ 4751—4753.
10
Section 4751 provides that all persons who 'deal in' marihuana shall be subject to an annual occupational tax. Subsections require that specified categories of persons, such as importers, producers, physicians, researchers, and millers pay varying rates of tax per year. See §§ 4751(1)—(4), (6). Persons who 'deal in' marihuana but do not fall into any of the specified categories are required to pay $3 per year. See § 4751(5). Section 4753 provides that at the time of paying the tax the taxpayer must 'register his name or style and his place or places of business' at the nearest district office of the Internal Revenue Service.
11
The first of the transfer tax provisions, 26 U.S.C. § 4741, imposes a tax 'upon all transfers of marihuana which are required by section 4742 to be carried out in pursuance of written odder forms.' Section 4741 further provides that on transfers to persons registered under § 4753 the tax is $1 per ounce, while on transfers to persons not so registered the tax is $100 per ounce. The tax is required to be paid by the transferee 'at the time of securing each order form.'9 With certain exceptions not here relevant,10 § 4742 makes it unlawful for any person, 'whether or not required to pay a special tax and register under sections 4751 to 4753,' to transfer marihuana except pursuant to a written order form to be obtained by the transferee. A regulation, 26 CFR § 152.69, provides that the order form must show the name and address of the transferor and transferee; their § 4753 registration numbers, if they are registered; and the quantity of marihuana transferred. Another regulation, 26 CFR § 152.66, requires the transferee to submit an application containing these data in order to obtain the form. Section 4742(d) of the Act requires the Internal Revenue Service to 'preserve' in its records a duplicate copy of each order form which it issues.
12
Another statutory provision, 26 U.S.C. § 4773, assures that the information contained in the order form will be available to law enforcement officials. That section provides that the duplicate order forms required to be kept by the Internal Revenue Service shall be open to inspection by Treasury personnel and state and local officials charged with enforcement of marihuana laws, and that upon payment of a fee such officials shall be furnished copies of the forms.11
13
Finally, 26 U.S.C. § 4744(a) makes it unlawful for a transferee required to pay the § 4741(a) transfer tax either to acquire marihuana without having paid the tax or to transport, conceal, or facilitate the transportation or concealment of, any marihuana so acquired.12 Petitioner was convicted under § 4744(a). He conceded at trial that he had not obtained an order form or paid the transfer tax.
C.
14
If read according to its terms, the Marihuana Tax Act compelled petitioner to expose himself to a 'real and appreciable' risk of self-incrimination, within the meaning of our decisions in Marchetti, Grosso, and Haynes. Sections 4741—4742 required him, in the course of obtaining an order form, to identify himself not only as a transferee of marihuana but as a transferee who had not registered and paid the occupational tax under §§ 4751—4753. Section 4773 directed that this information be conveyed by the Internal Revenue Service to state and local law enforcement officials on request.
15
Petitioner had ample reason to fear that transmittal to such officials of the fact that he was a recent, unregistered transferee of marihuana 'would surely prove a significant 'link in a chain' of evidence tending to establish his guilt'13 under the state marihuana laws then in effect.14 When petitioner failed to comply with the Act, in late 1965, possession of any quantity of marihuana was apparently a crime in every one of the 50 States, including New York, where petitioner claimed the transfer occurred, and Texas, where he was arrested and convicted.15 It is true that almost all States, including New York and Texas, had exe ptions making lawful, under specified conditions, possession of marihuana by: (1) state-licensed manufacturers and wholesalers; (2) apothecaries; (3) researchers; (4) physicians, dentists, veterinarians, and certain other medical personnel; (5) agents or employees of the foregoing persons or common carriers; (6) persons for whom the durg had been prescribed or to whom it had been given by an authorized medical person; and (7) certain public officials.16 However, individuals in the first four of these classes are among those compelled to register and pay the occupational tax under § 4751—4753;17 in consequence of having registered, they are required to pay only a $1 per ounce transfer tax under § 4741(a)(1). It is extremely unlikely that such persons will remain unregistered, for failure to register renders them liable not only to an additional.$99 per ounce transfer tax but also to severe criminal penalties.18 Persons in the last three classes mentioned above appear to be wholly exempt from the order form and transfer tax requirements.19
16
Thus, at the time petitioner failed to comply with the Act those persons who might legally possess marihuana under state law were virtually certain either to be registered under § 4753 or to be exempt from the order form requirement. It follows that the class of possessors who were both unrg istered and obliged to obtain an order form constituted a 'selective group inherently suspect of criminal activities.' Since compliance with the transfer tax provisions would have required petitioner unmistakably to identify himself as a member of this 'selective' and 'suspect' group, we can only decide that when read according to their terms these provisions created a 'real and appreciable' hazard of incrimination.
D.
17
The Government, however, vigorously contends that when the Act is considered together with the accompanying regulations, and in light of existing administrative practice, its incriminatory aspect will be seen to vanish or shrink to less than constitutional proportions. The Government points first to regulations, 26 CFR §§ 152.22, 152.23, added in 1964, which provide that every applicant for registration under §§ 4751—4753 must show that he is legally qualified to deal in marihuana according to the laws of the jurisdiction in which he is operating, and that the district director shall not permit an applicant to register until the director is satisfied that this is true. The Government then cites two other regulations, relating to applications for order forms under § 4742. The first, 26 CFR § 152.67, provides that such applications '(g)enerally * * * shall be signed by the same person or persons signing the application for registration,' but when this is impracticable 'they may be signed by another person, provided a power of attorney authorizing such other person to sign the applications * * * has previously been filed * * *.' The second regulation, 26 CFR § 152.68, states that upon receipt of an application the district director 'shall' compare the signature on the application 'with that appearing on the application for registration or in the power of attorney,' and that '(u)nless the district director is satisfied that the application is authentic it will not be honored.'
18
The Government asserts that these regulations clearly signify that no person will be permitted to register unless his activities are permissible under the law of his jurisdiction, and that no one will be permitted to obtain an order form and prepay the transfer tax unless he has registered.20 The result, the Government contends, is simply to prohibit nonregistrants like petitioner from dealing in marihuana at all. The Government further asserts that the administrative practice of the Internal Revenue Service and the Bureau of Narcotics has always been consistent with this interpretation, though it concedes that there apparently has never been an attempt by a nonregistrant to prepay the tax. The Government does admit uncertaintly as to whether the fact of such an attempt would have been communicated to law enforcement officials; however, it points out that nothing in the statute or regulations appears to compel such disclosure.21 The Government argues that the regulations and administrative practice effectively refute the existence of a substantial hazard of incrimination at the time petitioner acquired marihuana: first, because a nonregistrant would have known that he could not obtain an order form and consequently never would have applied; second, because there was no substantial risk that an unsuccessful application would have been brought to the attention of law enforcement officials.
19
We cannot accept the Government's argument, for we find that Congress did intend that a nonregistrant should be able to obtain an order form and prepay the transfer tax. This congrs sional intent appears both from the language of the Act and from its legislative history.
20
We begin with the words of the statute. Section 4741(a), when read in conjunction with § 4742, imposes a tax upon every transfer of marihuana, with a few exceptions not here relevant.22 Section 4741(a)(1) states that the tax on registrants shall be $1 per ounce and § 4741(a)(2) that the tax on transfers to nonregistrants shall be $100 per ounce. Section 4741(b) states that (s)uch tax shall be paid by the transferee at the time of securing each order form and shall be in addition to the price of such form.' (Emphasis added.) Since § 4741(b) makes no distinction between the § 4741(a)(1) tax on transfers to registrants and the § 4741(a)(2) tax on transfers to nonregistrants, it seems clear that Congress contemplated that nonregistrant as well as registrant transferees should be able to obtain order forms and prepay the tax.
21
The legislative history also strongly indicates that the Act was intended merely to impose a very high tax on transfers to nonregistrants and not to prohibit such transfers entirely. As a taxing measure, the bill of course originated in the House of Representatives. At the start of the first hearing on the bill, before the House Ways and Means Committee, the committee chairman announced that he had introduced the bill at the request of the Secretary of the Treasury.23 The transfer provisions of the bill then read essentially as they do now.24 The first witness to appear before the Committee was the Treasury Department's Assistant General Counsel, Clinton M. Hester. He began by stating that the bill's purpose was 'not only to raise revenue from the marihuana traffic, but also to discourage the current and widespread undesirable use of marihuana by smokers and drug addicts * * *.'25 He stated that in form the bill was a 'synthesis' of the Harrison Narcotics Act, now 26 U.S.C. § 4701 et seq., and the National Firearms Act, now 26 U.S.C. § 5801 et seq.26 Both of these statutes compelled dealers in the respective goods to register and pay a special tax. Both prohibited transfer except in pursuance of a written form and imposed a transfer tax. However, the transfer provisions differed in that the Narcotics Act provided that no one except a registrant could legally obtain an order form, see 26 U.S.C. § 4705(g), while the Firearms Act merely imposed a $200 tax upon each transfer of a firearm covered by the Act.
22
The Treasury witness explained that the marihuana tax bill generally followed the plan of the Narcotics Act insofar as it required dealers in marihuana to register and prohibited transfers except by order form. But he testified that because of constitutional doubts:
23
'(a)t this point, this bill, like the National Firearms Act, departs from the plan of the Harrison Narcotic Act which limits the right to purchase narcotic drugs to those persons who are permitted to register under that act. * * *
24
'(I)n order to obviate the possibility of (an) attack upon the constitutionality of this bill, it, like the National Firearms Act, permits the transfer of marihuana to nonregistered persons upon the payment of a heavy transfer tax. The bill would permit the transfer of marihuana to anyone, but would impose a $100 per ounce tax upon a transfer to a person who might use it for purposes which are dangerous and harmful to the public * * *.'27
25
Mr. Hesterw as also the first witness before a subcommittee of the Senate Finance Committee. There he testified in less detail, stating at different points that the purpose of the transfer provisions was 'to discourage the widespread use of the drug by smokers and drug addicts,'28 'to render extremely difficult the acquisition of marihuana by persons who desire it for illicit uses,'29 'to prevent transfers to persons who would use marihuana for undersirable purposes,'30 and 'through the $100 transfer tax to prevent the drug from coming into the hands of those who will put it to illicit uses.'31
26
The House and Senate reports describe the purposes of the transfer provisions largely in the language of Mr. Hester's testimony. The House report declares that the purpose was 'to discourage the widespread use of the drug by smokers and drug addicts,'32 to 'render extremely difficult the acquisition of marihuana by persons who desire it for illicit uses,'33 and 'through the $100 transfer tax to prevent the drug from coming into the hands of those who will put it to illicit uses.'34 In discussing the issue of constitutionality, the report recites that '(t)he law is * * * settled that Congress has the power to enact a tax which is so heavy as to discourage the transactions or activities taxed'35 and states that '(t)hese cases sustain the $100 tax imposed * * * upon transfers * * * to unregistered persons.'36 The Senate report, without discussing constitutionality, otherwise states the purpose of the transfer provisions in the very same words as the House report.37 Thus, the committee reports confirm Mr. Hester's account of the bill's purposes. In short, the legislative history fully accords with the statutory language.
27
Upon this evidence, we have no hesitation in concluding that the interpretation which the Government would give to the transfer provisions is, contrary to the manifest congressional intent that transfers to nonregistrants be taxed, not forbidden. Insofar as the regulations which require comparison of signatures necessarily compel the result urged by the Government, they must be regarded as contrary to the statute and hence beyond the scope of the regulation-making authority which was delegated by Congress.38 It is true that these regulations were promulgated in 1937, and that Congress re-enacted the entire Act in 1954, while they were in effect. However, the scanty legislative history accompanying that re-enactment gives no hint that Congress knew of these particular regulations, much less of the indirect impact which the Government now ascribes to them.39 As we recently noted in Massachusetts Trustees of Eastern Gas and Fuel Associates v. United States, 377 U.S. 235, 241, 242, 84 S.Ct. 1236, 1241—1242, 12 L.Ed.2d 268 (1964), congressional re-enactment of a statute, even without any apparent knowledge of a particular regulation, can 'strengthen to some extent' the regulation's claim to validity, but re-enactment cannot save a regulation which 'contradict(s) the requirements' of the statute itself. When a regulation conflicts with the statute, the fact of subsequent re-enactment 'is immaterial, for Congress could not add to or expand (the) statute by impliedly approving the regulation.' Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 93, 80 S.Ct. 144, 148, 4 L.Ed.2d 127 (1959).40
28
Nor are we persuaded by the Government's argument that its construction has been followed by the Internal Revenue Service and the Bureau of Narcotics ever since the passage of the Act, and that this 'long-standing' interpretation by the agencies charged with administering the Act should be controlling. We have often recognized that, as a general matter, a long-standing, contemporaneous construction of a statute by the administering agencies is 'entitled to great weight,' FTC v. Mandel Bros., 359 U.S. 385, 391, 79 S.Ct. 818, 823, 3 L.Ed.2d 893 (1959), and will be 'show(n) great deference,' Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).41 However, in this instance the Government admits that until our decisions last term in Marchetti, Grosso, and Haynes, the alleged interpretation had been made known only through the regulations themselves, since there apparently had never been an application by a nonregistrant to prepay the transfer tax. Moreover, in its brief in this Court in United States v. Sanchez, 340 U.S. 42, 71 S.Ct. 108, 95 L.Ed. 47 (1950), the United States plainly took the position that the Act imposed only a tax and not a prohibition on transfers to nonregistrants,42 implying that at that time the alleged administrative construction was unknown even to those charged with representing the United States in this Court. In these circumstances, the alleged administrative construction can furnish no additional support for the Government's argument.
29
The foregoing shows that at the time petitioner acquired marihuana he was confronted with a statute which on its face permitted him to acquire the drug legally, provided he paid the $100 per ounce transfer tax and gave incriminating information, and simultaneously with a system of regulations which, according to the Government, prohibited him from acquiring marihuana under any conditions. We have found those regulations so out of keeping with the statute as to be ultra vires. Faced with these conflicting commands, we think petitioner would have been justified in giving precedence to the higher authority: the statute.43 "(L)iteral and full compliance' with all the statutory requirements'44 would have entailed a very substantial risk of self-incrimination. See supra, at 16—18.
30
The United States has not urged us, as it did in Marchetti, Grosso, and Haynes, to avoid this constitutional difficulty by placing restrictions upon the use of information gained under the transfer provisions. We declined to impose use restrictions in those cases because we found that the furnishing of information to interested prosecutors was a 'significant element of Congress' purposes in adopting' the statute there involved. Marchetti v. United States, supra, 390 U.S., at 59, 88 S.Ct. at 708 (1968).45 The text and legislative history of the Marihuana Tax Act plainly disclose a similar congressional purpose. As has been noted, 26 U.S.C. § 4773 requires that copies of order forms be kept available for inspection by state and local officials, and that copies be furnished to such officials on request. The House and Senate reports both state that one objective of the Act was 'the development of an adequate means of publicizing dealings in marihuana in order to tax and control the traffic effectively.'46 In short, we think the conclusion inescapable that the statute was aimed at bringing to light transgressions of the marihuana laws. Hence, as in last Term's cases, we decline to impose use restrictions and are obliged to conclude that a timely and proper assertion of the privilege should have provided a complete defense to prosecution under § 4744(a)(2).
E.
31
There remain the further questions whether this petitioner's claim of the privilege was timely and whether it was waived. As for timeliness, petitioner did not assert the privilege as a defense to the § 4744(a) count until his motion for a new trial. The Court of Appeals evidently regarded the claim as timely, for it rejected it on the merits both in its original opinion and in its denial of rehearing. See 383 F.2d, at 870; 392 F.2d, at 221 222. The Government does not contend that the claim of the privilege was untimely. Petitioner's trial occurred before our decisions in Marchetti, Grosso, and Haynes, and the Court of Appeals for the Fifth Circuit had recently rejected an identical self-incrimination claim. See Haynes v. United States, 339 F.2d 30 (1964). Although it would have been preferable for petitioner to have asserted the privilege at trial, we hold that in the circumstances of this case his failure to raise the issue at that time did not amount to a waiver of the privilege. See Grosso v. United States, 390 U.S. 62, 70—71, 88 S.Ct. 709, 714—715, 19 L.Ed.2d 906 (1968).
32
In denying Leary's petition for rehearing, the Court of Appeals, in addition to holding the privilege generally inapplicable to prosecutions under § 4744(a), found that petitioner's claim of the privilege was improper because he 'took the stand and affirmatively waived the privilege * * * by testifying fully to the details of his acquisition and transportation of marihuana without having paid the tax * * *.' 392 F.2d, at 222. In relying for that proposition on the statement in Marchetti that our decision in that case would not provide a shield for any taxpayer who was 'outside the privilege's protection,' 390 U.S., at 61, 88 S.Ct., at 709, we think the Court of Appeals misconceived the thrust of that dictum. The aspect of the self-incrimination privilege which was involved in Marchetti, and which petitioner asserts here, is not the undoubted right of an accused to remain silent at trial. It is instead the right not to be criminally liable for one's previous failure to obey a statute which required an incriminatory act. Thus, petitioner is not asserting that he had a right to stand mute at his trial but that he cannot be convicted for having failed to comply with the transfer provisions of the Act t the time he acquired marihuana in 1965. His admission at trial that he had indeed failed to comply with the statute was perfectly consistent with the claim that that omission was excused by the privilege. Hence, it could not amount to a waiver of that claim.
33
The Government suggests that petitioner waived his right to plead self-incrimination in yet another way, by testifying at trial that he had violated the statute for reasons entirely unrelated to fear of self-incrimination. It is true that some portions of petitioner's testimony indicate that his noncompliance was motivated, at least in part, by his conviction that the Act imposed an illegal tax upon religion or upon the cpursuit of knowledge'47 and by his belief that, in consequence of the system of regulations and administrative practice described above, he would not be permitted to pay the tax.48 However, other parts of petitioner's testimony clearly indicate that he also was influenced by an apprehension that by trying to pay the tax he might incriminate himself.49 We cannot say that petitioner's testimony, taken as a whole, amounted to a waiver of the privilege. We conclude that petitioner's invocation of the privilege was proper and that it should have provided a full defense to the third count of the indictment. Accordingly, we reverse petitioner's conviction under 26 U.S.C. § 4744(a)(2).
II.
34
Next, we consider whether, in the circumstances of this case, the application of the presumption contained in 21 U.S.C. § 176a denied petitioner due process of law.
A.
35
Insofar as here relevant, § 176a imposes criminal punishment upon every person who:
36
'Knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law * * *, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such marihuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law * * *.'
37
A subsequent paragraph establishes the presumption now under scrutiny:
38
'Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.'
39
The second count of the indictment charged petitioner with having violated the 'transportation' and 'concealment' provisions of § 176a.50 Petitioner admitted at trial that he had acquired marihuana in New York; had driven with it to Laredo, Texas; had continued across the bridge to the Mexican customs station; and then had returned to the United States. He further testified that he did not know where the marihuana he acquired had been grown.51
40
In view of this testimony, the trial court instructed the jury that it might find petitioner guilty of violating s 176a on either of two alternative theories. Under the first or 'South-North' theory, a conviction could have been based solely upon petitioner's own testimony that the marihuana had been brought back from Mexico into the United States and that with knowledge of that fact petitioner had continued to transport it. Under the second or 'North-South' theory, the conviction would have depended partly upon petitioner's testimony that he had transported the marihuana from New York to Texas and partly upon the challenged presumption.52
41
The Government contends that by giving testimony at trial which established all elements of the offense under the 'South-North' theory, and by failing to object to the jury instructions on the ground now advanced, petitioner foreclosed himself from raising the point thereafter. We cannot agree. Even assuming that petitioner's testimony did supply all the evidence required for a valid conviction under the 'South-North' theory, the jury nevertheless was told that it could alternatively convict with the aid of the presumption under the 'North-South' theory. For all we know, the conviction did rest on that ground. It was long been settled that when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction be set aside. See, e.g., Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).
42
It is true that petitioner did not object to the jury instructions on the basis of the presumption's alleged unconstitutionality.53 However, he did rely upon that ground in his previous motion for a directed verdict at the close of the prosecution's case and urged it again in his subsequent motion for a new trial.54 Both motions were denied. The Court of Appeals considered petitioner's constitutional argument on the merits, and rejected it. See 383 F.2d, at 868—870. In these circumstances, we conclude that the question is properly before us.55
B.
43
By what criteria is the constitutionality of the § 176a presumption to be judged?
44
Early decisions of this Court set forth a number of different standards by which to mes ure the validity of statutory presumptions.56 However, in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), the Court singled out one of these tests as controlling, and the Tot rule has been adhered to in the two subsequent cases in which the issue has been presented. The Tot Court had before it a federal statute57 which, as construed, made it a crime for one previously convicted of a crime of violence to receive any firearm or ammunition in an interstate transaction. The statute further provided that 'the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act.'
45
The Court, relying upon a prior decision in a civil case,58 held that the 'controlling' test for determining the validity of a statutory presumption was 'that there be a rational connection between the fact proved and the fact presumed.' 319 U.S., at 467, 63 S.Ct. at 1245. The Court stated:
46
'Under our decisions a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstance of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts.' 319 U.S., at 467—468, 63 S.Ct., at 1245. (footnotes omitted).
47
The Tot Court reduced to the status of a 'corollary' another test which had some support in prior decisions:59 whether it was more convenient for the defendant or for the Government to supply proof of the ultimate fact which the presumption permitted to be inferred. The Court stated that '(t)he argument from convenience is admissible only where the inference is a permissible one * * *.' 319 U.S., at 469, 63 S.Ct., at 1246. The Court rejected entirely another suggested test with some backing in the case law,60 according to which the presumption should be sustained if Congress might legitimately have made it a crime to commit the basic act from which the presumption allowed an inference to be drawn.61 The Tot Court stated simply that 'for whatever reason' Congress had not chosen to make the basic act a crime. Id., at 472, 63 S.Ct., at 1247.
48
Applying h e 'rational connection' test, the Court held the Tot presumption unconstitutional. The Court rejected the contention that because most States forbade intrastate acquisition of firearms without a record of the transaction or registration of ownership it could be inferred merely from possession that an acquisition which did not meet these requirements must have been interstate, noting the alternative possibilities of unlawful intrastate acquisition and interstate shipment prior to the beginning of state regulation. See id., at 468, 63 S.Ct., at 1245.62
49
The two subsequent cases in which this Court ruled upon the constitutionality of criminal statutory presumptions, United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), and United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965), involved companion sections of the Internal Revenue Code dealing with illegal stills. The presumption in Gainey was worded similarly to the one at issue here; it permitted a jury to infer from a defendant's presence at an illegal still that he was 'carrying on' the business of a distiller 'unless the defendant explains such presence to the satisfaction of the jury * * *.' See 26 U.S.C. §§ 5601(a)(4), 5601(b)(2).
50
We held that the Gainey presumption should be tested by the 'rational connection' standard announced in Tot. We added:
51
'The process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.' 380 U.S., at 67, 85 S.Ct., at 757.
52
Applying these principles, we sustained the Gainey presumption, finding that it 'did no more than 'accord to the evidence, if unexplained, its natural probative force." 380 U.S., at 71, 85 S.Ct., at 759.
53
The presumption under attack in United States v. Romano, supra, was identical to that in Gainey except that it authorized the jury to infer from the defendant's presence at an illegal still that he had possession, custody, or controll of the still. See 26 U.S.C. §§ 5601(a)(1), 5601(b)(1). We held this presumption invalid. While stating that the result in Gainey was entirely justified because '(p)resence at an operating still is sufficient evidence to prove the charge of 'carrying on' because anyone present at the site is very probably connected with the illegal enterprise,' 382 U.S., at 141, 86 S.Ct., at 282, we concluded:
54
'Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant's function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt—'the inference of the one from proof of the other is arbitrary * * *.' Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519.' Ibid.63
55
The upshot of Tot, Gainey, and Romano is, we think, that a criminal statutory presumption must be regarded as 'irrational' or 'arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.64 And in the judicial assessment the congressional determination favoring the particular r esumption must, of course, weigh heavily.
C.
56
How does the § 176a presumption fare under these standards?
57
So far as here relevant, the presumption, quoted supra, at 30, authorizes the jury to infer from a defendant's possession of marihuana two necessary elements of the crime: (1) that the marihuana was imported or brought into the United States illegally; and (2) that the defendant knew of the unlawful importation or bringing in.65 Petitioner argues that neither inference is valid, citing undisputed testimony at his trial to the effect that marihuana will grow anywhere in the United States, and that some actually is grown here.66 The Government contends, on the other hand, that both inferences are permissible. For reasons that follow, we hold unconstitutional that part of the presumption which relates to a defendant's knowledge of illegal importation. Consequently, we do not reach the question of the validity of the 'illegal importation' inference.
58
With regard to the 'knowledge' presumption, we believe that Tot and Romano require that we take the statute at face value and ask whether it permits conviction upon insufficient proof of 'knowledge,' rather than inquire whether Congress might have made possession itself a crime.67 In order thus to determine the constitutionality of the 'knowledge' inference, one must have direct or circumstantial data regarding the beliefs of marihuana users generally about the source of the drug they consume. Such information plainly is 'not within specialized judicial competence or completely commonplace,' United States v. Gainey, supra, 380 U.S. at 67, 85 S.Ct., at 757. Indeed, the presumption apparently was enacted to relieve the Government of the burden of having to adduce such evidence at every trial, and none was introduced by the prosecution at petitioner's trial. Since the determination of the presumption's constitutionality is 'highly empirical,' ibid., it follows that we must canvass the available, pertinent data.
59
Of course, it must be kept in mind that 'significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.' Ibid. However, it quickly becomes apparent that the legislative record does not supply an adequate basis upon which to judge the soundness of the 'knowledge' part of the presumption. We have therefore taken other materials into account as well, in an effort to sustain the presumption. In so doing, we have not confined ourselves to data available at the time the presumption was enacted in 1956, but have also considered more recent information, in order both to obtain a broader general background and to ascertain whether the intervening years have witnessed significant changes which mih t bear upon the presumption's validity.68
60
As has been noted, we do not decide whether the presumption of illegal importation is itself constitutional. However, in view of the paucity of direct evidence as to the beliefs of marihuana smokers generally about the source of their marihuana, we have found it desirable to survey data concerning the proportion of domestically consumed marihuana which is of foreign origin, since in the absence of better information the proportion of marihuana actually imported surely is relevant in deciding whether marihuana possessors 'know' that their marihuana is imported.
D.
61
Since the importation question is a subsidiary one, we take it up first, beginning, of course, with the legislative history of § 176a. The House and Senate committee reports and the floor debates are relatively unhelpful.69 More informative are the records of extensive hearings before House and Senate committees.70 Near the outset of the Senate committee hearings, the then Commissioner of Narcotics, Harry J. Anslinger, estimated that 90% of all marihuana seized by federal authorities had been smuggled from Mexico, and that although 'there is considerable volunteer growth from old plantings in the Middle West * * *, (t)here is very little of the local land used because it just does not have the advantage of the long summer growing, and (domestic marihuana) is not as potent as the Mexican drug.'71 A number of officials responsible for enforcing the narcotics laws in various localities estimated that a similar proportion of the marihuana consumed in their areas was of Mexican origin.72
62
On the other hand, written material inserted in the record of the Senate hearings included former testimony of an experienced federal customs agent before another Senate committee, to the effect that high-quality marihuana was being grown near the Texas cities of Laredo and Brownsville.73 A written report of the Ohio Attorney General recited that marihuana 'may grow unnoticed along roadsides and vacant lots in many parts of the country,'74 and a Philadelphia Police Academy bulletin stated that: 'Plenty of (marihuana) is found growing in this city.'75
63
Examination of periodicals and books published since the enactment of the presumption leaves no doubt that in more than a dozen intervening years there have been great changes in the extent and nature of marihuana used in this country. With respect to quantity, one readily available statistic is indicative: the amount of marihuana seized in this country by federal authorities has jumped from about 3,400 pounds in 1956 to b out 61,400 pounds in 1967.76 With regard to nature of use, the 1955 hearing records and other reports portray marihuana smoking as at that time an activity almost exclusively of unemployed or menially employed members of racial minorities.77 Current periodicals and books, on the other hand, indicate that marihuana smoking has become common on many college campuses and among persons who have voluntarily 'dropped out' of American society in protest against its values, and that marihuana smokers include a sizeable number of young professional persons.78
64
Despite these undoubted changes, the materials which we have examined point quite strongly to the conclusion that most domestically consumed marihuana is still of foreign origin. During the six years 1962—1967, some 79% of all marihuana seized by federal authorities was seized in attempted smuggling at ports and borders.79 The Government informs us that a considerable part of the internally seized marihuana bore indications of foreign origin.80 While it is possible that these facts reflect only the deployment of federal narcotics forces, rather than the actual proportion of imported to domestic marihuana, almost all of the authorities which we have consulted confirm that the preponderance of domestically consumed marihuana is grown in Mexico.81
65
Petitioner makes much of statistics showing the number of acres of domestic marihuana destroyed annually by state and federal authorities, pointing out that if harvested the destroyed acreage could in each year have accounted for all marihuana estimated to have been consumed in the United States,82 and that no one knows how many acres escape destruction. However, several factors weaken this argument from domestic growth. First, the number of acres annually destroyed declined by a factor of three between 1959 and 1967,83 while during the same period the consumption of marihuana, as measured b federal seizures, rose twenty-fold.84 Assuming constant diligence on the part of those charged with destruction, this would indicate that in 1967 a much smaller share of the market was domestically supplied than in 1959. Second, while the total number of acres annually destroyed has indeed been large enough to furnish all domestically consumed marihuana,85 the state-by-state breakdowns which are available for the years 1964 1967 reveal that in each of those years more than 95% of the destroyed acreage was in two midwestern states, Illinois and Minnesota.86 The large, recurrent marihuana acreages discovered in those States can plausibly be ascribed to the 'volunteer growth from old plantings in the Middle West' about which Commissioner Anslinger testified,87 while illicit cultivators of marihuana would be likely to choose States with sparser populations and more favorable climates.88 Third and last, reports of the Bureau of Narcotics and testimony of its agents indicate that in its far-reaching investigations the Bureau has never encountered a system for distributing sizeable quentities of domestically grown marihuana.89 In contrast, the Bureau has found evidence of many large-scale distribution systems with sources in Mexico.90
E.
66
The Government urges that once it is concluded that most domestically consumed marihuana comes from abroad—a conclusion which we think is warranted by the data just examined—we must uphold the 'knowledge' part of the presumption in light of this Court's decision in Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925). In that case, the Court sustained a presumption which was virtually identical to the one at issue here except that the forbidden substance was smoking opium rather than marihuana. With respect to the inference of knowledge from possession which was authorized by that presumption, the Court said:
67
'Legii mate possession (of opium), unless for medicinal use, is so highly improbable that to say to any person who obtains the outlawed commodity, 'since you are bound to know that it cannot be brought into this country at all, except under regulation for medicinal use, you must at your peril ascertain and be prepared to show the facts and circumstances which rebut, or tend to rebut, the natural inference of unlawful importation, or your knowledge of it,' is not such an unreasonable requirement as to cause it to fall outside the constitutional power of Congress.' 268 U.S., at 184, 45 S.Ct., at 471.
68
The Government contends that Yee Hem requires us to read the § 176a presumption as intended to put every marihuana smoker on notice that he must be prepared to show that any marihuana in his possession was not illegally imported, and that since the possessor is the person most likely to know the marihuana's origin it is not unfair to require him to adduce evidence on that point. However, we consider that this approach, which closely resembles the test of comparative convenience in the production of evidence,91 was implicitly abandoned in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). As was noted previously, the Tot Court confronted a presumption which allowed a jury to infer from possession of a firearm that it was received in interstate commerce. Despite evidence that most States prohibited unregistered and unrecorded acquisition of firearms, the Court did not read the statute as notifying possessors that they must be prepared to show that they received their weapons in intrastate transactions, as Yee Hem would seem to dictate. Instead, while recognizing that 'the defendants * * * knew better than anyone else whether they acquired the firearms or ammunition in interstate commerce,' 319 U.S., at 469, 63 S.Ct., at 1246, the Court held that because of the danger of overreaching it was incumbent upon the prosecution to demonstrate that the inference was permissible before the burden of coming forward could be placed upon the defendant. This was a matter which the Yee Hem Court either thought it unnecessary to consider or assumed when it described the inference as 'natural.'92
F.
69
We therefore must consider in detail whether the available evidence supports the conclusion that the 'knowledge' part of the § 176a presumption is constitutional under the standard established in Tot and adhered to in Gainey and Romano that is, whether it can be said with substantial assurance that one in possession of marihuana is more likely than not to know that his marihuana was illegally imported.
70
Even if we assume that the previously assembled data are sufficient to justify the inference of illegal importation, see supra, at 44, it by no means follows that a majority of marihuana possessors 'know'93 that their marihuana was illegally imported. And such proposition would depend upon an intermediate premise: that most marihuana possessors are aware of the level of importation and have deduced that their own marihuana was grown abroad. This intermediate step might be thought justified by common sense if it were proved that little or no marihuana is grown in this country. Short of such a showing, not here present, we do not believe that the inference of knowledge can be sustained solely because of the assumed validity of the 'importation' presumption.
71
Once it is established that a significant percentage of domestically consumed marihuana may not have been imported at all, then it can no longer be postulated, without proof, that possessors will be even roughly aware of the proportion actually imported. We conclude that in order to sustain the inference of knowledge we must find on the basis of the available materials that a majority of marihuana possessors either are cognizant of the apparently high rate of importation or otherwise have become aware that their marihuana was grown abroad.
72
We can imagine five ways in which a possessor might acquire such knowledge: (1) he might be aware of the proportion of domestically consumed marihuana which is smuggled from abroad and deduce that his was illegally imported; (2) he might have smuggled the marihuana himself; (3) he might have learned by indirect means that the marihuana consumed in his locality or furnished by his supplier was smuggled from abroad; (4) he might have specified foreign marihuana when making his 'buy', or might have been told the source of the marihuana by his supplier; (5) he might be able to tell the source from the appearance, packaging, or taste of the marihuana itself.
73
We treat these five possibilities seriatim, in light of the available materials, beginning in each instance with the legislative record. We note at the outset that although we have been able to discover a good deal of relevant secondary evidence, we have found none of the best kind possible—testimony of marihuana users about their own beliefs as to origin, or studies based upon interviews in which users were asked about this matter. The committee hearings which preceded passage of § 176a included testimony by many marihuana smokers, but none was ever asked whether he knew the origin of the marihuana he smoked. It should also be kept in mind that the great preponderance of marihuana smokers are 'occasional' rather than 'regular' users of the drug,94 and that 'occasional' smokers appear to be arrested disproportionately often, due to their inexpertness in taking precautions.95 'Occasional' users are likely to be less informed and less particular about the drug they smoke;96 hence, it is less probable that they will have learned its source in any of the above ways.
74
The first possibility is that a possessor may have known the proportion of imported to domestic marihuana and have deduced that his own marihuana was grown abroad. The legislative record is of no assistance in evaluating this possibility. Such indirect evidence as we have found points to the conclusion that while most marihuana users probably know that some marihuana comes from Mexico, it is also likely that the great majority either have no knowledge about the proportion which is imported or believe that the proportion is considerably lower than may actually be the case.97
75
The second possibility is that a possessor may know the origin of his marihuana because he smuggled it into the United States himself. The legislative record is unhelpful in estimating the proportion of possessors whof all into this class. Other sources indicate that there are a considerable number of smokers who 'smuggle their own,' but that the great majority of possessors have obtained their marihuana from suppliers in this country.98
76
The legislative record is also uninformative about the possibility that a possessor may have learned the source of his marihuana by indirect means. Other sources reveal that imported marihuana usually passes through a number of hands before reaching the consumer, and that the distribution system is kept secret.99 It would appear that relatively few consumers know the origin of their marihuana by indirect means.
77
The fourth possibility is that the possessor may have specified foreign marihuana when making his purchase or may have been told by his supplier that the marihuana was grown abroad. The legislative record is somewhat more helpful with respect to this possibility, for it does contain statements to the effect that Maxican marihuana is more potent than domestic and is consequently preferred by smokers.100 However, the legislative record also contains testimony by a customs agent that Texas marihuana is as 'good' as that from Mexico.101 Most authorities state that Mexican marihuana generally does have greater intoxicating power than domestic marihuana, due to the higher temperatures and lower humidity usually encountered in Mexico.102 There are some indications that smokers are likely to prefer Mexican marihuana,103 but there is nothing to show that purchasers commonly specify Mexican marihuana when making a 'buy.' It appears that suppliers of marihuana occasionally volunteer the place of origin,104 but we have found no hint that this is usually done, and there are indications that if the information is not volunteered the buyer may be reluctant to ask, for fear of being thought an informer.105 We simply are unable to estimate with any accuracy, on the basis of these data, what proportion of marihuana possessors have learned the origin of their marihuana in this way. It is certainly not a majority; but whether it is a small minority or a large one we are unable to tell.
78
The fifth possibility is that a smoker may be able to tell the source of his marihuana from its appearance, packaging, or taste. As for appearance, it seems that there is only one species of marihuana, and that even experts are unable to tell by eye where a particular sample was grown.106 The Court of Appeals for the Ninth Circuit did find in Caudillo v. United States, 253 F.2d 513 (1958), on the basis of trial testimony, that 'unmanicured' or 'rough' marihuana—that is, marihuana containing some seeds and stems, as well § leaves—was much more likely to come from Mexico than from California; this was because the presence of seeds implied that the plant had been allowed to mature and evidence showed that California growers almost always harvested the plant before that stage. However, we have found nothing to indicate that this distinction holds good in other areas of the country, or that marihuana possessors are likely to realize its significance.
79
With respect to packaging, there is evidence that Mexican marihuana is commonly compressed into distinctive 'bricks' and then wrapped in characteristically Mexican paper.107 Yet even if it is assumed that most Mexican marihuana bears such sistinguishing marks when first brought into this country, there is no indication that they normally are still present when it reaches the consumer. The packaging method just mentioned apparently is intended to facilitate transportation of relatively large quantities of mrihuana. A 'brick' appears usually to contain about one kilogram of marihuana,108 and relatively few consumers sales will involve such a large amount, since a kilogram of marihuana will furnish some 3,300 marihuana cigarettes.109 Smokers appear usually to purchase marihuana by the 'bag'—about one-fifth ounce; by the 'can'—about one ounce; or by the pound.110 Hence, after importation '(t)he wholesalers will repackage the marihuana into smaller packages, * * * and they will do it in various ways.'111 We infer that only a small percentage of smokers are likely to learn of the drug's origin from its packaging.
80
With respect to taste, the Senate hearing record contains the statement of a federal customs agent that: 'A good marihuana smoker can probably tell good marihuana from bad.'112 As has been seen, there is a preponderance of opinion to the effect that Maxican marihuana is more potent than domestic.113 One authority states that purchasers of marihuana commonly sample the product before making a 'buy.'114 However, the agent quoted above also asserted that some 'good' marihuana was grown in Texas. And the account of the sampling custom further states that tasting is merely a ritual since '(u)sually the intoxication will not differ much from one cigarette to another * * *.'115 Once again, we simply are unable to estimate what proportion of mrihuana possessors are capable of 'placing' the marihuana in their possession by its taste, much less what proportion actually have done so by the time they are arrested.
G.
81
We conclude that the 'knowledge' aspect of the § 176a presumption cannot be upheld without making serious incursions into the teachings of Tot, Gainey, and Romano. In the context of this part of the statute, those teachings require that it be determined with substantial assurance that at least a majority of marihuana possessors have learned of the foreign origin of their marihuana through one or more of the ways discussed above.
82
We find it impossible to make such a determination. As we have seen, the materials at our disposal leave us at large t estimate even roughly the proportion of marihuana possessors who have learned in one way or another the origin of their marihuana. It must also be recognized that a not inconsiderable proportion of domestically consumed marihuana appears to have been grown in this country, and that its possessors must be taken to have 'known,' if anything, that their marihuana was not illegally imported. In short, it would be no more than speculation were we to say that even as much as a majority of possessors 'knew' the source of their marihuana.116
83
Nor are these deficiencies in the foundation for the 'knowledge' presumption overcome by paying, as we do, the utmost deference to the congressional determination that this presumption was warranted. For Congress, no less than we, is subject to constitutional requirements, and in this instance the legislative record falls even shorter of furnishing an adequate foundation for the 'knowledge' presumption than do the more extensive materials we have examined.
84
We thus cannot escape the duty of setting aside petitioner's conviction under Court 2 of this indictment.
85
For the reasons stated in Part I of this opinion we reverse outright the judgment of conviction on Count 3 of the indictment. For the reasons stated in Part II, we reverse the judgment of conviction on Count 2 and remand the case to the Court of Appeals for further proceedings consistent with this opinion. We are constrained to add that nothing in what we hold today implies any constitutional disability in Congress to deal with the marihuana traffic by other means.
86
Reversed and remanded.
87
Mr. Chief Justice WARREN joins Part II of the opinion of the Court and, considering himself bound by the decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), concurs in the result as to Part I.
88
Mr. Justice STEWART, concurring.
89
I join Part II of the Court's opinion. As to Part I, I have before now expressed my conviction that the Fifth Amendment guarantee against compulsory self-incrimination was originally intended to do no more than confer a testimonial privilege in a judicial proceeding.1 But the Court through the years has drifted far from that mooring; the Marchetti and Grosso cases2 are simply the most recent in a long line of decisions marking the extent of the drift. Perhaps some day the Court will consider a fundamental re-examination of its decisions in this area, in the light of the original constitutional meaning. Until that day comes, it seems to me that the authoritative weight of precedent permits no escape from the conclusion reached by the Court in this case. I therefore join its opinion and judgment.
90
Mr. Justice BLACK, concurring in the result.
91
I concur in the Court's outright reversal of the petitioner's conviction on Count 3 of the indictment for the reasons set out in Part I of the Court's opinion.
92
I also concur in reversal of the petitioner's conviction on Count 2 of the indictment, based on 21 U.S.C. § 176a. That section makes it a crime to import marihuana into the United States or to receive, conceal, or transport it, knowing it to have been imported contrary to law, and then goes on to provide that the mere possession of marihuana shall be 'deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.' The trial court in this case charged the jury that proof that petitioner merely had possession of marihuana was sufficient to authorize a finding that he knew it had been imported or brought into the United States contrary to law. It is clear beyond doubt that the fact of possession alone is not enough to support an inference that the possessor knew it had been imported. Congress has no more constitutional power to tell a jury it can convict upon any such forced and baseless inference than it has power to tell juries they can convict a defendant of a crime without any evidence at all from which an inference of guilt could be drawn. See Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Under our system of separation of powers, Congress is just as incompetent to instruct the judge and jury in an American court what evidence is enough for conviction as the courts are to tell the Congress what policies it must adopt in writing criminal laws. The congressional presumption, therefore, violates the constitutional right of a defendant to be tried by jury in a court set up in accordance with the commands of the Constitution. It clearly deprives a defendant of his right not to be convicted and punished for a crime without due process of law, that is, in a federal case, a trial before an independent judge, after an indictment by grand jury, with representation by counsel, an opportunity to summon witnesses in his behalf, and an opportunity to confront the witnesses against him. This right to a full-fledged trial in a court of law is guaranteed to every defendant by Article III of the Constitution, in the Sixth Amendment, and by the Fifth and Fourteenth Amendments' promises that no person shall be deprived of his life, liberty, or property without due process of law—that is A trial according to the law of the land, both constitutional and statutory.
93
It is for these reasons, and not because I think the law is "irrational' or 'arbitrary,' and hence unconstitutional,' ante, at 30, that I would invalidate this presumption. I am firmly and profoundly opposed to construing 'due process' as authorizing this Court to invalidate statutes on any such nebulous grounds. My quite different reasons for holding that the presumption does deny due process of law, that is the benefit of the 'law of the land,' have been fully set out in many opinions, including, for illustration, my concurring opinion in Tot v. United States, 319 U.S. 463, 473, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), and my dissenting opinion in United States v. Gainey, 380 U.S. 63, 74, 85 S.Ct. 754, 761, 13 L.Ed.2d 658 (1965).
1
Insofar as here relevant, § 2(h) of the Narcotic Drugs Import and Export Act, 70 Stat. 570, 21 U.S.C. § 176a, provides:
'Notwithstanding any other provision of law, whoever, knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law, or smuggles or clandestinely introduces into the United States marihuana which should have been invoiced, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such marihuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or whoever conspires to do any of the foregoing acts, shall be imprisoned * * *.
'Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.'
2
See n. 1, supra.
3
Insofar as here relevant, 26 U.S.C. § 4744(a) provides:
'It shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by section 4741(a)—
'(1) to acquire or otherwise obtain any marihuana without having paid such tax, or
'(2) to transport or conceal, or in any manner facilitate the transportation or concealment of, any marihuana so acquired or obtained.'
The statutory scheme of the Marihuana Tax Act is analyzed in more detail at 14—16, infra.
4
Petitioner had testified without contradiction that he had obtained the marihuana in New York, and the District Court apparently reasoned that an article taken out of the United States could not be 'smuggled' back into the country, as charged by the indictment. See Appendix 60a; 2 Transcript of Record 520, 523—526; cf. United States v. Claybourn, 180 F.Supp. 448, 451—452 (1960).
5
See 18 U.S.C. § 4208. Petitioner was tentatively sentenced to 20 years in prison and a $20,000 fine for violation of § 176a, and to 10 years in prison and a $20,000 fine for violation of § 4744(a)(2) (see 26 U.S.C. § 7237(a)), the prison sentences to run consecutively. The lowest penalty for conviction under § 176a is five years' imprisonment, and no suspension of sentence, probation, or parole is permitted following such a conviction. See 26 U.S.C. § 7237(d).
6
390 U.S., at 48, 88 S.Ct., at 702, quoting from Reg. v. Boyes, 1 B. & S. 311, 330 (1861).
7
390 U.S., at 57, 88 S.Ct., at 707, quoting from Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165 (1965).
8
Ibid.
9
The transferor is secondarily liable for the tax. See 26 U.S.C. § 4741(b).
10
The exceptions include transfers by or under prescription of a medical practitioner; legal exportation to foreign countries; transfers to government officials; and transfers of marihuana seeds to persons registered under § 4753.
11
26 U.S.C. § 6107, which requires that a list or 'persons who have paid special taxes' under subtitles D and E of the Internal Revenue Code be kept for public inspection in each principal Internal Revenue office and that the list be furnished to state and local prosecutors on request, apparently does not apply to payors of transfer taxes. See Haynes v. United States, 390 U.S. 85, 99—100, 88 S.Ct. 722, 731—732, 19 L.Ed.2d 923 (1968).
12
The relevant text of § 4744(a) is set out in n. 3, supra.
13
Marchetti v. United States, 390 U.S. 39, 48, 88 S.Ct. 697, 703, 19 L.Ed.2d 889 (1968).
14
It is also possible that compliance with the Act also would have created a substantial risk of incrimination under 21 U.S.C. § 176a, the other federal statute which petitioner was convicted of violating (the relevant text of § 176a is reproduced in n. 1, supra). However, the danger of incrimination under state law is so plain that this possibility need not be explored further.
15
At the time petitioner failed to comply with the Act, 48 States and the District of Columbia had on their books in some form essentially the provisions of the Uniform Narcotic Drug Act. See 9B Uniform Laws Ann. 409—410 (1966). Section 2 of that Act states: 'It shall be unlawful for any person to * * * possess * * * any narcotic drug, except as authorized in this Act.' Section 1 (14) defines 'narcotic drugs' to include marihuana ('cannabis'). The remaining two States, California and Pennsylvania, also have statutes making it a crime to possess marihuana. See Cal. Health & Safety Code § 11530 (1964); Pa.Stat.Ann., Tit. 35, §§ 780—2(g), 780—4(q) (1964).
In 1965, New York and Texas had in effect statutory provisions substantially identical to the above sections of the Uniform Act. For New York, see N.Y.Pub. Health Law, McKinney's Consol. Laws, c. 45, §§ 3301, subd. 38 (Supp. 1968—1969), 3305 (1954); for Texas, see Tex.Pen.Code, Art. 725b, §§ 1(14), 2 (1961). In New York possession of any amount of marihuana was a misdemeanor punishable by up to a year's imprisonment. See N.Y.Pen.Law, McKinney's Consol.Laws, c. 40, § 1751—a(1) (Supp. 1966). See also id., § 1751, subd. 2 (Supp.1966). In Texas, such possession was a felony punishable by imprisonment for not less than two years and not more than life. See Tax.Pen.Code, Art. 725b, § 23(1) (1961).
16
See, e.g., Uniform Narcotic Drug Act § 3—11, 9B Uniform Laws Ann. 472—496 (1966); N.Y.Pub. Health Law §§ 3310, 3320—3325, 3330—3333 (1954 and Supp. 1968—1969); Tex.Pen.Code, Art. 725b, §§ 5—12 (1961).
17
See 26 U.S.C. §§ 4751(b)(1)—(6).
18
See 26 U.S.C. §§ 4755(a)(1), 7237(a).
19
26 U.S.C. §§ 4742(b)(1)—(2) exempt persons who receive marihuana under medical prescription or directly from a medical practitioner. Title 26 U.S.C. § 4742(b)(4) exempts transfers to public officials. And the design of the Act strongly suggests that a delivery of marihuana to an employee or agent of a registrant is considered a 'transfer' to the registrant himself, see 26 U.S.C. § 4755(b)(3), 26 CFR § 152.41, 152.42, and that delivery to a common carrier is considered a 'transfer' to the addressee. See 26 U.S.C. § 4755(b)(2), 26 CFR § 152.127(c).
20
The Government argues that the $100 per ounce tax was intended to be collected only civilly from those found to have engaged in illegal transfers. See Brief for the United States 19, n. 23 and 29. See also United States v. Sanchez, 340 U.S. 42, 71 S.Ct. 108, 95 L.Ed. 47 (1950).
21
After our decisions in Marchetti, Grosso, and Haynes, district directors were instructed that applications by nonregistrants should not be disclosed but simply returned to the applicants. See Brief for the United States 17, n. 16.
22
See n. 10, supra.
23
See Hearings on H.R. 6385 before the House Committee on Ways and Means, 75th Cong., 1st Sess., 5 (1937).
24
See id., at 3—5.
25
Id., at 7.
26
Ibid.
27
Hearings on H.R. 6385 before the House Committee on Ways and Means, 75th Cong., 1st Sess., 9 (1937). The doubts about the bill's constitutionality were occasioned by the dissenting opinions in United States v. Doremus, 249 U.S. 86, 95, 39 S.Ct. 214, 216, 63 L.Ed. 493 (1919), and Nigro v. United States, 276 U.S. 332, 354, 357, 48 S.Ct. 388, 395—396, 72 L.Ed. 600 (1928). See Hearings on H.R. 6385, supra, at 9.
28
Hearings on H.R. 6906 before a subcommittee of the Senate Committee on Finance, 75th Cong., 1st Sess., 5 (1937).
29
Id., at 6.
30
Ibid.
31
Id., at 7.
32
H.R.Rep.No. 792, 75th Cong., 1st Sess., 1 (1937).
33
Id., at 2.
34
Ibid.
35
Id., at 3.
36
Ibid.
37
See S.Rep.No. 900, 75th Cong., 1st Sess., 2—3 (1937).
38
The regulations, 26 CFR §§ 152.22, 152.23, see supra, at 18-19, which limit registration under § 4753 to persons whose marihuana dealings are legal under relevant state and local laws, do not of themselves require the result urged by the Government. In fact, there is strong support in the legislative history for the proposition that illicit consumers of marihuana like petitioner are not entitled to register. The House and Senate reports and the testimony of Mr. Hester before a subcommittee of the Senate Finance Committee all state, in identical language, that '(u)nder (the bill's) provisions all legitimate handlers of marihuana are required to pay occupational taxes * * *.' H.R.Rep.No.792, 75th Cong., 1st Sess., 2 (1937); S.Rep.No.900, 75th Cong., 1st Sess., 3 (1937); Hearings on H.R. 6906 before a subcommittee of the Senate Committee on Finance, 75th Cong., 1st Sess., 6 (1937). In his testimony before the House Ways and Means Committee, Mr. Hester stated explicitly that 'those who would consume marihuana are not eligible to register under the bill * * *.' Hearings on H.R. 6385 before the House Committee on Ways and Means, 75th Cong., 1st Sess., 8 (1937).
39
See H.R.Rep. No. 1337, 83d Cong., 2d Sess., A325 (1954); S.Rep.No.1622, 83d Cong., 2d Sess., 482—483 (1954) U.S.Code & Admin.News, pp. 4025, 4629.
40
See also 1 K. Davis, Administrative Law Treatise § 5.07 (1958), and cases there cited.
41
See generally id., § 5.06.
42
See Brief for the United States in No. 81, O.T.1950, United States v. Sanchez, at 28—29.
43
Any other holding would give rise to additional knotty questions, such as whether petitioner's nonpayment of the transfer tax should be excused because of his actual or assumed reliance upon the erroneous administrative construction of the statute, under which he would not have been permitted to pay. Cf. James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961).
44
Grosso v. United States, 390 U.S. 62, 65, 88 S.Ct. 709, 712, 19 L.Ed.2d 906 (1968), quoting fro Albertson v. SACB, 382 U.S. 70, 78, 86 S.Ct. 194, 198, 15 L.Ed.2d 165 (1965).
45
See also Grosso v. United States, supra, 390 U.S. at 69, 88 S.Ct. at 714; Haynes v. United States, supra, 390 U.S., at 99 100, 88 S.Ct., at 731—732 (1968).
46
H.R.Rep. No. 792, 75th Cong., 1st Sess., 2 (1937); S.Rep. No. 900, 75th Cong., 1st Sess., 3 (1937).
47
See Appendix 87a—88a, 89a.
48
See Appendix 86a—89a. Of course, a holding that petitioner waived his right to plead self-incrimination by his reliance on the erroneous administrative interpretation would require consideration of the further question mentioned in n. 43, supra: Whether such reliance should provide a defense.
49
When first asked on direct examination why he had not paid the transfer tax, petitioner stated: 'Well, I knew that I couldn't get such a permission * * *. I also know that if I had applied for such a (transfer tax) stamp I would probably subject myself to investigation * * *.' Appendix 86a. In response to a similar subsequent question, petitioner said: 'I was very certain that I would not be able to pay the tax on the marihuana and that not only would it be taken away from me but I would be subjected to action.' Appendix 87a. And when asked whether he had 'an honest belief that you could not obtain (an order form),' petitioner replied: 'I had a strong and honest belief that I could not get it and it would just cause a lot of publicity and trouble for both the government and myself. And I am not trying to cause trouble * * *.' Appendix 89a.
50
As has been noted, the first count charged him with smuggling in violation of § 176a, but the District Court dismissed that count. See Supra, at 11 and n. 4.
51
See Appendix 90a.
52
With respect to this theory, the trial judge stated near the end of his charge to the jury:
'Now, you might have some difficulty with the question on Count 2 * * *.
'I mention this a second time because you might be confused about the question of importation.
'We are not talking necessarily about the importation or what the government contends was importation here at the bridge.
'The defendant has told us that he received the marihuana in New York. This statute, of course, is of application throughout the land and the presumption would still apply that the narcotic had been imported illegally and that he knew it had been imported illegally unless he explains his possession to the satisfaction of the jury.' Appendix 103a—104a.
53
See 2 Transcript of Recond 612—614.
54
See 1 Transcript of Record 198—200; 2 Transcript of Record 492, 649.
55
We think it irrelevant that petitioner himself testified at trial that he had no knowledge of the marihuana's origin. The Government put in no affirmative evidence of knowledge, and the jury was instructed that it could convict under the 'North-South' theory, relying upon the § 176a presumption to permit an inference of knowledge. The trial judge did not mention petitioner's testimony on this point in his instructions to the jury. Since the presumption is by its terms rebuttable, the intended implication must have been that the jury could convict on the basis of the presumption only if it disbelieved the testimony. Cf. Caudillo v. United States, 253 F.2d 513, 518 (9 Cir. 1958).
56
One test was whether there was a 'rational connection' between the basic fact and the presumed fact. See Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 (1910); McFarland v. American Sugar Rfg. Co., 241 U.S. 79, 36 S.Ct. 498, 60 L.Ed. 899 (1916); Western & Atl. R. Co. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884 (1929); cf. Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925). A second was whether the legislature might have made it a crime to do the thing from which the presumption authorized an inference. See Ferry v. Ramsey, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed. 796 (1928). A third was whether it would be more convenient for the defendant or for the prosecution to adduce evidence of the presumed fact. See Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934); cf. Rossi v. United States, 289 U.S. 89, 53 S.Ct. 532, 77 L.Ed. 1051 (1933); Yee Hem v. United States, supra.
57
Section 2(f) of the Federal Firearms Act, 52 Stat. 1251, 15 U.S.C. § 902(f).
58
Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 (1910).
59
See n. 56, supra.
60
See ibid.
61
For example, it was a argued in Tot that in order to regulate interstate commerce in firearms Congress might have prohibited possession of all firearms by persons who had been convicted of crimes of violence.
62
The Court declared that there was even less reason to conclude from possession that the acquisition had occurred subsequent to the effective date of the Firearms Act.
63
Like the Court in Tot, we limited ourselves in Romano to consideration of the crime Congress actually had defined. We observed that Congress had not chosen to make presence at an illegal still a crime in itself, but had only 'declar(ed) presence to be sufficient evidence to prove the crime of possession beyond reasonable doubt,' and concluded that '(t)his approach obviously fails under the standards traditionally applied to such legislation.' 382 U.S., at 144, 86 S.Ct., at 284.
64
Since we find that the § 176a presumption is unconstitutional under this standard, we need not reach the question whether a criminal presumption which passes muster when so judged must also satisfy the criminal 'reasonable doubt' standard if proof of the crime charged or an essential element thereof depends upon its use. Cf. United States v. Adams, 293 F.Supp. 776, 783—784 (D.C.1968). See also United States v. Romano, supra, 382 U.S. at 140—144, 86 S.Ct., at 281—284. Comment, The Constitutionality of Statutory Criminal Presumptions, 34 U.Chi.L.Rev. 141 (1966).
65
The presumption also permits inference of a third element: that the importation or bringing in was with intent to defraud the United States. The permissibility of this inference was not one of the questions presented in Leary's petition for certiorari, and on the view we take of this branch of the case we have no occasion to consider it.
66
See 1 Transcript of Record 165, 186—187. Petitioner attempted to introduce further evidence concerning the proportion of domestically consumed marihuana which in fact has been grown in the United States, but the District Court held it irrelevant and therefore inadmissible. See 2 Transcript of Record 517.
67
See supra, at 34 and n. 63.
68
A statute based upon a legislative declaration of facts is subject to constitutional attack on the ground that the facts no longer exist; in ruling upon such a challenge a court must, of course, be free to re-examine the factual declaration. See Block v. Hirsh, 256 U.S. 135, 154—155, 41 S.Ct. 458, 459, 65 L.Ed. 865 (1921); Communist Party of United States v. SACB, 367 U.S. 1, 110 114, 81 S.Ct. 1357, 1417—1420, 6 L.Ed.2d 625 (1961).
69
See S.Rep.No. 1997, 84th Cong., 2d Sess., 7, 13 (1956); H.R.Rep. No. 2388, 84th Cong., 2d Sess., 3, 6 (1956); H.R.Conf.Rep.No.2546, 84th Cong., 2d Sess., 14 (1956); 102 Cong.Rec. 269, 271, 9015, 10688, 12166; U.S.Code & Admin.News, p. 3274.
70
Hearings on Traffic in, and Control of, Barbiturates, and Amphetamines before a Subcommittee of the House Committee on Ways and Means, 84th Cong. (1955—1956) (hereinafter cited as House Hearings); Hearings on Illicit Narcotics Traffic before the Subcommittee on Improvements in the Federal Criminal Code of the Senate Committee on the Judiciary, 84th Cong., 1st Sess. (1955) (hereinafter cited as Senate Hearings).
71
Senate Hearings 18.
72
See House Hearings 618, 1071; Senate Hearings 2384, 2471 2472, 4370, 4630. See also House Hearings 889; Senate Hearings 2893, 3488—3490; 102 Cong.Rec. 269, 271.
73
See Senate Hearings 3488—3489.
74
Id., at 4814.
75
Id., at 599. See also Senate Hearings 4167.
76
Compare Bureau of Narcotics, Report on the Traffic in Opium and Other Dangerous Drugs 67 (1956), with id., at 43 (1967). These seizures are estimated to represent 10% of the marihuana actually smuggled into the United States. See Appendix 92a.
77
See, e.g., J. Rosevear, Pot: A. Handbook of Marihuana 118 (1967); Bouquet, Cannabis, Parts III—V, 3 U.N.Bull. on Narcotics, No. 1, 22, at 32—33 (1951); Mayor's Committee on Marihuana, The Marihuana Problem in the City of New York 17—25 (1944); Blum, Mind-Altering Drugs and Dangerous Behavior: Dangerous Drugs, in President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Narcotics and Drug Abuse 21, 24 (1967).
78
See, e.g., Rosevear, supra, at 117—131; Bureau of Narcotics, Report on the Traffic in Opium and Other Dangerous Drugs 2, 40 (1966); Blum, supra, at 24; Cahn, The User and the Law, in J. Simmons (ed.), Marihuana: Myths and Realities (1967); McGlothlin, Toward a Rational View of Marihuana 195—198, in Simmons (ed.), supra, at 195—198.
79
See Bureau of Narcotics, Report on the Traffic in Opium and Other Dangerous Drugs 66 (1962); id., at 78 (1963); id., at 84 (1964); id., at 51 (1965); id., at 45 (1966); id., at 43 (1967).
80
See Brief for the United States 40.
81
See, e.g., Bureau of Narcotics, Report on the Traffic in Opium and Other Dangerous Drugs 36 (1963); id., at 30 (1964); Mandel, Myths and Realities of Marihuana Pushing, in J. Simmons (ed.), Marihuana: Myths and Realities 58—110 (1967); President's Commission on Law Enforcement and Administration of Justice, Report: The Challenge of Crime in a Free Society 213 (1967); Simmons (ed.), supra, at 233; United States Government, Report on the Working of the International Treaties on Narcotic Drugs 17 (1966); id., at 24—25 (1967). Contra, see Transcript of Pretrial Hearing, July 15, 1968, United States v. Adams, 293 F.Supp. 776 (D.C.1968), at 67, 76 (testimony of Dr. Richard Schultes, Director of Harvard Botanic Museum) (hereafter 1 Transcript). See also J. Rosevear, Pot: A Handbook of Marihuana 35, 119—120 (1967).
82
In 1967, 1,466 acres were destroyed. See United States Government, Report on the Working of the International Treaties on Narcotic Drugs 9 (1967). Accepting the Bureau of Narcotics' lowest estimate of yield per acre, see Brief for the United States 38, n. 43, this acreage would have supplied over 1,200,000 pounds of marihuana. This is enough for about 1,800,000,000 marihuana cigarettes. See infra, at 51 and n. 109.
83
Compare Bureau of Narcotics, Report on the Traffic in Opium and Other Dangerous Drugs 12 (1959), with United States Government, Report on the Working of the International Treaties on Narcotic Drugs 9 (1967). The decline was steady.
84
Compare Bureau of Narcotics, Report on the Traffic in Opium and Other Dangerous Drugs 43 (1959), with id., at 43 (1967).
85
See n. 82, supra.
86
See Bureau of Narcotics, Report on the Traffic in Opium and Other Dangerous Drugs 17 (1965); United States Government, Report on the Working of the International Treaties on Narcotic Drugs 10 (1966); id., at 9 (1967).
87
See supra, at 39.
88
Most authorities believe that more potent marihuana can be grown in a hot, dry climate. See infra, at 49 and n. 102.
89
See Bureau of Narcotics, Reports on the Traffic in Opium and Other Dangerous Drugs 1956—1967; Transcript of Pretrial Hearing, July 24, 1968, United States v. Adams, 293 F.Supp. 776 (D.C.1968), at 37—45 (hereafter 2 Transcript); United States Government, Report on the Working of the International Treaties on Narcotic Drugs 17 (1966); id., at 24—25 (1967). But cf. Senate Hearings 3488—3490.
90
See, e.g., Bureau of Narcotics, Report on the Traffic in Opium and Other Dangerous Drugs 23 (1965) (seizure of about 1,800 pounds of Mexican marihuana), 23—24 (seizure of about one ton of Mexican marihuana), 24 (seizure of about 3 1/2 tons of Mexican marihuana); id. (1966), at 17 (seizure of about 600 pounds of Mexican marihuana). By contrast, the largest reported seizure of marihuana definitely grown in the United States involved only about eight pounds. See id., at 7 (1967). But see also Senate Hearings 3488—3490.
91
See supra, at 34 and n. 56.
92
In refusing to follow this aspect of the reasoning in Yee Hem, we intimate no opinion whatever about the continued validity of the presumption relating to 'hard' narcotics, which was sustained in Yee Hem and is now found in 21 U.S.C. § 174. As will appear, our holding that the § 176a 'knowledge' presumption is unconstitutional rests entirely upon a detailed inquiry into the available facts about the state of mind of marihuana users. The facts regarding 'hard' narcotics may well be significantly different.
93
Nothing in the legislative history of § 176a is of aid in determinin the intended scope of the word 'knowing,' as it is used in that section. In making that determination, we have employed as a general guide the definition of 'knowledge' which appears in the Proposed Official Draft of the Model Penal Code, at 27 (1962). The Code provides:
'When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.'
94
See J. Rosevear, Pot: A Handbook of Marihuana 124—125 (1967). It has been estimated that there are 500,000 to 1,000,000 'regular' marihuana smokers in the United States and 3,000,000 to 5,000,000 'occasional' users. See J. Simmons (ed.), Marihuana: Myths and Realities 232 (1967).
95
See id., at 236; Rosevear, supra, at 121—125.
96
See ibid.
97
See United States v. Adams, 293 F.Supp. 776, 780—781, 784 785 (D.C.1968).
98
See Becker, Marihuana: A Sociological Overview, in D. Solomon (ed.), The Marihuana Papers 33, 47—50 (1966); Mandel, Myths and Realities of Marihuana Pushing, in Simmons (ed.), supra, at 58—110; Rosevear, supra, at 27—37, 117—131; Simmons (ed.), supra, at 231—234. It should be remembered that there are estimated to be at least 3,500,000 'regular' or 'occasional' marihuana smokers in the United States. See n. 94, supra.
99
See authorities cited in n. 98, supra.
100
See supra, at 39 (testimony of Commissioner Anslinger); House Hearings 1071—1072, Senate Hearings 4354—4355 (statements of District Supervisor Aman).
101
See Senate Hearings 3488—3489. See also House Hearings 288.
102
See authorities referred to in A. Hodapp, Marihuana: A Review of the Literature for Analytical Chemists 13 (1959); Bouquet, Cannabis, Parts I—II, 2 U.N. Bull. on Narcotics, No. 4, 14, 21—22 (1950); Ciba Foundation Study Group No. 21, Hashish: Its Chemistry and Pharmacology 33 (1965); Simmons (ed.), supra, at 230.
103
See authorities cited in n. 100, supra; Rosevear, supra, at 32—33, 68; Boughey, Pot Scenes East and West, in Simmons (ed.), supra, at 33—34; Mayor's Committee on Marihuana, The Marihuana Problem in the City of New York 9 (1944); Simmons (ed.), supra, at 233.
104
See Rosevear, supra, at 32—33.
105
See id., at 33.
106
See 1 Transcript 16—18, 54 (testimony of Dr. Richard Schultes, Director of Harvard Botanic Museum).
107
See 2 id., at 19—33 (testimony of Narcotics Agent William Durkin). See also Bureau of Narcotics, Report on the Traffic in Opium and Other Dangerous Drugs 17 (1966). But cf. Senate Hearings 3488—3489.
108
See Simmons (ed.), supra, at 237; Rosevear, supra, at 159; Bureau of Narcotics, Report on the Traffic in Opium and Other Dangerous Drugs 17 (1966). See also Senate Hearings 3489.
109
See Rosevear, supra, at 29; Mandel, Myths and Realities of Marihuana Pushing, in Simmons (ed.), supra, at 78; Senate Hearings 3489.
110
See Rosevear, supra, at 28. See also Mandel, supra, at 78.
111
2 Transcript 26 (testimony of Narcotics Agent William Durkin).
112
Senate Hearings 3489 (prior testimony of Customs Agent Lawrence Fleishman).
113
See supra, at 49 and n. 102.
114
See Rosevear, supra, at 31—33.
115
Id., at 32.
116
A careful examination of the lower-court decisions regarding the presumption's constitutionality does not suggest the contrary. All courts of appeals which have ruled on the question have sustained the presumption. See Caudillo v. United States, 253 F.2d 513 (C.A.9th Cir. 1958); Costello v. United States, 324 F.2d 260, 263—264 (C.A.9th Cir. 1963); United States v. Soto, 256 F.2d 729, 735 (C.A.7th Cir. 1958); Borne v. United States, 332 F.2d 565, 566 (C.A.5th Cir. 1964); United States v. Gibson, 310 F.2d 79, 82 (C.A.2d Cir. 1962). However, there is no indication tht in any of these cases the court had before it or took into account even a fraction of the evidence which we have considered; in one instance, the lack of evidence was expressly stated to be the ground of decision. See United States v. Gibson, supra. See also Costello v. United States, supra. The only lower court which conducted a factual inquiry in any way comparable to our own also held the presumption unconstitutional. See United States v. Adams, 293 F.Supp. 776 (D.C.S.D.N.Y.1968).
1
See Grosso v. United States, 390 U.S. 62, 76, 88 S.Ct. 709, 718, 19 L.Ed.2d 906 (concurring opinion); In re Gault, 387 U.S. , 80, n. 3, 87 S.Ct. 1428, 1471, 18 L.Ed.2d 527 (dissenting opinion).
2
Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906.
| 01
|
395 U.S. 57
89 S.Ct. 1559
23 L.Ed.2d 94
UNITED STATES, Appellant,v.Henry Preston COVINGTON.
No. 366.
Argued Dec. 12, 1968.
Decided May 19, 1969.
Philip A. Lacovara, for appellant, pro hac vice, by special leave of court.
William J. Davis, Cleveland, Ohio, for appellee.
Robert J. Haft, New York City, for appellee by special leave of Court.
Mr. Justice HARLAN delivered the opinion oft he Court.
1
This is a companion case to Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, decided today. Appellee was charged in a one-court federal indictment in the Southern District of Ohio with having violated 26 U.S.C. § 4744(a)(1), a part of the Marihuana Tax Act, by obtaining 737.1 grams of marihuana without having paid the transfer tax imposed by 26 U.S.C. § 4741(a).1 On appellee's motion, the District Court dismissed the indictment, holding that under principles established in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), appellee's privilege against self-incrimination necessarily would provide a complete defense to the prosecution. 282 F.Supp. 886 (1968).
2
On motion for reconsideration, the Government advanced the argument, more fully described in Leary, supra, 395 U.S., at 18 20, 89 S.Ct., at 1538—1540, that the transfer tax provisions of the Marihuana Tax Act do not compel incriminatory disclosures because, as administratively construed and applied, they allow prepayment of the tax only by persons whose activities are otherwise lawful. The District Court responded by ruling in the alternative that if appellee was not required to pay the tax there could be no basis for the indictment. Appendix 20.
3
The Government appealed directly to this Court pursuant to 18 U.S.C. § 3731, which authorizes direct appeal from the dismissal of an indictment when the decision is one 'sustaining a motion in bar' or 'is based upon the invalidity or construction of the statute upon which the indictment or information is founded.' We noted probable jurisdiction, 393 U.S. 910, 89 S.Ct. 238, 21 L.Ed.2d 197 (1968),2 and the appeal was argued together with Leary v. United States, supra.
4
As has been noted, the District Court dismissed the indictment on two alternative grounds. We begin with the second, which was that, assuming the Government's construction of the Marihuana Tax Act to be correct, the indictment did not charge an offense under that statute. Our decision today in Leary, supra, makes it plain that this was an improper ground of dismissal, for we have held that the Government's interpretation is incorrect and that the Act requires persons like appellee to prepay the transfer tax. See 395 U.S., at 20—26, 89 S.Ct., at 1539—1543.
5
The District Court's other basis for dismissal was that appellee's Fifth Amendment privilege necessarily would provide a complete defense to the prosecution. We have held today in Leary that the privilege does provide such a defense unless the plea is untimely, the defendant confronted no substantial risk of self-incrimination, or the privilege has been waived. See at 27, 89 S.Ct., at 1543.3 See also Marchetti v. United States, 390 U.S. 39, 61, 88 S.Ct. 697, 709, 19 L.Ed.2d 889 (1968). The Questions remain whether such a plea of the privilege may ever justify dismissal of an indictment, and if so whether this is such an instance.
6
Federal Rule of Criminal Procedure 12(b)(1) states that: 'Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.' A defense is thus 'capable of determination' if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.4 Rule 12(b)(4) allows the District Court in its discretion to postpone determination of the motion to trial, and permits factual hearings prior to trial if necessary to resolve issues of fact peculiar to the motion.
7
In many instances, a defense of self-incrimination to a Marihuana Tax Act prosecution will be 'capable of determination without the trial of the general issue.' A plea on motion to dismiss the indictment is plainly timely. The question whether the defendant faced a substantial risk of incrimination is usually one of law which may be resolved without reference to the circumstances of the alleged offense. There may more frequently be instances when the issue of waiver will be suitable for trial together with the 'general issue.'5 However, the question whether the privilege has been waived also is one of law, and in most cases there will be no factual dispute about it. Hence, we think that a defendant's assertion of the privilege should be sufficient to create a legal presumption of nonwaiver, and thus to require dismissal of the indictment, unless the Government can rebut the presumption by showing a need for further factual inquiries.
8
Application of these principles to this appeal requires affirmance. Appellee asserted in his motion to dismiss that his possession of marihuana was illegal under Ohio law, and that he would have run a substantial risk of incrimination had he complied with the Act. The District Court reached the same conclusion. The Government appears to acknowledge the illegality of appellee's possession.6 We conclude that there is no possibility of any factual dispute with regard to the hazard of incrimination.
9
There is in this brief record no indication that appellee waived his privilege, and the Government has never alleged the existence of a factual controversy on that score. Hence, we think it 'just under the circumstances' that the case be finally disposed of at this level. See 28 U.S.C. § 2106; Grosso v. United States, 390 U.S. 62, 71—72, 88 S.Ct. 709, 715, 19 L.Ed.2d 906 (1968); Haynes v. United States, 390 U.S. 85, 100—101, 88 S.Ct. 722, 732, 19 L.Ed.2d 923 (1968). Accordingly, the judgment of the District Court is
10
Affimed.
11
Mr. Chief Justice WARREN, considering himself bound by the decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), concurs in the judgment of the Court.
12
Mr. Justice STEWART joins the opinion and judgment of the Court upon the premise stated in his concurring opinion in Leary v. United States, 395 U.S., p. 54, 89 S.Ct., p. 1557.
1
The relevant provisions of the Marihuana Tax Act are set out and their relationships explained in Leary v. United States, supra, at 14—15, 89 S.Ct., at 1536—1537.
2
If the dismissal rested on the ground that the Fifth Amendment privilege would be a defense, then the decision was one 'sustaining a motion in bar.' See United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 (1931). If the dismissal was based on a finding that under the Government's construction of the Marihuana Tax Act the indictment stated no offense, then the decision necessarily was 'based upon the construction of the statute upon which the indictment * * * (was) founded.' See United States v. Borden Co., 308 U.S. 188, 193, 60 S.Ct. 182, 186, 84 L.Ed. 181 (1939).
3
Leary was convicted under 26 U.S.C. § 4744(a)(2), prohibiting transportation or concealment of marihuana by one who acquired itw ithout having paid the transfer tax, while appellee was indicted under 26 U.S.C. § 4744(a)(1), forbidding such acquisition. We think it clear that there is no significant distinction between the statutes for purposes of the Fifth Amendment privilege.
4
See 8 J. Moore, Federal Practice 12.04 (R.Cripes ed.1968); 2 L. Orfield, Criminal Procedure Under the Federal Rules §§ 12.51 12.60 (1966).
5
Cf. Leary v. United States, supra, 395 U.S., at 28—29, 89 S.Ct., at 1543—1544.
6
See Brief for the United States, 3, n. 1.
| 01
|
395 U.S. 1
89 S.Ct. 1501
23 L.Ed.2d 52
UNITED STATES, Petitioner,v.John P. KING.
No. 672.
Argued April 2, 1969.
Decided May 19, 1969.
William D. Ruckelshaus, Washington, D.C., for petitioner.
Neil B. Kabatchnick, Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Colonel John P. King, respondent, was retired from the Army for longevity (length of service) over his objection that he should have been retired for physical disability. Had his retirement been based on disability, Colonel King would have been entitled to an exemption from income taxation allowed by § 104(a)(4) of the Internal Revenue Code of 1954, 26 U.S.C. § 104(a)(4). He brought this action in the Court of Claims alleging that the Secretary of the Army's action in rejecting his disability retirement was arbitrary, capricious, not supported by evidence, and therefore unlawful, and asked for a judgment against the United States for an amount of excess taxes he had been compelled to pay because he had been retired for longevity instead of disability. The Court of Claims agreed with the United States that the claim as filed was basically one for a refund of taxes and was therefore barred by King's failure to allege that he had filed a timely claim for refund as required by 26 U.S.C. § 7422(a). In this situation, the court suggested to counsel that it might have jurisdiction under the Declaratory Judgment Act and requested that briefs and arguments on this point be submitted to the court. This was done. The Court of Claims, in an illuminating and interesting opinion by Judge Davis, reached the conclusion that the court could exercise jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201. In so holding, the court thereby rejected the Government's contentions that the Declaratory Judgment Act does not apply to the Court of Claims and that the court's jurisdiction is limited to actions asking for money judgments. By thisr uling the court expressly declined to follow a long line of its own decisions beginning with Twin Cities Properties, Inc. v. United States, 81 Ct.Cl. 655 (1935). As the opinion of Judge Davis showed, the question of whether the Court of Claims has jurisdiction to issue declaratory judgments is both substantial and important. We granted certiorari to decide that question.
2
The Court of Claims was established by Congress in 1855. Throughout its entire history up until the time that this case was filed, its jurisdiction has been limited to money claims against the United States Government. In 1868 this Court held that 'the only judgments which the Court of Claims (is) authorized to render against the government * * * are judgments for money found due from the government to the petitioner.' United States v. Alire, 6 Wall. 573, 575, 18 L.Ed. 947. In United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90; this Court reaffirmed this view of the limited jurisdiction of the Court of Claims, and held that the passage of the Tucker Act in 1887 had not expanded that jurisdiction to equitable matters. More recently, in 1962, it was said in the prevailing opinion in Glidden Co. v. Zdanok, 370 U.S. 530, 557, 82 S.Ct. 1459, 1476, 8 L.Ed.2d 671, on a point not disputed by any of the other members of the Court that '(f)rom the beginning (the Court of Claims) has been given jurisdiction only to award damages * * *.' No amendment purporting to increase the jurisdiction of the Court of Claims has been enacted since the decision in Zdanok.
3
The foregoing cases decided by this Court therefore clearly show that neither the Act creating the Court of Claims nor any amendment to it grants that court jurisdiction of this present case. That is true because Colonel King's claim is not limited to actual, presently due money damages from the United States. Before he is entitled to such a judgment he must establish in some court that his retirement by the Secretary of the Army for longevity was legally wrong and that he is entitled to a declaration of his right to have his military records changed to show that he was retired for disability. This is essentially equitable relief of a kind that the Court of Claims has held throughout its history, up to the time this present case was decided, that it does not have the power to grant.
4
It is argued, however, that even if the Court of Claims Act with its amendments did not grant that court the authority to issue declaratory judgments, it was given that authority by the Declaratory Judgment Act of 1934. Support for this proposition is drawn from the language in the Declaratory Judgment Act that '(i)n a case of actual controversy within its jurisdiction * * * any court of the United States * * * may declare the rights and other legal relations of any interested party seeking such declaration.' The first answer to this contention is that, as we have pointed out, cases seeking relief other than money damages from the Court of Claims have never been 'within its jurisdiction.' And we agree with the opinion of the Court of Claims in this case that the legislative history materials concerning the application of this Act to the Court of Claims 'are, at best, ambiguous.' For the court below, it was sufficient that there was no clear indication that Congress affirmatively intended to exclude the Court of Claims from the scope of the Declaratory Judgment Act. We think that this approach runs counter to the settled propositions that the Court of Claims' jurisdiction to grant relief depends wholly upon the extent to which the United States has waived its sovereign immunity to suit and that such a waiver cannot be implied but must be unequivocally expressed. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058. This was precisely the position taken by the Court of Claims in a line of its own decisions beginning with Twin Cities Properties, Inc. v. United States, 81 Ct.Cl. 655 (1935). In that case, decided soon after the passg e of the Declaratory Judgment Act, the Court of Claims held that it would require a specific and express statute of Congress to give the Court of Claims the power to issue declaratory judgments. The Court of Claims said in Twin Cities that:
5
'If Congress had intended to extend the scope of this court's jurisdiction and subject the United States to the declaratory judgment act, we think express language would have been used to do so, and the court is not warranted in assuming an intention to widen its jurisdiction from the general provisions of the act which concerns a proceeding equitable in nature and foreign to any jurisdiction this court has heretofore exercised.' 81 Ct.Cl., at 658.
6
We think that the earlier decisions of the Court of Claims and those that have consistently followed them were correct. There is not a single indication in the Declaratory Judgment Act or its history that Congress, in passing that Act, intended to give the Court of Claims an expanded jurisdiction that had been denied to it for nearly a century. In the absence of an express grant of jurisdiction from Congress, we decline to assume that the Court of Claims has been given the authority to issue declaratory judgments.
7
Reversed.
| 89
|
395 U.S. 62
89 S.Ct. 1519
23 L.Ed.2d 101
IMMIGRATION AND NATURALIZATION SERVICE, Petitioner,v.Veljko STANISIC.
No. 297.
Argued Feb. 25, 1969.
Decided May 19, 1969.
Rehearing Denied June 23, 1969.
See 395 U.S. 987, 89 S.Ct. 2125.
Joseph J. Connolly, Washington, D.C., for petitioner, pro hac vice, by special leave of Court.
G. Bernhard Fedde, Portland, Or., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case involves the type of hearing to which an alien crewman is entitled on his claim that he would suffer persecution upon deportation to his native land. The Court of Appeals, 9 Cir., 393 F.2d 539, sustained the respondent crewman's contention that he must be heard by a special inquiry officer1 in a proceeding conducted under § 242(b) of the Immigration and Nationality Act.2 Petitioner, the Immigration and Naturalization Service, argues that respondent's claim was properly heard and determined by a district director.3 We brought the case here, 393 U.S. 912, 89 S.Ct. 235, 21 L.Ed.2d 197 (1968), to resolve the conflict on this score between the decision below and that of the Court of Appeals for the Second Circuit in United States ex rel. Kordic v. Esperdy, 386 F.2d 232 (1967).
I.
2
Respondent, a national of Yugoslavia, was a crewman aboard the Yugoslav vessel, M/V Sumadija, when it docked at Coos Bay, Oregon, in late December 1964. He requested and was issued a 'D—1' conditional landing permit, in accordance with 8 CFR § 252.1(d)(1) and § 252(a)(1) of the Immigration and Nationality Act.4 Under these provisions, the Service may allow a nonimmigrant alien crewman temporary shore leave for
3
'the period of time (not exceeding twenty-nine days) during which the vessel or aircraft on which he arrived remains in port, if the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft on which he arrived.' Ibid.
4
On January 6, 1965, while on shore leave, respondent appeared at the Portland, Oregon, office of the Immigration and Naturalization Service. He claimed that he feared prosecution upon return to Yugoslavia, and he flatly stated that he would not return to the M/V Sumadija. On the basis of the latter statement, and in accordance with § 252(b) of the Act, the District Director revoked respondent's landing permit. Section 252(b) provides:
5
'(A)ny immigration officer may, in his discretion, if he determines that an alien * * * does not intend to depart on the vessel or aircraft which brought him, revoke the conditional permit to land which was granted such crewman under the provisions of subsection (a)(1), take such crewman into custody, and require the master or commanding officer of the vessel or aircraft on which the crewman arrived to receive and detain him on board such vessel or aircraft, if practicable, and such crewman shall be deported from the United States at the expense of the transportation line which brought him to the United States. * * * Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to (sic) cases falling within the provisions of this subsection.'
6
Section 252(b) makes no express exception for an alien whose deportation would subject him to persecution. However, § 243(h) permits the Attorney General to withhold the deportation of any alien to a country in which he would be subject to persecution, and analogously, 8 CFR § 253.1(e) then provided:5
7
'Any alien crewman * * * whose conditional landing permit issued under § 252.1(d)(1) of this chapter is revoked who alleges that he cannot return to a Communist, Communist-dominated, or Communist-occupied country because of fear of persecution in that country on account of race, religion, or political opinion may be paroled into the United States * * * for the period of time and under the conditions set by the district director having jurisdiction over the area where the alien crewman is located.'
8
Thus, although respondent was admittedly deportable under the terms of § 252(b), he was not immediately returned to his vessel. On January 7, he was offered the opportunity to present evidence to the District Director in support of his claim of persecution.
9
Respondent presented no evidence to the District Director. Rather, he contended that he had not been given sufficient time to prepare for the hearing, and he also argued that he was entitled to have his claim heard by a special inquiry officer in accordance with the general provisions of § 242(b). The District Director ruled against respondent and, in the absence of any evidence of probable persecution, ordered him returned to the M/V Sumadija, which was then still in port.
10
Respondent immediately sought relief in the United States District Court for the District of Oregon,6 which, without opinion, temporarily stayed his deportation and referred the matter back to the District Director for a hearing on the merits of respondent's claim. On January 25, 1965, after a hearing at which respondent was represented by counsel and presented evidence, the District Director held that respondent 'has (not) shown that he would be physically persecuted if he were to return to Yugoslavia.' Appendix 22.
11
On respondent's supplemental pleadings, the District Court held that the District Director's findings were supported by the record. The court rejected respondent's claim that he was entitled to a § 242(b) hearing before a special inquiry officer, relying on the last sentence of § 252(b), which provides: 'Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to cases falling within the provisions of this subsection.' Vucinic (and Stanisic) v. U.S. Immigration and Naturalization Service, 243 F.Supp. 113 (D.C.1965).
12
Respondent did not appeal the District Court's decision. Instead, in July 1965, he petitioned Congress for a private bill, pending action on which the Service stayed his deportation. Respondent's effort proved unsuccessful, and on June 21, 1966, the Service ordered him to appear for deportation to Yugoslavia.
13
The following day, respondent reasserted his claim of persecution before the Service, and requested that the matter be heard by a special inquiry officer pursuant to § 242. The Service, and subsequently the District Court, denied relief, both holding that this issue had previously been determined adversely to respondent.
14
The Court of Appeals for the Ninth Circuit reversed. Stanisic v. U.S. Immigration and Naturalization Service, 393 F.2d 539 (1968), holding that the matter was not res judicata because of a significant change of circumstances: the District Director's adverse determination in 1965, and the District Court's unappealed approval thereof, were based on the unstated premise that the M/V Sumadija was still in port;7 but now the ship had long since sal ed, and respondent still had not been deported. The court held that § 252(b) only authorized respondent's 'summary deportation aboard the vessel on which he arrived or, within a very limited time after that vessel's departure, aboard another vessel pursuant to arrangements made before * * * (his) vessel departed.' 393 F.2d, at 542—543. Since neither of these conditions was met, respondent could no longer be deported pursuant to the District Director's 1965 determination; he was entitled to a de novo hearing before a special inquiry officer under § 242(b) of the Act.
II.
15
At the outset, it is important to recognize the distinction between a determination whether an alien is statutorily deportable something never contested by respondent—and a determination whether to grant political asylum to an otherwise properly deportable alien.
16
Section 242(b) provides a generally applicable procedure 'for determining the deportability of an alien * * *.' Section 252(b) provides a specific procedure for the deportation of alien crewmen holding D—1 landing permits. Neither of these sections is concerned with the granting of asylum.
17
Relief from persecution, on the other hand, is governed by §§ 212(d)(5) and 243(h). The former section authorizes the Attorney General, in his discretion, to
18
'parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States * * *.'
The latter authorizes the Attorney General
19
'to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason.'
20
No statute prescribes by what delegate of the Attorney General, or pursuant to what procedure, relief shall be granted under these provisions. By regulation, the decision to grant parole pursuant to § 212(d)(5) rests with a district director, 8 CFR §§ 212.5(a), 253.2; and by regulation, the decision to withhold deportation of most aliens pursuant to § 243(h) is presently made by a special inquiry officer.8 8 CFR §§ 242.8(a), 242.17(c).
21
Prior to 1960, no regulation provided relief to an alien crewman whose D—1 landing permit was revoked but who claimed that return to his country would subject him to persecution. In United States ex rel. Szlajmer v. Esperdy, 188 F.Supp. 491 (1960), a district court held that a crewman in this situation was entitled to be heard. The Service responded by promulgating 8 CFR § 253.1(e), supra, at 67, the regulation which it applied in the case at bar. 8 CFR § 253.1(e) is a hybrid. The grounds for relief are, for present purposes, identical to those of § 243(h) of the Act.9 However, because the Service adheres to the view that a crewman whose D—1 permit has been revoked is not 'within the United States' in the technical sense of that phrase, see Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958), it terms the relief 'parole' into the United States rather than 'withholding deportation.' Whatever terminological and conceptual differences may exist, the substance of the relief is the same.10
22
The Service could provide that all persecution claims be heard by a district director, and we see no reason why the Service cannot validly provide that the persecution claim of an alien crewman whose D—1 landing permit has been revoked be heard by a district director, whether or not the ship has departed. It might be argued, however, that the Service has not done so; that 8 CFR § 253.1(e) was designed to govern the determination of persecution claims only when § 252(b) of the Act governed determinations of deportability; and that if departure of the vessel renders § 252(b) inapplicable (a suggestion we consider and reject in Part III, below), then 8 CFR § 253.1(e) likewise becomes inapplicable.
23
Section 253.1(e) applies, however, to '(a)ny alien crewman * * * whose conditional landing permit issued under § 252.1(d)(1) (of 8 CFR) * * * is revoked'—precisely respondent's situation—and makes no reference to the departure, vel non, of the vessel. Granting that this regulation and its successor provision are not free from ambiguity, we find it dispositive that the agency responsible for promulgating and administering the regulation has interpreted it to apply even when the vessel has departed. E.g., United States ex rel. Kordic v. Esperdy, 386 F.2d 232 (1967); Glavic v. Beechie, 225 F.Supp. 24 (1963), aff'd 340 F.2d 91 (1964). '(T)he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.' Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945).
24
In sum, it is immaterial to the decision in this case whether § 252(b)'s exception to the § 242(b) procedure is, or is not, applicable to respondent. These two provisions govern only the revocation of temporary landing permits and the determination of deportability, and we reiterate that respondent does not contest the District Director's action on either of these scores. These sections do not state who should hear and determine a request for asylum. That is a matter governed by regulation, and under the applicable regulation the respondent received his due.
III.
25
We do not rest on this ground alone, however. Both the court below and the Court of Appeals for the Second Circuit in United States ex rel. Kordic v. Esperdy, 386 F.2d 232 (1967), assumed that a crewman's statutory entitlement to a s 242(b) hearing on his request for asylum was coextensive with his right to a § 242(b) hearing on his statutory deportability, and the case was argued here primarily on that basis. For the balance of the opinion we thus make, arguendo, the same assumption. We conclude, contrary to the court below, that an alien crewman may properly be deported pursuant to § 252(b) even after his ship has sailed.
A.
26
Section 242(b) of the Immigration and Nationality Act provides a generally applicable administrative procedure pursuant to which a special inquiry officer determines whether an alien is deportable. See nn. 1 and 2, supra.
27
The history of § 252(b)'s narrow exception to the § 242(b) deportation procedure is found in the Report of the Senate Committee on the Judiciary, S.Rep. No. 1515, 81st Cong., 2d Sess., which preceded the enactment of the Immigration and Nationality Act. Alien crewmen had traditionally been granted the privilege of temporary admission or shore leave 'because of the necessity of freeing international commerce from unnecessary barriers and considerations of comity with other nations * * *.' Id., t 546. A serious problem was created, however, by alien crewmen who deserted their ships and secreted themselves in the United States. The Committee found that:
28
'(T)he temporary 'shore leave' admission of alien seamen who remain illegally constitutes one of the most important loopholes in our whole system of restriction and control of the entry of aliens into the United States. The efforts to apprehend these alien seamen for deportation are encumbered by many technicalities invoked in behalf of the alien seamen and create conditions incident to enforcement of the laws which have troubled the authorities for many years.' Id., at 550.
29
To ameliorate this problem, the Committee recommended that:
30
'Authority should be granted to immigration officers in a case where the alien crewman intends to depart on the same vessel on which he arrived, upon a satisfactory finding that an alien is not a bona fide crewman, to revoke the permission to land temporarily, to take the alien into custody, and to require the master of the vessel on which he arrived to detain him and remove him from the country.' Id., at 558.
31
Unlike § 242(b), § 252(b) does not prescribe the procedures governing the determination of the crewman's deportability, nor does it confine that determination to a special inquiry officer.
B.
32
As the Court of Appeals noted, the § 252(b) procedure governs a narrow range of cases only. It is entirely inapplicable to persons other than alien crewmen. It does not apply to an alien crewman who enters the United States illegally without obtaining any landing permit at all, or who enters on a 'D—2' permit allowing him to depart on a different vessel. See n. 4, supra. The Service has held § 252(b) to be inapplicable even to a crewman issued a D—1 permit unless formal revocation—as distinguished from actual deportation—takes place before his vessel leaves American shores.11 Matter of M—-, 5 I. & N.Dec. 127 (1953); 8 CFR § 252.2; see Cheng Fan Kwok v. U.S. Immigration and Naturalization Service, 392 U.S. 206, 207, 88 S.Ct. 1970, 1971, 20 L.Ed.2d 1037 (1968).
33
Section 252(b) most plainly governs the situation in which a D—1 landing permit is revoked and the alien crewman is immediately returned to the vessel on which he arrived, which, by hypothesis, is still in a United States port. At the time of revocation, the crewman usually has not traveled far from the port,12 so the burden of transporting him back to the vessel is small; there is a readily identifiable vessel and place to return him to; and during his brief shore leave, which cannot exceed 29 days, the crewman is unlikely to have established significant personal or business relationships in the United States. In short, the crewman's deportation may be expedited, with minimum hardship and inconvenience to him, to the transportation company responsible for him,13 and to the Service.
34
That this is not the only situation to which the § 252(b) procedure applies, however, is evident from the language of § 252(b) itself and the related provisions of § 254.14 Section 252(b) requires that where an alien crewman's landing permit is revoked his transportation company must detain him aboard the vessel on which he arrived, an deport him. Section 254(a) imposes a fine on the company and ship's master, inter alia, for failure to detain or deport the crewman 'if required to do so by an immigration officer.' However, § 252(b)'s requirement is modified by the term, 'if practicable'; and § 254(c) correlatively provides:
35
'If the Attorney General finds that deportation of an alien crewman * * * on the vessel or aircraft on which he arrived is impracticable or impossible, or would cause undue hardship to such alien crewman, he may cause the alien crewman to be deported from the port of arrival or any other port on another vessel or aircraft of the same transportation line, unless the Attorney General finds this to be impracticable.'
36
These provisions contemplate that an alien crewman whose temporary landing permit is revoked pursuant to § 252(b) may be deported on a vessel other than the one on which he arrived. The other vessel should preferably be one owned by the transportation company which which brought him to the United States,15 but if this is not feasible, the Attorney General may order him deported by other means, at the company's expense.
37
The Court of Appeals recognized that an alien crewman might properly be deported on a vessel other than the one which brought him. It noted, however, that § 254(c) holds the owner of that vessel responsible for all of the expenses of his deportation and further provides that the vessel shall not be granted departure clearance until those expenses are paid or their payment is guaranteed.16 From this it concluded that 'the section contemplates that the alternative arrangement shall be made while the vessel upon which the crewman arrived is still in port * * *.' 393 F.2d, at 546. Since arrangements for respondent's deportation had not been made before the M/V Sumadija departed, the § 254(c), and hence the § 252(b), procedures were no longer applicable: with the ship's departure, respondent became entitled to a hearing pursuant to § 242(b).
38
We agree that the 'clearance' provision of § 254(c) contemplates that the crewman's departure on another vessel may sometimes be accomplished or arranged before the vessel that brought him departs. If, however, the crewman's vessel sails before its owner has paid or guaranteed the expenses of deportation, the owner's liability under § 254(c) is in no way diminished. The Government has merely lost a useful means of compelling payment of costs which may still be collected by other methods.17 Indeed, as the Court of Appeals itself noted, § 254(c)'s financial responsibility provision is not limited to instances of deportation pursuant to § 252(b), but applies to the deportation of alien crewmen in a variety of situations, including those in which a § 242(b) proceeding has been held, and thus those in which the crewman's vessel may long since have departed.18
39
Strong policies support the conclusion that a properly commenced § 252(b) proceeding does not automatically abort upon the departure of the crewman's vessel. If the crewman whose landing permit has been revoked pursuant to § 252(b) attacks the district director's action in a federal court, the court would usually stay his deportation pending at least a preliminary hearing. Even courts with dockets less crowded than those of most of our major port cities19 may not be able to hear the matter for several days or more, during which time the vessel may often have departed according to schedule. It requires little legal talent, moreover, to manufacture a colorable case for a temporary stay out of whole cloth, and to delay proceedings once in the federal courts. The Ninth Circuit's construction would, thus, encourage frivolous applications and intentional delays designed to assure that the crewman's vessel departed before the case was heard. Alternatively, it would so dispose federal judges not to grant stays that persons presenting meritorious applications might be deported without the opportunity to be heard.
40
We agree with the court below that § 252(b) is a provision of limited applicability. But we conclude that the court's construction would restrict its scope to a degree neither intended by Congress nor supported by the language of the Act, and that it would, as a practical matter, render § 252(b) useless for the very function it was designed to perform.
41
We hold that an alien crewman whose temporary landing permit is properly revoked pursuant to § 252(b) does not become entitled to a hearing before a special inquiry officer under § 242(b) merely because his deportation is not finally arranged or effected when his vessel leaves, and that under these circumstances the Attorney General may provide—as he did in 8 CFR § 253.1(e), now 8 CFR § 253.1(f) that the crewman's request for political asylum be heard by a district director of the Immigration and Naturalization Service.
IV.
42
At the time of respondent's January 1965 hearing before the District Director, § 243(h) of the Immigration and Nationality Act provided:
43
'The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution * * *.'20 (Emphasis added.)
44
By the Act of October 3, 1965, § 11(f), 79 Stat. 918, this section was amended by substituting for 'physical persecution' the phrase 'persecution on account of race, religion, or political opinion.' Although 8 CFR § 253.1(e), the regulation under which respondent's 1965 hearing was conducted, did not itself contain any restriction to 'physical persecution,' it is apparent from the District Director's findings that he read such a limitation into the regulation.21
45
We believe, therefore, that it is appropriate that respondent be given a new hearing before the District Director under the appropriate standard, and we remand the case for that purpose.22
46
The judgment of the United States Court of Appeals for the Ninth Circuit is reversed and the case is remanded to that court for further proceedings consistent with this opinion.
47
It is so ordered.
48
Judgment of Court of Appeals reversed and case remanded.
49
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
50
Two procedures for the deportation of aliens are relevant in this case. The first is set forth in § 242(b) of the Immigration and Nationality Act, 66 Stat. 209, 8 U.S.C. § 1252(b), and is the procedure required in most instances when the Government seeks to deport an alien. Under § 242(b) a number of procedural safeguards are specified to insure that an alien is given the full benefit of a complete and fair hearing before the harsh consequence of deportation can be imposed on him.1 The second procedure involved in this case is set forth in § 252(b). It is applicable only under very special circumstances involving alien seamen who enter this country under conditional landing permits. Section 252(b) provides for a short, summary procedure.2 Unlike § 242(b), the first provision mentioned, this second provision does not require that the hearing officer be someone unconnected with the investigation and prosecution of the case. It does not require specific trial safeguards such as the rights to notice, counsel, and crossexamination of witnesses. Indeed, § 252(b) apparently does not require that the alien be given any hearing at all but would seem to authorize an immigration officer to order immediate arrest and summary deportation on the basis of any information coming to him in any way at any time. The question before the Court is therefore not the apparently insignificant question suggested by the Court's opinion—namely, whether this alien's case was properly determined by an official with one title, 'District Director,' rather than another title, 'special inquiry officer.' Instead, the question is the crucially significant one whether an alien seaman about to be forced to leave the country is entitled under the circumstances of this case to the benefit of safeguards that were carefully provided by Congress to insure greater fairness and reliability in deportation proceedings.
51
The regulations relied on by the Court in Part II of its opinion do not provide an independent basis for its holding. Among the relevant regulations, 8 CFR § 242.8(a) applies '(i)n any proceeding conducted under this part,' namely 'Part 242 Proceedings to Determine Deportability of Aliens in the United States: Apprehension, Custody, Hearing, and Appeal.' The regulation is thus designed to spell out further the details of proceedings required to be conducted under § 242 of the statute, and this regulation explicitly authorizes the special inquiry officer 'to order temporary withholding of deportation pursuant to section 243(h) of the Act (the political persecution provision).' In contrast, the regulations relied upon by the Court as authorizing a District Director to decide this issue, in particular former 8 CFR § 253.1(e), apply by their own terms only to the procedure for 'parole' of an alien under § 212(d) (5), a remedy distinct from the withholding of deportation under § 243(h), and by the Government's own admission these regulations are applicable only to 'requests for asylum made by crewmen against whom proceedings under Section 252(b) have been instituted.' Brief for Petitioner 37. Thus, the regulations serve only to spell out the procedures to be followed under both § 242(b) and § 252(b) and do not even purport to specify when one of the sections rather than the other is in fact applicable. The fact that the Immigration and Naturalization Service has applied the regulations differently does not change this meaning. As the Court concedes, the regulation is 'not free from ambiguity,' ante, at 72, and of course the ambiguity in the regulation is precisely the same as the ambiguity in the statutory provision from which the wording of the regulation was drawn. It seems clear that the way in which the Service has applied the regulation has been determined by its interpretation of the statute, an interpretation that is in no way binding on us. Both the statute and the regulation are ambiguous, and there is no doubt in my mind that this ambiguity should be resolved in favor of the alien who is seeking a full and fair hearing. With all due respect, I think the Court's involved argument based upon the regulations, which goes beyond anything suggested by the Government itself in this case, provides no basis whatsoever for avoiding the fundamental question of statutory interpretation as to which of the two procedures, § 242(b) or § 252(b), was required to be followed in this case.
52
The Government contends that respondent, the alien seaman involved here, could be properly deported under the special summary procedures of § 252(b) because his conditional landing permit was revoked and because § 252(b) authorizes summary deportation after this permit is revoked. Respondent, however, argued in the Court of Appeals that he should have been given the benefit of the careful hearing procedures spelled out by Congress in § 242(b) because the ship on which he came had departed before the decision of theD istrict Director was made, and therefore the only justification for the fast but ordinarily less desirable procedure of § 252(b) no longer existed. The Court of Appeals held that § 252(b) proceedings were authorized only prior to the departure of the ship. I agree with the Court of Appeals. As that court noted in its opinion:
53
'The section (252(b)) exception (to the general procedure requirements of § 242(b)) is very narrowly drawn. It does not apply to the deportation of crewmen who have 'jumped ship' and entered the United States illegally, with no permit at all. As noted above, it does not apply to crewmen issued landing permits authorizing them to depart on vessels other than those on which they arrived. It does not apply to crewmen who have overstayed the twenty-nine day leave period without revocation of their landing permits. It does not apply to crewmen who were to leave on the vessel on which they arrived if their vessels have departed before their landing permits are revoked. In all of these situations crewmen may be deported only in accordance with (§ 242(b)) procedures.' 393 F.2d 539 544.
54
As the legislative history of the Act, quoted in the opinion of the Court of Appeals, shows, the special truncated procedure of § 252(b) was intended to be used only when the need for speed was truly pressing—when the ship was about to leave port. But the seaman in this case was subjected to this truncated, summary procedure even though his ship had already gone and the need for haste in completing these important legal proceedings no longer existed. There is no reason to suspect that Congress wanted a seaman to be deprived under these circumstances of the vital procedural safeguards so carefully specified in § 242(b) of the Act.
55
I would affirm the judgment of the Court of Appeals.
1
A special inquiry officer is 'any immigration officer who the Attorney General deems specially qualified to conduct specified classes of proceedings * * *.' Immigration and Nationality Act, § 101(b)(4), 66 Stat. 171, 8 U.S.C. § 1101(b)(4). The special inquiry officer has no enforcement duties. He performs 'no functions other than the hearing and decision of issues in exclusion and deportation cases, and occasionally in other adjudicative proceedings.' 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.7b, at 5—49 (1967); see generally id., § 5.7.
2
66 Stat. 209, 8 U.S.C. § 1252(b):
'A special inquiry officer shall conduct proceedings under this section to determine the deportability of any alien, and shall administer oaths, present and receive evidence, interrogate, examine, and cross-examine the alien or witnesses, and, as authorized by the Attorney General, shall make determinations, including orders of deportation. * * * No special inquiry officer shall conduct a proceeding in any case under this section in which he shall have participated in investigative functions or in which he shall have participated (except as provided in this subsection) in prosecuting functions. Proceedings before a special inquiry officer acting under the provisions of this section shall be in accordance with such regulations, not inconsistent with this Act, as the Attorney General shall prescribe. Such regulations shall include requirements that—
'(1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held;
'(2) the alien shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose;
'(3) the alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine wite sses presented by the Government; and
'(4) no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence. 'The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under this section.'
3
A district director is the officer in charge of a district office of the Immigration and Naturalization Service. He performs a wide range of functions. See 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 1.9c (1967); 8 CFR § 103.1(f).
4
Section 252(a), 66 Stat. 220, 8 U.S.C. § 1282(a) provides:
'No alien crewman shall be permitted to land temporarily in the United States except as provided in this section * * *. If an immigration officer finds upon examination that an alien crewman is a nonimmigrant * * * and is otherwise admissible and has agreed to accept such permit, he may, in his discretion, grant the crewman a conditional permit to land temporarily pursuant to regulations prescribed by the Attorney General, subject to revocation in subsequent proceedings as provided in subsection (b), and 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 or aircraft on which he arrived remains in port, if the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft on which he arrived; or
'(2) twenty-nine days, if the immigration officer is satisfied that the crewman intends to depart, within the period for which he is permitted to land, on a vessel or aircraft other than the one on which he arrived.'
'D—1' and 'D—2' landing permits are permits issued pursuant to 8 CFR §§ 252.1(d)(1) and 252.1(d)(2), which implement §§ 252(a)(1) and 252(a)(2) of the Act.
5
26 Fed.Reg. 11797 (December 8, 1961). Effective March 22, 1967, the section was amended and redesignated § 253.1(f), 32 Fed.Reg. 4341—4342.
6
Because the District Director's determination was not pursuant to § 242(b), the District Court had jurisdiction to review his action. See Cheng Fan Kwok v. U.S. Immigration and Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968); Stanisic v. U.S. Immigration and Naturalization Service, 393 F.2d 539, 542 (1968); Vucinic (and Stanisic) v. U.S. Immigration and Naturalization Service, 243 F.Supp. 113, 115-117 (1965); 5 U.S.C. § 1009.
7
Actually, the ship sailed from the United States on or about January 16, 1965, or between the date on which the District Director revoked respondent's landing permit (January 6, 1965), and the date on which, after a hearing, he denied respondent's persecution claim (January 25, 1965). This fact was not in the record before the Court of Appeals.
8
This was not always so. Until 1962, the final determination was made by a regional commissioner of the Service. 8 CFR § 243.3(b)(2) (1958 rev.); see Foti v. U.S. Immigration and Naturalization Service, 375 U.S. 217, 230, n. 16, 84 S.Ct. 306, 314, 11 L.Ed.2d 281 (1963).
9
The only substantial difference is that the regulation, but not the statute, is limited to Commn ist-inspired persecution.
10
For this reason, we have no occasion to decide whether or not respondent was 'within the United States.' Compare United States ex rel. Szlajmer v. Esperdy, 188 F.Supp. 491 (1960), with United States ex rel. Kordic v. Esperdy, 386 F.2d 232 (1967), and Glavic v. Beechie, 225 F.Supp. 24 (D.C.1963), aff'd, 340 F.2d 91 (5 Cir. 1964). It may further be noted that § 243(h), by its terms, 'authorizes' but does not require the consideration of persecution claims.
11
This is responsive to the language of § 252(b). Permission to land terminates upon the vessel's departure, and thereafter there is nothing to 'revoke.'
12
8 CFR § 252.2(d) provides that a 'crewman granted a conditional permit to land under section 252(a)(1) of the Act * * * is required to depart with his vessel from its port of arrival and from each other port in the United States to which it thereafter proceeds coastwise without touching at a foreign port or place; however, he may rejoin his vessel at another port in the United States before it touches at a foreign port or place if he has advance written permission from the master or agent to do so.' In the latter case the crewman may journey some distance from the port at which he arrived.
13
See infra, this page and at 76.
14
66 Stat. 221, 8 U.S.C. § 1284.
15
This is doubtless an accommodation made in the light of the transportation company's liability for the expenses of deportation.
16
'All expenses incurred in connection with such deportation, including expenses incurred in transferring an alien crewman from one place in the United States to another under such conditions and safeguards as the Attorney General shall impose, shall be paid by the owner or owners of the vessel or aircraft on which the alien arrived in the United States. The vessel or aircraft on which the alien arrived shall not be granted clearance until such expenses have been paid or their payment guaranteed to the satisfaction of the Attorney General. * * *' § 254(c).
17
Thus, if and when respondent is deported, the owners of the M/V Sumadija will be responsible for the related expenses incurred by the United States.
18
And, although we do not decide this question, § 254(c) would appear to allow the Attorney General to require security for the payment of anticipated expenses of deporting an alien crewman, even though no final arrangements have been made before the vessel that brought i m departs.
19
See generally 1968 Director of the Administrative Office of the United States Courts Ann.Rep., Tables C, D, and X (1968).
20
66 Stat. 214.
21
See supra, at 68; Appendix 18—22 passim.
22
Respondent contends that his 1965 proceeding was infected with various constitutional errors, including the District Director's alleged bias and his combination of prosecutorial, investigative, and adjudicatory functions. Because that proceeding is not before us, and because we remand for a new hearing, we have no occasion to consider these arguments, except to note that neither § 252(b) of the Immigration and Nationality Act nor 8 CFR § 253.1(f), under which respondent will be heard on remand, is unconstitutional on its face. Likewise, it is premature to consider whether, and under what circumstances, an order of deportation might contravene the Protocol and Convention Relating to the Status of Refugees, to which the United States acceded on November 1, 1968. See Dept State Bull., Vol. LIX, No. 1535, p. 538.
1
Section 242(b) provides as follows:
'A special inquiry officer shall conduct proceedings under this section to determine the deportability of any alien, and shall administer oaths, present and receive evidence, interrogate, examine, and cross-examine the alien or witnesses, and, as authorized by the Attorney General, shall make determinations, including orders of deportation. * * * No special inquiry officer shall conduct a proceeding in any case under this section in which he shall have participated in investigative functions or in which he shall have participated (except as provided in this subsection) in prosecuting functions. Proceedings before a special inquiry officer acting under the provisions of this section shall be in accordance with such regulations, not inconsistent with this Act, as the Attorney General shall prescribe. Such regulations shall include requirements that—
'(1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held;
'(2) the alien shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose;
'(3) the alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government; and
'(4) no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence. 'The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under thi section.'
2
Section 252(b) provides as follows:
'Pursuant to regulations prescribed by the Attorney General, any immigration officer may, in his discretion, if he determines that an alien is not a bona fide crewman, or does not intend to depart on the vessel or aircraft which brought him, revoke the conditional permit to land which was granted such crewman under the provisions of subsection (a)(1), take such crewman into custody, and require the master or commanding officer of the vessel or aircraft on which the crewman arrived to receive and detain him on board such vessel or aircraft, if practicable, and such crewman shall be deported from the United States at the expense of the transportation line which brought him to the United States. Until such alien is so deported, any expenses of his detention shall be borne by such transportation company. Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to cases falling within the provisions of this subsection.'
| 12
|
395 U.S. 169
89 S.Ct. 1648
23 L.Ed.2d 182
John L. SULLIVAN, Tax Commissioner of the State of Connecticut, et al., Appellants,v.UNITED STATES et al.
No. 610.
Argued April 2, 1969.
Decided May 26, 1969.
F. Michael Ahern for appellants.
Harris Weinstein, Washington, D.C., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
The issue raised by this appeal is whether § 514 of the Soldiers' and Sailors' Civil Relief Act1 prohibits Connecticut from imposing its sales and use taxes on servicemen stationed there who are residents or domiciliaries of other States. The United States instituted this action in federal court against the appropriate Connecticut officials on behalf of the aggrieved servicemen.2 The District Court entered a declaratory judgment that the federal statute prevents collection of the sales and use taxes from such servicemen,3 and the Court of Appeals affirmed.4 We noted probable jurisdiction of this appeal.5
2
The sales and use taxes imposed by the Connecticut Education, Welfare and Public Health Tax Act6 are typical of those enacted by the vast majority of States.7 A tax of 3 1/2% is levied on the gross receipts from sales of tangible personal property at retail within the State.8 Although the retailer is liable for payment of the tax, he is required to pass it on to purchasers by adding it to the original sales price of all items sold.9 The use tax is imposed at the same rate on 'the storage, use or other consumt ion' in the State of tangible personal property purchased from any retailer.10 The use tax provisions designed to reach the use or consumption in the State of property purchased outside it11—exempt all transactions which are subject to the sales tax.12 And while the consumer is liable directly to the State for the use tax, he can discharge his liability by paying it to the retailer if the retailer is 'engaged in business' within the State and therefore required to collect the use tax.13 The use tax is also imposed upon purchasers of motor vehicles, boats, or airplanes from non-retailers.14 The amount of any tax under the Act is reduced by whatever sales or use tax has already been collected 'by any other state or political subdivision thereof.'15 Finally, the Act commands that all proceeds of the sales and use taxes 'shall be allocated to and expended for public health, welfare and education purposes only.'16
3
By stipulation and affidavits in the District Court, the parties offered some examples of the imposition of these taxes on naval personnel stationed in Connecticut but domiciled elsewhere. Lieutenant Schuman, a Nebraska domiciliary, and Commander Carroll, a Michigan domiciliary, bought used motorboats from nonretailers in Connecticut and were assessed a use tax. Schuman paid the tax under protest, and Carroll has refused to pay, each claiming that he is exempt under the Soldiers' and Sailors' Civil Relief Act.17 Lieutenant Commander Shaffer and Commander Foster, who are domiciled in Pennsylvania and Texas respectively, each purchased a new car; the Connecticut retailer collected and paid the sales tax. Foster registered his car in Texas, which also exacted a sales or use tax.18 Finally, Commander Roloff, whose home State is Wisconsin, purchased a used car in Florida and paid that State a 2% sales tax. When he registered the car in Connecticut, he was assessed and paid the use tax, with credit for the Florida sales tax.
4
As enacted in 1942,19 § 514 of the Soldiers' and Sailors' Civil Relief Act provided that for purposes of any state 'taxation in respect of any person, or of his (personal)20 property, income, or gross income,' he shall not be deemed to have lost his residence or domicile in his home State or acquired a residence in any other State 'solely by reason of being absent (from home) in compliance with military or naval orders.' Clarifying language was added in 1944 to provide that for purposes of taxation in respect of personal property, the 'personal property shall not be deemed to be located or present in or to have a situs for taxation in such State.' Also in 1944 Congress enacted a special subsection for automobiles: servicemen are exempt from 'licenses, fees, or excises imposed in respect of motor vehicles or the use thereof' if they have paid such levies in their home States. Finally, in 1962,21 Congress added the provision that § 514 applies to property in any tax jurisdiction other than the serviceman's home State, 'regardless of where the owner may be serving' in compliance with military orders.22
5
We think it clear from the face of § 514 that state taxation of sales to servicemen is not proscribed. A tax on the privilege of selling or buying property has long been recognized as distinct from a tax on the property itself.23 And while § 514 refers to taxes 'in respect of' rather than 'on' personal property, we think it an overly strained construction to say that taxation of the sales transaction is the same as taxation 'in respect of' the personal property transferred. Nor does it matter to the imposition of the sales tax that the property 'shall not be deemed to be located or present in or to have a situs for taxation' in Connecticut. The incidence of the sales tax is not the property itself or its presence within the State. Rather it is the transfer of title for consideration,24 a legal act which can be accomplished without the property ever entering the State.25 Had Congress intended to include sales taxes within the coverage of § 514, it surely would not have employed language so poorly suited to that purpose as 'taxation in respect of the personal property.'
6
It is contended on behalf of the servicemen that, even if § 514 does not encompass sales taxes, at least it prohibits taxation of the use of personal property. Not only are use taxes said to fall literally within the meaning of the phrase 'taxation in respect of the personal property,' but § 514 specifically refers in two places to property 'or the use thereof.' Moreover, it is argued, the sole jurisdictional basis of the use tax is the location of the personal property in Connecticut; yet imposition of a tax with such incidence on a serviceman contravenes the command of § 514 that his personal property 'shall not be deemed to be located or present in or to have a situs for taxation in such State.' While we agree that use taxes are not so clearly excluded by the language of § 514 as are sales taxes, neither do we believe that they are clearly included. And consideration of the purpose and legislative history of § 514 along with its language and other factors has led us to the conclusion that Congress did not intend to free servicemen stationed away from home from the sales or use taxes of the host State.
7
The legislative history of the 1942 enactment and the 1944 and 1962 amendments of § 514 reveals that Congress intended the Act to cover only annually recurring taxes on property—the familiar ad valorem personal property tax. Thus, the reports advert to the possibility that servicemen ordered to move around the country—as they were increasingly during World War II—might have their property taxed by more than one State 'within the same calendar year.'26 And the reports throughout refer explicitly to 'personal-property taxes on property.'27 The language of these reports is simply irreconcilable with the proposition that Congress thought the Act would apply to a tax which, like the sales or use tax, does not apply annually to all personal property within the State but is imposed only once and then only when there has been a retail sales transaction.28
8
The absence of any reference to sales and use taxes in the history of § 514 is particularly illuminative of legislative intent when considered in the light of Congress' full awareness of such state taxes and their relationship to federal interests. Sales and use taxes were prevalent by 1942,29 and Congress had dealt specifically with them only two years earlier. In the 1940 Buck Act,30 Congress provided that the States have 'full jurisdiction and power to levy and collect' sales and use taxes in 'any Federal area,'31 except with respect to the sale or use of property sold by the United States or its instrumentalities through commissaries, ship's stores, and the like.32 If nothing else, this statute illustrates that Congress in 1942 was fully cognizant of state sales and use taxes and identified them by name when it wanted to deal with them. Moreover, it is unlikely that Congress, which had in 1940 expressly authorized sales and use taxation of servicemen everywhere on federal military reservations except post exchanges, would two years later have exempted so many of them from such taxes by means of such imprecise language as that of § 514 of the Soldiers' and Sailors' Civil Relief Act. And since servicemen can apparently purchase all the necessities and many of the luxuries of life tax-free at military commissaries,33 Congress may reasonably have considered the occasional sales and use taxes that servicemen might have to pay an insignificant burden, as compared with annual ad valorem property taxes, and consequently not deserving of the same exemption.34
9
Section 514 does not relieve servicemen stationed away from home from all taxes of the host State. It was enacted with the much narrower design 'to prevent multiple State taxation of the property.'35 And the substantial risk of double taxation under multi-state ad valorem property taxes does not exist with respect to sales and use taxes. Like Connecticut, nearly every State which levies such taxes provides a credit for sales or use taxes paid on the transaction to another State.36 Of course it is true, as we held in Dameron v. Brodhead, 345 U.S. 322, 73 S.Ct. 721, 97 L.Ed. 1041, that § 514 prevents imposition of ad valorem property taxes even though the serviceman's home State does not tax the property. But the predominant legislative purpose nonetheless remains highly relevant in determining the scope of the exemption, and the absence of any significant risk of double taxation under state sales and use taxes generally is therefore strong evidence of congressional intent not to include them in § 514.
10
The language of § 514 does not undec ut our conclusion that Congress did not proprose to exempt servicemen from sales and use taxes. The appellees, like the courts below, make much of the reference at two places in the section to property 'or the use thereof.' This phrase first appeared in the 1944 addition of subsection (2)(b):
11
'When used in this section, * * * (b) the term 'taxation' shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof: Provided, That the license, fee, or excise required by the State * * * of which the person is a resident or in which he is domiciled has been paid.'
12
The second reference to 'use' did not appear until the addition to subsection (1) of the following sentence in 1962:
13
'Where the owner of personal property is absent from his residence or domicile solely by reason of compliance with military or naval orders, this section applies with respect to personal property, or the use thereof, within any tax jurisdiction other than such place of residence or domicile, regardless of where the owner may be serving in compliance with such orders * * *.'
14
We think that, in light of the clear indications of congressional intent discussed above, the most sensible inference to be drawn from this language is that the only taxes on the use of property from which servicemen are exempted are the special registration taxes imposed annually by all States on the use of motor vehicles. Indeed, this interpretation is supported by the structure of § 514 itself. There is no reference to 'use' of property in those portions of subsection (1) which set out the basic exemption and in which Congress would naturally have been expected to mention use taxes had it meant to include them. Moreover, subsection (2)(b) does not say that for purposes of § 514 'taxation' includes 'licenses, fees, or excises' on the use of all personal property except those in respect to motor vehicles for which such fees have not been paid at home. Rather it says that 'taxation' includes such levies only on motor vehicles when they have been paid at home. Thus, as we held in California v. Buzard, 382 U.S. 386, 86 S.Ct. 478, 15 L.Ed.2d 436, subsection (2)(b) does not encompass ordinary revenue-raising excise or use taxes, but is limited to 'those taxes which are essential to the functioning of the host State's licensing and registration laws in their application to the motor vehicles of nonresident servicemen.' Id., at 395, 86 S.Ct., at 484. The Court held in Buzard that § 514 exempted servicemen from the California tax on automobiles, not because it was an excise tax on use covered by subsection (2) (b), but rather because it was not such a tax.37 The so-called 'license fee' there in question was an annual tax in the amount of 2% of the assessed market value of the car—a levy which was indistinguishable from the annually recurring ad valorem taxes that § 514 was designed to cover.38
15
It is thus evident that in subsection (2)(b) Congress was dealing solely with a unique form of state 'tax'—the motor vehicle registration fee. Because such fees are not always clearly classifiable as property taxes,39 servicemen would not be exempted from many of them by subsection (1) of § 514. Since annually recurring license fees raise much the same risk of double taxai on to transitory military personnel as do property taxes, Congress evidently decided in 1944 to extend the exemption of § 514 to include motor vehicle registration fees as well as property taxes. From 1944 to 1962 the only reference in § 514 to 'use' of property was found in subsection (2)(b). And, in view of the narrow purpose of that subsection and the absence for 20 years of any other reference to 'use' in § 514, we cannot believe the repetition of that word in the 1962 amendment—described by Congress as a mere clarification of the existing law40—can be deemed to have added all use taxes to the coverage of the statute. The 1962 amendment merely reflected the prior reference to the 'use' of motor vehicles in subsection (2)(b).
16
Finally, we find unpersuasive the appellees' contention that, since the Connecticut use tax can be applied only with respect to personal property used within the State, its imposition on servicemen away from home cannot be squared with the declaration of § 514 that 'personal property shall not be deemed to be located or present in or to have a situs for taxation in such State.' That clause is modified by the opening words of the sentence—'(f)or the purposes of taxation in respect of the personal property.' Section 514, therefore, does not in terms relieve servicemen from every state tax which is somehow dependent on the presence of personal property within the State. Rather, it provides only that a State cannot justify imposing the taxes to which § 514 was initially intended to apply—annually recurring ad valorem property taxes—on the ground of the property's presence within the State.
17
This construction is confirmed by the explanation which Congress itself gave for the addition in 1944 of the language on which the appellees rely:
18
'The purpose of the proposed legislation is to clarify the intent of section 514 of the Soldiers' and Sailors' Civil Relief Act * * *. When that provision of law was added to the act to relieve persons in service from liability of double taxation by being moved from one State to another under orders, it was intended that it should apply to personal-property taxes as well as to income taxes. As presently constituted, it primarily affects taxes in respect to income and other taxes based on residence or domicile, but it does not prevent the State of 'temporary residence' from taxing tangible personal property actually located in such State so long as the tax does not depend on residence or domicile. A few States have taken the position that tangible personal property of military personnel who are only temporarily within their jurisdiction does not acquire a situs for taxation, but it has been held that section 514 of the act as now written does not affect the right of a State to assess personal-property taxes on property within its jurisdiction.'41
19
The 1944 amendment, therefore, had only the limited purpose 'to clarify' Congress' original intent to cover 'personal-property taxes on property,' not to expand the exemption in a manne which would include sales or use taxes.
20
For these reasons we hold that § 514 of the Soldiers' and Sailors' Civil Relief Act does not exempt servicemen from the sales and use taxes imposed by Connecticut. Accordingly, the judgment is
21
Reversed.
1
As added by § 17 of the Soldiers' and Sailors' Civil Relief Act Amendments of 1942, 56 Stat. 777, and as amended, 58 Stat. 722, 76 Stat. 768, 50 U.S.C.App. § 574.
2
Although the issue was raised in the District Court, the appellants no longer dispute the right of the United States to bring this action on behalf of the servicemen in federal court. See Department of Employment v. United States, 385 U.S. 355, 358, 87 S.Ct. 464, 466, 17 L.Ed.2d 414; United States v. Arlington County, 4 Cir., 326 F.2d 929.
In this Court the United States had presented arguments prepared by officers of the Department of Justice in support of the judgment below. The Solicitor General and the Assistant Attorney General in charge of the Tax Division of the Department of Justice have informed the Court, however, that they have not been persuaded by those arguments, and that they do not believe that § 514 was intended to apply to the ordinary retail sales tax and concomitant use tax now imposed by most of the States. For other examples of such divergence of opinion among representatives of the United States before this Court, see De Laval Steam Turbine Co. v. United States, 284 U.S. 61, 67—68, 52 S.Ct. 78, 76 L.Ed. 168; Kornhauser v. United States, 276 U.S. 145, 147—151, 48 S.Ct. 219, 220, 72 L.Ed. 505.
3
270 F.Supp. 236. The District Court later amended its judgment to permit Connecticut to continue to collect sales and use taxes from nonresident servicemen, provided that the amounts collected would be refunded if the judgment was ultimately sustained.
4
398 F.2d 672.
5
393 U.S. 1012, 89 S.Ct. 617, 21 L.Ed.2d 558.
6
Conn.Gen.Stat.Rev. §§ 12—406 to 12—432a.
7
See J. Hellerstein, State and Local Taxation Cases and Materials 15 (3d ed. 1969). 35 States have filed briefs in this case in support of the position of Connecticut.
8
§ 12—408(1). This section also imposes the sales tax on 'the privilege of * * * transferring occupancy of any room or rooms in a hotel or lodging house.'
9
§ 12—408(2).
10
§ 12—411(1).
11
See, e.g., Stetson v. Sullivan, 152 Conn. 649, 652—653, 211 A.2d 685, 686; Avco Mfg. Corp. v. Connelly, 145 Conn. 161, 170 171, 140 A.2d 479, 484; Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 299—300, 57 A.2d 128, 130—131, 1 A.L.R.2d 453.
12
§ 12—413(1).
13
§§ 12—411(2), (3).
14
§ 12—431.
15
§ 12—430(5).
16
§ 12—432.
17
Lieutenant Schuman joined the United States as a party plaintiff in the District Court, seeking to represent the class of all servicemen or former servicemen from whom Connecticut had collected or threatened to collect any sales or use tax. The complaint was dismissed as to him for lack of jurisdiction, on the grounds that the requisite jurisdictional amount was not alleged to be in controversy and that the Eleventh Amendment forbids a suit by a private individual against a State in the federal courts. 270 F.Supp. 236, 246—247.
18
Foster's situation is not entirely clear. His affidavit states that officials of the Connecticut Department of Motor Vehicles informed him that he was required to pay a use tax but the tax actually paid was identified on the dealer's invoice as a sales tax. The latter seems to be correct, since the purchase was from a Connecticut retailer. Taxas officials told Foster he would have to pay a sales tax in order to register the car in that State. The Texas tax collector's receipt does not identify whether the payment was a sales or use tax, however, and under the Texas statutes it appears more likely that it was the latter. Tex.Rev.Civ.Stat., Art. 6.01, provides that the motor vehicle sales tax apl ies only to sales in the State, while the use tax, in the same amount, applies to out-of-state sales of motor vehicles for use in Texas.
19
56 Stat. 777.
20
The word 'personal' was interpolated by the 1944 amendment. 58 Stat. 722.
21
76 Stat. 768.
22
Section 514, as set forth in 50 U.S.C.App. § 574, now reads in its entirety as follows:
'(1) For the purposes of taxation in respect of any person, or of his personal property, income, or gross income, by any State, Territory, possession, or political subdivision of any of the foregoing, or by the District of Columbia, such person shall not be deemed to have lost a residence or domicile in any State, Territory, possession, or political subdivision of any of the foregoing, or in the District of Columbia, solely by reason of being absent therefrom in compliance with military or naval orders, or to have acquired a residence or domicile in, or to have become resident in or a resident of, any other State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, while, and solely by reason of being, so absent. For the purposes of taxation in respect of the personal property, income, or gross income of any such person by any State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, of which such person is not a resident or in which he is not domiciled, compensation for military or naval service shall not be deemed income for services performed within, or from sources within, such State, Territory, possession, political subdivision, or District, and personal property shall not be deemed to be located or present in or to have a situs for taxation in such State, Territory, possession, or political subdivision, or district. Where the owner of personal property is absent from his residence or domicile solely by reason of compliance with military or naval orders, this section applies with respect to personal property, or the use thereof, within any tax jurisdiction other than such place of residence or domicile, regardless of where the owner may be serving in compliance with such orders: Provided, That nothing contained in this section shall prevent taxation by any State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia in respect of personal property used in or arising from a trade or business, if it otherwise has jurisdiction. This section shall be effective as of September 8, 1939, except that it shall not require the crediting or refunding of any tax paid prior to October 6, 1942.
'(2) When used in this section, (a) the term 'personal property' shall include tangible and intangible property (including motor vehicles), and (b) the term 'taxation' shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof: Provided, Thatt he license, fee, or excise required by the State, Territory, possession, or District of Columbia of which the person is a resident or in which he is domiciled has been paid.'
23
See, e.g., N. Jacoby, Retail Sales Taxation 3—4 (1938). And see n. 28, infra.
24
The Connecticut statute defines a 'sale' generally as '(a)ny transfer of title * * * for a consideration.' § 12 407(2)(a). And see Avco Mfg. Corp. v. Connelly, 145 Conn. 161, 172, 140 A.2d 479, 484—485. The term also includes a transaction in which the right of possession is transferred but the seller retains title as security. § 12—407(2)(f).
25
See Conn.Gen.Stat.Rev. § 42a—2—401(3).
26
S.Rep.No. 1558, 77th Cong., 2d Sess., 11 (1942); H.R.Rep.No. 2198, 77th Cong., 2d Sess., 6 (1942).
27
S.Rep.No. 959, 78th Cong., 2d Sess., 1 (1944). See also the reference to 'personal property taxes in H.R.Rep.No. 1514, 78th Cong., 2d Sess., 2 (1944). The reports on the 1942 Act talked about 'taxation of the property' and the possibility that 'the personal property * * * may become liable for taxes in several States.' S.Rep.No. 1558, supra, n. 26, at 11; H.R.Rep.No. 2198, supra, n. 26, at 6. At the time of the 1962 Amendment, the reports continued to describe the taxes covered by § 514 as those 'imposed upon property of a serviceman.' S.Rep.No. 2182, 87th Cong., 2d Sess., 1 (1962); H.R.Rep.No. 2126, 87th Cong., 2d Sess., 1 (1962), U.S.Code Cong. & Admin.News 1962, p. 2841.
28
It has frequently been said that a use tax, like a sales tax, is an excise or privilege tax different in kind from a tax on property. E.g., Monamotor Oil Co. v. Johnson, 292 U.S. 86, 93, 54 S.Ct. 575, 578, 78 L.Ed. 1141; Bowman v. Continental Oil Co., 256 U.S. 642, 649, 41 S.Ct. 606, 608, 65 L.Ed. 1139. As the Connecticut Supreme Court has described the very tax here in question, 'The use tax is not a tax on property but is described in the act as, and in fact is, in the nature of an excise tax upon the privilege of using, storing or consuming property.' Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 307, 57 A.2d 128, 134. This distinction may sometimes be more formal than actual, cf. Henneford v. Silas Mason Co., 300 U.S. 577, 582, 586, 57 S.Ct. 524, 526, 528, 81 L.Ed. 814. But its long-time general acceptance supports the conclusion that when Congress talked about taxes on, or even 'in respect of,' personal property, it did not thereby include use taxes.
This conclusion is further buttressed by the close interconnection of sales and use taxes. See generally 3 State Taxation of Interstate Commerce, H.R.Rep.No. 565, 89th Cong., 1st Sess., 607—620 (1965). As a complement to the sales tax and an integral part of a single broad pattern of excise taxes, the use tax is not likely to have been grouped by Congress with taxes 'in respect of the personal property.'
29
By 1938, more than half the States had adopted sales and use taxes. See 3 State Taxation of Interstate Commerce, supra, n. 28, at 609.
30
54 Stat. 1059, now 4 U.S.C. §§ 105—110.
31
4 U.S.C. § 105(a) states:
'No person shall be relieved from liability for payment of, collection of, or accounting for any sales or use tax levied by any State, or by any duly constituted taxing authority therein, having jurisdictiont o levy such a tax, on the ground that the sale or use, with respect to which such tax is levied, occurred in whole or in part within a Federal area; and such State or taxing authority shall have full jurisdiction and power to levy and collect any such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal area.'
32
4 U.S.C. § 107 states:
'(a) The provisions of sections 105 and 106 of this title shall not be deemed to authorize the levy or collection of any tax on or from the United States or any instrumentality thereof, or the levy or collection of any tax with respect to sale, purchase, storage, or use of tangible personal property sold by the United States or any instrumentality thereof to any authorized purchaser.
'(b) A person shall be deemed to be an authorized purchaser under this section only with respect to purchases which he is permitted to make from commissaries, ship's stores, or voluntary unincorporated organizations of personnel of any branch of the Armed Forces of the United States, under regulations promulgated by the departmental Secretary having jurisdiction over such branch.'
33
The stipulation filed in the District Court contained the following:
'11. Most of the day-to-day purchases of tangible personal property, which includes food, clothing, toilet articles and other personal items, made by servicemen in Connecticut are made from military exchanges, and commissaries operated by the armed services on military installations.
'12. Sales made by military exchanges and commissaries operated by the armed services on military installations to servicemen are not subject to any tax under the Tax Act.'
34
Conversely, the administrative burden which the States would have to shoulder if § 514 applied to sales and use taxes is potentially far greater than that attributable to the exemption from ad valorem property taxes. Whereas property taxation involves only the property owner and the tax officials, sales and use taxation usually requires participation and accounting by the seller as well. And the accounting difficulties which retailers and the States would encounter in determining for thousands of transactions which customers were properly exempt under § 514 are considerably greater than any that Congress can be thought to have envisioned for the exemption from property taxes alone.
35
S.Rep.No. 1558, supra, n. 26, at 11; H.R.Rep.No. 2198, supra, n. 26, at 6. This purpose was restated in the 1944 reports: 'When the Soldiers' and Sailors' Civil Relief Act of 1940 was amended by the act of October 6, 1942, a provision was written into the act to relieve persons in the service from liability of double taxation by being moved from one State to another under orders.' H.R.Rep.No. 1514, supra, n. 27, at 2. And see S.Rep.No. 959, supra, n. 27, at 1.
36
See Prentice-Hall State and Local Tax Service, All States Unit, 92,963.
37
See also Snapp v. Neal, 382 U.S. 397, 398, 86 S.Ct. 485, 486, 15 L.Ed.2d 445: 'We reverse on the authority of our holding today in Buzard that the failure to pay the motor vehicle 'license, fee, or excise' of the home State entitles the host State only to exact motor vehicle taxes qualifying as 'licenses, fees, or excises'; the ad valorem tax, as the Mississippi Supreme Court acknowledged, is not such an exaction.'
38
Indeed, the Court in Buzard emphasized that the tax had been adopted by California 'as a substitute for local ad valorem taxation of automobiles.' 382 U.S., at 395, n. 9, 86 S.Ct., at 484. California's sales and use taxes were not involved in that case.
39
See California v. Buzard, 382 U.S., at 394, n. 8, 86 S.Ct., at 483, 15 L.Ed.2d 436, for the various methods by which States impose registration or license fees on motor vehicles.
40
'This bill amends the tax immunity provisions of the Soldiers' and Sailors' Civil Relief Act * * * so as to clarify a situation which sometimes results in taxation contrary to the intent of the act. More specifically, the bill provides that where a serviceman is absent from his residence or domicile solely by reason of compliance with military or naval orders, the tax immunity provision of existing law shall apply with respect to his personal property, or the use thereof, within any tax jurisdiction other than his State of residence or domicile, regardless of where such serviceman may be located in compliance with such orders.' (Emphasis supplied.) S.Rep.No. 2182, supra, n. 27, at 1, U.S.Code Cong. & Admin.News 1962, p. 2841.
41
S.Rep.No. 959, supra, n. 27, at 1.
| 910
|
395 U.S. 185
89 S.Ct. 1657
23 L.Ed.2d 194
Jack Frederick McKART, Petitioner,v.UNITED STATES.
No. 403.
Argued Feb. 27, 1969.
Decided May 26, 1969.
George C. Pontikes, Chicago, Ill., for petitioner.
Francis X. Beytagh, Asst. Sol. Gen., for respondent.
Mr. Justice MARSHALL, delivered the opinion of the Court.
1
Petitioner was indicted for willfully and knowingly failing to report for and submit to induction into the Armed Forces of the United States.1 At trial, petitioner's only defense was that he should have been exempt from military service because he was the 'sole surviving son' of a family whose father had been killed in action while serving in the Armed Forces of the United States.2 The District Court held that he could not raise that defense because he had failed to exhaust the administrative remedies provided by the Selective Service System. Accordingly, petitioner was convicted and sentenced to three years' imprisonment. The Court of Appeals affirmed, with one judge dissenting. United States v. McKart, 395 F.2d 906 (C.A.6th Cir. 1968). We granted certiorari. 393 U.S. 922, 89 S.Ct. 256, 21 L.Ed.2d 258 (1968).
I.
2
The facts are not in dispute. Petitioner registered with his local Selective Service board shortly after his 18th birthday and thereafter completed his classification questionnaire. On that form he indicated that he was 'the sole surviving son of a family of which one or more sons or daughters were killed in action * * * while serving in the Armed Forces of the United States * * *.' On February 25, 1963, petitioner's local board placed him in Class I—A, available for military service; he made no attempt to appeal that classification.3
3
On March 2, 1964, he was ordered to report for a pre-induction physical, but failed to do so. He was declared a delinquent and ordered to report for induction on May 11, 1964. He failed to report, but instead wrote a letter to his local board indicating that his moral beliefs prevented him from cooperating with the Selective Service System. The local board replied by sending petitioner the form for claiming conscientious objector status. The board also referred to petitioner's indication in his original questionnaire that he was a sole surviving son and requested further information on that subject.
4
On May 20, 1964, petitioner returned the blank form, stating that he did not wish to be a conscientious objector. In response to the board's request for information about his claim to be a sole surviving son, petitioner indicated that his father had been killed in World War II. The local board, after consulting the State Director, again wrote petitioner requesting more information about his father. Petitioner supplied some of the information. The local board forwarded this information to the State Director, who requested the local board to reopen petitioner's classification.4 The board canceled his induction order and reclassified him IV—A, the appropriate classification for a registrant exempted as a sole surviving son. Petitioner remained in that classification until February 14, 1966.
5
Early in 1966, the local board learned of the death of petitioner's mother. After checking with the State Director, the board returned petitioner to Class I—A. The board rested this decision on the theory that a IV—A classification became improper when petitioner's 'family unit' ceased to exist on the death of his mother. Petitioner was ordered to report for a pre-induction physical. He failed to report and was declared a delinquent and ordered to report for induction. He again failed to report and, after further investigation, his criminal prosecution followed.5
II.
6
We think it clear that petitioner was exempt from military service as a sole surviving son. The sole surviving son exemption originated in the Selective Service Act of 1948, c. 625, § 6(o), 62 Stat. 613. As originally enacted, that section provided exemption for the sole surviving son only '(w)here one or more sons or daughters of a family were killed in action * * * while serving in the armed forces of the United States.' In 1964, the section was amended to extend the exemption to sole surviving sons whose fathers were killed in action. 78 Stat. 296. The section now reads in relevant part as follows:
7
'(W)here the father or one or more sons or daughters of a family were killed in action or died in line of duty while serving in the Armed Forces * * * the sole surviving son of such family shall not be inducted for service * * *.' 50 U.S.C. App. § 456(o).
8
There is no question that petitioner was entitled to an exemption before the death of his mother. The issue is whether her death, and the end of the immediate 'family unit,' ended that exemption.
9
We have found no cases discussing this aspect of § 6(o).6 The applicable Selective Service System Regulation, 32 CFR § 1622.40(a)(10) (1969), merely repeats the language of the statute. The System's administrative interpretations have not been uniform,7 although i the present case the National Director took the position that 'inasmuch as there is no family, it is not believed that (petitioner) would qualify for sole surviving son status.' We must, therefore, decide what is essentially a question of first impression. Our examination of the language and legislative history of § 6(o) indicates that the Selective Service System's interpretation fails to effectuate fully the purposes Congress had in mind in providing the exemption.
10
The language of the statute provides only three conditions, two explicit and one implicit, upon which the exemption should terminate. The registrant may volunteer for service, a national emergency or war may be declared, or, implicitly, the registrant may cease to be the sole surviving son by the birth of a brother. The section says nothing about the continuing existence of a family unit, even though other provisions of the Selective Service laws make similar conditions explicit in other contexts.8
11
The argument for conditioning the exemption upon the continued existence of a family unit is based not upon the language or structure of the statute but upon certain references in the legislative history. These comments indicate that one purpose of the exemption was to provide 'solace and consolation' to the remaining family members by guaranteeing the presence of the sole surviving son. See S.Rep.No.1119, 88th Cong., 2d Sess., 3 (1964); Hearings before Subcommittee No. 1 of the House Committee on Armed Services on H.R. 2664, 88th Cong., 1st Sess., 3442—3443 (1963), U.S.Code Cong. & Adm.News, p. 2539. When there is no one left to comfort, it is argued, the sole surviving son may be drafted. However, our examination of the sparse legislative history discloses that Congress had not one but several purposes in mind in providing the exemption, only some of which depend upon the existence of a family unit.
12
Perhaps chief among these other purposes was a desire to avoid extinguishing the male line of a family through the death in action of the only surviving son. See S.Rep.No. 1119, supra; Hearing before the Senate Committee on Armed Services on H.R. 2664, 88th Cong., 1st Sess., 30—31 (1963); 110 Cong.Rec. 15218 (1964) (remarks of Senator Keating). Other purposes mentioned were providing financial support for the remaining family members, fairness to the registrant who has lost his father in the service of his country, and the feeling that there is, under normal circumstances, a limit to the sacrifice that one family must make in the service of the country. See Hearing before the Senate Committee on Armed Services on H.R. 2664, supra, at 30—31; Hearings before Subcommittee No. 1 of the House Committee on Armed Services on H.R. 2664, supra, at 3442—3443; 109 Cong.Rec. 24889 (1963).
13
Perhaps the most that can be said in these circumstances is that Congress had multiple purposes in mind in providing an exemption for a sole surviving son. Depriving petitioner of an exemption might not frustrate one of these purposes, but it certainly would frustrate several of the others. Therefore, given the beneficent basis for § 6(o), we cannot believe that Congress intended to make one factor, the existence of a 'family unit,' crucial. Accordingly, the death of petitioner's mother did not operate to deprive him of his right to be exempt from military service. The local board erred in classifying petitioner I—A and ordering him to report for induction.
III.
14
The Government maintains, however, that petitioner cannot raise the invalidity of his I—A classification and subsequent induction order as a defense to a criminal prosecution for refusal to report for induction. According to the Government, petitioner's failure to appeal his reclassification after the death of his mother constitutes a failure to exhaust available administrative remedies and therefore should bar all judicial review. For the reasons set out below, we cannot agree.
15
The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. See generally 3 K. Davis, Administrative Law Treatise § 20.01 et seq. (1958 ed., 1965 Supp.); L. Jaffe, Judicial Control of Administrative Action 424—458 (1965). The doctrine provides 'that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.' Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50 51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). The doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions.9 Application of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.
16
Perhaps the most common application of the exhaustion doctrine is in cases where the relevant statute provides that certain administrative procedures shall be exclusive. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938) (National Labor Relations Act). The reasons for making such procedures exclusive, and for the judicial application of the exhaustion doctrine in cases where the statutory requirement of exclusivity is not so explicit, are not difficult to understand. A primary purpose is, of course, the avoidance of premature interruption of the administrative process. The agency, like a trial court, is created for the purpose of applying a statute in the first instance. Accordingly, it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based. And since agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise. And of course it is generally more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages. The very same reasons lie behind judicial rules sharply limiting interlocutory appeals.
17
Closely related to the above reasons is a notion peculiar to administrative law. The administrative agency is created as a separate entity and invested with certain powers and duties. The courts ordinarily should not interfere with an agency until it has completed its action, or else has clearly exceeded its jurisdiction. As Professor Jaffe puts it, '(t)he exhaustion doctrine is, therefore, an expression of executive and administrative autonomy.'10 This reason is particularly pertinent where the function of the agency and the particular decision sog ht to be reviewed involve exercise of discretionary powers granted the agency by Congress, or require application of special expertise.
18
Some of these reasons apply equally to cases like the present one, where the administrative process is at an end and a party seeks judicial review of a decision that was not appealed through the administrative process. Particularly, judicial review may be hindered by the failure of the litigant to allow the agency to make a factual record, or to exercise its discretion or apply its expertise. In addition, other justifications for requiring exhaustion in cases of this sort have nothing to do with the dangers of interruption of the administrative process. Certain very practical notions of judicial efficiency come into play as well. A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene. And notions of administrative autonomy require that the agency be given a chance to discover and correct its own errors. Finally, it is possible that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.
19
In Selective Service cases, the exhaustion doctrine must be tailored to fit the peculiarities of the administrative system Congress has created. At the heart of the Selective Service System are the local boards, which are charged in the first instance with registering and classifying those subject to the Selective Service laws. 32 CFR § 1613.1 et seq., §§ 1621.1—1623.10 (1969). Upon being classified by the local board, the registrant has a right of appeal to a state appeal board, 32 CFR § 1626.2 (1969), and, in some instances, to the President, 32 CFR § 1627.3 (1969). No registrant is required to appeal.11 A registrant cannot be ordered to report for induction while his classification is being considered by the local board or by an appeal board. 32 CFR §§ 1624.3, 1625.14, 1626.41, 1627.8 (1969).
20
At some stage during this process, normally shortly before he is expected to be ordered to report for induction, see 32 CFR § 1628.11 (1969), the registrant is required to complete a pre-induction physical examination. If he passes this examination, he ordinarily will be ordered to report for induction. The next, and last, step is to report to the induction center and submit to induction. At this point, the administrative process is at an end.
21
If the registrant fails to report for induction, he is, like petitioner in the present case, subject to criminal prosecution. Although the Universal Military Training and Service Act, as it stood at the time of petitioner's trial, provided that the decisions of the local boards were 'final,' it was long ago established that a registrant charged with failure to report can raise the defense that there was 'no basis in fact' for his classification. See Estep v. United States, 327 U.S. 114, 123, 66 S.Ct. 423, 427, 90 L.Ed. 567 (1946). It is also established that there can be no judicial review at all, with some exceptions, until the registrant has refused to submit to induction and is prosecuted, or else has submitted to induction and seeks release by habeas corpus.12
22
This case raises a different question. We are not here faced with a premature resort to the courts—all administrative remedies are now closed to petitioner. We are asked instead to hold that petitioner's failure to utilize a particular administrative process—an appeal—bars him from defending a criminal prosecution on grounds which could have been raised on that appeal. We cannot agree that application of the exhaustion doctrine would be proper in the circumstances of the present case.
23
First of all, it is well to remember that use of the exhaustion doctrine in criminal cases can be exceedingly harsh. The defendant is often stripped of his only defense; he must go to jail without having any judicial review of an assertedly invalid order. The deprivation of judicial review occurs not when the affected person is affirmatively asking for assistance from the courts but when the Government is attempting to impose criminal sanctions on him. Such a result should not be tolerated unless the interests underlying the exhaustion rule clearly outweigh the severe burden imposed upon the registrant if he is denied judicial review.13 The statute as it stood when petitioner was reclassified said nothing which would require registrants to raise all their claims before the appeal boards.14 We must ask, then, whether there is in this case a governmental interest compelling enough to outweigh the severe burden placed on petitioner. Even if there is no such compelling interest when petitioner's case is viewed in isolation, we must also ask whether allowing all similarly situated registrants to bypass administrative appeal procedures would seriously impair the Selective Service System's ability to perform its functions.
24
The question of whether petitioner is entitled to exemption as a sole surviving son is, as we have seen, solely one of statutory interpretation. The resolution of that issue does not require any particular expertise on the part of the appeal board; the proper interpretation is certainly not a matter of discretion.15 In this sense, the issue is different from many Selective Service classification questions which do involve expertise or the exercise of discretion, both by the local boards and the appeal boards.16 Petitioner's failure to take his claim through all available am inistrative appeals only deprived the Selective Service System of the opportunity of having its appellate boards resolve a question of statutory interpretation. Since judicial review would not be significantly aided by an additional administrative decision of this sort, we cannot see any compelling reason why petitioner's failure to appeal should bar his only defense to a criminal prosecution.17 There is simply no overwhelming need for the court to have the agency finally resolve this question in the first instance, at least not where the administrative process is at an end and the registrant is faced with criminal prosecution.18
25
We are thus left with the Government's argument that failure to require exhaustion in the present case will induce registrants to bypass available administrative remedies. The Government fears an increase in litigation and a consequent danger of thwarting the primary function of the Selective Service System, the rapid mobilization of manpower. This argument is based upon the proposition that the Selective Service System will, through its own processes, correct most errors and thus avoid much litigation. The exhaustion doctrine is assertedly necessary to compel resort to these processes. The Government also speculates that many more registrants will risk criminal prosecution if their claims need not carry into court the stigma of denial not only by their local boards, but also by at least one appeal board.
26
We do not, however, take such a dire view of the likely consequences of today's decision. At the outset, we doubt whether many registrants will be foolhardy enough to deny the Selective Service System the opportunity t correct its own errors by taking their chances with a criminal prosecution and a possibility of five years in jail. The very presence of the criminal sanction is sufficient to ensure that the great majority of registrants will exhaust all administrative remedies before deciding whether or not to continue the challenge to their classifications. And, today's holding does not apply to every registrant who fails to take advantage of the administrative remedies provided by the Selective Service System. For, as we have said, many classifications require exercise of discretion or application of expertise; in these cases, it may be proper to require a registrant to carry his case through the administrative process before he comes into court. Moreover, we are not convinced that many in this rather small class of registrants will bypass the Selective Service System with the thought that their ultimate chances of success in the courts are enhanced thereby. In short, we simply do not think that the exhaustion doctrine contributes significantly to the fairly low number of registrants who decide to subject themselves to criminal prosecution for failure to submit to induction. Accordingly, in the present case, where there appears no significant interest to be served in having the System decide the issue before it reaches the courts, we do not believe that petitioner's failure to appeal his classification should foreclose all judicial review.
27
We do not view the cases of Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944), and Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946), insofar as they concern the exhaustion doctrine, as a bar to today's holding. Neither those two cases, nor any of the other cases decided by this Court,19 stand for the proposition that the exhaustion doctrine must be applied blindly in every case. Indeed, those cases all involved ministerial or conscientious objector claims, claims that may well have to be pursued through the administrative procedures provided by the Selective Service laws.20
IV.
28
Finally, we are faced with the argument that petitioner's challenge to the validity of his classification is barred by his failure to report for and pass his preinduction physical, thus giving the System one last chance to reject him. The Government points to the fact that large numbers of registrants are rejected for physical and mental reasons, and asserts that many criminal trials would be rendered unnecessary if registrants were required to report for a physical before being allowed to challenge their classifications.
29
We think there are several answers to his argument. First, as we said above, we doubt very much whether very many registrants would pass up the chance to escape service by reason of physical or mental defects and leap immediately at the chance to defend a criminal prosecution. But more importantly, a registrant is under a duty to comply with the order to report for a physical examination21 and may be criminally prosecuted for failure to comply.22 If the Government deems it important enough to the smooth functioning of the System to have unfit registrants weeded out at the earliest possible moment, it can enforce the duty to report for pre-induction examinations by criminal sanctions. In the present case, it has not chosen to do so. Petitioner has not been prosecuted for failure to report for his examination; he has been prosecuted for failure to report for induction, a duty he claims he did not have. Therefore, we hold that petitioner's failure to report for his examination should not bar hm from challenging the validity of his classification as a defense to his criminal prosecution.
30
We do not regard Falbo v. United States, supra, as a bar to this holding. Falbo involved an attempt to raise the invalidity of a registrant's classification as a defense to a criminal prosecution for failure to report to a civilian work camp. The Court noted that the defendant had not reported to the work camp and thus had not given the Selective Service System the opportunity to reject him for physical or mental reasons. According to the Court, the 'narrow question * * * presented * * * (was) whether Congress has authorized judicial review of the propriety of a board's classification in a criminal prosecution for wilful violation of an order directing a registrant to report for the last step in the selective process.' 320 U.S., at 554, 64 S.Ct. at 349. The Court held that Congress had not authorized such review.
31
Falbo was limited by Estep v. United States, supra, which held that a registrant could secure limited judicial review of his classification in a criminal prosecution for failure to report if he had pursued his administrative remedies to an end. In Estep, the registrant had reported, had been accepted for induction, but had refused to be inducted.
32
The holding of the Court in Falbo was based in part on a fear of litigious interruption of the Selective Service System. We have dealt with that problem in other cases. See Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968); Oestereich v. Selective Service System Local Board, No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). It is not presented here. As noted above, the administrative process in this case is at an end.
33
Finally, the Court in Falbo was concerned with the possibility that a registrant might be rejected for physical or mental reasons, thus making a criminal prosecution unnecessary. But, as we have seen, the Selective Service System has ample means to ensure that the great majority of registrants will report for their pre-induction examinations. At the time Falbo was decided the regulations provided that the pre-induction examination was to be given at the time the registrant responded to the order to report for induction or to the work camp. See Gibson v. United States, 329 U.S. 338, 67 S.Ct. 301, 91 L.Ed. 331 (1946). Accordingly, the Selective Service System had no way to enforce the duty to report for an examination other than by a prosecution for failure to report for induction. An invalid classification, if allowed to be raised, would have been a complete defense to that prosecution; it would not be a defense today to a prosecution for failure to report for a pre-induction examination.
34
We hold that petitioner's failure to appeal his classification and failure to report for his pre-induction physical do not bar a challenge to the validity of his classification as a defense to his criminal prosecution for refusal to submit to induction. We also hold that petitioner was entitled to exemption from military service as a sole surviving son. Accordingly, we reverse the judgment of the court below and remand the case for entry of a judgment of acquittal.
35
It is so ordered.
36
Reversed and remanded.
37
Mr. Justice DOUGLAS, concurring.
38
The principle of Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, should dispose of this case. There a registrant was plainly entitled to a statutory exemption from service because he was a divinity student. Yet he was denied the exemption because, having burned his draft card, he was classified as a 'delinquent' by Selective Service. He challenged that action in a civil suit for pre-induction review; and we granted relief.
39
This is not a suit for pre-induction review, but a defense tendered in a criminal prosecution. This statutory exemption is as clear as the one in Oestereich. The 'sole survivin' son of a family whose father had been killed in action is exempt and there can hardly be any argument that petitioner is such a 'son' though both his father and mother are dead. He is indeed the last male heir of the line and therefore one who Congress charitably decided should not be exposed to the chance of death in warfare.
40
If Oestereich could raise his claim to statutory exemption in a civil suit at a pre-induction stage, it follows a fortiori that petitioner can do so in a criminal prosecution for failure to obey the Act's mandate.
41
The truth of the matter is that it was the Selective Service Board that acted in a 'lawless' manner;* and when its error is so egregious, it would be a travesty of justice to require a registrant—whether or not sophisticated—to pursue the administrative remedies that are designed for quite different categories of cases.
42
Mr. Justice WHITE, concurring in the result.
43
The Court's opinion, as I understand it, does not dispense with the necessity of presenting an issue under the draft laws to the registrant's local board for consideration in the first instance. Petitioner did exactly this, and by its decision, the Court provides no avenue for totally bypassing the Selective Service System and using the courts as an alternative to the local draft boards. Any decision to the contrary would be inconsistent with the well-established principle that the responsible administrative agency must be given 'an opportunity to consider the matter, make its ruling, and state the reasons for its action.' Unemployment Compensation Commission of Alaska v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 251, 91 L.Ed. 136 (1946). See generally 3 K. Davis, Administrative Law Treatise § 20.06 (1958). But presentation of the issue to the agency for consideration in the first instance does not complete the litigant's task under the exhaustion doctrine if he would seek resolution of that same issue in the courts. On the contrary, he must resort to appellate remedies available within the agency, and only after those remedies have been exhausted can he turn to the courts for review. See, e.g., United States v. Sing Tuck, 194 U.S. 161, 24 S.Ct. 621, 48 L.Ed. 917 (1904); Chicago, M., St. P. & P.R. Co. v. Risty, 276 U.S. 567, 575, 48 S.Ct. 396, 399, 72 L.Ed. 703 (1928).
44
It is petitioner's failure to exhaust appellate remedies available within the Selective Service System which presents the obstacle to the challenge of his classification in the courts. And while this facet of the exhaustion doctrine, like its other facets, admits of exceptions when special circumstances warrant, see, e.g., Donato v. United States, 302 F.2d 468 (C.A.9th Cir. 1962), I cannot agree with the Court's conclusion that petitioner's failure to exhaust appellate remedies within the System can be disregarded on the broader ground that only a question of law is involved. Questions of law have not, in the past, been thought to be immune from exhaustion requirements. See, e.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). Indeed, this Court has often emphasized that the expertise of the responsible agency is entitled to great deference in matters of statutory construction,1 see, e.g., Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), thus refuting any contention that questions of law are somehow beyond the experts e of the agency and do not give rise to the considerations which underlie the exhaustion doctrine.
45
Although I would stop far short of the broad strokes used by the Court in this respect, I do agree that petitioner's failure to exhaust appellate remedies does not bar review of his classification on the facts of this case. Undoubtedly, Congress could require such exhaustion as a prerequisite to judicial review, see, e.g., Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944), but Congress has not chosen to do so.2 In the absence of any such requirement, I do not think review of petitioner's classification is an impermissible encroachment upon the bailiwick of the Selective Service System. We are not faced with a situation in which consideration of the issue involved has stopped at the first level of the administrative machinery. Rather, petitioner's case and the scope of the § 6(o) exemption for sole surviving sons have received the attention of both the State and the National Directors of the Selective Service System. Petitioner has not exhausted the channels for formal appellate review within the System, but the informal review given petitioner's case and the ratification by the State and National Directors of the position taken by petitioner's local board are sufficient justification to permit the courts to entertain petitioner's defense that his classification is improper under § 6(o).
1
'Any * * * person * * * who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title * * *, or rules, regulations, or directions made pursuant to this title * * * shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * * *.' Selective Service Act of 1948, § 12, 62 Stat. 622, as amended, now § 12 of the Military Selective Service Act of 1967 (see 81 Stat. 100, § 1(a)), 50 U.S.C.App. § 462 (1964 ed., Supp. III).
2
'Except during the period of a war or a national emergency declared by the Congress after the date of the enactment of the 1964 amendment to this subsection (July 7, 1964), where the father or one or more sons or daughters of a family were killed in action or died in line of duty while serving in the Armed Forces of the United States, or subsequently died as a result of injuries received or disease incurred during such service, the sole surviving son of such family shall not be inducted for service under the terms of this title * * * unless he volunteers for induction.' Selective Service Act of 1948, § 6(o), 62 Stat. 613, as amended, 50 U.S.C.App. § 456(o).
3
A registrant has the right to appear before his local board to contest his classification or to present new information to the board. 32 CFR §§ 1624.1, 1624.2 (1969). The board then determines whether or not to reconsider the registrant's classification. 32 CFR §§ 1624.2(c), (d) (1969). Following the local board's decision, the registrant has the right to appeal to the state appeal board. 32 CFR §§ 1624.2(e), 1625.13 (1969). A further appeal may be taken by the registrant to the National Selective Service Appeal Board only if one or more members of the state appeal board dissent from the board's decision. 32 CFR § 1627.3 (1969).
4
The Selective Service System Regulations require the local board to reopen a registrant's classification upon the written request of the State or National Director. 32 CFR § 1625.3(a) (1969).
5
After petitioner failed to report for induction the second time, the State Director confirmed that petitioner's father had been killed in action and then requested advice of the National Director. The latter replied that 'inasmuch as there is no family, it is not believed that (petitioner) would qualify for sole surviving son status.' This information was then communicated to the local board and the case referred to the local United States Attorney. Petitioner's indictment followed.
6
Cf. Pickens v. Cox, 282 F.2d 784 (C.A.10th Cir. 1960).
7
Shortly after the 1964 amendment, the Selective Service System took the position that a sole surviving son exemption would not be affected by any change in the status of the family, other than the birth of a full brother. Selective Service System Operations Bulletin No. 263 (August 14, 1964). That position was later rescinded and the System has issued no further instructions concerning § 6(o).
8
Section 6(h) of the Military Selective Service Act of 1967, 81 Stat. 102, authorizes the President to provide for the deferment of 'persons who have children, or wives and children, with whom they maintain a bona fide family relationship in their homes.' Section 6(h) of the Selective Service Act of 1948, 62 Stat. 611, was to the same general effect.
Had Congress wished to condition the exemption on the existence of a family unit, it would also seem logical for it to have defined that 'family unit.' For example, the trial in the present case disclosed that both of petitioner's maternal grandparents and his paternal grandmother were still living. Nothing in the statute indicates whether these relatives should be considered part of the 'family.'
9
See, e.g., Layton & Fine, The Draft and Exhaustion of Administrative Remedies, 56 Geo.L.J. 315, 322—331 (1967).
10
L. Jaffe, Judicial Control of Administrative Action 425 (1965).
11
The Notice of Classification form, SSS Form 110, informs the registrant of his right to appeal, but does not inform him that failure to appeal may bar a subsequent challenge to the validity of his classification.
12
These judicially created doctrines were recently enacted as § 10(b)(3) of the Military Selective Service Act of 1967, 81 Stat. 104. Section 10(b)(3) provides in pertinent part:
'No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution * * * after the registrant has respondd either affirmatively or negatively to an order to report for induction * * * Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.' 50 U.S.C.App. § 460(b)(3) (1964 ed., Supp. III).
We have recently had occasion to interpret this section in the context of pre-induction challenges to classifications. See Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968); Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). We have granted certiorari in Breen v. Selective Service Board, 394 U.S. 997, 89 S.Ct. 1592, 22 L.Ed.2d 774, cert. granted, to consider the applicability of § 10(b)(3) to pre-induction challenges to allegedly 'punitive' reclassifications.
13
See Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944).
14
The 1967 amendment, see n. 12, supra makes no reference to exhaustion of administrative remedies as a prerequisite to challenging the validity of a classification as a defense to a criminal prosecution for refusal to submit to induction. The legislative history of that amendment indicates that Congress was concerned with certain judicial decisions allowing pre-induction review of selective service classifications and the possibility that such 'litigious interruption' might seriously affect the administration of the Selective Service System. See Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 245 252, 89 S.Ct. 414, 420—424, 21 L.Ed.2d 402 (1968) (dissenting opinion).
15
Of course, it is necessary that the local board, which has the responsibility of classifying registrants in the first instance, be given the information necessary to perform its function. However, the present case does not present an instance where a registrant is trying to challenge a classification on the basis of facts not presented to the local board. In such a case, the smooth functioning of the system may well require that challenges to classifications based upon facts not properly presented to the board be barred. In the case before us, the board was aware of the relevant facts when it made its decision to reclassify petitioner I-A; no further factual inquiry would have been at all useful.
16
Conscientious objector claims, Military Selective Service Act of 1967, § 6(j), 81 Stat. 104, 50 U.S.C.App. § 456(j) (1964 ed., Supp. III), or deferments for those engaged in activities deemed necessary 'to the maintenance of the national health, safety, or interest,' id., § 6(h)(2), 81 Stat. 102, 50 U.S.C.App. § 456(h)(2) (1964 ed., Supp. III), would appear to be examples of questions requiring the application of expertise or the exercise of discretion. In such cases, the Selective Service System and the courts may have a stronger interest in having the question decided in the first instance by the local board and then by the appeal board, which considers the question anew. 32 CFR § 1626.26. The Selective Service System is empowered by Congress to make such discretionary determinations and only the local and appeal boards have the necessary expertise. See Thompson v. United States, 380 F.2d 86 (C.A.10th Cir. 1967).
17
As noted above, the Selective Service System is not without power to correct its own errors without the intervention of the registrant. See nn. 4 and 5, supra.
18
It is true that we recently made specific reference to the exhaustion doctrine in Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 235—236, n. 5, 89 S.Ct. 414, 415 416, 21 L.Ed.2d 402 (1968), a case where all administrative appeals had been exhausted. However, that case involved an attempt to challenge the validity of a classification before receipt of a notice of induction. A registrant's failure to appeal may have different implications if raised in a suit for pre-induction review.
19
See Billings v. Truesdell, 321 U.S. 542, 558, 64 S.Ct. 737, 746, 88 L.Ed. 917 (1944); Gibson v. United States, 329 U.S. 338, 349—350, 67 S.Ct. 301, 306—307, 91 L.Ed. 331 (1946); Sunal v. Large, 332 U.S. 174, 176, 67 S.Ct. 1588, 1589, 91 L.Ed. 1982 (1947); Cox v. United States, 332 U.S. 442, 445, 448, 68 S.Ct. 115, 116, 117, 92 L.Ed. 59 (1947).
20
See n. 16, supra.
21
See 32 CFR §§ 1628.10, 1628.11 (1969).
22
See n. 1, supra.
*
While questions of law are usually routed through the available administrative machinery (see Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616), that principle evolved under regulatory schemes where agencies had general oversight and supervision over companies or other groups of individuals. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51, 58 S.Ct. 459, 463, 82 L.Ed. 638. Arguably, these Selective Service boards have no claim to that kind of expertise. But assuming that they do, the present 'legal' question is too transparent to be dignified in that manner.
1
The fact that the relevant statute is ambiguous or uncertain, e.g., Logan v. Davis, 233 U.S. 613, 627, 34 S.Ct. 685, 690, 58 L.Ed. 1121 (1914), or that the agency's interpretation of a statute comes while its interrelationship with the other parts of the regulatory scheme is as yet 'untried and new,' Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933), may accord the agency interpretation of the statute additional significance. And since the construction of the sole surviving son exemption is 'essentially a question of first impression,' ante, at 190, the importance of exhaustion—or of a failure to exhaust—is, perhaps, accentuated in this case. Any ambiguity in the language and legislative history of the statute, or any question as to the role which § 6(o) must play in the statutory scheme would be well suited to resolution by the Selective Service System in the first instance. Exhaustion of appellate remedies within the System would have afforded that agency full opportunity to apply its expertise to these and other questions, thereby facilitating the disclosure of factors which, although germane, are not highly visible to tribunals less familiar with the regulatory scheme.
2
Compare Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944). Section 10(b)(3) of the Military Selective Service Act of 1967, 81 Stat. 104, prescribes the timing of judicial review—'after the registrant has responded either affirmatively or negatively to an order to report for induction' but does not speak to the exhaustion question.
It should be noted that where agency orders are not suspended during the pendency of an administrative appeal, Congress has seen fit to permit judicial review without exhaustion of appellate remedies. Administrative Procedure Act § 10(c), 5 U.S.C. § 704 (1964 ed., Supp. III). Under that section, however, if the agency action is inoperative during administrative review, the agency may require exhaustion by its own rules. Since induction may not be ordered during a registrant's appeal, 32 CFR §§ 1626.41, 1627.8 (1969), the Selective Service System could require exhaustion even if subject to § 10(c) of the APA. The administration of the draft laws, however, is not covered by the APA, and the necessity for exhausting appellate remedies would seem to rest on the general doctrine developed by the courts.
| 12
|
395 U.S. 208
89 S.Ct. 1767
23 L.Ed.2d 212
Enrique PEREZv.CALIFORNIA.
No. 39.
Supreme Court of the United States
May 26, 1969
Peter G. Fetros, Sacramento, Cal., for petitioner.
Edsel W. Haws, Sacramento, Cal., for respondent.
On Writ of Certiorari to the Supreme Court of California.
PER CURIAM.
1
The writ is dismissed as improvidently granted.
2
Mr. Justice DOUGLAS dissents from the dismissal of the writ.
| 89
|
395 U.S. 210
89 S.Ct. 1767
23 L.Ed.2d 213
BROTHERHOOD OF RAILROAD TRAINMENT et al.v.John P. O'CONNELL, etc., et al.
No. 158.
Elmer L. DIRKS, Individually and as General Chairman
of the Brotherhood of Railroad Trainmen, et al.,
v.
W. L. BIRKHOLZ et al.
No. 172.
Supreme Court of the United States
May 26, 1969
Arnold B. Elkind, New York City, for petitioners in No. 158.
David L. Uelmen, Milwaukee, Wis., for petitioners in No. 172.
Lee Leibik, Chicago, Ill., for respondents.
On Writs of Certiorari to the United States Court of Appeals for the Second and Seventh Circuits.
PER CURIAM.
1
The judgments are vacated and the cases are remanded to the respective district courts with instructions to dismiss the cases as moot.
| 89
|
395 U.S. 164
89 S.Ct. 1706
23 L.Ed.2d 176
Ronald L. CRANE, Petitioner,v.CEDAR RAPIDS & IOWA CITY RAILWAY COMPANY.
No. 791.
Argued April 24, 1969.
Decided May 26, 1969.
John B. Halloran, James L. Alfveby, Minneapolis, Minn., Arthur O. Leff, Iowa City, Iowa, E. Barrett Prettyman, Jr., Washington, D.C., for petitioner; Hogan & Hartson, Washington, D.C., of counsel.
William M. Dallas, John F. Gaston, Jr., Cedar Rapids, Iowa, for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question in this case is whether a State may make the defense of contributory negligence available to a railroad sued by a nonemployee for damages for personal injuries caused by the railroad's failure to maintain its freight cars 'with couplers coupling automatically by impact,' as required by § 2 of the Federal Safety Appliance Act of 1893,2 7 Stat. 531, 45 U.S.C. § 2.1
2
Petitioner was in the employ of Cargill, Inc., at its Cedar Rapids, Iowa, meal house and elevator on the line of respondent railroad. Petitioner's duties were to move, weigh, and load freight cars spotted by respondent on Cargill's siding track. He was working on the top of the third of a string of six cars when a coupler malfunctioned and caused the first two cars to break away. Petitioner dismounted and ran to the runaway cars. He climbed to the roof of one and was attempting to apply its brake when he fell 12 to 14 feet to a cement apron between the tracks and suffered severe injuries. He brought this action in tort in the Iowa District Court of Linn County. The only claim submitted to the jury was that petitioner's injuries resulted from respondent's maintenance, in violation of § 2, of a freight car with a defective coupler. Over petitioner's objection the jury was instructed in accordance with settled Iowa tort law that it was petitioner's burden 'to establish by a preponderance or the greater weight of the evidence * * * that (he) was free from contributory negligence,' defined as 'negligence on the part of a person injured * * * which contributed in any way or in any degree directly to the injury.' The jury returned a verdict for respondent railroad. The Supreme Court of Iowa affirmed, Iowa, 160 N.W.2d 838 (1968). We granted certiorari. 393 U.S. 1947, 89 S.Ct. 692, 21 L.Ed.2d 690 (1969). We affirm.
3
The Safety Appliance Act did not create a federal cause of action for either employees or nonemployees seeking damages for injuries resulting from a railroad's violation of the Act. Moore v. C. & O.R. Co., 291 U.S. 205, 54 S.Ct. 402, 78 L.Ed. 755 (1934). Congress did, however, subsequently provide a cause of action for employees: The cause of action created by the Federal Employers' Liability Act of 1908, 35 Stat. 65, as amended, 45 U.S.C. § 51 et seq., embraces claims of an employee based on violations of the Safety Appliance Act. In such actions, the injured employee is required to prove only the statutory violation and thus is relieved of the burden of proving negligence, O'Donnell v. Elgin, J. & E.R. Co., 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187 (1949); Coray v. Southern Pac. R. Co., 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208 (1949); Affolder v. New York, C. & St. L.R. Co., 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683 (1950). He is not required to prove common-law proximate causation but only that his injury resulted 'in whole or in part' from the railroad's violation of the Act, 45 U.S.C. § 51; Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), and the railroad is deprived of the defenses of contributory negligence and assumption of risk, 45 U.S.C. §§ 53, 54.
4
In contrast, the nonemployee must look for his remedy to a commonlaw action in tort, which is to say that he must sue in a state court, in the absence of diversity, to implement a state cause of action. Fairport, P. & E.R. Co. v. Meredith, 292 U.S. 589, 54 S.Ct. 826, 78 L.Ed. 1446 (1934). '(T)he right to recover damages sustained * * * through the breach of duty sprang from the principle of the common law * * * and was left to be enforced accordingly * * *.' Moore v. C. & O.R. Co., supra, at 215, 54 S.Ct. at 406. In consequence, we have consistently held that under the present statutory scheme the definition of causation and the availability of the defenses of assumption of risk and contributory negligence are left to state law. Schlemmer v. Buffalo, R. & P.R. Co., 220 U.S. 590, 31 S.Ct. 561, 55 L.Ed. 596 (1911); Faip ort, P. & E.R. Co. v. Meredith, supra, at 598, 54 S.Ct. 826; Moore v. C. & O.R. Co., supra, at 215, 54 S.Ct. 402; Tipton v. Atchison, T. & S.F.R. Co., 298 U.S. 141, 56 S.Ct. 715, 80 L.Ed. 1091 (1936). Our examination of the relevant legislative materials convinces us that this line of decisions should be reaffirmed.2
5
We recognize the injustice of denying recovery to a nonemployee which would not be denied to an employee performing the same task in the same manner as did petitioner.3 But it is for Congress to amend the statute to prevent such injustice. It is not permitted the Court to rewrite the statute.
6
Affirmed.
7
Mr. Justice BLACK, with whom The Chief Justice and Mr. Justice DOUGLAS join, dissenting.
8
Congress, not the States, passed the Federal Safety Appliance Act of 1893, 27 Stat. 531, 45 U.S.C. § 1 et seq. Consequently, I think the question of a railroad's liability to a person injured by a violation of that Act is a federal, not a state, question. Although it is true that several old cases, cited by the Court, gave the Safety Appliance Act a different interpretation, and left injured workers to whatever remedies they might have under state law, the premises of these old decisions have been thoroughly and I think properly discredited. See J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964).
9
The Federal Employers' Liability Act of 1908, 35 Stat. 65, as amended, 45 U.S.C. § 51 et seq., allows railroad employees injured by violations of the Safety Appliance Act to recover against their employer, and contributory negligence of the employee is not a defense. I cannot believe that Congress intended that contributory negligence should become a defense simply because the action is brought by a nonemployee, when an employee doing the same work and subjected to the same violation of the Safety Appliance Act could clearly recover. For this reason I would hold that under federal law contributory negligence is not a defense in this case and reverse the judgment of the Iowa Supreme Court.
1
Section 2 of the Safety Appliance Act provides:
'It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.' 45 U.S.C.A. § 2.
2
In addition to the Federal Safety Appliance Act and the Federal Employers' Liability Act, see H.R.Rep. No. 1386, 60th Cong., 1st Sess., 6 (1908).
3
See Louisell & Anderson, The Safety Appliance Act and the FELA: A Plea for Clarification, 18 Law & Contemp. Prob. 281 (1953).
| 78
|
395 U.S. 209
89 S.Ct. 1767
23 L.Ed.2d 212
Frances MATTIELLOv.CONNECTICUT.
No. 150.
Supreme Court of the United States
May 26, 1969
Robert N. Grosby, Norwalk, Conn., for appellant.
George F. Carroll, Jr., Norwalk, Conn., for appellee.
PER CURIAM.
1
The appeal is dismissed for want of a properly presented federal question.
| 89
|
395 U.S. 238
89 S.Ct. 1709
23 L.Ed.2d 274
Edward BOYKIN, Jr., Petitioner,v.State of ALABAMA.
No. 642.
Argued March 4, 1969.
Decided June 2, 1969.
E. Graham Gibbons, Mobile, Ala., for petitioner.
David W. Clark, Montgomery, Ala., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
In the spring of 1966, within the period of a fortnight, a series of armed robberies occurred in Mobile, Alabama. The victims, in each case, were local shopkeepers open at night who were forced by a gunman to hand over money. While robbing one grocery store, the assailant fired his gun once, sending a bullet through a door into the ceiling. A few days earlier in a drugstore, the robber had allowed his gun to discharge in such a way that the bullet, on ricochet from the floor, struck a customer in the leg. Shortly thereafter, a local grand jury returned five indictments against petitioner, a 27-year-old Negro, for commonlaw robbery—an offense punishable in Alabama by death.
2
Before the matter came to trial, the court determined that petitioner was indigent and appointed counsel1 to represent him. Three days later, at his arraignment, petitioner pleaded guilty to all five indictments. So far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court.
3
Trial strategy may of course make a plea of guilty seem the desirable course. But the record is wholly silent on that point and throws no light on it.
4
l abama provides that when a defendant pleads guilty, 'the court must cause the punishment to be determined by a jury' (except where it is required to be fixed by the court) and may 'cause witnesses to be examined, to ascertain the character of the offense.' Ala.Code, Tit. 15, § 277 (1958). In the present case a trial of that dimension was held, the prosecution presenting its case largely through eyewitness testimony. Although counsel for petitioner engaged in cursory cross-examination, petitioner neither testified himself nor presented testimony concerning his character and background. There was nothing to indicate that he had a prior criminal record.
5
In instructing the jury, the judge stressed that petitioner had pleaded guilty in five cases of robbery,2 defined as 'the felonious taking of money * * * from another against his will * * * by violence or by putting him in fear * * * (carrying) from ten years minimum in the penitentiary to the supreme penalty of death by electrocution.' The jury, upon deliberation, found petitioner guilty and sentenced him severally to die on each of the five indictments.
6
Taking an automatic appeal to the Alabama Supreme Court, petitioner argued that a sentence of death for common-law robbery was cruel and unusual punishment within the meaning of the Federal Constitution, a suggestion which that court unanimously rejected. 281 Ala. 659, 207 So.2d 412. On their own motion, however, four of the seven justices discussed the constitutionality of the process by which the trial judge had accepted petitioner's guilty plea. From the order affirming the trial court, three justices dissented on the ground that the record was inadequate to show that petitioner had intelligently and knowingly pleaded guilty. The fourth member concurred separately, conceding that 'a trial judge should not accept a guilty plea unless he has determined that such a plea was voluntarily and knowingly entered by the defendant,' but refusing '(f)or aught appearing' 'to presume that the trial judge failed to do his duty.' 281 Ala., at 662, 663, 207 So.2d, at 414, 415. We granted certiorari. 393 U.S. 820, 89 S.Ct. 200, 21 L.Ed.2d 93.
7
Respondent does not suggest that we lack jurisdiction to review the voluntary character of petitioner's guilty plea because he failed to raise that federal question below and the state court failed to pass upon it.3 But the question was raised on oral argument and we conclude that it is properly presented. The very Alabama statute. (Ala. Code, Tit. 15, § 382 (10) (1958)) that provides automatic appeal in capital cases also requires the reviewing court to comb the record for 'any error prejudicial to the appellant, even though not called to our attention in brief of counsel.' Lee v. State, 265 Ala. 623, 630, 93 So.2d 757, 763. The automatic appeal statute 'is the only provision under the Plain Error doctrine of which we are aware in Alabama criminal appellate review.' Douglas v. State, 42 Ala.App. 314, 331, n. 6, 163 So.2d 477, 494, n. 6. In the words of the Alabama Supreme Court:
8
'Perhaps it is well to note that in reviewing a death case under the automatic appeal statute, * * * we may consider any testimony that was seriously prejudicial to the rights of the appellant and may reverse thereon, even though no lawful objection or exception was made thereto. (Citations omitted.) Our review is not limited to the matters brought to our attention in brief of counsel.' Duncan v. State, 278 Ala. 145, 157, 176 So.2d 840, 851.
9
It was error, plain o the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary. That error, under Alabama procedure, was properly before the court below and considered explicitly by a majority of the justices and is properly before us on review.
10
A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. See Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009. Admissibility of a confession must be based on a 'reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant.' Jackson v. Denno, 378 U.S. 368, 387, 84 S.Ct. 1774, 1786, 12 L.Ed.2d 908. The requirement that the prosecution spread on the record the prerequisites of a valid waiver is no constitutional innovation. In Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: 'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.'
11
We think that the same standard must be applied to determining whether a guilty plea is voluntarily made. For, as we have said, a plea of guilty is more than an admission of conduct; it is a conviction.4 Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality. The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards. Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 1078, 13 L.Ed.2d 934.
12
Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We cannot presume a waiver of these three important federal rights from a silent record.5
13
What is at stake for an accused facing death or imprs onment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought6 (Garner v. Louisiana, 368 U.S. 157, 173, 82 S.Ct. 248, 256, 7 L.Ed.2d 207; Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 1212, 18 L.Ed.2d 326), and forestalls the spin-off of collateral proceedings that seek to probe murky memories.7
14
The three dissenting justices in the Alabama Supreme Court stated the law accurately when they concluded that there was reversible error 'because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.' 281 Ala., at 663, 207 So.2d, at 415.
15
Reversed.
16
Mr. Justice HARLAN, whom Mr. Justice BLACK joins, dissenting.
17
The Court today holds that petitioner Boykin was denied due process of law, and that his robbery convictions must be reversed outright, solely because 'the record (is) inadequate to show that petitioner * * * intelligently and knowingly pleaded guilty.' Ante, at 241. The Court thus in effect fastens upon the States, as a matter of federal constitutional law, the rigid prophylactic requirements of Rule 11 of the Federal Rules of Criminal Procedure. It does so in circumstances where the Court itself has only very recently held application of Rule 11 to be unnecessary in the federal courts. See Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). Moreover, the Court does all this at the behest of a petitioner who has never at any time alleged that his guilty plea was involuntary or made without knowledge of the consequences. I cannot possibly subscribe to so bizarre a result.
I.
18
In June 1966, an Alabama grand jury returned five indictments against petitioner Boykin, on five separate charges of common-law robbery. He was determined to be indigent, and on July 11 an attorney was appointed to represent him. Petitioner was arraigned three days later. At that time, in open court and in the presence of his attorney, petitioner pleaded guilty to all five indictments. The record does not show what inquiries were made by the arraigning judge to confirm that the plea was made voluntarily and knowingly.1
19
Petitioner was not sentenced immediately after the acceptance of his plea. Instead, pursuant to an Alabama statute, the court ordered that 'witnesses * * * be ea mined, to ascertain the character of the offense,' in the presence of a jury which would then fix petitioner's sentence. See Ala.Code, Tit. 14, § 415 (1958); Tit. 15, § 277. That proceeding occurred some two months after petitioner pleaded guilty. During that period, petitioner made no attempt to withdraw his plea. Petitioner was present in court with his attorney when the witnesses were examined. Petitioner heard the judge state the elements of common-law robbery and heard him announce that petitioner had pleaded guilty to that offense and might be sentenced to death. Again, petitioner made no effort to withdraw his plea.
20
On his appeal to the Alabama Supreme Court, petitioner did not claim that his guilty plea was made involuntarily or without full knowledge of the consequences. In fact, petitioner raised no questions at all concerning the plea.2 In his petition and brief in this Court, and in oral argument by counsel, petitioner has never asserted that the plea was coerced or made in ignorance of the consequences.
II.
21
Against this background, the Court holds that the Due Process Clause of the Fourteenth Amendment requires the outright reversal of petitioner's conviction. This result is wholly unprecedented. There are past holdings of this Court to the effect that a federal habeas corpus petitioner who makes sufficiently credible allegations that his state guilty plea was involuntary is entitled to a hearing as to the truth of those allegations. See, e.g., Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942); cf. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). These holdings suggest that if equally convincing allegations were made in a petition for certiorari on direct review, the petitioner might in some circumstances be entitled to have a judgment of affirmance vacated and the case remanded for a state hearing on voluntariness. Cf. Jackson v. Denno, 378 U.S. 368, 393—394, 84 S.Ct. 1774, 1789—1790, 12 L.Ed.2d 908 (1964). However, as has been noted, this petitioner makes no allegations of actual involuntariness.
22
The Court's reversal is therefore predicated entirely upon the failure of the arraigning state judge to make an 'adequate' record. In holding that this is a ground for reversal, the Court quotes copiously from McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), in which we held earlier this Term that when a federal district judge fails to comply in every respect with the procedure for accepting a guilty plea which is prescribed in Rule 11 of the Federal Rules of Criminal Procedure, the plea must be set aside and the defendant permitted to replead, regardless of lower-court findings that the plea was in fact voluntary. What the Court omits to mention is that in McCarthy we stated that our decision was based 'solely upon our construction of Rule 11,' and explicitly disavowed any reliance upon the Constitution. Id., at 464, 89 S.Ct., at 1169. Thus McCarthy can provide no support whatever for today's constitutional edict.
III.
23
So far as one can make out from the Court's opinion, what is now in effect being held is that the prophylactic procedures of Criminal Rule 11 are substantially applicable to the States as a matter of federal constitutional due process. If this is the basis upon which Boykin's conviction is being reversed, then the Court's disposition is plainly out of keeping with a sequel case to McCarthy, decided only last month. For the Court held in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), that 'in view of the large number of constitutionally valid convictions that may have been obtained without full compliance with Rule 11, we decline to apply McCarthy retroactively.' Id., at 833, 89 S.Ct., at 1499. The Court quite evidently found Halliday's conviction to be 'constitutionally valid,' for it affirmed the conviction even though Halliday's guilty plea was accepted in 1954 without any explicit inquiry into whether it was knowingly and understandingly made, as now required by present Rule 11. In justification, the Court noted that two lower courts had found in collateral proceedings that the plea was voluntary. The Court declared that:
24
'(A) defendant whose plea has been accepted without full compliance with Rule 11 may still resort to appropriate post-conviction remedies to attack his plea's voluntariness. Thus, if his plea was accepted prior to our decision in McCarthy, he is not without a remedy to correct constitutional defects in his conviction.' Id., at 833, 89 S.Ct., at 1499.
25
It seems elementary that the Fifth Amendment due process to which petitioner Halliday was entitled must be at least as demanding as the Fourteenth Amendment process due petitioner Boykin. Yet petitioner Halliday's federal conviction has been affirmed as 'constitutionally valid,' despite the omission of any judicial inquiry of record at the time of his plea, because he initiated collateral proceedings which revealed that the plea was actually voluntary. Petitioner Boykin, on the other hand, today has his Alabama conviction reversed because of exactly the same omission, even though he too 'may * * * resort to appropriate post-conviction remedies to attack his plea's voluntariness' and thus 'is not without a remedy to correct constitutional defects in his conviction.' In short, I find it utterly impossible to square today's holding with what the Court has so recently done.
26
I would hold that petitioner Boykin is not entitled to outright reversal of his conviction simply because of the 'inadequacy' of the record pertaining to his guilty plea. Further, I would not vacate the judgment below and remand for a state-court hearing on voluntariness. For even if it is assumed for the sake of argument that petitioner would be entitled to such a hearing if he had alleged that the plea was involuntary, a matter which I find it unnecessary to decide, the fact is that he has never made any such claim. Hence, I consider that petitioner's present arguments relating to his guilty plea entitle him to no federal relief.3
1
Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Ala.Code, Tit. 15, §§ 318 (1)—(12) (Supp.1967).
2
The elements of robbery in Alabama are derived from the common law, but the possible penalties are fixed by statute. Ala.Code, Tit. 14, § 415 (1958).
3
This is unlike Cardinale v. Louisiana, 394 U.S. 437, 89 S.Ct. 1162, 22 L.Ed.2d 398, in which the state court was perhaps unacquainted with the federal question at issue. For, as already stated, four of the seven justices on the court below (a majority) discussed the matter and its implications for Alabama law.
4
'A plea of guilty is more than a voluntary confession made in open court. It also serves as a stipulation that no proof by the prosecution need by advanced * * *. It supplies both evidence and verdict, ending controversy.' Woodard v. State, 42 Ala.App. 552, 558, 171 So.2d 462, 469.
5
In the federal regime we have Rule 11 of the Federal Rules of Criminal Procedure which governs the duty of the trial judge before accepting a guilty plea. See McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418. We said in that case:
'A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be 'an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.' Id., at 466, 89 S.Ct., at 1171.
6
Among the States requiring that an effective waiver of the right to plead not guilty appear affirmatively in the record are Colorado, Colo.Rev.Stat.Ann. § 39—7—8; Illinois, Ill.Rev.Stat., c. 38, §§ 113—1 to 114—14; Missouri. State v. Blaylock, Mo., 394 S.W.2d 364 (1965); New York, People v. Seaton, 19 N.Y.2d 404, 407, 280 N.Y.S.2d 370, 371, 227 N.E.2d 294, 295 (1967); Wisconsin, State ex rel. Burnett v. Burke, 22 Wis.2d 486, 494, 126 N.W.2d 91, 96 (1964); and Washington, Woods v. Rhay, 68 Wash.2d 601, 605, 414 P.2d 601, 604 (1966).
7
'A majority of criminal convictions are obtained after a plea of guilty. If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences.' Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 105—106, 237 A.2d 196, 197—198 (1968).
1
The record states only that:
'This day in open court came the State of Alabama by its District Attorney and the defendant in his own proper person and with his attorney, Evan Austill, and the defendant in open court on this day being arraigned on the indictment in these cases charging him with the offense of Robbery and plead guilty.' Appendix 4.
2
However, I am willing to accept the majority's view that we do have jurisdiction to consider the question.
3
Petitioner advances two additional constitutional arguments: that imposition of the death penalty for common-law robbery is 'cruel and unusual punishment' in violation of the Fourteenth Amendment; and that to permit a jury to inflict the death penalty without any 'standards' to guide its discretion amounts to a denial of due process. I do not reach these issues because the Court has not done so.
| 01
|
395 U.S. 285
89 S.Ct. 1720
23 L.Ed.2d 309
GASTON COUNTY, NORTH CAROLINA, Appellant,v.UNITED STATES.
No. 701.
Argued April 23 and 24, 1969.
Decided June 2, 1969.
Grady B. Stott, Gastonia, N.C., for appellant.
Louis F. Claiborne, Washington, D.C., for appellee.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The Voting Rights Act of 1965 suspends the use of any test or device1 as a prerequisite to registering to vote in any election, in any State or political subdivision which, on November 1, 1964, maintained a test or device, and in which less than 50% of the residents of voting age were registered on that date or voted in the 1964 presidential election.2 Suspension is automatic upon publication in the Federal Register of determinations by the Attorney General and the Director of the Census, respectively, that these conditions apply to a particular governmental unit. If the unit wishes to reinstate the test or device, it must bring suit against the Government in a three-judge district court in the District of Columbia and prove 'that no such test or device has been used during the five years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color,' § 4(a). The constitutionality of these provisions was upheld in South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966).
2
On March 29, 1966, the Attorney General and the Director of the Census published the necessary determinations with respect to appellant, Gaston County, North Carolina. Use of the State's literacy test3 within the County was thereby suspended. On August 18, 1966, appellant brought this action in the District Court, making the requisite averments and seeking to reinstate the literacy test.
3
The United States opposed the granting of relief on the ground, inter alia, that use of the test had 'the effect of denying or abridging the right to vote on account of race or color' because it placed a specially onerous burden on the County's Negro citizens for whom the County had maintained separate and inferior schools.
4
After a full trial on this and other issues, the District Court denied the relief requested, holding that appellant had not met its burden of proving that its use of the literacy test, in the context of its historic maintenance of segregated and unequal schools, did not discriminatorily deprive Negroes of the franchise.4 Gaston County v. United States, 288 F.Supp. 678 (1968). The court made clear:
5
'(W)e do not rely solely on the fact that the schools in Gasto County have been segregated during the period when persons presently of voting age were of school age, but instead have reviewed the evidence adduced by the Government in this case and concluded that the Negro schools were of inferior quality in fact as well as in law.' Id., at 689—690, n. 23.
6
Pursuant to § 4(a) of the Act, the County appealed directly to this Court. We noted probable jurisdiction, 393 U.S. 1011, 89 S.Ct. 629, 21 L.Ed.2d 558 (1969), and we affirm for substantially the reasons given by the majority in the District Court.
7
Appellant contends that the decision of the District Court is erroneous on three scores: first, as a matter of statutory construction and legislative history, the court could not consider Gaston County's practice of educational discrimination in determining whether its literacy test had the effect of discriminatorily denying the franchise; second, on the facts of this case, appellant met its burden of proving that the education it provided had no such effect; and third, whatever may have been the situation in the past, Gaston County has not fostered discrimination in education or voting in recent years. We consider these arguments in turn.
I.
8
The legislative history of the Voting Rights Act of 1965 discloses that Congress was fully cognizant of the potential effect of unequal educational opportunities upon exercise of the franchise. This causal relationship was, indeed, one of the principal arguments made in support of the Act's test-suspension provisions. Attorney General Katzenbach testified before the Senate Committee on the Judiciary:
9
'It might be suggested that this kind of (voting) discrimination could be ended in a different way—by wiping the registration books clean and requiring all voters, white or Negro, to register anew under a uniformly applied literacy test.
10
'* * * (S)uch an approach would not solve, but would compound our present problems.
11
'To subject every citizen to a higher literacy standard would, inevitably, work unfairly against Negroes—Negroes who have for decades been systematically denied educational opportunity equal to that available to the white population. Although the discredited 'separate but equal' doctrine had colorable constitutional legitimacy until 1954, the notorious and tragic fact is that educational opportunities were pathetically inferior for thousands of Negroes who want to vote today.
12
'The impact of a general reregistration would produce a real irony. Years of violation of the 14th amendment, right of equal protection through equal education, would become the excuse for continuing violation of the 15th amendment, right to vote.' Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 22.
13
Mr. Katzenbach testified similarly before the House Committee. See Hearings on H.R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., 18—19, 49. And significantly, the Report of the Senate Judiciary Committee explicitly asserted:
14
'(T)he educational differences between whites and Negroes in the area to be covered by the prohibitions—differences which are reflected in the record before the committee—would mean that equal application of the tests would abridge 15th amendment rights. This advantage to whites is directly attributable to the States and localities involved.' S.Rep. No. 162, pt. 3, 89th Cong., 1st Sess., 16.5
15
Appellant's response to this seemingly unequivocal legislative history is, in essence, that it proves too much. As Judge Gasch put it in his separate opinion below:
16
'(I)t is clear that the Voting Rights Act was primarily directed at the Southern states. In the Act, the Congress allowed a fair opportunity for a certified unit to rebut the presumption that its literacy test was used in a discriminatory manner. Thus, sections 4 and 5 of the Act provide a procedure whereby a State or political subdivision which has been the subject of a certification under the Act, may petition this Court for declaratory relief to reinstate its test before the five-year suspension period has elapsed. Sections 4 and 5 will provide no remedy to a Southern state, however, if, as the majority finds, a segregated school system coupled with census data showing higher literacy and education for whites than for Negroes, is sufficient to preclude recovery under the Act. We can take judicial notice that the segregated school system was the prevailing system throughout the South. If this were what Congress had in mind, it would have stated that no test could be used where literacy was higher among whites than among Negroes. I do not believe that Congress intended that the Act be interpreted in such a way as to render §§ 4 and 5 inapplicable to Southern states or those which had segregated educational systems.' 288 F.Supp., at 690, 695.
17
Appellant's contentions fundamentally misconceive the import of the majority opinion below, as we read it. That opinion explicitly disclaims establishing any per se rule. The court's decision is premised not merely on Gaston County's historic maintenance of a dual school system, but on substantial evidence that the County deprived its black residents of equal educational opportunities, which in turn deprived them of an equal chance to pass the literacy test. Consistent with the court's holding, a State or subdivision may demonstrate that although its schools suffered from the inequality inherent in any segregated system, see Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the dual educational system had no appreciable discriminatory effect on the ability of persons of voting age to meet a literacy requirement.
18
It is of no consequence that Congress might have dealt with the effects of educational discrimination by employing a coverage formula different from the one it enacted. The coverage formula chosen by Congress was designed to be speedy, objective, and incontrovertible;6 it is triggered appropriately by voting or registration figures. The areas at which the Act was directed.
19
'share two characteristics incorporated by Congress into the coverage formula: the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average. Tests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters. Accordingly, the coverage formula is rational in both practice and theory.' South Carolina v. Katzenbach, 383 U.S. 301, 330, 86 S.Ct. 803, 819, 15 L.Ed.2d 769 (1966).
20
In contrast, a coverage formula based on educational disparities, or one based on literacy rates, would be administrt ively cumbersome: the designation of racially disparate school systems is not susceptible of speedy, objective, and incontrovertible determination; and the Bureau of the Census collects no accurate county statistics on literacy. Furthermore, a coverage formula based on either of these factors would not serve as an appropriate basis for suspending all of the tests and devices encompassed by § 4(c) of the Act—for example, a 'good moral character' requirement.7
21
We conclude that in an action brought under § 4(a) of the Voting Rights Act of 1965, it is appropriate for a court to consider whether a literacy or educational requirement has the 'effect of denying * * * the right to vote on account of race or color' because the State or subdivision which seeks to impose the requirement has maintained separate and inferior schools for its Negro residents who are now of voting age.8
II.
22
In an action for declaratory relief under § 4(a) of the Voting Rights Act of 1965, the plaintiff carries the burden of proof. The plaintiff cannot be expected to raise and refute every conceivable defense, however, cf. Federal Rules of Civil Procedure, Rule 9(c), and it was incumbent upon the Government in the case at bar to put into issue its contention that appellant's use of the literacy test, coupled with its racially segregated and unequal school system, discriminatorily deprived Negroes of the franchise. The plaintiff-appellant would then have the burden of proving the contrary. See South Carolina v. Katzenbach, 383 U.S. 301, 332, 86 S.Ct. 803, 821, 15 L.Ed.2d 769 (1966). The Government did place this contention in issue, and in support thereof it introduced considerable evidence, which we now summarize.
23
All persons of voting age in 1966 who attended schools in Gaston County9 attended racially separate and unequal schools.10 Between the years 1908 and 1929, when approximately 45% of the voting age population was of school age, the salaries of Negro teachers in the County ranged from a low of about 20% to a high of about 50% of those of their white colleagues. In 1919, when uniform teacher certification was first required in North Carolina, 98% of the white teachers, but only 5% of the Negro teachers, qualified for regular state teaching certificates. The remaining 95% of the Negro teachers held 'second grade' certificates. The Biennial Report of the State Superintendent of Public Instruction, 1918—1920, described a second grade certificate as 'the lowest permit issued to any teacher in the State. It is not a certificate in the proper sense, but merely a permit to teach until someone can be found who is competent to take the place.'
24
During this same period, the per-pupil valuation of Negro school property in the County ranged from 20% to about 40% of that of the white schools. A much higher proportion of Negro than of white children attended one-room, one-teacher, o oden schoolhouses which contained no desks.
25
By the 1938—1939 school year, Negro teachers' salaries had increased to about 70% of that of white teachers, and by the 1948 1949 school year, salaries were almost equal. At this later date, the per-pupil valuation of Negro school property was still only about one-third that of the white schools.
26
Of those persons over 25 years old at the time of the 1960 census, the proportion of Negroes with no schooling whatever was twice that of whites in Gaston County; the proportion of Negroes with four or less years of education was slightly less than twice that of whites.
27
In 1962, Gaston County changed its system of registration and required a general reregistration of all voters. North Carolina law provides that '(e) very person presenting himself for registration shall be able to read and write any section of the Constitution in the English language.' N.C.Const., Art. VI, § 4; see n. 3, supra. The State Supreme Court has described this requirement as 'relatively high, even after more than a half century of free public schools and universal education,' Bazemore v. Bertie County Board of Elections, 254 N.C. 398, 402, 119 S.E.2d 637, 641 (1961),11 and a Negro minister active in voter registration testified that it placed an especially heavy burden on the County's older Negro citizens. Appendix 131—132. It was publicized throughout the County that the literacy requirement would be enforced. A registrar told a Negro leader not to bring illiterates to register. Some Negroes who attempted to register were, in fact, rejected because they could not pass the test, and others did not attempt to register, knowing that they could not meet the standard.
28
With this evidence, the Government had not only put its contention in issue, but had made out a prima facie case. It is only reasonable to infer that among black children compelled to endure a segregated and inferior education, fewer will achieve any given degree of literacy than will their better-educated white contemporaries.12 And on the Government's showing, it was certainly proper to infer that Gaston County's inferior Negro schools provided many of its Negro residents with a subliterate education, and gave many others little inducement to enter or remain in school.
29
The only evidence introduced by the appellant in rebuttal was the testimony of Thebaud Jeffers, a Negro principal of a Negro high school, who had first come to Gaston County in 1932. He stated that '(a)ll of our schools * * * would have been able to teach any Negro child to read and write so that he could read a newspaper, so that he could read any simple material,' and so that he could pass the literacy test. Appendix 169.
30
The District Court characterized Mr. Jeffers as an 'interested witness,' and found his testimony 'unpersuasive' when measured against the Government's evidence. The court further noted that the principal's knowledge about the school system dated only from 1932, by which time some of the more blatant educational disparities were being reduced. Almost one-half of the county's black adults were of school age well before Mr. Jeffers' arrival.
31
The District Court concluded that appellant had not met the burden imposed by § 4(a) of the Voting Rights Act of 1965. This was not clearly erroneous.
III.
32
Appellant urges that it administered the 1962 reregistration in a fair and impartial manner, and that in recent years it has made significant strides toward equalizing and integrating its school system. Although we accept these claims as true, they fall wide of the a rk. Affording today's Negro youth equal educational opportunities will doubtless prepare them to meet, on equal terms, whatever standards of literacy are required when they reach voting age. It does nothing for their parents, however. From this record, we cannot escape the sad truth that throughout the years Gaston County systematically deprived its black citizens of the educational opportunities it granted to its white citizens. 'Impartial' administration of the literacy test today would serve only to perpetuate these inequities in a different form.
33
The judgment of the District Court is affirmed.
34
Affirmed.
35
Mr. Justice BLACK dissents for substantially the same reasons he stated in § (b) of his separate opinion in South Carolina v. Katzenbach, 383 U.S. 301, 355, 358, 86 S.Ct. 803, 832—834, 15 L.Ed.2d 769.
1
'The phrase 'test or device' shall mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.' Voting Rights Act of 1965, § 4(c), 79 Stat. 438, 42 U.S.C. § 1973b(c) (1964 ed., Supp. III).
2
§ 4(a), 79 Stat. 438, 42 U.S.C. § 1973b(a) (1964 ed., Supp. III).
3
N.C.Const., Art. VI, § 4, provides: 'Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language.' At all times relevant to this case, N.C.Gen.Stat. § 163—28 mirrored the constitutional provision. In 1967 the statute was renumbered § 163—58 and its wording was amended in minor aspects.
4
Judge Wright wrote the majority opinion, in which Judge Robinson joined. Judge Gasch dissented from the court's holding, see infra, at 290-291, but would have denied appellant relief for different reasons.
5
In view of this obvious relationship, and acknowledgment of it by the Attorney General and Congress, it is of no consequence that the Act was explicitly designed to enforce the Fifteenth, and not the Fourteenth, Amendment. See, e.g., Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 141—142; Hearings on H.R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., 49—50, 66, 102. The Act was, of course, concerned solely with voting rights, and discrimination in education bears on the Acto nly insofar as it may result in discriminatory abridgment of the franchise.
6
Section 4(b), of the Act makes the determinations by the Attorney General and the Director of the Census unreviewable in any court. '(T)he findings not subject to review consist of objective statistical determinations by the Census Bureau and a routine analysis of state statutes by the Justice Department. These functions are unlikely to arouse any plausible dispute.' South Carolina v. Katzenbach, 383 U.S. 301, 333, 86 S.Ct. 803, 821, 15 L.Ed.2d 769 (1966).
7
See n. 1, supra; Hearings on H.R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., 30—31.
8
We have no occasion to decide whether the Act would permit reinstatement of a literacy test in the face of racially disparate educational or literacy achievements for which a government bore no responsibility.
9
We assume, and appellant does not suggest otherwise, that most of the adult residents of Gaston County resided there as children. Cf. Bureau of the Census, 1960 Census of Population, Vol. I, pt. 35, table 39. It would seem a matter of no legal significance that they may have been educated in other counties or States also maintaining segregated and unequal school systems.
10
Gaston County v. United States, 288 F.Supp. 678, 686 (1968). Unless otherwise indicated, the facts and statistics set out below, which are not controverted, appear in the opinion of the District Court, 288 F.Supp., at 686—687, or in Government's Exhibit No. 2 (Excerpts from the Reports of the Superintendent of Public Instruction of North Carolina).
11
Elsewhere in its opinion, the court stated that a registrant must be able to read aloud, as well as copy, a section of the State Constitution. 254 N.C., at 404, 119 S.E.2d, at 642. Appellant's registrars required only that a registrant copy one of three sentences of the Constitution.
12
This is, indeed, an inference that appears throughout the Act's legislative history. See supra, at 289—290.
| 12
|
395 U.S. 213
89 S.Ct. 1677
23 L.Ed.2d 253
Thornton A. JENKINS, Petitioner,v.State of DELAWARE.
No. 748.
Argued March 5, 1969.
Decided June 2, 1969.
Henry N. Herndon, Jr., Wilmington, Del., for petitioner.
Jay H. Conner, Wilmington, Del., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), we held that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), 'applies ony to cases in which the trial began after the date of our (Miranda) decision * * *.' 384 U.S., at 721, 86 S.Ct. at 1775. In this case, we must decide whether Miranda's standards for determining the admissibility of in-custody statements apply to post-Miranda retrials1 of cases originally tried prior to that decision.2 We hold that they do not.
2
Petitioner was arrested on the morning of March 17, 1965, as a murder suspect, and was interrogated on three separate occasions, at 11:30 a.m., 2:50 p.m., and 7:05 p.m. Although indigent, he was not advised that he had the right to have an attorney present at the State's expense. Approximately 10 minutes after the evening interrogation began, petitioner gave the police a statement in which he admitted struggling with the victim during a burglary the preceding evening.
3
Petitioner's first trial commenced on January 13, 1966. He did not take the stand, but his incriminating statement was admitted into evidence. The jury found him guilty of murder in the first degree and burglary in the fourth degree. Disregarding the jury's recommendation, the trial court sentenced him to death. During the pendency of petitioner's appeal to the Supreme Court of Delaware, we decided Miranda and Johnson. In reversing petitioner's conviction on various state grounds, the Delaware Supreme Court also determined, sua sponte, that under Johnson petitioner's statement, which was obtained without fully advising him of his constitutional rights, would be admissible at his retrial. 230 A.2d 262 (1967). It reasoned that the retrial would be a mere continuation of the case originally commenced prior to our decision in Miranda.
4
Petitioner's second trial began on October 2, 1967. He was convicted of second degree murder and sentenced to life imprisonment. The Supreme Court of Delaware affirmed, again rejecting petitioner's argument that under Johnson his incriminating statement was inadmissible at his retrial. 240 A.2d 146 (1968). Because of a disagreement among state courts over this issue,3 we granted certiorari. 393 U.S. 950, 89 S.Ct. 380, 21 L.Ed.2d 361 (1968). For the reasons stated below, we affirm.
5
Petitioner and the decisions he relies upon4 emphasize our references in Johnson to 'trials' commenced before the date Miranda was decided and our stated concern for the reliance placed on pre-Miranda standards by trial courts as well as by law enforcement officers. Petitioner argues that this 'studied' focus on the trial process indicates that we intended Miranda to be applied to retrials, which, he insists, begin that process anew. As Delaware correctly points out, however, more than once we stated our holding in Johnson in terms of 'cases' commenced before the date of Miranda. See 384 U.S., at 733, 86 S.Ct. 1781. Delaware and the authorities it relies upon5 argue that, since the word 'case' usually incorporates all the judicial proceedings against an accused, a retrial is not the 'commencement' of a case. Delaware also quotes our statement that only '(f)uture defendants will benefit fully from our new standards governing incustody interrogation, while past defendants may still avail themselves of the voluntariness test.' Id., 384 U.S. at 732, 86 S.Ct., at 1780. Delaware suggests that petitioner, who was tried six months before Miranda, cannot be regarded as a 'future' defendant within the meaning of Johnson. That there is language in Johnson supporting the positions of both petitioner and respondent demonstrates what some courts and commentators have readily recognized: in that decision, we did not consider the applicability of Miranda to retrials.6 The issue simply was not presented.
6
Petitioner buttresses his interpretation of Johnson by arguing that Miranda must be applied to retrials in order to insure the uniform treatment of individuals similarly situated. If it is not applied, he points out, it is possible that different standards for the protection of constitutional rights could be applied to two defendants simultaneously tried in the same courthouse for similar offenses. This anomaly could result if one of the defendants had been previously tried for the same offense prior to Miranda. This identical result, however, is also possible under our more recent prospectivity decisions. Because both Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), selected the date on which the prohibited practice was engaged in, rather than the date the trial commenced, to determine the applicability of newly formulated constitutional standards, those standards do not apply to retrials of defendants originally tried prior to the dates the standards were announced. In fact, under those decisions, different rules could govern where neither defendant had been tried before, depending upon when the condemned practice was engaged in.
7
Moreover, as petitioner acknowledges, Johnson made it quite clear that Miranda need not be applied to trials commenced prior to that decision but not yet final when it was announced. On that date, petitioner's case was in precisely that posture. The type of apparent incongruity petitioner urges us to avoid is equally present in refusing to apply Miranda to defendants whose cases, like petitioner's, were not final on the date Miranda was decided, yet making an exception for petitioner simply because he was afforded a post-Miranda retrial for reasons wholly unrelated to the admissibility of his incriminating statement. Nor is petitioner's hypothetical more disconcerting than apl ying the new standards for in-custody interrogation to Ernesto Miranda while denying them to other defendants whose cases, for wholly fortuitous reasons, simply reached this Court at a later date, although the defendants in those cases may have been both interrogated and tried after Ernesto Miranda.
8
In short, petitioner's concern for what he refers to as 'visible imperfection(s) in a judicial process' merely highlights the problem inherent in prospective decision-making, i.e., some defendants benefit from the new rule while others do not, solely because of the fortuities that determine the progress of their cases from initial investigation and arrest to final judgment. The resulting incongruities must be balanced against the impetus the technique provides for the implementation of long overdue reforms, which otherwise could not be practicably effected. Thus, raising the stector of potential anomalies does not further the difficult decision of selecting the precise event that should determine the prospective application of a newly formulated constitutional principle.
9
Once the need is established for applying the principle prospectively, as the Supreme Court of New Jersey has pointed out, 'there is a large measure of judicial discretion involved in deciding * * * the time from which the new principle is to be deemed controlling.' State v. Vigliano, 50 N.J. 51, 65—66, 232 A.2d 129, 137 (1967). In our more recent decisions in this area, we have regarded as determinative the moment at which the discarded standards were first relied upon.
10
See e.g., Desist v. United States, supra; Stovall v. Denno, supra. The point of reliance is critical, not because of any constitutional compulsion, but because it determines the impact that newly articulated constitutional principles will have upon convictions obtained pursuant to investigatory and prosecutorial practices not previously proscribed. See Johnson v. New Jersey, supra, 384 U.S. at 733, 86 S.Ct. at 16 L.Ed.2d 882. See generally Schaefer, The Control of 'Sunbursts': Techniques of Prospective Overruling, 42 N.Y.U.L.Rev. 631 (1967).7
11
In Johnson, after considering the need to avoid unreasonably disrupting the administration of our criminal laws, we selected the commencement of trial as determinative. We of course could have applied Miranda to all judgments not yet final, although they were obtained in good-faith reliance upon constitutional standards then applicable. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731 (1965). As we pointed out, however, that choice 'would (have) impose(d) an unjustifiable burden on the administration of justice.' 384 U.S., at 733, 86 S.Ct., at 1781. On the other han, we could have adopted the approach we took in Stovall and Desist and made the point of initial reliance, the moment the defendant is interrogated, the operative event. See Schaefer, supra, at 646. But in an effort to extend the protection of Miranda to as many defendants as was consistent with society's legitimate concern that convictions already validly obtained not be needlessly aborted, we selected the commencement of the trial. Implicit in this choice was the assumption that, with few exceptions, the commission and investigation of a crime would be sufficiently proximate to the commencement of the defendant's trial that no undue burden would be imposed upon prosecuting authorities by requiring them to find evidentiary substitutes for statements obtained in violation of the constitutional protections afforded by Miranda.
12
This same concern for the justifiable reliance of law enforcement officials upon pre-Miranda standards militates against applying Miranda to retrials, which would place a much heavier burden upon prosecutors to compensate for the inadmissibility of incriminating statements obtained and admitted into evidence pursuant to practices not previously proscribed. See, e.g., State v. Vigliano, supra; People v. Sayers, 22 N.Y.2d 571, 240 N.E.2d 540 (1968); Comment, The Applicability of Miranda to Retrials, 116 U.Pa.L.Rev. 316, 324—325 (1967). As we stated in Stovall, '(I)nquiry would be handicapped by the unavailability of witnesses and dim memories.' 388 U.S., at 300, 87 S.Ct., at 1971. The burden would be particularly onerous where an investigation was closed years prior to a retrial because law enforcement officials relied in good faith upon a strongly incriminating statement, admissible at the first trial, to provide the cornerstone of the prosecution's case.8 Moreover, we cannot assume that applying Miranda to retrials would affect only a small number of cases. It could, for example, render significantly more difficult the prosecutions of defendants, some of whom may have been convicted many years ago, who are afforded retrials because their convictions were obtained in violation of recently articulated constitutional principles that are fully retroactive. See, e.g., Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969); Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). Such a decision could also pose a serious obstacle to the successful prosecution of an undetermined number of defendants whose pre-Miranda convictions are reversed because of errors under federal or state law that do not even constitute constitutional violations.9
13
In determining how much weight to give the increased evidentiary burden that would result if we were to insist that Miranda be applied to retrials, we must consider society's interest in the effective prosecution of criminals in light of the protection our pre-Miranda standards afford criminal defendants. As we pointed out in Johnson, an individual who cannot claim the benefits of Miranda may still resort to whatever state and federal procedures are available to insure that statements admitted against him were made voluntarily. Moreover, he may invoke a 'substantive test of voluntariness which, because of the persistence of abusive practices, has become increasingy meticulous * * *, (taking) specific account of the failure to advise the accused of his privilege against self-incrimination or to allow him access to outside assistance.' 384 U.S., at 730, 86 S.Ct., at 1779. As a result, not applying Miranda to retrials will not preclude the invocation of 'the same safeguards as part of an involuntariness claim.' Ibid. Thus, because of the increased evidentiary burden that would be placed unreasonably upon law enforcement officials by insisting that Miranda be applied to retrials, and for all the reasons we gave in Johnson for not applying Miranda retroactively, we hold that Miranda does not apply to any retrial10 of a defendant whose first trial commenced prior to June 13, 1966.
14
Accordingly, the judgment of the Supreme Court of Delaware is affirmed.
15
Affirmed.
16
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissents for the reasons stated in his dissenting opinions in Linkletter v. Walker, 381 U.S. 618, 640, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601, and Johnson v. New Jersey, 384 U.S. 719, 736, 86 S.Ct. 1772, 1782, 16 L.Ed.2d 882.
17
Mr. Justice HARLAN, dissenting.
18
As one who has never agreed with the Miranda case but nonetheless felt bound by it,* I now find myself in the uncomfortable position of having to dissent from a holding which actually serves to curtail the impact of that decision.
19
I feel compelled to dissent because I consider that the new 'retroactivity' ruling which the Court makes today is indefensible. Were I free to do so, I would hold that this petitioner is entitled to the benefits of Miranda, this case being before us on direct review and being one which had not become final prior to the decision of Miranda. See my dissenting opinion in Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1038, 22 L.Ed.2d 248 (1969); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). But since as to the retroactivity issue I am also bound by Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), I must judge that issue within the confines of Johnson, which does not appear to have been overruled by what was done in Desist v. United States, supra.
20
In the Johnson case we held that the 'guidelines' of Miranda should apply to all 'persons whose trials had not begun as of June 13, 1966,' 384 U.S., at 734, 86 S.Ct., at 1781, the date on which Miranda was handed down. Today, however, the Court holds that Miranda does not apply to persons whose retrials have commenced after that date, if the original trial had begun before Miranda was decided. I find it quite impossible to discern in the rationale of Johnson any solid basis for the distinction now drawn.
21
The Court states that the retroactivity rule adopted in Johnson was 'an effort to extend the protection of Miranda to as many defendants as was consistent with society's legitimate concern that convictions already validly obtained not be needlessly aborted.' Ante, at 219. I too believe that a desire not to interfere with trials which were concluded or already under way at the time of Miranda lay at the core of what was done in Johnson. See 384 U.S., at 732—3 5, 86 S.Ct., at 1780—1782. But that rationale would seem to require application of Miranda to subsequent retrials, rather than the contrary result mandated by the Court. When a defendant has had his pre-Miranda conviction set aside on other than Miranda grounds and is being retried, there is by hypothesis no 'conviction * * * validly obtained' which might be 'needlessly aborted' by application of the Miranda standards. There is no ongoing trial in which the prosecution's strategy might have been premised on pre-Miranda confession rules.
22
I am also left wholly unpersuaded by the Court's statement that application of Miranda to retrials would impose an intolerable 'evidentiary burden' on prosecutors, for the Court ignores the fact that Miranda will impose a very similar burden whenever a defendant's first trial has for one reason or another been substantially delayed and its commencement carried beyond the Johnson cut-off date.
23
Apart from the two propositions just discussed, the Court offers nothing in justification of its trial-retrial distinction beyond the general observation that the retroactivity 'technique' necessarily entails 'incongruities' which must be tolerated because of 'the impetus the technique provides for the implementation of long overdue reforms, which otherwise could not be practicably effected.' Ante, at 218. But surely it is incumbent upon this Court to endeavor to keep such incongruities to a minimum. This in my opinion can only be done by turning our backs on the AD HOC approach that has so far characterized our decisions in the retroactivity field and proceeding to administer the doctrine on principle. See my dissenting opinion in Desist, supra. What is done today leads me again, see ibid., to urge that the time has come for us to take a fresh look at the whole problem of retroactivity.
24
I would reverse the judgment of the Supreme Court of Delaware. It would be less than frank were I not to say that I cast this vote with reluctance, feeling as I do about the unsoundness of Miranda.
1
The word 'retrial' is used in this opinion to refer onl to a subsequent trial of a defendant whose original trial for the same conduct commenced prior to June 13, 1966, the day on which Miranda was announced.
2
Petitioner's remaining contentions have been adequately resolved by the court below. See Jenkins v. State, 230 A.2d 262 (1967), and Jenkins v. State, 240 A.2d 146 (1968).
3
At least eight States, including Delaware, decline to apply Miranda to post-Miranda retrials of cases originally tried prior to that decision. See People v. Worley, 37 Ill.2d 439, 227 N.E.2d 746 (1967) (dictum); Boone v. State, 3 Md.App. 11, 237 A.2d 787 (Md.Ct.Sp.App.) (dictum), cert. to Md.Ct.App. denied, 393 U.S. 872, 89 S.Ct. 161, 21 L.Ed.2d 141 (1968); Chapman v. State, 282 Minn. 13, 162 N.W.2d 698 (1968); State v. Vigliano, 50 N.J. 51, 232 A.2d 129 (1967) (dictum); People v. Sayers, 22 N.Y.2d 571, 240 N.E.2d 540 (1968); State v. Lewis, 274 N.C. 438, 164 S.E.2d 177 (1968) (dictum); Murphy v. State, 221 Tenn. 351, 426 S.W.2d 509 (1968).
At least nine other States have indicated in dicta that Miranda should be applied to such retrials. See Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968); State v. Brock, 101 Ariz. 168, 416 P.2d 601 (1966); People v. Doherty, 67 Cal.2d 9, 59 Cal.Rptr. 857, 429 P.2d 177 (1967); State v. Ruiz, 49 Haw. 504, 421 P.2d 305 (1966); Dell v. State, 249 Ind. 231, 231 N.E.2d 522 (1967); State v. McCarther, 197 Kan. 279, 416 P.2d 290 (1966); Creech v. Commonwealth, 412 S.W.2d 245 (Ct.App.Ky.1967); State v. Shoffner, 31 Wis.2d 412, 143 N.W.2d 458 (1966). In State v. Bradshaw, 101 R.I. 233, 237, n. 1, 221 A.2d 815, 817, n. 1 (1966), the court expressly declined to pass on the issue in an opinion reversing a conviction on other grounds, but it nevertheless suggested that under Johnson the defendant's statement might not be admissible at his retrial.
The United States Court of Appeals for the Seventh Circuit has held Miranda applicable, United States v. Phillips, 401 F.2d 301 (C.A.7th Cir. 1968); and that holding is supported by dicta in at least three other circuits. See United States ex rel. Walker v. Young, 388 F.2d 675 (C.A.9th Cir. 1968); Government of Virgin Islands v. Lovell, 378 F.2d 799, 802, n. 4 (C.A.3d Cir. 1967); Gibson v. United States, 363 F2 d 146 (C.A.5th Cir. 1966). Without discussion, the Fourth Circuit appears to have reached a contrary result by implication. Moorer v. South Carolina, 368 F.2d 458 C.A.4th Cir. 1966).
4
E.g., United States v. Phillips, supra; People v. Doherty, supra.
5
E.g., People v. Worley, supra; State v. Vigliano, supra.
6
E.g., Smith v. State, supra; People v. Worley, supra; People v. Sayers, supra; Comment, The Applicability of Miranda to Retrials, 116 U.Pa.L.Rev. 316, 320 (1967); Comment, Post-Miranda Retrials of Pre-Miranda Defendants, 25 Wash. & Lee L.Rev. 108, 109 (1968).
7
Our initial approach to prospective decision-making has undergone some modification. Compare Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), with Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030 (1969). With Johnson we began placing increasing emphasis upon the point at which law enforcement officials relied upon practices not yet proscribed; and, more recently, we have selected the point of initial reliance. See, e.g., Desist v. United States, supra; Stovall v. Denno, supra. In addition to being more consistent with the fundamental justification for not applying newly enunciated constitutional principles retroactively, this latest approach has obviated at least one administrative problem, the treatment of retrials. Our experience, therefore, has confirmed Mr. Justice Schaefer's observation: 'Sound growth can be promoted and erratic results avoided by focusing attention on the element of reliance that justifies the technique. Even when that is done there will not always be agreement as to the quality or degree of reliance that justifies a particular prospective limitation. But the area of disaffection will be narrowed if time before and time after are measured from the moment of reliance.' Schaefer, The Control of 'Sunbursts': Techniques of Prospective Overruling, 42 N.Y.U.L.Rev. 631, 646 (1967).
8
In one recent case, for example, in which the court refused to apply Miranda to the defendant's retrial, it noted: 'The investigation of this brutal assault and the interrogation of defendant began in January 1955—more than 12 years previous to this retrial. The evidence is clear that in 1955 defendant was warned of his constitutional rights in accordance with the requirements then prevailing.' State v. Lewis, 1 N.C.App. 296, 297 298, 161 S.E.2d 497, 499 (1968).
9
See, e.g., United States v. Phillips, supra (discretion abused by admitting unduly 'prejudicial' evidence); State v. Ruiz, supra ('plain error' in trial court's fact finding); Boone v. State, supra (insufficient corroboration of accomplice's testimony).
*
See my dissenting opinion in Miranda v. Arizona, 384 U.S. 436, 504, 86 S.Ct. 1602, 1643, 16 L.Ed.2d 694 (1966), and my concurring opinion in Orozco v. Texas, 394 U.S. 324, 327, 89 S.Ct. 1095, 1097, 22 L.Ed.2d 311 (1969).
10
For purposes of this holding, it is immaterial whether state law treats a retrial as the continuation of the original trial, see, e.g., People v. Worley, supra, or as a completely new trial that proceeds as if the former trial never occurred. See, e.g., State v. Brock, supra. What is determinative is that the defendant is being tried for the same conduct that was the subject of a previously reversed conviction. A State is free, of course, for any reason it finds persuasive, to apply Miranda to a subsequent trial of a defendant whose original trial commenced prior to that decision. See Johnson v. New Jersey, supra, at 733, 86 S.Ct., at 1781.
| 01
|
395 U.S. 327
89 S.Ct. 1715
23 L.Ed.2d 340
Adolpho RODRIQUEZ, Petitioner,v.UNITED STATES.
No. 749.
Argued March 26, 1969.
Decided June 2, 1969.
William R. Wallace, San Francisco, Cal., for petitioner.
Beatrice Rosenberg, Washington, D.C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Petitioner brought this suit for post-conviction relief under 28 U.S.C. § 2255, alleging that after his conviction on several narcotics charges he had been improperly denied his right to appeal. Petitioner was sentenced to 11 concurrent 20-year terms on June 20, 1963. Immediately after the sentencing, petitioner's retained counsel attempted to make a motion requesting leave for petitioner to proceed in forma pauperis. The trial judge cut petitioner's counsel off, saying that all motions had to be in writing. Without making any further inquiry, he adjourned the court. No written motions were ever filed, and petitioner's counsel did not submit a notice of appeal within the 10-day period specified by the applicable rule.1 On August 7, 1963, after the time had expired, petitioner attempted to file a notice of appeal himself. He declared that an oral notice had been given at trial. The trial judge ruled that the expiration of the appeal period deprived the court of jurisdit ion. Petitioner then sought relief in the Court of Appeals for the Ninth Circuit. He alleged that he had told his counsel to perfect an appeal, but that counsel had failed to do so. The Ninth Circuit denied petitioner's motion for lack of jurisdiction, citing United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). It also refused habeas corpus.
2
This action was commenced on February 15, 1966. Petitioner alleged that he was of Mexican descent and that his knowledge of English was limited. He further contended that his retained counsel had fraudulently deprived him of his right to appeal. He asked that his conviction be set aside and that he be resentenced so that he could properly take an appeal. The District Court for the Northern District of California denied petitioner's application and the Ninth Circuit affirmed. 387 F.2d 117 (1967). Both courts relied on a Ninth Circuit rule requiring applicants in petitioner's position to disclose what errors they would raise on appeal and to demonstrate that denial of an appeal had caused prejudice. We granted certiorari to resolve a conflict among the circuits about the propriety of such a requirement.2 393 U.S. 951, 89 S.Ct. 380, 21 L.Ed.2d 362 (1968). We reverse.
I.
3
As this Court has noted before, '(p)resent federal law has made an appeal from a District Court's judgment of conviction in a criminal case what is, in effect, a matter of right.' Coppedge v. United States, 369 U.S. 438, 441, 82 S.Ct. 917, 919, 8 L.Ed.2d 21 (1962). The Ninth Circuit seems to require an applicant under 28 U.S.C. § 2255 to show more than a simple deprivation of this right before relief can be accorded. It also requires him to show some likelihood of success on appeal; if the applicant is unlikely to succeed, the Ninth Circuit would characterize any denial of the right to appeal as a species of harmless error. We cannot subscribe to this approach.
4
Applicants for relief under § 2255 must, if indigent, prepare their petitions without the assistance of counsel. See Johnson v. Avery, 393 U.S. 483, 487—488, 89 S.Ct. 747, 749—750, 21 L.Ed.2d 718 (1969). Those whose education has been limited and those, like petitioner, who lack facility in the English language might have grave difficulty in making even a summary statement of points to be raised on appeal. Moreover, they may not even be aware of errors which occurred at trial. They would thus be deprived of their only chance to take an appeal even though they have never had the assistance of counsel in preparing one. Like the approach rejected long ago in Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), the Ninth Circuit's requirement makes an indigent defendant face 'the danger of conviction because he does not know how to establish his innocence.' Moreover, the Ninth Circuit rule would require the sentencing court to screen out sp posedly unmeritorious appeals in ways this Court rejected in Coppedge. Those whose right to appeal has been frustrated should be treated exactly like any other appellants; they should not be given an additional hurdle to clear just because their rights were violated at some earlier stage in the proceedings. Accordingly, we hold that the courts below erred in rejecting petitioner's application for relief because of his failure to specify the points he would raise were his right to appeal reinstated.
II.
5
The Government, while not arguing that the courts below properly denied relief on the pleadings, urges us to remand this case for a truncated factual hearing. Drawing upon this Court's recognition in Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962), that the hearing requirement of § 2255 'does not strip the district courts of all discretion to exercise their common sense,' the Government suggests that the District Court be instructed to obtain an affidavit from petitioner's trial attorney explaining why no notice of appeal was filed. This explanation, together with petitioner's allegations, would be used to judge the propriety of a hearing.
6
This issue was not present in this case when certiorari was granted and we do not think it is present now. For we think it 'just under the circumstances,' 28 U.S.C. § 2106, for us to dispose of petitioner's arguments finally at this stage. Six years have now elapsed since petitioner was sentenced, and we do not see how further delay and further prolonged proceedings would serve the cause of justice. Moreover, it appears from the trial transcript in this case that the trial judge erroneously failed to advise petitioner of his right to appeal. At the time of trial, Fed.Rule Crim.Proc. 37(a)(2) required the sentencing judge to inform unrepresented defendants of their right to appeal; the clerk upon request was required to file a notice of appeal for the defendant.3 Counsel's attempt to obtain leave for petitioner to proceed in forma pauperis should have put the trial judge on notice that petitioner would be unrepresented in the future. Moreover, unless an appeal was contemplated, there would be no reason to make such a motion. As the trial judge should have recognized, petitioner was therefore precisely the kind of defendant who needed the protection afforded by the rule. Had he known that the clerk would file a notice of appeal for him, he could easily have avoided the difficulties he has faced. At the very least, the trial judge should have inquired into the circumstances surrounding the attempt to make the in forma pauperis motion. His failure to do so effectively deprived petitioner of his right to appeal. Since this deprivation appears on the record before us, we see no need for any factual determinations on remand. Cf. United States v. Smith, 387 F.2d 268 (C.A.6th Cir. 1967).
7
The judgment is reversed and the case is remanded to the District Court where petitioner should be resentenced so that he may perfect an appeal in the manner prescribed by the applicable rules. It is so ordered.
8
Reversed and remanded.
9
Mr. Justice HARLAN, concurring in part and dissenting in part.
10
I agree with Part I of the Court's opinion, but cannot subscribe to Part II, in which the Court reinstates petitioner's right to appeal without further proceedings below. In taking this course I think the Court has been too insensitive to what, on this record, is due the trial judge, petitioner's trial counsel, and the orderly administration of the criminal process.
11
In my opinion, this record does not show that petitioner was wrongfully denied an opportunity to appeal. It appears from the record that immediately following petitioner's sentencing his lawyer indicated orally that petitioner wished to appeal in forma pauperis, and that the judge informed the lawyer that 'all motions' had to be made in writing. Thereafter no written notice of appeal was filed within the 10-day limit. Petitioner further alleges that he told his counsel to perfect an appeal and that counsel neglected to do so, but those allegations have never been tested by the adversary process.
12
The Court undertakes to justify its decision not to require a hearing and findings on this score by characterizing as 'error' the sentencing judge's failure 'to advise petitioner of his right to appeal,' as then supposedly required by Fed.Rule Crim.Proc. 37(a)(2), and by concluding that it is 'just under the circumstances,' 28 U.S.C. § 2106, to dispose of the case at this level. See ante, at 331-332.
13
Although I share the Court's concern that petitioner receive promptly all relief which is legally due him, I am unable to accept either this attribution of 'error' to the trial judge or this bypassing of established methods for determining the truth of factual allegations. At the time petitioner was sentenced, Rule 37(a)(2) required that a sentencing judge advise only 'a defendant not represented by counsel' of his right to appeal.1 (Emphasis supplied.) In this instance, petitioner was represented by retained counsel both at trial and at sentencing. The excerpts from the trial transcript upon which the Court relies contain nothing at all to rebut the natural inference, apparently drawn by the sentencing judge, that petitioner's counsel would continue to represent him at least for the purpose of filing a notice of appeal. Indeed, petitioner's own statement of the facts reveals that this inference was wholly justified, for petitioner asserts that after his sentencing 'his counsel advised both him and his wife that he would arrange for their appeals.'2 Thus, even if it is assumed that 'the trial judge should have inquired into the circumstances surrounding the attempt to make the in forma pauperis motion,' ante, at 332, the judge's omission was surely at most harmless error.
14
I would therefore remand the case to the District Court, so that it may be determined whether petitioner in fact did instruct his attorney to perfect an appeal and whether the attorney in fact neglected to do so. This course seems to me to be required both in the interest of orderly procedure and in fairness to petitioner's trial attorney.
15
Furthermore, as suggested by the Government, I would permit the District Court discretion to begin by obtaining an affidavit from petitioner's attorney in response to petitioner's allegations. Who known whether the attorney may not have in his possession documentary evidence conclusively showing the allegations to be unfounded? Or who knows whether the attorney may not wish to concede the accuracy of the allegations? In either case, the affidavit procedure might obviate the necessity for a full-blown hearing. If the attorney has no documentary evidence, and if his affidavit reveals a factual controversy, then of course a hearing would be required. Such a procedure entirely fits the language of 28 U.S.C. § 2255 and this Court's statement in Machibroda v. United States, 368 U.. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), that § 2255 'does not strip the district courts of all discretion to exercise their common sense.'
1
Fed.Rule Crim.Proc. 37(a), now Fed.Rule App.Proc. 4(b).
2
The Ninth Circuit rule originated in two 1964 decisions, Wilson v. United States, 338 F.2d 54, and Miller v. United States, 339 F.2d 581. Cf. McGarry v. Fogliani, 370 F.2d 42 (C.A.9th Cir. 1966). The First Circuit has adopted an intermediate position; the defendant is not required to show plain reversible error in his application, but the Government may defeat relief by showing that an appeal would be futile. Desmond v. United States, 333 F.2d 378 (1964). Both petitioner and the Government attempt to find support in the position of the Tenth Circuit. Hannigan v. United States, 341 F.2d 587 (1965). The Fifth, Sixth, Seventh, Eighth, and District of Columbia Circuits do not require any showing about the issues to be raised on appeal. Camp v. United States, 352 F.2d 800 (C.A.5th Cir. 1965); United States v. Smith, 387 F.2d 268 (C.A.6th Cir. 1967); Calland v. United States, 323 F.2d 405 (C.A.7th Cir. 1963); Williams v. United States, 402 F.2d 548 (C.A.8th Cir. 1968); Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (1965).
3
Rule 37(a)(2) provided:
'When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant.'
This provision has since been transferred to Rule 32(a)(2). It now applies to defendants going to trial on a plea of not guilty, whether or not they are represented by counsel. The problem of determining whether to give notice to a person represented at trial, but who may not be represented on appeal, will therefore not recur.
1
This provision was subsequently amendmed to require that the judge so advise all defendants, whether or not represented by counsel. See ante, at 331, n. 3. See also Peoples v. United States, 337 F.2d 91 (C.A.10th Cir. 1964); Calland v. United States, 323 F.2d 405 (C.A.7th Cir. 1963); Boruff v. United States, 310 F.2d 918 (C.A.5th Cir. 1962).
2
Brief for Petitioner 6.
| 01
|
395 U.S. 258
89 S.Ct. 1683
23 L.Ed.2d 291
James F. O'CALLAHAN, Petitioner,v.J. J. PARKER, Warden.
No. 646.
Argued Jan. 23, 1969.
Decided June 2, 1969.
Victor Rabinowitz, New York City, for petitioner.
James van R. Springer, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner, then a sergeant in the United States Army, was stationed in July 1956, at Fort Shafter, Oahu, in the Territory of Hawaii. On the night of July 20, while on an evening pass, petitioner and a friend left the post dressed in civilian clothes and went into Honolulu. After a few beers in the bar of a hotel, petitioner entered the residential part of the hotel where he broke into the room of a young girl and assaulted and attempted to rape her. While fleeing from her room onto Waikiki Beach, he was apprehended by a hotel security officer who delivered him to the Honolulu city police for questioning. After determining that he was a member of the Armed Forces, the city police delivered petitioner to the military police. After extensive interrogation, petitioner confessed and was placed in military confinement.
2
Petitioner was charged with attempted rape, housebreaking, and assault with intent to rape, in violation of Articles 80, 130, and 134 of the Uniform Code of Military Justice.1 He was tried by court-martial, convicted on all counts, and given a sentence of 10 years' imprisonment at hard labor, forfeiture of all pay and allowances, and dishonorable discharge. His conviction was affirmed by the Army Board of Review and, subsequently, by the United States Court of Military Appeals.
3
Under confinement at the United States Penitentiary at Lewisburg, Pennsylvania, petitioner filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania, alleging, inter alia, that the court-martial was without jurisdiction to try him for nonmilitary offenses committed off-post while on an evening pass. The District Court denied relief without considering the issue on the merits, and the Court of Appeals for the Third Circuit affirmed. This Court granted certiorari limited to the question:
4
'Does a court-martial, held under the Articles of War, Tit. 10, U.S.C. § 801 et seq., have jurisdiction to try a member of the Armed Forces who is charged with commission of a crime cognizable in a civilian court and having no military significance, alleged to have been committed off-post and while on leave, thus depriving him of his constitutional rights to indictment by a grand jury and trial by a petit jury in a civilian court?' 393 U.S. 822, 89 S.Ct. 177, 21 L.Ed.2d 93.
5
The Constitution gives Congress power to 'make Rules for the Government and Regulation of the land and naval Forces,' Art. I § 88 cl. 14, and it recognizes that the exigencies of military discipline require the existence of a special system of military courts in which not all of the specific procedural protections deemed essential in Art. III trials need apply. The Fifth Amendment specifically exempts 'cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger' from the requirement of prosecution by indictment and from the right to trial by jury. (Emphasis supplied.) See Ex parte Quirin, 317 U.S. 1, 40, 63 S.Ct. 2, 16, 87 L.Ed. 3. The result has been the establishment and development of a system of military justice with fundamental differences from the practices in the civilian courts.
6
If the case does not arise 'in the land or naval forces,' then the accused gets first, the benefit of an indictment by a grand jury and second, a trial by jury before a civilian court as guaranteed by the Sixth Amendment and by Art. III, § 2, of the Constitution which provides: in part:
7
'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; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.'
8
Those civil rights are the constitutional stakes in the present litigation. What we wrote in United States, ex rel. Toth v. Quarles, 350 U.S. 11, 17—18, 76 S.Ct. 1, 5—6, 100 L.Ed. 8, is worth emphasis:
9
'We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. For instance, the Constitution does not provide life tenure for those performing judicial functions in military trials. They are appointed by military commanders and may be removed at will. Nor does the Constitution protect their salaries as it does judicial salaries. Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.
10
'Moreover, there is a great difference between trial by jury and trial by selected members of the military forces. It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. But whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is inherent in the institution of trial by jury.'
11
A court-martial is tried, not by a jury of the defendant's peers which must decide unanimously, but by a panel of officers2 empowered to act by a two-thirds vote. The presiding officer at a court-martial is not a judge whose objectivity and independence are protected by tenure and undiminishable salary and nurtured by the judicial tradition, but is a military law officer.3 Substantially different rules of evidence and procedure apply in military trials.4 Apart from those differences, the suggestion of the possibility of influence on the actions of the court-martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct command authority over its members is a pervasive one in military law, despite strenuous efforts to eliminate the danger.5
12
A court-martial is not yet an independent instrument of justice but remains to a significant degree a specialized part of the overall mechanism by which military discipline is preserved.6
13
That a system of specialized military courts, proceeding by practices different from those obtaining in the regular courts and in general less favorable to defendants, is necessary to an effective national defense establishment, few would deny. But the justification for such a system rests on the special needs of the military, and history teaches that expansion of military discipline beyond its proper domain carries with it a threat to liberty. This Court, mindful of the genuine need for special military courts, has recognized their propriety in their appropriate sphere, e.g., Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508, but in examining the reach of their jurisdiction, it has recognized that
14
'There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. * * *
15
'Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to 'the least possible power adequate to the end proposed." United States ex rel. Toth v. Quarles, 350 U.S. 11, 22—23, 76 S.Ct. 1, 8, 100 L.Ed. 8.
16
While the Court of Military Appeals takes cognizance of some constitutional rights of the accused who are court-martialed, courts-martial as an institution are singularly inept in dealing with the nice subleties of constitutional law. Article 134, already quoted, punishes as a crime 'all disorders and neglects to the prejudice of good order and discipline in the armed forces.' Does this satisfy the standards of vaguencess as developed by the civil courts? It is not enough to say that a court-martial may be reversed on appeal. One of the benefits of a civilian trial is that the trap of Article 134 may be avoided by a declaratory judgment proceeding or otherwise. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. A civilian trial, in other words, is held in an atmosphere conducive to the protection of individual rights, while a military trial is marked by the age-old manifest destiny of retributive justice.7
17
As recently stated: 'None of the travesties of justice perpetrated under the UCMJ is really very surprising, for military law has always been and continues to be primarily an instrument of discipline, not justice.' Glasser, Justice and Captain Levy, 12 Columbia Forum 46, 49 (1969).
18
The mere fact that petitioner was at the time of his offense and of his court-martial on active duty in the Armed Forces does not automatically dispose of this case under our prior decisions.
19
We have held in a series of decisions that court-martial jurisdiction cannot be extended to reach any person not a member of the Armed Forces at the times of both the offense and the trial. Thus, discharged soldiers cannot be court-martialed for offenses committed while in service. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8. Similarly, neither civilian employees of the Armed Forces overseas, McElroy v. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282; Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279; nor civilian dependents of military personnel accompanying them overseas, Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268; Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, may be tried by court-martial.
20
These cases decide that courts-martial have no jurisdiction to try those who are not members of the Armed Forces, no matter how intimate the connection between their offense and the concerns of military discipline. From these cases, the Government invites us to draw the conclusion that once it is established that the accused is a member of the Armed Forces, lack of relationship between the offense and identifiable military interests is irrelevant to the jurisdiction of a court-martial.
21
The fact that courts-martial have no jurisdiction over nonsoldiers, whatever their offense, does not necessarily imply that they have unlimited jurisdiction over soldiers, regardless of the nature of the offenses charged. Nor do the cases of this Court suggest any such interpretation. The Government emphasizes that these decisions—especially Kinsella v. Singleton—establish that liability to trial by court-martial is a question of 'status' 'whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term 'land and naval Forces." 361 U.S., at 241, 80 S.Ct., at 301. But that is merely the beginning of the inquiry, not its end. 'Status' is necessary for jurisdiction; but it does not follow that ascertainment of 'status' completes the inquiry, regardless of the nature, time, and place of the offense.
22
Both in England prior to the American Revolution and in our own national history military trial of soldiers committing civilian offenses has been viewed with suspicion.8 Abuses of the court-martial power were an important grievance of the parliamentary forces in the English constitutional crises of the 17th century. The resolution of that conflict came with the acceptance by William and Mary of the Bill of Rights in 1689 which established that in the future, Parliament, not the Crown, would have the power to define the jurisdiction of courts-martial. 1 W. & M., Sess. 2, c. 2. The 17th century conflict over the proper role of courts-martial in the enforcement of the domestic criminal law was not, however, merely a dispute over what organ of government had jurisdiction. It also involved substantive disapproval of the general use of military courts for trial of ordinary crimes.9
23
Parliament, possessed at last of final power in the matter, was quick to authorize, subject to annual renewal, maintenance of a standing army and to give authority for trial by court-martial of certain crimes closely related to military discipline. But Parliament's new power over courts-martial was exercised only very sparingly to ordain military jurisdiction over acts which were also offenses at common law. The first of the annual mutiny acts, 1 W. & M., c. 5, set the tone. It established the general rule that
24
'noe Man may be forejudged of Life or Limbe, or subjected to any kinde of punishment by Martiall Law or in any other manner than by the Judgment of his Peeres and according to the knowne and Established Laws of this Realme.'
25
And it proceeded to grant courts—martial jurisdiction only over mutiny, sedition, and desertion. In all other respects, military personnel were to be subject other manner than by the Judgment of
26
The jurisdiction of British courts-martial over military offenses which were also common-law felonies was from time to time extended,10 but, with the exception of one year,11 there was never any general military jurisdiction to try soldiers for ordinary crimes committed in the British Isles. It was, therefore, the rule in Britain at the time of the American Revolution that a soldier could not be tried by court-martial for a civilian offense committed in Britain; instead military officers were required to use their energies and office to insure that the accused soldier would be tried before a civil court.12 Evasion and erosion of the principle that crimes committed by soldiers should be tried according to regular judicial procedure in civil, not military, courts, if any were available, were among the grievances protested by the American Colonists.13
27
Early American practice followed the British model.14 The Continental Congress, in enacting articles of war in 1776, emphasized the importance of military authority cooperating to insure that soldiers who commt ted crimes were brought to justice. But it is clear from the context of the provision it enacted that it expected the trials would be in civil courts.15 The 'general article,' which punished '(a)ll crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war,' was interpreted to embrace only crimes the commission of which had some direct impact on military discipline. Winthrop *1123. While practice was not altogether consistent, during the 19th century court-martial convictions for ordinary civil crimes were from time to time set aside by the reviewing authority on the ground that the charges recited only a violation of the general criminal law and failed to state a military offense. Id., *1124, nn. 82, 88.16
28
During the Civil War, Congress provided for military trial of certain civil offenses17 without regard to their effect on order and discipline, but the act applied only 'in time of war, insurrection, or rebellion.' Act of Mar. 3, 1863, c. 75, § 30, 12 Stat. 736; Rev.Stat. § 1342, Art. 58 (1874). In 1916, on the eve of World War I, the Articles of War were revised, 39 Stat. 650, to provide for military trial, even in peacetime, of certain specific civilian crimes committed by persons 'subject to military law' and the general article, Art. 96, was modified to provide for military trial of 'all crimes or offenses not capital.' In 1950, the Uniform Code of Military Justice extended military jurisdiction to capital crimes as well.
29
We have concluded that the crime to be under military jurisdiction must be service connected, lest 'cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,'18 as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits on an indictment by a grand jury and a trial by a jury of his peers. The power of Congress to make 'Rules for the Government and Regulation of the land and naval Forces,' Art. I, § 8, cl. 14, need not be sparingly read in order to preserve those two important constitutional guarantees. For it is assumed that an express grant of general power to Congress is to be exercised in harmony with express guarantees of the Bill of Rights. We were advised on oral argument that Art. 134 is construed by the military to give it power to try a member of the armed services for income tax evasion. This article has been called 'a catch-all' that 'incorporates almost every Federal penal statute into the Uniform Code.' R. Everett, Military Justice in the Armed Forces of the United States 68—69 (1956). The catalogue of cases put within reach of the military is indeed long; and we see no way of saving to servicemen and servicewomen in any case the benefits of indictment and of trial by jury, if we conclude that this petitioner was properly tried by court-martial.
30
In the present case petitioner was properly absent from his military base when he committed the crimes with which he is charged. There was no connection—not even the remotest one—between his military duties and the crimes in question. The crimes were not committed on a military post or enclave; nor was the person whom he attacked performing any duties relating to the military. Moreover, Hawaii, the situs of the crime, is not an armed camp under military control, as are some of our far-flung outposts.
31
Finally, we deal with peacetime offenses, not with authority stemming from the war power. Civil courts were open The offenses were committed within our territorial limits, not in the occupied zone of a foreign country. The offenses did not involve any question of the flouting of military authority, the security of a military post, or the integrity of military property.19
32
We have accordingly decided that since petitioner's crimes were not service connected, he could not be tried by court-martial but rather was entitled to trial by the civilian courts.
33
Reversed.
34
Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
35
I consider that the terms of the Constitution and the precedents in this Court point clearly to sustaining court-martial jurisdiction in this instance. The Court's largely one-sided discussion of the competing individual and governmental interests at stake, and its reliance upon what are at best wholly inconclusive historical data, fall far short of supporting the contrary conclusion which the majority has reached. In sum, I think that the Court has grasped for itself the making of a determination which the Constitution has placed in the hands of the Congress, and that in so doing the Court has thrown the law in this realm into a demoralizing state of uncertainty. I must dissent.
I.
36
My starting point is the language of Art. I, § 8, cl. 14, of the Constitution, which empowers the Congress '(t)o make Rules for the Government and Regulation of the land and naval Forces,' and the Fifth Amendment's correlative exception for 'cases arising in the land or naval forces.'
37
Writing for a plurality of the Court in Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), Mr. Justice Black explained that if the 'language of Clause 14 is given its natural meaning * * * (t)he term 'land and naval Forces' refers to persons who are members of the armed services * * *,' id., at 19—20, 77 S.Ct. at 1232, and that accordingly the Fifth Amendment's exception encompasses persons "in' the armed services.' Id., at 22 23, 77 S.Ct. at 1233. In Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960), again looking to the constitutional language, the Court noted that 'military jurisdiction has always been based on the 'status' of the accused, rather than on the nature of the offense,' id., at 243, 80 S.Ct. at 302, that is, whether the accused 'is a person who can be regarded as falling within the term 'land and naval Forces." Id., at 241, 80 S.Ct. at 301.
38
In these cases and many others, Ex parte Milligan, 4 Wall. 2, 123, 18 L.Ed. 281 (1866); Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118 (1879); Smith v. Whitney, 116 U.S. 167, 184—185, 6 S.Ct. 570, 579, 29 L.Ed. 601 (1886); Johnson v. Sayre, 158 U.S. 109, 114, 15 S.Ct. 773, 775, 39 L.Ed. 914 (1895); Grafton v. United States, 206 U.S. 333, 348, 27 S.Ct. 749, 752, 51 L.Ed. 1084 (1907), this Court has consistently asserted that military 'status' is necessary and sufficient condition for the exercise of court-martial jurisdiction. The Court has never previously questioned what the language of Clause 14 would seem to make plain—that, given the requisite military status, it is for Congress and not the Judiciary to determine the appropriate subject-matter jurisdiction of courts-martial. See Coleman v. Tennessee, supra, at 514.
II.
39
English constitutional history provides scant support for the Court's novel interpretation of Clause 14, and the pertinent American history proves, if anything, quite the contrary.
40
The English history on which the majority relies reveals a long-standing and multifaceted struggle for power between the military and the Crown, on the one hand, and Parliament on the other, which focused, inter alia, on the King's asserted independent prerogative to try soldiers by court-martial in time of peace. See generally J. Tanner, English Constitutional Conflicts of the Seventeenth Century (1961). The martial law of the time was, moreover, arbitrary, and alien to established legal principles. See 1 W. Blackstone's Commentaries 413; M. Hale, History and Analysis of the Common Law in England 42 (6th ed. 1820). Thus, when, with the Glorious Revolution of 1688, Parliament gained exclusive authority to create peacetime court-martial jurisdiction, it exercised that authority sparingly: the early Mutiny Acts permitted trial by court-martial only for the crimes of mutiny, sedition, and desertion. E.g., Mutiny Act of 1689, 1 W. & M., Sess. 2, c. 4.
41
Parliament subsequently expanded the military's peacetime jurisdiction both abroad and at home. See Mutiny Act of 1712, 12 Anne, c. 13; Mutiny Act of 1803, 43 Geo. 3, c. 20. And, significantly, § 46 of the Mutiny Act of 1720, 7 Geo. 1, c. 6, authorized trial by court-martial for offenses of a nonmilitary nature, if the injured civilian made no request that the accused be tried in the civil courts. See F. Wiener, Civilians Under Military Justice 13 14, 245—246 (1967).1
42
The burden of English history was not lost on the Framers of our Constitution, who doubtless feared the Executive's assertion of an independent military authority unchecked by the people acting through the Legislature. Article 9, § 4, of the Articles of Confederation—from which Art. I, § 8, cl. 14, of the Constitution was taken2—was responsive to this apprehension:
43
'The United States in Congress assembled shall * * * have the sole and exclusive right and power of * * * making rules for the government and regulation of the * * * land and naval forces, and directing their operations.' (Emphasis added.)
44
But nothing in the debates over our Constitution indicates that the Congress was forever to be limited to the precise scope of court-martial jurisdiction existing in 17th century England. To the contrary, Alexander Hamilton stated that Congress' power to prescribe rules for the government of the armed forces 'ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the corresponding extent & variety of the means which may be necessary to satisfy them.' The Federalist, No. 23. (Emphasis omitted.) American exercise of court-martial jurisdiction prior to, and contemporaneous with, adoption of the Constitution lends no support to the Court's position. Military records between the endo f the War of Independence and the beginning of the War of 1812 show frequent instances of trials by court-martial, east of the frontier, for offenses against civilians and the civil laws, such as theft, assault, and killing livestock.3 Military authority to try soldiers for such offenses derived initially from the 'general article' of war, first enacted by the Continental Congress in 1775,4 and incorporated today in Art. 134, 10 U.S.C. § 934. W. Winthrop's Military Law and Precedents (2d ed. 1896), the leading 19th century treatise on military law, recognized that the general article encompassed crimes 'committed upon or against civilians * * * at or near a military camp or post,' id., at 724 (1920 reprint) (second emphasis added), and noted that even this limiting principle was not strictly observed. Id., at 725, 730 732. And in Grafton v. United States, 206 U.S. 333, 348, 27 S.Ct. 749, 752, 51 L.Ed. 1084 (1907), the Court held, with respect to the general article, that:
45
'The crimes referred to in that article manifestly embrace those not capital, committed by officers or soldiers of the Army in violation of public law as enforced by the civil power. No crimes committed by officers or soldiers of the Army are excepted by the * * * article from the jurisdiction thus conferred upon courts-martial, except those that are capital in their nature. * * * (T)he jurisdiction of general courts-martial (is) * * * concurrent with that of the civil courts.'5
46
Even if the practice of early American courts-martial had been otherwise, this would hardly lead to the conclusion that Congress lacked power to authorize military trials under the present circumstances. It cannot be seriously argued as a general matter that the constitutional limits of congressional power are coterminous with the extent of its exercise in the late 18th and early 19th centuries.6 And however restrictively the power to define court-martial jurisdiction may be construed, it would be patently wrong so to limit that power. The disciplinary requirements of today's armed force of over 3,000,000 men7 are manifestly different from those of the 718-man army8 in existence in 1789. Cf. The Federalist, No. 23, quoted, supra, at 277. By the same token, given an otherwise valid exercise of the Article I power, I can perceive no basis for judicial curtailment of court-martial jurisdiction as Congress has enacted it.
III.
47
In the light of the language and history of Art. 1, § 8, cl. 14, of the Constitution, and this Court's hitherto consistent interpretation of this provision, I do not believe that the resolution of the controversy before us calls for any balancing of interests. But if one does engage in a balancing process, one cannot fairly hope to come up with a meaningful answer unless the interests on both sides are fully explored. The Court does not do this. Rather, it chooses to ignore strong and legitimate governmental interests which support the exercise of court-martial jurisdiction even over 'nonmilitary' crimes.
48
The United States has a vital interest in creating and maintaining an armed force of honest, upright, and well-disciplined persons, and in preserving the reputation, morale, and integrity of the military services. Furthermore, because its personnel must, perforce, live and work in close proximity to one another, the military has an obligation to protect each of its members from the misconduct of fellow servicemen.9 The commission of offenses against the civil order manifests qualities of attitude and character equally destructive of military order and safety. The soldier who acts the part of Mr. Hyde while on leave is, at best, a precarious Dr. Jekyll when back on duty. Thus, as General George Washington recognized:
49
'All improper treatment of an inhabitant by an officer or soldier being destructive of good order and discipline as well as subversive of the rights of society is as much a breach of military, as civil law and as punishable by the one as the other.' 14 Writings of George Washington 140—141 (Bicent. ed.).
50
A soldier's misconduct directed against civilians, moreover, brings discredit upon the service of which he is a member:
51
'Under every system of military law for the government of either land or naval forces, the jurisdiction of courts martial extends to the trial and punishment of acts of military or naval officers which tend to bring disgrace and reproach upon the service of which they are members, whether those acts are done in the performance of military duties, or in a civil position * * *.' Smith v. Whitney, 116 U.S. 167, 183—184, 6 S.Ct. 570, 578, 29 L.Ed. 601 (1886).
52
The Government, thus, has a proper concern in keeping its own house in order, by deterring members of the armed forces from engaging in criminal misconduct on or off the base, and by rehabilitating offenders to return them to useful military service.10
53
The exercise of military jurisdiction is also responsive to other practical needs of the armed forces. A soldier detained by the civil authorities pending trial, or subsequently imprisoned, is to that extent rendered useless to the service. Even if he is released on bail or recognizance, or ultimately placed on probation, the civil authorities may require him to remain within the jurisdiction, thus making him unavailable for transfer with the rest of his unit or as the service otherwise requires.
54
In contrast, a person awaiting trial by court-martial may simply be restricted to limits, and may 'participate in all military duties and activities of his organization while under such restriction.' Manual for Courts-Martial, United States (1969), 20 b. The trial need not be held in the jurisdiction where the offense was committed. Id., 8. See, e.g., United States v. Voorhees, 4 U.S.C.M.A. 509, 515, 16 C.M.R. 83, 89 (1954); cf. United States v. Gravitt, 5 U.S.C.M.A. 249, 256, 17 C.M.R. 249, 256 (1954). And punishments—such as forfeiture of pay, restriction to limits, and hard labor without confinement—may be imposed that do not keep the convicted serviceman from performing his military duties. See Manual for Courts-Martial, supra, 126 g, h, k.
IV.
55
The Court does not explain the scope of the 'service-connected' crimes as to which court-martial jurisdiction is appropriate, but it appears that jurisdiction may extend to 'nonmilitary' offenses in appropriate circumstances. Thus, the Court intimates that it is relevant to the jurisdictional issue in this case that petitioner was wearing civilian clothes rather than a uniform when he committed the crimes. Ante, at 259, And it also implies that plundering, abusing, and stealing from, civilians may sometimes constitute a punishable abuse of military position, ante, at 270, n. 14, and that officers may be court-martialed for purely civilian crimes, because '(i)n the 18th century * * * the 'honor' of an officer was thought to give a specific military connection to a crime otherwise without military significance.'11 Ibid. But if these are illustrative cases, the Court suggests no general standard for determining when the exercise of court-martial jurisdiction is permissible.
56
Whatever role an ad hoc judicial approach may have in some areas of the law, the Congress and the military are at least entitled to know with some certainty the allowable scope of court-martial jurisdiction. Otherwise, the infinite permutations of possibly relevant factors are bound to create confusion and proliferate litigation over the jurisdictional issue in each instance. Absolutely nothing in the language, history, or logic of the Constitution justifies this uneasy state of affairs which the Court has today created.
57
I would affirm the judgment of the Court of Appeals.
1
Article 80 of the Uniform Code of Military Justice (10 U.S.C. § 880) provides in part:
'(a) An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to efe ct its commission, is an attempt to commit that offense.
'(b) Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a court-martial may direct, unless otherwise specifically prescribed.'
Article 130 (10 U.S.C. § 930) provides:
'Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may direct.'
Article 134 (10 U.S.C. § 934) provides:
'Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.'
2
Under Art. 25(c) of the Uniform Code of Military Justice, 10 U.S.C. § 825(c), at least one-third of the members of the court-martial trying an enlisted man are required to be enlisted men if the accused requests that enlisted personnel be included in the court-martial. In practice usually only senior enlisted personnel, i.e., noncommissioned officers, are selected. See United States v. Crawford, 15 U.S.C.M.A. 31, 35 C.M.R. 3, motion for leave to file petition for certiorari denied, 380 U.S. 970, 85 S.Ct. 1349, 14 L.Ed.2d 281. See generally Schiesser, Trial by Peers: Enlisted Members on Courts-Martial, 15 Catholic U.L.Rev. 171 (1966).
3
At the time petitioner was tried, a general court-martial was presided over by a 'law officer,' who was required to be a member of the bar and certified by the Judge Advocate General for duty as a law officer. U.C.M.J. Art. 26(a). The 'law officer' could be a direct subordinate of the convening authority. Manual for Courts-Martial, United States, 1951, g(1). The Military Justice Act of 1968, 82 Stat. 1335, establishes a system of 'military judges' intended to insure that where possible the presidig officer of a court-martial will be a professional military judge, not directly subordinate to the convening authority.
4
For example, in a court-martial, the access of the defense to compulsory process for obtaining evidence and witnesses is, to a significant extent, dependent on the approval of the prosecution. United States v. Harvey, 8 U.S.C.M.A. 538, 25 C.M.R. 42, approving Manual for Courts-Martial, United States, 1951, 115a. See Melnick, The Defendant's Right to Obtain Evidence: An Examination of the Military Viewpoint, 29 Mil.L.Rev. 1 (1965).
5
See, e.g., the cases listed in Hearings on Constitutional Rights of Military Personnel before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary pursuant to S.Res.No. 260, 87th Cong., 2d Sess., 780—781 (1962), in each of which the Court of Military Appeal reversed court-martial convictions on the ground of excessive command influence.
6
See Reid v. Covert, 354 U.S. 1, 36, 77 S.Ct. 1222, 1240, 1 L.Ed.2d 1148.
7
For sobering accounts of the impact of so-called military justice on civil rights of members of the Armed Services see Hearings on Constitutional Rights of Military Personnel before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary pursuant to S.Res.No.260, 87th Cong., 2d Sess., Feb. 20 and 21, March 1, 2, 6, 9, and 12, 1962; Joint Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary and a Special Subcommittee of the Senate Am ed Services Committee, 89th Cong., 2d Sess., on S. 745 et al., Pt. 1, Jan. 18, 19, 25, and 26, March 1, 2, and 3, 1966, and Pt. 2. For a newly enacted Military Justice Act see 82 Stat. 1335. And see Summary-Report of Hearings on Constitutional Rights of Military Personnel, by the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, pursuant to S.Res.No. 58, 88th Cong., 1st Sess. (1963) (Comm.Print).
8
The record of historical concern over the scope of court-martial u risdiction is extensively reviewed in Mr. Justice Black's opinion for a plurality of the Court in Reid v. Covert, 354 U.S. 1, 23—30, 77 S.Ct. 1222, 1233—1237, 1 L.Ed.2d 1148. See also, Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vand.L.Rev. 435, 441—449 (1960); F. Wiener, Civilians Under Military Justice (1967) (hereinafter cited as Wiener).
9
See Reid v. Covert, 354 U.S. 1, 23—26, 77 S.Ct. 1222, 1233 1235, 1 L.Ed.2d 1148.
10
See Wiener c. 1.
11
The Mutiny Act of 1720, 7 Geo. 1, c. 6, provided that a soldier could be court-martialed for 'any Capital Crime, or * * * any Violence or Offense against the Person, Estate, or Property of any of the Subjects of this Kingdom, which is punishable by the known Laws of the Land' unless the civil authorities within eight days of the offense demanded that the accused soldier be turned over to them for trial. In November 1720, the law officers of the Army relied on this new provision of the Mutiny Act to give an opinion that it was proper to try a soldier in Scotland—where ordinary civil courts were functioning—by court-martial for an offense which would have been murder if prosecuted in the civil courts. See Wiener 245—246. The very next year—perhaps in response to that ruling, Wiener 14—the provision was eliminated and did not reappear. The 1721 Act and its successors provided for military trial of common-law crimes only where ordinary civil courts were unavailable. See Prichard, The Army Act and Murder Abroad, 1954 Camb.L.J. 232; Wiener 14, 24—28.
12
Failure to produce a soldier for civil trial was military offense by the officer concerned. E.g., British Articles of War of 1765, § 11, Art. 1, reprinted in W. Winthrop, Military Law and Precedents *1448, *1456 (2d ed. 1896, 1920 reprint) (hereinafter cited as Winthrop).
13
See Reid v. Covert, 354 U.S. 1, 27—28 and n. 49, 77 S.Ct. 1222, 1236, 1 L.Ed.2d 1148.
14
In its brief the Government lists a large number of courts-martial in the very early days of the Nation which it claims indicate that military trial for civil offenses was common in that period. The facts of the cases, as reflected in the brief summaries which are available to us, suggest no such conclusion. In almost every case summarized, it appears that some special military interest existed. Many are peculiarly military crimes desertions, assaults on and thefts from other soldiers, and stealing government property. While those acts might also be felonies, by the time of the Revolutionary War offenses such as these long had been defined as distinctively military crimes in the Mutiny Acts. Many of the remainder are identifiably prosecutions for abusing military position by plundering the civil population or abusing its women while on duty. Many of the other cases in which the offense is stealing or assault on an individual were perhaps of this sort also, especially where the victim is referred to as 'inhabitant'. Most of the rest simply recite the offender and the offense and give no basis for judging the relationship of the offense to military discipline. Those few which do appear to involve civilian crimes in clearly civilian settings appear also to have been committed by officers. In the 18th century at least the 'honor' of an officer was thought to give a specific military connection to a crime otherwise without military significance. Moreover, all those courts-martial held between 1773 and 1783 were for the trial of acts committed in wartime and, given the pattern of fighting in those days, in the immediate theater of operations.
15
1776 Articles of War, § 10, Art. 1, reprinted in Winthrop *1494.
16
Cf. Ex parte Mason, 105 U.S. 696, 698, 26 L.Ed. 1213, in which the Court, sustaining a court-martial conviction, under the general article of a military guard who killed a prisoner, said, '(s)hooting with intent to kill is a civil crime, but shooting by a soldier of the army standing guard over a prison, with intent to kill a prisoner confined therein, is not only a crime against society, but an atrocious breach of military discipline.'
17
Larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with intent to kill, wounding by shooting or stabbing with an intent to commit murder, rape, or assault and battery with an intent to commit rape. e v.Stat. § 1342, Art. 58 (1874).
18
It has been suggested, at various times, that the phrase 'when in actual service in time of War or public danger' should be read to require a grand jury indictment in all cases 'arising in the land or naval forces, or in the Militia,' except when the defendant is in 'service in time of War or public danger.' It was decided at a very early date, however, that the above clause modifies only 'Militia.' Thus, the generally accepted rule is that indictment by grand jury is never necessary 'in cases arising in the land or naval forces' but is necessary for members of the militia, except when they have been 'called into the actual Service of the United States' (Art. II, § 2, U.S.Const.) 'to execute the Laws of the Union, suppress Insurrections and repel Invasions.' Art. I, § 8, U.S.Const.
'The limitation as to 'actual service in time of war or public danger' relates only to the militia.' Ex parte Mason, 105 U.S. 696, 701, 26 L.Ed. 1213. See also Smith v. Whitney, 116 U.S. 167, 186, 6 S.Ct. 570, 580, 29 L.Ed. 601; Kurtz v. Moffitt, 115 U.S. 487, 500, 6 S.Ct. 148, 152, 29 L.Ed. 458; Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838.
Johnson v. Sayre, 158 U.S. 109, 15 S.Ct. 773, 39 L.Ed. 914, was a case in which a Navy paymaster sought habeas corpus from his court-martial conviction for embezzlement in time of peace by arguing that he was entitled to indictment by grand jury:
'The decision below is based upon the construction that the words 'when in actual service in time of war or public danger' refer, not merely to the last antecedent, 'or in the militia,' but also to the previous clause, 'in the land or naval forces.' That construction is grammatically possible. But it is opposed to the evident meaning of the provision, taken by itself, and still more so, when it is considered together with the other provisions of the constitution.' Id., at 114, 15 S.Ct. at 775. And see Thompson v. Willingham, 217 F.Supp. 901 (D.C.M.D.Pa.), aff'd, 318 F.2d 657 (C.A.3d Cir.).
19
Winthrop in commenting on the phrase 'to the prejudice of good order and military discipline' in a predecessor article to Article 134 said:
'A crime, therefore, to be cognizable by a court-martial under this Article, must have been committed under such circumstances as to have directly offended against the government and discipline of the military state. Thus such crimes as theft from or robbery of an officer, soldier, post trader, or camp-follower; forgery of the name of an officer, and manslaughter, assault with intent to kill, mayhem, or battery, committed upon a military person; inasmuch as they directly affect military relations and prejudice military discipline, may properly be—as they frequently have been—the subject of charges under the present Article. On the other hand, where such crimes are committed upon or against civilians, and not at or near a military camp or post, or in breach or violation of a military duty or order, they are not in general to be regarded as within the description of the Article, but are to be treated as civil rather than military offenses.' Pp. *1124—*1125.
1
This proviso was dropped in the Mutiny Act of 1721, 8 Geo. 1, c. 3, and court-martial jurisdiction over such offenses was thereafter limited by the articles of war to, inter alia, 'Place(s) beyond the Seas * * * where there is no form of Our Civil Judicature in Force.' F. Wiener, Civilians Under Military Justice 14 (1967).
2
See 2 M. Farrand, The Records of the Federal Convention of 1787, p. 330 (1911); 5 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, p. 443 (1836).
3
For example: The general orders of George Washington report the trial of soldiers for 'killing a Cow * * *, stealing Fowls * * *, and stealing eleven Geese * * *.' 26 Writings of George Washington 73 (Bicent. ed.) (H.Q., Newburgh, January 28, 1783), and 'for stealing a number of Shirts and blanketts out of the public store at Newburgh * * *.' Id., at 322 (H.Q., Newburgh, April 15, 1783). The Orderly Books of the Corps of Artillerists and Engineers report the court-martial of Sergeant Harris for 'beating a Mr. Williams an inhabitant living near this garrison,' Book 1, pp. 157—158 (West Point, October 5, 1795), and of Private Kelly for 'abusing and using violence on Mrs. Cronkhyte, a citizen of the United States,' Book 3, pp. 45—46 (West Point, July 5, 1796). Numerous other instances of military punishment for nonmilitary crimes during the period 1775—1815 are summarized in the appendix to the Brief for the United States 35—52.
4
'All crimes, not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the articles of war, are to be taken cognizance of by a general or regimental court-martial, according to the nature and degree of the offence, and be punished at their discretion.' W. Winthrop, Military Law and Precedents 957 (2d ed. 1896, 1920 reprint).
5
In 1916, Congress for the first time explicitly authorized peacetime court-martial jurisdiction for specific noncapital offenses. Article 93, Articles of War, 39 Stat. 664. It also revised the general article, renumbered Article 96, to read:
'Though not mentioned in these articles, all disorders and neglects to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon the military service, and all crimes or offenses not capital, of which persons subject to military law may be guilty, shall be taken cognizance of by a general or special or summary court-martial, according to the nature and degree of the offense, and punished at the discretion of such court.' Testifying before the Senate Subcommittee on Military Affairs, Brigadier General Crowder, the Judge Advocate General of the Army, explained the revision (cf. n. 4, supra):
'You will notice some transposition of language. The phrase 'to the prejudice of good order and military discipline' is put in in such a way that it qualifies only 'all disorders and neglects.' As the law stands to-day it was often contended that this phrase qualified also 'l l crimes not capital.' There was some argument about whether it would reach back through that clause, 'all disorders and neglects,' to the clause 'all crimes not capital' and qualify the latter clause. * * * (B)ut Justice Harlan, in the decision in the Grafton case, seems to have set the matter at rest, and I am proposing legislation along the lines of Justice Harlan's decision.' Hearings before the Senate Subcommittee on Military Affairs, an Appendix to S.Rep. No. 130, 64th Cong., 1st Sess., 25, 91.
The Act of March 3, 1863, § 30, 12 Stat. 736, authorized punishment for specific nonmilitary crimes, including capital ones, in time of war, insurrection, or rebellion. Article 92 of the 1916 Articles of War, 39 Stat. 664, made murder and rape punishable by death, but provided that 'no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace.' This proviso was deleted in the Uniform Code of Military Justice, Articles 118, 120, 10 U.S.C. §§ 918, 920, as that today there is no jurisdictional distinction between capital and noncapital offenses.
6
On such a theory, for example, Congress could not have permissibly waited, as it did, until 1875, see Act of March 3, 1875, § 1, 18 Stat. 470, to confer general federal-question jurisdiction on the district courts; the presenty-day exercise of this jurisdiction, see 28 U.S.C. § 1331, would be unconstitutional.
7
Statistical Abstract of The United States 257 (1968).
8
R. Weigley, History of the United States Army 566 (1967).
9
Congress may also assume the responsibility of protecting civilians from harms perpetrated by membr § of the armed forces. For the military is often responsible for bringing to a locality thousands of its personnel—whose numbers may be as great as, and sometimes exceed, the neighboring population—thereby imposing on the local law-enforcement agencies a burden which they may be unable to carry.
10
Thus, at petitioner's presentence hearing, Captain Powell testified that 'through proper rehabilitation, O'Callahan can make a good soldier,' Record Transcript 61, and Major Turner testified:
'He has given superior performance, as far as I know. * * * He has gone through school and the Army does have a lot of money wrapped up in this man. * * * I think at this time, here that a rehabilitation program is in order.' Id., at 64.
11
It is, to say the least, strange that as a constitutional matter the military is without authority to discipline an enlisted man for an offense that is punishable if committed by an officer.
| 12
|
395 U.S. 298
89 S.Ct. 1697
23 L.Ed.2d 318
Doris DANIEL and Rosalyn Kyles, Petitioners,v.Euell PAUL, Jr., etc.
No. 488.
Argued March 24, 25, 1969.
Decided June 2, 1969.
[Syllabus from pages 298-300 intentionally omitted]
Conrad K. Harper, New York City, for petitioners, pro hac vice, by special leave of Court.
Jerris Leonard, Milwaukee, Wis., for the United States, as amicus curiae, by special leave of Court.
James W. Gallman, Fayetteville, Ark., as amicus curiae, at the invitation of the Court, in support of the judgment below.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Petitioners, Negro residents of Little Rock, Arkansas, brought this class action in the District Court for the Eastern District of Arkansas to enjoin respondent from denying them admission to a recreational facility called Lake Nixon Club owned and operated by respondent, Euell Paul, and his wife. The complaint alleged that Lake Nixon Club was a 'public accommodation' subject to the provisions of Title II of the Civil Rights Act of 1964, 78 Stat. 243, 42 U.S.C. § 2000a et seq., and that respondent violated the Act in refusing petitioners admission solely on racial grounds.1 After trial, the District Court, although finding that respondent had refused petitioners admission solely because they were Negroes,2 dismissed the complaint on the ground that Lake Nixon Club was not within any of the categories of 'public accommodations' covered by the 1964 Act. Kyles v. Paul, 263 F.Supp. 412 (D.C.1967). The Court of Appeals for the Eighth Circuit affirmed, one judge dissenting. 395 F.2d 118 (1968). We granted certiorari. 393 U.S. 975, 89 S.Ct. 444, 21 L.ed.2d 437 (1968). We reverse.
2
Lake Nixon Club, located 12 miles west of Little Rock, is a 232-acre amusement area with swimming, boating, sun bathing, picnicking, miniature golf, dancing facilities, and a snack bar. The Pauls purchased the Lake Nixon site in 1962 and subsequently operated this amusement business there in a racially segregated manner.
3
Title II of the Civil Rights Act of 1964 enacted a sweeping prohibition of discrimination or segregation on the ground of race, color, religion, or national origin at places of public accommodation whose operations affect commerce.3 This prohibition does not et end to discrimination or segregation at private clubs.4 But, as both courts below properly found, Lake Nixon is not a private club. It is simply a business operated for a profit with none of the attributes of self-government and member-ownership traditionally associated with private clubs. It is true that following enactment of the Civil Rights Act of 1964, the Pauls began to refer to the establishment as a private club. They even began to require patrons to pay a 25-cent 'membership' fee, which gains a purchaser a 'membership' card entitling him to enter the Club's premises for an entire season and, on payment of specified additional fees, to use the swimming, boating, and miniature golf facilities. But this 'membership' device seems no more than a subterfuge designed to avoid coverage of the 1964 Act. White persons are routinely provided 'membership' cards, and some 100,000 whites visit the establishment each season. As the District Court found, Lake Nixon is 'open in general to all of the public who are members of the white race.' 263 F.Supp., at 418. Negroes, on the other hand, are uniformly denied 'membership' cards, and thus admission, because of the Pauls' fear that integration would 'ruin' the 'business.' The conclusion of the courts below that Lake Nixon is not a private club is plainly correct—indeed, respondent does not challenge that conclusion here.
4
We therefore turn to the question whether Lake Nixon Club is 'a place of public accommodation' as defined by § 201(b) of the 1964 Act, and, if so, whether its operations 'affect commerce' within the meaning of § 201(c) of that Act.
5
Section 201(b) defines four categories of establishments as covered public accommodations. Three of these categories are relevant here:
6
'Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce * * *.
7
* * *
8
'(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
9
'(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
10
'(4) any establishment (A) * * * (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.'
11
Section 201(c) sets forth standards for determining whether the operations of an establishment in any of these categories affect commerce within the meaning of Title II:
12
'The operations of an establishment affect commerce within the meaning of this title if * * * (2) in the case of an establishment described in paragraph (2) [set out supra] * * *, it serves or offers to serve interstate travelers or a substantial portion of the food which it serves, or gasoline or other products which it sells, has moved in commerce; (3) in the case of an establishment described in paragraph (3) [set out supra] * * *, it customarily presents films, performances, athletic teams, exhibitions, or other sources of entertainment which move in commerce; and () in the case of an establishment described in paragraph (4) [set out supra] * * *, there is physically located within its premises, an establishment the operations of which affect commerce within the meaning of this subsection. For purposes of this section, 'commerce' means travel, trade, traffic, commerce, transportation, or communication among the several States * * *.'
13
Petitioners argue first that Lake Nixon's snack bar is a covered public accommodation under §§ 201(a)(2) and 201(c)(2), and that as such it brings the entire establishment within the coverage of Title II under §§ 201(b)(4) and 201(c)(4). Clearly, the snack bar is 'principally engaged in selling food for consumption on the premises.' Thus, it is a covered public accommodation if 'it serves or offers to serve interstate travelers or a substantial portion of the food which it serves * * * has moved in commerce.' We find that the snack bar is a covered public accommodation under either of these standards.
14
The Pauls advertise the Lake Nixon Club in a monthly magazine called 'Little Rock Today,' which is distributed to guests at Little Rock hotels, motels, and restaurants, to acquaint them with available tourist attractions in the area. Regular advertisements for Lake Nixon were also broadcast over two area radio stations. In addition, Lake Nixon has advertised in the 'Little Rock Air Force Base,' a monthly newspaper published at the Little Rock Air Force Base in Jacksonville, Arkansas. This choice of advertising media leaves no doubt that the Pauls were seeking broad-based patronage from an audience which they knew to include interstate travelers. Thus, the Lake Nixon Club unquestionably offered to serve out-of-state visitors to the Little Rock area. And it would be unrealistic to assume that none of the 100,000 patrons actually served by the Club each season was an interstate traveler.5 Since the Lake Nixon Club offered to serve and served out-of-state persons, and since the Club's snack bar was established to serve all patrons of the entire facility, we must conclude that the snack bar offered to serve and served out-of-state persons. See Hamm v. City of Rock Hill, 379 U.S. 306, 309, 85 S.Ct. 384, 388, 13 L.Ed.2d 300 (1964); see also Wooten v. Moore, 400 F.2d 239 (C.A. 4th Cir. 1968).
15
The record, although not as complete on this point as might be desired, also demonstrates that a 'substantial portion of the food' served by the Lake Nixon Club snack bar has moved in interstate commerce. The snack bar serves a limited fare—hot dogs and hamburgers on buns, soft drinks, and milk. The District Court took judicial notice of the fact that the 'principal ingredients going into the bread were produced and processed in other States' and that 'certain ingredients [of the soft drinks] were probably obtained * * * from out-of State sources.' 263 F.Supp., at 418. Thus, at the very least, three of the four food items sold at the snack bar contain ingredients originating outside of the State. There can be no serious doubt that a 'substantial portion of the food' served at the snack bar has moved in interstate commerce. See Katzenbach v. McClung, 379 U.S. 294, 296-297, 85 S.Ct. 377, 379-380, 13 L.Ed.2d 290 (1964); Gregory v. Meyer, 376 F.2d 509, 511, n. 1 (C.A 5th Cir. 1967).
16
The snack bar's status as a covered establishment automatically brings the entire Lake Nixon facility within the ambit of Title II. Civil Rights Act of 1964, §§ 201(b)(4) and 201(c)(4), set out supra; see H. R. Rep. No. 914, 88th Cong., 1st Sess., 20; Fazzio Real Estate Co. v. Adams, 396 F.2d 146 (C.A. 5th Cir. 1968).6
17
Petitioners also argue that the Lake Nixon Club is a covered public accomodation under §§ 201(b)(3) and 201(c)(3) of the 1964 Act. These sections proscribe discrimination by 'any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment' which 'customarily presents films, performances, athletic teams, exhibitions, or other sources of intertainment which move in commerce.' Under any accepted definition of 'entertainment,' the Lake Nixon Club would surely qualify as a 'place of entertainment.'7 And indeed it advertises itself as such.8 Respondent argues, however, that in the context of § 201(b)(3) 'place of entertainment' refers only to establishments where patrons are entertained as spectators or listeners rather than those where entertainment takes the form of direct participation in some sport or activity. We find no support in the legislative history for respondent's reading of the statute. The few indications of legislative intent are to the contrary.
18
President Kennedy, in submitting to Congress the public accommodations provisions of the proposed Civil Rights Act, emphasized that 'no action is more contrary to the spirit of our democracy and Constitution—or more rightfully resented by a Negro citizen who seeks only equal treatment—than the barring of that citizen from restaurants, hotels, theatres, recreational areas and other public accommodations and facilities.'9 (Emphasis added.) While Title II was being considered by the Senate, a civil rights demonstration occurred at a Maryland amusement park. The then Assistant Majority Leader of the Senate, Hubert Humphrey, took note of the demonstration and opined that such an amusement park would be covered by the provisions which were eventually enacted as Title II:
19
'In this particular instance, I am confident that merchandise and facilities used in the park were transported across State lines.
20
* * *
21
'The spectacle of national church leaders being hauled off to jail in a paddy wagon demonstrates the absurdity of the present situation regarding equal access to public facilities in Maryland and the absurdity of the arguments of those who oppose title II of the President's omnibus civil rights bill.' 109 Cong.Rec. 12276 (1963).
22
Senator Magnuson, floor manager of Title II, spoke in a similar vein.10
23
Admittedly, most of the discussion in Congress regarding the coverage of Title II focused on places of spectator entertainment rather than recreational areas. But it does not follow that the scope of § 201(b)(3) should be restricted to the primary objects of Congress' concern when a natural reading of its language would call for broader coverage. In light of the overriding purpose of Title II 'to move the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public,' H.R.Rep. No. 914, 88th Cong., 1st Sess., 18, we agree with the en banc decision of the Court of Appeals for the Fifth Circuit in Miller v. Amusement Enterprises, Inc., 394 F.2d 342 (1968), that the statutory language 'place of entertainment' should be given full effect according to its generally accepted meaning and applied to recreational areas.
24
The remaining question is whether the operations of the Lake Nixon Club 'affect commerce' within the meaning of § 201(c)(3). We conclude that they do. Lake Nixon's customary 'sources of entertainment * * * move in commerce.' The Club leases 15 paddle boats on a royalty basis from an Oklahoma company. Another boat was purchased from the same company. The Club's juke box was manufactured outside Arkansas and plays records manufactured outside the State. The legislative history indicates that mechanical sources of entertainment such as these were considered by Congress to be 'sources of entertainment' within the meaning of § 201(c)(3).11
25
Reversed.
26
Mr. Justice DOUGLAS, concurring.
27
While I join the opinion of the Court, I also rest on the Fourteenth Amendment. My views were set forth in Bell v. Maryland, 378 U.S. 226, 242, 84 S.Ct. 1814, 1823, 12 L.Ed.2d 822 where I said:
28
'Segregation of Negroes in the restaurants and lunch counters of parts of America is a relic of slavery. It is a badge of second-class citizenship.
29
It is a denial of a privilege and immunity of national citizenship and of the equal protection guaranteed by the Fourteenth Amendment against abridgment by the States.' Id., 260, 84 S.Ct. 1832.
30
And see my concurring opinion in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 279 et seq., 85 S.Ct. 348, 369 et seq., 13 L.Ed.2d 258.
31
Mr. Justice BLACK, dissenting.
32
I could and would agree with the Court's holding in this case had Congress in the 1964 Civil Rights Act based its power to bar racial discrimination at places of public accommodations upon § 5 of the Fourteenth Amendment.1 But Congress in enacting this legislation did not choose to invoke this broad Fourteenth Amendment power to protect against racial discrimination; instead it tied the Act and limited its protection to congressional power to regulate commerce among the States. Both courts below found that respondent's swimming and recreational place is covered by the Act if its operations 'affect commerce' within the meaning of § 201(c) of the Act. The Act itself, in § 201(c), provides the test for determining whether this respondent's recreational operations adversely affect interstate commerce. That test is to determine from evidence whether the operation of an establishment like respondent's (a) 'serves or offers to serve interstate travelers' or (b) 'a substantial portion of the food which it serves, or gasoline or other products which it sells, has moved in commerce * * *.' In order, therefore, for the Act to be held to apply the test must be shown to be met by evidence and judicial findings, not by guesswork, or assumptions, or 'judicial knowledge' of crucially relevant facts, or by unproved probabilities or possibilities. My trouble with the Court's holding is that it runs roughshod over District Court findings supported by the record and emphatically affirmed by the Court of Appeal. Net us briefly review the facts and findings on the foregoing two separate conditions of the Act's applicability.
33
(A) Did Lake Nixon serve or offer to serve interstate travelers? There is not a word of evidence showing that such an interstate traveler was ever there or ever invited there or ever dreamed of going there. Nixon Lake can be reached only by country roads. The record fails to show whether these country roads are passable in all kinds of weather. They seem to be at least six to eight miles off the state or interstate roads over which interstate travelers are accustomed to travel. Petitioners did not offer evidence to show whether Lake Nixon is a natural lake, or whether it is simply a small body of water obtained by building a dam across a little creek in a narrow hollow between the hills. The District Court made findings about Lake Nixon and Spring Lake2 as follows:
34
'Both are accessible by country roads; neither is located on or near a State or federal highway. There is no evidence that either facility has ever tried to attract interstate travelers as such, and the location of the facilities is such that it would be in the highest degree unlikely that an interstate traveler would break his trip for the purpose of utilizing either establishment.' 263 F.Supp. 412, 418.
35
The foregoing finding is not impaired by this additional statement of the District Judge:
36
'Of course, it is probably true that some out-of-State people spending time in or around Little Rock have utilized one or both facilities.' Ibid.
37
In the first place the court's statement that 'it is probably true' takes this out of the category of a finding of fact; and secondly, 'out-of-State people spending time in or around Little Rock' who happened to visit Lake Nixon would certainly not be the kind of 'interstate travelers' doing the kind of interstate traveling that would 'affect' interstate commerce.
38
The Court of Appeals, affirming the findings of the District Court, said:
39
'There is no evidence that any interstate traveler ever patronized this facility, or that it offered to serve interstate travelers * * *.' 395 F.2d 118, 127.
40
This Court rejects these joint findings of the two courts below in this way. Referring to advertisements of Lake Nixon in a monthly magazine distributed at Little Rock hotels, motels, and restaurants, to radio announcements, and to advertisements in the 'Little Rock Air Force Base,' this Court says:
41
'Thus, the Lake Nixon Club unquestionably offered to serve out-of-state visitors to the Little Rock area. And it would be unrealistic to assume that none of the 100,000 patrons actually served by the Club each season was an interstate traveler.'
42
In the above statement this Court jumps from the fact that there were an estimated number of admissions onto the club premises during a season to the conclusion that some one or more of these was an 'interstate traveler' and that the owners of the premises, Mr. and Mrs. Paul, were bound to know that there were interstate travelers present.3 That conclusion is far too speculative to be used as a means of rejecting the solemn findings of the two courts below. If the facts here are to be left to such 'iffy' conjectures, one familiar with country life and traveling would, it seems to me, far more likely conclude that travelers on interstate journeys would stick to their interstate highways, and not go miles off them by way of what, for all this record shows, may wl l be dusty, unpaved, 'country' roads to go to a purely local swimming hole where the only food they could buy was hamburgers, hot dogs, milk, and soft drinks (but not beer). This is certainly not the pattern of interstate movements I would expect interstate travelers in search of tourist attractions to follow.
43
(B) The second prong of the test to determine applicability of the Act to Lake Nixon is whether a 'substantial portion' of the hamburgers, milk, and soda pop sold there had previously moved in interstate commerce. The Court's opinion generously concedes that the record is 'not as complete on this point as might be desired * * *.' This is certainly no exaggeration. In fact, I would go further and agree with the two courts below that the record is totally devoid of evidence to show that a 'substantial portion' of the small amount of food sold had previously moved in interstate commerce. The District Court found as follows on this point:
44
'Food and soft drinks are purchased locally by both establishments. The record before the Court does not disclose where or how the local suppliers obtained the products which they sold to the establishments. The meat products sold by defendants may or may not have come from animals raised, slaughtered, and processed in Arkansas. The bread used by defendants was baked and packaged locally, but judicial notice may be taken of the fact that the principal ingredients going into the bread were produced and processed in other States. The soft drinks were bottled locally, but certain ingredients were probably obtained by the bottlers from out-of-State sources.' 263 F.Supp., at 418.
45
Fact-findings on serious problems like this one, which involves marking the jurisdictional authority of State and Nation, should not be made on the basis of 'judicial notice' and on probabilities not based on evidence. The Court of Appeals approved this finding of the District Court that a substantial part of the food served at Lake Nixon had not previously moved in interstate commerce. The Court of Appeals said:
46
'With regard to whether a substantial portion of the food which Lake Nixon serves has moved in commerce, the trial court found that food and soft drinks were purchased locally by the Club but noted that the record before the court did not disclose where or how the local suppliers obtained the products. The court further observed that the meat products sold by the defendants may or may not have come from animals raised, slaughtered, and processed in Arkansas. It also made an observation that the bread used in the sandwiches was baked and packaged locally but took judicial notice that the principal ingredients going into the bread were produced and processed in other states. This observation on the part of the court, however, was entirely voluntary, and the ingredients in the bread would not constitute a substantial part of the food served. We might add that it is a matter of common knowledge that Borden's of Arkansas which the record shows supplied the milk, obtains the unprocessed milk for its local plant from Arkansas dairy farmers.' 395 F.2d, at 124.
47
Finally, the Court mentions, almost as an afterthought, Lake Nixon's 15 paddle boats leased from an Oklahoma company on a royalty basis. As to these paddle boats the Court of Appeals said: 'It is common knowledge that annually thousands of this type boat are manufactured locally in Arkansas, and there is no evidence whatsoever that any of the equipment moved in interstate commerce.' 395 F.2d, at 125.
48
The Court's opinion also mentions a juke box leased by Lake Nixon from the juke box's local owner. The Court apparently refers to this juke box on the premise that playing music and dancing makes an establishment the kind of place of 'entertainment' that is covered by 201(b)(3) of the Act.4 The Court of Appeals pointed out that Senator Magnuson, floor manager of this part of the Act, said that dance studios would be exempt under the Act. 110 Cong.Rec. 7406. Also, Senator Humphrey, a leading proponent of the measure, said:
49
'The deletion of the coverage of retail establishments generally is illustrative of the moderate nature of this bill and of its intent to deal only with the problems which urgently require solution.' 110 Cong.Rec. 6533.
50
See also Miller v. Amusement Enterprises, Inc., 5 Cir., 394 F.2d 342.
51
It seems clear to me that neither the paddle boats nor the locally leased juke box is sufficient to justify a holding that the operation of Lake Nixon affects interstate commerce within the meaning of the Act. While it is the duty of courts to enforce this important Act, we are not called on to hold nor should we hold subject to that Act this country people's recreation center, lying in what may be, so far as we know, a little 'sleepy hollow' between Arkansas hills miles away from any interstate highway. This would be stretching the Commerce Clause so as to give the Federal Government complete control over every little remote country place of recreation in every nook and cranny of every precinct and county in every one of the 50 States. This goes too far for me.5 I would affirm the judgments of the two courts below.
1
Petitioners alleged that the denial of admission also constitutes a violation of the Civil Rights Act of 1866, as amended, 14 Stat. 27, now 42 U.S.C. § 1981. Neither the District Court nor the Court of Appeals passed on this contention. Our conclusion makes it unnecessary to consider the question.
2
Respondent at trial answered affirmatively a question of the trial judge whether Negroes were denied admission 'simply * * * because they were Negroes.' Respondent's answer to an interrogatory why Negroes were refused admission was: '[w]e refused admission to them because white people in our community would not patronize us if we admitted Negroes to the swimming pool. Our business would be ruined and we have our entire life savings in it.'
3
Section 201(a) of the Act provides:
'All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.'
4
Section 201(e) of the Act provides:
'The provisions of this title shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b).'
5
The District Court, which did not find it necessary to decide whether the snack bar served or offered to serve interstate travelers, conceded that: 'It is probably true that some out-of-State people spending time in or around Little Rock have utilized [Lake Nixon's] facilities.' 263 F.Supp., at 418.
6
Accord: Evans v. Laurel Links, Inc., 261 F.Supp. 474 (D.C.E.D.Va.1966); United States by Clark v. Fraley, 282 F.Supp. 948 (D.C.M.D.N.C.1968); United States by Clark v. All Star Triangle Bowl, Inc., 283 F.Supp. 300 (D.C.S.C.1968).
7
Webster's Third New International Dictionary, at 757, defines 'entertainment' as 'the act of diverting, amusing, or causing someone's time to pass agreeably: [synonymous with] amusement.'
8
Respondent advertised over a local radio station that 'Lake Nixon continues their policy of offering you year-round entertainment.'
9
Special Message to the Congress on Civil Rights and Job Opportunities, June 19, 1963, in Public Papers of the Presidents, John F. Kennedy, 1963, at 485. This statement was originally made in a Special Message to the Congress on Civil Rights, Feb. 28, 1963, in Public Papers, supra, at 228.
10
'Motion picture theaters which refuse to admit Negroes will obviously draw patrons from a narrower segment of the market than if they were open to patrons of all races. * * * Thus, the demand for films from out of State, and the royalties from such films, will be less.
* * *
'These principles are applicable not merely to motion picture theaters but to other establishments which receive supplies, equipment, or goods through the channels of interstate commerce. If these establishments narrow their potential markets by artificially restricting their patrons to non-Negroes, the volume of sales and, therefore, the volume of interstate purchases will be less.' Emphasis added.) 110 Cong.Rec. 7402 (1964).
11
The Senate rejected an amendment which would have ruled out most mechanical sources by requiring that the source of entertainment be one which has 'not come to rest within a State.' 110 Cong.Rec. 13915-13921 (1964). See also the remarks of Senator Magnuson, supra, n. 10.
1
'The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.' U.S.Const., Amdt. XIV, § 5. See concurring opinion of Mr. Justice Clark, which I joined, in United States v. Guest, 383 U.S. 745, 761, 86 S.Ct. 1170, 1180, 16 L.Ed.2d 239.
2
The District Court held hearings and made findings concerning Lake Nixon and another establishment, Spring Lake, in a single trial. No appeal was taken from the District Court's decision holding that Spring Lake was not covered by the Act.
3
In fact, Mr. Paul testified under oath that no interstate travelers were members of the 'club,' that they had not invited any to join, and that as far as he knew, none had ever used the premises.
4
'(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:
* * *
'(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment;'
An establishment affects commerce within the meaning of this subsection if, according to § 201(c) the Act, 'it customarily presents films, performances, athletic teams, exhibitions, or other sources of entertainment which move in commerce * * *.'
5
In my opinion in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 268, 85 S.Ct. 348, 363, 13 L.Ed.2d 258, which also applies to Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290, concurring in the Court's decision upholding the application of this Act to an Atlanta, Georgia, motel and a Birmingham, Alabama, restaurant, I said:
'I recognize that every remote, possible, speculative effect on commerce should not be accepted as an adequate constitutional ground to uproot and throw into the discard all our traditional distinctions between what is purely local, and therefore controlled by state laws, and what affects the national interest and is therefore subject to control by federal laws. I recognize too that some isolated and remote lunchroom which sells only to local people and buys almost all its supplies in the locality may possibly be beyond the reach of the power of Congress to regulate commerce, just as such an establishment is not covered by the present Act.' 379 U.S., at 275, 85 S.Ct. at 367.
| 12
|
395 U.S. 250
89 S.Ct. 1726
23 L.Ed.2d 284
Glen Martin HARRINGTON, Petitioner,v.State of CALIFORNIA.
No. 750.
Argued April 23, 1969.
Decided June 2, 1969.
Roger S. Hanson, Los Angeles, Cal., for petitioner.
James H. Kline, San Marino, Cal., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
We held in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 that 'before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' Id., at 24, 87 S.Ct., at 828. We said that, although 'there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error' (id., at 23, 87 S.Ct., at 827), not all 'TRIAL ERRORS WHICH VIOLATE THE CONSTITUTion automatically call for reversaL.' Ibid.
2
The question whether the alleged error in the present case was 'harmless' under the rule of Chapman arose in a state trial for attempted robbery and first-degree murder. Four men were tried together—Harrington, a Caucasian, and Bosby, Rhone, and Cooper, Negroes—over an objection by Harrington that his trial should be severed. Each of his three codefendants confessed and their confessions were introduced at the trial with limiting instructions that the jury was to consider each confession only against the confessor. Rhone took the stand and Harrington's counsel cross-examined him. The other two did not take the stand.1
3
In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, a confession of a codefendant who did not take the stand was used against Bruton in a federal prosecution. We held that Bruton had been denied his rights under the Confrontation Clause of the Sixth Amendment. Since the Confrontation Clause is applicable as well in state trials by reason of the Due Process Clause of the Fourteenth Amendment (Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923), the rule of Bruton applies here.
4
The California Court of Appeal affirmed the convictions, 256 Cal.App.2d 209, 64 Cal.Rptr. 159, and the Supreme Court denied a petition for a hearing. We granted the petition for certiorari to consider whether the violation of Bruton was on these special facts harmless error under Chapman.
5
Petitioner made statements which fell short of a confession but which placed him at the scene of the crime. He admitted that Bosby was the trigger man; that he fled with the other three; and that after the murder he dyed his hair black and shaved off his moustache. Several eyewitnesses placed petitioner at the scene of the crime. But two of them had previously told the police that four Negroes committed the crime. Rhone's confession, however, placed Harrington inside the store with a gun at the time of the attempted robbery and murder.
6
Cooper's confession did not refer o Harrington by name. He referred to the fourth man as 'the white boy' or 'this white guy.' And he described him by age, height, and weight.
7
Bosby's confession likewise did not mention Harrington by name but referred to him as a blond-headed fellow or 'the white guy' or 'the Patty.'
8
Both Cooper and Bosby said in their confessions that they did not see 'the white guy' with a gun, which is at variance with the testimony of the prosecution witnesses.
9
Petitioner argues that it is irrelevant that he was not named in Cooper's and Bosby's confessions, that reference to 'the white guy' made it as clear as pointing and shouting that the person referred to was the white man in the dock with the three Negroes. We make the same assumption. But we conclude that on these special facts the lack of opportunity to cross-examine Cooper and Bosby constituted harmless error under the rule of Chapman.
10
Rhone, whom Harrington's counsel cross-examined, placed him in the store with a gun at the time of the murder. Harrington himself agreed he was there. Others testified he had a gun and was an active participant. Cooper and Bosby did not put a gun in his hands when he denied it.2 They did place him at the scene of the crime. But others, including Harrington himself, did the same. Their evidence, supplied through their confessions, was of course cumulative. But apart from them the case against Harrington was so overwhelming that we conclude that this violation of Bruton was harmless beyond a reasonable doubt, unless we adopt the minority view in Chapman (386 U.S. at 42—45, 87 S.Ct., at 836—838) that a departure from constitutional procedures should result in an automatic reversal, regardless of the weight of the evidence.
11
It is argued that we must reverse if we can imagine a single juror whose mind might have been made up because of Cooper's and Bosby's confessions and who otherwise would have remained in doubt and unconvinced. We of course do not know the jurors who sat. Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the two confessions on the minds of an average jury. We admonished in Chapman, 386 U.S., at 23, 87 S.Ct., at 827, against giving too much emphasis to 'overwhelming evidence' of guilt, stating that constitutional errors affecting the substantial rights of the aggrieved party could not be considered to be harmless. By that test we cannot impute reversible weight to the two confessions.
12
We do not depart from Chapman; nor do we dilute it by inference. We reaffirm it. We do not suggest that, if evidence bearing on all the ingredients of the crime is tendered, the use of cumulative evidence, though tainted, is harmless error. Our decision is based on the evidence in this record. The case against Harrington was not woven from circumstantial evidence. It is so overwhelming that unless we say that no violation of Bruton can constitute harmless error, we must leave this state conviction undisturbed.
13
Affirmed.
14
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE and Mr. Justice MARSHALL join, dissenting.
15
The Court today overrules Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the very case it purports to apply. Far more fundamentally, it severely undermines many of the Court's most significant decisions in the area of criminal procedure.
16
In Chapman, we recognized that 'harmless-error rules can work very unfair and mischievous results' unless they are narrowly circumscribed. Id., at 22, 87 S.Ct., at 827. We emphasized that '(a)n error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot * * * be conceived of as harmless.' Id., at 23—24, 87 . Ct. at 828. Thus, placing the burden of proof on the beneficiary of the error, we held that 'before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' Id., at 24, 87 S.Ct., at 828. And, we left no doubt that for an error to be 'harmless' it must have made no contribution to a criminal conviction. Id., at 26, 87 S.Ct., at 829.
17
Chapman, then, meant no compromise with the proposition that a conviction cannot constitutionally be based to any extent on constitutional error. The Court today by shifting the inquiry from whether the constitutional error contributed to the conviction to whether the untainted evidence provided 'overwhelming' support for the conviction puts aside the firm resolve of Chapman and makes that compromise. As a result, the deterrent effect of such cases as Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), on the actions of both police and prosecutors, not to speak of trial courts, will be significantly undermined.
18
The Court holds that constitutional error in the trial of a criminal offense may be held harmless if there is 'overwhelming' untainted evidence to support the conviction. This approach, however, was expressly rejected in Chapman, supra, at 23, 87 S.Ct., at 827, and with good reason. For, where the inquiry concerns the extent of accumulation of untainted evidence rather than the impact of tainted evidence on the jury's decision, convictions resulting from constitutional error may be insulated from attack. By its nature, the issue of substantiality of evidence admits of only the most limited kind of appellate review. Thus, the Court's rule will often effectively leave the vindication of constitutional rights solely in the hands of trial judges. If, instead, the task of appellate courts is to appraise the impact of tainted evidence on a jury's decision, as Chapman required, these courts will be better able to protect against deprivations of constitutional rights of criminal defendants. The focus of appellate inquiry should be on the character and quality of the tainted evidence as it relates to the untainted evidence and not just on the amount of untainted evidence.
19
The instant case illustrates well the difference in application between the approach adopted by the Court today and the approach set down in Chapman. At issue is the evidence going to Harrington's participation in the crime of attempted robbery, not the evidence going to his presence at the scene of the crime. Without the admittedly unconstitutional evidence against Harrington provided by the confessions of codefendants Bosby and Cooper, the prosecutor's proof of Harrington's participation in the crime consisted of the testimony of two victims of the attempted robbery and of codefendant Rhone. The testimony of the victims was weakened by the fact that they had earlier told the police that all the participants in the attempted robbery were Negroes. Rhone's testimony against Harrington was self-serving in certain aspects. At the time of his arrest, Rhone was found in possession of a gun. On the stand, he explained that he was given the gun by Harrington after the attempted robbery, and that Harrington had carried the gun during the commission of the robbery. Thus, although there was more than ample evidence to establish Harrington's participation in the attempted robbery, a jury might still have concluded that the case was not proved beyond a reasonable doubt. The confessions of the other two codefendants implicating Harrington in the crime were less self-serving and might well have tipped the balance in the jurors' minds in favor of conviction. Certan ly, the State has not carried its burden of demonstrating beyond a reasonable doubt that these two confessions did not contribute to Harrington's conviction.
20
There should be no need to remind this Court that the appellate role in applying standards of sufficiency or substantiality of evidence is extremely limited. To apply such standards as threshold requirements to the raising of constitutional challenges to criminal convictions is to shield from attack errors of a most fundamental nature and thus to deprive many defendants of basic constitutional rights. I respectfully dissent.
1
All four were found to have participated in an attempted robbery in the course of which a store employee was killed. Each was found guilty of felony murder and sentenced to life imprisonment.
2
'All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design.' People v. Washington, 62 Cal.2d 777, 782, 44 Cal.Rptr. 442, 445, 402 P.2d 130, 133 (1966).
| 01
|
395 U.S. 316
89 S.Ct. 1730
23 L.Ed.2d 332
UNITED STATES, Petitioner,v.ESTATE of Joseph P. GRACE, Deceased, et al.
No. 574.
Argued April 22, 1969.
Decided June 2, 1969.
Rehearing Denied Oct. 20, 1969.
See 90 S.Ct. 147.
Sol. Gen. Erwin N. Griswold, for petitioner.
William S. Downard, Dallas, Tex., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case involves the application of § 811(c)(1)(B) of the Internal Revenue Code of 1939 to a so-called 'reciprocal trust' situation.1 After Joseph P. Grace's death in 1950, the Commissioner of Internal Revenue determined that the value of a trust created by his wife was includible in his gross estate. A deficiency was assessed and paid, and, after denial of a claim for a refund, this refund suit was brought. The Court of Claims, with two judges dissenting, ruled that the value of the trust was not includible in decedent's estate under § 811(c)(1)(B) and entered judgment for respondent. Estate of Grace v. United States, 393 F.2d 939, 183 Ct.Cl. 745 (1968). We granted certiorari because of an alleged conflict between the decision below and certain decisions in the courts of appeals and because of the importance of the issue presented to the administration of the federal estate tax laws. 393 U.S. 975, 89 S.Ct. 452, 21 L.Ed.2d 437 (1968). We reverse.
I.
2
Decedent was a very wealthy man at the time of his marriage to the late Janet Grace in 1908. Janet Grace had no wealth or property of her own, but, between 1908 and 1931, decedent transferred to her a large amount of personal and real property, including the family's Long Island estate. Decedent retained effective control over the family's business affairs, including the property transferred to his wife. She took no interest and no part in business affairs and relied upon her husband's judgment. Whenever some formal action was required regarding property in her name, decedent would have the appropriate instrument prepared and she would execute it.
3
On December 15, 1931, decedent executed a trust instrument, hereinafter called the Joseph Grace trust. Named as trustees were decedent, his nephew, and a third party. The trustees were directed to pay the income of the trust to Janet Grace during her lifetime, and to pay to her any part of the principal which a majority of the trustees might deem advisable. Janet was given the power to designate, by will or de d, the manner in which the trust estate remaining at her death was to be distributed among decedent and their children. The trust properties included securities and real estate interests.
4
On December 30, 1931, Janet Grace executed a trust instrument, hereinafter called the Janet Grace trust, which was virtually identical to the Joseph Grace trust. The trust properties included the family estate and corporate securities, all of which had been transferred to her by decedent in preceding years.
5
The trust instruments were prepared by one of decedent's employees in accordance with a plan devised by decedent to create additional trusts before the advent of a new gift tax expected to be enacted the next year. Decedent selected the properties to be included in each trust. Janet Grace, acting in accordance with this plan, executed her trust instrument at decedent's request.
6
Janet Grace died in 1937. The Joseph Grace trust terminated at her death. Her estate's federal estate tax return disclosed the Janet Grace trust and reported it as a nontaxable transfer by Janet Grace. The Commissioner asserted that the Janet and Joseph Grace trusts were 'reciprocal' and asserted a deficiency to the extent of mutual value. Compromises on unrelated issues resulted in 55% of the smaller of the two trusts, the Janet Grace trust, being included in her gross estate.
7
Joseph Grace died in 1950. The federal estate tax return disclosed both trusts. The Joseph Grace trust was reported as a nontaxable transfer and the Janet Grace trust was reported as a trust under which decedent held a limited power of appointment. Neither trust was included in decedent's gross estate.
8
The Commissioner determined that the Joseph and Janet Grace trusts were 'reciprocal' and included the amount of the Janet Grace trust in decedent's gross estate. A deficiency in the amount of $363,500.97, plus interest, was assessed and paid.
II.
9
Section 811(c)(1)(B) of the Internal Revenue Code of 1939 provided that certain transferred property in which a decedent retained a life interest was to be included in his gross estate. The general purpose of the statute was to include in a decedent's gross estate transfers that are essentially testamentary—i.e., transfers which leave the transferor a significant interest in or control over the property transferred during his lifetime. See Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 643—644, 69 S.Ct. 322, 328, 93 L.Ed. 288 (1949).
10
The doctrine of reciprocal trusts was formulated in response to attempts to draft instruments which seemingly avoid the literal terms of § 811(c)(1)(B), while still leaving the decedent the lifetime enjoyment of his property.2 The doctrine dates from Lehman v. Commissioner of Internal Revenue, 109 F.2d 99 (C.A.2d Cir.), cert. denied, 310 U.S. 637, 60 S.Ct. 1080, 84 L.Ed. 1406 (1940). In Lehman, decedent and his brother owned equal shares in certain stocks and bonds. Each brother placed his interest in trust for the other's benefit for life, with remainder to the life tenant's issue. Each brother also gave the other the right to withdraw $150,000 of the principal. If the brothers had each reserved the right to withdraw $150,000 from the trust that each had created, the trusts would have been includible in their gross estates as interests of which each had made a transfer with a power to revoke. When one of the brothers died, his estate argued that neither trust was includible because the decedent did not have a power over a trust which he had created.
11
The Second Circuit disagreed. That court ruled that the effect of the transfers was the same as if the decedent had transferred his stock in trust for himself, remainder to his issue, and had reserved the right to withdraw $150,000. The court reasoned:
12
'The fact that the trusts were reciprocated or 'crossed' is a trifle, quite lacking in practical or legal signifia nce. * * * The law searches out the reality and is not concerned with the form.' 109 F.2d, at 100.
13
The court ruled that the decisive point was that each brother caused the other to make a transfer by establishing his own trust.
14
The doctrine of reciprocal trusts has been applied numerous times since the Lehman decision.3 It received congressional approval in § 6 of the Technical Changes Act of 1949, 63 Stat. 893.4 The present case is, however, this Court's first examination of the doctrine.
15
The Court of Claims was divided over the requirements for application of the doctrine to the situation of this case. Relying on some language in Lehman and certain other courts of appeals' decisions,5 the majority held that the crucial factor was whether the decedent had established his trust as consideration for the establishment of the trust of which he was a beneficiary. The court ruled that decedent had not established his trust as a quid pro quo for the Janet Grace trust, and that Janet Grace had not established her trust in exchange for the Joseph Grace trust. Rather, the trusts were found to be part of an established pattern of family giving, with neither party desiring to obtain property from the other. Indeed, the court found that Janet Grace had created her trust because decedent requested that she do so. It therefore found the reciprocal trust doctrine inapplicable.
16
The court recognized that certain cases had established a slightly different test for reciprocity.6 Those cases inferred consideration from the establishment of two similar trusts at about the same time. The court held that any inference of consideration was rebutted by the evidence in the case, particularly the lack of any evidence of an estate tax avoidance motive on the part of the Graces. In contrast, the dissent felt that the majority's approach placed entirely too much weight on subjective intent. Once it was established that the trusts were interrelated, the dissent felt that the subjective intent of the parties in establishing the trust should become irrelevant. The relevant factor was whether the trusts created by the settlors placed each other in approximately the same objective economic position as they would have been in if each had created his own trust with himself, rather than the other, as life beneficiary.
17
We agree with the dissent that the approach of the Court of Claims majority places too much emphasis on the subjective intent of the parties in creating the trusts and for that reason hinders proper application of the federal estate tax laws. It is true that there is language in Lehman and other cases that would seem to support the majority's approach. It is also true that the results in some of those cases arguably support the decision below.7 Nevertheless, we think that these cases are not in accord with this Court's prior decisions interpreting related provisions of the federal estate tax laws.
18
Emphasis on the subjective intent of the parties in creating the trusts, particularly when those parties are members of the same family unit, creates substantial obstacles to the proper application of thef ederal estate tax laws. As this Court said in Estate of Spiegel v. Commissioner of Internal Revenue, 335 U.S. 701, 705—706, 69 S.Ct. 301, 303, 93 L.Ed. 330 (1949):
19
'Any requirement * * * (of) a post-death attempt to probe the settlor's thoughts in regard to the transfer, would partially impair the effectiveness of * * * (section 811(c)) as an instrument to frustrate estate tax evasions.'
20
We agree that 'the taxability of a trust corpus * * * does not hinge on a settlor's motives, but depends on the nature and operative effect of the trust transfer.' Id., at 705, 69 S.Ct., at 303. See also Commissioner v. Estate of Church, supra.
21
We think these observations have particular weight when applied to the reciprocal trust situation. First, inquiries into subjective intent, especially in intrafamily transfers, are particularly perilous. The present case illustrates that it is, practically speaking, impossible to determine after the death of the parties what they had in mind in creating trusts over 30 years earlier. Second, there is a high probability that such a trust arrangement was indeed created for tax-avoidance purposes. And, even if there was no estate-tax-avoidance motive, the settlor in a very real and objective sense did retain an economic interest while purporting to give away his property.8 Finally, it is unrealistic to assume that the settlors of the trusts, usually members of one family unit, will have created their trusts as a bargained-for exchange for the other trust. 'Consideration,' in the traditional legal sense, simply does not normally enter into such intrafamily transfers.9
22
For these reasons, we hold that application of the reciprocal trust doctrine is not dependent upon a finding that each trust was created as a quid pro quo for the other. Such a 'consideration' requirement necessarily involves a difficult inquiry into the subjective intent of the settlors. Nor do we think it necessary to prove the existence of a tax-avoidance motive. As we have said above, standards of this sort, which rely on subjective factors, are rarely workable under the federal estate tax laws. Rather, we hold that application of the reciprocal trust doctrine requires only that the trusts be interrelated, and that the arrangement, to the extent of mutual value, leaves the settlors in approximately the same economic position as they would have been in had they created trusts naming themselves as life beneficiaries.10
23
Applying this test to the present case, we think it clear that the value of the Janet Grace trust fund must be included in decedent's estate for federal estate tax purposes. It is undisputed that the two trusts are interrelated. They are substantially identical in terms and were created at approximately the same time. Indeed, they were part of a single transaction designed and carried out by decedent. It is also clear that the transfers in trust left each party, to the extent of mutual value, in the same objective eo nomic position as before. Indeed, it appears, as would be expected in transfers between husband and wife, that the effective position of each party vis-a -vis the property did not change at all. It is no answer that the transferred properties were different in character. For purposes of the estate tax, we think that economic value is the only workable criterion. Joseph Grace's estate remained undiminished to the extent of the value of his wife's trust and the value of his estate must accordingly be increased by the value of that trust.
24
The judgment of the Court of Claims is reversed and the case is remanded for further proceedings consistent with this opinion.
25
It is so ordered.
26
Reversed and remanded.
27
Mr. Justice STEWART took no part in the consideration or decision of this case.
28
Mr. Justice DOUGLAS, dissenting.
29
The object of a reciprocal trust, as I understand it, is for each settlor to rid himself of all taxable power over the corpus by exchanging taxable powers with the other settlor. Yet Joseph P. Grace and his wife did not exchange taxable powers. Each retained a sufficient power over the corpus to require the inclusion of the corpus in his or her taxable estate. Each settlor, as one of the three trustees, reserved the right to alter the trust by paying to the chief beneficiary 'any amounts of the principal of the said trust, up to and including the whole thereof, which the said Trustees or a majority of them may at any time or from time to time deem advisable.' I have quoted from Janet Grace's trust. But an almost identical provision is in the trust of Joseph P. Grace.
30
I would conclude from the existence of this reserved power* that the corpus of the Janet Grace trust was includible in her estate for purposes of the estate tax. Lober v. United States, 346 U.S. 335, 74 S.Ct. 98, 98 L.Ed. 15.
31
That is to say the use of a reciprocal trust device to aid the avoidance of an estate tax is simply not presented by this case.
32
I would dismiss the petition as improvidently granted.
1
Section 811(c)(1)(B) provided that—
'The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property * * *
'(c) * * *
'(1) General rule. To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money's worth), by trust or otherwise—
'(B) under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death (i) the possession or enjoyment of, or the right to the income from, the property, or (ii) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom * * *.'
Section 811(c)(1)(B) has been recodified as § 2036 of the Internal Revenue Code of 1954, 26 U.S.C. § 2036.
2
See Colgan & Molloy, Converse Trusts—The Rise And Call Of A Tax Avoidance Device, 3 Tax L.Rev. 271 (1948).
3
See e.g., Glaser v. United States, 306 F.2d 57 (C.A.7th Cir. 1962); Estate of Moreno v. Commissioner of Internal Revenue, 260 F.2d 389 (C.A.8th Cir. 1958); Hanauer's Estate v. Commissioner of Internal Revenue, 149 F.2d 857 (C.A.2d Cir.), cert. denied, 326 U.S. 770, 66 S.Ct. 175, 90 L.Ed. 465 (1945); Cole's Estate v. Commissioner of Internal Revenue, 140 F.2d 636 (C.A.8th Cir. 1944).
4
See S.Rep. No. 831, 81st Cong., 1st Sess., 5—6 (1949); H.R.Rep. No. 920, 81st Cong. 1st Sess., 5 (1949).
5
See McLain v. Jarecki, 232 F.2d 211 (C.A.7th Cir. 1956); Newberry's Estate v. Commissioner of Internal Revenue, 201 F.2d 874, 38 A.L.R.2d 514 (C.A.3d Cir. 1953); In re Lueder's Estate, 164 F.2d 128 (C.A.3d Cir. 1947).
6
E.g., Orvis v. Higgins, 180 F.2d 537 (C.A.2d Cir.), cert. denied, 340 U.S. 810, 71 S.Ct. 37, 95 L.Ed. 595 (1950).
7
See cases cited in n. 5, supra.
8
For example, in the present case decedent ostensibly devised the trust plan to avoid an imminent federal gift tax. Instead of establishing trusts for the present benefit of his children, he chose an arrangement under which he and his wife retained present enjoyment of the property and under which the property would pass to their children without imposition of either estate or gift tax.
9
The present case is probably typical in this regard. Janet Grace created her trust because decedent requested that she do so; it was in no real sense a bargained-for quid pro quo for his trust. See also Hanauer's Estate v. Commissioner, supra, n. 3.
10
We do not mean to say that the existence of 'consideration,' in the traditional legal sense of a bargained-for exchange, can ever be relevant. In certain cases, inquiries into the settlor's reasons for creating the trusts may be helpful in establishing the requisite link between the two trusts. We only hold that a finding of a bargained-for consideration is not necessary to establish reciprocity.
*
The relevant provision of the 1939 Internal Revenue Code (§ 811(d)(2)) is practically identical with the corresponding provision of the 1954 Code (26 U.S.C. § 2038(a)(2)). Each provides that a decedent's gross estate shall include property—
'To the extent of any interest therein of which the decedent has at any time made a transfer * * * where the enjoyment thereof was subject at the date of his death to any change throught the exercise of a power * * * by the decedent alone or in conjunction with any person, to alter, amend, or revoke * * *.' (Emphasis supplied.)
The provisions of the Joseph and Janet Grace trusts would seem to satisfy that test, for only two out of the three trustees were necessary to alter the trust. See Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 56 S.Ct. 70, 80 L.Ed. 62.
| 1112
|
395 U.S. 225
89 S.Ct. 1670
23 L.Ed.2d 263
UNITED STATES, Petitioner,v.MONTGOMERY COUNTY BOARD OF EDUCATION et al. Arlam CARR, Jr., by Arlam Carr and Johnnie Cr r, etc., et al., Petitioners, v. MONTGOMERY COUNTY BOARD OF EDUCATION et al.
Nos. 798, 997.
Argued April 28, 1969.
Decided June 2, 1969.
Sol. Gen. Erwin N. Griswold and Jack Greenberg, New York City, for petitioners.
Joseph D. Phelps, Montgomery, Ala., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
In this action the United States District Court at Montgomery, Alabama, ordered the local Montgomery County Board of Education to bring about a racial desegregation of the faculty and the staff of the local county school system. 289 F.Supp. 647 (1968). Dissatisfied with the District Court's order, the board appelled. A panel of the Court of Appeals affirmed the District Court's order but, by a two-to-one vote, modified it in part, 400 F.2d 1 (1968).1 A petition for rehearing en banc was denied by an evenly divided court, six to six, thereby leaving standing the modifications in the District Court's order made by the panel.2 On petitions of the United States as intervenor below in No. 798, and the individual plaintiffs in No. 997, we granted certiorari. 393 U.S. 1116, 89 S.Ct. 989, 22 L.Ed.2d 121 (1969).
2
Fifteen years ago, on May 17, 1954, we decided that segregation of the races in the public schools is unconstitutional. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 38 A.L.R.2d 1180 (Brown I). In that case we left undecided the manner in which the transition from segregated to unitary school systems would be achieved, and set the case down for another hearing, inviting the Attorney General of the United States and the Attorneys General of the States providing for racial segregation in the public schools to present their views on the best ways to implement and enforce our judgment. We devoted four days to the argument on this single problem, and all the affected parties were given the opportunity to present their views at length. After careful consideration of the many viewpoints so fully aired by the parties, we announced our decision in Brown II, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). We held that the primary responsibility for abolishing the system of segregated schools would rest with the local school authorities. In some of the States that argued before us, the laws permitted but did not require racial segregation, and we noted that in some of these States 'substantial steps to eliminate racial discrimination in public schools have already been taken * * *.' Id., at 299, 75 S.Ct., at 756. Many other States had for many years maintained a completely separate system of schools for whites and nonwhites, and the laws of these States, both civil and criminal, had been written to keep this segregated system of schools inviolate. The practices, habits, and customs had for generations made this segregated school system a fixed part of the daily life and expectations of the people. Recognizing these indisputable facts, we neither expected nor ordered that a complete abandonment of the old and adoption of a new system be accomplished overnight. The changes were to be made 'at the earliest practicable date' and with 'all deliberate speed.' Id., at 300, 301, 75 S.Ct., at 756. We were not content, however, to leave this task in the unsupervised hands of local school authorities, trained as most would be under the old laws and practices, with loyalties to the system of separate white and Negro schools. As we stressed then, '(I)t should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.' Id., at 300, 75 S.Ct., at 756. The problem of delays by local school authorities during the transition period was therefore to be the responsibility of courts, local courts so far as practc able, those courts to be guided by traditional equitable flexibility to shape remedies in order to adjust and reconcile public and private needs. These courts were charged in our Brown II opinion, id., at 300, 75 S.Ct., at 756, with a duty to:
3
'require that the defendants (local school authorities) make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date.'
4
The record shows that neither Montgomery County nor any other area in Alabama voluntarily took any effective steps to integrate the public schools for about 10 years after our Brown I opinion. In fact the record makes clear that that state government and its school officials attempted in every way possible to continue the dual system of racially segregated schools in defiance of our repeated unanimous holdings that such a system violated the United States Constitution.3
5
There the matter stood in Alabama in May 1964 when the present action was brought by Negro children and their parents, with participation by the United States as amicus curiae. Apparently up to that time Montgomery County, and indeed all other schools in the State, had operated, so far as actual racial integration was concerned, as though our Brown cases had never been decided. Obviously voluntary integration by the local school officials in Montgomery had not proved to be even partially successful. Consequently, if Negro children of school age were to receive their constitutional rights as we had declared them to exist, the coercive assistance of courts was imperatively called for. So, after preliminary procedural matters were disposed of, answers filed, and issues joined, a trial took place. On July 31, 1964, District Judge Johnson handed down an opinion and entered an order. 232 F.Supp. 705. The judge found that at the time:
6
'There is only one school district for Montgomery County, Alabama, with the County Board of Education and the Superintendent of Education of Montgomery County, Alabama, exercising complete control over the entire system. In this school system for the school year 1963—64, there were in attendance approximately 15,000 Negro children and approximately 25,000 white children. In this system the Montgomery County Board of Education owns and operates approximately 77 schools.
7
'From the evidence in this case, this Court further specifically finds that, through policy, custom and practice, the Montgomery County Board of Education, functioning at the present time through the named individual defendants, operates a dual school system based upon race and color; that is to say, that, through this policy, practice and custom, these officials operate one set of schools to be attended exclusively by Negro students and one set of schools to be attended exclusively by white students. The evidence further reflects that the teachers are assigned according to race; Negro teachers are assigned only to schools attended by Negro students and white teachers are assigned only to schools attended by white students.' 232 F.Supp., at 707.
8
Board on his findings, Judge Johnson ordered that integration of certain grades begin in September 1964, but in this first order did no require efforts to desegregate the faculty. The school board, acting under the State's school placement law, finally admitted eight Negro students out of the 29 who had sought transfers to white schools under the judge's July 31 order. The judge refused to order admission of the 21 Negro students whose transfer applications had been rejected by the school officials.
9
The 1964 initial order of Judge Johnson was followed by yearly proceedings, opinions, and orders by him.4 Hearings, preceding these additional orders, followed the filing each year under the judge's direction of a report of the school board's plans for proceeding with desegregation. These annual reports and orders, together with transcripts of the discussions at the hearings, seem to reveal a growing recognition on the part of the school board of its responsibility to achieve integration as rapidly as practicable. The record, however, also reveals that in some areas the board was not moving as rapidly as it could to fulfill this duty, and the record shows a constant effort by the judge to expedite the process of moving as rapidly as practical toward the goal of a wholly unitary system of schools, not divided by race as to either students or faculty. During these years of what turned out to be an exchange of ideas between judge and school board officials, the judge, from time to time, found it possible to compliment the board on its cooperation with him in trying to bring about a fully integrated school system. Some of these complimentary remarks are set out in the opinion of the Court of Appeals modifying the judge's decree. 400 F.2d, at 3, n. 3. On the other hand the board did not see eye to eye with Judge Johnson on the speed with which segregation should be wiped out 'root and branch' as we have held it must be done. Green v. County School Board, 391 U.S. 430, 438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). The school board, having to face the 'complexities arising from the transition to a system of public education freed of racial discrimination,' Brown II, 349 U.S., at 299, 75 S.Ct., at 755, 99 L.Ed. 1083 was constantly sparring for time; the judge, upon whom was thrust the difficult task of insuring the achievement of complete integration at the earliest practicable date, was constantly urging that no unnecessary delay could be allowed in reaching complete compliance with our mandate that racially segregated public schools be made nothing but a matter of past history. In this context of clashing objectives it is not surprising that the judge's most recent 1968 order should have failed fully to satisfy either side. It is gratifying, however, that the differences are so minor as they appear to us to be.
10
In his 1968 order Judge Johnson provided for safeguards to assure that construction of new schools or additions to existing schools would not follow a pattern tending to perpetuate segregation. The order also provided for the adoption of nondiscriminatory bus routes and for other safeguards to insure that the board's transportation policy would not tend to perpetuate segregation. The order provided for detailed steps to eliminate the impression existing in the school district that the new Jefferson Davis High School and two new elementary schools were to be used primarily by white students. The order also included a requirement that the board file in the near future further specific reports detailing the steps take to comply with each point of the order. Nearly all of these aspects of the order were accepted by the school board and not challenged in its appeal to the Court of Appeals. Of the provisions so far mentioned, only one aspect of the provision relating to Jefferson Davis High School was challenged in the Court of Appeals, and after the Court of Appeals upheld Judge Johnso' § order on this point, the school board accepted its decision and did not seek review on the question here.
11
The dispute in this action thus centers only on that part of the 1968 order which deals with faculty and staff desegregation, a goal that we have recognized to be an important aspect of the basic task of achieving a public school system wholly free from racial discrimination. See, e.g., Bradley v. School Board of City of Richmond, Va., 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965); Rogers v. Paul, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265 (1965). Judge Johnson noted that in 1966 he had ordered the board to begin the process of faculty desegregation in the 1966—1967 school year but that the board had not made adequate progress toward this goal. He also found:
12
'The evidence does not reflect any real administrative problems involved in immediately desegregating the substitute teachers, the student teachers, the night school faculties, and in the evolvement of a really legally adequate program for the substantial desegregation of the faculties of all schools in the system commencing with the school year of 1968 69.' 289 F.Supp., at 650.
13
He therefore concluded that a more specific order would be appropriate under all the circumstances to establish the minimum amount of progress that would be required for the future. To this end his order provided that the board must move toward a goal under which 'in each school the ratio of white to Negro faculty members is substantially the same as it is throughout the system.' Id., at 654. In addition, the order set forth a specific schedule. The ratio of Negro to white teachers in the assignment of substitute, student and night school teachers in each school was to be almost immediately made substantially the same as the ratio of Negro to white teachers in each of these groups for the system as a whole. With respect to full-time teachers, a more gradual schedule was set forth. At the time the ratio of white to Negro full-time teachers in the system as a whole was three to two. For the 1968—1969 school year, each school with fewer than 12 teachers was required to have at least two full-time teachers whose race was different from the race of the majority of the faculty at that school, and in schools with 12 or more teachers, the race of at least one out of every six faculty and staff members was required to be different from the race of the majority of the faculty and staff members at that school. The goals to be required for future years were not specified but were reserved for later decision. About a week later Judge Johnson amended part of the original order by providing that in the 1968—1969 term schools with less than 12 teachers would be required to have only one full-time teacher of the minority race rather than two, as he had originally required.
14
It was the part of the District Court's order containing this ratio pattern that prompted the modification of the order by the Court of Appeals. Agreeing that the District Court had properly found from 'extensive hearings * * * that desegregation of faculties in the Montgomery County school system was lagging and that appellants (the school board) had failed to comply with earlier orders of the court requiring full faculty desegregation,' and noting that the testimony of school officials themselves indicated the need for more specific guidelines,5 the Court of Appeals nevertheless struck down parts of the order which it viewed as requiring 'fixed mathematical' ratios. It held that the part of the order setting a specific goal for the 1968 1969 school year should be modified to require only substantially or approximately' the 5—1 ratio required by Judge Johnson's order. With respect to the ultimate objective for the future, it held that the numerical ratio should be eliminated and that compliance should not be tested solely by the achievement of specified ratios. In so holding, the Court of Appeals made many arguments g ainst rigid or inflexible orders in this kind of case. These arguments might possibly be more troublesome if we read the District Court's order as being absolutely rigid and inflexible, as did the Court of Appeals. But after a careful consideration of the whole record we cannot believe that Judge Johnson had any such intention. During the four or five years that he held hearings and considered the problem before him, new orders, as previously shown, were issued annually and sometimes more often. On at least one occasion Judge Johnson, on his own motion, amended his outstanding order because a less stringent order for another district had been approved by the Court of Appeals. This was done in order not to inflict any possible injustice on the Montgomery County school system. Indeed the record is filled with statements by Judge Johnson showing his full understanding of the fact that, as this Court also has recognized, in this field the way must always be left open for experimentation.6
15
Judge Johnson's order now before us was adopted in the spirit of this Court's opinion in Green v. County School Board, supra, 391 U.S., at 439, 88 S.Ct., at 1694, 20 L.Ed.2d 716, in that his plan 'promises realistically to work, and promises realistically to work now.' The modifications ordered by the panel of the Court of Appeals, while of course not intended to do so, would, we think, take from the order some of its capacity to expedite, by means of specific commands, the day when a completely unified, unitary, nondiscriminatory school system becomes reality instead of a hope. We believe it best to leave Judge Johnson's order as written rather than as modified by the 2—1 panel, particularly in view of the fact that the Court of Appeals as a whole was evenly divided on this subject. We also believe that under all the circumstances of this case we follow the original plan outlined in Brown II, as brought up to date by this Court's opinions in Green v. County School Board, supra, and Griffin v. County School Board, 377 U.S. 218, 233—234, 84 S.Ct. 1226, 1234—1235, 12 L.Ed.2d 256 (1964), by accepting the more specific and expeditious order of Judge Johnson, whose patience and wisdom are written for all to see and read on the pages of the five-year record before us.
16
It is good to be able to decide a case with the feelings we have about this one The differences between the parties are exceedingly narrow. Respondents, members of the Montgomery County school board, state clearly in their brief, 'These respondents recognize their affirmative responsibility to provide a desegregated, unitary and nonracial school system. These respondents recognize their responsibility to assign teachers without regard to race so that schools throughout the system are not racially identifiable by their faculties * * *.' Brief for Respondents 11—12. Petitioners, on the other hand, do not argue for precisely equal ratios in every single school under all circumstances. As the United States, petitioner in No. 798, recognizes in its brief, the District Court's order 'is designed as a remedy for past racial assignment * * *. We do not, in other words, argue here that racially balanced faculties are constitutionally or legally required.' Brief for the United States 13. In short the Montgomery County school board, and its counsel, assert their purpose to bring about a racially integrated school system as early as practicable in good-faith obedience to this Court's decisions. Both the District Judge and the Court of Appeals have accorded to the parties and their counsel courteous and patient consideration; there is no sign of lack of interest in the cause of either justice or education in the views maintained by any of the parties or in the orders entered by either of the courts below. Despite the fact that the individual petitioners in this litigation have with some reason argued that Judge Johnson should have gone farther to protect their rights than he did, we approve his order as he wrote it. This, we believe, is the best course we can take in the interest of the petitioners and the public school system of Alabama. We hope and believe that this order and the approval that we now give it will carry Alabama a long distance on its way toward obedience to the law of the land as we have declared it in the two Brown cases and those that have followed them.
17
The judgment of the Court of Appeals is reversed, and the cases are remanded with directions to affirm the judgment of the District Court.
18
It is so ordered.
19
Judgment of Court of Appeals reversed and case remanded with directions.
1
The dissent from the original panel opinion is reported at 402 F.2d 782.
2
The dissents from the denial en banc of the petition for rehearing are reported at 402 F.2d, at 784, 787.
3
A substantial part of the history of the continued support by Alabama's governor and other state officials for its dual system of schools, completely separating white and nonwhite students, faculty, and staff, can be found in the opinion of the three-judge court for the Middle District of Alabama in Lee v. Macon County Board of Education, 267 F.Supp. 458 (1967), affirmed by this Court under the title of Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967).
4
These orders were reported as follows: May 18, 1965, 10 Race Rel.L.Rep. 582; March 22, 1966, 253 F.Supp. 306: August 18, 1966, 11 Race Rel.L.Rep. 1716; June 1, 1967, 12 Race Rel.L.Rep. 1200.
5
The Court of Appeals quoted the following excerpt from the testimony of Associate Superintendent W. S. Garrett:
'Q. Well, under your plan, when do you estimate that faculty desegregation will be finally accomplished in terms of the objective of the court order removing—
'A. Well, now, that is something I don't know, because I don't know what the objectives of the court order are. That has never been laid down in any percentage fashion that I know of. It says that you will have reasonable desegregation of faculty and that you will strive toward having each faculty not recognizable as being staffed for a particular race. That is what I get out of it.
'Q. Well, let—
'A. So I—I can't—this court order is in fairly general terms; I can't answer that question.
'Q. Well, you made the statement about having schools staffed so that they will not be recognizable as for a particular race; when do you expert that that will be accomplished?
'A. Well, that would depend on what the Board's definition of that is, the court's definition of that.
'Q. Do you have a definition of that?
'A. Not at this point; we have discussed that many times, and I do not have a definition of—of what that would mean.
'Q. No one has told you, given you a definition in terms of mechanics, in terms of numbers, none of your superiors?
'A. No, as far as I know, no other school personnel man in America has. I have talked to many of them. What we are striving to do is to make progress and keep going and hope that somewhere along the line we will have achieved the—what the court has in mind. But if you will look at that court order, you will see it doesn't lay down the precise terms exactly what that means; it is a broad definition.'
6
As we stated in Green v. County School Board, supra, 391 U.S., at 439, 88 S.Ct. at 1695, 20 L.Ed.2d 716:
'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.'
| 12
|
395 U.S. 367
89 S.Ct. 1794
23 L.Ed.2d 371
RED LION BROADCASTING CO., Inc., etc., et al., Petitioners,v.FEDERAL COMMUNICATIONS COMMISSION et al. UNITED STATES et al., Petitioners, v. RADIO TELEVISION NEWS DIRECTORS ASSOCIATION et al.
Nos. 2 and 717.
Argued April 2 and 3, 1969.
Decided June 9, 1969.
[Syllabus from 368 intentionally omitted]
Roger Robb, Washington, D.C., for petitioners Red Lion Broadcasting Co., Inc. and others.
Solicitor Gen., Erwin N. Griswold, for respondents F.C.C. and others and petitioners the United States and others.
Archibald Cox, Washington, D.C., for respondents Radio Television News Directors Assn. and others.
Mr. Justice WHITE delivered the opinion of the Court.
1
The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine, which originated very early in the history of broadcasting and has maintained its present outlines for some time. It is an obligation whose content has been defined in a long series of FCC rulings in particular cases, and which is distinct from the statutory requirement of § 315 of the Communications Act1 that equal time be allotted all qualified candidates for public office. Two aspects of the fairness doctrine, relating to personal attacks in the context of controversial public issues and to political editorializing, were codified more precisely in the form of FCC regulations in 1967. The two cases before us now, which were decided separately below, challenge the constitutional and statutory bases of the doctrine and component rules. Red Lion involves the application of the fairness doctrine to a particular broadcast, and RTNDA arises as an action to review the FCC's 1967 promulgation of the personal attack and political editorializing regulations, which were laid down after the Red Lion litigation had begun.
I.
A.
2
The Red Lion Broadcasting Company is licensed to operate a Pennsylvania radio station, WGCB. On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a 'Christian Crusade' series. A book by Fred J. Cook entitled 'Goldwater—Extremist on the Right' was discussed by Hargis, who said that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; and that he had now written a 'book to smear and destroy Barry Goldwater.'2 When Cook heard of the broadcast he concluded that he had been personally attacked and demanded free reply time, which the station refused. After an exchange of letters among Cook, Red Lion, and the FCC, the FCC declared that the Hargis broadcast constituted a personal attack on Cook; that Red Lion had failed to meet its obligation under the fairness doctrine as expressed in Times-Mirror Broadcasting Co., 24 P & F Radio Reg. 404 (1962), to send a tape, transcript, or summary of the broadcast to Cook and offer him reply time; and that the station must provide reply time whether or not Cook would pay for it. On review in the Court of Appeals for the District of Columbia Circuit,3 the FCC's position was upheld as constitutional and otherwise proper. 127 U.S.App.D.C. 129, 381 F.2d 908 (1967).
B.
3
Not long after the Red Lion litigation was begun, the FCC issued a Notice of Proposed Rule Making, 31 Fed.Reg. 5710, with an eye to making the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specifying its rules relating to political editorials. After considering written comments supporting and opposing the rules, the FCC adopted them substantially as proposed, 32 Fed.Reg. 10303. Twice amended, 32 Fed.Reg. 11531, 33 Fed.Reg. 5362, the rules were held unconstitutional in the RTNDA litigation by the Court of Appeals for the Seventh Circuit, on review of the rulemaking proceeding, as abridging the freedoms of speech and press. 400 F.2d 1002 (1968).
4
As they now stand amended, the regulations read as follows:
5
'Personal attacks; political editorials.
6
'(a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than 1 week after the attack, transmit to the person or group attacked (1) notification of the date, time and identification of the broadcast; (2) a script or tape (or an accurate summary if a script or tape is not available ) of the attack, and (3) an offer of a reasonable opportunity to respond over the licensee's facilities.
7
'(b) The provisions of paragraph (a) of this section shall not be applicable (1) to attacks on foreign groups or foreign public figures; (2) to personal attacks which are made by legally qualified candidates, their authorized spokesmen, or those associated with them in the campaign, on other such candidates, their authorized spokesmen, or persons associated with the candidates in the campaign; and (3) to bona fide newscasts, bona fide news interviews, and on-the-spot coverage of a bona fide news event (including commentary or analysis contained in the foregoing programs, but the provisionso f paragraph (a) of this section shall be applicable to editorials of the licensee).
8
'NOTE: The fairness doctrine is applicable to situations coming within ((3)), above, and, in a specific factual situation, may be applicable in the ((2)), above. See, section 315(a) of the Act, 47 U.S.C. § 315(a); Public Notice: Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance. 29 F.R. 10415. The categories listed in ((3)) are the same as those specified in section 315(a) of the Act.
9
'(c) Where a licensee, in an editorial, (i) endorses or (ii) opposes a legally qualified candidate or candidates, the licensee shall, within 24 hours after the editorial, transmit to respectively (i) the other qualified candidate or candidates for the same office or (ii) the candidate opposed in the editorial (1) notification of the date and the time of the editorial; (2) a script or tape of the editorial; and (3) an offer of a reasonable opportunity for a candidate or a spokesman of the candidate to respond over the licensee's facilities: Provided, however, That where such editorials are broadcast within 72 hours prior to the day of the election, the licensee shall comply with the provisions of this paragraph sufficiently far in advance of the broadcast to enable the candidate or candidates to have a reasonable opportunity to prepare a response and to present it in a timely fashion.' 47 CFR §§ 73.123, 73.300, 73.598, 73.679 (all identical).
C.
10
Believing that the specific application of the fairness doctrine in Red Lion, and the promulgation of the regulations in RTNDA, are both authorized by Congress and enhance rather than abridge the freedoms of speech and press protected by the First Amendment, we hold them valid and constitutional, reversing the judgment below in RTNDA and affirming the judgment below in Red Lion.
II.
11
The history of the emergence of the fairness doctrine and of the related legislation shows that the Commission's action in the Red Lion case did not exceed its authority, and that in adopting the new regulations the Commission was implementing congressional policy rather than embarking on a frolic of its own.
A.
12
Before 1927, the allocation of frequencies was left entirely to the private sector, and the result was chaos.4 It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacaphony of competing voices, none of which could be clearly and predictably heard.5 Consequently, the Federal Radio Commission was established to allocate frequencies among competing applicants in a manner responsive to the public 'convenience, interest, or necessity.'6
13
Very shortly thereafter the Commission expressed its view that the 'public interest requires ample play for the free and fair competition of opposing views, and the commission believes that the principle applies * * * to all discussions of issues of importance to the public.' Great Lakes Broadcasting Co., 3 F.R.C.Ann.Rep. 32, 33 (1929), rev'd on other grounds, 59 App.D.C. 197, 37 F.2d 993, cert. dismissed, 281 U.S. 706, 50 S.Ct. 467, 74 L.Ed., 1129 (1930). This doctrine was applied through denial of license renewals or construction permits, both by the FRC, Trinity Methodist Church, South v. FRC, 61 App.D.C. 311, 62 F.2d 850 (1932), cert. denied, 288 U.S. 599, 53 S.Ct. 317, 77 L.Ed. 975 (1933), and its successor FCC, Young People's Association for the Propagation of the Gospel, 6 F.C.C. 178 (1938). After an extended period during which the licensee was obliged not only to cover and to cover fairly the views of others, but also to refrain from expressing his own personal views, Mayflower Broadcasting Corp., 8 F.C.C. 333 (1940), the latter limitation on the licensee was abandoned and the doctrine developed into its present form.
14
There is a twofold duty laid down by the FCC's decisions and described by the 1949 Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949). The broadcaster must give adequate coverage to public issues, United Broadcasting Co., 10 F.C.C. 515 (1945), and coverage must be fair in that it accurately reflects the opposing views. New Broadcasting Co., 6 P & F Radio Reg. 258 (1950). This must be done at the broadcaster's own expense if sponsorship is unavailable. Cullman Broadcasting Co., 25 P & F Radio Reg. 895 (1963). Moreover, the duty must be met by programming obtained at the licensee's own initiative if available from no other source. John J. Dempsey, 6 P & F Radio Reg. 615 (1950); see Metropolitan Broadcasting Corp., 19 P & F Radio Reg. 602 (1960); The Evening News Assn., 6 P & F Radio Reg. 283 (1950). The Federal Radio Commission had imposed these two basic duties on broadcasters since the outset, Great Lakes Broadcasting Co., 3 F.R.C.Ann.Rep. 32 (1929), rev'd on other grounds, 59 App.D.C. 197, 37 F.2d 993, cert. dismissed, 281 U.S. 706, 50 S.Ct. 467, 74 L.Ed. 1129 (1930); Chicago Federation of Labor v. FRC, 3 F.R.C.Ann.Rep. 36 (1929), aff'd 59 App.D.C. 333, 41 F.2d 422 (1930); KFKB Broadcasting Assn. v. FRC, 60 App.D.C. 79, 47 F.2d 670 (1931), and in particular respects the personal attack rules and regulations at issue here have spelled them out in greater detail.
15
When a personal attack has been made on a figure invov ed in a public issue both the doctrine of cases such as Red Lion and Times-Mirror Broadcasting Co., 24 P & F Radio Reg. 404 (1962), and also the 1967 regulations at issue in RTNDA require that the individual attacked himself be offered an opportunity to respond. Likewise, where one candidate is endorsed in a political editorial, the other candidates must themselves be offered reply time to use personally or through a spokesman. These obligations differ from the general fairness requirement that issues be presented, and presented with coverage of competing views, in that the broadcaster does not have the option of presenting the attacked party's side himself or choosing a third party to represent that side. But insofar as there is an obligation of the broadcaster to see that both sides are presented, and insofar as that is an affirmative obligation, the personal attack doctrine and regulations do not differ from the preceding fairness doctrine. The simple fact that the attacked men or unendorsed candidates may respond themselves or through agents is not a critical distinction, and indeed, it is not unreasonable for the FCC to conclude that the objective of adequate presentation of all sides may best be served by allowing those most closely affected to make the response, rather than leaving the response in the hands of the station which has attacked their candidacies, endorsed their opponents, or carried a personal attack upon them.
B.
16
The statutory authority of the FCC to promulgate these regulations derives from the mandate to the 'Commission from time to time, as public convenience, interest, or necessity requires' to promulgate 'such rules and regulations and prescribe such restrictions and conditions * * * as may be necessary to carry out the provisions of this chapter * * *.' 47 U.S.C. § 303 and § 303(r).7 The Commission is specifically directed to consider the demands of the public interest in the course of granting licenses. 47 U.S.C. §§ 307(a), 309(a); renewing them, 47 U.S.C. § 307; and modifying them. Ibid. Moreover, the FCC has included among the conditions of the Red Lion license itself the requirement that operation of the station be carried out in the public interest, 47 U.S.C. § 309(h). This mandate to the FCC to assure that broadcasters operate in the public interest is a broad one, a power 'not niggardly but expansive,' National Broadcasting Co. v. United States, 319 U.S. 190, 219, 63 S.Ct. 997, 1010, 87 L.Ed. 1344 (1943), whose validity we have long upheld. FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940); FCC v. RCA Communications, Inc., 346 U.S. 86, 90, 73 S.Ct. 998, 1002, 97 L.Ed. 1470 (1953); FRC v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 285, 53 S.Ct. 627, 636, 77 L.Ed. 1166 (1933). It is broad enough to encompass these regulations.
17
The fairness doctrine finds specific recognition in statutory form, is in partm odeled on explicit statutory provisions relating to political candidates, and is approvingly reflected in legislative history.
18
In 1959 the Congress amended the statutory requirement of § 315 that equal time be accorded each political candidate to except certain appearances on news programs, but added that this constituted no exception 'from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public inportance.' Act of September 14, 1959, § 1, 73 Stat. 557, amending 47 U.S.C. § 315(a) (emphasis added). This language makes it very plain that Congress, in 1959, announced that the phrase 'public interest,' which had been in the Act since 1927, imposed a duty on broadcasters to discuss both sides of controversial public issues. In other words, the amendment vindicated the FCC's general view that the fairness doctrine inhered in the public interest standard. Subsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction.8 And here this principle is given special force by the equally venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong,9 especially when Congress has refused to alter the administrative construction.10 Here, the Congress has not just kept its silence by refusing to overturn the administrative construction,11 but has ratified it with positive legislation. Thirty years of consistent administrative construction left undisturbed by Congress until 1959, when that construction was expressly accepted, reinforce the natural conclusion that the public interest language of the Act authorized the Commission to require licensees to use their stations for discussion of public issues, and that the FCC is free to implement this requirement by reasonable rules and regulations which fall short of abridgment of the freedom of speech and press, and of the censorship proscribed by § 326 of the Act.12
19
The objectives of § 315 themselves could readily be circumvented but for the complementary fairness doctrine ratified by § 315. The section applies only to campaign appearances by candidates, and not by family, friends, campaign managers, or other supporters. Without the fairness doctrine, then, a licensee could ban all campaign appearances by candidates themselves from the air13 and proceed to deliver over his station entirely to the supporters of one slate of candidates, to the exclusion of all others. In this way the broadcaster could have a far greater impact on the favored candidacy than he could by simply allowing a spot appearance by the candidate himself. It is the fairness doctrine as an aspect of the obligation to operate in the public interest, rather than § 315, which prohibits the broadcaster from taking such a step.
20
The legislative history reinforces this view of the effect of the 1959 amendment. Even before the language relevant here was added, the Senate report on amending § 315 noted that 'broadcast frequencies are limited and, therefore, they have been necessarily considered a public trust. Every licensee who is fortunate in obtaining a license is mandated to operate in the public interest and has assumed the obligation of presenting important public questions fairly and without bias.' S.Rep.No.562, 86th Cong., 1st Sess., 8—9 (1959) U.S.Code Cong. & Adm.News, p. 2571, See also, specifically adverting to Federal Communications Commission doctrine, id., at p. 13.
21
Rather than leave this approval solely in the legislative history, Senator Proxmire suggested an amendment to make it part of the Act. 105 Cong.Rec. 14457. This amendment, which Senator Pastore, a manager of the bill and a ranking member of the Senate Committee, considered 'rather surplusage,' 105 Cong.Rec. 14462, constituted a positive statement of doctrine14 and was altered to the present merely approving language in the conference committee. In explaining the language to the Senate after the committee changes, Senator Pastore said: 'We insisted that that provision remain in the bill, to be a continuing reminder and admonition to the Federal Communications Commission and to the broadcastes alike, that we were not abandoning the philosophy that gave birth to section 315, in giving the people the right to have a full and complete disclosure of conflicting views on news of interest to the people of the country.' 105 Cong.Rec. 17830. Senator Scott, another Senate manager, added that: 'It is intended to encompass all legitimate areas of public importance which are controversial,' not just politics. 105 Cong.Rec. 17831.
22
It is true that the personal attack aspect of the fairness doctrine was not actually adjudicated until after 1959, so that Congress then did not have those rules specifically before it. However, the obligation to offer time to reply to a personal attack was presaged by the FCC's 1949 Report on Editorializing, which the FCC views as the principal summary of its ratio decidendi in cases in this area:
23
'In determining whether to honor specific requests for time, the station will inevitably be confronted with such questions as * * * whether there may not be other available groups or individuals who might be more appropriate spokesmen for the particular point of view than the person making the request. The latter's personal involvement in the controversy may also be a factor which must be considered, for elementary considerations of fairness may dictate that time be allocated to a person or group which has been specifically attacked over the station, where otherwise no such obligation would exist.' 13 F.C.C., at 1251—1252.
24
When the Congress ratified the FCC's implication of a fairness doctrine in 1959 it did not, of course, approve every past decision or pronouncement by the Commission on this subject, or give it a completely free hand for the future. The statutory authority does not go so far. But we cannot say that when a station publishes personal attacks or endorses political candidates, it is a misconstruction of the public interest standard to require the station to offer time for a response rather than to leave the response entirely within the control of the station which has attacked either the candidacies or the men who wish to reply in their own defense. When a broadcaster grants time to a political candidate, Congress itself requires that equal time be offered to his opponents. It would exceed our competence to hold that the Commission is unauthorized by the statute to employ a similar device where personal attacks or political editorials are broadcast by a radio or television station.
25
In light of the fact that the 'public interest' in broadcasting clearly encompasses the presentation of vigorous debate of controversial issues of importance and concern to the public; the fact that the FCC has rested upon that language from its very inception a doctrine that these issues must be discussed, and fairly; and the fact that Congress has acknowledged that the analogous provisions of § 315 are not preclusive in this area, and knowingly preserved the FCC's complementary efforts, we think the fairness doctrine and its component personal attack and political editorializing regulations are a legitimate exercise of congressionally delegated authority. The Communications Act is not notable for the precision of its substantive standards and in this respect the explicit provisions of § 315, and the doctrine and rules at issue here which are closely modeled upon that section, are far more explicit than the generalized 'public interest' standard in which the Cm mission ordinarily finds its sole guidance, and which we have held a broad but adequate standard before. FCC v. RCA Communications, Inc., 346 U.S. 86, 90, 73 S.Ct. 998, 1002, 97 L.Ed. 1470 (1953); National Broadcasting Co. v. United States, 319 U.S. 190, 216—217, 63 S.Ct. 997, 1009 1010, 87 L.Ed. 1344 (1943); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940); FRC v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 285, 53 S.Ct. 627, 636, 77 L.Ed. 1166 (1933). We cannot say that the FCC's declaratory ruling in Red Lion, or the regulations at issue in RTNDA, are beyond the scope of the congressionally conferred power to assure that stations are operated by those whose possession of a license serves 'the public interest.'
III.
26
The broadcasters challenge the fairness doctrine and its specific manifestations in the personal attack and political editorial rules on conventional First Amendment grounds, alleging that the rules abridge their freedom of speech and press. Their contention is that the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency. No man may be prevented from saying or publishing what he thinks, or from refusing in his speech or other utterances to give equal weight to the views of his opponents. This right, they say, applies equally to broadcasters.
A.
27
Although broadcasting is clearly a medium affected by a First Amendment interest, United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915. 333, 92 L.Ed. 1260 (1948), differences in the characteristics of new media justify differences in the First Amendment standards applied to them.15 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952). For example, the ability of new technology to produce sounds more raucous than those of the human voice justifies restrictions on the sound level, and on the hours and places of use, of sound trucks so long as the restrictions are reasonable and applied without discrimination. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949).
28
Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the Government limit the use of broadcast equipment. The right of free speech of a broadcaster, the user of a sound truck, or any other individual does not embrace a right to snuff out the free speech of others. Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945).
29
When two people converse face to face, both should not speak at once if either is to be clearly understood. But the range of the human voice is so limited that there could be meaningful communications if half the people in the United States were talking and the other half listening. Just as clearly, half the people might publish and the other half read. But the reach of radio signals is incomparably greater than the range of the human voice and the problem of interference is a massive reality. The lack of know-how and equipment may keep many from the air, but only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time if intelligible communication is to be had, even if the entire radio spectrum is utilized in the present state of commercially acceptable technology.
30
It was this fact, and the chaos which ensued from permitting anyone to use any frequency at whatever power level he wished, which made necessary the enactment of the Radio Act of 1927 and the Communications Act of 1934,16 as the Court has noted at length before. National Broadcasting Co. v. United States, 319 U.S. 190, 210—214, 63 S.Ct. 997, 1006—1009, 87 L.Ed. 1344 (1943). It was this reality which at the very least necessitated first the division of the radio spectrum into portions reserved respectively for public broadcasting and for other important radio uses such as amateur operation, aircraft, police, defense, and navigation; and then the subdivision of each portion, and assignment of specific frequencies to individual users or groups of users. Beyond this, however, because the frequencies reserved for public broadcasting were limited in number, it was essential for the Government to tell some applicants that they could not broadcast at all because there was room for only a few.
31
Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. If 100 persons want broadcast licenses but there are only 10 frequencies to allocate, all of them may have the same 'right' to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum.
32
This has been the consistent view of the Court. Congress unquestionably has the power to grant and deny licenses and to eliminate existing stations. FRC v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166 (1933). No one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because 'the public interest' requires it 'is not a denial of free speech.' National Broadcasting Co. v. United States, 319 U.S. 190, 227, 63 S.Ct. 997, 1014, 87 L.Ed. 1344 (1943).
33
By the same token, as far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused. A license permits broadcasting, but the lisensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.
34
This is not to say that the First Amendment is irrelevant to public broadcasi ng. On the contrary, it has a major role to play as the Congress itself recognized in § 326, which forbids FCC interference with 'the right of free speech by means of radio communication.' Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. See FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 475, 60 S.Ct. 693, 697, 84 L.Ed. 869 (1940); FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 361—362, 75 S.Ct. 855, 857—858, 99 L.Ed. 1147 (1955); 2 Z. Chafee, Government and Mass Communications 546 (1947). It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945); New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964); Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting). '(S)peech concerning public affairs is more than self-expression; it is the essence of self-government.' Garrison v. Louisiana, 379 U.S. 64, 74—75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). See Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv.L.Rev. 1 (1965). It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.
B.
35
Rather than confer frequency monopolies on a relatively small number of licensees, in a Nation of 200,000,000, the Government could surely have decreed that each frequency should be shared among all or some of those who wish to use it, each being assigned a portion of the broadcast day or the broadcast week. The ruling and regulations at issue here do not go quite so far. They assert that under specified circumstances, a licensee must offer to make available a reasonable amount of broadcast time to those who have a view different from that which has already been expressed on his station. The expression of a political endorsement, or of a personal attack while dealing with a controversial public issue, simply triggers this time sharing. As we have said, the First Amendment confers no right on licensees to prevent others from broadcasting on 'their' frequencies and no right to an unconditional monopoly of a scarce resource which the Government has denied others the right to use.
36
In terms of constitutional principle, and as enforced sharing of a scarce resource, the personal attack and political editorial rules are indistinguishable from the equal-time provision of § 315, a specific enactment of Congress requiring stations to set aside reply time under specified circumstances and to which the fairness doctrine and these constituent regulations are important complements. That provision, which has been part of the law since 1927, Radio Act of 1927, § 18, 44 Stat. 1170, has been held valid by this Court as an obligation of the licensee relieving him of any power in any way to prevent or censor the broadcast, and thus insulating him from liability for defamation. The constitutionality of the statute under the First Amendment was unquestioned.17 Farmers Educ. & Coop. Union v. WDAY, 360 U.S. 525, 79 S.Ct. 1302, 3 L.Ed.2d 1407 (1959).
37
Nor can we say that it is inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs to require a broadcaster to permit answers to personal attacks occurring in the course of discussing controversial issues, or to require that the political opponents of those endorsed by the station be given a chance to communicate with the public.18 Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed. There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. 'Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.' Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1425, 89 L.Ed. 2013 (1945).
C.
38
It is strenuously argued, however, that if political editorials or personal attacks will trigger an obligation in broadcasters to afford the opportunity for expression to speakers who need not pay for time and whose views are unpalatable to the licensees, then broadcasters will be irresistibly forced to self-censorship and their coverage of controversial public issues will be eliminated or at least rendered wholly ineffective. Such a result would indeed be a serious matter, for should licensees actually eliminate their coverage of controversial issues, the purposes of the doctrine would be stifled.
39
At this point, however, as the Federal Communications Commission has indicated, that possibility is at best speculative. The communications industry, and in particular the networks, have taken pains to present controversial issues in the past, and even now they do not assert that they intend to abandon their efforts in this regard.19 It would be better if the FCC's encouragement were never necessary to induce the broadcasters to meet their responsibility. And if experience with the administration of those doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications. The fairness doctrine in the past has had no such overall effect.
40
That this will occur now seems unlikely, however, since ifp resent licensees should suddenly prove timorous, the Commission is not powerless to insist that they give adequate and fair attention to public issues. It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern. To condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press. Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions. The statute, long administrative practice, and cases are to this effect.
41
Licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them. 47 U.S.C. § 301. Unless renewed, they expire within three years. 47 U.S.C. § 307(d). The statute mandates the issuance of licenses if the 'public convenience, interest, or necessity will be served thereby.' 47 U.S.C. § 307(a). In applying this standard the Commission for 40 years has been choosing licensees based in part on their program proposals. In FRC v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 279, 53 S.Ct. 627, 634, 77 L.Ed. 1166 (1933), the Court noted that in 'view of the limited number of available broadcasting frequencies, the Congress has authorized allocation and licenses.' In determining how best to allocate frequencies, the Federal Radio Commission considered the needs of competing communities and the programs offered by competing stations to meet those needs; moreover, if needs or programs shifted, the Commission could alter its allocations to reflect those shifts. Id., at 285, 53 S.Ct. at 636. In the same vein, in FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137—138, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940), the Court noted that the statutory standard was a supple instrument to effect congressional desires 'to maintain * * * a grip on the dynamic aspects of radio transmission' and to allay fears that 'in the absence of governmental control the public interest might be subordinated to monopolistic domination in the broadcasting field.' Three years later the Court considered the validity of the Commission's chain broadcasting regulations, which among other things forbade stations from devoting too much time to network programs in order that there be suitable opportunity for local programs serving local needs. The Court upheld the regulations, unequivocally recognizing that the Commission was more than a traffic policeman concerned with the technical aspects of broadcasting and that it neither exceeded its powers under the statute nor transgressed the First Amendment in interesting itself in general program format and the kinds of programs broadcast by licensees. National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943).
D.
42
The litigants embellish their First Amendment arguments with the contention that the regulations are so vague that their duties are impossible to discern. Of this point it is enough to say that, judging the validity of the regulations on their face as they are presented here, we cannot conclude that the FCC has been left a free hand to vindicate its own idiosyncratic conception of the public interest or of the requirements of free speech. Past adjudications by the FCC give added precision to the regulations; there was nothing vague about the FCC's specific ruling in Red Lion that Fred Cook should be provided an opportunity to reply. The regulations at issue in RTNDA could be employed in precisely the same way as the fairness doctrine was in Red Lion. Moreover, the FCC itself has recognized that the applicability of its regulations to situations beyond the scope of past cases may be questionable, 32 Fed.Reg. 10303, 10304 and n. 6, and will not impose sanctions in such cases without warning. We need not approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable, United States v. Sullivan, 332 U.S. 689, 694, 68 S.Ct. 331, 334, 92 L.Ed. 297 (1948), but will deal with those problems if and when they arise.
43
We need not and do not now ratify every past and future decision by the FCC with regard to programming. There is no question here of the Commission's refusal to permit the broadcaster to carry a particular program or to publish his own views; of a discriminatory refusal to require the licensee to broadcast certain views which have been denied access to the airwaves; of government censorship of a particular program contrary to § 326; or of the official government view dominating public broadcasting. Such questions would raise more serious First Amendment issues. But we do hold that the Congress and the Commission do not violate the First Amendment when they require a radio or television station to give reply time to answer personal attacks and political editorials.
E.
44
It is argued that even if at one time the lack of available frequencies for all who wished to use them justified the Government's choice of those who would best serve the public interest by acting as proxy for those who would present differing views, or by giving the latter access directly to broadcast facilities, this condition no longer prevails so that continuing control is not justified. To this there are several answers.
45
Scarcity is not entirely a thing of the past. Advances in technology, such as microwave transmission, have led to more efficient utilization of the frequency spectrum, but uses for that spectrum have also grown apace.20 Portions of the spectrum must be reserved for vital uses unconnected with human communication, such as radio-navigational aids used by aircraft and vessels. Conflicts have even emerged between such vital functions as defense preparedness and experimentation in methods of averting midair collisions through radio warning devices.21 'Land mobile services' such as police, ambulance, fire department, public utility, and other communications systems have been occupying an increasingly crowded portion of the frequency spectrum22 and there are, apart from licensed amateur radio operators' equipment, 5,000,000 transmitters operated on the 'citizens' band' which is also increasingly congested.23 Among the various uses for radio frequency space, including marine, aviation, amateur, military, and common carrier users, there are easily enough claimants to permit use of the whole with an even smaller allocation to broadcast radio and television uses than now exists.
46
Comparative hearings between competing applicants for broadcast spectrum space are by no means a thing of the past. The radio spectrum has become so congested that at times it has been necessary to suspend new applications.24 The very high frequency television spectrum is, in the country's major markets, almost entirely occupied, although space reserved for ultra high frequency television transmission, which is a relatively recent development as a commercially viable alternative, has not yet been completely filled.25
47
The rapidity with which technological advances succeed one another to create more efficient use of spectrum space on the one hand, and to create new uses for that space by ever growing numbers of people on the other, makes it unwise to speculate on the future allocation of that space. It is enough to say that the resource is one of considerable and growing importance whose scarcity impelled its regulation by an agency authorized by Congress. Nothing in this record, or in our own researches, convinces us that the resource is no longer one for which there are more immediate and potential uses than can be accommodated, and for which wise planning is essential.26 This does not mean, of course, that every possible wavelength must be occupied at every hour by some vital use in order to sustain the congressional judgment. The substantial capital investment required for many uses, in addition to the potentiality for confusion and interference inherent in any scheme for continuous kaleidoscopic reallocation of all available space may make this unfeasible. The allocation need not be made at such a breakneck pace that the objectives of the allocation are themselves imperiled.27
48
Even where there are gaps in spectrum utilization, the fact remains that existing broadcasters have often attained their present position because of their initial government selection in competition with others before new technological advances opened new opportunities for further uses. Long experience in broadcasting, confirmed habits of listeners and viewers, network affiliation, and other advantages in program procurement give existing broadcasters a substantial advantage over new entrants, even where new entry is technologically possible. These advantages are the fruit of a preferred position conferred by the Government. Some present possibility for new entry by competing stations is not enough, in itself, to render unconstitutional the Government's effort to assure that a broadcaster's programming ranges widely enough to serve the public interest.
49
In view of the scarcity of broadcast frequencies, the Government's role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at issue here are both authorized by statute and constitutional.28 The judgment of the Court of Appeals in Red Lion is affirmed and that in RTNDA reversed and the causes remanded for proceedings consistent with this opinion.
50
It is so ordered.
51
Not having heard oral argument in these cases, Mr. Justice DOUGLAS took no part in the Court's decision.
1
Communications Act of 1934, Tit. III, 48 Stat. 1081, as amended, 47 U.S.C. § 301 et seq. Section 315 now reads:
'315. Candidates for public office; facilities; rules.
'(a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office n the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any—
'(1) bona fide newscast,
'(2) bona fide news interview,
'(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or
'(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),
shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.
'(b) The charges made for the use of any broadcasting station for any of the purposes set forth in this section shall not exceed the charges made for comparable use of such station for other purposes.
'(c) The Commission shall prescribe appropriate rules and regulations to carry out the provisions of this section.'
2
According to the record, Hargis asserted that his broadcast included the following statement:
'Now, this paperback book by Fred J. Cook is entitled, 'GOLDWATER—EXTREMIST ON THE RIGHT.' Who is Cook? Cook was fired from the New York World Telegram after he made a false charge publicly on television against an un-named official of the New York City government. New York publishers and NEWSWEEK Magazine for December 7, 1959, showed that Fred Cook and his pal, Eugene Gleason, had made up the whole story and this confession was made to New York District Attorney, Frank Hogan. After losing his job, Cook went to work for the left-wing publication, THE NATION, one of the most scurrilous publications of the left which has championed many communist causes over many years. Its editor, Carry McWilliams, has been affiliated with many communist enterprises, scores of which have been cited as subversive by the Attorney General of the U.S. or by other government agencies * * *. Now, among other things Fred Cook wrote o r THE NATION, was an article absolving Alger Hiss of any wrong doing * * * there was a 208 page attack on the FBI and J. Edgar Hoover; another attack by Mr. Cook was on the Central Intelligence Agency * * * now this is the man who wrote the book to smear and destroy Barry Goldwater called 'Barry Goldwater—Extremist Of The Right!"
3
The Court of Appeals initially dismissed the petition for want of a reviewable order, later reversing itself en banc upon argument by the Government that the FCC rule used here, which permits it to issue 'a declaratory ruling terminating a controversy or removing uncertainty,' 47 CFR § 1.2, was in fact justified by the Administrative Procedure Act. That Act permits an adjudicating agency, 'in its sound discretion, with like effect as in the case of other orders, to issue a declaratory order to terminate a controversy or remove uncertainty.' § 5, 60 Stat. 239, 5 U.S.C. § 1004(d). In this case, the FCC could have determined the question of Red Lion's liability to a cease-and-desist order or license revocation, 47 U.S.C. § 312, for failure to comply with the license's condition that the station be operated 'in the public interest,' or for failure to obey a requirement of operation in the public interest implicit in the ability of the FCC to revoke licenses for conditions justifying the denial of an initial license, 47 U.S.C. § 312(a)(2), and the statutory requirement that the public interest be served in granting and renewing licenses, 47 U.S.C. § 307(a), (d). Since the FCC could have adjudicated these questions it could, under the Administrative Procedure Act, have issued a declaratory order in the course of its adjudication which would have been subject to judicial review. Although the FCC did not comply with all of the formalities for an adjudicative proceeding in this case, the petitioner itself adopted as its own the Government's position that this was a reviewable order, waiving any objection it might have had to the procedure of the adjudication.
4
Because of this chaos, a series of National Radio Conferences was held between 1922 and 1925, at which it was resolved that regulation of the radio spectrum by the Federal Government was essential and that regulatory power should be utilized to ensure that allocation of this limited resource would be made only to those who would serve the public interest. The 1923 Conference expressed the opinion that the Radio Communications Act of 1912, 37 Stat. 302, conferred upon the Secretary of Commerce the power to regulate frequencies and hours of operation, but when Secretary Hoover sought to implement this claimed power by penalizing the Zenith Radio Corporation for operating on an unauthorized frequency, the 1912 Act was held not to permit enforcement. United States v. Zenith Radio Corporation, 12 F.2d 614 (D.C.N.D.Ill.1926). Cf. Hoover v. Intercity Radio Co., 52 App.D.C. 339, 286 F. 1003 (1923) (Secretary had no power to deny licenses, but was empowered to assign frequencies). An opinion issued by the Attorney General at Hoover's request confirmed the impotence of the Secretary under the 1912 Act. 35 Op.Atty.Gen. 126 (1926). Hoover thereafter appel ed to the radio industry to regulate itself, but his appeal went largely unheeded. See generally L. Schmeckebier, The Federal Radio Commission 1—14 (1932).
5
Congressman White, a sponsor of the bill enacted as the Radio Act of 1927, commented upon the need for new legislation:
'We have reached the definite conclusion that the right of all our people to enjoy this means of communication can be preserved only by the repudiation of the idea underlying the 1912 law that anyone who will may transmit and by the assertion in its stead of the doctrine that the right of the public to service is superior to the right of any individual * * *. The recent radio conference met this issue squarely. It recognized that in the present state of scientific development there must be a limitation upon the number of broadcasting stations and it recommended that licenses should be issued only to those stations whose operation would render a benefit to the public, are necessary in the public interest, or would contribute to the development of the art. This principle was approved by every witness before your committee. We have written it into the bill. If enacted into law, the broadcasting privilege will not be a right of selfishness. It will rest upon an assurance of public interest to be served.' 67 Cong.Rec. 5479.
6
Radio Act of 1927, § 4, 44 Stat. 1163. See generally Davis, The Radio Act of 1927, 13 Va.L.Rev. 611 (1927).
7
As early as 1930, Senator Dill expressed the view that the Federal Radio Commission had the power to make regulations requiring a licensee to afford an opportunity for presentation of the other side on 'public questions.' Hearings before the Senate Committee on Interstate Commerce on S. 6, 71st Cong., 2d Sess., 1616 (1930):
'Senator DILL. Then you are suggesting that the provision of the statute that now requires a station to give equal opportunity to candidates for office shall be applied to all public questions?
'Commissioner ROBINSON. Of course, I think in the legal concept the law requires it now. I do not see that there is any need to legislate about it. It will evolve one of these days. Somebody will go into court and say, 'I am entitled to this opportunity,' and he will get it.
'Senator DILL. Has the Commission considered the question of making regulations requiring the stations to do that?
'Commissioner ROBINSON. Oh, no.
'Senator DILL. It would be within the power of the commission, I think, to make regulations on that subject.'
8
Federal Housing Administration v. Darlington, Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 145, 3 L.Ed.2d 132 (1958); Glidden Co. v. Zdanok, 370 U.S. 530, 541, 82 S.Ct. 1459, 1468, 8 L.Ed.2d 671 (1962) (opinion of Mr. Justice Harlan, joined by Mr. Justice Brennan and Mr. Justice Stewart). This principle is a venerable one. Alexander v. Mayor and Commonalty of Alexandria, 5 Cranch 1, 3 L.Ed. 19 (1809); United States v. Freeman, 3 How. 556, 11 L.Ed. 724 (1845); Stockdale v. Insurance Companies, 20 Wall. 323, 22 L.Ed. 348 (1874).
9
Zemel v. Rusk, 381 U.S. 1, 11—12, 85 S.Ct. 1271, 1278 1279, 14 L.Ed.2d 179 (1965); Udall v. Tallman, 380 U.S. 1, 16—18, 85 S.Ct. 792, 801—802, 13 L.Ed.2d 616 (1965); Commissioner of Internal Revenue v. Sternberger's Estate, 348 U.S. 187, 199, 75 S.Ct. 229, 235, 99 L.Ed. 246 (1955); Hastings & D.R. Co. v. Whitney, 132 U.S. 357, 366, 10 S.Ct. 112, 115, 33 L.Ed. 363 (1889); United States v. Burlington & Missouri River R. Co., 98 U.S. 334, 341, 25 L.Ed. 198 (1879); United States v. Alexander, 12 Wall. 177, 179—181, 20 L.Ed. 381 (1871); Surgett v. Lapice, 8 How. 48, 68, 12 L.Ed. 982 (1850).
10
Zemel v. Rusk, 381 U.S. 1, 11—12, 85 S.Ct. 1271, 1278 1279, 14 L.Ed.2d 179 (1965); United States v. Bergh, 352 U.S. 40, 46—47, 77 S.Ct. 106, 109—110, 1 L.Ed.2d 102 (1956); Alstate Construction Co. v. Durkin, 345 U.S. 13, 16—17, 73 S.Ct. 565, 567 568, 97 L.Ed. 745 (1953); Costanzo v. Tillinghast, 287 U.S. 341, 345, 53 S.Ct. 152, 153, 77 L.Ed. 350 (1932).
11
An attempt to limit sharply the FCC's power to interfere with programming practices failed to emerge from Committee in 1943. S. 814, 78th Cong., 1st Sess. (1943). See Hearings on S. 814 before the Senate Committee on Interstate Commerce, 78th Cong., 1st Sess. (1943). Also, attempts specifically to enact the doctrine failed in the Radio Act of 1927, 67 Cong.Rec. 12505 (1926) (agreeingt o amendment proposed by Senator Dill eliminating coverage of 'question affecting the public'), and a similar proposal in the Communications Act of 1934 was accepted by the Senate, 78 Cong.Rec. 8854 (1934); see S.Rep. No. 781, 73d Cong., 2d Sess., 8 (1934), but was not included in the bill reported by the House Committee, see H.R.Rep.No. 1850, 73d Cong., 2d Sess. (1934). The attempt which came nearest success was a bill, H.R. 7716, 72d Cong., 1st Sess. (1932), passed by Congress but pocket-vetoed by the President in 1933, which would have extended 'equal opportunities' whenever a public question was to be voted on at an election or by a government agency. H.R.Rep.No. 2106, 72d Cong., 2d Sess., 6 (1933). In any event, unsuccessful attempts at legislation are not the best of guides to legislative intent. Fogarty v. United States, 340 U.S. 8, 13—14, 71 S.Ct. 5, 8, 95 L.Ed. 10 (1950); United States v. United Mine Workers, 330 U.S. 258, 281—282, 67 S.Ct. 677, 690, 91 L.Ed. 884 (1947). A review of some of the legislative history over the years, drawing a somewhat different conclusion, is found in Staff Study of the House Committee on Interstate and Foreign Commerce, Legislative History of the Fairness Doctrine, 90th Cong., 2d Sess. (Comm.Print.1968). This inconclusive history was, of course, superseded by the specific statutory language added in 1959.
12
'§ 326. Censorship.
'Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.'
13
John P. Crommelin, 19 P & F Radio Reg. 1392 (1960).
14
The Proxmire amendment read: '(B)ut nothing in this sentence shall be construed as changing the basic intent of Congress with respect to the provisions of this act, which recognizes that television and radio frequencies are in the public domain, that the license to operate in such frequencies requires operation in the public interest, and that in newscasts, news interviews, news documentaries, on-the-spot coverage of news events, and panel discussions, all sides of public controversies shall be given as equal an opportunity to be heard as is practically possible.' 105 Cong.Rec. 14457.
15
The general problems raised by a technology which supplants atomized, relatively informal communication with mass media as a prime source of national cohesion and news were discussed at considerable length by Zechariah Chafee in Government and Mass Communications (1947). Debate on the particular implications of this view for the broadcasting industry has continued unabated. A compendium of views appears in Freedom and Responsibility in Broadcasting (J. Coons ed.) (1961). See also Kalven, Broadcasting, Public Policy and the First Amendment, 10 J. Law Econ. 15 (1967); M. Ernst, The First Freedom 125—180 (1946); T. Robinson, Radio Networks and the Federal Government, especially at 75—87 (1943). The considerations which the newest technology brings to bear on the particular problem of this litigation are concisely explored by Louis Jaffe in The Fairness Doctrine, Equal Time, Reply to Personal Attacks, and the Local Service Obligation; Implications of Technological Change, Printed for Special Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce (1968).
16
The range of controls which have in fact been imposed over the last 40 years, without giving rise to successful constitutional challenge in this Court, is discussed in W. Emery, Broadcasting and Government: Responsibilities and Regulations (1961); Note, Regulation of Program Content by the FCC, 77 Harv.L.Rev. 701 (1964).
17
This has not prevented vigorous argument from developing on the constitutionality of the ancillary FCC doctrines. Compare Barrow, The Equa Opportunities and Fairness Doctrines in Broadcasting: Pillars in the Forum of Democracy, 37 U.Cin.L.Rev. 447 (1968), with Robinson, The FCC and the First Amendment: Observations on 40 Years of Radio and Television Regulation, 52 Minn.L.Rev. 67 (1967), and Sullivan, Editorials and Controversy: The Broadcaster's Dilemma, 32 Geo.Wash.L.Rev. 719 (1964).
18
The expression of views opposing those which broadcasters permit to be aired in the first place need not be confined solely to the broadcasters themselves as proxies. 'Nor is it enough that he should hear the arguments of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. That is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them; who defend them in earnest, and do their very utmost for them.' J. Mill, On Liberty 32 (R. McCallum ed. 1947).
19
The President of the Columbia Broadcasting System has recently declared that despite the Government, 'we are determined to continue covering controversial issues as a public service, and exercising our own independent news judgment and enterprise. I, for one, refuse to allow that judgment and enterprise to be affected by official intimidation.' F. Stanton, Keynote Address, Sigma Delta Chi National Convention, Atlanta, Georgia, November 21, 1968. Problems of news coverage from the broadcaster's viewpoint are surveyed in W. Wood, Electronic Journalism (1967).
20
Current discussions of the frequency allocation problem appear in Telecommunication Science Panel, Commerce Technical Advisory Board, U.S. Dept. of Commerce, Electromagnetic Spectrum Utilization—The Silent Crisis (1966); Joint Technical Advisory Committee, Institute of Electrical and Electronic Engineers and Electronic Industries Assn., Report on Radio Spectrum Utilization (1964); Note, The Crisis in Electromagnetic Frequency Spectrum Allocation, 53 Iowa L.Rev. 437 (1967). A recently released study is the Final Report of the President's Task Force on Communications Policy (1968).
21
Bendix Aviation Corp. v. FCC, 106 U.S.App.D.C. 304, 272 F.2d 533 (1959), cert. denied, 361 U.S. 965, 80 S.Ct. 593, 4 L.Ed.2d 545 (1960).
22
1968 FCC Annual Report 65—69.
23
New limitations on these users, who can also lay claim to First Amendment protection, were sustained against First Amendment attack with the comment, 'Here is truly a situation where if everybody could say anything, many could say nothing.' Lafayette Radio Electronics Corp. v.U nited States, 345 F.2d 278, 281 (C.A.2d Cir. 1965). Accord, California Citizens Band Ass'n v. United States, 375 F.2d 43 (C.A.9th Cir.), cert. denied, 389 U.S. 844, 88 S.Ct. 96, 19 L.Ed.2d 112 (1967).
24
Kessler v. FCC, 177 U.S.App.D.C. 130, 326 F.2d 673 (1963).
25
In a table prepared by the FCC on the basis of statistics current as of August 31, 1968, VHF and UHF channels allocated to and those available in the top 100 market areas for television are set forth:
COMMERCIAL
Channels
On the Air,
Channels Authorized, or Available
Market Areas Allocated Applied for Channels
... VHF. UHF VHF UHF VHF UHF
Top 10. 40 45 40 44 0 1
Top 50. 157 163 157 136 0 27
Top 100. 264 297 264 213 0 84
26
RTNDA argues that these regulations should be held invalid for failure of the FCC to make specific findings in the rule-making proceeding relating to these factual questions. Presumably the fairness doctrine and the personal attack decisions themselves, such as Red Lion, should fall for the same reason. But this argument ignores the fact that these regulations are no more than the detailed specification of certain consequences of long-standing rules, the need for which was recognized by the Congress on the factual predicate of scarcity made plain in 1927, recognized by this Court in the 1943 National Broadcasting Co. case, and reaffirmed by the Congress as recently as 1959. 'If the number of radio and television stations were not limited by available frequencies, the committee would have no hesitation in removing completely the present provision regarding equal time and urge the right of each broadcastr to follow his own conscience * * *. However, broadcast frequencies are limited and, therefore, they have been necessarily considered a public trust.' S.Rep.No.562, 86th Cong., 1st Sess., 8—9 (1959). In light of this history; the opportunity which the broadcasters have had to address the FCC and show that somehow the situation had radically changed, undercutting the validity of the congressional judgment; and their failure to adduce any convincing evidence of that in the record here, we cannot consider the absence of more detailed findings below to be determinative.
27
The 'airways (need not) be filled at the earliest possible moment in all circumstances without due regard for these important factors.' Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95, 105, 274 F.2d 753, 763 (1960). Accord, enforcing the fairness doctrine, Office of Communication of the United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 343, 359 F.2d 994, 1009 (1966).
28
We need not deal with the argument that even if there is no longer a technological scarcity of frequencies limiting the number of broadcasters, there nevertheless is an economic scarcity in the sense that the Commission could or does limit entry to the broadcasting market on economic grounds and license no more stations than the market will support. Hence, it is said, the fairness doctrine or its equivalent is essential to satisfy the claims of those excluded and of the public generally. A related argument, which we also put aside, is that quite apart from scarcity of frequencies, technological or economic, Congress does not abridge freedom of speech or press by legislation directly or indirectly multiplying the voices and views presented to the public through time sharing, fairness doctrines, or other devices which limit or dissipate the power of those who sit astride the channels of communication with the general public. Cf. Citizen Publishing Co. v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969).
| 23
|
395 U.S. 458
89 S.Ct. 1818
23 L.Ed.2d 440
Tommie E. L. WILLIAMS, Petitioner,v.OKLAHOMA CITY et al.
No. 841.
Argued April 1 and 2, 1969.
Decided June 9, 1969.
Jon F. Gray, Oklahoma City, Okl., for petitioner.
Giles K. Ratcliffe, Oklahoma City, Okl., for respondents.
PER CURIAM.
1
Petitioner, an indigent, had no funds to pay for a transcript of the trial proceedings in the Municipal Criminal Court of Oklahoma City required to prepare the 'case-made' needed to perfect his appeal to the Oklahoma Court of Criminal Appeals from his conviction for drunken driving and the imposition of a 90-day jail sentence and a $50 fine.* The trial proceedings had been stenographically transcribed pursuant to Oklahoma law, Okla.Stat.Ann., Tit. 11, § 798 (1959), Okla.Stat.Ann., Tit. 20, §§ 110—111 (1962), but the trial court had refused in the absence of statutory authority to order that a copy be provided petitioner at public expense, although finding that petitioner was an indigent whose grounds of appeal were not without meri, and that neither petitioner nor his appointed counsel could make up a transcript of the trial proceedings from memory. The Court of Criminal Appeals, in an original proceeding brought by petitioner, also refused to order that petitioner be provided a copy at public expense. The court agreed with the trial court that no Oklahoma statute or Oklahoma City ordinance authorized such an order, and held further that the Fourteenth Amendment did not mandate 'that an indigent person, convicted for a violation of a city ordinance, quasi criminal in nature and often referred to as a petty offense, is entitled to a case-made or transcript at city expense in order to perfect an appeal from said conviction.' 439 P.2d 965 (1968). We granted certiorari. 393 U.S. 998, 89 S.Ct. 490, 21 L.Ed.2d 463 (1968). We reverse.
2
'This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions than can only impede open and equal access to the courts. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Draper v. State of Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899.' Rinaldi v. Yeager, 384 U.S. 305, 310— 311, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966). Although the Oklahoma statutes expressly provide that '(a)n appeal to the Court of Criminal Appeals may be taken by the defendant, as a matter of right from any judgment against him * * *,' Okla.Stat.Ann., Tit. 22, § 1051 (Supp.1968) (emphasis added), the decision of the Court of Criminal Appeals wholly denies any right of appeal to this impoverished petitioner, but grants that right only to appellants from like convictions able to pay for the preparation of a 'case-made.' This is an 'unreasoned distinction' which the Fourteenth Amendment forbids the State to make. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Eskridge v. Washington State Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958).
3
The judgment of the Court of Criminal Appeals is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
4
It is so ordered.
5
Reversed and remanded.
6
Mr. Justice BLACK concurs in the result.
*
The pertinent Oklahoma statutes provide as follows:
Okla.Stat.Ann., Tit. 22, § 1059 (1958):
'In all criminal cases appealable to the Criminal Court of Appeals, the appellant may prepare, and it shall be the duty of the court to provide for the preparation and settling of a casemade in all respects as in civil cases, and the case-made so settled, served and filed in the trial court may be sent to the appellate court in lieu of all other records or bills of exception; or the proceeding in the appellate court may be as provided in the next section.'
Okla.Stat.Ann., Tit. 22, § 1060 (Supp.1968):
'Instead of the appeal hereinbefore provided for, any party desiring to appeal to the Court of Criminal Appeals in any criminal case may proceed by case made and petition in error by filing notice of such intent and by making request for case made, both to be made in weriting, in open court, either at the time the judgment is rendered, or within ten days thereafter. In such an appeal the case made must be settled and served and the appeal lodged within in the time for such appeal as hereinbefore set out. Instead of the case made plaintiff in error may attach to his petition in error a transcript of the proceedings of record in the trial court.'
| 12
|
395 U.S. 352
89 S.Ct. 1835
23 L.Ed.2d 360
Paulette Boudreaux RODRIGUE et al., Petitioners,v.AETNA CASUALTY AND SURETY COMPANY et al.
No. 436.
Argued Feb. 25, 1969.
Decided June 9, 1969.
Philip E. Henderson, Houma, La., for Petitioners.
James E. Diaz, Lafayette, La., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case involves two men, Dore and Rodrigue, who met their deaths on artificial island drilling rigs located on the outer Continental Shelf off the Louisiana coast. Each man's family brought suit for wrongful death in the federal courts both under the Death on the High Seas Act, 41 Stat. 537, 46 U.S.C. § 761 et seq. (hereinafter 'Seas Act'), and under Louisiana law assertedly made applicable by the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U.S.C. § 1331 et seq. (hereinafter 'Lands Act'). Each family's suit was separately heard and decided in the District Courts and in the Court of Appeals below. In both cases the Court of Appeals for the Fifth Circuit, affirming the District Courts, held that the Seas Act was the exclusive remedy for these deaths. Petitioners sought certiorari, claiming that they are entitled to an additional remedy under the state law adopted by the Lands Act.
2
In the Dore case, the decedent was working on a crane mounted on the artificial island and being used to unload a barge. As the crane lifted a load from the barge to place it on the artificial island, the crane collapsed and toppled over onto the barge, killing the worker. His widow and her three children brought a single action in the United States District Court for the Western District of Louisiana, alleging their own and the decedent's residency in Louisiana and the negligence of the firms which manufactured, installed, and serviced the crane. The suit was brought under the 'General Maritime Laws, the Death on the High Seas Act, * * * Article 2315 of the (Louisiana Code) and under the other laws of the n ited States and the State of Louisiana.' It claimed $670,000 in damages to the family plaintiffs for loss of their husband and father, including pecuniary and psychic losses. On motion for summary judgment as to all claims but that under the Seas Act, the District Judge determined that the latter was plaintiffs' only remedy, removed the case to the admiralty side of the court, and thus limited the plaintiffs' recovery to pecuniary loss. The state statute would have allowed recovery for additional elements of damage. The District Judge certified the question pursuant to Federal Rule of Civil Procedure 54(b), and the Court of Appeals for the Fifth Circuit affirmed. 391 F.2d 671.
3
In the Rodrigue case, the decedent was performing a test on a drill pipe. He was high on the derrick rising above the artificial island, and fell from it to his death on the floor of the structure. His widow and two children brought three actions in the District Court for the Eastern District of Louisiana. One was an admiralty action under the Seas Act; the other two were civil actions respectively against the owner and insurer of the drill rig, and the owner of the stationary platform. The civil actions were brought under the Lands Act and Article 2315 of the Louisiana Revised Civil Code. The trial court consolidated the two civil actions and dismissed the insurer, who had been made a party to one of the civil actions pursuant to the Louisiana direct-action statute. La.Rev.Stat.Ann. § 22:655. No reason was assigned for the dismissal, but the ground urged in the motion was that the accident did not occur within the State of Louisiana, so that Louisiana law did not apply. Consistently with this, the District Judge dismissed the consolidated civil action before trial, on the ground that the Seas Act provided a remedy and that under such circumstances the Lands Act would not make the inconsistent state remedy applicable.1 The admiralty action proceeded to trial and judgment of $75,000, 266 F.Supp. 1, which is not now before us. On appeal of the dismissal of the civil actions, the Court of Appeals for the Fifth Circuit affirmed the District Court per curiam, citing its decision in the Dore case almost two months before. 395 F.2d 216.
4
Certiorari was granted in both cases, 393 U.S. 932, 89 S.Ct. 295, 21 L.Ed.2d 268 (1968), and they were argued together here. In light of the principles of traditional admiralty law, the Seas Act, and the Lands Act, we hold that petitioners' remedy is under the Lands Act and Louisiana law. The Lands Act makes it clear that federal law, supplemented by state law of the adjacent State, is to be applied to these artificial islands as though they were federal enclaves in an upland State. This approach was deliberately taken in lieu of treating the structures as vessels, to which admiralty law supplemented by the law of the jurisdiction of the vessel's owner would apply. The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264 (1907). This was done in part because men working on these islands are closely tied to the adjacent State, to which they often commute and on which their families live, unlike transitory seamen to whom a more generalized admiralty law is appropriate. Since the Seas Act does not apply of its own force under admiralty principles, and since the Lands Act deliberately eschewed the application of admiralty principles to these novel structures, Louisiana law i not ousted by the Seas Act, and under the Lands Act it is made applicable.
I.
5
The purpose of the Lands Act was to define a body of law applicable to the seabed, the subsoil, and the fixed structures such as those in question here on the outer Continental Shelf. That this law was to be federal law of the United States, applying state law only as federal law and then only when not inconsistent with applicable federal law, is made clear by the language of the Act. Section 3 makes it the 'policy of the United States' that the affected areas 'appertain to the United States and are subject to its jurisdiction, control, and power of disposition.'2 Section 43 makes the 'Constitution and laws and civil and political jurisdiction of the United States' apply 'to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State.' Since federal law, because of its limited function in a federal system, might be inadequate to cope with the full range of potential legal problems, the Act supplemented gaps in the federal law with state law through the 'adoption of State law as the law of the United States.' Under § 4, the adjacent State's laws were made 'the law of the United States for (the relevant subsoil and seabed) and artificial islands and fixed structures erected thereon,' but only to 'the extent that they are applicable and not inconsistent with * * * other Federal laws.'
6
It is evident from this that federal law is 'exclusive' in its regulation of this area, and that state a w is adopted only as surrogate federal law. The Senate Report on the bill referred to the 'precise unequivocal language' of 'the provision for the adoption of State laws as Federal law,' and referred to the applicable body of law as consisting of the Constitution and laws of the United States, the regulations of the Secretary of the Interior, and finally the laws of the adjacent States 'adopted as Federal law and made applicable to supplement existing Federal law and regulations.' S.Rep. No. 411 of the Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 11 (1953).
7
It was the Senate Committee which first introduced the present provision adopting state law, and in its report explaining the introduction it asserted: 'Paragraph (2) adopts State law as Federal law, to be used when Federal statutes or regulations of the Secretary of the Interior are inapplicable.' Id., at 23. This language makes it clear that state law could be used to fill federal voids. And in the conference report, the House managers of the bill noted that laws of adjacent States which are not inconsistent with federal law 'are adopted as the laws of the United States for those particular areas.' H.R.Conf.Rep. No. 1031, 83d Cong., 1st Sess., 12 (1953).
8
The principles that federal law should prevail, and that state law should be applied only as federal law and then only when no inconsistent federal law applied, were adopted by a Congress in which full debate had underscored the issue. Senator Cordon, in presenting the Lands Act to the Senate, noted that the problem addressed by the committee had been raised by 'the fact that the full development of the estimated values in the shelf area will require the efforts and the physical presence of thousands of workers on fixed structures in the shelf area. Industrial accidents, accidental death, peace, and order' present problems requiring a body of law for their solution. Since 'as every Member of the Senate knows, the Federal Code was never designed to be a complete body of law in and of itself,' the committee decided that state law would have to be referred to in some instances. 99 Cong.Rec. 6962—6963. As Senator Anderson, a member of the conference committee, put it: 'The real point is * * * that the language in section 4 provides that Federal laws and regulations shall be applicable in the area, but that where there is a void, the State law may be applicable * * *.' 99 Cong.Rec. 7164. Senator Cordon noted that this view was 'entirely correct' and added that: 'These laws, by the terms of the act, are enacted as Federal law.'
9
The opponents of the Act realized full well that state law was being used only to supplement federal law, and Senator Long introduced an amendment to the Act which would have made 'the laws of such State applicable to the newly acquired area, and * * * the officials of such State (the agents empowered) to enforce the laws of the State in the newly acquired area.' In arguing for his amendment, Senator Long asserted that '(i)t is even more important that State law should apply on the artificial islands than on natural islands * * *.' But the amendment was rejected. See 99 Cong.Rec. 7232—7236. This legislative history buttresses the Court of Appeals' finding that in view of the inconsistencies between the state law and the Seas Act, the Seas Act remedy would be exclusive if it applied.
II.
10
However, for federal law to oust adopted state law federal law must first apply. The court below assumed that the Seas Act4 did apply, since the island was located more than a marine league off the Louisiana coast. But that is not enough to make the Seas Act applicable.5 The Act redresses only those deaths stemming from wrongful actions or omissions 'occurring on the high seas,' and these cases involve a series of events on artificial islands. Moreover, the islands were not erected primarily as navigational aids, and the accidents here bore no relation to any such function. Admr alty jurisdiction has not been construed to extend to accidents on piers, jetties, bridges, or even ramps or railways running into the sea.6 To the extent that it has been applied to fixed structures completely surrounded by water, this has usually involved collision with a ship and has been explained by the use of the structure solely or principally as a navigational aid.7 But when the damage is caused by a vessel admitted in admiralty jurisdiction, the Admiralty Extension Act8 would now make available the admiralty remedy in any event.
11
The accidents in question here involved no collision with a vessel, and the structures were not navigational aids. They were islands, albeit artificial ones, it was an island, albeit an artificial one, and the accidents had no more connection with the ordinary stuff of admiralty than do accidents on piers. Indeed, the Court has specifically held that drilling platforms are not within admiralty jurisdiction. Phoenix Construction Co. v. The Steamer Poughkeepsie, 212 U.S. 558, 29 S.Ct. 687, 53 L.Ed. 651, affirming 162 F. 494 (D.C.1908). There a ship damaged a structure 'composed of various lengths of wrought iron pipe surrounded by a platform on the surface.' Citing the same cases on which the lower court had relied, this Court affirmed its conclusion that jurisdiction was lacking since the 'project which the libellant was engaged in is not even suggestive of maritime affairs. It was supplying water to a city and the mere fact of the means being carried under the bed of a river, with extensions through the river to the surface, did not create any maritime right, nor was it in any sense an aid to navigation, which was the distinguishing feature of The Blackheath.' 162 F., at 496. In these circumstances, the Seas Act—which provides an action in admiralty—clearly would not apply under conventional admiralty principles and, since the Lands Act provides an alternative federal remedy through adopted state law, there is no reason to assume that Congress intended to extent those principles to create an admiralty remedy here. And if the Congress had made the 1920 Seas Act applicable, ousting inconsistent state law, the artificial island worker would be entitled to far less comprehensive remedies in many cases than he is now.
12
Even if the admiralty law would have applied to the deaths occurring in these cases under traditional principles, the legislative history shows that Congress di not intend that result. First, Congress assumed that the admiralty law would not apply unless Congress made it apply, and then Congress decided not to make it apply. The legislative history of the Lands Act makes it clear that these structures were to be treated as island or as federal enclaves within a landlocked State, not as vessels.
13
In introducing the bill to the Senate, Senator Cordon explained its inception as follows:
14
'The committee first attempted to provide housekeeping law for the outer shelf by applying to the structures necessary for the removal of the minerals in the area under the maritime law of the United States. This was first attempted by incorporating by reference the admiralty statutes. This solution at first seemed to be a reasonably complete answer * * * inasmuch as the drilling platforms would have been treated as vessels. Maritime law, which applies to American vessels, would have applied under that theory to the structures themselves.
15
'However, further consideration clearly showed that this approach was not an adequate and complete answer to the problem. The so-called social laws necessary for protection of the workers and their families would not apply. I refer to such things as unemployment laws, industrial-accident laws, fair-labor-standard laws, and so forth. * * *
16
'(Ultimately, instead,) the whole body of Federal law (was made applicable) to the area (as well as state law where necessary). Thus, the legal situation is comparable to that in the areas owned by the Federal Government under the exclusive jurisdiction of the Federal Government and lying within the boundaries of a State in the uplands.' 99 Cong.Rec. 6963.
17
Similarly, Senator Ellender asserted that in the first draft it 'was sought to treat the platforms or artificial islands created in the water as ships' but now the 'islands are made subject to our domestic law' instead so as to be 'treated just as though they were islands created by nature, insofar as the application of our domestic laws is concerned.' 99 Cong.Rec. 7235.
18
The House bill, H.R. 5134, had made federal law applicable, but also provided that the not 'inconsistent * * * laws of each coastal State which so provides shall be applicable,' at least if adopted by the Secretary of the Interior. H.R.Rep. No. 413, 83d Cong., 1st Sess., 4, 8—9 (1953). The Senate bill, as it read before committee amendments, provided instead that acts 'on any structure (other than a vessel)' located on the Continental Shelf for exploring or exploiting its resources 'shall be deemed to have occurred or been committed aboard a vessel of the United States on the high seas and shall be adjudicated * * * according to the laws relating to such acts * * * on vessels of the United States on the high seas.' When the Senate bill was reported from committee, this section had been replaced by the present language, omitting entirely any reference to treating the islands as though they were vessels.
19
Careful scrutiny of the hearings which were the basis for eliminating from the Lands Act the treatment of artificial islands as vessels convinces us that the motivation for this change, together with the adoption of state law as surrogate federal law, was the view that maritime law was inapposite to these fixed structures. See generally Hearings before the Senate Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., on S. 1901 (1953) (hereafter Hearings). One theme running throughout the hearings was the close relationship between the workers on the island and the adjoining States. Objections were repeatedly voiced to application of maritime law and with it the admiralty principle that the law of the State of the owner of the artificial island 'vessel' is used for supplementation.9 On the other hand, federal enforcement of the law in this area was insisted upon by the Department of Justice, and there was substantial doubt whether state law and jurisdiction could or should be extended t the structures.10 A federal solution was thought necessary.
20
The committee was aware that it had the power to treat activity on these artificial islands as though it occurred aboard ship. Jones v. United States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691 (1890); Hearings 511—512; Extension of Admiralty Act of 1948, 62 Stat. 496, 46 U.S.C. § 740; see United States v. Matson Nav. Co., 201 F.2d 610 (C.A.9th Cir. 1952); cf. Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 209, 83 S.Ct. 1185, 1188, 10 L.Ed.2d 297 (1963). And the very decision to do so in the initial bill recognized that if it were not adopted explicitly, maritime law simply would not apply to these stationary structures not erected as navigational aids.11 Moreover, the committee was acutely aware of the inaptness of admiralty law. The bill applied the same law to the seabed and subsoil as well as to the artificial islands, and admiralty law was obviously unsuited to that task.12
21
Although the Assistant Attorney General, Office of Legal Counsel, persisted to the end in his claim that admiralty law should apply, and that with it should be incorporated the law of the State of the island's owner, this view obvo usly did not prevail. Instead, a compromise emerged. The administration's opposition to committing these areas solely to the jurisdiction of state courts, state substantive law, and state law enforcement was recognized in that the applicable law was made federal law enforceable by federal officials in federal courts. But the special relationship betwen the men working on these articificial islands and the adjacent shore to which they commute to visit their families was also recognized by dropping the treatment of these structures as 'vessels' and instead, over the objections of the administration that these islands were not really located within a State, the bill was amended to treat them 'as if (they) were (in) an area of exclusive Federal jurisdiction located within a State.' State law became federal law federally enforced.
22
In view of all this, and the disclosure by Senator Cordon to the Senate upon introduction of the bill that the admiralty or maritime approach of the original bill had been abandoned, it is apparent that the Congress decided that these artificial islands, though surrounded by the high seas, were not themselves to be considered within maritime jurisdiction. Thus the admiralty action under the Seas Act no more applies to these accidents actually occurring on the islands than it would to accidents occurring in an upland federal enclave or on a natural island to which admiralty jurisdiction had not been specifically extended. At a minimum, the legislative history shows that accidents on these structures, which under maritime principles would be no more under maritime jurisdiction than accidents on a wharf located above navigable waters, were not changed in character by the Lands Act.
23
Since the inapplicability of the Seas Act removes any obstacle to the application of state law by incorporation as federal law through the Lands Act, the decisions below are reversed and the causes remanded for proceedings consistent with this opinion.
24
It is so ordered.
25
Reversed and remanded.
1
The District Court dismissed one of the civil causes of action on the ground that unlike the other it did not specifically name the Lands Act, but rested instead directly on Louisiana law. This formal omission was inconsequential because of the District Judge's view that there would be no cause of action even under the Lands Act and Louisiana law together. On remand, it may be that both claims can be construed to assert actions under the Lands Act and Louisiana Law, or that any deficiency in this regard can be cured by amendment of the pleadings. Fed.Rule Civ.Proc. 15.
2
67 Stat. 462, as set forth in 32 U.S.C. § 1332:
'(a) It is declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchapter.'
3
67 Stat. 462, as set forth in 43 U.S.C. § 1333:
§ 1333. Laws and regulations governing lands.
'(a) Constitution and United States laws; laws of adjacent States; publication of projected State lines; restriction on State taxation and jurisdiction.
'(1) The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures which may be erected thereon for the purpose of exploring for, developing, removing, and transporting resources therefrom, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State: Provided, however, That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions of this subchapter.
'(2) To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted, the civil and criminal laws of each adjacent State as of the effective date of this subchapter are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf, and the President shall determine and publish in the Federal Register such projected lines extending seaward and defining each such area. All of such applicable laws shall be administered and enforced by the appropriate officers and courts of the United States. State taxation laws shall not apply to the outer Continental Shelf.
'(3) The provisions of this section for adoption of State law as the law of the United States shall never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the seabed and subsoil of the outer Continental Shelf, or the property and natural resources thereof or the revenues therefrom.'
4
41 Stat. 537, 46 U.S.C. §§ 761—768, 46 U.S.C. § 761 reads:
'Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.'
5
Since this topic received scant attention in argument in this Court, additional briefs were requested.
6
The Plymouth, 3 Wall. 20, 18 L.Ed. 125 (1866); The Troy, 208 U.S. 321, 28 S.Ct. 416, 52 L.Ed. 512 (1908); T. Smith & Son, Inc. v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520 (1928); Hastings v. Mann. 340 F.2d 910 (C.A.4th Cir.), cert. denied, 380 U.S. 963, 85 S.Ct. 1106, 14 L.Ed.2d 153 (1965).
7
The Blackheath, 195 U.S. 361, 25 S.Ct. 46, 49 L.Ed. 236 (1904); The Raithmoor, 241 U.S. 166, 36 S.Ct. 514, 60 L.Ed. 937 (1916); Doullut & Williams Co. v. United States, 268 U.S. 33, 45 S.Ct. 411, 69 L.Ed. 832 (1925).
8
'The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.' 62 Stat. 496, 46 U.S.C. § 740.
9
For example, Senator Daniel asserted that 'the fixed platforms out there do not even touch the waters except for the supporting pipes or 'legs' which go through the water down into the ground. I think you can treat those platforms as connected with the soil and development of the soil rather than treating them as vessels.' Hearings 22. Similarly, Acting Secretary of the Treasury Rose opined in a letter to the Committee that these islands might not even be considered to be 'upon navigable waters' for the purpose of applying laws requiring safety lights. Hearings 53. A specific provision was added to the statute to permit safety regulation. § 4(e), 43 U.S.C. § 1333(e). Obviously these islands were not constructed principally as aids to navigation as respondents contend, cf. Pure Oil Co. v. Snipes, 293 F.2d 60 (C.A.5th Cir. 1961), but were instead hazards to navigation requiring warning facilities. Governor Kennon of Louisiana voiced strong opposition, Hearings 449—485, as did Senator Long of that State, e.g., Hearings 275—278. See also Hearings 513—518, 545, 612. And at Hearings 644—645, the inappropriateness of applying the law of the owner of the artificial island or subsoil lease, rather than the law of the adjacent State, was given special emphasis.
10
See letter to Senator Cordon from Assistant Attorney General Rankin, Hearings 700; testimony of Mr. Rankin, Hearings 664—645, 664—665, 652—653.
11
In the opening discussion of the original draft of the bill, treating these islands as vessels, Senator Cordon remarked: 'It is the view of the chairman that when these individuals leave their vessels and board this structure, they are subject to the law that operates on the structure, which in this instance is the same law that operates on board a ship, but becomes that only because of this act.' Hearings 9. (Emphasis added.) And at the end of the hearings, when the Senators were questioning an admiralty lawyer on the treatment these structures would receive absent any statutory provision, he informed them that even a lighthouse would be treated as land, except insofar as it was subject to admiralty jurisdiction as an aid to navigation. Hearings 669—670.
12
An admiralty expert questioned by the committee took the position that application of maritime law would be unwise. 'Maritime law in the strict sense has never had to deal with the resources in the ground beneath the sea, and its whole tenor is ill adapted for that purpose.' Hearings 668. Since the Act treats seabed, subsoil, and artificial islands the same, dropping any reference to special treatment for presumptive vessels, the most sensible interpretation of Congress' reaction to this testimony is that admiralty treatment was eschewed altogether, except to the extent that the Extension of Admiralty Act might make it applicable.
| 78
|
395 U.S. 444
89 S.Ct. 1827
23 L.Ed.2d 430
Clarence BRANDENBURG, Appellant,v.State of OHIO.
No. 492.
Argued Feb. 27, 1969.
Decided June 9, 1969.
Allen Brown, Cincinnati, Ohio, for appellant.
Leonard Kirschner, Cincinnati, Ohio, for appellee.
PER CURIAM.
1
The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for 'advocat(ing) * * * the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform' and for 'voluntarily assembl(ing) with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.' Ohio Rev. Code Ann. § 2923.13. He was fined $1,000 and sentenced to one to 10 years' imprisonment. The appellant challenged the consitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal, sua sponte, 'for the reason that no substantial constitutional question exists herein.' It did not file an opinion or explain its conclusions. Appeal was taken to this Court, and we noted probable jurisdiction. 393 U.S. 948, 89 S.Ct. 377, 21 L.Ed.2d 360 (1968). We reverse.
2
The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan 'rally' to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network.
3
The prosecution's case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films.
4
One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews.1 Another scene on the same film showed the appellant, in Klan regalia, making as peech. The speech, in full, was as follows:
5
'This is an organizers' meeting. We have had quite a few members here today which are—we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken.
6
'We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.' The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of 'revengeance' was omitted, and one sentence was added: 'Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.' Though some of the figures in the films carried weapons, the speaker did not.
7
The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939). In 1927, this Court sustained the constitutionality of California's Criminal Syndicalism Act, Cal. Penal Code §§ 11400—11402, the text of which is quite similar to that of the laws of Ohio. Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927). The Court upheld the statute on the ground that, without more, 'advocating' violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U.S. 494, at 507, 71 S.Ct. 857, at 866, 95 L.Ed. 1137 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.2 As we said in Noto v. United States, 367 U.S. 290, 297—298, 81 S.Ct. 1517, 1520—1521, 6 L.Ed.2d 836 (1961), 'the mere abstract teaching * * * of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.' See also Herndon v. Lowry, 301 U.S. 242, 259—261, 57 S.Ct. 732, 739—740, 81 L.Ed. 1066 (1937); Bond v. Floyd, 385 U.S. 116, 134, 87 S.Ct. 339, 348, 17 L.Ed.2d 235 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). See also United Stats v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964).
8
Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes persons who 'advocate or teach the duty, necessity, or propriety' of violence 'as a means of accomplishing industrial or political reform'; or who publish or circulate or display any book or paper containing such advocacy; or who 'justify' the commission of violent acts 'with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism'; or who 'voluntarily assemble' with a group formed 'to teach or advocate the doctrines of criminal syndicalism.' Neither the indictment nor the trial judge's instructions to the jury in any way refined the statute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.3
9
Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action.4 Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.
10
Mr. Justice BLACK, concurring.
11
I agree with the views expressed by Mr. Justice DOUGLAS in his concurring opinion in this case that the 'clear and present danger' doctrine should have no place in the interpretatio of the First Amendment. I join the Court's opinion, which, as I understand it, simply cites Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), but does not indicate any agreement on the Court's part with the 'clear and present danger' doctrine on which Dennis purported to rely.
12
Mr. Justice DOUGLAS, concurring.
13
While I join the opinion of the Court, I desire to enter a caveat.
14
The 'clear and present danger' test was adumbrated by Mr. Justice Holmes in a case arising during World War I—a war 'declared' by the Congress, not by the Chief Executive. The case was Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. The pamphlets that were distributed urged resistance to the draft, denounced conscription, and impugned the motives of those backing the war effort. The First Amendment was tendered as a defense. Mr. Justice Holmes in rejecting that defense said:
15
'The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.'
16
Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561, also authored by Mr. Justice Holmes, involved prosecution and punishment for publication of articles very critical of the war effort in World War I. Schenck was referred to as a conviction for obstructing security 'by words of persuasion.' Id., at 206, 39 S.Ct. at 250. And the conviction in Frohwerk was sustained because 'the circulation of the paper was in quarters where a little breath would be enough to kindle a flame.' Id., at 209, 39 S.Ct., at 251.
17
Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566, was the third of the trilogy of the 1918 Term. Debs was convicted of speaking in opposition to the war where his 'opposition was so expressed that its natural and intended effect would be to obstruct recruiting.' Id., at 215, 39 S.Ct. at 253.
18
'If that was intended and if, in all the circumstances, that would be its probable effect, it would not be protected by reason of its being part of a general program in expressions of a general and conscientious belief.' Ibid.
19
In the 1919 Term, the Court applied the Schenck doctrine to affirm the convictions of other dissidents in World War I. Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173, was one instance. Mr. Justice Holmes, with whom Mr. Justice Brandeis concurred, dissented. While adhering to Schenck, he did not think that on the facts a case for overriding the First Amendment had been made out:
20
'It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country.' 250 U.S., at 628, 40 S.Ct., at 21.
21
Another instance was Schaefer v. United States, 251 U.S. 466, 40 S.Ct. 259, 64 L.Ed. 360, in which Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented. A third was Pierce v. United States, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542, in which again Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented.
22
Those, then, were the World War I cases that put the gloss of 'clear and present danger' on the First Amendment. Whether the war power—the greatest leveler of them all—is adequate to sustain that doctrine is debatable. The dissents in Abrams, Schaefer, and Pierce show how easily 'clear and present danger' is manipulated to crush what Brandeis called '(t)he fundamental right of free men to strive for better conditions through new legislation and new institutions' by argument and discourse (Pierce v. United States, supra, at 273, 40 S.Ct. at 217) even in time of war. Though I doubt if the c lear and present danger' test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.
23
The Court quite properly overrules Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095, which involved advocacy of ideas which the majority of the Court deemed unsound and dangerous.
24
Mr. Justice Holmes, though never formally abandoning the 'clear and present danger' test, moved closer to the First Amendment ideal when he said in dissent in Gitlow (Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 626, 69 L.Ed. 1138):
25
'Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.'
26
We have never been faithful to the philosophy of that dissent.
27
The Court in Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066, overturned a conviction for exercising First Amendment rights to incite insurrection because of lack of evidence of incitement. Id., at 259—261, 57 S.Ct., at 739—740. And see Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534. In Bridges v. California, 314 U.S. 252, 261—263, 62 S.Ct. 190, 192 194, 86 L.Ed. 192, we approved the 'clear and present danger' test in an elaborate dictum that tightened it and confined it to a narrow category. But in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, we opened wide the door, distorting the 'clear and present danger' test beyond recognition.1
28
In that case the prosecution dubbed an agreement to teach the Marxist creed a 'conspiracy.' The case was submitted to a jury on a charge that the jury could not convict unless it found that the defendants 'intended to overthrow the Government 'as speedily as circumstances would permit." Id., at 509—511, 71 S.Ct., at 867. The Court sustained convictions under the charge, construing it to mean a determination of "whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."2 Id., at 510, 71 S.Ct., at 868, quoting from United States v. Dennis, 183 F.2d 201, 212.
29
Out of the 'clear and present danger' test came other offspring. Advocacy and teaching of forcible overthrow of government as an abstract principle is immune from prosecution. Yates v. United States, 354 U.S. 298, 318, 77 S.Ct. 1064, 1076, 1 L.Ed.2d 1356. But an 'active' member, who has a guilty knowledge and intent of the aim to overthrow the Government by violence, Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836, may be prosecuted. Scales v. United States, 367 U.S. 203, 228, 81 S.Ct. 1469, 1485, 6 L.Ed.2d 782. And the power to investigate, backed by the powerful sanction of contempt, includes the power to determine which of the two categories fits the particular witness. Barenblatt v. United States, 360 U.S. 109, 130, 79 S.Ct. 1081, 1094, 3 L.Ed.2d 1115. And so the investigator roams at will through all of the beliefs of the witness, ransacking his conscience and his innermost thoughts.
30
JudgeL earned Hand, who wrote for the Court of Appeals in affirming the judgment in Dennis, coined the 'not improbable' test, United States v. Dennis, 2 Cir., 183 F.2d 201, 214, which this Court adopted and which Judge Hand preferred over the 'clear and present danger' test. Indeed, in his book, The Bill of Rights 59 (1958), in referring to Holmes' creation of the 'clear and present danger' test, he said, 'I cannot help thinking that for once Homer nodded.'
31
My own view is quite different. I see no place in the regime of the First Amendment for any 'clear and present danger' test, whether strict and tight as some would make it, or free-wheeling as the Court in Dennis rephrased it.
32
When one reads the opinions closely and sees when and how the 'clear and present danger' test has been applied, great misgivings are aroused. First, the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment.
33
Action is often a method of expression and within the protection of the First Amendment.
34
Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this Court. May he be indicted?
35
Suppose one rips his own Bible to shreds to celebrate his departure from one 'faith' and his embrace of atheism. May he be indicted?
36
Last Term the Court held in United States v. O'Brien, 391 U.S. 367, 382, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672, that a registrant under Selective Service who burned his draft card in protest of the war in Vietnam could be prosecuted. The First Amendment was tendered as a defense and rejected, the Court saying:
37
'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.' 391 U.S., at 377 378, 88 S.Ct., at 1679.
38
But O'Brien was not prosecuted for not having his draft card available when asked for by a federal agent. He was indicted, tried and convicted for burning the card. And this Court's affirmance of that conviction was not, with all respect, consistent with the First Amendment.
39
The act of praying often involves body posture and movement as well as utterances. It is nonetheless protected by the Free Exercise Clause. Picketing, as we have said on numerous occasions, is 'free speech plus.' See Bakery and Pastry Drivers and Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 775, 62 S.Ct. 816, 819, 86 L.Ed. 1178 (Douglas, J., concurring); Giboney v. Empire Storage Co., 336 U.S. 490, 501, 69 S.Ct. 684, 690, 93 L.Ed. 834; Hughes v. Superior Court, 339 U.S. 460, 465, 70 S.Ct. 718, 721, 94 L.Ed. 985; National Labor Relations Board v. Fruit and Vegetable Packers, 377 U.S. 58, 77, 84 S.Ct. 1063, 1073, 12 L.Ed.2d 129 (Black, J., concurring), and id., at 93, 84 S.Ct. at 1081 (Harlan, J., dissenting); Cox v. Louisiana, 379 U.S. 559, 578, 85 S.Ct. 466, 468, 476, 13 L.Ed.2d 487 (opinion of Black, J.); Amalgamated Food Employees v. Logan Plaza, 391 U.S. 308, 326, 88 S.Ct. 1601, 1612, 20 L.Ed.2d 603 (Douglas, J., concurring). That means that it can be regulated when it comes to the 'plus' or 'action' side of the protest. It can be regulated as to the number of pickets and the place and hours (see Cox v. Louisiana, supra), because traffic and other community problems would otherwise suffer.
40
But none of these considerations are implicated in the symbolic protest of the Vietnam war in the burning of a draft card.
41
One's beliefs have long been thought to be sanctuaries which government could not invade. Br enblatt is one example of the ease with which that sanctuary can be violated. The lines drawn by the Court between the criminal act of being an 'active' Communist and the innocent act of being a nominal or inactive Communist mark the difference only between deep and abiding belief and casual or uncertain belief. But I think that all matters of belief are beyond the reach of subpoenas or the probings of investigators. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. That is the deep-seated fault in the infamous loyalty-security hearings which, since 1947 when President Truman launched them, have processed 20,000,000 men and women. Those hearings were primarily concerned with one's thoughts, ideas, beliefs, and convictions. They were the most blatant violations of the First Amendment we have ever known.
42
The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.
43
The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.
44
This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall, 357 U.S. 513, 536—537, 78 S.Ct. 1332, 1346, 2 L.Ed.2d 1460 (Douglas, J., concurring.) They are indeed inseparable and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas as in Yates and advocacy of political action as in Scales. The quality of advocacy turns on the depth of the conviction; and government has no power to invade that sanctuary of belief and conscience.3
1
The significant portions that could be understood were:
'How far is the nigger going to—yeah.'
'This is what we are going to do to the niggers.'
'A dirty nigger.'
'Send the Jews back to Israel.'
'Let's give them back to the dark garden.'
'Save America.'
'Let's go back to constitutional betterment.'
'Bury the niggers.'
'We intend to do our part.'
'Give us our state rights.'
'Freedom for the whites.'
'Nigger will have to fight for every inch he gets from now on.'
2
It was on the theory that the Smith Act, 54 Stat. 670, 18 U.S.C. § 2385, embodied such a principle and that it had been applied only in conformity with it that this Court sustained the Act's constitutionality. Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). That this was the basis for Dennis was emphasized in Yates v. United States, 354 U.S. 298, 320 324, 77 S.Ct. 1064, 1077—1079, 1 L.Ed.2d 1356 (1957), in which the Court overturned convictions for advocacy of the forcible overthrow of the Government under the Smith Act, because the trial judge's instructions had allowed conviction for mere advocacy, unrelated to its tendency to produce forcible action.
3
The first count of the indictment charged that appellant 'did unlawfully by word of mouth advocate the necessity, or propriety of crime, violence, or unlawful methods of terrorism as a means of accomplishing political reform * * *.' The second count charged that appellant 'did unlawfully voluntarily assemble with a group or assemblage of persons formed to advocate the doctrines of criminal syndicalism * * *.' The trial judge's charge merely followed the language of the indictment. No construction of the statute by the Ohio courts has brought it within constitutionally permissible limits. The Ohio Supreme Court has considered the statute in only one previous case, State v. Kassay, 126 Ohio St. 177, 184 N.E. 521 (1932), where the constitutionality of the statute was sustained.
4
Statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to imminent lawless action, for as Chief Justice Hughes wrote in De Jonge v. Oregon, supra, 299 U.S. at 364, 57 S.Ct. at 260: 'The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.' See also United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588 (1876); Hague v. CIO, 307 U.S. 496, 513, 519, 59 S.Ct. 954, 963, 965, 83 L.Ed. 1423 (1939); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460—461, 78 S.Ct. 1163, 1170—1171, 2 L.Ed.2d 1488 (1958).
1
See McKay, The Preference For Freedom, 34 N.Y.U.L.Rev. 1182, 1203—1212 (1959).
2
See Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295, where a speaker was arrested for arousing an audience when the only 'clear and present danger' was that the hecklers in the audience would break up the meeting.
3
See Mr. Justice Black, dissenting, in American Communications Assn. C.I.O. v. Douds, 339 U.S. 382, 446, 449, 70 S.Ct. 674, 707, 709, 94 L.Ed. 925 et seq.
| 23
|
395 U.S. 411
89 S.Ct. 1843
23 L.Ed.2d 404
Roderick JENKINS, Appellant,v.John Julien McKEITHEN et al.
No. 548.
Argued March 25, 1969.
Decided June 9, 1969.
Rehearing Denied Oct. 13, 1969.
See 90 S.Ct. 35.
[Syllabus from pages 411-413 intentionally omitted]
J. Minos Simon, Lafayette, La., for appellant.
Ashton L. Stewart, Baton Rouge, La., for appellees.
Mr. Justice MARSHALL announced the judgment of the Court and delivered an opinion in which Mr. CHIEF JUSTICE WARREN and Mr. Justice BRENNAN join.
1
This case involves the constitutionality of a 1967 Louisiana statute, known as Act No. 2, which creates a body called the Labor-Management Commission of Inquiry. La.Rev.Stat.Ann. §§ 23:880.1—23:880.18 (Supp.1969). The stated purpose of this Commission is 'the investigation and findings of facts relating to violations or possible violations of criminal laws of the state of Louisiana or of the United States arising out of or in connection with matters in the field of labor-management relations * * *.' Act No. 2, Preamble, (1967 Extra.Sess.) La.Acts 3. Appellant, a member of a labor union, filed this suit in the District Court for the Eastern District of Louisiana challenging the constitutionality of Act No. 2 and of certain actions taken by state officials in the administration of the Act and otherwise. He sought both declaratory and injunctive relief. A three-judge court was convened and that court ultimately granted appellees' motion to dismiss the complaint. Jenkins v. McKeithen, 286 F.Supp. 537 (D.C.E.D.La.1968). We noted probable jurisdiction of an appeal brought under 28 U.S.C. § 1253.1 We reverse.
2
Since the case was decided on a motion to dismiss, a rather detailed examination of the structure of the Act and of the allegations of the complaint is necessary.
I.
3
The impetus for the formation of the Commission was stated in the preamble of the Act. (1967 Extra.Sess.) La.Acts 2. It cited 'unprecedented conditions' in the labor relations of the construction industry, and it particularly noted certain 'allegations and accusations of violations of the state and federal criminal laws which should be thoroughly investigated in the public interest * * *.' Id., at 3. The additional investigative facilities of the Commission were thought necessary to 'supplement and assist the efforts and activities of the several district attorneys, grand juries and other law enforcement officials and agencies * * *.' Ibid.
4
The Commission is composed of nine members appointed by the Governor. La.Rev.Stat.Ann. § 23:880.1 (Supp.1969). It is empowered to act only upon referral by the Governor when, in his opinion, there is substantial indication that there are or may be 'widespread or continuing violations of existing criminal laws' affecting labor-management relations. La.Rev.Stat.Ann. § 23:880.5 (Supp.1969). Upon referral by the Governor, the Commission is to proceed by public hearing to ascertain the facts pertaining to the alleged violations. La.Rev.Stat.Ann. § 23:880.6 (Supp.1969). In order to carry out this function, the Commission has the power to make appropriate rules and regulations, to employ attorneys, investigators, and other staff members, to compel the attendance of witnesses, to examine them under oath, and to require the production of books, records, and other evidence. La.Rev.Stat.Ann. § 23:880.8 (Supp.1969). It can enforce its orders by petition to the state courts for contempt proceedings. La.Rev.Stat.Ann. § 23:880.9 (Supp.1969).
5
The scope of the Commission's investigative authority is explicitly limited by the Act to violations of criminal laws. 'The commission shall have no power, authority or jurisdiction to investigate, hold hearings or seek to ascertain the facts or make any reports or recommendations on any of the strictly civil aspects of any labor problem * * *.' La.Rev.Stat.Ann. § 23:880.6 B (Supp.1969).2 Further, the Commission has no power to participate in any manner in any civil proceeding, except, of course, contempt proceedings. Ibid. The limitation of the Commission to criminal matters is further reinforced by the provision of the Act allowing the Commission, at the request of the Governor, to assign its investigatory forces to the state police to assist the latter in their investigatory activities. La.Rev.Stat.Ann. § 23:880.6 C (Supp.1969).
6
The Commission is required to determine, in public findings, whether there is probable cause to believe violations of the criminal laws have occurred. La.Rev.Stat.Ann. § 23:880.7 A (Supp.1969). Its power is limited to making these findings and recommendations:
7
'The commission shall have no authority to and it shall make no binding adjudication with respect to such violation or violations; however, it may, in its discretion, include in its findings the conclusions of the commission as to specific individuals * * * and it may make such recommendations for action to the governor as it deems appropriate.' Ibid.
8
The findings are to be a matter of public record, La.Rev.Stat.Ann. § 23:880.15 B (Supp.1969), although they may not be used as prima facie or presumptive evidence of guilt or innocence in any court of law, La.Rev.Stat.Ann. § 23:880.7 A (Supp.1969). The Commission is required to report its findings to the proper state or federal authorities if it finds there is probable cause to believe that violations of the criminal laws have occurred, and it may file appropriate charges. La.Rev.Stat.Ann. § 23:880.7 B (Supp.1969). Finally, the Commission may request the Governor to refer matters to the State Attorney General asking the latter to exercise his authority to cause criminal prosecutions to be instituted. La.Rev.Stat.Ann. § 23:880.7 D (Supp.1969). Nothing in the Act makes any provision for preparation of findings or reports for submission to the Governor or the legislature for the explicit purpose of legislative action. Indeed, the preamble of the Act and the Act itself make it clear that the purpose of the Commission is to supplement the activities of the State's law enforcement agencies in one narrowly defined area.
9
As indicated above, the Commission has the power to compel the attendance of witnesses. A witness is given notice of the general subject matter of the investigation before being asked to appear and testify. La.Rev.Stat.Ann. § 23:880.10 A (Supp.1969). A witness has the right to the presence and advice of counsel, 'subject to such reasonable limitations as the commission may impose in order to prevent obstruction of or interference with the orderly conduct of the hearing.' La.Rev.Stat.Ann. § 23:880.10 B (Supp.1969). Counsel may question his client as to any relevant matters, ibid., but the right of a witness or his counsel to examine other witnesses is limited: limited: have any right to examine or cross-examine any other witness but he may submit to the commission proposed questions to be asked of any other witness appearing before the commission, and the commission shall ask the witness such of the questions as it deems to be appropriate to its inquiry.' Ibid.
10
With one limited exception to be discussed below, neither a witness nor any other private party has the right to call anyone to testify before the Commission.
11
Although the Commission must base its findings and reports only on evidence and testimony given at public hearings, the Act does provide for executive session when it appears that the testimony to be given 'may tend to degrade, defame or incriminate any person.' La.Rev.Stat.Ann. § 23:880.12 A (Supp.1969). In executive session the Commission must allow the person who might be degraded, defamed, or incriminated an opportunity to appear and be heard, and to call a reasonable number of witnesses on his behalf. Ibid. However, the Commission may decide that the evidence or testimony shall be heard in a public hearing, regardless of its effect on any particular person. Ibid. In that case, the person affected has the right to appear as a 'voluntary witness' and may submit 'pertinent' statements of others. Ibid. He may submit a list of additional witnesses, but subpoenas will be issued only in the discretion of the Commission. Ibid.; see also La.Rev.Stat.Ann. § 23:880.12 C (Supp.1969).
II.
12
Appellant's complaint named as defendants the Governor of Lous iana and six members of the Commission. The complaint presented, inter alia, the question of whether the provisions of Act No. 2 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Appellant alleged that the Commission was an executive trial agency 'aimed at conducting public trials concerning criminal law violations,' and that its function was publicly to condemn. Appellant asserted that the defendants
13
'in connection with the administration of the provisions of said Act, have singled out complaint and members of Teamsters Local No. 5 as a special class of persons for repressive and willfully punitive action * * * in furtherance of which a deliberate effort has been made and continues to be made by said officials * * * to destroy the current power structure of the labor union aforesaid * * *.'
14
More specifically, the complaint alleged that appellees and their agents, acting under color of law and in conspiracy, procured false statements of criminal activities and used such statements to initiate baseless criminal proceedings against appellant, that they intimidated and coerced public officials into filing and prosecuting false criminal charges against appellant, and that they knowingly, willfully, and purposefully intimidated state court judges having under consideration legal controversies involving appellant. These acts of appellees allegedly deprived appellant and all others similarly situated of 'rights, privileges and immunities secured to them by the Constitution and laws of the United States.' Finally, appellant alleged that the appellees intended to continue to deprive him and others of their rights and that there was no 'plain, adequate or efficient remedy at law.'
15
Appellant prayed that a three-judge district court be convened, that a temporary restraining order issue, that Act No. 2 be declared unconstitutional, that all civil and criminal actions against appellant be permanently restrained, and that other unspecified relief be granted.
16
Temporary relief was denied by the District Court and a three-judge court was impanelled to hear the case. Appellees answered and moved to dismiss. They alleged that appellant lacked standing to question the constitutionality of Act No. 2 and that the complaint failed to state a cause of action. Thereafter, appellant filed a 'Supplemental and Amending Petition' in which he alleged, in some detail, that appellees had continued the course of action described in the original complaint. After a hearing, the court dismissed the complaint. Jenkins v. McKeithen, supra.
17
The court, relying largely on the opinion of the Louisiana Supreme Court in Martone v. Morgan, 251 La. 993, 207 So.2d 770, appeal dismissed, 393 U.S. 12, 89 S.Ct. 46, 21 L.Ed.2d 12 (1968) (petition for rehearing pending), held that this Court's decision in Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960), was dispositive of the issue of the constitutionality of the Act. The court further ruled that appellant had not stated any other claim for relief under §§ 1981, 1983, and 1988 of Title 42, United States Code. Rather, the court held that the other matters sought to be raised in the complaint were merely potential defenses to the pending criminal charges and that appellant had not alleged any basis for restraining prosecution of those charges. Finally, the court ruled that appellant's suit was not a proper class action under Rule 23 of the Federal Rules of Civil Procedure.3 The court did not explicitly rule on the issue of whether appellant lacked standing to challenge the Act.
18
Appellant presents two questions for review in this Court: Whether Act No. 2 is constitutional and whether the complaint otherwise states a cause of action under 42 U.S.C. §§ 1981, 1983, and 1988.
III.
19
We are met at the outset with appellees' assertion that appellant lacks standing to attack the constitutionality of Act No. 2. This argument is based i part upon certain allegations in the complaint that Act No. 2 is unconstitutional because it denies to 'a person compelled to appear before * * * (the) Commission' the right to effective assistance of counsel, the right of confrontation, and the right to compulsory process for the attendance of witnesses. Since appellant did not allege in his complaint that he was called to appear before the Commission or that he expected to be called, appellees assert that he lacks standing to assert the denial of rights to those who do appear. See, e.g., Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943). Further, appellees argue that appellant lacks standing because he cannot demonstrate that he has been, or will be, 'injured' by the operation of the challenged statute. We cannot agree.
20
The present case was decided on appellees' motion to dismiss, in which appellees contested appellant's standing to challenge the constitutionality of the Act. As noted above, the court below made no explicit reference to the issue of standing. But since the question of standing goes to this Court's jurisdiction, see Flast v. Cohen, 392 U.S. 83, 94—101, 88 S.Ct. 1942, 1949—1953, 20 L.Ed.2d 947 (1968), we must decide the issue even though the court below passed over it without comment. Cf. Tileston v. Ullman, supra.
21
For the purposes of a motion to dismiss, the material allegations of the complaint are taken as admitted. See, e.g., Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174—175, 86 S.Ct. 347, 348—349, 15 L.Ed.2d 247 (1965). And, the complaint is to be liberally construed in favor of plaintiff. See Fed.Rule Civ.Proc. 8(f); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint should not be dismissed unless it appears that appellant could 'prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, supra, at 45—46, 78 S.Ct. at 102. With these rules in mind, we turn to an examination of the allegations of appellant's complaint.
22
It is true, as appellees assert, that appellant alleges deprivations of rights of those who are or will be called to testify before the Commission and that he fails to allege that he was or will be called to testify. If this were the extent of appellant's allegations, we would agree that appellant lacks standing to challenge the Act. However, appellant's allegations are not limited to those mentioned by appellees. Appellant alleged that the Commission was an 'executive trial agency' whose function was to conduct public trials designed to find appellant and others guilty of violations of criminal laws, allegedly for the purpose of injuring him and destroying the labor union of which he was a member. More specifically, appellant alleged that
23
'said Commission of Inquiry exercises (a) an accusatory function, (b) its duty to find that named individuals are responsible for criminal law violations, (c) it must advertise such findings, and (d) its findings serve as part of the process of criminal prosecution * * *.'
24
Finally, the complaint alleged that the appellees, acting in concert with others and in connection with the administration of the Act, have actually engaged in a course of conduct designed publicly to brand appellant and others as criminals, including, as noted above, the filing of allegedly baseless criminal charges against appellant.
25
Thus, although the complaint is inartfully drawn, it does allege that the Commission and those acting in concert with it have taken and will take in the future certain actions with respect to appellant. The issue is thus whether those allegations are sufficient to give appellant standing to challenge the constitutionality of the Act creating the Commission and the actions taken by the Commission under authority of that Act. We think that they are.
26
The concept of standing to sue, as we noted in Flast v. Cohen, supra, 'is surrounded by the same complexities and vagaries that inhere in (the concept of) justiciability' in general. 392 U.S. at 98, 88 S.Ct. at 1952. Nevertheless, the outlines of the concept can be stated with some certainty. The indispensable requirement is, of course, that the party seeking relief allege '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); see Flast v. Cohen, supra; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 151, 71 S.Ct. 624, 637, 95 L.Ed. 817 (1951) (concurring opinion). In this sense, the concept of standing focuses on the party seeking relief, rather than on the precise nature of the relief sought. See Flast v. Cohen, supra, 392 U.S. at 99—100, 88 S.Ct. at 1952. The decisions of this Court have also made it clear that something more than an 'adversary interest' is necessary to confer standing. There must in addition be some connection between the official action challenged and some legally protected interest of the party challenging that action. See Flast v. Cohen, supra, at 101—106, 88 S.Ct. at 1953—1955.
27
In the present case, it is clear that appellant possesses sufficient adversary interest to insure proper presentation of issues facing the court. His allegations, if taken as true, indicate that the Commission and those acting in concert with it have carried out a series of public acts designed to injure him in various ways. Appellant's interest in his own reputation and in his economic wellbeing guarantee that the present proceeding will be an adversary one.
28
We also think that appellant has alleged that the Act's administration was the direct cause of sufficient injury to his own legally protected interests to accord him standing to challenge the validity of the Act. We are not presented with a case in which any injury to appellant is merely a collateral consequence of the actions of an investigative body. See Hannah v. Larche, supra, 363 U.S. at 443, 80 S.Ct. at 1515; cf. Sinclair v. United States, 279 U.S. 263, 295, 49 S.Ct. 268, 272, 73 L.Ed. 692 (1929); McGrain v. Daugherty, 273 U.S. 135, 179—180, 47 S.Ct. 319, 330, 71 L.Ed. 580 (1927). Rather, it is alleged that the very purpose of the Commission is to find persons guilty of violating criminal laws without trial or procedural safeguards, and to publicize those findings. Moreover, we think that the personal and economic consequences alleged to flow from such actions are sufficient to meet the requirement that appellant prove a legally redressable injury. Those consequences would certainly be actionable if caused by a private party and thus should be sufficient to accord appellant standing. See Greene v. McElroy, 360 U.S. 474, 493, n. 22, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377 (1959); Joint Anti-Fascist Refugee Committee v. McGrath, supra, 341 U.S. at 140—141, 71 S.Ct. at 632 (opinion of Burton, J.); id., at 151—160, 71 S.Ct., at 637—642 (Frankfurter, J., concurring). It is no answer that the Commission has not itself tried to impose any direct sanctions on appellant; it is enough that the Commission's alleged actions will have a substantial impact on him. See, e.g., Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942); cf. NAACP v. Alabama, 357 U.S. 449, 460—463, 78 S.Ct. 1163, 1170—1172, 2 L.Ed.2d 1488 (1958). Finally, in the circumstances of the present case, we do not regard appellant's opportunity to defend any criminal prosecutions as sufficient to deprive him of standing to challenge the Act. Cf. United States v. Los Angeles & S.L.R. Co., 273 U.S. 299, 47 S.Ct. 413, 71 L.Ed. 651 (1927). Appellant's allegations go beyond the normal publicity attending criminal prosecution; he alleges a concerted attempt publicly to brand him a criminal without a trial. Further, he alleges that he has been unsuccessful in his attempts to secure prosecution of the charges againsth im.
29
We hold that appellant's complaint contains sufficient allegations of direct and substantial injury to his own legally protected interests to accord him standing to challenge the constitutionality of Act No. 2.
IV.
30
We thus reach the merits of appellant's contention that Act No. 2 is unconstitutional. Appellant's complaint is long and inartfully drawn; it contains many allegations of wrongdoing on the part of the Commission and other state officials. But the only issue presented by this aspect of the case is whether the Act creating the Commission is constitutional, either on its face or as applied. Many of appellant's allegations are relevant to this latter contention, but many involve issues that the court below ruled were properly matters to be raised in defense of any criminal prosecutions which might take place. We will deal with those allegations in the final section of this opinion.
31
Appellees, like the court below, rely heavily on this Court's decision in Hannah v. Larche, supra. In Hannah, this Court upheld the Civil Rights Commission against challenges similar to those involved in the present case. Indeed, Act No. 2 was drafted with Hannah in mind and the structure and powers of the Commission here are similar to those of the Civil Rights Commission. See Jenkins v. McKeithen, 286 F.Supp., at 540; Martone v. Morgan, supra. We cannot agree, however, that Hannah controls the present case, for we think that there are crucial differences between the issues presented by this complaint and the issues in Hannah.
32
The appellants in Hannah were persons subpoenaed to appear before the Civil Rights Commission in connection with complaints about deprivations of voting rights. They objected to the Civil Rights Commission's rules about nondisclosure of the complainants and about limitations on the right to confront and cross-examine witnesses. This Court ruled that the Commission's rules were consistent with the Due Process Clause of the Fifth Amendment. The Court noted that
33
"(d)ue process' is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. * * * Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.' 363 U.S., at 442, 80 S.Ct., at 1515.
34
In rejecting appellants' challenge to the Civil Rights Commission's procedures, the Court placed great emphasis on the investigatory function of the Commission:
35
'(I)ts function is purely investigative and fact-finding. It does not adjudicate. It does not hold trials or determine anyone's civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual's legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action.' 363 U.S., at 441, 80 S.Ct., at 1514.
36
The Court noted that any adverse consequences to those being investigated, such as subjecting them to public opprobrium, were purely conjectural, and, in any case, were merely collateral and 'not * * * the result of any affirmative determinations made by the Commission * * *.' 363 U.S., at 443, 80 S.Ct., at 1515. Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938), Joint Anti-Fascist Refugee Committee v. McGrath, supra, and Greene v. McElroy, supra, were distinguished on the ground that '(t)hose cases * * * involved * * * determinations in the nature of adjudications affecting legal rights.' 363 U.S., at 451, 80 S.Ct., at 1519.
37
We reaffirm the decision in Hannah. In our view, however, the Commission in the present case differ in a substantial respect from the Civil Rights Commission and the other examples cited by the Court in Hannah. It is true, as the Supreme Court of Louisiana has held, Martone v. Morgan, supra, that the Commission does not adjudicate in the sense that a court does, nor does the Commission conduct, strictly speaking, a criminal proceeding. Nevertheless, the Act, when analyzed in light of the allegations of the complaint, makes it clear that the Commission exercises a function very much akin to making an official adjudication of criminal culpability. See Joint Anti-Fascist Refugee Committee v. McGrath, supra.
38
The Commission is limited to criminal law violations; the Act explicitly provides that the Commission shall have no jurisdiction over civil matters in the labor-management relations field. Indeed, the Commission is even limited to certain types of criminal activities.4 As noted above, nothing in the Act indicates that the Commission's findings are to be used for legislative purposes. Rather, everything in the Act points to the fact that it is concerned only with exposing violations of criminal laws by specific individuals. In short, the Commission very clearly exercises an accusatory function; it is empowered to be used and allegedly is used to find named individuals guilty of violating the criminal laws of Louisiana and the United States and to brand them as criminals in public.
39
Given this view of the purpose of the Labor-Management Commission of Inquiry, we agree with Justice Frankfurter, concurring in the result in Hannah v. Larche:
40
'Were the (Civil Rights) Commission exercising an accusatory function, were its duty to find that named individuals were responsible for wrongful deprivation of voting rights and to advertise such finding or to serve as part of the process of criminal prosecution, the rigorous protections relevant to criminal prosecutions might well be the controlling starting point for assessing the protection which the Commission's procedure provides.' 363 U.S., at 488, 80 S.Ct., at 1543.
41
When viewed from this perspective, it is clear the procedures of the Commission do not meet the minimal requirements made obligatory on the States by the Due Process Clause of the Fourteenth Amendment. Specifically, the Act severely limits the right of a person being investigated to confront and cross-examine the witnesses against him. Only a person appearing as a witness may cross-examine other witnesses. Cross-examination is further limited to those questions which the Commission 'deems to be appropriate to its inquiry,' and those questions must be submitted, presumably beforehand, in writing to the Commission. We have frequently emphasized that the right to confront and cross-examine witnesses is a fundamental aspect of procedural due process. See, e.g., Willner v. Committee on Character and Fitness, 373 U.S. 96, 103—104, 83 S.Ct. 1175, 1180, 10 L.Ed.2d 224 (1963); Greene v. McElroy, supra, 360 U.S. at 496—499, 79 S.Ct. 1413—1415, and cases cited. In the present context, where the Commission allegedly makes an actual finding that a specific individual is guilty of a crime, we think that due process requires the Commission to afford a person being investigated the right to confront and cross-examine the witnesses against him, subject only to traditional limitations on those rights. Cf. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
42
The Commission's procedures also drastically limit the right of a person investigated to present evidence on his own behalf. It is true that he may appear and call a 'reasonable number of witnesses' in executive session, but should the Commission decide to hold a public hearing, he is limited to presentation of his own testimony and the 'pertinent' written statements of others. The right to present oral testimony from other witnesses and the power to compel attendance of those witnesses may be denied in the discretion of the Commission. The right to present evidence § , of course, essential to the fair hearing required by the Due Process Clause. See, e.g., Morgan v. United States, supra, 304 U.S., at 18, 58 S.Ct., at 776; Baltimore & Ohio R. Co. v. United States, 298 U.S. 349, 368—369, 56 S.Ct. 797, 807, 80 L.Ed. 1209 (1936). And, as we have noted above, this right becomes particularly fundamental when the proceeding allegedly results in a finding that a particular individual was guilty of a crime. Cf. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); In re Oliver, 333 U.S., 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948). We do not mean to say that the Commission may not impose reasonable restrictions on the number of witnesses and on the substance of their testimony; we only hold that a person's right to present his case should not be left to the unfettered discretion of the Commission.
43
Appellant argues that the procedures contemplated by the Act are deficient in other respects. In particular, he alleges that the Act provides no meaningful rules of evidence and fails to provide standards of guilt or innocence. He also alleges that the Act deprives him of effective assistance of counsel. We have, however, said enough to demonstrate that appellant has alleged a cause of action for declaratory and injunctive relief. Whether the Due Process Clause requires that the Commission provide all the procedural protections afforded a defendant in a criminal prosecution, or whether something less is sufficient, are questions that we think should be initially answered by the District Court on remand. As we have noted '(w)hether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors.' Hannah v. Larche, supra, 363 U.S., at 442, 80 S.Ct., at 1515. We think it inappropriate to rule on the extent to which the Commission's procedures may run afoul of the Due Process Clause on the basis of the record before us, barren as it is of any established facts. That issue is best decided in the first instance by the District Court in light of the evidence adduced at trial.
44
We do not mean to say that this same analysis applies to every body which has an accusatory function. The grand jury, for example, need not provide all the procedural guarantees alleged by appellant to be applicable to the Commission. As this Court noted in Hannah, 'the grand jury merely investigates and reports. It does not try.' 363 U.S., at 449, 80 S.Ct., at 1518. Moreover, '(t)he functions of that institution and its constitutional prerogatives are rooted in long centuries of Anglo-American history.' Id., at 489—490, 80 S.Ct. at 1544 (Frankfurter, J., concurring in the result). Finally the grand jury is designed to interpose an independent body of citizens between the accused and the prosecuting attorney and the court. See Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960); Ex parte Bain, 121 U.S. 1, 11, 7 S.Ct. 781, 786, 30 L.Ed. 849 (1887); Hannah v. Larche, supra, 363 U.S., at 497—499, 80 S.Ct., at 1547—1548 (dissenting opinion). Investigative bodies such as the Commission have no claim to specific constitutional sanction. In addition, the alleged function of the Commission is to make specific findings of guilt, not merely to investigate and recommend. Finally, it is clear from the Act and from the allegations of the complaint that the Commission is in no sense an 'independent' body of citizens. Rather, its members serve at the pleasure of the Governor, La.Rev.Stat.Ann. § 23:880.1 (Supp.1969), and it cannot act in the absence of a 'referral' from the Governor, La.Rev.Stat.Ann. §§ 23:880.5, 23:880.6 A (Supp.1969).
45
We also wish to emphasize that we do not hold that appellant is now entitled to declaratory or injunctive relief. We only hold that he has alleged a cause of action which may make such relief appropriate. It still remains for him to prove at trial that the Commission is designed to and does indeed act in the manner alleged in his complaint, and that its prc edures fail to meet the requirements of due process.
V.
46
As noted above, appellant also alleges in his complaint that appellees, and those acting in concert with them, have engaged in a course of conduct, both pursuant to the Act and otherwise, that has resulted in the filing of false criminal charges against appellant. He alleges numerous other related actions allegedly depriving him of his rights secured by the Constitution. The complaint seeks declaratory and injunctive relief with regard to these acts; in particular, appellant prays that the District Court enjoin all civil and criminal actions pending or to be instituted against him. To the extent that these allegations involve actions taken under the direct authority of Act No. 2, we think that they may properly be considered by the District Court in determining the constitutionality of the Act. However, the District Court characterized many of appellant's allegations as involving merely potential defenses to the criminal charges assertedly pending. In the exercise of its discretion and because the issues were 'intertwined' with the issue of the constitutionality of the Act, the court passed upon the question of whether appellant had alleged a cause of action for declaratory and injunctive relief. Relying in part on its determination that the Act was constitutional, the court held that appellant had not stated a claim for declaratory or injunctive relief and that appellant's remedy was to defend any criminal prosecutions then pending or that might be brought. Jenkins v. McKeithen, supra, 286 F.Supp., at 542—543. Whether the court will take the same view of the propriety of passing on the question or of the merits in light of our holding and the evidence adduced at trial cannot be determined at this time. Accordingly, we think that issue should be left open for reconsideration on remand.
47
The judgment of the court below is reversed and the cause is remanded for further proceedings.
48
It is so ordered.
49
Mr. Justice DOUGLAS concurs in the result for the reasons stated in his dissenting opinion in Hannah v. Larche, 363 U.S. 420, 493—508, 80 S.Ct. 1502, 1545—1553, 4 L.Ed.2d 1307 (1960).
50
Mr. Justice BLACK, concurring.
51
In concur in the Court's judgment and in much of what is said in the prevailing opinion. I cannot agree, however, to reaffirming Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307. I joined the dissent of Mr. Justice DOUGLAS in the Hannah case and still adhere to that dissent. The Louisiana law here, like the federal law considered in the Hannah case, is, in my judgment, nothing more nor less than a scheme for a nonjudicial tribunal to charge, try, convict, and punish people without courts, without juries, without lawyers, without witnesses—in short, without any of the procedural protections that the Bill of Rights provides. The Louisiana law is reminiscent of the old Parliamentary and Ecclesiastical Commission trials which took away the liberty of John Lilburne and his contemporaries without due process of law—that is, without giving them the benefit of a trial in accordance with the law of the land. For these reasons I believe that the Louisiana law denies due process of law.
52
Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice WHITE join dissenting.
53
Swept up in a constitutional revolution of its own making, the Court has a tendency to lose sight of the principles that have traditionally defined and limited its role in our political system. Constitutional adjudication is a responsibility we cannot shirk. But it is a grave and extraordinary process, one of last resort. And when it cannot legitimately be avoided, it is a function that must be performed with the utmost circumspection and precision, lest the Court's opinions emanate radiations which unintentionally, and spuriously, indicate views on matters we have not fully considered.
54
Over the years, the Court has evolved a number of principles designed to assure that we act within our proper confines. Perhaps the most fundae ntal of these is that we adjudicate only when, and to the extent that, we are presented with an actual and concrete controversy. Today, in its haste to make new constitutional doctrine, the Court turns this principle on its head, as it attempts to create a controversy out of a complaint which alleges none. With respect, I must dissent.
I.
55
Only last Term, in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), the Court reaffirmed the proposition that 'when standing (to sue) 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 * * *,' id., at 99—100, 88 S.Ct., at 1952, that is, 'whether there is a logical nexus between the status asserted and the claim sought to be adjudicated.' Id., at 102, 88 S.Ct. at 1953. In the present context, this means, simply, that for a plaintiff to challenge a particular course of conduct pursued or threatened to be pursued by a defendant, it is not enough for the plaintiff to allege that he has been or will be injured by the defendant; the plaintiff must further claim that the injury to him (or to those whom he has status to represent1) results from the particular course of conduct he challenges.
56
Appellant in the case at bar attacks the constitutional validity of certain specific statutory procedures of the Louisiana Labor-Management Commission of Inquiry. Applying the principle stated above, it is not sufficient that he may be injured by the Commission or its members in some way. The injury must be alleged to arise out of, or relate to, the application of the procedures in question. The most generous reading of appellant's complaint cannot mask the simple truth that it falls short of this minimal requirement.
57
At the risk of wearying the reader, I must deal with appellant's pleadings in some detail. The relevant portion of the complaint, and that relied upon by the Court, is part IV ('Facts'), which contains 17 operative paragraphs.
58
Paragraphs 1—3 identify the plaintiff and defendants.
59
Paragraphs 4—6 characterize the Commission as an 'executive trial agency,' and outline its investigative functions. Paragraph 7 avers that the Commission's procedures for performing these functions are constitutionally defective with respect to matters of counsel, confrontation, compulsory process, rules of evidence, standards of guilt, right of appeal, and self-incrimination. Nowhere, either directly or indirectly, do these paragraphs intimate that appellant (or for that matter, anyone else) has been affected by the procedures themselves and their asserted effects.
Paragraph 8 should be quoted in full:
60
'Furthermore complainant alleges that said defendants, their agents, representatives and employees, and those acting in concert with them, in connection with the administration of the provisions of said Act, have singled out complainant and members of Teamsters Local No. 5 as a special class of persons for repressive and willfully punitive action, solely because they are members of said Teamsters Local No. 5, in furtherance of which a deliberate effort has been made and continues to be made by said officials, spearheaded by defendant McKeithen, while acting under color of state law, to destroy the current power structure of the labor union afforesaid and said union to which complainant belongs as a member and through which he experiences economic survival, and to install a new power structure oriented and subservient to the James R. Hoffa group or clique of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; this effort has included and continues to include (a) the deliberate circulation for public consumption of willful falsehoods about members of said labor union, such as characterizing said members as 'hoodlums' and g angsters,' comparable in depravity to the sinister Mafia gangsters of underworld criminals, while masking such lawless conduct behind a verbal facade of law and order, (b) the indiscriminate filing of criminal charges against members of said labor union, where there exists no justifiable basis therefor and the concomitant exaction of excessive bail bonds, (c) the intimidating of public officals into carrying out the tyrannical aims of such indiscriminate criminal prosecution, and (d) the dictatorial use of the powers of the office of Governor of Louisiana in furtherance thereof.'
61
In paragraph 9, appellant avers, 'as more specifically applies to him,' that appellees conspired to file false criminal charges against him. Paragraphs 10—14 describe in detail the chronology and conduct of the resulting criminal proceedings.
62
Paragraph 15 alleges that appellees intimidated certain persons (not including appellant) in order to elicit false statements to bring about the prosecution of other persons (not including appellant).
63
Finally, paragraph 16 contains the usual averments requisite to equitable and declaratory relief, and paragraph 17 requests a temporary restraining order.
64
Reading and re-reading these many paragraphs of legal and factual averments, one cannot help but be struck by the conspicuous absence of any claim that appellant has been or will be investigated by the Commission, or called as a witness before it, or identified in its findings, or, indeed, subjected to any of its processes.2 Can this lacuna be filled by implication? I believe not.
65
Only paragraphs 9—14 relate specifically to appellant, and they contain no hint that the filing of the criminal informations against him was the result of the Commission's use of any of the procedures which the Court today indicates are constitutionally suspect. And assuming, contrary to fact, see n. 1, supra, that appellant represents others besides himself in this action, the only other arguably germane paragraph is 8(a), which alleges the 'deliberate circulation for public consumption of willful falsehoods about members of said labor union.' This paragraph conspicuously omits any suggestion that such 'falsehoods' were the result of testimony before the Commission or that they were contained in the Commission's 'findings'—a term that is repeatedly emphasized in the earlier description of the Commission's functions.
66
The complaint's utter failure to allege any connection between the injuries asserted to have been suffered by appellant and the procedures complained of is not, on any objective reading of the complaint, an accidental omission or the result of counsel's 'inartfulness'—as my Brother MARSHALL would put it. In my view, the only plausible inference—especially when it is remembered that appellant was represented by counsel throughout this litigation—is that such allegations were omitted because appellant had no facts to support them.3
67
The prevailing opinion's strained construction of the complaint goes well beyond the principle, with which I have no quarrel, that federal pleadings should be most liberally construed. It entirely undermines an important function of the federal system of procedure—that of disposing of unmeritorious and unjusticiable claims at the outset, before the parties and courts must undergo the expense and time consumed by evidentiary hearings.
68
Accordingly, I would sustain the dismissal of the complaint on the ground that appellant has not shown himself to have standing to challenge the Commission's procedures.
II.
69
Because the complaint is barren of any indication of the manner in which appellan is affected by the Commission's formal procedures, the prevailing opinion is required to make its own assumptions. It places appellant in the vague position of 'a person being investigated' by the Commission, ante, at 428, 429, and thence proceeds to discuss the rights of such a person to confront witnesses and to offer evidence in his own behalf. The prevailing opinion appears understandably reluctant to commit itself to very much. As I read the opinion, it does not state that any of the Commission's procedures are actually unconstitutional, but holds only that there is enough latent in the complaint that the case should proceed to trial.
70
Of necessity, however, my Brother MARSHALL has to examine some of the constitutional issues sought to be raised by appellant in order to justify a remand, and his discussion leaves radiations which are, at least, unclear. Reluctant as I am, under the circumstances of this case, to discuss the merits, I therefore feel compelled to outline my own views. I am not certain to what extent they comport with those of the majority.
71
The prevailing opinion fails to articulate what I deem to be a constitutionally significant distinction between two kinds of governmental bodies. The first is an agency whose sole or predominant function, without serving any other public interest, is to expose and publicize the names of persons it finds guilty of wrongdoing. To the extent that such a determination—whether called a 'finding' or an 'adjudication'—finally and directly affects the substantial personal interests, I do not doubt that the Due Process Clause may require that it be accompanied by many of the traditional adjudicatory procedural safeguards. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951).
72
By the terms of the Louisiana legislation, the appellee Commission is not of this sort. Its authority is 'investigatory and fact finding only.' La.Rev.Stat.Ann. § 23:880.6 A (Supp.1969). Its stated purpose is 'to supplement and assist the efforts and activities of the several district attorneys, grand juries and other law enforcement officials and agencies of the State of Louisiana.' Preamble to Act No. 2. Its duty, when it finds probable cause to believe that the criminal laws have been violated, is to 'report its findings and recommendations to the proper federal and state authorities * * * charged with the responsibility for prosecution of criminal offenses' or to file charges itself. La.Rev.Stat.Ann. § 23:880.7 B (Supp.1969). The Commission has no authority to adjudicate a person's guilt or innocence, and its recommendations and findings have no legal consequences whatsoever. Id., § 23:880.7 A.
73
The Commission thus bears close resemblance to certain federal administrative agencies, infra, at 440 and this page, and to the offices of prosecuting attorneys. These agencies have one salient feature in common, which distinguishes them from those designed simply to 'expose.' None of them is the final arbiter of anyone's guilt or innocence. Each, rather, plays only a preliminary role, designed, in the usual course of events, to initiate a subsequent formal proceeding in which the accused will enjoy the full panoply of procedural safeguards. For this reason, and because such agencies could not otherwise practicably pursue their investigative functions, they have not been required to follow 'adjudicatory' procedures.
74
I see no constitutionally relevant distinction between this State Commission and the federal administrative agencies that perform investigative functions designed to discover violations which may result in the initiation of criminal proceedings. In Hannah v. Larche, 363 U.S. 420, 445—448, 454—485, 80 S.Ct. 1502, 1516—1518, 1521—1541, 4 L.Ed.2d 1307 (1960), the Court expressly condoned the denial of 'rights such as apprisal, confrontation, and cross-examination' in such 'nonadjudicative, fact-finding investigations.' Id., at 446, 80 S.Ct. at 1517. The Court recognized, for example, that the Fedea l Trade Commission
75
'could not conduct an efficient investigation if persons being investigated were permitted to convert the investigation into a trial. We have found no authorities suggesting that the rules governing Federal Trade Commission investigations violate the Constitution, and this is understandable since any person investigated by the Federal Trade Commission will be accorded all the traditional judicial safeguards at a subsequent adjudicative proceeding * * *.' Id., at 446, 80 S.Ct. at 1517.
76
And the Court said of the Securities and Exchange Commission:
77
'Although the Commission's Rules provide that parties to adjudicative proceedings shall be given detailed notice of the matters to be determined, * * * and a right to cross-examine witnesses appearing at the hearing, * * * those provisions of the Rules are made specifically inapplicable to investigations, * * * even though the Commission is required to initiate civil or criminal proceedings if an investigation discloses violations of law. Undoubtedly, the reason for this distinction is to prevent the sterilization of investigations by burdening them with trial-like procedures.' Id., at 446 448, 80 S.Ct., at 1517—1518. (Emphasis added.)
78
The statutory safeguards afforded persons being investigated by the Louisiana Commission are at least equal to those provided by most of these federal agencies. See id., at 454—485, 80 S.Ct., at 1521—1541.
79
The Commission's functions also find close analogies in the investigations and determinations that take place daily in the offices of state and federal prosecuting attorneys. In both instances, the responsible officials proceed by interrogating persons with knowledge of possible violations of the criminal law. If the prosecutor believes that an individual has committed a crime, he files an information or seeks a grand jury indictment. When the Commission reaches a similar conclusion, it turns its intelligence over to a prosecutor so that he may initiate the formal criminal process.
80
For obvious reasons, it has not been seriously suggested that a 'person under investigation' by a district attorney has any of the 'adjudicative' constitutional rights at the investigative stage.4 These rights attach only after formal proceedings have been initiated. Nor, of course, does one under investigation have a constitutional right that the investigations be conducted in secrecy, or that the official keep his plans to prosecute confidential. The decision whether or not to disclose these matters rests in the sound discretion of the responsible public official. Various factors, such as the fear that a suspect will flee or the concern for obtaining an unbiased jury when the matter comes to trial, may militate in favor of secrecy. On the other hand, an appropriate disclosure of a pending investigation may bring forth witnesses and evidence, and serves a proper ancillary function in keeping the public informed.5
81
The Commission's operations diffr from those of a prosecuting attorney in one important respect, however. The very formality of the Commission's investigatory process may lend greater credibility and a greater aura of official sanction to the testimony given before it and to its findings. Although in this respect the Commission is not different from the federal agencies discussed above, I am not ready to say that the collateral consequences of government-sanctioned opprobrium may not under some circumstances entitle a person to some right, consistent with the Commission's efficient performance of its investigatory duties, to have his public say in rebuttal. However, the Commission's procedures are far from being niggardly in this respect. They include not only the right to make a personal appearance, but also the right to submit the statements of others, and, under some circumstances, to present questions to adverse witnesses. This is far more than is given persons under investigation by the federal agencies, and certainly serves adequately to neutralize any adverse collateral effects of the Commission's investigative proceedings.
82
As I noted above, the very insubstantiality of appellant's complaint leaves it unclear what the Court holds today. It may be that some of my Brethren understand the complaint to allege that in fact the Commission acts primarily as an agency of 'exposure,' rather than one which serves the ends required by the state statutes. If so—although I do not believe that the complaint can be reasonably thus construed—the area of disagreement between us may be small or nonexistent.
83
Before the Court holds that a purely investigatory agency must adopt the full roster of adjudicative safeguards, however, it would do well to heed carefully its own warning in Hannah, that such a requirement 'would make a shambles of the investigation and stifle the agency in its gathering of facts.' 363 U.S., at 444, 80 S.Ct., at 1515. Such a requirement would not only incapacitate state criminal investigatory bodies at a time when their need cannot be gainsaid, but would cast a broad shadow of doubt over the propriety of long-standing procedures employed by many federal agencies—procedures which less than a decade ago the Court believed to be proper and necessary.
1
The constitutionality of the Act was upheld in Martone v. Morgan, 251 La. 993, 207 So.2d 770, appeal dismissed, 393 U.S. 12, 89 S.Ct. 46, 21 L.Ed.2d 12 (1968) (petition for rehearing pending).
2
'(I)ts power, authority or jurisdiction shall in no case extend to (1) any matter which is solely an 'unfair labor practice' or an 'unfair employment practice' or a legitimate labor dispute under the provisions of any federal or state law; or (2) any matter which relates to legitimate economic issues arising between labor and management or the manner in which such labor practices or economic issues are to be settled between the parties, whether by negotiation, arbitration, lockout or strike; or (3) any matter which relates solely to the internal affairs of labor organizations, including but not necessarily restricted to membership policies, election procedures, membership rights and like matters; or (4) any alleged acts of violence or threats of violence or so-called 'mass picketing,' or like conduct by either an employer or a union, which is not related to bribery or extortion, as defined by law, but which is related only to an organizational objective of a labor union or which is related only to furthering the interests of one side or the other in a 'labor dispute,' as that term is defined by federal or state law, such conduct being already regulated by and subject to the police power of the state, exercised through such agencies as the Division of State Police; or (5) any matter which relates solely to the internal affairs of any business organization, including but not necessarily restricted to its labor and business policy and general operations, or (6) any matters which cos titute a combination of any two or more of these.' La.Rev.Stat.Ann. § 23:880.6 B (Supp.1969).
3
Appellant does not assign this ruling as error on this appeal.
4
See n. 2, supra.
1
As the prevailing opinion notes, ante, at 420, and n. 3, appellant does not assign as error the District Court's holding that this was not a proper class action.
2
And, of course, there is no suggestion that appellant ever requested that the Commission accord him any of the rights of whose absence he complains.
3
This inference is supported by the Report of the Labor-Management Commission of Inquiry, filed in this Court, which, other than mentioning the litigation challenging the Commission, nowhere refers to this appellant.
4
Of course, a person called upon to participate in the investigation, e.g., by answering questions, may have relevant rights at this stage. Cf., e.g., Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). But appellant does not intimate, and the majority does not assume, that he has been or will be subpoenaed to testify or produce documents.
5
It is ironic that appellant should complain of the open nature of the Commission's proceedings. The statutory requirement that the Commission 'shall base its findings and reports only upon evidence and testimony given at public hearings,' La.Rev.Stat.Ann. § 23:880.12 A (Supp.1969), is plainly designed to protect witnesses and persons under investigation from what some members of the Court have criticized as secret inquisitions or Star Chamber proceedings. See In re Groban, 352 U.S. 330, 337, 77 S.Ct. 510, 515, 1 L.Ed.2d 376 (1957) (Black, J., dissenting); Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 298, 79 S.Ct. 1157, 1163, 3 L.Ed.2d 1234 (1959) (Black, J., dissenting).
| 89
|
395 U.S. 337
89 S.Ct. 1820
23 L.Ed.2d 349
Christine SNIADACH, Petitioner,v.FAMILY FINANCE CORPORATION OF BAY VIEW et al.
No. 130.
Argued April 21, 1969.
Decided June 9, 1969.
Jack Greenber, New York City, for petitioner.
Sheldon D. Frank, Milwaukee, Wis., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Respondents instituted a garnishment action against petitioner as defendant and Miller Harris Instrument Co., her employer, as garnishee. The complaint alleged a claim of $420 on a promissory note. The garnishee filed its answer stating it had wages of $63.18 under its control earned by petitioner and unpaid, and that it would pay one-half to petitioner as a subsistence allowance1 and hold the other half subject to the order of the court.
2
Petitioner moved that the garnishment proceedings be dismissed for failure to satisfy the due process requirements of the Fourteenth Amendment. The Wisconsin Supreme Court sustained the lower state court in approving the procedure. 37 Wis.2d 163, 154 N.W.2d 259. The case is here on a petition for a writ of certiorari. 393 U.S. 1078, 89 S.Ct. 849, 21 L.Ed.2d 771.
3
The Wisconsin statute gives a plaintiff 10 days in which to serve the summons and complaint on the defendant after service on the garnishee.2 In this case petitioner was served the same day as the garnishee. She nonetheless claims that the Wisconsin garnishment procedure violates that due process required by the Fourteenth Amendment, in that notice and an opportunity to be heard are not given before the in rem seizure of the wages. What happens in Wisconsin is that the clerk of the court issues the summons at the request of the creditor's lawyer; and it is the latter who by serving the garnishee sets in motion the machinery whereby the wages are frozen.3 They may, it is true, be unfrozen if the trial of the main suit is ever had and the wage earner wins on the merits. But in the interim the wage earner is deprived of his enjoyment of earned wages without any opportunity to be heard and to tender any defense he may have, whether it be fraud or otherwise.
4
Such summary procedure may well meet the requirements of due process in extraordinary situations. Cf. Fahey v. Mallonee, 332 U.S. 245, 253—254, 67 S.Ct. 1552, 1554—1556, 91 L.Ed. 2030; Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 598—600, 70 S.Ct. 870, 872—873, 94 L.Ed. 1088; Ownbey v. Morgan, 256 U.S. 94, 110 112, 41 S.Ct. 433, 437—438, 65 L.Ed. 837; Coffin Bros. & Co. v. Bennett, 277 U.S. 29, 31, 48 S.Ct. 422, 423, 72 L.Ed. 768. But in the present case no situation requiring special protection to a state or creditor interest is presented by the facts; nor is the Wisconsin statute narrowly drawn to meet any such unusual condition. Petitioner was a resident of this Wisconsin community and in personam jurisdiction was readily obtainable.
5
The question is not whether the Wisconsin law is a wise law or unwise law. Our concern is not what philosophy Wisconsin should or should not embrace. See Green v. Frazier, 253 U.S. 233, 40 S.Ct. 499, 64 L.Ed. 878. We do not sit as a super-legislative body. In this case the sole question is whether there has been a taking of property without that procedural due process that is required by the Fourteenth Amendment. We have dealt over and over again with the question of what constitutes 'the right to be heard' (Schroeder v. New York, 371 U.S. 208, 212, 83 S.Ct. 279, 282, 9 L.Ed.2d 255) within the meaning of procedural due process. See Mullanev . Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865. In the latter case we said that the right to be heard 'has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.' 339 U.S., at 314, 70 S.Ct., at 657. In the context of this case the question is whether the interim freezing of the wages without a chance to be heard violates procedural due process.
6
A procedural rule that may satisfy due process for attachments in general, see McKay v. MaInnes, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975, does not necessarily satisfy procedural due process in every case. The fact that a procedure would pass muster under a feudal regime does not mean it gives necessary protection to all property in its modern forms. We deal here with wages—a specialized type of property presenting distinct problems in our economic system. We turn then to the nature of that property and problems of procedural due process.
7
A prejudgment garnishment of the Wisconsin type is a taking which may impose tremendous hardship on wage earners with families to support. Until a recent Act of Congress,4 § 304 of which forbids discharge of employees on the ground that their wages have been garnished, garnishment often meant the loss of a job. Over and beyond that was the great drain on family income. As stated by Congressman Reuss:5
8
'The idea of wage garnishment in advance of judgment, of trustee process, of wage attachment, or whatever it is called is a most inhuman doctrine. It compels the wage earner, trying to keep his family together, to be driven below the poverty level.'
9
Recent investigations of the problem have disclosed the grave injustices made possible by prejudgment garnishment whereby the sole opportunity to be heard comes after the taking. Congressman Sullivan, Chairman of the House Subcommittee on Consumer Affairs who held extensive hearings on this and related problems stated:
10
'What we know from our study of this problem is that in a vast number of cases the debt is a fraudulent one, saddled on a poor ignorant person who is trapped in an easy credit nightmare, in which he is charged double for something he could not pay for even if the proper price was called for, and then hounded into giving up his pound of flesh, and being fired besides.' 114 Cong.Rec. 1832.
11
The leverage of the creditor on the wage earner is enormous. The creditor tenders not only the original debt but the 'collection fees' incurred by his attorneys in the garnishment proceedings:
12
'The debtor whose wages are tied up by a writ of garnishment, and who is usually in need of money, is in no position to resist demands for collection fees. If the debt is small, the debtor will be under considerable pressure to pay the debt and collection charges in order to get his wages back. If the debt is large, he will often sign a new contract of 'payment schedule' which incorporates these additional charges.'6
13
Apart from those collateral consequences, it appears that in Wisconsin the statutory exemption granted the wage earner7 is 'generally insufficient to support the debtor for any one week.'8
14
The result is that a prejudgment garnishment of the Wisconsin type may as a practical matter drive a wageearning family to the wall.9 Where the taking of one's property is so obvious, it needs no extended argument to conclude that absent notice and a prior hearing (cf. Coe v. Armour Fertilizer Works, 237 U.S. 413, 423, 35 S.Ct. 625, 628, 59 L.Ed. 1027) this prejudgment a rnishment procedure violates the fundamental principles of due process.
15
Reversed.
16
Mr. Justice HARLAN, concurring.
17
Particularly in light of my Brother BLACK'S dissent, I think it not amiss for me to make explicit the precise basis on which I join the Court's opinion. The 'property' of which petitioner has been deprived is the use of the garnished portion of her wages during the interim period between the garnishment and the culmination of the main suit. Since this deprivation cannot be characterized as de minimis, she must be accorded the usual requisites of procedural due process: notice and a prior hearing.
18
The rejoinder which this statement of position has drawn from my Brother BLACK prompts an additional word. His and my divergence in this case rests, I think, upon a basic difference over whether the Due Process Clause of the Fourteenth Amendment limits state action by norms of 'fundamental fairness' whose content in any given instance is to be judicially derived not alone as my colleague believes it should be, from the specifics of the Constitution, but also, as I believe, from concepts which are part of the Anglo-American legal heritage—not, as my Brother BLACK continues to insist, from the mere predilections of individual judges.
19
From my standpoint, I do not consider that the requirements of 'notice' and 'hearing' are satisfied by the fact that the petitioner was advised of the garnishment simultaneously with the garnishee, or by the fact that she will not permanently lose the garnished property until after a plenary adverse adjudication of the underlying claim against her, or by the fact that relief from the garnishment may have been available in the interim under less than clear circumstances. Compare the majority and dissenting opinions in the Wisconsin Supreme Court, 37 Wis.2d 163, 178, 154 N.W.2d 259, 267 (1967). Apart from special situations, some of which are referred to in this Court's opinion, see ante, at 339, I think that due process is afforded only by the kinds of 'notice' and 'hearing' which are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property or its unrestricted use. I think this is the thrust of the past cases in this Court. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950); Opp Cotton Mills v. Administrator, 312 U.S. 126, 152—153, 61 S.Ct. 524, 535—536, 85 L.Ed. 624 (1941); United States v. Illinois Cent. R. Co., 291 U.S. 457, 463, 54 S.Ct. 471, 473, 78 L.Ed. 909 (1934); Londoner v. City & County of Denver, 210 U.S. 373, 385-386, 28 S.Ct. 708, 713—714, 52 L.Ed. 1103 (1908).* And I am quite unwilling to take the unexplicated per curiam in McKay v. McInnes, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975 (1929), as vitiating or diluting these essential elements of due process.
20
Mr. Justice BLACK, dissenting.
21
The Court here holds unconstitutional a Wisconsin statute permitting garnishment before a judgment has been obtained against the principal debtor. The law, however, requires that notice be given to the principal debtor and authorizes him to present all of his legal defenses at the regular hearing and trial of the case. The Wisconsin law is said to violate the 'fundamental principles of due process.' Of course the Due Process Clause of the Fourteenth Amendment contains no words that indicate that this Court has power to play so fast and loose with state laws. The arguments the Court makes to reach what I consider to be its unconstitutional conclusion, however, show why it strikes down this state law. It is because it considers a garnishment law of this kind to be bad state policy, a judgment I think the state legislature, not this Court, has power to make. The Court shows it believes the garnishment policy to be a "most inhuman doctrine"; that it "compels the wage earner, trying to keep his family together, to be driven below the poverty level"; that "in a vast number of cases the debt is a fraudulent one, saddled on a poor ignorant person who is trapped in an easy credit nightmare, in which he is charged double for something he could not pay for even if the proper price was called for, and then hounded into giving up his pound of flesh, and being fired besides."
22
The foregoing emotional rhetoric might be very appropriate for Congressmen to make against some phases of garnishment laws. Indeed, the quoted statements were made by Congressmen during a debate over a proposed federal garnishment law. The arguments would also be appropriate for Wisconsin's legislators to make against that State's garnishment laws. But made in a Court opinion, holding Wisconsin's law unconstitutional, they amount to what I believe to be a plain, judicial usurpation of state legislative power to decide what the State's laws shall be. There is not one word in our Federal Constitution or in any of its Amendments and not a word in the reports of that document's passage from which one can draw the slightest inference that we have authority thus to try to supplement or strike down the State's selection of its own policies. The Wisconsin law is simply nullified by this Court as though the Court had been granted a super-legislative power to step in and frustrate policies of States adopted by their own elected legislatures. The Court thus steps back into the due process philosophy which brought on President Roosevelt's Court fight. Arguments can be made for outlawing loan sharks and installment sales companies but such decisions, I think, should be made by state and federal legislators, and not by this Court.
23
This brings me to the short concurring opinion of my Brother HARLAN, which makes 'explicit the precise basis' on which he joins the Court's opinion. That basis is:
24
'The 'property' of which petitioner has been deprived is the use of the garnished portion of her wages during the interim period between the garnishment and the culmination of the main suit. Since this deprivation cannot be characterized as de minimis, she must be accorded the usual requisites of procedural due process: notice and a prior hearing.'
25
Every argument implicit in this summary statement of my Brother HARLAN'S views has been, in my judgment, satisfactorily answered in the opinion of the Supreme Court of Wisconsin in this case—an outstanding opinion on constitutional law. 37 Wis.2d 163, 154 N.W.2d 259. That opinion shows that petitioner was not required to wait until the 'culmination of the main suit,' that is, the suit between the creditor and the petitioner. In fact the case now before us was not a final determination of the merits of that controversy but was, in accordance with well-established state court procedure, the result of a motion made by the petito ner to dismiss the garnishment proceedings. With reference to my Brother HARLAN'S statement that petitioner's deprivation could not be characterized as de minimis, it is pertinent to note that the garnishment was served on her and her employer on the same day, November 21, 1966; that she, without waiting for a trial on the merits filed a motion to dismiss the garnishment on December 23, 1966, which motion was denied by the Circuit Court on April 18, 1967; and that it is that judgment which is before us today. The amount of her wages held up by the garnishment was $31.59. The amount of interest on the wages withheld even if computed at 10% annually would have been about $3. Whether that would be classified as de minimis I do not know and in fact it is not material to know for the decision of this case.
26
In the motion to dismiss, petitioner, according to the Supreme Court of Wisconsin, asserted a 'number of grounds based on injustices and deprivations which have been, or are likely to be, suffered by others, but which she has not personally experienced.' 37 Wis.2d 163, 166, 154 N.W.2d 259, 261. The court went further and pointed out that under Wisconsin law the court would not strike down a law as unconstitutional on the ground that some person other than the challenger of that law might in the future be injured by its unconstitutional part. It would seem, therefore, that the great number of our cases holding that we do not determine the constitutionality of state statutes where the judgment on them was based on state law would prevent our passing on this case at all.
27
The indebtedness of petitioner was evidenced by a promissory note, but petitioner's affidavit in support of the motion to dismiss, according to the Wisconsin Supreme Court contained no allegation that she is not indebted thereon to the plaintiff. Of course if it had alleged that, or if it had shown in some other way that this was not a good-faith lawsuit against her, the Wisconsin opinion shows that this could have disposed of the whole case on the summary motion.
28
Another ground of unconstitutionality, according to the state court, was that the Act permitted a defendant to post a bond and secure the release of garnished property and that this provision denied equal protection of the law 'to persons of law income.' With reference to this ground, the Wisconsin court said:
29
'Appellant has made no showing that she is a person of low income and unable to post a bond.' 37 Wis.2d, at 167, 154 N.W.2d, at 261.
30
Another ground of unconstitutionality urged was that since many employers discharged garnished employees for being unreliable, the law threatened the gainful employment of many wage earners. This contention the Supreme Court of Wisconsin satisfactorily answered by saying that petitioner had 'made no showing that her own employer reacted in this manner.'
31
Another ground challenging the state act was that it affords 10 days' time to a plaintiff to serve the garnishee summons and complaint on the defendant after service of the summons on the garnishee. This, of course, she could not raise. The Wisconsin Supreme Court's answer to this was that petitioner was served on the same day as the garnishee.
32
The state court then pointed out that the garnishment proceedings did not involve 'any final determination of the title to a defendant's property, but merely preserve(d) the status quo thereof pending determination of the principal action.' 37 Wis.2d, at 169, 154 N.W.2d, at 262. The court then relied on McInnes v. McKay, 127 Me. 110, 141 A. 699. That suit related to a Maine attachment law which, of course, is governed by the same rule as garnishment law. See 'garnishment,' Bouvier's Law Dictionary; see also Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. The Maine law was subjected to practically the same challenges that Brother HARLAN and the Court raise against this Wisconsin law. About that law the Supreme Court of Maine said:
33
'But, although an attachment may, within the broad men ing of the preceding definition, deprive one of property, yet conditional and temporary as it is, and part of the legal remedy and procedure by which the property of a debtor may be taken in satisfaction of the debt, if judgment be recovered, we do not think it is the deprivation of property contemplated by the Constitution. And if it be, it is not a deprivation without 'due process of law' for it is a part of a process, which during its proceeding gives notice and opportunity for hearing and judgment of some judicial or other authorized tribunal. The requirements of 'due process of law' and 'law of the land' are satisfied.' 127 Me. 110, 116, 141 A. 699, 702—703.
34
This Court did not even consider the challenge to the Maine law worthy of a Court opinion but affirmed it in a per curiam opinion, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975 on the authority of two prior decisions of this Court. See also Standard Oil Co. v. Superior Court in and for New Castle County, 5 Terry 538, 44 Del. 538, 62 A.2d 454, 14 A.L.R.2d 405, appeal dismissed, 336 U.S. 930, 69 S.Ct. 738, 739, 93 L.Ed. 1090; Harris v. Balk, 198 U.S. 215, 222, 227—228, 25 S.Ct. 625, 628—629, 49 L.Ed. 1023.
35
The Supreme Court of Wisconsin, in upholding the constitutionality of its law also cited the following statement of our Court made in Rothschild v. Knight, 184 U.S. 334, 341, 22 S.Ct. 391, 393, 46 L.Ed. 573:
36
'To what actions the remedy of attachment may be given is for the legislature of a State to determine and its courts to decide * * *.'
37
Accord, Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183, 193, 61 S.Ct. 513, 517, 85 L.Ed. 725.
38
The Supreme Court of Wisconsin properly pointed out:
39
'The ability to place a lien upon a man's property, such as to temporarily deprive him of its beneficial use, without any judicial determination of probable cause dates back not only to medieval England but also to Roman times.' 37 Wis.2d at 171, 154 N.W.2d at 264.
40
The State Supreme Court then went on to point out a statement made by Mr. Justice Holmes in Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67 L.Ed. 107:
41
'The Fourteenth Amendment, itself a historical product, did not destroy history for the States and substitute mechanical compartments of law all exactly alike. If a thing has been practiced for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it, as is well illustrated by Ownbey v. Morgan, 256 U.S. 94, 104, 112, 41 S.Ct. 433, 65 L.Ed. 837.'
42
The Ownbey case, which was one of the two cited by this Court in its per curiam affirmance of McInnes v. McKay, supra, sustained the constitutionality of a Delaware attachment law. And see Byrd v. Rector, 112 W.Va. 192, 163 S.E. 845, 81 A.L.R. 1213.
43
I can only conclude that the Court is today overruling a number of its own decisions and abandoning the legal customs and practices in this country with reference to attachments and garnishments wholly on the ground that the garnishment laws of this kind are based on unwise policies of government which might some time in the future do injury to some individuals. In the first sentence of the argument in her brief, petitioner urges that this Wisconsin law 'is contrary to public policy'; the Court apparently finds that a sufficient basis for holding it unconstitutional. This holding savors too much of the 'Natural Law,' 'Due Process,' 'Shock-the-conscience' test of what is constitutional for me to agree to the decision. See my dissent in Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903.
44
ADDENDUM.
45
The latest statement by my Brother HARLAN on the power of this Court under the Due Process Clause to hold laws unconstitutional on the ground of the Justices' view of 'fundamental fairness' makes it necessary for me to add a few words in order that the differences between us be made absolutely clear. He now says that the Court's idea of 'fundamental fairness' is derived 'not alone * * * fromt he specifics of the Constitution, but also * * * from concepts which are part of the Anglo-American legal heritage.' This view is consistent with that expressed by Mr. Justice Frankfurter in Rochin v. California that due process was to be determined by 'those canons of decency and fairness which express the notions of justice of English-speaking peoples * * *.' 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183. In any event, my Brother HARLAN'S 'Anglo-American legal heritage' is no more definite than the 'notions of justice of English-speaking peoples' or the shock-of-the-conscience test. All of these so-called tests represent nothing more or less than an implicit adoption of a Natural Law concept which under our system leaves to judges alone the power to decide what the Natural Law means. These so-called standards do not bind judges within any boundaries that can be precisely marked or defined by words for holding laws unconstitutional. On the contrary, these tests leave them wholly free to decide what they are convinced is right and fair. If the judges, in deciding whether laws are constitutional, are to be left only to the admonitions of their own consciences, why was it that the Founders gave us a written Constitution at all?
1
Wis.Stat. § 267.18(2)(a) provides:
'When wages or salary are the subject of garnishment action, the garnishee shall pay over to the principal defendant on the date when such wages or salary would normally be payable a subsistence allowance, out of the wages or salary then owing in the sum of $25 in the case of an individual without dependents or $40 in the case of an individual with dependents; but in no event in excess of 50 per cent of the wages or salary owing. Said subsistence allowance shall be applied to the first wages or salary earned in the period subject to said garnishment action.'
2
Wis.Stat. § 267.07(1).
3
Wis.Stat. § 267.04(1).
4
82 Stat. 146, Act of May 29, 1968.
5
114 Cong.Rec. 1832.
6
Comment, Wage Garnishment in Washington—An Empirical Study, 43 Wash.L.Rev. 743, 753 (1968). And see Comment, Wage Garnishment as a Collection Device, 1967 Wis.L.Rev. 759.
7
See n. 1, supra.
8
Comment, Wage Garnishment as a Collection Device, 1967 Wis.L.Rev. 759, 767.
9
'For a poor man—and whoever heard of the wage of the affluent being attached?—to lose part of his salary often means his family will go without the essentials. No man sits by while his family goes hungry or without heat. He either files for consumer bankruptcy and tries to begin again, or just quits his job and goes on relief. Where is the equity, the common sense, in such a process?' Congressman Gonzales, 114 Cong.Rec. 1833. For the impact of garnishment on personal bankruptcies see H.R. Rep. No. 1040, 90th Cong., 1st Sess., 20—21.
*
There are other decisions to the effect that one may be deprived of property by summary administrative action taken before hearing when such action is essential to protect a vital governmental interest. See, e.g., Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947); Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944); North Amer. Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 1 908). However, no such justification has been advanced in behalf of Wisconsin's garnishment law.
| 12
|
395 U.S. 402
89 S.Ct. 1813
23 L.Ed.2d 396
John T. WILLINGHAM and C. A. Jarvis, Petitioners,v.Daniel MORGAN.
No. 228.
Argued April 22, 1969.
Decided June 9. 1969.
Francis X. Beytagh, Jr., Cleveland, Ohio, for petitioners.
Joseph M. Snee, Austin, Tex., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case raises some important questions about the power of federal officials to have actions brought against them removed to the federal courts Petitioners Willingham and Jarvis are, respectively, the warden and chief medical officer at the United States Penitentiary of Leavenworth, Kansas. Respondent Morgan was a prisoner at the penitentiary at the time he filed this suit in the Leavenworth County District Court. He alleged in his complaint that petitioners and other, anonymous, defendants had on numerous occasions inoculated him with 'a deleterious foreign substance' and had assaulted, beaten, and tortured him in various ways, to his great injury. He asked for a total of $3,285,000 in damages from petitioners alone, plus other amounts from the unnamed defendants. Petitioners filed a petition for removal of the action to the United States District Court for the District of Kansas, alleging that anything they may have done to respondent 'was done and made by them in the course of their duties as officers of the United States of America * * * and under color of such offices * * *.' Petitioners invoked 28 U.S.C. § 1442(a)(1), which allows removal to the federal courts of any civil action against '(a)ny officer of the United States * * * for any act under color of such office * * *.'1 The Federal District Judge denied respondent's motion to remand the case to the state courts and granted summary judgment to petitioners, holding that recovery of damages was barred by the official immunity doctrine of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Thereafter, respondent perfected an appeal to the Court of Appeals for the Tenth Circuit. That court found it unnecessary to decide the immunity question, for it found insufficient basis in the record to support the District Court's refusal to remand the case to the state courts. 383 F.2d 139 (1967). The District Court was reversed and the case remanded for further proceedings. Upon the Solicitor General's petition, we granted certiorari to consider whether the Court of Appeals decided the removal question erroneously.2 393 U.S. 976, 89 S.Ct. 441, 21 L.Ed.2d 437 (1968). We reverse.
I.
2
The court below held that the 'color of office' test of § 1442(a)(1) 'provides a rather limited basis for removal.' 383 F.2d, at 141. It noted that the record might well have supported a finding that petitioners were protected from a damage suit by the official immunity doctrine. But it held that the test for removal was 'much narrower' than the test for official immunity, 383 F.2d, at 142, and accordingly that petitioners might have to litigate their immunity defense in the state courts. The Government contends that this turns the removal statute on its head. It argues that the removal statute is an incident of federal supremacy, and that one of its purposes was to provide a federal forum for cases where federal officials must raise defenses arising from their official duties. On this view, the test for removal should be broader, not narrower, than the test for official immunity. We agree.
3
The federal officer removal statute has had a long history. See H. M. Hart & H. Wechsler, The Federal Courts and the Federal System 1147—1150 (1953). The firsts uch removal provision was included in an 1815 customs statute. Act of February 4, 1815, § 8, 3 Stat. 198. It was part of an attempt to enforce an embargo on trade with England over the opposition of the New Englant States, where the War of 1812 was quite unpopular. It allowed federal officials involved in the enforcement of the customs statute to remove to the federal courts any suit or prosecution commenced because of any act done 'under colour' of the statute. Obviously, the removal provision was an attempt to protect federal officers from interference by hostile state courts. This provision was not, however, permanent; it was by its terms to expire at the end of the war. But other periods of national stress spawned similar enactments. South Carolina's threats of nullification in 1833 led to the passage of the so-called Force Bill, which allowed removal of all suits or prosecutions for acts done under the customs laws. Act of March 2, 1833, § 3, 4 Stat. 633. A new group of removal statutes came with the Civil War, and they were eventually codified into a permanent statute which applied mainly to cases growing out of enforcement of the revenue laws. Rev.Stat. § 643 (1874); Judicial Code of 1911, § 33, 36 Stat. 1097. Finally, Congress extended the statute to cover all federal officers when it passed the current provision as part of the Judicial Code of 1948. See H.R.Rep.No.308, 80th Cong., 1st Sess., A134 (1947).
4
The purpose of all these enactments is not hard to discern. As this Court said nearly 90 years ago in Tennessee v. Davis, 100 U.S. 257, 263, 25 L.Ed. 648 (1880), the Federal Government
5
'can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offense against the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection,—if their protection must be left to the action of the State court,—the operations of the general government may at any time be arrested at the will of one of its members.'
6
For this very basic reason, the right of removal under § 1442(a)(1) is made absolute whenever a suit in a state court is for any act 'under color' of federal office, regardless of whether the suit could originally have been brought in a federal court. Federal jurisdiction rests on a 'federal interest in the matter,' Poss v. Lieberman, 299 F.2d 358, 359 (C.A.2d Cir.), cert. denied, 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962), the very basic interest in the enforcement of federal law through federal officials.
7
Viewed in this context, the ruling of the court below cannot be sustained. The federal officer removal statute is not 'narrow' or 'limited.' Colorado v. Symes, 286 U.S. 510, 517, 52 S.Ct. 635, 637, 76 L.Ed. 1253 (1932). At the very least, it is broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law. One of the primary purposes of the removal statute—as its history clearly demonstrates—was to have such defenses litigated in the federal courts. The position of the court below would have the anomalous result of allowing removal only when the officers had a clearly sustainable defense. The suit would be removed only to be dismissed. Congress certainly meant more than this when it chose the words 'under color of * * * office.' In fact, one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court. The officer need not win his case before he can have it removed. In cases like this one, Congress has decided that federal officers, and indeed the Federal Government itself, require the protection of a federal forum. This policy should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1).
II.
8
The questio remains, however, whether the record in this case will support a finding that respondent's suit grows out of conduct under color of office, and that it is, therefore, removable. Respondent alleged in his motion for remand that petitioners had been acting 'on a frolic of their own which had no relevancy of their official duties as employees or officers of the United States.' He argued that in these circumstances the case should be remanded to the state courts. The only facts in the record which in any way respond to this allegation appear in petitioners' affidavits in support of their motion for summary judgment.3 There, petitioner Willingham declares that the only contact he has had with respondent was 'inside the walls of the United States Penitentiary, Leavenworth, Kansas, and in performance of (his) official duties as Warden of said institution.' Petitioner Jarvis declares, similarly, that his only contact with respondent was at the prison hospital 'and only in the performance of (his) duties as Chief Medical Officer and only with regard to medical care and treatment, diagnoses and routine physical examination.' Respondent did not deny either of these statements in his responsive affidavit. The question, then, is whether petitioners adequately demonstrated a basis for removal by showing that their only contact with respondent occurred while they were executing their federal duties inside the penitentiary.
9
The Judicial Code requires defendants who would remove cases to the federal courts to file 'a verified petition containing a short and plain statement of the facts' justifying removal. 28 U.S.C. § 1446(a). Moreover, this Court has noted that 'the person seeking the benefit of (the removal provisions) should be candid, specific and positive in explaining his relation to the transaction' which gave rise to the suit. Maryland v. Soper (No. 1), 270 U.S. 9, 35, 46 S.Ct. 185, 191, 70 L.Ed. 449 (1926); see Colorado v. Symes, supra, 286 U.S. at 518—521, 52 S.Ct. at 637 638. These requirements must, however, be tailored to fit the facts of each case.
10
It was settled long ago that the federal officer, in order to secure removal, need not admit that he actually committed the charged offenses. Maryland v. Soper (No. 1), supra, 270 U.S. at 32 33, 46 S.Ct. at 190—191. Thus, petitioners in this case need not have admitted that they actually injured respondent. They were, therefore, confronted with something of a dilemma. Respondent had filed a 'scattergun' complaint, charging numerous wrongs on numerous different (and unspecified) dates. If petitioners were to be 'candid, specific and positive' in regard to all these allegations, they would have to describe every contact they had ever had with petitioner, as well as all contacts by persons under their supervision. This would hardly have been practical, or even possible, for senior officials like petitioners.
11
In a civil suit of this nature,4 we think it was sufficient for petitioners to have shown that their relationship to respondent derived solely from their official duties. Past cases have interpreted the 'color of office' test to require a showing of a 'causal connection' between the charged conduct and asserted official authority. Maryland v. Soper (No. 1), supra, 270 U.S. at 33, 46 S.Ct. at 190—191. 'It is enough that (petitioners') acts or (their) presence at the place in performance of (their) official duty constitute the basis, though mistaken or false, of the state prosecution.' Ibid. In this case, once petitioners had shown that their only contact with respondent occurred inside the penitentiary, while they were performing their duties, we believe that they had demonstrated the required 'causal connection.' The connection consists, simply enough, of the undisputed fact that petitioners were on duty, at their place of federal employment, at all the relevant times. If the question raised is whether they were engaged in some kind of 'frolic of their own' in relation to respondent, then they should have the opportunity to present their version of the facts to a federal, not a state, court. This is exactly what the removal statute was designed to accomplish. Petitioners sufficiently put in issue the questions of official justification and immunity; the validity of their defenses should be determined in the federal courts.
12
The Court of Appeals, therefore, erred when it held that petitioners had not adequately demonstrated a right to have their case decided in the federal courts. Because of its resolution of the removal issue, the Court of Appeals did not express any opinion on the propriety of the District Court's award of summary judgment. That question has not been briefed or argued in this Court. Accordingly, we think it proper to vacate the judgment and remand the case to the Court of Appeals so that it may consider this and any other questions which remain in the case.
13
It is so ordered.
14
Judgment vacated and case remanded.
15
Mr. Justice BLACK, concurring.
16
I concur in the judgment of the Court and in the opinion except for one portion which is quoted below in answer to the Government's contention:
17
'It argues that the removal statute is an incident of federal supremacy, and that one of its purposes was to provide a federal forum for cases where federal officials must raise defenses arising from their official duties. On this view, the test for removal should be broader, not narrower, than the test for official immunity. We agree.'
18
I see no necessity in this case for comparing the breadth of the law authorizing removal of cases from state to federal courts with the test 'for official immunity.' This case raises no question about official immunity from lawsuits for conduct of a government employee. Moreover, the difference between the breadth of a right to remove and a right to claim immunity is purely conceptual and cannot be measured by any means that I know about.
19
I would therefore eliminate the abovequoted statement from the Court's opinion.
1
28 U.S.C. § 1442(a)(1) provides:
'(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
'(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of revenue.'
2
The opinion below was in apparent conflict with at least three other Court of Appeals decisions. Poss v. Lieberman, 299 F.2d 358 (C.A.2d Cir.), cert. denied, 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962); North Carolina v. Carr, 386 F.2d 129 (C.A.4th Cir. 1967); Allman v. Hanley, 302 F.2d 559 (C.A.5th Cir. 1962).
3
This material should have appeared in the petition for removal. However, for purposes of this review it is proper to treat the removal petition as if it had been amended to include the relevant information contained in the later-filed affidavits. See 28 U.S.C. § 1653; Buell v. Sears, Roebuck & Co., 321 F.2d 468 (C.A.10th Cir. 1963); Firemen's Ins. Co. of Newark, N.J. v. Robbins Coal Co., 288 F.2d 349 (C.A.5th Cir.), cert. denied, 368 U.S. 875, 82 S.Ct. 122, 7 L.Ed.2d 77 (1961). See also American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts 264—265 (Tentative Draft No. 6, 1968).
4
Were this a criminal case, a more detailed showing might be necessary because of the more compelling state interest in conducting criminal trials in the state courts. Cf. Colorado v. Symes, supra; Maryland v. Soper (No. 1), supra.
| 89
|
395 U.S. 708
89 S.Ct. 1901
23 L.Ed.2d 653
Fred BANKS, Petitioner,v.State of CALIFORNIA.
No. 670.
Argued April 23, 1969.
Decided June 16, 1969.
Rehearing Denied Oct. 13, 1969.
See 90 S.Ct. 36.
Thomas J. Klitgaard, San Francisco, for petitioner.
Edward P. O'Brien, San Francisco, for respondent.
PER CURIAM.
1
Petitioner did not ask the Supreme Court of California to review the judgment entered by the Court of Appeal in this case. Therefore, the decision of the Court of Appeal is not a '(f)inal judgment * * * rendered by the highest court of a State in which a decision could be had * * *.' 28 U.S.C. § 1257, and we lack jurisdiction to review it. The writ of certiorari is dismissed for want of jurisdiction.
2
It is so ordered.
3
Writ dismissed.
| 89
|
395 U.S. 464
89 S.Ct. 1860
23 L.Ed.2d 474
UTAH PUBLIC SERVICE COMMISSION, Appellant,v.EL PASO NATURAL GAS COMPANY et al.
No. 776.
Argued April 29, 1969.
Decided June 16, 1969.
[Syllabus from pages 464-465 intentionally omitted]
Vernon B. Romney, Salt Lake City, Utah, for appellant.
Leon Payne, Houston, Tex., for appellee, El Paso Natural Gas Co.
Richard B. Hooper, Seattle, Wash., for appellees, Cascade Natural Gas Corp., et al.
John F. Sonnett, New York City, for appellee, Colorado Interstate Corp.
Iver E. Skjeie for appellee, State of California.
Sol. Gen. Irwin N. Griswold for appellee, The United States, at the invitation of Court.
William M. Bennett, San Francisco, Cal., consumer spokesman.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This is before us on appellant's motion to dismiss its appeal under Rule 60. Ordinarily parties may be consensus agree to dismissal of any appeal pending before this Court.1 However, there is an exception where the dismissal implicates a mandate we have entered in a cause.2 Our mandate is involved here. We therefore ordered oral argument at which all parties concerned were afforded an opportunity to be heard on the question whether there had been compliance with the mandate. 394 U.S. 970, 89 S.Ct. 1453, 22 L.Ed.2d 751. At the oral argument a number of appellees supported appellant's motion. They included the United States, the State of California, El Paso Natural Gas Company, Cascade Natural Gas Corporation, Intermountain Gas Company, Northwest Natural Gas Company, the Washington Water Power Company, Washington Natural Gas Company, Idaho Public Utilities Commission, Public Utility Commissioner of Oregon, Washington Utilities and Transportation Commission, Colorado It erstate Corporation, Southern California Gas Company, and Southern Counties Gas Company of California. The motion was opposed by John J. Flynn and I. Daniel Stewart, by brief amicus curiae, and by William M. Bennett, who appeared for the State of California when the case was last here, Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 131, 87 S.Ct. 932, 935, 17 L.Ed.2d 814 (1967), and now presents himself, and argued orally, as 'consumer spokesman.'
2
This is a Clayton Act § 7 case, 38 Stat. 731, 15 U.S.C. § 18, in which the acquisition of the stock and assets of Pacific Northwest Pipeline Corporation by El Paso Natural Gas Company raised the 'ultimate issue' whether 'the acquisition substantially lessened competition in the sale of natural gas in California.' United States v. El Paso Natural Gas Co., 376 U.S. 651, 652, 84 S.Ct. 1044, 1045, 12 L.Ed.2d 12. We ordered divestiture 'without delay.' Id., at 662, 84 S.Ct. at 1050. That was in 1964. The United States later agreed to settle the case. As to that we said:
3
'We do not question the authority of the Attorney General to settle suits after, as well as before, they reach here. The Department of Justice, however, by stipulation or otherwise has no authority to circumscribe the power of the courts to see that our mandate is carried out. No one, except this Court, has authority to alter or modify our mandate. United States v. E. I. du Pont De Nemours & Co., 366 U.S. 316, 325, 81 S.Ct. 1243, 6 L.Ed.2d 318. Our direction was that the District Court provide for 'divestiture without delay.' That mandate in the context of the opinion plainly meant that Pacific Northwest or a new company be at once restored to a position where it could compete with El Paso in the California market.' 386 U.S., at 136, 87 S.Ct. at 937.
4
We set aside that consent decree and remanded for additional findings and a new solution, saying:
5
'In the present case protection of California interests in a competitive system was at the heart of our mandate directing divestiture. For it was the absorption of Pacific Northwest by El Paso that stifled that competition and disadvantaged the California interests. It was indeed their interests, as part of the public interest in a competitive system, that our mandate was designed to protect.' Id., at 135, 87 S.Ct. at 937.
6
On remand the District Court decided it should choose from among the various applicants the one that is 'best qualified to make New Company a serious competitor' in the California market. United States v. El Paso Natural Gas Co., 291 F.Supp. 3. That court chose Colorado Interstate Corp., the only gas pipeline operator among the various applicants.
7
Under the plan approved by the District Court, El Paso receives 5,000,000 shares of New Company nonvoting preferred stock, convertible into common stock at the end of five years. What the conversion ratio will be is not known; but, it is said, there will be provisions to restrict El Paso control over the New Company. The New Company also assumes approximately $170,000,000 of El Paso's system-wide bond and debenture indebtedness, an amount designated the Northwest Division's pro-rata share of that indebtedness.
8
Utah's jurisdictional statement, which she now moves to dismiss, was filed here Noveme r 25, 1968. That jurisdictional statement presents the question whether the decree entered below satisfies our mandate. It is the filing of that jurisdictional statement that brings the question here. See United States v. E. I. duPont De Nemours & Co., 366 U.S. 316, 81 S.Ct. 1243, 6 L.Ed.2d 318. In fact, in its jurisdictional statement, Utah urged that the decree does not meet the requirements of duPont. We thus need not decide whether the papers filed by amicus curiae or Mr. Bennett properly presented the question of compliance. We find that the decree of the District Court does not comply with our mandate: it does not apportion the gas reserves between El Paso and New Company in a manner consistent with the purpose of the mandate, and it does not provide for complete divestiture. We therefore vacate the judgment and remand the case for further proceedings.
I.
9
When the case was last here we said, 'The gas reserves granted the New Company must be no less in relation to present existing reserves than Pacific Northwest had when it was independent; and the new gas reserves developed since the merger must be equitably divided between El Paso and the New Company. We are told by the intervenors that El Paso gets the new reserves in the San Juan Basin—which due to their geographical propinquity to California are critical to competition in that market. But the merged company, which discovered them, represented the interests both of El Paso and of Pacific Northwest. We do not know what an equitable division would require. Hearings are necessary, followed by meticulous findings made in light of the competitive requirements to which we have adverted.' 386 U.S., at 136—137, 87 S.Ct. at 937.
10
The District Court awarded 21.8% of the San Juan Basin reserves to the New Company saying that was 'no less in relation to present existing reserves' than Northwest had when it was independent. The District Court also gave the New Company more than 50% of the net additions to the reserves developed since the merger. Concededly the total reserves of the New Company will not be sufficient to meet the old Northwest's existing requirements and those of a California project.
11
This attempt to paralyze competition in the California market started years ago; the Clayton Act suit was filed in 1957. The record up to the entry of the present decree shows, as the District Court found, that delay has strengthened El Paso's position. First, the delay has strengthened El Paso's hold on the California market, making it more and more difficult for a new out-of-state supplier to enter. Second, an additional out-of-state supplier has entered the California market during this 12-year period, taking what well might have been the place of the old Northwest Company had not its competition been stifled. Third, permits for new pipelines from Texas to California are now pending before the Federal Power Commission.
12
The purpose of our mandate was to restore competition in the California market. An allocation of gas reserves should be made which is 'equitable' with that purpose in mind. The position of the New Company must be strengthened and the leverage of El Paso not increased. That is to say, an allocation of gas reserves particularly those in the San Juan Basin—must be made to rectify, if possible, the manner in which El Paso has used the illegal merger to strengthen its position in the California market. The object of the allocation of gas reserves must be to place New Company in the same relative competitive position vis-a -vis El Paso in the California market as that which Pacific Northwest enjoyed immediately prior to the illegal merger.
13
A reallocation of gas reserves under this standard may permit an applicant other than Colorado Interstate Corporation to acquire New Company and make it a competitive force in California. Thus, the District Court is directed to effect this reallocation of gas reserves, and, in light of the reallocation, to reopen consideration of which applicant should acquire New Company. Suh consideration should, of course, include whether an award to a particular applicant will have any anti-competitive effects either in the California market or in other markets.
II.
14
Our mandate directed complete divestiture. The District Court did not, however, direct complete divestiture. Neither appellant nor any party supporting the dismissal argues that the District Court did so. Rather they argue that the disposition made by the District Court was the best that might be made without complete divesture. Clearly this does not comply with our mandate. United States v. E.I. du Pont De Nemours & Co., 366 U.S. 316, 81 S.Ct. 1243, 6 L.Ed.2d 318, was another § 7 case in which we ordered 'complete divestiture.' Id., at 328, 81 S.Ct. at 1251. One plan proposed was a distribution of General Motors shares held by du Pont, most of them to be distributed pro rata over a 10-year period to du Pont stockholders; the rest were to be sold gradually over the same 10-year period. Id., at 319—320, 81 S.Ct. at 1246 1247. Du Pont's alternate plan was to retain all attributes of ownership, passing through to its shareholders the voting rights proportional to their holdings of du Pont shares. We did not approve that plan but directed 'complete divestiture.' Id., at 334, 81 S.Ct. at 1254. We said: 'The very words of § 7 suggest that an undoing of the acquisition is a natural remedy. Divestiture or dissolution has traditionally been the remedy for Sherman Act violations whose heart is intercorporate combination and control.' 366 U.S., at 329, 81 S.Ct. at 1251. We said that divestiture only of voting rights was not an adequate remedy. What was necessary was dissolution 'of the intercorporate community of interest which we found to violate the law.' Id., at 331, 81 S.Ct. at 1253.
15
The reason advanced for allowing El Paso to take a stock interest in the New Company rather than cash is to reduce its income tax burden. We have emphasized that the pinch on private interests is not relevant to fashioning an antitrust decree, as the public interest is our sole concern. United States v. E.I. du Pont De Nemours & Co., supra, 366 U.S., at 326, 81 S.Ct., at 1250.
16
The same reasoning is applicable to the present case. Retention by El Paso and its stockholders of the preferred stock is perpetuation to a degree of the illegal intercorporate community. Assumption of $170,000,000 of El Paso's indebtedness helps keep the two companies in league. The severance of all managerial and all financial connections between El Paso and the New Company must be complete for the decree to satisfy our mandate. Only a cash sale will satisfy the rudiments of complete divestiture.
17
We vacate the judgment of the District Court and remand the cause for proceedings in conformity with this opinion.
18
It is so ordered.
19
Mr. Justice WHITE and Mr. Justice MARSHALL took no part in the consideration or decision of this case.
20
Judgment vacated and cause remanded.
21
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
22
The action taken by the Court today will be dismaying to all who are accustomed to regard this institution as a court of law.
23
All semblance of judicial procedure has been discarded in the headstrong effort to reach a result that four members of this Court believe desirable. In violation of the Court's rules, the majority asserts the power to dispose of this case according to its own notions, despite the fact that all the parties participating in the lower court proceedings are satisfied that the District Court's decree is in the public interest. The majority seeks to justify this extraordinary step on the ground that District Judge Chilson's painstaking opinion of over 30 pages is in violation of the mandate issued in Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967), although (1) we have heard no oral argument directed to this question1 and (2) we have not ordered the interested parties to file full briefs on this issue. Actualy , as will appear, what the Court has done is to substitute, sua sponte, a new mandate for its old one. I cannot possibly subscribe to such an abuse of the judicial process.
24
Moreover, even if the impropriety of the Court's precipitate course is swallowed, it seems to me clear that the District Court's decision in the present case did not violate any prior mandate this Court has entered in this long and complicated litigation.2 Rather than frustrating Cascade's command that 'a new company be at once restored to a position where it could compete with El Paso in the California market,' 386 U.S., at 136, 87 S.Ct. at 937, Judge Chilson's decree adopted the solution which, so far as one can now tell most effectively realized the goals of § 7 of the Clayton Act. Indeed, it is unlikely that as a result of the Court's order today, California's natural gas consumers will ever obtain the benefits of competition that this lawsuit was intended to achieve when it was initiated by the Department of Justice in 1957.
I.
25
In addition to 17 private parties, the States of California, Arizona, Nevada, Utah, and Washington intervened in the proceedings below. The Department of Justice of course represented the interests of the United States as plaintiff, and the Federal Power Commission participated as amicus curiae. Only the State of Utah, however, chose to file a Jurisdictional Statement in this Court challenging Judge Chilson's decree. All other parties have signified their belief that the District Court's judgment is satisfactory. The State of Utah now wishes to dismiss its appeal, reasonably suggesting that its interests in the present dispute are peripheral, and that if the State of California and the United States do not believe that the decree will prejudice the interests of California's consumers, Utah considers it inappropriate to contest the matter further.
26
The majority, however, refuses to permit Utah to dismiss its appeal, despite the command of Rule 60 of the rules of this Court:
27
'Whenever the parties thereto shall, by their attorneys of record, file with the clerk an agreement in writing that an appeal, petition for or writ of certiorari, or motion for leave to file or petition for (an) extraordinary writ be dismissed, specifying the terms as respects costs, and shall pay to the clerk any fees that may be due him, the clerk, shall, without further reference to the o urt, enter an order of dismissal.' (Emphasis supplied.)
28
The language of the rule could not be clearer—the parties to a lawsuit are given the absolute right to dismiss their appeal without judicial scrutiny. Since 1858, the rules of this Court have expressly recognized the existence of this right, see Rivised Rules of the Sup.Ct. of the United States, Rule No. 29 (1858),3 and I have found no decision in which this right has ever been questioned or limited. Nevertheless, the Court today, without any discussion whatever, ignores the heretofore unquestioned interpretation of the rule and declares that 'there is an exception where the dismissal implicates a mandate we have entered in a cause.' Ante, at 466.
29
In handing down this ipse dixit, the Court not only overlooks the teachings of more than a century of judicial practice, but also undermines the basic policies which support Rule 60. The rule is not a mere technicality but is predicated upon the classical view that it is the function of this Court to decide controversies between parties only when they cannot be settled by the litigants in any other way. See Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). On this view of the judicial process, it is difficult to perceive why the Court should feel constrained to enforce its mandate when the parties have subsequently agreed, in a completely voluntary and bona fide way, that a different solution will better accommodate their interests. We have labor enough in deciding those pressing disputes which the parties are unable to resolve; there is no need to 'do justice' when no litigant is complaining that a wrong has been committed. Nor will it do to say, as the Court seems to suggest, that antitrust decrees, being affected with a public interest, as they surely are, are always subject to sua sponte enforcement by the Court. 'Enforcement' of the laws of the United States is the province of the Executive Branch. It is no more a proper function of this Court to thwart the Department of Justice when it decides to terminate an antitrust litigation than it is to order this department of the Executive Branch to commence an antitrust case which some members of this Court may feel should be brought.4
30
Although the Court's decision to police its own mandates sua sponte thus offends fundamental conceptions of the judicial process, I do not mean to suggest tht this Court lacks the constitutional power to act in the way it has done. Cf. Continental Insurance Co. v. United States, 259 U.S. 156, 165—166, 42 S.Ct. 540, 543, 66 L.Ed. 871 (1922). The Court does have a legitimate interest in maintaining the integrity of its mandates within the entire judicial system and it may be argued that the lower courts will not conscientiously effectuate our decisions unless all know that the Court will act when it learns of abuses. Yet, although this argument may be enough to establish the constitutionality of a practice in which this Court sits as an investigatory body with a roving commission to travel the length and breath of this land policing its mandates, Rule 60 indicates that such an extraordinary departure from traditional judicial norms has never been thought necessary to insure the integrity of our mandates. Even during periods of history in which there was a greater risk that lower courts would seek to frustrate our decisions, it has been considered sufficient to rely upon the parties to bring violations of a mandate to our attention either by prosecuting a second appeal or by petitioning for a writ of mandamus.5
31
I see no reason why we should turn our back on such basic traditions at this late date. Moreover, if we are to take such drastic action, surely we should not do so in an ad hoc manner, under the pressures of the closing days of the Term. Rather, if we are to change Rule 60, we should do so in an appropriate rule-making proceeding, in which the arguments on both sides of the question may be canvassed with the dispassionate neutrality that is appropriate.
32
For all of these reasons, I would grant Utah's motion to dismiss its appeal and put an end to this 12-year-old lawsuit.6
II.
33
It is with great hesitation that I turn to consider the Court's decision finding Judge Chilson's decree in violation of Cascade's mandate. The case before us is one of enormous complexity. In addition to the plaintiff and defendant, 22 intervenors and nine applicants for the acquisition of the New Company participated in the proceedings below. Judge Chilson heard testimony for more than three months; the record in this case covers more than 14,000 pages, not to mention voluminous exhibits. And yet, we have not received any briefs which even attempt a complete discussion either of the merits of this case or of the question whether our mandate has been followed in a satisfactory way. The Jurisdictional Statement submitted by the State of Utah properly does not suggest that this case is suitable for summary disposition and simply attempts to persuade the Court that the questions presented are substantial. The documents filed in support of Judge Chilson's decision are no more satisfactory. While many of the parties who participated below have tendered motions in support of Utah's request to dismiss its appeal, these papers principally discuss the reasons why each party was satisfied with the result reached below and do not attempt a full-scale analysis of the merits of this extended and complicated controversy. Only the Memorandum submitted by the Solicitor General deals with the substance of the case in any significant way, since it contains the Government's Motion to Affirm which had been prepareda § an answer to Utah's Jurisdictional Statement. Yet the Government's 18-page document does not pretend to deal thoroughly with this case's factual intricacies.
34
Despite the inadequate briefing, however, enough emerges from the record to suggest that, far from disobeying Cascade's mandate, Judge Chlson made a decision which may well be the only one which realistically promises to fulfill the purposes of the Clayton Act.
35
The District Court found that 'time is of the essence' if the New Company is to compete successfully in the California market. 291 F.Supp. 3, 28. Judge Chilson's analysis of the competitive situation existing today powerfully supports his conclusion that the chances of successful entry are becoming more remote with every passing year. The District Court noted that when this lawsuit began in 1957, El Paso was the only out-of-state supplier in the California market; in contrast, two additional strong companies have entered the State in the past decade. Moreover:
36
'Although the expanding California market appears to offer opportunities for New Company to enter the market, the recommendation of the Federal Power Commission staff that a 42-inch pipeline should be constructed to California is a matter of grave concern, for according to the evidence before the Court, a 42-inch line would serve all increments to the southern California market for the foreseeable future. The Supreme Court recognized that competition in the California market is limited to future increments, which have not yet been certified for service. Once an increment has been certified, it is withdrawn from competition. The recommendations of the Commission's staff for the construction of a 42-inch line have been commended by the FPC examiner in a current proceeding as 'bold and constructive.' * * *
37
'The Government * * * (in) its Brief * * * states: 'It is too early to predict the ultimate direction or final outcome of this current FPC proceeding. The opportunity it presents to the new company which is to emerge from this law suit is evident. If a full scale 42-inch proceeding gets underway * * * the new company should be equipped to enter as a contender with at least the minimum qualifications for serious consideration." 291 F.Supp., at 27—28.
38
The District Court found that the Colorado Interstate Gas Company (CIG) was the only potential purchaser which had a real opportunity to convince the FPC that it should operate the new Texas pipeline that holds the key to successful competition in California. Surely this finding has a substantial basis in fact, since no other prospective purchaser of the New Company has ever operated a pipeline and only one has ever had any connection at all with the oil and gas industry. Nevertheless, the Court today substantially decreases the chances of successful competition by the New Company by requiring years more litigation before the day will come when operations finally commence. During this lengthy period, existing gas companies will become even more solidly entrenched in the market and the Texas pipeline proceeding may well have progressed to the point where the New Company could not obtain serious consideration from the FPC.
39
Despite the fact that the Clayton Act may well be the loser, the majority prolongs this lawsuit for two reasons. First, it is said that the District Court violated Cascade's requirement that '(t)he gas reserves granted the New Company must be no less in relation to present existing reserves than Pacific Northwest had when it was independent; and the new gas reserves developed since the merger must be equitably divided between El Paso and the New Company.' 386 U.S., at 136—137, 87 S.Ct. at 937. But the Court's own discussion of this question unmistakeably demonstrates that Judge Chilson fully complied with this branch of Cascade's mandate. The Court cannot and does not deny that Judge Chilson granted reserves to the New Company which are "no less in relation to present existing reserves' than Northwest had when it was independent.' See ante, at 469. The only question that remains is whether the District Court decreed an 'equitable' division of gas resources discovered since the merger. The answer to this question also seems quite easy, since the Court does not deny that Judge Chilson granted New Company about 50% of these reserves, which is much more than its proportionate share of the assets.
40
Although this equal division seems more than equitable to the New Company, the majority fastens on the fact that even with this distribution of resources, the New Company will not be assured of sufficient gas both to meet the anticipated demand of New Company's present customers in the Pacific Northwest and to satisfy the requirements of its potential customers in the California market. This indeed would be a source of concern if it were found that New Company could not practically obtain additional gas resources if it decides to compete in California. But Judge Chilson concluded that just the opposite situation obtains; the District Court found that the New Company 'can obtain the reserves necessary to compete in the California market.' 291 F.Supp., at 20. The Court, however, ignores this finding completely and does not even attempt to show how, given this fact, New Company's equal share of reserves can in any sense be called 'inequitable.' Indeed, it is perfectly clear that the Court, under the guise of enforcing its mandate, is really creating a new, and more stringent, standard by which to test this divestiture. But surely this is completely illegitimate in a case where no party has challenged the legality of the District Court's decision, and where, at the most, the issue is the lower court's compliance with our previous mandate.
41
The Court's second ground for claiming disobedience with Cascade's command is equally untenable. It is said that Cascade ordered 'complete divestiture' without delay and we are told that no divestiture can be complete unless there is a cash sale. Since the trial court did not order a cash sale, the majority finds that Cascade's mandate has not been obeyed.
42
There are several things wrong with this line of argument. First, Cascade expressly states that a cash sale is not required under the standards it sets down:
43
'Disposition of all of the stock with all convenient speed is necessary and conditions must be imposed to make sure that El Paso interests do not acquire a controlling interest.' 386 U.S., at 141, 87 S.Ct. at 940. (Emphasis supplied.)
44
Since Cascade did not require a cash sale it is difficult to see how the present divestiture plan, in which all the common stock of the New Company is transferred to CIG is a per se violation of this Court's earlier mandate. Once again, the Court has created a new standard for judging the validity of the District Court's decision instead of limiting itself to a consideration of whether the decree fulfilled Cascade's demand 'that El Paso interests do not acquire a controlling interest' in the New Company.
45
I pass, then, to consider whether the divestiture plan before us violates our mandate in permitting El Paso domination of its competitor. While this standard is a rather vague one, Mr. Justice Douglas, speaking for the Court in Cascade, gave it specific content by explaining why the proposed terms of divestiture then under review were unsatisfactory. This explanation is of the highest importance in determining whether Judge Chilson's decree contravened Cascade's command and it must be considered with care. Mr. Justice Douglas began his analysis by noting that the decree had taken some steps to insulate the New Company from El Paso control since it did bar El Paso officers, directors, and owners of more than one-half of one percent of El Paso stock from buying into New Company at the public offering. The Court, however, found this limitation insufficient because:
46
'the decree does not prohibit members of the families of such prohibited purchasers from obtaining New Company stock. Further, under the terms of the decree, it would be ps sible for a group of El Paso stockholders, each with less than one-half of one percent of El Paso stock, to acquire at the initial public offering enough New Company stock substantially to influence or even to dominate the New Company. Or, such a group could combine with the families of prohibited purchasers in order to control the New Company. After the exchange or public offering, there is no restriction on the number of New Company shares El Paso shareholders may acquire. Thus, there is a danger that major El Paso stockholders may, subsequent to the exchange or public offering, purchase large blocks of New Company stock and obtain effective control.' 386 U.S., at 140—141, 87 S.Ct. at 939.
47
Judge Chilson's decree took steps to remedy each and every defect Mr. Justice Douglas noted in Cascade. No members of the immediate family of any officer, director, or owner of one-half of one percent of El Paso shares may convert their nonvoting preference shares into voting common shares at any time. Moreover, any person who acts in concert with any director, officer, or substantial owner of El Paso is included within the ban. In addition, these same individuals are not permitted to obtain control of significant proportions of CIG stock, thereby achieving control over the New Company indirectly. Officers, directors, and their associates are barred from owning more than one-tenth of one percent of CIG stock during the next 10 years and substantial owners of El Paso may not own more than 5% of the outstanding common stock of CIG.7
48
It may be that, on appeal, even these stringent conditions may not be found to have fully satisfied the purposes of the Clayton Act. A decision of this question would of course require an analysis of the financial structure of El Paso in order to determine whether it was possible for the Company or its owners to evade the conditions imposed upon them. But it is surely impossible to hold on this record that Judge Chilson's decree is a violation of the mandate issued in Cascade when the present divestiture plan manifests a conscientious effort to comply with all of the suggestions advanced by the Court in that opinion.8 Indeed, the majority today does not even attempt to make such a claim. Instead, it ignores the fact that the District Court carefully framed conditions to assure the New Company's independence. At no point in its brief opinion does the Court analyze this aspect of Judge Chilson's decree, contenting itself with the cryptic comment that 'it is said * * * (that) there will be provisions to restrict El Paso control over the New Company.' Ante, at 468.
III.
49
The Court's conclusion that its mandate has been disobeyed is, in short, based upon completely erroneous factual premises born of a superficial acquaintance with this 14,000-page record. This is not surprising since the majority has seen fit to decide this important case without the benefit of significant oral or written argument. And yet it is upon this tenuous basis that the Court has chosen to shatter centuries of judicial tradition in order to reach a decision which does not even promise to further the interests of California's gas consumers.
50
What eventuates today evinces a course of unjudicial action that transcends even that which marked the last appearance of the case in this Court. See the dissenting opinion of Stewart, J., in Cascade, 386 U.S. 129, 143, 87 S.Ct. 932, 940.
51
I respectfully dissent.
1
Rule 60(1) provides:
'Whenever the parties thereto shall, by their attorneys of record, file with the clerk an agreement in writing that an appeal, petition for or writ of certiorari, or motion for leave to file or petition for (an) extraordinary writ be dismissed, specifying the terms as respects costs, and shall pay to the clerk any fees that may be due him, the clerk shall, without further reference to the court, enter an order of dismissal.'
2
It was said by counsel for eight appellees at oral argument: '(W)e do not question this Court's authority to reexamine its mandate and compliance with it. We do urge, however, that your review be confined to the question whether the mandate has been carried out upon the record before this court.'
1
The Court's opinion incorrectly states that we 'ordered oral argument at which all parties concerned were afforded an opportunity to be heard on the question whether there had been compliance with the mandate.' Ante, at 466. The complete text of the Court's order directing a hearing unequivocally shows that the parties were requested to address themselves only to the motion filed by the State of Utah requesting permission to dismiss its appeal and that the parties were not asked to argue the merits of the appeal:
'The motion of appellant to dismiss the appeal under Rule 60 and the motion of William M. Bennett for a hearing are set for oral argument on April 29, 1969. The Solicitor General is invited to file a brief and present oral argument if he so desires. Mr. Justice Harlan and Mr. Justice Stewart dissent, believing that the action taken by the Court abuses its own processes. See Rule 60. Mr. Justice White, Mr. Justice Fortas, and Mr. Justice Marshall took no part in the consideration or decision of this matter.' 394 U.S. 970, 89 S.Ct. 1453, 22 L.Ed.2d 751 (1969). Pursuant to the Court's order, the parties used their limited time for oral argument in an effort to satisfy the Court that they had acted properly in refusing to take an appeal from the District Court's decision. No party presented any substantial arguments on the merits of this case.
2
See Cascade Natural Gas Corp. v. El Paso Natural Gas Co., supra; United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964); cf. California v. Federal Power Commission, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962).
3
Rule 29 provided:
'Whenever the plaintiff and defendant in a writ of error pending in this court, or the appellant and appellee in any appeal, shall at any time hereafter, in vacation and out of term time, by their respective attorneys, who are entered as such on the record, sign and file with the clerk an agreement in writing, directing the case to be dismissed, and specifying the terms upon which it is to be dismissed as to costs, and also paying to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case dismissed, and to give to either party which may request it a copy of the agreement filed; but no mandate or other process is to issue without an order by the court.'
While this rule by its terms provided for dismissal of cases only during vacation, there is no indication that a different procedure was followed during the Term. Surely there would be little reason to permit automatic dismissal during vacation but forbid it at other times.
Rule 29, with minor amendments, was a part of the Court's rules until July 1, 1954, when it was replaced by the present Rule 60.
4
It is of course perfectly appropriate for a court to make an independent judgment as to the merits of an antitrust consent decree which the parties submit for approval. See, e.g., United States v. Pan American World Airways, Inc., 1959 Trade Cas. 69,300, at 75,138 (D.C.S.D.N.Y.). For in the consent decree context, the parties are requesting affirmative action from the judiciary in order to resolve their dispute, while in the situation we confront, none of the parties are requesting further judicial relief.
5
See In re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994 (1897); cf. In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414 (1895); Ex parte The Union Steamboat Co., 178 U.S. 317, 20 S.Ct. 904, 44 L.Ed. 1084 (1900).
6
The Court does not decide whether the papers opposing Utah's motion to dismiss which were presented by John J. Flynn and I. Daniel Stewart, as amicus curiae, and those tendered by William M. Bennett, as 'consumer spokesman,' may be properly considered at this late stage in the proceedings. Since the Court does not reach this question, I do not believe it appropriate to state my views on the matter; nor have I believed it proper to consider in any way the arguments made by Messrs. Flynn, Stewart, and Bennett.
7
These conditions were approved by the District Court on November 7, 1968, in an order approving the Implementing Documents filed by the appropriate parties pursuant to Judge Chilson's decision naming CIG as the successful applicant. The Implementing Documents are a part of the record in this case.
In addition to the restrictions mentioned in the text, the District Court also forbade El Paso's officers and directors as well as their associates, from owning more than one-tenth of one percent of New Company stock for the next 10 years; moreover, El Paso and its affiliates are forbidden to acquire any New Company or CIG stock at any time in the future. Steps have also been taken to assure that El Paso will have no officers or directors in common with New Company or CIG.
8
The Court relies heavily on United States v. E.I. du Pont De Nemours & Co., 366 U.S. 316, 81 S.Ct. 1243, 6 L.Ed.2d 318 (1961), to support its claim that Cascade's mandate has been breached. But du Pont only holds that the District Court must assure itself that 'the inter-corporate community of interest which we found to violate the law' must be dissolved by divestiture. 366 U.S., at 331, 81 S.Ct. at 1253. Nothing in du Pont suggests, let alone holds, that a cash sale is the only way to accomplish this objective. Like Cascade, du Pont established no per se rule in this area.
| 89
|
395 U.S. 683
89 S.Ct. 1876
23 L.Ed.2d 631
Captain Dale E. NOYD, Petitioner,v.Major General Charles R. BOND, Jr., et al.
No. 830.
Argued April 24, 1969.
Decided June 16, 1969.
Marvin M. Karpatkin, New York City, for petitioner.
James van R. Springer, Washington, D.C., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioner is a career officer in the Air Force who has come to believe that this country's participation in the Vietnamese conflict is unjust and immoral. Having decided that he would do nothing to further the Nation's military effort in Southeast Asia, Captain Noyd refused to obey an order, issued December 5, 1967, requiring him to teach one of the junior officers at the Cannon Air Force Base, New Mexico, to fly a military airplane.1
2
In response, Major General Charles Bond, Jr., the Commander of the Twelfth Air Force, convened a general court-martial at the Cannon Base. On March 8, 1968, the court-martial found Noyd guilty of wilfully disobeying a lawful order; on the following day petitioner was sentenced to one year's confinement at hard labor, forfeiture of all pay and allowances, and dismissal from the Air Force. As soon as the court-martial announced its sentence, Captain Noyd was ordered confined to his quarters. The court-martial's judgment was then forwarded to General Bond for the review required by 10 U.S.C. § 864, and on May 10, 1968, the General approved the sentence, ordering that: 'Pending completion of appellate review, the accused will be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas.' At this point, petitioner's attorneys undertook two courses of action. On the one hand, they appealed the merits of petitioner's conviction to the Air Force Board of Review, which is the appellate military tribunal Congress has established to oversee the administration of criminal justice in petitioner's branch of the Armed Forces. On the other hand, they sought habeas corpus relief from the civilian courts, arguing that the Uniform Code of Military Justice required that petitioner be released from confinement pending the outcome of his military appeal.
3
At the present time, petitioner's appeal from his conviction is still pending in the higher reaches of the military court system. While the Air Force Board of Review has now affirmed the judgment of the court-martial, the Court of Military Appeals, the highest military tribunal, has agreed to review Captain Noyd's case. Petitioner does not suggest that we may properly interfere with the orderly process of military review by considering the merits of his conviction at this juncture. Rather, we are now only asked to vindicate his asserted right to remain free from confinement while the validity of his conviction is still being litigated in the appellate military courts.
I.
4
Captain Noyd's effort to invoke the assistance of the civilian courts was precipitated by General Bond's order transferring petitioner to the disciplinary barracks at Fort Leavenworth. Shortly after the order was issued, and before it was carried out, petitioner sought a writ of habeas corpus from the United States District Court for the District of New Mexico, arguing that both his confinement at the Cannon Air Force Base and his proposed transfer to Fort Leavenworth were in violation of two provisions of the Uniform Code of Military Justice. First, petitioner contended that his confinement constituted an attempt to 'execute' his sentence in violation of Article 71(c) of the Code, which provides:
5
'No sentence which includes, unsuspended, a dishonorable or bad-conduct discharge, or confinement for one year or more, may be executed until affirmed by a board of review and, in cases reviewed by it, the Court of Military Appeals.' 10 U.S.C. § 871(c). (Emphasis supplied.)
6
Second, petitioner argued that Article 13 of the Code2 only authorized confinement of a convicted serviceman pending his appeal after the military has found that restraint is necessary to prevent the serviceman's flight from the jurisdiction. Since no such finding has been made in this case, petitioner argued that the civilian court should require his complete releas.
7
The Government, in addition to opposing Captain Noyd's claims on the merits, argued that petitioner should be required to exhaust his military remedies before seeking habeas corpus relief from the civilian courts. The District Court, however, refused to apply the exhaustion principle in the present case, finding that the military court system did not provide petitioner with an adequate remedy by which he could test the validity of his confinement, pending appeal, in an expedited manner. Turning to the merits, the District Judge granted petitioner part of the relief he requested. While the court refused to review the legality of Noyd's confinement at the Cannon Air Force Base, the court did find that petitioner's incarceration at Fort Leavenworth would constitute an 'execution' of his sentence in violation of Article 71(c), and so declared General Bond's order invalid.3
8
Both sides appealed to the Court of Appeals for the Tenth Circuit, which reversed the District Court's grant of partial relief. Relying on this Court's decision in Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950), a unanimous panel held that the District Court could not properly grant petitioner any form of relief until he had first challenged the validity of his confinement before the appellate tribunals within the military system. The court emphasized that 'the Court of Military Appeals has recently held that it possesses the power to issue a habeas corpus writ' if a serviceman could demonstrate that he was illegally restrained pending appeal, and it could perceive no justification for petitioner's failure to seek the military court's assistance. 402 F.2d 441, 442—443. We granted certiorari to consider the propriety of the application of the rule of Gusik v. Schilder in the circumstances of this case. 393 U.S. 1048, 89 S.Ct. 692, 21 L.Ed.2d 690 (1969).
II.
9
Shortly after the Court of Appeals announced its decision, petitioner recognized that since his sentence was scheduled to expire on December 26, 1968,4 he might well be released from custody before this Court would have an opportunity to pass upon his claims for relief pending his appeal to the military courts. In order to avoid the possibility of mootness, petitioner promptly requested the Court of Appeals to stay its mandate and order his release pending this Court's decision on his petition for certiorari. On December 6, the Court of Appeals agreed to stay its mandate, thereby keeping the District Court's order in effect, but refused to require the military to release Captain Noyd from custody at the Cannon Air Force Base.
10
Petitioner then applied to Mr. Justice White, Circuit Justice for the Tet h Circuit, for temporary release from all confinement pending this Court's action on his certiorari petition. When the Circuit Justice denied this application on December 18, 1968, a second motion of the same tenor was made to Mr. Justice Douglas on the following day. Noting that the Court was then in recess and would not meet again until January 10, 1969, Mr. Justice Douglas ordered that 'petitioner * * * be placed in a non-incarcerated status' until the full Court could have an opportunity to pass on the issues raised in a considered manner. 89 S.Ct. 478, 21 L.Ed.2d 554. Pursuant to Mr. Justice Douglas' order, petitioner was released from confinement on Christmas Eve, two days before his sentence was scheduled to expire.5
11
Despite Mr. Justice Douglas' order of release, the Government now suggests that this case has become moot. It claims that under the applicable military law, a judicial order that petitioner be placed in a 'non-incarcerated status' was insufficient to toll petitioner's sentence, which continued to run until it expired of its own force on December 26. The Government bases this claim upon its reading of Article 57(b) of the Uniform Code of Military Justice:
12
'Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended shall be excluded in computing the service of the term of confinement.' 10 U.S.C. § 857(b).
13
Citing interpretive military regulations, the Government understands the statute to establish the general rule that '(t)he date the sentence of a court-martial is adjudged will mark the beginning of a sentence to confinement whether or not the accused had then been placed in confinement.' Apprehension and Confinement: Military Sentences to Confinement, AR 633—30; AFR 125 30. (Emphasis supplied.)
14
Petitioner does not disagree with the Government's understanding of the general rule, but relies on that part of the statute which expressly provides that a sentence may be tolled if it is 'suspended' and the serviceman is placed on probation. Petitioner argues that since Mr. Justice Douglas' order, and this Court's confirmance of it, had the obvious purpose to preserve the status quo pending the full Court's consideration of the merits of his certiorari petition, the order should be understood to have 'suspended' petitioner's sentence within the meaning of the statutory exception to the general rule. In response, the Government emphasizes that Mr. Justice Douglas' order did not expressly 'suspend' petitioner's sentence and so contends that the statutory exception is not applicable in this instance.
15
We find it unnecessary to decide this question. For even if Mr. Justice Douglas' order did not satisfy the statutory exception, we hold that it was sufficient to interrupt the running of petitioner's sentence. Like the Court of Military Appeals, we do not believe that Congress intended that the general rule stated in Article 57(b) be inexorably applied in all situations which do not fall within the 'suspension of sentence' exception:
16
'Congress did not mention all contingencies which would prevent an accused from being credited with time served. Common sense suggests that if an accused escaped from confinement, his period of service would be interrupted and he would be required to make up the time at the end of the period.' United States v. Bryant, 12 U.S.C.M.A. 133, 137, 30 C.M.R. 133, 137 (1961).
17
We think it equally clear that Article 57(b) was not intended to give a litigious serviceman a bonus when he obtains temporary release from confinement the military was seeking to impose. Rather, the statute sere § to protect a convicted serviceman whom the military wishes to release from confinement before his term has run. If a serviceman's commanding officer simply releases him from confinement without 'suspending' his sentence, the Code does not demand that the serviceman be given a hearing before he is reincarcerated. In contrast, the Code demands that once a sentence is 'suspended,' it may not be reinstated unless the accused is given a hearing, at which he is represented by counsel in order to determine whether he has violated the conditions of his probation. 10 U.S.C. § 872(a). Article 57(b), then, represents Congress' decision that even though a man is temporarily set at liberty, he should be given sentence credit unless he is sure that his freedom will not be curtailed at a later date without a plenary hearing. Obviously, the statute's purpose will not be served in the present case, where Captain Noyd's liberty will only be limited once again after a full argument before the judiciary.
18
In recognition of this fact, the Manual for Courts-Martial has, since its promulgation in 1951, required that a serviceman not be given credit for the time during which he has obtained release from confinement in cases like the present one. The Manual, which has the force of law unless it is 'contrary to or inconsistent with' the Uniform Code Congress has enacted, 10 U.S.C. § 836(a), provides:
19
'A sentence to confinement * * * is continuous until the term expires, with certain exceptions. These exceptions include the following:
20
'Periods during which the person undergoing such a sentence is absent without authority * * * or is erroneously released from confinement through misrepresentation or fraud on the part of the prisoner, or is erroneously released from confinement upon his petition for a writ of habeas corpus under a court order which is later reversed by a competent tribunal * * *.' § 97(c), Manual for Courts-Martial, United States (1951). (Emphasis supplied.)
21
Thus, the Manual requires that a serviceman receive no sentence credit for the period he has avoided confinement if the judicial decision granting him freedom is reversed on appeal. It follows a fortiori that the principles established in the Manual require that Captain Noyd be denied sentence credit as well. For in the present litigation, petitioner has not convinced any court that he may properly be relieved from all confinement. Petitioner obtained his release from Mr. Justice Douglas simply by showing that his chances of success on the merits were sufficiently great to warrant the grant of interlocutory relief. Surely, he is not entitled to more favorable sentencing treatment than the serviceman who has at least convinced one court that his claim to release is legally sound but whose arguments have not been upheld on appeal.
22
We hold that the principles of the Manual for Courts-Martial operated to interrupt the running of Captain Noyd's sentence at the time of his release on December 24, 1968, and hence that the case before us is not moot.
III.
23
We now turn to consider whether petitioner could properly seek his release in civilian courts without making any effort to invoke the assistance of the courts within the military system. Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950), established the general rule that habeas corpus petitions from military prisoners should not be entertained by federal civilian courts until all available remedies within the military court system have been invoked in vain. Mr. Justice Douglas, for a unanimous Court, explained some of the important reasons which require civilian courts to respect the integrity of the military court system that Congress has established:
24
'An analogy is a petition for habeas corpus in the federal court challenging the jurisdiction of a state court. If the state procedure provides a remedy, which though available has not been exhausted, the federal courts will not interfere. * * * The policy underlying tha rule is as pertinent to the collateral attack of military judgments as it is to collateral attack of judgment rendered in state courts. If an available procedure has not been employed to rectify the alleged error which the federal court is asked to correct, any interference by the federal court may be wholly needless. The procedure established to police the errors of the tribunal whose judgment is challenged may be adequate for the occasion. If it is, any friction between the federal court and the military or state tribunal is saved. * * * Such a principle of judicial administration is in no sense a suspension of the writ of habeas corpus. It is merely a deferment of resort to the writ until other corrective procedures are shown to be futile.' Id., at 131—132, 71 S.Ct. 151—152.
25
It is true, of course, that the principles of federalism which enlighten the law of federal habeas corpus for state prisoners are not relevant to the problem before us. Nevertheless other considerations require a substantial degree of civilian deference to military tribunals. In reviewing military decisions, we must accommodate the demands of individual rights and the social order in a context which is far removed from those which we encounter in the ordinary run of civilian litigation, whether state or federal. In doing so, we must interpret a legal tradition which is radically different from that which is common in civil courts.
26
It is for these reasons that Congress, in the exercise of its power to 'make Rules for the Government and Regulation of the land and naval Forces,'6 has never given this Court appellate jurisdiction to supervise the administration of criminal justice in the military. When after the Second World War, Congress became convinced of the need to assure direct civilian review over military justice, it deliberately chose to confide this power to a specialized Court of Military Appeals, so that disinterested civilian judges could gain over time a fully developed understanding of the distinctive problems and legal traditions of the Armed Forces.
27
Almost one year before petitioner sought habeas corpus relief from the Federal District Court sitting in New Mexico, the Court of Military Appeals had held that it would, in appropriate cases, grant the relief petitioner now demands from us. Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399 (1967).7 Petitioner, however, has made no effort to invoke the jurisdiction of the Court of Military Appeals. Nevertheless, he would have civilian courts intervene precipitately into military life without the guidance of the court to which Congress has confided primary responsibility for the supervision of military justice in this country and abroad.
28
Petitioner emphasizes that in the present case we are not called upon to review prematurely the merits of the court-martial proceeding itself. Instead, we are merely asked to determine the legality of petitioner's confinement while he is exercising his right of appeal to the higher military courts. It is said that there is less justification for deference to military tribunals in ancillary matters of this sort. We cannot agree. All of the reasons supporting this Court's decision in Gusik v. Schilder, supra, are applicable here. If the military courts do vindicate petitioner's claim, there will be no need for civilian judicial intervention. Needless friction will result if civilian courts throughout the land are obliged to review comparable decisions of military commanders in the first instance. Moreover, if we were to reach the merits of petitioner's claim for relief pending his military appeal, we would be obliged to interpret extremely technical provisions of the Uniform Code which have no analogs in civilian jurisprudence, and which have not even been fully explored by the Court of Military Appeals itself. There seems little reason to blaze a trail on unfamiliar ground when the highest military court stands ready to consider petitioner's arguments.8
29
Petitioner contends, however, that the Court of Military Appeals cannot be expected to protect his rights in a fully effective way. His principal argument is based on the simple fact that the Court of Military Appeals sits exclusively in Washington, D.C. Thus, before a serviceman may invoke its habeas corpus jurisdiction, he must somehow obtain a lawyer willing and able to conduct a lawsuit in the Nation's Capital. It is said that this practical difficulty makes it clear that the Court of Military Appeals cannot provide petitioner with adequate relief.
30
This argument seems to us far too sweeping to be acceptable. Individuals convicted of crime in the civil judicial system are often obliged to appeal to state courts which are far distant from the place at which they are incarcerated. Nevertheless, this fact alone has never been considered sufficient to permit a federal district court to consider a petition for habeas corpus without demanding that the prisoner exhaust all of the presently available remedies offered by the State's appellate courts. Similarly, the fact that Captain Noyd is confined far from Washington, D.C., is not enough, standing alone, to permit him to circumvent the military court system.
31
Noyd argues, however, that the great distance of the Court of Military Appeals is of special significance in cases like the present one, where speed is essential if relief is to be at all effective. But petitioner concedes that theC ourt of Military Appeals has thus far acted speedily when confronted with an application for an emergency writ,9 and there is no reason to believe that the court would not have responded rapidly if Captain Noyd had sought its assistance.10 Nor has petitioner ever suggested that it was impossible for him to obtain a lawyer who was willing to present an appropriate application before the Court of Military Appeals with the requisite dispatch.
32
Instead, petitioner simply argues that other servicemen in other situations could conceivably have great difficulty in obtaining a lawyer who was able to move quickly before the military court sitting in Washington. Moreover, it is said that the Court of Military Appeals would be inundated with applications for emergency writs if all servicemen in petitioner's position were required to seek relief within the military system. It will be time enough, however, to consider these problems when, and if, they arise. It may be that situations like the present one are unusual, or that the Court of Military Appeals will be able to announce clear rules as to the proper treatment of convicted prisoners pending appeal, or that Congress will act to facilitate the hearing of applications for emergency writs within the military system. Since petitioner has at no time attempted to show that prompt and effective relief was unavailable from the Court of Military Appeals in his case, we hold that petitioner's failure to exhaust this remedy before seeking the assistance of the civilian courts is not excused.11
33
Accordingly, the judgment of the Court of Appeals is affirmed. In light of the substantial questions raised by petitioner, however, we think it plain that petitioner in no sense acted in bad faith when he failed to exhaust his military remedies before invoking the jurisdiction of the District Court. Consequently, we consider it appropriate for us to continue Mr. Justice Douglas' order in effect until our manadate issues, in order to give petitioner an opportunity to present his arguments to the Court of Military Appeals. See 28 U.S.C. § 1651(a); cf. Phillips v. United States, 312 U.S. 246, 254, 61 S.Ct. 480, 484, 85 L.Ed. 800 (Mr. Justice Frankfurter). While it is true that Captain Noyd has only two days yet to serve on his sentence, he should not be required to surrender his freedom for even this short time unless it is found that the law so requires.
34
It is so ordered.
35
Mr. Justice BLACK concurs n the result.
36
Mr. Justice WHITE, dissenting.
37
The petition for certiorari in this case sought a determination that petitioner was being subjected to illegal restraints pending the appeal of his courtmartial conviction to the appropriate tribunals. Since his sentence had begun to run at the time it was imposed, it would have expired on December 26, 1968, unless suspended or otherwise interrupted. Hence when the petition was filed here, the most petitioner had to gain from this litigation, which does not reach the merits of his conviction, was that for the duration of his sentence—two days at the time Mr. Justice Douglas ordered his release from confinement—he was not to be subject to the restraints then being imposed on him. Surely this is a picayune issue which does not warrant decision here in any event, either alone or in conjunction with the exhaustion question. Petitioner should not have brought the custody question to the federal courts in the first place; and by the same token, if to preserve the issue he desired suspension of his sentence or its equivalent, that matter also should have been presented first to the military tribunals rather than to the District Court. I would dismiss the writ as improvidently granted.
1
Before this incident took place, Captain Noyd sought to invoke the jurisdiction of the civilian federal courts in an effort to require the Air Force either to assign him to duties consistent with his beliefs or to dismiss him. The United States District Court for the District of Colorado denied relief because petitioner had not yet been court-martialed for refusing to obey orders and so had not fully exhausted his remedies within the military system. Noyd v. McNamara, 267 F.Supp. 701 (D.C., 1967). The Court of Appeals for the Tenth Circuit affirmed, 378 F.2d 538, and this Court denied certiorari, 389 U.. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967). The Court of Appeals for the Second and Fifth Circuits have, however, subsequently decided that the exhaustion doctrine did not necessarily require a serviceman to await the military's decision to convene a court-martial before seeking relief in the civilian courts. Hammond v. Lenfest, 398 F.2d 705 (C.A.2d Cir. 1968); In re Kelly, 401 F.2d 211 (C.A.5th Cir. 1968). Cf. Brown v. McNamara, 387 F.2d 150 (C.A.3d Cir. 1967). We have not found it necessary to resolve this conflict among the circuits in order to decide the narrow issue in this case.
2
This provision of the Code reads:
'Art. 13. Punishment prohibited before trial.
'Subject to section 857 of this title (Article 57 of the Code), no person, while being held for trial or the result of trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.' 10 U.S.C. § 813.
3
After the District Court held that petitioner could not be lawfully transferred to Fort Leavenworth, the military significantly increased the degree of restraint that was imposed upon Captain Noyd at the Cannon Air Force Base. Petitioner was permitted to see his family only twice each week and was forbidden to leave his quarters except for narrowly limited purposes. See Letter Regarding Arrest in Quarters, from Col. George R. Doerr, Appendix 32—34.
4
While petitioner's one-year sentence began to run on March 9, 1968, when it was announced by the court-martial, the Air Force awarded him sentence credits for good behavior, thereby permitting him to obtain his release from custody after a period of some nine and one-half months.
5
When this Court granted certiorari on January 20, 1969, we also ordered that the '(s)tay heretofore granted by Mr. Justice Douglas shall remain in effect pending issuance of judgment of this Court or until further order of this Court.' 393 U.S. 1048, 89 S.Ct. 692.
6
Constitution of the United States, Art. I, § 8, cl. 14.
7
The Government does not renew the arguments it has on occasion advanced before the Court of Military Appeals, see Brief in Support of Motion to Strike and Dismiss Petition, United States v. Frischholz, Docket No. 14,270 (1965), to the effect that the Court of Military Appeals lacks the power to grant emergency writs. In its decision in the Frischholz case, 16 U.S.C.M.A. 150, 36 C.M.R. 306 (1966), the Court of Military Appeals properly rejected the Government's argument, holding that the All Writs Act, 28 U.S.C. § 1651(a), permitted it to issue all 'writs necessary or appropriate in aid of (its) * * * jurisdictions.' Since the All Writs Act applies by its terms to any 'courts established by Act of Congress,' and since the Revisers of 1948 expressly noted that '(t)he revised section extends the power to issue writs in aid of jurisdiction, to all courts established by Act of Congress, thus making explicit the right to exercise powers implied from the creation of such courts,' we do not believe that there can be any doubt as to the power of the Court of Military Appeals to issue an emergency writ of habeas corpus in cases, like the present one, which may ultimately be reviewed by that court. A different qus tion would, of course, arise in a case which the Court of Military Appeals is not authorized to review under the governing statutes. Cf. United States v. Bevilacqua, 18 U.S.C.M.A. 10, 39 C.M.R. 10 (1968).
8
Petitioner contends that our decisions in United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955); Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); and McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960), justify his position that exhaustion of military remedies is not required in this case. The cited cases held that the Constitution barred the assertion of court-martial jurisdiction over various classes of civilians connected with the military, and it is true that this Court there vindicated complainants' claims without requiring exhaustion of military remedies. We did so, however, because we did not believe that the expertise of military courts extended to the consideration of constitutional claims of the type presented. Moreover, it appeared especially unfair to require exhaustion of military remedies when the complainants raised substantial arguments denying the right of the military to try them at all. Neither of these factors is present in the case before us.
9
In Levy v. Resor, supra, a petition for emergency relief was filed on June 20, 1967. The Court of Military Appeals promptly ordered oral argument and filed a full opinion on July 7, 1967. Both the petitioner and the Government indicate that a subsequent habeas corpus application filed by Captain Levy was ruled on by the Court of Military Appeals within five days after its submission.
10
Consequently, we need not decide how long a serviceman must wait for a decision on his application by the Court of Military Appeals before he may petition for a writ of habeas corpus from the appropriate civilian court.
11
The Government suggests that petitioner should also be required to exhaust a second remedy allegedly afforded him within the military system. It is said that Captain Noyd should have requested the Air Force Board of Review to release him pending the exhaustion of his rights of appeal. The Government, however, cites no decision of a Board of Review which asserts the power to grant emergency interlocutory relief prior to the Board's consideration of a case on the merits; nor are we referred to any statute which unequivocally grants this authority. In the absence of any attempt by the Boards of Review to assert such a power, we do not believe that petitioner may properly be required to exhaust a remedy which may not exist. Cf. Union Pacific R. Co. v. Weld County, 247 U.S. 282, 38 S.Ct. 510, 62 L.Ed. 1110 (1918); Township of Hillsborough v. Cromwell, 326 U.S. 620, 66 S.Ct. 445, 90 L.Ed. 358 (1946).
| 89
|
395 U.S. 701
89 S.Ct. 1897
23 L.Ed.2d 647
Joseph Q. CIPRIANO, Appellant,v.CITY OF HOUMA et al.
No. 705.
Argued April 24, 1969.
Decided June 16, 1969.
Kenneth Watkins, Houma, La., for appellant.
Eugene E. Huppenbauer, Jr., New Orleans, La., for appellees.
PER CURIAM.
1
In this case we must determine whether provisions of Louisiana law which give only 'property taxpayers' the right to vote in elections called to approve the issuance of revenue bonds by a municipal utility are constitutional. This case thus presents an issue similar to the one considered in Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583. With one judge dissenting, a three-judge District Court determined that the Louisiana provisions were constitutional. However, as in Kramer, we find that the challenged provisions violate the Equal Protection Clause of the Fourteenth Amendment; we therefore reverse.
2
The Louisiana Constitution provides that the legislature may authorize municipalities to issue bonds '(f)or the purpose of constructing, acquiring, extending or improving any revenue producing public utility.' La.Const., Art. 14, § 14(m). Pursuant to this provision, the legislature enacted legislation authorizing Louisiana municipalities to issue revenue bonds. La.Rev.Stat. § 33:4251 (1950).1 The legislature further provided, however, that the municipalities could issue the bonds only if they were approved by a 'majority in number and amount of the property taxpayers qualified to vote * * * (who vote at the bond election).'2 La.Rev.Stat. § 39:501 (1950). See also La.Rev.Stat. §§ 33:4258, 39:508 (1950).
3
Appellee City of Houma owns and operates gas, water, and electric utility systems. In September 1967 the city officials scheduled a special election to obtain voter approval for the issuance of $10,000,000 of utility revenue bonds. The city planned to finance extension and improvement of the municipally owned utility systems with the bond proceeds. At the special election a majority 'in number and amount' of the property taxpayers approved the bond issue. However, within the period provided by Louisiana law for contesting the result of the election, La.Rev.Stat. § 33:4260 (1950), this suit was instituted in the United States District Court for the Eastern District of Louisiana.
4
Appellant alleged that he was a duly qualified voter3 of the City of Houma, and that he had been prevented from voting in the revenue bond election solely because he was not a property owner. He sued for himself and for a class of 6,926 nonproperty taxpayers otherwise qualified as City of Houma voters. Appellant sought to enjoin the issuance of the bonds approved at the special election and to obtain a declaratory judgment that the limitation of the franchise to property taxpayers is unconstitutional. A three-judge District Court was convened pursuant to 28 U.S.C. §§ 2281, 2284. The court then dismissed the suit, finding the Louisiana provisions constitutional. Cipriano v. City of Houma, 286 F.Supp. 823 (D.C.E.D.La.1968). Appellant brought a direct appeal to this Court, 28 U.S.C. § 1253; we noted probable jurisdiction. 393 U.S. 1061, 89 S.Ct. 714, 21 L.Ed.2d 704 (1969).
5
As we noted in Kramer, supra, if a challenged state statute grants the right to vote in a limited purpose election to some otherwise qualified voters and denies it to others,4 'the Court must determine whether the exclusions are necessary to promote a compelling state interest.' Kramer v. Union Free School District No. 15, supra, at 627, 89 S.Ct. at 1890. Moreover, no less showing that the exclusions are necessary to promote a compelling state interest is required merely because 'the questions scheduled for the election need not have been submitted to the voters.' Id., at 629, 89 S.Ct. at 1890, n. 11.
6
The appellees maintain that property owners have a 'special pecuniary interest' in the election, because the efficiency of the utility system directly affects 'property and property values' and thus 'the basic security of their investment in (their) property (is) at stake.' Assuming, arguendo,5 that a State might, in some circumstances, constitutionally limit the franchise to qualified voters who are also 'specially interested' in the election, whether the statute allegedly so limiting the franchise denies equal protection of the laws to those otherwise qualified voters who are excluded depends on 'whether all those excluded are in fact substantially less interested or affected than those the statute includes.' Id., at 632, 89 S.Ct. at 1892.
7
At the time of the election, only about 40% of the city's registered voters were property taxpayers. Of course, the operation of the utility systems—gas, water, and electric—affects virtually every resident of the city, nonproperty owners as well as property owners. All users pay utility bills, and the rates may be affected substantially by the amount of revenue bonds outstanding.6 Certainly property owners are not alone in feeling the impact of bad utility service or high rates, or in reaping the benefits of good service and low rates.
8
The revenue bonds are to be paid only from the operations of the utilities; they are not financed in any way by property tax revenue. Property owners, like nonproperty owners, use the utilities and pay the rates; however, the impat of the revenue bond issue on them is unconnected to their status as property taxpayers. Indeed, the benefits and burdens of the bond issue fall indiscriminately on property owner and nonproperty owner alike.
9
Moreover, the profits of the utility systems' operations are paid into the general fund of the city and are used to finance city services that otherwise would be supported by taxes. Of course, property taxpayers may be concerned with expanding and improving the city's utility operations; such improvements could produce revenues which eventually would reduce the burden on the property tax to support city services. On the other hand, nonproperty taxpayers may feel that their interests as rate payers indicate that no further expansion of utility debt obligations should be made. Of course, these differences of opinion cannot justify excluding either group from the bond election, when, as in this case, both are substantially affected by the utility operations. For, as we noted in Carrington v. Rash, 380 U.S. 89, 94, 85 S.Ct. 775, 779, 13 L.Ed.2d 675 (1965), "(f)encing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.'
10
The challenged statute contains a classification which excludes otherwise qualified voters who are as substantially affected and directly interested in the matter voted upon as are those who are permitted to vote. When, as in this case, the State's sole justification for the statute is that the classification provides a 'rational basis' for limiting the franchise to those voters with a 'special interest,' the statute clearly does not meet the 'exacting standard of precision we require of statutes which selectively distribute the franchise.' Kramer v. Union Free School District No. 15, supra, at 632, 89 S.Ct. at 1892. We therefore reverse the judgment of the District Court.
11
Significant hardships would be imposed on cities, bondholders, and others connected with municipal utilities if our decision today were given full retroactive effect. Where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the 'injustice or hardship' by a holding of nonretroactivity. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932). See Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940). Cf. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Therefore, we will apply our decision in this case prospectively. That is, we will apply it only where, under state law, the time for challenging the election result has not expired, or in cases brought within the time specified by state law for challenging the election and which are not yet final. Thus, the decision will not apply where the authorization to issue the securities is legally complete on the date of this decision. Of course, our decision will not affect the validity of securities which have been sold or issued prior to this decision and pursuant to such final authorization.
12
The judgment of the District Court is reversed. The case is remanded for further proceedings consistent with this opinion.
13
It is so ordered.
14
Judgment reversed and case remanded.
15
Mr. Justice BLACK and Mr. Justice STEWART concur in the judgment of the Court. Unlike Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583, this case involves a voting classification 'wholly irrelevant to achievement' of the State's objective. Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093.
16
Mr. Justice HARLAN, while adhering to his views expressed in dissent in Reynolds v. Sims, 377 U.S. 533, 589, 84 S.Ct. 1362, 1396, 12 L.Ed.2d 506 (1964); Harper v. Virginia Board of Elections, 383 U.S. 663, 680, 86 S.Ct. 1079, 1089, 16 L.Ed.2d 169 (1966); and Avery v. Midland Count, 390 U.S. 474, 486, 88 S.Ct. 1114, 1121, 20 L.Ed.2d 45 (1968), but considering himself bound by the Court's decisions in those cases, concurs in the result.
1
The amount of debt a municipality may incur is limited by the Louisiana Constitution. La.Const., Art. 14, § 14(f). These revenue bonds are not included in computing the municipal debt, however, if they are secured exclusively by a mortgage on the assets of the utility system and a pledge of the system revenues. La.Const., Art. 14, § 14(m).
2
We were informed at oral argument that 'number and amount' means the bonds must be approved by a majority of the property taxpayers voting and their votes must also represent a 'majority of the assessed property owned by those taxpayers who are actually voting.'
3
The qualifications are of age, residence, and registration. See La.Rev.Stat. § 39:508 (1950).
4
Appellant does not challenge any other voter qualification regulations. The sole issue in this case is the constitutionality of the provisions of Louisiana law permitting only property taxpayers to vote in utility bond elections.
5
As in Kramer v. Union Free School District No. 15, supra, we find it unnecessary to decide whether a State might, in some circumstances, limit the franchise to those 'primarily interested.'
6
For example, a proposed decrease in utility rates may be forestalled by the issuance of new revenue bonds.
| 12
|
395 U.S. 486
89 S.Ct. 1944
23 L.Ed.2d 491
Adam Clayton POWELL, Jr., et al., Petitioners,v.John W. McCORMACK et al.
No. 138.
Argued April 21, 1969.
Decided June 16, 1969.
[Syllabus from pages 486-488 intentionally omitted]
Arthur Kinoy, New York City, and Herbert O. Reid, Washington, D.C., for petitioners.
Bruce Bromley, New York City, for respondents.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
In November 1966, petitioner Adam Clayton Powell, Jr., was duly elected from the 18th Congressional District of New York to serve in the United States House of Representatives for the 90th Congress. However, pursuant to a House resolution, he was not permitted to take his seat. Powell (and some of the voters of his district) then filed suit in Federal District Court, claiming that the House could exclude him only if it found he failed to meet the standing requirements of age, citizenship, and residence contained in Art. I, § 2, of the Constitution—requirements the House specifically found Powell met—and thus had excluded him unconstitutionally. The District Court dismissed petitioners' complaint 'for want of jurisdiction of the subject matter.' A panel of the Court of Appeals affirmed the dismissal, althougho n somewhat different grounds, each judge filing a separate opinion. We have determined that it was error to dismiss the complaint and that petitioner Powell is entitled to a declaratory judgment that he was unlawfully excluded from the 90th Congress.
I.
FACTS.
2
During the 89th Congress, a Special Subcommittee on Contracts of the Committee on House Administration conducted an investigation into the expenditures of the Committee on Education and Labor, of which petitioner Adam Clayton Powell, Jr., was chairman. The Special Subcommittee issued a report concluding that Powell and certain staff employees had deceived the House authorities as to travel expenses. The report also indicated there was strong evidence that certain illegal salary payments had been made to Powell's wife at his direction. See H.R. Rep. No. 2349, 89th Cong., 2d Sess., 6—7 (1966). No formal action was taken during the 89th Congress. However, prior to the organization of the 90th Congress, the Democratic members-elect met in caucus and voted to remove Powell as chairman of the Committee on Education and Labor. See H.R. Rep. No. 27 90th Cong., 1st Sess., 1—2 (1967).
3
When the 90th Congress met to organize in January 1967, Powell was asked to step aside while the oath was administered to the other members-elect. Following the administration of the oath to the remaining members, the House discussed the procedure to be followed in determining whether Powell was eligible to take his seat. After some debate, by a vote of 363 to 65 the House adopted House Resolution No. 1, which provided that the Speaker appoint a Select Committee to determine Powell's eligibility. 113 Cong. Rec. 26—27. Although the resolution prohibited Powell from taking his seat until the House acted on the Select Committee's report, it did provide that he should receive all the pay and allowances due a member during the period.
4
The Select Committee, composed of nine lawyer-members, issued an invitation to Powell to testify before the Committee. The invitation letter stated that the scope of the testimony and investigation would include Powell's qualifications as to age, citizenship, and residency; his involvement in a civil suit (in which he had been held in contempt); and '(m)atters of * * * alleged official misconduct since January 3, 1961.' See Hearings on H.R. Res. No. 1 before Select Committee Pursuant to H.R. Res. No. 1, 90th Cong., 1st Sess., 5 (1967) (hereinafter Hearings). Powell appeared at the Committee hearing held on February 8, 1967. After the Committee denied in part Powell's request that certain adversary-type procedures be followed,1 Powell testified. He would, however, give information relating only to his age, citizenship, and residency; upon the advice of counsel, he refused to answer other questions.
5
On February 10, 1967, the Select Committee issued another invitation to Powell. In the letter, the Select Committee informed Powell that its responsibility under the House Resolution extended to determining not only whether he met the standing qualifications of Art. I, § 2, but also to 'inquir(ing) into the question of whethr you should be punished or expelled pursuant to the powers granted * * * the House under Article I, Section 5, * * * of the Constitution. In other words, the Select Committee is of the opinion that at the conclusion of the present inquiry, it has authority to report back to the House recommendations with respect to * * * seating, expulsion or other punishment.' See Hearings 110. Powell did not appear at the next hearing, held February 14, 1967. However, his attorneys were present, and they informed the Committee that Powell would not testify about matters other than his eligibility under the standing qualifications of Art. I, § 2. Powell's attorneys reasserted Powell's contention that the standing qualifications were the exclusive requirements for membership, and they further urged that punishment or expulsion was not possible until a member had been seated. See Hearings 111—113.
6
The Committee held one further hearing at which neither Powell nor his attorneys were present. Then, on February 23, 1967, the Committee issued its report, finding that Powell met the standing qualifications of Art. I, § 2. H.R.Rep. No. 27, 90th Cong., 1st Sess., 31 (1967). However, the Committee further reported that Powell had asserted an unwarranted privilege and immunity from the processes of the courts of New York; that he had wrongfully diverted House funds for the use of others and himself; and that he had made false reports on expenditures of foreign currency to the Committee on House Administration. Id., at 31—32. The Committee recommended that Powell be sworn and seated as a member of the 90th Congress but that he be censured by the House, fined $40,000 and be deprived of his seniority. Id., at 33.
7
The report was presented to the House on March 1, 1967, and the House debated the Select Committee's proposed resolution. At the conclusion of the debate, by a vote of 222 of 202 the House rejected a motion to bring the resolution to a vote. An amendment to the resolution was then offered; it called for the exclusion of Powell and a declaration that his seat was vacant. The Speaker ruled that a majority vote of the House would be sufficient to pass the resolution if it were so amended 113 Cong.Rec. 5020. After further debate, the amendment was adopted by a vote of 248 to 176. Then the House adopted by a vote of 307 to 116 House Resolution No. 278 in its amended form, thereby excluding Powell and directing that the Speaker notify the Governor of New York that the seat was vacant.
8
Powell and 13 voters of the 18th Congressional District of New York subsequently instituted this suit in the United States District Court for the District of Columbia. Five members of the House of Representatives were named as defendants individually and 'as representatives of a class of citizens who are presently serving * * * as members of the House of Representatives.' John W. McCormack was named in his official capacity as Speaker, and the Clerk of the House of Representatives, the Sergeant at Arms and the Doorkeeper were named individually and in their official capacities. The complaint alleged that House Resolution No. 278 violated the Constitution, specifically Art. I, § 2, cl. 1, because the resolution was inconsistent with the mandate that the members of the House shall be elected by the people of each State, and Art. I, § 2, cl. 2, which, petitioners alleged, sets forth the exclusive qualifications for membership.2 The complaint further alleged that the Clerk of the House threatened to refuse to perform the service for Powell to which a duly elected Congressman is entitled, that the Sergeant at Arms refused to pay Powell his salary, and that the Doorkeeper threatened to deny Powell admission to the House chamber.
9
Petitioners asked that the three-judge court be convened.3 Further, they requested that the District Court grant a permanent injunction restraining respondents from executing the House Resolution, and enjoining the Speaker from refusing to administer the oath, the Clerk from refusing to perform the duties due a Representative, the Sergeant at Arms from refusing to pay Powell his salary, and the Doorkeeper from refusing to admit Powell to the Chamber.4 The complaint also requested a declaratory judgment that Powell's exclusion was unconstitutional.
10
The District Court granted respondents' motion to dismiss the complaint 'for want of jurisdiction of the subject matter.' Powell v. McCormack, 266 F. Supp. 354 (D.C.D.C.1967).5 The Court of Appeals for the District of Columbia Circuit affirmed on somewhat different grounds, with each judge of the panel filing a separate opinion. Powell v. McCormack, 129 U.S.App.D.C. 354, 395 F.2d 577 (1968). We granted certiorari. 393 U.S. 949, 89 S.Ct. 371, 21 L.Ed.2d 361 (1968). While the case was pending on our docket, the 90th Congress officially terminated and the 91st Congress was seated. In November 1968, Powell was again elected as the representative of the 18th Congressional District of New York, and he was seated by the 91st Congress. The resolution seating Powell also fined him $25,000. See H.R.Res. No. 2, 91st Cong., 1st Sess., 15 Cong.Rec. H21 (daily ed., January 3, 1969). Respondents then filed a suggestion of mootness. We postponed further consideration of this suggestion to a hearing on the merits. 393 U.S. 1060, 89 S.Ct. 713, 21 L.Ed.2d 704 (1969).
11
Respondents press upon us a variety of arguments to support the court below; they will be considered in the following order. (1) Events occurring subsequent to the grant of certiorari have rendered this litigation moot. (2) The Speech or Debate Clause of the Constitution, Art. I, § 6, insulates respondents' action from judicial review. (3) The decision to exclude petitioner Powell is supported by the power granted to the House of Representatives to expel a member. (4) This Court lacks subject matter jurisdiction over petitioners' action. (5) Even if subject matter jurisdiction is present, this litigation is not justiciable eitehr under the general criteria established by this Court or because a political question is involved.
II.
12
MOOTNESS.
13
After certiorari was granted, respondents filed a memorandum suggesting that two events which occurred subsequent to our grant of certiorari require that the case be dismissed as moot. On January 3, 1969 the House of Representatives of the 90th Congress officially terminated, and petitioner Powell was seated as a member of the 91st Congress. 115 Cong.Rec. H22 (daily ed., January 3, 1969). Respondents insist that the gravamen of petitioners' complaint was the failure of the 90th Congress to seat Petitioner Powell and that, since the House of Representatives is not a continuing body6 and Powell has now been seated, his claims are moot. Petitioners counter that three issues remain unresolved and thus this litigation presents a 'case o controversy' within the meaning of Art. III:7 (1) whether Powell was unconstitutionally deprived of his seniority by his exclusion from the 90th Congress; (2) whether the resolution of the 91st Congress imposing as 'punishment' a $25,000 fine is a continuation of respondents' allegedly unconstitutional exclusion, see H.R.Res. No. 2, 91st Cong., 1st Sess., 115 Cong.Rec. H21 (daily ed., January 3, 1969); and (3) whether Powell is entitled to salary withheld after his exclusion from the 90th Congress. We conclude that Powell's claim for back salary remains viable even though he has been seated in the 91st Congress and thus find it unnecessary to determine whether the other issues have become moot.8
14
Simply stated, a case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome. See E. Borchard, Declaratory Judgments 35—37 (2d ed. 1941). Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy. See United Public Workers of America v. Mitchell, 330 U.S. 75, 86—94, 67 S.Ct. 556, 562, 566, 91 L.Ed. 754 (1947); 6A J. Moore, Federal Practice 57.13 (2d ed. 1966). Despite Powell's obvious and continuing interest in his withheld salary, respondents insist that Alejandrino v. Quezon, 271 U.S. 528, 46 S.Ct. 600, 70 L.Ed. 1071 (1926), leaves us no choice but to dismiss this litigation as moot. Alejandrino, a duly appointed Senator of the Philippine Islands, was suspended for one year by a resolution of the Philippine Senate and deprived of all 'prerogatives, privileges and emoluments' for the period of his suspension. The Supreme Court of the Philippines refused to enjoin the suspension. By the time the case reached this Court, the suspension had expired and the Court dismissed as moot Alejandrino's request that the suspension be enjoined. Then, sua sponte,9 the Court considered whether the possibility that Alejandrino was entitled to back salary required it 'to retain the case for the purpose of determining whether he (Alejandrino) may not have a mandamus for this purpose.' Id., at 533, 46 S.Ct. 601. Characerizing the issue of Alejandrino's salary as a 'mere incident' to his claim that the suspension was improper, the Court noted that he had not briefed the salary issue and that his request for mandamus did not set out with sufficient clarity the official or set of officials against whom the mandamus should issue. Id., at 533—54 , 46 S.Ct. at 601 602. The Court therefore refused to treat the salary claim and dismissed the entire action as moot.
15
Respondents believe that Powell's salary claim is also a 'mere incident' to his insistence that he was unconstitutionally excluded so that we should likewise dismiss this entire action as moot. This argument fails to grasp that the reason for the dismissal in Alejandrino was not that Alejandrino's deprivation of salary was insufficiently substantial to prevent the case from becoming moot, but rather that his failure to plead sufficient facts to establish his mandamus claim made it impossible for any court to resolve the mandamus request.10 By contrast, petitioners' complaint names the official responsible for the payment of congressional salaries and asks for both mandamus and an injunction against that official.11
16
Furthermore, even if respondents are correct that petitioners' averments as to injunctive relief are not sufficiently definite, it does not follow that this litigation must be dismissed as moot. Petitioner Powell has not been paid his salary by virtue of an allegedly unconstitional House resolution. That claim is still unresolved and hotly contested by clearly adverse parties. Declaratory relief has been requested, a form of relief not available when Alejandrino was decided.12 A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. See United Public Workers of America v. Mitchell, supra, at 93, 67 S.Ct. 556, 566; cf. United States v. California, 332 U.S. 19, 25—26, 67 S.Ct. 1658, 1661—1662, 91 L.Ed. 1889 (1947). A declaratory judgment can then be used as a predicate to further relief, including an injunction. 28 U.S.C. § 2202; see Vermont Structural Slate Co. v. Tatko Brothers Slate Co., 253 F.2d 29 (C.A.2d Cir. 1958); United States Lines Co. v. Shaughnessy, 195 F.2d 385 (C.A.2d Cir. 1952). Alejandrino stands only for the proposition that, where one claim has become moot and the pleadings are insufficient to determine whether the plaintiff is entitled to another remedy, the action should be dismissed as moot.13 There is no suggestion that petitioners' averments as to declaratory relief are insufficient and Powell's allegedly unconstitutional deprivation of salary remains unresolved.
17
Respondents furthe argue that Powell's 'wholly incidental and subordinate' demand for salary is insufficient to prevent this litigation from becoming moot. They suggest that the 'primary and principal relief' sought was the seating of petitioner Powell in the 90th Congress rendering his presumably secondary claims not worthy of judicial consideration. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966), rejects respondents' theory that the mootness of a 'primary' claim requires a conclusion that all 'secondary' claims are moot. At the Bond oral argument it was suggested that the expiration of the session of the Georgia Legislature which excluded Bond had rendered the case moot. We replied: 'The State has not pressed this argument, and it could not do so, because the State has stipulated that if Bond succeeds on this appeal he will receive back salary for the term from which he was excluded.' 385 U.S., at 128, 87 S.Ct., at 345, n. 4. Bond is not controlling, argue respondents, because the legislative term from which Bond was excluded did not end until December 31, 1966,14 and our decision was rendered December 5; further, when Bond was decided, Bond had not as yet been seated while in this case Powell has been.15 Respondents do not tell us, however, why these factual distinctions create a legally significant difference between Bond and this case. We relied in Bond on the outstanding salary claim, not the facts respondents stress, to hold that the case was not moot.
18
Finally, respondents seem to argue that Powell's proper action to recover salary is a suit in the Court of Claims, so that, having brought the wrong action, a dismissal for mootness is appropriate. The short answer to this argument is that it confuses mootness with whether Powell has established a right to recover against the Sergeant at Arms, a question which it is inappropriate to treat at this stage of the litigation.16
III.
19
SPEECH OR DEBATE CLAUSE.
20
Respondents assert that the Speech or Debate Clause of the Constitution, Art. I, § 6,17 is an absolute bar to petitioners' action. This Court has on four prior occasions—Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967); United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); and Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881)—been called upon to determine if allegedly unconstitutional action taken by legislators or legislatie employees is insulated from judicial review by the Speech or Debate Clause. Both parties insist that their respective positions find support in these cases and tender for decision three distinct issues: (1) whether respondents in participating in the exclusion of petitioner Powell were 'acting in the sphere of legitimate legislative activity,' Tenney v. Brandhove, supra, at 376, 71 S.Ct. at 788; (2) assuming that respondents were so acting, whether the fact that petitioners seek neither damages from any of the respondents nor a criminal prosecution lifts the bar of the clause;18 and (3) even if this action may not be maintained against a Congressman, whether those respondents who are merely employees of the House may plead the bar of the clause. We find it necessary to treat only the last of these issues.
21
The Speech or Debate Clause, adopted by the Constitutional Convention without debate or opposition,19 finds its roots in the conflict between Parliament and the Crown culminating in the Glorious Revolution of 1688 and the English Bill of Rights of 1689.20 Drawing upon this history, we concluded in United States v. Johnson, supra, at 181, 86 S.Ct. at 755, that the purpose of this clause was 'to prevent intimidation (of legislators) by the executive and accountability before a possibly hostile judiciary.' Although the clause sprang from a fear of seditious libel actions instituted by the Crown to punish unfavorable speeches made in Parliament,21 we have held that it would be a 'narrow view' to confine the protection of the Speech or Debate Clause to words spoken in debate. Committee reports, resolutions, and the act of voting are equally covered, as are 'things generally done in a session of the House by one of its members in relation to the business before it.' Kilbourn v. Thompson, supra, at 204. Furthermore, the clause not only provides a defense on the merits but also protects a legislator from the burden of defending himself. Dombrowski v. Eastland, supra, at 85, 87 S.Ct. at 1427; see Tenney v. Brandhove, supra, at 377, 71 S.Ct. at 788.
22
Our cases make it clear that the legislative immunity created by the Speech or Debate Clause performs an important function in representative government. It insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation. Thus, in Tenney v. Brandhove, supra, at 373, 71 S.Ct. at 786, the Court quoted the writings of James Wilson as illuminating the reason for legislative immunity: 'In order to enable and encourage a rp resentative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.'22
23
Legislative immunity does not, of course, bar all judicial review of legislative acts. That issue was settled by implication as early as 1803, see Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60, and expressly in Kilbourn v. Thompson, the first of this Court's cases interpreting the reach of the Speech or Debate Clause. Challenged in Kilbourn was the constitutionality of a House Resolution ordering the arrest and imprisonment of a recalcitrant witness who had refused to respond to a subpoena issued by a House investigating committee. While holding that the Speech or Debate Clause barred Kilbourn's action for false imprisonment brought against several members of the House, the Court nevertheless reached the merits of Kilbourn's attack and decided that, since the House had no power to punish for contempt, Kilbourn's imprisonment pursuant to the resolution was unconstitutional. It therefore allowed Kilbourn to bring his false imprisonment action against Thompson, the House's Sergeant at Arms, who had executed the warrant for Kilbourn's arrest.
24
The Court first articulated in Kilbourn and followed in Dombrowski v. Eastland,23 the doctrine that, although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts. Despite the fact that petitioners brought this suit against several House employees—the Sergeant at Arms, the Doorkeeper and the Clerk—as well as several Congressmen, respondents argue that Kilbourn and Dombrowski are distinguishable. Conceding that in Kilbourn the presence of the Sergeant at Arms and in Dombrowski the presence of a congressional subcommittee counsel as defendants in the litigation allowed judicial review of the challenged congressional action, respondents urge that both cases concerned an affirmative act performed by the employee outside the House having a direct effect upon a private citizen. Here, they continue, the relief sought relates to actions taken by House agents solely within the House. Alternatively, respondents insist that Kilbourn and Dombrowski prayed for damages while petitioner Powell asks that the Sergeant at Arms disburse funds, an assertedly greater interference with the legislative process. We reject the proffered distinctions.
25
That House employees are acting pursuant to express orders of the House does not bar judicial review of the constitutionality of the underlying legislative decision Kilbourn decisively settles this question, since the Sergeant at Arms was held liable for false imprisonment even though he did nothing more than execute the House Resolution that Kilbourn be arrested and imprisoned.24 Respondents' suggestions thus ask us to distinguish between affirmative acts of House employees and situations in which the House orders its employees not to act or between actions for damages and claims for salary. We can find no basis in either the history of the Speech or Debate Clause or our cases for either distinction. The purpose of the protection afforded legislators is not to forestall judicial review of legislative action but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions A legislator is nom ore or no less hindered or distracted by litigation against a legislative employee calling into question the employee's affirmative action than he would be by a lawsuit questioning the employee's failure to act. Nor is the distraction or hindrance increased because the claim is for salary rather than damages, or because the litigation questions action taken by the employee within rather than without the House. Freedom of legislative activity and the purposes of the Speech or Debate Clause are fully protected if legislators are relieved of the burden of defending themselves.25 In Kilbourn and Dombrowski we thus dismissed the action against members of Congress but did not regard the Speech or Debate Clause as a bar to reviewing the merits of the challenged congressional action since congressional employees were also sued. Similarly, though this action may be dismissed against the Congressmen petitioners are entitled to maintain their action against House employees and to judicial review of the propriety of the decision to exclude petitioner Powell.26 As was said in Kilbourn, in language which time has not dimmed:
26
'Especially is it competent and proper for this court to consider whether its (the legislature's) proceedings are in conformity with the Constitution and laws, because, living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution; and if they have not, to treat their acts as null and void.' 103 U.S., at 199.
IV.
27
EXCLUSION OR EXPULSION.
28
The resolution excluding petitioner Powell was adopted by a vote in excess of two-thirds of the 434 Members of Congress—307 to 116. 113 Cong.Rec. 5037—5038, Article I, § 5, grants the House authority to expel a member 'with the Concurrence of two thirds.'27 Respondents assert that the House may expel a member for any reason whatsoever and that, since a two-thirds vote was obtained, the procedure by which Powell was denied his seat in the 90th Congress should be regarded as an expulsion, not an exclusion. Cautioning us not to exalt form over substance, respondents quote from the concurring opinion of Judge McGowan in the court below:
29
'Appellant Powell's cause of action for a judicially compelled seating thus boils down, in my view, to the narrow issue of whether a member found by his colleagues * * * to have engaged in official misconduct must, because of the accidents of timing, be formally admitted before he can be either investigated or expelled. The sponsor of the motion to exclude stated on the floor that he was proceeding on the theory that the power to expel included the power to exclude, provided a 2/3 vote was forthcoming. It was. Therefore, success for Mr. Powell on the merits would mean that the District Court must admonish the House that it is form, not substance, that should govern in great affairs, and accordingly command the House members to act out a charade.' 129 U.S.App.D.C., at 383—384, 395 F.2d, at 606—607.
30
Although respondents repeatedly urge this Court not to speculate as to the reasons for Powell's exclusion, their attempt to equate exclusion with expulsion would require a similar speculation that the House would have voted to expel Powell had it been faced with that question. Powell had not been seated at the time House Resolution No. 278 was debated and passed. After a motion to bring the Select Committee's proposed resolution to an immediate vote had been defeated, an amendment was offered which mandated Powell's exclusion.28 Mr. Celler, chairman of the Select Committee, then posed a parliamentary inquiry to determine whether a two-thirds vote was necessary to pass the resolution if so amended 'in the sense that it might amount to an expulsion.' 113 Cong.Rec. 5020. The Speaker replied that 'action by a majority vote would be in accordance with the rules.' Ibid. Had the amendment been regarded as an attempt to expel Powell, a two-thirds vote would have been constitutionally required. The Speaker ruled that the House was voting to exclude Powell, and we will not speculate what the result might have been if Powell had been seated and expulsion proceedings subsequently instituted.
31
Nor is the distinction between exclusion and expulsion merely one of form. The misconduct for which Powell was charged occurred prior to the convening of the 90th Congress. On several occasions the House has debated whether a member can be expelled for actions taken during a prior Congress and the House's own manual of procedure applicable in the 90th Congress states that 'both Houses have distrusted their power to punish in such cases.' Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., 25 (1967); see G. Galloway, History of the House of Representatives 32 (1961). The House rules manual reflects positions taken by prior Congresses. For example, the report of the Select Committee appointed to consider the expulsion of John W. Langley states unequivocally that the House will not expel a member for misconduct committed during an earlier Congress:
32
'(I)t must be said that with practical uniformity the precedents in such cases are to the effect that the House will not expel a Member for reprehensible action prior to his election as a Member, not even for conviction for an offense. On May 23, 1884, Speaker Carlisle decided that the House had no right to punish a Member for any offense alleged to have been committed previous to the time when he was elected a Member, and added, 'That has been so frequently decided in the House that it is no longer a matter of dispute." H.R.Rep. No. 30, 69th Cong., 1st Sess., 1—2 (1925).29
33
Members of the House having expressed a belief that such strictures apply to its own power to expel, we will not assume that two-thirds of its members would have expelled Powell for his prior conduct had the Speaker announced that House Resolution No. 278 was for expulsion rather than exclusion.30
34
Finally, the proceedings which culminated in Powell's exclusion cast considerable doubt upon respondents' assumption that the two-thirds vote necessary to expel would have been mustered. These proceedings have been succinctly described by Congressman Eckhardt:
35
'The House voted 202 votes for the previous question31 leading toward the adoption of the (Select) Committee report. It voted 222 votes against the previous question, opening the floor for the Curtis Amendment which ultimately excluded Powell.
36
'Upon adoption of the Curtis Amendment, the vote again fell short of two-thirds, being 248 yeas to 176 nays. Only on the final vote, adopting the Resolution as amended, was more than a two-thirds vote obtained, the vote being 307 yeas to 116 nays. On this last vote, as a practical matter, members who would not have denied Powell a seat if they were given the choice to punish him had to cast an aye vote or else record themselves as opposed to the only punishment that was likely to come before the House. Had the matter come up through the processes of expulsion, it appears that the two-thirds vote woud have failed, and then members would have been able to apply a lesser penalty.'32
37
We need express no opinion as to the accuracy of Congressman Eckhardt's prediction that expulsion proceedings would have produced a different result. However, the House's own views of the extent of its power to expel combined with the Congressman's analysis counsel that exclusion and expulsion are not fungible proceedings. The Speaker ruled that House Resolution No. 278 contemplated an exclusion proceeding. We must reject respondents' suggestion that we overrule the Speaker and hold that, although the House manifested an intent to exclude Powell, its action should be tested by whatever standards may govern an expulsion.
V.
38
SUBJECT MATTER JURISDICTION.
39
As we pointed out in Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 699, 7 L.Ed.2d 663 (1962), there is a significant difference between determining whether a federal court has 'jurisdiction of the subject matter' and determining whether a cause over which a court has subject matter jurisdiction is 'justiciable.' The District Court determined that 'to decide this case on the merits * * * would constitute a clear violation of the doctrine of separation of powers' and then dismissed the complaint 'for want of jurisdiction of the subject matter.' Powell v. McCormack, 266 F.Supp. 354, 359, 360 (D.C.D.C.1967). However, as the Court of Appeals correctly recognized, the doctrine of separation of powers is more properly considered in determining whether the case is 'justiciable.' We agree with the unanimous conclusion of the Court of Appeals that the District Court had jurisdiction over the subject matter of this case.33 However, for reasons set forth in Part VI, infra, we disagree with the Court of Appeals' conclusion that this case is not justiciable.
40
In Baker v. Carr, supra, we noted that a federal district court lacks jurisdiction over the subject matter (1) if the cause does not 'arise under' the Federal Constitution, laws, or treaties (or fall within one of the other enumerated categories of Art. III); or (2) if it is not a 'case or controversy' within the meaning of that phrase in Art. III; or (3) if the cause is not one described by any jurisdictional statute. And, as in Baker v. Carr, supra, our determination (see Part VI, B(1) infra) that this cause presents no non-justiciable 'political question' disposes of respondents' contentions34 that this cause is not a 'case or controversy.'35
41
Respondents first contend that this is not a case 'arising under' the Constitution within the meaning of Art. III. They emphasize that Art. I, § 5, assigns to each House of Congress the power to judge the elections and qualifications of its own members and to punish its members for disorderly behavior. Respondents also note that under Art. I, § 3, the Senate has the 'sole power' to try all impeachments. Respondents argue that these delegations (to 'judge,' to 'punish,' and to 'try') to the Legislative Branch are explicit grants of 'judicial power' to the Congress and constitute specific exceptions to the general mandate of Art. III that the 'judicial power' shall be vested in the federal courts. Thus, respondents maintain, the 'power conferred on the courts by article III does not authorize this Court to do anything more than declare its lack of jurisdiction to proceed.'36
42
We reject this contention. Article III, § 1, provides that the 'judicial Power * * * shall be vested in one supreme Court, and in such inferior Courts as the Congress may * * * establish.' Further, § 2 mandates that the 'judicial Power shall extend to all Cases * * * arising under this Constitution * * *.' It has long been held that a suit 'arises under' the Constitution if a petitioner's claim 'will be sustained if the Constitution * * * (is) given one construction and will be defeated if (it is) given another.'37 Bell v. Hood, 327 U.S. 678, 685, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946). See King County v. Seattle School District No. 1, 263 U.S. 361, 363—364, 44 S.Ct. 127, 127—128, 68 L.Ed. 339 (1923). Cf. Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204 (1824). See generally C. Wright, Federal Courts 48—52 (1963). Thus, this case clearly is one 'arising under' the Constitution as the Court has interpreted that phrase. Any bar to federal courts reviewing the judgments made by the House or Senate in excluding a member arises from the allocation of powers between the two branches of the Federal Government (a question of justiciability), and not from the petitioners' failure to state a claim based on federal law.
43
Respondents next contend that the Court of Appeals erred in ruling that petitioners' suit is authorized by a jurisdictional statute, i.e., 28 U.S.C. § 1331(a) Section 1331(a) provides that district courts shall have jurisdiction in 'all civil actions wherein the matter in controversy * * * arises under the Constitution * * *.' Respondents urge that even though a case may 'arise under the Constitution' for purposes of Art. III, it does not necessarily 'arise under the Constitution' for purposes of § 1331(a). Although they recognize there is little legislative history concerning the enactment of § 1331(a), e spondents argue that the history of the period when the section was first enacted indicates that the drafters did not intend to include suits questioning the exclusion of Congressmen in this grant of 'federal question' jurisdiction.
44
Respondents claim that the passage of the Force Act38 in 1870 lends support to their interpretation of the intended scope of § 1331. The Force Act gives the district courts jurisdiction over 'any civil action to recover possession of any office * * * wherein it appears that the sole question * * * arises out of denial of the right to vote * * * on account of race, color or previous condition of servitude.' However, the Act specifically excludes suits concerning the office of Congressman. Respondents maintain that this exclusion demonstrates Congress' intention to prohibit federal courts from entertaining suits regarding the seating of Congressmen.
45
We have noted that the grant of jurisdiction in § 1331(a), while made in the language used in Art. III, is not in all respects co-extensive with the potential for federal jurisdiction found in Art. III. See Zwickler v. Koota, 389 U.S. 241, 246, 88 S.Ct. 391, 394, 19 L.Ed.2d 444, n. 8 (1967). Nevertheless, it has generally been recognized that the intent of the drafters was to provide a broad jurisdictional grant to the federal courts. See, e.g., Mishkin, The Federal 'Question' in the District Courts, 53 Col.L. Rev. 157, 160 (1953); Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U.Pa.L.Rev. 639, 644—645 (1942). And, as noted above, the resolution of this case depends directly on construction of the Constitution. The Court has consistently held such suits are authorized by the statute. Bell v. Hood, supra; King County v. Seattle School District No. 1, supra. See, e.g., Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913).
46
As respondents recognize, there is nothing in the wording or legislative history of § 1331 or in the decisions of this Court which would indicate that there is any basis for the interpretation they would give that section. Nor do we think the passage of the Force Act indicates that § 1331 does not confer jurisdiction in this case. The Force Act is limited to election challenges where a denial of the right to vote in violation of the Fifteenth Amendment is alleged. See 28 U.S.C. § 1344. Further, the Act was passed five years before the original version of § 1331 was enacted. While it might be inferred that Congress intended to give each House the exclusive power to decide congressional election challenges,39 there is absolutely no indication that the passage of this Act evidences an intention to impose other restrictions on the broad grant of jurisdiction in § 1331.
VI.
47
JUSTICIABILITY.
48
Having concluded that the Court of Appeals correctly ruled that the District Court had jurisdiction over the subject matter, we turn to the question whether the case is justiciable. Two determinations must be made in this regard. First, we must decide whether the claim presented and the relief sought are of the type which admit of judicial resolution. Second, we must determine whether the structure of the Federal Government renders the issue presented a 'political question'—that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution.
49
A. General Considerations.
50
In deciding generally whether a claim is justiciable, a court must determine whether 'the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.' Baker v. Carr, supra, at 198, 82 S.Ct. at 700. Respondents do no seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat Powell once it determined he met the standing requirements set forth in the Constitution. It is undisputed that he met those requirements and that he was nevertheless excluded.
51
Respondents do maintain, however, that this case is not justiciable because, they assert, it is impossible for a federal court to 'mold effective relief for resolving this case.' Respondents emphasize that petitioners asked for coercive relief against the officers of the House, and, they contend, federal courts cannot issue mandamus or injunctions compelling officers or employees of the House to perform specific official acts. Respondents rely primarily on the Speech or Debate Clause to support this contention.
52
We need express no opinion about the appropriateness of coercive relief in this case, for petitioners sought a declaratory judgment, a form of relief the District Court could have issued. The Declaratory Judgment Act, 28 U.S.C. § 2201, provides that a district court may 'declare the rights * * * of any interested party * * * whether or not further relief is or could be sought.' The availability of declaratory relief depends on whether there is a live dispute between the parties, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. See United Public Workers of America v. Mitchell, 330 U.S. 75, 93, 67 S.Ct. 556, 566, 91 L.Ed. 754 (1947); 6A J. Moore, Federal Practice 57.08(3) (2d ed. 1966); cf. United States v. California, 332 U.S. 19, 25—26, 67 S.Ct. 1658, 1661—1662, 91 L.Ed. 1889 (1947). We thus conclude that in terms of the general criteria of justiciability, this case is justiciable.
53
B. Political Question Doctrine.
54
1. Textually Demonstrable Constitutional Commitment.
55
Respondents maintain that even if this case is otherwise justiciable, it presents only a political question. It is well established that the federal courts will not adjudicate political questions. See, e.g., Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939); Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726 (1918). In Baker v. Carr, supra, we noted that political questions are not justiciable primarily because of the separation of powers within the Federal Government. After reviewing our decisions in this area, we concluded that on the surface of any case held to involve a political question was at least one of the following formulations:
56
'a textually demonstrable constitutional commitment of the issue to a co-ordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due co-ordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.' 369 U.S., at 217, 82 S.Ct., at 710.
57
Respondents' first contention is that this case presents a political question because under Art. I, § 5, there has been a 'textually demonstrable constitutional commitment' to the House of the 'adjudicatory power' to determine Powell's qualifications. Thus it is argued that the House, and the House alone, has power to determine who is qualified to be a member.40
58
In order to determine whether there has been a textual commitment to a coordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, § 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review. Respondents maintain that the House has broad power under § 5, and, they argue, the House may determine which are the qualifications necessary for membership. On the other hand, petitioners allege that the Constitution provides that an elected representative may be denied his seat only if the House finds he does not meet one of the standing qualifications expressly prescribed by the Constitution.
59
If examination of § 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution,41 further consideration would be necessary to determine whether any of the other formulations of the political question doctrine are 'inextricable from the case at bar.'42 Baker v. Carr, supra, at 217, 82 S.Ct. at 710.
60
In other words, whether there is a 'textually demonstrable constitutional commitment of the issue to a coordinate political department' of government and what is the scope of such commitment are questions we must resolve for the first time in this case.43 For, as we pointed out in Baker v. Carr, supra, '(d)eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.' Id., at 211, 82 S.Ct. at 706.
61
In order to determine the scope of any 'textual commitment' under Art. I, § 5, we necessarily must determine the meaning of the phrase to 'be the Judge of the Qualifications of its own Members.' Petitioners argue that the records of the debates during the Constitutional Convention; available commentary from the post-Convention, pre-ratification period; and early congressional applications of Art. I, § 5, support their construction of the section. Respondents insist, however, that a careful examination of the pre-Convention practices of the English Parliament and American colonial assemblies demonstrates that by 1787, a legislature's power to judge the qualifications of its members was generally understood to encompass exclusion or expulsion on the ground that an individual's character or past conduct rendered him unfit to serve. When the Constitution and the debates over its adoption are thus viewed in historical perspective, argue respondents, it becomes clear that the 'qualifications' expressly set forth in the Constitution were not meant to limit the long-recognized legislative power to exclude or expel at will, but merely to establish 'standing incapacities,' which could be altered only by a constitutional amendment. Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct and that the Constitution leaves the House44 without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.
a. The Pre-Convention Precedents.
62
Since our rejection of respondents' interpretation of § 5 results in significant measure from a disagreement with their historical analysis, we must consider the relevant historical antecedents in considerable detail. As do respondents, we begin with the English and colonial precedents.
63
The earliest English exclusion precedent appears to be a declaration by the House of Commons in 1553 'that Alex. Nowell, being Prebendary (i.e., a clergyman) in Westminster, and thereby having voice in the Convocation House, cannot be a member of this House * * *.' J. Tanner, Tudor Constitutional Documents: A.D. 1485 1603, p. 596 (2d ed. 1930). This decision, however, was consistent with a long-established tradition that clergy who participated in their own representative assemblies or convocations were ineligible for membership in the House of Commons.45 See 1 E. Porritt, The Unreformed House of Commons 125 (1963); T. Taswell-Langmead's English Constitutional History 142 143 (11th ed. T. Plucknett 1960). The traditional ineligibility of clergymen was recognized as a standing incapacity.46 See 1 W. Blackstone's Commentaries *175. Nowell's exclusion, therefore, is irrelevant to the present case, for petitioners concede—and we agree—that if Powell had not met one of the standing qualifications set forth in the Constitution, he could have been excluded under Art. I, § 5. The earliest colonial exclusions also fail to support respondents' theory.47
64
Respondents' remaining 16th and 17th century English precedents all are cases of expulsion, although some were for misdeeds not encompassed within recognized standing incapacities existing either at the time of the expulsions or at the time the Constitution was drafted in 1787.48 Although these early expulsion orders occasionally contained statements suggesting that the individual expelled was thereafter ineligible for re-election, at least for the duration of the Parliament from which he was expelled,49 there is no indication that any were re-elected and thereafter excluded. Respondents' colonial precedents during this period follow a similar pattern.50
65
Apparently the re-election of an expelled member first occurred in 1712. The House of Commons had expelled Robert Walpole for receiving kickbacks for contracts relating to 'foraging the Troops,' 17 H.C.Jur. 28, and committed him to the Tower. Nevertheless, two months later he was re-elected. The House thereupon resolved '(t)hat Robert Walpole, Esquire, having been, this Session of Parliament, committed a Prisoner to the Tower of London, and expelled (from) this House, * * * is, incapable of being elected a Member to serve in this present Parliament * * *.' Id., at 128. (Second emphasis added.) A new election was ordered, and Walpole was not re-elected. At least two similar exclusions after an initial expulsion were effected in the American colonies during the first half of the 18th century.51
66
Respondents urge that the Walpole case provides strong support for their conclusion that the pre-Convention English and colonial practice was that members-elect could be excluded for their prior misdeeds at the sole discretion of the legislative body to which they had been elected. However, this conclusion overlooks an important limiting characteristic of the Walpole case and of both the colonial exclusion cases on which respondents rely: the excluded member had been previously expelled. Moreover, Walpole was excluded only for the remainder of the Parliament from which he had been expelled. 'The theory seems to have been that expulsion lasted as long as the parliament * * *.' Taswell-Langmead, supra, at 584, n. 99. Accord, 1 W. Blackstone's Commentaries *176. Thus, Walpole's exclusion justifies only the proposition that an expulsion lasted for the remainder of the particular Parliament, and the expelled member was therefore subject to subsequent exclusion if reelected prior to the next general election. The two colonial cases arguably support a somewhat broader principle, i.. , that the assembly could permanently expel. Apparently the colonies did not consistently adhere to the theory that an expulsion lasted only until the election of a new assembly. M. Clarke, Parliamentary Privilege in the American Colonies 196—202 (1943).52 Clearly, however, none of these cases supports respondents' contention that by the 18th century the English Parliament and colonial assemblies had assumed absolute discretion to exclude any member-elect they deemed unfit to serve. Rather, they seem to demonstrate that a member could be excluded only if he had first been expelled.
67
Even if these cases could be construed to support respondents' contention, their precedential value was nullified prior to the Constitutional Convention. By 1782, after a long struggle, the arbitrary exercise of the power to exclude was unequivocally repudiated by a House of Commons resolution which ended the most notorious English election dispute of the 18th century—the John Wilkes case. While serving as a member of Parliament in 1763, Wilkes published an attack on a recent peace treaty with France, calling it a product of bribery and condemning the Crown's ministers as "the tools of despotism and corruption." R. Postgate, That Devil Wilkes 53 (1929). Wilkes and others who were involved with the publication in which the attack appeared were arrested.53 Prior to Wilkes' trial, the House of Commons expelled him for publishing 'a false, scandalous, and seditious libel.' 15 Parl.Hist.Eng. 1393 (1764). Wilkes then fled to France and was subsequently sentenced to exile. 9 L. Gipson, The British Empire Before the American Revolution 37 (1956).
68
Wilkes returned to England in 1768, the same year in which the Parliament from which he had been expelled was dissolved. He was elected to the next Parliament, and he then surrendered himself to the Court of King's Bench. Wilkes was convicted of seditious libel and sentenced to 22 months' imprisonment. The new Parliament declared him ineligible for membership and ordered that he be 'expelled this House.' 16 Parl.Hist.Eng. 545 (1769). Although Wilkes was re-elected to fill the vacant seat three times, each time the same Parliament declared him ineligible and refused to seat him. See 1 Gipson, supra, at 207—215.54
69
Wilkes was released from prison in 1770 and was again elected to Parliament in 1774. For the next several years, he unsuccessfully campaigned to have the resolutions expelling him and declaring him incapable of re-election expunged from the record. Finally, in 1782, the House of Commons voted to expunge them, resolving that the prior House actions were 'subversive of the rights of the whole body of electors of this kingdom.' 22 Parl.Hist.Eng. 1411 (1782).
70
With the successful resolution of Wilkes' long and bitter struggle for the right of the British electorate to be represented by men of their own choice, it is evident that, on the eve of the Constitutional Convention, English precedent stood for the proposition that 'the law of the land had regulated the qualifications of members to serve in parliament' and those qualification were 'not occasional but fixed.' 16 Parl.Hist.Eng. 589, 590 (1769). Certainly English practice did not support, nor had it ever supported, respondents' assertion that the power to judge qualifications was generally understood to encompass the right to exclude members-elect for general misconduct not within standing qualifications. With the repudiation in 1782 of the only two precedents for excluding a member-elect who had been previously expelled,55 it appears that the House of Commons also repudiated any 'control over the eligibility of candidates, except in the administration of the laws which define their (standing) qualifications.' T. May's Parliamentary Practice 66 (13th ed. T. Webster 1924). See Taswell-Langmead, supra, at 585.56
71
The resolution of the Wilkes case similarly undermined the precedential value of the earlier colonial exclusions, for the principles upon which they had been based were repudiated by the very body the colonial assemblies sought to imitate and whose precedents they generally followed. See Clarke, supra, at 54, 59 60, 196. Thus, in 1784 the Council of Censors of the Pennsylvania Assembly57 denounced the prior expulsion of an unnamed assemblyman, ruling that his expulsion had not been effected in conformity with the recently enacted Pennsylvania Constitution.58 In the course of its report, the Council denounced by name the Parliamentary exclusions of both Walpole and Wilkes, stating that they 'reflected dishonor on none but the authors of these violences.' Pennsylvania Convention Proceedings: 1776 and 1790, p. 89 (1825).
72
Wilkes' struggle and his ultimate victory had a significant impact in the American colonies. His advocacy of libertarian causes59 and his pursuit of the right to be seated in Parliament became a cause celebre for the colonists. '(T)he cry of 'Wilkes and Liberty' echoed loudly across the Atlantic Ocean as wide publicity was given to every step of Wolkes's public career in the colonial press * * *. The reaction in America took on significant proportions. Colonials tended to identify their cause with that of Wilkes. They saw him as a popular hero and a martyr to the struggle for liberty. * * * They named towns, counties, and even children in his honour.' 11 Gipson, supra, at 222.60 It is within this historical context that we must examine the Convention debates in 1787, just five years after Wilkes' final victory.
b. Convention Debates.
73
Relying heavily on Charles Warren's analysis61 of the Convention debates, petitioners argue that the proceedings manifest the Framers' unequivocal intention to deny either branch of Congress the authority to add to or otherwise vary the membership qualifications expressly set forth in the Constitution. We do not completely agree, for the debates are subject to other interpretations. However, we have concluded that the records of the debates, viewed in the context of the bitter struggle for the right to freely choose representatives which had recently concluded in England and in light of the distinction the Framers made between the power to expel and the power to exclude, indicate that petitioners' ultimate conclusion is correct.
74
The Convention opened in late May 1787. By the end of July, the delegates adopted, with a minimum of debate, age requirements for membership in both the Senate and the House. The Convention then apo inted a Committee of Detail to draft a constitution incorporating these and other resolutions adopted during the preceding months. Two days after the Committee was appointed, George Mason, of Virginia, moved that the Committee consider a clause "requiring certain qualifications of landed property & citizenship" and disqualifying from membership in Congress persons who had unsettled accounts or who were indebted to the United States. 2 Farrand 121. A vigorous debate ensued. Charles Pinckney and General Charles C. Pinckney, both of South Carolina, moved to extend these incapacities to both the judicial and executive branches of the new government. But John Dickinson, of Delaware, opposed the inclusion of any statement of qualifications in the Constitution. He argued that it would be 'impossible to make a compleat one, and a partial one would by implication tie up the hands of the Legislature from supplying the omissions.' Id., at 123.62 Dickinson's argument was rejected; and, after eliminating the disqualification of debtors and the limitation to 'landed' property, the Convention adopted Mason's proposal to instruct the Committee of Detail to draft a property qualification. Id., at 116—117.
75
The Committee reported in early August, proposing no change in the age requirement; however, it did recommend adding citizenship and residency requirements for membership. After first debating what the precise requirements should be, on August 8, 1787, the delegates unanimously adopted the three qualifications embodied in Art. I, § 2. Id., at 213.63
76
On August 10, the Convention considered the Committee of Detail's proposal that the 'Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient.' Id., at 179. The debate on this proposal discloses much about the views of the Framers on the issue of qualifications. For example, James Madison urged its rejection, stating that the proposal would vest
77
'an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect. * * * It was a power also, which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of (a weaker) faction.' Id., at 249—250.64
78
Significantly, Madison's argument was not aimed at the impost ion of a property qualification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications. The parallel between Madison's arguments and those made in Wilkes' behalf is striking.65
79
In view of what followed Madison's speech, it appears that on this critical day the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the 'indisputable right (of the people) to return whom they thought proper'66 to the legislature. Oliver Ellsworth, of Connecticut, noted that a legislative power to establish property qualifications was exceptional and 'dangerous because it would be much more liable to abuse.' Id., at 250. Gouverneur Morris then moved to strike 'with regard to property' from the Committee's proposal. His intention was 'to leave the Legislature entirely at large.' Ibid. Hugh Williamson, of North Carolina, expressed concern that if a majority of the legislature should happen to be 'composed of any particular description of men, of lawyers for example, * * * the future elections might be secured to their own body.' Ibid.67 Madison then referred to the British Parliament's assumption of the power to regulate the qualifications of both electors and the elected and noted that 'the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties.' Ibid.68 Shortly thereafter, the Convention rejected both Gouverneur Morris' motion and the Committee's proposal. Later the same day, the Convention adopted without debate the provision authorizing each House to be 'the judge of the * * * qualifications of its own members.' Id., at 254.
80
One other decision made the same day is very important to determining the meaning of Art. I, § 5. When the delegates reached the Committee of Detail's proposal to empower each House to expel its members, Madison 'observed that the right of expulsion * * * was too important to be exercised by a bare majority of a quorum: and in emergencies (one) faction might be dangerously abused.' Id., at 254. He therefore moved that 'with the concurrence of two-thirds' be inserted. With the exception of one State, whose delegation was divided, the motion was unanimously approve without debate, although Gouverneur Morris noted his opposition. The importance of this decision cannot be over-emphasized. None of the parties to this suit disputes that prior to 1787 the legislative powers to judge qualifications and to expel were exercised by a majority vote. Indeed, without exception, the English and colonial antecedents to Art. I, § 5, cls. 1 and 2, support this conclusion. Thus, the Convention's decision to increase the vote required to expel, because that power was 'too important to be exercised by a bare majority,' while at the same time not similarly restricting the power to judge qualifications, is compelling evidence that they considered the latter already limited by the standing qualifications previously adopted.69
81
Respondents urge, however, that these events must be considered in light of what they regard as a very significant change made in Art. I, § 2, cl. 2, by the Committee of Style. When the Committee of Detail reported the provision to the Convention, it read:
82
'Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen of (in) the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen.' Id., at 178.
83
However, as finally drafted by the Committee of Style, these qualifications were stated in their present negative form. Respondents note that there are no records of the 'deliberations' of the Committee of Style. Nevertheless, they speculate that this particular change was designed to make the provision correspond to the form used by Blackstone in listing the 'standing incapacities' for membership in the House of Commons. See 1 W. Blackstone's Commentaries **175—176. Blackstone, who was an apologist for the anti-Wilkes forces in Parliament,70 had added to his Commentaries after Wilkes' exclusion the assertion that individuals who were not ineligible for the Commons W. Blackstone's Commentaries *175—176. be denied their seat if the Commons deemed them unfit for other reasons.71 Since Blackstone's Commentaries was widely circulated in the Colonies, respondents further speculate that the Committee of Style rephrased the qualifications provision in the negative to clarify the delegates' intention 'only to prescribe the standing incapacities without imposing any other limit on the historic power of each house to judge qualifications on a case by case basis.'72
84
Respondents' argument is inherently weak, however, because it assumes that legislative bodies historically possessed the power to judge qualifications on a case-by-case basis. As noted above, the basis for that conclusion was the Walpole and Wilkes cases, which, by the time of the Convention, had been denounced by the House of Commons and repudiated by at least one State government. Moreover, respondents' argument misrepresents the function of the Committee of Style. It was appointed only 'to revise the stile of and arrange the articles which had been agreed to * * *.' 2 Farrand 553. '(T)he Committee * * * had no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so; and certainly the Convention had no belief * * * that any important change was, in fact, made in the provisions as to qualifications adopted by it on August 10.'73
85
Petitioners also argue that the post-Convention debates over the Constitution's ratification support their interpretation of § 5. For example, they emphasize Hamilton's reply to the antifed-eralist charge that the new Constitution favored the wealthy and well-born:
86
'The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms on part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.'
87
The Federalist Papers 371 (Mentor ed. 1961). (Emphasis in last sentence added.) Madison had expressed similar views in an earlier essay,74 and his arguments at the Convention leave no doubt about his agreement with Hamilton on this issue.
88
Respondents counter that Hamilton was actually addressing himself to criticism of Art. I, § 4, which authorizes Congress to regulate the times, pa ces, and manner of electing members of Congress. They note that prominent antifederalists had argued that this power could be used to 'confer on the rich and well-born, all honours.' Brutus No. IV, N.Y. Journal, Nov. 29, 1787, p. 7. (Emphasis in original.) Respondents' contention, however, ignores Hamilton's express reliance on the immutability of the qualifications set forth in the Constitution.75
89
The debates at the state conventions also demonstrate the Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution. Before the New York convention, for example, Hamilton emphasized: '(T)he true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.' 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876) (hereinafter cited as Elliot's Debates).76 In Virginia, where the Federalists faced powerful opposition by advocates of popular democracy, Wilson Carey Nicholas, a future member of both the House and Senate and later Governor of the State, met the arguments that the new Constitution violated democratic principles with the following interpretation of Art. I, § 2, cl. 2, as it respects the qualifications of the elected: 'It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence, which create a certainty of their judgment being matured, and of being attached to their state.' 3 Elliot's Debates 8.
90
c. Post-Ratification.
91
As clear as these statements appear, respondents dismiss them as 'general statements * * * directed to other issues.'77 They suggest that far more relevant is Congress' own understanding of its power to judge qualifications as manifested in post-ratification exclusion cases. Unquestionably, both the House and the Senate have excluded memberselect for reasons other than their failure to meet the Constitution's standing qualifications. For almost the first 100 years of its existence, however, Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution.
92
Congress was first confronted with the issue in 1807,78 when the eligibility of William McCreery was challenged because he did not meet additional residency requirements imposed by the State of Maryland. In recommending that he be seated, the House Committee of Elections reasoned:
93
'The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined, without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications; and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules * * *.' 17 annals of Cong. 871 (1807).
94
Lest there be any misunderstanding of the basis for the committee's recommendation, during the ensuing debate the chairman explained the principles by which the committee was governed:
95
'The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them. * * * Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only. These are the principles on which the Election Committee have made up their report, and upon which their resolution is founded.' Id., at 872.
96
The chairman emphasized that the committee's narrow construction of the power of the House to judge qualifications was compelled by the 'fundamental principle in a free government,' id., at 873, that restrictions upon the people to choose their own representatives must be limited to those 'absolutely necessary for the safety of the society.' Id., at 874. At the conclusion of a lengthy debate, which tended to center on the more narrow issue of the power of the States to add to the standing qualifications set forth in the Constitution, the House agreed by a vote of 89 to 18 to seat Congressman McCreery. Id., at 1237. See 1 A. Hinds, Precedents of the House of Representatives of the United States § 414 (1907) (hereinafter cited as Hinds).
97
There was no significant challenge to these principles for the next several decades.79 They came under heavy attack, however, 'during the stress of civil war (but initially) the House of Representatives declined to exercise the power (to exclude), even under circumstances of great provocation.'80 Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., § 12, p. 7 (1967). The abandonment of such restraint, however, was among the casualties of the general upheaval produced in war's wake. In 1868, the House voted for the first time in its history to exclude a member-elect. It refused to seat two duly elected representatives for giving aid and comfort to the Confederacy. See 1 Hinds §§ 449—451.81 'This change was produced by the North's bitter enmity toward those who failed to support the Union cause during the war, and was effected by the Radical Republican domination of Congress. It was a shift brought about by the naked urgency of power and was given little doctrinal support.' Comment, Legislative Exclusion: Julian Bond and Adam Clayton Powell, 35 U.Chi.L.Rev. 151, 157 (1967).82 From that time until the present, congressional practice has been erratic;83 and on the few occasions when a member-elect was excluded although he met all the qualifications set forth in the Constitution, there were frequently vigorous dissent.84 Even the annotations to the official manual of procedure for the 90th Congress manifest doubt as to the House's power to exclude a member-elect who has met the constitutionally prescribed qualifications. See Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., § 12, pp. 7—8 (1967).
98
Had these congressional exclusion precedents been more consistent, their precedential value still would be quite limited. See Note, The Power of a House of Congress to Judge the Qualifications of its Members, 81 Harv.L.Rev. 673, 679 (1968).85 That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date. Particularly in view of the Congress' own doubts in those few cases where it did exclude members-elect, we are not inclined to give its precedents controlling weight. The relevancy of prior exclusion cases is limited largely to the insight they afford in correctly ascertaining the draftsmen's intent. Obviously, therefore, the precedential value of these cases tends to increase in proportion to their proximity to the Convention in 1787. See Myers v. United States, 272 U.S. 52, 175, 47 S.Ct. 21, 45, 71 L.Ed. 160 (1926). And, what evidence we have of Congress' early understanding confirms our conclusion that the House is without power to exclude any member-elect who meets the Constitution's requirements for membership.
99
d. Conclusion.
100
Had the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow constuction of the scope of Congress' power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton's words, 'that the people should choose whom they please to govern them.' 2 Elliot's Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison's warning, borne out in the Wilkes case and some of Congress' own post-Civil War exclusion cases, against 'vesting an improper & dangerous power in the Legislature.' 2 Farrand 249. Moreover, it would effectively nullify the Convention's decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.
101
For these reasons, we have concluded that Art. I, § 5, is at most a 'textually demonstrable commitment' to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the 'textual commitment' formulation of the political question doctrine does not bar federal courts from adjudicating petitioners' claims.
102
2. Other Considerations.
103
Respondents' alternate contention is that the case presents a political question because judicial resolution of petitioners' claim would produce a 'potentially embarrassing confrontation between coordinate branches' of the Federal Government. But, as our interpretation of Art. I, § 5, discloses, a determination of petitioner Powell's right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a 'lack of the respect due (a) coordinate (branch) of government,' nor does it involve an 'initial policy determination of a kind clearly for nonjudicial discretion.' Baker v. Carr, 369 U.S. 186, at 217, 82 S.Ct. 691, at 710. Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility.86 See United States v. Brown, 381 U.S. 437, 462, 85 S.Ct. 1707, 1722, 14 L.Ed.2d 484 (1965); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 613—614, 72 S.Ct. 863, 898, 96 L.Ed. 1153 (1952) (Frankfurter, J., concurring); Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 84 (1926) (Brandeis, J., dissenting).
104
Nor are any of the other formulations of a political question 'inextricable from the case at bar.' Baker v. Carr, supra, at 217, 82 S.Ct. at 710. Petitioners seek a determination that the House was without power to exclude Powell from the 90th Congress, which, we have seen, requires an interpretation of the Constitution—a determination for which clearly there are 'judicially * * * manageable standards.' Finally, a judicial resolution of petitioners' claim will not result in 'multifarious pronouncements by various departments on one question.' For, as we noted in Baker v. Carr, supra, at 211, 82 S.Ct., at 706 it is the responsibility of this Court to act as the ultimate interpreter of the Constitution. Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803). Thus, we conclude that petitioners' claim is not barred by the political question doctrine, and, having determined that the claim is otherwise generally justiciable, we hold that the case is justiciable.
VII.
105
CONCLUSION.
106
To summarize, we have determined the following: (1) This case has not been mooted by Powell's seating in the 91st Congress. (2) Although this action should be dismissed against respondent Congressmen, it mayb e sustained against their agents. (3) The 90th Congress' denial of membership to Powell cannot be treated as an expulsion. (4) We have jurisdiction over the subject matter of this controversy. (5) The case is justiciable.
107
Further, analysis of the 'textual commitment' under Art. I, § 5 (see Part VI, B (1)), has demonstrated that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.
108
Petitioners seek additional forms of equitable relief, including mandamus for the release of petitioner Powell's back pay. The propriety of such remedies, however, is more appropriately considered in the first instance by the courts below. Therefore, as to respondents McCormack, Albert, Ford, Celler, and Moore, the judgment of the Court of Appeals for the District of Columbia Circuit is affirmed. As to respondents Jennings, Johnson, and Miller, the judgment of the Court of Appeals for the District of Columbia Circuit is reversed and the case is remanded to the United States District Court for the District of Columbia with instructions to enter a declaratory judgment and for further proceedings consistent with this opinion.
109
It is so ordered.
110
Mr. Justice DOUGLAS.
111
While I join the opinion of the Court, I add a few words. As the Court says, the important constitutional question is whether the Congress has the power to deviate from or alter the qualifications for membership as a Representative contained in Art. I, § 2, cl. 2, of the Constitution.1 Up to now the understanding has been quite clear to the effect that such authority does not exist.2 To be sure, Art. I, § 5, provides that: 'Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members * * *.' Contests may arise over whether an elected official meets the 'qualifications' of the Constitution, in which event the House is the sole judge.3 But the House is not the sole judge when 'qualifications' are added which are not specified in the Constitution.4
112
A man is not seated because he is a Socialist or a Communist.5
113
Another is not seated because in his district members of a minority are systematically excluded from voting.6
114
Another is not seated because he has spoken out in opposition to the war in Vietnam.7
115
The possible list is long. Some cases will have the racist overtones of the present one.
116
Others may reflect religious or ideological clashes.8
117
At the root of all these cases, however, is the basic integrity of the electoral process. Today we proclaim the constitutional principle of 'one man, one vote.' When that principle is followed and the electors choose a person who is repulsive to the Establishment in Congress, by what constitutional authority can that group of electors be disenfranchised?
118
By Art. I, § 5, the House may 'expel a Member' by a vote of two-thirds. And if this were an expulsion case I would think that no justiciable controversy would be presented, the vote of the House being two-thirds or more. But it is not an expulsion case. Whether it could have been won as an expulsion case, no one knows. Expulsion for 'misconduct' may well raise different questions, different considerations. Policing the conduct of members, a recurring problem in the Senate and House as well, is quite different from the initial decs ion whether an elected official should be seated. It well might be easier to bar admission than to expel one already seated.
119
The House excluded Representative-elect Powell from the 90th Congress allegedly for misappropriating public funds and for incurring the contempt of New York courts.9 Twenty-six years earlier, members of the upper chamber attempted to exclude Senator-elect William Langer of North Dakota for like reasons.10 Langer first became State's Attorney for Morton County, North Dakota, from 1914 to 1916, and then served as State Attorney General from 1916 to 1920. He became Governor of the State in 1932 and took office in January 1933. In 1934 he was indicted for conspiring to interfere with the enforcement of federal law by illegally soliciting political contributions from federal employees, and suit was filed in the State Supreme Court to remove him from office.11 While that suit was pending, he called the State Legislature into special session.12 When it became clear that the court would order his ouster, he signed a Declaration of Independence, invoked martial law, and called out the National Guard.13 Nonetheless, when his own officers refused to recognize him as the legal head of state, he left office in July 1934. As with Adam Clayton Powell, however, the people of the State still wanted him. In 1937 they re-elected him Governor and, in 1940, they sent him to the United States Senate.
120
During the swearing-in ceremonies, Senator Barkley drew attention to certain complaints filed against Langer by citizens of North Dakota, yet asked that he be allowed to take the oath of office
121
'without prejudice, which is a two-sided proposition—without prejudice to the Senator and without prejudice to the Senate in the exercise of its right (to exclude him).'14
122
The matter of Langer's qualifications to serve in the Senate was referred to committee which held confidential hearings on January 9 and 16, 1941, and open hearings on November 3 and 18, 1941. By a vote of 14 to 2, the committee reported that a majority of the Senate had jurisdiction under Art. I, § 5, cl. 1, of the Constitution to exclude Langer; and, by a vote of 13 to 3, it reported its recommendation that Langer not be seated.15
123
The charges against Langer were various. As with Powell, they included claims that he had misappropriated public funds16 and that he had interfered with the judicial process in a way that beclouded the dignity of Congress.17 Reference was also made to his professional ethics as a lawyer.18
124
Langer enjoyed the powerful advocacy of Senator Murdock from Utah. The Senate debate itself raged for over a year.19 Much of it related to purely factual allegations of 'moral turpitude.' Some of it, however, was addressed to the power of the Senate under Art. I, § 5, cl. 1, to exclude a member-elect for lacking qualifications not enumerated in Art. I, § 3.
125
'Mr. MURDOCK. * * * (U)nder the Senator's theory that the Senate has the right to add qualifications which are not specified in the Constitution, does the Senator believe the Senate could adopt a rule specifying intellectual and moral qualifications?20
126
'Mr. LUCAS. The Senate can do anything it wants to do * * *. Yes; the Senate can deny a person his seat simply because it does not like the cut of his jaw, if it wishes to.'21
127
Senator Murdock argued that the only qualifications for service in the Senate were those enumerated in the Constitution; that Congress had the power to review those enumerated qualifications; but that it could not—while purporting to 'judge' those qualifications—in reality add to them.
128
'Mr. LUCAS. The Senator referred to article I, section 5. What does he think the framers of the Constitution meant when they gave to each House the power to determine or to judge the qualifications, and so forth, of its own Members?22
129
'Mr. MURDOCK. I construe the term 'judge' to mean what it is held to mean in its common, ordinary usage. My understanding of the definition of the word 'judge' as a verb is this: When we judge of a thing it is supposed that the rules are laid out; the law is there for us to look at and to apply to the facts.
130
'But whoever heard the word 'judge' used as meaning the power to add to what already is the law?'23
131
It was also suggested from the floor that the enumerated qualifications in § 3 were only a minimum which the Senate could supplement; and that the Founding Fathers so intended by using words of the negative. To which Senator Murdock replied—
132
'Mr. President, I think it is the very distinguished and able Senator from Georgia who makes the contention that the constitutional provisions relating to qualifications, because they are stated in the negative—that is, 'no person shall be a Senator'—are merely restrictions or prohibitions on the State; but—and I shall read it later on—when we read what Madison said, when we read what Hamilton said, when we read what the other framers of the Constitution said on that question, there cannot be a doubt as to what they intended and what they meant.24
133
'Madison knew that the qualifications should be contained in the Constitution and not left to the whim and caprice of the legislature.25
134
'Bear that in mind, that the positive or affirmative phraseology was not changed to the negative by debate or by amendment in the convention, but it was changed by the committee of which Madison was a member, the committee on style.'26
135
The Senate was nonetheless troubled by the suggestion that the Constitution compelled it to accept anyone whom the people might elect, no matter how egregious and even criminal his behavior. No need to worry, said Murdock. It is true that the Senate cannot invoke its majority power to 'judge' under Art. I, § 5, cl. 1, as a device for excluding men elected by the people who possess the qualifications enumerated by the Constitution. But it does have the power under Art. I, § 5, cl. 2, to expel anyone it designates by a two-thirds vote. None-theless, he urged the Senate not to bypass the two-thirds requirement for expulsion b wrongfully invoking its power to exclude.27
136
'Mr. LUCAS. * * * The position the Senator from Utah takes is that it does not make any difference what a Senator does in the way of crime, that whenever he is elected by the people of his State, comes here with bona fide credentials, and there is no fraud in the election, the Senate cannot refuse to give him the oath. That is the position the Senator takes?
137
'Mr. MURDOCK. That is my position; yes.28
138
'My position is that we do not have the right to exclude anyone who comes here clothed with the proper credentials and possessing the constitutional qualifications. My position is that we do not have the right under the provision of the Constitution to which the Senator from Florida referred, to add to the qualifications. My position is that the State is the sole judge of the intellectual and the moral qualifications of the representatives it sends to Congress.'29
139
'MR. MURDOCK (quoting Senator Philander Knox). 'I know of no defect in the plain rule of the Constitution for which I am contending. * * * I cannot see that any danger to the Senate lies in the fact that an improper character cannot be excluded without a two-thirds vote. It requires the unanimous vote of a jury to convict a man accused of crime; it should require, and I believe that it does require, a two-thirds vote to eject a Senator from his position of honor and power, to which he has been elected by a sovereign State."30
140
Thus, after a year of debate, on March 27, 1942, the Senate overruled the recommendation of its committee and voted 52 to 30 to seat Langer.
141
I believe that Senator Murdock stated the correct constitutional principle governing the present case.
142
Mr. Justice STEWART, dissenting.
143
I believe that events which have taken place since certiorari was granted in this case on November 18, 1968, have rendered it moot, and that the Court should therefore refrain from deciding the novel, difficult, and delicate constitutional questions which the case presented at its inception.
I.
144
The essential purpose of this lawsuit by Congressman Powell and members of his constituency was to regain the seat from which he was barred by the 90th Congress. That purpose, however, became impossible of attainment on January 3, 1969, when the 90th Congress passed into history and the 91st Congress came into being. On that date, the petitioners' prayer for a judicial decree restraining enforcement of House Resolution No. 278 and commanding the respondents to admit Congressman Powell to membership in the 90th Congress became incontestably moot.
145
The petitioners assert that actions of the House of Representatives of the 91st Congress have prolonged the controversy raised by Powell's exclusion and preserved the need for a judicial declaration in this case. I believe, to the contrary, that the conduct of the present House of Representatives confirms the mootness of the petitioners' suit against the 90th Congress. Had Powell been excluded from the 91st Congress, he might argue that there was a 'continuing controversy' concerning the exclusion attacked in this case.1 And such an argument might be sound even though the present House of Representatives is a distinct legislative body rather than a continuation of its predecessor,2 and though any griev ance caused by conduct of the 91st Congress is not redressable in this action. But on January 3, 1969, the House of Representatives of the 91st Congress admitted Congressman Powell to membership, and he now sits as the Representative of the 18th Congressional District of New York. With the 90th Congress terminated and Powell now a member of the 91st, it cannot seriously be contended that there remains a judicial controversy between these parties over the power of the House of Representatives to exclude Powell and the power of a court to order him reseated. Understandably, neither the Court nor the petitioners advance the wholly untenable proposition that the continuation of this case can be founded on the infinitely remote possibility that Congressman Powell, or any other Representative, may someday be excluded for the same reasons or in the same manner. And because no foreseeable possibility of such future conduct exists, the respondents have met their heavy burden of showing that 'subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364.3
146
The petitioners further argue that this case cannot be deemed moot because of the principle that 'the voluntary abandonment of a practice does not relieve a court of adjudicating its legality * * *.' Gray v. Sanders, 372 U.S. 368, 376, 83 S.Ct. 801, 806, 9 L.Ed.2d 821.4 I think it manifest, however, that this principle and the cases enunciating it have no application to the present case. In the first place, this case does not involve 'the voluntary abandonment of a practice.' Rather it became moot because of an event over which the respondents had no control—the expiration of the 90th Congress. Moreover, unlike the cases relied on by the petitioners, there has here been no ongoing course of conduct of indefinite duration against which a permanent injunction is necessary. Thus, it cannot be said of the respondents' actions in this case, as it was of the conduct sought to be enjoined in Gray, for example, that 'the practice is deeply rooted and long standing,' ibid., or that, without judicial relief, the respondents would be 'free to return to (their) old ways.' United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897.5 Finally, and most important, the 'voluntary abandonment' rule does not dispense with the requirement of a continuing controversy, nor could it under the definition of the judicial power in Article III of the Constitution. Voln tary cessation of unlawful conduct does make a case moot 'if the defendant can demonstrate that 'there is no reasonable expectation that the wrong will be repeated." Id., at 633, 73 S.Ct., at 897.6 Since that is the situation here, the case would be moot even if it could be said that it became so by the House's 'voluntary abandonment' of its 'practice' of excluding Congressman Powell.
147
The petitioners' proposition that conduct of the 91st Congress has perpetuated the controversy is based on the fact that House Resolution No. 2—the same resolution by which the House voted to seat Powell—fined him $25,000 and provided that his seniority was to commence as of the date he became a member of the 91st Congress.7 That punishment, it is said, 'arises out of the prior actions of the House which originally impelled this action.' It is indisputable, however, that punishment of a House member involves constitutional issues entirely distinct from those raised by exclusion,8 and that a punishment in one Congress is in no legal sense a 'continuation' of an exclusion from the previous Congress. A judicial determination that the exclusion was improper would have no bearing on the constitutionality of the punishment, nor any conceivable practical impact on Powell's status in the 91st Congress. It is thus clear that the only connection between the exclusion by the 90th Congress and the punishment by the 91st is that they were evidently based on the same asserted derelictions of Congressman Powell. But this action was not brought to exonerate Powell or to expunge the legislative findings of his wrongdoing; its only purpose was to restrain the action taken in consequence of those findings—Powell's exclusion.
148
Equally without substance is the petitioners' contention that this case is saved from mootness by application of the asserted 'principle' that a case challenging allegedly unconstitutional conduct cannot be rendered moot by further unconstitutional conduct of the defendants. Under this hypothesis, it is said that the 'Court can not determine that the conduct of the House of January 3, 1969, has mooted this controversy without inferentially, at least, holding that the action of the House of that day was legal and constitutionally permissible.' If there is in our jurisprudence any doctrine remotely resembling the petitioners' theory—which they offer without reference to any authority—it has no conceivable relevance to this case. For the events of January 3, 1969, that made this case moot were the termination of the 90th Congress and Powell's seating in the 91st, not the punishment which the petitioners allege to have been unconstitutional. That punishment is wholly irrelevant to the question of mootness and is in no wise before the Court in this case.
II.
149
The passage of time and intervening events have, therefore, made it impossible to afford the petitioners the principal relief they sought in this case. If any aspect of the case remains alive, it is only Congressman Powell's individual claim for the salary of which he was deprived by his absence from the 90th Congress.9 But even if that claim can be said to prevent this controversy from being moot, which I doubt, there is no need to reach the fundamental constitutional issues that the Court today undertakes to decide.
150
This Court has not in the past found that an incidental claim for back pay preserves the controversy between a legislator and the legislative body which evicted him, once the term of his eviction has expired. Alejandrino v. Quezon, 271 U.S. 528, 46 S.Ct. 600, 70 L.Ed. 1071, was a case nearly identical to that before the Court today. The petitioner was a member of the Senate of the Philippines who had been suspended for one year for assaulting a colleague. He brought an action in the Supreme Court of the Philippines against the elected members of the Senate10 and its officers and employees (the President, Secretary, Sergeant at Arms, and Paymaster), seeking a writ of mandamus and an injunction restoring him to his seat and to all the privileges and emoluments of office. The Supreme Court of the Philippines dismissed the action for want of jurisdiction and Alejandrino brought the case here,11 arguing that th suspension was not authorized by the Philippine Autonomy Act, a statute which incorporated most of the provisions of Article I of the United States Constitution.12
151
Because the period of the suspension had expired while the case was pending on certiorari, a unanimous Court, in an opinion by Chief Justice Taft, vacated the judgment and remanded the case with directions to dismiss it as moot. To Alejandrino's claim that his right to back pay kept the case alive, the Court gave the following answer, which, because of its particular pertinency to this case, I quote at length:
152
'It may be suggested, as an objection to our vacating the action of the court below, and directing the dismissal of the petition as having become a moot case, that, while the lapse of time has made unnecessary and futile a writ of mandamus to restore Senator Alejandrino to the Island Senate, there still remains a right on his part to the recovery of his emoluments, which were withheld during his suspension, and that we ought to retain the case for the purpose of determining whether he may not have a mandamus for this purpose. * * * It is difficult for the Court to deal with this feature of the case, which is really only a mere incident to the main question made in the petition and considered in the able and extended brief of counsel for the petitioner and the only brief before us. That brief is not in any part of it directed to the subject of emoluments, nor does it refer us to any statute or to the rules of the Senate by which the method of paying Senators' salaries is provided, or in a definite way describe the duties of the officer or officers or committee charged with the ministerial function of paying them.
153
'* * * the remedy of the Senator would seem to be by mandamus to compel such official in the discharge of his ministerial duty to pay him the salary due, and the presence of the Senate as a party would be unnecessary. Should that official rely upon the resolution of the Senate as a reason for refusing to comply with his duty to pay Senators, the validity of such a defense and the validity of the resolution might become a judicial question affecting the personal right of the complaining Senator, properly to be disposed of in such action but not requiring the presence of the Senate as a party for its adjudication. The right of the petitioner to his salary does not therefore involve the very serious issue raised in this petition as to the power of the Philippine Supreme Court to compel by mandamus one of the two legislative bodies constituting the e gislative branch of the government to rescind a resolution adopted by it in asserted lawful discipline of one of its members, for disorder and breach of privilege. We think, now that the main question as to the validity of the suspension has become moot, the incidental issue as to the remedy which the suspended Senator may have in recovery of his emoluments if illegally withheld, should properly be tried in a separate proceeding against an executive officer or officers as described. As we are not able to derive from the petition sufficient information upon which properly to afford such a remedy, we must treat the whole cause as moot and act accordingly. This action on our part of course is without prejudice to a suit by Senator Alejandrino against the proper executive officer or committee by way of mandamus or otherwise to obtain payment of the salary which may have been unlawfully withheld from him.' 271 U.S., at 533, 534—535, 46 S.Ct., at 601.13
154
Both of the factors on which the Court relied in Alejandrino are present in this case. Indeed, the salary claim is an even more incidental and subordinate aspect of this case than it was of Alejandrino.14 And the availability of effective relief for that claim against any of the present respondents is far from certain. As in Alejandrino, the briefs and memoranda submitted by the parties in this case contain virtually no discussion of this question—the only question of remedy remaining in the case. It appears from relevant provisions of law, however, that the Sergeant at Arms of the House—an official newly elected by each Congress15—is responsible for the retention and disbursement to Congressmen of the funds appropriated for their salaries. These funds are payable from the United States Treasury16 upon requisitions presented by the Sergeant at Arms, who is entrusted with keeping the books and accounts 'for the compensation and mileage of Members.'17 A Congressman who has presented his credentials and taken the oath of office18 is entitled to be paid monthly on the basis of certificates of the Clerk19 and Speaker of the House.20 Powell's prayer for a mandamus and an injunction against the Sergeant at Arms is presumably based on this statutory scheme.
155
Several important questions remain unanswered, however, on this record. Is the Sergeant at Arms the only necessary defendant? If so, the case is surely moot as to the other respondents, including the House members, and they should be dismissed as parties on that ground rather than after resolution of difficult constitutional questions under the Speech or Debate Clause. But it is far from clear that Powell has an appropriate or adequate remedy against the remaining respondents. For if the Speaker does not issue the requisite certificates and the House does not rescind Resolution No. 278, can the House agents be enjoined to act in direct contravention of the orders of their employers? Moreover, the office of Sergeant at Arms of the 90th Congress has now expired, and the present Sergeant at Arms serves the 91st Congress. If he were made a party in that capacity, would he have the authority—or could the 91st Congress confer the authority—to disburse money for a salary owed to a Representative in the previous Congress, particularly one who never took the oath of office? Presumably funds have not been appropriated to the 91st Congress or requisitioned by its Sergeant at Arms for the payment of salaries to members of prior Congresses. Nor is it ascertainable from this record whether money appropriated for Powell's salary by the 90th Congress, if any, remains at the disposal of the current House and its Sergeant at Arms.21
156
There are, then substantial questions as to whether, on his salary claim, Powell could obtain relief against any or all of these respondents. On the other hand, if he was entitled to a salary as a member of the 90th Congress, he has a certain and completely satisfactory remedy in an action for a money judgment against the United States in the Court of Claims.22 While that court could not have ordered Powell seated or entered a declaratory judgment on the constitutionality of his exclusion,23 it is not disputed that the Court of Claims could grant him a money judgment for lost salary on the ground that his discharge from the House violated the Constitution. I would remit Congressman Powell to that remedy, and not simply because of the serious doubts about the availability of the one he now pursues. Even if the mandatory relief sought by Powell is appropriate and could be effective, the Court should insist that the salary claim be litigated in a context that would clearly obviate the need to decide some of the constitutional questions with which the Court grapples today, and might avoid them altogether.24 In an action in the Court of Claims for a money judgment against the United States, there would be no question concerning the impact of the Speech or Debate Clause on a suit against members of the House of Representatives and their agents, and questions of jurisdiction and justiciability would, if raised at all, be in a vastly different and more conventional form.
157
In short, dismissal of Powell's action against the legislative branch would not in the slightest prejudice his money claim,25 and it would avoid the necessity of deciding constitutional issues which, in the petitioners' words, 'touch the bedrock of our political system (and) strike at the very heart of representative government.' If the fundamental principles restraining courts from unnecessarily or prematurely reaching out to decide grave and perhaps unsettling constitutional questions retain any vitality, see Ashwander v. TVA, 297 U.S. 288, 346—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (Brandeis, J., concurring), surely there have been few cases more demanding of their application than this one. And those principles are entitled to special respect in suits, like this suit, for declaratory and injunctive relief, which it is within a court's broad discretion to withhold. 'We have cautioned against declaratory judgments on issues of public moment, even falling short of constitutionality, in speculative situations.' Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 582, 7 L.Ed.2d 604. 'Especially where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative.' Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431, 68 S.Ct. 641, 644, 192 L.Ed. 784.
158
If this lawsuit is to be prolonged, I would at the very least not reach the merits without ascertaining that a decision can lead to some effective relief. The Court's remand for determination of that question implicitly recognizes that there may be no remaining controversy between petitioner Powell and any of these respondents redressable by a court, and that its opinion today may e wholly advisory. But I see no good reason for any court even to pass on the question of the availability of relief against any of these respondents. Because the essential purpose of the action against them is no longer attainable and Powell has a fully adequate and far more appropriate remedy for his incidental back-pay claim, I would withhold the discretionary relief prayed for and terminate this lawsuit now. Powell's claim for salary may not be dead, but this case against all these respondents is truly moot. Accordingly, I would vacate the judgment below and remand the case with directions to dismiss the complaint.
1
Powell requested that he be given (1) notice of the charges pending against him, including a bill of particulars as to any accuser; (2) the opportunity to confront any accuser, to attend all committee sessions where evidence was given, and the right to cross-examine all witnesses; (3) public hearings; (4) the right to have the Select Committee issue its process to summon witnesses for his defense; (5) and a transcript of every haring. Hearings on H.R.Res. No. 1 before Select Committee Pursuant to H.R.Res. No. 1 90th Cong., 1st Sess., 54 (1967).
The Select Committee noted that it had given Powell notice of the matters it would inquire into, that Powell had the right to attend all hearings (which would be public) with his counsel, and that the Committee would call witnesses upon Powell's written request and supply a transcript of the hearings. Id., at 59.
2
The complaint also attacked the House Resolution as a bill of attainder, an ex post facto low, and as cruel and unusual punishment. Further, petitioners charged that the hearing procedures adopted by the Select Committee violated the Due Process Clause of th Fifth Amendment.
3
The District Court refused to convene a three-judge court and the Court of Appeals affirmed. Petitioners did not press this issue in their petition for writ of certiorari, apparently recognizing the validity of the Court of Appeals' ruling. See Stamler v. Willis, 393 U.S. 217, 89 S.Ct. 395, 21 L.Ed.2d 356 (1968).
4
Petitioners also requested that a writ of mandamus issue ordering that the named officials perform the same acts.
5
The District Court entered its order April 7, 1967, and a notice of appeal was filed the same day. On April 11, 1967, Powell was re-elected to the House of Representatives in a special election called to fill his seat. The formal certification of election was received by the House on May 1, 1967, but Powell did not again present himself to the House or ask to be given the oath of office.
6
Respondents' authority for this assertion is a footnote contained in Gojack v. United States, 384 U.S. 702, 707, 86 S.Ct. 1689, 1693, 16 L.Ed.2d 870, n. 4. (1966): 'Neither the House of Representatives nor its committees are continuing bodies.'
7
The rule that this Court lacks jurisdiction to consider the merits of a moot case is a branch of the constitutional command that the judicial power extends only to cases or controversies. See Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968); R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States §§ 270—271 (R. Wolfson & P. Kurland ed. 1951); Diamond, Federal Jurisdiction To Decide Moot Cases, 94 U.Pa.L.Rev. 125 (1946); Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U.Pa.L.Rev. 772 (1955).
8
Petitioners do not press their claim that respondent McCormack should be required to administer the oath to Powell, apparently conceding that the seating of Powell has rendered this specific claim moot. Where several forms of relief are requested and one of these requests subsequently becomes moot, the Court has still considered the remaining requests. See Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 353, 42 S.Ct. 360, 361, 66 L.Ed. 653 (1922). Respondents also argue that the seating of petitioner Powell has mooted the claims of Powell's constituents. Since this case will be remanded, that issue as well as petitioners' other claims can be disposed of by the court below.
9
Alejandrino's brief did not consider either the possibility that his request for injunctive relief had become moot or whether his salary claim required that the Court treat the propriety of his suspension. No brief was filed on behalf of respondents.
10
After discussing the insufficiency of Alejandrino's averments as to the officer responsible for his salary, the Court stated: 'Were that set out, the remedy of the Senator would seem to be by mandamus to compel such official in the discharge of his miniterial duty to pay him the salary due * * *.' 271 U.S. at 534, 46 S.Ct., at 602. That the insufficiency of Alejandrino's averments was the reason for dismissal is further substantiated by a later passage: 'As we are not able to derive from the petition sufficient information upon which properly to afford such a remedy (mandamus), we must treat the whole cause as moot and act accordingly.' Id., at 535, 46 S.Ct., at 602.
11
Paragraph 18b of petitioners' complaint avers that 'Leake W. Johnson, as Sergeant-at-Arms of the House' is responsible for and refuses to pay Powell's salary and prays for an injunction restraining the Sergeant at Arms from implementing the House resolution depriving Powell of his salary as well as mandamus to order that the salary be paid.
12
Federal courts were first empowered to grant declaratory judgments in 1934, see 48 Stat. 955, 10 years after Alejandrino filed his complaint.
13
It was expressly stated in Alejandrino that a properly pleaded mandamus action could be brought, 271 U.S., at 535, 46 S.Ct. at 602, impliedly holding that Alejandrino's salary claim had not been mooted by the expiration of his suspension.
14
Respondents do not supply any substantiation for their assertion that the term of the Georgia Legislature did not expire until December 31. Presumably, they base their statement upon Ga.Code Ann. §§ 2—1601, 2—1603 (Supp.1968).
15
Respondents also suggest that Bond is not applicable because the parties in Bond had stipulated that Bond would be entitled to back salary if his constitutional challenges were accepted, while there is no stipulation in this case. However, if the claim in Bond was moot, a stipulation by the parties could not confer jurisdiction. See, e.g., California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893).
16
Since the court below disposed of this case on grounds of justiciability, it did not pass upon whether Powell had brought an appropriate action to recover his salary. Where a court of appeals has misconceived the applicable law and therefore failed to pass upon a question, our general practice has been to remand the case to that court for consideration of the remaining issues. See, e.g., Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 704, 87 S.Ct. 1326, 1337, 18 L.Ed.2d 406 (1967); Bank of America National Trust & Savings Assn. v. Parnell, 352 U.S. 29, 34, 77 S.Ct. 119, 121, 1 L.Ed.2d 93 (1956). We believe that such action is appropriate for resolution of whether Powell in this litigation is entitled to mandamus against the Sergeant at Arms for salary withheld pursuant to the House resolution.
17
Article I, § 6, provides: 'for any Speech or Debate in either House, they (Senators and Representatives) shall not be questioned in any other Place.'
18
Petitioners ask the Court to draw a distinction between declaratory relief sought against members of Congress and either an action for damages or a criminal prosecution, emphasizing that our four previous cases concerned 'criminal or civil sanctions of a deterrent nature.' Brief for Petitioners 171.
19
See 5 Debates on the Federal Constitution 406 (J. Elliot ed. 1876); 2 Records of the Federal Convention of 1787, p. 246 (M. Farrand rev. ed. 1966) (hereinafter cited as Farrand).
20
The English Bill of Rights contained a provision substantially identical to Art. I, § 6: 'That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.' 1 W. & M., Sess. 2, c. 2. The English and American colonial history is traced in some detail in Cella, The Doctrine of Legislative Privilege of Freedom of Speech and Debate: Its Past, Present and Future as a Bar to Criminal Prosecutions in the Courts, 2 Suffolk U.L.R.ev. 1, 3—16 (1968), and Yankwich, The Immunity of Congressional Speech—Its Origin, Meaning and Scope, 99 U.Pa.L.Rev. 960, 961—966 (1951).
21
United States v. Johnson, 383 U.S. 169, 182—183, 86 S.Ct. 749, 756—757 (1966).
22
1 The Works of James Wilson 421 (R. McCloskey ed. 1967).
23
In Dombrowski $500,000 in damages was sought against a Senator and the chief counsel of a Senate Subcommittee chaired by that Senator. Record in No. 118, O.T.1966, pp. 10—11. We affirmed the grant of summary judgment as to the Senator but reversed as to subcommittee counsel.
24
The Court in Kilbourn quoted extensively from Stockdale v. Hansard, 9 Ad. & E. 1, 114, 112 Eng.Rep. 1112, 1156 (Q.B.1839), to refute the assertion that House agents were immune because they were executing orders of the House: '(I)f the Speaker, by authority of the House, order an illegal Act, though that authority shall exempt him from question, his order shall no more justify the person who executed it than King Charles's warrant for levying ship-money could justify his revenue officer.' Kilbourn eventually recovered $20,000 against Thompson. See Kilbourn v. Thompson, MacArth. & M. 401, 432 (Sup.Ct.D.C.1883).
25
A Congressman is not by virtue of the Speech or Debate Clause absolved of the responsibility of filing a motion to dismiss and the trial court must still determine the applicability of the clause to plaintiff's action. See Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788 (1951).
26
Given our disposition of this issue, we need not decide whether under the Speech or Debate Clause petitioners would be entitled to maintain this action solely against members of Congress where no agents participated in the challenged action and no other remedy was available. Cf. Kilbourn v. Thompson, 103 U.S. 168, 204—205 (1881). and no other remedy was available.
27
Powell was 'excluded' from the 90th Congress, i.e., he was not administered the oath of office and was prevented from taking his seat. If he had been allowed to take the oath and subsequently had been required to surrender his seat, the House's action would have constituted an 'x plusion'. Since we conclude that Powell was excluded from the 90th Congress, we express no view on what limitations may exist on Congress' power to expel or otherwise punish a member once he has been seated.
28
House Resolution No. 278, as amended and adopted, provided: 'That said Adam Clayton Powell * * * be and the same hereby is excluded from membership in the 90th Congress * * *.' 113 Cong.Rec. 5020. (Emphasis added.)
29
Other Congresses have expressed an identical view. The Report of the Judiciary Committee cn cerning the proposed expulsion of William S. King and John G. Schumaker informed the House:
'Your committee are of opinion that the House of Representatives has no authority to take jurisdiction of violations of law or offenses committed against a previous Congress. This is purely a legislative body, and entirely unsuited for the trial of crimes. The fifth section of the first article of the Constitution authorizes 'each house to determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.' This power is evidently given to enable each house to exercise its constitutional function of legislation unobstructed. It cannot vest in Congress a jurisdiction to try a member for an offense committed before his election; for such offense a member, like any other citizen, is amenable to the courts alone.' H.R.Rep.No.815, 44th Cong., 1st Sess., 2 (1876).
See also 15 Cong.Rec. 4434 (1884) (ruling of the Speaker); H.R.Rep.No.81, 42d Cong., 3d Sess., 8 (1873) (expulsion of James Brooks and Oakes Ames); H.R.Rep.No.179, 35th Cong., 1st Sess., 4—5 (1858) (expulsion of Orsamus B. Matteson).
30
We express no view as to whether such a ruling would have been proper. A further distinction between expulsion and exclusion inheres in the fact that a member whose expulsion is contemplated may as a matter of right address the House and participate fully in debate while a member-elect apparently does not have a similar right. In prior cases the member whose expulsion was under debate has been allowed to make a long and often impassioned defense. See Cong. Globe, 42d Cong., 3d Sess., 1723 (1873) (expulsion of Oakes Ames); Cong. Globe, 41st Cong., 2d Sess., 1524—1525, 1544 (1870) (expulsion of B. F. Whittermore); Cong. Globe, 34th Cong., 3d Sess., 925—926 (1857) (expulsion of William A. Gilbert); Cong. Globe, 34th Cong., 3d Sess., 947—951 (1857) (expulsion of William W. Welch); 9 Annals of Cong. 2966 (1799) (expulsion of Matthew Lyon). On at least one occasion the member has been allowed to cross-examine other members during the expulsion debate. 2 A. Hinds, Precedents of the House of Representatives § 1643 (1907).
31
A motion for the previous question is a debate-limiting device which, when carried, has the effect of terminating debate and of forcing a vote on the subject at hand. See Rules of the House of Representatives, H.R.Doc.No.529, 89th Cong., 2d Sess., §§ 804—809 (1967); Cannon's Procedure in the House of Representatives, H.R.Doc.No.610, 87th Cong., 2d Sess., 277—281 (1963).
32
Eckhardt, The Adam Clayton Powell Case, 45 Texas L.Rev. 1205, 1209 (1967). The views of Congressman Eckhardt were echoed during the exclusion proceedings. Congressman Cleveland stated that, although he voted in favor of and supported the Select Committee's recommendation, if the exclusion amendment received a favorable vote on the motion for the previous question, then he would support the amendment 'on final passage.' 113 Cong.Rec. 5031. Congressman Gubser was even more explicit:
'I shall vote against the previous question on the Curtis amendment simply because I believe future and perfecting amendments should be allowed. But if the previous question is ordered, then I will be placed on the horns of an impossible dilemma.
'Mr. Speaker, I want to expel Adam Clayton Powell, by seating him first, but that will not be my choice when the Curtis amendment is before us. I will be forced to vote for exclusion, about which I have great constitutional doubts, or to vote for no punishment at all. Given this raw and isolated issue, the only alternative I can follow is to vote for the Curtis amendment. I shall do so, Mr. Speaker, with great reservation.' Ibid.
33
Although each judge of the panel wrote a separate opinion, all were clear in stating that the District Court possessed subject matter jurisdiction. Powell v. McCormack, 129 U.S.App.D.C. 354, 368, 384, 385, 395 F.2d 577, 591, 607, 608 (1968).
34
We have determined that the case is not moot. See Part II, supra.
35
Indeed, the thrust f respondents' argument on this jurisdictional issue is similar to their contentions that this case presents a nonjusticiable 'political question.' They urge that it would have been 'unthinkable' to the Framers of the Constitution for courts to review the decision of a legislature to exclude a member. However, we have previously determined that a claim alleging that a legislature has abridged an individual's constitutional rights by refusing to seat an elected representative constitutes a 'case or controversy' over which federal courts have jurisdiction. See Bond v. Floyd, 385 U.S. 116, 131, 87 S.Ct. 339, 347, 17 L.Ed.2d 235 (1966). To the extent the expectations of the Framers are discernible and relevant to this case, they must therefore relate to the special problem of review by federal courts of actions of the federal legislature. This is of course a problem of separation of powers and is to be considered in determining justiciability. See Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706 (1962).
36
Brief for Respondents 39.
37
Petitioners' complaint is predicated, inter alia, on several sections of Article I, Article III, and several amendments to the Constitution. Respondents do not challenge the substantiality of these claims.
38
Act of May 31, 1870, § 23, 16 Stat. 146. The statute is now 28 U.S.C. § 1344.
39
See Cong.Globe, 41st Cong., 2d Sess., 3872 (1870).
40
Respondents rely on Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867 (1929). Barry involved the power of the Senate to issue an arrest warrant to summon a witness to give testimony concerning a senatorial election. The Court ruled that issuance o the warrant was constitutional, relying on the power of the Senate under Art. I, § 5, to be the judge of the elections of its members. Respondents particularly rely on language the Court used in discussing the power conferred by Art. I, § 5. The Court noted that under § 5 the Senate could 'render a judgment which is beyond the authority of any other tribunal to review.' Id., at 613, 49 S.Ct. at 455.
Barry provides no support for respondents' argument that this case is not justiciable, however. First, in Barry the Court reached the merits of the controversy, thus indicating that actions allegedly taken pursuant to Art. I, § 5, are not automatically immune from judicial review. Second, the quoted statement is dictum; and, later in the same opinion, the Court noted that the Senate may exercise its power subject 'to the restraints imposed by or found in the implications of the Constitution.' Id., at 614, 49 S.Ct. at 455. Third, of course, the statement in Barry leaves open the particular question that must first be resolved in this case: the existence and scope of the textual commitment to the House to judge the qualifications of members.
41
In addition to the three qualifications set forth in Art. I, § 2, Art. I, § 3, cl. 7, authorizes the disqualification of any person convicted in an impeachment proceeding from 'any Office of honor, Trust or Profit under the United States'; Art. I, § 6, cl. 2, provides that 'no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office'; and § 3 of the 14th Amendment disqualifies any person 'who, having previously taken an oath * * * to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.' It has been argued that each of these provisions, as well as the Guarantee Clause of Article IV and the oath requirement of Art. VI, cl. 3, is no less a 'qualification' within the meaning of Art. I, § 5, than those set forth in Art. I, § 2. Dionisopoulos, A Commentary on the Constitutional Issues in the Powell and Related Cases, 17 J.Pub.L. 103, 111—115 (1968). We need not reach this question, however, since both sides agree that Powell was not ineligible under any of these provisions.
42
Consistent with this interpretation, federal courts might still be barred by the political question doctrine from reviewing the House's factual determination that a member did not meet one of the standing qualifications. This is an issue not presente in this case and we express no view as to its resolution.
43
Indeed, the force of respondents' other arguments that this case presents a political question depends in great measure on the resolution of the textual commitment question. See Part VI, B(2), infra.
44
Since Art. I, § 5, cl. 1, applies to both Houses of Congress, the scope of the Senate's power to judge the qualifications of its members necessarily is identical to the scope of the House's power, with the exception, of course, that Art. I, § 3, cl. 3, establishes different age and citizenship requirements for membership in the Senate.
45
Since the reign of Henry IV (1399—1413), no clergyman had sat in the House of Commons. 1 E. Porritt, The Unreformed House of Commons 125 (1963).
46
Because the British do not have a written constitution, standing incapacities or disqualifications for membership in Parliament are derived from 'the custom and law of parliament.' 1 W. Blackstone's Commentaries *162; see id., at *175. The groups thus disqualified as of 1770 included aliens; minors; judges who sat in the House of Lords; clergy who were represented in their own convocation; persons 'attainted of treason or felony'; sheriffs, mayors, and bailiffs as representatives for their own jurisdictions; and certain taxing officials and officers of the Crown. Id., at *175—176. Not until the exclusion of John Wilkes, discussed infra, did Blackstone subscribe to the theory that, in addition, the Commons could declare ineligible an individual 'in particular (unspecified) circumstances * * * for that parliament' if it deemed him unfit to serve on grounds not encompassed by the recognized standing incapacities. As we explain, infra, this position was subsequently repudiated by the House in 1782. A Clerk of the House of Commons later referred to cases in which this theory was relied upon 'as examples of an excess of * * * jurisdiction by the Commons; for one house of Parliament cannot create a disability unknown to the law.' T. May's Parliamentary Practice 67 (13th ed. T. Webster 1924).
47
In 1619, the Virginia House of Burgesses challenged the eligibility of certain delegates on the ground that they did not hold their plantations under proper patents from the Virginia Company in England. See generally 7 The Federal and State Constitutions, Colonia Charters, and Other Organic Laws 3783—3810 (F. Thorpe ed. 1909) (hereinafter cited as Thorpe). One of them, a Captain Warde, was admitted on condition that he obtain the necessary patent. The others, representatives from Martin's Brandon plantation, were excluded on the ground that the owner of the plantation had claimed that his patent exempted him from the colony's laws. See Journals of the House of Burgesses of Virginia: 1619—1658/59, pp. 4—5 (1915); M. Clarke, Parliamentary Privilege in the American Colonies 133—134 (1943). The questions presented by these two cases, therefore, seem to be jurisdictional in nature; that is, an attempt was made to gain representation for plantations over which the assembly may have had no power to act. Thus viewed these cases are analogous to the exclusions for failure to comply with standing qualifications. They certainly are not precedents which support the view that a legislative body could exclude members for mere character defects or prior misconduct disapproved by the assembly. See generally Clarke, supra, at 132—204; J. Greene, The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies: 1689—1776, pp. 171—204 (1963).
48
For example, in 1585 the Commonse xpelled a Doctor Parry for unspecified misbehavior. A Compleat Journal of the Votes, Speeches and Debates of the House of Lords and House of Commons Throughout the Whole Reign of Queen Elizabeth, of Glorious Memory 352 (S. D'Ewes ed. 1708); and in 1628 Sir Edmund Sawyer was expelled because he had sought to induce a witness to suppress evidence against Sir Edmund in testimony before the House. 1 H.C.Jour. 917.
49
In expelling Sir Edmund Sawyer in 1628, the Commons declared 'him to be unworthy ever to serve as a Member of this House.' Ibid. Almost identical language was used in the expulsion of H. Benson in 1941. 2 id., at 301. But by 1642, the formula had been changed to 'disabled to serve any longer in this Parliament as a Member of this House. * * *' Id., at 703. (Emphasis added.) By the 18th century it was apparently well established that an expulsion by the House of Commons could last no longer than the duration of the Parliament from which the member was expelled. See 1 W. Blackstone's Commentaries *176.
50
For example, in 1652, the Virginia House of Burgesses expelled two members for prior conduct disapproved by the assembly, Journals of the House of Burgesses, supra, at 85; and in 1683, Rhode Island expelled a member 'from acting in this present Assembly' for refusing to answer a court summons. 1 S. Arnold, History of the State of Rhode Island and Providence Plantations 289 (1859). See generally Clarke, supra, at 173—204.
51
In 1726, the Massachusetts House of Representatives excluded Gershom Woodle, who had been expelled on three previous occasions as 'unworthy to be a Member.' 7 Journals of the House of Representatives of Massachusetts 1726—1727, pp. 4—5, 15, 68—69 (1926). In 1758, North Carolina expelled Francis Brown for perjury. He was re-elected twice in 1760 and excluded on both occasions; however, when he was elected at the 1761 general elections, he was allowed to take his seat. 5 Colonial Records of North Carolina 1057—1058 (1887); 6 id., at 374, 474, 662—663, 672 673 (1888). There may have been similar exclusions of two men elected in 1710 to the New Jersey Assembly. See Clarke, supra, at 197—198.
52
Significantly, the occasional assumption of this broader expulsion power did not go unchallenged, Clarke, supra, at 196 202; and it was not supported by the only parliamentary precedent, the Walpole case.
53
Pursuant to a general warrant, Wilkes was arrested, his home ransacked, and his private papers seized. In his later election campaigns, Wilkes denounced the use of general warrants, asserting that he was fighting for liberty itself. See 11 L. Gipson, the British Empire Before the American Revolution 213—214 (1965).
54
The issue before the Commons was clear: Could the Commons 'put in any disqualification, that is not put in by the law of the land.' 1 H. Cavendish's Debates 384 (J. Wright ed. 1841). The affirmative answer was somewhat less than resounding. After Wilkes' third re-election, the motion to seat his opponent carried 197 to 143.
55
The validity of the House's action against Wilkes rested to a large extent on the validity of the Walpole precedent. Taswell-Langmead's, supra, at 585. Thus, the House of Commons resolution expunging, as subversive to the rights of the whole electorate, the action taken against Wilkes was also a tacit repudiation of the similar action taken against Walpole in 1712.
56
English law is apparently the same today. See T. May's Parliamentary Practice 105—108 (17th ed. B. Cocks 1964).
57
The Council of Censors was established by the 1776 Pennsylvania Constitution. It was an elected body that was specifically charged with the duty 'to enquire whether the constitution has been preserved inviolate in every part; and whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are intitled to by the constitution.' Pa.Const. of 1776, § 47, 5 Thorpe 3091. See Pennsylvania Convention Proceedings: 1776 and 1790, Introduction, iv (1825).
58
In discussing the case, respondents characterize the earlier action as an exclusion. The Council of Censors, however, stated that the
general assembly had resolved that the member 'is expelled from his seat.' Pennsylvania Convention Procedings, supra, at 89. The account of the dissenting committee members suggests that the term expulsion was properly used. They note that in February 1783 the assembly received a letter from the Comptroller General charging the assemblyman with fraud. Not until September 9, 1783, did the assembly vote to expel him. Presumably, he held his seat until that time. But, even if he had been excluded, arguably he was excluded for not meeting a standing incapacity, since the Pennsylvania Constitution of 1776 required assemblymen to be 'most noted for wisdom and virtue.' Pa.Const. of 1776, § 7, 5 Thorpe 3084. (Emphasis added.) In fact, the dissenting members of the Committee argued that the expelled member was ineligible under this very provision. Pennsylvania Convention Proceedings, supra, at 89.
Respondents cite one other exclusion during the period between the Declaration of Independence and the Constitutional Convention 11 years later. In 1780 the Virginia Assembly excluded John Breckenridge because he was a minor. Minority, of course, was a traditional standing incapacity, and Charles been cr rect in concluding that this exclusion been correct in concluding that this exlcusion was probably based upon an interpretation of the state constitutional requirement that members must be duly qualified according to law. Va.Const., 7 Thorpe 3816. See C. Warren, The Making of the Constitution 423, n. 1 (1928). Respondents, based upon their misinterpretation of the Pennsylvania case just discussed, criticize Charles Warren for concluding that there had been only one exclusion during this period. Our research, however, has disclosed no other cases.
59
Wilkes had established a reputation both in England and the Colonies as a champion of free elections, freedom from arbitrary
arrest and seizure, and freedom of the press. See 11 Gipson, supra, at 191—222.
60
See R. Postgate, That Devil Wilkes 171—172, 173—174 (1929). During the House of Commons debates in 1781, a member remarked that expelling Wilkes had been 'one of the great causes which had separated * * * (England) from America.' 22 Parl.Hist.Eng. 100—101 (1781).
The writings of the pamphleteer 'Junius'
The writings of the pamphleteer 'Junius' were widely reprinted in colonial newspapers and lent considerable support to the revolutionary cause. See 3 Dictionary of American History 190 (1940). Letter XVIII of the 'Letters of Junius' bitterly attacked the exclusion of Wilkes. This letter, addressed to Blackstone, asserted:
'You cannot but know, sir, that what was Mr. Wilkes's case yesterday may be yours or mine to-morrow, and that, consequently the common right of every subject of the realm is invaded by it. * * * If the expulsion of a member, not under any legal disability, of itself creates in him an incapacity to be elected, I see a ready way marked out, by which the majority may, at any time, remove the honestest and ablest men who happen to be in opposition to them. To say that they will not make this extravagant use of their power would be a language unfit for a man so learned in the laws as you are. By your doctrine, sir, they have the power: and laws, you know, are intended to guard against what men may do, not to trust to what they will do.' 1 Letters of Junius, Letter XVIII, p. 118 (1821).
61
See Warren, supra, at 399—426.
62
Dickinson also said that a built-in veneration for wealth would be inconsistent with the republican ideal that merit alone should determine who holds the public trust. 2 Farrand 123.
63
On August 10, a delegate moved to reconsider the citizenship qualification. The delegate proposed to substitute a three-year requirement for the seven-year requirement already agreed upon. The motion passed. Id., at 251. However, when this proposal was considered on August 13, it was rejected. Id., at 265 266.
infra.
64
Charles Pinckney proposed that the President, judges, and legislators of the United States be required to swear that they possessed a specified amount of unincumbered property. Benjamin Franklin expressed his strong opposition, observing that '(s)ome of the greatest rogues he was ever acquainted with, were the richest rogues.' Id., at 249. He voiced the fear that a property requirement would 'discourage the common people from removing to this Country.' Ibid. Thereafter, 'the Motion of Mr. Pinkney (sic) was rejected Motion of Mr. Pinkney (sic) was rejected by so general a no, that the States were not called.' Ibid. (Emphasis in original.)
65
'That the right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution. * * * That the law of the land had regulated the qualifications of members to serve in parliament, and that the freeholders * * * had an indisputable right to return whom they thought proper, provided he was not disqualified by any of those known laws. * * * They are not occasional but fixed: to rule and govern the question as it shall arise; not to start up on a sudden, and shift from side to side, as the caprice of the day or the fluctuation of party shall direct.' 16 Parl.Hist.Eng. 589—590 (1769).
66
Id., at 589.
67
Wilkes had made essentially the same argument in one of his early attempts to have the resolutions denying him a seat expunged:
'This usurpation, if acquiesced under, would be attended with the most alarming consequences. If you can reject those disagreeable to a majority, and expel whom you please, the House of Commons will be self-created and self-existing. You may expel til you approve, and thus in effect you nominate. The original idea of this House being the representative of the Commons of the realm will be lost.' 18 Parl.Hist.Eng. 367 (1775).
68
Charles Warren concluded that 'Madison's reference was undoubtedly to the famous election case of John Wilkes * * *.' Warren, supra, at 420, n. 1. It is also possible, however, that he was referring to the Parliamentary Test Act, 30 Car. 2, Stat. 2, c. 1 (1678), which had excluded Catholics as a group from serving in Parliament.
69
Charles Warren, upon whose interpretation of these events petitioners rely, concluded that the Convention's decision to reject Gouverneur Morris' proposal and the more limited proposal of the Committee of Detail was an implicit adoption of Madison's position that the qualifications of the elected 'were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution.' 2 Farrand 249—250. See Warren, supra, at 420—421. Certainly, Warren argued, '(s)uch action would seem to make it clear that the Convention did not intend to grant to a single branch of Congress * * * the right to establish any qualifications for its members, other than those qualifications established by the Constitution itself * * *. For certainly it did not intend that a single branch of Congress should possess a power which the Convention had expressly refused to vest in the whole Congress.' Id., at 421. See 1 J. Story, Commentaries on the Constitution of the United States § 625, at 445 (1873). Although Professor Chafee argued that congressional precedents do not support this construction, he nevertheless stated that forbidding any additions to the qualifications expressed in the Constitution was 'the soundest policy.' Z. Chafee, Free Speech in the United States 256 (1941).
70
See 10 W. Holdsworth, A History of English Law 540—542 (1938).
71
Holdsworth notes that in the first edition of Blackstone's Commentaries Blackstone enumerated various incapacities and h en concluded that 'subject to these standing restrictions and disqualifications, every subject of the realm is eligible (for membership in the House of Commons) of common right.' 1 W. Blackstone's Commentaries *176. Blackstone was called upon in Commons to defend Wilkes' exclusion and the passage was quoted against him. Blackstone retaliated by writing a pamphlet and making two additions to later editions of his Commentaries in an effort to justify the decision of Parliament. Holdsworth, supra, at 540—541.
72
Appendix D to Brief for Respondents 52.
73
Warren, supra, at 422, n. 1. Charles Warren buttressed his conclusion by noting that the Massachusetts Constitution of 1780 'contained affirmative qualifications for Representatives and exactly similar negative qualifications for Senators.' Ibid. Apparently, these provisions were not considered substantively different, for each house was empowered in identical language to 'judge of the elections, returns and qualifications of their own members, as pointed out in the constitution.' Mass.Const., pt. 2, c. I, § 2, Art. IV, 3 Thorpe 1897, and § 3, Art. X, 3 Thorpe 1899. (Emphasis added.) See Warren, supra, at 422—423, n. 1.
74
In No. 52 of The Federalist, Madison stated:
'The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. (He then enumerated the qualifications for both representatives and Senators.) * * * Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession or religious faith.' The Federalist Papers 326 (Mentor ed. 1961).
75
Respondents dismiss Madison's assertion that the 'qualifications of the elected, * * * being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention,' as nothing more than a refutation of the charge that the new national legislature would be free to establish additional 'standing incapacities.' However, this conclusion cannot be reconciled with the pre-Convention history on this question, the Convention debates themselves, and, in particular, the delegates' decision to require a two-thirds vote for expulsion.
76
At the same convention, Robert Livingston, one of the new Constitution's most ardent supporters and one of the State's most substantial landowners, endorsed this same fundamental principle: 'The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights.' 2 Elliot's Debates 292—293.
77
Appendix D to Brief for Respondents 62.
78
In 1797, during the 5th Congress, 1st Session, the House considered expelling Matthew Lyon, a Republican, for sedition. The vote to expel, however, was 49 to 45, and broke down largely along partisan lines. Althu gh Lyon's opponents, the Federalists, retained a majority in the 6th Congress, to which Lyon was reelected, and although there were political advantages to be gained from trying to prevent him from taking his seat, there was no effort made to exclude him. See Dionisopoulos, A Commentary on the Constitutional Issues in the Powell and Related Cases, 17 J.Pub.L. 103, 123—127 (1968).
79
Another Maryland representative was unsuccessfully challenged in 1808 on grounds almost identical to those asserted in the challenge of McCreery. See 18 Annals of Cong. 1848—1849 (1808). In 1844, the Senate declined to exclude John M. Niles, who was accused of being mentally incompetent, after a special committee reported him competent. Cong. Globe, 28th Cong., 1st Sess., 564—565, 602 (1844). In 1856, the House rejected an attempt to exclude Samuel Marshall for violating an Illinois law prohibiting state judges from running for other offices. 1 Hinds § 415. That same year, the Senate refused to exclude Lyman Trum-bull for violating the same Illinois law. Ibid.
80
Between 1862 and 1867, both the House and Senate resisted several attempts to exclude members-elect who were accused of being disloyal to the Union during the Civil War. See, id., §§ 448, 455, 458; Senate Election, Expulsion and Censure Cases, S.Doc.No.71, 87th Cong., 2d Sess., 21 (1962) (hereinafter cited as Senate Cases).
81
That same year the Senate also excluded a supporter of the Confederacy. Senate Cases 40. The House excluded two others shortly thereafter, one for the same offense, and another for selling appointments to the Military and Naval Academies. See 1 Hinds §§ 459, 464; 2 Hinds § 1273.
82
This departure from previous House construction of its power to exclude was emphasized by Congressman William P. Fessenden: '(T)he power which we have under the Constitution to judge of the qualifications of members of the body is not a mere arbitrary power, to be exerted according to the will of the individuals who may vote upon the subject. It ought to be a power subject to certain rules and founded upon certain principles. So it was up to a very late period, until the rebellion. The rule simply was, if a man came here and presented proper credentials from his State, to allow him to take the ordinary oath, which we all took, to support the Constitution, and be admitted, and if there was any objection to him to try that question afterward.' Cong. Globe, 40th Cong., 2d Sess., 685 (1868).
83
For example, in 1870, the House refused to exclude a Texas Congressman accused of a variety of criminal acts, 1 Hinds § 465; but in 1882 and again in 1900 the House excluded a member-elect for practicing polygamy. 1 Hinds §§ 473, 477—480. Thereafter, it apparently did not consider excluding anyone until shortly after World War I, when it twice excluded Victor L. Berger, an avowed Socialist, for giving aid and comfort to the enemy. Significantly, the House committee investigating Berger concluded that he was ineligible under the express provision of § 3 of the Fourteenth Amendment. 6 C. Cannon, Precedents of the House of Representatives of the United States §§ 56—59 (1935) (hereinafter cited as Cannon). Berger, the last person to be excluded from the House prior to Powell, was later re-elected and finally admitted after his criminal conviction was reversed. 65 Cong.Rec. 7 (1923).
The House next considered the problem in 1925 when it contemplated excluding John W. Langley for his alleged misconduct. Langley resigned after losing a criminal appeal, and the House therefore never voted upon the question. 6 Cannon § 238. The most recent exclusion attempt prior to Powell's occurred in 1933, when the House refused to exclude a Representative from Minnesota who had been convicted of sending defamatory matter through the mail. See 77 Cong.Rec. 73—74, 131—139 (1933).
The Senate has not excluded anyone since 1929; in that year it refused to seat a member-elect because of improper campaign expenditures. 6 Cannon § 180. In 1947, a concerted effort was made to exclude Senator Theodore G. Bilbo of Mississippi for allegedly accp ting gifts from war contractors and illegally intimidating Negroes in Democratic primaries. See 93 Cong.Rec. 3—28 (1947). He died, however, before a decision was reached.
84
During the debates over H.R.Res.No. 278, Congressman Celler, chairman of both the Select Committee and the Judiciary Committee, forcefully insisted that the Constitution 'unalterably fixes and defines' the qualifications for membership in the House and that any other construction of Art. I, § 5, would be 'improper and dangerous.' 113 Cong.Rec. 4998. See H.R.Rep.No. 484, 43d Cong., 1st Sess., 11—15 (1874) (views of minority); H.R.Rep.No. 85, 56th Cong., 1st Sess., 56—77 (1900) (views of minority). In the latter report, the dissenters argued: 'A small partisan majority might render the desire to arbitrarily exclude, by a majority vote, in order to more securely intrench itself in power, irresistible. Hence its exercise is controlled by legal rules. In case of expulsion, when the requisite two-thirds can be had, the motive for the exercise of arbitrary power no longer exists, as a two-thirds partisan majority is sufficient for every purpose. * * * The power of exclusion is a matter of law, to be exercised by a majority vote, in accordance with legal principles, and exists only where a member-elect lacks some of the qualifications required by the Constitution.' Id., at 76—77.
85
'Determining the basis for a congressional action is itself difficult; since a congressional action, unlike a reported judicial decision, contains no statement of the reasons for the disposition, one must fall back on the debates and the committee reports. If more than one issue is raised in the debates, one can never be sure on what basis the action was predicated. Unlike a court, which is presumed to be disinterested, in an exclusion case the concerned house is in effect a party to the controversy that it must adjudicate. Consequently, some members may be inclined to vote for exclusion though they strongly doubt its constitutionality.' 81 Harv.L.Rev., at 679.
86
In fact, the Court has noted that it is an 'inadmissible suggestion' that action might be taken in disregard of a judicial determination. McPherson v. Blacker, 146 U.S. 1, 24, 13 S.Ct. 3, 6, 36 L.Ed.2d 869 (1892).
1
U.S.Const., Art. I, § 2, cl. 2:
'No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.'
2
The Constitutional Convention had the occasion to consider several proposals for giving Congress discretion to shape its own qualifications for office and explicitly rejected them. James Madison led the opposition by arguing that such discretion would be
'an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution.' 2 M. Farrand, Records of the Federal Convention of 1787, pp. 249—250 (1911). Alexander Hamilton echoed that same conclusion:
'The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.' The Federalist Papers, No. 60, p. 371 (Mentor ed. 1961).
And so, too, the early Congress of 1807 decided to seat Representative-elect William McCreery on the ground that its power to 'judge' was limited by the enumerated qualifications.
'The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed b an authority equal to that which framed the Constitution at first * * *. Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only.' 17 Annals of Cong. 872 (1807) (remarks of Rep. Findley, Chairman of House Committee of Elections).
Constitutional scholars of two centuries have reaffirmed the principle that congressional power to 'judge' the qualifications of its members is limited to those enumerated in the Constitution. 1 J. Story, Commentaries on the Constitution 462 (5th ed. 1891); C. Warren, The Making of the Constitution 420—426 (1928). See also remarks by Emmanuel Celler, Chairman of the House Select Committee which inquired into the qualifications of Adam Clayton Powell, Jr., and which recommended seating him: 'The Constitution lays down three qualifications for one to enter Congress—age, inhabitancy, citizenship. Mr. Powell satisfies all three. The House cannot add to these qualifications.' 113 Cong.Rec. 4998.
3
Baker v. Carr, 369 U.S. 186, 242, 82 S.Ct. 691, 723, 7 L.Ed.2d 663, n. 2 (Douglas, J., concurring.)
4
The question whether Congress has authority under the Constitution to add to enumerated qualifications for office is itself a federal question within the particular expertise of this Court. Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706. Where that authority has been exceeded, redress may be properly sought here. Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60. Congress itself suspected no less in deciding to exclude Rep. Powell:
'(C)ases may readily be postulated where the action of a House in excluding or expelling a Member may directly impinge upon rights under other provisions of the Constitution. In such cases, the unavailability of judicial review may be less certain. Suppose, for example, that a Member was excluded or expelled because of his religion or race, contrary to the equal protection clause, or for making an unpopular speech protected by the first amendment * * *. (E) xclusion of the member-elect on grounds other than age, citizenship, or inhabitancy could raise an equally serious constitutional issue.' H.R.Rep.No.27, 90th Cong., 1st Sess., 30 (1967).
See also 113 Cong.Rec. 4994.
5
Case of Victor Berger, 6 C. Cannon, Precedents of the House of Representatives of the United States § 56 (1935).
6
Id., at § 122.
7
See, .e.g., Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235.
8
1 A. Hinds, Precedents of the House of Representatives of the United States § 481 (1907).
9
113 Cong.Rec. 4997.
10
S.Doc. No. 71 on Senate Election, Expulsion and Censure Cases from 1789 to 1960, 87th Cong., 2d Sess., 140 (1962).
11
Hearings on A Protest to the Seating of William Langer, before the Senate Committee on Privileges and Elections, 77th Cong., 1st Sess., 820 (Nov. 3, 18, 1941) (hereinafter Hearings).
12
Hearings 821.
13
Hearings 820.
14
87 Cong.Rec. 3—4 (1941).
15
S.Rep.No.1010, 77th Cong., 2d Sess. (1942).
16
It was alleged that he had conspired as Governor to have municipal and county bonds sold to a friend of his who made a profit of $300,000 on the purchase, and purportedly rebated as much as $56,000 to Langer himself. Hearings 822—823.
17
At the retrial of his conviction for conspiring to interfere with the enforcement of federal law, he was said to have paid money to have a friend of his, Judge Wyman, be given control of the litigation, and to have 'meddled' with the jury. Hearings 20—42, 120—130.
18
He was charged as a lawyer with having accepted $2,000 from the mother of a boy in prison on the promise that he would obtain his pardon, when he knew, in fact, that a pardon was out of the question. He was also said to have counseled a defendant-client of his to marry the prosecution's chief witness in order to prevent her from testifying against him. And finally, it was suggested that he once bought an insurance policy during trial from one of the jurors sittn g in judgment of his client. Hearings 820—830.
19
87 Cong.Rec. 3—4, 34, 460 (1941); 88 Cong.Rec. 822, 828, 1253, 2077, 2165, 2239, 2328, 2382, 2412, 2472, 2564, 2630, 2699, 2759, 2791, 2801, 2842, 2858, 2914, 2917, 2959, 2972, 2989, 3038, 3051, 3065, 5668 (1942).
20
88 Cong.Rec. 2401.
21
Ibid.
22
88 Cong.Rec. 2474.
23
Ibid.
24
Ibid.
25
88 Cong.Rec. 2483.
26
88 Cong.Rec. 2484.
27
Although the House excluded Adam Clayton Powell by over two-thirds vote, it was operating on the assumption that only a majority was needed. For the suggestion that the House could never have rallied the votes to exclude Powell on the basis of a two-thirds ground rule, see Note, 14 How.L.J. 162 (1968); Note, 42 N.Y.U.L.Rev. 716 (1967).
28
88 Cong.Rec. 2488.
29
88 Cong.Rec. 2490.
30
88 Cong.Rec. 2488. Senator Knox of Pennsylvania had defended Senator-elect Reed Smoot of Utah in 1903 against charges that he ought to be excluded because of his affiliation with a group (Mormons) that countenanced polygamy. S.Doc.No.71, 87th Cong., 2d Sess., 97.
1
See e.g., United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 202—204, 89 S.Ct. 361, 363—364, 21 L.Ed.2d 344; Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178—179, 89 S.Ct. 347, 350—351, 21 L.Ed.2d 325.
2
See Gojack v. United States, 384 U.S. 702, 707, 86 S.Ct. 1689, 1693, 16 L.Ed.2d 870, n. 4 ('Neither the House of Representatives nor its committees are continuing bodies'); McGrain v. Daugherty, 273 U.S. 135, 181, 47 S.Ct. 319, 331, 71 L.Ed. 580. Forty-one of the present members of the House were not members of the 90th Congress; and two of the named defendants in this action, Messrs. Moore and Curtis, are no longer members of the House of Representatives. Moreover, the officer-employees of the House, such as the Sergeant at Arms, are re-elected by each new Congress. See n. 15, infra.
3
See also United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303; United States v. Aluminum Co. of America, 148 F.2d 416, 448. The Court has only recently concluded that there was no 'controversy' in Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113, because of 'the fact that it was most unlikely that the Congressman would again be a candidate for Congress.' Id., at 109, 89 S.Ct., at 960. It can hardly be maintained that the likelihood of the House of Representatives' again excluding Powell is any greater.
4
See also United States v. W. T. Grant Co., 345 U.S. 629, 632—633, 73 S.Ct. 894, 897; Local 74, United Brotherhood of Carpenters & Joiners v. NLRB, 341 U.S. 707, 715, 71 S.Ct. 966, 970, 95 L.Ed. 1309; Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43, 65 S.Ct. 11, 14, 89 L.Ed. 29; Hecht Co. v. Bowles, 321 U.S. 321, 327, 64 S.Ct. 587, 88 L.Ed. 754; United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 307—310, 17 S.Ct. 540, 546—547, 41 L.Ed. 1007.
5
With the exception of Gray, the 'continuing controversy' cases relied on by the petitioners were actions by the Government or its agencies to halt illegal conduct of the defendants, and, by example, of others engaged in similar conduct. See cases cited, supra, nn. 1, 3, 4. The principle that voluntary abandonment of an illegal practice will not make an action moot is especially, if not exclusively, applicable to such public law enforcement suits.
'Private parties may settle their controversies at any time, and rights which a plaintiff may have had at the time of the commencement of the action may terminate before judgment is obtained or while the case is on appeal, and in any such case the court, being informed of the facts, will proceed no further in the action. Here, however, there has been no extinguishment of the rights * * * of the public, the enforcement of which the government has endeavored to procure by a judgment of a court * * *. The defendants cannot foreclose those rights nor prevent the assertion thereof by the government as a substantial trustee for the public under the act of congress, by (voluntary cessation of the challenged conduct).' United States v. Trans-Missouri Freight Assn., 166 U.S., at 309, 17 S.Ct., at 546.
The considerations of public enforcement of a statutory or regulatory scheme which inhere in those cases are not present in this litigation.
6
Certainly in every decision relied on by the petitioners the Court did not reject the mootness argument solely on the ground that the illegal practice had been voluntarily terminated. In each it proceeded to determine that there was in fact a continuing controversy.
7
House Resolution No. 2 provided in pertinent part:
'(2) That as punishment Adam Clayton Powell be and he hereby is fined the sum of $25,000, said sum to be pai to the Clerk to be disposed of by him according to law. The Sergeant at Arms of the House is directed to deduct $1,150 per month from the salary otherwise due the said Adam Clayton Powell, and pay the same to said Clerk until said $25,000 fine is fully paid.
'(3) That as further punishment the seniority of the said Adam Clayton Powell in the House of Representatives commence as of the date he takes the oath as a Member of the 91st Congress.'
The petitioners' argument that the case is kept alive by Powell's loss of seniority, see ante, at 496, is founded on the mistaken assumption that the loss of seniority is attributable to the exclusion from the 90th Congress and that seniority would automatically be restored if that exclusion were declared unconstitutional. But the fact is that Powell was stripped of seniority by the action of the 91st Congress, action which is not involved in this case and which would not be affected by judicial review of the exclusion from the 90th Congress. Moreover, even if the conduct of the 91st Congress were challenged in this case, the Court would clearly have no power whatsoever to pass upon the propriety of such internal affairs of the House of Representatives.
8
Article I, § 5, of the Constitution specifically empowers each House to 'punish its Members for disorderly Behaviour.'
9
The salary claim is personal to Congressman Powell, and the other petitioners therefore clearly have no further interest in this lawsuit.
10
The Philippines Senate was composed of 24 Senators, 22 of whom were elected, and two of whom were appointed by the Governor General. Alejandrino was one of the two appointees. See 271 U.S., at 531—532, 46 S.Ct., at 601.
11
Under the Philippine Autonomy Act, 39 Stat. 545, this Court had jurisdiction to examine by writ of error the final judgments and decrees of the Supreme Court of the Philippine Islands in cases under the Constitution or statutes of the United States. A subsequent statute substituted the writ of certiorari. 39 Stat. 726.
12
'Section 18 (of the Autonomy Act) provides that the Senate and House respectively shall be the sole judges of the elections, returns and qualifications of their elective members, and each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds expel an elective member. The Senators and Representatives shall receive an annual compensation for their services to be ascertained by law and paid out of the treasury of the Philippine Islands. Senators and Representatives shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses and in going to and returning from the same; and for any speech or debate in either house they shall not be questioned in any other place.' 271 U.S., at 532, 46 S.Ct., at 601.
13
The petitioners rely on the following passage from Bond v. Floyd, 385 U.S. 116, 128, 87 S.Ct. 339, 345, 17 L.Ed.2d 235, n. 4, as dispositive of their contention that the salary claim prevents this case from being moot:
'A question was raised in oral argument as to whether this case might not be moot since the session of the House which excluded
Bond was no longer in existence. The State has not pressed this argument, and it could not do so, because the State has stipulated that if Bond succeeds on this appeal he will receive back salary for the term from which he was excluded.'
I do not believe that this offhand dictum in Bond is determinative of the issue of mootness in this case. In the first place, as the Court in Bond noted, it was not there contended by any party that the case was moot. Moreover, contrary to the implication of the statement, the legislative term from which Bond was excluded had not ended at the time of the Court's decision. (The Court's decision was announced on December 5, 1966; Bond's term of office expired on December 31, 1966.) In any event, he had not been seated in a subsequent term, so the continuing controversy had not been rendered clearly moot by any action of the Georgia House, as it has here by the House of Representatives of the 91st Congress. No one suggested in Bond that the money claim was the only issue left in the case. Furthermore, the considerations which governed the Court's decision in Alejandrino were simply not present in Bond. Because of the State's stipulation, there was no doubt, as there is here, see infra, at 570-571, that the Court's decision would lead to effective relief with respect to Bond's salary claim. And finally, there was no suggestion that Bond had an alternative remedy, as Powell has here, see infra, at 571—572, by which he could obtain full relief without requiring the Court to decide novel and delicate constitutional issues.
14
Alejandrino was the only petitioner in the case, and since he was an appointed Senator, it appears that there was no group of voters who remained without representation of their choice in the Senate during his suspension.
15
Act of Oct. 1, 1890, § 6, 26 Stat. 646, 2 U.S.C. § 83.
16
U.S.Const., Art. I, § 6; 2 U.S.C. § 47.
17
2 U.S.C. §§ 80, 78.
18
2 U.S.C. § 35.
19
2 U.S.C. § 34.
20
2 U.S.C. § 48.
21
The respondents allege without contradiction that the Sergeant at Arms does not have sufficient funds to pay Congressman Powell's back salary claims. Separate appropriations for the salaries of Congressmen are made in each fiscal year, see, e.g., 80 Stat. 354, 81 Stat. 127, 82 Stat. 398, and, according to the respondents, 'it is the custom of the Sergeant to turn back to the Treasury all unexpended funds at the end of each fiscal year.' Thus, the only funds still held by the Sergeant are said to be those appropriated for the present fiscal year commencing July 1, 1968.
22
'The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress * * *.' 28 U.S.C. § 1491. The district courts have concurrent jurisdiction over such claims only in amounts less than $10,000. 28 U.S.C. § 1346.
23
United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52. The petitioners suggest that the inability of the Court of Claims to grant such relief might make any remedy in that court inadequate. But since Powell's only remaining interest in the case is to collect his salary, a money judgment in the Court of Claims would be just as good as, and probably better than, mandatory relief against the agents of the House. The petitioners also suggest that the Court of Claims would be unable to grant relief because of the pendency of Powell's claim in another court, 28 U.S.C. § 1500, but that would, of course, constitute no obstacle if, as I suggest, the Court should order this action dismissed on grounds of mootness.
24
It is possible, for example, that the United States in such an action would not deny Powell's entitlement to the salary but would seek to offset that sum against the amounts which Powell was found by the House to have appropriated unlawfully from Government coffers to his own use.
25
Relying on Bank of Marin v. England, 385 U.S. 99, 101, 87 S.Ct. 274, 276, 17 L.Ed.2d 197, the petitioners complain that it would impose undue hardship on Powell to force him to 'start all over again' now that he has come this far in the present suit. In view of the Court's remand of this case for further proceedings with respect to Powell's remedy, it is at least doubtful that remitting him to an action in the Court of Claims would entail much more cost and delay than will be involved in the present case. And the inconvenience to litigants of further delay or litigation has never been deemed to justify departure from the sound principle, rooted in the Constitution, that important issues of constitutional law should be decided only if necessary and in cases presenting concrete and living controversies.
| 89
|
395 U.S. 621
89 S.Ct. 1886
23 L.Ed.2d 583
Morris H. KRAMER, Appellant,v.UNION FREE SCHOOL DISTRICT NO. 15 et al.
No. 258.
Argued Jan. 16, 1969.
Decided June 16, 1969.
Osmond K. Fraenkel, New York City, for appellant.
John P. Jehu, Albany, N.Y., for appellees.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
In this case we are called on to determine whether § 2012 of the New York Education Law, McKinney's Consol.Laws, c. 16, is constitutional. The legislation provides that in certain New York school districts residents who are otherwise eligible to vote in state and federal elections may vote in the school district election only if they (1) own (or lease) taxable real property within the district, or (2) are parents (or have custody of) children enrolled in the local public schools. Appellant, a bachelor who neither owns nor leases taxable real property, filed suit in federal court claiming that § 2012 denied him equal protection of the laws in violation of the Fourteenth Amendment. With one judge dissenting, a three-judge District Court dismissed appellant's complaint. Finding that § 2012 does violate the Equal Protection Clause of the Fourteenth Amendment, we reverse.
I.
2
New York law provides basically three methods of school board selection. In some large city districts, the school board is appointed by the mayor or city council. N.Y.Educ.Law §§ 2553, subds. 2, 4 (1953), as amended (Supp.1968). On the other hand, in some cities, primarily those with less than 125,000 residents, the school board is elected at general or municipal elections in which all qualified city voters may participate. N.Y.Educ.Law §§ 2502, subd. 2, 2553, subd. 3 (1953). Cf. N.Y.Educ.Law § 2531 (1953). Finally, in other districts such as the one involved in this case, which are primarily rural and suburban, the school board is elected at an annual meeting of qualified school district voters.1
3
The challenged statute is applicable only in the districts which hold annual meetings. To be eligible to vote at an annual district meeting, an otherwise qualified2 district resident must either (1) be the owner or lessee of taxable real property located in the district, (2) be the spouse of one who owns or leases qualifying property, or (3) be the parent or guardian of a child enrolled for a specified time during the preceding year in a local district school.
4
Although the New York State Department of Education has substantial responsibility for education in the State, the local school districts maintain significant control over the administration of local school district affairs.3 Generally, the board of education has the basic responsibility for local school operation, including prescribing the courses of study, determining the textbooks to be used, and even altering and equipping a former schoolhouse for use as a public library. N.Y.Educ.Law § 1709 (1953). Additionally, in districts selecting members of the board of education at annual meetings, the local voters also pass directly on other district matters. For example, they must approve the school budget submitted by the school board. N.Y.Educ.Law §§ 2021, 2022 (1953).4 Moreover, once the budget is approved, the governing body of the villages within the school district must raise the money which has been declared 'necessary for teachers' salaries and the ordinary contingent expenses (of the schools).' N.Y.Educ.Law § 1717 (1953).5 The voters also may 'authorize such acts and vote such taxes as they shall deem expedient * * * for * * * equipping for library use any former schoolhouse * * * (and) for the purchase of land and buildings for agricultural, athletic, playground or social center purposes * * *.' N.Y.Educ.Law § 416 (1953).
5
Appellant is a 31-year-old college-educated stockbroker who lives in his parents' home in the Union Free School District No. 15, a district to which § 2012 applies. He is a citizen of the United States and has voted in federal and state elections since 1959. However, since he has no children and neither owns nor leases taxable real property, appellant's attempts to register for and vote in the local school district elections have been unsuccessful. After the school district rejected his 1965 application, appellant instituted the present class action challenging the constitutionality of the voter eligibility requirements.
6
The United States District Court for the Eastern District of New York denied appellant's request (made pursuant to 28 U.S.C. § 2281) that a three-judge district court be convened, and granted appellees' motion to dismiss appellant's complaint. Kramer v. Union Free School District No. 15, 259 F.Supp. 164 (D.C.E.D.N.Y.1966). On appeal, the Court of Appeals for the Second Circuit reversed, ruling appelln t's complaint warranted convening a three-judge court. Kramer v. Union Free School District No. 15, 379 F.2d 491 (C.A.2d Cir. 1967). On remand, the three-judge court ruled that § 2012 is constitutional and dismissed appellant's complaint. 282 F.Supp. 70. Pursuant to 28 U.S.C. § 1253, appellant filed a direct appeal with this Court; we noted probable jurisdiction. 393 U.S. 818, 89 S.Ct. 117, 21 L.Ed.2d 90 (1968).
II.
7
At the outset, it is important to note what is not at issue in this case. The requirements of § 2012 that school district voters must (1) be citizens of the United States, (2) be bona fide residents of the school district, and (3) be at least 21 years of age are not challenged. Appellant agrees that the States have the power to impose reasonable citizenship, age, and residency requirements on the availability of the ballot. Cf. Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777, 13 L.Ed.2d 675 (1965); Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904). The sole issue in this case is whether the additional requirements of § 2012—requirements which prohibit some district residents who are otherwise qualified by age and citizenship from participating in district meetings and school board elections—violate the Fourteenth Amendment's command that no State shall deny persons equal protection of the laws.
8
'In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification.' Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). And, in this case, we must give the statute a close and exacting examination. '(S)ince the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.' Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964). See Williams v. Rhodes, supra, 393 U.S. at 31, 89 S.Ct. at 10; Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964). This careful examination is necessary because statutes distributing the franchise constitute the foundation of our representative society. Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government.
9
Thus, state apportionment statutes, which may dilute the effectiveness of some citizens' votes, receive close scrutiny from this Court. Reynolds v. Sims, supra. See Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). No less rigid an examination is applicable to statutes denying the franchise to citizens who are otherwise qualified by residence and age.6 Statutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives.7 Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest. See Carrington v. Rash, supra, 380 U.S., at 96, 85 S.Ct., at 780.
10
And, for these reasons, the deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials. Those decisions must be carefully scrutinized by the Court to determine whether each resident citizen has, as far as is possible, an equal voice in the selections. Accordingly, when we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a 'rational basis' for the distinctions made8 are not applicable. See Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169 (1966). The presumption of constitutionality and the approval given 'rational' classifications in other types of enactments9 are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality. And, the assumption is no less under attack because the legislature which decides who may participate at the various levels of political choice is fairly elected. Legislation which delegates decision making to bodies elected by only a portion of those eligible to vote for the legislature can cause unfair representation. Such legislation can exclude a minority of voters from any voice in the decisions just as effectively as if the decisions were made by legislators the minority had no voice in selecting.10
11
The need for exacting judicial scrutiny of statutes distributing the franchise is undiminished simply because, under a different statutory scheme, the offices subject to election might have been filled through appointment.11 States do have latitude in determining whethe certain public officials shall be selected by election or chosen by appointment and whether various questions shall be submitted to the voters. In fact, we have held that where a county school board is an administrative, not legislative, body, its members need not be elected. Sailors v. Kent County Bd. of Education, 387 U.S. 105, 108, 87 S.Ct. 1549, 1552, 18 L.Ed.2d 650 (1967). However, 'once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.' Harper v. Virginia Bd. of Elections, supra, 383 U.S., at 665, 86 S.Ct., at 1080.12
12
Nor is the need for close judicial examination affected because the district meetings and the school board do not have 'general' legislative powers. Our exacting examination is not necessitated by the subject of the election; rather, it is required because some resident citizens are permitted to participate and some are not. For example, a city charter might well provide that the elected city council appoint a mayor who would have broad administrative powers. Assuming the council were elected consistent with the commands of the Equal Protection Clause, the delegation of power to the mayor would not call for this Court's exacting review. On the other hand, if the city charter made the office of mayor subject to an election in which only some resident citizens were entitled to vote, there would be presented a situation calling for our close review.
III.
13
Besides appellant and others who similarly live in their parents' homes, the statute also disenfranchises the following persons (unless they are parents or guardians of children enrolled in the district public school): senior citizens and others living with children or relatives; clergy, military personnel, and others who live on tax-exempt property; boarders and lodgers; parents who neither own nor lease qualifying property and whose children are too young to attend school; parents who neither own nor lease qualifying property and whose children attend private schools.
14
Appellant asserts that excluding him from participation in the district elections denies him equal protection of the laws. He contends that he and others of his class are substantially interested in and significantly affected by the school meeting decisions. All members of the community have an interest in the quality and structure of public education, appellant says, and he urges that 'the decisions taken by local boards * * * may have grave consequences to the entire population.' Appellant also argues that the level of property taxation affects him, even though he does not own property, as property tax levels affect the price of goods and services in the community.
15
We turn therefore to question whether the exclusion is necessary to promote a compelling state interest. First appellees13 argue that the State has a legitimate interest in limiting the franchise in school district elections to 'members of the community of interest'—those 'primarily interested in such elections.' Second, appellees urge that the State may reasonably and permissibly conclude that 'property taxpayers' (including lessees of taxable property h o share the tax burden through rent payments) and parents of the children enrolled in the district's schools are those 'primarily interested' in school affairs.
16
We do not understand appellees to argue that the State is attempting to limit the franchise to those 'subjectively concerned' about school matters. Rather, they appear to argue that the State's legitimate interest is in restricting a voice in school matters to those 'directly affected' by such decisions. The State apparently reasons that since the schools are financed in part by local property taxes, persons whose out-of-pocket expenses are 'directly' affected by property tax changes should be allowed to vote. Similarly, parents of children in school are thought to have a 'direct' stake in school affairs and are given a vote.
17
Appellees argue that it is necessary to limit the franchise to those 'primarily interested' in school affairs because 'the ever increasing complexity of the many interacting phases of the school system and structure make it extremely difficult for the electorate fully to understand the whys and wherefores of the detailed operations of the school system.' Appellees say that many communications of school boards and school administrations are sent home to the parents through the district pupils and are 'not broadcast to the general public'; thus, nonparents will be less informed than parents. Further, appellees argue, those who are assessed for local property taxes (either directly or indirectly through rent) will have enough of an interest 'through the burden on their pocketbooks, to acquire such information as they may need.' We need express no opinion as to whether the State in some circumstances might limit the exercise of the franchise to those 'primarily interested' or 'primarily affected.' Of course, we therefore do not reach the issue of whether these particular elections are of the type in which the franchise may be so limited. For, assuming, arguendo, that New York legitimately might limit the franchise in these school district elections to those 'primarily interested in school affairs,' close scrutiny of the § 2012 classifications demonstrates that they do not accomplish this purpose with sufficient precision to justify denying appellant the franchise.
18
Whether classifications allegedly limiting the franchise to those resident citizens 'primarily interested' deny those excluded equal protection of the laws depends, inter alia, on whether all those excluded are in fact substantially less interested or affected than those the statute includes. In other words, the classifications must be tailored so that the exclusion of appellant and members of his class is necessary to achieve the articulated state goal.14 Section 2012 does not meet the exacting standard of precision we require of statutes which selectively distribute the franchise. The classifications in § 2012 permit inclusion of many persons who have, at best, a remote and indirect interest, in school affairs and, on the other hand, exclude others who have a distinct and direct interest in the school meeting decisions.15
19
Nor do appellees offer any justification for the exclusion of seemingly interested and infore d residents—other than to argue that the § 2012 classifications include those 'whom the State could understandably deem to be the most intimately interested in actions taken by the school board,' and urge that 'the task of * * * balancing the interest of the community in the maintenance of orderly school district elections against the interest of any individual in voting in such elections should clearly remain with the Legislature.'16 But the issue is not whether the legislative judgments are rational. A more exacting standard obtains. The issue is whether the § 2012 requirements do in fact sufficiently further a compelling state interest to justify denying the franchise to appellant and members of his class. The requirements of § 2012 are not sufficiently tailored to limiting the franchise to those 'primarily interested' in school affairs to justify the denial of the franchise to appellant and members of his class.
20
The judgment of the United States District Court for the Eastern District of New York is therefore reversed. The case is remanded for further proceedings consistent with this opinion.
21
It is so ordered.
APPENDIX TO OPINION OF THE COURT.
Section 2012, New York Education Law:
22
'A person shall be entitled to vote at any school meeting for the election of school district officers, and upon all other matters which may be brought before such meeting, who is: 1. A citizen of the United States.
23
'2. Twenty-one years of age.
24
'3. A resident within the district for a period of thirty days next preceding the meeting at which he offers to vote; and who in addition thereto possesses one of the following three qualifications:
25
'a. Owns or is the spouse of an owner, leases, hires, or is in the possession under a contract of purchase or is the spouse of one who leases, hires or is in possession under a contract of purchase of, real property in such district liable to taxation for school purposes, but the occupation of real property by a person as lodger or boarder shall not entitle such person to vote, or
26
'b. Is the parent of a child of school age, provided such a child shall have attended the district school in the district in which the meeting is held for a period of at least eight weeks during the year preceding such school meeting, or
27
'c. Not being the parent, has permanently residing with him a child of school age who shall have attended the district school for a period of at least eight weeks during the year preceding such meeting.
28
'No person shall be deemed to be ineligible to vote at any such meeting, by reason of sex, who has the other qualifications required by this section.'
29
Mr. Justice STEWART, with whom Mr. Justice BLACK, and Mr. Justice HARLAN join, dissenting.
30
In Lassiter v. Northampton County Election Bd., 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 this Court upheld against constitutional attack a literacy requirement, applicable to voters in all state and federal elections, imposed by the State of North Carolina. Writing for a unanimous Court, Mr. Justice Douglas said:
31
'The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised, Pope v. Williams, 193 U.S. 621, 663, 24 S.Ct. 573, 576, 48 L.Ed. 817; Mason v. Missouri, 179 U.S. 328, 335, 21 S.Ct. 125, 128, 45 L.Ed. 214, absent of course the discrimination which the Constitution condemns.' 360 U.S., at 50—51, 79 S.Ct., at 989.
32
Believing that the appellant in this case is not the victim of any 'discrimination which the Constitution condemns,' I would affirm the judgment of the District Court.
33
The issue before us may be briefly summarized. New York has provided that in certain areas of the State local authority over public schools shall reside in 'Union Free School Districts,' such as the District involved here. In such areas, the qualified voters of the i strict annually elect members of a Board of Education and determine by vote the basic fiscal policy of the school system: they adopt a budget and in effect decide the amount of school taxes that shall be imposed upon the taxable real property of the District. State and federal grants provide some additional funds for the operation of the school system, but the only method by which the District itself may raise its own revenue is through such property taxes.1
34
Three classes of persons are qualified under New York law to vote in these school elections: (1) parents or guardians of children attending public schools within the District; (2) persons who own taxable real property within the District, and their spouses; and (3) persons who lease taxable real property within the District, and their spouses.2 The appellant, a bachelor who lives with his parents and who neither owns nor leases any real property within the District, falls within none of those classes, and consequently is disqualified from voting despite the fact that he meets the general age and residence requirements imposed by state law. The question presented is whether, by virtue of that disqualification the appellant is denied the equal protection of the laws.
35
Although at times variously phrased, the traditional test of a statute's validity under the Equal Protection Clause is a familiar one: a legislative classification is invalid only 'if it rest(s) on grounds wholly irrelevant to achievement of the regulation's objectives.' Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093.3 It was under just such a test that the literacy requirement involved in Lassiter was upheld. The premise of our decision in that case was that a State may constitutionally impose upon its citizens voting requirements reasonably 'designed to promote intelligent use of the ballot.' 360 U.S., at 51, 79 S.Ct., at 990. A similar premise underlies the proposition, consistently endorsed by this Court,4 that a State may exclude nonresidents from participation in its elections. Such residence requirements, designed to help ensure that voters have a substantial stake in the outcome of elections and an opportunity to become familiar with the candidates and issues voted upon, are entirely permissible exercises of state authority. Indeed, the appellant explicitly concedes, as he must, the validity of voting requirements relating to residence, literacy, and age. Yet he argues—and the Court accepts the argument—that the voting qualifications involved here somehow have a different constitutional status. I am unable to see the distinction.
36
Clearly a State may reasonably assume that its residents have a greater stake in the outcome of elections held within it boundaries than do other persons. Likewise, it is entirely rational for a state legislature to suppose that residents, being generally better informed regarding state affairs than are nonresidents, will be more likely than nonresidents to vote responsibly. And the same may be said of legislative assumptions regarding the electoral competence of adults and literate persons on the one hand, and of minors and illiterates on the other. It is clear, of course, that lines thus drawn can not infallibly perform their intended legislative function. Just as '(i) lliterate people may be intelligent voters,'5 nonresidents or minors might also in some instances be interested, informed, and intelligent participants in the electoral process. Persons who commute across a state line to work may well have a great stake in the affairs of the State in which they are employed; some college students under 21 may be both better informed and more passionately interested in political affairs than many adults. But such discrepancies are the inevitable concomitant of the line drawing that is essential to law making. So long as the classification is rationally related to a permissible legislative end, therefore—as are residence, literacy, and age requirements imposed with respect to voting there is no denial of equal protection.
37
Thus judged, the statutory classification involved here seems to me clearly to be valid. New York has made the judgment that local educational policy is best left to those persons who have certain direct and definable interests in that policy: those who are either immediately involved as parents of school children or who, as owners or lessees of taxable property are burdened with the local cost of funding school district operations.6 True, persons outside those classes may be genuinely interested in the conduct of a school district's business—just as commuters from New Jersey may be genuinely interested in the outcome of a New York City election. But unless this Court is to claim a monopoly of wisdom regarding the sound operation of school systems in the 50 States, I see no way to justify the conclusion that the legislative classification involved here is not rationally related to a legitimate legislative purpose. 'There is no group more interested in the operation and management of the public schools than the taxpayers who support them and the parents whose children attend them.' Doremus v. Board of Educ., 342 U.S. 429, 435, 72 S.Ct. 394, 398, 96 L.Ed. 475 (Douglas, J., dissenting).
38
With good reason, the Court does not really argue the contrary. Instead, it strikes down New York's statute by asserting that the traditional equal protection standard is inapt in this case, and that a considerably stricter standard—under which classifications relating to 'the franchise' are to be subjected to 'exacting judicial scrutiny'—should be applied. But the asserted justification for applying such a standard cannot withstand analysis.
39
The Court is quite explicit in explaining why it believes this statute should be given 'close scrutiny':
40
'The presumption of constitutionality and the approval given 'rational' classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality.' (Footnote omitted.)
41
I am at a loss to understand how such reasoning is at all relevant to the present case. The voting qualifications at issue have been promulgated, not by Union Free School District No. 15, but by the New York State Legislatr e, and the appellant is of course fully able to participate in the election of representatives in that body. There is simply no claim whatever here that the state government is not 'structured so as to represent fairly all the people,' including the appellant.
42
Nor is there any other jurisdiction for imposing the Court's 'exacting' equal protection test. This case does not involve racial classifications, which in light of the genesis of the Fourteenth Amendment have traditionally been viewed as inherently 'suspect.'7 And this statute is not one that impinges upon a constitutionally protected right, and that consequently can be justified only by a 'compelling' state interest.8 For 'the Constitution of the United States does not confer the right of suffrage upon any one * * *.' Minor v. Happersett, 21 Wall. 162, 178, 22 L.Ed. 627.
43
In any event, it seems to me that under any equal protection standard, short of a doctrinaire insistence that universal suffrage is somehow mandated by the Constitution, the appellant's claim must be rejected. First of all, it must be emphasized despite the Court's undifferentiated references to what it terms 'the franchise'—that we are dealing here, not with a general election, but with a limited, special-purpose election.9 The appellant is eligible to vote in all state, local, and federal elections in which general governmental policy is determined. He is fully able, therefore, to participate not only in the processes by which the requirements for school district voting may be changed, but also in those by which the levels of state and federal financial assistance to the District are determined. He clearly is not locked into any self-perpetuating status of exclusion from the electoral process.10
44
Secondly, the appellant is of course limited to asserting his own rights, not the purported rights of hypothetical childless clergymen or parents of preschool children, who neither own nor rent taxable property. The appellant's status is merely that of a citizen who says he is interested in the affairs of his local public schools. If the Constitution requires that he must be given a decision-making role in the governance of those affairs, then it seems to me that any individual who seeks such a role must be given it. For as I have suggested, there is no persuasive reason for distinguishing constitutionally between the voter qualifications New York has required for its Union Free School District elections and qualifications based on factors such as age, residence, or literacy.11
45
Today's decision can only be viewed as irreconcilable with the established principle that '(t)he States have * * * broad powers to determine the conditions under which the right of suffrage may be exercised * * *.' Since I think that principle is entirely sound, I respectfully dissent from the Court's judgment and opinion.
1
In some districts the election takes place on the Wednesday following the district meeting. N.Y.Educ.Law § 2013 (Supp. 1968).
2
The statute also requires that a voter be a citizen of the United States and at least 21 years of age. Appellant meets these requirements and doe not challenge the citizenship, age, or residency requirements of § 2012. See infra, at 625. The statute is set out in the Appendix, infra.
3
'But while the administration of schools and the formulation of general policies have been centralized in the State Education Department * * * the immediate control and operation of the schools in New York have to a large extent been vested in the localities. The thousands of districts * * * possess a high degree of authority in education. They decide matters of local taxation for school purposes, elect trustees and other school officials, purchase buildings and sites, employ teachers and * * * maintain discipline * * *.' Graves, Development of the Education Law in New York, 16 Consolidated Laws of New York (Education Law) xxiii (McKinney 1953). See R. Pyle, Some Aspects of Education in New York 9—13 (1967).
4
In districts which do not have annual meetings, the budget is not submitted to district voters. Thus, in city districts where the board of education is elected by all the voters, the board has the power to set the budget and assess taxes to meet expenditures. In large city districts, where the board is appointed, the board must submit requests to the city government, much as would any other city department. R. Pyle, Some Aspects of Education in New York 11 (1967).
5
The legislation provides that the money shall be raised through a 'tax, to be levied upon all the real property in (the) village * * *.' And, the 'corporate authorities shall have no power to withhold the sums so declared to be necessary * * *.' N.Y.Educ.Law § 1717 (1953).
6
This case presents an issue different from the one we faced in McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). The present appeal involves an absolute denial of the franchise. In McDonald, on the other hand, we were reviewing a statute which made casting a ballot easier for some who were unable to come to the polls. As we noted, there was no evidence that the statute absolutely prohibited anyone from exercising the franchise; at issue ws not a claimed right to vote but a claimed right to an absentee ballot. Id., at 807—808, 89 S.Ct., at 1408.
7
Of course, the effectiveness of any citizen's voice in governmental affairs can be determined only in relationship to the power of other citizens' votes. For example, if school board members are appointed by the mayor, the district residents may effect a change in the board's membership or policies through their votes for the mayor. Cf. N.Y.Educ.Law § 2553, subds. 2, 4 (1953), as amended (Supp. 1969). Each resident's formal influence is perhaps indirect, but it is equal to that of other residents. However, when the school board positions are filled by election and some otherwise qualified city electors are precluded from voting, the excluded residents, when compared to the franchised residents, no longer have an effective voice in school affairs. This is precisely the situation with regard to the size of the school budget in districts where § 2012 applies. See n. 4, supra.
8
See, e.g., McGowan v. Maryland, 366 U.S. 420, 425—428, 81 S.Ct. 1101, 1104—1106, (1961); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 527, 79 S.Ct. 437, 441, 3 L.Ed.2d 480, 6 L.Ed.2d 393 (1959); Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556 (1947).
9
Of course, we have long held that if the basis of classification is inherently suspect, such as race, the statute must be subjected to an exacting scrutiny, regardless of the subject matter of the legislation. See, e.g., McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288, 13 L.Ed.2d 222 (1964); Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 420, 68 S.Ct. 1138, 1143, 92 L.Ed. 1478 (1948); Oyama v. California, 332 U.S. 633, 640, 68 S.Ct. 269, 272, 92 L.Ed. 249 (1948).
10
Thus, statutes structuring local government units receive no less exacting an examination merely because the state legislature is fairly elected. See Avery v. Midland County, 390 U.S. 474, 481, n. 6, 88 S.Ct. 1114, 1118, 20 L.Ed.2d 45 (1968).
11
Similarly, no less a showing of a compelling justification for disenfranchising residents is required merely because the questions scheduled for the election need not have been submitted to the voters.
12
In Sailors v. Kent County Bd. of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), each local school board sent one delegate to a biennial meeting at which the members of the county board of education were selected. We noted that 'the choice of members of the county school board did not involve an election.' Id., at 111, 87 S.Ct., at 1553. However, we also pointed out that the members of the local school boards, who in effect made the county board appointments, were elected, but that 'no constitutional complaint (was) raised respecting that election.' Ibid.
13
The Union Free School District No. 15 and each member of its board of education were named as defendants. The Attorney General of New York intervened as an appellee.
14
Of course, if the exclusions are necessary to promote the articulated state interest, we must then determine whether the interest promoted by limiting the franchise constitutes a compelling state interest. We do not reach that issue in this case.
15
For example, appellant resides with his parents in the school district, pays state and federal taxes and is interested in and affected by school board decisions; however, he has no vote. On the other hand, an uninterested unemployed young man who pays no state or federal taxes, but who rents an apartment in the district, can participate in the election.
16
We were informed at oral argument, however, that a very small proportion of the eligible voters attend the meetings.
1
The District Court's statement to this effect has been explicitly reiterated and emphasized by the appellees, and the proposition is apparently conceded by the appellant. See N.Y.Educ.Law §§ 416, 1717, 2021; N.Y.Real.Prop.Tax Law McKinney's Consol. Laws, c. 50—A, §§ 1302, 1306, 1308.
2
New York's general age and residence requirements must also be met.
3
See also McGowan v. Maryland, 366 U.S. 420, 425—426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393:
'The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.'
4
Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817; Lassiter v. Northampton County Election Bd., 360 U.S. 45, 51, 79 S.Ct. 985, 990, 3 L.Ed.2d 1072; Carrington v. Rash, 380 U.S. 89, 93—94, 96, 85 S.Ct. 775, 778—779, 13 L.Ed.2d 675; see Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 666, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169.
5
Lassiter v. Northampton Election Bd., 360 U.S. at 52, 79 S.Ct. at 990.
6
Presumably the rationale for including lessees and their spouses in the electoral process is that the cost of property taxes is in many instances passed on from owner to lessee.
7
Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194; McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288, 13 L.Ed.2d 222.
8
Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600; cf. NAACP v. Alabama, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172.
9
Special-purpose governmental authorities such as water, lighting, and sewer districts exist in various sections of the country, and participation in such districts is undoubtedly limited in many instances to those who partake of the agency's services and are assessed for its expenses. The constitutional validity of such a policy is, it seems to me, unquestionable. And while it is true, as the appellant argues, that a school system has a more pervasive influence in the community than do most other such special-purpose authorities, I cannot agree that that difference in degree presents anything approaching a distinction of constitutional dimension.
10
Compare Lucas v. Forty-fourth General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632; with Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. Since Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675; and Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169, dealt with requirements for voting in general elections, those decisions do not control the result here.
11
A comparison of the classification made by New Yok with one based on literacy, for instance, presumably would attempt to weigh the interest of the person excluded from voting against the reasonableness of the legislative assumption regarding his competence as a voter or his connection with the subject matter of the election. In such a speculative analysis precision is not attainable; for that very reason, it seems to me, the standard of adjudication should be a reasonably tolerant one. But even assuming such an analysis were attempted, it could not in my view justify drawing a constitutional line between the classification involved here and a literacy requirement. True, the appellant and persons in his class might be thought to have generally more ability to vote intelligently than do illiterates. On the other hand, illiterate citizens clearly have considerably more of a stake in the outcome of general elections than do the members of the appellant's class in the result of school district elections.
| 12
|
395 U.S. 642
89 S.Ct. 1871
23 L.Ed.2d 599
Clyde A. PERKINS, Petitioner,v.STANDARD OIL COMPANY OF CALIFORNIA.
No. 624.
Argued April 22, 23, 1969.
Decided June 16, 1969.
Rehearing Denied Oct. 13, 1969.
See 90 S.Ct. 36.
Earl W. Kintner and George R. Kucik, Washington, D.C., for petitioner.
Richard J. MacLaury, San Francisco, Cal., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
In 1959 petitioner, Clyde A. Perkins, brought this civil antitrust action against the Standard Oil Company of California seeking treble damages under § 2 of the Clayton Act, as amended by the Robinson-Patman Act,1 for injuries alleged to have resulted from Standard's price discriminations in the sale of gasoline and oil during a period of over two years from 1955 to 1957. In 1963, after a lengthy and complicated trial, the jury returned a verdict for Perkins and assessed damages against Standard of $333,404.57, which, after trebling by the court and after the addition of attorney's fees, resulted in a total judgment against Standard of $1,298,213.71. On review, the Court of Appeals for the Ninth Circuit held that the assessment of damages included injuries to Perkins that were not recoverable under the Act and therefore ordered a new trial. Standard Oil Co. of California v. Perkins, 9 Cir., 396 F.2d 809. We granted certiorari to determine whether the Court of Appeals, in reversing the judgment, had correctly construed the Robinson-Patman Act.
2
Petitioner Perkins entered the oil and gasoline business in 1928 as the operator of a single service station in the State of Washington. By the mid-1950's he has become one of the largest independent distributors of gasoline and oil in both Washington and Oregon. He was both a wholesaler, operating storage plants and trucking equipment, and a retailer through his own Perkins stations. From 1945 until 1957, Perkins purchased substantially all of his gasoline requirements from Standard. From 1955 to 1957 Standard charged Perkins a higher price for its gasoline and oil than Standard charged to its own Branded Dealers,2 who competed with Perkins, and to Signal Oil & Gas Co., a wholesaler whose gas eventually reached the u mps of a major competitor of Perkins. Perkins contends that Standard's price and price-related discriminations against him seriously harmed his competitive position and forced him, in 1957, to sacrifice by sale what remained of his once independent business to one of the major companies in the gasoline business, Union Oil.
3
Many of the elements of liability on the part of Standard are not in dispute. Standard has admitted that it sold gasoline and oil to its Branded Dealers and to Signal Oil at discriminatorily lower prices than those at which it sold to Perkins. The Court of Appeals found that Standard's liability for the harm done Perkins by the favorable treatment of the Perkins by the favorable treatment pute. Of this aspect of the damages, the Court of Appeals said:
4
'The Branded Dealers purchased gasoline and oil from Standard which they in turn sold at retail. With respect to them, Perkins' story is quickly told. Because of Standard's favoritism and discrimination they were able to and did offer lower prices and better services and facilities than Perkins in marketing at retail.' 396 F.2d, at 812.
5
With regard to Perkins' damage resulting from Standard's discrimination in favor of Signal Oil, however, the Court of Appeals took a different view because of the following circumstances under which the discriminary sales were made. Standard admittedly sold gasoline to Signal at a lower price than it sold to Perkins. Signal sold this Standard gasoline to Western Hyway, which in turn sold the Standard gasoline to Regal Stations Co., Perkins' competitor. Perkins alleged that the lower price charged Signal by Standard was passed on to Signal's subsidiary Western Hyway, and then to Western's subsidiary, Regal. Regal's stations were thus able to undersell Perkins' stations and, according to Perkins, the resulting competitive harm, along with that he suffered at the hands of Standard's favored Branded Dealers, destroyed his ability to compete and eventually forced him to sell what was left of his business. The Court of Appeals held, however, that any harm suffered by Perkins from impaired competition with Regal stations was beyond the scope of the Robinson-Patman Act because Regal was too far removed from Standard in the chain of distribution. A substantial part of the damages the jury assessed against Standard, as the Court of Appeals viewed it, might have been based upon a finding that Perkins suffered competitive harm from the price advantage held by Regal stations. That court, concluding that 'the whole verdict is tainted, since the amount reflected in it by Regal's conduct cannot be ascertained; * * *' reversed the judgment and ordered a new trial. 396 F.2d, at 813.
6
We disagree with the Court of Appeals' conclusion that § 2 of the Clayton Act, as amended by the Robinson-Patman Act, does not apply to the damages suffered by Perkins as a result of the price advantage granted by Standard to Signal, then by Signal to Western, then by Western to Regal. The Act, in pertinent part, provides:
7
'(a) It shall be unlawful for any person engaged in 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 substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them * * *'.
8
The Court of Appeals read this language as limiting 'the distributing levels on which a supplier's price discrimination will be recognized as potentially injurious to competition. 396 F.2d, at 812. According to that court, the coverage of the Act is restricted to injuries caused by an impairment of competition with (1) the seller ('any person who * * * grants * * * such discrimination'), (2) the favored purchaser ('any person who * * * knowingly receives the benefit of such discrimination'), and (3) customers of the discriminating seller or favored purchaser ('customers of either of them'). Here, Perkins' injuries resulted in part from impaired competition with a customer (Regal) of a customer (Western Hyway) of the favored purchaser (Signal). The Court of Appeals termed these injuries 'fourth level' and held that they were not protected by the Robinson-Patman Act. We conclude that this limitation is wholly an artificial one and is completely unwarranted by the language or purpose of the Act.
9
In FTC v. Fred Meyer, Inc., 390 U.S. 341, 88 S.Ct. 904, 19 L.Ed.2d 1222 (1968), we held that a retailer who buys through a wholesaler could be considered a 'customer' of the original supplier within the meaning of § 2(d) of the Clayton Act, as amended by the Robinson-Patman Act, a section dealing with discrimination in promotional allowances which is closely analogous to § 2(a) involved in this case. In Meyer, the Court stated that to read 'customer' narrowly would be wholly untenable when viewed in light of the purposes of the Robinson-Patman Act. Similarly, to read 'customer' more narrowly in this section than we did in the section involved in Meyer would allow price discriminators to avoid the sanctions of the Act by the simple expedient of adding an additional link to the distribution chain. Here, for example, standard supplied gasoline and oil to Signal. Signal, allegedly because it furnished Standard with part of its vital supply of crude petroleum, was able to insist upon a discriminatorily lower price. Had Signal then sold its gas directly to the Regal stations, giving Regal stations a competitive advantage, there would be no question, even under the decision of the Court of Appeals in this case, that a clear violation of the Robinson-Patman Act had been committed. Instead of selling directly to the retailer Regal, however, Signal transferred the gasoline first to its subsidiary, Western Hyway, which in turn supplied the Regal stations. Signal owned 60% of the stock of Western Hyway; Western in turn owned 55% of the stock of the Regal stations. We find no basis in the language or purpose of the Act for immunizing Standard's price discriminations simply because the product in question passed through an additional formal exchange before reaching the level of Perkins' actual competitor. From Perkins' point of view, the competitive harm done him by Standard is certainly no less because of the presence of an additional link in this particular distribution chain from the producer to the retailer. Here Standard discriminated in price between Perkins and Signal, and there was evidence from which the jury could conclude that Perkins was harmed competitively when Signal's price advantage was passed on to Perkins' retail competitor Regal. These facts are sufficient to give rise to recoverable damages under the Robinson-Patman Act.
10
Before an injured party can recover damages under the Act, he must, of course, be able to show a causal connection between the price discrimination in violation of the Act and the injury suffered. This is true regardless of the 'level' in the chain of distribution on which the injury occurs. The court below held that, as a matter of law, 'Section 2(a) of the Act does not recognize a causal connection, essential to liability, between a supplier's price discrimination and the trade practices of a customer as far removed on the distributive ladder as Regal was from Standard.' 396 F.2d, at 816. As we have noted above, we do not accept such an artificial limitation. If there is sufficient evidence in the record to support an inference of causation, the ultimate conclusion as to what that evidence proves is for the jury. Continental Ore Co. v. n ion Carbide, 370 U.S. 690, 700—701, 82 S.Ct. 1404, 1411, 8 L.Ed.2d 777 (1962). Here the trial judge properly charged the jury that Perkins had the burden of showing that any damage to his business was proximately caused by Standard's price discriminations and there was substantial evidence from which the jury could infer causation. There was evidence that Signal received a lower price from Standard than did Perkins, that this price advantage was passed on, at least in part, to Regal, and that Regal was thereby able to undercut Perkins' price on gasoline. Furthermore, there was evidence that Perkins repeatedly complained to Standard officials that the discriminatory price advantage given Signal was being passed down to Regal and evidence that Standard officials were aware that Perkins' business was in danger of being destroyed by Standard's discriminatory practices. This evidence is sufficient to sustain the jury's award of damages under the Robinson-Patman Act.
11
One other minor group of damages was found to be improper by the Court of Appeals and we conclude that this ruling was also erroneous. Perkins submitted some evidence tending to show that he as an individual had suffered financial losses because the two failing Perkins corporations (Perkins of Washington and Perkins of Oregon) were unable to pay him agreed brokerage fees for securing gasoline, rental on leases of service stations, and other indebtedness. The Court of Appeals, in order to give guidance to the trial judge at the proposed new trial, noted that, in its opinion, these damages were not proximately caused by Standard's violations and that Perkins should not recover for these damages in a second trial. For this proposition the Court of Appeals cited Karseal Corp. v. Richfield Oil Corp., 9 Cir., 221 F.2d 358, 363, which held that 'the rule is that one who is only incidentally injured by a violation of the antitrust laws,—the bystander who was hit but not aimed at,—cannot recover against the violater.' It is clear in this case, however, that Perkins was no mere innocent bystander; he was the principal victim of the price discrimination practiced by Standard. Since he was directly injured and was clearly entitled to bring this suit, he was entitled to present evidence of all of his losses to the jury. Moreover, it is obvious from the opinion of the Court of Appeals that this question was being decided, not because there was any reversible error at the first trial, but in order to give guidance for the conduct of any new trial. The record in this case does not show that the jury included an award for any of these minor items in its judgment. It is impossible to say that they were included because they were not covered in the trial judge's charge to the jury. While the trial judge treated many items of damage specifically, there was no charge—either specific or general—upon which the jury could have felt free to include such items in its award. For this reason, the Court of Appeals could not have reversed the jury's verdict in this case on this ground.
12
Respondent has argued in its brief several minor trial rulings which it contends were in error. Most of these additional arguments were rejected by the Court of Appeals. We have examined the others and find them without merit. We therefore see no need to prolong this litigation which began nearly 10 years ago. The jury's verdict and judgment should be reinstated. It is so ordered.
13
Verdict and judgment reinstated.
14
Mr. Justice HARLAN took no part in the consideration or decision of this case.
15
Mr. Justice MARSHALL, with whom Mr. Justice STEWART joins, concurring in part and dissenting in part.
16
I agree with the Court that the judgment of the Court of Appeals cannot be affirmed. But I cannot agree either with the broad, and somewhat vague, ground of decision chosen by the Court or with the conclusion that the jury verdict in this case must be reinstated.
17
As I view it, this case poses only a very narrow question. Respondent discriminated in price in favor f Signal Oil & Gas Co. Through a chain of majority-owned subsidiaries, Signal marketed this gasoline at stations which competed with petitioner's outlets. Since we are dealing with a chain of majority-owned subsidiaries, it seems quite likely that the discriminatory price given Signal would have a vital effect on the pricing decisions of the stations which eventually marketed Signal's gasoline. Even if the lower price were not passed on to the company marketing the gasoline, that company would be more willing to accept losses in a protracted price war if it knew that its 'grandfather' corporation were making some extra, and partially off-setting, profits. For this reason, and since in interpreting the antitrust laws '(w)e must look at the economic reality of the relevant transactions,' United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 208, 89 S.Ct. 361, 367, 21 L.Ed.2d 344 (1968), I would treat Signal, the beneficiary of the discriminatory price, as if it were directly competing with petitioner's stations. Respondent's price discrimination, on this view, in effect injured competition with a company which 'knowingly receive(d) the benefit of such discrimination,' Clayton Act § 2(a), 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13(a), and the case could properly go to the jury for determination of 'causation' and damages. Accordingly, I see no reason to intimate, even by indirection, what the result would be if wholly independent firms had intervened in the distribution chain. I would therefore explicitly limit the holding to the facts of the case before us.
18
Moreover, I see no reason for the Court to undertake the difficult task of sorting out all the other issues in this case. The Court of Appeals based its reversal solely on its view of the 'fourth line injury' problem. Other issues were treated on the assumption that the case would have to go back for trial. The record in this case is long and complicated and we have no idea what view the Court of Appeals would have taken about respondent's other allegations of error had the major prop for its decision been removed. The law under the Robinson-Patman Act is convoluted enough without the addition of numerous explicit and implicit holdings which may come back to bedevil us in future years. I would leave these other problems unresolved so that the Court of Appeals can look at them anew in the context of this Court's holding on the major issue of general importance presented by the petition for certiorari.
1
Section 2 of the Clayton Act, 38 Stat. 730, as amended, 49 Stat. 1526, 15 U.S.C. § 13, provides in pertinent part as follows:
'(a) It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them * * *.'
2
Branded Dealers were independent operators of Standard's Signal and Chevron stations who marketed gasoline and oil under Standard's brand names. During the claim period the Signal Branded Dealers had no connection with Signal Oil & Gas Co., which is involved in this litigation as a wholesaler.
| 78
|
395 U.S. 653
89 S.Ct. 1902
23 L.Ed.2d 610
LEAR, INCORPORATED, Petitioner,v.John S. ADKINS.
No. 56.
Argued Nov. 20 and 21, 1968.
Decided June 16, 1969.
[Syllabus from pages 653-654 intentionally omitted]
C. Russell Hale, Pasadena, Cal., for petitioner.
Lawrence G. Wallace, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
Peter R. Cohen, Beverly Hills, Cal., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
In January of 1952, John Adkins, an inventor and mechanical engineer, was hired by Lear, Incorporated, for the purpose of solving a vexing problem the company had encountered in its efforts to develop a gyroscope which would meet the increasingly demanding requirements of the aviation industry. The gyroscope is an essential component of the navigational system in all aircraft, enabling the pilot to learn the direction and altitude of his airplane. With the development of the faster airplanes of the 1950's, more accurate gyroscopes were needed, and the gyro industry consequently was casting about for new techniques which would satisfy this need in an economical fashion. Shortly after Adkins was hired, he developed a method of construction at the company's California facilities which improved gyroscope accuracy at a low cost. Lear almost immediately incorporated Adkins' improvements into its production process to its substantial advantage.
2
The question that remains unsettled in this case, after eight years of litigation in the California courts, is whether Adkins will receive compensation for Lear's use of those improvements which the inventor has subsequently patented. At every stage of this lawsuit, Lear has sought to prove that, despite the grant of a patent by the Patent Office, none of Adkins' improvements were sufficiently novel to warrant the award of a monopoly under the standards delineated in the governing federal statutes. Moreover, the company has sought to prove that Adkins obtained his patent by means of a fraud on the Patent Office. In response, the inventor has argued that since Lear had entered into a licensing agreement with Adkins, it was obliged to pay the agreed royalties regardless of the validity of the underlying patent.
3
The Supreme Court of California unanimously vindicated the inventor's position. While the court recognized that generally a manufacturer is free to challenge the validity of an inventor's patent, it held that 'one of the oldest doctrines in the field of patent law establishes that so long as a licensee is operating under a license agreement he is estopped to deny the validity of his licensor's patent in a suit for royalties under the agreement. The theory underlying this doctrine is that a licensee should not be permitted to enjoy the benefit afforded by the agreement while simultaneously urging that the patent which forms the basis of the agreement is void.' 67 Cal.2d 882, 891, 64 Cal.Rptr. 545, 549, 435 P.2d 321, 325—326 (1967).
4
Almost 20 years ago, in its last o nsideration of the doctrine, this Court also invoked an estoppel to deny a licensee the right to prove that his licensor was demanding royalties for the use of an idea which was in reality a part of the public domain. Automatic Radio Manufacturing Co. v. Hazeltine Research, Inc., 339 U.S. 827, 836, 70 S.Ct. 894, 899, 94 L.Ed. 1312 (1950). We granted certiorari in the present case, 391 U.S. 912, 88 S.Ct. 1810, 20 L.Ed.2d 651, to reconsider the validity of the Hazeltine rule in the light of our recent decisions emphasizing the strong federal policy favoring free competition in ideas which do not merit patent protection. Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964).
I.
5
At the very beginning of the parties' relationship, Lear and Adkins entered into a rudimentary one-page agreement which provided that although '(a)ll new ideas, discoveries, inventions, etc., related to * * * vertical gyros become the property of Mr. John S. Adkins,' the inventor promised to grant Lear a license as to all ideas he might develop 'on a mutually satisfactory royalty basis.'1 As soon as Adkins' labors yielded tangible results, it quickly became apparent to the inventor that further steps should be taken to place his rights to his ideas on a firmer basis. On February 4, 1954, Adkins filed an application with the Patent Office in an effort to gain federal protection for his improvements. At about the same time, he entered into a lengthy period of negotiations with Lear in an effort to conclude a licensing agreement which would clearly establish the amount of royalties that would be paid.
6
These negotiations finally bore fruit on September 15, 1955, when the parties approved a complex 17-page contract which carefully delineated the conditions upon which Lear promised to pay royalties for Adkins' improvements. The parties agreed that if 'the U.S. Patent Office refuses to issue a patent on the substantial claims (contained in Adkins' original patent application) or if such a patent so issued is subsequently held invalid, then in any of such events Lear at its option shall have the right forthwith to terminate the specific license so affected or to terminate this entire Agreement * * *.' § 6 (2 App. 138).
7
As the contractual language indicates, Adkins had not obtained a final Patent Office decision as to the patentability of his invention at the time the licensing agreement was concluded. Indeed, he was not to receive a patent until January 5, 1960. This long delay has its source in the special character of Patent Office procedures. The regulations do not require the Office to make a final judgment on an invention's patentability on the basis of the inventor's original application.2 While it sometimes happens that a patent is granted at this early stage, it is far more common for the Office to find that although certain of the applicant's claims may be patentable, certain others have been fully anticipated by the earlier developments in the art. In such a situation, the Patent Office does not attempt to separate the wheat from the chaff on its own initiative. Instead, it rejects the application, giving the inventor the right to make an amendment which narrows his claim to cover only those aspects of the invention which are truly novel.3 It often happens, however, that even after an application is amended, the Patent Office finds that some of the remaining claims are unpatentable. When this occurs, the agency again issues a rejection which is subject to further amendment.4 And so h e process of rejection and amendment continues until the Patent Office Examiner either grants a patent or concludes that none of the inventor's claims could possibly be patentable, at which time a final rejection is entered on the Office's records.5 Thus, when Adkins made his original application in 1954, it took the average inventor more than three years before he obtained a final administrative decision on the patentability of his ideas, with the Patent Office acting on the average application from two to four times.6
8
The progress of Adkins' effort to obtain a patent followed the typical pattern. In his initial application, the inventor made the ambitious claim that his entire method of constructing gyroscopes was sufficiently novel to merit protection. The Patent Office, however, rejected this initial claim, as well as two subsequent amendments, which progressively narrowed the scope of the invention sought to be protected. Finally, Adkins narrowed his claim drastically to assert only that the design of the apparatus used to achieve gyroscope accuracy was novel.7 In response, the Office issued its 1960 patent, granting a 17-year monopoly on on this more modest claim.
9
During the long period in which Adkins was attempting to convince the Patent Office of the novelty of his ideas, however, Lear had become convinced that Adkins would never receive a patent on his invention and that it should not continue to pay substantial royalties on ideas which had not contributed substantially to the development of the art of gyroscopy. In 1957, after Adkins' patent application had been rejected twice, Lear announced that it had searched the Patent Office's files and had found a patent which it believed had fully anticipated Adkins' discovery. As a result, the company stated that it would no longer pay royalties on the large number of gyroscopes it was producing at its plant in Grand Rapids, Michigan (the Michigan gyros). Payments were continued on the smaller number of gyros produced at the company's California plant (the California gyros) for two more years until they too were terminated on April 8, 1959.
10
As soon as Adkins obtained his patent in 1960, he brought this lawsuit in the California Superior Court. He argued to a jury that both the Michigan and the California gyros incorporated his patented apparatus and that Lear's failure to pay royalties on these gyros was a breach both of the 1955 contract and of Lear's quasi-contractual obligations. Although Lear sought to raise patent invalidity as a defense, the trial judge directed a verdict of.$16,351.93 for Adkins on the California gyros, holding that Lear was estopped by its licensing agreement from questioning the inventor's patent. The trial judge took a different approach when it came to considering the Michigan gyros. Noting that the company claimed that it had developed its Michigan designs independently of Adkins' ideas, the court instructed the jury to award the inventor recovery only if it was satisfied that Adkins' invention was novel, within the meaning of the federal patent laws. When the jury returned a verdict for Adkins of $888,122.56 on the Michigan gyros,8 the trial judge granted Lear's motion for judgment notwithstanding the verdict, finding that Adkins' invention had been completely anticipated by the prior art.9
11
Neither side was satisfied with this split decision, and both appealed to the California District Court of Appeal, which adopted a quite different approach. The court held that Lear was within its contractual rights in terminating its royalty obligations entirely in 1959, and that if Adkins desired to recover damages after that date he was 'relegated to an action for infringement' in the federal courts. 52 Cal.Rptr. 795, 806. So far as pre-1959 royalties were concerned, the court held that the contract required the company to pay royalties on both the California and Michigan gyros regardless of the validity of the inventor's patent. 52 Cal.Rptr., at 809.
12
Once again both sides appealed, this time to the California Supreme Court, which took yet another approach to the problem presented. The court rejected the District Court of Appeal's conclusion that the 1955 license gave Lear the right to terminate its royalty obligations in 1959. Since the 1955 agreement was still in effect, the court concluded, relying on the language we have already quoted, that the doctrine of estoppel barred Lear from questioning the propriety of the Patent Office's grant. 67 Cal.2d, at 907, 64 Cal.Rptr. 545, 435 P.2d, at 336. The court's adherence to estoppel, however, was not without qualification. After noting Lear's claim that it had developed its Michigan gyros independently, the court tested this contention by considering 'whether what is being built by Lear (in Michigan) springs entirely' (emphasis supplied) from the prior art. 67 Cal.2d at 913, 64 Cal.Rptr., at 564, 435 P.2d, at 340. Applying this test, it found that Lear had in fact 'utilized the apparatus patented by Adkins throughout the period in question,' 67 Cal.2d, at 915, 64 Cal.Rptr., at 565, 435 P.2d, at 341 and reinstated the jury's $888,000 verdict on this branch of the case.
II.
13
Since the California Supreme Court's construction of the 1955 licensing agreement is solely a matter of state law, the only issue open to us is raised by the court's reliance upon the doctrine of estoppel to bar Lear from proving that Adkins' ideas were dedicated to the common welfare by federal law.10 In considering the propriety of the State Court's decision, we are well aware that we are not writing upon a clean slate. The doctrine of estoppel has been considered by this Court in a line of cases reaching back into the middle of the 19th century. Before deciding what the role of estoppel should be in the present case and in the future, it is, then, desirable to consider the role it has played in the past.
A.
14
While the roots of the doctrine have often been celebrated in tradition, we have found only one 19th century case in this Court that invoked estoppel in a considered manner. And that case was decided before the Sherman Act made it clear that the grant of monopoly power to a patent owner constituted a limited exception to the general federal policy favoring free competition. Kinsman v. Parkhurst, 18 How. 289, 15 L.Ed. 385 (1856).11 Curiously, a second decision often cited as supporting the estoppel doctrine points clearly in the opposite direction. St. Paul Plow Works v. Starling, 140 U.S. 184, 11 S.Ct. 803, 35 L.Ed. 404 (1891), did not even question the right of the lower courts to admit the licensee's evidence showing that the pattented device was not novel. A unanimous Court merely held that, where there was conflicting evidence as to an invention's novelty, it would not reverse the decision of the lower court upholding the patent's validity.
15
In the very next year, this Court found the doctrine of patent estoppel so inequitable that it refused to grant an injunction to enforce a licensee's promise never to contest the validity of the underlying patent. 'It is as important to the public that competition should not be repressed by worthless patents, as that the patentee of a really valuable invention should be protected in his monopoly * * *.' Pope Manufacturing Co. v. Gormully, 144 U.S. 224, 234, 12 S.Ct. 632, 636, 36 L.Ed. 414 (1892).
16
Although this Court invoked an estoppel in 1905 without citing or considering Pope's powerful argument, United States v. Harvey Steel Co., 196 U.S. 310, 25 S.Ct. 240, 49 L.Ed. 492, the doctrine was not to be applied again in this Court until it was revived in Automatic Radio Manufacturing Co. v. Hazeltine Research, Inc., supra, which declared, without prolonged analysis, that licensee estoppel was 'the general rule.' 339 U.S., at 836, 70 S.Ct. at 899. In so holding, the majority ignored the teachings of a series of decisions this Court had rendered during the 45 years since Harvey had been decided. During this period, each time a patentee sought to rely upon his estoppel privielge before this Court, the majority created a new exception to permit judicial scrutiny into the validity of the Patent Office's grnat. Long before Hazeltine was decided, the estoppel doctrine had been so eroded that it could no longer be considered the 'general rule,' but was only to be invoked in an evernarrowing set of circumstances.
B.
17
The estoppel rule was first stringently limited in a situation in which the patentee's equities were far more compelling than those presented in the typical licensing arrangement. Westinghouse Electric & Manufacturing Co. v. Formica Insulation Co., 266 U.S. 342, 45 S.Ct. 117, 69 L.Ed. 316 (1924), framed a rule to govern the recurring problem which arises when the original patent owner, after assigning his patent to another for a substantial sum, claims that the patent is worthless because it contains no new ideas. The courts of appeals had traditionally refused to permit such a defense to an infringement action on the ground that it was improper both to 'sell and keep the same thing,' Faulks v. Kamp, 2 Cir., 3 F. 898, 902 (1880). Nevertheless, Formica imposed a limitation upon estoppel which was radically inconsistent with the premises upon which the 'general rule' is based. The Court held that while an assignor may not directly attack the validity of a patent by reference to the prior state of the art, he could introduce such evidence to narrow the claims made in the patent. 'The distinction may be a nice one but seems to be workable.' 266 U.S., at 351, 45 S.Ct., at 120: Workable or not, the result proved to be an anomaly: if a patent had some novelty Formica permitted the old owner to defend an infringement action by showing that the invention's novel aspects did not extend to the inclusion of the old owner's products; on the other hand, if a patent had no novelty at all, the old owner could not defend successfully since he would be obliged to launch the direct attack on the patent that Formica seemed to forbid. The incongruity of this position compelled at least one court of appeals to carry the reasoning of the Formica exception to its logical conclusion. In 1940 the Seventh Circuit held that a licensee could introduce evidence of the prior art to show that the licensor's claims were not novel at all and thus successfully defend an action for royalties. Casco Products Corp. v. Sinko Tool & Manufacturing Co., 116 F.2d 119.
18
In Scott Paper Co. v. Marcalus Manufacturing Co., 326 U.S. 249, 66 S.Ct. 101, 90 L.Ed. 47 (1945), this Court adopted a position similar to the Seventh Circuit's, undermining the basis of patent estoppel even more than Formica had done. In Scott, the original patent owner had attempted to defend an infringement suit brought by his assignee by proving that his product was a copy of an expired patent. The Court refused to permit the assignee to invoke an estoppel, finding that the policy of the patent laws would be frustrated if a manufacturer was required to pay for the use of information which under the patent statutes, was the property of all. Chief Justice Stone, for the Court, did not go beyond the precise question presented by a manufacturer who asserted that he was simply copying an expired patent. Nevertheless it was impossible to limit the Scott doctrine to such a narrow compass. If patent policy forbids estoppel when the old owner attempts to show that he did no more than copy an expired patent, why should not the old owner also be permitted to show that the invention lacked novelty because it could be found in a technical journal or because it was obvious to one knowledgeable in the art? As Justice Frankfurter's dissent indicated, id., at 258—264, 66 S.Ct., at 105—108, there were no satisfactory answers to these questions. The Scott exception had undermined the very basis of the 'general rule.'
C.
19
At about the time Scott was decided, this Court developed yet another doctrine which was profoundly antithetic to the principles underlying estoppel. In Sola Electric Co. v. Jef erson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. 165 (1942), the majority refused to permit a licensor to enforce the license's price-fixing provisions without permitting the licensee to contest the validity of the underlying patent. Since the price-fixing clause was per se illegal but for the existence of a valid patent, this narrow exception could be countenanced without compromising the general estoppel principle. But the Sola Court went further: it held that since the patentee had sought to enforce the price-fixing clause, the licensee could also avoid paying royalties if he could show that the patent was invalid. Five years later, the 'anti-trust exception' was given an even more extensive scope in the Katzinger and MacGregor cases.12 Here licensors were not permitted to invoke an estoppel despite the fact that they sought only to collect their royalties. The mere existence of a price-fixing clause in the license was held to be enough to bring the validity of the patent into question. Thus in the large number of cases in which licensing agreements contained restrictions that were arguably illegal under the antitrust laws, the doctrine of estoppel was a dead letter. Justice Frankfurter, in dissent, went even further, concluding that Katzinger and MacGregor had done all but repudiate the estoppel rule: 'If a doctrine that was vital law for more than ninety years will be found to have now been deprived of life, we ought at least to give it decent public burial.' 329 U.S., at 416, 67 S.Ct., at 428.
D.
20
The lower courts, both state and federal, have also hedged the impact of estoppel by creating exceptions which have indicated a recognition of the broader policies pointing to a contrary approach. It is generally the rule that licensees may avoid further royalty payments, regardless of the provisions of their contract, once a third party proves that the patent is invalid. See, e.g., Drackett Chemical Co. v. Chamberlain Co., 63 F.2d 853 (6 Cir., 1933). Some courts have gone further to hold that a licensee may notify the patent owner that he is repudiating his agreement, regardless of its terms, and may subsequently defend any action for royalties by proving patent invalidity. Note, The Doctrine of Licensee Repudiation in Patent Law, 63 Yale L.J. 125 (1953); R. Ellis, Patent Licenses § 328 (3d ed., A. Deller 1958). And even in the 19th century, state courts had held that if the licensee had not actually sold products incorporating the patent's ideas, he could challenge the validity of the patent. See Forkosch, Licensee Estoppel in Patent Law, 20 Temp.L.Q. 515, 529, n. 45 (1947).13
III.
21
The uncertain status of licensee estoppel in the case law is a product of judicial efforts to accommodate the competing demands of the common law of contracts and the federal law of patents. On the one hand, the law of contracts forbids a purchaser to repudiate his promises simply because he later becomes dissatisfied with the bargain he has made.14 On the other hand, federal law requires, that all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent. Sears, Roebuck v. Stiffel Co., supra; Compco Corp. v. Day-Brite Lighting, Inc., supra, When faced with this basic conflict in policy, both this Court and courts throughout the land have naturally sought to develop an intermediate position which somehow would remain responsivet o the radically different concerns of the two different worlds of contract and patent. The result has been a failure. Rather than creative compromise, there has been a chaos of conflicting case law, proceeding on inconsistent premises. Before renewing the search for an acceptable middle ground, we must reconsider on their own merits the arguments which may properly be advanced on both sides of the estoppel question.
A.
22
It will simplify matters greatly if we first consider the most typical situation in which patent licenses are negotiated. In contrast to the present case, most manufacturers obtain a license after a patent has issued. Since the Patent Office makes an inventor's ideas public when it issues its grant of a limited monopoly,15 a potential licensee has access to the inventor's ideas even if he does not enter into an agreement with the patent owner. Consequently, a manufacturer gains only two benefits if he chooses to enter a licensing agreement after the patent has issued. First, by accepting a license and paying royalties for a time, the licensee may have avoided the necessity of defending an expensive infringement action during the period when he may be least able to afford one. Second, the existence of an unchallenged patent may deter others from attempting to compete with the licensee.16
23
Under ordinary contract principles the mere fact that some benefit is received is enough to require the enforcement of the contract, regardless of the validity of the underlying patent. Nevertheless, if one tests this result by the standard of good-faith commercial dealing, it seems far from satisfactory. For the simple contract approach entirely ignores the position of the licensor who is seeking to invoke the court's assistance on his behalf. Consider, for example, the equities of the licensor who has obtained his patent through a fraud on the Patent Office. It is difficult to perceive why good faith requires that courts should permit him to recover royalties despite his licensee's attempts to show that the patent is invalid. Compare Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965).
24
Even in the more typical cases, not involving conscious wrongdoing, the licensor's equities are far from compelling. A patent, in the last analysis, simply represents a legal conclusion reached by the Patent Office. Moreover, the legal conclusion is predicated on factors as to which reasonable men can differ widely. Yet the Patent Office is often obliged to reach its decision in an ex parte proceeding, without the aid of the arguments which could be advanced by parties interested in proving patent invalidity. Consequently, it does not seem to us to be unfair to require a patentee to defend the Patent Office's judgment when his licensee places the question in issue, especially since the licensor's case is buttressed by the presumption of validity which attaches to his patent. Thus, although licensee estoppel may be consistent with the letter of contractual doctrine, we cannot say that it is compelled by the spirit of contract law, which seeks to balance the claims of promisor and promisee in accord with the requirements of good faith.
25
Surely the equities of the licensor do not weigh very heavily when they are balanced against the important public interest in permitting full and free competition in the use of ideas which are in reality a part of the public domain. Licensees may often be the onlyi ndividuals with enough economic incentive to challenge the patentability of an inventor's discovery. If they are muzzled, the public may continually be required to pay tribute to would-be monopolists without need or justification. We think it plain that the technical requirements of contract doctrine must give way before the demands of the public interest in the typical situation involving the negotiation of a license after a patent has issued.
26
We are satisfied that Automatic Radio Manufacturing Co. v. Hazeltine Research, Inc., supra, itself the product of a clouded history, should no longer be regarded as sound law with respect to its 'estoppel' holding, and that holding is now overruled.
B.
27
The case before us, however, presents a far more complicated estoppel problem than the one which arises in the most common licensing context. The problem arises out of the fact that Lear obtained its license in 1955, more than four years before Adkins received his 1960 patent. Indeed, from the very outset of the relationship, Lear obtained special access to Adkins' ideas in return for its promise to pay satisfactory compensation.
28
Thus, during the lengthy period in which Adkins was attempting to obtain a patent, Lear gained an important benefit not generally obtained by the typical licensee. For until a patent issues, a potential licensee may not learn his licensor's ideas simply by requesting the information from the Patent Office. During the time the inventor is seeking patent protection, the governing federal statute requires the Patent Office to hold an inventor's patent application in confidence.17 If a potential licensee hopes to use the ideas contained in a secret patent application, he must deal with the inventor himself, unless the inventor chooses to publicize his ideas to the world at large. By promising to pay Adkins royalties from the very outset of their relationship, Lear gained immediate access to ideas which it may well not have learned until the Patent Office published the details of Adkins' invention in 1960. At the core of this case, then, is the difficult question whether federal patent policy bars a State from enforcing a contract regulating access to an unpatented secret idea.18
29
Adkins takes an extreme position on this question. The inventor does not merely argue that since Lear obtained privileged access to his ideas before 1960, the company should be required to pay royalties accruing before 1960 regardless of the validity of the patent which ultimately issued. He also argues that since Lear obtained special benefits before 1960, it should also pay royalties during the entire patent period (1960—1977), without regard to the validity of the Patent Office's grant. We cannot accept so broad an argument.
30
Adkins' position would permit inventors to negotiate al important licenses during the lengthy period while their applications were still pending at the Patent Office, thereby disabling entirely all those who have the strongest incentive to show that a patent is worthless. While the equities supporting Adkins' position are somewhat more appealing than those supporting the typical licensor, we cannot say that there is enough of a difference to justify such a substantial impairment of overriding federal policy.
31
Nor can we accept a second argument which may be advanced to support Adkins' claim to at least a portion of his post-patent royalties, regardless of the validity of the Patent Office grant. The terms of the 1955 agreement provide that royalties are to be paid until such time as the 'patent * * * is held invalid,' § 6, and the fact remains that the question of patent validity has not been finally determined in this case. Thus, it may be suggested that although Lear must be allowed to raise the question of patent validity in the present lawsuit, it must also be required to comply with its contract and continue to pay royalties until its claim is finally vindicated in the courts.
32
The parties' contract, however, is no more controlling on this issue than is the State's doctrine of estoppel, which is also rooted in contract principles. The decisive question is whether overriding federal policies would be significantly frustrated if licensees could be required to continue to pay royalties during the time they are challenging patent validity in the courts.
33
It seems to us that such a requirement would be inconsistent with the aims of federal patent policy. Enforcing this contractual provision would give the licensor an additional economic incentive to devise every conceivable dilatory tactic in an effort to postpone the day of final judicial reckoning. We can perceive no reason to encourage dilatory court tactics in this way. Moreover, the cost of prosecuting slow-moving trial proceedings and defending an inevitable appeal might well deter many licensees from attempting to prove patent invalidity in the courts. The deterrent effect would be particularly severe in the many scientific fields in which invention is proceeding at a rapid rate. In these areas, a patent may well become obsolete long before its 17-year term has expired. If a licensee has reason to believe that he will replace a patented idea with a new one in the near future, he will have little incentive to initiate lengthy court proceedings, unless he is freed from liability at least from the time he refuses to pay the contractual royalties. Lastly, enforcing this contractual provision would undermine the strong federal policy favoring the full and free use of ideas in the public domain. For all these reasons, we hold that Lear must be permitted to avoid the payment of all royalties accruing after Adkins' 1960 patent issued if Lear can prove patent invalidity.19
C.
34
Adkins' claim to contractual royalties accruing before the 1960 patent issued is, however, a much more difficult one, since it squarely raises the question whether, and to what extent, the States may protect the owners of unpatented inventions who are willing to disclose their ideas to manufacturers only upon payment of royalties. The California Supreme Court did not adde §§ itself to this issue with precision, for it believed that the venerable doctrine of estoppel provided a sufficient answer to all of Lear's claims based upon federal patent law. Thus, we do not know whether the Supreme Court would have awarded Adkins recovery even on his pre-patent royalties if it had recognized that previously established estoppel doctrine could no longer be properly invoked with regard to royalties accruing during the 17-year patent period. Our decision today will, of course, require the state courts to reconsider the theoretical basis of their decisions enforcing the contractual rights of inventors and it is impossible to predict the extent to which this reevaluation may revolutionize the law of any particular State in this regard. Consequently, we have concluded, after much consideration, that even though an important question of federal law underlies this phase of the controversy, we should not now attempt to define in even a limited way the extent, if any, to which the States may properly act to enforce the contractual rights of inventors of unpatented secret ideas. Given the difficulty and importance of this task, it should be undertaken only after the state courts have, after fully focused inquiry, determined the extent to which they will respect the contractual rights of such inventors in the future. Indeed, on remand, the California courts may well reconcile the competing demands of patent and contract law in a way which would not warrant further review in this Court.
IV.
35
We also find it inappropriate to pass at this time upon Lear's contention that Adkins' patent is invalid.
36
Not only did Lear fail to raise this issue in its petition for certiorari, but the California Supreme Court has yet to pass on the question of patent validity in that clear and unequivocal manner which is so necessary for proper adjudication in this Court. As we have indicated, the California Supreme Court considered the novelty of Adkins' ideas relevant to its decision at only one stage of its extensive analysis. Since Lear claimed that it had developed its Michigan gyros completely independently of Adkins' efforts, the Supreme Court believed itself obliged to consider whether Adkins' ideas were not 'entirely' anticipated by the prior art. 67 Cal.2d, at 913, 64 Cal.Rptr. 545, 435 P.2d at 340. Applying this test, the court upheld the jury's verdict of $888,000 on the Michigan gyros, finding that 'Lear utilized the apparatus patented by Adkins throughout the period in question.' 67 Cal.2d, at 915, 64 Cal.Rptr. at 565, 435 P.2d at 341. In reaching this conclusion, however, the court did express its belief that Adkins' invention made a 'significant step forward' in the art of gyroscopy. 67 Cal.2d, at 915, 64 Cal.Rptr. 545, 435 P.2d, at 341.
37
It is far from clear that the court, in making this last statement, intended to hold that Adkins' ideas satisfied the demanding standard of invention explicated in our decision in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Surely, such a holding was not required by the court's analysis, which was concerned only with the question whether Lear had benefited from Adkins' ideas in any degree. In this context, we believe that Lear must be required to address its arguments attacking the validity of the underlying patent to the California courts in the first instance.
38
The judgment of the Supreme Court of California is vacated and the case is remanded to that court for further proceedings not inconsistent with this opinion.
39
It is so ordered.
40
Judgment of Supreme Court of California vacated and case remanded.
41
Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, concurring in part and dissenting in part.
42
I concur in the judgment and opinion of the Court, except for what is said in Part III, C, of the Court's opinion. What the Court does in this part of its opinion is to reserve for future decision the question whether the States have power t enforce contracts under which someone claiming to have a new discovery can obtain payment for disclosing it while his patent application is pending, even though the discovery is later held to be unpatentable. His reservation is, as I see it, directly in conflict with what this Court held to be the law in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). Brother Harlan concurred in the result in those cases, saying—contrary to what the court held—'I see no reason why the State may not impose reasonable restrictions on the future 'copying' itself.' Compco, supra, at 239, 84 S.Ct. at 783. Consequently the Court is today joining in the kind of qualification that only Mr. Justice Harlan was willing to make at the time of our Stiffel and Compco decisions.
43
I still entertain the belief I expressed for the Court in Stiffel and Compco that no State has a right to authorize any kind of monopoly on what is claimed to be a new invention, except when a patent has been obtained from the Patent Office under the exacting standards of the patent laws. One who makes a discovery may, of course, keep it secret if he wishes, but private arrangements under which self-styled 'inventors' do not keep their discoveries secret, but rather disclose them, in return for contractual payments, run counter to the plan of our patent laws, which tightly regulate the kind of inventions that may be protected and the manner in which they may be protected. The national policy expressed in the patent laws, favoring free competition and narrowly limiting monopoly, cannot be frustrated by private agreements among individuals, with or without the approval of the State.
44
Mr. Justice WHITE, concurring in part.
45
The applicable provision of 28 U.S.C. § 1257 empowers us to review by writ of certiorari '(f)inal judgments or decrees rendered by the highest court of a State * * * where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.' Although Adkins disputes it, we have jurisdiction to consider whether a patent licensee is estopped to challenge the validity of the patent. The California Supreme Court ruled that he is and therefore he would not entertain attacks on Adkins' patent as a defense to his suit for royalties. Lear seeks review of that holding here. In my view, not only is the issue properly here but the Court has correctly decided it.
46
Although we have jurisdiction to review this state court judgment and to determine the licensee estoppel issue, it does not necessarily follow that we may or should deal with two other federal questions which come into focus once the licensee is free to challenge the patent. The first is whether the patent is valid. The second, which arises only if the patent is invalidated, is whether federal law forbids the collection of royalties which might otherwise be collectible under a contract rooted in state law. Although the Court does not deal with the first issue, it does purport to decide the second, at least in part. However, as either a jurisdictional or a policy matter, neither of these issues is properly before us in this case.
47
In the first place, we have no decision of the California Supreme Court affirming or denying, as a matter of federal law, that Adkins may not enforce his contract if his patent is held invalid. The California court held that the license agreement had not been terminated in accordance with its terms, that the doctrine of licensee estoppel prevented Lear from challenging the patent and that Lear was utilizing the teaching of Adkins' patent. There was thus no necessity or reason to consider whether the patent was invalid, or, if it was, whether either state or federal law prevented collection of the royalties reserved by the contract. Even if these issues hd been presented to the California Supreme Court, sound principles would have dictated that the court not render a decision on questions unnecessary to its disposition of the case. See, e.g., Southwestern Bell Telephone Co. v. Oklahoma, 303 U.S. 206, 212—213, 58 S.Ct. 528, 530, 82 L.Ed. 751 (1938).
48
There is no indication, however, that Lear, directly or by inference, urged in the California courts that if Adkins' patent were invalid, federal law overrode state contract law and precluded collection of the royalties which Lear had promised to pay. One of the defenses presented by Lear in its answer to Adkins' claim for royalties was that there had been a failure of consideration because of the absence of bargained-for patentability in Adkins' ideas. But failure of consideration is a state law question, and I find nothing in the record and nothing in this Court's opinion indicating that Lear at any time contended in the state courts that once Adkins' patent was invalidated, the royalty agreement was unenforceable as a matter of federal law.1
49
Given Lear's failure below to 'specially set up or claim' the federal bar to collection of royalties in the event Adkins' patent was invalidated, and without the California Supreme Court's 'final judgment' on this issue, I doubt our jurisdiction to decide the issue. But even if jurisdiction exists, the Court should follow its characteristic practice and refuse to issue pronouncements on questions not urged or decided in the state courts.
50
In McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 60 S.Ct. 670, 84 L.Ed. 849 (1940), the Court, while recognizing it had jurisdiction to determine whether a New York tax was an unconstitutional burden on interstate commerce, refused to consider whether the tax was a prohibited impost or duty on imports and exports, saying: '(I)t is only in exceptional cases, and then only in cases coming from the federal courts, that (the Court) considers questions urged by a petitioner or appellant not pressed or passed upon in the courts below. * * * (D)ue regard for the appropriate relationship of this Court to state courts requires us to decline to consider and decide questions affecting the validity of state statutes not urged or considered there.' Id., at 434, 60 S.Ct., at 672.
51
Wilson v. Cook, 327 U.S. 474, 66 S.Ct. 663, 90 L.Ed. 793 (1946), reached a similar conclusion. There the Court denied a government contractor the benefit of the implied constitutional immunity of the Federal Government from taxation by the State, but at the same time declined to consider whether the state tax at issue placed a forbidden tax directly on the United States. This was because the Courtw as 'not free to consider' a ground of attack 'not presented to the Supreme Court of Arkansas or considered or decided by it,' even though the issue was in some measure related to one actually decided by the state courts and arose under the same implied constitutional immunity argument. Id., at 483, 66 S.Ct. at 668. Cf. Dewey v. Des Moines, 173 U.S. 193, 197—198, 19 S.Ct. 379, 380, 43 L.Ed. 665 (1899). The Court relied on McGoldrick and a long line of prior cases, including People of State of New York ex rel. Cohn v. Graves, 300 U.S. 308, 317, 57 S.Ct. 466, 469, 81 L.Ed. 666 (1937), where the Court had said: 'In reviewing the judgment of a state court, this Court will not pass upon any federal question not shown by the record to have been raised in the state court or considered there, whether it be one arising under a different or the same clause in the constitution with respect to which other questions are properly presented.'
52
The result is the same when a party has attempted to raise an issue in the state court but has not done so in proper or timely fashion. 'Questions first presented to the highest State court on a petition for rehearing come too late for consideration here * * *.' Radio Station WOW v. Johnson, 326 U.S. 120, 128, 65 S.Ct. 1475, 1480, 89 L.Ed. 2092 (1945). 'Since the State Supreme Court did not pass on the question now urged, and since it does not appear to have been properly presented to that court for decision, we are without jurisdiction to consider it in the first instance here.' CIO v. McAdory, 325 U.S. 472, 477, 65 S.Ct. 1395, 1398, 89 L.Ed. 1741 (1945). And no different conclusion obtains when the federal question, although not yet presented to or decided by the state court, will probably or even certainly arise during further proceedings held in that court. See, e.g., NAACP v. Alabama, 357 U.S. 449, 466—467, 78 S.Ct. 1163, 1173—1174, 2 L.Ed.2d 1488 (1958); Hudson Distributors, Inc. v. Eli Lilly & Co., 377 U.S. 386, 394—395, 84 S.Ct. 1273, 1279, 12 L.Ed.2d 394 (1964).
53
Wholly aside from jurisdictional considerations or those relating to our relationships with state courts, there is the matter of our own Rule 23(1)(c), which states that '(o)nly the questions set forth in the petition or fairly comprised therein will be considered by the court.' See Flournoy v. Wiener, 321 U.S. 253, 259, 64 S.Ct. 548, 551, 88 L.Ed. 708 (1944). None of the questions presented by Lear's petition for certiorari comes even close to the issue to which the Court now addresses itself—an issue which will arise only if Lear can and does challenge the patent, if the patent is declared invalid, if Adkins nevertheless seeks to enforce the agreement, and if Lear interposes a defense based on federal law.
54
This seems a poor case for waiving our Rules. In the first place the question of validity has not been reached by the California Supreme Court, and when it is the patent may withstand attack. In that event there will be no necessity to consider the impact of patent law on the enforceability of a contract grounded in state law. Second, even if the patent is declared invalid, the state court, after the parties have addressed themselves to the issues, may accommodate federal and state law in a matter which would not prompt review here. Third, the parties themselves have neither briefed nor seriously argued the question in this Court, and we do not have the benefit of their views on what is surely a difficult question. The Court itself has flushed the issue, which it now deals with on a piecemeal basis.2 Like the question of patent validity, I would leave the consequences of invalidity to the state court in the first instance.
1
Lear argues that this original agreement was not submitted in evidence at trial and so should not be considered a part of the record on appeal. The California Supreme Court, however, treated the agreement as an important part of the record before it, 67 Cal.2d, at 906, 64 Cal.Rptr. 545, 435 P.2d, at 335; and so we are free to refer to it.
2
37 CFR § 1.111 (1967).
3
37 CFR § 1.106 (1967).
4
37 CFR § 1.112 (1967).
5
37 CFR § 1.113 (1967).
6
A. Seidel, What the General Practitioner Should Know About Patent Law and Practice 61 (A.L.I.1956).
7
Adkins actually amended his application a third time before he made the amendment which gained the approval of the Patent Office. This third amendment was superseded by the successful amendment, however, before the Patent Office considered it.
8
For purposes of the present lawsuit, the parties stipulated that the jury would award only those damages accruing before May 31, 1963.
9
Adkins also filed a second cause of actio which contended that Lear had wrongfully appropriated a valuable trade secret and so was liable regardless of the validity of the inventor's contractual and quasi-contractual theories. The trial court, however, required Adkins to choose between his contract and tort claims. Since the California Supreme Court completely vindicated the inventor's right to contractual royalties, it was not obliged to consider the propriety of this aspect of the trial judge's decision. Consequently, the tort claim is not before us at this time.
10
Adkins claims that we have no jurisdiction to decide the federal question presented because the company did not adequately preserve it in its argument before the State Supreme Court. We do not agree. While it is true that Lear did not ask the Supreme Court to repudiate estoppel entirely, it did seek to persuade the court to carve out an exception to the estoppel principle which was so sweeping as to undermine the doctrine's vitality completely. The company argued, on the basis of federal as well as state cases, that a licensee may escape the impact of estoppel simply by announcing that it has repudiated the licensing agreement, regardless of the contract's terms. See, e.g., Respondent's and Cross-Appellant's Opening Brief in Cases Nos. 28624 and 30089, at 110—111.
The California Supreme Court rejected this argument on its merits:
'Lear relies on authoritiesh olding that a licensee may terminate a license agreement upon notice to his licensor even though, prior to termination, there has been no adjudication of invalidity of the patent which is the subject of the agreement and that thereafter the licensee may challenge the validity of the patent. (See, e.g., Armstrong Co. v. Shell Co. of Cal. (1929) 98 Cal.App. 769, 778—779, 277 P. 887). This rule has no application if the agreement sets forth the particular circumstances under which termination must occur. As stated above, such provisions must be complied with in order to effect a valid cancellation.' 67 Cal.2d, at 899—900, n. 15, 64 Cal.Rptr., at 555, 435 P.2d, at 331, n. 15.
We clearly have jurisdiction to consider whether this decision is wrong. In doing so, we have the duty to consider the broader implications of Lear's contention, and vindicate, if appropriate, its claim to relief on somewhat different grounds than it chose to advance below, especially when the California court recognized, in language we have already quoted, supra, at 656, that matters of basic principle are at stake.
11
There are two other early cases which enforced patent licenses without a thorough consideration of the estoppel issues that were presented. In Eureka Co. v. Bailey Co., 11 Wall. 488, 20 L.Ed. 209 (1871), the Court held that a licensee was obliged to overcome a 'very strong presumption' of patent validity in order to avoid his royalty obligations, without indicating how much more compelling a showing was required than was considered necessary in an ordinary infringement action. In Dale Tile Manufacturing Co. v. Hyatt, 125 U.S. 46, 8 S.Ct. 756, 31 L.Ed. 683 (1888), this Court affirmed the decision of the New York state courts invoking the doctrine of licensee estoppel, on the ground that the estoppel question presented was one which involved only state law.
12
Edward Katzinger Co. v. Chicago Metallic Manufacturing Co., 329 U.S. 394, 67 S.Ct. 416, 424, 91 L.Ed. 374 (1947); MacGregor v. Westinghouse Electric & Manufacturing Co., 329 U.S. 402, 67 S.Ct. 421, 91 L.Ed. 380 (1947).
13
In addition to the works cited in the text, a detailed explication of the development of estoppel doctrine may be found in Cooper, Estoppel to Challenge Patent Validity: The Case of Private Good Faith vs. Public Policy, 18 W.Res.L.Rev. 1122 (1967), and in Kramer, Estoppel To Deny Validity—A Slender Reed, 23 N.Y.U. Intra.L.Rev. 237 (1968).
14
See 1 A. Corbin, Contracts § 127 (1963); Treece, Licensee Estoppel in Patent and Trademark Cases, 53 Iowa L.Rev. 525, 528 530 (1967).
15
37 CFR §§ 1.11, 1.13 (1967).
16
Of course, the value of this second benefit may depend upon whether the licensee has obtained exclusive or nonexclusive rights to the use of the patent. Even in the case of nonexclusive licenses, however, competition is limited to the extent that the royalty charged by the patentee serves as a barrier to entry.
17
35 U.S.C. § 122 provides:
'Applications for patents shall be kept in confidence by the Patent Office and no information concerning the same given without authority of the applicant or owner unless necessary to carry out the provisions of any Act of Congress or in such special circumstances as may be determined by the Commissioner.'
The present regulations issued by the Patent Office unequivocally guarantee that: 'Pending patent applications are preserved in secrecy * * * unless it shall be necessary to the proper conduct of business before the Office' to divulge their contents. 37 CFR § 1.14(a) (1967). The parties do not contend that Adkins' patent application was publicized by the Office during the period it was under consideration.
18
See Doerfer, The Limits on Trade Secret Law Imposed by Federal Patent and Antitrust Supremacy, 80 Harv.L.Rev. 1432 (1967); Note, The Stiffel Doctrine and the Law of Trade Secrets, 62 Nw.U.L.Rev. 956 (1968); Adelman, Trade Secrets and Federal Pre-emption—the Aftermath of Sears and Compco, 49 J.Pat.Off.Soc. 713 (1967); Treece, Patent Policy and Preemption: The Stiffel and Compco Cases, 32 U.Chi.L.Rev. 80 (1964).
19
Adkins suggests that any decision repudiating licensee estoppel as the general rule should not be retroactively applied to contracts concluded before such a decision is announced. Given the extent to which the estoppel principle had been eroded by our prior decisions, we believe it clear that the patent owner—even before this decision—could not confidently rely upon the continuing vitality of the doctrine. Nor can we perceive that our decision today is likely to undermine any existing legitimate business relationships. Moreover, the public's interest in the elimination of specious patents would be significantly prejudiced if the retroactive effect of today's decision were limited in any way.
1
The Court brushes aside the problem by characterizing the additional issue it decides as representing a 'more complicated estoppel problem.' But licensee estoppel, the question raised here, refers to estoppel against the licensee to challenge the patent, not to any bar or 'estoppel' interposed by federal law against collecting royalties on an invalidated patent. Whether Adkins can enforce his contract for royalties if his patent is found to be invalid cannot be shoehorned into the licensee-estoppel question, and by no stretch of the imagination can it be included within the scope of the question raised and litigated by the parties in this case. In the courts below Lear wanted to challenge Adkins' patent only for the purpose of showing that Adkins was entitled to no recovery under the terms of the contract itself, either because of a failure of consideration or because the contract had been legally terminated or could be legally terminated. Indeed, the District Court of Appeal noted: 'Lear concedes that it would be estopped to contest the validity of any patent issued to Adkins on the claims of his application described in the license agreement so long as it continued to operate under that agreement.' 52 Cal.Rptr. 795, 805. See also Lear's Opening Brief in the District Court of Appeal 109.
2
The Court's opinion flatly proscribes recovery by Adkins of 'all royalties accruing after Adkins' 1960 patent issued if Lear can prove patent invalidity.' Ante, at 674. But recovery of pre-1960 royalties is left open by the Court, apparently because pre-issuance and post-issuance royalties do not stand on the same fooi ng under federal law. Such a distinction may be valid, and pre-1960 royalties recoverable; but if so, what of post-1960 royalties which are attributable to the headstart Lear obtained over the rest of the industry as a result of preissuance disclosure of Adkins' idea? Today's bar to collection of post-1960 royalties would seem to be inflexible, and yet those royalties arguably are recoverable to the extent they represent payment for the pre-1960 disclosure of Adkins' idea; to that extent, they seem indistinguishable from pre-1960 royalties, at least for purposes of federal patent law. Cf. Brulotte v. Thys Co., 379 U.S. 29, 31, 85 S.Ct. 176, 178, 13 L.Ed.2d 99 (1964). See also, id., at 34—39, 85 S.Ct., at 180—182 (dissenting opinion). This possibility and others serve to indicate the wisdom of refraining from any pronouncement now, and particularly from any rigid line drawing, in advance of consideration by the courts below and by the parties.
| 78
|
395 U.S. 575
89 S.Ct. 1918
23 L.Ed.2d 547
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.GISSEL PACKING CO., Inc., et al. FOOD STORE EMPLOYEES UNION, LOCAL NO. 347, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL—CIO, Petitioner, v. GISSEL PACKING CO., Inc. The SINCLAIR COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.
Nos. 573, 691, 585.
Argued March 26 and 27, 1969.
Decided June 16, 1969.
Rehearing Denied Oct. 13, 1969.
See 90 S.Ct. 35.
[Syllabus from pages 575-578 intentionally omitted]
Dominick L. Manoli, Washington, D.C., for N.L.R.B., petitioner.
Albert Gore, Chicago, Ill., for Food Store Employees Union, Local No. 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL—CIO.
John E. Jenkins, Jr., Huntington, W. Va., for Gissel Packing Co., Inc.
Lewis P. Hamlin, Jr., Salisbury, N.C., for General Steel Products, Inc., and another.
Frederick F. Holroyd, Charleston, W. Va., for Hecks, Inc.
Edward J. Simerka, Cleveland, Ohio, for the Sinclair Co.
Lawrence G. Wallace, Washington, D.C., for N.L.R.B., respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
These cases involve the extent of an employer's duty under the National Labor Relations Act to recognize a union that bases its claim to representative status solely on the possession of union authorization cards, and the steps an employer may take, particularly with regard to the scope and content of statements he may make, in legitimately resisting such card-based recognition. The specific questions facing us here are whether the duty to bargain can arise without a Board election under the Act; whether union authorization cards, if obtained from a majority of employees without misrepresentation or coercion, are reliable enough generally to provide a valid, alternate route to majority status; whether a bargaining order is an appropriate and authorized remedy where an employer rejects a card majority while at the same time committing unfair practices that tend to undermine the union's majority and make a fair election an unlikely possibility; and whether certain specific statements made by an employer to his employees constituted such an election-voiding unfair labor practice and thus fell outside the protection of the First Amendment and § 8(c) of the Act, 49 Stat. 452, as amended, 29 U.S.C. § 158(c). For reasons given below, we answer each of these questions in the affirmative.
I.
2
Of the four cases before us, three—Gissel Packing Co., Heck's Inc., and General Steel Products, Inc.—were consolidated following separate decisions in the Court of Appeals for the Fourth Circuit and brought here by the National Labor Relations Board in No. 573. Food Store Employees Union, Local No. 347, the petitioning Union in Gissel, brought that case here in a separate petition in No. 691. All three cases present the same legal issues in similar, uncomplicated factual settings that can be briefly described together. The fourth case, No. 585 (Sinclair Company), brought here fromt he Court of Appeals for the First Circuit and argued separately, presents many of the same questions and will thus be disposed of in this opinion; but because the validity of some of the Board's factual findings are under attack on First Amendment grounds, detailed attention must be paid to the factual setting of that case.
3
Nos. 573 and 691.
4
In each of the cases from the Fourth Circuit, the course of action followed by the Union and the employer and the Board's response were similar. In each case, the Union waged an organizational campaign, obtained authorization cards from a majority of employees in the appropriate bargaining unit, and then, on the basis of the cards, demanded recognition by the employer. All three employers refused to bargain on the ground that authorization cards were inherently unreliable indicators of employee desires; and they either embarked on, or continued, vigorous antiunion campaigns that gave rise to numerous unfair labor practice charges. In Gissel, where the employer's campaign began almost at the outset of the Union's organizational drive, the Union (petitioner in No. 691), did not seek an election, but instead filed three unfair labor practice charges against the employer, for refusing to bargain in violation of § 8(a)(5), for coercion and intimidation of employees in violation of § 8(a) (1), and for discharge of Union adherents in violation of § 8(a)(3).1 In Heck's an election sought by the Union was never held because of nearly identical unfair labor practice charges later filed by the Union as a result of the employer's antiunion campaign, initiated after the Union's recognition demand.2 And in General Steel, an election petitioned for by the Union and won by the employer was set aside by the Board because of the unfair labor practices committed by the employer in the pre-election period.3
5
In each case, the Board's primary response was an order to bargain directed at the employers, despite the absence of an election in Gissel and Heck's and the employer's victory in General Steel. More specifically, the Board found in each case (1) that the Union had obtained valid authorization cards4 from a majority of the employees in the bargaining unit and was thus entitled to represent the employees for collective bargaining purposes; and (2) that the employer's refusal to bargain with the Union in violation of § 8(a)(5) was motivated, not by a 'good faith' doubt of the Union's majority status, but by a desire to gain time to dissipate that status. The Board based its conclusion as to the lack of good faith doubt on the fact that the employers had committed substantial unfair labor practices during their antiunion campaign efforts to resist recognition. Thus, the Board found that all three employers had engaged in restraint and coercion of employees in violation of § 8(a)(1)—in Gissel, for coercively interrogating employees about Union activities, threatening them with discharge, and promising them benefits; in Heck's, for coercively interrogating employees, threatening reprisals, creating the appearance of surveillance, and offering benefits for opposing the Union; and in General Steel, for coercive interrogation and threats of reprisals, including discharge. In addition, the Board found that the employers in Gissel and Heck's had wrongfully discharged employees for engaging in Union activities in violation of § 8(a)(3). And, because the employers had rejected the card-based bargaining demand in bad faith, the Board found that all three had refused to recognize the Unions in violation of § 8(a)(5).
6
Only in General Steel was there any objection by an employer to the validity of the cards and the manner in which they had been solicited, and the doubt raised by the evidence was resolved in the following manner. The customary approach of the Board in dealing with allegations of misrepresentation by the Union and misunderstanding by the employees of the purpose for which the cards were being solicited has been set out in Cumberland Shoe Corp., 144 N.L.R.B. 1268 (1963), and reaffirmed in Levi Strauss & Co., 172 N.L.R.B. No. 57, 68 L.R.R.M. 1338 (1968). Under the Cumberland Shoe doctrine, if the card itself is unambiguous (i.e., states on its face that the signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purpose of obtaining an election. In General Steel, the trial examiner considered the allegations of misrepresentation at length and, applying the Board's customary analysis, rejected the claims with findings that were adopted by the Board and are reprinted in the margin.5
7
* * *
8
'With respect to the 97 employees named in the attached Appendix B Respondent in its brief contends, in substance, that their cards should be rejected because each of these employees was told one or more of the following: (1) that the card would be used to get an election (2) that he had the right to vote either way, even though he signed the card (3) that the card would be kept secret and not shown to anybody except to the Board in order to get an election. For reasons heretofore explicated, I conclude that these statements, singly or jointly, do not foreclose use of the cards for the purpose designated on their face.' Consequently, the Board ordered the companies to cease and desist from their unfair labor practices, to offer reinstatement and back pay to the employees who had been discriminatorily discharged, to bargain with the Unions on request, and to post the appropriate notices.
9
On appeal, the Court of Appeals for the Fourth Circuit, in per curiam opinions in each of the three cases (398 F.2d 336, 337, 339), sustained the Board's findings as to the §§ 8(a)(1) and (3) violations, but rejected the Board's findings that the employers' refusal to bargain violated § 8(a)(5) and declined to enforce those portions of the Board's orders directing the respondent companies to bargain in good faith. The court based its § 8(a)(5) rulings on its 1967 decisions raising the same fundamental issues, Crawford Mfg. Co. v. NLRB, 386 F.2d 367, cert. denied, 390 U.S. 1028, 88 S.Ct. 1408, 20 L.Ed.2d 286 (1968); NLRB v. S. S. Logan Packing Co., 386 F.2d 562; NLRB v. Sehon Stevenson & Co., Inc., 386 F.2d 551. The court in those cases held that the 1947 Taft-Hartley amendments to the Act, which permitted the Board to resolve representation disputes by certification under § 9(c) only by secret ballote lection, withdrew from the Board the authority to order an employer to bargain under § 8(a)(5) on the basis of cards, in the absence of NLRB certification, unless the employer knows independently of the cards that there is in fact no representation dispute. The court held that the cards themselves were so inherently unreliable that their use gave an employer virtually an automatic, good faith claim that such a dispute existed, for which a secret election was necessary. Thus, these rulings established that a company could not be ordered to bargain unless (1) there was no question about a Union's majority status (either because the employer agreed the cards were valid or had conducted his own poll so indicating), or (2) the employer's §§ 8(a)(1) and (3) unfair labor practices committed during the representation campaign were so extensive and pervasive that a bargaining order was the only available Board remedy irrespective of a card majority.
10
Thus based on the earlier decisions, the court's reasoning in these cases was brief, as indicated by the representative holding in Heck's:
11
'We have recently discussed the unreliability of the cards, in the usual case, in determining whether or not a union has attained a majority status and have concluded that an employer is justified in entertaining a good faith doubt of the union's claims when confronted with a demand for recognition based solely upon union authorization cards. We have also noted that the National Labor Relations Act after the Taft-Hartley amendments provides for an election as the sole basis of a certification and restricts the Board to the use of secret ballots for the resolution of representation questions. This is not one of those extraordinary cases in which a bargaining order might be an appropriate remedy for pervasive violations of § 8(a)(1). It is controlled by our recent decisions and their reasoning. * * * There was not substantial evidence to support the findings of the Board that Heck's, Inc. had no good faith doubt of the unions' claims of majorities.' 398 F.2d, at 338—339.
No. 585.
12
In No. 585, the factual pattern was quite similar. The petitioner, a producer of mill rolls, wire, and related products at two plants in Holyoke, Massachusetts, was shut down for some three months in 1952 as the result of a strike over contract negotiations with the American Wire Weavers Protective Association, the representative of petitioner's journeymen and apprentice wire weavers from 1933 to 1952. The Company subsequently reopened without a union contract, and its employees remained unrepresented through 1964, when the Company was acquired by an Ohio corporation, with the Company's former president continuing as head of the Holyoke, Massachusetts, division. In July 1965, the International Brotherhood of Teamsters, Local Union No. 404, began an organizing campaign among petitioner's Holyoke employees and by the end of the summer had obtained authorization cards from 11 of the Company's 14 journeymen wire weavers choosing the Union as their bargaining agent. On September 20, the Union notified petitioner that it represented a majority of its wire weavers, requested that the Company bargain with it, and offered to submit the signed cards to a neutral third party for authentication. After petitioner's president declined the Union's request a week later, claiming, inter alia, that he had a good faith doubt of majority status because of the cards' inherent unreliability, the Union petitioned, on November 8, for an election that was ultimately set for December 9.
13
When petitioner's president first learned of the Union's drive in July, he talked with all of his employees in an effort to dissuade them from joining a union. He particularly emphasized the results of the long 1952 strike, which he claimed 'almost put our company out of business,' and expressed worry that the employees were forgetting the 'lessons of the past.' He emphasized, secondly, that the Company was still on 'thin ice' financially, that the Union's 'only weapon is to strike,' and that a strike 'could lead to the closing of the plant,' since the parent company had ample manufacturing facilities elsewhere. He noted, thirdly, that because of their age and the limited usefulness of their skills outside their craft, the employees might not be able to find re-employment if they lost their jobs as a result of a strike. Finally, he warned those who did not believe that the plant could go out of business to 'look around Holyoke and see a lot of them out of business.' The president sent letters to the same effect to the employees in early November, emphasizing that the parent company had no reason to stay in Massachusetts if profits went down.
14
During the two or three weeks immediately prior to the election on December 9, the president sent the employees a pamphlet captioned: 'Do you want another 13-week strike?' stating, inter alia, that: 'We have no doubt that the Teamsters Union can again close the Wire Weaving Department and the entire plant by a strike. We have no hopes that the Teamsters Union Bosses will not call a strike. * * * The Teamsters Union is a strike happy outfit.' Similar communications followed in late November, including one stressing the Teamsters' 'hoodlum control.' Two days before the election, the Company sent out another pamphlet that was entitled: 'Let's Look at the Record,' and that purported to be an obituary of companies in the Holyoke-Springfield, Massachusetts, area that had allegedly gone out of business because of union demands, eliminating some 3,500 jobs; the first page carried a large cartoon showing the preparation of a grave for the Sinclair Company and other headstones containing the names of other plants allegedly victimized by the unions. Finally, on the day before the election, the president made another personal appeal to his employees to reject the Union. He repeated that the Company's financial condition was precarious; that a possible strike would jeopardize the continued operation of the plant; and that age and lack of education would make re-employment difficult. The Union lost the election 7—6, and then filed both objections to the election and unfair labor practice charges which were consolidated for hearing before the trial examiner.
15
The Board agreed with the trial examiner that the president's communications with his employees, when considered as a whole, 'reasonably tended to convey to the employees the belief or impression that selection of the Union in the forthcoming election could lead (the Company) to close its plant, or to the transfer of the weaving production, with the resultant loss of jobs to the wire weavers.' Thus, the Board found that under the 'totality of the circumstances' petitioner's activities constituted a violation of § 8(a)(1) of the Act. The Board further agreed with the trial examiner that petitioner's activities, because they 'also interferred with the exercise of a free and untrammeled choice in the election,' and 'tended to forclose the possibility' of holding a fair election, required that the election be set aside. The Board also found that the Union had a valid card majority (the unambiguous cards, see n. 4, supra, went unchallenged) when it demanded recognition initially and that the Company declined recognition, not because of a good faith doubt as to the majority status, but, as the § 8(a)(1) violations indicated, in order to gain time to dissipate that status—in violation of § 8(a)(5). Consequently, the Board set the election aside, entered a cease-and-desist order, and ordered the Company to bargain on request.
16
On appeal, the Court of Appeals for the First Circuit sustained the Board's findings and conclusions and enforced its order in full. 397 F.2d 157. The court rejected the Company's proposition that the inherent unreliability of authorization cards entitled an employer automatically to insist on an election, noting that the representative status of a union my be shown by means other than an election; the court thus reaffirmed its stance among those circuits disavowing the Fourth Circuit's approach to authorization cards.6 Because of the conflict among the circuits on the card issues and because of the alleged conflict between First Amendment freedoms and the restrictions placed on employer speech by § 8(a)(1) in Sinclair, No. 585, we granted certiorari to consider both questions. 393 U.S. 997, 89 S.Ct. 482, 21 L.Ed.2d 462 (1968). For reasons given below, we reverse the decisions of the Court of Appeals for the Fourth Circuit and affirm the ruling of the Court of Appeals for the First Circuit.
II.
17
In urging us to reverse the Fourth Circuit and to affirm the First Circuit, the National Labor Relations Board contends that we should approve its interpretation and administration of the duties and obligations imposed by the Act in authorization card cases. The Board argues (1) that unions have never been limited under § 9(c) of either the Wagner Act or the 1947 amendments to certified elections as the sole route to attaining representative status. Unions may, the Board contends, impose a duty to bargain on the employer under § 8(a)(5) by reliance on other evidence of majority employee support, such as authorization cards. Contrary to the Fourth Circuit's holding, the Board asserts, the 1947 amendments did not eliminate the alternative routes to majority status. The Board contends (2) that the cards themselves, when solicited in accordance with Board standards which adequately insure against union misrepresentation, are sufficiently reliable indicators of employee desires to support a bargaining order against an employer who refuses to recognize a card majority in violation of § 8(a)(5). The Board argues (3) that a bargaining order is the appropriate remedy for the § 8(a)(5) violation, where the employer commits other unfair labor practices that tend to undermine union support and render a fair election improbable.
18
Relying on these three assertions, the Board asks us to approve its current practice, which is briefly as follows. When confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees, an employer need not grant recognition immediately, but may, unless he has knowledge independently of the cards that the union has a majority, decline the union's request and insist on an election, either by requesting the union to file an election petition or by filing such a petition himself under § 9(c)(1) (B). If, however, the employer commits independent and substantial unfair labor practices disruptive of election conditions, the Board may withhold the election or set it aside, and issue instead a bargaining order as a remedy for the various violatios . A bargaining order will not issue of course, if the union obtained the cards through misrepresentation or coercion or if the employer's unfair labor practices are unrelated generally to the representation campaign. Conversely, the employers in these cases urge us to adopt the views of the Fourth Circuit.
19
There is more at issue in these cases than the dispute outlined above between the Board and the four employers, however, for the Union, petitioner in No. 691, argues that we should accord a far greater role to cards in the bargaining area than the Board itself seeks in this litigation. In order to understand the differences between the Union and the Board, it is necessary to trace the evolution of the Board's approach to authorization cards from its early practice to the position it takes on oral argument before this Court. Such an analysis requires viewing the Board's treatment of authorization cards in three separate phases: (1) under the Joy Silk doctrine, (2) under the rules of the Aaron Brothers case, and (3) under the approach announced at oral argument before this Court.
20
The traditional approach utilized by the Board for many years has been known as the Joy Silk doctrine. Joy Silk Mills, Inc., 85 N.L.R.B. 1263 (1949), enforced, 87 U.S.App.D.C. 360, 185 F.2d 732 (1950). Under that rule, an employer could lawfully refuse to bargain with a union claiming representative status through possession of authorization cards if he had a 'good faith doubt' as to the union's majority status; instead of bargaining, he could insist that the union seek an election in order to test out his doubts. The Board, then, could find a lack of good faith doubt and enter a bargaining order in one of two ways. It could find (1) that the employer's independent unfair labor practices were evidence of bad faith, showing that the employer was seeking time to dissipate the union's majority. Or the Board could find (2) that the employer had come forward with no reasons for entertaining any doubt and therefore that he must have rejected the bargaining demand in bad faith. An example of the second category was Snow & Sons, 134 N.L.R.B. 709 (1961), enforced, 308 F.2d 687 (C.A.9th Cir. 1962), where the employer reneged on his agreement to bargain after a third party checked the validity of the card signatures and insisted on an election because he doubted that the employees truly desired representation. The Board entered a bargaining order with very broad language to the effect that an employer could not refuse a bargaining demand and seek an election instead 'without a valid ground therefor,' 134 N.L.R.B., at 710—711. See also Dixon Ford Shoe Co., Inc., 150 N.L.R.B. 861 (1965); Kellogg Mills, 147 N.L.R.B. 342, 346 (1964), enforced, 347 F.2d 219 (C.A.9th Cir. 1965).
21
The leading case codifying modifications to the Joy Silk doctrine was Aaron Brothers, 158 N.L.R.B. 1077 (1966). There the Board made it clear that it had shifted the burden to the General Counsel to show bad faith and that an employer 'will not be held to have violated his bargaining obligation * * * simply because he refuses to rely upon cards, rather than an election, as the method for determining the union's majority.' 158 N.L.R.B., at 1078. Two significant consequences were emphasized. The Board noted (1) that not every unfair labor practice would automatically result in a finding of bad faith and therefore a bargaining order; the Board implied that it would find bad faith only if the unfair labor practice was serious enough to have the tendency to dissipate the union's majority. The Board noted (2) that an employer no longer needed to come forward with reasons for rejecting a bargaining demand. The Board pointed out, however, that a bargaining order would issue if it could prove that an employer's 'course of conduct' gave indications as to the employer's bad faith. As examples of such a 'course of conduct,' the Board cited Snow & Sons, supra; Dixon Ford Shoe Co., Inc., supra, and Kellogg Mills, supra, h ereby reaffirming John P. Serpa, Inc., 155 N.L.R.B. 99 (1965), where the Board had limited Snow & Sons to its facts.
22
Although the Board's brief before this Court generally followed the approach as set out in Aaron Brothers, supra, the Board announced at oral argument that it had virtually abandoned the Joy Silk doctrine altogether. Under the Board's current practice, an employer's good faith doubt is largely irrelevant, and the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election. Thus, an employer can insist that a union go to an election, regardless of his subjective motivation, so long as he is not guilty of misconduct; he need give no affirmative reasons for rejecting a recognition request, and he can demand an election with a simple 'no comment' to the union. The Board pointed out, however, (1) that an employer could not refuse to bargain if he knew, through a personal poll for instance, that a majority of his employees supported the union, and (2) that an employer could not refuse recognition initially because of questions as to the appropriateness of the unit and then later claim, as an afterthought, that he doubted the union's strength.
23
The Union argues here that an employer's right to insist on an election in the absence of unfair labor practices should be more circumscribed, and a union's right to rely on cards correspondingly more expanded, than the Board would have us rule. The Union's contention is that an employer, when confronted with a card-based bargaining demand, can insist on an election only by filing the election petition himself immediately under s 9(c)(1)(B) and not by insisting that the Union file the election petition, whereby the election can be subjected to considerable delay. If the employer does not himself petition for an election, the Union argues, he must recognize the Union regardless of his good or bad faith and regardless of his other unfair labor practices, and should be ordered to bargain if the cards were in fact validly obtained. And if this Court should continue to utilize the good faith doubt rule, the Union contends that at the least we should put the burden on the employer to make an affirmative showing of his reasons for entertaining such doubt.
24
Because the employers' refusal to bargain in each of these cases was accompanied by independent unfair labor practices which tend to preclude the holding of a fair election, we need not decide whether a bargaining order is ever appropriate in cases where there is no interference with the election processes.
25
With the Union's arguments aside, the points of difference between the employers and the Board will be considered in the following manner. The validity of the cards under the Act, their intrinsic reliability, and the appropriateness of a bargaining order as a response to violations of § 8(a)(5) as well as §§ 8(a)(1) and (3) will be discussed in the next section. The nature of an employer's reaction to an organizational compaign, and particularly the Board's conclusion that the employer's statements in No. 585 contained threats of reprisal and thus constituted restraint and coercion in violation of § 8(a)(1) and not protected speech, will be covered in the final section.
III.
A.
26
The first issue facing us is whether a union can establish a bargaining obligation by means other than a Board election and whether the validity of alternate routes to majority status, such as cards, was affected by the 1947 Taft-Hartley amendments. The most commonly traveled7 route for a union to obtain recognition as the exclusive bargaining representative of an unorganized group of employees is through the Board's election and certification procedures under § 9(c) of the Act (29 U.S.C. § 159(c)); it is also, from the Board's point of view, the preferred route.8 A union is not limited to a Board elet ion, however, for, in addition to § 9, the present Act provides in § 8(a) (5) (29 U.S.C. § 158(a)(5)), as did the Wagner Act in § 8(5), that '(i)t shall be an unfair labor practice for an employer * * * to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).' Since § 9(a), in both the Wagner Act and the present Act, refers to the representative as the one 'designated or selected' by a majority of the employees without specifying precisely how that representative is to be chosen, it was early recognized that an employer had a duty to bargain whenever the union representative presented 'convincing evidence of majority support.'9 Almost from the inception of the Act, then, it was recognized that a union did not have to be certified as the winner of a Board election to invoke a bargaining obligation; it could establish majority status by other means under the unfair labor practice provision of § 8(a)(5)—by showing convincing support, for instance, by a union-called strike or strike vote,10 or, as here, by possession of cards signed by a majority of the employees authorizing the union to represent them for collective bargaining purposes.11
27
We have consistently accepted this interpretation of the Wagner Act and the present Act, particularly as to the use of authorization cards. See, e.g., NLRB v. Bradford Dyeing Assn., 310 U.S. 318, 339—340, 60 S.Ct. 918, 929, 84 L.Ed. 122 (1940); Franks Bros. Co. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944); United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62, 76 S.Ct. 559, 100 L.Ed. 941 (1956). Thus, in United Mine Workers, supra, we noted that a 'Board election is not the only method by which an employer may satisfy itself as to the union's majority status,' 351 U.S. at 72, n. 8, 76 S.Ct. at 565, since § 9(a), 'which deals expressly with employee representation, says nothing as to how the employees' representative shall be chosen,' 351 U.S. at 71, 76 S.Ct. at 565. We therefore pointed out in that case, where the union had obtained signed authorization cards from a majority of the employees, that '(i)n the absence of any bona fide dispute12 as to the existence of the required majority of eligible employees, the employer's denial of recognition of the union would have violated s 8(a)(5) of the Act.' 351 U.S. at 69, 76 S.Ct. at 563. We see no reason to reject this approach to bargaining obligations now, and we find unpersuasive the Fourth Circuit's view that the 1947 Taft-Hartley amendments, enacted some nine years before our decs ion in United Mine Workers, supra, require us to disregard that case. Indeed, the 1947 amendments weaken rather than strengthen the position taken by the employers here and the Fourth Circuit below. An early version of the bill in the House would have amended § 8(5) of the Wagner Act to permit the Board to find a refusal-to-bargain violation only where an employer had failed to bargain with a union 'currently recognized by the employer or certified as such (through an election) under section 9.' Section 8(a)(5) of H.R. 3020, 80th Cong., 1st Sess. (1947). The proposed change, which would have eliminated the use of cards, was rejected in Conference (H.R.Conf.Rep.No. 510, 80th Cong., 1st Sess., 41 (1947)), however, and we cannot make a similar change in the Act simply because, as the employers assert, Congress did not expressly approve the use of cards in rejecting the House amendment. Nor can we accept the Fourth Circuit's conclusion that the change was wrought when Congress amended § 9(c) to make election the sole basis for certification by eliminating the phrase 'any other suitable method to ascertain such representatives,'13 under which the Board had occasionally used cards as a certification basis. A certified union has the benefit of numerous special privileges which are not accorded unions recognized voluntarily or under a bargaining order14 and which, Congress could determine, should not be dispensed unless a union has survived the crucible of a secret ballot election.
28
The employer rely finally on the addition to § 9(c) of subparagraph (B), which allows an employer to petition for an election whenever 'one or more individuals or labor organizations have presented to him a claim15 to be recognized the cards themselves may never be used section 9(a).' That provision was not added, as the employers assert, to give them an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union's majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity.16 We agree with the Board's assertion here that there is no suggestion that Congress intended § 9(c)(1)(B) to relieve any employer of his § 8(a)(5) bargaining obligation where, without good faith, he engaged in unfair labor practices disruptive of the Board's election machinery. And we agree that the policies reflected in § 9(c)(1)(B) fully support the Board's present administration of the Act (see supra, at 591—592); for an employer can insist on a secret ballot election, unless in the words of the Board, he engages 'in contemporaneous unfair labor practices likely to destroy the union's majority and seriously impede the election.' Brief for Petitioner, the Board in No. 573, p. 36.
29
In short, we hold that the 1947 amendments did not restrict an employer's duty to bargain under § 8(a)(5) solely to those unions whose representative status is certified after a Board election.17
B.
30
We next consider the question whether authorization cards are such inherently unreliable indicators of employee desires that, whatever the validity of other alternate routes to representative status, the cards themselves may never be sued to determine a union's majority and to support an order to bargain. In this context, the employers urge us to take the step the 1947 amendments and their legislative history indicate Congress did not take, namely, to rule out completely the use of cards in the bargaining arena. Even if we do not unhesitatingly accept the Fourth Circuit's view in the matter, the employers argue, at the very least we should overrule the Cumberland Shoe doctrine (see supra, at 584) and establish stricter controls over the solicitation of the cards by union representatives.18
31
The objections to the use of cards voiced by the employers and the Fourth Circuit boil down to two contentions:19 (1) that, as contrasted with the election procedure,20 the cards cannot accurately reflect an employee's wishes, either because an employer has not had a chance to present his views and thus a chance to insure that the employee choice was an informed one, or because the choice was the result of group pressures and not individual decision made in the privacy of a voting booth; and (2) that quite apart from the election comparison, the cards are too often obtained through misrepresentation and coercion which compound the cards' inherent inferiority to the election process. Neither contention is persuasive, and each proves too much. The Board itself has recognized, and continues to do so here, that secret elections are generally the most satisfactory—indeed the preferred—method of ascertaining whether a union has majority support.21 The acknowledged superiority of the election process, however, does not mean that cards are thereby rendered totally invalid, for where an employer engages in conduct disruptive of the election process, cards may be the most effective—perhaps the only—way of assuring employee choice. As for misrepresentation, in any specific case of alleged irregularity in the solicitation of the cards, the proper course is to apply the Board's customary standards (to be discussed more fully below) and rule that there was no majority if the standards were not satisfied. It does not follow that because there are some instances of irregularity, the cards can never be used; otherwise, an employer could put off his bargaining obligation indefinitely through continuing interference with elections.
32
That the cards, though admittedly inferior to the election process, can adequately reflect employee sentiment when that process has been impeded, needs no extended discussion, for the employers' contentions cannot withstand close examination. The employers argue that their employees cannot make an informed choice because the card drive will be over before the employer has had a chance to present his side of the unionization issues. Normally, however, the union will inform the employer of its organization drive early in order to subject the employer to the unfair labor practice provisions of the Act; the union must be able to show the employer's awareness of the drive in order to prove that his contemporaneous conduct constituted unfair labor practices on which a bargaining order can be based if the drive is ultimately successful. See, e.g., Hunt Oil Co., 157 N.L.R.B. 282 (1966); Don Swart Trucking Co., 154 N.L.R.B. 1345 (1965). Thus, in all of the cases here but the Charleston campaign in Heck's the employer, whether informed by the union or not, was aware of the union's organizing drive almost at the outset and began its antiunion campaign at that time; and even in the Heck's Charleston case where the recognition demand came about a week after the solicitation began, the employer was able to deliver a speech before the union obtained a majority. Further, the employers argue that without a secret ballot an employee may, in a card drive, succumb to group pressures or sign simply to get the union 'off his back' and then be unable to change his mind as he would be free to do once inside a voting booth. But the same pressures are likely to be equally present in an election, for election cases arise most often with small bargaining units22 where virtually every voter's sentiments can be carefully and individually canvassed. And no voter, of course, can change his mind after casting a ballot in an election even though he may think better of his choice shortly thereafter.
33
The employers' second complaint, that the cards are too often obtained through misrepresentation and coercion, must be rejected also in view of the Board's present rules for controlling card solicitation, which we view as adequate to the task where the cards involved state their purpose clearly and unambigously on their face. We would be closing our eyes to obvious difficulties, of course, if we did not recognize that there have been abuses, primarily arising out of misrepresentations by union organizers as to whether the effect of signing a card was to designate the union to represent the employee for collective bargaining purposes or merely to authorize it to seek an election to determine that issue. And we would be equally blind if we did not recognize that various courts of appeals and commentators23 have differed significantly as to the effectiveness of the Board's Cumberland Shoe doctrine (see supra, at 584) to cure such abuses.
34
Thus, even where the cards are unambiguous on their face, both the Second Circuit (NLRB v. S. E. Nichols Co., 380 F.2d 438 (1967)) and the Fifth Circuit (Engineers & Fabricators, Inc. v. NLRB, 376 F.2d 482 (1967)) have joined the Fourth Circuit below in rejecting the Board's rule that the cards will be counted unless the solicitor's statements amounted under the circumstances to an assurance that the cards would be used only for an election, or for no other purpose than an election. And even those circuits which have adopted the Board's approach have criticized the Board for tending too often to apply the Cumberland rule too mechanically, declining occasionally to uphold the Board's application of its own rule in a given case. See, e.g., NLRB v. Southbridge Sheet Metal Works, Inc., 380 F.2d 851 (C.A.1st Cir. 1967); NLRB v. Sandy's Stores, Inc., 398 F.2d 268 (C.A.1st Cir. 1968); NLRB v. Swan Super Cleaners, Inc., 384 F.2d 609 (C.A.6th Cir. 1967); NLRB v. Dan Howard Mfg. Co., 390 F.2d 304 (C.A.7th Cir. 1968); Furr's, Inc. v. NLRB, 381 F.2d 562 (C.A.10th Cir. 1967); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW—AFL—CIO v. NLRB, 129 U.S.App.D.C. 196, 392 F.2d 801 (1967). Among those which reject the Cumberland rule, the Fifth Circuit agrees with the Second Circuit (see S. E. Nichols Co., supra), that a card will be vitiated if an employee was left with the impression that he would be able to resolve any lingering doubts and make a final decision in an election, and further requires that the Board probe the subjective intent of each signer, an inquiry expressly avoided by Cumberland. See NLRB v. Southland Paint Co., 394 F.2d 717, 728, 730 (C.A.5th Cir. 1968); Engineers & Fabricators, Inc. v. NLRB, supra. Where the cards are ambiguous on their face, the Fifth Circuit, joined by the Eighth Circuit (see, e.g., NLRB v. Peterson Bros., 342 F.2d 221 (C.A.5th Cir. 1965), and Bauer Welding & Metal Fabricators, Inc. v. NLRB, 358 F.2d 766 (C.A.8th Cir. 1966)), departs still further from the Board rule. And there is a conflict among those courts whicho therwise follow the Board as to single-purpose cards (compare NLRB v. Lenz Co., 396 F.2d 905, 908 (C.A.6th Cir. 1968), with NLRB v. C. J. Glasgow Co., 356 F.2d 476, 478 (C.A.7th Cir. 1966)).
35
We need make no decision as to the conflicting approaches used with regard to dual-purpose cards, for in each of the five organization campaigns in the four cases before us the cards used were single-purpose cards, stating clearly and unambiguously on their face that the signer designated the union as his representative. And even the view forcefully voiced by the Fourth Circuit below that unambiguous cards as well present too many opportunities for misrepresentation comes before us somewhat weakened in view of the fact that there were no allegations of irregularities in four of those five campaigns (Gissel, the two Heck's campaigns,24 and Sinclair). Only in General Steel did the employer challenge the cards on the basis of misrepresentations. There, the trial examiner, after hearing testimony from over 100 employees and applying the traditional Board approach (see n. 5, supra), concluded that 'all of these employees not only intended, but were fully aware, that they were thereby designating the Union as their representative.' Thus, the sole question before us, raised in only one of the four cases here, is whether the Cumberland Shoe doctrine is an adequate rule under the Act for assuring employee free choice.
36
In resolving the conflict among the circuits in favor of approving the Board's Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election. Elections have been, after all, and will continue to be, held in the vast majority of cases; the union will still have to have the signatures of 30%25 of the employees when an employer rejects a bargaining demand and insists that the union seek an election. We cannot agree with the employers here that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else. In addition to approving the use of cards, of course, Congress has expressly authorized reliance on employee signatures alone in other areas of labor relations, even where criminal sanctions hang in the balance,26 and we should not act hastily in disregarding congressional judgments that employees can be counted on to take responsibility for their acts.
37
We agree, however, with the Board's own warnings in Levi Strauss & Co., 172 N.L.R.B. No. 57, 68 L.R.R.M. 1338, 1341, and n. 7 (1968), that in hearing testimony concerning a card challenge, trial examiners should not neglect their obligation to ensure employee free choice by a too easy mechanical application of the Cumberland rule.27 We also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, particularly where company officials have previously threatened reprisals for union activity in violation of § 8(a)(1).28 We therefore reject any rule that requires a probe of an employee's subjective motivations as involving an endless and unreliable inquiry. We nevertheless feel that the trial examiner's findings in General Steel (see n. 5, supra) represent the limits of the Cumberland rule's application. We emphasize that the Board should be careful to guard against an approach any more rigid than that in General Steel. And we reiterate that nothing we say here indicates our approval of the Cumberland Shoe rule when applied to ambiguous, dual-purpose cards.
38
The employers argue as a final reason for rejecting the use of the cards that they are faced with a Hobson's choice29 under current Board rules and will almost inevitably come out the loser. They contend that if they do not make an immediate, personal investigation into possible solicitation irregularities to determine whether in fact the union represents an uncoerced majority, they wil have unlawfully refused to bargain for failure to have a good faith doubt of the union's majority; and if they do make such an investigation, their efforts at polling and interrogation will constitute an unfair labor practice in violation of § 8(a)(1) and they will again be ordered to bargain. As we have pointed out, however, an employer is not obligated to accept a card check as proof of majority status, under the Board's current practice, and he is not required to justify his insistence on an election by making his own investigation of employee sentiment and showing affirmative reasons for doubting the majority status. See Aaron Brothers, 158 N.L.R.B. 1077, 1078. If he does make an investigation, the Board's recent cases indicate that reasonable polling in this regard will not always be termed violative of § 8(a) (1) if conducted in accordance with the requirements seto ut in Struksnes Construction Co., 165 N.L.R.B. No. 102, 65 L.R.R.M. 1385 (1967). And even if an employer's limited interrogation is found violative of the Act, it might not be serious enough to call for a bargaining order. See Aaron Brothers, supra; Hammond & Irving, Inc., 154 N.L.R.B. 1071 (1965). As noted above, the Board has emphasized that not 'any employer conduct found violative of Section 8(a) (1) of the Act, regardless of its nature or gravity, will necessarily support a refusal-to-bargain finding,' Aaron Brothers, supra, at 1079.
C.
39
Remaining before us is the propriety of a bargaining order as a remedy for a § 8(a)(5) refusal to bargain where an employer has committed independent unfair labor practices which have made the holding of a fair election unlikely or which have in fact undermined a union's majority and caused an election to be set aside. We have long held that the Board is not limited to a cease-and-desist order in such cases, but has the authority to issue a bargaining order without first requiring the union to show that it has been able to maintain its majority status. See NLRB v. Katz, 369 U.S. 736, 748, n 16, 82 S.Ct. 1107, 1114, 8 L.Ed.2d 230 (1962); NLRB v. P. Lorillard Co., 314 U.S. 512, 62 S.Ct. 397, 86 L.Ed. 380 (1942). And we have held the Board has the same authority even where it is clear that the union, which once had possession of cards from a majority of the employees, represents only a minority when the bargaining order is entered. Franks Bros. Co. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944). We see no reason now to withdraw this authority from the Board. If the Board could enter only a cease-and-desist order and direct an election or a rerun, it would in effect be rewarding the employer and allowing him 'to profit from (his) own wrongful refusal to bargain,' Franks Bros., supra, at 704, 64 S.Ct. at 818, while at the same time severely curtailing the employees' right freely to determine whether they desire a representative. The employer could continue to delay or disrupt the election processes and put off indefinitely his obligation to bargain;30 and any election held under these circumstances would not be likely to demonstrate the employees' true, undistorted desires.31
40
The employers argue that the Board has ample remedies, over and above the cease-and-desist order, to control employer misconduct. The Board can, they assert, direct the companies to mail notices to employees, to read notices to employees during plant time and to give the union access to employees during working time at the plant, or it can seek a court injunctive order under § 10(j) (29 U.S.C. § 160(j)) as a last resort. In view of the Board's power, they conclude, the bargaining order is an unnecessarily harsh remedy that needlessly prejudices employees' § 7 rights solely for the purpose of punishing or restraining an employer. Such an argument ignores that a bargaining order is designed as much to remedy past election damage32 as it is to deter future misconduct. If an employer has succeeded in undermining a union's strength and destroying the laboratory conditions necessary for a fair election, he may see no need to violate a cease-and-desist order by further unlawful activity. The damage will have been done, and perhaps the only fair way to effectuate employee rights is to re-establish the conditions as they existed before the employer's unlawful campaign.33 There is, after all, nothing permanent in a bargaining order, and if, after the effects of the employer's acts have worn off, the employees clearly desire to disavow the union, they can do so by filing a representation petition. for, as we pointed out long ago, in finding that a bargaining order involved no 'injustice to employees who may wish to substitute for the particular union some other * * * arrangement,' a bargaining relationship 'once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed,' after which the 'Board may, * * * upon a proper showing, take steps in recognition of changed situations which might make appropriate changed bargaining relationships.' Franks Bros., supra, at 705—706, 64 S.Ct. at 819.
41
Before considering whether the bargaining orders were appropriately entered in these cases, we should summarize the factors that go into such a determination. Despite our reversal of the Fourth Circuit below in Nos. 573 and 691 on all major issues, the actual area of disagreement between our position here and that of the Fourth Circuit is not large as a practical matter. While refusing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possibility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in 'exceptional' cases marked by 'outrageous' and 'pervasive' unfair labor practices. Such an order would be an appropriate remedy for those practices, the court noted, if they are of 'such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had.' NLRB v. S. S. Logan Packing Co., 386 F.2d 562, 570 (C.A.4th Cir. 1967); see also NLRB v. Heck's, Inc., 398 F.2d 337, 338. The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a § 8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices. See, e.g., United Steelworkers of America v. NLRB, 126 U.S.App.D.C. 215, 376 F.2d 770 (1967); J. C. Penney Co., Inc. v. NLRB, 384 F.2d 479, 485—486 (C.A.10th Cir. 1967).
42
The only effect of our holding here is to approve the Board's use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. The Board's authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue (see n. 32, supra).
43
We emphasize that under the Board's remedial power there is still a third category of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order. There is, the Board says, no per se rule that the commission of any unfair practice will automatically result in a § 8(a)(5) violation and the issuance of an order to bargain. See Aaron Brothers, supra.
44
With these considerations in mind, we turn to an examination of the orders in these cases. In Sinclair, No. 585, the Board made a finding, left undisturbed by the First Circuit, that the employer's threats of reprisal were so coercive that, even in the absence of a § 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of those threats.34 The Board therefore did not have to make the determination called for in the intermediate situation above that the risks that a fair rerun electin might not be possible were too great to disregard the desires of the employees already expressed through the cards. The employer argues, however, that its communications to its employees were protected by the First Amendment and § 8(c) of the Act (29 U.S.C. § 158 (c)), whatever the effect of those communications on the union's majority or the Board's ability to ensure a fair election; it is to that contention that we shall direct our final attention in the next section.
45
In the three cases in Nos. 573 and 691 from the Fourth Circuit, on the other hand, the Board did not make a similar finding that a bargaining order would have been necessary in the absence of an unlawful refusal to bargain. Nor did it make a finding that, even though traditional remedies might be able to ensure a fair election, there was insufficient indication that an election (or a rerun in General Steel) would definitely be a more reliable test of the employees' desires than the card count taken before the unfair labor practices occurred. The employees argue that such findings would not be warranted, and the court below ruled in General Steel that available remedies short of a bargaining order could guarantee a fair election. 398 F.2d 339, 340, n. 3. We think it possible that the requisite findings were implicit in the Board's decisions below to issue bargaining orders (and to set aside the election in General Steel); and we think it clearly inappropriate for the court below to make any contrary finding on its own (see n. 32, supra). Because the Board's current practice at the time required it to phrase its findings in terms of an employer's good or bad faith doubts (see Part II, supra), however, the precise analysis the Board now puts forth was not employed below, and we therefore remand these cases for proper findings.
IV.
46
We consider finally petitioner Sinclair's First Amendment challenge to the holding of the Board and the Court of Appeals for the First Circuit. At the outset we note that the question raised here most often arises in the context of a nascent union organizational drive, where employers must be careful in waging their antiunion campaign. As to conduct generally, the above-noted gradations of unfair labor practices, with their varying consequences, create certain hazards for employers when they seek to estimate or resist unionization efforts. But so long as the differences involve conduct easily avoided, such as discharge, surveillance, and coercive interrogation, we do not think that employers can complain that the distinctions are unreasonably difficult to follow. Where an employer's antiunion efforts consist of speech alone, however, the difficulties raised are not so easily resolved. The Board has eliminated some of the problem areas by no longer requiring an employer to show affirmative reasons for insisting on an election and by permitting him to make reasonable inquiries. We do not decide, of course, whether these allowances are mandatory. But we do note that an employer's free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board. Thus, § 8(c) (29 U.S.C. § 158(c)) merely implements the First Amendment by requiring that the expression of 'any views, argument, or opinion' shall not be 'evidence of an unfair labor practice,' so long as such expression contains 'no threat of reprisal or force or promise of benefit' in violation of § 8(a)(1). Section 8(a)(1), in turn, prohibits interference, restraint or coercion of employees in the exercise of their right to self-organization.
47
Any assessment of the precise scope of employer expression, of o urse, must be made in the context of its labor relations setting. Thus, an employer's rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in § 7 and protected by § 8(a)(1) and the proviso to § 8(c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. Stating these obvious principles is but another way of recognizing that what is basically at stake is the establishment of a nonpermanent, limited relationship between the employer, his economically dependent employee and his union agent, not the election of legislators or the enactment of legislation whereby that relationship is ultimately defined and where the independent voter may be freer to listen more objectively and employers as a class freer to talk. Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
48
Within this framework, we must reject the Company's challenge to the decision below and the findings of the Board on which is was based. The standards used below for evaluating the impact of an employer's statements are not seriously questioned by petitioner and we see no need to tamper with them here. Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a 'threat of reprisal or force or promise of benefit.' He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, n. 20, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coersion, and as such without the protection of the First Amendment. We therefore agree with the court below that '(c)onveyance of the employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof.' 397 F.2d 157, 160. As stated elsewhere, an employer is free only to tell 'what he reasonably believes will be the likely economic consequences of unionization that are outside his control,' and not 'threats of economic reprisal to be taken solely on his own volition.' NLRB v. River Togs, Inc., 382 F.2d 198, 202 (C.A.2d Cir. 1967).
49
Equally valid was the finding by the court and the Board that petitioner's statements and communications were not cast as a prediction of 'demonstrable 'economic consequences," 397 F.2d, at 160, but rather as a threat of retaliatory action. The Board found that petitioner's speeches, pamphlets, leaflets, and letters conveyed the following message: that the company was in a precarious financial condition; that the 'strike-happy' union would in all likelihood have to obtain its potentially unreasonable demands by striking, the probable result of which would be a plant shutdown, as the past history of labor relations in the area indicated; and that the employees in such a case would have great difficulty finding employment elsewhere. In carrying out its duty to focus on the question: '(W)hat did the speaker intend and the listener understand?' (A. Cox Law and the National Labor Policy 44 (1960)), the Board could reasonably conclude that the intended and understood import of that message was not to predict that unionization would inevitably cause the plant to close but to threaten to throw employees out of work regardless of the economic realities. In this connection, we need go no further than to point out (1) that petitioner had no support for its basic assumption that the union, which had not yet even presented any demands, would have to strike to be heard, and that it admitted at the hearing that it had no basis for attributing other plant closings in the area to unionism; and (2) that the Board has often found that employees, who are particularly sensitive to rumors of plant closings,35 take such hints as coercive threats rather than honest forecasts.36
50
Petitioner argues that the line between so-called permitted predictions and proscribed threats is too vague to stand up under traditional First Amendment analysis and that the Board's discretion to curtail free speech rights is correspondingly too uncontrolled. It is true that a reviewing court must recognize the Board's competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship, see NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 479, 62 S.Ct. 344, 349, 86 L.Ed. 348 (1941). But an employer, who has control over that relationship and therefore knows it best, cannot be heard to complain that he is without an adequate guide for his behavior. He can easily make his views known without engaging in "brinkmanship" when it becomes all too easy to 'overstep and tumble (over) the brink,' Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (C.A.7th Cir. 1967). At the least he can avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees.
51
For the foregoing reasons, we affirm the judgment of the Court of Appeals for the First Circuit in No. 585, and we reverse the judgments of the Court of Appeals for the Fourth Circuit in Nos. 573 and 691 insofar as they decline enforcement of the Board's orders to bargain and remand those cases to that court with directions to remand to the Board for further proceedings in conformity with this opinion.
52
It is so ordered.
53
Judgment in No. 585 affirmed, and judgments in Nos. 573 and 691 reversed in part and cases remanded with directions.
1
At the outset of the Union campaign, the Company vice president informed two employees, later discharged, that if they were caught talking to Union men, 'you God-damned things will go.' Subsequently, the Union presented oral and written demands for recognition, claiming possession of authorization cards from 31 of the 47 employees in the appropriate unit. Rejecting the bargaining demand, the Company began to interrogate employees as to their Union activities; to promise them better benefits than the Union could offer; and to warn them that if the 'union got in, (the vice president) would just take his money and let the union run the place,' that the Union was not going to get in, and that it would have to 'fight' the Company first. Further, when the Company learned of an impending Union meeting, it arranged, so the Board later found, to have an agent present to report the identity of the Union's adherents. On the first day following the meeting, the vice president told the two employees referred to above that he knew they had gone to the meeting and that their work hours were henceforth reduced to half a day. Three hours later, the two employees were discharged.
2
The organizing drive was initiated by the employees themselves at Heck's Charleston warehouses. The Union first demanded recognition on the basis of 13 cards from 26 employees of the Company's three Charleston warehouses. After responding 'No comment' to the Union's repeated requests for recognition, the president assembled the employees and told them of his shock at their selection of the Union; he singled out one of the employees to ask if he had signed an authorization card. The next day the Union obtained the additional card necessary to establish a majority. That same day, the leading Union supporter (the employee who had first established contacts with the Union and had solicited a large number of the cards) was discharged, and another employee was interrogated as to his Union activities, encouraged to withdraw his authorization, and warned that a Union victory could result in reduced hours, fewer raises, and wih drawal of bonuses. A second demand for recognition was made two days later, and thereafter the president summoned two known Union supporters to his office and offered them new jobs at higher pay if they would use their influence to 'break up the union.'
The same pattern was repeated a year later at the Company's Ashland, Kentucky, store, where the Union obtained cards from 21 of the 38 employees by October 5, 1965. The next day, the assistant store manager told an employee that he knew that the Union had acquired majority status. When the Union requested recognition on October 8, however, the Company refused on the ground that it was not sure whether department heads were included in the bargaining unit—even though the cards represented a majority with or without the department heads. After a second request for recognition and an offer to submit the cards to the employer for verification, respondent again refused, on grounds of uncertainty about the definition of the unit and because a poll taken by the Company showed that a majority of the employees did not want Union representation. Meanwhile, the Company told the employees that an employee of another company store had been fired on the spot for signing a card, warned employees that the Company knew which ones had signed cards, and polled employees about their desire for Union representation without giving them assurances against reprisals.
3
Throughout the Union's six-month organizational campaign both before and after its demand for recognition based on possession of cards from 120 of the 207 employees in the appropriate unit—the Company's foremen and supervisors interrogated employees about their Union involvement; threatened them with discharge for engaging in Union activities or voting for the Union; suggested that unionization might hurt business and make new jobs more difficult to obtain; warned that strikes and other dire economic consequences would result (a supervisor informed a group of employees that if the Union came in, 'a nigger would be the head of it,' and that when the Company put in 10 new machines, 'the niggers would be the operators of them'); and asserted that, although the Company would have to negotiate with the Union, it could negotiate endlessly and would not have to sign anything.
4
The cards used in all four campaigns in Nos. 573 and 691 and in the one drive in No. 585 unambiguously authorized the Union to represent the signing employee for collective bargaining purposes; there was no reference to elections. Typical of the cards was the one used in the Charleston campaign in Heck's, and it stated in relevant part:
'Desiring to become a member of the above Union of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, I hereby make application for admission to membership. I hereby authorize you, your agents or representatives to act for me as collective bargaining agent on all matters pertaining to rates of pay, hours, or any other conditions of employment.'
5
'Accordingly, I reject Respondent's contention 'that if a man is told that his card will be secret, or will be shown only to the Labor Board for the purpose of obtaining election, that this is the absolute equivalent of telling him that it will be used 'only' for purposes of obtaining an election.'
6
See, e.g., Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951); NLRB v. Gotham Shoe Mfg. Co., Inc., 359 F.2d 684 (C.A.2d Cir. 1966); NLRB v. Quality Markets, Inc., 387 F.2d 20 (C.A.3d Cir. 1967); NLRB v. Phil-Modes, Inc., 396 F.2d 131 (C.A.5th Cir. 1968); Atlas Engine Works, Inc. v. NLRB, 396 F.2d 775 (C.A.6th Cir. 1968), petition for certiorari pending; NLRB v. Clark Products, Inc., 385 F.2d 396 (C.A.7th Cir. 1967); NLRB v. Ralph Printing & Lithographing Co., 379 F.2d 687 (C.A.8th Cir. 1967); NLRB v. Luisi Truck Lines, 384 F.2d 842 (C.A.9th Cir. 1967); Furr's, Inc. v. NLRB, 381 F.2d 562 (C.A.10th Cir.), cert. denied, 389 U.S. 840, 88 S.Ct. 70, 19 L.Ed.2d 105 (1967).
In addition to the First Circuit below, four courts of appeals have subsequently considered the Fourth Circuit's view of the cards and specifically rejected it. NLRB v. United Mineral & Chemical Corp., 391 F.2d 829, 836, n. 10 (C.A.2d Cir. 1968); NLRB v. Goodyear Tire & Rubber Co., 394 F.2d 711, 712—713 (C.A.5th Cir. 1968); NLRB v. Atco-Surgical Supports, 394 F.2d 659, 660 (C.A.6th Cir. 1968); NLRB v. Ozark Motor Lines, 403 F.2d 356 (C.A.8th Cir. 1968).
7
In 1967, for instance, the Board conducted 8,116 elections but issued only 157 bargaining orders based on a card majority. Levi Strauss & Co., 172 N.L.R.B. No. 57, 68 L.R.R.M. 1338, 1342, n. 9 (1968). See also Sheinkman, Recognition of Unions Through Authorization Cards, 3 Ga.L.Rev. 319 (1969). The number of card cases that year, however, represents a rather dramatic increase over previous years from 12 such cases in 1964, 24 in 1965, and about 117 in 1966. Browne, Obligation to Bargain on Basis of Card Majority, 3 Ga.L.Rev. 334, 347 (1969).
8
See, e.g., Aaron Brothers, 158 N.L.R.B. 1077 (1966); cf., General Shoe Corp., 77 N.L.R.B. 124 (1948). An employer, of course, may not, even if he acts in good faith, recognize a minority union, International Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961).
9
NLRB v. Dahlstrom Metallic Door Co., 112 F.2d 756, 757 (C.A.2d Cir. 1940).
10
See, e.g., Denver Auto Dealers Assn., 10 N.L.R.B. 1173 (1939); Century Mills, Inc., 5 N.L.R.B. 807 (1938).
11
The right of an employer lawfully to refuse to bargain if he had a good faith doubt as to the Union's majority status, even if in fact the Union did represent a majority, was recognized early in the administration of the Act, see NLRB v. Remington Rand, Inc., 94 F.2d 862, 868 (C.A.2d Cir.), cert. denied, 304 U.S. 576, 58 S.Ct. 1046, 82 L.Ed. 1540 (1938).
12
See n. 11, supra.
13
Section 9(c) of the Wagner Act had provided:
'Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify * * * the name or names of the representatives that have been designated or selected. In any such investigation, the Board * * * may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives.'
14
E.g., protection against the filing of new election petitions by rival unions or employees seeking decertification for 12 months (§ 9(c)(3)), protection for a reasonable period, usually one year, against any disruption of the bargaining relationship because of claims that the union no longer represents a majority (see Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954)), protection against recognitional picketing by rival unions (§ 8(b) (4)(C)), and freedom from the restrictions placed in work assignments disputes by § 8(b)(4)(D), and on recognitional and organizational picketing by § 8(b) (7).
15
Under the Wagner Act, which did not prescribe h o would file election petitions, the Board had ruled that an employer could seek an election only when two unions presented conflicting bargaining requests on the ground that if he were given the same election petition rights as the union, he could interrupt union drives by demanding an election before the union had obtained majority status. The 1947 amendments resolved the difficulty by providing that an employer could seek an election only after he had been requested to bargain. See H.R.Rep. No. 245, 80th Cong., 1st Sess., 35 (1947).
16
The Senate report stated that the 'present Board rules * * * discriminate against employers who have reasonable grounds for believing that labor organizations claiming to represent their employees are really not the choice of the majority.' S.Rep. No. 105, 80th Cong., 1st Sess., 10 (1947). Senator Taft stated during the debates:
'Today an employer is faced with this situation. A man comes into his office and says. 'I represent your employees. Sign this agreement, or we strike tomorrow.' * * * The employer has no way in which to determine whether this man really does represent his employees or does not. The bill gives him the right to go to the Board * * * and say, 'I want an election. I want to know who is the bargaining agent for my employees." 93 Cong.Rec. 3838 (1947).
17
As aptly stated in Lesnick, Establishment of Bargaining Rights Without an NLRB Election, 65 Mich.L.Rev. 851, 861—862 (1967):
'Cards have been used under the act for thirty years; (this) Court has repeatedly held that certification is not the only route to representative status; and the 1947 attempt in the House-passed Hartley Bill to amend section 8(a)(5) * * * was rejected by the conference committee that produced the Taft-Hartley Act. No amount of drum-beating should be permitted to overcome, without legislation, this history.'
18
In dealing with the reliability of cards, we should re-emphasize what issues we are not confronting. As pointed out above, we are not here faced with a situation where an employer, with 'good' or 'bad' subjective motivation, has rejected a card-based bargaining request without good reason and has insisted that the Union go to an election while at the same time refraining from committing unfair labor practices that would tend to disturb the 'laboratory conditions' of that election. We thus need not decide whether, absent election interference by an employer's unfair labor practices, he may obtain an election only if he petitions for one himself; whether, if he does not, he must bargain with a card majority if the Union chooses not to seek an election; and whether, in the latter situation, he is bound by the Board's ultimate determination of the card results regardless of his earlier good faith doubts, or whether he can still insist on a Union-sought election if he makes an affirmative showing of his positive reasons for believing there is a representation dispute. In short, a union's right to rely on cards as a freely interchangeable substitute for elections where there has been no election interference is not put in issue here; we need only decide whether the cards are reliable enough to support a bargaining order where a fair election probably could not have been held, or where an election that was held was in fact set aside.
19
The Board's reliance on authorization cards has provoked considerable scholarly controversy. Compare criticism of Board policy, particularly its treatment of ambiguous, dual-purpose cards, in Browne, supra, n. 7, and Comment, Union Authorization Cards, 75 Yale L.J. 805 (1966), with defense of Board practice in Lesnick, supra, n. 17 Welles, The Obligation to Bargain on the Basis of a Card Majority, 3 Ga.L.Rev. 349 (1969); and Comment, Union Authorization Cards: A Reliable Basis for an NLRB Order To Bargain?, 47 Texas L.Rev. 87 (1968).
20
For a comparison of the card procedure and the election process, see discussion in NLRB v. S. S. Logan Packing Co., 386 F.2d 562, 564—566 (C.A.4th Cir. 1967).
21
See nn. 7—8, supra.
22
See Comment, Union Authorization Cards: A Reliable Basis for an NLRB Order To Bargain?, supra, at 94 and n. 32.
23
See n. 19, supra.
24
In the Charleston campaign in Heck's, the employees handled the card drive themselves from beginning to end, contacting the union, obtaining the blank authorization cards, and soliciting their fellow employees on that basis; no union agents were involved in the card signing.
25
See 1969 CCH Guidebook to Labor Relations 402.4.
26
Criminal sanctions are imposed by § 302 (29 U.S.C. § 186) which makes it unlawful for an employer to pay to and for a union representative to receive 'any money or other thing of value.' Section 302(c)(4) (29 U.S.C. § 186(c)(4)) exempts payments by employers to union representatives of union dues, however, where an employee has executed a 'written assignment' of the dues, i.e., a checkoff authorization. Signatures are also relied on in § 9(c)(1)(A) (29 U.S.C. § 159(c)(1)(A)), which provides for Board processing of representation and decertification petitions when each is supported by a 'substantial number of employees' (the basis for the 30% signature requirement, see n. 25, supra,) and in § 9(e) which specifically provides for 30% of the signatures in the bargaining unit to empower the Board to hold a union shop de-authorization elet ion.
27
In explaining and reaffirming the Cumberland Shoe doctrine in the context of unambiguous cards, the Board stated:
'Thus the fact that employees are told in the course of solicitation that an election is contemplated, or that a purpose of the card is to make an election possible, provides in our view insufficient basis in itself for vitiating unambiguously worded authorization cards on the theory of misrepresentation. A different situation is presented, of course, where union organizers solicit cards on the explicit or indirectly expressed representation that they will use such cards only for an election and subsequently seek to use them for a different purpose * * *.'
The Board stated further in a footnote:
'The foregoing does not of course imply that a finding of misrepresentation is confined to situations where employees are expressly told in haec verba that the 'sole' or 'only' purpose of the cards is to obtain an election. The Board has never suggested such a mechanistic application of the foregoing principles, as some have contended. The Board looks to substance rather than to form. It is not the use or nonuse of certain key or 'magic' words that is controlling, but whether or not the totality of circumstances surrounding the card solicitation is such, as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election.' 172 N.L.R.B. No. 57, 68 L.R.R.M. 1338, 1341—1342, and n. 7.
28
See Sheinkman, supra, n. 7, at 332—333.
29
See Judge Brown's 'Scylla and Charybdis' analogy in NLRB v. Dan River Mills, 274 F.2d 381, 388 (C.A.5th Cir. 1960).
30
The Board indicates here that its records show that in the period between January and June 1968, the median time between the filing of an unfair labor practice charge and a Board decision in a contested case was 388 days. But the employer can do more than just put off his bargaining obligation by seeking to slow down the Board's administrative processes. He can also affect the outcome of a rerun election by delaying tactics, for figures show that the longer the time between a tainted election and a rerun, the less are the union's chances of reversing the outcome of the first election. See n. 31, infra.
31
A study of 20,153 elections held between 1960 and 1962 shows that in the 267 cases where rerun elections the party who caused the election to be set aside. See Pollitt, NLRB Re-Run Elections: A Study, 41 N.C.L.Rev. 209, 212 (1963). The study shows further that certain unfair labor practices are more effective to destroy election conditions for a longer period of time than others. For instance, in cases involving threats to close or transfer plant operations, the union won the rerun only 29% of the time, while threats to eliminate benefits or refuse to deal with the union of elected seemed less irremediable with the union winning the rerun 75% of the time. Id., at 215—216. Finally, time appears to be a factor. The figures suggest that if a rerun is held too soon after the election before the effects of the unfair labor practices have worn off, or too long after the election when interest in the union may have waned, the chances for a changed result occurring are not as good as they are if the rerun is held somei me in between those periods. Thus, the study showed that if the rerun is held within 30 days of the election or over nine months after, the chances that a different result will occur are only one in five; when the rerun is held within 30—60 days after the election, the chances for a changed result are two in five. Id., at 221.
32
The employers argue that the Fourth Circuit correcty observed that, 'in the great majority of cases, a cease and desist order with the posting of appropriate notices will eliminate any undue influences upon employees voting in the security of anonymity.' NLRB v. S. S. Logan Packing Co., 386 F.2d, at 570. It is for the Board and not the courts, however, to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity. In fashioning its remedies under the broad provisions of § 10(c) of the Act (29 U.S.C. 160(c)), the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts. See Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). '(I)t is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency.' Consolo v. FMC, 383 U.S. 607, 621, 86 S.Ct. 1018, 1027, 16 L.Ed.2d 131 (1966).
33
It has been pointed out that employee rights are affected whether or not a bargaining order is entered, for those who desire representation may not be protected by an inadequate rerun election, and those who oppose collective bargaining may be prejudiced by a bargaining order if in fact the union would have lost an election absent employer coercion. See Lesnick, supra, n. 17, at 862. Any effect will be minimal at best, however, for there 'is every reason for the union to negotiate a contract that will satisfy the majority, for the union will surely realize that it must win the support of the emply ees, in the face of a hostile employer, in order to survive the threat of a decertification election after a year has passed.' Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 135 (1964).
34
Under the doctrine of Bernel Foam Products Co., 146 N.L.R.B. 1277 (1964), there is nothing inconsistent in the Union's filing an election petition and thereby agreeing that a question of representation exists, and then filing a refusal-to-bargain charge after the election is lost because of the employer's unfair labor practices.
35
See Bok, supra, n. 33, at 77; n. 31, supra.
36
See, e.g., Kolmar Laboratories, Inc., 159 N.L.R.B. 805, 807—810, and cases (relied on by the trial examiner here) cited at 809, n. 3, enforced, 387 F.2d 833 (C.A.7th Cir. 1967); Surprenant Mfg. Co., 144 N.L.R.B. 507, 510—511, enforced, 341 F.2d 756, 761 (C.A.6th Cir. 1965).
| 67
|
395 U.S. 784
89 S.Ct. 2056
23 L.Ed.2d 707
John Dalmer BENTON, Petitioner,v.State of MARYLAND.
No. 201.
Reargued March 24, 1969.
Decided June 23, 1969.
M. Michael Cramer, Washington, D.C., for petitioner.
Peter L. Strauss, Washington, D.C., for the United States, as amicus curiae, at the invitation of the Court.
Francis B. Burch, Baltimore, Md., for respondent.
Mr. Justice MARSHALL, delivered the opinion of the Court.
1
In August 1965, petitioner was tried in a Maryland state court on charges of burglary and larceny. The jury found petitioner not guilty of larceny but convicted him on the burglary count. He was sentenced to 10 years in prison. Shortly after his notice of appeal was filed in the Maryland Court on Appeals, that court handed down its decision in the case of Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965). In Schowgurow the Maryland Court of Appeals struck down a section of the state constitution which required jurors to swear their belief in the existence of God. As a result of this decision, petitioner's case was remanded to the trial court. Because both the grand and petit juries in petitioner's case had been selected under the invalid constitutional provision, petitioner was given the option of demanding re-indictment and retrial. He chose to have his conviction set aside, and a new indictment and new trial followed. At this second trial, petitioner was again charged with both larceny and burglary. Petitioner objected to retrial on the larceny count, arguing that because the first jury had found him not guilty of larceny, retrial would violate the constitutional prohibition against subjecting persons to double jeopardy for the same offense. The trial judge denied petitioner's motion to dismiss the larceny charge, and petitioner was tried for both larceny and burglary. This time the jury found petitioner guilty of both offenses, and the judge sentenced him to 5 years on the burglary count1 and 5 years for larceny, the sentences to run concurrently. On appeal to the newly created Maryland Court of Special Appeals, petitioner's double jeopardy claim was rejected on the merits. 1 Md.App. 647, 232 A.2d 541 (1967). The Court of Appeals denied discretionary review.
2
On the last day of last Term, we granted certiorari, 392 U.S. 925, 88 S.Ct. 2297, 20 L.Ed.2d 1384 (1968), but limited the writ to the consideration of two issues:
3
'(1) Is the double jeopardy clause of the Fifth Amendment applicable to the States through the Fourteenth Amendment?
4
'(2) If so, was the petitioner 'twice put in jeopardy' in this case?' After oral argument, it became clear that the existence of a concurrent sentence on the burglary count might prevent the Court from reaching the double jeopardy issue, at least if we found that any error affected only petitioner's larceny conviction. Therefore, we scheduled the case for reargument, 393 U.S. 994, 89 S.Ct. 481, 21 L.Ed.2d 460 (1968), limited to the following additional question not included in the original writ:
5
'Does the 'concurrent sentence doctrines,' enunciated in Hirabayashi v. United States, 320 U.S. 81, 105, 63 S.Ct. 1375, 87 L.Ed. 1774, and subsequent cases, have continuing validity in light of such decisions as Ginsberg v. New York, 390 U.S. 629, 633, n. 2 (88 S.Ct. 1274, 20 L.Ed.2d 195), Peyton v. Rowe, 391 U.S. 54 (88 S.Ct. 1549, 20 L.Ed.2d 426), Carafas v. LaVallee, 391 U.S. 234, 237—238 (88 S.Ct. 1556, 20 L.Ed.2d 554), and Sibron v. New York, 392 U.S. 40, 50—58 (88 S.Ct. 1889, 20 L.Ed.2d 917)?'
6
The Solicitor General was invited to file a brief expressing the views of the United States and to participate in oral argument.
7
After consideration of all the questions before us, we find no bar to our decision of the double jeopardy issue. On the merits, we hold that the Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment, and we reverse petitioner's conviction for larceny.
I.
8
At the outset of this case we are confronted with a jurisdictional problem. If the error specified in the original writ of certiorari were found to affect only petitioner's larceny conviction,2 reversal of that conviction would not require the State to change the terms of petitioner's confinement. Whatever the status of his sentence on the larceny conviction, petitioner would probably stay in prison until he had served out his sentence for burglary.3 Is there, in these circumstances, a live 'case' or 'controversy' suitable for resolution by this Court, or is the issue moot? Is petitioner asking for an advisory opinion on an abstract or hypothetical question? The answer to these questions is crucial, for it is well settled that federal courts may act only in the context of a justiciable case or controversy. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911); see Flast v. Cohen, 392 U.S. 83, 94—97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968).
9
The language used in a number of this Court's opinions might be read to indicate that the existence of a valid concurrent sentence removes the necessary elements of a justiciable controversy. The 'concurrent sentence dot rine' took root in this country quite early, although its earliest manifestations occurred in slightly different contexts. In Locke v. United States, 7 Cranch 339, 3 L.Ed. 364 (1813), a cargo belonging to the plaintiff in error had been condemned under a libel containing 11 counts. Chief Justice John Marshall, speaking for the Court, found it unnecessary to consider Locke's challenges to all 11 counts. He declared, simply enough, 'The Court however, is of opinion, that the 4th count is good, and this renders it unnecessary to decide on the others.' Id., at 344. Similar reasoning was later applied in a case where a singe general sentence rested on convictions under several counts of an indictment. Drawing upon some English cases and some dicta from Lord Mansfield,4 the Court in Claassen v. United States, 142 U.S. 140, 146, 12 S.Ct. 169, 170, 35 L.Ed. 966 (1891) held that if the defendant had validly been convicted on any one count 'the other counts need not be considered.' The most widely cited application of this approach to cases where concurrent sentences rather than a single general sentence, have been imposed is Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). In that case the defendant had been found guilty of two different offenses and had received concurrent three-month sentences. He challenged the constitutionality of both convictions, but this Court affirmed the lower court's judgment after considering and rejecting only one of his challenges. Since the conviction on the second count was valid, the Court found it 'unnecessary' to consider the challenge to the first count. Id., at 85, 105, 63 S.Ct. at 1375, 1387.
10
The concurrent sentence doctrine has been widely, if somewhat haphazardly, applied in this Court's decisions. At times the Court has seemed to say that the doctrine raises a jurisdictional bar to the consideration of counts under concurrent sentences. Some opinions have baldly declared that judgments of conviction 'must be upheld' if any one count was good. Barenblatt v. United States, 360 U.S. 109, 115, 79 S.Ct. 1081, 1087, 3 L.Ed.2d 1115 (1959); see United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 756, 13 L.Ed.2d 658 (1965). In other cases the Court has chosen somewhat weaker language, indicating only that a judgment 'may be affirmed if the conviction on either count is valid.' Roviaro v. United States, 353 U.S. 53, 59, n. 6, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). And on at least one occasion, the Court has ignored the rule entirely and decided an issue that affected only one count, even though there were concurrent sentences. Putnam v. United States, 162 U.S. 687, 16 S.Ct. 923, 40 L.Ed. 1118 (1896).
11
One can search through these cases, and related ones, without finding any satisfactory explanation for the concurrent sentence doctrine. See United States v. Hines, 256 F.2d 561, 562—563 (C.A.2d Cir. 1958). But whatever the underlying justifications for the doctrine, it seems clear to us that it cannot be taken to state a jurisdictional rule. See Yates v. United States, 355 U.S. 66, 75 76, 78 S.Ct. 128, 134, 2 L.Ed.2d 95 (1957); Putnam v. United States, supra. Moreover, whatever may have been the approach in the past, our recent decisions on the question of mootness in criminal cases make it perfectly clear that the existence of concurrent sentences does not remove the elements necessary to create a justiciable case or controversy.
12
In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), we held that a criminal case did not become moot upon the expiration of the sentence imposed. We noted 'the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.' Id., at 55, 88 S.Ct., at 1899. We concluded that the mere possibility of such collateral conneces ary to make it a justiciable case the 'impact of actuality' which was necessary to make it a justiciable case or controversy. Sibron and a number of other recent cases have canvassed the possible adverse collateral effects of criminal convictions,5 and we need not repeat that analysis here. It is enough to say that there are such possibilities in this case. For example, there are a few States which consider all prior felony convictions for the purpose of enhancing sentence under habitual criminal statutes, even if the convictions actually constituted only separate counts in a single indictment tried on the same day.6 Petitioner might some day in one of these States have both his larceny and burglary convictions counted against him. Although this possibility may well be a remote one, it is enough to give this case an adversary cast and make it justiciable. Moreover, as in Sibron, both of petitioner's convictions might some day be used to impeach his character if put in issue at a future trial. Although petitioner could explain that both convictions arose out of the same transaction, a jury might not be able to appreciate this subtlety.
13
We cannot, therefore, say that this Court lacks jurisdiction to decide petitioner's challenge to his larceny conviction. It may be that in certain circumstances a federal appellate court, as a matter of discretion, might decide (as in Hirabayashi) that it is 'unnecessary' to consider all the allegations made by a particular party.7 The concurrent sentence rule may have some continuing validity as a rule of judicial convenience. That is not a subject we must canvass today, however. It is sufficient for present purposes to hold that there is no jurisdictional bar to consideration of challenges to multiple convictions, even though concurrent sentences were imposed.
II.
14
While Maryland apparently agrees that there is no jurisdictional bar to consideration of petitioner's larceny conviction, it argues that the possibility of collateral consequences is so remote in this case that any double jeopardy violation should be treated as a species of 'harmless error.' The Solicitor General, while not commenting at length on the facts of this particular case, suggests that we treat the concurrent sentence doctrine as a principle of judicial efficiency which permits judges to avoid decision of issues which have no appreciable impact on the rights of any party. Both Maryland and the Solicitor General argue that the defendant should bear the burden of convincing the appellate court of the need to review all his concurrent sentences. Petitioner, on the other hand, sees in Sibron a command that federal appellate courts treat all errors which may possibly affect a defendant's rights, and he argues that the concurrent sentence rule therefore has no continuing validity, even as ar ule of convenience.
15
Because of the special circumstances in this case, we find it unnecessary to resolve this dispute. For even if the concurrent sentence doctrine survives as a rule of judicial convenience, we find good reason not to apply it here. On direct appeal from petitioner's conviction, the Maryland Court of Special Appeals did in fact rule on his double jeopardy challenge to the larceny count. 1 Md.App., at 650—651, 232 A.2d, at 542—543. It is unclear whether Maryland courts always consider all challenges raised on direct appeal, notwithstanding the existence of concurrent sentences,8 but at least in this case the State decided not to apply the concurrent sentence rule. This may well indicate that the State has some interest in keeping the larceny conviction alive;9 if, as Maryland argues here, the larceny conviction is of no importance to either party, one wonders why the state courts found it necessary to pass on it. Since the future importance of the conviction may well turn on issues of state law about which we are not well informed, we propose, on direct appeal from the Maryland courts, to accept their judgment on this question. Since they decided this federal constitutional question, we see no reason why we should not do so as well. Moreover, the status of petitioner's burglary conviction and the eventual length of his sentence are both still in some doubt.10 Should any attack on the burglary conviction be successful, or should the length of the burglary sentence be reduced to less than five years, petitioner would then clearly have a right to have his larceny conviction reviewed. As we said in Sibron v. New York, supra, at 56—57, 88 S.Ct., at 1889, 1899, it is certainly preferable to have that review now on direct appeal, rather than later.11 For these reasons, and because there is no jurisdictional bar, we find it appropriate to reach the questions specified in our original writ of certiorari.
III.
16
In 1937, this Court decided the landmark case of Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. Palko, although indicted for first-degree murder, had been convicted of murder in the second degree after a jury trial in a Connecticut state court. The State appealed and won a new trial. Palko argued that the Fourteenth Amendment incorporated, as against the States, the Fifth Amendment requirement that no person 'be subject for the same offense to be twice put in jeopardy of life or limb.' The Court disagreed. Federal double jeopardy standards were not applicable against the States. Only when a kind of jeopardy subjected a defendant to 'a hardship so acute and shocking that our polity will not endure it,' id., at 328, 58 S.Ct., at 153, did the Fourteenth Amendment apply. The order for a new trial was affirmed. In subsequent appeals from state courts, the Court continued to apply this lesser Palko standard. See, e.g., Brock v. North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456 (1953).
17
Recently, however, this Court has 'increasingly looked to the specific guarantees of the (Bill of Rights) to determine whether a state criminal trial was conducted with due process of law.' Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 1922, 18 L.Ed.2d 1019 (1967). In an increasing number of cases, the Court 'has rejected the notion that the Fourteenth Amendment applies to the States only a 'watered-down, subjective version of the individual guarantees of the Bill of Rights * * *." Malloy v. Hogan, 378 U.S. 1, 10—11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653 (1964).12 Only last Term we found that the right to trial by jury in criminal cases was 'fundamental to the American scheme of justice,' Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968), and held that the Sixth Amendment right to a jury trial was applicable to the States through the Fourteenth Amendment.13 For the same reasons, we today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment. Insofar as it is inconsistent with this holding, Palko v. Connecticut is overruled.
18
Palko represented an approach to basic constitutional rights which this Court's recent decisions have rejected. It was cut of the same cloth as Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), the case which held that a criminal defendant's right to counsel was to be determined by deciding in each case whether the denial of that right was 'shocking to the universal sense of justice.' Id., at 462, 62 S.Ct., at 1256. It relied upon Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908), which held that the right against compulsory self-incrimination was not an element of Fourteenth Amendment due process. Betts was overruled by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Twining, by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Our recent cases have thoroughly rejected the Palko notion that basic constitutional rights can be denied by the States as long as the totality of the circumstances does not disclose a denial of 'fundamental fairness.' Once it is decided that a particular Bill of Rights guarantee is 'fundamental to the American scheme of justice,' Duncan v. Louisiana, supra, at 149, 88 S.Ct., at 1447, the same constitutional standards apply against both the State and Federal Governments. Palko's roots had thus been cut away years ago. We today only recognize the inevitable.
19
The fundamental nature of the guarantee against double jeopardy can hardly be doubted. Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation's independence.14 See Bartkus v. Illinois, 359 U.S. 121, 151—155, 79 S.Ct. 676, 697, 3 L.Ed.2d 684 (1959) (Black, J., dissenting). As with many other elements of the common law, it was carried into the jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in his Commentaries. '(T)he plea of autrefoits acquit, or a former acquittal,' he wrote, 'is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.'15 Today, every State incorporates some form of the prohibition in its constitution or common law.16 As this Court put it in Green v. United States, 355 U.S. 184, 187—188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), '(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' This underlying notion has from the very beginning been part of our constitutional tradition. Like the right to trial by jury, it is clearly 'fundamental to the American scheme of jut ice.' The validity of petitioner's larceny conviction must be judged, not by the watered-down standard enunciated in Palko, but under this Court's interpretations of the Fifth Amendment double jeopardy provision.
IV.
20
It is clear that petitioner's larceny conviction cannot stand once federal double jeopardy standards are applied. Petitioner was acquitted of larceny in his first trial. Because he decided to appeal his burglary conviction, he is forced to suffer retrial on the larceny count as well. As this Court held in Green v. United States, supra, at 193—194, 78 S.Ct., at 227, '(c)onditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy.'
21
Maryland argues that Green does not apply to this case because petitioner's original indictment was absolutely void. One cannot be placed in 'jeopardy' by a void indictment, the state argues. This argument sounds a bit strange, however, since petitioner could quietly have served out his sentence under this 'void' indictment had he not appealed his burglary conviction. Only by accepting the option of a new trial court the indictment be set aside; at worst the indictment would seem only voidable at the defendant's option, not absolutely void. In any case, this argument was answered here over 70 years ago in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). In that case Millard Fillmore Ball was indicted, together with two other men, for the murder of one William T. Box in the Indian Territory. He was acquitted and his codefendants were convicted. They appealed and won a reversal on the ground that the indictment erroneously failed to aver the time or place of Box's death. All three defendants were retried, and this time Ball was convicted. This Court sustained his double jeopardy claim, notwithstanding the technical invalidity of the indictment upon which he was first tried. The Court refused to allow the Government to allege its own error to deprive the defendant of the benefit of an acquittal by a jury. Id., at 667—668, 16 S.Ct., at 1192, 1194. '(A)lthough the indictment was fatally defective, yet, if the court had jurisdiction of the cause and of the party, its judgment is not void, but only voidable by writ of error * * *,' and the Government could not have the acquittal set aside over the defendant's objections. Id., at 669—670, 16 S.Ct., at 1195. This case is totally indistinguishable. Petitioner was acquitted of larceny. He has, under Green, a valid double jeopardy plea which he cannot be forced to waive. Yet Maryland wants the earlier acquittal set aside, over petitioner's objections, because of a defect in the indictment. This it cannot do. Petitioner's larceny conviction cannot stand.
V.
22
Petitioner argues that his burglary conviction should be set aside as well. He contends that some evidence, inadmissible under state law in a trial for burglary alone, was introduced in the joint trial for both burglary and larceny, and that the jury was prejudiced by this evidence.17 This question was not decided by the Maryland Court of Special Appeals because it found no double jeopardy violation at all. It is not obvious on the face of the record that the burglary conviction was affected by the double jeopardy violation. To determine whether there is in fact any such evidentiary error, we would have to explore the Maryland law of evidence and the Maryland definitions of larceny and burglary, and then examine the record in detail. We do not think that this is the kind of determination we should make unaided by prior consideration by the state courts.18 Accordinl y, we think it 'just under the circumstances,' 28 U.S.C. § 2106, to vacate the judgment below and remand for consideration of this question. The judgment is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
23
It is so ordered.
24
Judgment vacated and case remanded.
25
Mr. Justice WHITE, concurring.
26
While I agree with the Court's extension of the prohibition against double jeopardy to the States, and with the Court's conclusion that the concurrent sentence rule constitutes no jurisdictional bar, additional comment on the wisdom and effects of applying a concurrent sentence rule seems appropriate.
27
In a time of increasingly congested judicial dockets, often requiring long delays before trial and upon appeal, judicial resources have become scarce. Where a man has been convicted on several counts and sentenced concurrently upon each, and where judicial review of one count sustains its validity, the need for review of the other counts is not a pressing one since, regardless of the outcome, the prisoner will remain in jail for the same length of time under the count upheld. Rather than permit other cases to languish while careful review of these redundant counts is carried to its futile conclusion, judicial resources might be better employed by moving on to more pressing business. This is not a rule of convenience to the judge, but rather of fairness to other litigants.
28
This is not to say, however, that the fact of conviction under the unreviewed counts could never be of importance to the prisoner. After his release it is possible they might be used against him in a recidivism prosecution, or used to impeach his testimony in a trial for another offense, to pick two obvious examples. Nevertheless, the unreviewed counts are, by hypothesis, not of immediate importance to his confinement, and our experience gives us no indication that they are frequently of such importance later that the concurrent sentence rule should not be applied.
29
The unreviewed count is often one which, but for the concurrent sentence rule, the prisoner would have a right to challenge, either directly or on collateral attack. Arguably, to deny him that right when another man, convicted after a separate trial on each count, or sentenced consecutively, could not be denied that right under the applicable state or federal law, raises an equal protection question. But clearly so long as the denied review is of no significance to the prisoner the denial of equal protection is not invidious but only theoretical.
30
But should a situation arise in which the convict can demonstrate that the unreviewed count is being used against him, so as to work some harm to him additional to that stemming from the reviewed count, his grievance becomes real. At that point it may be that the unreviewed count may not be used against him, unless it is determined that the lack of earlier review can be cured by then supplying the convict the review to which he would earlier have been entitled but for his concurrent sentence on another count. For myself, postponed review, a question which the Court reserves (ante, at 791, n. 7), presents no insuperable difficulties. Appellate review is always conducted on a cold record, and collateral proceedings frequently deal with a stale record and stale facts. There is nothing inherently unfair in permitting the record to become colder while it is irrelevant to any human need, and other litigants' demands r e more pressing. Whether reversal on such a record, after delayed review, would permit retrial or a hearing on a claim involving for example, a coerced confession, is yet a further question which there is no present need to address. Should a satisfactory hearing or retrial prove impossible this would be an unfortunate byproduct of an initially crowded docket.
31
For the foregoing reasons, I agree with the Court that the concurrent sentence rule, while not of jurisdictional dimensions, should be preserved as a matter of proper judicial administration both on direct appeal and collateral attack, although at least in theory it raises a number of questions concerning the subsequent effects of the unreviewed counts. It may be that where it can be reliably predicted in a particular case that each count would entail concrete prejudicial consequences at a later date, the appellate court at the time of initial review would prefer to deal with all counts rather than to apply the concurrent sentence rule.
32
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
33
One of the bedrock rules that has governed, and should continue to govern, the adjudicative processes of this Court is that the decision of constitutional questions in the disposition of cases should be avoided whenever fairly possible. Today the Court turns its back on that sound principle by refusing, for the flimsiest of reasons, to apply the 'concurrent sentence doctrine' so as not to be required to decide the far-reaching question whether the Double Jeopardy Clause of the Fifth Amendment is 'incorporated' into the Due Process Clause of the Fourteenth, thereby making the former applicable lock, stock, and barrel to the States. Indeed, it is quite manifest that the Court has actually been at pains to 'reach out' to decide that very important constitutional issue.
34
I consider that the concurrent sentence doctrine is applicable here, and that dismissal of the writ is accordingly called for. Despite that I feel constrained also to express my views on the merits because of what I conceive to be the importance of the constitutional approach at stake.
I.
35
The Court decides, and I agree, that petitioner's larceny conviction is not moot, and that the concurrent sentence doctrine is not a jurisdictional bar to entertainment of challenges to multiple convictions, so long as the convictions sought to be reviewed are not moot. However, I would also emphasize, in agreement with the position of the Government as amicus curiae, that the concurrent sentence rule does have continuing vitality as an element of judicial discretion, and that appellate courts may decline to review a conviction carrying a concurrent sentence when another 'concurrent' conviction has been reviewed and found valid and the unreviewed conviction foreseeably will have no significant adverse consequences for the appellant. As the Solicitor General has pointed out, the concurrent sentence doctrine plays a significant role in conserving the time and energy of appellate courts.1 To require that these already overworked courts2 invariably review in full detail each of several convictions carrying concurrent sentences seems to me senselessly doctrinaire.3
A.
36
As has been noted, the concurrent sentence doctrine is applicable only if there exists a valid concurrent conviction. In thi instance, petitioner's double jeopardy argument is directed to his larceny conviction, but he claims that the concurrent sentence doctrine is no impediment to reaching that question because his concurrent, and otherwise valid, burglary conviction was tainted by having been tried together with the larceny count. It is therefore necessary to consider whether this claim of taint has merit.
37
The Court finds that resolution of the taint issue is likely to involve such difficult points of Maryland law as to make a remand to the Maryland courts the soundest course. See ante, at 797-798. However, my examination of the question convinces me that the pertinent Maryland law is quite elementary. And, unlike the Court, I am not deterred by the prospect of having to 'examine * * * in detail,' ante, at 798, the 42-page record of petitioner's second trial.
38
I conclude that there was no real possibility of taint. Burglary in Maryland consists of breaking and entering any dwelling house in the nighttime with intent to steal, take, or carry away the personal goods of another. See Md.Code Ann., Art. 27, § 30(a) (1967). Larceny in Maryland is a common-law crime, consisting of the taking and carrying away of the personal property of another with intent to deprive the owner of the property permanently. See e.g., Fletcher v. State, 231 Md. 190, 189 A.2d 641 (1963). Evidence was introduced at petitioner's second trial to show that he not only entered a locked house at night but also made off with several household appliances. The latter evidence was, of course, pertinent to the larceny count. However, it was also plainly relevant to the burglary count, since it tended to show intent to steal.
39
Petitioner bases his taint argument primarily on the proposition that he was entitled to have the evidence concerning the missing appliances excluded from his second trial under the doctrine of 'collateral estoppel,' he having been acquitted of larceny at the first trial. However, even if it is assumed that the conviction on the larceny count was bad on double jeopardy or due process grounds and that the principle of collateral estoppel has some application to state criminal trials through the Due Process Clause of the Fourteenth Amendment,4 I think that the doctrine would not prevent admission of the evidence on the issue of burglary. The principle of collateral estoppel makes conclusive, in collateral proceedings, only those matters which were 'actually litigated and determined in the original action * * *.' Cromwell v. County of Sac, 94 U.S. 351, 353, 24 L.Ed. 195 (1877).5 The Maryland Constitution provides:
40
'In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.' Md.Const., Art. 15, § 5.
41
Hence, petitioner's acquittal of larceny at his first trial may have rested solely upon that jury's unique view of the law concerning that offense, and cannot be taken as having necessarily 'determined' any particular question of fact.
42
It follows from what has been said in this section that there can be no estoppel effect in a collateral proceeding, such as petitioner's second trial for burglary, and that petitioner's taint argument must fail.6
B.
43
Since petitioner's second burglary conviction was not tainted by his simultaneous trial for larceny, it is necessary to consider whether the concurrent sentence doctrine is inapplicable for the other possible reason: that petitioner foreseeably will suffer significant adverse consequences on account of his larceny conviction.7
44
No such consequences can reasonably be predicted. The Court itself notes that only a 'few States' would allow petitioner's larceny conviction to be used against him for purposes of sentencing as a habitual offender, and concedes that 'this possibility may well be a remote one.' Ante, at 790-791. When it is recalled that petitioner had been convicted of three felonies even prior to his present burglary conviction,8 this possibility is reduced to the vanishing point.9
45
There remain the possibilities that petitioner's larceny conviction might be considered generally by a judge if and when petitioner is sentenced following some future conviction, and that the conviction might be used to impeach him in future judicial proceedings. In the circumstances of this case, these potential consequences are plainly insignificant. Petitioner's burglary and larceny convictions were based upon the very same series of acts on his part. This fact could readily be brought to the attention either of a sentencing judge or of a trier of fact before whom petitioner was sought to be impeached. Predictably, knowledge of the identical origin of the two convictions would reduce the extra impact of the larceny conviction to negligible proportions. Thus, it would be difficult to imagine a case in which a 'concurrent' conviction would be likely to entail fewer adverse consequences.
C.
46
The Court nonetheless holds that '(b)ecause of the special circumstances in this case' it will not apply the concurrent sentence doctrine, and that it is unnecessary even to decide whether the doctrine has 'continuing validity, even as a rule of convenience.' See ante, at 792. One of the 'special circumstances' cited by the Court is the existence of the 'taint' issue, which the Court finds it desirable to remand to the state courts. As has been noted, I can perceive no difficulties which would justify a remand.
47
The second of the 'special circumstances' relied on by the Court is that 'in this case the (state courts) decided not to apply the concurrent sentence rule' and reached the 'double jeopardy' issue themselves. See ante, at 792. The Court concludes that '(s)ince (the Maryland courts) decided this federal constitutional question, we see no reason why we should not do so as well.' See ante, at 792-793. This reasoning baffles me. In determining whether or not to reach a constitutional issue the decision of which is not absolutely necessary to the disposition of a case, this Court has long been guided by the rule that '(w)here a case * * * can be decided without reference to questions arising under the Federal Constitution that course is usually pursued and is not departed from without important reasons.' Silver v. Louisville & N.R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (10 9); see Ashwander v. TVA, 297 U.S. 288, 345, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). In deciding whether such 'important reasons' exist, this Court has never regarded itself as bound to reach the constitutional issue merely because the court below did so, and has often declined to pass upon constitutional questions even though fully canvassed by the lower court.10 On some of these occasions, the Court has relied in justification upon the concurrent sentence doctrine.11
48
Since I cannot believe that the Court wishes as a general matter to abandon the salutary and well-established principle of declining to rule on constitutional questions in advance of necessity, and since I find the 'taint' issue entirely free of the complexities which the Court claims to perceive, I cannot help but conclude that the real reason for reaching the 'double jeopardy' issue in this case is the Court's eagerness to see that provision 'incorporated' into the Fourteenth Amendment and thus made applicable against the States.
D.
49
As has been shown, this case satisfies both preconditions to application of the concurrent sentence doctrine. Reliance upon that doctrine would enable the Court to avoid decision of a substantial constitutional question. Accordingly, I would apply the concurrent sentence rule and decline to review petitioner's larceny conviction. Since the case was brought here on a writ of certiorari limited to the 'double jeopardy' question, decision of which would affect only the larceny conviction, I would dismiss the writ as improvidently granted.
II.
50
Having concluded that the writ should be dismissed, I would ordinarily not go further. However, as indicated at the outset, I felt impelled to continue with some observations respecting what can only be regarded as a complete overruling of one of this Court's truly great decisions, and with an expression of my views as to how petitioner's claim respecting his retrial for larceny should fare under the traditional due process approach.
A.
51
I would hold, in accordance with Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), that the Due Process Clause of the Fourteenth Amendment does not take over the Double Jeopardy Clause of the Fifth, as such. Today Palko becomes another casualty in the so far unchecked march toward 'incorporating' much, if not all, of the Federal Bill of Rights into the Due Process Clause. This march began, with a Court majority, in 1961 when Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, was decided and, before the present decision, found its last stopping point in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), decided at the end of last Term. I have at each step in the march expressed my oposition, see, e.g., my opinions in Mapp v. Ohio, supra, at 672, 81 S.Ct., at 1700 (dissenting); Ker v. California, 374 U.S. 23, 44, 83 S.Ct. 1623, 1635, 10 L.Ed.2d 726 (1963) (concurring in result); Malloy v. Hogan, 378 U.S. 1, 14, 84 S.Ct. 1489, 1497, 12 L.Ed.2d 653 (1964) (dissenting); Pointer v. Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, 1070, 13 L.Ed.2d 923 (1965) (concurring in result); Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965) (concurring); Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967) (concurring in result); and Duncan v. Louisiana, supra, at 171 88 S.Ct. 1444 (dissenting); more particularly in the Duncan case I undertook to show that the 'selective incorporation' doctrine finds no support either in history or in reason.12 Under the pressures of the closing days of the Term, I am content to rest on what I have written in prior opinions, save to raise my voice again in protest against a doctrine which so subtly, yet profoundly, is eroding many of the basics of our federal system.
52
More broadly, that this Court should have apparently become so impervious to the pervasive wisdom of the constitutional philosophy embodied in Palko, and that it should have felt itself able to attribute to the perceptive and timeless words of Mr. Justice Cardozo nothing more than a 'watering down' of constitutional rights, are indeed revealing symbols of the extent to which we are weighing anchors from the fundamentals of our constitutional system.
B.
53
Finally, how should the validity of petitioner's larceny conviction be judged under Palko, that is, under due process standards?
54
A brief recapitulation of the facts first seems advisable. Petitioner was indicted and tried simultaneously for burglary and larceny. He was acquitted of larceny but convicted of burglary. Petitioner appealed, and the Maryland courts remanded in light of earlier Maryland decisions holding invalid a provision of the Maryland Constitution requiring that grand and petit jurors declare their belief in God. Petitioner was given the option either of accepting the result of his trial or of demanding reindictment and retrial. He chose to attack the indictment, was re-indicted and retried for both larceny and burglary, and was convicted of both offenses.
55
The principle that an accused should not be tried twice for the same offense is deeply rooted in Anglo-American law.13 In this country, it is presently embodied in the Fifth Amendment to the Federal Constitution and in the constitution or common law of every State.14 The Palko Court found it unnecessary to decide '(w)hat the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him * * *.' 302 U.S., at 328, 58 S.Ct., at 153. However, I have no hesitation in stating that it would be a denial of due process at least for a State to retry one previously acquitted following an errorless trial. The idea that the State's interest in convicting wrongdoers is entirely satisfied by one fair trial ending in an acquittal, and that the accused's interest in repose must thereafter be given precedence, is indubitably a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id., at 325, 58 S.Ct., at 152.
56
The situation in this case is not quite so simple. Had petitioner not appealed his burglary o nviction, the State would surely have allowed him to rest on his larceny acquittal and merely serve out his burglary sentence. However, the State argues that the burglary and larceny counts were originally contained in a single indictment; that upon petitioner's appeal the indictment was declared totally void and the trial court found to have lacked jurisdiction; and that the State could then proceed as if there had never been a previous indictment or trial.
57
The State's contention that petitioner's first trial was a complete nullity because the trial court 'lacked jurisdiction' is unconvincing. As has been noted, it appears that the State would willingly have been petitioner serve out the burglary sentence imposed in consequence of that trial. Under state procedure, petitioner could avail himself of the 'jurisdictional' defect only by appealing his conviction. The crucial issue, therefore, is what legitimate interest had the State in compelling petitioner to jeopardize his larceny acquittal as a condition of appealing his burglary conviction?
58
I can perceive no legitimate state interest. Certainly it is the purest fiction to say that by appealing his burglary conviction petitioner 'waived' his right not to be retried for larceny or 'consented' to retrial on that charge. The notion of 'waiver' was first employed in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), to justify retrial of an accused for the same offense following reversal of a conviction on appeal. The 'waiver' doctrine was more fully articulated in Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292 (1905), where it was held that retrial and conviction for murder following a successful appeal from a manslaughter conviction did not violate the Double Jeopardy Clause.15 Trono apparently dictated the result in Brantley v. Georgia, 217 U.S. 284, 30 S.Ct. 514, 54 L.Ed. 768 (1910), in which the Court held in a brief per curiam, without citing any authority, that a Georgia retrial and conviction for murder following the reversal on appeal of an earlier manslaughter conviction did not amount to 'a case of twice in jeopardy under any view of the Constitution of the United States.' Id., at 285, 30 S.Ct., at 515.16 We have since recognized that the 'waiver' rationale is a 'conceptual abstraction' which obscures rather than illuminates the underlying clash of societal and individual interests. See United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). Accordingly, 1 do not think that the reasoning in Trono or the apparent holding in Brantley, insofar as they would require affirmance of petitioner's larceny conviction, can any longer be regarded as good law.
59
Nor did the State in the present case have the sorts of interests which have been held to justify retrial for the same offense after a conviction has been reversed on appeal by the accused and in the more unusual case when an acquittal has been set aside following an appeal by the State.17 When the accused has obtained a reversal on appeal, the societal interest in convicting the guilty has been deemed too weighty to permit every such accused to be 'granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.' United States v. Tateo, supra, at 466, 84 S.Ct., at 1589. The rationale for allowing the State to appeal an acquittal has been that the State, like the accused, is entitled to assure itself of a trial 'free from the corrosio of substantial legal error' which might have produced an adverse verdict. See Palko v. Connecticut, supra, at 328, 58 S.Ct., at 153.18
60
In the present case, the State did not appeal, and the defect in the composition of the grand jury could not have affected petitioner's subsequent acquittal at trial. Society's legitimate interest in punishing wrongdoers could have been fully vindicated by retrying petitioner on the burglary count alone, that being the offense of which he was previously convicted. The State had no more interest in compelling petitioner to stand trial again for larceny, of which he had been acquitted, than in retrying any other person declared innocent after an error-free trial. He retrial on the larceny count therefore, in my opinion, denied due process, and on that ground reversal would be called for under Palko.
1
The increase in petitioner's sentence on the burglary count from 10 to 15 years is presently the subject of litigation on federal habeas corpus in the lower federal courts. A federal district court ordered the State to resentence petitioner, Benton v. Copinger, 291 F.Supp. 141 (D.C.Md.1968), and an appeal brought by the State is presently pending in the United States Court of Appeals for the Fourth Circuit.
2
See Part V, infra. Of course, if the error infected both counts upon which petitioner was convicted, there would be no concurrent sentence problem at all. We do not, however, resolve the question of whether the burglary conviction was 'tainted.'
3
The length of that sentence is presently a matter in dispute, see n. 1, supra.
4
Grant v. Astle, 2 Doug. 722, 99 Eng. Rep. 459 (1781); Peake v. Oldham, 1 Cowp. 275, 98 Eng.Rep. 1083 (1775); Rex v. Benfield, 2 Burr. 980, 97 Eng.Rep. 664 (1760).
5
Street v. New York, 394 U.S. 576, 579—580, n. 3, 89 S.Ct. 1354, 1359, 22 L.Ed.2d 572 (1969); Carafas v. LaVallee, 391 U.S. 234, 237—238, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968); Ginsberg v. New York, 390 U.S. 629, 633—634, n. 2, 88 S.Ct. 1274, 1276, 1277, 20 L.Ed.2d 195 (1968).
6
The majority rule is, apparently, that all convictions handed down at the same time count as a single conviction for the purpose of habitual offender statutes, but a few States follow the stricter rule described in the text. The relevant cases are collected at 24 A.L.R.2d 1262—1267 (1952), and in the accompanying supplements.
7
In Sibron we noted the inadequacies of a procedure which postpones appellate review until it is proposed to subject the convicted person to collateral consequences. 392 U.S., at 56—57, 88 S.Ct. 1889, at 1899. For the reasons there stated, an attempt to impose collateral consequences after an initial refusal to review a conviction on direct appeal because of the concurrent sentence doctrine may well raise some constitutional problems. That issue is not, however, presented by this case, and accordingly we express no opinion on it.
8
Compare Meade v. State, 198 Md. 489, 84 A.2d 892 (1951), with Marks v. State, 230 Md. 108, 185 A.2d 909 (1962).
9
See n. 7, supra.
10
See n. 1, supra, and Part V, infra.
11
A stronger case for total abolition of the concurrent sentence doctrine may well be made in cases on direct appeal, as compared to convictions attacked collaterally by suits for post-conviction relief. Because of our disposition of this case, we need not reach this question.
12
Quoting from Ohio ex rel. Eaton v. Price, 364 U.S. 263, 275, 80 S.Ct. 1463, 1469—1470, 4 L.Ed.2d 1708 (1960) (opinion of Brennan, J.).
13
A list of those Bill of Rights guarantees which have been held 'incorporated' in the Fourteenth Amendment can be found in Duncan, supra, at 148, 88 S.Ct., at 1446.
14
J. Sigler, Double Jeopardy 1—37 (1969).
15
4 W. Blackstone, Commentaries *335.
16
Sigler, supra, n. 14, at 78—79; Brock v. North Carolina, 344 U.S. 424, 435, n. 6, 73 S.Ct. 349, 354, 97 L.Ed. 456 (1953) (Vinson, C.J., dissenting).
17
There is no danger here that the jury might have been tempted to compromise on a lesser charge because of an erroneous retrial on a greater charge. See United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844, 866 (C.A.2d Cir. 1965), cert. denied, sub nom. Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966). Larceny is a lesser offense than burglary.
18
See Note, Individualized Criminal Justice in the Supreme Court: A study of Dispositional Decision Making, 81 Harv.L.Rev. 1260, 1272—1273 (1968).
1
See Memorandum for the United States as Amicus Curiae 20 23. Counsel for the Government estimated during oral argument that the concurrent sentence doctrine is employed in the disposition of about 10% of all federal criminal appeals.
2
See, e.g., Carrington, Crowded Dockets and the Courts of Appeals: The Threat to the Function of Review and the National Law, 82 Harv.L.Rev. 542 (1969).
3
Like the Court, see ante, at 791, n. 7, I express no view on the question whether collateral consequences may constitutionally be imposed on account of a conviction which was denied review on direct appeal because of the concurrent sentence doctrine.
4
This Court said in dictum in Hoag v. New Jersey, 356 U.S. 464, 471, 78 S.Ct. 829, 834, 2 L.Ed.2d 913 (1958): 'Despite its wide employment, we entertain grave doubts whether collateral estoppel can be regarded as a constitutional requirement. Certainly, this Court has never so held.' See also id., at 470 471, 78 S.Ct., at 834; Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948); United States v. Oppenheimer, 242 U.S. 85, 88, 37 S.Ct. 68, 69, 61 L.Ed. 161 (1916).
5
See also Restatement, Judgments § 68(1).
6
The Court also suggests that the concurrent sentence doctrine should not be applied for the additional reason that the eventual length of petitioner's burglary sentene is 'still in some doubt.' See ante, at 793. Petitioner received a 10-year sentence following his first burglary conviction and a 15-year sentence after his second conviction. The latter sentence was subsequently vacated and resentencing ordered by a federal district court. See Benton v. Copinger, 291 F.Supp. 141 (1968). The State has appealed. Whatever the outcome of that appeal, I consider that the probability of petitioner's burglary sentence being reduced below five years, so as to make the concurrent sentence doctrine inoperative, is manifestly negligible.
7
Cf., e.g., Sibron v. New York, 392 U.S. 40, 55—56, 88 S.Ct. 1889, 1898, 20 L.Ed.2d 917 (1968).
8
See Supplementary Brief for Respondent 20, n. 6.
9
So far as I have been able to discover, there is no State in which petitioner's larceny conviction could have habitual offender consequences.
10
See, e.g., Cichos v. Indiana, 385 U.S. 76, 87 S.Ct. 271, 17 L.Ed.2d 175 (1966); Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964); Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964); Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961); Rice v. Sioux City Cemetery, 349 U.S. 70, 75 S.Ct. 614, 99 L.Ed. 897 (1955).
11
See, e.g., United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959).
12
In the interest of strict accuracy, it should be pointed out that Mr. Justice STEWART cannot and does not fully join in the above sentence of this opinion. He joined my dissenting opinion in Duncan v. Louisiana, supra, but wrote a separate memorandum in Mapp v. Ohio, supra, at 672, 81 S.Ct. at 1700, joined the opinion of Mr. Justice Clark in Ker v. California, supra; joined Mr. Justice White's dissenting opinion in Malloy v. Hogan, supra, at 33, 84 S.Ct., at 1506; wrote an opinion concurring in the result in Pointer v. Texas, supra, at 409, 85 S.Ct., at 1070; wrote a dissenting opinion in Griffin v. California, supra, at 617, 85 S.Ct., at 1234; and separately concurred in the result in Klopfer v. North Carolina, supra, at 226, 87 S.Ct., at 995.
13
The 'double jeopardy' concept has been an established part of the English common law since at least 1700, and was contained in the constitutions or common law of many American jurisdictions prior to 1787. See J. Sigler, Double Jeopardy 1—37 (1969); Bartkus v. Illinois, 359 U.S. 121, 151—155, 79 S.Ct. 676, 695—697, 3 L.Ed.2d 684 (1959) (Black, J., dissenting).
14
See Sigler, supra, at 77—117.
15
In the federal realm, the Trono decision was, of course, limited to its 'peculiar factual setting' by Green v. United States, 355 U.S. 184, 197, 78 S.Ct. 221, 228, 229, 2 L.Ed.2d 199 (1957), in which I joined the dissenting opinion of Mr. Justice Frankfurter. Id., at 198. Mr. Justice Stewart was not a member of the Court of the time Green was decided.
16
Trono was the only federal decision cited by the State of Georgia in its brief in Brantley.
17
For more detailed analyses of these interests, see generally Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1 (1960); Van Alstyne, In Gideon's Wake: Harsher Penalties and the 'Successful' Criminal Appellant, 74 Yale L.J. 606 (1965); Comment, Twice in Jeopardy, 75 Yale L.J. 262 (1965); Note, Double Jeopardy: The Reprosecution Problem, 77 Harv.L.Rev. 1272 (1964).
18
However, in the federal system it has been held that the Government may not appeal from an acquittal without placing the accused 'a second time in jeopardy for the same offense.' Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 806, 49 L.Ed. 114 (1904). See also id., at 134—137, 24 S.Ct., at 797, 807 (Holmes, J., dissenting).
| 01
|
395 U.S. 814
89 S.Ct. 2051
23 L.Ed.2d 728
Monique VON CLEEFv.NEW JERSEY.
No. 837.
Decided June 23, 1969.
Herald Price Fahringer, for petitioners.
Paul Murphy, for respondent.
PER CURIAM.
1
The petitioners were convicted in a New Jersey trial court of conspiring to maintain a building for purposes of lewdness and to commit acts of lewdness, N.J.Rev.Stat. §§ 2A:98—1, 2A:133—2, 2A:115—1, N.J.S.A.; permitting a building to be used for purposes of lewdness, N.J.Rev.Stat. § 2A:133—2(b), N.J.S.A.; and possessing with intent to utter obscene publications, N.J.Rev.Stat. § 2A:115 2, N.J.S.A. Their convictions were affirmed by the Superior Court, Appellate Division, 102 N.J.Super. 102, 245 A.2d 495, and the Supreme Court of New Jersey denied review, 52 N.J. 499, 246 A.2d 456. The petitioners make several arguments, but their principal contention is that evidence introduced at their trial was secured in violation of the Fourth and Fourteenth Amendments.
2
Petitioner Von Cleef was arrested on the third floor of a 16-room house in which she and petitioner Beard lived. Although no search warrant had been issued, several policemen proceeded to search the entire house for a period of about three hours. They eventually seized several thousand articles, including books, magazines, catalogues, mailing lists, private correspondence (both opened and unopened), photographs, drawings, and film. The petitioners' motion to suppress was denied, and 'a considerable number' of the items seized were introduced into evidence by the prosecution and 'commented upon by several witnesses during the trial.' 102 N.J.Super., at 109, 245 A.2d, at 499.
3
The petitioners attack the New Jersey courts' conclusion that the search and seizures described above were constitutionally permissible as being incident to a valid arrest. This challenge would unquestionably be well founded if today's decision in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, were given retroactive application. But we need not decide here whether Chimel should be applied retroactively. For even under the constitutional standards prevailing before Chimel, see United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, the search and seizures involved here were constitutionally invalid.
4
New Jersey relies primarily on United States v. Rabinowitz, supra, in which this Court upheld the search of a one-room business office and the seizure of 573 stamps with forged overprints. But the Court's opinion in Rabinowitz specifically referred to the factors that were thought to make the search in that case reasonable:
5
'(1) the search and seizure were incident to a valid arrest; (2) the place of the search was a business room to which the public, including the officers, was invited; (3) the room was small and under the immediate and complete control of respondent; (4) the search did not extend beyond the room used for unlawful purposes; (5) the possession of the forged and altered stamps was a crime, just as it is a crime to possess burglars' tools, lottery tickets or counterfeit money.' 339 U.S., at 64, 70 S.Ct., at 434.
6
Although the arrest of petitioner Von Cleef may for our purposes be assumed to have been lawful (the petitioners argue that it was not), the factual circumstances here are otherwise quite different from those of Rabinowitz. Even the facts of Harris v. United States, supra—in which the search of a four-room apartment and the seizure of an envelope containing altered Selective Service documents were sustained on the ground that they were contemporaneous with a lawful arrest—are a far cry from those of this case. While Rabinowitz made the principles governing searches accompanying arrests unfortunately hazy, see Chimel v. California, supra, 395 U.S., at 766, 89 S.Ct., at 2041 we have no hesitation in concluding that the action of the police here in o mbing a three-story, 16-room house from top to bottom and carting away several thousand papers, publications, and other items cannot under any view of the Fourth Amendment be justified as 'incident to arrest.' Like the search and 'mass seizure' in Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876, see Abel v. United States, 362 U.S. 217, 239, 80 S.Ct. 683, 697, 4 L.Ed.2d 668, such action is simply 'beyond the sanction of any of our cases.' 353 U.S., at 347, 77 S.Ct., at 829.
7
Accordingly, the petition for a writ of certiorari is granted, the judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.
8
It is so ordered.
9
Judgment reversed and case remanded.
10
Mr. Justice BLACK and Mr. Justice WHITE concur in granting certiorari but dissent from reversal of the judgment and remand of the case without a hearing.
11
Mr. Justice HARLAN, concurring in the result.
12
Unfortunately, I remain unconvinced that the search in this case may be properly distinguished from the search tolerated by the Court in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). Nor do I believe that our decision in Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957) proscribes this search. Kremen simply prohibits the police from seizing the entire contents of a building indiscriminately, without considering whether the property they take is relevant to the crime under investigation; it does not bar the removal of all property that may reasonably be considered evidence of crime. The Appellate Division of the New Jersey Superior Court properly found that the police in the case before us did not engage in the practice condemned in Kremen: '(T)he search was extensive, but under the circumstances it was reasonable * * * the items searched for and seized related to the criminal operation for which the arrest had been made.' (Emphasis supplied.) Surely, there is no reason to condemn a search as resulting in a 'mass seizure' simply because it uncovers abundant evidence of wrongdoing. And yet, that is what the Court does today in relying on Kremen to decide this case.
13
Consequently I am obliged to reach the question whether the stricter Fourth Amendment standards announced today in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, govern this case; for in my view, it is only if Chimel is applicable that we may legitimately reverse the judgment of the New Jersey courts. Since I have reached the conclusion that all cases still subject to direct review by this Court should be governed by any 'new' rule of constitutional law announced in our decisions, see my dissent in Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1038, 22 L.Ed.2d 248 (1969), I join in the Court's judgment.
| 01
|
395 U.S. 752
89 S.Ct. 2034
23 L.Ed.2d 685
Ted Steven CHIMEL, Petitioner,v.State of CALIFORNIA.
No. 770.
Argued March 27, 1969.
Decided June 23, 1969.
Rehearing Denied Oct. 13, 1969.%tcSee 90 S.Ct. 36.%tc Keith C. Monroe, Santa Ana, Cal., for petitioner.
Ronald M. George, Los Angeles, Cal., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
This case raises basic questions concerning the permissible scope under the Fourth Amendment of a search incident to a lawful arrest.
2
The relevant facts are essentially undisputed. Late in the afternoon of September 13, 1965, three police officers arrived at the Santa Ana, California, home of the petitioner with a warrant authorizing his arrest for the burglary of a coin shop. The officers knocked on the door, identified themselves to the petitioner's wife, and asked if they might come inside. She ushered them into the house, where they waited 10 or 15 minutes until the petitioner returned home from work. When the petitioner entered the house, one of the officers handed him the arrest warrant and asked for permission to 'look around.' The petitioner objected, but was advised that 'on the basis of the lawful arrest,' the officers would nonetheless conduct a search. No search warrant had been issued.
3
Accompanied by the petitioner's wife, the officers then looked through the entire three-bedroom house, including the attic, the garage, and a small workshop. In some rooms the search was relatively cursory. In the master bedroom and sewing room, however, the offc ers directed the petitioner's wife to open drawers and 'to physically move contents of the drawers from side to side so that (they) might view any items that would have come from (the) burglary.' After completing the search, they seized numerous items—primarily coins, but also several medals, tokens, and a few other objects. The entire search took between 45 minutes and an hour.
4
At the petitioner's subsequent state trial on two charges of burglary, the items taken from his house were admitted into evidence against him, over his objection that they had been unconstitutionally seized. He was convicted, and the judgments of conviction were affirmed by both the California Court of Appeal, 61 Cal.Rptr. 714, and the California Supreme Court, 68 Cal.2d 436, 67 Cal.Rptr. 421, 439 P.2d 333. Both courts accepted the petitioner's contention that the arrest warrant was invalid because the supporting affidavit was set out in conclusory terms,1 but held that since the arresting officers had procured the warrant 'in good faith,' and since in any event they had had sufficient information to constitute probable cause for the petitioner's arrest, that arrest had been lawful. From this conclusion the appellate courts went on to hold that the search of the petitioner's home had been justified, despite the absence of a search warrant, on the ground that it had been incident to a valid arrest. We granted certiorari in order to consider the petitioner's substantial constitutional claims. 393 U.S. 958, 89 S.Ct. 404, 21 L.Ed.2d 372.
5
Without deciding the question, we proceed on the hypothesis that the California courts were correct in holding that the arrest of the petitioner was valid under the Constitution. This brings us directly to the question whether the warrantless search of the petitioner's entire house can be constitutionally justified as incident to that arrest. The decisions of this Court bearing upon that question have been far from consistent, as even the most cursory review makes evident.
6
Approval of a warrantless search incident to a lawful arrest seems first to have been articulated by the Court in 1914 as dictum in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, in which the Court stated:
7
'What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.' Id., at 392, 34 S.Ct., at 344.
8
That statement made no reference to any right to search the place where an arrest occurs, but was limited to a right to search the 'person.' Eleven years later the case of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, brought the following embellishment of the Weeks statement:
9
'When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution.' Id., at 158, 45 S.Ct., at 287. (Emphasis added.)
10
Still, that assertion too was far from a claim that the 'place' where one is arrested may be searched so long as the arrest is valid. Without explanation, however, the principle emerged in expanded form a few months later in Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145—although still by way of dictum:
11
'The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place whr e the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543; Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652.' 269 U.S., at 30, 46 S.Ct., at 5.
12
And in Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231, two years later, the dictum of Agnello appeared to be the foundation of the Court's decision. In that case federal agents had secured a search warrant authorizing the seizure of liquor and certain articles used in its manufacture. When they arrived at the primises to be searched, they saw 'that the place was used for retailing and drinking intoxicating liquors.' Id., at 194, 48 S.Ct., at 75. They proceeded to arrest the person in charge and to execute the warrant. In searching a closet for the items listed in the warrant they came across an incriminating ledger, concededly not covered by the warrant, which they also seized. The Court upheld the seizure of the ledger by holding that since the agents had made a lawful arrest, '(t)hey had a right without a warrant contemporaneously to search the place in order to find and seize the things used to carry on the criminal enterprise.' Id., at 199, 48 S.Ct., at 77.
13
That the Marron opinion did not mean all that it seemed to say became evident, however, a few years later in Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374, and United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877. In each of those cases the opinion of the Court was written by Mr. Justice Butler, the author of the opinion in Marron. In Go-Bart, agents had searched the office of persons whom they had lawfully arrested,2 and had taken several papers from a desk, a safe, and other parts of the office. The Court noted that no crime had been committed in the agents' presence, and that although the agent in charge 'had an abundance of information and time to swear out a valid (search) warrant, he failed to do so.' 282 U.S., at 358, 51 S.Ct., at 158. In holding the search and seizure unlawful, the Court stated:
14
'Plainly the case before us is essentially different from Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231. There, officers executing a valid search warrant for intoxicating liquors found and arrested one Birdsall who in pursuance of a conspiracy was actually engaged in running a saloon. As an incident to the arrest they seized a ledger in a closet where the liquor or some of it was kept and some bills beside the cash register. These things were visible and accessible and in the offender's immediate custody. There was no threat of force or general search or rummaging of the place.' 282 U.S., at 358, 51 S.Ct., at 158.
15
This limited characterization of Marron was reiterated in Lefkowitz, a case in which the Court held unlawful a search of desk drawers and a cabinet despite the fact that the search had accompanied a lawful arrest. 285 U.S., at 465, 52 S.Ct., at 423.
16
The limiting views expressed in Go-Bart and Lefkowitz were thrown to the winds, however, in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, decided in 1947. In that case, officers had obtained a warrant for Harris' arrest on the basis of his alleged involvement with the cashing and interstate transportation of a forged check. He was arrested in the living room of his four-room apartment, and in an attempt to recover two canceled checks thought to have been used in effecting the forgery, the officers undertook a thorough search of the entire apartment. Inside a desk drawer they found a sealed envelope marked 'George Harris, personal papers.' The envelope, which was then torn open, was found to contain altered Selective Service documents, and those documet § were used to secure Harris' conviction for violating the Selective Training and Service Act of 1940. The Court rejected Harris' Fourth Amendment claim, sustaining the search as 'incident to arrest.' Id., at 151, 67 S.Ct., at 1101.
17
Only a year after Harris, however, the pendulum swung again. In Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, agents raided the site of an illicit distillery, saw one of several conspirators operating the still, and arrested him, contemporaneously 'seiz(ing) the illicit distillery.' Id., at 702, 68 S.Ct. at 1231. The Court held that the arrest and others made subsequently had been valid, but that the unexplained failure of the agents to procure a search warrant—in spite of the fact that they had had more than enough time before the raid to do so rendered the search unlawful. The opinion stated:
18
'It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable. * * * This rule rests upon the desirability of having magistrates rather than police officers determine when searches and seizures are permissible and what limitations should be placed upon such activities. * * * To provide the necessary security against unreasonable intrusions upon the private lives of individuals, the framers of the Fourth Amendment required adherence to judicial processes wherever possible. And subsequent history has confirmed the wisdom of that requirement.
19
'A search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest.' Id., at 705, 708, 68 S.Ct., at 1232, 1234.
20
In 1950, two years after Trupiano,3 came United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, the decision upon which California primarily relies in the case now before us. In Rabinowitz, federal authorities had been informed that the defendant was dealing in stamps bearing forged overprints. On the basis of that information they secured a warrant for his arrest, which they executed at his one-room business office. At the time of the arrest, the officers 'searched the desk, safe, and file cabinets in the office for about an hour and a half,' id., at 59, 70 S.Ct., at 432, and seized 573 stamps with forged overprints. The stamps were admitted into evidence at the defendant's trial, and this Court affirmed his conviction, rejecting the contention that the warrantless search had been unlawful. The Court held that the search in its entirety fell within the principle giving law enforcement authorities '(t)he right 'to search the place where the arrest is made in order to find and seize things connected with the crime * * *." Id., at 61, 70 S.Ct., at 433. Harris was regarded as 'ample authority' for that conclusion. Id., at 63, 70 S.Ct., at 434. The opinion rejected the rule of Trupiano that 'in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.' The test, said the Court, 'is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.' Id., at 66, 70 S.Ct., at 435.
21
Rabinowitz has come to stand for the proposition, inter alia, that a warrantless search 'incident to a lawful arrest' may generally extend to the area that is considered to be in the 'possession' or under the 'control' of the person arrested.4 And it was on the basis of that proposition that the California courts upheld the search of the petitioner's entire house in this case. That doctrine, however, at least in the broad sense in which it was applied by the California courts in this case, can withstand neither historical nor rational analysis.
22
Even limited to its own facts, the Rabinowitz decision was, as we have seen, hardly founded on an unimpeachable line of authority. As Mr. Justice Frankfurter commented in dissent in that case, the 'hint' contained in Weeks was, without persuasive justification, 'loosely turned into dictum and finally elevated to a decision.' 339 U.S., at 75, 70 S.Ct., at 439. And the approach taken in cases such as Go-Bart, Lefkowitz, and Trupiano was essentially disregarded by the Rabinowitz Court.
23
Nor is the rationale by which the State seeks here to sustain the search of the petitioner's house supported by a reasoned view of the background and purpose of the Fourth Amendment. Mr. Justice Frankfurter wisely pointed out in his Rabinowitz dissent that the Amendment's proscription of 'unreasonable searches and seizures' must be read in light of 'the history that gave rise to the words'—a history of 'abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution * * *.' 339 U.S., at 69, 70 S.Ct., at 436. The Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence.5 In the scheme of the Amendment, therefore, the requirement that 'no Warrants shall issue, but upon probable cause,' plays a crucial part. As the Court put it in McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153:
24
'We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. * * * And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that consititutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.' Id., at 455—456, 69 S.Ct., at 193.
25
Even in the Agnello case the Court relied upon the rule the '(b)elief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.' 269 U.S., at 33, 46 S.Ct., at 6. Clearly, the general requirement that a search warrant be obtained is not lightly to be dispensed with, and 'the burden is on those seeking (an) exemption (from the requirement) to show the need for it * * *.' United Stae § v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59.
26
Only last Term in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, we emphasized that 'the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure,' id., at 20, 88 S.Ct. at 1879,6 and that '(t)he scopd of (a) search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible.' Id., at 19, 88 S.Ct., at 1878. The search undertaken by the officer in that 'stop and frisk' case was sustained under that test, because it was no more than a 'protective * * * search for weapons.' Id., at 29, 88 S.Ct., at 1884. But in a companion case, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, we applied the same standard to another set of facts and reached a contrary result, holding that a policeman's action in thrusting his hand into a suspect's pocket had been neither motivated by nor limited to the objective of protection.7 Rather, the search had been made in order to find narcotics, which were in fact found.
27
A similar analysis underlies the 'search incident to arrest' principle, and marks its proper extent. When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control' construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
28
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.8 The 'adherence to judicial processes' mandated by the Fourth Amendment requires no less.
29
This is the principle that underlay our decision in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. In that case three men had been arrested in a parked car, which had later been towed to a garage and searched by police. We held that search to have been unlawful under the Fourth Amendment, despite the contention that it had been incidental to a valid arrest. Our reasoning was straightforward:
30
'The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime—things which might easily happen where the weapon or evidence is on the accused's person or under his immediate conto l. But these justifications are absent where a search is remote in time or place from the arrest.' Id., at 367, 84 S.Ct., at 883.9
31
The same basic principle was reflected in our opinion last Term in Sibron. That opinion dealt with Peters v. New York, No. 74, as well as with Sibron's case, and Peters involved a search that we upheld as incident to a proper arrest. We sustained the search, however, only because its scope had been 'reasonably limited' by the 'need to seize weapons' and 'to prevent the destruction of evidence,' to which Preston had referred. We emphasized that the arresting officer 'did not engage in an unrestrained and thorough going examination of Peters and his personal effects. He seized him to cut short his flight, and he searched him primarily for weapons.' 392 U.S., at 67, 88 S.Ct., at 1905.
32
It is argued in the present case that it is 'reasonable' to search a man's house when he is arrested in it. But that argument is founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on consideration relevant to Fourth Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point. It is not easy to explain why, for instance, it is less subjectively 'reasonable' to search a man's house when he is arrested on his front lawn—or just down the street—than it is when he happens to be in the house at the time of arrest.10 As Mr. Justice Frankfurter put it:
33
'To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an 'unreasonable search' is forbidden—that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and experience which it embodies and the safeguards afforded by it against the evils to which it was a response.' United States v. Rabinowitz, 339 U.S., at 83, 73 S.Ct., at 443 (dissenting opinion).
34
Thus, although '(t)he recurring questions of the reasonableness of searches' depend upon 'the facts and circumstances—the total atmosphere of the case,' id., at 63, 66, 70 S.Ct., at 434, 435 (opinion of the Court), those facts and circumstances must be viewed in the light of established Fourth Amendment principles.
35
It would be possible, of course, to draw a line between Rabinowitz and Harris on the one hand, and this case on the other. For Rabinowitz involved a single room, and Harris a four-room apartment, while in the case before us an entire house was searched. But such a distinction would be highly artificial. The rationale that allowed the searches and seizures in Rabinowitz and Harris would allow the searches and seizures in this case. No consideration relevant to the Fourth Amendment suggests any point of rational i mitation, once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items.11 The only reasoned distinction is one between a search of the person arrested and the area within his reach on the one hand, and more extensive searches on the other.12
36
The petitioner correctly points out that one result of decisions such as Rabinowitz and Harris is to give law enforcement officials the opportunity to engage in searches not justified by probable cause, by the simple expedient of arranging to arrest suspects at home rather than elsewhere. We do not suggest that the petitioner is necessarily correct in his assertion that such a strategy was utilized here,13 but the fact remains that had he been arrested earlier in the day, at his place of employment rather than at home, no search of his house could have been made without a search warrant. In any event, even apart from the possibility of such police tactics, the general point so forcefully made by Judge Learned Hand in United States v. Kirschenblatt, 2 Cir., 16 F.2d 202, 51 A.L.R. 416, remains:
37
'After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him, appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis the power would not exist, if the supposed offender were not found on the premises; but it is small consolation to know that one's papers are safe only so long as one is not at home.' Id., at 203.
38
Rabinowitz and Harris have been the subject of critical commentary for many years,14 and have been relied upon less and less in our own decisions.15 It is time, for the reasons we have stated, to hold that on their own facts, and insofar as the principles they stand for are inconsistent with those that we have endorsed today, they are no longer to be followed.
39
Application of sound Fourth Amendment principles to the facts of this case produces a clear result. The search here went far beyond the petitioner's person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. The scope of the search was, therefore, 'unreasonable' under the Fourth and Fourteenth Amendments and the petitioner's conviction cannot stand.16
40
Reversed.
41
Mr. Justice HARLAN, concurring.
42
I join the Court's opinion with these remarks concerning a factor to which the Court has not alluded.
43
The only thing that has given me pause in voting to overrule Harris and Rabinowitz is that as a result of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), every change in Fourth Amendment law must now be obeyed by state officials facing widely different problems of local law enforcement. We simply do not know the extent to which cities and towns across the Nation are prepared to administer the greatly expanded warrant system which will be required by today's decision; nor can we say with assurance that in each and every local situation, the warrant requirement plays an essential role in the protection of those fundamental liberties protected against state infringement by the Fourteenth Amendment.
44
Thus, one is now faced with the dilemma, envisioned in my separate opinion in Ker, 374 U.S., at 45—46, 83 S.Ct., at 1646, of choosing between vindicating sound Fourth Amendment principles at the possible expense of state concerns, long recognized to be consonant with the Fourteenth Amendment before Mapp and Ker came on the books, or diluting the Federal Bill of Rights in the interest of leaving the States at least some elbow room in their methods of criminal law enforcement. No comparable dilemma exists, of course, with respect to the impact of today's decision within the federal system itself.
45
This federal-state factor has not been an easy one for me to resolve, but in the last analysis I cannot in good conscience vote to perpetuate bad Fourth Amendment law.
46
I add only that this case, together with Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2089, 23 L.Ed.2d 656, and Simpson v. Rice, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, all dc ided today, serve to point up, as few other cases have, the profound changes that the 'incorporation doctrine' has wrought both in the workings of our federal system and upon the adjudicative processes of this Court.
47
Mr. Justice WHITE, with whom Mr. Justice BLACK joins, dissenting.
48
Few areas of the law have been as subject to shifting constitutional standards over the last 50 years as that of the search 'incident to an arrest.' There has been a remarkable instability in this whole area, which has seen at least four major shifts in emphasis. Today's opinion makes an untimely fifth. In my view, the Court should not now abandon the old rule.
49
* The modern odyssey of doctrine in this field is detailed in the majority opinion. It began with Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), where the Court paused to note that the case before it was not. 'It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. * * * Nor is it the case of burglar's tools or other proofs of guilt found upon his arrest within the control of the accused.' Id., at 392, 34 S.Ct., at 344 (Emphasis added.) This scope of search incident to arrest, extending to all items under the suspect's 'control,' was reaffirmed in a dictum in Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925). Accord, Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145 (1925) (holding that 'the place where the arrest is made' may be searched 'is not to be doubted'). The rule was reaffirmed in Marron v. United States, 275 U.S. 192, 199, 48 S.Ct. 74, 77, 72 L.Ed. 231 (1927), where the Court asserted that authority to search incident to an arrest 'extended to all parts of the premises used for the unlawful purpose.'
50
Within five years, this rule was qualified by two Prohibition Act cases, Go-Bart Importing Co. v. United States, 282 U.S. 344, 356—358, 51 S.Ct. 153, 157—158, 75 L.Ed. 374 (1931), and United States v. Lefkowitz, 285 U.S. 452, 463—467, 52 S.Ct. 420, 422—424, 76 L.Ed. 877 (1932).
51
If Go-Bart and Lefkowitz represented a retreat from the rule of Weeks, Carroll, Agnello, and Marron, the vigor of the earlier rule was reaffirmed in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), which has, but for one brief interlude, clearly been the law until today. The very next Term after Harries, in Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948), the Court held unjustifiable the seizure of a still incident to the arrest of a man at the still site, even though the still was contraband, had been visible through an open door before entering the premises to be 'searched,' and although a crime was being committed in the officers' presence. Accord, that year, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (gambling game seen through transom before entry). Less than two years later, however, the Court returned to the Harris rule in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), where the Court held that the reasonableness of a search does not depend upon the practicability of obtaining a search warrant, and that the fact of a valid arrest is relevant to reasonableness. Trupiano was pro tanto overruled.
52
Such rapid reversals have occurred before,1 but they are rare. Here there had been two about-faces, one following hard upon the other. Justice Frankfurter objected in this language: 'Especially ought the Court not reenforce needlessly the instabilities of our day by giving fair ground for the belief that Law is the expression of chance—for instance, of unexpected changes in the Court's composition and the contingencies in the choice of successors.' 339 U.S., at 86, 73 S.Ct., at 444. Since that time,t he rule of Weeks, Marron, Harris, and Rabinowitz has clearly been the law. E.g., Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (Frankfurter, J., writing for the Court); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).2
II.
53
The rule which has prevailed, but for very brief or doubtful periods of aberration, is that a search incident to an arrest may extend to those areas under the control of the defendant and where items subject to constitutional seizure may be found. The justification for this rule must, under the language of the Fourth Amendment, lie in the reasonableness of the rule. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Klkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960). The Amendment provides:
54
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
55
In terms, then, the Court must decide whether a given search is reasonable. The Amendment does not proscribe 'warrantless searches' but instead it proscribes 'unreasonable searches' and this Court has never held nor does the majority today assert that warrantless searches are necessarily unreasonable.
56
Applying this reasonableness test to the area of searches incident to arrests, one thing is clear at the outset. Search of an arrested man and of the items within his immediate reach must in almost every case be reasonable. There is always a danger that the suspect will try to escape, seizing concealed weapons with which to overpower and injure the arresting officers, and there is a danger that he may destroy evidence vital to the prosecution. Circumstances in which these justifications would not apply are sufficiently rare that inquiry is not made into searches of this scope, which have been considered reasonable throughout.
57
The justifications which make such a search reasonable obviously do not apply to the search of areas to which the accused does not have ready physical access. This is not enough, however, to prove such searches unconstitutional. The Court has always held, and does not today deny, that when there is probable cause to search and it is 'impracticable' for one reason or another to get a search warrant, then a warrantless search may be reasonable. E.g., even Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). This is the case whether an arrest was made at the time of the search or not.3
58
This is not to say that a search can be reasonable without regard to the probable cause to believe that seizable items are on the premises. But when there are exigent circumstances, and probable cause, then the search may be made without a warrant, reasonably. An arrest itself may often create an emergency situation making it impracticable to obtain a warrant before embarking on a related search. Again assuming that there is probable cause to search premises at the spot where a suspect is arrested, it seems to me unreasonable to require the police to leave the scene in order to obtain a search warrant when they are already legally there to make a valid arrest, and when there must almost always be a strong possibility that confederates of the arrested man will in the meanwhile remove the items for which the police have probable cause to search. This must so often be the case that it seems to me as unreasonable to require a warrant for a search of the premises as to require a warrant for search of the person and his very immediate surroundings.
59
This case provides a good illustration of my point that it is unreasonable to require police to leave the scene of an arrest in order to obtain a search warrant when they already have probable cause to search and there is a clear danger that the items for which they may reasonably search will be removed before they return with a warrant. Petitioner was arrested in his home after an arrest whose validity will be explored below, but which I will now assume was valid. There was doubtless probable cause not only to arrest petitioner, but also to search his house. He had obliquely admitted, both to a neighbor and to the owner of the burglarized store, that he had committed the burglary.4 In light of this, and the fact that the neighbor had seen other admittedly stolen property in petitioner's house, there was surely probable cause on which a warrant could have issued to search the house for the stolen coins. Moreover, had the police simply arrested petitioner, taken him off to the station house, and later returned with a warrant,5 it seems very likely that petitioner's wife, who in view of petitioner's generally garrulous nature must have known of the robbery, would have removed the coins. For the police to search the house while the evidence they had probable cause to search out and seize was still there cannot be considered unreasonable.6
III.
60
This line of analysis, supported by the precedents of this Court, hinges on two assumptions. One is that the arrest of petitioner without a valid warrant7 was constitutional as the majority assumes; the other is that the police were not required to obtain a search warrant in advance, even though they knew that the effect of the arrest might well be to alert petitioner's wife that the coins had better be removed soon. Thus it is necessary to examine the constitutionality of the arrest since if it was illegal, the exigent circumstances which it created may not, as the consequences of a lawless act, be used to justify the contemporaneous warrantless search. But for the arrest, the warrantless search may not be justified.8 And if circumstances can justify the warrantless arrest, it would be strange to say that the Fourth Amendment bars the warrantless search, regardless of the circumstances, since the invasion and disruption of a man's life and privacy which stem from his arrest are ordinarily far greater than the relatively minor intrusions attending a search of his premises.
61
Congress has expressly authorized a wide range of officials to make arrests without any warrant in criminal cases. United States Marshals have long had this power,9 which is also vested in the agents of the Federal Bureau of Investigation,10 and in the Secret Service11 and the narcotics law enforcement agency.12 That warrantless arrest power may apply even when there is time to get a warrant without fear that the suspect may escape is made perfectly clear by the legislative history of he statute granting arrest power to the FBI.
62
In United States v. Coplon, 185 F.2d 629, 633—636, 28 A.L.R.2d 1041 (C.A.2d Cir. 1950), the court held that an arrest and search were invalid because there was an insufficient showing of danger of escape, and therefore there was time to obtain a warrant. The opinion, written by Judge Learned Hand and joined by Judges Swan and Frank, reviewed the common-law power of arrest, which permitted arrests for felonies committed in the past 'if (the officer) had reasonable ground to suppose that the person arrested had committed the felony.' However, the court concluded that this power of warrantless arrest had been limited by the congressional requirement that there must be a 'likelihood of the person escaping before a warrant can be obtained for his arrest.'
63
The next month the Congress was moved by this very decision to amend the law, consciously deleting the language upon which Judge Hand had relied so as to make it clear that warrantless arrests were authorized even if there was time to procure a warrant. Act of January 10, 1951, c. 1221, § 1, 64 Stat. 1239; H.. Rep. No. 3228, 81st Cong., 2d Sess. (1950).13 Thereupon, the Court of Appeals for the District of Columbia Circuit, passing on the very same arrest which had induced the congressional action, held that this 'unmistakable' revision made it clear that there was in the FBI a power to arrest without warrant even when there was time to procure one. For this reason, the court upheld the arrest and contemporaneous search. Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (1951). Certiorari was denied in both Coplon cases. 342 U.S. 920, 926, 72 S.Ct. 362, 363, 96 L.Ed. 688, 690 (1952). Moreover, the statute under which the FBI exercises that power was later said by this Court to state the constitutional standard, Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), since it requires 'reasonable grounds to believe that the person to be arrested has committed or is committing' a felony, 18 U.S.C. § 3052, before a warrantless arrest may be made. And the Court today has declined to review a warrantless arrest under th narcotics agent statute. Jamison v. United States, 395 U.S. 986, 89 S.Ct. 2135, 23 L.Ed.2d 774. See also my dissent in Shipley v. California, 395 U.S. 818, at 821, 89 S.Ct. 2053, at 2055, 23 L.Ed.2d 732.
64
The judgment of Congress is that federal law enforcement officers may reasonably make warrantless arrests upon probable cause, and no judicial experience suggests that this judgment is infirm. Indeed, past cases suggest precisely the contrary conclusion. The validity of federal arrests was long governed by state law, United States v. Di Re, 332 U.S. 581, 589—592, 68 S.Ct. 222, 226—227, 92 L.Ed. 210 (1948), and no requirement that warrants be sought whenever there is time to do so was imposed either by common-law history14 or by decisions of this Court. This Court has upheld an executive arrest warrant for deportation, permitting the arrest to occur without prior judicial scrutiny, Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). And this Court has regularly affirmed the validity of warrantless arrests without any indication whatever that there was no time to get a warrant, and indeed where all the circumstances pointed to the opposite conclusion. E.g., Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The lower federal courts have certainly been of the view that warrants are unnecessary even where there is time to obtain them. Dailey v. United States, 261 F.2d 870 (C.A.5th Cir. 1958), cert. denied, 359 U.S. 969, 79 S.Ct. 881, 3 L.Ed.2d 836 (1959) (statutory warrantless arrest by federal narcotics agents); Smith v. United States, 103 U.S.App.D.C. 48, 52, 254 F.2d 751, 755, cert. denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552 (1958); Mills v. United States, 90 U.S.App.D.C. 365, 196 F.2d 600, cert. denied 344 U.S. 826, 73 S.Ct. 27, 97 L.Ed. 643 (1952) (sub silentio).
65
In light of the uniformity of judgment of the Congress, past judicial decisions, and common practice rejecting the preoposition that arrest warrants are essential wherever it is practicable to get them, the conclusion is inevitable that such arrests and accompanying searches are reasonable, at least until experience teaches the contrary. It must very often be the case that by the time probable cause to arrest a man is accm ulated, the man is aware of police interest in him or for other good reasons is on the verge of flight. Moreover, it will likely be very difficult to determine the probability of his flight. Given this situation, it may be best in all cases simply to allow the arrest if there is probable cause, especially since that issue can be determined very shortly after the arrest.
66
Nor are the stated assumptions at all fanciful. It was precisely these facts which moved the Congress to grant to the FBI the power to arrest without a warrant without any showing of probability of flight. Both the Senate and House committees quoted the letter of the Acting Deputy Attorney General, Peter Campbell Brown, who in asking for the new legislation asserted: 'Although it is recognized that in any felony case the person to be arrested may attempt to flee, it is also recognized that in any such case in which the defendant is arrested without a warrant in an emergency situation, such defendant may be able to present a rather convincing argument that he did not intend to flee.' S.Rep. No. 2464, 81st Cong., 2d Sess., 2 (1950); H.R.Rep. No. 3228, 81st Cong., 2d Sess., 2 (1950). Some weight should be accorded this factual judgment by law enforcement officials, adopted by the Congress.
IV.
67
If circumstances so often require the warrantless arrest that the law generally permits it, the typical situation will find the arresting officers lawfully on the premises without arrest or search warrant. Like the majority, I would permit the police to search the person of a suspect and the area under his immediate control either to assure the safety of the officers or to prevent the destruction of evidence. And like the majority, I see nothing in the arrest alone furnishing probable cause for a search of any broader scope. However, where as here the existence of probable cause is independently established and would justify a warrant for a broader search for evidence, I would follow past cases and permit such a search to be carried out without a warrant, since the fact of arrest supplies an exigent circumstance justifying police action before the evidence can be removed, and also alerts the suspect to the fact of the search so that he can immediately seek judicial determination of probable cause in an adversary proceeding, and appropriate redress.
68
This view, consistent with past cases, would not authorize the general search against which the Fourth Amendment was meant to guard, nor would it broaden or render uncertain in any way whatsoever the scope of searches permitted under the Fourth Amendment. The issue in this case is not the breadth of the search, since there was clearly probable cause for the search which was carried out. No broader search than if the officers had a warrant would be permitted. The only issue is whether a search warrant was required as a precondition to that search. It is agreed that such a warrant would be required absent exigent circumstances.15 I would hold that the fact of arrest supplies such an exigent circumstance, since the police had lawfully gained entry to the premises to effect the arrest and since delaying the search to secure a warrant would have involved the risk of not recovering the fruits of the crime.
69
The majority today proscribes searches for which there is probable cause and which may prove fruitless unless carried out immediately. This rule will have no added effect whatsoever in protecting the rights of the criminal accused at trial against introduction of evidence seized without probable cause. Such evidence could not be introduced under the old rule. Nor does the majority today give any added protection to the right of privacy of those whose houses there is probable cause to search. A warrant would still be sworn out for those houses, and the privacy of their owners invaded. The only possible justification for the majority's rule is that in some instances arresting officers may search when they have no probable cause to do so and that such unlawful searches might be prevented if the officers first sought a warrant from a magistrate. Against the possible protection of privacy in that class of cases, in wich the privacy of the house has already been invaded by entry to make the arrest—an entry for which the majority does not assert that any warrant is necessary—must be weighed the risk of destruction of evidence for which there is probable cause to search, as a result of delays in obtaining a search warrant. Without more basis for radical change than the Court's opinion reveals, I would not upset the balance of these interests which has been struck by the former decisions of this Court.
70
In considering searches incident to arrest, it must be remembered that there will be immediate opportunity to challenge the probable cause for the search in an adversary proceeding. The suspect has been apprised of the search by his very presence at the scene, and having been arrested, he will soon be brought into contact with people who can explain his rights. As Mr. Justice Brennan noted in a dissenting opinion, joined by The Chief Justice and Justices Black and Douglas, in Abel v. United States, 362 U.S. 217, 249—250, 80 S.Ct. 683, 702, 4 L.Ed.2d 668 (1960), a search contemporaneous with a warrantless arrest is specially safeguarded since '(s)uch an arrest may constitutionally be made only upon probable cause, the existence of which is subject to judicial examination, see Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 169, 4 L.Ed.2d 134, and such an arrest demands the prompt bringing of the person arrested before a judicial officer, where the existence of probable cause is to be inquired into. Fed.Rules Crim.Proc. 5, (a) and (c) * * *. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.' And since that time the Court has imposed on state and federal officers alike the duty to warn suspects taken into custody, before questioning them, of their right to a lawyer. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).
71
An arrested man, by definition conscious of the police interest in him, and provided almost immediately with a lawyer and a judge, is in an excellent position to dispute the reasonableness of his arrest and contemporaneous search in a full adversary proceeding. I would uphold the constitutionality of this search contemporaneous with an arrest since there were probable cause both for the search and for the arrest, exigent circumstances involving the removal or destruction of evidence, and satisfactory opportunity to dispute the issues of probable cause shortly thereafter. In this case, the search was reasonable.
1
The affidavit supporting the warrant is set out in the opinion of the Court of Appeal, 61 Cal.Rptr., at 715—716, n. 1, and the State does not challenge its insufficiency under the principles of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.
2
The Court assumed that the arrests were lawful. 282 U.S., at 356, 51 S.Ct., at 157.
3
See also McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153.
4
Decisions of this Court since Rabinowitz hav applied the abstract doctrine of that case to various factual situations with divergent results. Compare Ker v. California, 374 U.S. 23, 42, 83 S.Ct. 1623, 1634, 10 L.Ed.2d 726; Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; and Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, with Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (per curiam). Cf. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Jones v. United States, 357 U.S. 493, 499—500, 78 S.Ct. 1253, 1257—1258, 2 L.Ed.2d 1514.
5
See generally Boyd v. United States, 116 U.S. 616, 624 625, 6 S.Ct. 524, 528—529, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383, 389—391, 34 S.Ct. 341, 343—344, 58 L.Ed. 652; Davis v. United States, 328 U.S. 582, 603—605, 66 S.Ct. 1256, 1266—1267, 90 L.Ed. 1453 (dissenting opinion); Harris v. United States, 331 U.S. 145, 157—162, 67 S.Ct. 1098, 1104—1107, 91 L.Ed. 1399 (dissenting opinion); Stanford v. Texas, 379 U.S. 476, 481—482, 85 S.Ct. 506, 509—510, 13 L.Ed.2d 431.
6
See also David v. Mississippi, 394 U.S. 721, 728, 89 S.Ct. 1394, 1398, 22 L.Ed.2d 676; Katz v. United States, 389 U.S. 347, 356—358, 88 S.Ct. 507, 514—515, 19 L.Ed.2d 576; Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782; Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777.
7
Our Sibron opinion dealt with two cases. We refer here to No. 63, involving the appellant Sibron. See infra, at 764.
8
See Katz v. United States, 389 U.S. 347, 357—358, 88 S.Ct. 507, 514—515, 19 L.Ed.2d 576.
9
Our holding today is of course entirely consistent with the recognized principle that, assuming the existence of probable cause, automobiles and other vehicles may be searched without warrants 'where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543; see Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.
10
Some courts have carried the Rabinowitz approach to just such lengths. See, e.g., Clifton v. United States, 224 F.2d 329 (C.A.4th Cir.), cert. denied, 350 U.S. 894, 76 S.Ct. 152, 100 L.Ed. 786 (purchaser of illicit whiskey arrested in back yard of seller; search of one room of house sustained); United States v. Jackson, 149 F.Supp. 937 (D.C.D.C.), rev'd on other grounds, 102 U.S.App.D.C. 109, 250 F.2d 772 (suspect arrested half a block from his rented room; search of room upheld). But see James v. Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30 (per curiam).
11
Cf. Mr. Justice Jackson's dissenting comment in Harris:
'The difficulty with this problem for me is that once the search is allowed to go beyond the person arrested and the objects upon him or in his immediate physical control, I see no practical limit short of that set in the opinion of the Court—and that means to me no limit at all.' 331 U.S., at 197, 67 S.Ct., at 1120.
12
It is argued in dissent that so long as there is probable cause to search the place where an arrest occurs, a search of that place should be permitted even though no search warrant has been obtained. This position seems to be based principally on two premises: first, that once an arrest has been made, the additional invasion of privacy stemming from the accompanying search is 'relatively minor'; and second, that the victim of the search may 'shortly thereafter' obtain a judicial determination of whether the search was justified by probable cause. With respect to the second premise, one may initially question whether all of the States in fact provide the speedy suppression procedures the dissent assumes. More fundamentally, however, we cannot accept the view that Fourth Amendment interests are vindicated so long as 'the rights of the criminal' are 'protect(ed) * * * against introduction of evidence seized without probable cause.' The Amendment is designed to prevent, not simply to redress, unlawful police action. In any event, we cannot join in characterizing the invasion of privacy that results from a top-to-bottom search of a man's house as 'minor.' And we can see no reason why, simply because some interference with an individual's privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require.
13
Although the warrant was issued at 10:39 a.m. and the arrest was not made until late in the afternoon, the State suggests that the delay is accounted for by normal police procedures and by the heavy workload of the officer in charge. In addition, that officer testified that he and his colleagues went to the petitioner's house 'to keep from approaching him at his place of business to cause him any problem there.'
14
See, e.g., J. Landynski, Search and Seizure and the Supreme Court 87—117 (1966); Way, Increasing Scope of Search Incidental to Arrest, 1959 Wash.U.L.Q. 261; Note, Scope Limitations for Searches Incident to Arrest, 78 Yale L.J. 433 (1969); Note, The Supreme Court 1966 Term, 81 Harv.L.Rev. 69, 117 122 (1967).
15
Cf. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 220, 88 S.Ct. 1472, 1475, 20 L.Ed.2d 538; Katz v. United States, 389 U.S., at 357—358, n. 20, 88 S.Ct., at 514—515; Warden v. Hayden, 387 U.S., at 299, 87 S.Ct., at 1646; Stoner v. California, 376 U.S. 483, 487, 84 S.Ct. 889, 892, 11 L.Ed.2d 856. But see Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730; Ker v. California, 374 U.S., at 42, 83 S.Ct., at 1634 (opinion of Clark, J.); cf. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142; Abel v. United States, 362 U.S., at 236—239, 80 S.Ct., at 695—697; Giordenello v. United States, 357 U.S. 480, 488, 78 S.Ct. 1245, 1251, 2 L.Ed.2d 1503.
16
The State has made various subsidiary contentions, including arguments that it would have been unduly burdensome to obtain a warrant specifying the coins to be seized and that introduction of the fruits of the search was harmless error. We reject those contentions as being without merit.
1
Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943), overruled Jones v. Opelika, 316 U.S. 584, 62 S.Ct. 1231, 86 L.Ed. 1691 (1942); Legal Tender Cases, 12 Wall. 457, 20 L.Ed. 287 (1871), overruled Hepburn v. Griswold, 8 Wall. 603, 19 L.Ed. 513 (1870).
2
The majority cites Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957), as suggesting an inconsistency. There, however, in a per curiam opinion the Court merely overturned a general search in which the entire contents of a cabin, which it took 11 pages of fine print for the Court to inventory, were seized. See Abel v. United States, 362 U.S. 217, 239, 80 S.Ct. 683, 697, 4 L.Ed.2d 668 (1960) (Kremen distinguished as a 'mass seizure').
3
Even Mr. Justice Frankfurter, joined in dissent in Rabinowitz by Mr. Justice Jackson, admitted that there was an exception to the search-warrant requirement in cases of necessity, and noted that this applied, for example, to vehicles which could readily be moved. 339 U.S. 56, at 73, 70 S.Ct. 430, at 438.
4
Before the burglary of the coin store, petitioner had told its owner that he was planning a big robbery, had inquired about the alarm system in the store, the state of the owner's insurance, and the location of the owner's most valuable coins. Petitioner wandered about the store the day before the burglary. After the burglary, petitioner called the store's owner and accused him of robbing the store himself for the insurance proceeds on a policy which, as petitioner knew, had just been reduced from $50,000 to $10,000 coverage. On being told that the robbery had been sloppy, petitioner excitedly claimed that it had been 'real professional' but then denied the robbery. On the night of the robbery itself petitioner declined an invitation to a bicycle ride, saying he was 'going to knock over a place' and that a coin shop was 'all set.' After the robbery, he told the same neighbor that he had started to break into the coin shop, but had stopped, and then denied the whole incident. The neighbor had earlier seen stacks of typewriters in petitioner's house. Asked whether they were 'hot' petitioner replied, 'Hotter than a $3 bill.' On reading a newspaper description of the coin store burglary, the neighbor called the police.
5
There were three officers at the scene of the arrest, one from the city where the coin burglary had occurred, and two from the city where the arrest was made. Assuming that one policeman from each city would be needed to bring the petitioner in and obtain a search warrant, one policeman could have been left to guard the house. However, if he not only could have remained in the house against petitioner's wife's will, but followed her about to assure that no evidence was being tampered with, the invasion of her privacy would be almost as great as that accompanying an at ual search. Moreover, had the wife summoned an accomplice, one officer could not have watched them both.
6
A second arrest and search of petitioner's house occurred three days later. It relates to an entirely separate robbery of which petitioner was separately convicted and for which he was concurrently sentenced. Since no evidence was seized in the second search, and since it did not in any way affect petitioner's trial so far as the record discloses, there is no occasion to consider its propriety.
7
An arrest warrant was in fact issued, but it was issued on an inadequate supporting affidavit and was therefore invalid, so that the case must be considered as though no warrant had been issued.
8
This is turn assumes that where it is practicable to obtain a search warrant and the search is not contemporaneous with an arrest, a warrant must be obtained to validate the search. This is the holding of past cases and I do not question it.
9
Act of June 15, 1935, c. 259, § 2, 49 Stat. 378, as amended, 18 U.S.C. § 3053.
10
Act of June 18, 1934, c. 595, 48 Stat. 1008, as amended, 18 U.S.C. § 3052.
11
Act of Sept. 29, 1965, 79 Stat. 890, as amended, 18 U.S.C. § 3056 (1964 ed., Supp. IV).
12
Act of July 18, 1956, as amended, Tit. I, § 104(a), 70 Stat. 570, 26 U.S.C. § 7607(2).
13
Congress' expedition was possible partly because the same change had earlier been approved by a Senatorial committee. S.Rep.No.2464, 81st Cong., 2d Sess. (1950).
14
There was no dispute between the two Coplon courts on this point, since it was well established that even a private person could make a warrantless arrest at common law for a felony which had actually been committed, and a peace officer could make such an arrest if he had reasonable cause to believe the offense had been committed. 1 J. Stephen, A. History of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown 71—104 (first American ed. 1847).
15
A search without a warrant 'can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warant. Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59.' Rios v. United States, 364 U.S. 253, 261, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688 (1960); Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856 (1964). And 'a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145.' Stoner v. Califon ia, supra, at 486, 84 S.Ct. at 891; James v. Louisiana, 382 U.S. 36, 37, 86 S.Ct. 151, 15 L.Ed.2d 30 (1965). There is thus no question that a warrant to search petitioner's house would have been required had he not been arrested there. In such cases, the officers are not already lawfully on the premises, and there is not so often the same risk of the destruction of evidence nor the necessity to make an immediate search without the delay involved in securing a warrant.
| 01
|
395 U.S. 711
89 S.Ct. 2072
23 L.Ed.2d 656
State of NORTH CAROLINA et al., Petitioners,v.Clifton A. PEARCE. Curtis M. SIMPSON, Warden, Petitioner, v. William S. RICE.
Nos. 413 and 418.
Argued Feb. 24, 1969.
June 23, 1969.
[Syllabus from pages 711-712 intentionally omitted]
Andrew A. Vanore, Jr., Raleigh, N.C., for petitioners North Carolina and others.
Larry B. Sitton, Greensboro, N.C., for respondent, Pearce.
Paul T. Gish, Jr., Montgomery, Ala., for petitioner, Simpson.
Thomas S. Lawson, Jr., Montgomery, Ala., for respondent, Rice.
Mr. Justice STEWART delivered the opinion of the Court.
1
When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial? That is the question presented by these two cases.
2
In No. 413 the respondent Pearce was convicted in a North Carolina court upon a charge of assault with intent to commit rape. The trial judge sentenced him to prison for a term of 12 to 15 years. Several years later he initiated a state post-conviction proceeding which culminated in the reversal of his conviction by the Supreme Court of North Carolina, upon the ground that an involuntary confession had unconstitutionally been admitted in evidence against him, 266 N.C. 234, 145 S.E.2d 918. He was retried, convicted, and sentenced by the trial judge to an eight-year prison term, which, when added to the time Pearce had already spent in prison, the parties agree amounted to a longer total sentence than that originally imposed.1 The conviction and sentence were affirmed on appeal. 268 N.C. 707, 151 S.E.2d 571. Pearce then began this habeas corpus proceeding in the United States District Court for the Eastern District of North Carolina. That court held, upon the authority of a then very recent Fourth Circuit decision, Patton v. North Carolina, 381 F.2d 636, cert. denied, 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871, that the longer sentence imposed upon retrial was 'unconstitutional and void.'2 Upon the failure of the state court to resentence Pearce within 60 days, the federal court ordered his release. This order was affirmed by the United States Court of Appeals for the Fourth Circuit, 397 F.2d 253, in a brief per curiam judgment citing its Patton decision, and we granted certiorari. 393 U.S. 922, 89 S.Ct. 28 , 21 L.Ed.2d 258.
3
In No. 418 the respondent Rice pleaded guilty in an Alabama trial court to four separate charges of second-degree burglary. He was sentenced to prison terms aggregating 10 years.3 Two and one-half years later the judgments were set aside in a state coram nobis proceeding, upon the ground that Rice had not been accorded his constitutional right to counsel. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. He was retried upon three of the charges, convicted, and sentenced to prison terms aggregating 25 years.4 No credit was given for the time he had spent in prison on the original judgments. He then brought this habeas corpus proceeding in the United States District Court for the Middle District of Alabama, alleging that the state trial court had acted unconstitutionally in failing to give him credit for the time he had already served in prison, and in imposing grossly harsher sentences upon retrial. United States District Judge Frank M. Johnson, Jr., agreed with both contentions. While stating that he did 'not believe that it is constitutionally impermissible to impose a harsher sentence upon retrial if there is recorded in the court record some legal justification for it,' Judge Johnson found that Rice had been denied due process of law, because '(u) nder the evidence in this case, the conclusion is inescapable that the State of Alabama is punishing petitioner Rice for his having exercised his post-conviction right of review and for having the original sentences declared unconstitutional.' 274 F.Supp. 116, 121, 122. The judgment of the District Court was affirmed by the United States Court of Appeals for the Fifth Circuit, 'on the basis of Judge Johnson's opinion,' 396 F.2d 499, 500, and we granted certiorari. 393 U.S. 932, 89 S.Ct. 292, 21 L.Ed.2d 268.
4
The problem before us5 involves two related but analytically separate issues. One concerns the constitutional limitations upon the imposition of a more severe punishment after conviction for the same offense upon retrial. The other is the more limited question whether, in computing the new sentence, the Constitution requires that credit must be given for that part of the original sentence already served. The second question is not presented in Pearce, for in North Carolina it appears to be the law that a defendant must be given full credit for all time served under the previous sentence. State v. Stafford, 274 N.C. 519, 164 S.E.2d 371; State v. Paige, 272 N.C. 417, 158 S.E.2d 522; State v. Weaver, 264 N.C. 681, 142 S.E.2d 633. In any event, Pearce was given such credit.6 Alabama law, however, seems to reflect a different view. Aaron v. State, 43 Ala.App. 450, 192 So.2d 456; Ex parte Merkes, 43 Ala.App. 640, 198 So.2d 789.7 And respondent Rice, upon being resentenced, was given no credit at all for th two and one-half years he had already spent in prison.
5
We turn first to the more limited aspect of the question before us—whether the Constitution requires that, in computing the sentence imposed after conviction upon retrial, credit must be given for time served under the original sentence. We then consider the broader question of what constitutional limitations there may be upon the imposition of a more severe sentence after reconviction.
I.
6
The Court has held today, in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. That guarantee has been said to consist of three separate constitutional protections.8 It protects against a second prosecution for the same offense after acquittal.9 It protects against a second prosecution for the same offense after conviction.10 And it protects against multiple punishments for the same offense.11 This last protection is what is necessarily implicated in any consideration of the question whether, in the imposition of sentence for the same offense after retrial, the Constitution requires that credit must be given for punishment already endured. The Court stated the controlling constitutional principle almost 100 years ago, in the landmark case of Ex parte Lange, 18 Wall. 163, 168, 21 L.Ed. 872:
7
'If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And * * * there has never been any doubt of (this rule's) entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense.
8
'* * * (T)he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.' Id., at 173.
9
We think it is clear that this basic constitutional guarantee is violated when punishment already exacted for an offense is not fully 'credited' in imposing sentence upon a new conviction for the same offense. The constitutional violation is flagrantly apparent in a case involving the imposition of a maximum sentence after reconviction. Suppose, for example, in a jurisdiction where the maximum allowable sentence for larceny is 10 years' imprisonment, a man succeeds in getting his larceny conviction set aside after serving three years in prison. If, upon reconviction, he is given a 10-year sentence, then, quite clearly, he will have received multiple punishments for the same offense. For he will have been compelled to serve separate prison terms of three years and 10 years, although the maximum single punishment for the offense is 10 years' imprisonment. Though not so dramatically evident, the same principle obviously holds true whenever punishment already endured is not fully subtracted from any new sentence imposed.12
10
We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully 'credited'13 in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned—by subtracting them from whatever new sentence is imposed.
II.
11
To hold that the second sentence must be reduced by the time served under the first is, however, to give but a partial answer to the question before us.14 We turn, therefore, to consideration of the broader problem of what constitutional limitations there may be upon the general power of a judge to impose upon reconviction a longer prison sentence than the defendant originally received.
A.
12
Long-established constitutional doctrine makes clear that, beyond the requirement already discussed, the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction. At least since 1896, when United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, was decidd , it has been settled that this constitutional guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside.15 'The principle that this provision does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence.' United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448. And at least since 1919, when Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, was decided, it has been settled that a corollary of the power to retry a defendant is the power, upon the defendant's reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.16 'That a defendant's conviction is overturned on collateral rather than direct attack is irrelevant for these purposes, see Robinson v. United States, 6 Cir., 144 F.2d 392, 396, 397, aff'd on another ground, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944.' United States v. Tateo, supra, 377 U.S. at 466, 84 S.Ct., at 1589.
13
Although the rationale for this 'well-established part of our constitutional jurisprudence' has been variously verbalized, it rests ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean. As to whatever punishment has actually been suffered under the first conviction, that premise is, of course, an unmitigated fiction, as we have recognized in Part I of this opinion.17 But, so far as the conviction itself goes, and that part of the sentence that has not yet been served, it is no more than a simple statement of fact to say that the slate has been wiped clean. The conviction has been set aside and the unexpired portion of the original sentence will never be served. A new trial may result in an acquittal. But if it does result in a conviction, we cannot say that the constitutional guarantee against double jeopardy of its own weight restricts the imposition of an otherwise lawful single punishment for the offense in question. To hold to the contrary would be to cast doubt upon the whole validity of the basic principle enunciated in United States v. Ball, supra, and upon the unbroken line of decisions that have followed that principle for almost 75 years. We think those decisions are entirely sound, and we decline to depart from the concept they reflect.18
B.
14
The other argument advanced in support of the proposition that the Constitution absolutely forbids the imposition of a more severe sentence upon retrial is grounded upon the Equal Protection Clause of the Fourteenth Amendment. The theory advanced is that, since convicts who do not seek new trials cannot have their sentences increased, it creates an invidious classification to impose that risk only upon those who succeed in getting their original convictions set aside. The argument, while not lacking in ingenuity, cannot withstand close examination. In the first place, we deal here, not with increases in existing sentences, but with the imposition of wholly new sentences after wholly new trials. Putting that conceptual nicety to one side, however, the problem before us simply cannot be rationally dealt with in terms of 'classifications.' A man who is retried after his first conviction has been set aside may be acquitted. If convicted, he may receive a shorter sentence, he may receive the same sentence, or he may receive a longer sentence than the one originally imposed. The result may depend upon a particular combination of infinite variables peculiar to each individual trial. It simply cannot be said that a State has invidiously 'classified' those who successfully seek new trials, any more than that the State has invidiously 'classified' those prisoners whose convictions are not set aside by denying the members of that group the opportunity to be acquitted. To fit the problem of this case into an equal protection framework is a task too Procrustean to be rationally accomplished.
C.
15
We hold, therefore, that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction. A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's 'life, health, habits, conduct, and mental and moral propensities.' Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337. Such information may come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or possibly from other sources. The freedom of a sentencing judge to consider the defendant's conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v. New York, supra, that a State may adopt the 'prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.' Id., 337 U.S. at 247, 69 S.Ct., at 1083.
16
To say that there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial is not, however, to end the inquiry. There remain for consideration the impact of the Due Process Clause of the Fourteenth Amendment.
17
It can hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. Where, as in each of the cases before us, the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, 'penalizing those who choose to exercise' constitutional rights, 'would be patently unconstitutional.' United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138. And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to 'chill the exercise of basic constitutional rights.' Id., at 582, 88 S.Ct., at 1216. See also Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; cf. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718. But even if the first conviction has been set aside for nonconstitutional error, the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law.19 'A new sentence, with enhanced punishment, based upon such a reason, would be a flagrant violation of the rights of the defendant.' Nichols v. United States, 106 F. 672, 679. A court is 'without right to * * * put a price on an appeal. A defendant's exercise of a right of appeal must be free and unfettered. * * * (I)t is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice.' Worcester v. Commissioner of Internal Revenue, 1 Cir., 370 F.2d 713, 718. See Short v. United States, 120 U.S.App.D.C. 165, 167, 344 F.2d 550, 552. 'This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899.' Rinaldi v. Yeager, 384 U.S. 305, 310 311, 86 S.Ct. 1497, 1500—1501, 16 L.Ed.2d 577.
18
Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.20
19
In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.
20
We dispose of the two cases before us in the light of these conclusions. In No. 418 Judge Johnson noted that 'the State of Alabama offers no evidence attempting to justify the increase in Rice's original sentences * * *.' 274 F.Supp., at 121. He found it 'shocking that the State of Alabama has not attempted to explain or justify the increase in Rice's punishment—in these three cases, over threefold.' Id., at 121—122. And he found that 'the conclusion is inescapable that the State of Alabama is punishing petitioner Rice for his having exercised his post-conviction right of review * * *.' Id., at 122. In No. 413 the situation is not so dramatically clear. Nonetheless, the fact remains that neither at the time the increased sentence was imposed upon Pearce, nor at any stage in this habeas corpus proceeding, has the State offered any reason or justification for that sentence beyond the naked power to impose it. We conclude that in each of the cases before us, the judgment should be affirmed.
21
It is so ordered.
22
Judgment in each case affirmed.
23
Mr. Justice DOUGLAS, whom Mr. Justice MARSHALL joins, concurring.
24
Although I agree with the Court as to the reach of due process, I would go further. It is my view that if for any reason a new trial is granted and there is a conviction a second time, the second penalty imposed cannot exceed the first penalty, i respect is had for the guarantee against double jeopardy.
25
The theory of double jeopardy is that a person need run the gantlet only once. The gantlet is the risk of the range of punishment which the State or Federal Government imposes for that particular conduct. It may be a year to 25 years, or 20 years to life, or death. He risks the maximum permissible punishment when first tried. That risk having been faced once need not be faced again. And the fact that he takes an appeal does not waive his constitutional defense of former jeopardy to a second prosecution. Green v. United States, 355 U.S. 184, 191—193, 78 S.Ct. 221, 225, 227, 2 L.Ed.2d 199.
26
In the Green case, the defendant was charged with arson on one count and on a second court was charged with either first-degree murder carrying a mandatory death sentence, or second-degree murder carrying a maximum sentence of life imprisonment. The jury found him guilty of arson and second-degree murder but the verdict was silent as to first-degree murder. He appealed the conviction and obtained a reversal. On a remand he was tried again. This time he was convicted of first-degree murder and sentenced to death—hence his complaint of former jeopardy. We held that the guarantee of double jeopardy applied and that the defendant, having been 'in direct peril of being convicted and punished for first degree murder at his first trial' could not be 'forced to run the gantlet' twice. 355 U.S. at 190, 78 S.Ct. at 225.
27
It is argued that that case is different because there were two different crimes with different punishments provided by statute for each one. That, however, is a matter of semantics. 'It is immaterial to the basic purpose of the constitutional provision against double jeopardy whether the Legislature divides a crime into different degrees carrying different punishments or allows the court or jury to fix different punishments for the same crime.' People v. Henderson, 60 Cal.2d 482, 497, 35 Cal.Rptr. 77, 86, 386 P.2d 677, 686 (1963) (Traynor, J.).
28
From the point of view of the individual and his liberty, the risk here of getting from one to 15 years for specified conduct is different only in degree from the risk of Green of getting life imprisonment or capital punishment for specified conduct. Indeed, that matter was well understood by the dissenters in Green:
29
'As a practical matter, and on any basis of human values, it is scarcely possible to distinguish a case in which the defendant is convicted of a greater offense from one in which he is convicted of an offense that has the same name as that of which he was previously convicted but carries a significantly different punishment, namely death rather than imprisonment.' 355 U.S., at 213, 78 S.Ct. at 237 (Frankfurter, J., dissenting).1
30
The defendants in the present cases at the first trial faced the risk of maximum punishment and received less. In the second trial they were made to run the gantlet twice, since the Court today holds that the penalties can be increased.
31
It was established at an early date that the Fifth Amendment was designed to prevent an accused from running the risk of 'double punishment.' United States v. Ewell, 383 U.S. 11, 124, 86 S.Ct. 773, 778, 15 L.Ed.2d 627. When Madison introduced to the First Congress his draft of what became the Double Jeopardy Clause, it read:
32
'No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence * * *.' (Emphasis supplied.) 1 Annals of Cong. 434.
33
The phrasing of that proposal was changed at the behest of those who feared that the reference to but 'one trial' might prevent a convicted man from obtaining a new trial on writ of error. Id., at 753. But that change was not intended to alter the ban against double punishment. Sigler, A History of Double Jeopardy, 7 Am.J.Legal Hist. 283, 304—306 (1963).
34
'By forbidding that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb,' (the safeguard of the Fifth Amendment against double punishment) guarded against the repetition of history by * * * punishing (a man) for an offense when he had already suffered the punishment for it.' Roberts v. United States, 320 U.S. 264, 276, 64 S.Ct. 113, 119, 88 L.Ed. 41 (Frankfurter, J., dissenting).2
35
The inquiry, then, is into the meaning of 'double' or 'multiple' punishment. In Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872, the petitioner had been sentenced to one-year imprisonment and $200 in fines, under a federal statute providing for a maximum penalty of one-year imprisonment or $200 in fines. On writ of habeas corpus five days later, the trial court re-examined its own prior sentence and reset it, instead, at one-year imprisonment without credit for time already served. This Court, on certiorari, ordered petitioner discharged altogether. It reasoned that the trial court had power to impose a sentence of either imprisonment or fine. Because the petitioner had paid the fine, he had already suffered complete punishment for his crime and could not be subjected to further sanction:
36
'If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.' Id., at 168.
37
Ex parte Lange left it somewhat in doubt, whether the ban on double punishment applied only to situations in which the second sentence was added to one that had been completely served; or whether it also applied to the case where the second sentence was added to one still being served. It was not until United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354, that the Court clarified its position. In that case, having initially set the defendant's sentence at 10 months, the trial court later reduced the sentence to six months. The Government appealed, and the question was certified to this Court, whether a reduction in sentence violated the Double Jeopardy Clause:
38
'The general rule is that judgments, decrees and orders are within the control of the court during the term at which they were made. * * * The rule is not confined to civil cases, but applies in criminal cases as well, provided the punishment be not augmented. Ex parte Lange, 18 Wall. 163, 167—174, 21 L.Ed. 872 (additional citations omitted). In the present case the power of the court was exercised to mitigate the punishment, not to increase it, and is thus brought within the limia tion. * * *
39
'The distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it, is not based upon the ground that the court has lost control of the judgment in the latter case, but upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution * * *. This is the basis of the decision in Ex parte Lange, supra.' (Emphasis supplied). 282 U.S., at 306, 307, 51 S.Ct., at 114.
40
The governing principle has thus developed that a convicted man may be retried after a successful appeal, Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335; that he may run the risk, on retrial, of receiving a sentence as severe as that previously imposed, United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300; and that he may run the risk of being tried for a separate offense, Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516. But with all deference I submit that the State does not, because of prior error, have a second chance to obtain an enlarged sentence.3 Where a man successfully attacks a sentence that he has already 'fully served' (Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed. 572), the State cannot create an additional sentence and send him back to prison. Ex parte Lange, supra. Similarly, where a defendant successfully attacks a sentence that he has begun to serve, the State cannot impose an added sentence by sending him to prison for a greater term.4
41
The ban on double jeopardy has its roots deep in the history of occidental jurisprudence. 'Fear and abhorence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization.' Bartkus v. Illinois, 359 U.S. 121, 151—155, 79 S.Ct. 676, 696, 3 L.Ed.2d 684 (Black, J., dissenting). And its purposes are several. It prevents the State from using its criminal processes as an instrument of harassment to wear the accused out by a multitude of cases with accumulated trials. Abbate v. United States, 359 U.S. 187, 198—199, 79 S.Ct. 666, 672—673, 3 L.Ed.2d 729 (opinion by Brennan, J.).
42
It serves the additional purpose of precluding the State following acquittal, from successively retrying the defendant in the hope of securing a conviction. 'The vice of this procedure lies in relitigating the same issue on the same evidence before two different juries with a man's innocence or guilt at stake' 'in the hope that they would come to a different conclusion.' Hoag v. New Jersey, 356 U.S. 464, 474, 475, 78 S.Ct. 829, 836, 2 L.Ed.2d 913 (Warren, C.J., dissenting). 'Harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches.' Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100.
43
And finally, it prevents the State, following conviction from retrying the defendant again in the hope of securing a greater penalty.
44
'This case presents an instance of the prosecution being allowed to harass the accused with repeated trials and convictions on the same evidence, until it achieves its desired result of a capital verdict.' Ciucci v. Illinois, 356 U.S. 571, 573, 78 S.Ct. 839, 840, 2 L.Ed.2d 983 (Douglas, J., dissenting).
45
It is the latter purpose which is relevant here, for in these cases the Court allows the State a second chance to retry the defendant in the hope of securing a more favorable penalty.
46
'Why is it that, having once been tried and found guilty, he can never be tried again for that offence? Manifestly it is not the danger of jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But, if after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? * * *
47
'The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.' Ex parte Lange, supra, 18 Wall. at 173, 21 L.Ed. 872.
48
The Fourteenth Amendment would now prohibit North Carolina and Alabama, after trial, from retrying or resentencing these defendants in the bald hope of securing a more favorable5 verdict. Benton v. Maryland, 394 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. But here, because these defendants were successful in appealing their convictions, the Court allows those States to do just that. It is said that events subsequent to the first trial6 may justify a new and greater sentence. Of course that is true. But it is true, too, in every criminal case. Does that mean h at the State should be allowed to reopen every verdict and readjust every sentence by coming forward with new evidence concerning guilt and punishment? If not, then why should it be allowed to do so merely because the defendant has taken the initiative in seeking an error-free trial? It is doubtless true that the State has an interest in adjusting sentences upward when it discovers new evidence warranting that result. But the individual has an interest in remaining free of double punishment. And in weighing those interests against one another, the Constitution has decided the matter in favor of the individual. See United States v. Tateo, 377 U.S. 463, 475, 84 S.Ct. 1587, 1594, 12 L.Ed.2d 448 (Goldberg, J., dissenting).
49
Mr. Justice BLACK, concurring in part and dissenting in part.
50
Respondent Pearce was convicted in a North Carolina court of assault with intent to rape and sentenced to serve 12 to 15 years in prison; respondent Rice pleaded guilty to four charges of burglary and was sentenced in an Alabama court to serve a total of 10 years. After having served several years, Pearce was granted a new trial because a confession used against him was held to have been obtained in violation of his constitutional right not to be compelled to be a witness against himself; Rice's conviction was set aside because, although he was indigent, he had not been provided with a court-appointed lawyer at the time he made his guilty plea. Both respondents were retried and again convicted.1 Rice's sentence was increased to 25 years, and no credit was given for time he had previously served; Pearce was in effect given a sentence of 15 years, but since credit was allowed for the time he had already served, his new sentence was set at eight years.
51
I agree with the Court that the Double Jeopardy Clause prohibits the denial of credit for time already served. I also agree with the Court's rejection of respondents' claims that the increased sentences violate the Double Jeopardy and Equal Protection Clauses of the Constitution. It has been settled, as the Court correctly notes, that the double jeopardy provision does not limit the length of the sentence imposed upon reconviction. Nor is there any invidious discrimination in subjecting defendants who have had prior convictions set aside to the same punishment faced by people h o have never been tried at all. Those who have had former convictions set aside must, like all others who have been convicted, be sentenced according to law, and a trial judge will normally conduct a full inquiry into the background, disposition, and prospects for rehabilitation of each defendant in order to set the appropriate sentence. Accordingly, these defendants are not denied equal protection when the State makes no provision for re-evaluation of sentences generally but permits the penalty set after retrials to be whatever penalty the trial judge finds to be appropriate, whether it be higher or lower than the sentence originally set.
52
The Court goes on, however, to hold that it would be a flagrant violation of due process for a 'state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside.' Ante, at 723-724. This means, I take it, that a State cannot permit appeals in criminal cases and at the same time make it a crime for a convicted defendant to take or win an appeal. That would plainly deny due process of law, but not as the Court's opinion implies because the Court believes it to be an 'unfair' practice. In the first place, the very enactment of two statutes side by side, one encouraging and granting appeals and another making it a crime to win an appeal, would be contrary to the very idea of government by law. It would create doubt, ambiguity, and uncertainty, making it impossible for citizens to know which one of the two conflicting laws to follow, and would thus violate one of the first principles of due process. Due process, moreover, is a guarantee that a man should be tried and convicted only in accordance with valid laws of the land. If a conviction is not valid under these laws, statutory and constitutional, a man has been denied due process and has a constitutional right to have the conviction set aside, without being deprived of life, liberty, or property as a result. For these two reasons, I agree that a state law imposing punishment on a defendant for taking a permissible appeal in a criminal case would violate the Due Process Clause, but not because of any supposed 'unfairness.' Since such a law could take effect not only by state legislative enactment but also by state judicial decision, I also agree that it would violate the Constitution for any judge to impose a higher penalty on a defendant solely because he had taken a legally permissible appeal.
53
On this basis there is a plausible argument for upholding the judgment in No. 418 setting aside the second sentence of respondent Rice, since the District Judge there found it 'shocking' to him that the State offered no evidence to show why it had so greatly increased Rice's punishment—namely, from a 10-year sentence on four burglary charges at the first trial to a 25-year sentence on three burglary charges at the second trial. From these circumstances, the Federal District Judge appeared to find as a fact that the sentencing judge had increased Rice's sentence for the specific purpose of punishing Rice for invoking the lawfully granted post-conviction remedies. Since at this distance we should ordinarily give this finding the benefit of every doubt, I would accept the Federal District Judge's conclusion that the State in this case attempted to punish Rice for lawfully challenging his conviction and would therefore, with some reluctance, affirm the decision of the Court of Appeals in that case. But this provides no basis for affirming the judgment of the Court of Appeals in No. 413, the case involving respondent Pearce. For in that case there is not a line of evidence to support the slightest inference that the trial judge wanted or intended to punish Pearce for seeking post-conviction relief. Indeed the record shows that this trial judge meticulously computed the time Pearce had served in jail in order to give him full credit for that tm e.2
54
The Court justifies affirming the release of Pearce in this language:
55
'In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.' Ante, at 726.
56
Of course nothing in the Due Process Clause grants this Court any such power as it is using here. Punishment based on the impermissible motivation described by the Court is, as I have said, clearly unconstitutional, and courts must of course set aside the punishment if they find, by the normal judicial process of fact-finding, that such a motivation exists. But, beyond this, the courts are not vested with any general power to prescribe particular devices '(i)n order to assure the absence of such a motivation.' Numerous different mechanisms could be thought of, any one of which would serve this function. Yet the Court does not explain why the particular detailed procedure spelled out in this case is constitutionally required, while other remedial devices are not. This is pure legislation if there ever was legislation.
57
I have no doubt about the power of Congress to enact such legislation under § 5 of the Fourteenth Amendment, which reads:
58
'The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.'
59
But should Congress enact what the Court has here enacted, a requirement that state courts articulate their reasons for imposing particular sentences, it would still be legislation only, and Congress could repeal it. In fact, since this is only a rule supplementing the Fourteenth Amendment, the Court itself might be willing to accept congressional substitutes for this supposedly 'constitutional' rule which this Court today enacts. So despite the fact that the Court says that the judge's reasons 'must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal,' I remain unconvinced that this Court can legitimately add any additional commands to the Fourteenth or any other Amendment.
60
Apart from this, the possibility that judicial action will be prompted by impermissible motives is a particularly poor reason for holding that detailed rules of procedure are constitutionally binding in every state and federal prosecution. The danger of improper motivation is of course ever present. A judge might impose a specially severe penalty solely because of a defendant's race, religion, or political views. He might impose a specially severe penalty because a defendant exercised his right to counsel, or insisted on a trial by jury, or even because the defendant refused to admit his guilt and insisted on any particular kind of trial. In all these instances any additional punishment would of course be, for the reasons I have stated, flagrantly unconstitutional. But it has never previously been suggested by this Court that '(i)n order to assure the absence of such a motivation,' this Court could, as a matter of constitutionl law, direct all trial judges to spell out in detail their reasons for setting a particular sentence, making their reasons 'affirmatively appear,' and basing these reasons on 'objective information concerning identifiable conduct.' Nor has this Court ever previously suggested in connection with sentencing that 'the factual data * * * must be made part of the record.' On the contrary, we spelled out in some detail in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), our reasons for refusing to subject the sentencing process to any such limitations, which might hamstring modern penological reforms, and the Court has, until today, continued to reaffirm that decision. See, e.g., Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). There are many perfectly legitimate reasons that a judge might have for imposing a higher sentence. For instance, take the case of respondent Rice. Without a lawyer, he pleaded guilty to four charges of burglary and received a sentence of only 10 years. Although not shown by the record, what happened is not difficult to see. It is common knowledge that prosecutors frequently trade with defendants and agree to recommend low sentences in return for pleas of guilty. Judges frequently accept such agreements without carefully scrutinizing the record of the defendant. One needs little imagination to infer that Rice's original sentence was the result of precisely such a practice. This explains both the first 10-year sentence and the fact that, after a full trial and examination of the entire record, the trial judge concluded that a 25-year sentence was called for. The Court's opinion today will—unfortunately, I think, for defendants—throw stumbling blocks in the way of their making similar beneficial agreements in the future. Moreover, the Court's opinion may hereafter cause judges to impose heavier sentences on defendants in order to preserve their lawfully authorized discretion should defendants win reversals of their original convictions.
61
I would firmly adhere to the Williams principle of leaving judges free to exercise their discretion in sentencing. I would accept the finding of fact made by the Federal District Judge in No. 418, that the higher sentence imposed on respondent Rice was motivated by constitutionally impermissible considerations. But I would not go further and promulgate detailed rules of procedure as a matter of constitutional law, and since there is no finding of actually improper motivation in No. 413, I would reverse the judgment of the Court of Appeals in that case and reinstate the second sentence imposed upon respondent Pearce.
62
One last thought. There are some who say that there is nothing but a semantic difference between my view—that the Due Process Clause guarantees only that persons must be tried pursuant to the Constitution and laws passed under it—and the opposing view that the Constitution grants judges power to decide constitutionality on the basis of their own concepts of fairness, justice, or 'the Anglo-American legal heritage.' Sniadach v. Family Finance Corp., 395 U.S. 337, at 343, 89 S.Ct. 1820, at 1823, 23 L.Ed.2d 349 (Harlan, J., concurring). But in this case and elsewhere, as I see it, the difference between these views comes to nothing less than the difference between what the Constitution says and means and what the judges from day to day, generation to generation, and century to century, decide is fairest and best for the people. Deciding that an ambiguous or self-contradictory law violates due process is a far cry from holding that a law violates due process because it is 'unfair' or 'shocking' to a judge or violates 'the Anglo-American legal heritage.' A due process criminal trial means a trial in a court, with an independent judge lawfully selected, a jury, a defendant's lawyer if the defendant wants one, a court with power to issue compulsory process for witnesses, and with all the other guarantees provided by the Constitution and valid laws passed pursuant to it. See,e .g., Chambers v. Florida, 309 U.S. 227, 235 237, 240—241, 60 S.Ct. 472, 478—479, 84 L.Ed. 716 (1940); United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955). That is the difference for me between our Constitution as written by the Founders and an unwritten constitution to be formulated by judges according to their ideas of fairness on a case-by-case basis. I therefore must dissent from affirmance of the judgment in the case of respondent Pearce.
63
Mr. Justice HARLAN, concurring in part and dissenting in part.
64
Were these cases to be judged entirely within the traditional confines of the Due Process Clause of the Fourteenth Amendment, I should, but not without some difficulty, find myself in substantial agreement with the result reached by the Court. However, the Court today, in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, has held, over my dissent, that the Double Jeopardy Clause of the Fifth Amendment is made applicable to the States by the Fourteenth Amendment Due Process Clause. While my usual practice is to adhere until the end of Term to views I have expressed in dissent during the Term, I believe I should not proceed in these important cases as if Benton had turned out otherwise.
65
Given Benton, it is my view that the decision of this Court in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), from which I dissented at the time, points strongly to the conclusion also reached by my Brother DOUGLAS, 395 U.S. at 726, 89 S.Ct. at 2089, that the Double Jeopardy Clause of the Fifth Amendment governs both issues presently decided by the Court. Accordingly, I join in Part I of the Court's opinion, and concur in the result reached in Part II, except in one minor respect.1
66
Green v. United States, supra, held in effect that a defendant who is convicted of a lesser offense included in that charged in the original indictment, and who thereafter secures reversal, may be retried only for the lesser included offense. Mr. Justice Frankfurter observed, in a dissent which I joined, that:
67
'As a practical matter, and on any basis of human values, it is scarcely possible to distinguish a case in which the defendant is convicted of a greater offense from one in which he is convicted of an offense that has the same name as that of which he was previously convicted but carries a significantly (increased) * * * punishment * * *.' Id., 355 U.S., at 213, 78 S.Ct., at 237.
68
Further reflection a decade later has not changed my view that the two situations cannot be meaningfully distinguished.
69
Every consideration enunciated by the Court in support of the decision in Green applies with equal force to the situation at bar. In each instance, the defendant was once subjected to the risk of receiving a maximum punishment, but it was determined by legal process that he should receive only a specified punishment less than the maximum. See id., 355 U.S., at 190, 78 S.Ct., at 225. And the concept or fiction of an 'implicit acquittal' of the greater offense, ibid., applies equally to the greater sentence: in each case it was determined at the former trial that the defendant or his offense was of a certain limited degree of 'badness' or gravity only, and therefore merited only a certain limited punishment. Most significantly, perhaps, in each case contrary rule would place the defendant considering whether to appeal his conviction in the same 'incredible dilemma' and confront him with the same 'desperate' choice. Id., at 193, 78 S.Ct., at 227. His decision whether or not to appeal would be burdened by the consideration that success,2 followed by retrial and conviction, might place him in a far worse position than if he remained silent and suffered what seemed to him an unjust punishment.3 In terms of Green, that the imposition of a more severe sentence on retrial is a matter of pure chance, rather than the result of purposeful retaliation for having taken an appeal, renders the choice no less 'desperate.'
70
If, as a matter of policy and practicality, the imposition of an increased sentence on retrial has the same consequences whether effected in the guise of an increase in the degree of offense or an augmentation of punishment, what other factors render one route forbidden and the other permissible under the Double Jeopardy Clause? It cannot be that the provision does not comprehend 'sentences'—as distinguished from 'offenses' for it has long been established that once a prisoner commences service of sentence, the Clause prevents a court from vacating the sentence and then imposing a greater one. See United States v. Benz, 282 U.S. 304, 306—307, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931); Ex parte Lange, 18 Wall. 163, 168, 173, 21 L.Ed. 872 (1874).
71
The Court does not suggest otherwise,4 but in its view, apparently, when the conviction itself and not merely the consequent sentence has been set aside, or when either has been set aside at the defendant's behest,5 the 'slate has been wiped clean,' ante, at 721, and the Double Jeopardy Clause presents no bar to the imposition of a sentence greater than that originally imposed. In support of this proposition, the Court relies chiefly on two cases, Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), and United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). I do not believe that either of these cases provides an adequate basis for the Court's seemingly incongruous conclusion.
72
Stroud v. United States, supra, held that a defendant who received a life sentence for first-degree murder could,u pon securing a reversal of the conviction, be retried for first-degree murder and sentenced to death. However, the opinion does not explicitly advert to the question whether the Double Jeopardy Clause bars the imposition of an increased punishment, and an examination of the briefs in that case confirms the doubt expressed by the Court of Appeals in Patton v. North Carolina, 4 Cir., 381 F.2d 636, 644 (1967), whether this question was squarely presented to the Court.6 Assuming that Stroud stood for the proposition which the majority attributes to it, that decision simply cannot be squared with the subsequent decision in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). See id., at 213, 78 S.Ct., at 237 (dissenting opinion); People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (1963).
73
The Court does not rest solely on this ambiguous and doubtful precedent, however. Its main point seems to be that to limit the punishment on retrial to that imposed at the former trial 'would be to cast doubt upon the whole validity of the basic principle enunciated in United States v. Ball,' 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), and its progeny. Ante, at 721.
74
Ball held, simply, that a defendant who succeeds in getting his first conviction set aside may thereafter be retried for the same offense of which he was formerly convicted. This is, indeed, a fundamental doctrine in our criminal jurisprudence, and I would be the last to undermine it. But Ball does not speak to the question of what punishment may be imposed on retrial. I entirely fail to understand the Court's suggestion, unless it assumes that Ball must stand or fall on the question-begging notion that, to quote the majority today, 'the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean.'7 Ante, at 721.
75
In relying on this conceptual fiction, the majority forgets that Green v. United States, supra, prohibits the imposition of an increased punishment on retrial precisely because convictions are usually set aside only at the defendant's behest, and not in spite of that fact. 355 U.S., at 193—194, 78 S.Ct., at 227, 2 L.Ed.2d 199: supra, at 746: the defendant's choice to appeal an erroneous conviction is protected by the rule that he may not again be placed in jeopardy of suffering the greater punishment not imposed at the first trial. Moreover, in its exaltation of form over substance and policy, the Court misconceives, I think, the essential principle of Ball itself:
76
'While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.' United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964).
77
To be sure, this societal interest is compromised to a degree if the second judge is forbidden to impose a greater punishment on retrial than was meted out at the first trial. For example, new facts may develop between the first and second trial which would, as an initial matter, be considered in aggravation of sentence. By the same token, however, the prosecutor who was able to prove only second-degree murder at the former trial might improve his case in the interim and acquire sufficient evidence to prove murder in the first degree. In either instance, if one views the second trial in a vacuum, the defendant has received less punishment than is his due. But in both cases, the compromise is designed to protect other societal interests, and it is, after Green, a compromise compelled by the Double Jeopardy Clause.8
78
I therefore conclude that, consistent with the Fifth Amendment, a defendant who has once been convicted and sentenced to a particular punishment may not on retrial be placed again in jeopardy of receiving a greater punishment than was first imposed. Because the Double Jeopardy Clause has now been held applicable to the States, Benton v. Maryland, supra, I would affirm the judgment of the Court of Appeals in No. 418, and vacate and remand in No. 413, so that respondent Pearce may finish serving his first, valid sentence. See n. 1, supra.
79
Mr. Justice WHITE, concurring in part.
80
I join the Court's opinion except that in my view Part II—C should authorize an increased sentence on retrial based on any objective, identifiable factual data not known to the trial judge at the time of the original sentencing proceeding.
1
The approximate expiration date of the original sentence, assuming all allowances of time for good behavior, was November 13, 1969. The approximate expiration date of the new sentence, assuming all allowances of time for good behavior, was October 10, 1972.
2
In Patton, the Court of Appeals for the Fourth Circuit had held that 'increasing Patton's punishment after the reversal of his initial conviction constitutes a violation of his Fourteenth Amendment rights in that it exacted an unconstitutional condition to the exercise of his right to a fair trial, arbitrarily denied him the equal protection of the law, and placed him twice in jeopardy of punishment for the same offense.' 381 F.2d, at 646.
3
He was sentenced to four years in prison upon the first count, and two years upon each of the other three counts, the sentences to be served consecutively.
4
He was sentenced to a prison term of 10 years on the first count, 10 years on the second count, and five years on the fourth count, the sentences to be served consecutively. The third count was dropped upon motion of the prosecution, apparently because the chief witness for the prosecution had left the State.
5
The United States Court of Appeals have reached conflicting results in dealing with the basic problem here presented. In addition to the Fourth and Fifth Circuit decisions here under review, see Marano v. United States, 374 F.2d 583 (C.A.1st Cir.); United States v. Coke, 404 F.2d 836 (C.A.2d Cir.); United States ex rel. Starner v. Russell, 378 F.2d 808 (C.A.3d Cir.); United States v. White, 382 F.2d 445 (C.A.7th Cir.); Walsh v. United States, 374 F.2d 421 (C.A.9th Cir.); Newman v. Rodriguez, 375 F.2d 712 (C.A.10th Cir.). The state courts have also been far from unanimous. Although most of the States seem either not to have considered the problem, or to have imposed only the generally applicable statutory limits upon sentences after retrial, a few States have prohibited more severe sentences upon retrial than were imposed at the original trial. See People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677; People v. Ali, 66 Cal.2d 277, 57 Cal.Rptr. 348, 424 P.2d 932; State v. Turner, 247 Or. 301, 429 P.2d 565; State v. Wolf, 46 N.J. 301, 216 A.2d 586, 12 A.L.R.3d 970; State v. Leonard, 39 Wis.2d 461, 159 N.W.2d 577.
6
'THE COURT: It is the intention of this Court to give the defendant a sentence of fifteen years in the State Prison; however, it appears to the Court from the records available from the Prison Department that the defendant has served 6 years, 6 months and 17 days flat and gain time combined, and the Court in passing sentence in this case is taking into consideration the time already served by the defendant. IT IS THE JUDGMENT of this Court that the defendant be confined to the State's Prison for a period of eight years.'
7
A recent opinion of the Supreme Court of Alabama indicates that state law does require credit for time served under the original sentence at least to the extent that the total period of imprisonment would otherwise exceed the absolute statutory maximum that could be imposed for the offense in question. 'Without such credit defendant would be serving time beyond the maximum fixed by law for the offense * * * charged in the indictment.' Goolsby v. State, 283 Ala. 269, 215 So.2d 602.
8
See Note, Twice in Jeopardy, 75 Yale L.J. 262, 265—266 (1965).
9
United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199.
10
In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118.
11
Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354; United States v. Sacco, 2 Cir., 367 F.2d 368; United States v. Adams, 6 Cir., 362 F.2d 210; Ken edy v. United States, 9 Cir., 330 F.2d 26.
12
We have spoken in terms of imprisonment, but the same rule would be equally applicable where a fine had been actually paid upon the first conviction. Any new fine imposed upon reconviction would have to be decreased by the amount previously paid.
13
Such credit must, of course, include the time credited during service of the first prison sentence for good behavior, etc.
14
In most situations, even when time served under the original sentence is fully taken into account, a judge can still sentence a defendant to a longer term in prison than was originally imposed. That is true with respect to both cases before us. In the Pearce case, credit for time previously served was given. See n. 6, supra. In the Rice case credit for the two and one-half years served was not given, but even if it had been, the sentencing judge could have reached the same result that he did reach simply by sentencing Rice to 27 1/2 years in prison. That would have been permissible under Alabama law, since Rice was convicted of three counts of second-degree burglary, and on each count a maximum sentence of 10 years' imprisonment could have been imposed. Ala. Code, Tit. 14, § 86 (1958).
15
See, e.g., Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103; Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335; Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412; United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448.
16
In Stroud the defendant was convicted of first-degree murder and sentenced to life imprisonment. After reversal of this conviction, the defendant was retried, reconvicted of the same offense, and sentenced to death. This Court upheld the conviction against the defendant's claim that his constitutional right not to be twice put in jeopardy had been violated. See also Murphy v. Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711; Robinson v. United States, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944, affirming 144 F.2d 392. The Court's decision in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, is of no applicability to the present problem. The Green decision was based upon the double jeopardy provision's guarantee against retrial for an offense of which the defendant was acquitted.
17
Cf. King v. United States, 69 App.D.C. 10, 12—13, 98 F.2d 291, 293—294: 'The Government's brief suggests, in the vein of The Mikado, that because the first sentence was void appellant 'has served no sentence but has merely spent time in the penitentiary;' that since he should not have been imprisoned as he was, he was not imprisoned at all.'
18
'While different theories have e en advanced to support the permissibility of retrial, or greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest.' United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589.
19
See Van Alstyne, In Gideon's Wake: Harsher Penalties and the 'Successful' Criminal Appellant, 74 Yale L.J. 606 (1965); Note, Unconstitutional Conditions, 73 Harv.L.Rev. 1595 (1960).
20
The existence of a retaliatory motivation would, of course, be extremely difficult to prove in any individual case. But data have been collected to show that increased sentences on reconviction are far from rare. See Note, Constitutional Law: Increased Sentence and Denial of Credit on Retrial Sustained Under Traditional Waiver Theory, 1965 Duke L.J. 395. A touching bit of evidence showing the fear of such a vindictive policy was noted by the trial judge in Patton v. North Carolina, 256 F.Supp. 225, who quoted a letter he had recently received from a prisoner:
'Dear Sir:
'I am in the Mecklenburg County jail. Mr. _ _ chose to re-try me as I knew he would.
'Sir the other defendant in this case was set free after serving 15 months of his sentence, I hav served 34 months and now I am to be tried again and with all probability I will receive a heavier sentence then before as you know sir my sentence at the first trile was 20 to 30 years. I know it is usuelly the courts prosedure to give a larger sentence when a new trile is granted I guess this is to discourage Petitioners.
'Your Honor, I don't want a new trile I am afraid of more time * * *
'Your Honor, I know you have tried to help me and God knows I apreceate this but please sir don't let the state retry me if there is any way you can prevent it.'
Very truly yours'
Id., at 231, n. 7.
1
'With the benefit of Green v. United States * * * there is support emerging in favor of a broad double jeopardy rule which would protect all federal and state convicts held in prison under erroneous convictions or sentences from harsher resentencing following retrial. * * * (T)he technical argument applying that rule would be as follows: When a particular penalty is selected from a range of penalties prescribed for a given offense, and when that penalty is imposed upon the defendant, the judge or jury is impliedly 'acquitting' the defendant of a greater penalty, just as the jury in Green impliedly acquitted * * * the accused of a greater degree of the same offense.' Van Alstyne, In Gideon's Wake: Harsher Penalties and the 'Successful' Criminal Appellant, 74 Yale L.J. 606, 634—635 (1965).
2
'Our minds rebel against permitting the same sovereignty to punish an accused twice for the same offense.' State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462, 67 S.Ct. 374, 375, 91 L.Ed. 422 (opinion by Reed, J.). See also Williams v. Oklahoma, 358 U.S. 576, 584—586, 79 S.Ct. 421, 426—427, 3 L.Ed.2d 516.
3
'I read the Double Jeopardy Clause as applying a strict standard. * * * It is designed to help equalize the position of government and the individual, to discourage abusive use of the awesome power of society. Once a trial starts jeopardy attaches. The prosecution must stand or fall on its performance at the trial. * * * The policy of the Bill of Rights is to make rare indeed the occasions when the citizen can for the same offense be required to run the gantlet twice. The risk of judicial arbitrariness rests where, in my view, the Constitution puts it—on the Government.' Gori v. United
States, 367 U.S. 364, 372—373, 81 S.Ct. 1523, 1528, 6 L.Ed.2d 901 (Douglas, J., dissenting). This Court has never held anything to the contrary. While Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, involved a defendant who received the death penalty upon retrial after successfully appealing a sentence of life imprisonment,
'it appears that the case was argued * * * on the theory that the defendant was put twice in jeopardy for the same offense merely by being retried on an indictment for first degree murder. There is no indication that the Court was presented with the argument that the risk of an increased penalty on retrial violates the double jeopardy clause by being a double punishment for the same offense. Stroud thus stands for no more than the well-established proposition that the double jeopardy clause does not entitle a defendant who successfully attacks his conviction to absolute immunity from reprosecution.' Patton v. North Carolina, 381 F.2d 636, 644—645 (C.A.4th Cir. 1967). To the extent that Stroud stands for anything to the contrary, it has been vitiated by Green v. United States, supra. People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (1963). Other cases involving the matter of increased sentencing upon retrial have either been ones in which the matter was not before the court because the parties did not raise it, Robinson v. United States, 144 F.2d 392 (C.A.6th Cir. 1944), aff'd, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944, or because it was not necessary to a decision, Fay v. Noia, 372 U.S. 391, 440, 83 S.Ct. 822, 849, 9 L.Ed.2d 837; or state cases in which this Court applied a loose standard of due process in lieu of the uncompromising dictates of the Double Jeopardy Clause, Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; State of Louisiana ex rel. Francisv . Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422.
4
Among the federal courts, some agree that increased sentencing upon retrial constitutes double jeopardy, Patton v. North Carolina, 381 F.2d 636 (C.A.4th Cir. 1967); United States v. Adams, 362 F.2d 210 (C.A.6th Cir. 1966). Other courts of appeals have found it unnecessary to resolve the matter but have indicated that,
properly presented, they too would prohibit increased sentencing as a violation of the ban against double jeopardy. Compare Walsh v. United States, 374 F.2d 421 (C.A.9th Cir. 1967), with Jack v. United States, 387 F.2d 471 (C.A.9th Cir. 1967); Castle v. United States, 399 F.2d 642 (C.A.5th Cir. 1968). Still other circuits have found the Double Jeopardy Clause unavailing and would permit increased sentencing whenever justified by newly revealed evidence, Marano v. United States, 374 F.2d 583 (C.A.1st Cir. 1967), and United States v. Coke, 404 F.2d 836 (C.A.2d Cir. 1968); whenever supported by standards of rational sentencing, absent an intent to penalize the defendant for seeking a new trial, United States v. White, 382 F.2d 445 (C.A.7th Cir. 1967); or whenever considered appropriate by the sentencing judge, Short v. United States, 120 U.S.App.D.C. 165, 344 F.2d 550 (1965); United States ex rel. Starner v. Russell, 378 F.2d 808 (C.A.3d Cir. 1967); and Newman v. Rodriguez, 375 F.2d 712 (C.A.10th Cir. 1967).
Among the States, the governing standards are similarly mixed. An increase in sentence where the defendant can show that it reflects an intent to punish him for seeking a new trial is one instance, State v. White, 262 N.C. 52, 136 S.E.2d 205 (1964). Of the States that prohibit increased sentencing upon retrial, some rest on state standards of double jeopardy, People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (1963); some ground that result in the 'chilling effect' that a contrary rule would have on the right 'to correct an erroneously conducted initial trial.' State v. Wolf, 46 N.J. 301, 216 A.2d 586, 12 A.L.R.3d 970 (1966), and State v. Turner, 247 Or. 301, 313, 429 P.2d 565, 570 (1967). Still others have reached that result either 'as a matter of judicial policy,' State v. Holmes, 281 Minn. 294, 296, 161 N.W.2d 650, 652 (1968), or because of a state statute, Rush v. State, 239 Ark. 878, 395 S.W.2d 3 (1965).
Some States, evidently for reasons other than double jeopardy, prohibit increased sentencing except where affirmatively justified
by newly developed evidence, People v. Mulier, 12 Mich.App. 28, 162 N.W.2d 292; People v. Thiel, 29 A.D.2d 913, 289 N.Y.S.2d 879; and State v. Leonard, 39 Wis.2d 461, 159 N.W.2d 577 (1968).
Although unwilling to place a ceiling over the sentencing at retrial, some States do allow credit for time already served, Tilghman v. Culver, 99 So.2d 282 (Fla.1957) (based on double jeopardy); Moore v. Parole Board, 379 Mich. 624, 154 N.W.2d 437 (1967) (based on a local statute); State ex rel. Muldrew v. Boles, 151 W.Va. 1033, 159 S.E.2d 36 (1967) (based on due process and equal protection); Gray v. Hocker, 268 F.Supp. 1004 (D.C.Nev.1967) (based on equal protection); Hill v. Holman, 255 F.Supp. 924 (D.C.M.D.Ala.1966) (based on due process). In the federal regime, the matter of credit is governed by statute, 18 U.S.C. § 3568.
Most States do permit increased sentencing on retrial without limit, Ex parte Barnes, 44 Ala.App. 329, 208 So.2d 238 (1968); Kohlfuss v. Warden of Connecticut State Prison, 149 Conn. 692, 183 A.2d 626 (1962); Bohannon v. District of Columbia, 99 A.2d 647 (D.C.Mun.Ct.App.1953); Salisbury v. Grimes, 223 Ga. 776, 158 S.E.2d 412 (1967); State v. Kneeskern, 203 Iowa 929, 210 N.W. 465 (1926); State v. Morgan, 145 La. 585, 82 So. 711 (1919); State v. Young, 200 Kan. 20, 434 P.2d 820 (1967); Hobbs v. State, 231 Md. 533, 191 A.2d 238 (1963); Moon v. State, 250 Md. 468, 243 A.2d 564 (1968); Hicks v. Commonwealth, 345 Mass. 89, 185 N.E.2d 739 (1962); Sanders v. State, 239 Miss. 874, 125 So.2d 923, 85 A.L.R.2d 481 (1961); Commonwealth ex rel. Wallace v. Burke, 169 Pa.Super. 633, 84 A.2d 5 4 (1951); State v. Squires, 248 S.C. 239, 149 S.E.2d 601 (1966).
Some States go so far as to deny credit against the new sentence for time already served in prison under the former one. People v. Starks, 395 Ill. 567, 71 N.E.2d 23 (1947); McDowell v. State, 225 Ind. 495, 76 N.E.2d 249 (1947); State v. King, 180 Neb. 631, 144 N.W.2d 438 (1966); Morgan v. Cox, 75 N.M. 472, 406 P.2d 347 (1965); State ex rel. Ivey v. Meadows, 216 Tenn. 678, 393 S.W.2d 744 (1965).
5
'In Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823, this Court held that the President or commanding officer had power to return a case to a court-martial for an increase in sentence. If the double jeopardy provisions of the Fifth Amendment were applicable such a practice would be unconstitutional.' Reid v. Covert, 354 U.S. 1, 37—38, n. 68, 77 S.Ct. 1222, 1241, 1 L.Ed.2d 1148 (opinion of Black, J.).
6
To rely on information that has developed after the initial trial gives the Government 'continuing criminal jurisdiction' to supplement its case against the defendant, far beyond the cut-off date set by its original prosecution. Consider the defendant whose sentence on retrial is enlarged because of antisocial acts committed in prison. To increase his sentence on that original offense because of wholly subsequent conduct is indirectly to hold him criminally responsible for that conduct.
1
At Rice's second trial one of the four charges originally pressed against him was dropped, and he was tried only on the remaining three.
2
At the time of sentencing after Pearce's second trial, the judge stated:
'It is the intention of this Court to give the defendant a sentence of fifteen years in the State Prison; however, it appears to the Court from the records available from the Prison Department that the defendant has served 6 years, 6 months and 17 days flat and gain time combined, and the Court in passing sentence in this case is taking into consideration the time already served by the defendant. IT IS THE JUDGMENT of this Court that the defendant be confined to the State's Prison for a period of eight years.'
1
An outright affirmance in No. 413 would carry the consequence of relieving the respondent Pearce from serving the remaining few months of his original state sentence. See the Court's opinion, ante, at 713-714 and n. 1. There is no basis, whether the result in this case is governed by due process or double jeopardy, for such an interference with the State's legitimate criminal processes. I would therefore vacate the judgment of the Court of Appeals for the Fourth Circuit in No. 413 and remand the case so that an order may be entered releasing Pearce at, but not before, the expiration of his first sentence. Cf. Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968).
2
A prohibition against enhanced punishment on retrial does not, of course, tend in any manner to encourage frivolous appeals. A contrary rule does not discourage frivolous appeals, except insofar as it discourages all appeals.
3
The would-be appellant's quandary is most clearly seen when the first trial and conviction for a capital offense result in a sentence of life imprisonment. Cf., e.g., Green v. United States, supra.
4
Indeed, the Court relies on these cases in Part I of its opinion to hold that a prisoner must be afforded credit for time served pursuant to a subsequently vacated sentence.
5
Neither Lange nor Benz indicates that the principle prohibiting the imposition of an enhanced sentence on the same judgment of conviction depends on whether the original sentence is vacated on the prisoner's application, or is set aside sua sponte by the court. (It appears, though not clearly, that Lange's sentence was set aside at this behest.)
In Murphy v. Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711 (1900), however, the Court indicated that one who successfully moves to vacate his sentence occupies 'the same posture as if he had sued out his writ of error on the day he was first sentenced, and the mere fact that by reason of his delay in doing so he had served a portion of the erroneous sentence could not entitle him to assert that he was being twice punished.' Id., at 161—162, 20 S.Ct., at 641. Thus, the Court concluded in Murphy not only that the sentence could be augmented, but also that the petitioner was not constitutionally entitled to any credit for time served under the first sentence.
This proves too much, as the Court today holds in Part I of its opinion. In my view, neither conclusion survives Green.
6
Stroud pitched his double jeopardy claim on the theory that, although 'the constitutional prohibition does not prevent a second trial after reversal in non-capital cases,' it does—without reference to the sentence imposed—preclude 'a second trial upon reversal of a conviction in a capital case.' Brief for Plaintiff in Error in No. 276, O.T.1919, p. 32. Stroud's argument as to the enhanced sentence appears based solely on nonconstitutional grounds. See id., at 89 et seq.
7
This fiction would seem to lead to a result which even the majority might have difficulty reconciling with the Double Jeopardy Clause's prohibition of multiple punishment. Consider the situation of a defendant who successfully vacates a conviction and is then retried and convicted after he has fully served the sentence first imposed. See Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Sibron v. New York, 392 U.S. 40 (1968); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). Although the sentence was fully served, the defendant himself has caused the judgment to be vacated, and the majority's 'nullification' principle would seem to allow the judge to impose a new sentence of imprisonment on him—so long as the new sentence was an 'increased' sentence rather than the result of the court's failure to 'credit' the defendant with the sentence he had completed.
8
That the new facts may consist of misdeeds committed by the defendant since the first trial, rather than prior misconduct only subsequently discovered, should not, in my view, alter the outcome under Green and the other double jeopardy cases. If subsequent misdeeds amount to criminal violations, the defendant may properly be tried and punished for them. If they amount to something less, the very uncertainty as to what kinds of noncriminal conduct may be considered in aggravation of the sentence on retrial would, analytically, seem to thwart the concerns protected by Green. In either event, I do not understand what rational policy distinguishes a defendant whose appeal is successful from one who takes no appeal and whose sentence may not, consistent with the Double Jeopardy Clause, be augmented. See supra, at 747.
Of course, nothing in the Double Jeopardy Clause forbids a prosecutor from introducing new and harmful evidence at the second trial in order to improve his chances of obtaining a conviction for the lesser offense of which the defendant was previously convicted or to assure that the defendant receives the full punishment imposed at the first trial.
| 01
|
395 U.S. 818
89 S.Ct. 2053
23 L.Ed.2d 732
Bruce Warnie SHIPLEYv.CALIFORNIA.
No. 540.
June 23, 1969.
Kate Whyner, for petitioner.
Thomas C. Lynch, Atty. Gen. of California, William E. James, Asst. Atty. Gen., and Marvin A. Bauer, Deputy Atty. Gen., for respondent.
PER CURIAM.
1
The petitioner was convicted in California of robbery in the first degree, and the conviction was affirmed by the Court of Appeal, Second Appellate District. The California Supreme Court denied review. The petitioner seeks reversal of the judgment below on the ground that evidence introduced at his trial was seized in violation of the Fourth and Fourteenth Amendments to the United States Constitution. Since we agree with the petitioner that the evidence was taken in the course of an unconstitutional search of his home, the judgment of the California Court of Appeal must be reversed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
2
Informed that the petitioner had been involved in a robbery, police officers went to his residence. The petitioner was not at home, but a 15-year-old girl who identified herself as h e petitioner's wife allowed the officers to enter and search her belongings. When several rings taken by the robbers were found, the officers 'staked out' the house and awaited the petitioner's return. Upon his arrival late that night, he was immediately arrested as he alighted from his car. The officers searched the petitioner and the car, and then again entered and searched the house, where they discovered under a couch a jewelry case stolen in the robbery. The car was parked outside the house and 15 or 20 feet away from it, and the officers did not request permission to conduct the second search of the house. No warrant was ever obtained. The trial court nevertheless upheld the second search on the ground that it was incident to the petitioner's arrest, and the Court of Appeal agreed, holding that the area searched was 'under the (petitioner's) effective control' at the time of the arrest.
3
Under our decision today in Chimel v. California, 395 U.S 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, the search clearly exceeded Fourth Amendment limitations on searches incident to arrest. But even if Chimel were to have no retroactive application—a question which we reserve for a case which requires its resolution—there is no precedent of this Court that justifies the search in this case. The Court has consistently held that a search 'can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.' Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856. (Emphasis supplied.) At the very most, police officers have been permitted to search a four-room apartment in which the arrest took place. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. See also United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. But the Constitution has never been construed by this Court to allow the police, in the absence of an emergency, to arrest a person outside his home and then take him inside for the purpose of conducting a warrantless search. On the contrary, 'it has always been assumed that one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein.' Agnello v. United States, 269 U.S. 20, 32, 46 S.Ct. 4, 6, 70 L.Ed. 145. (Emphasis supplied.) And in James v. Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30, the Court held that the search of the petitioner's home after his arrest on the street two blocks away 'cannot be regarded as incident to his arrest.' Id., at 37, 86 S.Ct., at 151. Since the thorough search of the petitioner's home extended without reasonable justification beyond the place in which he was arrested, it cannot be upheld under the Fourth and Fourteenth Amendments as incident to his arrest.*
4
Accordingly, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
5
It is so ordered.
6
Reversed and remanded.
7
Mr. Justice BLACK concurs in granting certiorari but dissents from the reversal and remand of the judgment without a hearing.
8
Mr. Justice WHITE, dissenting.
9
I found inexplicable the Court's acceptance of the warrantless arrest in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, while at the same time holding the contemporaneous search invalid without considering the exigencies created by the arrest itself. See id., at 770, 89 S.Ct., at 2044 (dissenting opinion). Even more mystifying are the opinions and the orders issued in the instant case and six others which have been held pending the decision in Chimel: No. 837, Von Cleef v. New Jr sey, 395 U.S. 814, 89 S.Ct. 2051, 23 L.Ed.2d 728; No. 1097, Misc., Harris v. Illinois, 395 U.S. 985, 89 S.Ct. 2137, 23 L.Ed.2d 774; No. 1037, Misc., Mahoney v. LaVallee, 395 U.S. 985, 89 S.Ct. 2137, 23 L.Ed.2d 774; No. 500, Schmear v. Gagnon, 395 U.S. 978, 89 S.Ct. 2125, 23 L.Ed.2d 767; No. 550, Misc., Jamison v. United States, 395 U.S. 986, 89 S.Ct. 2135, 23 L.Ed.2d 774; and No. 395, Misc., Chrisman v. California, 395 U.S. 985, 89 S.Ct. 2135, 23 L.Ed.2d 774. I fear that the summary dispositions in these cases, which strain so hard to avoid deciding the retroactivity of Chimel, will only magnify the confusion in this important area of the law.
10
It is particularly hard to square the Court's summary reversal of Shipley's conviction, which invalidates a warrantless search of a house where the arrest was made in a detached garage, with the denials of certiorari in Harris and Mahoney. In Harris, the arrest occurred in the lobby of a four-story apartment building; the ensuing search without a warrant involved an apartment on an upper floor. The chronology was reversed in Mahoney where petitioner was arrested in his apartment, but the accompanying search uncovered a gun in the building basement. This case, Shipley, purports to rest on pre-Chimel law, but certiorari in Harris and Mahoney cannot be denied without assuming the nonretroactivity of Chimel and then determining that these cases do not deserve the same summary reversal given to Shipley. In Schmear, Jamison, and Chrisman, as in Chimel, the Court fails to find a substantial issue in the warrantless arrest and its bearing on the warrantless search. Finally, the per curiam in Von Cleef invokes Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957), without noting that the seizures in Von Cleef were limited to evidence and instrumentalities of the crimes being investigated and for which the arrests were made.
11
I join the grant of certiorari in this case but dissent from the summaary reversal.
*
Because of our disposition of the case on this ground, we find it unnecessary to consider the contentions of the petitioner that his 'wife' did not voluntarily consent to the first search, and that the officers lacked probable cause to arrest the petitioner.
| 01
|
396 U.S. 13
90 S.Ct. 30
24 L.Ed.2d 13
Richard S. SIMPSONv.UNION OIL CO. OF CALIFORNIA.
No. 419.
Decided Oct. 27, 1969.
Maxwell Keith, for petitioner.
Moses Lasky, for respondent.
PER CURIAM.
1
This case represents the aftermath of our decision in Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98, where we held that a 'consignment' agreement for the sale of gasoline, required by Union Oil of lessees of its retail outlets, violated the Sherman Act, 26 Stat. 209, 15 U.S.C. § 1 et seq. The case was remanded for a hearing on other issues and for a determination of damages. The last sentence of the Court's opinion stated:
2
'We reserve the question whether, when all the facts are known, there may be any equities that would warrant only prospective application in damage suits of the rule governing price fixing by the 'consignment' device which we announce today.' Id., at 24—25, 84 S.Ct. at 1058—1059.
3
On remand, the District Court interpreted this sentence as an invitation to determine if any 'equities' were present which would warrant precluding the imposition of damages on Union Oil. Its finding was that an application of the rule announced by this Court to the damages action would be unfair, on the ground that the decision in United States v. General Electric Co., 272 U.S. 476, 47 S.Ct. 192, 71 L.Ed. 362, gave Union Oil a reasonable basis for believing that its actions were entirely lawful. D.C., 270 F.Supp. 754. The Court of Appeals affirmed. 9 Cir., 411 F.2d 897.
4
The petition for certiorari presents the question whether in this case the principles we announced in Simpson v. Union Oil Co. should be made prospective in the present litigation. We grant the petition on that question and deny it on the other questions tendered; and we reverse the judgment below.
5
We held when the case was here before that on the facts of record the use of the 'consignment' device was within the prohibited ban of price fixing for non-patented articles, 377 U.S., at 16—24, 84 S.Ct., at 1054—1058, and that 'on the issue of resale price maintenance under the Sherman Act there is nothing left to try, for there was an agreement for resale price maintenance, coercively employed.' Id., at 24, 84 S.Ct. at 1058.
6
The question we reserved was not an invitation to deny the fruits of successful litigation to this petitioner. Congress has determined the causes of action that arise from antitrust violations; and there has been an adjudication that a cause of action against respondent has been established. Formulation of a rule of law in an Article III case or controversy which is prospective as to the parties involved in the immediate litigation would be most unusual, especially where the rule announced was not innovative. Since parties in other cases might be shown to have structured product distribution on quite different considerations, we reserved the question whether in some of those other situations equity might warrant the conclusion that prospective application was the only fair course.
7
Reversed.
8
Mr. Justice BLACK (concurring in part and dissenting in part).
9
I wholeheartedly concur with the decision of the Court that both courts below were in error in holding that petitioner was not entitled to any damages in this case. I dissent, however, from the Court's denial of certiorari on another question that petitioner raises, the effect of which is to leave standing that part of the District Court's judgment setting aside petitioner's jury verdict as excessive and granting respondent a new trial on the issue of damages.
10
The District Court's grant of a new trial did not rest upon a finding that any of the evidence on the issue of damages was improperly admitted or that the instructions to the jury were erroneous. The judge granted the new trial on the ground that the $160,000 verdict 'is against the weight of the evidence, shocks the conscience, is grossly and monstrously excessive, is the result either of passion and prejudice or of consideration by the jury of factors irrelevant to the litigation, is speculative, conjectural and a miscarriage of justice.' Civil No. 37,344 (D.C.N.D.Cal., filed May 23, 1967).
11
I do not agree that under the facts of this case the verdict should have shocked the court's conscience. Certainly the $160,000 award does not shock my conscience, nor does it seem to me monstrous or the result of passion and prejudice on the part of the jury. Petitioner's growing filling station business was destroyed by respondent through conduct that this Court held to be in violation of the antitrust laws. See Simpson v. Union Oil Co. of California, 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964). At the time the cause of action arose petitioner's life expectancy was about 25 years. The jury had a right to believe that his business would have grown through those 25 years, and no one can say with any absolute assurance that the jury verdict was in excess of the immediate and long-term returns he might have realized from his business during that period.
12
Antitrust damages such as those involved here are bound to be 'speculative' and 'conjectural' to some extent. When a person wrongfully takes government bonds worth $10,000 on the market, the damages can be precisely measured. But when as here a young man's business is wiped out root and branch by a wrongdoer, the measurement of the victim's damages is not so simple a matter. This is true because no one can infallibly predict how long that business would have continued to grow and flourish or precisely how much the business would have been worth to him in 25 years. But certainly a fair and just legal system is not required by difficulties of proof to throw up its hands in despair and leave the sufferer's damage to be borne by him while the person who did the wrong goes scot free. This Court has refused under such circumstances to hold that our system of justice is so helpless to do justice. In this very antitrust field our Court has specifically and pointedly refused to permit antitrust violators to escape liability for their wrongs on the argument that damages must not be awarded because they are uncertain and speculative. The Court in a ringing opinion by Mr. Chief Justice Stone in Bigelow v. RKO Radio Pictures, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946), emphatically declined to acknowledge such judicial helplessness. There we held that the award of damages for the victim of an antitrust violation must not be denied on the spurious argument that they cannot be proved with the certainty of the value of stolen bonds. In that case this Court said:
13
'(I)n the absence of more precise proof, the jury could conclude as a matter of just and reasonable inference from the proof of defendants' wrongful acts and their tendency to injure plaintiffs' business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants' wrongful acts had caused damage to the plaintiffs.' Id., at 264, 66 S.Ct. at 579.
14
'The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.' Id., at 265, 66 S.Ct. at 580.
15
Bigelow and other cases* clearly establish the rule that the existence of damages in antitrust actions is a question for the jury and that the inherent uncertainty in the amount of damages is to be resolved against the wrongdoer. In my opinion the jury below did exactly what we said it was entitled to do in Bigelow. I would therefore require that the jury verdict be reinstated without further ado.
16
Mr. Justice STEWART would deny the petition for certiorari.
17
Mr. Justice HARLAN took no part in the consideration or decision of this case.
*
Perkins v. Standard Oil Co. of California, 395 U.S. 642, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962).
| 78
|
396 U.S. 19
90 S.Ct. 29
24 L.Ed.2d 19
Beatrice ALEXANDER et al., Petitioners,v.HOLMES COUNTY BOARD OF EDUCATION et al.
No. 632.
Argued Oct. 23, 1969.
Decided Oct. 29, 1969.
Jack Greenberg, New York City, for petitioners.
Louis F. Oberdorfer, Washington, D.C., for Lawyers' Committee for Civil Rights Under Law, as amicus curiae.
Jeris Leonard, Washington, D.C., A. F. Summer and John C. Satterfield, Jackson, Miss., for respondents.
PER CURIAM.
1
This case comes to the Court on a petition for certiorari to the Court of Appeals for the Fifth Circuit. The petition was granted on October 9, 1969, and the case set down for early argument. The question presented is one of paramount importance, involving as it does the denial of fundamental rights to many thousands of school children, who are presently attending Mississippi schools under segregated conditions contrary to the applicable decisions of this Court. Against this background the Court of Appeals should have denied all motions for additional time because continued operation of segregated schools under a standard of allowing 'all deliberate speed' for desegregation is no longer constitutionally permissible. Under explicit holdings of this Court the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools. Griffin v. County School Board, 377 U.S. 218, 234, 84 S.Ct. 1226, 1235, 12 L.Ed.2d 256 (1964); Green v. County School Board of New Kent County, 391 U.S. 430, 438—439, 442, 88 S.Ct. 1689, 1694—1695, 1696, 20 L.Ed.2d 716 (1968). Accordingly,
2
It is hereby adjudged, ordered, and decreed:
3
1. The Court of Appeals' order of August 28, 1969, is vacated, and the case is remanded to that court to issue its decree and order, effective immediately, declaring that each of the school districts here involved may no longer operate a dual school system based on race or color, and directing that they begin immediately to operate as unitary school systems within which no person is to be effectively excluded from any school because of race or color.
4
2. The Court of Appeals may in its discretion direct the schools here involved to accept all or any part of the August 11, 1969, recommendations of the Department of Health, Education, and Welfare, with any modifications which that court deems proper insofar as those recommendations insure a totally unitary school system for all eligible pupils without regard to race or color.
5
The Court of Appeals may make its determination and enter its order without further arguments or submissions.
6
3. While each of these school systems is being operated as a unitary system under the order of the Court of Appeals, the District Court may hear and consider objections thereto or proposed amendments thereof, provided, however, that the Court of Appeals' order shall be complied with in all respects while the District Court considers such objections or amendments, if any are made. No amendment shall become effective before being passed upon by the Court of Appeals.
7
4. The Court of Appeals shall retain jurisdiction to insure prompt and faithful compliance with its order, and may modify or amend the same as may be deemed necessary or desirable for the operation of a unitary school system.
8
5. The order of the Court of Appeals dated August 28, 1969, having been vacated and the case remanded for proceedings in conformity with this order, the judgment shall issue forthwith and the Court of Appeals is requested to give priority to the execution of this judgment as far as possible and necessary.
| 12
|
396 U.S. 28
90 S.Ct. 163
24 L.Ed.2d 148
Clarence DeBACKER, Appellant,v.Homer BRAINARD, Sheriff of Dodge County, Nebraska.
No. 15.
Argued Oct. 13, 14, 1969.
Juvenile who had been found to be a delinquent child sought state habeas corpus. The District Court of Dodge County, Nebraska, dismissed petition, and juvenile appealed. The Nebraska Supreme Court, 183 Neb. 461, 161 N.W.2d 508, affirmed, and juvenile appealed. The United States Supreme Court held that where juvenile's counsel at juvenile court hearing did not object to preponderance-of-evidence standard and counsel admitted in oral argument before United States Supreme Court that no matter what standard was used evidence would be sufficient to support finding of delinquency, case was not appropriate one for consideration of whether preponderance-of-evidence standard in juvenile court proceedings required by Nebraska statute satisfied due process clause of Fourteenth Amendment.
Appeal dismissed.
Mr. Justice Black and Mr. Justice Douglas dissented.
William G. Line, Fremont, Neb., for appellant.
Richard L. Kuhlman, Fremont, Neb., for appellee.
Alfred L. Scanlan, Washington, D. C., for National Council of Juvenile Court Judges, as amicus curiae, by special leave of Court.
PER CURIAM.
1
After a hearing before a juvenile court judge, appellant DeBacker was found to be a 'delinquent child'1 and ordered committeed to the Boys' Training School at Kearney, Nebraska2 DeBacker did not seek direct review of his commitment, but instead sought state habeas corpus. The Nebraska District Court dismissed appellant's petition, a divided Nebraska Supreme Court affirmed,3 and last Term we noted probable jurisdiction over the present appeal, 393 U.S. 1076, 89 S.Ct. 856, 21 L.Ed.2d 770. Because we find that resolution of the constitutional issues presented by appellant would not be appropriate in the circumstances of this case, the appeal is dismissed. See Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666.
2
1. Appellant asks this Court to decide whether the Fourteenth and Sixth Amendments, in light of this Court's decisions in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522; and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, require a trial by jury in a state juvenile court proceeding based on an alleged act of the juvenile which, if committed by an adult, would, under the Duncan and Bloom cases, require a jury trial if requested. In DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308, we held that Duncan and Bloom 'should receive only prospective application' and stated that we would 'not reverse state convictions for failure to grant jury trial where trials began prior to May 20, 1968, the date of this Court's decisions in Duncan v. Louisiana and Bloom v. Illinois.' 392 U.S., at 633, 635, 88 S.C., at 2095, 2096. Because appellant's juvenile court hearing was held on March 28, 1968—prior to the date of the decisions in Duncan and Bloom—appellant would have had no constitutional right to a trial by jury if he had been tried as an adult in a criminal proceeding. It thus seems manifest that this case is not an appropriate one for considering whether the Nebraska statute which provides that juvenile hearings be 'without a jury,' Neb. Rev.Stat. § 43-206.03(2), is constitutionally invalid in light of Duncan and Bloom.4
3
2. 2. Appellant next asks this Court to decide whether the preponderance-of-the-evidence standard for burden of proof in juvenile court proceedings, required by Neb.Rev.Stat. § 43206.03(3), satisfies the Due Process Clause of the Fourteenth Amendment. However, at the appellant's juvenile court hearing, his counsel neither objected to the preponderance-of-the-evidence standard, nor asked the judge to make a ruling based on proof beyond a reasonable doubt. In explaining why he did not seek a direct appeal from the juvenile court's determination that appellant had committed the act upon which rested the delinquent child finding, appellant's counsel stated at oral argument before this Court:
4
'[I]t has been pointed out that I did not attack the sufficiency of the evidence.
5
'Of course, the reason for that is obvious. The evidence is more than sufficient to sustain a conviction of what he did. An appeal on the sufficiency of the evidence would have been close to frivolous.' (Tr. 41-42.)
6
Later in oral argument counsel acknowledged that '[n]o matter what the standard was * * * [o]ur evidence just isn't insufficient.' (Tr. 47.) And when specifically asked whether '[t]he evidence was sufficient even under a reasonable doubt standard,' counsel responded: 'Even under a reasonable doubt standard * * *.' (Tr. 47.)
7
Given this commendably forthright explanation by appellant's counsel, this case is not an appropriate vehicle for consideration of the standard of proof in juvenile proceedings.5
8
3. Appellant finally asks us to decide whether due process is denied because, as it is claimed, the Nebraska prosecutor had unreviewable discretion whether he would proceed against appellant in juvenile court rather than in ordinary criminal proceedings. The record shows (1) that appellant did not make this contention before the juvenile court judge; (2) that appellant raised the issue in his habeas corpus petition but that it was not passed on by the Nebraska District Court; (3) that appellant did not press the District Court's failure to consider this issue in his appeal to the Nebraska Supreme Court, and made only passing reference to the issue in his brief to that court; and (4) that the opinions of the Nebraska Supreme Court, 183 Neb. 461, 161 N.W.2d 508 did not pass on the issue, nor even refer to the contention. Given the barrenness of the record on this issue, in the exercise of our discretion, we decline to pass on it. So far as we have been made aware, this issue does not draw into question the validity of any Nebraska statute.6 Therefore, it could not, standing alone, be subject to review in this Court by way of an appeal. See 28 U.S.C. § 1257(2). '[I]nsofar as notation of probable jurisdiction may be regarded as a grant of the certiorari writ' as to this issue, we dismiss such writ as improvidently granted. Mishkin v. New York, 383 U.S. 502, 513, 86 S.Ct. 958, 966, 16 L.Ed.2d 56.
9
For the foregoing reasons this appeal is dismissed.
10
Dismissed.
11
Mr. Justice BLACK, dissenting.
12
For the reasons set forth herein and in the dissenting opinion of my Brother DOUGLAS, I dissent and would reverse the judgment below.
13
In February 1968 appellant, who was then 17 years old, was charged under the laws of Nebraska with being a 'delinquent child'1 because he had a forged bank check which he intended to use for his own purposes.2 At the hearing on this charge he asked for a jury trial, arguing that this was a right guaranteed him by the Sixth Amendment to the Constitution and that a statute prohibitng juries in 'delinquency' proceedings3 was therefore unconstitutional.
14
This Court in In re Gault, 384 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), held that juveniles charged with being 'delinquents' as a result of committing a criminal act were entitled to certain constitutional safeguards—namely, notice of the issues involved, benefit of counsel, protection against compulsory self-incrimination, and confrontation of the witnesses against them. I can see no basis whatsoever in the language of the Constitution for allowing persons like appellant the benefit of those rights and yet denying them a jury trial, a right which is surely one of the fundamental aspects of criminal justice in the English-speaking world.
15
The Court here decides that it would not be 'appropriate' to decide this issue in light of DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). That case held that the Sixth Amendment right to a jury trial—made applicable to the States in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)—did not apply in state proceedings held prior to May 20, 1968. Mr. Justice Douglas and I dissented in that case as we have in every case holding that constitutional decisions would take effect only from the day they were announced.4 I think this doctrine of prospective-only application is nothing less than judicial amendment of the Constitution, since it results in the Constitution's meaning one thing the day prior to a particular decision and something entirely different the next day even though the language remains the same. Under our system of government such amendments cannot constitutionally be made by judges but only by the action of Congress and the people. Depriving defendants of jury trials prior to Duncan violated the Constitution just as much as would similar deprivations after that decision, yet this Court treats these equal deprivation with clearly unequal justice. I cannot agree to such refusals to apply what appear to me to be the clear commends of the Constitution.
16
Mr. Justice DOUGLAS, dissenting.
17
In DeStefano v. Woods, 392 U.S. 631, 635, 88 S.Ct. 2093, 2096, 20 L.Ed.2d 1308, I stated my view that the decisions in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, which guaranteed to adults in serious criminal cases and contempts the right to a trial by jury, should be given retroactive effect.* In light of this view, I am unable to join the Court's per curiam opinion in this case, holding that because appellant's juvenile court hearing was held prior to the date of the decisions in Duncan and Bloom the Court is precluded from deciding appellant's right to a jury trial.
18
I would reach the merits and hold that the Sixth and Fourteenth Amendments require a jury trial as a matter of right where the delinquency charged is an offense that, if the person were an adult, would be a crime triable by jury. Such is this case, for behind the facade of delinquency is the crime of forgery.
19
As originally conceived, the juvenile court was to be a clinic, not a court; the judge and all of the attendants were visualized as white-coated experts there to supervise, enlighten, and cure—not to punish.
20
These white-coated people were surrogates, so to speak, of the natural parent. As stated in one of the leading cases:
21
'To save a child from becoming a criminal, or from continuing in a career of crime, to end in maturer years in public punishment and disgrace, the legislature surely may provide for the salvation of such a child, if its parents or guardian be unable or unwilling to do so, by bringing it into one of the courts of the state without any process at all, for the purpose of subjecting it to the state's guardianship and protection. The natural parent needs no process to temporarily deprive his child of its liberty by confining it in his own home, to save it and to shield it from the consequences of persistence in a career of waywardness, nor is the state, when compelled, as parens patriae, to take the place of the father for the same purpose, required to adopt any process as a means of placing its hands upon the child to lead it into one of its courts. When the child gets there and the court with the power to save it, determines on its salvation, and not its punishment, it is immaterial how it got there. The act simply provides how children who ought to be saved may reach the court to be saved.' Commonwealth v. Fisher, 213 Pa. 48, 53, 62 A. 198, 200 (1905).
22
This new agency—which stood in the shoes of the parent or guardian—was to draw on all the medical, psychological, and psychiatric knowledge of the day and transform the delinquent. These experts motivated by love were to transform troubled children into normal ones, saving them from criminal careers.
23
Many things happened that prevented this dream from becoming a widespread reality. First, municipal budgets were not equal to the task of enticing experts to enter this field in large numbers. Second, such experts as we had, notably the psychiatrists and analysts, were drawn away by the handsome fees they could receive for rehabilitating the rich. Third, the love and tenderness alone, possessed by the white-coated judge and attendants, were not sufficient to untangle the web of subconscious influences that possessed the troubled youngster. Fourth, correctional institutions designed to care for these delinquents often became miniature prisons with many of the same vicious aspects as the adult models. Fifth, the secrecy of the juvenile proceedings led to some overreaching and arbitrary actions.
24
As Mr. Justice Fortas stated in Kent v. United States, 383 U.S. 541, 556, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84, 'There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.'
25
In Kent, the Court held that a valid waiver of the 'exclusive' jurisdiction of the Juvenile Court of the District of Columbia required 'a hearing, including access by * * * counsel to the social records and probation or similar reports which presumably are considered by the court, and * * * a statement of reasons for the Juvenile Court's decision.' Id., at 557, 86 S.Ct., at 1055. Although the opinion in that case emphasized that 'the basic requirements of due process and fairness' be satisfied in such proceedings, id., at 553, 86 S.Ct., at 1053, the decision itself turned on the language of a federal statute.
26
The first expansive treatment of the constitutional requirements of due process in juvenile court proceedings was undertaken in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. That case involved a 15-year-old boy who had been committed by an Arizona juvenile court to the State Industrial School 'for the period of his minority, unless sooner discharged by due process of law' for allegedly making lewd telephone calls. The Court in Gault abandoned the view that due process was a concept alien to the philosophy and work of the juvenile courts. Mr. Justice Fortas, speaking for the Court, stated: 'Under our Constitution, the condition of being a boy does not justify a kangaroo court.' Id., at 28, 87 S.Ct., at 1444. The Court held that a juvenile is entitled to adequate and timely notice of the charges against him, the right to counsel, the right to confront and cross-examine witnesses, and the privilege against self-incrimination.
27
Since the decision in Gault, lower courts have divided on the question whether there is a right to jury trial in juvenile proceedings. Those courts which have granted the right felt that it was implicit in Gault. Nieves v. United States, 280 F.Supp. 994 (D.C.S.D.N.Y.1968); Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968); In re Rindell, 2 BNA Cr.L. 3121 (Providence, R. I., Fam. Ct., Jan. 1968). Those who have denied the right have reasoned either that jury trial is not a dundamental right applicable to the States or that it is not consistent with the concept of a juvenile court. People v. Anonymous, 56 Misc.2d 725, 289 N.Y.S.2d 782 (Sup.Ct.1968); Commonwealth v. Johnson, 211 Pa.Super. 62, 234 A.2d 9 (1967). Duncan and Bloom have negated the former reason. Whether a jury trial is in conflict with the juvenile court's underlying philosophy is irrelevant, for the Constitution is the Supreme Law of the land.
28
Given the fundamental nature of the right to jury trial as expressed in Duncan and Bloom, there is, as I see it, no constitutionally sufficient reason to deprive the juvenile of this right. The balancing of the rehabilitative purpose of the juvenile proceeding with the due process requirement of a jury trial is a matter for a future Constitutional Convention.
29
The idea of a juvenile court certainly was not the development of a juvenile criminal court. It was to have a healthy specialized clinic, not to conduct criminal trials in evasion of the Constitution and Bill of Rights. Where there is a criminal trial charging a criminal offense, whether in conventional terms or in the language of delinquency, all of the procedural requirements of the Constitution and Bill of Rights come into play.
30
I would reverse this judgment.
1
'Delinquent child shall mean any child under the age of eighteen years who has violated any law of the state or any city or village ordinance.' Neb.Rev.Stat. § 43-201(4). Appellant was charged with having a forged check in his possession with the intent to utter it as genuine, an act which for an adult would be forgery under Neb.Rev.Stat. § 28-601(2).
2
Appellant was 17 when committed, and it appears that under Nebrasa law he could be kept in the training school until his 21st birthday.
3
Four of the seven justices of the Nebraska Supreme Court thought the Nebraska statutory provisions which require that juvenile hearings be without a jury, Neb.Rev.Stat. § 43-206.03(2), and be based on the preponderance of the evidence, Neb.Rev.Stat. § 43-206.03(3), were unconstitutional. The Nebraska Constitution provides, however, that: 'No legislative act shall be held unconstitutional except by the concurrence of five judges.' Neb.Const., Art. V, § 2.
4
Although a comment made by appellant's counsel at oral argument before this Court (in response to a question) suggests reliance also on the Equal Protection Clause for the claim that a jury trial was constitutionally required (Tr. 5), an examination of the record clearly reveals that this was not any part of the basis on which probable jurisdiction was noted here. Appellant made no equal protection claim before the juvenile court, in his petition for habeas corpus to the state courts, or in his jurisdictional statement or brief in this Court. The Sixth Amendment as reflected in the Fourteenth was the exclusive basis for appellant's claim that he had a right to jury trial. (See 'Questions Presented' in Jurisdictional Statement 3-4, and Appellant's Brief 2.) Nor has any of the Nebraska courts below passed on any equal protection claim.
5
This Court has recently noted probable jurisdiction to consider this issue in In re Winship (No. 85, Misc.), probable jurisdiction noted, 396 U.S. 885, 90 S.Ct. 179, 24 L.Ed.2d 160.
6
In his petition for state habeas corpus, appellant did not allege as to this issue that any Nebraska statutory provision was invalid. Instead he claimed: 'Petitioner is deprived of his liberty under the Fourteenth Amendment of the Constitution of the United States when his right to a jury trial and the protective procedures of the criminal code are left to depend on the uncontrolled discretion of the prosecutor as to whether petitioner should be proceeded against in juvenile court or should be informed against in District Court under the provisions of the code of criminal procedure.' If it can be fairly said that the prosecutor's discretion under Nebraska law is 'uncontrolled,' or not subject to review, this is not because of any explicit statutory provision making it such, cf. Neb.Rev.Stat. § 43-205.04, but because of language in Nebraska case law. See State v. McCoy, 145 Nev. 750, 18 N.W.2d 101 (1945); Fugate v. Ronin, 167 Neb. 70, 75, 91 N.W.2d 240, 243-244 (1958).
1
Neb.Rev.Stat. § 43-201(4) provides that: 'Delinquent child shall mean any child under the age of eighteen years who has violated any law of the state or any city or village ordinance.'
2
The State charged that appellant 'unlawfully, feloniously and knowingly [had] in his possession and custody a certain false, forged and counterfeited bank check * * * with the intent * * * to utter and publish said false, forged and counterfeited bank check as true and genuine, knowing the same to be a false, forged and counterfeited bank check, and with the intent then and there and thereby to prejudice, damage and defraud * * *, well knowing the same to be falsely made, forged and counterfeited, contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State of Nebraska.' App. 1-2. It is undisputed that such acts constitute the crime of forgery under state law. Neb.Rev.Stat. § 28-601(2).
3
Neb.Rev.Stat. § 43-206.03(2) provides that juvenile hearings 'shall be conducted by the judge without a jury in an informal manner * * *.'
4
Linkletter v. Walker, 381 U.S. 618, 640, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965) (dissenting opinion); Johnson v. New Jersey, 384 U.S. 719, 736, 86 S.Ct. 1772, 1782, 16 L.Ed.2d 882 (1966) (dissenting opinion); Stovall v. Denno, 388 U.S. 293, 302, 303, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967) (dissenting opinions); DeStefano v. Woods, 392 U.S. 631, 635, 88 S.Ct. 2093, 2096, 20 L.Ed.2d 1308 (1968) (dissenting opinion); Halliday v. United States, 394 U.S. 831, 835, 89 S.Ct. 1498, 1500, 23 L.Ed.2d 16 (1969) (dissenting opinion); see also Desist v. United States, 394 U.S. 244, 254, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248 (1969) (concurring in judgment).
*
This has been my position with respect to all comparable constitutional decisions. See, e. g., Desist v. United States, 394 U.S. 244, 255-256, 89 S.Ct. 1030, 1037, 1038, 22 L.Ed.2d 248 (dissenting opinion); DeStefano v. Woods, 392 U.S. 631, 635, 88 S.Ct. 2093, 2096, 20 L.Ed.2d 1308 (dissenting opinion); and cases cited therein.
| 01
|
396 U.S. 41
90 S.Ct. 206
24 L.Ed.2d 209
Paul M. BROCKINGTON, Appellant,v.James A. RHODES, Governor of Ohio, et al.
No. 31.
Argued Oct. 22, 1969.
Mandamus proceeding to compel Governor of Ohio and others to place plaintiff's name on ballot for November, 1968 election as an independent candidate for United States House of Representatives from a particular district. The Court of Common Pleas denied writ of mandamus, and appeal was taken. The Court of Appeals for the Eighth Judicial District affirmed the judgment, and appeal was taken. The Supreme Court of Ohio dismissed the appeal for want of a substantial constitutional question, and plaintiff appealed. The Supreme Court held that case was moot because congressional election was over.
Judgment of Supreme Court of Ohio vacated and cause remanded for such proceedings as that court might deem appropriate.
Benjamin Sheerer, Cleveland, Ohio, for appellant.
Robert D. Macklin, Columbus, Ohio, for appellees.
PER CURIAM.
1
The appellant sought to run in the November 1968 election as an independent candidate for the United States House of Representatives from the Twenty-first Congressional District of Ohio. His nominating petition bore the signatures of 899 voters in the congressional district, a little over 1% of those in the district who had voted in the gubernatorial contest at the last election. The Board of Elections ruled that the appellant's petition was insufficient to put his name on the November ballot, because it did not contain the signatures of 7% of the qualified voters, as Ohio law then required.1 The appellant petitioned the Court of Common Pleas for a writ of mandamus, challenging the 7% requirement as 'unreasonably high and excessive, * * * disproportionate when compared to the 100 signatures required for party candidates,2 * * * arbitrary and capricious, * * * [and] an invidious discrimination without any relationship to constitutionally justified ends * * *.' He urged as the proper standard for determining the sufficiency of his nominating petition the 1% requirement that had prevailed for over 60 years until the enactment of the 7% rule in 1952. He prayed for an immediate order restraining the Board of Elections from printing the election ballots; also for a writ of mandamus commanding the Board 'to certify the sufficiency of relator's nominating petition' and directing the appellees 'to do all things necessary to place relator's name upon the ballot as an independent candidate for United States House of Representatives from the Ohio Twenty-First Congressional District in the November 5, 1968, general election * * *.' His suit did not purport to be a class action, and he sought no declaratory relief.
2
On August 22, 1968, the Court of Common Pleas denied the writ of mandamus. On October 1 the Court of Appeals for the Eighth Judicial District affirmed that judgment, and on October 23 the Supreme Court of Ohio dismissed the appeal for want of a substantial constitutional question. The appellant then appealed to this Court pursuant to 28 U.S.C. § 1257, and we noted probable jurisdiction, 393 U.S. 1078, 89 S.Ct. 877, 21 L.Ed.2d 771. While the appeal was pending here, Ohio amended the controlling statute, effective October 30, 1969, reducing the signature requirement from 7% to 4%.
3
We do not think the recent statutory amendment has rendered this case moot. For the appellant has consistently urged the unconstitutionality of any percentage requirement in excess of the 1% that Ohio imposed prior to 1952, and he obtained the signatures of only about 1% of the voters in his district. He thus could not have won a place on the ballot even under the statute as currently written. Cf. Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214.
4
Rather, in view of the limited nature of the relief sought, we think the case is moot because the congressional election is over. The appellant did not allege that he intended to run for office in any future elections. He did not attempt to maintain a class action on behalf of himself and other putative independent candidates, present or future. He did not sue for himself and others similarly situated as independent voters, as he might have under Ohio law. Ohio Rev. Code Ann. § 2307.21 (1953). He did not seek a declaratory judgment, although that avenue too was open to him. Ohio Rev. Code Ann. §§ 2721.01-2721.15 (1953).
5
Instead, he sought only a writ of mandamus to compel the appellees to place his name on the ballot as a candidate for a particular office in a particular election on November 5, 1968. In Ohio mandamus is an extraordinary remedy, available to a petitioner only on a showing of clear legal right. State ex rel. Gerspacher v. Coffinberry, 157 Ohio St. 32, 104 N.E.2d 1; State ex rel. Stanley v. Cook, 146 Ohio St. 348, 66 N.E.2d 207. The writ does not lie to review the determination by a Board of Elections that a candidate is ineligible to assume the office he seeks or that his petition is invalid, in the absence of allegations of fraud, corruption, abuse of discretion, or a clear disregard of statutes or applicable legal principles. State ex rel. Flynn v. Board of Elections, 164 Ohio St. 193, 129 N.E.2d 623; cf. State ex rel. Hanna v. Milburn, 170 Ohio St. 9, 11, 161 N.E.2d 891, 893. In the instant suit the Court of Common Pleas ruled that the appellant 'must not only establish that the act which he seeks to compel respondents to perform is one that they are constitutionally bound to perform by virtue of their offices, but also that he, the relator, has a clear right to have the duty enforced.' The court, without passing on the merits of the legal issues raised by the parties, found that the appellant had not established a clear legal right to the writ on the basis of all the evidence.
6
It is now impossible to grant the appellant the limited, extraordinary relief he sought in the Ohio courts. Accordingly, the judgment of the Supreme Court of Ohio must be vacated, without costs in this Court, and the cause remanded for such proceedings as that court may deem appropriate.
7
It is so ordered.
8
Judgment vacated and cause remanded.
1
Ohio Rev.Code Ann. § 3513.257 (Supp.1968) provided in pertinent part:
'The nominating petition of an independent candidate for the office of * * * district representative to congress, shall be signed by not less than seven per cent of the number of electors who voted for governor at the next preceding regular state election for the office of governor in the district.'
2
Under Ohio law a candidate for the nomination of a political party to the office of United States Representative must, in order to enter the party primary, obtain from the party membership within the congressional district the signatures of either 100 voters or 5% of those who voted in the last gubernatorial election, whichever is less. Ohio Rev.Code Ann. § 3513.05 (Supp.1968).
| 12
|
396 U.S. 45
90 S.Ct. 200
24 L.Ed.2d 214
Richard HALL et ux., Appellants,v.Harriet BEALS, Clerk and Recorder of El Paso County, et al.
No. 39.
Argued Oct. 14, 1969.
Action to enjoin enforcement and operation of Colorado laws imposing residency requirements for voting in presidential election. The Three-Judge District Court, 292 F.Supp. 610, dismissed the complaint and direct appeal was taken. The Supreme Court held that plaintiffs who were precluded from voting in 1968 presidential election by Colorado statutes imposing six-month residency requirement but who could have voted in 1968 election under statute as amended subsequent to the election were no longer part of class of disenfranchised voters and could not represent class, and action to enjoin enforcement of statute would be dismissed as moot.
Judgment of District Court vacated and case remanded with directions.
Mr. Justice Brennan and Mr. Justice Marshall dissented.
Richard Hall, for appellants, pro se.
Bernard R. Baker, Colorado Springs, for appellees.
PER CURIAM.
1
The appellants moved from California to Colorado in June 1968. They sought to register to vote in the ensuing November presidential election, but were refused permission because they would not on election day have satisfied the six-month residency requirement that Colorado then imposed for eligibility to vote in such an election.1 The appellants then commenced the present class action against the appellees, electoral officials of El Paso County, Colorado. Their complaint challenged the six-month residency requirement as a violation of the Equal Protection, Due Process, and Privilege and Immunities Clauses of the Constitution. For relief they sought (1) a writ of mandamus compelling the appellees to register them for the upcoming presidential election; (2) an injunction restraining the enforcement and operation of the Colorado residency laws insofar as they applied to the presidential election; and (3) a direction that the appellees register the appellants and allow them to vote 'on a conditional basis, so that should either party choose to appeal to the Supreme Court of the United States and such appeal should run past the time of the National Election on November 5, 1968, * * * the relief sought by [the appellants will] not become moot.'2
2
On October 30 the three-judge District Court entered judgment for the appellees and dismissed the complaint, holding that the six-month requirement was not unconstitutional. Hall v. Beals, 292 F.Supp. 610 (D.C.Colo.).3 As a result the appellants did not vote in the 1968 presidential election. They took a direct appeal to this Court pursuant to 28 U.S.C. § 1253, and we noted probable jurisdiction, 394 U.S. 1011, 89 S.Ct. 1624, 23 L.Ed.2d 38. Thereafter the Colorado Legislature reduced the residency requirement for a presidential election from six months to two months.
3
The 1968 election is history, and it is now impossible to grant the appellants the relief they sought in the District Court. Further, the appellants have now satisfied the six-month residency requirement of which they complained. But apart from these considerations, the recent amendatory action of the Colorado Legislature has surely operated to render this case moot. We review the judgment below in light of the Colorado statute as it now stands, not as it once did. Thorpe v. Housing Authority, 393 U.S. 268, 281-282, 89 S.Ct. 518, 526, 21 L.Ed.2d 474; United States v. Alabama, 362 U.S. 602, 604, 80 S.Ct. 924, 926, 4 L.Ed.2d 982; Hines v. Davidowitz, 312 U.S. 52, 60, 61 S.Ct. 399, 400, 85 L.Ed. 581; Carpenter v. Wabash R. Co., 309 U.S. 23, 26-27, 60 S.Ct. 416, 417-418, 84 L.Ed. 558; United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49. And under the statute as currently written, the appellants could have voted in the 1968 presidential election. The case has therefore lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law. Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed. 113; Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663; Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293.
4
The appellants object now to the two-month residency requirement as vigorously as they did to the six-month rule in effect when they brought suit. They say that such statutes, in Colorado and elsewhere, continue to have an adverse effect upon millions of voters throughout the Nation. But the appellants' opposition to residency requirements in general cannot alter the fact that so far as they are concerned nothing in the Colorado legislative scheme as now written adversely affects either their present interests, or their interests at the time this litigation was commenced. Nor does the result differ because the appellants denominated their suit a class action on behalf of disenfranchised voters. The appellants 'cannot represent a class of [which] they are not a part,' Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 550, 7 L.Ed.2d 512—that is the class of voters disqualified in Colorado by virtue of the new two-month requirement, a class of which the appellants have never been members.
5
Nothing in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1, is to the contrary. There we invalidated an Illinois statute requiring that independent candidates for presidential elector obtain signatures on their nominating petitions from voters distributed through the State. We noted that even though the 1968 election was over, 'the burden * * * placed on the nomination of nominees for statewide offices remains and controls future elections, as long as Illinois maintains her present system as she has done since 1935.' 394 U.S., at 816, 89 S.Ct. at 1494. The problem before us was "capable of repetition, yet evading review," not only because the same restriction on Moore's candidacy that had adversely affected him in 1968 could do so again in 1972, but because Illinois, far from having altered its statutory scheme for the future benefit of those situated similarly to Moore, had adhered for over 30 years to the same electoral policy with no indication of change.
6
Here, by contrast, the appellants will face disenfranchisement in Colorado in 1972 only in the unlikely event that they first move out of the State and then reestablish residence there within two months of the presidential election in that year. Or they may take up residence in some other State, and in 1972 face disqualification under that State's law. But such speculative contingencies afford no basis for our passing on the substantive issues the appellants would have us decide with respect to the now-amended law of Colorado. Golden v. Zwickler, supra.
7
The judgment of the District Court is vacated and the case is remanded with directions to dismiss the cause as moot.
8
It is so ordered.
9
Judgment vacated and case remanded with directions.
10
Mr. Justice BRENNAN, dissenting.
11
I dissent from the direction to dismiss this case as moot. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), involved a challenge to the constitutionality of a statute which had been invoked to deny the appellants a place on the 1968 ballot. We were not persuaded in that case by the argument that the appeal should be dismissed since the 1968 election had been held and there was no possibility of granting any relief to appellants. Even though appellants did not allege they would seek a place on the ballot at future elections, we held that the constitutional question was one 'capable of repetition, yet evading review,' Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), and, therefore, that mootness would not prevent our decision of its merits. In my view the present case is an even stronger one for application of that principle. At stake here is the fundamental right to vote—the right 'preservative of other basic civil and political rights,' Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964); see also Harper v. Virginia Board of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169 (1966), and the constitutional challenge of the amended Colorado statute is peculiarly evasive of review. This is because ordinarily a person's standing to make that challenge would not mature unless he had become a Colorado resident within two months prior to a presidential election. Barring resort to extraordinary expedients, that interval is obviously too short for the exhaustion of state administrative remedies and the completion of a lawsuit through filing of the complaint in a federal district court, convening of a three-judge court, trial, and review by this Court.* True, today's virtual foreclosure of any opportunity for definitive judicial review may in some measure be prevented by resort to waiver of the requirement of exhaustion of administrative remedies, preferred calendar position, or even relaxation of the rules of ripeness to permit a person not yet a resident to challenge the statute on a showing of reasonable certainty that he would be moving to the State within the two-month period. But the difficulties which attend these expedients only buttress my conclusion that if mootness did not bar decision of the constitutional question in Moore v. Ogilvie, there is even more reason to hold that mootness does not bar decision of the constitutional question presented here.
12
Reaching the merits, I would reverse for the reasons stated by Mr. Justice MARSHALL in his dissenting opinion, which I join.
13
Mr. Justice MARSHALL, whom Mr. Justice BRENNAN joins, dissenting.
14
I agree with my Brother BRENNAN that this case is not moot. It involves one of those problems "capable of repetition, yet evading review," that call for relaxation of traditional concepts of mootness so that appellate review of important constitutional decisions not be permanently frustrated. Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969).
15
Indeed, one of the unfortunate consequences of a rigid view of mootness in cases such as this is that the state and lower federal courts may well be left as the courts of last resort for challenges of relatively short state residency requirements. Those courts may, as the District Court apparently did in this case, consider themselves bound by this Court's summary per curiam affirmance in Drueding v. Devlin, 380 U.S. 125, 85 S.Ct. 807, 13 L.Ed.2d 792 (1965), aff'g 234 F.Supp. 721 (D.C.Md.1964), which upheld a one-year residency requirement for voting in a presidential election. It seems to me clear that Drueding is not good law today. The difficulties of achieving review in this Court in cases of this sort, combined with this misleading precedent, lead me to indicate briefly my view of the merits of the case before us.
16
In Drueding, the District Court tested the residency requirement there challenged by the equal-protection standard applied to ordinary state regulations: that is, restrictions need bear only some rational relationship to a legitimate end. 234 F.Supp., at 724-725, citing McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). But if it was not clear in 1965 it is clear now that once a State has determined that a decision is to be made by popular vote, it may exclude persons from the franchise only upon a showing of a compelling interest, and even then only when the exclusion is the least restrictive method of achieving the desired purpose. Harper v. Virginia Board of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966); Kramer v. Union Free School District No. 15, 395 U.S. 621, 626-628, 89 S.Ct. 1886, 1888, 1889, 23 L.Ed.2d 583 (1969). Close scrutiny is thus demanded of Colorado's requirement that in order to vote for President and Vice President, one must not only be a resident of that State, but one must have been a resident for a certain time before the election six months when this suit was brought; now, two months.
17
In support of this requirement, it is urged that the electoral college system as embodied in the Constitution contemplates the election of the President and Vice President, not by the Nation as such, but rather by the individual States, each acting as a community. Hence, the argument goes, each State may legislate to ensure that those voting for its presidential electors are truly members of the state community.
18
The argument is surely correct as far as it goes, and this Court has often reaffirmed the power of the States to require their voters to be bona fide residents. Carrington v. Rash, 380 U.S. 89, 93-94, 85 S.Ct. 775, 778-779, 13 L.Ed.2d 675 (1965); Kramer v. Union Free School District No. 15, supra, 395 U.S., at 625, 89 S.Ct. at 1889. But this does not justify or explain the exclusion from the franchise of persons, not because their bona fide residency is questioned, but because they are recent rather than longtime residents.1
19
Nor is it a justification to say that the State has certain parochial interests at stake in the election of a President, and that it may require of its voters a period of residency sufficiently lengthy to impress upon them the local viewpoint. This is precisely the sort of argument that this Court, in Carrington v. Rash, supra, found insufficient to justify Texas' exclusion from voting in state elections of servicemen who had acquired Texas residency after they had entered the service. The State argued that military men newly moved to Texas might not have local interests sufficiently at heart. This Court replied:
20
'But if they are in fact residents, with the intention of making Texas their home indefinitely, they, as all other qualified residents, have a right to an equal opportunity for political representation. * * * 'Fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.' 380 U.S., at 94, 85 S.Ct., at 779.
21
Similarly here, the fact that newly arrived Coloradans may have a more national outlook than longtime residents, or even may retain a viewpoint characteristic of the region from which they have come, is a constitutionally impermissible reason for depriving them of their chance to influence the electoral vote of their new home State.
22
Nor does it suffice to argue that a durational residency requirement ensures that voters have had the time to gain knowledge of local issues, as distinguished from indoctrination in local attitudes. Even if it can be assumed that new residents know less about local issues than old residents, issues of this sort play so small a part in the election of the President and Vice President today that this can hardly be considered a compelling interest sufficient to justify entirely depriving millions of Americans of any opportunity to vote for their most important leaders. Cf. Kramer v. Union Free School District, No. 15, supra, 395 U.S., at 633, 89 S.Ct., at 1892.
23
The appellees argue that the State's durational residency requirement is necessary to ensure the purity of its elections. The impurities feared ('dual voting' and 'colonization') all involve the same evil—voting by nonresidents, either singly or in blocks. But it is difficult to see how the durational residency requirement in any way protects against nonresident voting. The qualifications of the would-be voter in Colorado are determined when he registers to vote, which he may do until 20 days before the election. Colo.Rev.Stat.Ann. § 49-4-2(1) (Supp.1965). At that time, he establishes his qualifications, including durational residence, by oath. Colo.Rev.Stat.Ann. § 49-4-17 (Supp.1965). The nonresident, seeking to vote, can as easily falsely swear that he has been a resident for a certain time, as he could falsely swear that he is presently a resident. The requirement of the additional element to be sworn—the duration of residency—adds no discernible protection against 'dual voting' or 'colonization' by voters willing to lie. Insofar as appears from the Colorado election laws, and from the record in this case, the State makes no independent attempt to go behind the voter's oath to determine his qualifications. See Colo.Rev.Stat.Ann. § 49-13 (Supp.1965).
24
Moreover, even if an enforcement effort were made to prevent nonresident voting, and the exclusion of those taking up residency within two months of the election were used as a method of eliminating cases on the borderline between new residents and mere visitors, such an approach would be constitutionally overbroad. In Carrington v. Rash, supra, the State similarly argued that it was in many instances difficult to tell whether persons moving to Texas while they were in the service had the genuine intent to remain that establishes residency. Thus, the argument went, the administrative convenience of avoiding difficult factual determinations justified a blanket exclusion of all those in the doubtful category. The Court rejected such a 'conclusive presumption' approach, noting that 'States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State.' 380 U.S., at 96, 85 S.Ct., at 780. Cf. Harman v. Forssenius, 380 U.S. 528, 542-543, 85 S.Ct. 1177, 1186, 14 L.Ed.2d 50 (1965).
25
Similarly here, a conclusive presumption that a recently established resident is not a resident at all for voting purposes is simply an overbroad burden upon the right to vote. In most cases, it is no more difficult to determine whether one recently arrived in the community has sufficient intent to remain to qualify as a resident than it is to make a similar determination for an older inhabitant.2 That there are borderline cases among the new arrivals is not a constitutionally sufficient reason for denying the vote to those who have settled in good faith.
26
Finally, appellees argue that the logistics of preparing for an election require that there be some time between the close of registration and the election itself. This period serves as a kind of residency requirement, in that persons establishing residency after the voting lists are closed are barred from voting. Yet this requirement is justified by compelling administrative needs. And, it is argued, once some period of this sort is conceded to be required, it is arbitrary for the courts to determine as a matter of constitutional law how long it may be.
27
But this argument is unconvincing here. Colorado has apparently judged that administrative needs require 20 days between the close of registration and election day. Colo.Rev.Stat.Ann. § 49-4-2(2) (Supp.1965). Appellants have not challenged this statute. What they have challenged is the separate and additional requirement that voters, all of whom register before the 20-day cutoff date, also must have been residents of the State at least six months—by recent admendment two months before the election. Colo.Rev.Stat.Ann. § 49-24-1 (1963). For the argument from logistical need to save the durational residency requirement, the State would have to show some additional administrative need for this further burden on the right to vote. No such showing has been made. In my view the Colorado durational residency requirement for voters for President and Vice President violates the Equal Protection Clause, and appellants are entitled to reversal of the District Court judgment that upheld that requirement.
1
Colo.Rev.Stat.Ann. § 49-24-1 (1963) provided:
'Eligibility of new resident to vote.—Any citizen of the United States who shall have attained the age of twenty-one years, shall have resided in this state not less than six months next preceding the election at which he offers to vote, in the county or city and county not less than ninety days, and in the precinct not less than fifteen days, and shall have been duly registered as required by the provisions of this article, shall have the right to vote as a new resident for presidential and vice-presidential electors.'
The appellant Richard Hall went to the office of the appellee Beals on or about August 1, 1968, to request that his wife and he be allowed to vote in the presidential election. Upon denial of his application, he wrote to the Colorado Secretary of State to ask that his wife and he be allowed to vote despite the six-month residency requirement. On September 6 the State Election Office informed the appellants they would not be permitted to vote.
Apart from the special provision relating to the eligibility of new residents to vote in a presidential election, Colorado requires that persons desiring to vote in general, primary, and special elections must have resided in the State for one year. Colo.Rev.Stat.Ann. § 49-3-1(1)(c) (1963).
2
The request for relief continued:
'Should Plaintiffs win an eventual appeal, the Defendant Election Officials shall be directed to count Plaintiffs' votes as normally cast and valid ballots; should Plaintiffs lose on final appeal to the Supreme Court of the United States, Defendant Election Officials shall destroy Plaintiffs' ballots as if they had never been cast. This conditional registration is the only way Plaintiffs' sought-for relief can be preserved should an appeal by either party run past the date of the National Election in question.'
3
The opinion of the District Court was issued on November 29, 1968.
*
The proceedings would probably require even more time if the plaintiff sued in state court, for review in this Court would come only after one or more levels of state appellate review.
1
Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904), upheld a one-year residency requirement for voting in state elections. The Court specifically reserved the question of durational residency requirements as applied to voting in presidential elections. Id., at 633, 24 S.Ct., at 575. In any case, Pope was decided long before application of the 'compelling interest' test to restrictions on the franchise.
2
For instance, the appellants in this case, before applying for their ballots, had bought a home in Colorado Springs, registered their car with the Colorado Department of Motor Vehicles, acquired Colorado drivers' licenses, and registered their eldest child in a private nursery school; further, Mr. Hall had taken permanent employment with a law firm in Colorado Springs.
| 12
|
24 L.Ed.2d 275
90 S.Ct. 363
396 U.S. 77
UNITED STATES, Appellant,v.James D. KNOX.
No. 17.
Argued Oct. 14, 1969.
Decided Dec. 8, 1969.
Mervyn Hamburg, Washington, D.C., for appellant.
J. Edwin Smith, Houston, Tex., for appellee.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Appellee Knox has been charged with six counts of violation of federal law in connection with his wagering activities. The first four counts of the indictment charge that between July 1964 and October 1965 he engaged in the business of accepting wagers without first filing Internal Revenue Service Form 11—C, the special return and registration application required by § 4412 of the Internal Revenue Code of 1954, and without first paying the occupational tax imposed by § 4411 of the Code. Counts Five and Six charge that when Knox did file such a form on October 14, 1965, and when he filed a supplemental form the next day, he knowingly and willfully understated the number of employees accepting wagers on his behalf—in violation of 18 U.S.C. § 1001, a general criminal provision punishing fraudulent statements made to any federal agency.
2
Knox moved to dismiss the indictment, asserting that this Court's decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), had held invalid1 the provisions of the wagering tax laws that required him to file the special return. The Government in response stated that it would not pursue the first four counts but argued that Knox's objections based on the Marchetti and Grosso decisions were 'largely irrelevant' to Counts Five and Six. The District Court disagreed. It dismissed all six counts, reasoning that Knox could not be prosecuted for his 'failure to answer the wagering form correctly' since his Fifth Amendment privilege against self-incrimination would have prevented prosecution for 'failure to answer the form in any respect.' 298 F.Supp. 1260, 1261. The United States filed a direct appeal to this Court from the dismissal of the two counts charging violations of § 1001, and we noted probable jurisdiction, 394 U.S. 971, 89 S.Ct. 1452, 22 L.Ed.2d 751 (1969).2
3
In Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264 (1969), decided today, we reaffirmed the holding of Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), that one who furnishes false information to the Government in feigned compliance with a statutory requirement cannot defend against prosecution for his fraud by chalenging the validity of the requirement itself. Bryson, like Dennis, involved § 9(h) of the National Labor Relations Act, as amended by the Taft-Hartly Act, 61 Stat. 146, which was attacked as an abridgment of First Amendment freedoms and as a bill of attainder forbidden by Art. I, § 9, of the Constitution. In contrast, Knox alleges infringement of his Fifth Amendment privilege against self-incrimination. We do not think that the different constitutional source for Knox's claim removes his case from the ambit of the principle laid down in those decisions. The validity of the Government's demand for information is no more an element of a violation of § 1001 here than it was in Bryson.3
4
The indictment charges that the forms Knox filed with the District Director of Internal Revenue contained false, material information,4 an accusation that concededly falls within the terms of § 1001. However, Knox claims that the Fifth Amendment bars punishing him for the filings because they were not voluntary but were compelled by §§ 4412 and 7203 of the Internal Revenue Code. He points out that if he had filed truthful and complete forms as required by § 4412, he would have incriminated himself under Texas wagering laws. On the other hand, if he had filed no forms at all, he would have subjected himself to criminal prosecution under § 7203.5 In choosing the third alternative, submission of a fraudulent form, he merely opted for the least of three evils, under a form of duress that allegedly makes his choice involuntary for purposes of the Fifth Amendment.
5
For this proposition Knox relies on United States v. Lookretis, 398 F.2d 64 (C.A.7th Cir. 1968), where, after this Court had remanded for reconsideration in light of Marchetti, see 390 U.S. 338, 88 S.Ct. 1097, 19 L.Ed.2d 1219 (1968), the Court of Appeals ruled that truthful disclosures made under the compulsion of § 4412 could not be introduced against their maker in a criminal proceeding. However, the Fifth Amendment was offended in Lookretis precisely because the defendant had succumbed to the statutory compulsion by furnishing the requested incriminatory information. Knox does not claim that his prosecution is based upon any incriminatory information contained in the forms he filed, nor that he is being prosecuted for a failure to supply incriminatory information. He has taken a course other than the one that the statute was designed to compel, a course that the Fifth Amendment gave him no privilege to take.
6
This is not to deny that the presence of §§ 4412 and 7203 injected an element of pressure into Knox's predicament at the time he filed the forms. At that time, this Court's decisions in United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 7 L.Ed. 754 (1953), and Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955), established that the Fifth Amendment did not bar prosecution for failure to file a form such as 11—C. But when Knox responded to the pressure under which he found himself by communicating false information, this was simply not testimonial compulsion. Knox's ground for complaint is not that his false information inculpated him for a prior or subsequent criminal act; rather, it is that under the compulsion of §§ 4412 and 7203 he committed a criminal act, that of giving false information to the Government. If the compulsion was unlawful under Marchetti,6 Knox may have a defense to this prosecution under the traditional doctrine that a person is not criminally responsible for an act committed under duress. See generally Model Penal Code §§ 2.09, 3.02 (Proposed Official Draft, 1962); id., § 2.09, Comment (Tent. Draft No. 10, 1960). It is only in this sense that there is any relevance to Knox's attempted distinction of this case from Dennis, Bryson, and their predecessors, United States v. Kapp, 302 U.S. 214, 58 S.Ct. 182, 82 L.Ed. 205 (1937), and Kay v. United States, 303 U.S. 1, 58 S.Ct. 468, 82 L.Ed. 607 (1938), on the ground that in those cases the false statements were voluntarily filed for the purpose of obtaining benefits from the Government.
7
Knox argues that the criminal sanction for failure to file, coupled with the danger of incrimination if he filed truthfully, was more coercive in its effect than, for example, the prospect that the petitioners in Dennis would lose their jobs as union officers unless they filed non-Communist affidavits. While this may be so, the question whether Knox's predicament contains the seeds of a 'duress' defense, or perhaps whether his false statement was not made 'willfully' as required by § 1001, is one that must be determined initially at his trial.7 It is not before us on this appeal from dismissal of the indictment, and we intimate no view on the matter.
8
The judgment of the District Court is reversed.
9
Reversed.
10
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
11
In this case, as in Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264, the relevant inquiry is whether 'constitutionally speaking it was 'within the jurisdiction" of a government agency to require the filing of certain information. Id., at 74, 90 S.Ct. at 361 (dissenting opinion). In Marchetti v. United States, 390 U.S. 39, 61, 88 S.Ct. 697, 709, 19 L.Ed.2d 889, we held that the statutory requirement of filing Internal Revenue Service Form 11—C is not unconstitutional per se. It is clear, however, that under Marchetti, supra, and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, the 'jurisdiction' of the Internal Revenue Service to require this form to be filed is subject to the Fifth Amendment privilege against self-incrimination.
12
This is not a case where an individual, with knowledge that he has a right to refuse to provide information, nonetheless provides false information. Under the decisions in 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, which were controlling at the time Knox filed his wagering form, Knox faced prosecution under 26 U.S.C. § 7203 for failure to file the form, despite claims of self-incrimination. The Government's requirement to file the wagering form was unconditional. The majority argues that by the terms of Marchetti the Government is not prohibited from requesting the form, but is only prohibited from prosecuting an individual for his failure to comply with the request. At 80, n. 3, 90 S.Ct. at 365. The question in this case, however, is not whether the Government has the power to request the form to be filed, but whether it has the power to require the form to be filed. If Knox had merely been requested to file the form and, with full knowledge of his right to silence under the Fifth Amendment, had done so voluntarily, we would have quite a different case. That is not this case. Under the scheme then in effect, the Government demanded unconditionally that Knox file the form, regardless of the fact that it would incriminate him. Heavy penalties were placed on a failure to file the form.
13
Marchetti and Grosso held that those in Knox's position have the Fifth Amendment right to remain silent irrespective of the statutory command that they submit forms which could incriminate them. Had Knox asserted his right of silence under the Fifth Amendment, it is clear that the Internal Revenue Service could not, consistently with Marchetti and Grosso, have required him to file the wagering form.* Thus any argument that the Internal Revenue Service did have 'jurisdiction' to require the form to be filed in this case would have to rest on a theory that Knox had 'waived' his Fifth Amendment right by not asserting it in lieu of filing the form. A similar claim was made in Grosso, where the petitioner had not asserted his Fifth Amendment right as to certain counts concerning his failure to pay the special occupational tax imposed by 26 U.S.C. § 4411. The Court there said:
14
'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, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165, we are unable to view his failure to present this issue as an effective waiver of the constitutional privilege.' 390 U.S., at 71, 88 S.Ct., at 715.
15
That reasoning is equally applicable here, for Kahriger and Lewis were still on the books at the time Knox filed his form. And see Leary v. United States, 395 U.S 6, 27—29, 89 S.Ct. 1532, 1543 1544, 23 L.Ed.2d 57.
16
For the reasons stated in my dissent in Bryson, p. 64, 90 S.Ct. p. 361, and in Mr. Justice Black's separate opinion in Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 1851 1852, 16 L.Ed.2d 973, if the Internal Revenue Service had no constitutional authority to require Knox to file any wagering form at all, his filing of a form which included false information in no way prejudiced the Government and is not, in my view, a matter 'within the jurisdiction' of the Internal Revenue Service.
17
I would affirm the judgment below.
1
But see nn. 3, 6, infra.
2
Such a direct appeal is authorized by the Criminal Appeals Act, 18 U.S.C. § 3731, which provides: 'An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
'From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded.
'From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.' The District Court sustained the claim of privilege not on the basis of facts peculiar to this case but on the basis of its conclusion that the Fifth Amendment provides a defense to any prosecution under § 1001 based on misstatements on a Form 11—C. This amounts to a holding that § 1001, as applied to this class of cases, is constitutionally invalid. The generality of the impact of the District Court's holding appears to us to render our jurisdictional holding a fortiori compared to analogous jurisdictional holdings in such cases as Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239 (1921); Fleming v. Rhodes, 331 U.S. 100, 102—104, 67 S.Ct. 1140, 1141 1142, 91 L.Ed. 1368 (1947); Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950); Department of Employment v. United States, 385 U.S. 355, 356—357, 87 S.Ct. 464, 465—466, 17 L.Ed.2d 414 (1966). We prefer to rest our jurisdiction on this aspect of § 3731 rather than, as advocated by the Government, the statute's 'motion in bar' provision, in light of the fact that the scope of the latter provision will be the subject of fulldress consideration, as will certain problems under the 'dismissing any indictment' provision not present in this case, in United States v. Sisson, consideration of jurisdiction postponed, 396 U.S. 812, 90 S.Ct. 92, 24 L.Ed.2d 65 (1969).
3
Knox argues that his false forms 11—C were not filed 'in any matter within the jurisdiction of any department or agency of the United States,' a necessary element of a violation of § 1001, because Marchetti and Grosso held that the Internal Revenue Service was not authorized to require the filing of the forms. Even if his reading of those decisions were correct, his argument would fail for the reasons explained in Bryson. The Internal Revenue Service has express statutory authority to require the filing, and when Knox submitted his forms this Court had held that such a requirement raised no self-incrimination problem. United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953); Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955). Further, in Marchetti we did not hold that the Government is constitutionally forbidden to direct the filing of the form, but only that a proper assertion of the constitutional privilege bars prosecution for failure to comply with the direction. See n. 6, infra; see also Grosso v. United States, 390 U.S., at 69—70, n. 7, 88 S.Ct., 714—715.
4
Knox claims on appeal that neither Count Five nor Count Six charges any affirmative misstatements, but only omissions. Count Five charges that the statements on the form filed on October 14, 1965, 'were not true, correct, and complete, in that the number of employees and/or agents engaged in receiving wagers in his behalf were misrepresented and understated, in that the number, name, special stamp number, street address, and city and state of employees and/or agents engaged in receiving wagers in the said JAMES D. KNOX's behalf had been omitted * * *.' Count Six contains language identical except for an apparently inadvertent difference in punctuation. Although the wording is not entirely clear, we need not decide whether on a fair reading the indictment encompasses affirmative misstatements. The District Court read the indictment as alleging that Knox violated § 1001 'by wilfully and knowingly making a false statement' on the forms, and it was on the basis of this construction that the court dismissed Counts Five and Six. We have no jurisdiction on this direct appeal to review the construction of the indictment. E.g., United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947); United States v. Borden Co., 308 U.S. 188, 193, 60 S.Ct. 182, 186, 84 L.Ed. 181 (1939). But see United States v. CIO, 335 U.S. 106, 68 S.Ct. 1349, 92 L.Ed. 1849 (1918). See also n. 2, supra.
5
Title 26 U.S.C. § 7203 provides: 'Any person required under this title to pay any estimated tax or tax, required by this title or by regulations made under authority thereof to make a return (other than a return requird under authority of section 6015 orsection 6016), keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law of regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution.'
6
We stressed in Marchetti '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.' 390 U.S., at 61, 88 S.Ct., at 709. Nothing before us indicates that the hazard of incrimination faced by Knox was less substantial than that faced by Marchetti, or that Knox would have been disqualified for any other reason from asserting the privilege in defense of a prosecution for failure to comply with § 4412.
7
Rule 12(b)(1) of the Federal Rules of Criminal Procedure, which cautions the trial judge that he may consider on a motion to dismiss the indictment only those objections that are 'capable of determination without the trial of the general issue,' indicates that evidentiary questions of this type should not be determined on such a motion.
*
As the majority opinion states: 'Nothing before us indicates that the hazard of incrimination faced by Knox was less substantial than that faced by Marchetti, or that Knox would have been disqualified for any other reason from asserting the privilege * * *.' At 83, 90 S.Ct. at 367 n. 6.
| 01
|
396 U.S. 87
90 S.Ct. 284
24 L.Ed.2d 283
James MINOR, Petitioner,v.UNITED STATES. Michael BUIE, Petitioner, v. UNITED STATES.
Nos. 189 and 271.
Argued Oct. 15, 1969.
Decided Dec. 8, 1969.
[Syllabus from pages 87-88 intentionally omitted]
Phylis Skloot Bamberger, New York City, for petitioner, James minor.
Peter L. Strauss, Washington, D.C., for respondent, the United States in No. 189.
David A. Diamond, New York City, for petitioner, Michael Buie.
Joseph J. Connolly, Washington, D.C., for respondent, the United States in No. 271.
Mr. Justice WHITE delivered the opinion of the Court.
1
These cases raise related questions about the availability of the Fifth Amendment as a defense to convictions for selling narcotic drugs and marihuana without the written order forms required by law.
2
James Minor, petitioner in No. 189, sold heroin on two separate occasions in 1967 to an undercover narcotics agent. Having waived trial by jury, petitioner was convicted in the United States District Court for the Southern District of New York of selling narcotics not pursuant to a written order on an official form—a violation of § 2 of the Harrison Narcotics Act, now 26 U.S.C. § 4705(a).1
3
Michael Buie, petitioner in No. 271, sold five packages of marihuana in May 1967 to an undercover narcotics agent. The agent did not have the official order form required for such transactions by § 6 of the Marihuana Tax Act, now 26 U.S.C. § 4742(a).2 A jury in the United States District Court for the Southern District of New York convicted petitioner of violating § 4742(a).
4
In separate opinions, the Court of Appeals for the Second Circuit affirmed both convictions over objections in each case that the statutory obligation to sell only in pursuance of an official order form violated petitioner's Fifth Amendment privilege against self-incrimination. United States v. Minor, 398 F.2d 511 (1968); United States v. Buie, 407 F.2d 905 (1969). We granted certiorari, 395 U.S. 932 and 976, 89 S.Ct. 2000 and 2150, 23 L.Ed.2d 447 and 765, to consider petitioners' Fifth Amendment claims, particularly in light of our intervening decision in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). For the reasons that follow, we affirm the judgments in both cases.
5
We deal first with No. 271. Under pertinent provisions of the Marihuana Tax Act, 26 U.S.C. §§ 4751—4753, every person who sells, deals in, dispenses, or gives away marihuana must register with the Internal Revenue Service and pay a special occupational tax. The Act also imposes a tax on transfers of marihuana, to be paid by the transferee; the rate for those who have registered and paid the occupational tax is $1 per ounce; for those who have not or who cannot register the rate is $100 per ounce. Under § 4742(a) it is illegal to transfer marihuana except pursuant to a written order of the transferee on a form obtained by the latter at the time he pays the transfer tax. The order form when issued must carry the name and address of both buyer and seller and the amount of marihuana to be purchased. 26 U.S.C. § 4742(c). Other provisions of § 4742 require the form to be issued in triplicate, one copy to be retained by the Internal Revenue Service, the other copy to be kept in the buyer's files, and the original to be delivered to the seller and retained by him. 26 U.S.C. § 4742(d). Both original and copies are open to inspection by federal and state law enforcement officers. 26 U.S.C. §§ 4742(d), 4773.
6
Buie argues that because the buyer's order must be on the form issued by the Secretary of the Treasury and because § 4742(c) requires the seller's name and address to be on the form before its issuance to the buyer, the seller is forced to incriminate himself: he is forced to insist on an order form linking him to an illicit transaction and in many instances must furnish one of those links himself by giving his name to the buyer so that the latter will have the data necessary to secure the form. Moreover, it is said that the very act of selling pursuant to the order form forces the seller to admit that he is the person named in the document and to acknowledge the sale of specified amounts of marihuana on a specified date; the sale also leads to the further requirement that both seller and buyer retain a copy of the form open to inspection by law enforcement officials.
7
We have considerable doubt that any of these arguments would withstand close scrutiny,3 but we find it unnecessary to appraise them in detail because we have concluded that there is no real and substantial possibility that Buie's purchaser, or purchasers generally, would be willing to comply with the order form requirement even if their seller insisted on selling only pursuant to the form prescribed by law.
8
The situation of the buyer is this: if he applies for the order form he must announce his intention to purchase marihuana—a transaction that, if he is unregistered, will involve a tax of $100 for each ounce of marihuana involved in the impending sale and that is illegal under both federal and state law. We have great difficulty in believing, and nothing in this record convinces us, that one who wishes to purchase marihuana will comply with a seller's request that he incriminate himself with federal and local authorities and pay $100 per ounce in taxes in order to secure the order form. The possibility is particularly unlikely in view of the fact that the Fifth Amendment relieves unregistered buyers of any duty to pay the transfer tax and secure the incriminating order form. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Except that they are sources of marihuana, sellers have no magic power over buyers; and the characteristics of marihuana do not suggest that buyers would be driven by such urgent need that to get the drug they would incriminate themselves at the seller's behest and pay the prohibitive tax imposed on the transfer. As insistent as sellers might be, it is extremely unlikely that buyers would comply.
9
Buie's situation thus bears little resemblance to the situation that confronted Leary. The vice of the statute in that case—as in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968)—stemmed from the dilemma that confronted the buyer. The statute purported to make all purchases of marihuana legal from the buyer's viewpoint at his option; all he had to do to avoid the federal penalty was to secure the form and pay the tax. But to exercise that option and avoid the federal penalty, he was forced to incriminate himself under other laws. In the present case, the first horn of this dilemma does not confront the seller. In the face of a buyer's refusal to secure the order form, the option of making a legal sale under federal law is foreclosed by the buyer's decision, and 'full and literal compliance' with the law by the seller means simply that he cannot sell at all.4 There is no real and substantial possibility that he § 4742(a) order form requirement will in any way incriminate sellers for the simple reason that sellers will seldom, if ever, be confronted with an unregistered purchaser who is willing and able to secure the order form.
10
This conclusion is not affected by the fact that there is a tiny number of registered marihuana dealers—some 83 in the entire country according to government figures for 1967.5 In order to register, dealers must show that they are in compliance with local laws6 and, when registered, can get order forms by paying a transfer tax of only $1 per ounce. A registered dealer is thus not subject to the deterrent pressures operating on the unregistered dealer. But the possibility that a registered dealer would present an order form to an unregistered seller like Buie is itself a hypothesis more imaginary than real; any buyer who can purchase marihuana from a legitimate source is hardly likely to find it to his advantage to secure the drug instead on the illegal market. In any event, it is quite clear in this case that Buie's customer was not a registered dealer. Nor is there anything to suggest that he would have been willing or able to get an order form had he been asked.
11
No 189. The same result must follow in Minor's case and for similar reasons. The Harrison Narcotics Act, 26 U.S.C. § 4701 et seq., applies to various drugs, including heroin. Dealers must register and pay an occupational tax, 26 U.S.C. §§ 4721—4722; producers or importers who sell must purchase stamps and affix them to the package, 26 U.S.C. §§ 4701, 4703, 4771(a)(1); and it is illegal to purchase or sell except from the original stamped package, 26 U.S.C. § 4704(a). As in the case of the Marihuana Tax Act, all transfers, with exceptions not relevant here, must be made pursuant to a written order form issued by the Government. 26 U.S.C. § 4705(a). Only dealers who are in compliance with state law may register, and only registered dealers may secure order forms. 26 U.S.C. §§ 4705(f), (g); see 26 U.S.C. § 4721; 26 CFR § 151.24. Order forms are issued in triplicate to proper applicants and are stamped only with the name of the prospective purchaser. 26 U.S.C. § 4705(f); 26 CFR § 151.161. When a purchaser decides to execute a form, he fills in the exact date of the order and the number and type of drugs requested and signs his name to the form. 26 CFR §§ 151.163—151.165, 151.167. The purchaser retains the duplicate and delivers the original and the triplicate thus executed to the seller, who enters the number and size of the stamped packages furnished and the date when each item is filled. 26 CFR §§ 151.161(a), 151.185. A regulation, 26 CFR § 151.201, requires the seller to forward the triplicate to the Internal Revenue Service at the end of the month. Section 4705(d) of the Act requires both seller and buyer to keep their respective copies for a period of two years and to make them accessible to inspection by law enforcement officers.
12
The order form provisions for narcotic drugs thus differ from the marihuana provisions in three principal respects. First, the prospective seller's name does not have to be given to the Government when the order form is secured, but is filled in only when the form is subsequently executed.7 Second, although the marihuana seller apparently does not have to add anything to the order form in making the sale, the seller of narcotics must enter the amounts sold and the dates. Finally, unlike the Marihuna Tax Act, which at least in theory permits any person to buy as long as the transfer tax is paid, the Harrison Narcotics Act explicitly forbids the sale of order forms to any but registered dealers and permits registration only by those 'lawfully entitled' under the laws of their State to deal in the drug.8
13
Like Buie, Minor argues that compliance with the order form provision would compel him to give incriminating information to be preserved in his and the buyer's files and to be made readily accessible to law enforcement agents. Like Buie's argument, Minor's argument assumes that an order form would otherwise be forthcoming if he refused to sell without it9 and founders if in reality there is no substantial possibility that the buyer would or could have secured an order form. As in Buie's case, we are convinced that this possibility is an unreal one. Prospective buyers who have either failed to register or cannot register because their dealings in the drug are illicit—and petitioner himself strenuously argues that virtually all dealings in heroin are illicit10—simply are not among the class of persons to whom sellers are permitted to sell under any condition. When dealing with buyers in this class, the seller faces no risk of incrimination by reason of § 4705(a) since there will be and can be no order form involved. Confronted with would-be buyers in this class, 'full and literal compliance' with § 4705(a) leaves the seller only one alternative: not to sell. Since from this record it is clear that Minor's customer was not a registered buyer, the alleged possibility of incrimination is purely hypothetical.
14
We doubt that our conclusion would be different even if Minor's customer were registered. It is true that there were some 400,000 registered dealers under the Harrison Narcotics Act in 196711 and that registered dealers can readily get order forms issued in blank. It is conceivable, of course, that a registered dealer would seek to buy heroin on the illegal market, but it is difficult to imagine that he would enter the name of an unregistered seller on the order form and make a record of what would surely be an illegal sale.12 Such unlikely possibilities present only 'imaginary and insubstantial' hazards of incrimination, rather than the 'real and appreciable' risks needed to support a Fifth Amendment claim.13
15
The judgments in both cases are affirmed.
16
It is so ordered.
17
Judgments affirmed.
18
Mr. Justice BLACK and Mr. Justice DOUGLAS dissent in No. 271.
19
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting in No. 189.
20
The guilt of petitioner on this record seems plain. Two counts charge sales of heroin on two different dates in 1967 'not in pursuance of a written order * * * form.' He was found guilty on each count by the District Court, a trial by jury having been waived. The basis of his attack upon his conviction in this Court is that the requirement of an order form violates his privilege against self-incrimination. But that is not the end of the matter for me. Mr. Justice Holmes used to say that one dealing with the Government should turn square corners. See Rock Island, A. & L.R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188. When the present all-powerful, all-pervasive Government moves to curtail the liberty of the person, it too should turn square corners.
21
The statute involved in this case, 26 U.S.C. § 4705(a), was derived from the Anti-Narcotic Act of December 17, 1914, 38 Stat. 785, commonly called the Harrison Narcotics Act. This Act, as amended, imposes an occupational tax on registered dealers in narcotics, 26 U.S.C. §§ 4721—4722, and also imposes a commodity excise tax on narcotics sold or removed for consumption or sale, 26 U.S.C. § 4701. Under § 4705(a), with certain exceptions not relevant here, all transfers of narcotics mut be made pursuant to an official order form given to the transferor by the transferee. The order form can be obtained only by persons properly registered to deal in narcotics. It was conceded by the Government on oral argument, however, that 'it is impossible to secure an order form for the purchase of heroin. * * * The order forms may only be used to purchase a lawful drug for a lawful purpose. Heroin is an unlawful drug for which there is no lawful purpose.'
22
The Federal Government does not have plenary power to define and punish criminal acts. Its power in this regard derives from other powers specifically delegated to it by the Constitution, as the Tenth Amendment provides:
23
'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' Section 4705(a) derives from the power to 'lay and collect Taxes.' Art. I, § 8. Its constitutionality on this basis was sustained in United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493—a five-to-four decision. It was there said that the 'order form' requirement tended 'to keep the traffic aboveboard and subject to inspection by those authorized to collect the revenue,' and also tended 'to diminish the opportunity of unauthorized persons to obtain the drugs and sell them clandestinely without paying the tax imposed by the federal law.' Id., at 94, 39 S.Ct. at 216.
24
As I view this case, the Government is punishing an individual for failing to do something that the Government has made it impossible for him to do—that is, obtain an order form from the prospective purchaser prior to making a sale of heroin. Petitioner did, of course, have the option not to sell the heroin, and in that sense his compliance with the statute was indeed quite possible. This argument, however, overlooks the fact that the statute does not simply outlaw all sales of heroin. The critical interest of the Government is necessarily in the collecting of the tax imposed by the Act, and it is the order form which provides the crucial link to this proper constitutional purpose. In Nigro v. United States, 276 U.S. 332, 341, 48 S.Ct. 388, 390, 72 L.Ed. 600, Chief Justice Taft, speaking for the Court, said:
25
'In interpreting the Act we must assume that it is a taxing measure, for otherwise it would be no law at all. If it is a mere act for the purpose of regulating and restraining the purchase of the opiate and other drugs, it is beyond the power of Congress and must be regarded as invalid * * *.'
26
Thus it is the order form—not the mere sale—that constitutes the heart of the offense for which this petitioner was convicted. I do not see how the Government can make a crime out of not receiving an order form and at the same time allow no order forms for this category of sales.
27
Nor is it relevant to suggest, as does the majority opinion, ante, at 98 n. 13, that a statute imposing a flat ban on sales of heroin might be sustainable under the Commerce Clause. We are concerned in this case with what the Congress did, not with what it might have done or might yet do in the future. It is clear that what Congress did in § 4705(a) was to enact a taxing measure. And the crime charged was not selling heroin, but selling it 'not in pursuance of a written order * * * form,' as prescribed in § 4705(a).
28
I would reverse this judgment of conviction.
1
Section 4705(a) provides:
'It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate.'
2
Section 4742(a) provides:
'It shall be unlawful for any person * * * to transfer marihuana, except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary or his delegate.'
Under 26 U.S.C. § 7237(b), any person who violates the provisions of §§ 4705(a) or 4742(a) 'shall be imprisoned not less than 5 or more than 20 years and, in addition, may be fined not more than $20,000.'
3
The obligation to furnish the necessary information is in terms placed on the buyer; while his compliance with that obligation may 'inform' on the seller, it would not ordinarily be thought to result in the latter's 'self-incrimination.' Nor is there anything in the record to suggest that buyers cannot get a seller's name except through the seller himself, or that the simple act of selling pursuant to an order form—even assuming the act is 'testimonial' for purposes of the Fifth Amendment—adds significantly to the information that the Government has already obtained from the buyer. Finally, whatever the merits of a seller's attempt to assert the privilege in a prosecution for failure to keep and exhibit the order forms, it need not follow that he can similarly dispense with the requirement that he sell only to buyers who first identify themselves, via the order form, as lawful purchasers. Cf. Nigro v. United States, 276 U.S. 332, 351, 48 S.Ct. 388, 394, 72 L.Ed. 600 (1928); United States v. Doremus, 249 U.S. 86, 94, 39 S.Ct. 214, 216, 63 L.Ed. 493 (1919).
4
It would have been no answer in Leary to suggest that the buyer avoid his dilemma by not buying. See Marchetti v. United States, 390 U.S. 39, 51—52, 88 S.Ct. 697, 704, 19 L.Ed.2d 889. But the buyer in Leary, unlike the seller here, was presented with the possibility of both purchasing and complying with the federal law, if he would only incriminate himself. In the present case, compliance by selling is foreclosed as a viable option, not because the seller might incriminate himself, but because the buyer refuses to meet a specified condition. Nothing in the Fifth Amendment prevents Congress from restricting a seller's market to specified classes of duly licensed buyers. And although the buyer's refusal to comply with the Act's requirements may stem from his fear of incrimination, the buyer's personal privilege cannot be raised by the seller as an excuse for evading the clear statutory requirements. See George Campbell Painting Corp. v. Reid, 392 U.S. 286, 88 S.Ct. 1978, 20 L.Ed.2d 1094 (1968); Rogers v. United States, 340 U.S. 3678 71 S.Ct. 438, 95 L.Ed. 344 (1951).
5
U.S. Treasury Department, Bureau of Narcotics, Traffic in Opium and Other Dangerous Drugs 42 (1968).
6
The regulations, 26 CFR §§ 152.22, 152.23, which limit registration to persons whose dealings are legal under relevant state and local laws, are supported by the legislative history and represent what is by now long-established administrative practice. See Leary v. United States, 395 U.S. 6, 24 n. 38, 89 S.Ct. 1532, 1541, 23 L.Ed.2d 57 (1969); H.R.Rep. No. 792, 75th Cong., 1st Sess., 2 (1937); S.Rep. No. 900, 75th Cong., 1st Sess., 3 (1937); Hearings on H.R. 6906 before a subcommittee of the Senate Committee on Finance, 75th Cong., 1st Sess., 6 (1937); Hearings on H.R. 6385 before the House Committee on Ways and Means, 75th Cong., 1st Sess., 8 (1937).
7
It is not specified in either the statute or the regulations when the blank for the seller's name is filled in or by whom. But the form itself is addressed 'to' the seller, and the form and the regulations contain provisions that enable a form 'made out to' one seller, to be endorsed by him to another if the first seller cannot fill the order. See 26 CFR § 151.189. This suggests that it is the buyer who fills in the seller's name when he sends in the order. Whether or not that is the case in fact is irrelevant under the analysis in the text.
8
The difference between the availability of order forms under the Harrison Narcotics Act and the Marihuana Tax Act was explicitly recognized by Congress when it passed the latter Act. See Leary v. United States, 395 U.S. 6, 21—22, 89 S.Ct. 1532, 1540 1541, 23 L.Ed.2d 57 (1969). The regulation restricting registration to those 'lawfully entitled' to deal in narcotic drugs, 26 CFR § 151.24, finds specific support in the language of the Act. See 26 U.S.C. §§ 4705(g), 4721.
9
Even if order forms could realistically be secured, Minor's Fifth Amendment arguments are no more persuasive than Buie's. See n. 3, supra.
10
See Brief for Petitioner 22—23. Convinced that '(h)eroin has no medical value that is not better served by legitimate drugs,' S.Rep. No. 1997, 84th Cong., 2d Sess., 7 (1956), Congress in 1956 required the surrender of all theretofore lawfully possessed heroin, to be distributed only as approved by the Secretary for purposes of scientific research. 18 U.S.C. § 1402. The Narcotic Drugs Import and Export Act, 35 Stat. 614, as amended, 21 U.S.C. §§ 173, 174, effectively prohibits the imporation of heroin or of opium for the purpose of manufacturing heroin, and makes it a felony to traffic in drugs knowing them to have been unlawfully imported. The Narcotics Manufacturing Act of 1960, 74 Stat. 55, 21 U.S.C. § 501 et seq., prohibits the manufacturing of heroin except as authorized for limited scientific purposes. Given the resulting absence of original stamped packages of heroin, 26 U.S.C. § 4704(a) effectively forbids buying, selling, dispensing, or distributing the drug. Since for all practical purposes there is thus no legitimate dealing in heroin, any attempt to use an order form to purchase the drug would almost certainly subject the buyer to prosecution under 26 U.S.C. § 4705(g):
'It shall be unlawful for any person to obtain by means of said order forms narcotic drugs for any purpose other than the use, sale, or distribution thereof by him in the conduct of a lawful business in said drugs or in the legitimate practice of his profession.'
11
See U.S. Treasury Department, Bureau of Narcotics, Traffic in Opium and Other Dangerous Drugs 22, 42 (1968).
12
Even if the hypothetical became a reality, it is doubtful that the incriminating information would get back to the Government via the buyer, who would himself be guilty of a violation of the narcotics laws. See n. 10, supra. See also 26 CFR § 151.181, which provides that order forms may be filled only by registered sellers—a class to which Minor does not belong. It is significant that of the nearly 400,000 registered dealers in 1967, only four were reported during that year for a violation of the narcotics laws. See U.S. Treasury Department, Bureau of Narcotics, Traffic in Opium and Other Dangerous Drugs 22 (1968).
13
The dissent suggests that the courts should refuse to enforce § 4705(a) as part of a revenue measure. But these very order form provisions were upheld long ago as valid revenue laws even though they operated to prevent large classes of people from obtaining order forms—and hence from acquiring drugs—at all. United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493 (1969); Webb v. United States, 249 U.S. 96, 39 S.Ct. 217, 63 L.Ed. 497 (1919); see Nigro v. United States, 276 U.S. 332, 48 S.Ct. 388, 72 L.Ed. 600 (1928). A statute does not cease to be a valid tax measure because it deters the activity taxed, because the revenue obtained is negligible, or because the activity is otherwise illegal. See, e.g., Marchetti v. United States, 390 U.S. 39, 44, 88 S.Ct. 697, 700, 19 L.Ed.2d 889 (1968); United States v. Kahriger, 345 U.S. 22, 28, 73 S.Ct. 510, 513, 97 L.Ed. 754 (1953); License Tax Cases, 5 Wall. 462, 18 L.Ed. 497 (1867).
Even viewing § 4705(a) as little more than a flat ban on certain sales, it is sustainable under the powers granted Congress in Art. I, § 8. See Yee Hem v. United States, 268 U.S. 178, 183, 45 S.Ct. 470, 471, 69 L.Ed. 904 (1925). Brolan v. United States, 236 U.S. 216, 222, 35 S.Ct. 285, 287, 59 L.Ed. 544 (1915); cf. United States v. Sullivan, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297 (1948); United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941).
| 01
|
396 U.S. 102
90 S.Ct. 291
24 L.Ed.2d 299
Melvin MORALES, Petitioner,v.STATE OF NEW YORK.
No. 86.
Argued Nov. 20, 1969.
Decided Dec. 8, 1969.
Richard T. Farrell, Brooklyn, N.Y., for petitioner.
Burton B. Roberts, New York City, for respondent.
PER CURIAM.
1
On October 4, 1964, a murder by stabbing took place in an elevator of an apartment building where petitioner Morales' mother lived and where Morales frequently visited. On October 13, his mother informed Morales by telephone that the police wished to talk with him; petitioner said that he would come that evening to his mother's place of business. This he did. He was apprehended by police officers and taken to the police station, arriving at 8:30 p.m. Within 15 minutes he had confessed to the crime and by 9:05 p.m. he had written and signed a statement. In response to subsequent questioning by police officers, Morales later repeated the substance of this confession. At the trial, the court held a separate hearing on the voluntariness of the confessions, found them voluntary, and admitted them over Morales' objection. Morales was convicted, the jury apparently rejecting his alibi defense that he was with his mother at the time of the murder. The Appellate Division of the New York Supreme Court affirmed without opinion. People v. Morales, 27 A.D.2d 904, 280 N.Y.S.2d 520 (1967). In the New York Court of Appeals, Morales for the first time raised a Fourth Amendment issue, claiming that there was no probable cause for his detention at the time of his confessions and that the confessions, even if voluntary, were inadmissible fruits of the illegal detention. The State asserted that the issue had not been decided below and that there had hence been no opportunity to make a record of the relevant facts; moreover, the State claimed that Morales had voluntarily surrendered himself for questioning and that in any event the voluntary confessions were the result of an independent choice by Morales such that the legality of the detention was irrelevant to the admissibility of the confessions.
2
The Court of Appeals affirmed, accepting without discussion the trial court's finding as to the voluntariness of Morales' confessions. People v. Morales, 22 N.Y.2d 55, 290 N.Y.S.2d 898, 238 N.E.2d 307 (1968). The court dealt with and rejected the Fourth Amendment claim not on the ground that there was probable cause to arrest but rather on the ground that the police conduct involved was reasonable under the circumstances of the case. Although Morales was not free to leave at the time he was apprehended and would have been restrained had he attempted to flee, the Court of Appeals stated that his detention was not a formal arrest under New York law and that had he refused to answer questions in the police station (where he was entitled to have a lawyer if he desired one) he would have been free to leave. The Court of Appeals held that the State had authority under the Fourth Amendment to conduct brief custodial interrogation of 'those persons reasonably suspected of possessing knowledge of the crime under investigation in circumstances involving crimes presenting a high degree of public concern affecting the public safety.' 22 N.Y.2d at 65, 290 N.Y.S.2d at 907, 238 N.E.2d at 314. We granted certiorari, 394 U.S. 972, 89 S.Ct. 1472, 22 L.Ed.2d 752 (1969).
3
After considering the full record, we do not disturb the determination of the trial court, affirmed by the New York appellate courts, that Morales' confessions were voluntarily given. The trial occurred prior to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the totality of the circumstances surrounding the confessions shows that the confessions were voluntary, not coerced.
4
We should not, however, decide on the record before us whether Morales' conviction should otherwise be affirmed. The ruling below, that the State may detain for custodial questioning on less than probable cause for a traditional arrest, is manifestly important, goes beyond our subsequent decisions in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 1912, 20 L.Ed.2d 917 (1968), and is claimed by petitioner to be at odds with Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). But we have concluded after considering the parties' briefs and and hearing oral argument that there is merit in the State's position that the record does not permit a satisfactory evaluation of the facts surrounding the apprehension and detention of Morales. A lengthy hearing was held on the question of the voluntariness of the confessions, but the basis for the apprehension of Morales does not appear to have been fully explored since no challenge to the lawfulness of the apprehension was raised until the case came to the Court of Appeals. Although that court stated that '(i)t may be conceded that the apprehending detectives did not have probable cause to justify an arrest of defendant at the time they took him into custody,' 22 N.Y.2d, at 58, 290 N.Y.S.2d, at 902, 238 N.E.2d, at 310, the court later said that '(t)he checkerboard square of the police investigation, although resting upon circumstantial evidence, pointed only to defendant. * * * In fact, defendant was the only person the police could have reasonably detained for questioning based upon the instant record.' 22 N.Y.2d, at 64, 290 N.Y.S.2d, at 907, 238 N.E.2d, at 313.
5
Given an opportunity to develop in an evidentiary hearing the circumstances leading to the detention of Morales and his confessions, the State may be able to show that there was probable cause for an arrest or that Morales' confrontation with the police was voluntarily undertaken by him or that the confessions were not the product of illegal detention. In any event, in the absence of a record that squarely and necessarily presents the issue and fully illuminates the factual context in which the question arises, we choose not to grapple with the question of the legality of custodial questioning on less than probable cause for a full-fledged arrest.
6
We accordingly vacate the judgment below and remand the case for further proceedings not inconsistent with this opinion.
7
It is so ordered.
8
Judgment vacated and case remanded.
9
Mr. Justice BLACK dissents and would affirm.
| 01
|
396 U.S. 107
90 S.Ct. 312
24 L.Ed.2d 295
James CONWAY, Petitioner,v.CALIFORNIA ADULT AUTHORITY et al.
No. 40.
Argued Nov. 12, 1969.
Decided Dec. 8, 1969.
Rehearing Denied Jan. 12, 1970.
See 396 U.S. 1030, 90 S.Ct. 544.
Charles S. Ralston, San Francisco, Cal., for petitioner.
Arlo E. Smith, San Francisco, Cal., for respondents.
PER CURIAM.
1
The petition for habeas corpus in this case, which was filed in the District Court for the Northern District of California and which was prepared by petitioner pro se, attacked the constitutionality of petitioner's confinement in the state prison system pursuant to the California Indeterminate Sentence Law.1 Petitioner recited that he was convicted in 1952 on two counts of first-degree robbery and was given consecutive sentences of not less than five years each, with no maximum prescribed by law. California law provides that where no maximum term is set, the punishment shall be life imprisonment subject to the power of the California Adult Authority to 'determine and redetermine' the length of time that a prisoner shall be required to serve. Cal.Penal Code §§ 671 (1955), 1168, 3020 (1956).
2
Petitioner asserted that in June 1961 he appeared before the Adult Authority for parole consideration, as he had done on a yearly basis during his confinement. According to petitioner, during that appearance the members of the Authority evinced an intention to extend his term beyond March 1962, the date that had been tentatively set for his discharge, solely because petitioner refused to admit his guilt.2 Shortly after the appearance, the Adult Authority rescinded its earlier action scheduling petitioner for release in 1962; no new date for release was fixed, and petitioner has remained in custody continuously since that time.
3
The petition for habeas corpus stated flatly that the appearance before the Authority in June 1961 was for routine parole consideration; petitioner claimed that he had been free from infractions of prison rules for at least a year prior to the appearance. He further declared that he was given no reason for the redetermination of his sentence, and received no notice or hearing concerning any possible basis for such action. In conclusion, petitioner stated that, 'obviously, the only reason for this action was to coerce petitioner to plead guilty and not challenge his conviction after being released on discharge.'
4
Respondents filed no response to the petition in the District Court. That court denied the writ without a hearing, in a brief order stating that no federal questions had been presented. The Court of Appeals for the Ninth Circuit denied a certificate of probable cause to appeal for the reasons expressed by the District Court, and petitioner applied to this Court for a writ of certiorari. On the facts recited by petitioner, we granted certiorari to consider his contention that his privilege against compulsory self-incrimination had been infringed by the prison authorities. 393 U.S. 1062, 89 S.Ct. 720, 21 L.Ed.2d 705 (1969).
5
In its brief on the merits, respondents have brought to our attention a series of prison documents, whose accuracy has in no way been drawn into question by petitioner, that cast petitioner's detention in a light wholly different from that shed by his petition for certiorari. These documents show that in December 1960 Conway was served with a notice charging him with violation of prison rules and informing him that the violation might result in a refixing of his prison term; he attended a hearing at which he was found guilty of fighting with another prisoner and was sentenced to three days in isolation, with a recommendation that his Adult Authority appearance be postponed until June 1961. Following that appearance, as petitioner notes, the Authority rescinded its earlier action fixing a determinate sentence, thereby reinstating by operation of law his initial indeterminate sentence. Thus, it now appears respondents have documentary evidence that the actual facts simply do not present the issue for which certiorari was granted by us.
6
That this imposition on this Court has been revealed only at this late stage seems to have been the result of the policy of the Attorney General of California, as explained in the Respondents' brief, to make no response to habeas corpus petitions of state prisoners unless the court in which a petition is filed requests a response, as for example, so respondents say, by issuing an order to show cause why the writ should not be granted. Since no response eventuated in this instance and respondents also failed to flush the problem at the certiorari stage,3 both this Court and the attorney appointed by the Court to represent petitioner here have unwittingly been placed in the unfortunate posture of addressing a situation that does not exist.
7
In this state of affairs we decline to adjudicate this case. Were we to pass upon the purely artificial and hypothetical issue tendered by the petition for certiorari we would not only in effect be rendering an advisory opinion but also lending ourselves to an unjustifiable intrusion upon the time of this Court. Accordingly, the writ of certiorari is dismissed as improvidently granted.
8
It is so ordered.
9
Writ of certiorari dismissed.
1
See Cal.Penal Code § 1168 (1956) and provisions there listed.
2
Petitioner claimed that his discussion with the members of the Authority had turned to what he planned to do if released. When petitioner stated that he expected to go 'to Bakersfield,' one member responded: 'But that is where you got into this trouble. What are you planning to do there?' Petitioner declared, 'I'm going to fight my case,' prompting the member to ask whether petitioner had not admitted to the Authority, two years earlier, that he was guilty. After petitioner denied the previous admission, the members raised—assertedly for the first time—the possibility of extending petitioner's term.
3
In response to the petition for certiorari respondents merely locked horns with the allegations of the petition as filed, without drawing the Court's attention to the actual facts as subsequently revealed in its brief on the merits.
| 89
|
396 U.S. 119
90 S.Ct. 395
24 L.Ed.2d 303
Louis CARLOSv.NEW YORK.
No. 524.
Supreme Court of the United States
December 8, 1969
Herald Price Fahringer and Eugene Gressman, for petitioner.
On Petition for Writ of Certiorari to the Court of Appeals of New York
PER CURIAM.
1
The petition for a writ of certiorari is granted and the judgment is reversed, Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515.
2
THE CHIEF JUSTICE and Mr. Justice HARLAN are of the opinion that certiorari should be denied. However, the case having been taken for review, they would affirm the judgment of the state court upon the premises stated in Mr. Justice HARLAN's separate opinion in Roth v. United States, 354 U.S. 476, 496, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and in his dissenting opinion in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 455, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).
| 23
|
396 U.S. 64
90 S.Ct. 355
24 L.Ed.2d 264
Hugh BRYSON, Petitioner,v.UNITED STATES.
No. 35.
Argued Oct. 14, 1969.
Decided Dec. 8, 1969.
Richard Gladstein, San Francisco, Cal., for petitioner.
Francis X. Beytagh, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioner asks this Court to set aside his 1955 jury conviction under 18 U.S.C. § 10011 for having falsely and fraudulently denied affiliation with the Communist Party in an affidavit he had filed with the National Labor Relations Board, pursuant to § 9(h) of the National Labor Relations Act, as amended by the Taft-Hartley Act.2 This collateral proceeding was brought in the District Court for the Northern District of California in 1967, some 10 years after his original conviction was upheld over a variety of challenges on direct review.3 The District Court distinguished Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), and decided that § 9(h), which had been upheld in American Communications Assn. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950), could no longer be thought constitutionally valid, particularly in light of United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965). Having concluded that the Government had no right to ask the questions which petitioner answered falsely in his affidavit, the District Court ruled that petitioner's conviction under § 1001 should be 'without effect.' It therefore set aside petitioner's conviction and discharged his parole (unreported opinion).4
2
On the Government's appeal, the Ninth Circuit reversed because it found 'no significant differences' between this case and Dennis, and it therefore thought it unnecessary to consider the constitutionality of § 9(h), 403 F.2d 340 (1968). We granted certiorari, 393 U.S. 1079, 89 S.Ct. 879, 21 L.Ed.2d 771 (1969), and we now affirm.
3
* Petitioner bottoms his claim to relief on asserted constitutional deficiencies of § 9(h) of the National Labor Relations Act, enacted by Congress in 1947 out of concern that Communist Party influence on union officers created the risk of 'political strikes,' see American Communications Assn. v. Douds, 339 U.S., at 387—389, 70 S.Ct., at 678—679. Under § 9(h), a union could participate in representation proceedings conducted by the NLRB or utilize the Board's machinery to protest employer unfair labor practices only if each of the union's officers had filed a 'non-Communist' affidavit. See n. 2, supra. Petitioner filed such an affidavit in 1951, and his subsequent conviction under § 1001 was based on a jury's determination that petitioner had knowingly and willfully lied in his affidavit by denying affiliation with the Communist Party.5
4
About one year before petitioner filed the false affidavit, this Court had upheld § 9(h) after considering a variety of asserted constitutional deficiencies, American Communications Assn. v. Douds, supra. However, in 1959 Congress replaced § 9(h) with a provision that simply made it a crime for one who was or had recently been a Communist Party member to be a union officer,6 and this successor statute was subsequently held unconstitutional as a bill of attainder, United States v. Brown, supra.
5
Relying primarily on Brown, petitioner argues that § 9(h) was also a bill of attainder, prohibited by Art. I, § 9, cl. 3, of the Constitution. Petitioner also argues that the statute abridged First Amendment rights of speech, assembly, and association, and was so vague as to offend the Due Process Clause of the Fifth Amendment. We do not decide whether § 9(h)—now repealed for over 10 years—would today pass constitutional muster and whether Douds would be reaffirmed. Guided by Dennis v. United States, supra, we hold that the question of whether § 9(h) was constitutional or not is legally irrelevant to the validity of petitioner's conviction under § 1001, the general criminal provision punishing the making of fraudulent statements to the Government.
II
6
In Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), the petitioners had been convicted of a conspiracy to obtain fraudulently the services of the National Labor Relations Board by filing false affidavits in purported satisfaction of the requirements of § 9(h). Those petitioners, like the petitioner here, asked the Court to reverse douds and hold § 9(h) invalid. Deciding that "the claimed invalidity of § 9(h) would be no defense to the crime of conspiracy charged in (the) indictment," the Court refused in Dennis to 'reconsider Douds.' 384 U.S., at 867, 86 S.Ct., at 1848. The Court, drawing on United States v. Kapp, 302 U.S. 214, 58 S.Ct. 182, 82 L.Ed. 205 (1937), and Kay v. United States, 303 U.S. 1, 58 S.Ct. 468, 82 L.Ed. 607 (1938), stated:
7
'The governing principle is that a claim of unconstitutionality will not be heard to excuse a voluntary, deliverate and calculated course of fraud and deceit. One who elects such a course as a means of self-help may not escape the consequences by urging that his conduct be excused because the statute which he sought to evade is unconstitutional. This is a prosecution directed at petitioners' fraud. It is not an action to enforce the statute claimed to be unconstitutional.' 384 U.S., at 867, 86 S.Ct., at 1847.
8
We find the principle of Dennis no less applicable in the case before us. First, none of the elements of proof necessary for petitioner's conviction under § 1001 has been shown to depend on the validity of § 9(h). Petitioner suggests in this collateral proceeding that when he filed his affidavit he misunderstood the meaning of the statutory term 'affiliated,' a word which he claims is unconstitutionally vague and overbroad. But the trial court narrowly defined the term in an instruction7 later explicitly approved by this Court in Killian v. United States, 368 U.S. 231, 254—258, 82 S.Ct. 302, 314—317, 7 L.Ed.2d 256 (1961). Moreover, the jury's verdict reflects a determination that petitioner's false statement was knowingly and willfully made. This negates any claim that petitioner did not know the falsity of his statement at the time it was made, or that it was the product of an accident, honest inadvertence, or duress. Insofar as petitioner in this collateral proceeding attempts to suggest the contrary,8 he is simply trying to impeach the jury's verdict, upheld after careful review on direct appeal.
9
As another element of the offense, § 1001 requires that the false statement be made 'in any matter within the jurisdiction of any department or agency of the United States.' Petitioner argues that if § 9(h) was unconstitutional, then the affidavit requirement was not within the 'jurisdiction' of the Board, and therefore the false statement was not punishable under § 1001. Because there is a valid legislative interest in protecting the integrity of official inquiries, see United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955); United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598 (1941),9 we think the term 'jurisdiction' should not be given a narrow or technical meaning for purposes of § 1001, Ogden v. United States, 303 F. 2d 724, 742—743 (C.A.9th Cir. 1962); United States v. Adler, 380 F.2d 917, 921—922 (C.A.2d Cir. 1967). A statutory basis for an agency's request for information provides jurisdiction enough to punish fraudulent statements under § 1001.10
10
In this case, the Board received petitioner's affidavit pursuant to explicit statutory authority, which only a short time before had been upheld as constitutional in Douds. Given that under § 9(h) the Board's 'power to act on union charges (was) conditioned on filing of the necessary affidavits,' Leedom v. International Union of Mine, Mill and Smelting Workers, 352 U.S. 145, 148—149, 77 S.Ct. 154, 156, 1 L.Ed.2d 201 (1956), the Board certainly had the apparent authority, granted by statute, necessary for purposes of § 1001. Thus, we hold that irrespective of whether Douds would be reaffirmed today, petitioner made a false statement in a 'matter within the jurisdiction' of the Board.11
11
Notwithstanding the fact that the Government has proved the elements necessary for a conviction under § 1001, the petitioner would have us say that the invalidity of § 9(h) would provide a defense to his conviction. But after Dennis it cannot be thought that as a general principle of our law a citizen has a privilege to answer fraudulently a question that the Government should not have asked. Our legal system provides methods for challenging the Government's right to ask questions12—lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.
III
12
Petitioner argues, and the District Court also found, that Dennis is distinguishable, and that its teachings therefore have no relevance in this instance. The first distinction offered is that Dennis involved a conviction for conspiracy, whereas this petitioner was prosecuted under § 1001 for individually making a false statement.13 We see nothing in that fact that makes Dennis less applicable in this instance. The cases are indeed very similar in that both involve the use of false affidavits 'to circumvent the law and not to challenge it— a purported compliance with (§ 9(h) was) designed to avoid the courts, not to invoke their jurisdiction.' 384 U.S., at 865, 86 S.Ct., at 1846.
13
Petitioner also attempts to distinguish Dennis on the ground that the behavior involved in the present case was less culpable than that found punishable in Dennis, and that this petitioner, unlike the petitioners in Dennis, did not 'flout' the law for he had 'every right to believe' that he had not perjured himself. If apart from attempting to impeach the jury's verdict, see n. 8, supra, petitioner is suggesting that the principles of Dennis depend on an assessment of moral culpability beyond the jury's determination of guilt, he simply misconceives the basis of Dennis. Dennis can hardly be read as instructing courts to impose an extra punishment on a defendant found to have been dishonest by refusing to consider a constitutional argument that is legally relevant to his defense. Dennis refused to reconsider Douds because of the legal conclusion that the constitutionality of § 9(h) was not relevant to the validity of the conspiracy prosecution.
14
Petitioner finally contends that the Court should not follow Dennis because 'its strictures * * * have no relevance at all to postconviction proceedings.' Of course, federal courts have jurisdiction to consider constitutional claims on collateral review, but a substantive defense that is not legally relevant on direct review becomes no more relevant because asserted on collateral review.
The judgment of the Court of Appeals is
15
Affirmed.
16
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
17
This conviction was founded on an indictment which in the words of 18 U.S.C. § 1001 makes it a crime to file 'any false, fictitious or fraudulent statements or representations' in any matter 'within the jurisdiction' of the National Labor Relations Board. Former § 9(h) of the Labor Management Relations Act, 1947, 29 U.S.C. § 159(h) (1958 ed.), barred a union from using the services of the Board unless and until each of the union's officers had filed his affidavit that he was neither a member of nor affiliated with the Communist Party. The basic question in this proceeding under 28 U.S.C. § 2255 is whether constitutionally speaking it was 'within the jurisdiction' of the Board to require the filing of those affidavits.
18
Obviously the power of Congress to authorize prosecution for crimes of this character must rest on an interference with or obstruction of some 'lawful' function of the agency in question. See United States v. Johnson, 383 U.S. 169, 172, 86 S.Ct. 749, 751, 15 L.Ed.2d 681. Apart from constitutional problems, the question of what is 'within the jurisdiction' of an agency should be construed in a restrictive, not an expansive, way. The Court of Appeals for the Eighth Circuit so hold in Friedman v. United States, 374 F.2d 363, when it ruled that telling a falsehood to the FBI in its role as 'investigator' was not 'within the jurisdiction' of that agency in the sense of § 1001. If it were, then telling lies to agencies would carry heavier penalties than committing perjury in court. 374 F.2d at 367.
19
The words 'within the jurisdiction' must be read not only with the commonsense approach of Friedman but also in light of our constitutional regime. One of many mandates imposed on Congress by the Constitution is the prohibition against bills of attainder. Art. I, § 9.
20
It was said in American Communications Assn. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, that § 9(h) was not a bill of attainder. The opinion was by Mr. Chief Justice Vinson and it was called an 'opinion of the Court.' It was, however, a six-man Court and the ruling on the bill of attainder point was in Part VII of the opinion. Mr. Justice Frankfurter concurred in the opinion 'except as to Part VII.' Id., at 415, 70 S.Ct., at 692. Mr. Justice Jackson concurred in part and dissented in part. Id., at 422, 70 S.Ct., at 696. Section 9(h) was vulnerable in his view because it proscribed opinion or belief which had not manifested itself 'in any overt act.' Id., at 436, 70 S.Ct., at 703. He siad:
21
'Attempts of the courts to fathom modern political meditations of an accused would be as futile and mischievous as the efforts in the infamous heresy trials of old to fathom religious beliefs.' Id., at 437, 70 S.Ct., at 703.
22
'(E)fforts to weed erroneous beliefs from the minds of men have always been supported by the argument which the Court invokes today, that beliefs are springs to action, that evil thoughts tend to become forbidden deeds. Probably so. But if power to forbid acts includes power to forbid contemplating them, then the power of government over beliefs is as unlimited as its power over conduct and the way is open to force disclosure of attitudes on all manner of social, economic, moral and political issues.' Id., at 438, 70 S.Ct., at 703.
23
From this opinion I conclude that Mr. Justice Jackson did not reach the bill of attainder point in Mr. Chief Justice Vinson's opinion. And Mr. Justice Black dissented. Id., at 445, 70 S.Ct., at 707.
24
So I conclude that no more than three members of the Court (Vinson, C.J., and Reed and Burton, JJ.) ever held that § 9(h) was constitutional against the challenge that it was a bill of attainder.
25
In United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484, we held that the successor of § 9(h), § 504 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 504, was a bill of attainder. It made it a crime for a member of the Communist Party to serve as an officer or employee (except in clerical or custodial positions) of a labor union. The Vinson opinion in Douds upheld § 9(h) on the basis that it was 'intended to prevent future action rather than to punish past action.' 339 U.S., at 414, 70 S.Ct., at 692. In Brown, it was likewise argued that the statute there involved was 'preventive rather than retributive in purpose.' 381 U.S., at 457, 85 S.Ct., at 1719. That view was rejected. The question, we said, was whether § 504 inflicted 'punishment' which, we pointed out, 'serves several purposes; retributive, rehabilitative, deterrent and preventive.' Id., at 458, 85 S.Ct., at 1720. The dissenters Mr. Justice Clark, Mr. Justice Harlan, Mr. Justice Stewart, and Mr. Justice White—concluded that Douds was 'obviously overruled.' Id., at 464—465, 85 S.Ct., at 1723. Whatever may be said technically about any remaining vitality of the Douds case, it obviously belongs to a discredited regime, though, like Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, it has never been officially overruled.
26
The rule invoked by the Court to deny petitioner the opportunity to challenge that bill of attainder in this proceeding is, as stated by Mr. Justice Black in his separate opinion in Dennis v. United States, 384 U.S., 855, 878, 86 S.Ct. 1840, 1853, 16 L.Ed.2d 973, 'a new court-made doctrine.' As he pointed out in that opinion, the prior decision of this Court relied on to deny the defense of unconstitutionality of a federal law were instances of false claims for benefits to which the complainant had 'no possible right whether the statute was constitutional or unconstitutional.' Ibid.
27
In this case, however, Congress installed an unconstitutional barrier to receipt of the benefits administered by the Labor Board. Since § 9(h), in light of Brown, was plainly unconstitutional, petitioner's union was entitled to those services without the filing of any affidavit. Therefore, unlike prior cases, the United States had been deprived of nothing and defrauded of nothing by the filing of any affidavit or other form of claim.
28
I would reverse the judgment below.
1
Title 18 U.S.C. § 1001 provides: 'Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.'
2
Until repealed in 1959, § 9(h) of the Taft-Hartley Act, 61 Stat. 146, provided that no labor organization could draw upon the jurisdiction of the National Labor Relations Board unless each officer of such organization had filed with the Board an affidavit stating 'that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods. The provisions of (§§ 286, 287, 1001, 1022, and 1023 of Title 18) shall be applicable in respect to such affidavits.'
3
See Bryson v. United States, 238 F.2d 657 (C.A.9th Cir. 1956), rehearing denied, 243 F.2d 837, cert. denied, 355 U.S. 817, 78 S.Ct. 20, 2 L.Ed.2d 34 (1957). After direct review, but before initiating this proceeding, petitioner's application for reduction of sentence was rejected, Bryson v. United States, 265 F.2d 9 (C.A.9th Cir.), cert. denied, 360 U.S. 919, 79 S.Ct. 1437, 3 L.Ed.2d 1535 (1959).
4
After his conviction, petitioner had been sentenced to five years' imprisonment and a $10,000 fine. He had served almost two years of his sentence before being paroled in December 1959. Because only $2,000 of his fine had been paid, however, petitioner had not yet been discharged from his parole status when he commenced the present proceedings in 1967.
5
The jury acquitted petitioner of the separate charge that he had fraudulently denied that he was a 'member' of the Communist Party.
6
Section 504, Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 536, 29 U.S.C. § 504.
7
The instructions of the court on affiliation were:
'The verb 'affiliated,' as used in the Second Count of the indictment, means a relationship short of and less than membership in the Communist Party, but more than that of mere sympathy for the aims and objectives of the Communist Party.
'A person may be found to be 'affiliated' with an organization, even though not a member, when there is shown to be a close working alliance or association between him and the organization, together with a mutual understanding or recognition that the organization can rely and depend upon him to cooperate with it, and to work for its benefit, for an indefinite future period upon a fairly permanent basis.
'Briefly stated, affiliation as charged in the Second Count of the indictment, means a relationship which is equivalent or equal to that of membership in all but name.
'I tried to think of some analogy which would make that possibly clearer to you, and the best one I can think of—we have all in our experience probably heard of a man and woman who live together but are not married. They are husband and wife in everything but name only. You have probably heard that expression. A person to be affiliated with the Communist Party within the meaning of that term as used in the Second Count of the indictment must be a member in every sense and stand in the relationship of a member in every sense but that of the mere technicality of being a member,—in everthing but name.' Bryson v. United States, 238 F.2d, at 664 n. 8.
8
Petitioner claims that he did not know that his relationship with the Communist Party amounted to affiliation, and that he signed the affidavit submitted to the Board after counsel had advised him that he was not at the time 'affiliated.' This is apparently the same claim he made in an affidavit prepared in connection with his motion to reduce his sentence. At his trial, however, petitioner did not take the stand, and his unproved allegations are not even found in the record upon which the jury found him guilty.
9
In concluding that the Board had no jurisdiction for purposes of § 1001, the District Court reasoned that if § 9(h) were unconstitutional, the Board was not performing one of its 'authorized functions,' a phrase taken from United States v. Gilliland, 312 U.S., at 93, 61 S.Ct., at 522. By taking Gilliland's unelaborated reference to 'authorized functions' out of context, the District Court gave that phrase a meaning both unsupported by the holding and inconsistent with the spirit of that decision. The holding of Gilliland that there need be no 'pecuniary * * * loss to the government' in order to punish fraudulent behavior was based on the Court's concern that the statute be given a broad reading in order to protect the Government 'from the perversion which might result from the deceptive practices described,' ibid.
10
We do not read previous decision of this Court, in contexts other than prosecutions under § 1001, e.g., Williamson v. United States, 207 U.S. 425, 453—462, 288 S.Ct. 163, 173—177, 52 L.Ed. 278 (1908); United States v. George, 228 U.S. 14, 33 S.Ct. 412, 57 L.Ed. 712 (1913); Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943); Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826 (1949), as inconsistent with this conclusion. Petitioner has cited no cases of this Court, and we know of none, in which there existed statutory authority to require a statement but the Court nevertheless held that a prosecution for a false answer could not be maintained because the statute was later determined invalid. Friedman v. United States, 374 F.2d 363 (C.A.8th Cir. 1967), cited by the dissent, held that a false and fraudulent statement willfully and knowingly given to the FBI in order 'to initiate a federal prosecution under the Civil Rigts Laws' was not in any "matter within the jurisdiction of any department or agency" for purposes of § 1001 because the FBI 'had no power to adjudicate rights, establish binding regulations, compel the action or finally dispose of the problem giving rise to the inquiry.' Id., at 365, 368. We have no occasion in the present context either to approve or disapprove Friedman's holding.
11
We have no need to decide in this case whether jurisdiction would exist under § 1001 if at the time the request for information was made a court had already authoritatively determined that the statutory basis was invalid. Cf. United States v. Kapp, supra.
12
For two examples of how the constitutional validity of § 9(h) could be raised, see American Communications Assn. v. Douds, 339 U.S., at 385—387, 70 S.Ct. at 677—678.
13
In support of the contention that Dennis was meant to apply only to conspiracy charges and not simply to § 1001 violations, both the District Court and petitioner here quote the language in Dennis to the effect that: 'It is the entire conspiracy, and not merely the filing of false affidavits, which is the gravamen of the charge.' 384 U.S., at 860, 86 S.Ct., at 1844. That language, however, was addressed to the threshold question that the Court faced in Dennis, namely, whether the facts alleged in the indictment were sufficient to warrant a conspiracy charge, which requires elements additional to those necessary for a violation of § 1001.
| 23
|
396 U.S. 57
90 S.Ct. 305
24 L.Ed.2d 258
ANDERSON'S-BLACK ROCK, INC., Petitioner,v.PAVEMENT SALVAGE CO., Inc.
No. 45.
Argued Nov. 10, 1969.
Decided Dec. 8, 1969.
Alan W. Borst, New York City, for petitioner.
Walter J. Blenko, Jr., Pittsburgh, Pa., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Respondent brought this action against petitioner for infringement of United States Patent No. 3,055,280 covering 'Means for Treating Bituminous Pavement.' The patent was assigned to respondent by one Neville.
2
Bituminous concrete—commonly called asphalt or 'blacktop'—is often laid in strips. The first strip laid usually has cooled by the time the adjoining strip is to be laid, creating what is known as a cold joint. Because bituminous concrete is pliable and capable of being shaped only at temperatures of 250 to 290 F., the cold joint results in a poor bonding between the strips. Water and dirt enter between the strips, causing deterioration of the pavement.
3
Respondent's patent sought to solve the problem of the cold joint by combining on one chassis (1) a radiant-heat burner for heating the exposed edge of the cold strip of pavement; (2) a spreader for placing bituminous material against that strip; and (3) a tamper and screed, for shaping the newly placed material to the desired contour and surface.
4
The standard paving machine in use prior to respondent's claimed invention combined on one chassis the equipment for spreading and shaping the asphalt, and it is unquestioned that this combination alone does not result in a patentable invention. Petitioner's alleged infringement resulted from its placing of a radiant-heat burner on the front of a standard paving machine, thus allowing its machine to perform the same functions with the same basic elements as those described in respondent's patent.
5
The use of a radiant-heat burner in working asphalt pavement dates back to a patent issued in 1905 to one Morcom, United States Patent No. 799,014. The value of such a heater lies in the fact that it softens the asphalt without burning the surface. The radiant-heat burner on respondent's claimed invention is essentially the same as that disclosed in a patent issued in 1956 to one Schwank, United States Patent No. 2,775,294. Thus the burner, by itself, is also not patentable.
6
The placement of the radiant-heat burner upon the side of a standard bituminous paver is the central feature of respondent's patent. The heater is used in this way for continuous paving along a strip to prevent a cold joint, whereas previously radiant-heat burners had been used merely for patching limited areas of asphalt. The operation of the heater is, however, in no way dependent on the operation of the other equipment on the paving machine. It is hung on the paver merely because that is a convenient place for it when heating the longitudinal joint of the pavement. A separate heater can also be used in conjunction with a standard paving machine to eliminate the cold joint, and in fact is so used for heating the transverse joints of the pavement.
7
Respondent claims that its patent involves a combination of prior art which produces the new and useful result of eliminating the cold joint. Its claim of unobviousness is based largely on the testimony of two individuals who are knowledgeable in the field of asphalt paving, expressing their doubts to the inventor Neville that radiant heat would solve the problem of cold joints. The District Court rejected respondent's claim of infringement, finding the patent invalid. The Court of Appeals, by a divided vote, reversed. For reasons that follow, we reverse the judgment of the Court of Appeals.
8
Each of the elements combined in the patent was known in the prior art. It is urged that the distinctive feature of the patent was the element of a radiant-heat burner. But it seems to be conceded that the burner, by itself, was not patentable. And so we reach the question whether the combination of the old elements created a valid combination patent.
9
The District Court said: 'All that plaintiff (respondent) has done is to construct four elements known in the prior art on one chassis.' That is relevant to commercial success, not to invention. The experts tendered by respondent testified that they had been doubtful that radiant heat would solve the problem of the cold joint.1 But radiant heat was old in the art. The question of invention must turn on whether the combination supplied the key requirement. We conclude that the combination was reasonably obvious to one with ordinary skill in the art.
10
There is uncontested evidence that the presence of the radiant-heat burner in the same machine with the other elements is not critical or essential to the functioning of the radiant-heat burner in curing the problem of the cold joint. For it appears that a radiant-heat burner operating in a tandem fashion would work as well. The combination of putting the burner together with the other elements in one machine, though perhaps a matter of great convenience, did not produce a 'new or different function,' Lincoln Engineering Co. of Illinois v. Stewart-Warner Corp., 303 U.S. 545, 549, 58 S.Ct. 662, 664, 82 L.Ed. 1008, within the test of validity of combination patents.
11
A combination of elements may result in an effect greater than the sum of the several effects taken separately. No such synergistic result is argued here. It is, however, fervently argued that the combination filled a long felt want and has enjoyed commercial success. But those matters 'without invention will not make patentability.' Great A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147, 153, 71 S.Ct. 127, 130, 95 L.Ed. 162.
12
The patent standard is basically constitutional, Article I, § 8, of the Constitution authorizing Congress '(T)o promote the Progress of * * * useful Arts' by allowing inventors monopolies for limited times. We stated in Graham v. John Deere Co., 383 U.S. 1, 6, 86 S.Ct. 684, 688, 15 L.Ed.2d 545, that under that power Congress may not 'enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must 'promote the Progress of * * * useful Arts.' This is the standard expressed in the Constitution and it may not be ignored.'
13
In this case the question of patentability of the combination turns on the meaning of 35 U.S.C. § 1032 which the Court reviewed in the Graham case, supra, at 13—17, 86 S.Ct. at 691—693. We said:
14
'We believe that this legislative history, as well as other sources, shows that the revision was not intended by Congress to change the general level of patentable invention. We conclude that the section was intended merely as a codification of judicial precedents embracing the Hotchkiss3 condition, with congressional directions that inquiries into the obviousness of the subject matter sought to be patented are a prerequisite to patentability.' Id., at 17, 86 S.Ct. at 693.
15
Obviousness, as an issue, is resolved as follows:
16
'Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved.' Ibid.
17
We admonished that 'strict observance' of those requirements is necessary. Id., at 18, 86 S.Ct., at 694.
18
We conclude that while the combination of old elements performed a usefulfunction,4 it added nothing to the nature and quality of the radiant-heat burner already patented. We conclude further that to those skilled in the art the use of the old elements in combination was not an invention by the obvious-nonobvious standard. Use of the radiant-heat burner in this important field marked a successful venture. But as noted, more than that is needed for invention.
19
Reversed.
20
THE CHIEF JUSTICE took no part in the decision of this case.
1
Mr. Francis C. Witkoski, an engineer, met the inventor, Charles Neville, between 1955 and 1960 while Witkoski was Director of Research for the Pennsylvania Department of Highways. Neville told Witkoski that he had invented a piece of equipment that would heat but not burn asphalt, and would thus eliminate cold joints. Witkoski replied that he did not believe that Neville had such a piece of equipment. Subsequently, Witkoski ordered from Neville some of the separate burner units and tested them. Thus the dialogue between Witkoski and Neville focused exclusively on the properties of the radiant-heat burner.
Mr. Leslie B. Crowley, also an engineer, met Neville prior to 1954. Crowley was at that time the Chief of the Pavements and Railroads Section, Director of Installations, Headquarters, United States Air Force. Neville explained the advantages of using an 'infra-red' heater for the maintenance and repair of asphalt pavements. Crowley testified that his interest was insufficient at that time to motivate him to take any action with regard to the device because he did not believe it would 'do the job.' Thus the Crowley-Neville discussion also focused entirely on the radiant-heat burner, and not on the combination of the burner with the other elements of a bituminous paver.
2
35 U.S.C. § 103 provides:
'A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.'
3
Hotchkiss v. Greenwood, 11 How. 248, 13 L.Ed. 683.
4
35 U.S.C. § 101 provides:
'Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.'
Absent here is the element 'new.' For as we have said, the combination patent added nothing to the inherent characteristics or function of the radiant-heat burner.
| 78
|
396 U.S. 168
90 S.Ct. 314
24 L.Ed.2d 345
Frederick T. ZUBER et al., Petitioners,v.Russell ALLEN et al. Clifford M. HARDIN, Secretary of Agriculture, Petitioner, v. Russell ALLEN et al.
Nos. 25, 52.
Argued Oct. 16, 1969.
Decided Dec. 9, 1969.
[Syllabus from pages 168-170 intentionally omitted]
Daniel M. Friedman and Lawrence D. Hollman, Washington, D.C., for petitioners.
Charles Patrick Ryan, Washington, D.C., for respondents.
Edwin H. Amidon, Jr., Boston, Mass., for State of Vermont, as amicus curiae.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This action was brought by respondent Vermont dairy farmers, 'country' milk producers, seeking a judgment invalidating as contrary to the Agricultural Marketing Agreement Act of 1937, as amended, 50 Stat. 246, 7 U.S.C. § 601 et seq. (1964 ed. and Supp. IV) the so-called farm location differential provided for by order of the Secretary of Agriculture.1 The effect of that order is to require milk distributors to pay to milk producers situated at certain distances from milk marketing areas, 'nearby' farmers, higher prices than are paid to producers located at greater distances from such areas. The District Court issued a preliminary injunction on January 16, 1967, against further payments and on respondents' motion for summary judgment transformed its decree into a permanent injunction on June 15, 1967. The Court of Appeals for the District of Columbia Circuit affirmed. 131 U.S.App.D.C. 109, 402 F.2d 660 (1968). We granted certiorari to resolve the important issue of statutory construction involved in this aspect of the administration of the federal milk regulation program. 394 U.S. 958, 89 S.Ct. 1302, 22 L.Ed.2d 559 (1969).
2
* BACKGROUND
3
Once again this Court must traverse the labyrinth of the federal milk marketing regulation provisions.2 While previous decisions have outlined the operation of the statute and the pertinent regulations, a brief odyssey through the economic and regulatory background is essential perspective for focusing the issue now before the Court.
A. THE ECONOMICS OF THE MILK INDUSTRY
4
The two distinctive and essential phenomena of the milk industry are a basic two-price structure that permits a higher return for the same product, depending on its ultimate use, and the cyclical characteristic of production.
5
Milk has essentially two end uses: as a fluid staple of daily consumer diet, and as an ingredient in manufactured dairy products such as butter and cheese. Milk used in the consumer market has traditionally commanded a premium price, even though it is of no higher quality than milk used for manufacture. While cost differences account for part of the discrepancy in price, they do not explain the entire gap. At the same time the milk industry is characterized by periods of seasonal overproduction. The winter months are low in yield and conversely the summer months are fertile. In order to meet fluid demand which is relatively constant, sufficiently large herds must be maintained to supply winter needs. The result is oversupply in the more fruitful months. The historical tendency prior to regulation was for milk distributors, 'handlers,' to take advantage of this surplus to obtain bargains during glut periods. Milk can be obtained from distant sources and handlers can afford to absorb transportation costs and still pay more to outlying farmers whose traditional outlet is the manufacturing market.3 To maintain income farmers increase production and the disequilibrium snowballs.
6
To protect against market vicissitudes, farmers in the early 1920's formed co-operatives. These cooperatives were effective in eliminating the self- defeating overproduction by pooling the milk supply and refusing to deal with handlers except on a collective basis.4 During the 1920's era of relative market stability the nearby farmers enjoyed premium prices for their product. These favorable prices were apparently attributable to reduced transportation costs and also the nearby farmer's historic position as a fluid supplier.5
B. THE FIRST FEDERAL PROGRAM
7
The drop in commodity prices during the depression years destroyed the equilibrium of the 1920's and utter chaos ensued. Congress, in an effort to restore order to the market and boost the purchasing power of farmers, enacted the licensing provisions of the Agricultural Adjustment Act, 48 Stat. 31, 35. Under § 8(3) the Secretary of Agriculture was empowered
8
'(t)o issue licenses permitting processors, associations of producers, and other to engage in the handling, in the current of interstate or foreign commerce, of any agricultural commodity or product thereof, or any competing commodity or product thereof. Such licenses shall be subject to such terms and conditions, not in conflict with existing Acts of Congress or regulations pursuant thereto, as may be necessary to eliminate unfair practices or charges that prevent or tend to prevent the effectuation of the declared policy and the restoration of normal economic conditions in the marketing of such commodities or products and the financing thereof. The Secretary of Agriculture may suspend or revoke any such license, after due notice and opportunity for hearing, for violations of the terms or conditions thereof. * * *'
9
Under the licensing system base-rating plans not unlike the private arrangements that obtained in the 1920's were adopted.6 Producers were assigned bases which fixed the percent of their output that they would be permitted to sell at the Class I price that was paid for fluid milk.7 The viability of the licensing scheme was jeopardized, however, by judicial decisions disapproving a similarly broad delegation of power under the National Industrial Recovery Act provisions, 48 Stat. 195. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935). With its agricultural marketing program resting on quicksand, Congress moved swiftly to eliminate the defect of overbroad delegation and to shore up the void in the agricultural marketing provisions. Section 8(3) of the 1933 Act was amended in 1935 and the pertinent language has been carried forward without significant change into § 8c of the present Act. Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, as amended, 7 U.S.C. § 608c (1964 ed. and Supp. IV).8
C. THE PRESENT REGULATORY SCHEME
10
The present system, which differs little in substance from the shceme conceived in 1937 for regulating the Boston market,9 provides for a uniform market price payable to all producers by all handlers.10 Prices are established for Class I and Class II uses. The total volume of milk channeled into the market in each category is multiplied by the appropriate coefficient price and the two results are totaled and then divided by the total number of pounds sold. The result represents the average value of milk sold in the marketing area and is the basic 'uniform' price. Were all producers to receive this price they would share on an equal basis the profits of Class I marketing and assume equally the costs of disposting of the economic surplus in the Class II market. The actual price to the producer is, however, the 'blended' price which is computed by adding and subtracting certain special differentials provided for by statute and order. See 7 CFR § 1001.64 (1969). The deduction for differential payments withheld for the benefit of nearby producers reduces the uniform 'blended' price to those producers ineligible to collect this particular adjustment.11 The provision is contained in § 1001.72 of the order and provides:
11
'In making the payments to producers * * * each handler shall add any applicable farm location differential specified in this section.
12
'(a) With respect to milk received from a producer whose farm is located within any of the places specified in this paragraph, the differential shall be 46 cents per hundredweight, unless the addition of 46 cents gives a result greater than the Class I price determined under §§ 1001.60, 1001.62, and 1001.63 which is effective at the plant at which the milk is received. In that event there shall be added a rate which will produce that price.'
13
A differential of 23¢ is provided for deliveries from farms in intermediate nearby zones. § 1001.72(b).
14
The foregoing provisions appear in the so-called 1964 Massachusetts-Rhode Island Order, which consolidated into one region the four sub-markets which were previously regulated separately under the so-called four 'New England' orders: the 1951 Boston order which carried forward the order adopted for the Boston area in 1937; the Springfield order promulgated in 1949; and the Southeastern New England order of 1958. Each order included a provision for a nearby differential payment to farmers within a stated radius of a designated market center. For example the differential under the Boston order was payable to farmers located within a 40-mile radius of the State House in Boston; a slightly lower differential was paid to farmers within an 80-mile radius. Under the 1964 order there is no central point for the computation of the radius for payment of the differential; the Secretary has retained the differential provisions as they appeared in the previous four orders. Farmers who would have been entitled to the differential under any one of the previous four marketing regulations continue to receive those payments under the present order. These nearby farmers are eligible for the differential on any shipments within the New England Marketing area, even though their milk may actually be used outside the radius of their particular nearby zone.
II
THE STATUTORY SCHEME
15
The foundation of the statutory scheme is to provide uniform prices to all producers in the marketing area, subject only to specifically enumerated adjustments. The question before the Court, stated most simply, is whether payment of farm location differentials, set forth above, is a permissible adjustment under § 8c(5)(B) to the general requirement of uniformity of price.12
16
The Secretary has in the past labeled the 'nearby' differential a 'location' differential and defended its inclusion in his orders on that ground. The justification and argument are now, however, pitched in a different key. The Government has apparently abandoned all but one of the numerous theories advanced below, and pressed most vigorously in the Blair v. Freeman litigation (125 U.S.App.D.C. 207, 370 F.2d 229 (1966)), and it now stresses the provision in § 8c(5)(B) for 'volume, market, and production differentials customarily applied by the handlers subject to such order.'
17
While the proper resolution of the issue is by no means self-evident, we are persuaded that 'market * * * differentials customarily applied' contemplates cost adjustments. The plain thrust of the federal statute was to remove ruinous and self-defeating competition among the producers and permit all farmers to share the benefits of fluid milk profits according to the value of goods produced and services rendered. The Government's proposed reading of the Act, bottomed, as it is, on the historical payment of a premium to nearby farmers during the monopolistic era of the cooperative pools, would come to perpetuate economic distortion and freeze the milk industry into the competitive structure that prevailed during the 1920's.
18
Without the benefit of government muscle to eliminate crippling price warfare in the summer months, neither nearby nor country producers could share in the monopoly-type profits that accrue from fluid milk sales. Absent regulation only the handlers, if anyone, would stand to benefit from the 'fluid' monopoly. While we cannot project what would be the case today if a free market prevailed, we might well anticipate that the nearby producers' winter advantages would be negligible in view of reduced transportation costs and more reliable refrigeration. Thus even in winter handlers might be free to play nearby and outlying farmers against each other since handlers would be free of the leverage exercised by the nearby cooperatives during the 1920's. Nearby producers now seek the best of both worlds. Having achieved the security that comes with regulation, they seek under a regulatory umbrella to appropriate monopoly profits that were never secure in the unregulated market.
19
We are reluctant to attribute such intent to Congress and, simply in the name of administrative expertise, to follow a path not marked by the language of the statute. Indeed, such signposts as may be discerned from the legislative history point in a very different direction. The legislative history strongly suggests that 'market differentials,' as well as all the other differentials, contemplated particular understood economic adjustments. The House Report, in discussing the allowable adjustments characterizes the market differential as a payment over and above the transportation costs, i.e., a location differential, for delivery to the primary market.13 Thus farmers would share with handlers the savings from by-passing country-station processing and handling the milk only at the city plant.
20
The significance of the legislative history emerges upon study of the subsequent administrative practice. The original Boston order obscures the market differential payment by providing in place of a labeled adjustment a two-price structure which allowed an additional 18¢ per cwt. for city-delivered milk over and above the costs of transporting the milk from the country plant. However, the testimony of Mr. Aplin for the Market Administrator erases any doubt that those responsible for administering the Act fully understood the meaning of the Committee's explanation of market differential.14
21
Subsequent orders have combined the country station handling adjustment, properly the market differential, and the location-transportation differential into the so-called zone differential.15
22
The statute before us does not contain a mandate phrased in broad and permissive terms. Congress has spoken with particularity and provided specifically enumerated differentials, which negatives the conclusion that it was thinking only in terms of historical considerations. The prefatory discussion in the House Report emphasizes the congressional purpose to confine the boundaries of the Secretary's delegated authority.16 In these circumstances an administrator does not have 'broad dispensing power.' See Addison v. Holly Hill Fruit Products Co., 322 U.S. 607, 617, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488, 153 A.L.R. 1007 (1944). The congressional purpose is further illumined by the character of the other statutory differentials for 'volume,' 'grade or quality,' 'location,' and 'production,'17 all of which compensate or reward the producer for providing an economic service of benefit to the handler.18
23
The general language of the committee report indicating that Congress intended to carry forward the basic regulatory approach adopted under the 1933 Act, following the precedent of the 1920's, is stressed by the dissent to this opinion. This committee language, it is argued, reinforces the continuity connotations of the 'customarily applied' language, a thrust that is not blunted by any specific language indicating a legislative purpose to treat all farmers equally.
24
Legislative silence is a poor beacon to follow in discerning the proper statutory route. For here the light illumines two different roads. If nearby payments had the notoriety and significance in the milk distribution industry attributed to them by the dissent, Congress could have given its blessing by carving out another specific exception to the uniform price requirement. In an Act whose very purpose was to avoid the infirmity of overbroad delegation and to set forth with particularity the details for a comprehensive regulatory scheme, it would have been a simple matter to include in a list of enumerated differentials, 'nearby' payments, or at least allude to them in the report of the draftsmen. It is clear that Congress was not conferring untrammeled discretion on the Secretary and authorizing him to proceed in a vacuum. This was the very evil condemned by the courts that the 1935 amendments sought to eradicate.19 It would be perverse to assume that congressional drafters, in eliminating ambiguity from the old Act,20 were careless in listing their exceptions and selecting the illustrations from the committee report from which their words would ultimately derive content.21
25
We consider our conclusions in no way undermined by the colloquy on the floor between Senator Copeland and Senator Murphy upon which the dissent places such emphasis. A committee report represents the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation. Floor debates reflect at best the understanding of individual Congressmen. It would take extensive and thoughtful debate to detract from the plain thrust of a committee report in this instance. There is no indication, however, that the question of nearby differentials and the meaning of 'market * * * differentials customarily applied' were precisely considered in the floor dialogue. The exchange is not only brief but also inconclusive as to meaning.22 Indeed, Senator Murphy apparently acquiesced in Senator Copeland's implied criticism of the statute for providing uniform prices for distant and nearby producers within the marketing region. When Senator Copeland pursued his inquiry, asking whether the Act recognized the higher cost for taxes on nearby lands, Senator Murphy merely recited the differential provisions of the Act and suggested that they 'adopt the present practice of business,' but conspicuously lacking is an affirmative statement that any specific differential covered these costs. This is not impressive legislative history especially in light of Senator Murphy's earlier agreement with Senator Copeland's statement that '(t)he provisions of the equalization * * * provide that a producer who is producing his milk on farms near to cities would receive the same price for his product as a farmer who produces his milk, say, 40 or 50 miles away from the same community,' and the specific business illustrations of the House Report.
III.
SCOPE OF MARKET DIFFERENTIAL
26
While market differentials customarily applied need not be restricted to the sole illustration in the House Report, that illustration, taken in conjunction with the discussion of all the statutory differentials, suggests that the permissible adjustments are limited to compensation for rendering an economic service.23 The challenged nearby differentials do not fall into this category.24
27
Nor has the Secretary advanced any economic justification for these differential payments. It is plain from the administrative record that the nearby differential was included in the original Boston order as a recognition of the favored position of nearby producers in the fluid market and as an inducement to nearby farmers to approve the Secretary's order. (J.A. 23725.) The only sense in which the handler may be said to gain economically is by virtue of the elimination of the nearby producer as a potential competitor. While this factor is mentioned in the findings accompanying the 1937 order, it has not been emphasized in the 1964 findings and the testimony at the 1963 hearings suggests that support in the record is indeed scant. That entry of the nearbys into the distribution market would bring unwanted competition, is irrelevant if it does not jeopardize market stability. We think the analysis of the court below was correct: if there is any economic benefit here, producers should receive their compensation directly from the handlers and not out of the marketwide pool. 131 U.S.App.D.C., at 114, 402 F.2d, at 665.
28
While petitioner nearby farmers do not concede so readily the absence of economic foundation for the differential, no justifications are advanced that find any substantial support in the record. The allusion to the evenness of production on nearby farms would not justify the exclusive payment of this differential to nearby farmers. If the Secretary intended a production differential, all producers who qualify would be eligible. Some amici and petitioners point to higher taxes on nearby lands and opportunity costs as reason for retaining the differential. These are, admittedly, additional costs of nearby production, but they are of no concern to handlers who seek only to obtain reliably milk at the cheapest price. See Kessel, Economic Effects of Federal Regulation of Milk Markets, 10 J.Law & Econ. 51 (1967). This Court has been slow to attribute to Congress an intent to compensate for inefficient allocation of economic resources. Cf. West Ohio Gas Co. v. Public Utilities Comm'n, 294 U.S. 63, 72, 55 S.Ct. 316, 321, 79 L.Ed. 761 (1935). While petitioners argue that the differential is a necessary inducement to keep the nearby farmers in business, the record does not reveal that the Secretary acted out of concern that the nearby farmers would quit the market, nor is there any evidence demonstrating the present necessity for nearby producers. In an era where efficient transportation is available this may be of nominal concern. At most this may have been an unspoken consideration in 1937.26
29
Since the Secretary made no findings to that effect, the Court need not consider whether they would justify payment of the nearby differential in view of the legislative history indicating that the statute contemplates adjustments primarily for economic costs to handlers that are absorbed or reduced by the producers. Further if the representations of respondents are correct—and they are not without support in the record—it appears that the elimination of the 40-mile zone nearby differential payments of 46 , even with the suspension of the intermediate differential payments of 23¢, would result in a higher uniform price to those farmers now receiving the 23¢ differential.27
IV
PRIOR DECISIONS
30
Our holding does not represent a departure from this Court's precedents. No opinion of this Court has ever explicitly approved the nearby differential. Reliance on United States v. Rock Royal Co-op., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446 (1939), is misplaced. This Court's refusal to invalidate the payment of a nearby differential to farmers in certain counties named in the New York order must be taken in the context of that action which was initiated by the Government against handlers who refused to obey the regulations. That decision did not repudiate the District Court's finding that the provision was 'discriminatory as between producers.' Id., at 567, 59 S.Ct., at 1009, 1010. The narrow reach of our Rock Royal holding was recognized in Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733, (1944), where we noted that Rock Royal held the handlers without standing 'to object to the operation of the producer settlement fund,' id., at 308, 64 S.Ct., at 570, except as it affected handlers. The Court in Rock Royal went on to reject Rock Royal's contention that the payments placed those handlers without customers in the nearby counties at a competitive disadvantage.
31
Our attention is also drawn to the First Circuit's decision in Green Valley Creamery, Inc. v. United States, 108 F.2d 342 (1939). As in Rock Royal, supra, the parties did not have standing to raise the invalidity of the nearby differential. To the extent the First Circuit's view is contrary to our present holding, we disapprove it.
V
SIGNIFICANCE OF DEPARTMENTAL CONSTRUCTION
32
While this Court has announced that it will accord great weight to a departmental construction of its own enabling legislation, especially a contemporaneous construction, see Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Power Reactor Development Co. v. International Union of Elec., etc., 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961); it is only one input in the interpretational equation. Its impact carries most weight when the administrators participated in drafting and directly made known their views to Congress in Committee hearings. See Power Reactor Development Co. v. International Union of Elec., etc., supra; United States v. American Trucking Assns., 310 U.S. 534, 539, 60 S.Ct. 1059, 1061 1062, 84 L.Ed. 1345 (1940). In such circumstances, absent any indication that Congress differed with the responsible department, a court should resolve any ambiguity in favor of the administrative construction, if such construction enhances the general purposes and policies underlying the legislation. See American Power & Light Co. v. SEC, 329 U.S. 90, 112—114, 67 S.Ct. 133, 145—146, 91 L.Ed. 103 (1946).
33
The Court may not, however, abdicate its ultimate responsibility to construe the language employed by Congress. Those props that serve to support a disputable administrative construction are absent here. There is no suggestion in the findings, nor have the parties explained, how the present differential contributes to the broad, general purpose of eliminating crippling competition. Nor in the present case has the Court's attention been drawn to any hearings that suggest that Congress acted with the particular administrative construction before it in either 1935 or 1937. And if those administrators who participated in drafting the 1935 Act understood market differentials to encompass the farm location differential, they obviously failed to communicate their understanding to the drafters of the committee report. It is also evident that the 1937 re-enactment of the 1935 amendments was routine and did not follow a comprehensive review of the issues that had been explored in detail by the 1935 draftsmen who wrote the committee reports.28
34
It is true that a report from the Federal Trade Commission set forth the computations employed under the 1936 Boston order which apparently provided for a nearby differential.29 But the stark figures, set forth in the appendix to the report without explication, can hardly be said to have given the administrative construction the 'notoriety' that this Court found persuasive in Udall v. Tallman, 380 U.S., at 18, 85 S.Ct., at 802. In Udall the Court was impressed by the fact that the Secretary's interpretation had 'been a matter of public record and discussion.' Id., at 17, 85 S.Ct., at 802. Even despite active congressional involvement in reviewing certain administrative action in connection with particular leases, the Court noted that it would not attribute ratification to Congress. Udall v. Tallman, supra. Nor can petitioners put flesh on this argument by citing § 4 of the 1937 re-enactment, 50 Stat. 249,30 and the committee report, H.R.Rep. No. 468, 75th Cong., 1st Sess., 4 (1937), which merely states in the language of the Act that § 4 purports to ratify, legalize, and confirm all action taken pursuant to the agreement and order provisions under the 1935 statute.31
VI
RELEVANCE OF PRODUCER APPROVAL
35
Petitioners allude to the fact that the orders in question have been specifically approved by the farmers concerned as required by § 8c(9)(B)(i) and (ii) of the Act.32 While the contention is adumbrated, the argument appears to run as follows: since provision is made for approval of orders by the regulated subjects, the Secretary's discretion should be generously interpreted. If provision for such approval could ever legitimize a regulation not authorized by statute, the provision has no significance in the case before us, in light of the considerations already discussed. It is the Secretary, not the farmers, who is responsible for administering the statute and initiating orders.33
VII
PROPRIETY OF SUMMARY JUDGMENT
36
Although the Secretary does not press the point, the private petitioners argue that this Court should at the very least reverse for a trial on the merits or alternatively reverse with instructions to remand to the Secretary for further consideration.
37
This is not a case where a department has acted without a formal record. In such instances a trial might be appropriate to afford the department an opportunity to develop those facts which underpin its action. When action is taken on a record the department cannot then present testimony in court to remedy the gaps in the record, any more than arguments of counsel on review can substitute for an agency's failure to make findings or give reasons. A remand to the Secretary is inappropriate in the absence of a request by the Government. Counsel for the Department has advanced no new theory for sustaining the order. Cf. SEC v. Chenery Corp., 318 U.S. 80, 92, 63 S.Ct. 454, 461, 87 L.Ed. 626 (1943).
38
Unlike Addison v. Holly Hill Co., 322 U.S. 607, 64 S.Ct. 1215, 88 L.Ed. 1488 (1944), we do not have before us a definition in a regulation that is necessary to give meaning and content to the administrative scheme. Nor does our decision have the effect of engrafting a definition on a particular statutory term, a function that should, in the first instance, be left to the appropriate administrative body. The 1964 order, moreover, expressly provides for severance of any provision that is found invalid. See 7 CFR § 1001.96.
VIII
DISPOSITION OF THE ESCROW FUND
39
Petitioner farmers' last line of retreat is their contention that they are entitled to escrow monies that have been accruing since the District Court's entry of the order granting the respondents' motion for a preliminary injunction. The court below struck an equitable balance in awarding to petitioners, nearby farmers, all escrow monies collected prior to the entry of final judgment by the District Court. This is a fair solution, and one this Court will not disturb. Petitioners have been on notice since Blair v. Freeman, 125 U.S.App.D.C. 207, 370 F.2d 229 (1966), that nearby differentials were bottomed on a shaky statutory premise. Lest losing parties be encouraged to prolong litigation by frivolous appeals in order to reap a windfall, we think respondents deserve the fruits of their victory as of the date of final judgment at trial.
40
The judgment below is affirmed.
41
Affirmed.
42
THE CHIEF JUSTICE and Mr. Justice MARSHALL took no part in the consideration or decision of these cases.
43
Mr. Justice BLACK, with whom Mr. Justice WHITE joins, dissenting.
44
The central question in this cause is whether a provision in the Secretary of Agriculture's Boston milk market regulation which provides that farmers close to Boston will receive a higher price for their milk than farmers farther away is valid under the Agricultural Marketing Agreement Act of 1937, as amended, 50 Stat. 246, 7 U.S.C. § 601 et seq. (1964 ed. and Supp. IV). The majority concludes that this higher payment can be sustained only if it represents 'compensation for rendering an economic service,' ante, at 188, and then holds that since the Secretary has not provided such an economic justification for this payment, it is invalid. The effect of affirming the judgment below is that challenged payments which have been placed in a special fund since June 1967 and now amount to over $8,000,000 will be distributed to all farmers selling milk in the Boston market instead of only those located near Boston. This represents a drastic change in the distribution of the income from the sale of milk since only the nearby farmers have received these additional payments for at least 30 years. My study of the legislative history convinces me beyond any doubt that this result is wrong and in direct conflict with the intent of Congress as expressed in the Agricultural Marketing Agreement Act and its predecessors. In my opinion Congress intended to permit the Secretary to regulate the milk industry in accordance with the practices that had developed in that industry prior to the first federal regulation in 1933 and did not intend to eliminate the economic advantages that specific groups had enjoyed in the past. Since it is clear beyond a doubt that farmers near Boston received more for their milk than did other farmers prior to federal regulation, I would reverse the judgment below and hold this provision of the Boston milk order valid.
45
In order to understand the purpose of the 1937 Act, it is necessary to go back to the 1920's at a time prior to any federal regulation. As the majority correctly points out, the economics of the milk industry at that time often led to destructive competition and chaos. Milk producers therefore formed cooperatives for their own protection and sold milk on a collective basis. All the parties in this case agree, and the record conclusively shows, that under the cooperatives at that time farmers close to marketing centers received more for their milk than did farmers farther away. This higher price resulted from many factors, including the greater proportion of milk from nearby farms that was used for fluid purposes, the possibility that those farmers would compete with handlers by selling directly to customers, smaller seasonal variation in the volume of milk produced, and higher costs—such as taxes and land values—incurred in farming close to the cities.1 As long as economic conditions remained generally stable, the cooperatives succeeded in protecting all farmers from the dangers of overproduction and excessive competition. Then the depression set in and milk farmers, like so many other Americans, were unable to maintain stable prices by self-regulation. Congress reacted to this situation by passing the Agricultural Adjustment Act of 1933 (A.A.A.), 48 Stat. 31, under which the Secretary of Agriculture was given broad powers to regulate the farm economy through licensing. Id., § 8(3), 48 Stat. 35. Very few details or standards describing the Secretary's powers were provided in the 1933 Act, and there was no attention given to specific problems of nearby farmers in the milk industry. Under the provisions of that Act the Secretary issued a license for the Boston market in 1933 and this first license included provisions that effectively maintained the historical price advantage of producers close to Boston.2 In 1935 bills were introduced in Congress to amend the A.A.A.3 and hearings were held on those bills in February and March of that year.4 In May 1935 this Court held in Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947, that provisions of the National Industrial Recovery Act, 48 Stat. 195, were unconstitutional, in part because that Act delegated powers to an administrative agency without providing adequate standards and guidelines. The congressional committees considering the amendments immediately recognized that the Schechter decision cast considerable doubt on the validity of the A.A.A. and they therefore reported out a completely amended bill which set forth detailed descriptions of the powers and standards that the Secretary was to employ.5 As reported and passed by Congress, that bill contained specific provisions concerning the milk industry, and it is those provisions that are involved in the present case.6 The committee reports accompanying that bill make it abundantly clear that a primary purpose of the bill was to 'eliminate questions of improper delegation of legislative authority raised by the decision in Schechter * * *.'7 There is no indication that when Congress passed those amendments it intended to cut back on or limit the authority the Secretary had actually exercised in regulating milk under the 1933 Act, but rather the purpose was to avoid judicial invalidation resulting from the absence of constitutionally sufficient standards. History and the legislative record make it quite clear that Congress in 1935 was concerned, not about limiting an excessively aggressive Secretary, but about overcoming the limitations imposed by a Court that was frustrating the congressional purpose by holding laws unconstitutional. Pursuant to the 1935 Act, the Secretary issued a new order in 1936 for the Boston market which, like the 1933 order, contained provisions for additional payments to nearby farmers. In issuing this order he explicitly relied on the historical, economic factors which justified these additional payments. (J.A. 224) The effectiveness of the 1935 amendments was also jeopardized by court decisions,8 and Congress again acted by passing a new law, the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246. This statute reenacted the milk marketing provisions of the 1935 Act in substantially the same form and further provided that all market orders issued under that Act were 'expressly ratified, legalized, and confirmed.' 50 Stat. 249. Proceeding under the new Act the Secretary reinstated the 1936 Boston order including the additional payments to farmers located nearer the city, and that order and the 1937 Act have remained in substantially the same form until this time. With this general historical picture in mind, it is easier to answer the central legal question in this case which is whether the 1937 Act authorizes the Secretary of Agriculture to provide that nearby farmers will receive more for their milk than farmers farther away.
46
The Act provides that the Secretary shall establish by order certain basic prices for milk delivered by producers and allows him to adjust that basic price to reflect 'volume, market, and production differentials customarily applied by the handlers subject to such order * * *.' 7 U.S.C. § 608c(5)(B), cl. (a) (1964 ed., Supp. IV).9 The Secretary here argues that the payment of additional sums to farmers close to Boston is an authorized 'market differential.' The argument cannot be settled simply on the basis of the statutory language since there is no definition of the term 'market.' However the legislative history makes it clear beyond any doubt that this provision was designed to allow the Secretary broad leeway in regulating the milk industry in accordance with prior practices and differentials in the unregulated market. The committee reports in both Houses said that the milk order provisions in the Act were designed to 'follow the methods employed by cooperative associations of producers prior to the enactment of the Agricultural Adjustment Act and the provisions of licenses issued pursuant to the present section 8(3) of the Agricultural Adjustment Act.'10 The only discussion of these provisions during the congressional floor debates fully supports this statement. Senator Copeland, a former commissioner of health in New York City and a man well acquainted with the milk industry in New England, asked Senator Murphy, the floor manager for the bill, about the possibility that farmers near the cities would receive the same price for milk as farmers farther away. Senator Murphy's initial answer indicated this would be so, but when Senator Copeland pressed the inquiry further, stating that not all factors had been considered, Senator Murphy indicated that the provisions for specific differentials 'adopt the present practice of business.'11 To me that reply indicates that nearby differentials would be permissible, if they were part of the business practice—as they were. The majority diminishes the importance of this discussion by saying that it represents the views of only two men, not those of the committee, but anyone acquainted with the realities of the United States Senate knows that the remarks of the floor manager are taken by other Senators as reflecting the views of the committee itself. This history makes it clear that Congress did not intend to limit the authorized differentials to any specific payments, but rather intended to permit the Secretary to employ whatever practices, consistent with the history of the unregulated market, he found necessary to achieve stability in the milk industry.
47
Applying these considerations it becomes plain that the additional payments to nearby farmers are authorized as a 'differential customarily applied.' Nearby farmers had always obtained a higher price for their milk than farmers farther away and the Secretary's regulations in 1933 and 1936 reflected this historical fact. Reinstatement of the nearby differentials after passage of the 1937 Act merely continued this prior administrative practice, based on the earlier economic realities, of paying more for milk produced on farms close to Boston. Had Congress intended to eliminate this feature of the prior practice, it would have been easy to say so, but there is absolutely nothing in the statute or in the legislative history that demonstrates a desire to alter the advantage nearby farmers had always enjoyed.
48
My conclusion that this differential is authorized is buttressed by the actions of Congress and the Secretary since 1937. There has always been a healthy controversy among farmers about this differential, and extensive hearings in 1963 brought forth strong arguments against continuing it. (J.A. 360—599.) Yet Congress, even though it amended the statute in 1965, 79 Stat. 1187, still has not in any way indicated that the nearby differential was unauthorized by the 1937 Act or that it should be eliminated at this time. Similarly the Secretary has continually reviewed this provision and refused to eliminate it, the most recent time being 1964. (J.A. 346, 349.) Since Congress, in my view, intended in 1933, 1935, and 1937 to authorize payments like the nearby differential and since it has not altered this authorization in the past 32 years, I cannot agree that this Court should or properly can eliminate the payment, ostensibly through a process of statutory interpretation.
49
This interpretation is not based on a theory of legislative silence as the majority seems to imply. To me the legislative history speaks clearly in saying that Congress intended the Secretary to regulate the industry in accordance with prior practices, and the statutory language, statements in committee reports, and floor debates do not 'illumine(s) two different roads,' ante, at 185. I see only one path that is marked by the legislative record, and the only silence I perceive is the striking absence of any statements in the statute or the legislative history that support the majority's interpretation.
50
My conclusion that the location differential is authorized by the Act finds support in other judicial decisions. In United States v. Rock Royal Co-op., 307 U.S. 533, 59 S.Ct. 9993, 83 L.Ed. 1446 (1939), certain milk handlers made a broadside attack on the New York order issued under the 1937 Act. This Court rejected that challenge. One part of the argument was that the nearby differential provision of that order was invalid. This Court noted that '(t)he Act authorizes such an arrangement,' citing the provision for market differentials customarily applied. Id., at 567, 59 S.Ct. at 1010. Although that provision was promulgated under § 8c(5)(A) of the Act, the identical language supporting that conclusion is found in § 8c(5)(B), and it is that latter section which is involved in the present case. The majority attempts to distinguish that case by noting that it was a suit brought by the Government against handlers, but it is difficult to see what difference that makes. It does not matter who sues, if the Court decides an issue of statutory interpretation that decision hould remain the same even if the litigants change.12
51
The nearby differential of the Boston order involved here was also approved by the First Circuit in Green Valley Creamery, Inc. v. United States, 108 F.2d 342 (1939). The majority's dismissal of that case on the conclusion the handlers did not have standing to raise this issue is irrelevant. The First Circuit there found the differential valid and then stated that '(f)urthermore' the handlers lacked standing. Id., at 346. It does not matter to me whether the decision on the validity of the location differential is classified as dictum or a holding. The point remains that the First Circuit considered these payments and found them expressly provided for by the language of § 8c(5)(B). Ibid.
52
The majority disagrees with the interpretation of the statute set forth above and instead finds that the foundation of the portion of 1937 Act involved here was to provide uniform prices to all producers, with adjustments to that uniform price only as 'compensation for rendering an economic service.' Ante, at 188. This interpretation, as I understand it, would require the Secretary to disregard the historical price advantage nearby producers had in the sale of their milk, and to consider only whether there is a present economic justification for particular payments. I respectfully submit that this interpretation cannot be supported by the language of the Act considered as a whole or by the relevant expressions of congressional intent found in the legislative history. The theory of this Act adopted by the majority is clearly not that of Congress, but one created by the Court itself.
53
The conclusion that each of the differentials specified in the Act represents only 'compensation for rendering an economic service' finds no support whatsoever in the language of the Act or the legislative history. None of the adjustments described in the Act is defined in terms of any 'economic service.' The majority does not refer to any legislative history that indicates such a definition was intended. It may well be possible for an analyst to fit the language of the Act, the committee reports, and the floor debates into a coherent pattern of economic services, but had Congress desired to require this as a touchstone for the authorized differentials, it would have been easy for it to have said so. Congress did not choose to do so in 1933, 1935, or 1937, and it has not done so in the intervening 32 years. Moreover, if there is any pattern into which all the differentials clearly fit that is fully supported by express legislative history, it is the clear pattern of allowing the Secretary to incorporate provisions reflecting the customary practices of the milk industry itself.13
54
Even if the majority's statutory interpretation were correct, I do not understand why it would lead to the conclusion that the judgment below should be affirmed and the challenged payments distributed at this time to all farmers. Until this Court's decision the Secretary had no reason to know that he had to justify the provisions of this order as 'compensation for rendering an economic service,' and his failure to have provided such a defense does not necessarily mean it is unavailable. Indeed the Court apparently would approve this same provision were the Secretary to issue it again, but only if it were then accompanied by an economic study that this Court composed of lawyers, not economic or agricultural experts—finds acceptable. If such a justification is present, the differential is in fact lawful at this time, and it would not seem to matter that the Secretary has not yet incanted the proper magic words.
55
I do not see what harm would follow if this Court were simply to vacate the judgment below, remand the cases to the Secretary for appropriate study, and continue to place the payments in the special fund pending ultimate resolution of the controversy. If the Secretary cannot make the proper economic justification, the only result would be to postpone the day when the accumulating funds, which now amount to over $8,000,000, would be distributed. If, on the other hand, he is able to show that these payments compensate for an economic service, then the Court would not have unnecessarily given the accumulated millions to farmers who are not legally entitled to receive them.
56
My conviction that the Act was designed to permit the Secretary to include adjustments that reflected the prior practice of the milk industry does not mean that he can act with unlimited abandon and approve a payment simply because historically it was provided for prior to federal regulation. The statute requires that the Secretary issue orders which 'will tend to effectuate the declared policy of (the Act) * * *.' 7 U.S.C. § 608c(4). Those policies are specifically set forth, 7 U.S.C. § 602, and in general provide that orders should establish and maintain orderly marketing conditions and parity prices for milk producers. In his latest promulgation of the Boston order the Secretary specifically refused to eliminate the nearby differentials (J.A. 349—357) and found that the order 'will tend to effectuate the declared policy of the Act.' 29 Fed.Reg. 12236. That finding cannot be disturbed, nor the nearby differential invalidated, unless it is shown that the order is not supported by substantial evidence in the administrative record considered in its entirety. Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In this action the Court of Appeals did not make a specific finding on the substantiality of the evidence, and the respondents argue that it is insubstantial, but a review of the entire record in light of the appropriate legal standards indicates that the nearby differential in the Boston order is fully supported by substantial evidence.
57
In reaching this conclusion, it must be remembered that the Secretary is required to find only two things. First, that the proposed provision represents a payment customarily applied in the milk market, and second, that inclusion of the proposed provision will further the policies of the Act. The first of these questions is essentially a factual one, and there is no real argument in this action that the Secretary was wrong in finding as a matter of historical fact that nearby farmers received additional payments which are reflected in the location differential. The respondents do not really deny the historical existence of this higher price, but rather attack its legality under the Act. The Court of Appeals, moreover, specifically recognized the historical fact that such differentials existed, but accepted the respondents' argument that they were illegal. 131 U.S.App.D.C., at 112—114, 118, 402 F.2d at 663—665, 669. An independent review of the record confirms the conclusion that such differentials had been customary in the market. It is thus easy to conclude that the factual finding required by the Act has been supported by substantial evidence in the administrative record.
58
The second required finding, that the provision will further the policies of the Act, is a mixed question of fact and administrative policy. The Secretary has held extensive hearings in the past on the provisions of the Boston milk order (J.A. 233 247, 257—302, 305—330, 360—651), and he has repeatedly found that the nearby location differential furthers the policies of the Act. Since this is essentially a question of administrative discretion and will be set aside only on a strong showing by the parties that the finding is without support in the basic facts on which the Secretary has relied, it is proper to say on this record that this second finding is adequately supported. Nothing in the respondents' arguments indicates that the nearby differential does not further the policies of the Act, but rather they argue only that elimination of the differential would better serve those policies. But this question is one for the Secretary, not for the parties or for this Court, to decide.
59
What is involved here is simply a question of interpreting and following the will of Congress. Over 30 years ago Congress decided that milk producers needed governmental assistance in stabilizing their income, but it also decided that this stabilization should be accomplished with a minimal amount of change in the industry's prior practices. Congress therefore authorized the Secretary of Agriculture to regulate the industry and left most of the details to him. For over 30 years he has used his authority to regulate the Boston milk market, and has consistently found it desirable to provide higher prices for milk produced on farms close to Boston. It may well be that this decision is not the best or the most economically sound one that he could make in light of changed economic conditions in 1968, but that decision is one Congress has committed to the Secretary alone. In my view this Court and the Court of Appeals in this litigation effectively substitute their will for the will of Congress and their views of economics and wise administration for those of the Secretary whom Congress selected to carry out its will. The Court indicates that its decision will avoid a 'windfall.' Ante, at 197. In fact the Court itself creates a windfall of over $8,000,000 which is siphoned out of the pockets of farmers close to Boston and bestowed like a Christmas present on those farther away. This the Court does contrary to the informed judgment of the Secretary who, faithful to the Act, has declared for years that distant farmers are not eligible for such a bonus. I am unable to agree that this is a proper function for the Court to perform and I therefore dissent.
1
The Secretary has promulgated comprehensive regulations to govern the marketing of milk, 7 CFR § 1002.1 et seq. (1969), pursuant to the Agricultural Marketing Agreement Act. The provisions relevant to this cause are set forth in Part I of this opinion, at 178, infra.
The action was originally brought against the Secretary only. Petitioners Zuber et al., nearby farmers, unsuccessfully sought leave to intervene before the District Court in support of the Secretary's regulations. When judgment was rendered against the Secretary, petitioners sought leave to intervene for the purposes of appeal. Leave was granted and the Secretary also decided to take an appeal. The parties have devoted a good deal of energy to disputing what constitutes the record in this litigation. Petitioners at various times have referred us to the testimony and record compiled in an action brought in the Northern District of New York, Cranston v. Freeman, 290 F.Supp. 785 (1968). Respondents have objected, noting that the record in Cranston is not formally before this Court, and have included in the appendix various materials that were not of record below. The Court need not pause over the controversy since none of the materials in respondents' appendix is decisive of the action before us. As for the references to Cranston record, they too are not decisive of the dispute.
2
See, e.g., Lehigh Valley Cooperative v. United States, 370 U.S. 76, 82 S.Ct. 1168, 8 L.Ed.2d 345 (1962); Brannan v. Stark, 342 U.S. 451, 72 S.Ct. 433, 96 L.Ed. 497 (1952); Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733 (1944); United States v. Rock Royal Co-op., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446 (1939); H. P Hood & Sons v. United States, 307 U.S. 588, 59 S.Ct. 1019, 83 L.Ed. 1478 (1939). The lower courts have also been plagued by the milk problem. See especially Judge Frank's lament, Queensboro Farm Prods. v. Wickard, 137 F.2d 969 (C.A.2d Cir. 1943); see also Blair v. Freeman, 125 U.S.App.D.C. 207 ,370 F.2d 229 (1966); Green Valley Creamery v. United States, 108 F.2d 342 (C.A.1st Cir. 1939).
3
For fluid use, milk must be transported in its natural state and as such is a bulky and highly perishable commodity. Thus cost of shipment to a consumer market is greater than transporting an equal supply to a manufacturing plant. These factors, combined with more rigid sanitary requirements for plants distributing the fluid product, see Agricultural Adjustment Administration Report, May 1933—Feb. 1934, p. 154, explain part of the disparity between the price for Class I (fluid milk) and Class II (other uses) milk. Nearby producers, given equilibrium of supply and demand, are logical fluid suppliers to the urban areas. See generally J. Cassels, A Study of Fluid Milk Prices (1937).
4
The cooperative system amounted to a pooling arrangement wherein participating producers would bargain collectively with the handlers and threaten to withhold their milk if the handlers refused to agree to purchase a certain minimum percentage of their Class I fluid milk from the pool. Without this supply the handlers would be unable to meet their winter requirements.
Essential to this arrangement of course was a sufficiently wide membership to insure no alternative source of supply to racalcitrant handlers.
The second aspect of the arrangement was the division of the profits among the producer members of the cooperative. Frequently employed was a base-rating plan whereby each producer would be assigned a percentage of his milk for which he could claim payment at the Class I fluid price. For the remaining production he would be paid at the Class II rate. Apparently bases were assigned according to the anticipated participation of the producer in the fluid market. As a result, nearby producers received more favorable bases in view of their historical role as fluid suppliers in an equilibrium market. For descriptions of the cooperative systems see Cassels, supra, n. 3, at 56—70; J. Black, The Dairy Industry and the AAA 49—51 (1935).
5
Because they were historically fluid suppliers the nearby producers apparently maintained at all times production sufficient to service the consumer fluid market. In addition their close proximity enabled them to deliver to small retailers. As such they were potential competitors.
6
See Agricultural Adjustment Administration Report, supr, n. 3, at 159—161; G. Barnhart, The Development of the Licenses and Order Regulating the Handling of Milk in the Greater Boston, Massachusetts, Marketing Area, Nov. 3, 1933—June 1, 1946 (unpublished dissertation on file with Department of Agriculture and Harvard University).
7
License 38 for the Boston area provided more favorable bases for the nearby producers. See Barnhart, supra, n. 6, at 95 96.
8
(5) 'Milk and its products; terms and conditions of orders.
'In the case of milk and its products, orders issued pursuant to this section shall contain one or more of the following terms and conditions, and (except as provided in subsection (7) of this section) no others:
'(A) Classifying milk in accordance with the form in which or the purpose for which it is used, and fixing, or providing a method for fixing, minimum prices for each such use classification which all handlers shall pay, and the time when payments shall be made, for milk purchased from producers or associations of producers. Such prices shall be uniform as to all handlers, subject only to adjustments for (1) volume, market, and production differentials customarily applied by the handlers subject to such order, (2) the grade or quality of the milk purchased, and (3) the locations at which delivery of such milk, or any use classification thereof, is made to such handlers:
'(B) Providing:
'(i) for the payment to all producers and associations of producers delivering milk to the same handler of uniform prices for all milk delivered by them: Provided, That except in the case of orders covering milk products only, such provision is approved or favored by at least three-fourths of the producers who, during a representative period determined by the Secretary of Agriculture, have been engaged in the production for market of milk covered in such order or by producers who, during such representative period, have produced at least three-fourths of the volume of such milk produced for market during such period; the approval required hereunder shall be separate and apart from any other approval or disapproval provided for by this section; or
'(ii) for the payment to all producers and associations of producers delivering milk to all handlers of uniform prices for all milk so delivered, irrespective of the uses made of such milk by the individual handler to whom it is delivered;
'subject, in either case, only to adjustments for (a) volume, market, and production differentials customarily applied by the handlers subject to such order, (b) the grade or quality of the milk delivered, (c) the locations at which delivery of such milk is made, and (d) a further adjustment, equitably to apportion the total value of the milk purchased by any handler, or by all handlers, among producers and associations of producers, on the basis of their marketings of milk, which may be adjusted to reflect sales of such milk by any handler or by all handlers in any use classification or classifications, during a representative period of time which need not be limited to one year.'
9
The Boston order of 1937, 2 Fed.Reg. 1331, established uniform prices for all producers at $3.19 and $3.01 per cwt. of milk, depending on the place of delivery, with a further adjustment for transportation to the handler's plant in the marketing area. Article VIII, § 4(1) also provided for an adjustment based on the cost of transporting milk from outlying plants to the primary Boston market. The present regulations calculate price with reference to the purchasing power of milk based on the 1958 cost-of-living index. No transportation adjustment is provided for in calculation of the uniform price under § 1001.62 of the order. Differentials to compensate for zone of delivery are retained as separate adjustments. See infra.
10
The Secretary has three alternative modes of proceeding under the Act. He may establish 'use' prices which all handlers must pay to all producers according to the actual amount of milk used in each category, § 8c(5)(A); individual handler pools where all producers or co-operatives selling to an individual handler shall be paid a uniform price for milk delivered to that handler; or a marketwide pool where all handlers must pay all producers a uniform price for all milk delivered irrespective of end use.
11
Also included is an adjustment for delivery to a nearby plant. The location of handler plants is classified by zones. 7 CFR § 1001.62. Delivery to a plant located nearby the consumer market is, of course, advantageous to the handler and the producer is compensated for this service. The handler also saves the cost of handling and processing at his country plant in addition to saving transportation cost. Conversely, depositing milk at handlers' plants in outlying districts results in a negative adjustment.
12
Section 8c(5)(B)(ii) requires all uniform prices to be paid 'irrespective of the uses made of such milk by the individual handler to whom it is delivered.' Respondents contend that the nearby differ-
ential is merely a disguised payment for the nearby suppliers' greater share of fluid milk sales. Such was apparently the case in the New Jersey order invalidated by the Court of Appeals in Blair v. Freeman, supra, where the payment of the differential was explicitly linked to the percentage of nearby milk actually supplied to the fluid market. We share respondents' skepticism and our doubts are reinforced by the explicit connection of differential payments with the share of fluid milk supplied in the 1936 Boston order. Further cause for skepticism is found in the present zone differential structure which undercompensates the handlers for transportation from outlying districts and thus encourages them to buy from nearby farmers. See Kessel, Economic Effects of Federal Regulation of Milk Markets, 10 J.Law & Econ. 51, 64—65 (1967). Here, however, unlike the situation in Blair v. Freeman, supra, the producer receives the differential irrespective of the use to which his milk is ultimately put. Since the nearby differential in the present order is not directly tied to the percentage of fluid milk sales, although the order limits differential payments to 46¢ or the Class I price, whichever is higher, we accept the Government's contention that, as a matter of strict logic, the payment of differentials based on the historical position of nearby producers as fluid suppliers, is not inconsistent with the irrespective-of-end-use requirement.
13
'The market differential is a differential which is given to the producer to compensate him for delivering his milk to a city market instead of to a country plant. These differentials vary with the markets and cannot be qualified as a 'location' differential, because of the fact that location is usually determined on the distance from a primary market whereas market differentials are usually paid in secondary markets.' H.R.Rep. No. 1241, 74th Cong., 1st Sess., 10 (1935).
14
The relevant excerpts from the hearing are included in the Joint Appendix and appear at 258—259:
'Section 4 * * * provides for location differentials. * * * Now, the price which is arrived at from the calculation of the pool is a blended price for all milk f.o.b. the market with country station allowances deducted. Now, Paragraph 1 (of § 4) here provides that there shall be deducted from that blended price in the case of milk delivered to a plant more than 40 miles from the State House an amount equal to the carlot freight rate from that plant to Boston, so that that deduction would be different for each freight zone, and the price would be smaller by the amount of difference in freight from each zone as we go out from the market. Now, Paragraph 2 (of § 4) provides that in the case of milk delivered from a producer to a plant located within forty miles of the State House there should be added 18 cents per hundredweight. That is added for the reason that in the case of country stations there is allowed the dealers on Class I milk 20 cents a hundredweight as a country station charge, and we are allowing for containers in which to ship the milk three cents in the case of milk received at city plants, instead of having a 20 cent and a three cent deduction, which would be 23 cents. There is a receiving station allowance of only five cents. The difference is 18 cents per hundredweight. We add back in here 18 cents to the producer whose milk does not pass through a country station.' (Emphasis added.)
15
See Barnhart, supra, n. 6, at 620.
16
'To eliminate questions of improper delegation of legislative authority raised by the decisions in Schechter et al. v. United States, the provisions relating to orders enumerate the commodities to which orders issued by the Secretary of Agriculture may be applicable, prescribe fully the administrative procedure to be followed by the Secretary in issuing, enforcing, and terminating orders, and specify the terms which may be included in orders dealing with the enumerated commodities.' H.R.Rep., No. 1241, supra, at 8. See Brannan v. Stark, 342 U.S. 451, 465, 72 S.Ct. 433, 440, 96 L.Ed. 497 (1952).
17
In this connection it should be noted that the production differential authorized for maintaining an adequate supply for fluid use during the lean winter months is not, strictly speaking, a handler cost but a general cost of the market. It is, however, an essential cost that cannot be eliminated by looking to an alternative supplier. Viewed in this context, it is of course a cost to the handler; for in a nonregulated equilibrium market, a handler would be forced to pay a premium during the winter months when supply is limited and demand constant.
18
'The volume differential is a differential which is paid when the operations of several country plants are consolidated into one plant. The inconvenience which is caused to producers by closing up plants to which they have been delivering and requiring that all of their milk be handled by one plant, is compensated by an additional payment to the producers. The production differential is the differential which is paid to a producer, compensating him for keeping his farm and milk qualified for a city market even though his milk may actually be going into manufactured use. * * * The production differential is a payment to the farmer for performing this function in the market.' (Emphasis supplied.) H.R.Rep. No. 1241, supra, at 9—10.
In Brannan v. Stark, supra, this Court invalidated regulations providing certain payments to cooperatives that had the effect of reducing the blended price to nonmember producers. The premise underlying our holding was that these payments would have to represent compensation for rendering of economic services of benefit to all producers. Even the dissenters took as a point of departure the proposition that the payments could be sustained only if justified in terms of services rendered.
19
See Brannan v. Stark, supra.
20
'The proposed amendments, insofar as they relate to marketing agreements and orders, are primarily intended to implement and spell out in more detail and with greater freedom from ambiguity the powers which were provided for in the original act. The present language of the statute is, unfortunately, subject to serious misconstruction. This has given rise to obstacles in connection with the enforcement of the marketing agreements and licenses which have seriously endangered their successful operation.' H.R.Rep., No. 1241, supra, at 7.
21
The verdict of quiescent years cannot be invoked to baptize a statutory gloss that is otherwise impermissible. This Court has many times reconsidered statutory constructions that have been passively abided by Congress. Congressional inaction frequently
betokens unawareness, preoccupation, or paralysis. 'It is at best treacherous to find in Congressional silence alone the adoption of a controlling rule of law.' Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946). Its significance is greatest when the area is one of traditional year-by-year supervision, like tax, where watchdog committees are considering and revising the statutory scheme. Even less deference is due silence in the wake of unsuccessful attempts to eliminate an offending interpretation by amendment. See, e.g., Girouard v. United States, supra. Where, as in the case before us, there is no indication that a subsequent Congress has addressed itself to the particular problem, we are unpersuaded that silence is tantamount to acquiescence, let alone the approval discerned by the dissent.
22
The floor exchange is reported at 79 Cong.Rec. 11139 11140.
'Mr. COPELAND. What has the Senator to say to the suggestion that in a number of communities in up-State New York there is not a sufficient supply of milk surrounding the market to take care of the demand; therefore, milk must be brought into the market from more distant points? The provisions of the equalization which we are now discussing provide that a producer who is producing his milk on farms near to cities would receive the same price for his product as a farmer who produces his milk, say, 40 or 50 miles away from the same community.
'Mr. MURPHY. If they were embraced in the same marketing area, that would be true. Let us keep in mind what the situation is. There is a deficiency of consumer demand. There is a surplus of
milk. The price is greatly depressed, and has been for 5 years. The only way in which one can determine how each one of the producers included in the plan provided here shall bear his share of the cost of effecting a higher price is to divide the milk by classification uses.
'Mr. COPELAND. I do not think the Senator has quite stated all the conditions. He does not take into consideration the difference in the cost of production. Taxes and values of property near the city are very much higher than in the case of property farther away from the city. The transportation differential does not compensate for the difference in cost, as I see it.
'Mr. MURPHY. If the Senator will refer to page 12, line 13, he will see that there is this qualification:
"Such prices shall be uniform as to all handlers, subject only to adjustments for (1) volume, market, and production differentials customarily applied by the handlers subject to such order—'
'They adopt the present practice of business—
"(2) the grade or quality of the milk purchased, and (3) the locations at which delivery of such milk, or any use classification thereof, is made to such handlers."
23
The market differential does not, strictly speaking, compensate the producer for absorbing a cost to the handler for it may be no additional cost to the producer to deliver to a city plant. A nearby farmer, for example, would not incur additional costs by delivering to a preferred city plant as opposed to a country station. The savings to the handler are nevertheless plain and the market differential should properly be viewed as an adjustment that permits the producer to share in the handler's profits resulting from reduced costs.
24
See Kessel, supra, n. 12, at 65—66 (1967). After criticizing the present undercompensation for transportation costs from far-away zones as a disguised subsidy to nearby producers, resulting in an inefficient allocation of economic resources, the author draws a comparison with the nearby differential lamenting, 'However weak the case for zone differentials that fail to depict transportation costs, it is infinitely stronger than the case for location differentials.'
25
The Secretary's 1964 findings include provisions under the present New England orders should be continued under the Massachusetts-Rhode Island order and the Connecticut order.
'A group of nine cooperative associations, which represents principally producers whose farms are located outside any of the specified farm location differential areas, proposed that farm location differentials be eliminated under the New England orders. Three other cooperative associations proposed that a producer whose farm is located within New England and who is presently eligible to receive a farm location differential * * * under any New England order be eligible to receive the same differential irrespective of the New England order under which his milk is pooled. Another cooperative association proposed that the farm location differentials be increased * * *.
'* * * (F)arm location differentials have been in effect under the several New England orders since the inception of the orders. The differentials were adopted to reflect in the pricing structure of the orders historical price relationships by location which prevailed in these markets. It was found that customarily somewhat higher values, above those which normally reflected transportation costs, attached to milk produced near the principal consumption centers as compared to the market value of milk produced in the more distant areas of the milkshed.
'While considerable testimony in support of removal of the provisions was received, it was not established that the farm location differential provisions are resulting in unstable or disruptive marketing conditions which warrant their deletion from the orders at this time. Although certain marketing problems in the nearby and intermediate market areas were referred to in the testimony, these problems are not the result of production increases on farms in these areas which logically might be attributable to the higher returns to producers in these areas. Such increases have not been significantly different from those on farms not eligible for the farm location differentials.' (J.A. 349 351).
There is no reason to dispute the Secretary's finding that the differentials have no disruptive effect on the market. The issue, however, is whether the provisions are authorized by statute. The Secretary's order is devoid of any economic justification and relies solely on the historical factor of the nearby producer's favorable share of the fluid use market. See also Report to the Secretary of Agriculture by the Federal Milk Order Study Committee 74—75 (1962).
26
See Report to the Secretary of Agriculture by the Federal Milk Order Study Committee, supra, n. 25, at 75.
27
See J.A. 455 reporting excerpts from the Secretary's decision of October 21, 1958, accompanying the order for the Southeastern New England marketing area.
28
Judge Frank expressed the view in Queensboro Farm Prods. v. Wickard, 137 F.2d 969 (C.A.2d Cir. 1943), that Congress intended to adopt the intervening administrative interpretation of the 'use' language of § 8c(5)(A) by its 1937 reenactment. The construction of the 'use' provision may well have caused more concern than the interpretation of the 8c(5)(B) differentials. In any event, Judge Frank's assumption that Congress gave 'careful consideration * * * in connection with a re-enactment,', 137 F.2d, at 977, is not supported by citation to specific legislative history that would indicate that Congress had in mind specific problems in connection with the administration of the marketing provisions.
29
The 1936 order provided for payment of a uniform price subject to adjustments and with a special exception for 'any producer, whose farm is located within forty (40) miles of the State House in Boston and who delivers milk to such handler at a plant located within forty at $3.30 per hundredweight for that quantity at $3,30 per hundredweight for that quantity of milk delivered by such producer not in excess of the base of such producer.' (Emphasis supplied.) Art. VIII, § 1(2).
30
Section 4 of the Act provided:
'Nothing in this Act shall be construed as invalidating any marketing agreement, license, or order, or any regulation relating to, or any provision of, or any act of the Secretary of Agriculture in connection with, any such agreement, license, or order which has been executed, issued, approved, or done under the Agricultural Adjustment Act, or any amendment thereof, but such marketing agreements, licenses, orders, regulations, provisions, and acts are hereby expressly ratified, legalized, and confirmed.'
31
To the extent that Congress could be said to have acted against the background of the 1936 order, the Court must reject petitioners' argument. The 1936 order was superseded by the 1937 order which differed in approach. The provision for nearby differentials in the 1936 order was obscured by allowing a more favorable total price to nearby producers. See n. 29, supra. The 21¢ differential incorporated in the 1937 order for the benefit of intermediate nearby zones was not included in the 1936 order. The 21¢ differential provided in Art. VIII, § 4(2), of the 1936 order could have been viewed as a true market differential since its payment depended on delivery to a handler within a 40-mile zone from a producer beyond a 40-mile zone. Further, as noted by the court below, § 4 is typical of statutory boilerplate traditionally included in legislative re-enactments, to avoid breaks in regulatory continuity. 131 U.S.App.D.C., at 119, 402 F.2d, at 670.
32
Section 8c(9) of the Act, 7 U.S.C. § 608c(9) provides that no order shall become effective until the Secretary determines:
'(B) That the issuance of such order is the only practical means of advancing the interests of the producers of such commodity pursuant to the declared policy, and is approved or favored:
'(i) By at least two-thirds of the producers * * * who, during a representative period determined by the Secretary, have been engaged, within the production area specified in such marketing agreement or order, in the production for market of the commodity specified therein, or who, during such representative period, have been engaged in the production of such commodity for sale in the marketing area specified in such marketing agreement, or order, or
'(ii) By producers who, during such representative period, have produced for market at least two-thirds of the volume of such commodity produced for market within the production area specified in such marketing agreement or order, or who, during such representative period, have produced at least two-thirds of the volume of such commodity sold within the marketing area specified in such marketing agreement or order.'
33
Lower courts have, in some circumstances, permitted an agency to rely on the approval of those affected by an action as evidence that the action is in the 'public interest.' Compare Citizens for Allegan County v. FPC, 134 U.S.App.D.C. 229, 414 F.2d 1125 (1969), with Marine Space Enclosures, Inc. v. FMC, 137 U.S.App.D.C. 9, 420 F.2d 577 (1969). We need not consider what scope, if any, may be given to these principles.
1
The majority implies, ante, at 181, that this higher price in the 1920's was an economic 'distortion.' There has been no such finding by the Secretary or any of the courts below, nor was any evidence taken that was directed at this issue. This Court is poorly equipped to pass judgment on the economic validity or invalidity of this higher price, surely not as well equipped as the Secretary and the economists who advise him. It is the Secretary, not this Court, to whom Congress has delegated the task of fixing the prices producers will be paid for their milk and of making the underlying economic judgments.
2
This license adopted a somewhat complicated base-rating plan similar to that used by the milk cooperatives. See n. 4, ante, at 173—174. There is general agreement among the parties that these licenses effectively resulted in higher milk prices to nearby farmers, and the Court of Appeals recognized this fact. 131 U.S.App.D.C. 109, 113—114, 402 F.2d 660, 664—665.
3
H.R. 5585, S. 1807, 74th Cong., 1st Sess.
4
Hearing on H.R. 5585 before the House Committee on Agriculture, 74th Cong., 1st Sess.; Hearings on S. 1807 before the Senate Committee on Agriculture and Forestry, 74th Cong., 1st Sess.
5
H.R. 8492, 74th Cong., 1st Sess.
6
These provisions of the 1935 amendments have been carried forward, virtually without change, into the present statute.
7
S.Rep. No. 1011, 74th Cong., 1st Sess., 8; H.R.Rep. No. 1241, 74th Cong., 1st Sess., 8.
8
In United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914 (1936), this Court declared the processing tax provisions of the A.A.A. invalid, and some district courts then held that the entire Act was invalid. E.g., United States v. David Buttrick Co., 15 F.Supp. 655 (D.C.Mass.1936), rev'd, 91 F.2d 66 (C.A.1st Cir.), cert denied, 302 U.S. 737, 58 S.Ct. 140, 82 L.Ed. 570 (1937).
9
This language was first enacted in the 1935 amendments to the A.A.A., but was re-enacted in the 1937 Agricultural Marketing Agreement Act without change. There is no relevant legislative history for the 1937 Act, but the parties all agree that the history of the 1935 amendments also applies to the 1937 Act. The discussion of legislative history in the text is based on the 1935 legislative record.
The complete text of the relevant portions of the present statute is set forth in n. 8, ante, at 176-177.
10
S.Rep. No. 1011, 74th Cong., 1st Sess., 9; H.R.Rep. No. 1241, 74th Cong., 1st Sess., 9. This basic purpose is reflected in the fact that Congress provided the Secretary with three different schemes of regulation, each of which followed a variety of regulations used by the milk cooperatives. See n. 10, ante, at 177. In 1965 Congress followed this same basic purpose when it amended the Act to make explicit the Secretary's power to employ base-rating plans, described in n. 4, ante, at 173-174. See 79 Stat. 1187, 7 U.S.C. § 608c(5) (B), cl. (d), (1964 ed., Supp. IV).
11
The full discussion is set out in n. 22, ante, at 186-187.
12
The majority also seems to imply, ante, at 191-192, that Rock Royal did not decide this issue since the handlers did not have standing to raise it. It seems to me that the Court there did decide that the handlers, who argued that the nearby differential reduced their own profits, could raise this issue.
13
In a footnote, n. 18, ante, at 184, the majority implies that there is support for this novel interpretation in our prior decision in Brannan v. Stark, 342 U.S. 451, 72 S.Ct. 433, 96 L.Ed. 497 (1952), which held invalid a provision in the Boston milk order that distributed certain sums to producer cooperatives. That case specifically held that such payments were not authorized by the catchall provision in the Act permitting provisions in milk orders '(i)ncidental to, and not inconsistent with, the terms and conditions specified in (other sections) and necessary to effectuate the other provisions of such order.' 7 U.S.C. § 608c(7)(D); Brannan, at 457—458, 72 S.Ct. at 436—437. It is true that the majority there did decide that the challenged payments did not represent compensation for an economic benefit received by all producers, but regardless of the validity of that decision, it is irrelevant to the decision in this case. It may be that payments that are sought to be justified solely on the basis of the 'necessary provisions' section require independent economic justification, but that certainly does not mean that where the Secretary relies on a specific adjustment set forth in the Act, as he does here, he must also defend it on economic grounds.
| 78
|
396 U.S. 212
90 S.Ct. 347
24 L.Ed.2d 371
NACIREMA OPERATING CO., Inc. et al., Petitioners,v.William H. JOHNSON et al. John P. TRAYNOR and Jerry C. Oosting, Deputy Commissioners, Petitioners, v. William H. JOHNSON et al.
Nos. 9, 16.
Argued Oct. 20, 1696.
Decided Dec. 9, 1969.
Rehearings Denied Feb. 24, 1970.
See 397 U.S. 929, 90 S.Ct. 895, 896.
Randall C. Coleman, Baltimore, Md., and Solicitor Gen., Erwin N. Griswold, for petitioners.
Ralph Rabinowitz, Norfolk, Va., and John J. O'Connor, Jr., Baltimore, Md., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The single question of statutory construction presented by these cases is whether injuries to longshoremen occurring on piers permanently affixed to shore are compensable under the Longshoremen's and Harbor Workers' Compensation Act of 1927 (Longshoremen's Act), 44 Stat. 1424, 33 U.S.C. §§ 901—950.
2
Johnson and Klosek were employed by the Nacirema Operating Company as longshoremen; Avery was similarly employed by the Old Dominion Stevedoring Corporation. All three men were engaged at the time of their accidents in performing similar operations as 'slingers,' attaching cargo from railroad cars located on piers1 to ships' cranes for removal to the ships. Klosek was killed, and each of the other men was injured, when cargo hoisted by the ship's crane swung back and knocked him to the pier or crushed him against the side of the railroad car. Deputy Commissioners of the United States Department of Labor denied claims for compensation in each case on the ground that the injuries had not occurred 'upon the navigable waters of the United States' as required by the Act.2 The District Courts upheld the Deputy Commissioners' decisions, 243 F.Supp. 184 (D.C.Md.1965); 245 F.Supp. 51 (D.C.E.D.Va.1965). The Court of Appeals for the Fourth Circuit, sitting en banc, reversed.3 398 F.2d 900 (1968). We granted certiorari, 393 U.S. 976, 89 S.Ct. 444, 21 L.Ed.2d 437 (1968), to resolve the resulting conflict with decisions in other circuits holding that pier injuries are not covered by the Act.4 We have concluded from an examination of the language, purpose, and legislative history of the Act, as well as prior decisions of this Court, that the judgment of the Court of Appeals must be reversed.
3
Since long before the Longshoremen's Act was passed, it has been settled law that structures such as wharves and piers, permanently affixed to land, are extensions of the land.5 Thus, literally read, a statute that covers injuries 'upon the navigable waters' would not cover injuries on a pier even though the pier, like a bridge, extends over navigable waters.6
4
Respondents urge, however, that the 1927 Act, though it employs language that determines coverage by the 'situs' of the injury, was nevertheless aimed at broader coverage: coverage of the 'status' of the longshoreman employed in performing a maritime contract. We do not agree. Congress might have extended coverage to all longshoremen by exercising its power over maritime contracts.7 But the language of the Act is to the contrary and the background of the statute leaves little doubt that Congress' concern in providing compensation was a narrower one.
5
Ten years before the Act was passed this Court in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), held that a State was without power to extend a compensation remedy to a longshoreman injured on the gangplank between the ship and the pier. The decision left longshoremen injured on the seaward side of the pier without a compensation remedy, while longshoremen injured on the pier enjoyed the protection of state compensation acts. State Industrial Commission of State of New York v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933 (1922).
6
Twice Congress attempted to fill this gap by passing legislation that would have extended state compensation remedies beyond the line drawn in Jensen.8 Each time, this Court struck down the statute as an unlawful delegation of congressional power. Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920). Finally, responding to this Court's suggestion that what Congress could not empower the States to do, it could do itself,9 Congress passed the Longshoremen's Act. The clear implication is that in enacting its own compensation statute, Congress was trying to do what it had failed to do in earlier attempts: to extend a compensation remedy to workmen injured beyond the pier and hence beyond the jurisdiction of the States. This purpose was clearly expressed in the language limiting coverage to injuries occurring 'upon the navigable waters,' and permitting recovery only 'if recovery * * * through workmen's compensation proceedings may not validly be provided by State law.'10
7
This conclusion is fully supported by the legislative history. As originally drafted, § 3 extended coverage to injuries 'on a place within the admiralty jurisdiction of the United States, except employment of local concern and of no direct relation to navigation and commerce.'11 During the hearings, it was repeatedly emphasized and apparently assumed by representatives from both the shipping industry and the unions that a 'place within the admiralty jurisdiction' did not include a dock or pier.12 In fact, a representative of the Labor Department objected to the bill precisely for that reason, urging the Committee to extend coverage to embrace the contract, 'and not the man simply when he is on the ship.'13 If Congress had intended to adopt that suggestion, it could not have chosen a more inappropriate way of expressing its intent than by substituting the words 'upon the navigable waters' for the words 'within the admiralty jurisdiction.'14 Indeed, the Senate Report that accompanied the revised bill, containing the language of the present Act, makes clear that the suggestion was rejected, rather than adopted: '(I)njuries occurring in loading or unloading are not covered unless they occur on the ship or between the wharf and the ship so as to bring them within the maritime jurisdiction of the United States.' S.Rep. No. 973, 69th Cong., 1st Sess., 16. We decline to ignore these explicit indications of a design to provide compensation only beyond the pier where the States could not reach. 'That is the gap that we are trying to fill.'15 In filling that gap Congress did not extend coverage to longshoremen like those respondents whose injuries occurred on the landward side of the Jensen line, clearly entitling them to protection under state compensation Acts.16
8
Decisions of this Court have more than once embraced this interpretation. Swanson v. Marra Bros., Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946), held that neither the Jones Act nor the Longshoremen's Act covered a longshoreman injured on the dock in the course of his employment even if the injury was caused by a vessel on navigable waters. Parker v. Motor Boat Sales, 314 U.S. 244, 249, 62 S.Ct. 221, 225, 86 L.Ed. 184 (1941), concluded that the purpose of the Act 'was to provide for federal compensation in the area which the specific decisions referred to placed beyond the reach of the states.' Davis v. Dept. of Labor & Industries, 317 U.S. 249, 256, 63 S.Ct. 225, 229, 87 L.Ed. 246 (1942), noted that in passing the Longshoremen's Act, Congress had specifically adopted the Jensen line. The interpretation endorsed by these cases is also reflected in a consistent course of administrative construction commencing immediately after the enactment of the Act. Employees' Compensation Commission Opinions Nos. 5 and 16, 1927 A.M.C. 1558 and 1855; No. 30, 1028 A.M.C. 417.
9
It is true that since Jensen this Court has permitted recovery under state remedies in particular situations seaward of the pier, Parker v. Motor Boat Sales, supra, and in Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), approved recovery under the Longshoremen's Act for injuries occurring on navigable waters which might also have been compensable under state law. Calbeck made it clear that Congress intended to exercise its full jurisdiction seaward of the Jensen line and to cover all injuries on navigable waters, whether or not state compensation was also available in particular situations. The proviso to § 3(a) conditioning coverage on the unavailability of state remedies was not meant to deny federal relief where the injury occurred on navigable waters. But removing uncertainties as to the Act's coverage of injuries occurring on navigable waters is a far cry from construing the Act to reach injuries on land traditionally within the ambit of state compensation acts.
10
Indeed, Calbeck freely cited the Parker and Davis declarations that the Longshoremen's Act adopted the Jensen line, and Calbeck's holding rejected the notion that the line should advance or recede simply because decisions of this Court had permitted state remedies in narrow areas seaward of that line. Otherwise, the reach of the federal Act would be subject to uncertainty, and its coverage would 'expand and recede in harness with developments in constitutional interpretation as to the scope of state power to compensate injuries on navigable waters,' with the result 'that every litigation raising an issue of federal coverage would raise an issue of constitutional dimension, with all that that implies; * * *.' 370 U.S., at 126, 82 S.Ct., at 1203. As in Calbeck, we refuse to impute to Congress the intent of burdening the administration of compensation by perpetuating such confusion.
11
Nor can we agree that what Congress did not do in 1927, it did in 1948 when it passed the Extension of Admiralty Jurisdiction Act, (Extension Act) 62 Stat. 496, 46 U.S.C. § 740. In pertinent part, that Act provides:
12
'The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, not-withstanding that such damage or injury be done or consummated on land.'
13
By its very choice of language, the Act re-enforces the conclusion that Congress was well aware of the distinction between land injuries and water injuries and that when it limited recovery to injuries on navigable waters, it did not mean injuries on land. The Act no doubt extended the admiralty tort jurisdiction to shipcaused injuries on a pier. But far from modifying the clear understanding in the law that a pier was an extension of land and that a pier injury was not on navigable waters but on land, the Act accepts that rule and nevertheless declares such injuries to be maritime torts if caused by a vessel on navigable waters.
14
The Extension Act was passed to remedy the completely different problem that arose from the fact that parties aggrieved by injuries done by ships to bridges, docks, and the like could not get into admiralty at all.17 There is no evidence that Congress thereby intended to amend or affect the coverage of the Longshoremen's Act or to overrule Swanson v. Marra Bros., supra, decided just two years earlier.18 While the Extension Act may have the effect of permitting respondents to maintain an otherwise unavailable libel in admiralty,19 see Gutierrez v. Waterman S. S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963), the Act has no bearing whatsoever on their right to a compensation remedy under the Longshoremen's Act.
15
There is much to be said for uniform treatment of longshoremen injured while loading or unloading a ship. But even contruing the Extension Act to amend the Longshoremen's Act would not effect this result, since longshoremen injured on a pier by pier-based equipment would still remain outside the Act. And construing the Longshoremen's Act to coincide with the limits of admiralty jurisdiction—whatever they may be and however they may change—simply replaces one line with another whose uncertain contours can only perpetuate on the landward side of the Jensen line, the same confusion that previously existed on the seaward side. While we have no doubt that Congress had the power to choose either of these paths in defining the coverage of its compensation remedy, the plain fact is that it chose instead the line in Jensen separating water from land at the edge of the pier. The invitation to move that line landward must be addressed to Congress, not to this Court.
16
Reversed.
17
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.
18
We dissent for the reasons stated by Judge Sobeloff speaking for the Court of Appeals sitting en banc. 398 F.2d 900. As he says, the Longshoremen's and Harbor Workers' Compensation Act is not restricted to conventional 'admiralty tort jurisdiction' but is 'status oriented, reaching all injuries sustained by longshoremen in the course of their employment.' Id., at 904. The matter should be at rest after Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368. In that suit under this Act we said that "Congress intended the compensation act to have a coverage coextensive with the limits of its authority." Id., at 130, 82 S.Ct., at 1205, quoting from De Bardeleben Coal Corp. v. Henderson, 5 Cir., 142 F.2d 481, 483. Judge Sobeloff in the instant cases, while answering the argument that Calbeck was not concerned with the meaning of 'upon the navigable waters,' referred to Judge Palmieri's opinion in Michigan Mutual Liability Co. v. Arrien, D.C., 233 F.Supp. 496, 500, aff'd, 2 Cir., 344 F.2d 640:
19
'(W)hat is just as important as the actual holding in Calbeck is the general approach to the (Longshoremen's Compensation) Act taken by the Court. No longer is the Act viewed as merely filling in the interstices around the shore line of the state acts, but rather as an affirmative exercise of admiralty jurisdiction.' Judge Sobeloff went on to say:
20
'This affirmative exercise of the admiralty power of Congress 'to the fullest extent' of its jurisdiction, creating 'a coverage co-extensive with the limits of its authority,' can only mean that Congress effectively enacted a law to protect all who could constitutionally be brought within the ambit of its maritime authority. Again, in the words of Judge Palmieri, 'it thus appears that 'upon navigable waters' is to be equated with 'admiralty jurisdiction.'" 398 F.2d, at 905.
21
In addition to the cases being reviewed here, the Court of Appeals affirmed a judgment in favor of the widow of a longshoreman (238 F.Supp. 78), who, while working on the pier, was struck by a cable and knocked into the water where he died. It is incongruous to us that in an accident on a pier over navigable waters coverage of the Act depends on where the body falls after the accident has happened. For this and the other reasons stated by Judge Sobeloff, we dissent from a reversal of these judgments.
1
The piers involved extended from shore into the Patapsco River at Sparrows Point, Maryland, and into the Elizabeth River at Norfolk, Virginia.
2
§ 3(a) of the Act, 33 U.S. § 903(a) provides in relevant part:
'(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law. * * *'
3
The three cases were consolidated on appeal. In a fourth case, an award to a longshoreman who had drowned after being knocked off a pier into the water was affirmed by the District Court and the Court of Appeals.' Marine Stevedoring Corp. v. Oosting, 238 F.Supp. 78 (D.C.E.D.Va.1965).
4
Nicholson v. Calbeck, 385 F.2d 221 (C.A.5th Cir. 1967), cert. denied, 389 U.S. 1051, 88 S.Ct. 790, 19 L.Ed.2d 843 (1968); Houser v. O'Leary, 383 F.2d 730 (C.A.9th Cir. 1967), cert. denied, 390 U.S. 954, 88 S.Ct. 1047, 19 L.Ed.2d 1147 (1968); Travelers Insurance Co. v. Shea, 382 F.2d 344 (C.A.5th Cir. 1967), cert. denied sub. nom. McCollough v. Travelers Ins. Co., 389 U.S. 1050, 88 S.Ct. 780, 19 L.Ed.2d 842 (1968); Michigan Mutual Liability Co. v. Arrien, 344 F.2d 640 (C.A.2d Cir.), cert. denied, 382 U.S. 835, 86 S.Ct. 80, 15 L.Ed.2d 78 (1965).
5
Swanson v. Marra Bros., Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946); Minnie v. Port Huron Terminal Co., 295 U.S. 647, 55 S.Ct. 884, 79 L.Ed. 1631 (1935); T. Smith & Son, Inc. v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520 (1928); State Industrial Commission of State of New York v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933 (1922); Cleveland Terminal & Valley R. Co. v. Cleveland S. S. Co., 208 U.S. 316, 28 S.Ct. 414, 52 L.Ed. 508 (1908); The Plymouth, 3 Wall. 20, 18 L.Ed. 125 (1866); 1 E. Benedict, The Law of American Admiralty §§ 28, 29 (6th ed. 1940); G. Gilmore & C. Black, The Law of Admiralty §§ 6 46, 7—17 (1957); G. Robinson, Handbook of Admiralty Law in the United States § 11 (1939).
6
We reject the alternative holding of the Court of Appeals that all injuries on these piers, despite settled doctrine to the contrary, may now be considered injuries on navigable waters—a proposition rejected implicitly by a unanimous Court just last Term. See Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 360, 366, 89 S.Ct. 1835, 1839, 1842, 23 L.Ed.2d 360 (1969). Piers, like bridges, are not transformed from land structures into floating structures by the mere fact that vessels may pass beneath them.
7
The admiralty jurisdiction in tort was traditionally 'bounded by locality,' De Lovio v. Boit, 7 Fed.Cas. pages 418, 444, No. 3,776 (C.C.D.Mass.1815) (Story, J.) (followed in Insurance Co. v. Dunham, 11 Wall. 1, 20 L.Ed. 90 (1871), encompassing all torts that took place on navigable waters. By contrast, admiralty contract jurisdiction 'extends over all contracts, (wheresoever they may be made or executed, or whatsoever may be the form of the stipulations,) which relate to the navigation, business or commerce of the sea.' De Lovio v. Boit, supra, at 444. Since a workmen's compensation act combines elements of both tort and contract, Congress need not have tested coverage by locality alone. As the text indicates, however, the history of the Act shows that Congress did indeed do just that.
8
Act of October 6, 1917, 40 Stat. 395; Act of June 10, 1922, 42 Stat. 634.
9
Washington v. Dawson & Co., 264 U.S. 219, 227, 44 S.Ct. 302, 305, 68 L.Ed. 646 (1924). The passage from Dawson & Co. was referred to in the hearings in both the Senate and the House. See Hearings on S. 3170 before a Subcommittee of the Senate Committee on the Judiciary, 69th Cong., 1st Sess., 18, 31, 103 and n. 3 (1926) (hereinafter 'Senate Hearings'); Hearing on H.R. 9498 before the House Committee on the Judiciary, 69th Cong., 1st Sess., ser. 16, pp. 18, 119 and n. 3 (1926) (hereinafter 'House Hearing').
10
Drydocks were conceded to be within the admiralty jurisdiction in both the hearings and the debates, even though such structures are not always floating structures. See House Hearing 34; 68 Cong.Rec. 5403 (1927). If Congress had thought the words 'upon the navigable waters' were broad enough to embrace the limits of admiralty jurisdiction, there would have been no need to add the parenthetical '(including any dry dock).'
11
See Senate Hearing 2.
12
Mr. Dempsey, representing the International Lonsghoremen's Association, testified that the bill would cover injuries on the dock as well as on the ship. When pressed as to how injuries on the dock could come within the admiralty jurisdiction, he confessed he did not understand the legal theory, and would defer to the longshoremen's attorney, Mr. Austin. Mr. Austin proceeded to testify: that the dock was not within the admiralty jurisdiction; that injuries on the dock were compensable under state law; that the problem arose because the longshoreman was left 'high and dry' once he left the State's jurisdiction and stepped on the gangplank; and that '(t)hat is the gap that we are trying to fill * * *.' Senate Hearings 28, 30—31. Testimony that longshoremen injured on the docks would not be covered by the Act also came from representatives of the shipbuilders. See Senate Hearings 58, 95, 103. See also n. 15, infra; Hearing on S. 3170 before the House Committee on the Judiciary, 69th Cong., 1st Sess., ser. 16, pt. 2, pp. 141, 157 (1926) (testimony on the revised bill, containing the language of the present § 3).
13
Senate Hearings 40.
14
While the reason for the change in the language concerning the bill's coverage is not expressly indicated, it appears to have been a response to objections that the original language, carving out an exception for employment of 'local concern,' was too vague to define clearly the line being drawn, and might even encounter problems once again at the hands of this Court. See Senate Hearings 56—57, 95; House Hearings 77, 100. In fact, the same spokesman for the shipbuilders who objected to the vagueness of the 'local concern' exception, also objected that the bill as written might 'upset all the present arrangements with respect to compensating men on the dock.' Senate Hearings 57. The implication is that no one expected the federal law to extend into the area of the State's jurisdiction on the dock, but that confusion existed as to whether, conversely, state remedies would be exclusive as to injuries 'on navigable waters' but within the 'maritime but local' exception created by Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922). This reading of the legislative history was adopted in Calbeck v. Travelers Insurance Co., 370 U.S. 114, 121—127, 82 S.Ct. 1196, 1200—1203, 8 L.Ed.2d 368 (1962), where the Court concluded that the Act did not prevent recovery for injuries on navigable waters, even though a state remedy would also have been available under Rohde.
15
See n. 12, supra. Other indications that Congress had no intention of replacing or overlapping state compensation remedies for dockside injuries can be found throughout the hearings. At one point, in attempting to calculate the increased costs involved in the federal Act, Senator Cummins, Chairman of the Committee, pointed out that 'we are proceeding on the theory that these people can not be compensated under the New York compensation law or any other compensation law.' '(T)he purpose of this law,' he agreed with a witness, was simply to cover the men who 'are going to be exposed a part of the time on board vessels * * * and therefore will have to be compensated in some other way where the New York law is not the remedy available.' Senate Hearings 84—85. Similarly, Representative Graham, Chairman of the House Committee, agreed that 'the real necessity for this legislation' was to provide workers with compensation when they stepped from dock to ship. House Hearings 25. In fact, the labor representative who was testifying at that point in the hearing insisted that the legislation sought was only for '(t)hose who are injured on board vessels at the dock.' Those injured on the dock 'are taken care of under the State law.' Id., at 28. There was also testimony by a longshoremen's representative that '65 per cent of the accidents in the courts of New York happen on board ships or on gangplanks; * * * therefore * * * 65 per cent of the accidents of the men who are injured by performing this work will be compensable under this bill.' Id., at 35. See also id., at 44. Another noted that 'our men that are working on the dock are protected, and well protected, under the New York compensation act, but our men on board ship are not protected. We feel that Congress wants to protect them * * *.' Senate Hearings 42.
16
Both Johnson and Klosek's widow and minor children have filed claims, and are concededly entitled to benefits, under the Maryland Workmen's Compensation Act. Avery has already been awarded benefits under the Virginia Workmen's Compensation Law.
17
See Gilmore & Black, supra, n. 5, § 7—17.
18
The legislative history of the Extension Act is devoid of any reference to the Longshoremen's Act, as might well be expected in an Act dealing with a wholly unrelated problem. See S.Rep. No. 1593, 80th Cong., 2d Sess. (1948); H.R.Rep. No. 1523, 80th Cong., 2d Sess. (1948).
The House Report accompanying the Extension Act notes that 'the bill will not create new causes of action,' id., at 3, and the statute speaks of extending jurisdiction to suits 'in rem or in personam' for 'damage' to 'person or property'—concepts wholly at odds with the theory of workmen's compensation—awards made in an administrative proceeding. The conclusion of the District Court is inescapable. 'The two statutes do not deal with the same subject matter, are inherently inconsistent with each other, and cannot be read as being in pari materia.' 243 F.Supp. 184, 194 (1965).
It is worth noting that a contemporaneous amendment of the Longshoremen's Act contains no cross reference to the Extension Act. See Act of June 24, 1948, 62 Stat. 602 (a bill to increase benefits under the Longshoremen's Act, passed five days after the Extension Act). And, a House Report dated July 28, 1958—10 years after enactment of the Extension Act—points out that employees 'on the navigable waters of the United States' are covered under the Longshoremen's Act, but are under state protection 'when performing work on docks and in other shore areas.' H.R.Rep. No. 2287, 85th Cong., 2d Sess., 2 U.S.Code Cong. & Admin. News, p. 3845 (accompanying a bill to provide safety programs for longshoremen).
19
We were informed in argument that two of the parties have in fact already commenced actions against the shipowner.
| 78
|
396 U.S. 142
90 S.Ct. 294
24 L.Ed.2d 325
The DETROIT AND TOLEDO SHORE LINE RAILROAD COMPANY, Petitioner,v.UNITED TRANSPORTATION UNION.
No. 29.
Argued Oct. 20, 1969.
Decided Dec. 9, 1969.
Francis M. Shea, New York City, for petitioner.
Richard R. Lyman, Toledo, Ohio, for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
This case raises a question concerning the extent to which the Railway Labor Act of 19261 imposes an obligation upon the parties to a railroad labor dispute to maintain the status quo while the 'purposely long and drawn out'2 procedures of the Act are exhausted. Petitioner, a railroad, contends that the status quo which the Act requires be maintained consists only of the working conditions specifically covered in the parties' existing collective bargaining agreement. Respondent railroad brotherhood contends that what must be preserved as the status quo are the actual, objective working conditions out of which the dispute arose, irrespective of whether these conditions are covered in an existing collective agreement. For the reasons stated below, we think that only the union's position is consistent with the language and purposes of the Railway Labor Act.
2
The facts involved in this case are these: The main line of the Detroit and Toledo Shore Line (Shore Line), petitioner's railroad, runs from Lang Yard in Toledo, Ohio, 50 miles north to Dearoad Yard near Detroit, Michigan. For many years prior to 1961, Lang Yard was the terminal at which all train and engine crews reported for work and from which they left at the end of the day. As the occasions arose, the Shore Line transported crews from Lang Yard to perform switching and other operations at various points to the north, assuming the costs of transportation and overtime for the crew members. On February 21, 1961, the railroad advised respondent the Brotherhood of Locomotive Firemen and Enginemen (BLF&E)3 of its intention to establish 'outlying work assignments'4 at Trenton, Michigan, a point on the main line about 35 miles north of Lang Yard. These new assignments would have required many employees to report for work at Trenton rather than Lang Yard where they had been reporting. The BLF&E responded to this announcement by filing a notice under § 6 of the Railway Labor Act5 proposing an amendment to the collective bargaining agreement to cover the changed working conditions of the employees who would work out of Trenton. Section 6 requires both the carrier and union to give the other party a 30-day notice of an 'intended change in agreements affecting rates of pay, rules, or working conditions.'6 Since the union thus invoked the 'major-dispute' settlement procedures of the Railway Labor Act,7 the dispute first went to conference and, when the parties failed to agree between themselves, then to the National Mediation Board.
3
While the case was pending before the National Mediation Board, the Shore Line announced two new outlying assignments at Dearoad, Michigan, at the northern end of the line. Because work crews could be taken by cab from Dearoad south to Trenton, the railroad concluded that it no longer needed to establish assignments at Trenton and so advised the Mediation Board. When the Dearoad assignments were announced, the union withdrew from the Mediation Board proceedings, and, before a Special Board of Adjustment convened under § 3 of the Act,8 challenged the railroad's right under the parties' collective agreement to establish outlying assignments. On November 30, 1965, the Special Board ruled that the Shore Line-BLF&E agreement did not prohibit the railroad from making the assignments.9
4
Relying in part on the ruling of the Special Board, the railroad notified the union on January 24, 1966, that it was reviving its plan for work assignments at Trenton. Again the union responded by filing a § 6 notice of a proposed change in the parties' collective agreement. This time the union sought to amend the agreement to forbid the railroad from making any outlying assignments at all. The parties were again unable to negotiate a settlement themselves, and on June 17, 1966, the union invoked the services of the National Mediation Board. While the Mediation Board proceedings were pending, the railroad posted a bulletin definitely creating the disputed work assignments at Trenton effective September 26, 1966. Faced with this unilateral change in working conditions, the union threatened a strike. The railroad then brought this action in the United States District Court to enjoin the BLF&E10 from calling and carrying out the allegedly illegal strike. The union counterclaimed for an injunction prohibiting the Shore Line from establishing outlying assignments on the ground that the status quo provision of § 6 of the Railway Labor Act forbids a carrier from taking unilateral action altering 'rates of pay, rules, or working conditions' while the dispute is pending before the National Mediation Board. The pertinent part of § 6 provides:11
5
'In every case where * * * the services of the Mediation Board have been requested by either party * * *, rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon * * * by the Mediation Board, * * *.' 45 U.S.C. § 156.
6
The District Court dismissed the railroad's complaint, from which no appeal has been taken, but it granted the injunction sought by the union restraining the railroad from establishing any new outlying assignments at Trenton or elsewhere.12 The United States Court of Appeals for the Sixth Circuit affirmed the issuance of the injunction against the railroad. 401 F.2d 368 (1968). We granted certiorari, 393 U.S. 1116, 89 S.Ct. 990, 22 L.Ed.2d 121 (1969).
7
In granting the injunction the District Court held that the status quo requirement of § 6 prohibited the Shore Line from making outlying assignments even though there was nothing in the parties' collective agreement which prohibited such assignments. The Shore Line vigorously challenges this holding. It contends that the purpose of the status quo provisions of the Act is to guarantee only that existing collective agreements continue to govern the parties' rights and duties during efforts to change those agreements. Therefore, the railroad argues, what Congress intended by writing in § 6 that 'rates of pay, rules, or working conditions shall not be altered' was that rates of pay, rules, or working conditions as expressed in an agreement shall not be altered. And since nothing in the railroad's agreement with the union precluded the railroad from altering the location of work assignments, this working condition was not 'expressed in an agreement.' Thus, the argument runs, the railroad could make outlying assignments without violating the status quo provision of § 6, and the judgments below must be reversed.
8
We note at the outset that the language of § 6 simply does not say what the railroad would have it say. Instead, the section speaks plainly of 'rates of pay, rules, or working conditions' without any limitation to those obligations already embodied in collective agreements. More important, we are persuaded that the railroad's interpretation of this section is sharply at variance with the overall design and purpose of the Railway Labor Act.
9
The Railway Labor Act was passed in 1926 to encourage collective bargaining by railroads and their employees in order to prevent, if possible, wasteful strikes and interruptions of interstate commerce.13 The problem of strikes was considered to be particularly acute in the area of 'major disputes,' those disputes involving the formation of collective agreements and efforts to change them. Elgin, J & E.R. Co. v. Burley, 325 U.S. 711, 722—726, 65 S.Ct. 1282, 1289—1291, 89 L.Ed. 1886 (1945). Rather than rely upon compulsory arbitration, to which both sides were bitterly opposed, the railroad and union representatives who drafted the Act chose to leave the settlement of major disputes entirely to the processes of noncompulsory adjustment. Id., at 724, 65 S.Ct. at 1290. To this end, the Act established rather elaborate machinery for negotiation, mediation, voluntary arbitration, and conciliation. General Committee of Adjustment of B.L.E. v. Missouri-K.T.R. Co., 320 U.S. 323, 328 333, 64 S.Ct. 146, 148—151, 88 L.Ed. 76 (1943). It imposed upon the parties an obligation to make every reasonable effort to negotiate a settlement and to refrain from altering the status quo by resorting to self-help while the Act's remedies were being exhausted.14 Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378, 89 S.Ct. 1109, 1115, 22 L.Ed.2d 344 (1969); Elgin, J. & E.R. Co. v. Burley, supra, 325 U.S. at 721 731, 65 S.Ct., at 1288—1294; Texas & N.O.R. Co. v. Brotherhood of Railway & S. S. Clerks, 281 U.S. 548, 565—566, 50 S.Ct. 427, 432, 74 L.Ed. 1034 (1930). A final and crucial aspect of the Act was the power given to the parties and to representatives of the public to make the exhaustion of the Act's remedies an almost interminable process. As we noted in Brotherhood of Railway & Steamship Clerks, etc. v. Florida E.C.R. Co., 384 U.S. 238, 246, 86 S.Ct. 1420, 1424, 16 L.Ed.2d 501 (1966), 'the procedures of the Act are purposely long and drawn out, based on the hope that reason and practical considerations will provide in time an agreement that resolves the dispute.' The Act's status quo requirement is central to its design. Its immediate effect is to prevent the union from striking and management from doing anything that would justify a strike. In the long run, delaying the time when the parties can resort to self-help provides time for tempers to cool, helps create an atmosphere in which rational bargaining can occur, and permits the forces of public opinion to be mobilized in favor of a settlement without a strike or lockout. Moreover, since disputes usually arise when one party wants to change the status quo without undue delay, the power which the Act gives the other party to preserve the status quo for a prolonged period will frequently make it worth-while for the moving party to compromise with the interests of the other side and thus reach agreement without interruption to commerce.
10
There are three status quo provisions in the Act, each covering a different stage of the major dispute settlement procedures. Section 6, the section of immediate concern in this case, provides that 'rates of pay, rules, or working conditions shall not be altered' during the period from the first notice of a proposed change in agreements up to and through any proceedings before the National Mediation Board.15 Section 5 First provides that for 30 days following the closing of Mediation Board proceedings 'no change shall be made in the rates of pay, rules, or working conditions or established practices in effect prior to the time the dispute arose,' unless the parties agree to arbitration or a Presidential Emergency Board is created during the 30 days.16 Finally, § 10 provides that after the creation of an Emergency Board and for 30 days after the Board has made its report to the President, 'no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which the dispute arose.'17 These provisions must be read in conjunction with the implicit status quo requirement in the obligation imposed upon both parties by § 2 First, 'to exert every reasonable effort' to settle disputes without interruption to interstate commerce.18
11
While the quoted language of §§ 5, 6, and 10 is not identical in each case, we believe that these provisions, together with § 2 First, from an integrated, harmonious scheme for preserving the status quo from the beginning of the major dispute through the final 30-day 'cooling-off' period. Although these three provisions are applicable to different stages of the Act's procedures, the intent and effect of each is identical so far as defining and preserving the status quo is concerned.19 The obligation of both parties during a period in which any of these status quo provisions is properly invoked is to preserve and maintain unchanged those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute.20
12
It is quite apparent that under our interpretation of the status quo requirement, the argument advanced by the Shore Line has little merit. The railroad contends that a party is bound to preserve the status quo in only those working conditions covered in the parties' existing collective agreement, but nothing in the status quo provisions of §§ 5, 6, or 10 suggests this restriction. We have stressed that the status quo extends to those actual, objective working conditions out of which the dispute arose, and clearly these conditions need not be covered in an existing agreement. Thus, the mere fact that the collective agreement before us does not expressly prohibit outlying assignments would not have barred the railroad from ordering the assignments that gave rise to the present dispute if, apart from the agreement, such assignments had occurred for a sufficient period of time with the knowledge and acquiescence of the employees to become in reality a part of the actual working conditions. Here, however, the dispute over the railroad's establishment of the Trenton assignments arose at a time when actual working conditions did not include such assignments. It was therefore incumbent upon the railroad by virtue of § 6 to refrain from making outlying assignments at Trenton or any other place in which there had previously been none, regardless of the fact that the railroad was not precluded from making these assignments under the existing agreement.21
13
The Shore Line's interpretation of the status quo requirement is also fundamentally at odds with the Act's primary objective—the prevention of strikes. This case provides a good illustration of why that is so. The goal of the BLF & E was to prevent the Shore Line from making outlying assignments, a matter not covered in their existing collective agreement. To achieve its goal, the union invoked the procedures of the Act. The railroad, however, refused to maintain the status quo and, instead, proceeded to make the disputed outlying assignments. It could hardly be expected that the union would sit idly by as the railroad rushed to accomplish the very result the union was seeking to prohibit by agreement. The union undoubtedly felt it could resort to self-help if the railroad could, and, not unreasonably, it threatened to strike. Because the railroad prematurely resorted to self-help, the primary goal of the Act came very close to being defeated. The example of this case could no doubt be multiplied many times. It would be virtually impossible to include all working conditions in a collective-bargaining agreement. Where a condition is satisfactorily tolerable to both sides, it is often omitted from the agreement, and it has been suggested that this practice is more frequent in the railroad industry than in most others.22 When the union moves to bring such a previously uncovered condition within the agreement, it is absolutely essential that the status quo provisions of the Act apply to that working condition if the purpose of the Act is to be fulfilled. If the railroad is free at this stage to take advantage of the agreement's silence and resort to self-help, the union cannot be expected to hold back its own economic weapons, including the strike. Only if both sides are equally restrained can the Act's remedies work effectively.23
14
We now turn to answer some of the arguments advanced by the Shore Line in support of its position. The first of these involves § 2 Seventh of the Act. That section forbids a carrier from changing 'the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 6 of this Act.'24 (Emphasis added.) The Shore Line argues that this section is a status quo provision and that the 'as embodied in agreements' restriction it contains should be read into the status quo provisions of §§ 5, 6, and 10. We find no merit in this argument. Section 2 Seventh, which was added to the Act in 1934, does not impose any status quo duties attendant upon major dispute procedures. It simply states one category of cases in which those procedures must be invoked. The purpose of § 2 Seventh is twofold: it operates to give legal and binding effect to collective agreements, and it lays down the requirement that collective agreements can be changed only by the statutory procedures. The violation of this section is a criminal offense punishable by imprisonment or fine or both.25 Violations of the status quo provisions of §§ 5, 6, and 10 are only civil wrongs.
15
Second, the Shore Line contends that the interpretation of § 6 which we adopt today is at variance with the position we have taken on two previous occasions, citing Order of Ry. Conductors of America v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318 (1946), and Williams v. Jacksonville Terminal Co., 315 U.S. 386, 62 S.Ct. 659, 86 L.Ed. 914 (1942). Although these cases do contain statements which out of context tend to support petitioner's position, neither dealt with the question we have before us today. Pitney involved a suit brought by a union to enjoin the reorganization trustees of a bankrupt railroad from transferring certain job assignments to another union. The plaintiff's contention was that the disputed jobs belonged to its members by both custom and agreement. The trustees were therefore prohibited from reassigning the jobs, the union argued, since they had never filed the appropriate notice of 'intended change in agreements' required by § 6. The railroad disputed that the reassignments of the jobs would require a 'change in agreements' and thus put the meaning of the parties' agreements in issue. We held that the proper forum for interpreting the agreements was the Adjustment Board provided by Congress in the Railway Labor Act, § 3 First (i), for that purpose, and directed the District Court to stay its proceedings accordingly. 326 U.S., at 567—568, 66 S.Ct., at 325. Thus, Pitney, at most, involved a question of the necessity of filing a § 6 notice and was not at all concerned with the status quo provision of that section.
16
The Williams case is equally inapposite. In that case 'redcaps' brought suit through their union representative against the Dallas railroad terminal to recover wages allegedly owed them and retained by the terminal in violation of the Fair Labor Standards Act and the Railway Labor Act. The redcaps' argument under the Fair Labor Standards Act was that Congress had not intended that tips be included in their wages for purposes of satisfying minimum wage requirements. Yet, that is what the terminal had done under its 'accounting and guarantee' plan from October 1938, when the F.L.S.A. became effective, until March 1940. The majority of the Court rejected the redcaps' argument, holding that the F.L.S.A. neither prohibited nor required the inclusion of tips within wages. The question was held to be one for contract between the parties. 315 U.S., at 407—408, 62 S.Ct., at 671—672. The redcaps' claim under the Railway Labor Act was that the terminal's 'accounting and guarantee' plan under which tips were considered as part of wages was put into operation unilaterally by the terminal on the effective date of the F.L.S.A., despite the fact that the redcaps had two weeks earlier asked for a conference to negotiate an agreement which would include the subject of wages. This, the redcaps argued, violated the status quo provisions of § 6 since prior to the F.L.S.A. tips had not been included in wages. The Court concluded, however, that § 6 was not applicable to the dispute between the parties. The Court reasoned that when the redcaps continued to work after being individually notified of the 'accounting and guarantee' plan, new and independent contracts were formed between each redcap and the terminal. The Court held that these contracts were not affected by the pending request for collective bargining under the Railway Labor Act. The decision rested partially on the ground that '(i)ndependent individual contracts are not affected by the Act.' 315 U.S., at 399, 62 S.Ct., at 667. And the Court also said more narrowly that the status quo requirements of § 6 were inapplicable since that section applies only when a 'change in agreements' is involved. 315 U.S., at 400, 62 S.Ct., at 668. In Williams there was absolutely no prior history of any collective bargaining or agreement between the parties on any matter. Without pausing to comment upon the present vitality of either of these grounds for dismissing the redcaps' Railway Labor Act claim, it is readily apparent that Williams involved only the question of whether the status quo requirement of § 6 applied at all. The Court in Williams therefore never reached the question of the scope of the status quo requirement in a dispute, such as the one before the Court today, to which that requirement concededly applies.
17
Finally, the Shore Line points out, quite correctly, that its position on § 6 is identical to that taken by the National Mediation Board in several of its Annual Reports.26 However, the Mediation Board has no adjudicatory authority with regard to major disputes, nor has it a mandate to issue regulations construing the Act generally. Certainly there is nothing in the Act which can be interpreted as giving the Mediation Board the power to change the plain, literal meaning of the statute, which would be the result were we to adopt its interpretation of § 6.
18
The judgment is affirmed.
19
Affirmed.
20
Mr. Justice HARLAN, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part.
21
I fully agree that the application of § 6 should not be restricted to only those terms of employment that the parties have seen fit to embody in a written agreement. Section 6 may properly, in some circumstances, be extended to 'freeze' de facto conditions of employment. I cannot, however, accept what appears to be the majority's test for determining when a § 6 freeze is appropriate.1 Any work practice is, in the words of the majority, an 'actual, objective working condition.' However the practice of today may not be the accepted condition of yesterday, but rather a temporary expedient in which neither party acquiesces. I find it difficult to think that Congress intended that either party, by serving a § 6 notice, should be able to shackle his adversary and tie him to a condition that has been historically and consistently controverted.
22
Rather, what persuades me to countenance the extension of § 6 beyond the terms of a written collective-bargaining agreement is the fact, observed by the Court, that '(w)here a condition is satisfactorily tolerable to both sides, it is often omitted from the agreement, * * *,' ante, at 155. Taking this observation as a point of departure, I favor a more subjective approach than the objective and mechanical one implicit in the majority's language. The question that should be asked is whether in the context of the relationship between the principals, taken as a whole, there is a basis for implying an understanding on the particular practice involved. To this end it is necessary to consider not only the duration of the practice but also all the dealings between the parties, as for example, whether the particular condition has been the subject of prior negotiations.
23
While I recognize, of course, that any subjective test is not easily applied, I cannot subscribe to a rule that may have the incongruous effect of perpetuating what both parties in fact view as a disputed practice, simply because neither party, for reasons of convenience, has exercised a recognized option of resorting to self-help.
24
Under this standard I consider that the proper disposition of the case before us is to remand to the District Court for additional findings.2 While the District Court found that '(f)or many years prior to 1961' Lang Yard was the established terminal point for reporting to duty, that finding alone would not satisfy a subjective test in light of subsequent events that may have negatived any understanding that might have existed prior to 1961.3 In 1961 the Shore Line advised the union of a contemplated shifting of reporting to its Trenton terminal some 30 miles north. The proposal apparently met with employee resistance and the union served a § 6 notice seeking to modify the agreement with the railroad. By 1963 the parties had exhausted the statutory mediation route without reconciling their differences and the Mediation Board recommended arbitration to break the impasse. This proposal was rejected by the company which declared the dispute moot since, by that time, it had abandoned its Trenton project. Meanwhile, the company embarked on a practice of transporting employees at its own expense and on company time from its Dearoad terminal, 11 miles north of Trenton, a practice which is the subject of a separate § 6 notice.
25
In my opinion a remand is called for to determine whether the company's voluntary abandonment of its Trenton project, coupled with its undertaking to transport employees from Dearoad at its own cost and the long-established practice prior to 1961, amounted to acceptance in principle ofLang Yard as the reporting location.
26
For that reason I respectfully dissent from the Court's affirmance of the Court of Appeals.
1
44 Stat. 577, as amended, 45 U.S.C. § 151 et seq.
2
Brotherhood of Railway and Steamship Clerks, etc. v. Florida E.C.R. Co., 384 U.S. 238, 246, 86 S.Ct. 1420, 1424, 16 L.Ed.2d 501 (1966).
3
The United Transportation Union, the successor organization to the Brotherhood of Locomotive Firemen and Enginemen, was substituted as party respondent by order of the Court, March 3, 1969. Respondents also include two officers of the BLF&E named in the original complaint.
4
The parties treat the term 'outlying work assignment' as meaning a work assignment with a reporting point for going on and off duty located elsewhere than at the Shore Line's principal yard, Lang Yard in Toledo, Ohio. We adopt that usage here.
5
44 Stat. 582, as amended, 45 U.S.C. § 156. Section 6, in its entirety, provides:
'Carriers and representatives of the employees shall give at least thirty days' written notice of an intended change in agreements affecting rates of pay, rules, or working conditions, and the time and place for the beginning of conference between the representatives of the parties interested in such intended changes shall be agreed upon within ten days after the receipt of said notice, and said time shall be within the thirty days provided in the notice. In every case where such notice of intended change has been given, or conferences are being held with reference thereto, or the services of the Madiation Board have been requested by either party, or said Board has proffered its services, rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon as required by section 5 of this Act, by the Mediation Board, unless a period of ten days has elapsed after termination of conferences without request for or proffer of the services of the Mediation Board.'
6
See n. 5, supra.
7
A 'major dispute' is one arising out of the formation or change of collective agreements covering rates of pay, rules, or working conditions. Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 722—727, 65 S.Ct. 1282, 1289—1292, 89 L.Ed. 1886 (1945).
8
44 Stat. 578, as amended, 45 U.S.C. § 153. At this point, the BLF&E was considering the controversy as a 'minor dispute,' i.e., a dispute arising out of the interpretation or application of collective agreements. Under § 3 of the Railway Labor Act such disputes are settled by an Adjustment Board whose interpretation of the collective agreement is binding on the parties. See Elgin, J. & E.R. Co. v. Burley, supra, at 722—727, 65 S.Ct., at 1289 1292.
9
The Special Board Adjustment found:
'What took place here was not a change in the recognized terminal, but simply amounted to an outlying assignment. There is nothing in the rules of agreement which precludes this carrier from establishing an outside assignment.' App. 110.
10
The Brotherhood of Railroad Trainmen was also named a defendant, as were several officers of both unions. The causes of action against the two brotherhoods were completely different, however, and the cases were treated as distinct at trial and on appeal. The Brotherhood of Railroad Trainmen is not involved in the present litigation at this stage.
11
The full section is set out in n. 5, supra.
12
The order of the District Court is unreported. Detroit & Toledo Shore Line R. Co. v. Brotherhood of Locomotive Firemen & Enginemen, No. C66—207 (D.C.N.D.Ohio, filed Nov. 15, 1966). The opinion of the District Court on motion to vacate the judgment is reported at 267 F.Supp. 572 (1967).
13
In Texas & N.O.R. Co. v. Brotherhood of Railway & S.S. Clerks, 281 U.S. 548, 565, 50 S.Ct. 427, 432, 74 L.Ed. 1034 (1930), the Court said: 'The Brotherhood insists, and we think rightly, that the major purpose of Congress in passing the Railway Labor Act was 'to provide a machinery to prevent strikes."
14
The Act's major-dispute procedures and status quo requirement were concisely stated in an opinion by Mr. Justice Harlan only last Term, Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378, 89 S.Ct. 1109, 1115, 22 L.Ed.2d 344 (1969):
'The Act provides a detailed framework to facilitate the voluntary settlement of major disputes. A party desiring to effect a change of rates of pay, rules, or working conditions must give advance written notice. § 6. The parties must confer, § 2 Second, and if conference fails to resolve the dispute, either or both may invoke the services of the National Mediation Board, which may also proffer its services sua sponte if it finds a labor emergency to exist. § 5 First. If mediation fails, the Board must endeavor to induce the parties to submit the controversy to binding arbitration, which can take place, however, only if both consent. §§ 5 First, 7. If arbitration is rejected and the dispute threatens 'substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service, the Mediation Board shall notify the President,' who may create an emergency board to investigate and report on the dispute. § 10. While the dispute is working its way through these stages, neither party may unilaterally alter the status quo. §§ 2 Seventh, 5 First, 6, 10.'
15
section 6 is set out in its entirety in n. 5, supra.
16
Section 5 First, 44 Stat. 580, as amended, 45 U.S.C. § 155 First, provides in part:
'If arbitration at the request of the Board shall be refused by one or both parties, the Board shall at once notify both parties in writing that its mediatory efforts have failed and for thirty days thereafter, unless in the intervening period the parties agree to arbitration, or an emergency board shall be created under section 10 of this Act, no change shall be made in the rates of pay, rules, or working conditions or established practices in effect prior to the time the dispute arose.'
17
Section 10, 44 Stat. 586, as amended, 45 U.S.C. § 160, provides in part:
'After the creation of such board and for thirty days after such board has made its report to the President, no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which the dispute arose.'
18
Section 2 First, 44 Stat. 577, as amended, 45 U.S.C. § 152 First (1964), provides:
'It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.'
The relationship between the status quo provisions and § 2 First, was made explicit in the testimony of Donald Richberg who spoke as the unions' representative when the proposed railroad legislation was presented to Congress jointly by the railroads and the unions:
'As to maintaining the status quo from the time that a dispute is engendered, it is a violation of the duties imposed by this law for either party to take any action to arbitrarily change the conditions until that dispute has been adjusted in accordance with the law. Their primary duty is to exert every reasonable effort to avoid interruptions of commerce through disputes. The 'reasonable efforts' are set forth here that all disputes shall be considered and decided in conference, if possible; that, second, if conference fails a certain type of disputes shall be carried to the board of adjustment; the other type of disputes, or those not decided by the board of adjustment, may be carried to the board of mediators, and it shall be the duty of the board of mediators to act.' Hearings on H.R. 7180 before the House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., 92—93 (1926).
19
This interpretation of the status quo provisions is supported by the legislative history of the Act. See, e.g., the testimony of Donald Richberg set out in n. 18, supra. Mr. Richberg also testified:
'(T)he only thing that can provoke an arbitrary action (referring to strikes) is the power to arbitrarily change the rates of pay or rules of working conditions before the controversy is settled, and it is provided that they shall not be altered during the entire period of utilization of this law.' Hearings on H.R. 7180 before the House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., 93—94 (1926).
Moreover, when the status quo provision of § 5 was added to that section in 1934, its purpose was to provide continuity between §§ 6 and 10 by preserving the status quo for 30 days following the end of proceedings before the Mediation Board. Joseph B. Eastman, Federal Co-ordinator of Transportation, the principal draftsman and proponent of the 1934 amendments, testified:
'As the present act reads, a railroad, by rejecting the Board of Mediation's final recommendation to arbitrate the dispute, is enabled to change the rates of pay, rules, or working conditions arbitrarily, prior to the issuance of an order by the President appointing a fact-finding board and maintaining the status quo for 60 days. * * * The railroads have taken advantage of this unintentional hiatus in the present law in several instances. The change now proposed is designed to plug this hold.' Hearings on S. 3266 before the Senate Committee on Interstate Commerce, 73d Cong., 2d Sess., 21 (1934).
20
The status quo provision of § 10 was the only one discussed in any depth at the 1926 congressional hearings on the bill. Donald Richberg, n. 19, supra, testified as follows when questioned about the intended scope of the status quo provision:
'The thought was to include in the broadest way all the factors which contributed to what is commonly called the status quo. In other words, the conditions may depend upon the dispute, whether it is with regard to rules or with regard to wages.' Hearings on H.R. 7180 before the House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., 44 (1926).
'What broader phrase could be used than 'conditions out of which the dispute arose' which comprehends all the elements affecting the controversy? It is intended to make it clear that the parties are going to wait and give the Government full opportunity to adjust the controversy.' Hearings on S. 2306 before the Senate Committee on Interstate Commerce, 69th Cong., 1st Sess., 88—89 (1926).
21
See n. 9, supra.
22
Brief of Railway Labor Executives' Association as amicus curiae 17.
23
Respondent BLF&E has urged in its brief that we also consider the question whether the Shore Line violated a duty to bargain in good faith, citing Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed. 233 (1964), and NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). Deciding the case as we do under the status quo provisions of the Act, we find it unnecessary to reach this argument.
24
Section 2 Seventh, 48 Stat. 1188, 45 U.S.C. § 152 Seventh, provides as follows: follows:
'No carrier, its officers or agents shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 6 of this Act.'
25
Railway Labor Act, § 2 Tenth, 48 Stat. 1189, 45 U.S.C. § 152 Tenth.
26
The 34th Annual Report of the National Mediation Board stated:
'Section 6 states that where notice of intended change in an agreement has been given, rates of pay, rules, and working conditions as expressed in the agreement shall not be altered by the carrier until the controversy has been finally acted upon in accordance with specified procedures.' NMB, 34th Ann.Rep. 23 (fiscal year ended June 30, 1968). Emphasis added. See also NMB, 33d Ann.Rep. 36 (fiscal year ended June 30, 1967); NMB, 31st Ann.Rep. 25 (fiscal year ended June 30, 1965).
1
The majority first announces a test looking to 'actual, objective working conditions,' ante, at 153. This is later qualified by a durational requirement, but no general principle of decision is set forth.
2
While the District Court and the Court of Appeals both properly rejected petitioner's theory, restricting § 6 to terms embodied in a written agreement, it is by no means clear to me precisely what standard they followed in concluding that the Act was applicable.
3
The District Court, as I read its findings, does not appear to have considered the possible impact of the train of events revealed by the record in connection with 1961—1963 proceedings before the Board.
| 67
|
396 U.S. 162
90 S.Ct. 309
24 L.Ed.2d 340
CITY OF CHICAGO, et al., Appellants,v.UNITED STATES et al. CITY OF CHICAGO, et al., Appellants, v. UNITED STATES et al.
Nos. 101 and 102.
Argued Nov. 20, 1969.
Decided Dec. 9, 1969.
Gordon P. MacDougall and Howard E. Shapiro, Washington, D.C., for appellants.
James W. Hoeland, Louisville, Ky., for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The question in these cases is whether orders of the Interstate Commerce Commission discontinuing investigations respecting the notice of rail carriers to terminate or change the operation or services of interstate passenger trains are judicially reviewable on the complaint of aggrieved persons.
2
Section 13a(1) of the Interstate Commerce Act, as amended, 72 Stat. 571, 49 U.S.C. § 13a(1), provides, with details not important here, that a rail carrier may file notice of such discontinuance or change with the Commission and that within 30 days the Commission may make an investigation of the proposed discontinuance or change. Apart from interim relief, the Commission may order continuance of the operation and service for a period not to exceed one year.1 One of the present cases involves two interstate passenger trains between Chicago and Evansville, Indiana, discontinued by the Chicago & Eastern Illinois Railroad Co., 331 I.C.C. 447, and the other involves two interstate passenger trains between New Orleans and Cincinnati discontinued by the Louisville & Nashville Railroad Co., 333 I.C.C. 720.
3
In each case the Commission, addressing itself to the standards in § 13a(1), found that continued operation of the trains was not required by public convenience and necessity and that continued operation would unduly burden interstate commerce. It thereupon entered in each case an order terminating its investigation of the proposed discontinuance.
4
Appellants in each case—cities, state regulatory agencies, and other interested parties—brought these suits before the same three-judge court to review the Commission's decisions. It is provided by 28 U.S.C. § 1336(a):
5
'Except as otherwise provided by Act of Congress, the district courts shall have jurisdiction of any civil action to enforce, enjoin, set aside, annul or suspend, in whole or in part, any order of the Interstate Commerce Commission.'
6
The District Court held that decisions terminating investigations under § 13a(1) are not 'orders' within the meaning of 28 U.S.C. § 1336(a).2 294 F.Supp. 1103, 1106. The cases are here on direct appeal, 28 U.S.C. §§ 1253, 2325, and we noted probable jurisdiction. 395 U.S. 957, 89 S.Ct. 2103, 23 L.Ed.2d 744.
7
As stated in Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1510, 18 L.Ed.2d 681, we start with the presumption that aggrieved persons may obtain review of administrative decisions unless there is 'persuasive reason to believe' that Congress had no such purpose. Certainly under § 13a(1) the carrier, if overruled by the Commission, could obtain review. We can find no talismanic sign indicating that Congress desired to deny review to opponents of interstate discontinuances alone.
8
Section 13a in its present form came into the Act in 1958 and was designed to supersede the prior confused and time-consuming procedure under which the States supervised the discontinuance of passenger trains. Accordingly, Congress provided a uniform federal scheme to take the place of the former procedure.3 A single federal standard was to govern train discontinuances whether interstate or intrastate, though the procedure of § 13a(1) for discontinuance of an interstate train was made somewhat different from the procedure for discontinuance of intrastate trains.4 But the Commission is to have the final say in each case and 'precisely the same substantive standard' now governs discontinuance of either interstate or intrastate operations. Southern R. Co. v. North Carolina, 376 U.S. 93, 103, 84 S.Ct. 564, 570.
9
Whether the Commission should make an investigation of a § 13a(1) discontinuance is of course within its discretion, a matter which is not reviewable. New Jersey v. United States, 168 F.Supp. 324, aff'd, Bergen County v. United States, 359 U.S. 27, 79 S.Ct. 607, 3 L.Ed.2d 625. But when the Commission undertakes to investigate, it is under a statutory mandate:
10
'Whenever an investigation shall be made by said Commission, it shall be its duty to make a report in writing in respect thereto, which shall state the conclusions of the Commission, together with its decision, order, or requirement in the premises; * * *.' 49 U.S.C. § 14(1).
11
A decision to investigate indicates that a substantial question exists under the statutory standards. The Commission's report therefore deals with the merits. We cannot say that an answer that discontinuance should not be allowed is agency 'action,' while an answer saying the reverse is agency 'inaction.' The technical form of the order is irrelevant. In each case the Commission is deciding the merits. The present cases are kin to the 'negative orders'5 which we dealt with in Rochester Telephone Corp. v. United States, 307 U.S. 125, 142—143, 59 S.Ct. 754, 763 764, 83 L.Ed. 1147:
12
'An order of the Commission dismissing a complaint on the merits and maintaining the status quo is an exercise of administrative function, no more and no less, than an order directing some change in status. The nature of the issues foreclosed by the Commission's action and the nature of the issues left open, so far as the reviewing power of courts is concerned, are the same. * * * We conclude, therefore, that any distinction, as such, between 'negative' and 'affirmative' orders, as a touchstone of jurisdiction to review the Commission's orders, serves no useful purpose, and insofar as earlier decisions have been controlled by this distinction, they can no longer be guiding.'
13
The District Court reasoned that since 'the statute is self-implementing,' only an 'order' requiring action is reviewable. 294 F.Supp., at 1106. But that theory is of the vintage we discarded in Rochester Telephone.
14
Reversed.
1
Section 13a(2), applicable to discontinuance of intrastate trains, provides that where a State bars discontinuance or change in operation or service of a train, or where the state authority has not acted on a carrier's application for such discontinuance or change within 120 days, the carrier may petition the Commission for a grant of such authority.
2
There is a conflict among the District Courts. Minnesota v. United States, 238 F.Supp. 107 (D.C.Minn.), and New Hampshire v. Boston & Maine Corp., 251 F.Supp. 421 (D.C.N.H.), are in accord with the District Court in the instant cases. Opposed to that view are Vermont v. Boston & Maine Corp., 269 F.Supp. 80 (D.C.Vt.), and New York v. United States, 299 F.Supp. 989 (D.C.N.D.N.Y.), and see City of Williamsport v. United States, 273 F.Supp. 899, 282 F.Supp. 46 (D.C.N.D.Pa.), aff'd, 392 U.S. 642, 88 S.Ct. 2286, 20 L.Ed.2d 1348.
3
'Without reciting individual cases the subcommittee is satisfied that State regulatory bodies all too often have been excessively conservative and unduly repressive in requiring the maintenance of uneconomic and unnecessary services and facilities. Even when allowing the discontinuance or change of a service or facility, these groups have frequently delayed decisions beyond a reasonable time limit. In many such cases, State regulatory commissions have shown a definite lack of appreciation for the serious impact on a railroad's financial condition resulting from prolonged loss-producing operations.
'To improve this situation, the subcommittee proposes to give the Interstate Commerce Commission jurisdiction in the field of discontinuance or change of rail services and facilities similar to the jurisdiction it now has over intrastate rates under section 13 of the Interstate Commerce Act so that when called upon to do so it may deal with such matters that impose an undue burden on interstate commerce. This, the subcommittee believes, would protect and further the broad public interest in a sound transportation system and would prevent undue importance being attached to matters of a local nature.' S.Rep. No. 1647, 85th Cong., 2d Sess., 22. For a review of the legislative history of § 13a(2), see Southern R. Co. v. North Carolina, 376 U.S. 93, 100 103, 84 S.Ct. 564, 568—570, 11 L.Ed.2d 541.
4
See n. 1, supra.
5
The Administrative Procedure Act, 5 U.S.C. § 551(6), 1964 ed., Supp. IV), defines 'order' as including a 'negative' form of 'a final disposition' by agency action. And that kind of 'order' is subject to judicial review. 5 U.S.C. §§ 551(13), 701(b)(2), 702 (1964 ed., Supp. IV).
When carriers file new rates, the Commission has authority on its own initiative or on complaint to make an investigation either with or without suspension of the new rates. 49 U.S.C. § 15(7). Where the Commission finds the proposed rates lawful, its order reads: '(T)he investigation proceedings (are) discontinued.' See Eastern Central Motor Carriers Assn. v. Baltimore & O.R. Co., 314 I.C.C. 5, 51. Such orders are reviewable. Cooper-Jarrett, Inc. v. United States, 226 F.Supp. 318, aff'd, 379 U.S. 6, 85 S.Ct. 49, 13 L.Ed.2d 21.
| 89
|
396 U.S. 122
90 S.Ct. 337
24 L.Ed.2d 312
The FIRST NATIONAL BANK IN PLANT CITY, FLORIDA, Petitioner,v.Fred O. DICKINSON, Jr., et al. William B. CAMP, Comptroller of the Currency, Petitioner, v. Fred O. DICKINSON, Jr., et al.
Nos. 19 and 34.
Argued Oct. 16, 1969.
Decided Dec. 9, 1969.
Rehearing Denied Jan. 19, 1970.
See 396 U.S. 1047, 90 S.Ct. 677.
[Syllabus from pages 122-123 intentionally omitted]
James van R. Springer, Washington, D.C., and Robert S. Edwards, Plant City, Fla., for petitioners.
William Reece Smith, Jr., Tampa, Fla., and V. Carroll Webb, Tallahassee, Fla., for respondents.
James F. Bell, Washington, D.C., for National Association of Supervisors of State Banks, as amicus curiae, by special leave of Court.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
In this case we are called upon to construe § 7 of the McFadden Act of 1927, 44 Stat. 1228, as amended, 12 U.S.C. § 36, as it relates to the definition of a branch bank for the purpose of determining the scope of branch banking available to a national bank in a State that prohibits branches for state banks.
2
12 U.S.C. § 36(f) provides in pertinent part:
3
'(f) The term 'branch' as used in this section shall be held to include any branch bank, branch office, branch agency, additional office, or any branch place of business * * * at which deposits are received, or checks paid, or money lent.'
4
Florida prohibits all branch banking by state chartered banks; by statute a Florida bank may 'have only one place of doing business,' and all the business of the bank is to be carried on at that place 'and not elsewhere.'1 The issue must be resolved by determining what constitutes a 'branch' or 'additional office'; there is a threshold question of the extent to which this is governed by federal law.
5
The First National Bank in Plant City, Florida, is a national banking association organized and operated pursuant to the National Bank Act, 12 U.S.C. § 21 et seq.; it sought and received from the United States Comptroller of the Currency permission to operate two services for the convenience of customers; one was an armored car messenger service and the other an off-premises receptacle for the receipt of packages containing cash or checks for deposit. The Comptroller's letter authorizing the armored car messenger service relied upon paragraph 7490 of the Comptroller's Manual for National Banks,2 a relatively recent ruling which specifically authorizes such a service. A second letter authorizing construction of an off-premises receptacle authorized such a service 'as an incident to' the bank's ordinary business. Both letters contained explicit instructions to First National designed to insure that deposits so received would not become bank liabilities until actually in the hands of the bank teller at the chartered office or regular 'banking house'; and that checks cashed for customers would be deemed paid at the bank when the cash was handed to the messenger, not when the cash was delivered to the customer by the armored car teller.
6
Relying on these letters, First National offered an armored car service and a secured receptacle for receipt of monies intended as deposits. The bank advertised 'Full Service Banking at your doorstep * * * ' and a 'mobile drive-in * * * where customers may be served * * *.' A more detailed examination of the services shows that customers having an account with First National could, upon signing a 'Comprehensive Dual Control Contract,'3 arrange to have the armored car call at their place of business to pick up cash and checks for deposit, or to bring cash to them in exchange for checks delivered to the armored car teller. The contract provided that in each situation the bank's armored car messenger would be the agent of the customer. Additionally, proffered deposits were accompanied by a transmittal slip upon which the customer itemized the funds being deposited in the same manner as with deposits made at the chartered office of the bank. The transmittal slip contained a 'Contract' which provided that in this off-premises transaction the bank was the agent of the customer, and that 'the transmittal of said currency, coin and checks, shall not be deemed to be a deposit until delivered into the hands of the bank's tellers at the said banking house.'4 Sums of cash for transmission to the customer were accompanied by a charge slip indicating that the customer's account had been charged for the amount of the order.
7
The armored car was owned and controlled by the bank; the teller and driver-guard in the car were bank employees. The bank paid the cost of armored car operations and assumed complete responsibility for the monies, checks, and deposits during transit by means of an insurance policy bought and paid for by it to protect the customer and the bank. The armored car service operated six days per week in Plant City and the surrounding trade area in Hillsborough and Polk Counties. The armored car had a plate glass window, a sliding drawer, and a counter on one side where customers might be served. The truck bore the name of the bank and had two-way radiophone communication with the bank. All movements and routing of the armored car were directed by the bank. First National handled about $1,000,000 per week through the armored car.
8
The stationary off-premises receptacle for receipt of monies intended for deposit was located in a shopping center one mile from First National's banking house in a space leased by the bank. The facility consisted of a secured receptacle for monies and night bags, together with a writing table supplied with envelopes and transmittal slips identical to those used by the armored car messenger service. The envelopes recited that the funds transported were accepted in accordance with the contract printed on the transmittal slip. A sign at the receptacle recited that the messenger who collected the funds acted as agent for the customer, that funds would not be deemed to have been deposited until delivered at the bank's premises, and that insurance on the funds was provided by the bank. Customers maintaining an account with the bank who had signed the Comprehensive Dual Control Contract were issued a key to open the off-premises depository to drop off the night pouches in the receptacle. The armored car serviced the receptacle daily. The armored car teller, upon making pickups of such night pouches, promptly identified all monies and other items placed in the depository and immediately recorded them by the depositor's number. The driver-guard verified all items collected by the teller and signed the written bank record identifying the monies obtained at the stationary depository.
9
On September 28, 1966, the Comptroller of the State of Florida, respondent herein, addressed a letter to First National advising it that the proposed depository then under construction and the provision of an armored car messenger service would each violate the prohibition under Florida law against branch banking. The letter requested that First National cease and desist all such operations.
10
First National then sued in the United States District Court for the Northern District of Florida seeking declaratory and injunctive relief against respondent. The United States Comptroller intervened as plaintiff on the side of First National; several state banks intervened to support the Florida Comptroller. The District Court granted judgment for petitioners, 274 F. Supp. 449 (D.C.N.D.Fla.1967). The Court of Appeals reversed, 400 F.2d 548 (C.A.5th Cir. 1968). We affirm the Court of Appeals.
Federal Statute and Policy
11
The conditions under which national banks may establish branches are embodied in § 7 of the McFadden Act, 44 Stat. 1228, as amended, codified in 12 U.S.C. § 36. One such condition is that a 'branch' may be established only when, where, and how state law would authorize a state bank to establish and operate such a branch, 12 U.S.C. § 36(c).5 First National Bank of Logan, Utah v. Walker Bank & Trust Co., 385 U.S. 252, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966).
12
We have noted that the State of Florida permits no branch banking under a statute providing that banks are to 'have only one place of doing business'; the business of the bank may be transacted at that place 'and not elsewhere.'6 The parties agree generally that the McFadden Act permits national banks to branch if and only if the host State permit one of its own banks to branch; the Florida Bank Comptroller insists that the State of Florida unequivocally forbids off-premises banking of any kind. Thus the lines are clearly drawn; the question presented is whether the activities of First National authorized by the United States Comptroller are branch banking.
13
At the outset we note that, while Congress has absolute authority over national banks, the federal statute has incorporated by reference the limitations which state law places on branch banking activities by state banks. Congress has deliberately settled upon a policy intended to foster 'competitive equality.' Walker Bank, 385 U.S., at 261, 87 S.Ct., at 497, 17 L.Ed.2d 343. State law has been utilized by Congress to provide certain guidelines to implement its legislative policy.
14
We need not review the legislative history of the McFadden Act and prior national bank legislation as it relates to this problem; that task was performed by Mr. Justice Clark in Walker Bank, supra, where a unanimous Court noted that the McFadden Act was a response to the competitive tensions inherent in a dual banking structure where state and national banks coexist in the same area. That Act reflects the congressional concern that neither system have advantages over the other in the use of branch banking. A House Report shows that in 1926 there was congressional concern to protect national banks from the unrestricted branch bank competition of state banks:
15
'The present situation is intolerable to the national banking system. The bill proposes the only practicable solution by stopping the further extension of state-wide branch banking in the Federal reserve system by State member banks and by permitting national banks to have branches in those cities where State banks are allowed to have them under State laws.' H.R.Rep. No. 83, 69th Cong., 1st Sess., 7 (1926).
16
The bill to which this report was addressed failed to pass in the Senate. In tracing the legislative history of the bill which passed the following year, this Court in Walker Bank, supra, observed:
17
'The intent of the Congress to leave the question of the desirability of branch banking up to the States is indicated by the fact that the Senate struck from the House bill the time limitation, thus permitting a subsequent change in state law to have a corresponding effect on the authority of national banks to engage in branching. The Senate Report concluded that the Act should permit 'national banks to have branches in those cities where State banks are allowed to have them under State laws." 385 U.S., at 258, 87 S.Ct., at 496, quoting from S.Rep.No. 473, 69th Cong., 1st Sess., 14 (1926).
18
At the time of its enactment into law, Representative McFadden stated that:
19
'As a result of the passage of this act, the national bank act has been so amended that national banks are able to meet the needs of modern industry and commerce and competitive equality has been established * * *.' 68 Cong.Rec. 5815 (1927). (Emphasis supplied.)
20
When the economic depression of the 1930's brought on widespread bank failures, Congress responded by amending the McFadden Act with the passage of the Banking Act of 1933, which further strengthened the policy of competitive equality. Some Members argued that bank failures were due to the under-capitalization of small rural banks and sought to authorize national banks to engage in branch banking without regard to state law; but that approach was rejected. As finally passed, the Act was reported to the House by one of the members of the Conference Committee, Representative Luce, with this statement:
21
'In the controversy over the respective merits of what are known as 'unit banking' and 'branch banking' * * * branch banking has been steadily gaining in favor. It is not, however, here proposed to give the advocates of branch banking any advantage. We do not go an inch beyond saying that the two ideas shall compete on equal terms and only where the States make the competition possible by letting their own institutions have branches.' 385 U.S., at 260, 87 S.Ct., at 497, quoting from 77 Cong.Rec. 5896 (1933). (Emphasis supplied.)
22
The policy of competitive quality is therefore firmly embedded in the statutes governing the national banking system. The mechanism of referring to state law is simply one designed to implement that congressional intent and build into the federal statute a self-executing provision to accommodate to changes in state regulation.
23
We reject the contention made by amicus curiae National Association of Supervisors of State Banks to the effect that state law definitions of what constitutes 'branch banking' must control the content of the federal definition of § 36(f).7 Admittedly, state law comes into play in deciding how, where, and when branch banks may be operated, Walker Bank, supra, for in § 36(c) Congress entrusted to the States the regulation of branching as Congress then conceived it. But to allow the States to define the content of the term 'branch' would make them the sole judges of their own powers. Congress did not intend such an improbable result, as appears from the inclusion in § 36 of a general definition of 'branch.' On this point the language of the Court of Appeals perhaps overstated the relation of state law to the problem, since the threshold question is to be determined as a matter of federal law, having in mind the congressional intent that so far as branch banking is concerned 'the two ideas shall compete on equal terms and only where the States make the competition possible by (allow) their own institutions (to) have branches.' In short, the definition of 'branch' in § 36(f) must not be given a restrictive meaning which frustrate the congressional intent this Court found to be plain in Walker Bank, supra.8
24
Against this background, we turn to the question whether the off-premises business activities conducted by First National amounted to 'branch' banking within the meaning of the McFadden Act. Since national banks are 'necessarily subject to the paramount authority of the United States,' First National Bank in St. Louis v. Missouri, 263 U.S. 640, 656, 44 S.Ct. 213, 215, 68 L.Ed. 486 (1924), we consult that part of the McFadden Act that defines the term 'branch.' 12 U.S.C. § 36(f) provides:
25
'(f) The term 'branch' as used in this section shall be held to include any branch bank, branch office, branch agency, additional office, or any branch place of business * * * at which deposits are received, or checks paid, or money lent.' Although the definition may not be a model of precision, in part due to its circular aspect, it defines the minimum content of the term 'branch'; by use of the word 'include' the definition suggests a calculated indefiniteness with respect to the outer limits of the term. However, the term 'branch bank' at the very least includes any place for receiving deposits or paying checks or lending money apart from the chartered premises; it may include more. It should be emphasized that, since § 36(f) is phrased in the disjunctive, the offering of any one of the three services mentioned in that definition will provide the basis for finding that 'branch' banking is taking place. Thus not only the taking of deposits but also the paying of checks or the lending of money could equally well provide the basis for such a finding. Although the District Court briefly discussed the possibility that checks were being paid, we confine ourselves to the question of whether deposits were received. Specifically, we must resolve the question whether the mobile armored car service and stationary deposit receptacle singly or together fall within the ambit of that section. As to the receiving of deposits, the functions of the two facilities are essentially the same, hence they may be considered together.
26
First National and the Comptroller of the Currency urge that the challenged activity does not amount to branch banking under § 36(f). First National relies heavily, if indeed not entirely, upon carefully drawn contracts with its customers who use armored car or deposit receptacle services. The bank urges that, 'deposit' being a word of art, the determination of when a deposit is made is not a casual one inasmuch as that determination fixes important legal relationships of the parties.
27
The bank also urges that creation of a deposit being purely a matter of intent, the issue is governed exclusively by the private contract. Since these contracts must be interpreted under state law, the argument runs, no 'deposit' is actually received as such until monies delivered to the armored car or the receptacle are physically delivered into the hands of a bank teller at the chartered premises. Until such time the bank may not, under the contracts, be held to account for the customer's funds.
28
We have no difficulty accepting the bank's argument that the debtor-creditor relationship is a creature of contract and that the parties can agree that until monies are physically delivered to the bank no deposit will be credited to the customer's account.9 We are satisfied, however, that the contracts have no significant purpose other than to remove the possibility that the monies received will become 'deposits' in the technical and legal sense until actually delivered to the chartered premises of the bank.
29
We do not challenge the right of the contracting parties to fix rights and risks as between themselves; nothing in the law precludes the parties from agreeing, for example, that the bank does not assume the status of bailee, with liability for loss of money in transit. But while the contracting parties are free to arrange their private rights and liabilities as they see fit, it does not follow that private contractual arrangements, binding on the parties under state law, determine the meaning of the language or the reach of § 36(f).
30
Because the purpose of the statute is to maintain competitive equality, it is relevant in construing 'branch' to consider, not merely the contractual rights and liabilities created by the transaction, but all those aspects of the transaction that might give the bank an advantage in its competition for customers. Unquestionably, a competitive advantage accrues to a bank that provides the service of receiving money for deposit at a place away from its main office; the convenience to the customer is unrelated to whether the relationship of debtor and creditor is established at the moment of receipt or somewhat later.
31
We need not characterize the contracts as a sham or subterfuge in order to conclude that the conduct of the parties and the nature of their relations bring First National's challenged activities within the federal definition of branch banking. Here, penetrating the form of the contracts to the underlying substance of the transaction, we are satisfied that at the time a customer delivers a sum of money either to the armored truck or the stationary receptacle, the bank has, for all purposes contemplated by Congress in § 36(f), received a deposit. The money is given and received for deposit even though the parties have agreed that its technical status as a 'deposit' which may be drawn on is to remain inchoate for the brief period of time it is in transit to the chartered bank premises. The intended deposits are delivered and received as part of a large-scale continuing mode of conducting the banking business designed to bring basic bank services to the customers.
32
Since the putative deposits are in fact 'received' by a bank facility apart from its chartered place of business, we are compelled, in construing § 36(f), to view the place of delivery of the customer's cash and checks accompanied by a deposit slip as an 'additional office, or * * * branch place of business * * * at which deposits are received.'10
33
Here we are confronted by a systematic attempt to secure for national banks branching privileges which Florida denies to competing state banks. The utility of the armored car service and deposit receptacle are obvious; many States permit state chartered banks to use this eminently sensible mode of operations, but Florida's policy is not open to judicial review any more than is the congressional policy of 'competitive equality.' Nor is the congressional policy of competitive equality with its deference to state standards open to modification by the Comptroller of the Currency.11
34
Affirmed.
35
Mr. Justice DOUGLAS, dissenting.
36
It will come as a shock, where common sense is the guide, to learn that an armored car picking up merchants' cash boxes and checks is a branch bank. Conceivably a bank could use an armored car as a place of business by stationing it at designated places during designated hours for opening accounts, receiving deposits, making loans, and the like. But no armored car was so used in these cases.
37
Federal law stated in the McFadden Act, 12 U.S.C. § 36(f), defines 'branch' as any facility 'at which deposits are received, or checks paid, or money lent.' And Congress provided that national banks may establish 'branches' whenever, wherever, and however state banks may do so. First National Bank of Logan, Utah, v. Walker Bank & Trust Co., 385 U.S. 252, 261—262, 87 S.Ct. 492, 497, 17 L.Ed.2d 343. The opinion of the Court leaves the impression that the McFadden Act created 'competitive equality' between national and state banks across the board. But as we stated in the Walker Bank case, that Act 'intended to place national and state banks on a basis of 'competitive equality' insofar as branch banking was concerned.' Id., at 261, 87 S.Ct., at 497. (Italics added.) There was no other or additional overriding principle of 'competitive equality' that limited off-premises services of national banks to those that state banks could provide.
38
Among those off-premises activities of national banks was the furnishing of armored car messenger services, which, we are advised by the Comptroller of the Currency, antedated by many years the 1927 McFadden Act. One can read the legislative history of the Act without finding any hint that Congress was providing 'competitive equality' as respects armored car messenger services.
39
As stated by the District Court, 'If no branch is involved here, there is no requirement that the national bank's practice must conform to that of the state banks.' 274 F.Supp. 449, 453.
40
The services rendered in these cases were undertaken only after approval by the Comptroller of the Currency who attached a condition that 'the messenger is the agent of the customer rather than of the bank.'1 I thought it was elemental law that a bank deposit cannot arise without some unequivocal act whereby both parties express their consent to the creation of the status of debtor and creditor. The District Court, which is a more faithful exponent of local law than are we, so ruled. 274 F.Supp., at 454. Certainly the Comptroller, who is the supervisory agent for policing § 36, has some authority to define 'deposits' as used in § 36(f), and this case affords no excuse for disparaging him. This is not a government by administrative fiat; the exercise of administrative discretion is normally subject to judicial review. When it comes to an administrator's construction of a statutory term in the law that he supervises, however, we have allowed his expertise great leeway in the definition,2 only rarely disturbing it.
41
The Comptroller's definition of 'deposits' should be honored here. For where the risk is on the customer that his cash and checks may never reach the bank, he cannot in good sense or in good law be deemed to have made a deposit while the funds are in transit.
42
By the standards of administrative law honored until today, the Comptroller was justified in defining 'deposits' to make the armored cars messengers of the customers, not agents of the bank. So whether common sense or the law is our standard, the judgment of the Court of Appeals should be reversed. The Comptroller's authorization of these armored car activities as being permissible under the National Bank Act was an interpretation of the Act which, as Mr. Justice Stewart says in his dissent, cannot be said to be 'not a reasonable one.'
43
Mr. Justice STEWART, dissenting.
44
I wholly agree with the Court that federal law is to be applied in determining whether the activities of a national bank constitute branch banking under the exclusive definition contained in the National Bank Act, 12 U.S.C. § 36(f). Whether the activities here in question constitute branch banking under that standard seems to me an extremely close question. That being so, I would defer to the determination of the Comptroller of the Currency. He is the official charged with administering these provisions of the Act, and I cannot say his determination was not a reasonable one. See Udall v. Tallman, 380 U.S. 1, 16—18, 85 S.Ct. 792, 801—802, 13 L.Ed.2d 616.
1
Florida Stat. § 659.06(1)(a) (1965), F.S.A. provides:
'659.06 Place of transacting business; school savings; drive-in facilities.—
'(1) (a) Any bank or trust company shall have only one place of doing business, which shall be located in the community specified in its original articles of incorporation, and the business of the bank or trust company shall be transacted at its banking house so located in said community specified, and not elsewhere. * * *
'(2) With the prior written approval of the commissioner a bank may operate a drive-in facility or walk-up facility providing one or more tellers to serve patrons in vehicles and on foot. It shall not be necessary that such facility be a part of or physically connected to the main banking room or building of the bank if the facility is located on the property on which the main banking house is situated or on property contiguous thereto. Property which is separated from the property on which the main banking house is situated only by a street, walkway or alleyway shall, for the purposes of this subsection, be deemed contiguous to the property on which the main banking house is situated.
'The operation of any drive-in or walk-up facility which is not located on the property on which the main banking house is situated or on property contiguous thereto shall constitute a violation of subsection (1); provided, however, subsection (2) shall not apply to any facilities existing on or prior to January 1, 1965.'
2
Comptroller's Manual for National Banks 7490.
'Messenger Service
'To meet the requirements of its customers, a national bank may provide messenger service by means of an armored car or otherwise, pursuant to an agreement wherein it is specified that the messenger is the agent of the customer rather than of the bank. Deposits collected under this arrangement are not considered as having been received by the bank until they are actually delivered to the teller at the bank's premises. Similarly, a check is considered as having been paid at the bank when the money is handed to the messenger as agent for the customer.'
3
'Comprehensive Dual Control Contract 'As agent for the undersigned depositor, The First National Bank Messenger will transport monies of the depositor to and from the banking house.
'Under the Comprehensive Dual Control Contract, all monies, transported solely in padlocked money bags furnished by bank, shall be opened only under the dual control of two bank's tellers. For this purpose, bank will retain a pass key for depositor's bag(s); a key for each bag will be furnished depositor. The depositor expressly authorizes the service described and agrees to accept the bank's count of monies as final.
'The First National Bank in Plant City maintains hazard insurance covering holdup, employee fidelity, etc., for the benefit of the depositor for all amounts delivered to bank's messenger for delivery to bank and for all amounts requisitioned by depositor for delivery from bank to depositor. Unless otherwise authorized in writing, only the undersigned shall be permitted to receipt the bank's messenger for monies delivered to depositor. * * *'
4
'Contract
'First National Bank, Plant City, Fla., as messenger and agent for Principal named on front side hereof, agrees to transmit the currency, coin and checks detailed on the front side hereof to the bank's offices at 302 West Haines Street, Plant City, Fla. for deposit to Principal's account. It is agreed and understood by Principal and the bank that in transmitting said currency, coin and checks, the bank is acting solely as agent for said Principal and that the transmittal of said currency, coin and checks, shall not be deemed to be a deposit until delivered into the hands of the bank's tellers at the said banking house.
'The bank maintains hazard insurance covering holdup, employee fidelity, etc. for the protection of the Principal for all amounts and items delivered to the bank's messenger by said Principal.'
5
The National Bank Act, 44 Stat. 1228, 12 U.S.C. § 36(c)(1) and (2) provides:
'(c) A national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches: (1) Within the limits of the city, town or village in which said association is situated, if such establishment and operation are at the time expressly authorized to State banks by the law of the State in question; and (2) at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question by language specifically granting such authority affirmatively and not merely by implication or recognition, and subject to the restrictions as to location imposed by the law of the State on State banks.'
6
See n. 1, supra.
7
In their briefs before this Court, the litigants are all in agreement that federal law alone applies to resolve the threshold question whether the challenged activity falls within the definition of 'branch.' Reply Brief for the Comptroller of the Currency 2; Respondents' Brief 41, 44.
8
Representative McFadden described the definitional section of the Act as providing that:
'Any place outside of or away from the main office where the bank carries on its business of receiving deposits, paying checks, lending money, or transacting any business carried on at the main office, is a branch.' 68 Cong.Rec. 5816 (1927).
Federal Definition of Branch Bank
9
5A A. Michie on Banks and Banking §§ 4a, 5, 14, 15 and 17 (1950); 10 Am.Jur.2d Banks § 358 (1963); 9 C.J.S. Banks and Banking § 269 (1938).
10
We need not here try to draw fine distinctions around relatively isolated, sporadic, and inconsequential transactions where a bank employee carries cash to a customer to cash a check, or secures a signature on a note in exchange for a check delivered off premises.
11
In 1963 Comptroller Saxon, author of 7490 in the Comptroller's Manual for National Banks, supra, n. 2, declared that '(t)he branching powers of National Banks should, in my judgment, not be limited according to those policies which the individual States find appropriate to meet their local needs through State-chartered banks.' Saxon, Branching Powers and the Dual Banking System, 101 Comp. Currency Ann.Rep. 316, 318 (1963).
During the course of the congressional debates over what became the McFadden Act, Representative Stevenson remarked: '(Y)ou have branches in the Federal reserve system established by the dictum of the Comptroller of the Currency, who has assumed to say that he can allow a national bank to establish as many agencies for receiving deposits and paying checks as he sees fit. * * * I will show presently that we cut that out, root and branch.' 66 Cong.Rec. 1627.
1
Par. 7490, Comptroller's Manual for National Banks. This paragraph provides:
'To meet the requirements of its customers, a national bank may provide messenger service by means of an armored car or otherwise, pursuant to an agreement wherein it is specified that the messenger is the agent of the customer rather than of the bank. Deposits collected under this arrangement are not considered as having been received by the bank until they are actually delivered to the teller at the bank's premises. Similarly, a check is considered as having been paid at the bank when the money is handed to the messenger as agent for the customer.'
2
See SEC v. New England Electric System, 384 U.S. 176, 185, 86 S.Ct. 1397, 1402, 16 L.Ed.2d 456; Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616; United States v. Drum, 368 U.S. 370, 374—376, 82 S.Ct. 408, 410—411, 7 L.Ed.2d 360; NLRB v. Coca-Cola Bottling Co., 350 U.S. 264, 269, 76 S.Ct. 383, 386, 100 L.Ed. 285; Unemployment Compensation Comm. of Territory of Alaska v. Aragon, 329 U.S. 143, 153—154, 67 S.Ct. 245, 250, 91 L.Ed. 136; NLRB v. Hearst Publications, Inc., 322 U.S. 111, 130—131, 64 S.Ct. 851, 860, 88 L.Ed. 1170; Gray v. Powell, 314 U.S. 402, 411—413, 62 S.Ct. 326, 332—333, 86 L.Ed. 301; Rochester Telephone Corp. v. United States, 307 U.S. 125, 145—146, 59 S.Ct. 754, 764, 83 L.Ed. 1147; Jaffe, Judicial Review: Question of Law, 69 Harv.L.Rev. 239, 261 (1955); Nathanson, Administrative Discretion in the Interpretation of Statutes, 3 Vand.L.Rev. 470, 490—491 (1950).
| 910
|
396 U.S. 226
90 S.Ct. 467
24 L.Ed.2d 382
Robert CARTER et al.v.WEST FELICIANA PARISH SCHOOL BOARD.
No. 944.
Sharon Lynne GEORGE et al.
v.
C. Walter DAVIS, President, East Feliciana Parish
School Board.
Irma J. SMITH, et al.
v.
CONCORDIA PARISH SCHOOL BOARD, United States of America.
Supreme Court of the United States
December 13, 1969
Richard B. Sobol, Murphy W. Bell, Robert F. Collins, Norman C. Amaker, and Melvyn Zarr, for petitioners.
Application to the Honorable Hugo L. Black, Circuit Justice for the Fifth Circuit, for a Temporary Injunctive Order.
See also 396 U.S. 996, 90 S.Ct. 496.
PER CURIAM.
1
This matter reaches the Court on an application presented to Mr. Justice Black, as Circuit Justice for the Fifth Circuit, seeking a temporary injunctive order and other relief; and it appearing that
2
1. Three cases were originally filed in 1965, seeking the desegregation of three Louisiana school districts.
3
2. Pursuant to orders of the District Courts, in July of this year the Office of Education of the United States Department of Health, Education, and Welfare prepared and submitted terminal desegregation plans for each of the districts here involved for the school year 1969-1970. These plans were rejected by the District Courts.
4
3. The District Courts' orders were reversed by the United States Court of Appeals for the Fifth Circuit sitting en banc, on December 1, 1969, subsequent to this Court's decision in Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 29. That court ordered respondent school boards and 13 other school boards to desegregate faculties completely and to adopt plans for conversion to unitary school systems by February 1, 1970, but authorized a delay in pupil desegregation until September 1970.
5
4. On December 10, 1969, petitioners filed in this Court a petition for a writ of certiorari, together with a motion to advance consideration of the petition and a motion for summary disposition, contending that the decision of the Court of Appeals is inconsistent with this Court's decision in Alexander v. Holmes County Board of Education, supra. The relief sought on the merits is the implementation of the Department of Health, Education, and Welfare plans for student assignment on or before February 1, 1970, simultaneous with the other steps ordered by the Court of Appeals.
6
5. Petitioners, by this application seek a temporary injunctive order
7
'requiring the respondent school boards, pending a decision by this Court on the merits, to take all necessary clerical and administrative steps—such as determining new student assignments, bus routes and athletic schedules and preparing for any necessary physical changes—preparatory to complete conversion under the HEW plans by February 1, 1970. If petitioners are successful, the administrative and clerical tasks necessary to conversion will have been undertaken roughly according to the timetable established by the court below in the Alexander cases, and petitioners' right to effective relief will not have been put in question by the passage of time. If petitioners are unsuccessful in this Court, the school boards would be under no compulsion to convert during this school year.' Application to the Honorable Hugo L. Black, Circuit Justice for the Fifth Circuit, for a Temporary Injunctive Order 3-4. (Footnote omitted.)
8
It is hereby adjudged, ordered, and decreed:
9
(1) Petitioners' application for a temporary injunctive order requiring the respondent school boards to take such preliminary steps as may be necessary to prepare for complete student desegregation by February 1, 1970, is granted. Alexander v. Holmes County Board of Education, supra.
10
(2) By way of interim relief, and pending this Court's disposition of the petition for certiorari, the judgment of the Court of Appeals is vacated insofar as it deferred desegregation of schools until the school year 1970-1971.
11
(3) By way of interim relief pending further order of this Court, the respondent school boards are directed to take no steps which are inconsistent with, or which will tend to prejudice or delay, a schedule to implement on or before February 1, 1970, desegregation plans submitted by the Department of Health, Education, and Welfare for student assignment simultaneous with the other steps ordered by the Court of Appeals.
12
(4) The respondents are directed to file any response to the petition herein on or before January 2, 1970.
| 12
|
396 U.S. 269
90 S.Ct. 415
24 L.Ed.2d 414
Robert L. DOWELL, an Infant, etc., et al.,v.BOARD OF EDUCATION OF the OKLAHOMA CITY PUBLIC SCHOOLS et al.
No. 603.
Dec. 15, 1969.
Jack Greenberg and James M. Nabrit III, for petitioners Dowell and others.
Calvin W. Hendrickson, for petitioners Sanger and others.
J. Harry Johnson and Leslie L. Conner, for respondents Board of Education of Oklahoma City Public Schools and others.
V. P. Crowe, C. Harold Thweatt, George F. Short and Norman E. Reynolds, for respondents McWilliams and others.
PER CURIAM.
1
In this school desegregation case, the District Court for the Western District of Oklahoma, by order entered August 13, 1969, approved respondent Oklahoma City School Board's proposal for furthering desegregation of some Oklahoma City schools by revising school attendance boundaries effective September 2, 1969, the start of the 1969 1970 school year. The order also decreed that the School Board prepare and submit on or before November 1, 1969, a comprehensive plan for the complete desegregation of the entire school system. Intervenors of the 'McWilliams Class' appealed to the Court of Appeals for the Tenth Circuit from the provision of the order which approved implementation of the School Board's proposed boundary changes by September 2, 1969, and sought a stay of that provision pending decision of the appeal. The Court of Appeals, on August 27, 1969, instead of limiting relief to the requested stay, summarily vacated the District Court's approval of the School Board's proposal. The Court of Appeals held that consideration of the proposal was inappropriate 'at this stage of the proceedings' and should await the District Court's 'consideration and adoption of a full and comprehensive plan for the complete desegregation and integration of the Oklahoma City School system as contemplated in the court's order of August 13, 1969.'
2
The petition for certiorari is granted.1 The Court of Appeals erred in holding that the District Court's approval of the School Board's plan must be vacated because consideration of the proposal was inappropriate except in the context of a comprehensive city-wide plan. The burden on a school board is to desegregate an unconstitutional dual system at once. Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 1694—1695, 20 L.Ed.2d 716 (1968); Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 41 (1969). Since the District Court ordered the desegregation measures into effect, and since the petitioners did not object to their scope, the Court of Appeals should have permitted their implementation pending argument and decision of the appeal. Alexander v. Holmes County Board of Education, supra. The order of the Court of Appeals is therefore vacated and the case is remanded to that court promptly to hear and determine, consistently with Alexander, all pending appeals from the District Court order.2
3
It is so ordered.
4
Order of Court of Appeals vacated and case remanded.
1
The petition was filed pursuant to an expedited schedule specified by Mr. Justice Brennan when on petitioners' application he, as Acting Circuit Justice, vacated the order of the Court of Appeals and reinstated that of the District Court, pending action by this Court on the petition.
2
We are informed by the parties that the School Board on September 12, 1969, also filed on appeal from the District Court's approval of the Board's proposal, and another appeal from the District Court's denial on September 11, 1969, of the Board's application for amendment of the August 13 order to extend from November 1, 1969, to March 31, 1970, the time for filing of a comprehensive desegregation plan for secondary schools. The District Court granted the Board's application as to a plan for desegregation of the elementary schools.
| 12
|
396 U.S. 229
90 S.Ct. 400
24 L.Ed.2d 386
Paul E. SULLIVAN et al., Petitioners,v.LITTLE HUNTING PARK, INC., et al.
No. 33.
Argued Oct. 13, 1969.
Decided Dec. 15, 1969.
[Syllabus from pages 229-230 intentionally omitted]
Allison W. Brown, Jr., Washington, D.C., for petitioners.
John Charles Harris, Alexandria, Va., for respondents.
Opinion of the Court by Mr. Justice DOUGLAS, announced by Mr. Justice BLACK.
1
This case, which involves an alleged discrimination against a Negro family in the use of certain community facilities, has been here before. The Virginia trial court dismissed petitioners' complaints and the Supreme Court of Appeals of Virginia denied the appeals saying that they were not perfected 'in the manner provided by law in that opposing counsel was not given reasonable written notice of the time and place of tendering the transcript and a reasonable opportunity to examine the original or a true copy of it' under that court's Rule 5:1, § 3(f).1
2
The case came here and we granted the petition for certiorari and vacated the judgments and remanded the case to the Supreme Court of Appeals for further consideration in light of Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189. 392 U.S 657, 88 S.Ct. 2279, 20 L.Ed.2d 1346. On the remand, the Supreme Court of Appeals restated its prior position stating, 'We had no jurisdiction in the cases when they were here before, and we have no jurisdiction now. We adhere to our orders refusing the appeals in these cases.' 209 Va. 279, 163 S.E.2d 588. We brought the case here the second time on a petition for certiorari. 394 U.S. 942, 89 S.Ct. 1272, 22 L.Ed.2d 476.
3
* When the case was first here respondents opposed the petition, claiming that Rule 5:1, § 3(f), was not complied with. Petitioners filed a reply brief addressing themselves to that question. Thus the point now tendered was fully exposed when the case was here before, though we ruled on it sub silentio.
4
In this case counsel for petitioners on June 9, 1967, gave oral notice to counsel for respondents that he was submitting the transcripts to the trial judge. He wrote counsel for respondents on the same day to the same effect, saying he was submitting the transcripts to the trial judge that day, filing motions to correct them, and asking the trial court to defer signing them for a tenday period to allow counsel for respondents time to consent to the motions or have them otherwise disposed of by the court. The judge, being absent from his chambers on June 9, ruled that he had not received the transcripts until June 12. The motions to correct came on for a hearing June 16, at which time the judge ruled that he would not act on the motions until counsel for respondents had agreed or disagreed with the changes requested. After examining the transcripts between June 16 and June 19, counsel for respondents told counsel for petitioners that he had no objections to the corrections or to entry of orders granting the motions to correct. Counsel for respondents then signed the proposed orders which counsel for petitioners had prepared. The proposed orders were submitted to the trial judge on June 20; and on the same day he signed the transcripts, after they had been corrected.
5
As we read its cases, the Supreme Court of Appeals stated the controlling principle in the following language:
6
'The requirement that opposing counsel have a reasonable opportunity to examine the transcript sets out the purpose of reasonable notice. If, after receipt of notice, opposing counsel be afforded reasonable opportunity to examine the transcript, and to make objections thereto, if any he has, before it is signed by the trial judge, the object of reasonable notice will have been attained.' Bacigalupo v. Fleming, 199 Va. 827, 835, 102 S.E.2d 321, 326.
7
In that case opposing counsel had seven days to examine the record and make any objections. In the present case he had three days. But so far as the record shows he did not at the time complain that he was not given that 'reasonable opportunity' he needed to examine and correct the transcripts.
8
Petitioners' counsel does not urge—nor do we suggest—that the Virginia Supreme Court of Appeals has fashioned a novel procedural requirement for the first time in this case; cf. NAACP v. Alabama, 357 U.S. 449, 457—458; 78 S.Ct. 1163, 1169—1170, 2 L.Ed.2d 1488; past decisions of the state court refute any such notion. See Bacigalupo v. Fleming, supra; Bolin v. Laderberg, 207 Va. 795, 153 S.E.2d 251; Cook v. Virginia Holsum Bakeries, Inc., 207 Va. 815, 153 S.E.2d 209.2 But those same decisions do not enable us to say that the Virginia court has so consistently applied its notice requirement as to amount to a self-denial of the power to entertain the federal claim here presented if the Supreme Court of Appeals desires to do so. See Henry v. Mississippi, 379 U.S. 443, 455—457, 85 S.Ct. 564, 571—573, 13 L.Ed.2d 408 (Black, J., dissenting). Such a rule, more properly deemed discretionary than jurisdictional, does not bar review here by certiorari.
II
9
Little Hunting Park, Inc., is a Virginia nonstock corporation organized to operate a community park and playground facilities for the benefit of residents in an area of Fairfax County, Virginia. A membership share entitles all persons in the immediate family of the shareholder to use the corporation's recreation facilities. Under the bylaws a person owning a membership share is entitled when he rents his home to assign the share to his tenant, subject to approval of the board of directors. Paul E. Sullivan and his family owned a house in this area and lived in it. Later he bought another house in the area and leased the first one to T. R. Freeman, Jr., an employee of the U.S. Department of Agriculture; and assigned his membership share to Freeman. The board refused to approve the assignment because Freeman was a Negro. Sullivan protested that action and was notified that he would be expelled from the corporation by the board. A hearing was accorded him and he was expelled, the board tendering him cash for his two shares.
10
Sullivan and Freeman sued under 42 U.S.C. §§ 1981, 1982 for injunctions and monetary damages. Since Freeman no longer resides in the area served by Little Hunting Park, Inc., his claim is limited solely to damages.
11
The trial court denied relief to each petitioner. We reverse those judgments.
12
In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, we reviewed at length the legislative history of 42 U.S.C. § 1982.3 We concluded that it reaches beyond state action and operates upon the unofficial acts of private individuals and that it is authorized by the Enabling Clause of the Thirteenth Amendment. We said:
13
'Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom—freedom to 'go and come at pleasure' and to 'buy and sell when they please'—would be left with 'a mere paper guarantee' if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white may can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.' 392 U.S., at 443, 88 S.Ct., at 2205.
14
The Virginia trial court rested on its conclusion that Little Hunting Park was a private social club. But we find nothing of the kind on this record. There was no plan or purpose of exclusiveness. It is open to every white person within the geographic area, there being no selective element other than race. See Daniel v. Paul, 395 U.S. 298, 301—302, 89 S.Ct. 1697, 1699 1700, 23 L.Ed.2d 318. What we have here is a device functionally comparable to a racially restrictive covenant, the judicial enforcement of which was struck down in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, by reason of the Fourteenth Amendment.
15
In Jones v. Alfred H. Mayer Co., the complaint charged a refusal to sell petitioner a home because he was black. In the instant case the interest conveyed was a leasehold of realty coupled with a membership share in a nonprofit company organized to offer recreational facilities to owners and lessees of real property in that residential area. It is not material whether the membership share be considered realty or personal property, as § 1982 covers both. Section 1982 covers the right 'to inherit, purchase, lease, sell, hold, and convey real and personal property.' There is a suggestion that transfer on the books of the corporation of Freeman's share is not covered by any of those verbs. The suggestion is without merit. There has never been any doubt but that Freeman paid part of his $129 monthly rental for the assignment of the membership share in Little Hunting Park. The transaction clearly fell within the 'lease.' The right to 'lease' is protected by § 1982 against the actions of third parties, as well as against the actions of the immediate lessor. Respondents' actions in refusing to approve the assignment of the membership share in this case was clearly an interference with Freeman's right to 'lease.' A narrow construction of the language of § 1982 would be quite inconsistent with the broad and sweeping nature of the protection meant to be afforded by § 1 of the Civil Rights Act of 1866, 14 Stat. 27, from which § 1982 was derived. See 392 U.S., at 422—437, 88 S.Ct., at 2194—2202.
16
We turn to Sullivan's expulsion for the advocacy of Freeman's cause. If that sanction, backed by a state court judgment, can be imposed, then Sullivan is punished for trying to vindicate the rights of minorities protected by § 1982. Such a sanction would give impetus to the perpetuation of racial restrictions on property. That is why we said in Barrows v. Jackson, 346 U.S. 249, 259, 73 S.Ct. 1031, 1036, 97 L.Ed. 1586, that the white owner is at times 'the only effective adversary' of the unlawful restrictive covenant. Under the terms of our decision in Barrows, there can be no question but that Sullivan has standing to maintain this action.
17
We noted in Jones v. Alfred H. Mayer Co., that the Fair Housing Title of the Civil Rights Act of 1968, 82 Stat. 81, in no way impaired the sanction of § 1982. 392 U.S., at 413—417, 88 S.Ct., at 2189—2192. What we said there is adequate to dispose of the suggestion that the public accommodations provision of the Civil Rights Act of 1964, 78 Stat. 243, in some way supersedes the provisions of the 1866 Act. For the hierarchy of administrative machinery provided by the 1964 Act is not at war with survival of the principles embodied in § 1982. There is moreover, a saving clause in the 1964 Act as respects 'any right based on any other Federal * * * law not inconsistent' with that Act.4
18
Section 1982 derived from the 1866 Act is plainly 'not inconsistent' with the 1964 Act, which has been construed as not 'preempting every other mode of protecting a federal 'right' or as granting immunity' to those who had long been subject to federal law. United States v. Johnson, 390 U.S. 563, 566, 88 S.Ct. 1231, 1234, 20 L.Ed.2d 132.
19
We held in Jones v. Alfred H. Mayer Co. that although § 1982 is couched in declaratory terms and provides no explicit method of enforcement, a federal court has power to fashion an effective equitable remedy. 392 U.S., at 414, n. 13, 88 S.Ct., at 2189. That federal remedy for the protection of a federal right is available in the state court, if that court is empowered to grant injunctive relief generally, as is the Virginia court. Va. Code Ann. § 8—610 (1957 Repl.Vol.).
20
Finally, as to damages, Congress, by 28 U.S.C. §§ 1343(4), created federal jurisdiction for 'damages or * * * equitable or other relief under any Act of Congress providing for the protection of civil rights * * *.' We reserved in Jones v. Alfred H. Mayer Co., 392 U.S., at 414—415, n. 14, 88 S.Ct., at 2190, the question of what damages, if any, might be appropriately recovered for a violation of § 1982.
21
We had a like problem in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, where suit was brought against federal officers for alleged violations of the Fourth and Fifth Amendments. The federal statute did not in terms at least provide any remedy. We said:
22
'(W)here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief. And it is also well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.' Id., at 684, 66 S.Ct., at 777.
23
The existence of a statutory right implies the existence of all necessary and appropriate remedies. See Texas & N.O.R. Co. v. Brotherhood of Railway & S.S. Clerks, 281 U.S. 548, 569—570, 50 S.Ct. 427, 433—434, 74 L.Ed. 1034. As stated in Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874:
24
'A disregard of the command of the statute is a wrongful act and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied * * *.'
25
Compensatory damages for deprivation of a federal right are governed by federal standards, as provided by Congress in 42 U.S.C. § 1988, which states:
26
'The jurisdiction in civil * * * matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitutional and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause * * *.'
27
This means, as we read § 1988, that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. Cf. Brazier v. Cherry, 5 Cir., 293 F.2d 401. The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired. We do not explore the problem further, as the issue of damages was not litigated below.
28
It is suggested, not by any party, but by the dissent, that any relief should await proceedings under the fair housing provisions of Title VIII of the Civil Rights Act of 1968, 82 Stat. 81, 42 U.S.C. § 3601 et seq. (1964 ed., Supp. IV). But petitioners' suits were commenced on March 16, 1966, two years before that Act was passed. It would be irresponsible judicial administration to dismiss a suit because of an intervening Act5 which has no possible application to events long preceding its enactment.
29
Reversed.
30
Mr. Justice HARLAN, with whom THE CHIEF JUSTICE and Mr. Justice WHITE join, dissenting.
31
In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), the Court decided that a little-used section of a 100-year-old statute prohibited private racial discrimination in the sale of real property. This construction of a very old statute, in no way required by its language,1 and open to serious question in light of the statute's legislative history,2 seemed to me unnecessary and unwise because of the recently passed, but then not yet fully effective, Fair Housing Title of the Civil Rights Act of 1968 (hereafter Fair Housing Law).3 Today, the Court goes yet beyond Jones (1) by implying a private right to damages for violations of 42 U.S.C. § 1982; (2) by interpreting § 1982 to prohibit a community recreation association from withholding, on the basis of race, approval of an assignment of a membership that was transferred incident to a lease of real property; and (3) by deciding that a white person who is expelled from a recreation association 'for the advocacy of (a Negro's) cause' has 'standing' to maintain an action for relief under § 1982.
32
Because the Fair Housing Law will become fully effective less than three weeks from now,4 I think the majority even more unwise than it was in Jones, in precipitately breathing still more life into § 1982, which is both vague and open-ended, when Congress has provided this modern statute, containing various detailed remedial provisions aimed at eliminating racial discrimination in housing. For this reason, which I elaborate in Part, II, I would dismiss the writ in this case as improvidently granted. To provide examples of some of the difficulties the Court will inevitably encounter if it continues to employ § 1982 in these sorts of cases, I examine in Part III the undiscriminating manner in which the majority deals with, and for the most part ignores, the complexities involved in (1) giving Sullivan relief and (2) engrafting a damage remedy onto § 1982 in a case arising from a state court. But, first, I consider the threshold question of whether there is present in this case an adequate state ground which would bar review by this Court.
33
* ACEQUACY OF THE STATE GROUND
34
The Virginia Supreme Court of Appeals, both before and after this Court's earlier remand, refused to consider the federal questions presented to it because it found that petitioners had failed to give opposing counsel 'reasonable written notice of the time and place of tendering (the transcript) and a reasonable opportunity to examine the original or a true copy of it,' in violation of Rule 5:1, § 3(f), of the local rules of court.5 The majority here suggests that the State's procedural requirement, though not a 'novel' one 'fashioned * * * for the first time in this case,' nevertheless had not been 'so consistently applied * * * as to amount to a self-denial of the power to entertain the federal claim.' The majority then goes on to conclude that because the State's procedural rule is 'more properly deemed discretionary than jurisdictional,' review should not be barred here. I agree with the majority's conclusion that there is no adequate state ground shown, but I find myself unable to subscribe to the majority's reasoning, which appears to me unclear and confusing.
35
I am not certain what the majority means in its apparent distinction between rules that it deems 'discretionary' and those that it deems 'jurisdictional.' Perhaps the majority wishes to suggest that the dismissals of petitioners' writs of error by the Supreme Court of Appeals were simply ad hoc discretionary refusals to accept plenary review of the lower court's decisions, analogous to this Court's denial of certiorari. If this were all the Virginia Supreme Court of Appeals had done, review of a federal question properly raised below would of course not be barred here. The mere discretionary refusal of the highest state court to grant review of a lower court decision does not provide an adequate state ground. In such circumstances, the decision of the lower court, rather than the order of the highest court refusing review, becomes the judgment of the 'highest court of a State in which a decision could be had' for purposes of 28 U.S.C. § 1257, our jurisdictional statute.6
36
But this case clearly does not present this kind of discretionary refusal of a state appellate court to accept review. Although the Virginia Supreme Court of Appeals may well have the 'discretion' to refuse review7 in a particular case without giving reasons or reconciling its refusal with earlier decisions, the dismissal below was not simply an ad hoc exercise of the power not to review every case presented. Instead the state court dismissed the petitions for review for a stated reason, namely, a lack of 'jurisdiction to entertain the appeals because of the failure of counsel for the Sullivans and the Freemans to meet the requirements of Rule 5:1, § 3(f).' When a state appellate court's refusal to consider the merits of a case is based on the failure to conform to a state rule of practice, review by this Court is barred unless this Court is able to find that application of the state rule of practice to the case at hand does not constitute an adequate state ground. This is so quite irrespective of whether the state appellate court had the power to refuse review for no reason at all.8
37
The majority might have another meaning in mind when it describes the State's procedural rule as 'discretionary.' It may be suggesting that 'reasonable written notice,' and 'reasonable opportunity to examine' are such flexible standards that the Virginia Supreme Court of Appeals has the 'discretion' to decide a close case either of two ways without creating an obvious conflict with earlier decisions. If this is what the majority means by 'discretionary rule,' then I must register my disagreement. This kind of 'discretion' is nothing more than 'the judicial formulation of law,' for a court has an obligation to be reasonably consistent and 'to explain the decision, including the reason for according different treatment to the instant case.'9 Surely a state ground is no less adequate simply because it involves a standard that requires a judgment of what is reasonable, and because the result may turn on a close analysis of the facts of a particular case in light of competing policy considerations.
38
Although the majority's loose use of the word 'discretionary' may suggest that any decision made pursuant to a broad standard cannot provide an adequate state ground, I think examination of the earlier opinions of the Virginia Supreme Court of Appeals, several of which are cited by the majority, provides that proper foundation for the result reached by the majority, under the principle of NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).
39
The finding of the Virginia Supreme Court of Appeals of a violation of Rule 5:1, § 3(f), in this case was in my view based on a standard of reasonableness much stricter than that which could have been fairly extracted from the earlier Virginia cases applying the rule10 and its predecessor statute.11 In other words, although Rule 5:1, § 3(f), itself may not be novel, the standard implicitly governing the rule's application to the facts here was. I think it fair to conclude that in light of these earlier decisions, and the principle set forth in Bacigalupo v. Fleming, 199 Va. 827, 835, 102 S.E.2d 32, 326 (1958),12 the petitioners here might have justifiably thought that review in the Supreme Court of Appeals would not be barred by the rule, notwithstanding Snead v. Commonwealth, 200 Va. 850, 108 S.E.2d 399 (1959), the one case cited below by the Virginia court, relied on here by respondent and yet somehow ignored by the majority.13
40
Because '(n)ovelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal * * * rights,' NAACP v. Alabama, 357 U.S., at 457—458, 78 S.Ct., at 1169, I conclude that the decision below does not rest on an adequate state ground.
II
41
Because Congress has now provided a comprehensive scheme for dealing with the kinds of discrimination found in this case, I think it very unwise as a matter of policy for the Court to use § 1982 as a broad delegation of power to develop a common law of forbidden racial discriminations. A comparison of 42 U.S.C. § 1982 with the new Fair Housing Law, and consideration of the Court's task in applying each, demonstrate to me the need for restraint, and the appropriateness of dismissing the writ in this case, now grounded solely on an alleged violation of § 1982.
42
Petitioners here complain of discrimination in the provision of recreation facilities ancillary to a rented house found in one of the four subdivisions served by Little Hunting Park. On the one hand, the Fair Housing Law has a provision that explicitly makes it unlawful to 'discriminate against any person in the terms, conditions, or privileges of * * * rental (of housing), or in the provisions of services or facilities in connection therewith, because of race, (or) color * * *.' 42 U.S.C. § 3604(b) (1964 ed., Supp. IV). (Emphasis added.) In contrast, as the majority in Jones noted, § 1982 'does not deal specifically with discrimination in the provision of services or facilities in connection with the sale or rental of a dwelling,' 392 U.S. at 413, 88 S.Ct., at 2189.
43
By attempting to deal with the problem of discrimination in the provision of recreational facilities under § 1982, the Court is forced, in the context of a very vague statute, to decide what transactions involve 'property' for purposes of § 1982. The majority states that '(i)t is not material whether the membership share (in Little Hunting Park) be considered realty or personal property, as § 1982 covers both.' But examination of the opinion will show that the majority has failed to explain why the membership share is ether real or personal property for purposes of § 1982. The majority's complete failure to articulate any standards for deciding what is property within the meaning of § 1982 is a fair indication of the great difficulties courts will inevitably confront if § 1982 is used to remedy racial discrimination in housing. And lurking in the background are grave constitutional issues should § 1982 be extended too far into some types of private discrimination.14
44
Not only does § 1982 fail to provide standards as to the types of transactions in which discrimination is unlawful, but it also contains no provisions for enforcement, either public or private. To give its construction of the statute effect, the Court has had to imply remedies that Congress has not explicitly provided—injunctive relief in Jones, and now a right to damages here. See Part III, infra.
45
These remedies are expressly provided for in the Fair Housing Law, which, with its variety of techniques for enforcing its prohibition of housing discrimination, again stands in sharp contrast with § 1982. First, an injured party can complain to the Secretary of Housing and Urban Development who is empowered to investigate complaints, and use 'informal methods of conference, conciliation, and persuasion' to secure compliance with the law.15 Should the Secretary's efforts prove unavailing, the complainant can go to court.16 As an alternative to going first to HUD, it appears that a person may go directly to court to enforce his rights under the Fair Housing Law,17 which expressly provides for a wide variety of relief, including restraining orders, injunctions, compensatory damages, and punitive damages up to $1,000.18 Furthermore, the Act allows a court to appoint counsel and waive all fees for indigent plaintiffs, and to award costs and, in certain cases, counsel fees to a successful plaintiff.19 In addition to actions initiated by private parties, the Attorney General is empowered to bring civil actions for preventive civil relief, and criminal actions to punish those who by force or threat of force willfully interfere with or intimidate those who wish to exercise, or aid others in the exercise, of their rights under the Fair Housing Law.20
46
Given this comprehensive, contemporary statute, the limitations of which have not yet even been established, I believe that the Court should not decide this case but should instead dismiss the writ of certiorari as improvidently granted.21 This Court's certiorari jurisdiction should not be exercised simply 'for the benefit of the particular litigants,' Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70, 74, 75 S.Ct. 614, 616, 99 L.Ed. 897 (1955), but instead for the 'settlement of (issues) of importance to the public, as distinguished from * * * the parties,' Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393, 43 S.Ct. 422, 423, 67 L.Ed. 712 (1923). Even from the perspective of the parties, this case has lost much of its practical importance due to the fact that Dr. Freeman's work has taken him and his family away from the area served by Little Hunting Park, thereby making moot his original claim for injunctive relief.22 But more fundamentally, I think here, as I did in Jones, that the existence of the Fair Housing Law renders the decision of this case of little 'importance to the public.' For, although the 1968 Act does not cover this particular case,23 should a Negro in the future rent a house but be denied access to ancillary recreational facilities on account of race, he could in all likelihood secure relief under the provisions of the Fair Housing Law.24
III
47
The undiscriminating manner in which the Court has dealt with this case is both highlighted and compounded by the Court's failure to face, let alone resolve, two issues that lie buried beneath the surface of its opinion. Both issues are difficult ones, and the fact that the majority has not come to grips with them serves to illustrate the inevitable difficulties the Court will encounter if it continues to employ § 1982 as a means for dealing with the many subtle human problems that are bound to arise as the goal of eliminating discriminatory practices in our national life is pursued.
A. RELIEF FOR SULLIVAN
48
Because the majority opinion is highly elliptical as to (1) the circumstances surrounding Sullivan's expulsion from Little Hunting Park, (2) the relief Sullivan sought in the state court, and (3) the decision of the trial court, it is necessary for me to begin my analysis simply by stating the facts of these aspects of the case. A full examination of the record reveals, first, the necessity for a remand on the majority's own premises. It also makes apparent the majority's failure to provide any guidance as to the legal standards that should govern Sullivan's right to recovery on remand. An awareness of the complexity of the issues relevant to Sullivan's right to redress suggests further, I think, the appropriateness of a discretionary denial or review.
49
1. The Circumstances of Sullivan's Expulsion. After the Board of Little Hunting Park refused to approve the assignment of a membership share from Sullivan to Freeman, Sullivan attempted to convince the Board to reverse its decision. To this end, Sullivan first met with members of the Board, and protested their actions. He subsequently mobilized a campaign both by other members of the club and by persons in the community as a whole to force the Board to reconsider its decision. The means used in this campaign, as the brief for petitioner Sullivan acknowledges,25 included phone calls to members of the Board, letters to local clergy, and the circulation among the members of Little Hunting Park of a petition that called for a meeting of the full membership to consider Dr. Freeman's case.
50
On July 8 Sullivan received a letter from the Board which stated that it had determined that there was 'due cause' to warrant a hearing in order to determine whether Sullivan should be expelled from Little Hunting Park, pursuant to its by-laws, for 'conduct inimicable to the Corporation members.' This letter referred to Sullivan's 'non-acceptance of the Board's decision on the assignment of your membership to your tenant * * * along with the continued harassment of the board members' as the basis for the Board's 'due cause' determination.
51
The Board subsequently provided a detailed specification of its charges against Sullivan,26 and these included, inter alia, allegations that Sullivan had (a) instigated a campaign by which board members were harassed by 'unfriendly phone calls' accusing them of bigotry; (b) used 'abusive' language in a phone call to the president of the Board; (c) written letters to local clergy, including the minister of the church which employed the president of Little Hunting Park, accusing board members of participation in 'real moral evil'; and (d) used 'violent and abusive language' to members of Little Hunting Park who had refused to sign his petition. After the hearing on these charges, the Board expelled Sullivan and tendered to him the current market value of the two membership shares that he held.
52
In response to these actions, Sullivan brought this suit in the Circuit Court of Fairfax County, Virginia, against Little Hunting Park and its Board seeking as relief (1) an order compelling Little Hunting Park to reinstate his membership; (2) monetary damages in the amount of $15,000; and (3) an injunction requiring the Board to approve the assignment to Freeman and forbidding the Board to use race as a factor in considering membership. The trial court, after hearing disputed evidence as to the reasons for Sullivan's expulsion, found for the defendants. It stated that the scope of its review of the Board's actions was 'limited' because Little Hunting Park was a 'private and social' club, and then went on to find that the Board had acted within 'the powers conferred on it by the By-Laws' in expelling Sullivan, and that 'there was anple evidence to justify (the Board') conclusion that the complainant's acts were inimicable to the Corporation's members and to the Corporation.'
53
2. With this statement of the record in mind, several observations must be made about the majority's treatment of Sullivan's rights. First, in stating that 'Sullivan's expulsion (was) for the advocacy of Freeman's cause,' the majority surely cannot be taken to have resolved disputed testimony, and decided the facts underlying Sullivan's expulsion. If these facts are relevant to Sullivan's remedial rights, as surely they must be, then a remand for detailed findings seems unavoidable under the majority's own premises.
54
Second, the majority has not explained what legal standard should determine Sullivan's rights under § 1982. The majority simply states that 'Sullivan has standing to maintain this action' under § 1982, without even acknowledging that some standard is essential for this case to be ultimately decided.
55
One can imagine a variety of standards, each based on different legal conclusions as to the 'rights' and 'duties' created by § 1982, and each having very different remedial consequences. For example, does § 1982 give Sullivan a right to relief only for injuries resulting from Little Hunting Park's interference with his statutory duty to Freeman under § 1982? If so, what is Sullivan's duty to Freeman under § 1982? Unless § 1982 is read to impose a duty on Sullivan to protest Freeman's exclusion, he would be entitled to reinstatement under this standard only if the Board had expelled him for the simple act of assigning his share to Freeman.
56
As an alternative, Sullivan might be thought to be entitled to relief from those injuries that flowed from the Board's violation of its 'duty' to Freeman under § 1982. Such a standard might suggest that Sullivan is entitled to damages that resulted from Little Hunting Park's initial refusal to accept the assignment to Freeman but again not to reinstatement. Or does the Court think that § 1982 gives Sullivan a right to relief from injuries that result from his 'legitimate' protest aimed at convincing the Board to accept Freeman? If so, what protest activities were legitimate here? Most extreme would be a standard that would give Sullivan relief from injuries that were the result of any actions he took to protest the Board's initial refusal, irrespective of Sullivan's means of protest. Only this standard would require reinstatement, irrespective of the disputed facts here. But this standard would mean that § 1982 gave Sullivan a right to regain his membership even if the Board has expelled him for using intemperate and abusive threats as a means of protesting Freeman's exclusion.27
57
Because this case arises from a state court, it presents special problems which the majority overlooks, and which suggests again the undesirability of deciding this case in the context of this ancient statute. In deciding that there is a right to recover damages in this case, the majority overlooks the complications involved by dint of the fact that a state court is being asked to provide a remedy for a federal right bottomed on a federal statute which itself has no remedial provisions.
58
Implied remedies for federal rights are sometimes solely a matter of federal law28 and other times dependent, either wholly or partially, upon state law.29 Difficult and complex questions are involved in determining what remedies a state court must30 or must not31 provide in cases involving federal rights.32
59
It should be noted that the majority's opinion, though perhaps deciding very little33 only adds to the confusion already existing in this area. Section 1988 of Title 42, which the majority apparently thinks decides this case, is concerned with the remedial powers of federal district courts and it provides that the federal courts shall look to state law to find appropriate remedies when the applicable federal civil rights law is 'deficient in the provisions necessary to furnish suitable remedies * * *.' But the majority turns this provision on its head by suggesting (1) that § 1988 creates a federal remedy, apart from state law, when the remedial provisions of a civil rights statute, like § 1982, are 'deficient'; and (2) that § 1988 itself somehow imposes this federal remedy on the States. If § 1988 says anything at all relevant for this case, it suggests that in those cases where it is appropriate to cure remedial deficiencies of a federal civil rights statute by implication, this is to be done by looking to state law to see what remedies, consistent with federal policies would be available there.
60
By reason of these considerations, many of which could hardly have been foreseen at the time certiorari was granted, I would dismiss the writ in this case as improvidently granted.
1
Rule 5:1 which is entitled 'The Record on Appeal' states the following in § 3(f):
'Such a transcript or statement not signed by counsel for all parties becomes part of the record when delivered to the clerk, if it is tendered to the judge within 60 days and signed at the end by him within 70 days after final judgment. It shall be forthwith delivered to the clerk who shall certify on it the date he receives it. Counsel tendering the transcript or statement shall give opposing counsel reasonable written notice of the time and place of tendering it and a reasonable opportunity to examine the original or a true copy of it. The signature of the judge, without more, will be deemed to be his certification that counsel had the required notice and opportunity, and that the transcript or statement is authentic. He shall note on it the date it was tendered to him and the date it was signed by him.'
2
In Bolin v. Laderberg, 207 Va. 795, 153 S.E.2d 251, appellants' counsel had delivered the transcript to appellees' counsel on November 24, 1965. The transcript was tendered to the trial judge on November 26, and was signed by him on December 3. Appellees moved to dismiss the appeal on the ground that they had not been given 'reasonable notice and opportunity' under Rule 5:1. The court stated that the motion should be overruled on the ground that Rule 5:1 provides that '(t)he signature of the judge, without more, will be deemed to be his certification that counsel had the required notice and opportunity, and that the transcript * * * is authentic.' The court noted that the judge's 'signature appears on the transcript without more and is, therefore, his certification that counsel for (appellees) had the required notice of tendering the transcript and the required opportunity to examine it.' Id., at 797, 153 S.E.2d, at 253.
In Cook v. Virginia Holsum Bakeries, Inc., 207 Va. 815, 153 S.E.2d 209, notice that the transcript would be tendered to the trial judge on October 20, 1965, was given to counsel for the appellee on October 15. Appellant's counsel, however, did not obtain a copy of the transcript until October 19. At a conference held on that same date, counsel for both parties went over the transcript and agreed on certain corrections and additions. At the hearing on October 20, appellee's counsel claimed he had not been given the reasonable notice and opportunity required by Rule 5:1. He then suggested numerous changes, and the trial judge ordered the transcript altered to reflect those changes. The revised transcript was tendered to the trial judge the next day, October 21, and signed by him that same day. On appeal, appellee moved to dismiss on the ground that the Rule 5:1 requirements had not been satisfied. The Virginia Supreme Court of Appeals overruled the motion, stating: 'The narrative was amended to meet the suggested changes of counsel for (appellee), and he conceded in oral argument before us that the statement signed by the trial judge was correct.' Id., at 817, 153 S.E.2d, at 210.
3
42 U.S.C. § 1982 provides:
'All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.'
4
Section 207(b) of the Act of July 2, 1964, 78 Stat. 246, 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 accommodations, or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right.'
5
The Act is not fully effective until December 31, 1969. 42 U.S.C. § 3603(b). (1964 ed., Supp. IV). Even at that time it will not apply to a 'single-family house' if the house is sold without the services of a real estate broker and without the notice described in § 3604(c) (1964 ed., Supp. IV). See § 3603(b) (1964 ed., Supp. IV). So no one knows whether the new Act would apply to these ancient transactions, even if they arose after December 31, 1969.
1
392 U.S., at 452—454, 88 S.Ct., at 2209—2211 (dissenting opinion).
2
392 U.S., at 454—473, 88 S.Ct., at 2210—2220 (dissenting opinion). See Casper, Jones v. Mayer: Clio, Bemused and Confused Muse, 1968 Sup.Ct.Rev. 89, 99—122; The Supreme Court, 1967 Term, 82 Harv.L.Rev. 63, 93—103 (1968).
3
Civil Rights Act of 1968, Tit. VIII, 42 U.S.C. § 3601 et seq. (1964 ed., Supp. IV).
4
The third and final stage in the expansion of the coverage of the Fair Housing Law takes effect after December 31, 1969. See 42 U.S.C. § 3603(b) (1964 ed., Supp. IV).
5
See n. 1 of the majority opinion, ante, at 231, for the text of the rule.
6
See, e.g., Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 159—160, 74 S.Ct. 396, 397—398, 98 L.Ed. 583 (1954).
7
It appears that plenary review by the Virginia Supreme Court of Appeals is not a matter of right for many kinds of cases. See Va.CodeAnn. § 8—462 (1957 Repl.Vol.); Va.Const. §§ 87, 88.
8
See Hammerstein v. Superior Court, 341 U.S. 491, 492, 71 S.Ct. 820, 821, 95 L.Ed. 1135 (1951); Chesapeake & Ohio R. Co. v. McDonald, 214 U.S. 191, 29 S.Ct. 546, 53 L.Ed. 963 (1909); Newman v. Gates, 204 U.S. 89, 27 S.Ct. 220, 51 L.Ed. 385 (1907).
9
Sandalow, Henry v. Mississippi and the Adequate State Ground: Proposals for a Revised Doctrine, 1965 Sup.Ct.Rev. 187, 226. See id., at 225—226 for a discussion of Mr. Justice Black's dissent in Henry v. Mississippi, 379 U.S. 443, 455—457, 85 S.Ct. 564, 571—573, 13 L.Ed.2d 408 (1965), which is cited by the majority. Williams v. Georgia, 349 U.S., 375, 75 S.Ct. 814, 99 L.Ed. 1161 (1955), which is not cited by the majority, does not in my view support the reasoning of the majority. I think the result in Williams rests upon a determination of inconsistency in the application of the State's procedural requirements for a new trial. See 349 U.S., at 383, 75 S.Ct., at 819.
10
Bolin v. Laderberg, 207 Va. 795, 153 S.E.2d 251 (1967); Cook v. Virginia Holsum Bakeries, 207 Va. 815, 153 S.E.2d 209 (1967); Taylor v. Wood, 201 Va. 615, 112 S.E.2d 907 (1960); Bacigalupo v. Fleming, 199 Va. 827, 102 S.E.2d 321 (1958).
11
Stokely v. Owens, 189 Va. 248, 52 S.E.2d 164 (1949); Grimes v. Crouch, 175 Va. 126, 7 S.E.2d 115 (1940).
12
It can be seen from the passage quoted by the majority, see ante, at 232-233, that Bacigalupo interpreted the rule as requiring that (1) opposing counsel must have a reasonable opportunity to examine the transcript after he receives notice; and (2) based on this examination, opposing counsel must have a reasonable opportunity to make any objections he has to the accuracy of the transcript before the transcript is signed by the trial judge. In this case, opposing counsel received notice by telephone on Friday, June 9, and by letter the following Monday. His opportunity to examine the transcript consisted of the time between Monday and Friday when the transcript was available to him in the judge's chambers; and the time between Friday, June 16, and Monday, the 19th, when he actually had in his possession a copy of the transcript. Any argument that this length of time, per se, is not reasonable opportunity is belied by Cook v. Virginia Holsum Bakeries, supra, where opposing counsel received a copy of a narrative only two days before the trial judge signed it, and the Virginia Supreme Court of Appeals found no violation of the rule.
13
In Snead, the Virginia Supreme Court of Appeals said:
'It is important that time be given opposing counsel for a reasonable opportunity to analyze such statements characterized by defendant's counsel as being confusing. The entire testimony of a very material witness was left out of the narrative statement when it was presented to the trial judge and it was necessary for him to insert it. We are of the opinion that the notice delivered to the Common-wealth's Attorney at his residence, after office hours, thirty minutes before tendering a narrative statement of the evidence to the trial judge for his signature, does not constitute reasonable notice within the plain meaning of Rule 5:1, § 3(f) and that the terms of the Rule are mandatory and jurisdictional.' 200 Va., at 854, 108 S.E.2d, at 402.
This case is far different from Snead in significant respects. First, in Snead the court was not confronted with a transcript but instead with a narrative; and this narrative was, by the admission of appellant's own counsel, 'of a confusing nature and character.' In this case, on the other hand, the record fails to show that counsel for respondent made any objection to the trial judge as to the adequacy of the notice, or to the accuracy of the transcript, see Taylor v. Wood, supra; Stokely v. Owens, supra. Furthermore, at oral argument before this Court, counsel for respondent could not point to a single inaccuracy in the transcript as signed by the trial judge. Tr. of Oral Arg., 20. Second, in Snead opposing counsel was only given one-half hour's notice of a proposed tender to the judge for signature that night. In this case, although the transcript was sent to the judge at about the same time as opposing counsel received notice, that notice stated that the judge would not be asked to sign the transcript for a week, so counsel could first have an opportunity to examine it.
Respondent suggests that the rule requires that opposing counsel have notice and an opportunity to examine the transcript before the transcript is given to the judge rather than simply before the judge signs it. No prior Virginia case of which we have been made aware has so stated, however, and the principle of Bacigalupo quoted by the majority suggests that the key is that there be an opportunity to inspect and to make objections before the judge signs the transcript.
14
See Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883).
15
42 U.S.C. § 3610(a) (1964 ed., Supp. IV).
16
Id., § 3610(d).
17
Id., § 3612. See Fair Housing Law and Other Federal Civil Rights Laws and Executive Orders Relating to the Programs of the U.S. Department of Housing and Urban Development, Dept. of Housing and Urban Development, Office of Equal Opportunity; Note, Discrimination in Employment and in Housing: Private Enforcement Provisions of the Civil Rights Acts of 1964 and 1968, 82 Harv.L.Rev. 834, 839, 855—859, 862—863 (1969).
18
42 U.S.C. § 3612(c) (1964 ed., Supp. IV).
19
Id., §§ 3612(b), 3612(c).
20
Id., §§ 3613, 3631. See Id., § 3617.
21
Cf. Bickel, Forward: The Passive Virtues, The Supreme Court, 1960 Term, 75 Harv.L.Rev. 40 (1961).
22
Given that the market price of a membership share in Little Hunting Park apparently ranged from $150 to $230 during the time in question, see Government's Amicus Brief 5, Freeman's compensatory damages will not, in all probability, be substantial. And, as I point out in the next section, unresolved factual issues may bar any relief at all for Sullivan.
23
The relevant events in this case all took place in 1965, long before the Fair Housing Law first went into effect on April 11, 1968. Whether the Fair Housing Law would protect Dr. Freeman were like events to take place again after December 31, 1969, in part would depend upon whether the transaction between Sullivan and Freeman would fall within any of the categories described in n. 24, infra. On the facts as they appear in this record, the exemption found in 42 U.S.C. § 3607 (1964 ed., Supp. IV) would not appear to bar recovery.
24
In addition to covering all single-family houses not owned by private individuals, and single-family houses owned by a private individual who owns more than three houses, the Fair Housing Law, after December 31, 1969, covers the rental of all single-family homes (a) rented with the help of a real estate broker; or (b) offered for rental through a written notice or advertisement which is discriminatory. See 42 U.S.C. § 3603(b) (1964 ed., Supp. IV).
25
See Petitioners' Brief 9—11, 39—50.
26
See Appendix 181—182, 185—186. The detailed specification of charges against Sullivan was given by Little Hunting Park as part of a settlement of a suit brought by Sullivan to enjoin the hearing on his expulsion. This earlier suit, which was dismissed by agreement between the parties, was brought by Sullivan because of the vagueness of the July 8 letter as to the conduct upon which the due-cause hearing was to be held. The settlement of this earlier suit also included a stipulation between Sullivan and Little Hunting Park as to future lawsuits which respondents claimed below barred Sullivan's suit before us now. This aspect of the stipulation was noted, but not passed on, by the trial judge below.
27
Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), upon which the majority appears to place heavy reliance, gives no guidance as to the extent a state court is obliged to allow a white person to recover affirmatively either damages or other relief after he has transferred a real estate interest to a Negro. In Barrows the Court held that damages could not be awarded against a white defendant sued for breach of a recially restrictive covenant.
B. STATE COURT REMEDIES FOR FEDERAL RIGHTS
28
See J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964).
29
See Ward v. Board of County Com'rs of Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751 (1920); The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959).
30
Testa v. Katt, 330 U.S. 389, 67 S.Ct. 810, 91 L.Ed. 967 (1947) (state court obligated to give treble damages, required by federal statute, for violation of Emergency Price Control Act).
31
See Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560 n. 2, 88 S.Ct. 1235, 1237, 20 L.Ed.2d 126 (1968) (Court did not decide whether the remedies available in a state court in a suit to enjoin a strike are limited to the remedies available under federal law).
32
See H. Hart & H. Wechsler, The Federal Courts and The Federal System 474—477 (1953); Greene, Hybrid State Law in the Federal Courts 83 Harv.L.Rev. 289, 315—319 (1969).
33
The majority, in its penultimate paragraph, appears not to decide whether the 'rule of damages' is 'drawn from federal or state sources.'
| 12
|
396 U.S. 258
90 S.Ct. 417
24 L.Ed.2d 405
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.J.H. RUTTER-REX MANUFACTURING COMPANY, Inc., et al.
No. 32.
Argued Oct. 22, 1969.
Decided Dec. 15, 1969.
Rehearing Denied Feb. 24, 1970.
See 397 U.S. 929, 90 S.Ct. 895.
Arnold Ordman, Washington, D.C., for petitioner.
Henry J. Read, New Orleans, La., for respondent J.H. Rutter-Rex Manufacturing Co.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case presents the question whether, when an employer has improperly failed to reinstate striking employees, and the National Labor Relations Board has after considerable delay ordered back pay for those employees, a court of appeals may, on account of the delay, modify the Board's order to provide an early cutoff date for back pay. In the circumstances of this case, we hold such a modification to be an unwarranted interference with the Board's remedial power to implement the policies of the National Labor Relations Act.
2
* The employees in question chose the Amalgamated Clothing Workers of America, AFL—CIO, as their bargaining representative in January 1954. After three bargaining sessions between the union and the company, the employees went out on strike in April 1954. At that point and thereafter the company refused to bargain further with the union representatives. Charges of unfair labor practices, including a refusal to bargain in good faith, were filed against the company. In April 1955, while these charges were pending, the union terminated the strike and applied for the reinstatement of many of the strikers. The company reinstated some of these employees and failed to reinstate others.
3
In February 1956 the Board found that the company had indeed been guilty of an unlawful refusal to bargain. It ordered the company to offer reinstatement to all strikers who applied, and to 'make such applicants whole for any loss of pay suffered by reason of the * * * refusal, if any, to reinstate them.' J.H. Rutter-Rex Mfg. Co., 115 N.L.R.B. 388, 391 (1956). As is apparently the Board's practice in reinstatement cases involving strikers, the order did not name the individuals covered, but left disputes over the details of reinstatement and back pay to the compliance stage of the proceedings. The Court of Appeals enforced the Board's order. NLRB v. J.H. Rutter-Rex Mfg. Co., 245 F.2d 594 (C.A.5th Cir. 1957), and entered its decree on August 19, 1957.
4
On August 21, 1957, the Board's regional office sent the company the standard letter describing compliance procedures, which included the following:
5
'When you have fully complied with the affirmative terms of the Decree and there are no violations of its negative provisions, you will be notified that the case has been closed. Until you receive such notice you will know that the case still remains open for all purposes as awaiting compliance.'
6
On November 7, 1957, the company wrote to the regional office stating that it had complied with 'some of the provisions of the decree,' and asking that the regional office bring 'any instance of a failure to fully comply with the order' to the company's attention. The regional office did not answer this letter, and the company heard nothing until March 22, 1960, when a Board compliance officer notified the company that the case had been assigned to him, and requested payroll and other records necessary to determine the employment and back-pay rights of employees.
7
On November 16, 1961, the regional office filed a 428-page back-pay specification, alleging that the company owed more than $342,000 to some 207 strikers who had either not been reinstated within five days after applying, or who had never been reinstated, in violation of the Board and court orders. The company applied to the Court of Appeals for a permanent stay of further action in the back-pay proceedings, alleging that the Board had delayed improperly in issuing the specification. By affidavit, the Board explained that the delay was caused in part by the great complexity of the task of processing the claims of approximately 600 strikers, and in part by the extremely heavy caseload and severe limitations in staff that the New Orleans regional office experienced during the late 1950's. The Court of Appeals noted that the delay was regrettable, but denied the requested stay. NLRB v. J.H. Rutter-Rex Mfg. Co., 305 F.2d 242 (C.A.5th Cir. 1962).
8
After a lengthy hearing, a Trial Examiner denied back pay to 35 of the 207 claimants, and reduced the amount due to just over $160,000. He determined that each employee should receive net back pay, computed according to the Board's usual formula,1 for the period running from five days after his application for reinstatement until the company made a complying offer. Where no offer was made, the back pay was to accrue through the last quarter of 1961, the quarter in which the specification was filed. His findings and recommendations were adopted with minor modifications by the Board on June 6, 1966. J.H. Rutter-Rex Mfg. Co., 158 N.L.R.B. 1414 (1966). Both the Examiner and the Board considered and rejected the company's contention that the delay in issuing the specification should bar the back-pay award, either in whole or in part.
9
On review, the Court of Appeals found that the Board had been guilty of 'inordinate' delay, in violation of § 6(a) of the Administrative Procedure Act, 60 Stat. 240, 5 U.S.C. § 1005(a), now 5 U.S.C. § 555(b) (1964 ed., Supp. IV), and to the prejudice of the company, which had been 'lulled into the belief that the Board was satisfied and that no further action was to be expected.' J.H. Rutter-Rex Mfg. Co. v. NLRB, 399 F.2d 356, 363 (C.A.5th Cir. 1968). Arguing that the purpose of back-pay awards is to 'deter unfair labor practices,' id., at 364, and believing that a substantial award of back pay would be sufficient to achieve such deterrent effect, the court modified the Board order to eliminate all back pay accruing after July 1, 1959, thus reducing the awards of some 37 strikers who had not yet received complying offers of reinstatement by that date. We granted certiorari to consider the propriety of this modification,2 393 U.S. 1117, 89 S.Ct. 993, 22 L.Ed.2d 122 (1969), and we reverse the judgment below.
II
10
We start with the broad command of § 10(c) of the National Labor Relations Act, as amended, 61 Stat. 147, 29 U.S.C. § 160(c), that upon finding that an unfair labor practice has been committed, the Board shall order the violator 'to take such affirmative action including reinstatement of employees with or without back pay, as well effectuate the policies' of the Act. This Court has stated that the remedial power of the Board is 'a broad discretionary one, subject to limited judicial review.' Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233 (1964).
11
The legitimacy of back pay as a remedy for unlawful discharge or unlawful failure to reinstate is beyond dispute, Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278, 76 S.Ct. 349, 355, 100 L.Ed. 309 (1956), and the purpose of the remedy is clear. 'A back pay order is a reparation order designed to vindicate the public policy of the statute by making the employees whole for losses suffered on account of an unfair labor practice.' Nathanson v. NLRB, 344 U.S. 25, 27, 73 S.Ct. 80, 82, 97 L.Ed. 23 (1952). As with the Board's other remedies, the power to order back pay 'is for the Board to wield, not for the courts.' NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346, 73 S.Ct. 287, 289, 97 L.Ed. 377 (1953). 'When the Board, 'in the exercise of its informed discretion,' makes an order of restoration by way of back pay, the order 'should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." Id., at 346—347, 73 S.Ct., at 289.
12
Here the Board ordered back pay through December 1961 for employees who had not yet received complying offers of reinstatement by that date. That order clearly falls within the general purpose of making the employees whole, and thus restoring the economic status quo that would have obtained but for the company's wrongful refusal to reinstate them. The employees encompassed by the order earned less during the relevant quarterly periods than they would have, had they been reinstated in their old or substantially equivalent jobs with the company. Thus the Court of Appeals' modification, cutting off the accrual of back pay at the arbitrary date of July 1, 1959, left the employees who had not been reinstated by that date worse off than they would have been but for the company's wrongful action in refusing reinstatement. Either the company or the employees had to bear the cost of the Board's delay. The Board placed that cost upon the company, which had wrongfully failed to reinstate the employees. In an effort to discipline the Board for its delay, the court shifted part of that cost from the wrongdoing company to the innocent employees.
13
The Court of Appeals justified the modification as a proper balancing of the interests of the company, which it found was prejudiced in litigating the back pay claims by the Board's delay, and the interests of the employees in full restitution. It found statutory support for the company's position in what it took to be the Board's violation of its duty under the Administrative Procedure Act to 'proceed with reasonable dispatch to conclude any matter presented to it.' 5 U.S.C. § 1005(a). Thus, the Court of Appeals reasoned, the case fell within the admonition that reviewing courts in labor cases not '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 (1965).
14
Assuming without deciding that the delay in issuing the specification did violate the Board's duty of prompt action under the Administrative Procedure Act, it does not follow that enforcement of the full back pay remedy was an abuse of the Board's discretion. Wronged employees are at least as much injured by the Board's delay in collecting their back pay as is the wrongdoing employer. In view of 'the economic hardship caused by many years of undeservedly substandard earnings,' lengthy delays 'must render the back pay award a wholly inadequate and unsatisfactory remedy' to the employees for the company's refusal to reinstate them. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 180 (C.A.2d Cir. 1965). This Court has held before that the Board is not required to place the consequences of its own delay, even if inordinate, upon wronged employees to the benefit of wrongdoing employers. NLRB v. Electric Vacuum Cleaner Co., 315 U.S. 685, 698, 62 S.Ct. 846, 852, 86 L.Ed. 1120 (1942); National Labor Board v. Katz, 369 U.S. 736, 748 n. 16, 82 S.Ct. 1107, 1114, 8 L.Ed.2d 230 (1962).
15
The Court of Appeals reasoned further that the purpose of the back-pay remedy is deterrence of unfair labor practices, and that the substantial backpay award that it enforced would sufficiently serve that deterrent purposes. But the Board could properly conclude that back pay is not only punishment for an unfair labor rpactice, but is also a remedy designed to restore, so far as possible, the status quo that would have obtained but for the wrongful act. Cf. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941).
16
Finally, the Court of Appeals reasoned that the company was 'lulled into the belief that the Board was satisfied and that no further action was to be expected.' 399 F.2d, at 363. We need not decide whether this sort of estoppel argument would justify a court in reducing a back-pay award, for no estoppel appears in this case. The Board clearly informed the company that this case would remain open as awaiting compliance until the company received a notice that the case was closed. No such closing notice was ever given. As the Court of Appeals itself stated, the company's subsequent letter asking that violations of the order be called to its attention 'could not shift or avoid its duty of compliance.' Ibid.
17
We do not mean that delay in the administrative process is other than deplorable. It is deplorable if, as the Court of Appeals thought, the company was hampered in the presentation of its defenses to the back pay specification by the delay. It is even more deplorable if, as seems clear, innocent employees had to live for some years on reduced incomes as a combined result of the delay and the company's illegal failure to reinstate them. It may be that the company could have, through the courts, compelled earlier Board action.3 But the Court of Appeals exceeded the narrow scope of review provided for the Board's remedial orders when it shifted the cost of the delay from the company to the employees in this case.
18
Reversed.
19
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. JUSTICE HARLAN concur, dissenting.
20
Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, requires a dismissal of the writ of certiorari.
21
To start with, the Board is allowed a wide field of discretion over awards of back pay against a company found to have committed an unfair labor practice. As the Court said in Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198, 61 S.Ct. 845, 854, 85 L.Ed. 1271:
22
'The remedy of back pay, it must be remembered, is entrusted to the Board's discretion; it is not mechanically compelled by the Act. And in applying its authority over back pay orders, the Board has not used stereotyped formulas but has availed itself of the freedom given it by Congress to attain just results in diverse, complicated situations.'
23
Thus the employees in this case have no automatic 'right' to any award of back pay.
24
The Universal Camera case concerned the scope of judicial review of orders of the Board. Prior to that decision, many courts had conceived their function of review as an extremely narrow one; some courts looked only for evidence which, when viewed in isolation, substantiated the Board's findings. Congress registered its dissatisfaction with this restricted scope of review by stating the proper test in the Taft-Hartley Act as one of 'substantial evidence on the record considered as a whole.' 61 Stat. 148, 29 U.S.C. § 160(e). This meant that the courts of appeals were to 'assume more responsibility for the reasonableness and fairness of Labor Board decisions' than had been in practice of many of these courts in the past. 340 U.S., at 490, 71 S.Ct., at 465.
25
The impact of this decision was to vest the courts of appeals with general supervisory responsibility over Board decisions and orders. Accordingly, the role of this Court was to be an extremely limited one. The Court in Universal Camera put it this way:
26
'Our power to review the correctness of application of the present standard ought seldom to be called into action. Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.' Id., at 490—491, 71 S.Ct. at 466.
27
The problem in the present case is one of working out the equities of a back-pay order. Because the Board's delay in initiating compliance proceedings with respect to its original order was deemed unreasonable, the Court of Appeals saw fit to modify the terms of that order. The impact of the specific facts relating to the Board's and the company's actions in this case was taken into account by the Court of Appeals in reviewing the terms of the back-pay order. It arrived at its judgment as an exercise of its responsibility 'for assuring that the Board keeps within reasonable bounds' (id., at 490, 71 S.Ct., at 466) in a subject area that necessarily involves 'diverse, complicated situations.'
28
Casting the issue as one of 'law' rather than as one of 'fact' does not conceal the substantial departure in this case from the learning of Universal Camera: that the courts of appeals, and not this Court, are the watchdogs of the Board.
29
I would dismiss the writ as improvidently granted.
1
NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 345, 73 S.Ct. 287, 288, 97 L.Ed. 377 (1953).
2
The Court of Appeals also reversed back-pay awards as to 10 strikers in their entirety, finding the awards not supported by substantial evidence. 399 F.2d, at 365. Certiorari was not sought as to this modification of the Board's order.
3
Section 10(e)(A) of the Administrative Procedure Act, 5 U.S.C. § 1009(e) (A), now 5 U.S.C. § 706(1) (1964 ed., Supp. IV), provides that courts shall 'compel agency action unlawfully withheld or unreasonably delayed.'
| 89
|
396 U.S. 282
90 S.Ct. 501
24 L.Ed.2d 470
Willie WADE, Jr., Petitioner,v.Lawrence E. WILSON, Warden, et al.
No. 55.
Argued Nov. 12, 1969.
Decided Jan. 13, 1970.
Marshall L. Small, San Francisco, Cal., for petitioner.
John T. Murphy, San Francisco, Cal., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
In 1961, petitioner and one Pollard appealed to the California District Court of Appeal from murder convictions upon which the California Superior Court had sentenced each of them to life imprisonment. California Rules of Court 35(c) and 10(c) required that the appellants be furnished with one free copy of the trial transcript to be shared by them for the purposes of the appeal. Pollard received the free copy but would not share it with petitioner. However, the State Attorney General loaned petitioner's appellate counsel his copy. The District Court of Appeal affirmed the convictions, People v. Pollard, 194 Cal.App.2d 830, 15 Cal.Rptr. 214 (1961).
2
Five years later, in 1966, petitioner wished to pursue a collateral remedy and sought the transcript from Pollard but Pollard 'refuse(d) to communicate on the subject.' Petitioner's inquiry of his appellate lawyer elicited the response that the copy borrowed from the Attorney General had been returned. Petitioner then turned to the California courts seeking, however, not temporary use of a copy, but to be furnished with a copy of his own. He applied initially to the trial court and was advised that the original of the transcript was in the District Court of Appeal. He thereupon filed a pro se motion for a copy in the District Court of Appeal, which motion was denied on the ground that the Court of Appeal had only the original and was not equipped to duplicate copies. He next filed a proceeding in the California Supreme Court and was advised by the clerk of that court that he must proceed in 'the court possessed of the original record.'1 He renewed his application to the District Court of Appeal, which again denied it on the ground that that court had 'no facility for reproducing records'; but this time petitioner was advised that the original record would be made available for copying at his expense. Petitioner then abandoned further efforts in the California courts.
3
In 1967, he filed the instant federal habeas corpus proceeding in the District Court for the Northern District of California. His petition alleged his indigency and the single claim that California's refusal to furnish him without cost his own copy of the transcript denied him due process and equal protection of the laws in violation of the Fourteenth Amendment. The District Court after hearing granted the writ and ordered California either to provide the free transcript or to release the petitioner. The District Court stated in an unreported opinion, 'although there is no square holding on the precise question of the right to a transcript in preparing a petition for a writ of habeas corpus rather than an appeal the logic of the Supreme Court holdings compels a finding that such a right exists.'2 The Court of Appeals for the Ninth Circuit reversed on the ground that 'the trial court failed to find that Wade was claiming that there was any error which occurred in the proceedings which led to his conviction which would warrant the granting of post-conviction relief. * * * Wade was not entitled to demand a transcript merely to enable him to comb the record in the hope of discovering some flaw.' Wilson v. Wade, 390 F.2d 632, 634 (1968). We granted certiorari. 393 U.S. 1079, 89 S.Ct. 882, 21 L.Ed.2d 772 (1969).
4
The California Court Rules require that a free transcript be furnished to convicted persons separately tried in felony cases and to each codefendant where one or more codefendants are under sentence of death.3 Petitioner argues that in furnishing only one copy to be shared by co-defendants where none received the death penalty California interposes an unconstitutional barrier to the use of its criminal appellate proceedings and that the distinction made by the Rules, without more, establishes that California has denied him equal protection of the laws. But petitioner will not be heard to attack the Rules since they concern only the furnishing of transcripts for purposes of direct appeal and he and his appellate counsel in fact had the use on his direct appeal of the transcript borrowed from the State Attorney General and did not complain that the terms on which it was made available in any way impaired its effective use on the appeal. See United States v. Raines, 362 U.S. 17, 21—22, 80 S.Ct. 519, 522 523, 4 L.Ed.2d 524 (1960).
5
Petitioner argues that in any event, contrary to the Court of Appeals, the District Court was correct in holding that because 'it may not be possible to pinpoint * * * alleged errors in the absence of a transcript,' petitioner was entitled to a transcript for use in petitioning for habeas corpus even though he did not specify what errors he claimed in his conviction. To pass on this contention at this time would necessitate our decision whether there are circumstances in which the Constitution requires that a State furnish an indigent state prisoner free of cost a trial transcript to aid him to prepare a petition for collateral relief. This is a question of first impression which need not be reached at this stage of the case. Notwithstanding petitioner's success in borrowing a copy of the transcript in connection with his direct appeal, his insistence in the subsequent proceedings in both the California and federal courts is that he has a constitutional right to a copy of his own. We think consideration of that contention should be postponed until it appears that petitioner cannot again borrow a copy from the state authorities, or successfully apply to the California courts to direct his codefendant, Pollard, or some other custodian of a copy to make a copy available to him. Cf. Rule 10(c). Without such a showing, or a showing that having his own copy would be significantly more advantageous than obtaining the use of someone else's copy, the District court should not have reached the merits of petitioner's claim. We think, however, that the case should be retained on the District Court's docket pending petitioner's efforts to obtain access to the original or a copy. Upon being advised by the parties that petitioner has been provided such access, the court should dismiss the action. We vacate the judgments of both the Court of Appeals and the District Court and remand to the District Court for further proceedings consistent with this opinion.
6
It is so ordered.
7
Judgments vacated and case remanded to the District Court.
8
Mr. Justice BLACK, dissenting.
9
Petitioner and one Joe Pollard were convicted of murder in 1960 and sentenced to life imprisonment. Pollard received a trial transcript and when he refused to turn it over to petitioner for his use in preparing an appeal, the State Attorney General's Office loaned a copy to petitioner's appellate counsel. The California District Court of Appeal affirmed in 1961. People v. Pollard, 194 Cal.App.2d 830, 15 Cal.Rptr. 214. Five years later, in 1966, petitioner tried in the state courts to obtain a trial transcript. Failing there, he filed a petition in the United States District Court for the Northern District of California in 1967 asking to be released because of the State's refusal to provide him a copy of the transcript. The United States District Court held petitioner was entitled to a copy of the trial record but the United States Court of Appeals reversed, holding that since petitioner did not allege any trial error which might warrant post-conviction relief he was 'not entitled to demand a transcript merely to enable him to comb the record in the hope of discovering some flaw.' 390 F.2d 632, 634 (1968).
10
This Court today says the petitioner thus raises a constitutional question of first impression 'whether there are circumstances in which the Constitution requires that a State furnish an indigent state prisoner free of cost a trial transcript to aid him to prepare a petition for collateral relief.' Ante, at 286. It may be conceivable that the Constitution would under certain special circumstances impose this duty on the State when it has such a record in its possession, but I cannot agree that anything shown in this record presents those special circumstances.
11
It is now over nine years since this case was tried. At petitioner's request a trial record was made available for him to take an appeal; eight years ago he took that appeal and lost. There certainly is no constitutional requirement that a State must continue to supply convicted defendants trial records to enable them to raise the same old challenges to their convictions again and again and again. There is not a word or a suggestion in the whole record in this case that demonstrates or even intimates that any new events have occurred since petitioner's 1961 appeal which could under any possible circumstances justify even a shadowy argument that petitioner was not guilty of the murder he was convicted of having committed. Although more than eight years have passed since that appeal, I would join in granting relief to this petitioner if he had shown or even given any reason to believe, that new circumstances now indicate he was wrongfully convicted of a crime of which he was not guilty. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); cf. Kaufman v. United States, 394 U.S. 217, 231, 89 S.Ct. 1068, 1076, 22 L.Ed.2d 227 (1969) (Black J., dissenting); Harris v. Nelson, 394 U.S. 286, 301, 89 S.Ct. 1082, 1091, 22 L.Ed.2d 281 (1969) (Black J., dissenting). But we have no such case here. Petitioner has not raised any claims which indicate in the slightest that he has been convicted of a crime of which he is innocent. At the most he has asserted a desire to review the record to find some technical legal point which he can argue to a court as a basis for release from confinement. He has already had one chance to make such arguments on direct appeal, and he lost that battle. I do not think he needs a transcript to know whether he was convicted erroneously or whether some new circumstances have arisen that now show a fatal constitutional error in the prior proceedings. In any event he has not yet based his request for a transcript on any indication of such a need. In such circumstances I see no reason whatsoever for the State to have to obtain a copy for him. This case is but another of the multitudinous instances in which courts are asked interminably to hash and rehash points that have already been determined after full deliberation and review. One considered appeal is enough, in the absence of factors which show a possibility that a substantial injustice has been inflicted on the defendant.
12
Nothing in this petitioner's application for certiorari or his briefs and arguments gave any indication that he might be entitled to post-conviction relief, and there is thus no reason why this Court should even have reviewed his case. I would dismiss this writ as being improvidently granted.
1
Petitioner styled his application to the Supreme Court of California 'A Petition for a Writ of Habeas Corpus' but the only relief he requested was issuance of the record in his case or an ordrer to the District Court of Appeal to furnish him with the record. He did not request an order releasing him from custody.
2
The District Court cited Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961) (habeas corpus filing fee); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (transcript on direct appeal); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963) (transcript on post-conviction appeal); Long v. District Court, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966) (transcript on post-conviction appeal). See also Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969).
3
Rules 35(c) and 10(c) provide in pertinent part:
Rule 35(c): 'As soon as both the clerk's and reporter's transcripts are completed, the clerk shall deliver one copy to the defendant or his attorney and one copy to the district attorney * * *. When there are two or more appealing defendants in a case in which a judgment of death has been rendered against one or more of the defendants, the clerk shall deliver a copy of both transcripts to each such defendant or his attorney. * * * Where there are two or more appealing defendants represented by separate counsel in a case in which judgment of death has not been rendered against any defendant, the appellant's copy shall be made available for the use of the appellants in the manner provided in Rule 10.'
Rule 10(c): 'The additional copy of the record required by these rules shall be made available for the use of the parties to the appeal in such manner as the judge, or the clerk under his direction, shall prescribe; provided that the parties may stipulate to its use, and in such event only the original need be filed with the clerk of the superior court.'
| 12
|
396 U.S. 290
90 S.Ct. 608
24 L.Ed.2d 477
Robert CARTER et al.v.WEST FELICIANA PARISH SCHOOL BOARD et al.
No. 944.
Derek Jerome SINGLETON et al.
v.
JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT et al.
No. 972.
Supreme Court of the United States
January 14, 1970
Rehearings Denied Jan. 26, 1970.
See 396 U.S. 1053, 90 S.Ct. 705.
On Petitions for writs of Certiorari to the United States Court of Appeals for the Fifth Circuit.
Richard B. Sobol, Murphy W. Bell, Robert F. Collins, Norman C. Amaker, and Melvyn Zarr, for petitioners Robert Carter and others.
Jack Greenberg, James M. Nabrit III, Norman C. Amaker, Melvyn Zarr, Oscar W. Adams, Jr., John H. Ruffin, Jr., and Earl M. Johnson, for petitioners Derek Jerome Singleton and others.
John F. Ward, Jr., for respondents West Feliciana Parish School Board and others.
Robert C. Cannada and Thomas H. Watkins, for respondents Jackson Municipal Separate School District and others.
Hardy Lott, for respondent Marshall County Board of Education.
Reid B. Barnes, for respondent Jefferson County Board of Education.
Edwin L. Brobston, for respondents Board of Education of City of Bessemer and others.
Palmer Pillans and George F. Wood, for respondents Board of School Commissioners of Mobile County and others.
Frank C. Jones and Wallace Miller, Jr., for respondents Bibb County board of Education and others.
H. A. Aultman, for respondent Houston County Board of Education.
W. Fred Turner, for respondent Board of Public Instruction of Bay County.
Sam T. Dell, Jr., for respondents Board of Public Instruction of Alachua County and others.
Solicitor General Griswold, for the United States, amicus curiae.
John F. Ward, Jr., for Louisiana Teachers Ass'n, amicus curiae.
Rivers Buford, Jr., and Gerald Mager, for State Board of Education of Florida, amicus curiae.
PER CURIAM.
1
Insofar as the Court of Appeals authorized deferral of student desegregation beyond February 1, 1970, that court misconstrued our holding in Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29. Accordingly, the petitions for writs of certiorari are granted, the judgments of the Court of Appeals are reversed, and the cases remanded to that court for further proceedings consistent with this opinion. The judgments in these cases are to issue forthwith.
2
Mr. Justice HARLAN, with whom Mr. Justice WHITE joins, concurring.
3
I join the Court's order. I agree that the action of the Court of Appeals in these cases does not fulfill the requirements of our recent decision in Alexander v. Holmes School Board, 396 U.S. 19, 90 S.Ct. 29, and accordingly that the judgments below cannot stand. However, in fairness to the Court of Appeals and to the parties, and with a view to giving further guidance to litigants in future cases of this kind, I consider that something more is due to be said respecting the intended effect of the Alexander decision. Since the Court has not seen fit to do so, I am constrained to set forth at least may own understanding of the procedure to be followed in these cases. Because of the shortness of the time available, I must necessarily do this in a summary way.
4
The intent of Alexander, as I see it, was that the burden in actions of this type should be shifted from plaintiffs, seeking redress for a denial of constitutional rights, to defendant school boards. What this means is that upon a prima facie showing of noncompliance with this Court's holding in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), sufficient to demonstrate a likelihood of success at trial, plaintiffs may apply for immediate relief that will at once extirpate any lingering vestiges of a constitutionally prohibited dual school system. Cf. Magnum Import Co. v. Coty, 262 U.S. 159, 43 S.Ct. 531, 67 L.Ed. 922 (1923).
5
Such relief, I believe it was intended, should consist of an order providing measures for achieving disestablishment of segreagated school systems, and should, if appropriate, include provisions for pupil and teacher reassignments, rezoning, or any other steps necessary to accomplish the desegregation of the public school system as required by Green. Graduated implementation of the relief is no longer constitutionally permissible. Such relief shall become effective immediately after the courts, acting with dispatch, have formulated and approved an order that will achieve complete disestablishment of all aspects of a segregated public school system.
6
It was contemplated, I think, that in determining the character of such relief the courts may consider submissions of the parties or any recommendations of the Department of Health, Education, and Welfare that may exist or may request proposals from the Department of Health, Education, and Welfare. If Department recommendations are already available the school districts are to bear the burden of demonstrating beyond question, after a hearing, the unworkability of the proposals, and if such proposals are found unworkable, the courts shall devise measures to provide the required relief. It would suffice that such measures will tend to accomplish the goals set forth in Green, and, if they are less than educationally perfect, proposals for amendments may thereafter be made. Such proposals for amendments are in no way to suspend the relief granted in accordance with the requirements of Alexander.
7
Alexander makes clear that any order so approved should thereafter be implemented in the minimum time necessary for accomplishing whatever physical steps are required to permit transfers of students and personnel or other changes that may be necessary to effectuate the required relief. Were the recent orders of the Court of Appeals for the Fifth Circuit in United States v. Hinds County School Board, 423 F.2d 1264 (November 7, 1969), and that of the Fourth Circuit in Nesbit v. Statesville City Board of Education, 418 F.2d 1040 (December 2, 1969), each implementing in those cases our decision in Alexander, to be taken as a yardstick, this would lead to the conclusion that in no event should the time from the finding of noncompliance with the requirements of the Green case to the time of the actual operative effect of the relief, including the time for judicial approval and review, exceed a period of approximately eight weeks. This, I think, is indeed the 'maximum' timetable established by the Court today for cases of this kind.
8
Mr. Justice BLACK, Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL express their disagreement with the opinion of Mr. Justice HARLAN, joined by Mr. Justice WHITE. They believe that those views retreat from our holding in Alexander v. Holmes County Board of Education, 396 U.S., at 20, 90 S.Ct., at 29, that 'the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.'
9
Memorandum of THE CHIEF JUSTICE and Mr. Justice STEWART.
10
We would not peremptorily reverse the judgments of the Court of Appeals for the Fifth Circuit. That court, sitting en banc and acting unanimously after our decision in Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, has required the respondents to effect desegregation in their public schools by February 1, 1970, save for the student bodies, which are to be wholly desegregated during the current year, no later than September. In light of the measures the Court of Appeals has directed the respondent school districts to undertake, with total desegregation required for the upcoming school year, we are not prepared summarily to set aside its judgments. That court is far more familiar than we with the various situations of these several school districts, some large, some small, some rural, and some metropolitan, and has exhibited responsibility and fidelity to the objectives of our holdings in school desegregation cases. To say peremptorily that the Court of Appeals erred in its application of the Alexander doctrine to these cases, and to direct summary reversal without argument and without opportunity for exploration of the varying problems of individual school districts, seems unsound to us.
| 12
|
396 U.S. 346
90 S.Ct. 532
24 L.Ed.2d 567
Calvin TURNER et al., Appellants,v.W. W. FOUCHE et al.
No. 23.
Argued Oct. 20, 1969.
Decided Jan. 19, 1970.
[Syllabus from pages 346-347 intentionally omitted]
Michael Meltsner, New York City, for appellants.
Alfred L. Evans, Jr., Washington, D.C., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
This case, a companion to Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549, involves a challenge to the constitutionality of the system used in many counties of Georgia to select juries and school boards. The basic statutory scheme at issue is this. The county board of education consists of five freeholders.1 It is selected by the grand jury,2 which in turn is drawn from a jury list selected by the six-member county jury commission.3 The commissioners are appointed by the judge of the state superior court for the circuit in which the county is located.4
2
Some 2,500 to 3,000 people live in Taliaferro County, Georgia, of whom about 60% are Negroes.5 The county school system consists of a grammar school and a high school, and all the students at both schools are Negroes, every white pupil having transferred elsewhere.6 Sandra and Calvin Turner, a Negro schoolchild and her father who reside in that county, brought this class action against the members of the county board of education, the jury commissioners, and three named white grand jurors.7 Their complaint alleged that the board of education consisted entirely of white people; that it had been selected by a predominantly white grand jury, which in turn had been selected by the jury commissioners, all of whom were white people. The complaint charged that the board of education had deprived the Negro schoolchildren of textbooks, facilities, and other advantages; also that the Turners and other Negro citizens had sought unsuccessfully to communicate their dissatisfaction to the board of education.
3
According to the appellants, the members of the county grand jury, on which white people were perennially overrepresented and Negroes underrepresented, chose only white people as members of the board of education pursuant to the Georgia constitutional and statutory provisions governing the school-board selection. The complaint attacked those provisions as accounting for both the exclusion of Negroes and nonfreeholders from the board of education, and for the merely token inclusion of Negroes on the grand juries. The appellants sought (1) an injunction prohibiting enforcement of the Georgia constitutional and statutory provisions by which the board of education and grand jury were selected; (2) a declaration that the provisions were void on their face and as applied; (3) a further declaration that the various positions on the board of education, grand jury, and jury commission were vacant; (4) the appointment of a receiver for the school system and a special master for the selection of the grand jurors; and (5) $500,000 in ancillary damages.
4
A three-judge District Court was convened pursuant to 28 U.S.C. §§ 2281 and 2284, and conducted extensive evidentiary hearings. The evidenced showed that whenever a jury commissioner thought a voter from his area of the county qualified as a potentially good juror, he offered the name for consideration to his fellow commissioners; if all agreed, the name went on the master jury list. No name of a county resident was placed on the list unless he was personally known to at least one of the jury commissioners. The commissioners looked for 'people that we felt would be capable of interpreting proceedings of court and * * * render(ing) a just verdict * * *.' The state superior court judge had instructed them to put Negroes on the list. Following the compilation of the list, the commissioners 'picked the ones we thought were the very best people in the county' and put them on the grand-jury list. The superior court judge then drew the names of the grand jurors at random in open court. Only he could excuse from grand-jury service those whose names he drew; and he denied that Negroes were ever excused out of turn, or on account of their race.
5
At its first hearing, held in January 1968, the District Court voiced its concern that only 11 Negroes had found their way to the 130-member grand-jury list. The court adjourned for one month to enable the defendants to remedy the situation. It noted that two vacancies had opened up on the board of education and that, although the board had held an interim election, the grand jury had not yet confirmed the new members. The court suggested that '(i)f those two men would willingly stand aside the other members might select two outstanding Negro citizens * * * to go on the Board.' The court also advised counsel for the defendants to explain the law of jury discrimination to his clients, and expressed the hope that the jury commissioners would be 'generous' in their recomposition of the panel.
6
At the adjourned hearing in February, it appeared that three days after the first hearing the state superior court judge had discharged the county grand jury and directed the jury commissioners to recompose the jury list. Working from the voter registration list at the last general election,8 the commissioners had prepared a new grand-jury list containing the names of 44 Negroes and 77 white people. From this list the superior court judge drew the names that led to the impaneling of a new grand jury of 23 members, of whom only six were Negroes. Meanwhile the board of education had elected a Negro and a white man to fill the two vacancies, and the new grand jury had confirmed the new members in their offices.
7
Following these developments, the District Court declined to invalidate on their face either the various provisions governing the school-board and grand-jury selections, or the freeholder requirement for school-board membership. It found that at the commencement of suit Negroes had been systematically excluded from the grand juries through token inclusion, but it concluded that the new grand-jury list, drawn following the January hearing, was not unconstitutional. 290 F.Supp. 648.9
8
Subsequently the District Court entered a final judgment permanently enjoining the defendant jury commissioners and their successors from systematically excluding Negroes from the Taliaferro County grand-jury system. The appellants, complaining of the court's failure to hold the challenged provisions of Georgia law invalid on their face and as applied, took a direct appeal to this Court pursuant to 28 U.S.C. § 1253, and we noted probable jurisdiction, 393 U.S. 1078, 89 S.Ct. 863, 21 L.Ed.2d 770.10
9
* The appellants urge that the constitutional and statutory scheme by which the Taliaferro County grand jury selects the board of education is unconstitutional on its face. They point to the discretion of the state superior court judge to exclude anyone he deems not 'discreet' from appointment to the jury commission,11 and of the jury commissioners to eliminate from grand-jury service anyone they find not 'upright' and 'intelligent.'12 These provisions, the appellants say, provide the county officials an opportunity to discriminate exercised both before and after the commencement of this litigation. It is argued that the terms are so vague as to leave the judge and jury commissioners at large in the exercise of discretion, with their decisions 'unguided by statutory or other guidelines.' Only by excising the challenged terms from Georgia's laws, it is urged, can the jury discrimination revealed in the record of this case can be eliminated.
10
Such arguments are similar to those advanced in Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549. Our decision in that case fairly controls disposition of the contentions here. Georgia's constitutional and statutory scheme for selecting its grand juries and boards of education is not inherently unfair, or necessarily incapable of administration without regard to race; the federal courts are not powerless to remedy unconstitutional departures from Georgia law by declaratory and injunctive relief. The challenged provisions do not refer to race; indeed, they impose on the jury commissioners the affirmative duty to supplement the jury lists by going out into the county and personally acquainting themselves with other citizens of the county whenever the jury lists in existence do not fairly represent a cross section of the county's upright and intelligent citizens.13
11
But the appellants contend that even if the challenged provisions are not void on their face, they have been unconstitutionally applied. The District Court found that prior to the commencement of suit Negroes had been excluded in the administration of the grand-jury system, and the appellees do not contest that finding here.14 The District Court also concluded that the newly composed grand-jury list was constitutional, and the appellants challenge that ruling. Consideration of the issues thus presented requires a fuller statement of the events following the January hearing in the court below.
12
As noted above, after the District Court had held its first hearing, the state superior court judge discharged the grand jury then sitting and ordered the jury commissioners to draw up a new jury list. The commissioners obtained the list of all persons registered to vote in the county in the last general election 2,152 names. To assist in the identification of all the people on the list, the commissioners consulted with with 'three Negroes that (they) brought in to work with (them) one afternoon * * *.' From the list the commissioners eliminated 374 people for poor health and old age; 79 as under 21 years old;15 93 as dead; 514 as away from the county most of the time but maintaining a permanent place of residence there; 48 who requested that they be removed from consideration; 225 about whom the commissioners could obtain no information; 33 as duplicated names; and 178 'as not conforming to the statutory qualifications for juries either because of their being unintelligent or because of their not being upright citizens.'
13
The process of elimination left 608 names. The commissioners arranged the names in alphabetical order and placed every other one on the list of potential jurors. At this point, for the first time, the commissioners classified the remaining 304 people by race: 113 were Negro, 191 white people. From this list the commissioners drew two-fifths of the names by lot for the grand-jury list; a check revealed 44 Negroes and 77 white people. The state superior court judge drew from this group nine Negroes and 23 white people by lot. He excused nine, leaving a 23-member grand jury of whom only six were Negroes.16 It was this grand jury that the District Court determined had been constitutionally impaneled.
14
After the February hearing of the District Court, and at that court's request, the commissioners classified by race the persons eliminated from the voter list in arriving at the 608 persons eligible for jury service. The classification revealed that 171 of those rejected as unintelligent or not upright were Negroes—96% of the total removed for that reason.17 Although at the adjourned hearing the District Court recognized the potential for discrimination underlying the exclusion process, it did not reopen the matter following its receipt of the racial classification to consider the extraordinarily high percentage of Negroes eliminated as 'unintelligent' or not 'upright,' or the large number of persons about whom the commissioners said they could obtain no information even though they were registered to vote in the county.
15
The appellants insist the District Court has erred. They say that since the grand jury selects the board of education, the situation must be viewed as one involving a distribution of voting power among the citizens of Taliaferro County in the manner of a voting apportionment case. A grand jury with only about 25% Negro membership, they say, constitutes the school-board 'electorate' in a county whose population is about 60% Negro. The State must offer a compelling justification, it is argued, in support of its 'fencing out' such a substantial proportion of the potential Negro 'electors' in the county.
16
We do not find it necessary to consider the appellants' argument. Nor do we reach the premise upon which it rests—that the choice of the county board of education by the grand jury rather than delegates from local school boards turns the challenged procedure into an 'election' for federal constitutional purposes.18 For we think that even under long-established tests for racial discrimination in the composition of juries, the District Court erred in its determination that the new list before it had been properly compiled.
17
The undisputed fact was that Negroes composed only 37% of the Taliaferro County citizens on the 304-member list from which the new grand jury was drawn. That figure contrasts sharply with the representation that their percentage (60%) of the general Taliaferro County population would have led them to obtain in a random selection. In the absence of a countervailing explanation by the appellees, we cannot say that the underrepresentation reflected in these figures is so insubstantial as to warrant no corrective action by a federal court charged with the responsibility of enforcing constitutional guarantees.
18
Specifically, we hold that the District Court should have responded to the elimination of 171 Negroes out of the 178 citizens disqualified for lack of 'intelligence' or 'uprightness.' On the record as presently constituted, it is impossible to say that this purge of Negroes from the roster of potential jurors did not contribute in substantial measure to the ultimate underrepresentation. The retention of these 178 citizens might well have produced a jury list of at least an equal percentage of Negroes and white people, instead of the highly disproportionate list that actually materialized.
19
A second factor should have called itself to the District Court's attention: the lack of information respecting the 225 citizens named on the county's voting list but unknown to the jury commissioners or their assistants. Entirely apart from the question whether the commissioners' failure to inquire into the eligibility of the 225 voters comported with their statutory duty to ensure that the jury list fairly represents a cross-section of the county's intelligent and upright citizens,19 the court should not have passed without response the commissioners' elimination from consideration for jury service of about 9% of the population of the entire county. In the face of the commissioners' unfamiliarity with Negroes in the community and the informality of the arrangement by which they sought to remedy the deficiency in their knowledge upon recompiling the jury list, we cannot assume that inquiry would not have led to the discovery of many qualified Negroes.
20
In sum, the appellants demonstrated a substantial disparity between the percentages of Negro residents in the county as a whole and of Negroes on the newly constituted jury list. They further demonstrated that the disparity originated, at least in part, at the one point in the selection process where the jury commissioners invoked their subjective judgment rather than objective criteria. The appellants thereby made out a prima facie case of jury discrimination, and the burden fell on the appellees to overcome it.20
21
The testimony of the jury commissioners and the superior court judge that they included or excluded no one because of race did not suffice to overcome the appellants' prima facie case.21 So far the appellees have offered no explanation for the overwhelming percentage of Negroes disqualified as not 'upright' or 'intelligent,' or for the failure to determine the eligibility of a substantial segment of the county's already registered voters. No explanation for this state of affairs appears in the record. The evidentiary void deprives the District Court's holding of support in the record as presently constituted. 'If there is a 'vacuum' it is one which the state must fill, by moving in with sufficient evidence to dispel the prima facie case of discrimination.'22
II
22
The appellants also urge that the limitation of school-board membership to freeholders violates the Equal Protection Clause of the Fourteenth Amendment.23 The District Court rejected this claim, finding no evidence before it 'to indicate that such a qualification resulted in an invidious discrimination against any particular segment of the community, based on race or otherwise.' 290 F.Supp., at 652.
23
Subsequent to the ruling of the District Court, this Court decided Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583, and Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647. The appellants urge that those decisions require Georgia to demonstrate a 'compelling' interest in support of its freeholder requirement for school-board membership. The appellees reply that Kramer and Cipriano are inapposite because they involved exclusions from voting, not from office-holding. We find it unnecessary to resolve the dispute, because the Georgia freeholder requirement must fall even when measured by the traditional test for a denial of equal protection: whether the challenged classification rests on grounds wholly irrelevant to the achievement of a valid state objective.24
24
We may assume that the appellants have no right to be appointed to the Taliaferro County board of education.25 But the appellants and the members of their class do have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications.26 The State may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees.27
25
Georgia concedes that 'the desirability and wisdom of 'freeholder' requirements for State or county political office may indeed be open to question * * *.' But apart from its contention that prior decisions of this Court foreclose any challenge to the constitutionality of such 'freeholder' requirements—a contention we think ill-founded28—the sole argument Georgia advances in support of its statute is that nothing in its constitution or laws specifies any minimum quantity or value for the real property the freeholder must own. Thus, says Georgia, anyone who seriously aspires to county school-board membership 'would be able to obtain a conveyance of the single square inch of land he would require to become a 'freeholder."
26
If we take Georgia at its word, it is difficult to conceive of any rational state interest underlying its requirement. But even absent Georgia's own indication of the insubstantiality of its interest in preserving the freeholder requirement, it seems impossible to discern any interest the qualification can serve. It cannot be seriously urged that a citizen in all other respects qualified to sit on a school board must also own real property if he is to participate responsibly in educational decisions, without regard to whether he is a parent with children in the local schools, a lessee who effectively pays the property taxes of his lessor as part of his rent, or a state and federal taxpayer contributing to the approximately 85% of the Taliaferro County annual school budget derived from sources other than the board of education's own levy on real property.
27
Nor does the lack of ownership of realty establish a lack of attachment to the community and its educational values. However reasonable the assumption that those who own realty do possess such an attachment, Georgia may not rationally presume that that quality is necessarily wanting in all citizens of the county whose estates are less than freehold.29 Whatever objectives Georgia seeks to obtain by its 'freeholder' requirement must be secured, in this instance at least, by means more finely tailored to achieve the desired goal.30 Without excluding the possibility that other circumstances might present themselves in which a property qualification for office-holding could survive constitutional scrutiny, we cannot say, on the record before us, that the present freeholder requirement for membership on the county board of education amounts to anything more than invidious discrimination.
28
The judgment below is vacated, and the cause is remanded to the District Court for further proceedings consistent with this opinion.
29
It is so ordered.
30
Judgment vacated and cause remanded.
1
Ga.Const., Art. VIII, § V, I, Ga.Code Ann. § 2—6801 (1948). At the oral argument we were advised that under Georgia law a 'freeholder' is any person who owns real estate.
2
Ibid. See also Ga.Code Ann. § 32—902 (1969).
3
Ga.Code Ann. §§ 59—101, 59—106 (1965 and Supp. 1968).
4
Ga.Code Ann. § 59—101 (1965). Prior to 1966 the superior court judges were elected by all the voters in the State, but now they are elected by the voters of the circuits over which they have jurisdiction. See Ga.Const., Art. VI, § III, II, Ga.Code Ann. § 2—3802 (Supp. 1968); Stokes v. Fortson, D.C., 234 F.Supp. 575.
5
In its brief Georgia informs us that its Department of Public Health estimates that Taliaferror County now has about 1,500 Negro and 1,000 white citizens. According to the 1960 federal census, the county had a population of 3,370, of whom 2,096 were Negroes and 1,273 white people. U.S. Dept. of Commerce, Bureau of the Census, 1960 Census of Population, Vol. I, Characteristics of the Population, pt. 12, Georgia, 12—83.
6
This state of affairs has arisen following litigation attacking the county's former dual school system. Prior to the fall of 1965 Taliferro County had used one school building for Negroes and the other for whites. In that year, after 87 Negro pupils sought transfers to a desegregated school, the superintendent, knowing the white school would be closed, arranged for the transfer of the white pupils, at public expense, to public schools in adjoining counties. A three-judge District Court declared the arrangement illegal, placed the Taliaferro County school system in receivership under the State's superintendent of schools, and instructed him to prepare a plan that would allow those Negroes who wanted to transfer to a desegregated school the opportunity to do so. Turner v. Goolsby, D.C., 255 F.Supp. 724. It is undisputed that some white pupils now attend a private institution in the county. In addition, the appellants suggest that white children continue to attend public schools in neighboring counties. Efforts to combine districts to avoid an all-Negro school system in Taliaferro County have proved unsuccessful.
7
The District Court struck the grand jurors as parties defendant for failure of the appellants to state as against them a claim upon which relief could be granted. The appellants did not appeal from that portion of the judgment below, and the motion of the appellee grand jurors to dismiss the appeal as to them is granted.
8
Georgia has used the voter registration lists rather than the books of the tax receiver since our decision in Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599.
9
The District Court found that the appellants' claim that the board of education had deprived the Negro schoolchildren of textbooks, facilities, and other advantages failed for want of proof. The court also declined to reach the appellants' claim for ancillary damages, leaving this question to single-judge inquiry. No issue concerning these rulings is presented on the appeal.
10
We reject the appellees' suggestion that we lack jurisdiction to entertain an appeal from the District Court on the theory that a court of three judges was not required under 28 U.S.C. § 2281 because the appellants sought to enjoin only the acts of county officials. The jury commissioners and members of the board of education were 'functioning pursuant to a statewide policy and performing a state function,' Moody v. Flowers, 387 U.S. 97, 102, 87 S.Ct. 1544, 1548, 18 L.Ed.2d 643; cf. Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 92—95, 55 S.Ct. 678, 679 680, 79 L.Ed. 1322; and see Dusch v. Davis, 387 U.S. 112, 114, 87 S.Ct. 1554, 1555, 18 L.Ed.2d 656; Sailors v. Board of Education, 387 U.S. 105, 107, 87 S.Ct. 1549, 1551, 18 L.Ed.2d 650. The appellants cannot be denied a three-judge court below and direct review here simply because Georgia chooses to denominate as 'local' or 'county' the officials to whom it has entrusted the administration of the challenged constitutional and statutory provisions. Rorick v. Board of Commissioners, 307 U.S. 208, 212, 59 S.Ct. 808, 810, 83 L.Ed.1242; cf. City of Cleveland v. United States, 323 U.S. 329, 332, 65 S.Ct. 280, 281, 89 L.Ed. 274.
Under Georgia law Taliaferro County may replace the constitutional and statutory arrangement by which the grand jury elects the board of education with the direct election of the board by the qualified voters of the county upon the enactment of a local or special law by the legislature and its approval in a referendum by a majority of the qualified voters. Ga.Const., Art. VIII, § V, 2, Ga.Code Ann. § 2—6802 (Supp. 1968). But Georgia does not suggest that so many counties have taken advantage of this provision that the present selection of the board by the grand jury in effect amounts to a local option.
The appellees also propose a distinction between attacks on statutes and attacks upon the results of their administration, and urge that the appellants' case comes within the latter category. But this argument overlooks the line, delineated by our past decisions, that falls between a petition for injunction on the ground of the unconstitutionality of a statute, either on its face or as applied,
which requires a three-judge court, and a petition seeking an injunction on the ground of the unconstitutionality of the result obtained by the use of a statute not attacked as unconstitutional. Louisiana v. United States, 380 U.S. 145, 150 and n. 9, 85 S.Ct. 817, 820, 13 L.Ed.2d 709; Query v. United States, 316 U.S. 486, 489, 62 S.Ct. 1122, 1123, 86 L.Ed. 1616; Ex parte Bransford, 310 U.S. 354, 361, 60 S.Ct. 947, 951, 84 L.Ed. 1249; Stratton v. St. Louis S.W.R. Co. 282 U.S. 10, 15, 51 S.Ct. 8, 10, 75 L.Ed. 135; Ex parte Hobbs, 280 U.S. 168, 172, 50 S.Ct. 83, 74 L.Ed. 353.
Similarly, we reject the appellees' contention, ancillary to their basic attack on our jurisdiction, that the three-judge court was improperly convened because of the insubstantiality of the appellants' challenge to the Georgia laws. Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S.Ct. 258, 261, 15 L.Ed.2d 194; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (per curiam); California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (per curiam); Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (per curiam). Further, the District Court properly entertained the question whether the constitutional and statutory complex, even if not invalid on its face, was unconstitutionally administered. Without regard to whether that issue was one by itself warranting a three-judge court, see Ex parte Bransford, supra; Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 37—50, it related to the appellants' claim that Georgia's school-board selection procedure was unlawful on its face. Flast v. Cohen, 392 U.S. 83, 90—91, 88 S.Ct. 1942, 1947, 20 L.Ed.2d 947; Zemel v. Rusk, 381 U.S. 1, 5—6, 85 S.Ct. 1271, 1274—1275, 14 L.Ed.2d 179; United States v. Georgia Pub. Serv. Commission, 371 U.S. 285, 287—288, 83 S.Ct. 397, 398 399, 9 L.Ed.2d 317; Paul v. United States, 371 U.S. 245, 249—250, 83 S.Ct. 426, 430, 9 L.Ed.2d 292; Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 75—85, 80 S.Ct. 568, 570—575, 4 L.Ed.2d 568; Louisville & N.R. Co. v. Garrett, 231 U.S. 298, 303 304, 34 S.Ct. 48, 50, 58 L.Ed. 229.
11
Ga.Code Ann. § 59—101 (1965).
12
Ga.Code Ann. § 59—106 (Supp. 1968).
13
Ibid.
Our decisions in Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244, and Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599, cannot aid the appellants. In Avery we reversed a judgment of conviction where the names of prospective petit jurors had been printed on differently colored tickets according to their race—white tickets for white people, and yellow tickets for Negroes. A state superior court judge drew the names from the jury box and handed them to the sheriff, who entrusted them to the court clerk for arranging the tickets and typing up the list of persons to be called to serve on the panel. We found that the use of the white and yellow tickets made it easier 'for those to discriminate who are of a mind to discriminate,' and that even if the judge had drawn the names without looking to see the color of the tickets, 'opportunity was available to resort to (discrimination) at other stages in the selection process.' 345 U.S. at 562, 73 S.Ct., at 893.
Whitus involved a refinement of the process we had condemned in Avery. In Whitus the jury commissioners made up the jury list from which both traverse and grand jurors were selected by reference to the tax digest, which was segregated into sections one with white sheets for white people and the other with yellow sheets for Negroes—and to an old jury list required by former law to be made up from the tax digest. We concluded that '(u)nder such a system the opportunity for discrimination was present,' and on the record before us we could not say that that opportunity 'was not resorted to by the commissioners.' 385 U.S., at 552, 87 S.Ct., at 647.
In both Avery and Whitus we noted without comment the 'upright and intelligent' requirement for jury membership. 385 U.S., at 552, 87 S.Ct., at 647; 345 U.S., at 562, 73 S.Ct., at 892. In Avery we expressly commented that Georgia law did not authorize the use of the potentially discriminatory process under review. 345 U.S., at 562, 73 S.Ct., at 892. In both cases we struck down the white-and-yellow system, however varied in design, because of the obvious danger of abuse. See Williams v. Georgia, 349 U.S. 375, 382, 75 S.Ct. 814, 819, 99 L.Ed. 1161. We dealt in both cases with a physical, even mechanical, aspect of the jury-selection process that could have no conceivable purpose or effect other than to enable those to disposed to discriminate against Negroes solely on the basis of their race. It is evident that the challenged provisions now before us contain no such defect. The appellants cannot contend that the present requirements serve no rational function other than to afford an opportunity to state officials to discriminate against Negroes if they desire to do so.
14
Indeed, at the oral argument before this Court, counsel candidly conceded: 'There is no question but that Georgia's jury selection statute is capable of being improperly administered. There is no question but that in Taliaferro County, Georgia, it has been misadministered.'
15
Although Georgia grants the franchise to its citizens at 18, Ga.Const., Art. II, § I, II, Ga.Code Ann. § 2—702 (1948), jurors must be over 21, Ga.Code Ann. § 59—201 (1965), and so the jury commissioners struck all persons under 21.
16
At the adjourned hearing the superior court judge testified that he regularly excuses people from the traverse-jury lists as well as the grand-jury panel he draws in the courtroom. Whether the request to be excused was made in open court, in writing, or over the telephone, only the judge could excuse from grand-jury service those whose names he had drawn.
17
It also appeared that 191 of those stricken for poor health and old age were Negro (51%); 71 of those under 21 (90%); 263 of those away from the county (51%); and three who asked to be relieved from jury duty (6%).
18
See Sailors v. Board of Education, 387 U.S. 105, 106, 87 S.Ct. 1549, 1551, 18 L.Ed.2d 650.
19
Ga.Code Ann. § 59—106 (Supp.1968).
20
See Jones v. Georgia, 389 U.S. 24, 25, 88 S.Ct. 4, 5, 19 L.Ed.2d 25 (per curiam); Coleman v. Alabama, 389 U.S. 22, 23, 88 S.Ct. 2, 3, 19 L.Ed.2d 22 (per curiam); Avery v. Georgia, 345 U.S. 559, 562—563, 73 S.Ct. 891, 892—893, 97 L.Ed. 1244; Patton v. Mississippi, 332 U.S. 463, 468—469, 68 S.Ct. 184, 187, 92 L.Ed. 76; Hill v. Texas, 316 U.S. 400, 405—406, 62 S.Ct. 1159, 1161 1162, 86 L.Ed. 1559; Norris v. Alabama, 294 U.S. 587, 594—596, 598, 55 S.Ct. 579, 582, 583, 79 L.Ed. 1074.
21
Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 525, 19 L.Ed.2d 634; Whitus v. Georgia, 385 U.S. 545, 551, 87 S.Ct. 643, 647, 17 L.Ed.2d 599; Eubanks v. Louisiana, 356 U.S. 584, 587, 78 S.Ct. 970, 973, 2 L.Ed.2d 991; Hernandez v. Texas, 347 U.S. 475, 481—482, 74 S.Ct. 667, 671—672, 98 L.Ed. 866; Avery v. Georgia, supra, 345 U.S. at 561, 73 S.Ct. at 892; Norris v. Alabama, supra, 294 U.S. at 598, 55 S.Ct. at 583; cf. Brown v. Allen, 344 U.S. 443, 481, 73 S.Ct. 397, 419, 97 L.Ed. 469.
22
Avery v. Georgia, supra, 345 U.S. at 562, 73 S.Ct. at 892; cf. Pierre v. Louisiana, 306 U.S. 354, 361—362, 59 S.Ct. 536, 540, 83 L.Ed. 757; Norris v. Alabama, supra, 294 U.S. at 594—595, 598—599, 55 S.Ct. at 582, 583—584.
We reserve the question whether a State that for years has provided separate and inferior schools for Negroes may now disqualify them from jury service on the 'impartial' ground of educational inadequacy, however defined. See Gaston County, N.C. v. United States, 395 U.S. 285, 297, 89 S.Ct. 1720, 1726, 23 L.Ed.2d 309.
23
Georgia's contention that no appellant has standing to raise this claim is without merit. The appellant Calvin Turner is a freeholder, but the appellant Joseph Heath is not. Heath's motion to intervene was granted by the District Court for the express purpose of adding a party plaintiff to the case to ensure that the court could reach the merits of this issue. Georgia also argues that the question is not properly before us because the record is devoid of evidence that the freeholder requirement actually has operated to exclude anyone from the Taliaferro County board of education. But the appellant Heath's allegation that he is not a freeholder is uncontested, and Georgia can hardly urge that her county officials may be depended on to ignore a provision of state law.
24
McGowan v. State of Maryland, 366 U.S. 420, 425—426, 81 S.Ct. 1101, 1104—1105, 6 L.Ed.2d 393; Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093.
25
Cf. Snowden v. Hughes, 321 U.S. 1, 7, 64 S.Ct. 397, 400, 88 L.Ed. 497.
26
Cf. Anderson v. Martin, 375 U.S. 399, 402, 404, 84 S.Ct. 454, 455, 456, 11 L.Ed.2d 430; Snowden v. Hughes, supra, 321 U.S. at 7—8, 64 S.Ct. at 400—401.
27
Cf. Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777, 13 L.Ed.2d 675; Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50—51, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072; Pope v. Williams, 193 U.S. 621, 632, 24 S.Ct. 573, 575, 48 L.Ed. 817.
28
Language to such effect may be found in Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664. But the passage relied upon by Georgia is no more than dictum. Later decisions invoking Strauder fall in the same category. Gibson v. Mississippi, 162 U.S. 565, 580, 16 S.Ct. 904, 906, 40 L.Ed. 1075; Neal v. Delaware, 103 U.S. 370, 386, 26 L.Ed. 567. Vought v. Wisconsin, 217 U.S. 590, 30 S.Ct. 694, 54 L.Ed. 895, is hardly apposite; there we dismissed an appeal for want of a meritorious question in a case where the appellant challenged a judgment of conviction arising from an indictment returned by a grand jury selected by commissioners required by statute to be freeholders.
29
Cf. Leary v. United States, 395 U.S. 6, 32—36, 89 S.Ct. 1532, 1546—1548, 23 L.Ed.2d 57; Tot v. United States, 319 U.S. 463, 468, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519.
30
Cf. Carrington v. Rash, supra, 380 U.S. at 95—96, 85 S.Ct. at 799—780.
| 12
|
396 U.S. 320
90 S.Ct. 518
24 L.Ed.2d 549
Willie CARTER et al., Appellants,v.JURY COMMISSION OF GREENE COUNTY et al.
No. 30.
Argued Oct. 21, 1969.
Decided Jan. 19, 1970.
Norman C. Amaker, New York, N.Y., for appellants.
Leslie Hall, Montgomery, Ala., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
The appellants, Negro citizens of Greene County, Alabama, commenced this class action against officials charged with the administration of the State's juryselection laws: the county jury commissioners and their clerk, the local circuit court judge, and the Governor of Alabama. The complaint alleged that the appellants were fully qualified to serve as jurors and desired to serve, but had never been summoned for jury service. It charged that the appellees had effected a discriminatory exclusion of Negroes from grand and petit juries in Greene County—the Governor in his selection of the county jury commission, and the commissioners and judge in their arbitrary exclusion of Negroes. The complaint sought (1) a declaration that qualified Negroes were systematically excluded from Greene County grand and petit juries, that the Alabama statutes governing jury selection were unconstitutional on their face and as applied, and that the jury commission was a deliberately segregated governmental agency; (2) a permanent injunction forbidding the systematic exclusion of Negroes from Greene County juries pursuant to the challenged statutes and requiring that all eligible Negroes be placed on the jury roll; and (3) an order vacating the appointments of the jury commissioners and compelling the Governor to select new members without racial discrimination.
2
Alabama's jury-selection procedure is governed by statute. Ala. Code, Tit. 30, § 1 et seq. (1958 and Supp. 1967). The Governor appoints a three-member jury commission for each county. §§ 8—10. The commission employs a clerk, § 15, who is charged with the duty of obtaining the name of every citizen of the county over 21 and under 65 years of age, together with his occupation and places of residence and business. § 18. The clerk must 'scan the registration lists, the lists returned to the tax assessor, any city directories, telephone directories and any and every other source of information from which he may obtain information * * *.' § 24. He must also 'visit every precinct at least once a year to enable the jury commission to properly perform the duties required of it * * *.' Ibid.1 Once the clerk submits his list of names, the commission is under a duty to prepare a jury roll and jury box containing the names of all qualified, nonexempt citizens in the county, §§ 20, 24, who are 'generally reputed to be honest and intelligent and are esteemed in the community for their integrity, good character and sound judgment * * *.' § 21.2
3
A three-judge District Court, convened pursuant to 28 U.S.C. §§ 2281 and 2284, conducted an extensive evidentiary hearing on the appellants' complaint. The record fully supports the trial court's conclusion, set out in its detailed opinion, that the jury-selection process as it actually operated in Greene County at the outset of this litigation departed from the statutory mandate in several respects:
4
'The clerk does not obtain the names of all potentially eligible jurors as provided by § 18, in fact was not aware that the statute directed that this be done and knew of no way in which she could do it. The starting point each year is last year's roll. Everyone thereon is considered to be qualified and remains on the roll unless he dies or moves away (or, presumably, is convicted of a felony). New names are added to the old roll. Almost all of the work of the commission is devoted to securing names of persons suggested for consideration as new jurors. The clerk performs some duties directed toward securing such names. This is a part-time task, done without compensation, in spare time available from performance of her duties as clerk of the Circuit Court. She uses voter lists but not the tax assessor's lists. Telephone directories for some of the communities are referred to, city directories not at all since Greene County is largely rural.
5
'The clerk goes into each of the eleven beats or precincts annually, usually one time. Her trips out into the county for this purpose never consume a full day. At various places in the county she talks with persons she knows and secures suggested names. She is acquainted with a good many Negroes, but very few 'out in the county.' She does not know the reputation of most of the Negroes in the county. Because of her duties as clerk of the Circuit Court the names and reputations of Negroes most familiar to her are those who have been convicted of crime or have been 'in trouble.' She does not know any Negro ministers, does not seek names from any Negro or white churches or fraternal organizations. She obtains some names from the county's Negro deputy sheriff.
6
'The commission members also secure some names, but on a basis no more regular or formalized than the efforts of the clerk. The commissioners 'ask around,' each usually in the area of the county where he resides, and secure a few names, chiefly from white persons. Some of the names are obtained from public officials, substantially all of whom are white.
7
'One commissioner testified that he asked for names and that if people didn't give him names he could not submit them. He accepts pay for one day's work each year, stating that he does not have a lot of time to put on jury commission work. * * * He takes the word of those who recommend people, checks no further and sees no need to check further, considering that he is to rely on the judgment of others. He makes no inquiry or determination whether persons suggested can read or write * * *. Neither commissioners nor clerk have any social contacts with Negroes or belong to any of the same organizations.
8
'Through its yearly meeting in August, 1966, the jury commission met once each year usually for one day, sometimes for two, to prepare a new roll. New names presented by clerk and commissioners, and some sent in by letter, were considered. The clerk checked them against court records of felony convictions. New names decided upon as acceptable were added to the old roll. The names of those on the old roll who had died or moved away were removed.
9
'At the August, 1966 meeting one commissioner was new and submitted no names, white or Negro, and merely did clerical work at the meeting. Another had been ill and able to seek names little if at all. The third could remember one Negro name that he suggested. This commissioner brought the name, or names, he proposed on a trade bill he had received, and after so using it threw it away. All lists of suggested names were destroyed. As a result of that meeting the number of Negro names on the jury roll increased by 37. * * * Approximately 32 of those names came from lists given the clerk or commissioners by others. The testimony is that at the one-day August meeting the entire voter list was scanned. It contained the names of around 2,000 Negroes.
10
'Thus in practice, through the August, 1966 meeting the system operated exactly in reverse from what the state statutes contemplate. It produced a small group of individually selected or recommended names for consideration. Those potentially qualified but whose names were never focused upon were given no consideration. Those who prepared the roll and administered the system were white and with limited means of contact with the Negro community. Though they recognized that the most pertinent information as to which Negoes do, and which do not, meet the statutory qualifications comes from Negroes there was no meaningful procedure by which Negro names were fed into the machinery for consideration or effectual means of communication by which the knowledge possessed by the Negro community was utilized. In practice most of the work of the commission has been devoted to the function of securing names to be considered. Once a name has come up for consideration it usually has been added to the rolls unless that person has been convicted of a felony. The function of applying the statutory criteria has been carried out only in part, or by accepting as conclusive the judgment of others, and for some criteria not at all.'3
11
The District Court's further findings demonstrated the impact of the selection process on the racial composition of Greene County juries. According to the 1960 census, Negroes composed threefourths of the county's population. Yet from 1961 to 1963 the largest number of Negroes ever to appear on the jury list was about 7% of the total. The court noted that in 1964 a single-judge federal district court had entered a declaratory judgment setting forth the duties of the jury commissioners and their clerk under Alabama law, instructing them not to pursue a course of conduct operating to discriminate against Negroes, forbidding them to employ numerical or proportional limitations with respect to race, and directing an examination of the jury roll for compliance with the judgment.4 Thereafter, the situation had improved only marginally. In 1966 only 82 Negroes appeared among the 471 citizens listed on the jury roll; 50% of the white male population of the county found its way to the jury roll in that year, but only 4% of the Negro.5 In 1967, following a statutory amendment, the commission added women to the jury roll. Upon the expansion of the list, Negroes composed 388 of the 1,198 potential jurors—still only 32% of the total, even though the 1967 population of the county was estimated to be about 65% Negro.6
12
The District Court found that 'there is invalid exclusion of Negroes on a racially discriminatory basis.' It enjoined the jury commissioners and their clerk from systematically excluding Negroes from the jury roll, and directed them 'to take prompt action to compile a jury list * * * in accordance with the laws of Alabama and * * * constitutional principles'; to file a jury list so compiled within 60 days, showing the information required by Alabama law for each potential juror, together with his race and, if available, his age; and to submit a report setting forth the procedure by which the commission had compiled the list and applied the statutory qualifications and exclusions.
13
The court declined, however, either to enjoin the enforcement of the challenged Alabama statutory provisions or to direct the Governor to appoint Negroes to the jury commission. From these rulings the appellants took a direct appeal to this Court pursuant to 28 U.S.C. § 1253. We noted probable jurisdiction. 393 U.S. 1115, 89 S.Ct. 990, 22 L.Ed.2d 120.7
14
* This is the first case to reach the Court in which an attack upon alleged racial discrimination in choosing juries has been made by plaintiffs seeking affirmative relief, rather than by defendants challenging judgments of criminal conviction on the ground of systematic exclusion of Negroes from the grand juries that indicted them,8 the trial juries that found them guilty,9 or both.10 The District Court found no barrier to such a suit, and neither do we. Defendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection. People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion.11 Surely there is no jurisdictional or procedural bar to an attack upon systematic jury discrimination by way of a civil suit such as the one brought here. The federal claim is bottomed on the simple proposition that the State, acting through its agents, has refused to consider the appellants for jury service solely because of their race. Whether jury service be deemed a right, a privilege, or a duty, the State may no more extend it to some of its citizens and deny it to others on racial grounds than it may invidiously discriminate in the offering and withholding of the elective franchise.12 Once the State chooses to provide grand and petit juries, whether or not constitutionally required to do so,13 it must hew to federal constitutional criteria in ensuring that the selection of membership is free of racial bias.14 The exclusion of Negroes from jury service because of their race is 'practically a brand upon them * * *, an assertion of their inferiority * * *.'15 That kind of discrimination contravenes the very idea of a jury—'a body truly representative of the community,'16 composed of 'the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.'17
II
15
On the merits, the appellants argue that the District Court erred in refusing to invalidate the Alabama statute requiring the jury commissioners to select for jury service those persons who are 'generally reputed to be honest and intelligent and * * * esteemed in the community for their integrity, good character and sound judgment * * *.' Ala.Code, Tit. 30, § 21 (Supp.1967). The appellants say § 21 is unconstitutional on its face because, by leaving Alabama's jury officials at large in their selection of potential jurors, it provides them an opportunity to discriminate on the basis of race—an opportunity of which they have in fact taken advantage.18 Specifically, the charge is that § 21 leaves the commissioners free to give effect to their belief that Negroes are generally inferior to white people and so less likely to measure up to the statutory requirements;19 to the commissioners' fear that white people in the community will suffer if Negroes are accorded the opportunity to exercise the power of their majority;20 and to the commissioners' preference for Negroes who tend not to assert their right to legal and social equality.21 The appellants say the injunctive relief granted by the District Court is inadequate, because the history of jury selection in Greene County demonstrates a practice of discrimination persisting despite the federal court's prior grant of declaratory relief. Moreover, so long as § 21 remains the law, it is argued, Negro Citizens throughout Alabama will be obliged to attack the jury-selection process on a county-by-county basis, thereby imposing a heavy burden on already congested court dockets and delaying the day that Alabama will be free of discriminatory jury selection.22
16
While there is force in what the appellants say, we cannot agree that s 21 is irredeemably invalid on its face. It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors.23 The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment,24 and to those possessing good intelligence, sound judgment, and fair character.25 'Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a crosssection of the population suitable in character and intelligence for that civic duty.'26
17
Statutory provisions such as those found in § 21 are not peculiar to Alabama, or to any particular region of the country. Nearly every State requires that its jurors be citizens of the United States,27 residents of the locality,28 of a specified minimum age,29 and able to understand English.30 Many of the States require that jurors be of 'good character' or the like;31 some, that they be 'intelligent'32 or 'well informed.'33
18
Provisions of similar breadth have been challenged here and sustained before. In Franklin v. South Carolina,34 the Court rejected a similar attack upon a jury-selection statute alleged by the plaintiff in error to have conferred arbitrary power upon the jury commissioners. The pertinent law there provided that the commissioners should 'prepare a list of such qualified electors under the provisions of the Constitution, between the ages of twenty-one and sixty-five years, and of good moral character, of their respective counties as they may deem otherwise well qualified to serve as jurors, being persons of sound judgment and free from all legal exceptions, which list shall include not less than one from every three of such qualified electors * * *.' In upholding the validity of these standards, the Court said:
19
'We do not think there is anything in this provision of the statute having the effect to deny rights secured by the Federal Constitution. * * * There is nothing in this statute which discriminates against individuals on account of race or color or previous condition, or which subjects such persons to any other or different treatment than other electors who may be qualified to serve as jurors. The statute simply provides for an exercise of judgment in attempting to secure competent jurors of proper qualifications.'35
20
Again, in Smith v. Texas,36 we dealt with a statute leaving a wide range of choice to the commissioners.37 Yet we expressly upheld the validity of the law. The statutory scheme was not in itself unfair; it was 'capable of being carried out with no racial discrimination whatsoever.'38
21
No less can be said of the statutory standards attacked in the present case. Despite the overwhelming proof the appellants have adduced in support of their claim that the jury clerk and commissioners have abused the discretion that Alabama law confers on them in the preparation of the jury roll, we cannot say that § 21 is necessarily and under all circumstances invalid. The provision is devoid of any mention of race.39 Its antecedents are of ancient vintage,40 and there is no suggestion that the law was originally adopted or subsequently carried forward for the purpose of fostering racial discrimination.41 The federal courts are not incompetent to fashion detailed and stringent injunctive relief that will remedy any discriminatory application of the statute at the hands of the officials empowered to administer it.42 In sum, we cannot conclude, even on so compelling a record as that before us, that the guarantees of the Constitution can be secured only by the total invalidation of the challenged provisions of § 21.
III
22
The appellants also attack the composition of the Greene County jury commission. They urge that the record demonstrates the causal relation between the conceded absence of Negroes from the commission for at least the past decade and the systematic racial discrimination in the selection of potential jurors established before the District Court. It is argued that even the best-intentioned white jury commissioners are unlikely to know many Negroes who satisfy the statutory qualifications and that white jury officials in Alabama generally regard Negroes as incapable of satisfying the prerequisites for jury membership. Having shown a course of continuing and consistent disregard of statutory and constitutional standards on the part of the Greene County jury commissioners and the clerk, the appellants contend that if the discretionary provisions of § 21 are to remain the law, it is essential that the jury commission be representative of the community in which it functions, particularly in an area such as Greene County, where Negroes constitute a majority of the population. The District Court erred, the appellants say, in not ordering the Governor of Alabama to appoint Negroes to the Greene County jury commission.
23
The claim was not presented to the District Court in precisely these terms. There the appellants did not urge that white commissioners could not perform their statutory task in an unbiased manner in a predominantly Negro county. Rather, they contended that the Governor of Alabama had deliberately appointed a segregated jury commission in exercising the discretion conferred upon him by statute. The argument, in short, went to the alleged racial discrimination in the appointment of the commission, not to the biases inherent in a commission composed entirely of white people, without regard to claimed discriminatory selection by the Governor.
24
For present purposes we may assume that the State may no more exclude Negroes from service on the jury commission because of their race than from the juries themselves. But the District Court found the appellants had shown only that for many years the jury commission had been composed entirely of white men, and concluded that without more the appellants' attack failed for want of proof. We think that ruling was correct. Quite apart from the problems that would be involved in a federal court's ordering the Governor of a State to exercise his discretion in a particular way, we cannot say on this record that the absence of Negroes from the Greene County jury commission amounted in itself to a prima facie showing of discriminatory exclusion. The testimony before the District Court indicated that the Governor had appointed no Negroes to the Greene County commission during the 12 years preceding the commencement of suit. But the appellants' trial counsel conceded that he could not prove his charge of discriminatory selection without the testimony of the Governor.43 Whether or not such a concession was necessary, the statement may well have led counsel for the appellees to conclude that they were not obliged to produce witnesses on the State's behalf with respect to this phase of the appellants' case.
25
Nor can we uphold the appellants' present contention that, apart from the question of discrimination in the composition of the jury commission, the absence of Negroes from the commission compelled the District Court to order the appointment of Negro commissioners. The appellants are no more entitled to proportional representation by race on the jury commission than on any particular grand or petit jury.44
IV
26
There remains the question of the propriety of the relief afforded the appellants by the District Court. The court, as we have noted, enjoined the jury clerk and commissioners from systematically excluding Negroes from the Greene County jury roll, and directed them 'to take prompt action to compile a jury list * * * in accordance with the laws of Alabama and * * * constitutional principles. * * *'45 Pursuant to the court's order, the commission submitted a new jury roll, dated November 6, 1968. The clerk stated she had been into each of the precincts of Greene County and had contacted people of both races by personal visit, letter, or telephone; with their recommendations and with the help of the voting list and telephone directory, the commission compiled a new jury roll. Whether this roll complies with the terms of the District Court's decree is a matter for that court to consider in the first instance. The court properly recognized that other and further relief might be appropriate. For that 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.'46
Accordingly, the judgment below is
27
Accordingly, the judgment below is of the appellants to seek modification of the District Court's decree as circumstances may require.
28
It is so ordered.
29
Mr. Justice BLACK, concurring.
30
I concur in the judgment and opinion of the Court except insofar as it may leave an implication that this Court has the power to vacate a state governor's appointment of jury commissioners or the power to compel the governor of a State to appoint Negroes or any other persons to the office of jury commissioner. In my judgment the Constitution no more grants this Court the power to compel a governor to appoint or reject a certain individual or a member of any particular group than it grants this Court the power to compel the voters of a State to elect or defeat a particular person or a member of a particular group.
31
Mr. Justice DOUGLAS, dissenting in part.
32
There comes a time when an organ or agency of state law has proved itself to have such a racist mission that it should not survive constitutional challenge. The instances are not numerous in our history. But they have appeared. One was present in Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709, where a state constitution required every voter who applied to register to 'be able to understand' as well as 'give a reasonable interpretation' of any section of the State or Federal Constitution 'when read to him by the registrar.' Id., at 149, 85 S.Ct. at 820. This interpretation test had had a history of depriving 'otherwise qualified Negro citizens of their right to vote,' id., at 150, 85 S.Ct. at 820, and was deemed incapable of fair application through policing by injunction. Id., at 150, 85 S.Ct. at 821 n. 9. We therefore struck it down.
33
The District Court in the instant case held that '(t)he attack on racial composition of the (jury) commission fails for want of proof. No proof was adduced except that the commission in Greene County now is and for many years has been composed entirely of white men appointed by the governor.' 298 F.Supp. 181, 192. But, as the opinion of the Court states, the record shows much more: it demonstrates a systematic exclusion of Negroes from juries in Greene County even though the Negroes outnumber the whites by two to one. It shows (1) that the white jury officials consistent with southern racial patterns—had little, if any, contacts with Negroes; (2) that the officials knew very few Negroes and practically nothing about the black community; (3) that only a few Negroes were contacted to secure black names for jury listing; (4) that in applying the statutorily created subjective standards, the white jury officials relied, not only on their own subjective judgments, but also on the subjective judgments of other people; (5) that few Negroes could be expected to pass muster under these standards; and (6) that, as stated by the Court, '(i)n 1966 only 82 Negroes appeared among the 471 citizens listed on the jury roll; 50% of the white male population of the county found its way to the jury roll in that year, but only 4% of the Negro. In 1967, following a statutory amendment, the commission added women to the jury roll. Upon the expansion of the list, Negroes composed 388 of the 1,198 potential jurors—still only 32% of the total, even though the 1967 population of the county was estimated to be about 65% Negro.' Ante, at 327-328.
34
I cannot see any solution to the present problem, unless the jury commission is by law required to be bi-racial. In the Kingdom of Heaven, an all-white or an all-black commission could be expected to do equal justice to all races in the selection of people 'generally reputed to be honest and intelligent' and 'esteemed in the community for their integrity, good character and sound judgment.' Ala.Code, Tit. 30, § 21 (Supp. 1967). But, where there exists a pattern of discrimination, an all-white or all-black jury commission in these times probably means that the race in power retains authority to control the community's official life, and that no jury will likely be selected that is a true cross-section of the community.
35
We have often said that no jury need represent proportionally a cross-section of the community.1 See Swain v. Alabama, 380 U.S. 202, 208—209, 85 S.Ct. 824, 829—830, 13 L.Ed.2d 759; Cassell v. Texas, 339 U.S. 282, 286—287, 70 S.Ct. 629, 631—632, 94 L.Ed. 839. Jury selection is largely by chance; and no matter what the race of the defendant, he bears the risk that no racial component, presumably favorable to him, will appear on the jury that tries him. The law only requires that the panel not be purposely unrepresentative. See Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599. Those finally chosen may have no minority representation as a result of the operation of chance, challenges for cause, and peremptory challenges.
36
The problem in the present case is to keep the selective process free of any racist influence. That implicates the jury commission that has continuing oversight over the operation of the jury system.
37
I expressed my doubts in Sellers v. Laird, 395 U.S. 950, 89 S.Ct. 2022, 23 L.Ed.2d 470, whether under the Selective Service System an all-white board could be expected to do equal justice to Negro registrants, at least as respects many problems. Those doubts are resolved here, because of the established pattern of racial discrimination which this all-white jury commission has credited to it. India has handled this type of problem by constitutional amendment.2 But our constitutional mandate against racial discrimination is sufficient without more.
38
Where the challenged state agency, dealing with the rights and liberties of the citizen, has a record of racial discrimination, the corrective remedy is proportional representation. Under our Constitution that would indeed seem to be the only effective control over the type of racial discrimination long practiced in this case.
39
I would not write a decree that requires a governor to name two Negroes out of three commissioners. I would go no further than to strike down this jury commission system, because it does not provide for proportional representation of the two races.
1
'The sole purpose of these requirements is to insure that the jury commissioners will have as complete a list as possible of names, compiled on an objective basis, from which to select qualified jurors.' Mitchell v. Johnson, D.C., 250 F.Supp. 117, 123.
2
The commission may not select any person who is under 21, a habitual drunkard, unfit to discharge a juror's duties because afflicted with a permanent disease or physical weakness, or unable to read English, nor anyone who has been convicted of an offense involving moral turpitude. A person who would be disqualified only because he cannot read English is still eligible for jury service if he is a freeholder or householder. A person over 65 may not be required to serve but is eligible if he is willing to do so. § 21. The commission is also required to exempt various classes of persons, based on their occupation, unless they consent to serve. § 3. In addition, the court may excuse any person who appears to be unfit to serve on a jury, or who is disqualified or exempt, 'or for any other reasonable or proper cause * * *.' §§ 4, 5.
Until 1966 only men were eligible for service. The blanket exclusion of women was declared unconstitutional in White v. Crook, D.C., 251 F.Supp. 401, 408—409; thereafter Alabama amended its statutes to render women eligible. § 21 (1). The trial judge may, however, excuse them from jury duty for good cause shown. § 21.
The requirement that the commission place the name of every qualified, nonexempt person on the jury roll is permissive, not mandatory, in that the jury commission's failure to do so does not, absent fraud or denial of constitutional rights, compel the quashing of the indictment or venire. Fikes v. State, 263 Ala. 89, 95, 81 So.2d 303, 309, rev'd on other grounds, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; see Swain v. Alabama, 380 U.S. 202, 207, 85 S.Ct. 824, 828, 13 L.Ed.2d 759 n. 3; White v. Crook, supra, 251 F.Supp. at 403 n. 6; Mitchell v. Johnson, supra, 250 F.Supp. at 119 n. 5.
3
Bokulich v. Jury Commission of Greene County, D.C., 298 F.Supp. 181, 187—188. (Footnotes omitted.)
4
Coleman v. Barton, No. 63—4 (N.D.Ala.1964). The opinion is unreported. See 298 F.Supp., at 184.
5
In 1966 Alabama still limited jury service to males. See n. 2, supra.
6
The District Court rejected the appellees' contention that an emigration of younger and better-educated Negroes from the county in the 1960's accounted for the disparity between the racial composition of the county in 1960 and of the jury rolls during the succeeding years of the decade. 298 F.Supp., at 188. See Coleman v. Alabama, 389 U.S. 22, 23, 88 S.Ct. 2, 3, 19 L.Ed.2d 22.
7
Other plaintiffs in the suit sought similar relief, as well as an injunction to prevent the grand jury from considering charges of grand larceny then outstanding against them. The District Court denied relief with respect to those plaintiffs, and they took a separate appeal. We affirmed that portion of the District Court's judgment last Term, and those plaintiffs are no longer before us. Bokulich v. Jury Commission of Greene County, 394 U.S. 97, 89 S.Ct. 767, 22 L.Ed.2d 109 (per curiam).
8
Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (per curiam); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991; Reece v. Georgia, 350 U.S. 85, 87, 76 S.Ct. 167, 169, 100 L.Ed. 77; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Hill v. Texas, 316 U.S. 400, 404, 406, 62 S.Ct. 1159, 1161, 1162, 86 L.Ed. 1559; Smith v. Texas, 311 U.S. 128, 129—130, 61 S.Ct. 164, 165, 85 L.Ed. 84; Pierre v. Louisiana, 306 U.S. 354, 356—358, 362, 59 S.Ct. 536, 537—538, 540, 83 L.Ed. 757; Rogers v. Alabama, 192 U.S. 226, 231, 24 S.Ct. 257, 258, 48 L.Ed. 417; Carter v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 689, 44 L.Ed. 839; Bush v. Kentucky, 107 U.S. 110, 121, 1 S.Ct. 625, 634, 27 L.Ed. 354.
9
Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244; Hollins v. Oklahoma, 295 U.S. 394, 55 S.Ct. 784, 79 L.Ed. 1500 (per curiam).
10
Sims v. Georgia, 389 U.S. 404, 407—408, 88 S.Ct. 523, 525 526, 19 L.Ed.2d 634; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190; Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76; Hale v. Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050 (per curiam); Norris v. Alabama, 294 U.S. 587, 589, 55 S.Ct. 579, 580, 79 L.Ed. 1074; Martin v. Texas, 200 U.S. 316, 319, 26 S.Ct. 338, 339, 50 L.Ed. 497; Neal v. Delaware, 103 U.S. 370, 396—397, 26 L.Ed. 567; Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664.
11
Billingsley v. Clayton, 5 Cir., 359 F.2d 13, 16 (en banc); Jewell v. Stebbins, D.C., 288 F.Supp. 600, 604—605; White v. Crook, D.C., 251 F.Supp. 401, 405—406; Mitchell v. Johnson, D.C., 250 F.Supp. 117, 121. See Kuhn, Jury Discrimination: The Next Phase, 41 S.Cal.L.Rev. 235, 247—249; Note, The Congress, The Court and Jury Selection: A Critique of Titles I and II of the Civil Rights Bill of 1966, 52 Va.L.Rev. 1069, 1084—1094 (1966).
12
Cf. Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777, 13 L.Ed.2d 675; Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50—51, 79 S.Ct. 985, 989—990, 3 L.Ed.2d 1072; Pope v. Williams, 193 U.S. 621, 632, 24 S.Ct. 573, 575, 48 L.Ed. 817.
13
Compare Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, with Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232.
14
See Ex parte Virginia, 100 U.S. 339, 346—347, 25 L.Ed. 676; Virginia v. Rives, 100 U.S. 313, 321, 25 L.Ed. 667.
15
Strauder v. West Virginia, supra, 100 U.S. at 308.
16
Smith v. Texas, supra, 311 U.S. at 130, 61 S.Ct. at 165.
17
Strauder v. West Virginia, supra. Congress, recognizing such a right, has long provided a criminal sanction for its violation:
'No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000.' 18 U.S.C. § 243.
18
Cf. Whitus v. Georgia, supra, 385 U.S. at 552, 87 S.Ct. at 647.
19
Cf. Witcher v. Peyton, 4 Cir., 405 F.2d 725, 727.
20
Cf. Gray v. Main, D.C., 309 F.Supp. 207, 224.
21
Cf. Brooks v. Beto, 5 Cir., 366 F.2d 1, 27 (Wisdom, J., concurring in result), cert. denied, 386 U.S. 975, 87 S.Ct. 1169, 18 L.Ed.2d 135.
22
According to the appellants, civil suits challenging alleged racial discrimination in jury selection have been commenced in federal district courts throughout Alabama.
23
Brown v. Allen, 344 U.S. 443, 473, 73 S.Ct. 397, 415, 97 L.Ed. 469 (opinion of Mr. Justice Reed, announcing judgment); Cassell v. Texas, supra, 339 U.S. at 291, 70 S.Ct. at 633 (Frankfurter, J., concurring in judgment); Virginia v. Rives, supra, 100 U.S. at 334—335 (Field, J., concurring in judgment); Strauder v. West Virginia, supra, 100 U.S. at 310.
24
Neal Delaware, supra, 103 U.S. at 386; Strauder v. West Virginia, supra.
25
Gibson v. Mississippi, 162 U.S. 565, 589, 16 S.Ct. 904, 909, 40 L.Ed. 1075. The federal courts have upheld similar qualifications in reviewing their own jury-selection system. See, e.g., United States v. Flynn, 216 F.2d 354, 388 (C.A.2d Cir.) (Harlan, J.), cert. denied, 348 U.S. 909, 75 S.Ct. 295, 99 L.Ed. 713; United States v. Dennis, 183 F.2d 201, 220 (C.A.2d Cir.) (L. Hand, J.), cert. granted, limited to other grounds, 340 U.S. 863, 71 S.Ct. 91, 95 L.Ed. 630.
26
Brown v. Allen, supra, 344 U.S. at 474, 73 S.Ct at 416 (opinion of Mr. Justice Reed, announcing judgment).
27
See, e.g., Ariz.Rev.Stat. Ann. § 21—201 (1956); Wis.Stat.Ann. § 255.01(1) (Supp. 1969).
28
See, e.g., Cal.Civ.Proc.Code § 198 (1954); Wash.Rev.Code § 2.36.070(2) (1956).
29
E.g., Colo.Rev.Stat.Ann. § 78—1—1(1) (1963) (21 years old); Md.Ann.Code, Art. 51, § 1 (1968 Repl.Vol.) (25 years); Hawaii Rev.Stat. § 609—1(1) (1968) (20 years); Neb.Rev.Stat. § 25 1601(1) (1964) (25 years); R.I.Gen. Laws Ann. § 9—9—1 (1956) (same).
30
See, e.g., Pa.Stat.Ann., Tit. 17, § 1322 (1962). Vermont has delegated the function of determining qualifications to court administrators. Vt.Stat.Ann., Tit. 4, § 902 (Supp. 1969).
31
Ariz.Rev.Stat.Ann. § 21—201 (1956); Ark.Stat.Ann. § 39 206 (1962 Repl.Vol.); Conn.Gen.Stat.Rev. § 51—217 (1968); Fla.Stat. § 40.01(3) (1965), F.S.A.; Hawaii Rev.Stat. § 609—1(3) (1968); Ill.Rev.Stat., c. 78, § 2 (1967) ('fair character'); Iowa Code § 607.1 (1966); Kan.Stat.Ann. § 43—102
(1964); Ky.Rev.Stat. § 29.025 (1962) ('temperate, discreet, and of good demeanor)'; Me.Rev.Stat.Ann., Tit. 14, § 1254 (1964); Neb.Rev.Stat. § 25—1601(1) (1964) ('fair character'); N.Y. Judiciary Law, McKinney's Consol. Laws, c. 30, § 504(4) (Supp. 1969); Okla.Stat.Ann., Tit. 38, § 28 (Supp. 1969); S.C.Code Ann. § 38—52 (Supp. 1968); Tex.Rev.Civ.Stat.Ann., Art. 2133(2) (1964); Wis.Stat.Ann. § 255.01(5) (Supp. 1969).
Another phrase frequently found is 'approved integrity.' E.g., Conn.Gen.Stat.Rev. § 51—217 (1968); Fla.Stat. § 40.01(3) (1965), F.S.A.; Ill.Rev.Stat., c. 78, § 2 (1967); Kan.Stat.Ann. § 43—102 (1964); Me.Rev.Stat.Ann., Tit. 14, § 1254 (1964); Neb.Rev.Stat. § 25—1601(1) (1964). See also Ariz.Rev.Stat.Ann. § 21—201 (1956) ('sober'); Md.Ann.Code, Art. 51, § 9 (Supp. 1968) ('integrity'); Miss.Code Ann. § 1762—02 (Supp. 1968) (not a 'habitual drunkard'); Mo.Ann.Stat. § 494.010 (Supp. 1969) ('sober'); Okla.Stat.Ann., Tit. 38, § 28 (Supp.1969) (not a habitual drunkard); Tenn.Code Ann. § 22—102 (1955) (same); W.Va.Code Ann. § 52—1—2 (1966) (same); cf. N.H.Rev.Stat.Ann. § 500:29 (1968 Repl.Vol.) (disqualification on account of 'vicious habits'); Wash.Rev.Code § 2.36.110 (1959) ('unfit persons' must be excused).
32
Ariz.Rev.Stat.Ann. § 21—201 (1956); Cal.Civ.Proc.Code § 198 (1954); Fla.Stat. § 40.01(3) (1965), F.S.A.; Hawaii Rev.Stat. § 609—1(3) (1968); Md.Ann.Code, Art. 51, § 9 (Supp.1968); Mo.Ann.Stat. § 494.010 (Supp. 1969); Mont.Rev.Codes Ann. § 93 1301(2) (1964 Repl.Vol.); Neb.Rev.Stat. § 25—1601(1) (1964); N.Y. Judiciary Law § 596(5) (1968) (only for cities of one million in population); Wyo.Stat.Ann. § 1—77(2) (Supp. 1969). See also Conn.Gen.Stat.Rev. § 51—217 (1968) ('sound judgment'); Fla.Stat. § 40.01(3) (1965) F.S.A. (same); Ill.Rev.Stat., c. 78, § 2 (1967) (same); Iowa Code § 607.1 (1966) (same); Me.Rev.Stat.Ann., Tit. 14, § 1254 (1964) (same); N.D.Cent.Code § 27—09—01 (1960) ('sound mind and discretion'); Okla.Stat.Ann., Tit. 38, § 28 (Supp. 1969) (same); S.C.Code Ann. § 38—52 (Supp. 1968) ('sound judgment'); Utah Code Ann. § 78—46—8(5) (1953) ('sound mind and discretion'); Wis.Stat.Ann. § 255.01(5) (Supp. 1969) ('sound judgment').
33
Ill.Rev.Stat., c. 78, § 2 (1967); Kan.Stat.Ann. § 43—102 (1964); Me.Rev.Stat.Ann., Tit. 14, § 1254 (1964); Neb.Rev.Stat. § 25—1601(1) (1964); see Conn.Gen.Stat.Rev. § 51—217 (1968) ('fair education'). See Note, The Congress, The Court and Jury Selection: A Critique of Titles I and II of the Civil Rights Bill of 1966, 52 Va.L.Rev. 1069, 1072—1073 (1966) (collecting ref.).
34
218 U.S. 161, 30 S.Ct. 640, 54 L.Ed. 980.
35
218 U.S., at 167—168, 30 S.Ct. at 642.
36
311 U.S. 128, 61 S.Ct. 164.
37
See Akins v. Texas, 325 U.S. 398, 402—403, 65 S.Ct. 1276, 1278—1279, 89 L.Ed. 1692 and n. 3.
38
311 U.S., at 130—131, 61 S.Ct. at 165. (Footnote omitted.) Cf. Hernandez v. Texas, 347 U.S. 475, 478—479, 74 S.Ct. 667, 670—671, 98 L.Ed. 866, and Cassell v. Texas, supra, 339 U.S. at 284, 70 S.Ct. at 630, where no challenge was made to the statutory scheme.
39
From the earliest consideration of racial ciscrimination in jury selection, the Court has consistently distinguished, for purposes of determining the removability of a state criminal proceeding to a federal court, between a statute expressly excluding Negroes from jury service and one neutral on its face with respect to race but challenged as discriminatorily applied. Compare Murray v. Louisiana, 163 U.S. 101, 105—106, 16 S.Ct. 990, 991—992, 41 L.Ed. 87; Smith v. Mississippi, 162 U.S. 592, 600, 16 S.Ct. 900, 903, 40 L.Ed. 1082; Gibson v. Mississippi, supra, 162 U.S. at 579—586, 16 S.Ct. at 906—908; Bush v. Kentucky, supra, 107 U.S. at 116, 1 S.Ct. at 630; Neal v. Delaware, supra, 103 U.S. at 386—393; Virginia v. Rives, supra, 100 U.S. at 318—323, with Strauder v. West Virginia, supra, 100 U.S. at 310—312. See City of Greenwood v. Peacock, 384 U.S. 808, 827—828, 86 S.Ct. 1800, 1812 1813, 16 L.Ed.2d 944; Georgia v. Rachel, 384 U.S. 780, 797—804, 86 S.Ct. 1783, 1792—1796, 16 L.Ed.2d 925.
40
See Ala.Pen.Code of 1841, c. X, §§ 1, 3.
41
Such considerations distinguish the present case from Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709, where we invalidated a provision of the Louisiana Constitution that vested in the State's voting registrars 'a virtually uncontrolled discretion as to who should vote and who should not,' and that had been abused 'to deprive otherwise qualified Negro citizens of their right to vote * * *.' 380 U.S., at 150, 85 S.Ct., at 820. The District Court found that the constitutional provision, as written and as applied, was 'part of a successful plan to deprive Louisiana Negroes of their right to vote.' 380 U.S., at 151, 85 S.Ct. at 821, aff'g 225 F.Supp. 353, 356, 363—381. Cf. South Carolina v. Katzenbach, 383 U.S. 301, 312 313, 86 S.Ct. 803, 810—811, 15 L.Ed.2d 769; United States v. Mississippi, 380 U.S. 128, 131—136, 143—144, 85 S.Ct. 808, 809 812, 816—817, 13 L.Ed.2d 717; Alabama v. United States, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112, per curiam, aff'g 304 F.2d 583, 584—589, aff'g 192 F.Supp. 677; Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093, per curiam, aff'g 81 F.Supp. 872, 876, 878—880.
42
In Louisiana v. United States, supra, the District Court held the challenged constitutional provision invalid per se on the basis of its finding that in view of the provision's 'vote-abridging purpose and effect,' its vices could not be cured by an injunction prohibiting its unfair application. 225 F.Supp., at 391, aff'd, 380 U.S., at 150, 85 S.Ct., at 820 and n. 9. Cf. Davis v. Schnell, 81 F.Supp., at 877.
43
The District Court granted a motion to quash the subpoena served on the Governor when it appeared that the appellants had failed to tender him his fees. See Fed. Rule Civ.Proc. 45(c).
44
Moore v. Henslee, 8 Cir., 276 F.2d 876, 878—879; cf. Swain v. Alabama, supra, 380 U.S. at 208, 85 S.Ct. at 829; Cassell v. Texas, supra, 339 U.S. at 291, 70 S.Ct. at 633 (Frankfurter, J., concurring in judgment); Akins v. Texas, supra, 325 U.S. at 403, 65 S.Ct. at 1279; Martin v. Texas, supra, 200 U.S. at 320 321, 26 S.Ct. at 339; Gibson v. Mississippi, supra, 162 U.S., at 580, 16 S.Ct. at 906; Bush v. Kentucky, supra, 107 U.S. at 117, 1 S.Ct. at 631; Neal v. Delaware, supra, 103 U.S. at 394; Virginia v. Rives, supra, 100 U.S., at 323; see Hoyt v. Florida, 368 U.S. 57, 59, 69, 82 S.Ct. 159, 161, 166, 7 L.Ed.2d 118.
45
See 298 F.Supp., at 193.
46
Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822. Cf. Alabama v. United States, 5 Cir., 304 F.2d 583. 590 591, aff'd, 371 U.S. 37, 83 S.Ct. 145 (per curiam). Of particular relevance is the decree drawn by District Judge Johnson in Mitchell v. Johnson, in the District Court for the Middle District of Alabama, 250 F.Supp. 117, 123—124:
'The relief to be afforded in this case will involve not only the issuance of a prohibitory injunction, but an injunction requiring immediate affirmative action by the jury commissioners by their emptying the * * * County jury box, abandoning the present * * * jury roll without any further use of either, and by their compiling a jury roll and refilling the jury box in strict accordance with the law of Alabama and the constitutional principles herein set forth. * * * In remedying this wrong, the defendants are cautioned that if they apply Alabama's qualifications for jury service—particularly that qualification relating to good character and sound judgment and that qualification concerning the requirement that prospective jurors be able to read English—these qualification requirements must be imposed fairly and objectively and administered to all regardless of race, in a nondiscriminatory manner. * * *
'Failure on the part of the defendants to comply immediately and in good faith with the requirements of this opinion and order will necessitate the appointment by this Court of a master or panel of masters to recompile the jury roll and to empty and refill the * * * jury box.' (Footnotes omitted.)
Accord: Pullum v. Greene, 5 Cir., 396 F.2d 251, 257; Turner v. Spencer, D.C., 261 F.Supp. 542, 544; White v. Crook, D.C., 251 F.Supp. 401, 409—410.
1
The Civil Rights Act of 1964, § 703, 78 Stat. 255, 42 U.S.C. § 2000e—2(a), 78 Stat. 255 makes it unlawful for an employer on a federally financed project 'to limit, segregate, or classify' his employees because of race. In commenting on the Philadelphia Plan, regulating employment on federally financed construction jobs, the Washington Post stated:
'Quotas are understandably abhorrent to those seeking to do away with discrimination. A quota in this context means a ceiling. Some years ago, when colleges were accused of discriminating against religious minorities in their admission policies, they fixed quotas in percentage terms for these minorities based upon their ratio to the general population and not upon their ability to meet competitive entrance tests; these quotas then became a maximum for the admission of minority group students. The goals embodied in the Philadelphia Plan constitute a floor, not a ceiling, a minimum rather than a maximum; they constitute an agreement to enlarge job opportunities for minority workers, not restrict them; and so they are in complete conformity with the essential spirit and purpose of the Civil Rights Act.' Jan. 14, 1970, p. A18.
2
The Constitution of India contains provisions for her economically and educationally deprived classes, including the untouchables. Article 15(4) provides: 'Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.' This provision was added to the Constitution by a 1951 amendment, the object of which was to override the decision in State of Madras v. Dorairajan, All India Rptr. 1951 Sup.Ct. 226, and to make it constitutional for the State to reserve seats for backward classes of citizens and Scheduled Castes and Tribes in public educational institutions, or to take other similar action for their advancement.
Article 16(4), relating to public employment, provides: 'Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.' The objective of 'adequate representation' applies not merely to lower government positions, but to all levels of government office. See General Manager, S.R. Co. v. Rangachari, All India Rptr. 1962 Sup.Ct. 36.
Articles 330 and 332 provide for the reservation of seats for Scheduled Castes and Scheduled Tribes, except for the Scheduled Tribes in the tribal areas of Assam, in the House of the People and the legislative assembly of every State. Article 331 provides for the nomination of not more than two members of the Anglo-Indian community if the President is of the opinion that the community is not adequately represented in the House of the People. The reservation of seats mentioned above and the nomination of members of the Anglo-Indian community is to cease after 20 years, viz., January 1970. A constitutional amendment extending that time is now before the national parliament and the legislatures of the several States. See Indian & Foreign Review, Jan. 1, 1970, p. 7.
| 12
|
396 U.S. 371
90 S.Ct. 613
24 L.Ed.2d 590
Alfred Tennyson COWGILL, appellant,v.CALIFORNIA.
No. 496.
Supreme Court of the United States
January 19, 1970
Melville B. Nimmer and Laurence R. Sperber, for appellant.
Thomas C. Lynch, Atty. Gen. of California, William E. James, Asst. Atty. Gen., and Evelle J. Younger, for appellee.
PER CURIAM.
1
The motion to dismiss is granted and the appeal is dismissed.
2
Mr. Justice HARLAN, with whom Mr. Justice BRENNAN joins, concurring.
3
While I am of the view this appeal should be dismissed, I deem it appropriate to explain the basis for my conclusion since the issue tendered by appellant—whether symbolic expression by displaying a 'mutilated' American flag is protected from punishment by the Fourteenth Amendment—is one that I cannot regard as insubstantial. See Street v. New York, 394 U.S. 576, 594, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969).
4
The record before us is not in my judgment suitable for considering this broad question as it does not adequately flush the narrower and predicate issue of whether there is a recognizable communicative aspect to appellant's conduct which appears to have consisted merely of wearing a vest fashioned out of a cutup American flag. Such a question, not insubstantial of itself, has been pretermitted in the Court's previous socalled 'symbolic speech' cases where the communicative content of the conduct was beyond dispute. See Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966); Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964); Garner v. Louisiana, 368 U.S. 157, 201, 82 S.Ct. 248, 7 L.Ed.2d 207 (concurring in judgment) (1961); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); see generally Note, Symbolic Conduct, 68 Col.L.Rev. 1091 (1968). The Court has, as yet, not established a test for determining at what point conduct becomes so intertwined with expression that it becomes necessary to weigh the State's interest in proscribing conduct against the constitutionally protected interest in freedom of expression.*
5
While appellant contends that his conduct conveyed a symbolic message, the stipulated statement of facts on which this case comes to us suggests that the issue was not, in the first instance, determined as a factual matter by the trial court. Further, there is no indication that appellant either presented evidence on this question at trial or urged any standard at trial for determining that issue. I would therefore dismiss this appeal based on the inadequacy of the record for deciding the question presented. Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666; DeBacker v. Brainerd, 90 S.Ct. 163.
6
Mr. Justice DOUGLAS is of the opinion that probable jurisdiction should be noted.
*
Chief Justice Warren, writing for the majority in United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), said: 'We cannot accept the view that an apparently limitness variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea.' The Court went on, however, to take judicial notice of the symbolic significance of draft-card burning which had become a recognized way of protesting the draft and American involvement in Vietnam.
| 23
|
396 U.S. 295
90 S.Ct. 506
24 L.Ed.2d 532
David Earl GUTKNECHT, Petitioner,v.UNITED STATES.
No. 71.
Argued Nov. 20, 1969.
Decided Jan. 19, 1970.
Michael E. Tigar, Washington, D.C., for petitioner, pro hac vice, by special leave of Court.
William D. Ruckelshaus, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case presents an important question under the Military Selective Service Act of 1967, 62 Stat. 604, as amended, 65 Stat. 75, 81 Stat. 100.
2
Petitioner registered with his Selective Service Local Board and was classified I—A. Shortly thereafter he received a II—S (student) classification. In a little over a year he notified the Board that he was no longer a student and was classified I—A. Meanwhile he had asked for an exemption as a conscientious objector. The Board denied that exemption, reclassifying him as I—A, and he appealed to the State Board. While that appeal was pending, he surrendered his registration certificate and notice of classification by leaving them on the steps of the Federal Building in Minneapolis with a statement explaining he was opposed to the war in Vietnam. That was on October 16, 1967. On November 22, 1967, his appeal to the State Board was denied. On November 27, 1967, he was notified that he was I—A.
3
On December 20, 1967, he was declared delinquent by the local board. On December 26, 1967, he was ordered to report for induction on January 24, 1968. He reported at the induction center, but in his case the normal procedure of induction was not followed. Rather, he signed a statement, 'I refuse to take part, or all, (sic) of the prescribed processing.' Thereafter he was indicted for wilfully and knowingly failing and neglecting 'to perform a duty required of him' under the Act. He was tried without a jury, found guilty, and sentenced to four years' imprisonment. United States v. Gutknecht, D.C., 283 F.Supp. 945. His conviction was affirmed by the Court of Appeals, 8 Cir., 406 F.2d 494. The case is here on a petition for a writ of certiorari, 394 U.S. 997, 89 S.Ct. 1595, 22 L.Ed.2d 775.
4
* Among the defenses tendered at the trial was the legality of the delinquency regulations which were applied to petitioner. It is that single question which we will consider.
5
By the regulations promulgated under the Act a local board may declare a registrant to be a 'delinquent' whenever he
6
'has failed to perform any duty or duties required of him under the selective service law other than the duty to comply with an Order to Report for Induction (SSS Form No. 252) or the duty to comply with an Order to Report for Civilian Work and Statement of Employer (SSS Form No. 153). * * *' 32 CFR § 1642.4.
7
In this case, petitioner was declared a delinquent for failing to have his registration certificate (SSS Form No. 2) and current classification notice (SSS Form No. 110) in his personal possession at all times, as required by 32 CFR §§ 1617.1 and 1623.5 respectively.
8
The consequences of being declared a delinquent under § 1642.4 are of two types: (1) Registrants who have deferments or exemptions may be reclassified in one of the classes available for service, I—A, I—A—O, or I—O, whichever is deemed applicable. 32 CFR § 1642.12. (2) Registrants who are already classified I—A, I—A O, or I—O, and those who are reclassified to such a status, will be given first priority in the order of call for induction, requiring them to be called even ahead of volunteers for induction. 32 CFR § 1642.13. The latter consequence deprives the registrant of his previous standing in the order of call as set out in 32 CFR § 1631.7.1
9
The order-of-call provision in use when petitioner was declared 'delinquent'2 is set out in 32 CFR § 1631.7(a). The provision lists, in order, six categories of registrants and provides that the registrants shall be selected and ordered to report for induction according to the order of those categories. The first category is delinquents; the next category is volunteers; the other four categories consist of nonvolunteers. In this case, the petitioner was in the third of the six categories at the time he was declared to be a 'delinquent.' By virtue of the declaration of delinquency he was moved to the first of the categories which meant, according to the brief of the Department of Justice, that 'it is unlikely that petitioner, who was 20 years of age when ordered to report for induction, would have been called at such an early date had he not been declared a delinquent.'
10
If a person who is ordered to report for induction or alternative civilian service, refuses to comply with that order, he subjects himself to criminal prosecution. See 32 CFR §§ 1642.41, 1660.30.
11
There is no doubt concerning the propriety of the latter criminal sanction, for Congress has specifically provided for the punishment of those who disobey selective service statutes and regulations in § 12 of the Military Selective Service Act of 1967, 50 U.S.C. App. § 462 (1964 ed., Supp. IV). The question posed by this case concerns the legitimacy of the delinquency regulations which were applied to the petitioner, so as to deprive him of his previous standing in the order of call.
II
12
There is a preliminary point which must be mentioned and that is the suggestion that petitioner should have taken an administrative appeal from the order declaring him 'delinquent' and that his failure to do so bars the defense in the criminal prosecution.
13
The pertinent regulation is 32 CFR § 1642.14, which gives a delinquent who 'is classified in or reclassified into Class I—A, Class I—A—O or Class I—O' three rights:
14
(a) the right to a personal appearance, upon request, 'under the same circumstances as in any other case';
15
(b) the right to have his classification reopened 'in the discretion of the local board'; and (c) the right to an appeal 'under the same circumstances and by the same persons as in any other case.' (Emphasis added.)
16
The right to a personal appearance 'in any other case' is covered by 32 CFR § 1624.1(a). That section gives the right to '(e)very registrant after his classification is determined by the local board' provided a request is made therefor within 30 days. (Emphasis added.) The action taken against this petitioner, however, did not involve classification. The term 'classification' is used exclusively in the regulations to refer to classification in one of the classes determining availability for service, e.g., I—A, I—O. See 32 CFR pts. 1621—1623. 'Delinquency' is not such a classification, and a registrant is 'declared' a delinquent, not 'classified' as a delinquent. See 32 CFR pt. 1642.
17
The right to reopen his classification is also irrelevant to petitioner as he is not attacking his classification, but only his accelerated induction.
18
The right to appeal 'as in any other case' is covered by 32 CFR § 1626.2(a). That section provides that '(t)he registrant * * * may appeal to an appeal board from the classification of a registrant by the local board.' (Emphasis added.)
19
Again, since petitioner was not classified in conjunction with his delinquency, but only had his induction accelerated, it would mean that he did not have the right to an appeal under the regulations.3 We are not advised, in any authoritative way, that this interpretation of the regulations is contrary to the administrative construction of them or to the accepted practice.4
III
20
We come then to the merits. The problem of 'delinquency' goes back to the 1917 Act, 40 Stat. 76, as shown in the Appendix to this opinion. The present 'delinquency' regulations with which we are concerned stem from the 1948 Act, 62 Stat. 604.
21
The regulations issued under the 1948 Act were substantially identical to the present delinquency regulations, 32 CFR pt. 1642. Nothing in the 1948 Act or in any prior Act makes reference to delinquency or delinquents. The regulations purport to issue under the authority of § 10 of the 1948 Act. Section 10, however, relates neither to selection (§ 5) nor to deferments and exemptions (§ 6), but simply to the administration of the Act as delegated to the President: 'The President is authorized—(1) to prescribe the necessary rules and regulations to carry out the provisions of this title.' 62 Stat. 619.
22
The delinquency provisions of 32 CFR pt. 1642, survived the Military Selective Service Act of 1967 largely intact. Again, however, there is nothing to indicate that Congress authorized the Selective Service System to reclassify exempt or deferred registrants for punitive purposes and to provide for accelerated induction of delinquents. Rather, the Congress reaffirmed its intention under § 12 (50 U.S.C. App. § 462 (1964 ed., Supp. IV)), to punish delinquents through the criminal law.
23
It is true, of course, that Congress referred to 'deinquents' in § 6(h)(1), 81 Stat. 102, 50 U.S.C. App. § 456(h)(1) (1964 ed., Supp. IV):
24
'As used in this subsection, the term 'prime age group' means the age group which has been designated by the President as the age group from which selections for induction into the Armed Forces are first to be made after delinquents and volunteers.' (Emphasis added.)
25
This reference concerns only an order-of-call provision which institutes a call by age groups, 32 CFR § 1631.7(b), a provision which has never been used. This casual mention of the term 'delinquents,' moreover, must be measured against the explicit congressional provision for criminal punishment of those who violate the selective service laws, 50 U.S.C. App. § 462 (1964 ed., Supp. IV), the congressional provision for exemptions and deferments, 50 U.S.C. App. § 456 (1964 ed., Supp. IV), and congressional expressions emphasizing the importance of an impartial order of call, 50 U.S.C. App. § 455 (1964 ed. Supp. IV); H.R.Conf.Rep. No. 346, 90th Cong., 1st Sess., 9—10. Thus it was that the Solicitor General stated in his brief in Oestereich v. Selective Service System Local Board No. 11, No. 46, O.T.1968, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402:
26
'It is difficult to believe that Congress intended the local boards to have the unfettered discretion to decide that any violation of the Act or regulations warrants a declaration of delinquency, reclassification and induction * * *.' Brief for the United States 54.
27
Judge Dooling stated in United States v. Eisdorfer, D.C., 299 F.Supp. 975, 989:
28
'The delinquency procedure has no statutory authorization and no Conggressional support except what can be spelled out of the 1967 amendment of 50 U.S.C. App. § 456(h)(1) * * *. The delinquency regulations, moreover, disregard the structure of the Act; deferments and priorities-of-induction, adopted in the public interest, are treated as if they were forfeitable personal privileges.'
29
Oestereich involved a case where a divinity school student with a statutory exemption and a IV—D classification was declared 'delinquent' for turning in his registration certificate to the Government in protest against the war in Vietnam. His Board thereupon reclassified him as I—A. After he exhausted his administrative remedies, he was ordered to report for induction. At that point he brought suit in the District Court for judicial review of the action by the Board. We held that under the unusual circumstances of the case, pre-induction judicial review was permissible prior to induction and that there was no statutory authorization to use the 'delinquency' procedure to deprive a registrant of a statutory exemption. We said:
30
'There is no suggestion in the legislative history that, when Congress has granted and exemption and a registrant meets its terms and conditions, a Board can nonetheless withhold it from him for activities or conduct not material to the grant or withdrawal of the exemption. So to hold would make the Boards free-wheeling agencies meting out their brand of justice in a vindictive manner.
31
'Once a person registers and qualifies for a statutory exemption, we find no legislative authority to deprive him of that exemption because of conduct or activities unrelated to the merits of granting or continuing that exemption.' 393 U.S., at 237, 89 S.Ct. at 416.
32
The question in the instant case is different because no 'exemption,' no 'deferment,' no 'classification' in the statutory sense is involved. 'Delinquency' was used here not to change a classification but to accelerate petitioner's induction from the third category to the first; and it was that difference which led the Court of Appeals to conclude that what we said in Oestereich was not controlling here.
33
Deferment of the order of call may be the bestowal of great benefits; and its acceleration may be extremely punitive. As already indicated, the statutory policy is the selection of persons for training and service 'in an impartial manner.' 50 U.S.C. App. § 455(a)(1) (1964 ed., Supp. IV.) That is the only express statutory provision which gives specific content to that phrase. That section does permit people registered at one time to be selected 'before together with, or after' persons registered at a prior time. Moreover, those who have not reached the age of 19 are given a deferred position in the order of call. But those variations in the phrase 'in an impartial manner' are of no particular help in the instant case, except to underline the concern of Congress with the integrity of that phrase.
34
We know from the legislative history that, while Congress did not address itself specifically to the 'delinquency' issue, it was vitally concerned with the order of selection, as well as with exemptions and deferments. Thus in 1967 a Conference Report brought House and Senate together against the grant of power to the President to initiate 'a random system of selection'—a grant which, it was felt, would preclude Congress from 'playing an affirmative role' in the constitutional task of 'raising armies.' H.R.Conf.Rep. No. 346, supra, at 9—10. It is difficult to believe that with that show of resistance to a grant of a more limited power, there was acquiescence in the delegation of a broad, sweeping power to Selective Service to discipline registrants through the 'delinquency' device.
35
The problem of the order of induction was once more before the Congress late in 1969. Section 5(a)(2) of the 1967 Act, 50 U.S.C. App. § 455(a)(2) (1964 ed., Supp. IV, provided:
36
'Notwithstanding the provisions of paragraph (1) of this subsection, the President in establishing the order of induction for registrants within the various age groups found qualified for induction shall not effect any change in the method of determining the relative order of induction for such registrants within such age groups as has been heretofore established and in effect on the date of enactment of this paragraph, unless authorized by law enacted after the date of enactment of the Military Selective Service Act of 1967.'
37
While § 5(a)(2) gave the President authority to designate a prime age group for induction, it required him to select from the oldest first within the group. S.Rep. No. 91—531, 91st Cong., 1st Sess., 1. The Act of November 26, 1969, 83 Stat. 220, repealed § 5(a)(2) pursuant to a request of the President that a random system of selection be authorized. See S.Rep. No. 91—531, supra, at 3—4; H.R.Rep. No. 91—577, 91st Cong., 1st Sess., 2, 9.5 The random system has now been put in force.6 It applies of course only prospectively. But its legislative history, as well as the concern of the Congress that the order in which registrants are inducted be achieved 'in an impartial manner,' emphasizes a deep concern by Congress with the problems of the order of induction as well as with those of exemptions, deferments, and classifications.
38
While § 5(a)(1) provides that 'there shall be no discrimination against any person on account of race or color,' 50 U.S.C. App. § 455(a)(1) (1964 ed., Supp. IV), there is no suggestion that as respects other types of discrimination the Selective Service has freewheeling authority to ride herd on the registrants using immediate induction as a disciplinary or vindictive measure.
39
The power under the regulations to declare a registrant 'delinquent' has no statutory standard or even guidelines. The power is exercised entirely at the discretion of the local board. It is a broad, roving authority, a type of administrative absolutism not congenial to our law-making traditions. In Kent v. Dulles, 357 U.S. 116, 128—129, 78 S.Ct. 1113, 1119—1120, 2 L.Ed.2d 1204, we refused to impute to Congress the grant of 'unbridled discretion' to the Secretary of State to issue or withhold a passport from a citizen 'for any substantive reason he may choose.' Id., at 128, 78 S.Ct. at 1119. Where the liberties of the citizen are involved, we said that 'we will construe narrowly all delegated powers that curtail or dilute them.' Id., at 129, 78 S.Ct. at 1120. The Director of Selective Service described the 'delinquency' regulations as designed 'to prevent, wherever possible, prosecutions for minor infractions of rules' during the selective service processing.7 We search the Act in vain for any clues that Congress desired the Act to have punitive sanctions apart from the criminal prosecutions specifically authorized. Nor do we read it as granting personal privileges that may be forfeited for transgressions that affront the local board. If federal or state laws are violated by registrants, they can be prosecuted. If induction is to be substituted for these prosecutions, a vast rewriting of the Act is needed. Standards would be needed by which the legality of a declaration of 'delinquency' could be judged. And the regulations, when written, would be subject to the customary inquiries as to infirmities on their face or in their application, including the question whether they were used to penalize or punish the free exercise of constitutional rights.
40
Reversed.
41
Mr. Chief Justice BURGER concurs in the result reached by the Court generally for the reasons set out in the separate opinion of Mr. Justice STEWART.
42
Mr. Justice WHITE joins the opinion of the Court insofar as it holds that Congress has not delegated to the President the authority to promulgate the delinquency regulations involved in this case.
APPENDIX TO OPINION OF THE COURT
43
Under the Selective Service Act of 1917, 40 Stat. 76, if a registrant failed to return his questionnaire or to report for physical examination, he was mailed a special order directing him to report for military service at a specified time. The registrant became a member of the service on the date specified in his order; any refusal to obey that order subjected him to prosecution under military law for desertion. 'Since in most instances the delinquent registrant would never receive the order, due to not being in contact with his local board, he would normally acquire the status of a deserter wthout having any actual knowledge of his induction.' Selective Service System, Enforcement of the Selective Service Law 13 (Special Monograph No. 14, 1950). Thus, enforcement of the 1917 Act rested principally with the military, with court-martial being the main weapon of enforcement.
44
In passing the Selective Training and Service Act of 1940, 54 Stat. 885, Congress specifically ended the practice of subjecting delinquent registrants to military jurisdiction immediately upon receipt of their orders to report. Rather, § 11 of the Act provided that no registrant should be tried in a military court for disobeying selective service laws until he had been actually inducted, vesting criminal jurisdiction until such time in the United States district courts.
45
No mention was made in the 1940 Act of 'delinquency' or 'delinquents.' These terms were first introduced by the Selective Service regulations issued under the Act, 32 CFR, c. VI (Supp.1940), which prescribed various duties for registrants and defined a 'delinquent' as one who failed to perform them:
46
'A 'delinquent' is * * * (b) any registrant who prior to his induction into the military service fails to perform at the required time, or within the allowed period of given time, any duty imposed upon him by the selective service law, and directions given pursuant thereto, and has no valid reason for having failed to perform that duty.' 32 CFR § 601.106 (Supp.1940).
47
Furthermore, the regulations provided definite procedures for processing delinquents: after giving them notice of their suspected delinquency, 32 CFR § 603.389 (Supp.1940), and after investigating those suspected charges, 32 CFR § 603.390 (Supp.1940), the Selective Service System provided for two possible dispositions:
48
On the one hand—
49
'If the local board is convinced that a delinquent is not innocent of wrongful intent, or if a suspected delinquent does not report to the board within 5 days after the mailing of the Notice of Delinquency * * *, the board should report him to a United States District Attorney for prosecution under section 11 of the Selective Service Act.' 32 CFR § 603.391(a) (Supp.1940).
50
On the other hand—
51
'If the board finds that the suspected delinquent is innocent of any wrongful intent, the board shall proceed with him just as if he were never suspected of being a delinquent.' 32 CFR § 603.390(a) (Supp.1940).
52
The February 1942 amendments to the Regulations added a provision by which local boards would advise the United States Attorney in the exercise of his discretion not to prosecute those who had violated the selective service laws:
53
'If it is determined that the delinquency is not wilful, or that substantial justice will result, the local board should encourage the delinquent to comply with his obligations under the law and, if he does so or offers to do so, should urge that any charge of delinquency against him or any prosecution of him for delinquency be dropped.' 32 CFR § 642.5 (Cum.Supp.1938—1943.)
54
This process was called the 'enforcement procedure of education and persuasion.' Selective Service System, Enforcement of the Selective Service Law, supra, at 1—3.
55
'The first steps of the board were to try educating and persuading (the delinquent) to comply, but if such failed his case was referred to the United States attorney for further education and persuasion or if such also failed, for prosecution.' Selective Service System, Organization and Administration of the System 241 (Special Monograph No. 3, 1951).
56
If it was determined that the delinquency was 'wilful' or that for any reason the United States Attorney should not exercise his discretion not to prosecute, the registrant was given an opportunity to avoid prosecution by 'volunteering' for induction.
57
'(T)he registrant could volunteer for induction from any classification, not just I—A, any time he so desired, and if he was a delinquent under prosecution such volunteering was often allowed from any stage of the proceedings.' Ibid.
58
This procedure made it possible for the boards to siphon into military service some delinquents who might otherwise have traveled to jail:
59
'Since the purpose of the (selective service) law is to provide men for the military establishment rather than for the penitentiaries, it would seem that when a registrant is willing to be inducted, he should not be prosecuted for minor offenses committed during his processing.' Selective Service System, Legal Aspects of Selective Service 47 (Rev.1969).
60
In November 1943, a new and substantially different set of regulations was issued. These regulations did not rely upon a delinquent's 'volunteering' for induction; instead they provided for reclassification of deferred or exempted delinquents into classes available for service, 32 CFR § 642.12(a) (Supp.1943), and provided for their priority induction without regard to the order of call established elsewhere in the regulations, 32 CFR § 642.13(a) (Supp.1943).
61
A deferred or exempted registrant who was reclassified into a class available for service was accorded the procedural rights of personal appearance and appeal to which he would otherwise have been entitled. 32 CFR § 642.14(a) (Supp.1943). In the case of a registrant who was not reclassified as a result of his delinquency, the local board could 'reopen' the classification and accord rights of personal appearance and appeal 'at any time before induction.' 32 CFR § 642.14(b) (Supp.1943). If the local board determined that the registrant 'knowingly became a delinquent,' however, it was directed to decline to reopen the registrant's classification. Ibid.
62
With respect to those registrants who were given appeal rights under § 642.14, the appeal board would determine if they had 'knowingly' become delinquents. If they had, they were to be retained in a class available for service. If they had not, they were to be 'classified on appeal in the usual manner' and their status as delinquents was to be 'disregarded.' 32 CFR § 642.14(c) (Supp.1943).
63
The purpose of these regulations was 'to prevent delay in the induction of apprehended delinquent registrants.' Selective Service System, Enforcement of the Selective Service Law, supra, at 56 (emphasis added). More important, the Service recognized that the procedure had little to do with the statutory exemptions delineated by Congress but, rather, was punitive in nature:
64
'(T)he Selective Service Regulations concerning delinquents * * * were amended again on November 1, 1943 * * *. The purposes of these changes were * * *. To provide for the administrative penalty to a delinquent of prompt classification into Classes I—A, I—A—O or IV—E as available for service, in addition to the existing criminal sanction.' (Ibid.) (Emphasis added.)
65
The regulation of November 1, 1943, purportedly drew its authority from § 3 of the 1940 Act, 54 Stat. 885. Nothing in that section, however, gives the Service powers of punitive reclassification and accelerated induction. Moreover, to the extent that § 3 has been so construed, it would conflict with the spirit of § 4(a):
66
'The selection of men for training and service under section 3 * * * shall be made in an impartial manner, under such rules and regulations as the President may prescribe, from the men who are liable for such training and service and who at the time of selection are registered and classified but not deferred or exempted.' 54 Stat. 887 (emphasis added).
67
The delinquency provisions under the 1940 Act expired on March 31, 1947. The provisions issued under the 1948 Act are discussed in the text, supra.
68
Mr. Justice HARLAN, concurring.
69
I join the Court's opinion with the following observations. First, as I see it, nothing in the Court's opinion prevents a selective service board, under the present statute and existing regulations, from classifying as I—A a registrant who fails to provide his board with information essential to the determination of whether he qualifies for a requested exemption or deferment. Section 1622.10 of 32 CFR provides that: 'In Class I—A shall be placed every registrant who has failed to establish to the satisfaction of the local board, subject to appeal hereinafter provided, that he is eligible for classification in another class.' I assume, of course, that under this regulation a board has no authority to keep a registrant classified I—A once it has information that justifies some lower classification.
70
Second, I think it entirely possible that consistently with our opinion today the President might promulgate new regulations, restricted in application to cases in which a registrant fails to comply with a duty essential to the classification process itself, that provide for accelerated induction under the existing statute. However, in order to avoid those punitive features now found to be unauthorized under existing legislation, any new regulations would have to give to a registrant being subjected to accelerated induction the right (like a person held in civil contempt) to avoid any sanction by future compliance. In other words, while existing legislation does not authorize the use of accelerated induction to punish past transgressions, it may well authorize acceleration to encourage a registrant to bring himself into compliance with rules essential to the operation of the classification process.
71
Mr. Justice STEWART, concurring in the judgment.
72
I do not reach the question whether Congress has authorized the delinquency regulations, because even under the regulations the petitioner's conviction cannot stand. After the petitioner's local board declared him delinquent, he had 30 days as a matter of right to seek a personal appearance before the board and to take an appeal from its ruling. Yet the board gave him no chance to assert either of those rights. Instead, it ordered him to report for induction only five days after it had mailed him a notice of the delinquency declaration.
73
The local board thus violated the very regulations it purported to enforce. Those provisions seek to induce Selective Service registrants to satisfy their legal obligations by presenting them with the alternative prospect of induction into the armed forces. The personal appearance and appeal are critical stages in the delinquency process. They enable the registrant declared delinquent by his local board to contest the factual premises on which the delinquency declaration rests, to correct his oversight if the breach of duty has arisen merely from neglect, or to purge himself of his delinquency if his violation has been wilful. In any event, the regulatory objective is remedial. The board's authority to reclassify a registrant based on his delinquency and to accelerate his induction is analogous to the age-old power of the courts to pronounce judgments of civil contempt. In each case the subject of the order carries 'the keys * * * in (his) own pocket' to the termination of the order's effect.1
74
The Government has advanced the civil contempt analogy, not only in this case, but also in others before the Court both this Term and last.2 Such an interpretation of the delinquency regulations comports with the view of the agency charged with their administration—that their purpose is to provide young men for the armed services, not the penitentiaries.3 It comports, as well, with the regulatory scheme itself, under which the local board may reopen its classification of a delinquent registrant without regard to the usual restrictions against such action,4 and remove the registrant from delinquency status at any time, even after it has ordered him to report for induction.5
75
Accordingly, even though the regulations seem to say that such reopening and removal lie within the discretion of the local board,6 the Government agrees that the board would abuse its discretion if it refused such remedial relief to a registrant who breached his duty inadvertently or carelessly, or who sought to correct the breach, even if originally wilful, and to return to compliance with his obligations.7 But the Government argues that in this case the petitioner cannot avail himself of these provisions in the delinquency regulations, because he made no effort to correct his delinquency. The fact is that the petitioner's local board never gave him a chance to purge his delinquency. It declared him a delinquent on December 20, 1967, sent him a notice to that effect the next day, and five days later ordered him to report for induction, more than two weeks before the expiration of the petitioner's time to seek a personal appearance or take an appeal.8 In these circumstances the petitioner's failure to seek his local board's advice on what he should do, as suggested by the delinquency notice, does not detract from the force of his attack upon the validity of his criminal conviction.9
76
The Government also argues that the petitioner was not prejudiced by the local board's departure from the prescribed regulatory routine because when he was declared delinquent he was already classified I—A. But the Court of Appeals noted that the petitioner's induction date was advanced as a result of the declaration,10 and the Government concedes that since the petitioner was only 20 years old at the time, it is unlikely that he would have been called at such an early date had he not been declared a delinquent. That the petitioner might eventually have been called by no means a certainty, given the variations in draft calls and the possibility that he might subsequently have qualified for a deferment or exemption—does not mean he cannot complain that he was ordered to report for induction earlier than he should have been.11
77
Finally, it is said that the petitioner had no right to a personal appearance before the local board and an appeal from its ruling because its delinquency declaration did not entail his removal into Class I—A from some other category. Since the petitioner was already I—A, the argument runs, his local board never 'reclassified' him; it just shifted him from a lower to the highest category within the I—A order of call.12 Neither logic nor policy supports such a narrow reading of the regulations. Section 1642.14 specifically provides for a personal appearance and appeal, not only upon a 'reclassification into' I—A, but also upon a 'classification in' that category.13 The regulation thus covers precisely those registrants who are already 'classified in' Class I—A, and whose declaration of delinquency automatically elevates them to the head of the order of call, as well as those registrants who are not yet in I—A, and who must be 'reclassified into' that category before they can be put at the top of the list. The regulation, recognizing that the status of the registrant prior to his being declared delinquent and placed at the head of the order of call is irrelevant to the delinquency process, ensures that all registrants declared delinquent will enjoy the same rights of personal appearance and appeal without regard to their previous status.
78
Because the challenged regulations afford the petitioner procedural rights that his local board never gave him a chance to exercise, I would reverse the judgment of conviction.
1
Under the terms of 32 CFR § 1631.7(a)(1) in effect at the time of petitioners' trial, the first in line for induction were '(d)elinquents who have attained the age of 19 years in the order of their dates of birth with the oldest being selected first.' That provision has been included in the new § 1631.7(a) promulgated after the random system of selection, discussed hereafter, was adopted.
2
The order of call provided for by 32 CFR § 1631.7(b) concerned calls of a designated 'age group or groups,' a system never used.
3
Cf. McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194. In McKart, the petitioner, who challenged his I—A classification, was given a right to appeal under the regulations but failed to exercise it. This Court held that this failure did not preclude the petitioner from raising the invalidity of his I—A classification as a defense to his prosecution for refusal to report for induction. The doctrine of exhaustion of remedies, we held, was inapplicable where the question sought to be raised was solely one of statutory interpretation, id., at 197—199, 89 S.Ct. at 1664—1666 and where application of the doctrine would serve to deprive a criminal defendant of a defense to his prosecution, id., at 197, 89 S.Ct. at 1664.
4
The Department of Justice does not suggest that a registrant who has been declared a 'delinquent' has administrative remedies for a review of that action. It points out, however, that the regulations, 32 CFR § 1642.4(c), provide that: 'A registrant who has been declared to be a delinquent may be removed from that status by the local board at any time.' It suggests that 'at least up to the time of the issuance of the order to report for priority induction, it would be an abuse of discretion for a board to refuse removal in the case of a registrant who sought in good faith to correct his breach of duty.' Whatever may be the ultimate reach of 32 CFR § 1642.4(c), it seems to be conceded that it has little relevance to the present case where, the Department states, 'the local board had solid evidence that petitioner had dispossessed himself of his draft cards.'
5
And see 115 Cong.Rec. H 10255 et seq. (Oct. 29, 1969). Id., at H 10301 et seq., H 10313 et seq. (Oct. 30, 1969). Id., at § 14632 et seq. (Nov. 19, 1969).
6
The random selection was established by the President through Proclamation 3945, on November 26, 1969. 34 Fed.Reg. 19017 (Nov. 29, 1969).
7
Selective Service System, Legal Aspects of Selective Service 46 (Rev.1969). 'The escalation of the United States military involvement in Vietnam increased the draft calls, and there was an upsurge of public demonstrations in protest. Some of these protests took the form of turning 'draft' cards in to various public officials of the Department of Justice, the State or National Headquarters of Selective Service System, or directly to local boards. By agreement with the Department of Justice, registrants who turned in cards (as contrasted to those who burned cards) were not prosecuted under section 12(a) of the Military Selective Service Law of 1967, but were processed administratively by the local boards. In many instances, the local boards determined that a deferment of such registrant was no longer in the national interest, and he was reclassified 1—A delinquent for failure to perform a duty required of him under the Act, namely retaining in his possession the Registration Card and current Notice of Classification card.' Id., at 47.
1
Cf. Shillitani v. United States, 384 U.S. 364, 368—372, 86 S.Ct. 1531, 1534—1536, 16 L.Ed.2d 622; Green v. United States, 356 U.S. 165, 197—198, 78 S.Ct. 632, 650—651, 2 L.Ed.2d 672 (Black, J., dissenting); Penfield Co. v. SEC, 330 U.S. 585, 590, 67 S.Ct. 918, 921, 91 L.Ed. 1117; United States v. United Mine Workers, 330 U.S. 258, 330—332, 67 S.Ct. 677, 713—715, 91 L.Ed. 884 (Black and Douglas, JJ., concurring in part and dissenting in part).
2
The Government has spelled out the analogy in its briefs in Oestereich v. Selective Service System Local Bd. No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402; Breen v. Selective Service Board No. 65 O.T.1969, awaiting decision; Troutman v. United States, No. 623, O.T.1969, cert. pending; and the present case. See also Griffiths, Punitive Reclassification of Registrants Who Turn in Their Draft Cards, 1 Sel.Serv.L.Rep. 4001, 4010—4012.
3
Selective Service System, Legal Aspects of Selective Service 47 (Rev.1969).
4
32 CFR § 1642.14(b); cf. 32 CFR § 1625.2.
5
32 CFR § 1642.4(c). Of similar import is the board's authority, before notifying the local United States Attorney that a registrant has failed to report for induction, to wait 30 days if it believes it may be able to locate the registrant and secure his compliance. 32 CFR § 1642.41(a).
The civil-contempt interpretation draws further support from the historical development of the law of Selective Service delinquency. In the First World War, one who failed to fill out his questionnaire was simply inducted into the mailitary, and his failure to report for duty led to a court-martial for desertion. See United States ex rel. Bergdoll v. Drum, 2 Cir., 107 F.2d 897, 899, 129 A.L.R. 1165. By the Second World War, when the precursor of the present delinquency regulations first appeared, 32 CFR §§ 601.106, 603.389—603.393 (Supp.1940), the law provided compliance procedures for registrants who offered to satisfy their obligations, even after their boards had referred their cases to the United States Attorneys for prosecution. 32 CFR § 642.5 (Cum.Supp.1938—1943). However, from 1943 on, the regulations required denial of reopenings for knowingly delinquent registrants. 32 CFR § 642.14(b) (Supp.1943). Under the present regulations even a registrant whose delinquency is wilful may redeem himself before his local board. Surely this historical progression demonstrates that whatever may have been the punitive nature of the draft law's initial response to the delinquency problem, its present character is remedial: recalcitrant registrants are handled in civilian rather than military proceedings, and receive an opportunity to recant even where their dereliction has been deliberate.
Such an understanding of the delinquency regulations underlies recent decisions in the federal courts, e.g., Wills v. United States, 9 Cir., 384 F.2d 943, 945—946, cert. denied, 392 U.S. 908, 88 S.Ct. 2052, 20 L.Ed.2d 1366; United States v. Bruinier, D.C., 293 F.Supp. 666, including those upholding the constitutionality of the regulations, e.g., Anderson v. Hershey, 6 Cir., 410 F.2d 492, 495—496 n. 10, 498 nn. 15—16, 499, No. 449, cert. pending; cf. United States v. Branigan, D.C., 299 F.Supp. 225, 236—237; but see United States v. Eisdorfer, D.C., 299 F.Supp. 975, 984—989, app. docketed, No. 330, O.T. 1969.
6
See 32 CFR §§ 1642.4(c), 1642.14(b).
7
The Government qualifies its interpretation by implying that a local board might not abuse its discretion in refusing removal in the case of a registrant who sought in good faith to correct his breach of duty after the board had issued its order to report for induction. But that limitation has no application in the present case, where the local board improperly issued the order to report before the petitioner had a chance to bring himself into compliance. In Troutman v. United States, supra, where the Solicitor General has conceded that the local board erred in refusing to remove the petitioner's delinquency after he sought to bring himself into compliance with his Selective Service duties, nearly six months intervened between the board's declaration of delinquency that the petitioner sought to cure and its order to report for induction that gave rise to the prosecution for failure to submit to induction.
8
32 CFR §§ 1642.14, 1624.1(a), 1624.2(d), 1626.2(c)(1).
9
Cf. McKart v. United States, 395 U.S. 185, 197, 89 S.Ct. 1657, 1664, 23 L.Ed.2d 194.
10
406 F.2d 494, 496.
11
United States v. Baker, 9 Cir., 416 F.2d 202, 204—205; Yates v. United States, 1 Cir., 404 F.2d 462, 465—466, rehearing denied, 407 F.2d 50, cert. denied, 395 U.S. 925, 89 S.Ct. 1781, 23 L.Ed.2d 242; United States v. Smith, D.C., 291 F.Supp. 63, 67—68; United States v. Lybrand, D.C., 279 F.Supp. 74, 77—83.
12
See 32 CFR § 1631.7(a).
13
Cf. 32 CFR §§ 1642.12, 1642.13.
| 12
|
396 U.S. 367
90 S.Ct. 499
24 L.Ed.2d 582
The MARYLAND AND VIRGINIA ELDERSHIP OF the CHURCHES OF GOD et al.v.The CHURCH OF GOD AT SHARPSBURG, INC., et al.
No. 414.
Jan. 19, 1970.
Alfred L. Scanlan, James H. Booser and Charles O. Fisher, for appellants.
Arthur G. Lambert, for appellees.
PER CURIAM.
1
In resolving a church property dispute between appellants, representing the General Eldership, and appellees, two secessionist congregations, the Maryland Court of Appeals relied upon provisions of state statutory law governing the holding of property by religious corporations,1 upon language in the deeds conveying the properties in question to the local church corporations, upon the terms of the charters of the corporations, and upon provisions in the constitution of the General Eldership pertinent to the ownership and control of church property. 254 Md. 162, 254 A.2d 162 (1969).2 Appellants argue primarily that the statute, as applied, deprived the General Eldenship of property in violation of the First Amendment. Since, however, the Maryland court's resolution of the dispute involved no inquiry into religious doctrine, appellees' motion to dismiss is granted, and the appeal is dismissed for want of a substantial federal question. It is so ordered.
2
Appeal dismissed.
3
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, concurring.
4
I join the per curiam but add these comments. We held in Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449, 89 S.Ct. 601, 606, 21 L.Ed.2d 658 (1969), that 'First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely eccelesiastical concern. * * * (T)he (First) Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine.' It follows that a State may adopt any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.
5
Thus the States may adopt the approach of Watson v. Jones, 13 Wall. 679, 20 L.Ed. 666 (1872), and enforce the property decisions made within a church of congregational polity 'by a majority of its members or by such other local organism as it may ahve instituted for the purpose of ecclesiastical government,' id., at 724 and within a church of hierarchical polity by the highest authority that has ruled on the dispute at issue,1 unless 'express terms' in the 'instrument by which the property is held' condition the property's use or control in a specified manner.2 Under Watson civil courts do not inquire whether the relevant church governing body has power under religious law to control the property in question. Such a determination, unlike the identification of the governing body, frequently necessitates the interpretation of ambiguous religious law and usage. To permit civil courts to probe deeply enough into the allocation of power within a church so as to decide where religious law places control over the use of church property would violate the First Amendment in much the same manner as civil determination of religious doctrine.3 Similarly, where the identity of the governing body or bodies that exercise general authority within a church is a matter of substantial controversy, civil courts are not to make the inquiry into religious law and usage that would be essential to the resolution of the controversy. In other words, the use of the Watson approach is consonant with the prohibitions of the First Amendment only if the appropriate church governing body can be determined without the resolution of doctrinal questions and without extensive inquiry into religious policy.
6
'(N)eutral principles of law, developed for use in all property disputes,' Presbyterian Church, supra, 393 U.S. 440 at 449, 89 S.Ct. at 606, provide another means for resolving litigation over religious property. Under the 'formal title' doctrine, civil courts can determine ownership by studying deeds, reverter clauses, and general state corporation laws. Again, however, general principles of property law may not be relied upon if their application requires civil courts to resolve doctrinal issues. For example, provisions in deeds or in a denomination's constitution for the reversion of local church property to the general church, if conditioned upon a finding of departure from doctrine, could not be civilly enforced.4
7
A third possible approach is the passage of special statutes governing church property arrangements in a manner that precludes state interference in doctrine. Such statutes must be carefully drawn to leave control of ecclesiastical policy, as well as doctrine, to church governing bodies.5 Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 98 L.Ed. 120 (1952).
1
Md.Ann.Code, Art. 23, §§ 256—270 (1966 Repl.Vol.).
2
The Maryland court reached the same decision in May 1968. 249 Md. 650, 241 A.2d 691. This Court vacated and remanded the case 'for further consideration in light of Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church * * *.' 393 U.S. 528, 89 S.Ct. 850, 21 L.Ed.2d 750 (1969).
1
Under the Watson definition, supra, at 722—723, congregational polity exists when 'a religious congregation * * *, by the nature of its organization, is strictly independent of other ecclesiastical associations, and so far as church government is concerned, owes no fealty or obligation to any higher authority.' Hierarchical polity, on the other hand, exists when 'the religious congregation * * * is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization.'
2
Id., at 722. Except that 'express terms' cannot be enforced if enforcement is constitutionally impermissible under Presbyterian Church. Any language in Watson, supra, at 722—723, that may be read to the contrary must be disapproved. Only express conditions that may be effected without consideration of doctrine are civilly enforceable.
3
Except that civil tribunals may examine church rulings alleged to be the product of 'fraud, collusion, or arbitrariness.' Gonzalez v. Roman Catholic Archibishop, 280 U.S. 1, 16, 50 S.Ct. 5, 7, 74 L.Ed. 131 (1929).
4
Thus a State that normally resolves disputes over religious property by applying general principles of property law would have to use a different method in cases involving such provisions, perhaps that defined in Watson. By the same token, States following the Watson approach would have to find another ground for decision, perhaps the application of general property law, when identification of the relevant church governing body is impossible without immersion in doctrinal issues or extensive inquiry into church polity.
5
See, e.g., Goodson v. Northside Bible Church, 261 F.Supp. 99 (D.C.S.D.Ala. 1966), aff'd, 387 F.2d 534 (C.A.5th Cir. 1967).
| 89
|
396 U.S. 365
90 S.Ct. 498
24 L.Ed.2d 586
Camillo MOLINARO, Appellantv.NEW JERSEY.
No. 663.
Jan. 19, 1970.
Burrell Ives Humphreys, for appellant.
PER CURIAM.
1
This case comes to the Court on appeal from the New Jersey state courts, which have affirmed appellant Molinaro's conviction for abortion and conspiracy to commit abortion. We are informed by both appellant's counsel and counsel for the State that Molinaro, who was free on bail, has failed to surrender himself to state authorities. His bail has been revoked, and the State considers him a fugitive from justice. Under these circumstances we decline to adjudicate his case.
2
The Court has faced such a situation before, in Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876), and Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854 (1887). In each of those cases, which were before the Court on writs of error, the Court ordered the case removed from the docket upon receiving information that the plaintiff in error had escaped from custody. In Smith, the case was dismissed at the beginning of the following Term. See 18 Geo.Wash.L.Rev. 427, 430 (1950). In Bonahan, the case was stricken from the docket on the last day of the Term in which it arose. See also National Union of Marine Cooks and Stewards v. Arnold, 348 U.S. 37, 43, 75 S.Ct. 92, 95, 99 L.Ed. 46 (1954); Eisler v. United States, 338 U.S. 189 and 883, 69 S.Ct. 1453, 93 L.Ed. 1897 (1949); Allen v. Georgia, 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949 (1897). No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims. In the absence of specific provision to the contrary in the statute under which Molinaro appeals, 28 U.S.C. § 1257(2), we conclude, in light of the Smith and Bonahan decisions, that the Court has the authority to dismiss the appeal on this ground. The dismissal need not await the end of the Term or the expiration of a fixed period of time, but should take place at this time.
3
It is so ordered.
4
Mr. Justice DOUGLAS concurs in the result.
| 01
|
396 U.S. 398
90 S.Ct. 642
24 L.Ed.2d 610
James TURNER, Petitioner,v.UNITED STATES.
No. 190.
Argued Oct. 15, 1969.
Decided Jan. 20, 1970.
Rehearing Denied Feb. 27, 1970.
See 397 U.S. 958, 90 S.Ct. 939.
[Syllabus from pages 398-400 intentionally omitted]
Josiah E. DuBois, Jr., Camden, N.J., for petitioner.
Steven R. Rivkin, Washington, D.C., for Cleveland Burgess, as amicus curiae.
Lawrence G. Wallace, Washington, D.C., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Petitioners was found guilty by a jury on four counts charging violations of the federal narcotics laws. The issue before us is the validity of the provisions of § 2 of the Act of February 9, 1909, 35 Stat. 614, as amended, 21 U.S.C. § 174 and 26 U.S.C. § 4704(a) which authorize an inference of guilt from the fact of possession of narcotic drugs, in this case heroin and cocaine.
2
The charges arose from seizures by federal narcotics agents of two packages of nartotics. On June 1, 1967, Turner and two companions were arrested in Weehawken, New Jersey, shortly after their automobile emerged from the Lincoln Tunnel. While the companions were being searched but before Turner was searched, the arresting agents saw Turner throw a package to the tope of a nearby wall. The package was retrieved and was found to be a foil package weighing 14.68 grams and containing a mixture of cocaine hydrochloride and sugar, 5% of which was cocaine. Government agents thereafter found a tinfoil package containing heroin under the front seat of the car. This package weighed 48.25 grams and contained a mixture of heroin, cinchonal alkaloid, mannitol, and sugar, 15.2% of the mixture being heroin. Unlike the cocaine mixture, the heroin mixture was packaged within the tinfoil wrapping in small double glassing bags; in the single tinfoil package there were 11 the single of bags, each bundle containing 25 bags (a total of 275 bags). There were no federal tax stamps affixed to the package containing the cocaine or to the glassine bags or outer wrapper enclosing the heroin.
3
Petitioner was indicted on two counts relating to the heroin and two counts relating to the cocaine. The first count charged that Turner violated 21 U.S.C. § 1741 by receiving, concealing, and facilitating the transportation and concealment of heroin while knowing that the heroin had been unlawfully imported into the United States. The third count charged the same offense with regard to the cocaine seized. The second count charged that petitioner purchased, possessed, dispensed, and distributed heroin not in or from the original stamped package in violation of 26 U.S.C. § 4704(a).2 The fourth count made the same charge with regard to the cocaine.
4
At the trial, the Government presented the evidence of the seizure of the packages containing heroin and cocaine but presented no evidence on the origin of the drugs possessed by petitioner. Petitioner did not testify. With regard to Counts 1 and 3, the trial judge charged the jury in accord with the statute that the jury could infer from petitioner's unexplained possession of the heroin and cocaine that petitioner knew that the drugs he possessed had been unlawfully imported. With regard to Counts 2 and 4, the trial judge read to the jury the statutory provision making possession of drugs not in a stamped package 'prima facie evidence' that the defendant purchased, sold, dispensed, or distributed the drugs not in or from a stamped package. The jury returned a verdict of guilty on each count. Petitioner was sentenced to consecutive terms of 10 years' imprisonment on the first and third counts; a five-year term on the second count was to run concurrently with the term on the first count and a five-year term on the fourth count was to run concurrently with the term on the third count.
5
On appeal to the Court of Appeals for the Third Circuit, petitioner argued that the trial court's instructions on the inferences that the jury might draw from unexplained possession of the drugs constituted violations of his privilege against self-incrimination by penalizing him for not testifying about his possession of the drugs. The Court of Appeals rejected this claim and affirmed, finding that the inferences from possession authorized by the statutes were permissible under prior decisions of this Court and that therefore there was no impermissible penalty imposed on petitioner's exercise of his right not to testify. 404 F.2d 782 (1968). After the Court of Appeals' decision in this case, this Court held that a similar statutory presumption applicable to the possession of marihuana was unconstitutional as not having a sufficient rational basis. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). We granted a writ of certiorari in this case to reconsider in light of our decision in Leary whether the inferences authorized by the statutes here at issue are constitutionally permissible when applied to the possession of heroin and cocaine. 395 U.S. 933, 89 S.Ct. 2001, 23 L.Ed.2d 448.
6
* The statutory inference created by § 174 has been upheld by this Court with respect to opium and heroin, Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), as well as by an unbroken line of cases in the courts of appeals.3 Similarly, in a case involving morphine, this Court has rejected a constitutional challenge to the inference authorized by § 4704(g). Casey v. United States, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632 (1928).
7
Leary v. United States, supar, dealt with a statute, 21 U.S.C. § 176a, providing that possession of marihuana, unless explained to the jury's satisfaction, 'shall be deemed sufficient evidence to authorize conviction' for smuggling, receiving, concealing, buying, selling, or facilitating the transportation, concealment, or sale of the drug, knowing that it had been illegally imported. Referring to prior cases4 holding that a statute authorizing the inference of one fact from the proof of another in criminal cases must be subjected to scrutiny by the courts to prevent 'conviction upon insufficient proof,' 395 U.S., at 37, 89 S.Ct., at 1549, the Court read those cases as requiring the invalidation of the statutorily authorized inference 'unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.' 395 U.S., at 36, 89 S.Ct., at 1548. Since, judged by this standard, the inference drawn from the possession of marihuana was invalid, it was unnecessary to 'reach the question whether a criminal presumption which passes muster when so judged must also satisfy the criminal 'reasonable-doubt' standard if proof of the crime charged or an essential element thereof depends upon its use.' 395 U.S., at 36, 89 S.Ct., at 1548, n. 64.
8
We affirm Turner's convictions under §§ 174 and 4707(a) with respect to heroin (Counts 1 and 2) but reverse the convictions under these sections with respect to cocaine (Counts 3 and 4).
II
9
We turn first to the conviction for trafficking in heroin in violation of § 174. Count 1 charged Turner with (1) knowingly receiving, concealing, and transporting heroin which (2) was illegally imported and which (3) he knew was illegally imported. See Harris v. United States, 359 U.S. 19, 23, 79 S.Ct. 560, 564, 3 L.Ed.2d 597 (1959). For conviction, it was necessary for the Government to prove each of these three elements of the crime to the satisfaction of the jury beyond a reasonable doubt. The jury was so instructed and Turner was found guilty.
10
The proof was that Turner had knowingly possessed heroin; since it is illegal to import heroin or to manufacture it here,5 he was also chargeable with knowing that his heroin had an illegal source. For all practical purposes, this was the Government's case. The trial judge, noting that there was no other evidence of importation or of Turner's knowledge that his heroin had come from abroad, followed the usual practice and instructed the jury—as § 174 permits but does not require—that possession of a narcotic drug is sufficient evidence to justify conviction of the crime defined in § 174.6
11
The jury, however, even if it believed Turner had possessed heroin, was not required by the instructions to find him guilty. The jury was instructed that it was the sole judge of the facts and the inferences to be drawn therefrom, that all elements of the crime must be proved beyond a reasonable doubt, and that the inference authorized by the statute did not require the defendant to present evidence. To convict, the jury was informed, it 'must be satisfied by the totality of the evidence irrespective of the source from which it comes of the guilt of the defendant * * *.' The jury was obligated by its instructions to assess for itself the probative force of possession and the weight, if any, to be accorded the statutory inference. If it is true, as the Gvernment contends, that heroin is not produced in the United States and that any heroin possessed here must have originated abroad, the jury, based on its own store of knowledge, may well have shared this view and concluded that Turner was equally well informed. Alternatively, the jury may have been without its own information concerning the sources of heroin, and may have convicted Turner in reliance on the inference permitted by the statute, perhaps reasoning that the statute represented an official determination that heroin is not a domestic product.7
12
Whatever course the jury took, it found Turner guilty beyond a reasonable doubt and the question on review is the sufficiency of the evidence, or more precisely, the soundness of inferring guilt from proof of possession alone. Since the jury migth have relied heavily on the inferences authorized by the statute and included in the court's instructions, our primary focus is on the validity of the evidentiary rule contained in § 174.8
13
We conclude first that the jury was wholly justified in accepting the legislative judgment—if in fact that is what the jury did—that possession of heroin is equivalent to possessing imported heroin. We have no reasonable doubt that at the present time heroin is not produced in this country and that therefore the heroin Turner had was smuggled heroin.
14
Section 174 or a similar provision has been the law since 1909.9 For 60 years defendants charged under the statute have known that the section authorized an inference of guilt from possession alone, that the inference is rebuttable by evidence that their heroin originated here, and that the inference itself is subject to challenge for lack of sufficient connection between the proved fact of possession and the presumed fact that theirs was smuggled merchandise. Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 138, 55 L.Ed. 78 (1910). Given the statutory inference and absent rebuttal evidence, as far as a defendant is concerned the § 174 crime is the knowing possession of heroin. Hence, if he is to avoid conviction, he faces the urgent necessity either to rebut or to challenge successfully the possession inference by demonstrating the fact or the likelihood of a domestic source for heroin, not necessarily by his own testimony but through thetestimony of others who are familar with the traffic in drugs, whether government agents or private experts. Over the years, thousands of defendants, most of them represented by retained or appointed counsel, have been convicted under § 174. Although there was opportunity in every case to challenge or rebut the inference based on possession, we are cited to no case, and we know of none, where substantial evidence showing domestic production of heroin has come to light. Instead, the inference authorized by the section, although frequently challenged, has been upheld in this Court and in courtless cases in the district courts and courts of appeals, these cases implicitly reflecting the prevailing judicial view that heroin is not made in this country but rather is imported from abroad. If this view is erroneous and heroin is or has been produced in this country in commercial quantities, it is difficult to believe that resourceful lawyers with adversary proceedings at their disposal would not long since have discovered the truth and placed it on record.
15
This view is supported by other official sources. In 1956, after extensive hearings, the Senate Committee on the Judiciary found no evidence that heroin is produced commercially in this country.10 The President's Commission on Law Enforcement and Administration of Justice stated in 1967 that '(a)ll the heroin that reaches the American user is smuggled into the country from abroad, the Middle East being the reputed primary point of origin.'11
16
The factors underlying these judgments may be summarized as follows: First, it is plain enough that it is illegal both to import heroin into this country12 and to manufacture it here;13 heroin is contraband and is subject to seizure.14
17
Second, heroin is a derivative of opium and can be manufactured from opium or from morphine or codeine, which are also derived from opium.15 Whether heroin can be synthesized is disputed, but there is no evidence that it is being synthesized in this country.16
18
Third, opium is derived from the opium poppy which cannot be grown in this country without a license.17 No licenses are outstanding for commercial cultivation18 and there is no evidence that the opium poppy is illegally grown in the United States.19
19
Fourth, the law forbids the importation of any opium product except crude opium required for medical and scientific purposes;20 importation of crude opium for the purpose of making heroin is specifically forbidden.21 Sizable amounts of crude opium are legally imported and used to make morphine and codeine.22
20
Fifth, the flow of legally imported opium and of legally manufactured morphine and codeine is controlled too tightly to permit any significant possibility that heroin is manufactured or distributed by those legally licensed to deal in opium, morphine, or codeine.23
21
Sixth, there are recurring thefts of opium, morphine, and codeine from legal channels which could be used for the domestic, clandestine production of heroin.24 It is extremely unlikely that heroin would be made from codeine since the process involved produces an unmanageable, penetrating stench which it would be very difficult to conceal.25 Clandestine manufacture of heroin from opium and morphine would not be subject to this difficulty; but, even on the extremely unlikely assumption that all opium and morphine stolen each year is used to manufacture heroin, the heroin so produced would amount to only a tiny fraction (less than 1%) of the illicit heroin illegally imported and marketed here.26 Moreover, a clandestine laboratory manufacturing heroin has not been discovered in many years.27
22
Concededly, heroin could be made in this country, at least in tiny amounts. But the overwhelming evidence is that the heroin consumed in the United States is illegally imported. To possess heroin is to possess imported heroin. Whether judged by the more-likely-than-not standard applied in Leary v. United States, supra, or by the more exacting reasonable-doubt standard normally applicable in criminal cases, § 174 is valid insofar as it permits a jury to infer that heroin possessed in this country is a smuggled drug. If the jury relied on the § 174 instruction, it was entitled to do so.28
23
Given the fact that little if any heroin is made in the United States, Turner doubtless knew that the heroin he had came from abroad. There is no proof that he had specific knowledge of who smuggled his heroin or when or how the sumuggling was done, but we are confident that he was aware of the 'high probability' that the heroin in his possession had originated in a foreign country. Cf. Leary v. United States, supra, 395 U.S. at 45—53, 89 S.Ct. at 1553—1557.29
24
It may be that the ordinary jury would not always know that heroin illegally circulating in this country is not manufactured here. But Turner and others who sell or distribute heroin are in a class apart.30 Such people have regular contact with a drug which they know cannot be legally bought or sold; their livelihood depends on its availability; some of them have actually engaged in the smuggling process. The price, supply, and quality vary widely;31 the market fluctuates with the ability of smugglers to outwit customs and narcotics agents at home and abroad.32 The facts concerning heroin are available from many sources, frequently in the popular media. 'Common sense' (Leary v. United States, supra, 395 U.S. at 46, 89 S.Ct. at 1553) tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled,33 unless they practice a studied ignorance to which they are not entitled.34 We therefore have little doubt that the inference of knowledge from the fact of possessing smuggled heroin is a sound one; hence the court's instructions on the inference did not violate the right of Turner to be convicted only on a finding of guilt beyond a reasonable doubt and did not place impermissible pressure upon him to testify in his own defense.35 His conviction on Count 1 must be affirmed.
III
25
Turning to the same § 174 presumption with respect to cocaine, we reach a contrary result. In Erwing v. United States, 323 F.2d 674 (C.A.9th Cir. 1963)A case involving a prosecution for dealing in cocaine, two experts had testified, one for the Government and one for the defense. It was apparent from the testimony that while it is illegal to import cocaine, coca leaves, from which cocaine is prepared, are legally imported for processing into cocaine to be used for medical purposes. There was no evidence that sizable amounts of cocaine are either legally imported or smuggled. The trial court instructed on the § 174 presumption and conviction followed, but the Court of Appeals for the Ninth Circuit reversed, finding the presumption insufficiently sound to permit conviction.
26
Supplementing the facts presented in Erwing, supra, the United States now asserts that substantial amounts of cocaine are smuggled into the United States. However, much more cocaine is lawfully produced in this country than is smuggled into this country.36 The United States concedes that thefts from legal sources, though totaling considerably less than the total smuggled,37 are still sufficiently large to make the § 174 presumption invalid as applied to Turner's possession of cocaine.38 Based on our own examination of the facts now before us, we reach the same conclusion. Applying the more-likely-than-not standard employed in Leary, supra, we cannot be sufficiently sure either that the cocaine that Turner possessed came from abroad or that Turner must have known that it did. The judgment on Count 3 must be reversed.39
IV
27
26 U.S.C. § 4704(a)40 makes it unlawful to purchase, sell, dispense, or distribute a narcotic drug not in or from the original package bearing tax stamps. In this case, Count 2 charged that Turner knowingly purchased, dispensed, and distributed heroin hydrochloride not in or from the original stamped package.41 Count 4 made the identical charge with respect to cocaine. Section 4704(a) also provides that the absence of appropriate tax stamps shall be prima facie evidence of a violation by the person in whose possession the drugs are found. This provision was read by the trial judge to the jury.
28
The conviction on Count 2 with respect to heroin must be affirmed. Since the only evidence of a violation involving heroin was Turner's possession of the drug, the jury to convict must have believed this evidence. But part and parcel of the possession evidence and indivisibly linked with it, was the fact that Turner possessed some 275 glassine bags of heroin without revenue stamps attached. This evidence, without more, solidly established that Turner's heroin was packaged to supply individual demands and was in the process of being distributed, an act barred by the statute. The general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as Turner's indictment did, the verdict stands if the evidence is sufficient with respect to any one of the acts charged.42 Here the evidence proved Turner was distributing heroin. The status of the case with respect to the other allegations is irrelevant to the validity of Turner's conviction. So, too, the institution on the presumption is beside the point, since even if invalid, it was harmles error; the jury must have believed the possession evidence which in itself established a distribution barred by the statute.
29
Moreover, even if the evidence as to possession is viewed as not in itself proving that Turner was distributing heroin, his conviction must be affirmed. True, the statutory inference, which on this assumption would assume critical importance, could not be sustained insofar as it authorized an inference of dispensing or distributing (or of selling if that act had been charged), for the bare fact of possessing heroin is far short of sufficient evidence from which to infer any of these acts. Cf. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965). But the inference of purchasing in or from an unstamped package is another matter.
30
Those possessing heroin have secured it from some source. The act of possessing is itself sufficient proof that the possessor has not received it in or from the original stamped package, since it is so extremely unlikely that a package containing heroin would ever be legally stamped. All heroin found in this country is illegally imported. Those handling narcotics must register;43 registered persons do not deal in heroin and only registered importers and manufacturers are permitted to purchase stamps.44 For heroin to be found in a stamped package, stamps would have to be stolen and fixed to the heroin container and even then the stamps would immunize the transactions in the drug only from prosecution under § 4704(a); all other laws against transactions in heroin would be unaffected by the presence of the stamps. There can thus be no reasonable doubt that one who possesses heroin did not obtain it from a stamped package.
31
Even so, obtaining heroin other than in the original stamped package is not a crime under § 4704(a). Of the various ways of acquiring heroin, e.g., by gift, theft, bailment or purchase, only purchasing is proscribed by the section. Since heroin is a high-priced product,45 it would be very unreasonable to assume that any sizable number of possessors have not paid for it, one way or another. Perhaps a few acquire it by gift and some heroin undoubtedly is stolen, but most users may be presumed to purchase what they use. The same may be said for those who sell, dispense, or distribute the drug. There is no reasonable doubt that a possessor of heroin who has purchased it did not purchase the heroin in or from the original stamped package. We thus would sustain the conviction on Count 2 on the basis of a purchase not in or from a stamped package even if the evidence of packaging did not point unequivocally to the conclusion that Turner was distributing heroin not in a stamped package.
V
32
Finally, we consider the validity of the § 4704(a) presumption with respect to cocaine. The evidence was that while in the custody of the police, Turner threw away a tinfoil package containing a mixture of cocaine and sugar, which, according to the Government, is not the form in which cocaine is distributed for medicinal purposes.46 Unquestionably, possession was amply proved by the evidence, which the jury must have believed since it returned a verdict of guilty. But the evidence with respect to Turner's possession of cocaine does not so surely demonstrate that Turner was in the process of distributing this drug. Would the jury automatically and unequivocally know that Turner was distributing cocaine simply from the fact that he had 14.68 grams of a cocaine and sugar mixture? True, his possession of heroin proved that he was dealing in drugs, but having a small quantity of a cocaine and sugar mixture is itself consistent with Turner's possessing the cocaine not for sale but exclusively for his personal use.
33
Since Turner's possession of cocaine did not constitute an act of purchasing, dispensing, or distributing, the instruction of the statutory inference becomes critical. As in the case of heroin, bare possession of cocaine is an insufficient predicate for concluding that Turner was dispensing or distributing. As for the remaining possible violation, purchasing other than in or from the original stamped package, the presumption, valid as to heroin, is infirm as to cocaine.
34
While one can be confident that cocaine illegally manufactured from smuggled coca leaves or illegally imported after manufacturing would not appear in a stamped package at any time, cocaine, unlike heroin, is legally manufactured in this country;47 and we have held that sufficient amounts of cocaine are stolen from legal channels to render invalid the inference authorized in § 174 that any cocaine possessed in the United States is smuggled cocaine. Supra, at 418—419. Similar reasoning undermines the § 4704(a) presumption that a defendant's possession of unstamped cocaine is prima facie evidence that the drug was purchased not in or from the original stamped container. The thief who steals cocaine very probably obtains it in or from a stamped package. There is a reasonable possibility that Turner either stole the cocaine himself or obtained it from a stamped package in possession of the actual thief. The possibility is sufficiently real that a conviction resting on the § 4704(a) presumption cannot be deemed a conviction based on sufficient evidence. To the extent that Casey v. United States, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632 (1928), is read as giving general approval to the § 4704(a) presumption, it is necessarily limited by our decision today. Turner's conviction on Count 4 must be reversed.
35
For the reasons stated above, we affirm the judgment of conviction as to Counts 1 and 2 and reverse the judgment of conviction as to Counts 3 and 4.
36
It is so ordered.
37
Judgment affirmed as to Counts 1 and 2 and reversed as to Counts 3 and 4.
38
Mr. Justice MARSHALL, concurring in the judgment.
39
I concur in the judgment of the Court, affirming petitioner's conviction on Counts 1 and 2 and reversing his conviction on Counts 3 and 4. In so doing, however, I can agree with the majority on Count 2 only insofar as it concludes that evidence of possession of 275 glassine bags of heroin provded beyond a reasonable doubt that Turner wsa distributing heroin in violation of 26 U.S.C. § 4704(a). That same evidence does not establish that the had purchased the heroin in violation of that statute.
40
The opinion of the Court establishes convincingly the virtual certainty that the heroin in Turner's possession had been illegally imported into the country. It was thus proper with regard to Count 1 for the trial judge to instruct the jurors in effect that if they found that Turner did indeed possess the drug, they could infer that the heroin had been illegally imported and impute knowledge of that fact to Turner. However, the instruction that possession is prima facie evidence of a violation of § 4704(a) is quite different. It may be true that most persons who possess heroin have purchased it not in or from a stamped package. However, Turner himself may well have obtained the heroin involved here in any of a number of ways—for example, by stealing it from another distributor, or by manufacturing or otherwise acquiring it abroad and smuggling it into this country. Given the dangers that are inherent in any statutory presumption or inference, some of which are set out in the dissenting opinion of Mr. Justice BLACK, I cannot agree with the wholly speculative and conjectural holding that because Turner possessed heroin he must have purchased it in violation of § 4704(a).
41
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
42
Few if any decisions of this Court have done more than this one today to undercut and destroy the due process safeguards the federal Bill of Rights specifically provides to protect defendants charged with crime in United States courts. Among the accused's Bill of Rights' guarantees that the Court today weakens are:
43
1. His right not to be compelled to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury;
44
2. The right to be informed of the nature and cause of the accusation against him;
45
3. The right not to be compelled to be a witness against himself;
46
4. The right not to be deprived of life, liberty, or property without due process of law;
47
5. The right to be confronted with the witnesses against him;
48
6. The right to compulsory process for obtaining witnesses for his defense;
7. The right to counsel; and
49
8. The right to trial by an impartial jury.
50
The foregoing rights are among those that the Bill of Rights specifically spells out and that due process requires that a defendant charged with crime must be accorded. The Framers of our Constitution and Bill of Rights were too wise, too pragmatic, and too familiar with tyranny to attempt to safeguard personal liberty with broad, flexible words and phrases like 'fair trial,' 'fundamental decency,' and 'reasonableness.' Such stretchy, rubberlike terms would have left judges constitutionally free to try people charged with crime under will-o'-the-wisp standards improvised by different judges for different defendants. Neither the Due Process Clause nor any other constitutional language vests any judge with such power. Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind that brings new political administrations into temporary power. Rather, our Constitution was fashioned to perpetuate liberty and justice by marking clear, explicit, and lasting constitutional boundaries for trials. One need look no further than the language of that sacred document itself to be assured that defendants charged with crime are to be accorded due process of law—that is, they are to be tried as the Constitution and the laws passed pursuant to it prescribe and not under arbitrary procedures that a particular majority of sitting judges may see fit to label as 'fair' or 'decent.' I wholly, completely, and permanently reject the so-called 'activist' philosophy of some judges which leads them to construe our Constitution as meaning what they now think it should mean in the interest of 'fairness and decency' as they see it. This case and the Court's holding in it illustrate the dangers inherent in such an 'activist' philosophy.
51
Commercial traffic in deadly mind-, soul-, and body-destroying drugs is beyond doubt one of the greatest evils of our time. It cripples intellects, dwarfs bodies, paralyzes the progress of a substantial segment of our society, and frequently makes hopeless and sometimes violent and murderous criminals of persons of all ages who become its victims. Such consequences call for the most vigorous laws to suppress the traffic as well as the most powerful efforts to put these vigorous laws into effect. Unfortunately, grave evils such as the narcotics traffic can too easily cause threats to our basic liberties by making attractive the adoption of constitutionally forbidden shortcuts that might suppress and blot out more quickly the unpopular and dangerous conduct. That is exactly the course I think the Court is sanctioning today. I shall now set out in more detail why I believe this to be true.
52
Count 1 of the indictment against Turner, as the Court's opinion asserts, and as I agree,
53
'charged Turner with (1) knowingly receiving, concealing, and transporting heroin which (2) was illegally imported and which (3) he knew was illegally imported. * * * For conviction, it was necessary for the Government to prove each of these three elements of the crime to the satisfaction of the jury beyond a reasonable doubt.' Ante, at 405.
54
The Court in the above statement is merely reaffirming the fundamental constitutional principle that the accused is presumed innocent until he is proved guilty and that the Government, before it can secure a conviction, must demonstrate to the jury beyond a reasonable doubt each essential element of the alleged offense. This basic principle is clearly reflected in several provisions of the Bill of Rights. The Fifth and Sixth Amendments provide that as a part of due process of law a person held for criminal prosecution shall be charged on a presentment or indictment of a grand jury and that the defendant shall 'be informed of the nature and cause of the accusation.' The purpose of these requirements is obviously to compel the Government to state and define specifically what it must prove in order to convict the defendant so that he can intelligently prepare to defend himself on each of the essential elements of the charge. And to aid the accused in making his defense to the charges thus defined, the Bill of Rights provides the accused explicit guarantees—the privilege against self-incrimination, the right to counsel, the right to confront witnesses against him, and to call witnesses in his own behalf—all designed to assure that the jury will as nearly as humanly possible be able to consider fully all the evidence and determine the truth of every case.
55
Having invoked the above principles, however, the Court then proceeds to uphold Turner's conviction under Count 1 despite the fact that the prosecution introduced absolutely no evidence at trial on two of the three essential elements of the crime. To show this I think one need look no further than the Court's own opinion. The Court says:
56
'The proof was that Turner had knowingly possessed heroin; since it is illegal to import heroin or to manufacture it here, he was also chargeable with knowing that his heroin had an illegal source. For all practical purposes, this was the Government's case.' Ante, at 405.
57
'Whatever course the jury took, it found Turner guilty beyond a reasonable doubt and the question on review is the sufficiency of the evidence, or more precisely, the soundness of inferring guilt from proof of possession alone.' Ante, at 407. (Emphasis added.)
58
These passages show that the Government wholly failed to meet its burden of proof at trial on two of the elements Congress deemed essential to the crime it defined. The prosecution introduced no evidence to prove either (1) that the heroin involved was illegally imported or (2) that Turner knew the heroin was illegally imported. The evidence showed only that Turner was found in possession or heroin.
59
I do not think a reviewing court should permit to stand a conviction as wholly lacking in evidentiary support as is Turner's conviction under Count 1. Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). See also Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). When the evidence of a crime is insufficient as a matter of law, as the evidence here plainly is, a reversal of the conviction is in accord with the historic principle that 'independent trial judges and independent appellate judges have a most important place under our constitutional plan since they have power to set aside convictions.' United States ex rel. Toth v. Quarles, 350 U.S. 11, 19, 76 S.Ct. 1, 6, 100 L.Ed. 8 (1955). I would therefore reverse Turner's conviction under Count 1 without further ado. Moreover, as the majority opinion and the record in this case indicate, petitioner's convictions under Counts 3 and 4 are also based upon totally insufficient evidence, for as in Count 1 the prosecution failed to introduce any evidence to support certain essential elements of the crimes charged under these counts. They, too, should be reversed for lack of evidence.
60
The Court atempts to take the stark nakedness of the evidence against Turner on these counts and clothe it in 'presumptions' or 'inferences' authorized by 21 U.S.C. § 174 and 26 U.S.C. § 4704(a). Apparently the Court feels that the Government can be relieved of the constitutional burden of proving the essential elements of its case by a mere congressional declaration that certain evidence shall be deemed sufficient to convict. Such an idea seems to me to be totally at variance with what the Constitution requires. Congress can undoubtedly create crimes and define their elements, but it cannot under our Constitution even partially remove from the prosecution the burden of proving at trial each of the elements it has defined. The fundamental right of the defendant to be presumed innocent is swept away to precisely the extent judges and juries rely upon the statutory presumptions of guilt found in 21 U.S.C. § 174 and 26 U.S.C. § 4704(a). And each of the weapons given by the Bill of Rights to the criminal accused to defend his innocence—the right to counsel, the right to confront the witnesses against him and to subpoena witnesses in his favor, the privilege against self-incrimination—is nullified to the extent that the Government to secure a conviction does not have to introduce any evidence to support essential allegations of the indictment it has brought. It would be a senseless and stupid thing for the Constitution to take all these precautions to protect the accused from governmental abuses if the Government could by some sleight-of-hand trick with presumptions make nullities of those precautions. Such a result would completely frustrate the purpose of the Founders to establish a system of criminal justice in which the accused—even the poorest and most humble—would be able to protect himself from wrongful charges by a big and powerful government. It is little less than fantastic even to imagine that those who wrote our Constitution and the Bill of Rights intended to have a government that could create crimes of several separate and independent parts and then relieve the government of proving a portion of them. Of course, within certain broad limits it is not necessary for Congress to define a crime to include any particular set of elements. But if it does, constitutional due process requires the Government to prove each element beyond a reasonable doubt before it can convict the accused of the crime it deliberately and clearly defined. Turner's trial therefore reminds me more of Daniel being cast into the lion's den than it does of a constitutional proceeding. The Bible tells us Daniel was saved by a miracle, but when this Court says its final word in this case today, we cannot expect a miracle to save petitioner Turner.
61
I would have more hesitation in setting aside these jury verdicts for insufficiency of the evidence were I confident that the jury had been allowed to make a free and unhampered determination of guilt or innocence as the jury trial provisions of Article III of the Constitution and the Sixth Amendment require. The right to trial by jury includes the right to have the jury and the jury alone find the facts of the case, including the cruical fact of guilt or innocence. See, e.g., United States ex rel. Toth v. Quarles, 350 U.S. 11, 15—19, 76 S.Ct. 1, 4—6, 100 L.Ed. 8 (1955). This right to have the jury determine guilt or innocence necessarily includes the right to have that body decide whether the evidence presented at trial is sufficient to convict. Turner's convictions on each count were secured only after the jury had been explicitly instructed by the trial judge that proof of Turner's mere possession of heroin and cocaine 'shall be deemed sufficient evidence to authorize conviction' under 21 U.S.C. § 174, and 'shall be prima facie evidence of a violation' of 26 U.S.C. § 4704(a). App. 15—18. In my view, these instructions to the jury impermissibly interfered with the defendant's Sixth Amendment right to have the jury determine when evidence is sufficient to justify a finding of guilt beyond a reasonable doubt.
62
The instructions directing the jury to presume guilt in this case were not, of course, the trial judge's own inspiration. Congress, in enacting the statutory presumptions purporting to define and limit the quantum of evidence necessary to convict, has injected its own views and controls into the guilt-determining, fact-finding process vested by our Constitution exclusively in the Judicial Branch of our Government. The Fifth Amendment's command that cases be tried according to due process of law includes the accused's right to have his case tried by a judge and a jury in a court of law without legislative constraint or interference. These statutory presumptions clear violate the command of that Amendment. Congress can declare a crime, but it must leave the trial of that crime to the courts. See Leary v. United States, 395 U.S. 6, 55, 89 S.Ct. 1532, 1558, 23 L.Ed.2d 57 (1969), (concurring in result); and United States v. Gainey, 380 U.S. 63, 84—85, 85 S.Ct. 754, 766—767, 13 L.Ed.2d 658 (1965) (dissenting opinion).
63
It is my belief that these statutory presumptions are totally unconstitutional for yet another reason, and it is a critically important one. As discussed earlier, the Constitution requires that the defendant in a criminal case be presumed innocent and it places the burden of proving guilt squarely on the Government. Statutory presumptions such as those involved in this case rob the defendant of at least part of his presumed innocence and cast upon him the burden of proving that he is not guilty. The presumption in 21 U.S.C. § 174 makes this shift in the burden of proof explicit. It provides that possession of narcotic drugs shall be deemed sufficient evidence to justify a conviction 'unless the defendant explains the possession to the satisfaction of the jury.' However, so far as robbing the defendant of his presumption of innocence is concerned, it makes no difference whether the statute explicitly says the defendant can rebut the presumption of guilt (as does the provision of 21 U.S.C. § 174 just quoted), or whether the statute simply uses the language of 'prima facie case' and leaves implicit the ossibility of the defendant's rebutting the presumption (as does 26 U.S.C. § 4704(a)). Presumptions of both forms tend to coerce and compel the defendant into taking the witness stand in his own behalf, in clear violation of the accused's Fifth Amendment privilege against self-incrimination. This privilege has been consistently interpreted to establish the defendant's absolute right not to testify at his own trial unless he freely chooses to do so. As we observed in Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964), the privilege is fulfilled only when the person is guaranteed 'the right * * * to remain silent unless he chooses to speak in the unfettered exercise of his own will * * *.' The defendant's right to free and unfettered choice in whether or not to testify is effectively destroyed by the coercive effect of the statutory presumptions found in 21 U.S.C. § 174 and 26 U.S.C. § 4704(a). See United States v. Gainey, 380 U.S. 63, 71—74, 87, 85 S.Ct. 754, 759 761, 768 (1965) (dissenting opinions). Moreover, when the defendant declines to testify and the trial judge states to the jury as he did in this case that evidence of possession of narcotics shall be deemed sufficient to convict 'unless the defendant explains the possession to the satisfaction of the jury,' such an instruction is nothing less than judicial comment upon the defendant's failure to testify, a practice that we held violative of the Self-Incrimination Clause in Griffin v. California, 380 U.S. 609, 95 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
64
How does the Court respond to the grave constitutional problems raised by these presumptions of guilt? It says only that these presumptions are, in its view, 'reasonable' or factually supportable 'beyond a reasonable doubt.' In other words, the Court has concluded that the presumptions are 'fair' and apparently thinks that is a sufficient answer. It matters not to today's majority that the evidence that it cites to show the factual basis of the presumptions was never introduced at petitioner's trial, and that petitioner was never given an opportunity to confront before the jury the many expert witnesses now arrayed against him in the footnotes of the Court's opinion. Nor does it apparently matter to the Court that the fact-finding role it undertakes today is constitutionally vested not in this Court but in the jury. If Congress wants to make simple possession of narcotics an offense, I believe it has power to do so. But this Court has no such constitutional power. Nor has Congress the power to relieve the prosecution of the burden of proving all the facts that it as a legislative body deems crucial to the offenses it creates.
65
For the reasons stated here, I would without hesitation reverse petitioner's convictions under Counts 1, 2, 3, and 4.
1
Insofar as here relevant, this section provides:
'Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug aftet being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned * * *.
'Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.' Heroin, a derivative of opium, and cocaine, a product of coca leaves, are within the meaning of the term 'narcotic drug' as used in 21 U.S.C. § 174. See 21 U.S.C. § 171 (which refers to § 3228(g) of Int.Rev.Code of 1939, now 26 U.S.C. § 4731(a)).
2
'It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.'
The term 'narcotic drugs' is defined to include derivatives of opium and products of coca leaves. 26 U.S.C. § 4731(a).
3
Decisions of the courts of appeals accepting application of the presumption to persons found in possession of opium, morphine, or heroin include Gee Woe v. United States, 250 F. 428 (C.A.5th Cir.), cert. denied, 248 U.S. 562, 39 S.Ct. 8, 63 L.Ed. 422 (1918) (smoking opium); Charley Toy v. United States, 266 F. 326 (C.A.2d Cir.), cert. denied 254 U.S. 639, 41 S.Ct. 13, 65 L.Ed. 452 (1920) (smoking opium); Copperthwaite v. United States, 37 F.2d 846 (C.A.6th Cir. 1930) (morphine); United States v. Liss, 105 F.2d 144 (C.A.2d Cir. 1939) (morphine); Dear Check Quong v. United States, 82 U.S.App.D.C. 8, 160 F.2d 251 (1947) (unspecified narcotics); Cellino v. United States, 276 F.2d 941 (C.A.9th Cir. 1960) (heroin); Walker v. United States, 285 F.2d 52 (C.A.5th Cir. 1960) (heroin); United States v. Savage, 292 F.2d 264 (C.A.2d Cir.), cert. denied, 368 U.S. 880, 82 S.Ct. 129, 7 L.Ed.2d 80 (1961) (heroin); United States v. Gibson, 310 F.2d 79 (C.A.2d Cir. 1962) (heroin); Lucero v. United States, 311 F.2d 457 (C.A.10th Cir. 1962), cert. denied sub nom. Maestas v. United States, 372 U.S. 936, 83 S.Ct. 883, 9 L.Ed.2d 767 (1963) (heroin); Garcia v. United States, 373 F.2d 806 (C.A.10th Cir. 1967) (heroin).
4
Especially Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), and United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965).
5
See supra, nn. 12, 13.
6
Under prior decisions, principally United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754 (1965), such statutory provisions authorize but do not require the trial judge to submit the case to the jury when the Government relies on possession alone, authorize but do not require an instruction to the jury based on the statute, and authorize but do not require the jury to convict based on possession alone. The defendant is free to challenge either the inference of illegal importation or the inference of his knowledge of that fact, or both. Harris v. United States, 359 U.S. 19, 23, 79 S.Ct. 560, 564 (1959); Roviaro v. United States, 353 U.S. 53, 63, 77 S.Ct. 623, 629 (1957); Yee Hem v. United States, 268 U.S. 178, 185, 45 S.Ct. 470, 472 (1925); United States v. Peeples, 377 F.2d 205 (C.A.2d Cir. 1967); Chavez v. United States, 343 F.2d 85 (C.A.9th Cir. 1965); Griego v. United States, 298 F.2d 845 (C.A.10th Cir. 1962). Even when the defendant challenges the validity of the inference as applied to his case, the instruction on the statutory inference is normally given. See, e.g., McIntyre v. United States, 380 F.2d 746 (C.A.9th Cir.), cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 360 (1967); United States v. Peeples, supra; Vick v. United States, 113 U.S.App.D.C. 12, 304 F.2d 379 (1962); Griego v. United States, supra; Walker v. United States, 285 F.2d 52 (C.A.5th Cir. 1960); United States v. Feinberg, 123 F.2d 425 (C.A.7th Cir. 1941), cert. denied, 315 U.S. 801, 62 S.Ct. 626, 86 L.Ed. 1201 (1942). See also Erwing v. United States, 323 F.2d 674 (C.A.9th Cir. 1963); Caudillo v. United States, 253 F.2d 513 (C.A.9th Cir.), cert. denied sub nom. Romero v. United States, 357 U.S. 931, 78 S.Ct. 1375, 2 L.Ed.2d 1373 (1958).
7
In United States v. Peeples, supra, the jury, after deliberating for a time, asked the judge about the percentage of heroin in the United States that is produced illegally in this country. 'As there was no evidence in the record concerning areas of the world where heroin is produced, the judge declined to answer the * * * inquiry * * *.' 377 F.2d, at 208. The defendant was found guilty by the jury; however, the Court of Appeals reversed for reasons not directly related to the trial judge's treatment of the question about the origins of heroin possessed in this country.
8
See Leary v. United States, 395 U.S. 6, 31—32, 89 S.Ct. 1532, 1545—1546 (1969); United States v. Romano, supra, 382 U.S., at 138—139, 86 S.Ct., at 280—281 (1965); Bailey v. Alabama, 219 U.S. 219, 234—235, 31 S.Ct. 145, 148—149, 55 L.Ed. 191 (1911).
Arguably, in declaring possession to be ample evidence to convict for trafficking in illegally imported drugs, Congress in effect has made possession itself a crime as an incident to its power over foreign commerce. Cf. Ferry v. Ramsey, 277 U.S. 88, 48 S.T. 443, 72 L.Ed. 796 (1928). But the crime defined by the statute is not possession and the Court has rejected this basis for sustaining this and similar statutory inferences. Leary v. United States, supra, 395 U.S. at 34, 37, 89 S.Ct., at 1547, 1548; United States v. Romano, supra, 382 U.S. at 142—144, 86 S.Ct., at 282—284; Harris v. United States, supra, 359 U.S., at 23, 79 S.Ct., at 564 (1959); Roviaro v. United States, supra, 353 U.S., at 62—63, 77 S.Ct., at 628—629; Tot v. United States, supra, 319 U.S., at 472, 63 S.Ct., at 1247.
The Court has also refused to accept the suggestion that since the source of his drugs is perhaps more within the defendant's knowledge than the Government's, it violates no rights of the defendant to permit conviction based on possession alone when the defendant refuses to demonstrate a legal source for his drugs. Leary v. United States, supra, 395 U.S. at 32—34, 89 S.Ct., at 1546—1547. See also Tot v. United States, supra, 319 U.S. at 469—470, 63 S.Ct., at 1245—1246. The difficulties with the suggested approach are obvious: if the Government proves only possession and if possession is itself insufficient evidence of either importation or knowledge, but the statute nevertheless permits conviction where the defendant chooses not to explain, the Government is clearly relieved of its obligation to prove its case, unaided by the defendant, and the defendant is made to understand that if he fails to explain he can be convicted on less than sufficient evidence to constitute a prima facie case. See Tot v. United States, supra, 319 U.S. at 469, 63 S.Ct., at 1245.
9
The original provision, applicable to opium and derivatives, was contained in the Act of February 9, 1909, § 2, 35 Stat. 614. It was revised and extended to cover cocaine and coca leaves by the Act of May 26, 1922, § 1, 42 Stat. 596. The provision establishing the presumption was adopted without extended discussion or debate; it was consciously modeled on a provision of § 3082 of the Revised Statutes (now in 18 U.S.C. § 545), originating in the Smuggling Act of 1866, § 4, 14 Stat. 179. See H.R.Rep. No. 1878, 60th Cong., 2d Sess., 1—2 (1909); H.R.Rep. No. 2003, 60th Cong., 2d Sess., 1 (1909). See also Sandler, The Statutory Presumption in Federal Narcotics Prosecutions, 57 J.Crim.L.C. & P.S. 7 1966).
10
In 1955 the Subcommittee on Improvements in the Federal Criminal Code of the Senate Committee on the Judiciary held hearings throughout the country on the illicit narcotics traffic in this country. The subcommittee heard 345 witnesses, including government officials, law enforcement officers, and addicts and narcotics law violators; the testimony heard covers several thousand pages. Heardings on Illicit Narcotics Traffic before the Subcommittee on Improvements in the Federal Criminal Code of the Senate Committee on the Judiciary, 84th Cong., 1st Sess. (1955) (hereinafter cited as 1955 Senate Hearings). The evidence gathered in these hearings was the basis of S. 3760, 84th Cong., 2d Sess. (1956). The Senate bill contained a section (proposed § 1402, Tit. 18) very similar to § 174 but applicable exclusively to heroin; this proposed section included the § 174 presumption. Another proposed section (proposed § 1403, Tit. 18, enacted with minor changes and now codified in 21 U.S.C. § 176b) authorized special, severe penalties for the sale of unlawfully imported heroin to juveniles; this section contained a provision that possession of heroin was sufficient to prove that the heroin had been illegally imported. See S.Rep. No. 1997, 84th Cong., 2d Sess., 30 (1956) (proposed §§ 1402, 1403). The presumption that heroin found in this country has been illegally imported was based on findings of the Committee that foreign sources supply all important quantities of heroin circulating in this country, id., at 3—7; and these findings were in turn based on ample evidence presented to the Subcommittee on Improvements in the Federal Criminal Code. See 1955 Senate Hearings 90 (testimony of Commissioner Anslinger of the Federal Bureau of Narcotics).
11
President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Narcotics and Drug Abuse 3 (1967) (hereinafter cited as Task Force Report). See also U.N. Commission on Narcotic Drugs, Report of the Eighteenth Session, U.N.Doc. E/CN.7/455, p. 15 (1963); S. Jeffee, Narcotics An American Plan 12—14, 63—71 (1966).
12
Title 21 U.S.C. § 173 makes it unlawful to import any narcotic drug except amounts of crude opium and coca leaves necessary to provide for medical and legitimate uses. In addition, for more than 45 years, it has been unlawful to import opium for the purpose of manufacturing heroin. Act of June 7, 1924, 43 Stat. 657 (now codified in 21 U.S.C. § 173). Though 21 U.S.C. § 513 permits the Secretary of the Treasury to authorize the importation of any narcotic drug for delivery to governmental officials or to any person licensed to use the drugs for scientific purposes, the Secretary has never authorized the importation of any heroin under this provision. Brief for the United States 18 n. 12.
13
The Narcotics Manufacturing Act of 1960, 74 Stat. 55, 21 U.S.C. §§ 501—517, prohibits the manufacture of narcotic drugs except under a license issued by the Secretary of the Treasury for the production of an approved drug. Since heroin is not considered useful for medical purposes, no production for medical use has been authorized; heroin used in scientific experimentation is supplied entirely from quantities seized by law enforcement officials. Brief for the United States, 17 n. 10.
14
21 U.S.C. § 173. See S.Rep. No. 1997, 84th Cong., 2d Sess., 7 (1956). In 1956, all heroin then lawfully outstanding was required to be surrendered. Act of July 18, 1956, § 201, 70 Stat. 572 (codified as 18 U.S.C. § 1402).
15
The clandestine manufacture of heroin from opium or morphine is said in one report to be 'child's play.' Vaille & Bailleul, Clandestine Heroin Laboratories, 5 U.N. Bulletin on Narcotics, No. 4, Oct.Dec. 1953, pp. 1. 6. The possibility of producing heroin from codeine (with a yield of about 22%) was first reported in Rapoport, Lovell, & Tolbert, The Preparation ofMorphine-N-methyl-C14, 73 J.Am.Chem.Soc. 5900 (1951), and was verified in Gates & Tschudi, The Synthesis of Morphine, 74 J.Am.Chem.Soc. 1109 (1952). The Bureau of Narcotics and Dangerous Drugs reports that conversion of codeine into morphine (from which heroin may be produced) is relatively simple and requires inexpensive equipment but produces an extremely noxious and penetrating odor which would make concealment of such conversion operations virtually impossible. Supplemental Memorandum for the United States 2.
16
The Bureau of Narcotics and Dangerous Drugs reports that it knows of no case in which synthetic heroin has been produced; it reports that experiments indicate that production of synthetic morphine would be extremely difficult. Brief the United States 20 n. 17. Amicus Burgess suggests the possibility of synthetic production of heroin but cites in support only a case involving an unsuccessful attempt to synthesize morphine, United States v. Liss, 137 F.2d 995 (C.A.2d Cir.), cert. denied, 320 U.S. 773, 64 S.Ct. 78, 88 L.Ed. 462 (1943). Brief for Cleveland Burgess as Amicus Curiae 11.
17
Opium Poppy Control Act of 1942, 56 Stat. 1045, 21 U.S.C. §§ 188-188n.
18
The regulations provide that a license to produce opium poppies shall be issued only when it is determined by the Director of the Bureau of Narcotics and Dangerous Drugs that medical and scientific needs of the country cannot be met by the importation of crude opium. 21 CFR § 303.5(a). Imports of crude opium have been sufficient to meet all domestic medical and scientific needs and the United States is therefore not an opium-producing country. Blum & Braunstein, Mind-Altering Drugs and Dangerous Behavior; Narcotics, in Task Force Report App. A—2, at 40. See also Brief for the United States 23 n. 25.
19
The most recent reported case involving a prosecution for unlawful production of opium poppies is Az Din v. United States, 232 F.2d 283 (C.A.9th Cir.), cert. denied, 352 U.S. 827, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). Unlike the case of marihuana, see Leary, supra, 395 U.S. at 42—43, 89 S.Ct. at 1551—1552, there are no reports of the discovery in this country of fields of opium poppies requiring destruction. This fact together with the facts that opium poppies are hard to conceal because of their color and that the harvesting of opium is only economically feasible in countries with an abundant supply of cheap labor justifies a conclusion that little if any opium poppy production is going on in this country. See Brief for the United States, 21—23.
20
21 U.S.C. § 173.
21
Ibid. See supra, n. 12.
22
In 1966, the United States imported 173,951 kilograms of crude opium; in the same year, 715 Kilograms of morphine and 30,662 kilgrams of codeine were produced from imported opium. U.S. Treasury Department, Bureau of Narcotics, Traffic in Opium and Other Dangerous Drugs, Report for the Year Ended December 31, 1967, p. 41 (1968).
23
The manufacture of narcotic drugs is very carefully controlled and monitored under the Narcotics Manufacturing Act of 1960, 74 Stat. 55, 21 U.S.C. §§ 501—517. The subsequent distribution of narcotic drugs is controlled and monitored under the laws enforcing the taxes imposed on those dealing in narcotic drugs. 26 U.S.C. §§ 4701—4707, 4721—4736, 4771—4776.
24
Because of the controls and reporting requirements applicable to those handling narcotic drugs, see supra, n. 23, the Bureau of Narcotics and Dangerous Drugs can compile accurate figures on the quantities of narcotic drugs stolen from legitimate channels. From 1964 through 1968, total theft of medical opium per year ranged from 9.6 kilograms to 12.9 kilograms; thefts of morphine for the same period ranged from 6.7 kilograms to 10.2 kilograms per year; annual thefts of codeine for the same years ran between 30.3 kilograms and 81.8 kilograms. Brief for the United States 44. On the possibility of clandestine manufacture of heroin from opium, morphine, and codeine, see supra, n. 15.
25
See supra, n. 15.
26
Using figures on the number of known addicts and the average daily dose, federal agencies estimate that roughly 1,500 kilograms of heroin are smuggled into the United States each year. Task Force Report 6. The Bureau of Narcotics and Dangerous Drugs estimates that no more than about one kilogram of heroin could have been produced if all the opium stolen in any recent year had been clandestinely converted into heroin. The largest total amount of morphine stolen in a recent year would have yielded about 10.2 kilograms of heroin if it had all been converted into heroin. Brief for the United States 19 n. 15.
If it were assumed that all stolen codeine is converted into heroin, the figure for the possible clandestine domestic production of heroin would be well over 1% of the total heroin marketed in this country. Codeine can be made to yield about 22% heroin. See supra, n. 15. Applying this conversion rate to the largest annual amount of codeine stolen in the last five years (81.8 kilograms, see supra, n. 24) would give a figure of about 18 kilograms for the maximum amount of heroin that might have been produced from stolen codeine in any recent year. On the assumption that all stolen opium, morphine, and codeine is converted into heroin, the amount of heroin domestically produced from stolen opium and its derivatives would amount to no more than about 30 kilograms, only about 2% of the 1,500 kilograms of heroin estimated to be illegally imported each year. Whether such a percentage, rather than the figure of less than 1% obtained by excluding codeine from consideration, would alter our conclusions need not be discussed, for the fact that the conversion process creates a stench makes it unrealistic to assume that stolen codeine is clandestinely converted into heroin. See supra, n. 15.
27
Statement by the United States Delegation on the Illicit Traffic to the Twenty-third Session of the U.N. Commission on Narcotic Drugs, January 1969, U.N. Doc. SD/E/CN.7/131 Annex A, p. 3. One respected work on narcotics makes the claim, without further elaboration, that 'recent information' leads to the conclusion that some illicit laboratories used for the conversion of opium or morphine into heroin are located in the United States. D. Maurer & V. Vogel, Narcotics and Narcotic Addiction 64 (3d ed. 1967). However, the same statement, without elaboration, appears in the 1954 edition of the work, D. Maurer & V. Vogel, Narcotics and Narcotic Addiction 50, and this fact together with the absence of any cited basis for the claim and the lack of supporting evidence elsewhere in the literature leads us to believe that the statement, if it was ever correct, is no longer accurate.
28
It is, of course, possible for the situation to change either through the development of a simple method of synthesizing heroin or through the creation of substantial clandestine operations utilizing opium or morphine which has been illegally imported or which, though legally here, has been stolen.
29
The Court in Leary, 395 U.S., at 46, 89 S.Ct. at 1553 n. 93, employed the definition of 'knowledge' in Model Penal Code § 2.02(7) (proposed official draft, 1962):
'When knowledge of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless be actually believes that it does not exist.'
30
Though the federal narcotics laws are in terms applicable to most possessors of illicit drugs regardless of whether the possessor is a user or a dealer, the enforcement efforts of the Bureau of Narcotics and Dangerous Drugs are directed to the development of evidence against 'major sources of supply, wholesale peddlers, interstate and international violators.' Hearings on the Narcotic Rehabilitation Act of 1966 before a Special Subcommittee of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., 448 (1966) (hereinafter cited as 1966 Senate Hearings) (testimony of Commissioner Giordano of the Federal Bureau of Narcotics). The undisputed evidence that Turner possessed 275 glassine bags of heroin clearly shows that Turner was more than a mere user of heroin and was engaged in the distribution of the drug.
31
See Task Force Report 3. See also 1955 Senate Hearings 3889, 4219.
32
For example, a seizure of a large amount of pure heroin in Montreal, Canada, caused a 'panic' in New York City that lasted almost three months. 1966 Senate Hearings 87.
33
Such a conclusion is also justified with regard to those users and addicts who frequently purchase supplies of heroin on the retail market. Such persons are of course aware of the variations in price and availability of the drug and of the fact that the success of anti-smuggling efforts of law enforcement officials affects the supply of heroin on the market. See supra, this page and nn. 31, 32.
34
See Griego v. United States, 298 F.2d 845, 849 (C.A.10th Cir. 1962).
35
'The same situation might present itself if there were no statutory presumption and a prima facie case of concealment with knowledge of unlawful importation were made by the evidence. The necessity of an explanation by the accused would be quite as compelling in that case as in this; but the constraint upon him to give testimony would arise there as it arises here, simply from the force of circumstances and not from any form of compulsion forbidden by the Constitution.' Yee Hem v. United States, 268 U.S. 178, 185, 45 S.Ct. 470, 472, 69 L.Ed. 904 (1925).
36
In 1966, 609 kilograms of cocaine were produced. U.S. Treasury Department, Bureau of Narcotics, Traffic in Opium and Other Dangerous Drugs, Report for the Year Ended December 31, 1967, p. 42 (1968). Annual seizures of cocaine at ports and borders for the years 1963 through 1967 ranged from 1.44 kilograms to 17.71 kilograms; the Bureau of Narcotics and Dangerous Drugs estimates that no more than about 10% of cocaine that is attempted to be smuggled into the United States is discovered and seized at ports and borders. Brief for the United States 31 n. 31.
37
From 1963 through 1968, the amount of cocaine stolen from legal channels annually ranged from 2.8 kilograms to 6.2 kilograms. Brief for the United States 44.
38
Brief for the United States 28—32.
39
Since the illegal possessor's only source of domestic cocaine is that which is stolen, the United States urges that the § 174 presumption may be valid with respect to sellers found with much larger amounts of cocaine than Turner had, amounts which, it is claimed, are too large to have been removed from legal channels and which must therefore have been smuggled. Brief for the United States 31. We find it unnecessary to deal with these problems and postpone their consideration to another day, hopefully until after the facts have been presented in an adversary context in the district courts.
40
See supra, n. 2.
41
The indictment charged Turner with possessing heroin as well as purchasing, dispensing, and distributing the drug. The instructions to the jury made the same error. No objection was made in the trial court and the issue was not raised in the Court of Appeals or in this Court. The error was harmless in any event since the possession evidence proved that Turner was distributing heroin. See infra, at this page.
42
Crain v. United States, 162 U.S. 625, 634—636, 16 S.Ct. 952, 954—955, 40 L.Ed. 1097 (1896); Smith v. United States, 243 F.2d 385, 389—390 (C.A.5th Cir. 1956); Price v. United States, 150 F.2d 283 (C.A.5th Cir. 1945), cert. denied, 326 U.S. 789, 66 S.Ct. 473, 90 L.Ed. 479 (1946). See also Claassen v. United States, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966 (1891); The Confiscation Cases, 20 Wall. 92, 104, 22 L.Ed. 320 (1874).
43
26 U.S.C. §§ 4721, 4722. See also 26 U.S.C. § 4702(a)(2)(C).
44
26 CFR §§ 151.130, 151.41.
45
Heroin is reported to sell for around § per 'bag' or packet. Task Force Report 3.
46
Brief for the United States 33.
47
See supra, n. 36.
| 34
|
396 U.S. 375
90 S.Ct. 616
24 L.Ed.2d 593
Elmer E. MILLS and Louis Susman, Petitioners,v.The ELECTRIC AUTO—LITE COMPANY et al.
No. 64.
Argued Nov. 13, 1969.
Decided Jan. 20, 1970.
[Syllabus from pages 375-376 intentionally omitted]
Arnold I. Shure, Chicago, Ill., for petitioners. Robert A. Sprecher, Chicago, Edward N. Gadsby, Boston, Mozart G. Ratner, Washington, D.C., on the brief.
Albert E. Jenner, Jr., Chicago, Ill., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case requires us to consider a basic aspect of the implied private right of action for violation of § 14(a) of the Securities Exchange Act of 1934,1 recognized by this Court in J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). As in Borak the asserted wrong is that a corporate merger was accomplished through the use of a proxy statement that was materially false or misleading. The question with which we deal is what causal relationship must be shown between such a statement and the merger to establish a cause of action based on the violation of the Act.
2
* Petitioners were shareholders of the Electric Auto-Lite Company until 1963, when it was merged into Mergenthaler Linotype Company. They brought suit on the day before the shareholders' meeting at which the vote was to take place on the merger against Auto-Lite, Mergenthaler, and a third company, American Manufacturing Company, Inc. The complaint sought an injunction against the voting by Auto-Lite's management of all proxies obtained by means of an allegedly misleading proxy solicitation; however, it did not seek a temporary restraining order, and the voting went ahead as scheduled the following day. Several months later petitioners filed an amended complaint, seeking to have the merger set aside and to obtain such other relief as might be proper.
3
In Count II of the amended complaint, which is the only count before us,2 petitioners predicated jurisdiction on § 27 of the 1934 Act, 15 U.S.C. § 78aa. They alleged that the proxy statement sent out by the Auto-Lite management to solicit shareholders' votes in favor of the merger was misleading, in violation of § 14(a) of the Act and SEC Rule 14a—9 thereunder. (17 CFR § 240.14a 9.) Petitioners recited that before the merger Mergenthaler owned over 50% of the outstanding shares of Auto-Lite common stock, and had been in control of Auto-Lite for two years. American Manufacturing in turn owned about one-third of the outstanding shares of Mergenthaler, and for two years had been in voting control of Mergenthaler and, through it, of Auto-Lite. Petitioners charged that in light of these circumstances the proxy statement was misleading in that it told Auto-Lite shareholders that their board of directors recommended approval of the merger without also informing them that all 11 of Auto-Lite's directors were nominees of Mergenthaler and were under the 'control and domination of Mergenthaler.' Petitioners asserted the right to complain of this alleged violation both derivatively on behalf of Auto-Lite and as representatives of the class of all its minority shareholders.
4
On petitioners' motion for summary judgment with respect to Count II, the District Court for the Northern District of Illinois ruled as a matter of law that the claimed defect in the proxy statement was, in light of the circumstances in which the statement was made, a material omission. The District Court concluded, from its reading of the Borak opinion, that it had to hold a hearing on the issue whether there was 'a causal connection between the finding that there has been a violation of the disclosure requirements of § 14(a) and the alleged injury to the plaintiffs' before it could consider what remedies would be appropriate. (Unreported opinion dated February 14, 1966.)
5
After holding such a hearing, the court found that under the terms of the merger agreement, an affirmative vote of two-thirds of the Auto-Lite shares was required for approval of the merger, and that the respondent companies owned and controlled about 54% of the outstanding shares. Therefore, to obtain authorization of the merger, respondents had to secure the approval of a substantial number of the minority shareholders. At the stockholders' meeting, approximately 950,000 shares, out of 1,160,000 shares outstanding, were voted in favor of the merger. This included 317,000 votes obtained by proxy from the minority shareholders, votes that were 'necessary and indispensable to the approval of the merger.' The District Court concluded that a causal relationship had thus been shown, and it granted an interlocutory judgment in favor of petitioners on the issue of liability, referring the case to a master for consideration of appropriate relief. (Unreported findings and conclusions dated Sept. 26, 1967; opinion reported at 281 F.Supp. 826 (1967)).
6
The District Court made the certification required by 28 U.S.C. § 1292(b), and respondents took an interlocutory appeal to the Court of Appeals for the Seventh Circuit.3 That court affirmed the District Court's conclusion that the proxy statement was materially deficient, but reversed on the question of causation. The court acknowledged that, if an injunction had been sought a sufficient time before the stockholders' meeting, 'corrective measures would have been appropriate.' 403 F.2d 429, 435 (1968). However, since this suit was brought too late for preventive action, the courts had to determine 'whether the misleading statement and omission caused the submission of sufficient proxies,' as a prerequisite to a determination of liability under the Act. If the respondents could show, 'by a preponderance of probabilities, that the merger would have received a sufficient vote even if the proxy statement had not been misleading in the respect found,' petitioners would be entitled to no relief of any kind. Id., at 436.
7
The Court of Appeals acknowledged that this test corresponds to the common-law fraud test of whether the injured party relied on the misrepresentation. However, rightly concluding that '(r)eliance by thousands of individuals, as here, can scarcely be inquired into' (id., at 436 n. 10), the court ruled that the issue was to be determined by proof of the fairness of the terms of the merger. If respondents could show that the merger had merit and was fair to the minority shareholders, the trial court would be justified in concluding that a sufficient number of shareholders would have approved the merger had there been no deficiency in the proxy statement. In that case respondents would be entitled to a judgment in their favor.
8
Claiming that the Court of Appeals has construed this Court's decision in Borak in a manner that frustrates the statute's policy of enforcement through private litigation, the petitioners then sought review in this Court. We granted certiorari, 394 U.S. 971, 89 S.Ct. 1470, 22 L.Ed.2d 752 (1969), believing that resolution of this basic issue should be made at this stage of the litigation and not postponed until after a trial under the Court of Appeals' decision.4
II
9
As we stressed in Borak, § 14(a) stemmed from a congressional belief that '(f) air corporate suffrage is an important right that should attach to every equity security bought on a public exchange.' H.R.Rep.No.1383, 73d Cong., 2d Sess., 13. The provision was intended to promote 'the free exercise of the voting rights of stockholders' by ensuring that proxies would be solicited with 'explanation to the stockholder of the real nature of the questions for which authority to cast his vote is sought.' Id. at 14; S.Rep.No.792, 73d Cong., 2d Sess., 12; see 377 U.S., at 431, 84 S.Ct. 1555, 1559. The decision below, by permitting all liability to be foreclosed on the basis of a finding that the merger was fair, would allow the stockholders to be by-passed, at least where the only legal challenge to the merger is a suit for retrospective relief after the meeting has been held. A judicial appraisal of the merger's merits could be substituted for the actual and informed vote of the stockholders.
10
The result would be to insulate from private redress an entire category of proxy violations—those relating to matters other than the terms of the merger. Even outrageous misrepresentations in a proxy solicitation, if they did not relate to the terms of the transaction, would give rise to no cause of action under § 14(a). Particularly if carried over to enforcement actions by the Securities and Exchange Commission itself, such a result would subvert the congressional purpose of ensuring full and fair disclosure to shareholders.
11
Further, recognition of the fairness of the merger as a complete defense would confront small shareholders with an additional obstacle to making a successful challenge to a proposal recommended through a defective proxy statement. The risk that they would be unable to rebut the corporation's evidence of the fairness of the proposal, and thus to establish their cause of action, would be bound to discourage such shareholders from the private enforcement of the proxy rules that 'provides a necessary supplement to Commission action.' J. I. Case Co. v. Borak, 377 U.S., at 432, 84 S.Ct. at 1560.5
12
Such a frustration of the congressional policy is not required by anything in the wording of the statute or in our opinion in the Borak case. Section 14(a) declares it 'unlawful' to solicit proxies in contravention of Commission rules, and SEC Rule 14a—9 prohibits solicitations 'containing any statement which * * * is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading * * *.' Use of a solicitation that is materially misleading is itself a violation of law, as the Court of Appeals recognized in stating that injunctive relief would be available to remedy such a defect if sought prior to the stockholders' meeting. In Borak, which came to this Court on a dismissal of the complaint, the Court limited its inquiry to whether a violation of § 14(a) gives rise to 'a federal cause of action for rescission or damages,' 377 U.S., at 428, 84 S.Ct. at 1558. Referring to the argument made by petitioners there 'that the merger can be dissolved only if it was fraudulent or non-beneficial, issues upon which the proxy material would not bear,' the Court stated: 'But the causal relationship of the proxy material and the merger are questions of fact to be resolved at trial, not here. We therefore do not discuss this point further.' Id., at 431, 84 S.Ct. at 1559. In the present case there has been a hearing specifically directed to the causation problem. The question before the Court is whether the facts found on the basis of that hearing are sufficient in law to establish petitioners' cause of action, and we conclude that they are.
13
Where the misstatement or omission in a proxy statement has been shown to be 'material,' as it was found to be here, that determination itself indubitably embodies a conclusion that the defect was of such a character that it might have been considered important by a reasonable shareholder who was in the process of deciding how to vote.6 This requirement that the defect have a significant propensity to affect the voting process is found in the express terms of Rule 14a—9, and it adequately serves the purpose of ensuring that a cause of action cannot be established by proof of a defect so trivial, or so unrelated to the transaction for which approval is sought, that correction of the defect or imposition of liability would not further the interests protected by § 14(a).
14
There is no need to supplement this requirement, as did the Court of Appeals, with a requirement of proof of whether the defect actually had a decisive effect on the voting. Where there has been a finding of materiality, a shareholder has made a sufficient showing of causal relationship between the violation and the injury for which he seeks redress if, as here, he proves that the proxy solicitation itself, rather than the particular defect in the solicitation materials, was an essential link in the accomplishment of the transaction. This objective test will avoid the impracticalities of determining how many votes were affected, and, by resolving doubts in favor of those the statute is designed to protect, will effectuate the congressional policy of ensuring that the shareholders are able to make an informed choice when they are consulted on corporate transactions. Cf. Union Pac. R. Co. v. Chicago & N.W.R. Co., 226 F.Supp. 400, 411 (D.C.N.D.Ill.1964); 2 L. Loss, Securities Regulation 962 n. 411 (2d ed. 1961); 5 id., at 2929—2930 (Supp.1969).7
III
15
Our conclusion that petitioners have established their case by showing that proxies necessary to approval of the merger were obtained by means of a materially misleading solicitation implies nothing about the form of relief to which they may be entitled. We held in Borak that upon finding a violation the courts were 'to be alert to provide such remedies as are necessary to make effective the congressional purpose,' noting specifically that such remedies are not to be limited to prospective relief. 377 U.S., at 433, 434, 84 S.Ct. at 1560. In devising retrospective relief for violation of the proxy rules, the federal courts should consider the same factors that would govern the relief granted for any similar illegality or fraud. One important factor may be the fairness of the terms of the merger. Possible forms of relief will include setting aside the merger or granting other equitable relief, but, as the Court of Appeals below noted, nothing in the statutory policy 'requires the court to unscramble a corporate transaction merely because a violation occurred.' 403 F.2d, at 436. In selecting a remedy the lower courts should exercise "the sound discretion which guides the determinations of courts of equity," keeping in mind the role of equity as 'the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.' Hecht Co. v. Bowles, 321 U.S. 321, 329—330, 64 S.Ct. 587, 591—592, 88 L.Ed. 754 (1944), quoting from Meredith v. Winter Haven, 320 U.S. 228, 235, 64 S.Ct. 7, 11, 88 L.Ed. 9 (1943).
16
We do not read § 29(b) of the Act,8 which declares contracts made in violation of the Act or a rule thereunder 'void * * * as regards the rights of' the violator and knowing successors in interest, as requiring that the merger be set aside simply because the merger agreement is a 'void' contract. This language establishes that the guilty party is precluded from enforcing the contract against an unwilling innocent party,9 but it does not compel the conclusion that the contract is a nullity, creating no enforceable rights even in a party innocent of the violation. The lower federal courts have read § 29(b), which has counterparts in the Holding Company Act, the Investment Company Act, and the Investment Advisers Act,10 as rendering the contract merely voidable at the option of the innocent party. See, e.g., Greater Iowa Corp. v. McLendon, 378 F.2d 783, 792 (C.A.8th Cir. 1967); Royal Air Properties, Inc. v. Smith, 312 F.2d 210, 213 (C.A.9th Cir. 1962); Bankers Life & Cas. Co. v. Bellanca Corp., 288 F.2d 784, 787 (C.A.7th Cir. 1961); Kaminsky v. Abrams, 281 F.Supp. 501, 507 (D.C.S.D.N.Y.1968); Maher v. J. R. Williston & Beane, Inc., 280 F.Supp. 133, 138—139 (D.C.S.D.N.Y.1967); cf. Green v. Brown, 276 F.Supp. 753, 757 (D.C.S.D.N.Y.1967), remanded on other grounds, 398 F.2d 1006 (C.A.2d Cir. 1968) (Investment Company Act). See also 5 Loss, supra, at 2925—2926 (Supp.1969); 6 id., at 3866. This interpretation is eminently sensible. The interests of the victim are sufficiently protected by giving him the right to rescind; to regard the contract as void where he has not invoked that right would only create the possibility of hardships to him or others without necessarily advancing the statutory policy of disclosure.
17
The United States, as amicus curiae, points out that as representatives of the minority shareholders, petitioners are not parties to the merger agreement and thus do not enjoy a statutory right under § 29(b) to set it aside.11 Furthermore, while they do have a derivative right to invoke Auto-Lite's status as a party to the agreement, a determination of what relief should be granted in Auto-Lite's name must hinge on whether setting aside the merger would be in the best interests of the shareholders as a whole. In short, in the context of a suit such as this one, § 29(b) leaves the matter of relief where it would be under Borak without specific statutory language—the merger should be set aside only if a court of equity concludes, from all the circumstances, that it would be equitable to do so. Cf. SEC v. National Securities, Inc., 393 U.S. 453, 456, 463—464, 89 S.Ct. 564, 566, 570, 21 L.Ed.2d 668 (1969).
18
Monetary relief will, of course, also be a possibility. Where the defect in the proxy solicitation relates to the specific terms of the merger, the district court might appropriately order an accounting to ensure that the shareholders receive the value that was represented as coming to them. On the other hand, where, as here, the misleading aspect of the solicitation did not relate to terms of the merger, monetary relief might be afforded to the shareholders only if the merger resulted in a reduction of the earnings or earnings potential of their holdings. In short, damages should be recoverable only to the extent that they can be shown. If commingling of the assets and operations of the merged companies makes it impossible to establish direct injury from the merger, relief might be predicated on a determination of the fairness of the terms of the merger at the time it was approved. These questions, of course, are for decision in the first instance by the District Court on remand, and our singling out of some of the possibilities is not intended to exclude others.
IV
19
Although the question of relief must await further proceedings in the District Court, our conclusion that petitioners have established their cause of action indicates that the Court of Appeals should have affirmed the partial summary judgment on the issue of liability.12 The result would have been not only that respondents, rather than petitioners, would have borne the costs of the appeal, but also, we think, that petitioners would have been entitled to an interim award of litigation expenses and reasonable attorneys' fees. Cf. Highway Truck Drivers and Helpers Local 107 v. Cohen, 220 F.Supp. 735 (D.C.E.D.Pa.1963). We agree with the position taken by petitioners, and by the United States as amicus, that petitioners, who have established a violation of the securities laws by their corporation and its officials, should be reimbursed by the corporation or its survivor for the costs of establishing the violation.13
20
The absence of express statutory authorization for an award of attorneys' fees in a suit under § 14(a) does not preclude such an award in cases of this type. In a suit by stockholders to recover short-swing profits for their corporation under § 16(b) of the 1934 Act, the Court of Appeals for the Second Circuit has awarded attorneys' fees despite the lack of any provision for them in § 16(b), 'on the theory that the corporation which has received the benefit of the attorney's services should pay the reasonable value thereof.' Smolowe v. Delendo Corp., 136 F.2d 231, 241, 148 A.L.R. 300 (C.A.2d Cir. 1943). The court held that Congress' inclusion in §§ 9(e) and 18(a) of the Act of express provisions for recovery of attorneys' fees in certain other types of suits14 'does not impinge (upon) the result we reach in the absence of statute, for those sections merely enforce an additional penalty against the wrongdoer.' Ibid.
21
We agree with the Second Circuit that the specific provisions in §§ 9(e) and 18(a) should not be read as denying to the courts the power to award counsel fees in suits under other sections of the Act when circumstances make such an award appropriate, any more than the express creation by those sections of private liabilities negates the possibility of an implied right of action under § 14(a). The remedial provisions of the 1934 Act are far different from those of the Lanham Act, § 35, 60 Stat. 439, 15 U.S.C. § 1117, which have been held to preclude an award of attorneys' fees in a suit for trademark infringement. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967). Since Congress in the Lanham Act had 'meticulously detailed the remedies available to a plaintiff who proves that his valid trademark has been infringed,' the Court in Fleischmann concluded that the express remedial provisions were intended 'to mark the boundaries of the power to award monetary relief in cases arising under the Act.' 386 U.S., at 719, 721, 87 S.Ct. at 1408, 1409. By contrast we cannot fairly infer from the Securities Exchange Act of 1934 a purpose to circumscribe the courts' power to grant appropriate remedies. Cf. Bakery Workers Union v. Ratner, 118 U.S.App.D.C. 269, 274—275, 335 F.2d 691, 696—697 (1964). The Act makes no provision for private recovery for a violation of § 14(a) other than the declaration of 'voidness' in § 29(b), leaving the courts with the task, faced by this Court in Borak, of deciding whether a private right of action should be implied. The courts must similarly determine whether the special circumstances exist that would justify an award of attorneys' fees, including reasonable expenses of litigation other than statutory costs.15
22
While the general American rule is that attorneys' fees are not ordinarily recoverable as costs, both the courts and Congress have developed exceptions to this rule for situations in which overriding considerations indicate the need for such a recovery.16 A primary judge-created exception has been to award expenses where a plaintiff has successfully maintained a suit, usually on behalf of a class, that benefits a group of others in the same manner as himself. See Fleischmann Corp. v. Maier Brewing Co., 386 U.S., at 718—719, 87 S.Ct. at 1407. To allow the others to obtain full benefit from the plaintiff's efforts without contributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff's expense. This suit presents such a situation. The dissemination of misleading proxy solicitations was a 'deceit practiced on the stockholders as a group,' J. I. Case Co. v. Borak, 377 U.S., at 432, 84 S.Ct. at 1560, and the expenses of petitioners' lawsuit have been incurred for the benefit of the corporation and the other shareholders.
23
The fact that this suit has not yet produced, and may never produce, a monetary recovery from which the fees could be paid does not preclude an award based on this rationale. Although the earliest cases recognizing a right to reimbursement involved litigation that had produced or preserved a 'common fund' for the benefit of a group, nothing in these cases indicates that the suit must actually bring money into the court as a prerequisite to the court's power to order reimbursement of expenses.17 '(T)he foundation for the historic practice of granting reimbursement for the costs of litigation other than the conventional taxable costs is part of the original authority of the chancellor to do equity in a particular situation.' Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 780, 83 L.Ed. 1184 (1939). This Court in Sprague upheld the District Court's power to grant reimbursement for a plaintiff's litigation expenses even though she had sued only on her own behalf and not for a class, because her success would have a stare decisis effect entitling others to recover out of specific assets of the same defendant. Although those others were not parties before the court, they could be forced to contribute to the costs of the suit by an order reimbursing the plaintiff from the defendant's assets out of which their recoveries later would have to come. The Court observed that 'the absence of an avowed class suit or the creation of a fund, as it were, through stare decisis rather than through a decree—hardly touch(es) the power of equity in doing justice as between a party and the beneficiaries of his litigation.' Id., at 167, 59 S.Ct. at 780.
24
Other cases have departed further from the traditional metes and bounds of the doctrine, to permit reimbursement in cases where the litigation has conferred a substantial benefit on the members of an ascertainable class, and where the court's jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them. This development has been most pronounced, in shareholders' derivative actions, where the courts increasingly have recognized that the expenses incurred by one shareholder in the vindication of a corporate right of action can be spread among all shareholders through an award against the corporation, regardless of whether an actual money recovery has been obtained in the corporation's favor.18 For example, awards have been sustained in suits by stockholders complaining that shares of their corporation had been issued wrongfully for an inadequate consideration.19 A successful suit of this type, resulting in cancellation of the shares, does not bring a fund into court or add to the assets of the corporation, but it does benefit the holders of the remaining shares by enhancing their value. Similarly, holders of voting trust certificates have been allowed reimbursement of their expenses from the corporation where they succeeded in terminating the voting trust and obtaining for all certificate holders the right to vote their shares.20 In these cases there was a 'common fund' only in the sense that the court's jurisdiction over the corporation as nominal defendant made it possible to assess fees against all of the shareholders through an award against the corporation.21
25
In many of these instances the benefit conferred is capable of expression in monetary terms, if only by estimating the increase in market value of the shares attributable to the successful litigation. However, an increasing number of lower courts have acknowledged that a corporation may receive a 'substantial benefit' from a derivative suit, justifying an award of counsel fees, regardless of whether the benefit is pecuniary in nature.22 A leading case is Bosch v. Meeker Cooperative Light & Power Assn., 257 Minn. 362, 101 N.W.2d 423 (1960), in which a stockholder was reimbursed for his expenses in obtaining a judicial declaration that the election of certain of the corporation's directors was invalid. The Supreme Court of Minnesota stated:
26
'Where an action by a stockholder results in a substantial benefit to a corporation he should recover his costs and expenses. * * * (A) substantial benefit must be something more than technical in its consequence and be one that accomplishes a result which corrects or prevents an abuse which would be prejudicial to the rights and interests of the corporation or affect the enjoyment or protection of an essential right to the stockholder's interest.' Id., at 366 367, 101 N.W.2d at 425—427.
27
In many suits under § 14(a), particularly where the violation does not relate to the terms of the transaction for which proxies are solicited, it may be impossible to assign monetary value to the benefit. Nevertheless, the stress placed by Congress on the importance of fair and informed corporate suffrage leads to the conclusion that, in vindicating the statutory policy, petitioners have rendered a substantial service to the corporation and its shareholders. Cf. Bakery and Confectionery Workers Union v. Ratner, 118 U.S.App.D.C. 269, 274, 335 F.2d 691, 696 (1964). Whether petitioners are successful in showing a need for significant relief may be a factor in determining whether a further award should later be made. But regardless of the relief granted, private stockholders' actions of this sort 'involve corporate therapeutics,'23 and furnish a benefit to all shareholders by providing an important means of enforcement of the proxy statute.24 To award attorneys' fees in such a suit to a plaintiff who has succeeded in establishing a cause of action is not to saddle the unsuccessful party with the expenses but to impose them on the class that has benefited from them and that would have had to pay them had it brought the suit.
28
For the foregoing reasons we conclude that the judgment of the Court of Appeals should be vacated and the case remanded to that court for further proceedings consistent with this opinion.
29
It is so ordered.
30
Judgment of Court of Appeals vacated and case remanded to that court.
31
Mr. Justice BLACK, concurring in part and dissenting in part.
32
I substantially agree with Parts II and III of the Court's opinion holding that these stockholders have sufficiently proved a violation of § 14(a) of the Securities Exchange Act of 1934 and are thus entitled to recover whatever damages they have suffered as a result of the misleading corporate statements, or perhaps to an equitable setting aside of the merger itself. I do not agree, however, to what appears to be the holding in Part IV that stockholders who hire lawyers to prosecute their claims in such a case can recover attorneys' fees in the absence of a valid contractual agreement so providing or an explicit statute creating such a right of recovery. The courts are interpreters, not creators, of legal rights to recover and if there is a need for recovery of attorneys' fees to effectuate the policies of the Act here involved, that need should in my judgment be met by Congress, not by this Court.
1
48 Stat. 895, as amended, 15 U.S.C. § 78n(a).
2
In the other two counts, petitioners alleged common-law fraud and that the merger was ultra vires under Ohio law.
3
Petitioners cross-appealed from an order entered by the District Court two days after its summary judgment in their favor, deleting from that judgment a conclusion of law that '(u)nder the provisions of Section 29(b) of the Securities Exchange Act of 1934, the merger effectuated through a violation of Section 14 of the Act is void.' This deletion was apparently made for the purpose of avoiding any prejudice on the question of relief, which remained open for consideration by the master. In light of its disposition of respondents' appeal, the Court of Appeals had no need to consider the cross-appeal.
4
Respondents ask this Court to review the conclusion of the lower courts that the proxy statement was misleading in a material respect. Petitioners naturally did not raise this question in their petition for certiorari, and respondents filed no cross-petition. Since reversal of the Court of Appeals' ruling on this question would not dictate affirmance of that court's judgment, which remanded the case for proceedings to determine causation, but rather elimination of petitioners' rights thereunder, we will not consider the question in these circumstances. United States v. American Ry. Exp. Co., 265 U.S. 425, 435, 44 S.Ct. 560, 563, 68 L.Ed. 1087 (1924); Langnes v. Green, 282 U.S. 531, 535—539, 51 S.Ct. 243, 245—246, 75 L.Ed. 520 (1931); Morley Constr. Co. v. Maryland Cas. Co., 300 U.S. 185, 191 192, 57 S.Ct. 325, 327—328, 81 L.Ed. 593 (1937); R. Stern & E. Gressman, Supreme Court Practice 314, 315 (4th ed. 1969).
5
The Court of Appeals' ruling that 'causation' may be negated by proof of the fairness of the merger also rests on a dubious behavioral assumption. There is no justification for presuming that the shareholders of every corporation are willing to accept any and every fair merger offer put before them; yet such a presumption is implicit in the opinion of the Court of Appeals. That court gave no indication of what evidence petitioners might adduce, once respondents had established that the merger proposal was equitable, in order to show that the shareholders would nevertheless have rejected it if the solicitation had not been misleading. Proof of actual reliance by thousands of individuals would, as the court acknowledged, not be feasible, see R. Jennings & H. Marsh, Securities Regulation, Cases and Materials 1001 (2d ed. 1968); and reliance on the nondisclosure of a fact is a particularly difficult matter to define or prove, see 3 L. Loss, Securities Regulation 1766 (2d ed. 1961). In practice, therefore, the objective fairness of the proposal would seemingly be determinative of liability. But, in view of the many other factors that might lead shareholders to prefer their current position to that of owners of a larger, combined enterprise, it is pure conjecture to assume that the fairness of the proposal will always be determinative of their vote. Cf. Wirtz v. Hotel, Motel & Club Employees Union, 391 U.S. 492, 508, 88 S.Ct. 1743, 1752, 20 L.Ed.2d 763 (1968).
6
Cf. List v. Fashion Park, Inc., 340 F.2d 457, 462, 22 A.L.R.3d 782 (C.A.2d Cir. 1965); General Time Corp. v. Talley Industries, Inc., 403 F.2d 159, 162 (C.A.2d Cir. 1968); Restatement (Second) of Torts § 538(2)(a) (Tent.Draft No. 10, 1964); 2 L. Loss, Securities Regulation 917 (2d ed. 1961); 6 id., at 3534 (Supp.1969).
In this case, where the misleading aspect of the solicitation involved failure to reveal a serious conflict of interest on the part of the directors, the Court of Appeals concluded that the crucial question in determining materiality was 'whether the minority shareholders were sufficiently alerted to the board's relationship to their adversary to be on their guard.' 403 F.2d, at 434. An adequate disclosure of this relationship would have warned the stockholders to give more careful scrutiny to the terms of the merger than they might to one recommended by an entirely distinterested board. Thus, the failure to make such a disclosure was found to be a material defect 'as a matter of law,' thwarting the informed decision at which the statute aims, regardless of whether the terms of the merger were such that a reasonable stockholder would have approved the transaction after more careful analysis. See also Swanson v. American Consumer Industries, Inc., 415 F.2d 1326 (C.A.7th Cir. 1969).
7
We need not decide in this case whether causation could be shown where the management controls a sufficient number of shares to approve the transaction without any votes from the minority. Even in that situation, if the management finds it necessary for legal or practical reasons to solicit proxies from minority shareholders, at least one court has held that the proxy solicitation might be sufficiently related to the merger to satisfy the causation requirement, see Laurenzano v. Einbender, 264 F.Supp. 356 (D.C.E.D.N.Y.1966); cf. Swanson v. American Consumer Industries, Inc., 415 F.2d 1326, 1331—1332 (C.A.7th Cir. 1969); Eagle v. Horvath, 241 F.Supp. 341, 344 (D.C.S.D.N.Y.1965); Globus, Inc. v. Jaroff, 271 F.Supp. 378, 381 (D.C.S.D.N.Y.1967); Comment, Shareholders' Derivative Suit to Enforce a Corporate Right of Action Against Directors Under SEC Rule 10b—5, 114 U.Pa.L.Rev. 578, 582 (1966). But see Hoover v. Allen, 241 F.Supp. 213, 231—232 (D.C.S.D.N.Y.1965); Barnett v. Anaconda Co., 238 F.Supp. 766, 770—774 (D.C.S.D.N.Y.1965); Robbins v. Banner Industries, Inc., 285 F.Supp. 758, 762—763 (D.C.S.D.N.Y.1966). See generally 5 L.Loss, Securities Regulation 2933—2938 (Supp. 1969).
8
Section 29(b) provides in pertinent part: 'Every contract made in violation of any provision of this chapter or of any rule or regulation thereunder * * * shall be void (1) as regards the rights of any person who, in violation of any such provision, rule, or regulation, shall have made * * * any such contract, and (2) as regards the rights of any person who, not being a party to such contract, shall have acquired any right thereunder with actual knowledge of the facts by reason of which the making * * * of such contract was in violation of any such provision, rule, or regulation * * *.' 15 U.S.C. § 78cc(b).
9
See Eastside Church of Christ v. National Plan, Inc., 391 F.2d 357, 362—363 (C.A.5th Cir. 1968); cf. Goldstein v. Groesbeck, 142 F.2d 422, 426—427 (C.A.2d Cir. 1944).
10
See Public Utility Holding Company Act of 1935, § 26(b), 49 Stat. 836, 15 U.S.C. § 79z(b); Investment Company Act of 1940, § 47(b), 54 Stat. 846, 15 U.S.C. § 80a—46(b); Investment Advisers Act of 1940, § 215(b), 54 Stat. 856, 15 U.S.C. § 80b—15(b).
11
If petitioners had submitted their own proxies in favor of the merger in response to the unlawful solicitation, as it does not appear they did, the language of § 29(b) would seem to give them, as innocent parties to that transaction, a right to rescind their proxies. But it is clear in this case, where petitioners' combined holdings are only 600 shares, that such rescission would not affect the authorization of the merger.
12
The Court of Appeals might have modified the judgment of the District Court to the extent that it referred the issue of relief to a master under Fed.Rule Civ.Proc. 53(b). The Court of Appeals' opinion indicates doubt whether the referral was appropriate, 403 F.2d, at 436. This issue is not before us.
13
We believe that the question of reimbursement for these expenses has a sufficiently close relationship to the determination of what constitutes a cause of action under § 14(a) that it is appropriate for decision at this time. The United States urges the Court to consider also whether petitioners will be entitled to recoup expenses reasonably incurred in further litigation on the question of relief. We are urged to hold that such expenses should be reimbursed regardless of whether petitioners are ultimately successful in obtaining significant relief. However, the question of reimbursement for future expenses should be resolved in the first instance by the lower courts after the issue of relief has been litigated and a record has been established concerning the need for a further award. We express no view on the matter at this juncture.
14
These provisions deal, respectively, with manipulation of security prices and with misleading statements in documents filed with the Commission. See 15 U.S.C. §§ 78i(e), 78r(a).
15
Cf. Note, Attorney's Fees: Where Shall the Ultimate Burden Lie?, 20 Vand.L.Rev. 1216, 1229 and n. 68 (1967).
16
Many commentators have argued for a more thoroughgoing abandonment of the rule. See, e.g., Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Calif.L.Rev. 792 (1966); Kuenzel, The Attorney's Fee: Why Not a Cost of Litigation? 49 Iowa L.Rev. 75 (1963); McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn.L.Rev. 619 (1931); Stoebuck, Counsel Fees Included in Costs: A Logical Development, 38 U.Colo.L.Rev. 202 (1966); Note, supra, n. 15.
17
See Trustees v. Greenough, 105 U.S. 527, 531—537, 26 L.Ed. 1157 (1882); Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885); Hornstein, The Counsel Fee in Stockholder's Derivative Suits, 39 Col.L.Rev. 784 (1939).
Even in the original 'fund' case in this Court, it was recognized that the power of equity to award fees was not restricted to the court's ability to provide reimbursement from the fund itself: 'It would be very hard on (the successful plaintiff) to turn him away without any allowance * * *. It would not only be unjust to him, but it would give to the other parties entitled to participate in the benefits of the fund an unfair advantage. He has worked for them as well as for himself; and if he cannot be reimbursed out of the fund itself, they ought to contribute their due proportion of the expenses which he has fairly incurred. To make them a charge upon the fund is the most equitable way of securing such contribution.' Trustees v. Greenough, 105 U.S., at 532, 26 L.Ed. 1157.
18
See, e.g., Holthusen v. Edward G. Budd Mfg. Co., 55 F.Supp. 945 (D.C.E.D.Pa.1944); Runswick v. Floor, 116 Utah 91, 208 P.2d 948 (1949); cases cited n. 22, infra. See generally Hornstein, Legal Therapeutics: The 'Salvage' Factor in Counsel Fee Awards, 69 Harv.L.Rev. 658, 669—679 (1956); Smith, Recovery of Plaintiff's Attorney's Fees in Corporate Litigation, 40 L.A.Bar Bull. 15 (1964).
19
Hartman v. Oatman Gold Mining & Milling Co., 22 Ariz. 476, 198 P. 717 (1921); Greenough v. Coeur D'Alenes Lead Co., 52 Idaho 599, 18 P.2d 288 (1932); cf. Riverside Oil & Refining Co. v. Lynch, 114 Okl. 198, 243 P. 967 (1925).
20
Allen v. Chase Nat. Bank, 180 Misc. 259, 40 N.Y.S.2d 245 (Sup.Ct.1943), sequel to Allen v. Chase Nat. Bank, 178 Misc. 536, 35 N.Y.S.2d 958 (Sup.Ct.1942).
21
Cf. Note, Allowance of Counsel Fees Out of a 'Fund in Court': The New Jersey Experience, 17 Rutgers L.Rev. 634, 638—643 (1963).
22
See Schechtman v. Wolfson, 244 F.2d 537, 540 (C.A.2d Cir. 1957); Grant v. Hartman Ranch Co., 193 Cal.App.2d 497, 14 Cal.Rptr. 531 (1961); Treves v. Servel, Inc., 38 Del.Ch. 483, 154 A.2d 188 (1959); Saks v. Gamble, 38 Del.Ch. 504, 154 A.2d 767 (1958); Yap v. Wah Yen Ki Tuk Tsen Nin Hue, 43 Haw. 37, 42 (1958); Berger v. Amana Society, 253 Iowa 378, 387, 111 N.W.2d 753, 758 (1962); Bosch v. Meeker Cooperative Light & Power Assn., 257 Minn. 362, 101 N.W.2d 423 (1960); Eisenberg v. Central Zone Property Corp., 1 App.Div.2d 353, 149 N.Y.S.2d 840 (Sup.Ct.1956), aff'd per curiam, 3 N.Y.2d 729, 163 N.Y.S.2d 968, 143 N.E.2d 516 (1957); Martin Foundation v. Phillip-Jones Corp., 283 App.Div. 729, 127 N.Y.S.2d 649 (Sup.Ct.1954); Abrams v. Textile Realty Corp., 197 Misc. 25, 93 N.Y.S.2d 808 (Sup.Ct.1949); 97 N.Y.S.2d 492 (op. of Referee); Long Park, Inc. v. Trenton-New Brunswick Theatres Co., 274 App.Div. 988, 84 N.Y.S.2d 482, 487 (Sup.Ct.1948), aff'd per curiam, 299 N.Y. 718, 87 N.E.2d 126 (1949); Smith, supra, n. 18; Shareholder Suits: Pecuniary Benefit Unnecessary for Counsel Fee Award, 13 Stan.L.Rev. 146 (1960).
23
Murphy v. North American Light & Power Co., 33 F.Supp. 567, 570 (D.C.S.D.N.Y.1940).
24
Cf. Hornstein, supra, n. 18, at 659, 662—663.
| 56
|
397 U.S. 88
90 S.Ct. 784
25 L.Ed.2d 73
ARKANSAS, Plaintiff,v.TENNESSEE.
No. 33, Orig.
Argued Jan. 19, 1970.
Feb. 25, 1970.
Don Langston, Little Rock, Ark., for plaintiff.
Heard H. Sutton, Memphis, Tenn., for defendant.
PER CURIAM.
1
This original action was commenced on October 13, 1967, by the State of Arkansas to settle a boundary dispute with the State of Tennessee. The disputed area extends six miles laterally along the west (Arkansas side) bank of the Mississippi River and encompasses some five thousand acres. This Court's jurisdiction arises under Art. III, § 2, of the Constitution of the United States. On January 15, 1968, we appointed, 389 U.S. 1026, Hon. Gunnar H. Nordbye, Senior United States Judge of the District of Minnesota, as Special Master to determine the state line in the disputed area known as Cow Island Bend in the Mississippi River located between Crittenden County, Arkansas, and Shelby County, Tennessee. After conducting an evidentiary hearing and viewing the area, the Master filed his Report with this Court recommending that all of the disputed area be declared part of the State of Tennessee. We affirm the Master's Report.
2
The parties agree that the state line is the thalweg, that is, the steamboat channel of the Mississippi River as it flows west and southward between these States. The Master heard evidence and was presented exhibits and maps which showed that the migration of the Mississippi River northward and west continued until about 1912. At this time an avulsion occurred leaving Tennessee lands on the west or Arkansas side of the new or avulsive river channel. The Master found that thereafter, because of the avulsion, the water in the thalweg became stagnant and erosion and accretion no longer occurred. At this time the boundary between Arkansas and Tennessee became fixed in the middle of the old abandoned channel.
3
This is a classic example of the situation referred to in an earlier case between these States, Arkansas v. Tennessee, 246 U.S. 158, 173, 38 S.Ct. 301, 304, 62 L.Ed. 638, where we said,
4
'It is settled beyond the possibility of dispute that where running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream; while if the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one, by the process known as an avulsion, the resulting change of channel workers no change of boundary, which remains in the middle of the old channel, although no water may be flowing in it, and irrespective of subsequent changes in the new channel.'
5
And, again, id., at 175, 38 S.Ct., at 305,
6
'An avulsion has this effect, whether it results in the drying up of the old channel or not. So long as that channel remains a running stream, the boundary marked by it is still subject to be changed by erosion and accretion; but when the water becomes stagnant, the effect of these processes is at an end; the boundary then becomes fixed in the middle of the channel as we have defined it, and the gradual filling up of the bed that ensues is not to be treated as an accretion to the shores but as an ultimate effect of the avulsion.'
7
The exceptions of the State of Arkansas are overruled and the Report of the Special Master is adopted.
8
It is ordered that the Hon. Gunnar H. Nordbye be, and he is hereby, appointed as Commissioner in this case with power to engage and supervise a competent surveyor, or surveyors, to survey the boundary line as recommended in the Master's Report. The boundary line determined by such survey shall be submitted to the Court by the Commissioner and, if approved, shall be the boundary line between the two States.
9
The costs of this proceeding shall be divided equally between the parties.
DECREE
10
1. It is ordered, adjudged, and decreed that the boundary line between the States of Arkansas and Tennessee in the area in controversy shall be fixed in the middle of the old abandoned Cow Island Bendway Channel as partially reflected in the 1953 survey of one R. L. Cooper (Defendant's Exhibit 42, attached to the decree in Brown v. Brakensiek, in the Chancery Court of Shelby County, Tennessee), said abandoned channel extending from its upper or up-river end to the lower or down-river end of Ike Chute as far as that survey goes, thence downstream in a southerly direction passing down the middle of a water drain or creek now running between the lower end of Ike Chute and the upper end of 96 Chute, thence continuing downstream in a southerly direction down the middle of 96 Chute and coming out of 96 Chute on a continuing straight line to the point where it joins the present navigation channel of the Mississippi River, all as indicated by a broken line marked 'State Line' on the annexed reduced copy of the 1965 aerial photograph of the area in controversy, Joint Exhibit A, marked Appendix A—I, and also as reflected by a broken line marked 'State Line' on a reduced copy of Defendant's Exhibit 39, the 1937 map of the United States Engineers and hereto annexed as Appendix A—II.
11
2. It is ordered that the Hon. Gunnar H. Nordbye be, and he is hereby, appointed Commissioner in this case with power to engage and supervise a competent surveyor, or surveyors, to survey the boundary line as provided in this decree. The boundary line determined by such survey shall be submitted to the Court by the Commissioner and, if approved, shall be the boundary line between the two States.
12
3. The costs of this proceeding shall be divided equally between the parties.
13
APPENDIX A-I.
Page 92-Contiued
14
| 1011
|
396 U.S. 460
90 S.Ct. 661
24 L.Ed.2d 653
Timothy J. BREEN, Petitioner,v.SELECTIVE SERVICE LOCAL BOARD NO. 16, BRIDGEPORT, CONNECTICUT, et al.
No. 65.
Argued Nov. 19, 1969.
Decided Jan. 26, 1970.
Emanuel Margolis, Stamford, Conn., for petitioner.
William Ruckelshaus, Washington, D.C., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
This case raises a question concerning the right of a young man ordered to report for induction into the Armed Forces to challenge the legality of that order prior to reporting for duty. Petitioner Breen while enrolled in the Berklee School of Music in Boston, Massachusetts, was given a II-S student classification by his local draft board, and deferred from military service pursuant to the provisions of the Military Selective Service Act of 1967, 81 Stat. 100, 50 U.S.C. App. § 451 et seq. (1964 ed. and Supp. IV). According to an agreed stipulation of facts, i November 1967 he surrendered his draft registration card to a minister at a public gathering 'for the sole purpose of protesting United States involvement in the war in Vietnam.' Shortly thereafter his local draft board declared he was 'delinquent' for failing to have his draft card in his possession and at the same time reclassified him I-A—available for military service.1 He appealed this reclassification to the appropriate Selective Service Appeal Board, and while that appeal was pending filed this suit in the United States District Court in February 1968, seeking an injunction against any possible induction into the Armed Forces on the ground that his delinquency reclassification was invalid. The respondent local board moved to dismiss the suit for want of jurisdiction, relying on § 10(b)(3) of the Act which provides that:
2
'No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction * * *.'2 50 U.S.C. App. § 460(b)(3) (1964 ed., Supp. IV).
3
The District Court granted the motion to dismiss and Breen appealed that decision to the Court of Appeals.3 While the appeal was pending, we rendered our decision in Oestereich v. Selective Service Bd., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), holding that § 10(b)(3) did not bar preinduction judicial review in the circumstances presented in that case. Although Breen argued that Oestereich controlled his own case, the Court of Appeals affirmed the District Court's dismissal of the suit, with one judge dissenting, holding that Oestereich did not cover this case and § 10(b)(3) therefore required dismissal of the suit. 406 F.2d 636 (C.A.2d Cir. 1969). We granted a petition for certiorari, 394 U.S. 997, 89 S.Ct. 1592, 22 L.Ed.2d 774 (1969), and, because we conclude that Oestereich does control this case, we reverse the judgment of the Court of Appeals.
4
In Oestereich a student preparing for the ministry surrendered his draft registration card in protest against the war in Vietnam and was reclassified as a 'delinquent.' He then filed suit seeking to enjoin his induction, claiming that he was being inducted contrary to the clear statutory requirement that students preparing for the ministry 'shall be exempt from training and service' under the Act, 50 U.S.C.App. § 456(g). We held in that case that since Congress had unambiguously said that students preparing for the ministry were not to be drafted and, since there was no indication in the statute that such exemptions could be denied for 'delinquency,' Oestereich's induction was unlawful and in such a case § 10(b)(3) would not be interpreted to bar pre-induction judicial review and thereby force the registrant to submit to an illegal induction or risk the possibility of a criminal prosecution to regain his exempt status.
5
In the present case petitioner Breen argues that he, like Oestereich, should not be inducted and he relies on § 6(h)(1) of the Act, which provides that:
6
'Except as otherwise provided in this paragraph, the President shall, under such rules and regulations as he may prescribe, provide for the deferment from training and service in the Armed Forces of persons satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning and who request such deferment.' 50 U.S.C.App. § 456(h) (1) (1964 ed., Supp. IV).
7
In his complaint Breen alleged that he was a 20-year-old student and argued that he was clearly qualified for a student deferment. The Government has never contested Breen's factual allegations concerning his student status, nor has it argued that he is not qualified for such a defendant for any reason except the alleged 'delinquency.' As in Oestereich, we do not find any indication that Congress intended to allow the draft boards to deprive otherwise qualified students of their deferments for the reasons relied upon in this case.
8
In concluding that Oestereich did not control this case, the Court of Appeals felt that the reference in § 6(h)(1) to 'such rules and regulations as (the President) may prescribe' was an indication that Congress authorized revocation of student deferments for violations of the delinquency regulations. 406 F.2d, at 638. That conclusion must be rejected for several reasons. The explicit language of the Act provides that the President 'shall' provide for the deferment of undergraduate students except as otherwise provided by the terms of the Act itself, and Congress then set forth the specific conditions that a student must meet to qualify for such a deferment.4 The reference to 'rules and regulations' is clearly intended only to authorize such additional administrative procedures as the President may find necessary to insure that all qualified students are given the deferment that Congress provided in § 6. There is nothing in the language of the Act itself that indicates a congressional desire to allow the President to add to or subtract from the factors specified in the statute for determining when students would be deferred.5 The legislative history of § 6(h)(1) clearly indicates that Congress intended that only the conditions specified in that section need be met to warrant a student deferment. Prior to the 1967 Act the draft law stated that student deferments were provided only according to presidential regulation and in practice such deferments were subject to the discretion of the local draft boards.6 The committee reports and floor debates on the 1967 Act show that a primary purpose of the amendments was to eliminate this local option and provide clear, uniform standards for undergraduate student deferments.7 When Congress thus acted to replace discretionary standards with explicit requirements for student deferments, it did not specifically provide or in any way indicate that such deferred status could be denied because the registrant failed to possess his registration certificate.8 Finally, any contention that 'delinquency' induction is proper in this case must be rejected for the reasons set forth in our decision in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532, holding that induction pursuant to the delinquency regulations has not been authorized by Congress.
9
The Attorney General advances another argument for distinguishing this case from Oestereich, supra. He points out that Oestereich met the requirements for a statutory 'exemption' from military service, while Breen is at best qualified only for a statutory 'deferment.' On the basis of this observation he urges that the provisions of § 10(b)(3) preclude pre-induction judicial review in all cases of deferments and that Oestereich provides an exception only in certain cases where an exemption is claimed. We fail to see any relevant practical or legal differences between exemptions and deferments. The effect of either type of classification is that the registrant cannot be inducted as long as he remains so classified. Congress has specifically said that the only persons who may be inducted into the Armed Forces are those 'who are liable for such training and service and who at the time of selection are registered and classified, but not deferred or exempted.' 50 U.S.C.App. § 455(a)(1) (1964 ed., Supp. IV).9 (Emphasis added.) Thus it is clear that the crucial distinction in draft classifications is between individuals presently subject to induction and those who are not so subject, either because of deferment or exemption.
10
The Attorney General also argues that a rational distinction exists in the statutory scheme between deferments which merely postpone the time when a registrant will serve and exemptions which place the registrant 'outside the manpower pool.' Brief for the Respondents 20—21. A careful reading of the entire Act indicates that no such consistent distinction is preserved. Congress has provided that '(n)o * * * exemption or deferment * * * shall continue after the cause therefore ceases to exist.' 50 U.S.C.App. § 456(k). Many of the 'exemptions' are not absolute, as the Attorney General implies, but conditioned on certain factors. Thus an exempt ministerial student like Oestereich will lose that exempt status if he withdraws from study in preparation for the ministry. Similarly exempt veterans can be inducted into the Armed Forces if Congress declares a war or national emergency. 50 U.S.C.App. § 456(b). On the other hand there is absolutely no assurance that an individual who is simply deferred will only have his military obligation postponed. So long as a registrant remains in a deferred classification he cannot be inducted, and deferment past the maximum age of draft liability would effectively exempt the registrant from compulsory military service. Although a registrant like Breen cannot be deferred as an undergraduate student past his 24th birthday,10 he may continue to be deferred on the basis of extreme hardship to dependents or employment in the national interest. 50 U.S.C.App. § 456(h)(1) 1964 ed., Supp. IV). There is thus no statutory scheme to permanently exempt certain individuals while only deferring service for others. Both deferments and exemptions accomplish the same congressional purpose, that of not inducting certain registrants at a particular time.
11
We are consequently unable to distinguish this case from Oestereich. In both situations a draft registrant who was required by the relevant law not to be inducted was in fact ordered to report for military service. In both cases the order for induction involved a 'clear departure by the Board from its statutory mandate,' Oestereich, supra, at 238, 89 S.Ct. 416, and in both cases § 10(b)(3) of the Act should not have been construed to require the registrants to submit to induction or risk criminal prosecution to test the legality of the induction order. The judgment below is reversed and the case remanded for further proceedings in conformity with this opinion.
12
Reversed and remanded.
13
Mr. Justice HARLAN, concurring.
14
While I fully agree with today's holding that pre-induction review is available to the petitioner here, and subscribe to much of the Court's opinion, I would rest the holding on a different footing.
15
The Court's opinion here, as in Oestereich v. Selective Service Bd., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), appears to make the availability of preinduction review turn on the lawfulness of the draft board's action or, to put it another way, on the certainty with which the reviewing court can determine that the registrant would prevail on the merits if there were such judicial review of his classification. On the other hand, under the test put forward in my separate opinion in Oestereich, 393 U.S. 239—245, 89 S.Ct. 417, 420—421, the availability of pre-induction review turns, not on what amounts to an advance decision on the merits, but rather on the nature of the challenge being made.
16
In Oestereich, the registrant sought pre-induction review of claims that the delinquency procedure employed by the board was 'not authorized by any statute,' was 'inconsistent with his statutory exemption,' and was 'facially unconstitutional,' 393 U.S., at 239, 89 S.Ct., at 417. I pointed out that judicial scrutiny of such legal contentions, unlike the review of 'factual and discretionary decisions' pertaining to a board's classification of a particular registrant, presented no 'opportunity for protracted delay' in the operations of the Selective Service System—the primary congressional concern in enacting § 10(b)(3), 393 U.S., at 241, 89 S.Ct., at 418. To avoid the 'serious constitutional problems' implicit in depriving a registrant of 'his liberty without the prior opportunity to present to any competent forum' his claims that the delinquency procedure was invalid, 393 U.S., at 243, 89 S.Ct., at 419, I therefore interpreted § 10(b)(3) not to preclude pre-induction judicial review. Viewed from the perspective of my opinion in Oestereich, this case is industinguishable, for the petitioner here, as in Oestereich, makes legal challenges to the delinquency procedure that do not require review of a factual and discretionary decision of a board.
17
As to the merits of petitioner's challenges, I agree, for the reasons stated by the majority, that it makes no difference that through the operation of the delinquency regulations Breen lost a II—S student deferment whereas Oestereich lost a IV—D exemption as a divinity student preparing for the ministry. More generally, the delinquency regulations used here have now been held to be unauthorized by statute, Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970).
18
On this basis, I concur in the reversal of the judgment below.
19
Mr. Justice BRENNAN, concurring.
20
In Oestereich v. Selective Service Board, 393 U.S. 233, 89 S.Ct. 414 21 L.Ed.2d 402 (1968), I joined Mr. Justice Stewart's dissent expressing the view that § 10(b)(3) was designed to permit judicial review of draft classifications only in connection with criminal prosecutions or habeas corpus proceedings. 393 U.S., at 245, 89 S.Ct., at 420—421. But continued adherence to that construction is foreclosed by the Court's holding in that case that § 10(b)(3) did not preclude pre-induction judicial review of the case of a registrant entitled to a statutory exemption. Therefore, because I too 'fail to see any relevant practical or legal differences between exemptions and deferments,' I join the opinion of the Court.
21
Mr. Justice STEWART, with whom THE CHIEF JUSTICE joins, concurring in part.
22
For the reasons expressed by Mr. Justice BRENNAN, I join the opinion of the Court insofar as it holds that the District Court had jurisdiction to entertain the petitioner's suit and should have granted him the injunction he sought. I do not, however, join the Court's opinion insofar as it holds that the delinquency regulations have not been authorized by Congress. See Gutknecht v. United States, ante, 396 U.S., p. 314, 90 S.Ct., p. 515 (concurring in judgment).
1
This reclassification was undertaken pursuant to 32 CFR § 1642.12.
2
Although this provision would appear to preclude judicial review by habeas corpus after the registrant submitted to induction, we have already construed the statute to allow such review. Oestereich v. Selective Service Bd., 393 U.S. 233, 235, 238, 89 S.Ct. 414, 415, 416—417, 21 L.Ed.2d 402 (1968).
3
During the pendency of that appeal the Appeal Board upheld the reclassification and the local board then ordered Breen to report for induction. The induction order has been stayed pending decision in this case.
4
The Act also provides that student deferment status may be lost under certain conditions.
'A deferment granted to any person under (this provision) shall continue until such person completes the requirements for his baccalaureate degree, fails to pursue satisfactorily a full-time course of instruction, or attains the twenty-fourth anniversary of the date of his birth, whichever first occurs.' 50 U.S.C.App. § 456(h)(1) (1964 ed., Supp. IV). There is no contention raised here that Breen has lost his deferred status for any of these statutory reasons.
5
The Act does allow the President to restrict student deferments on a finding that the needs of the Armed Forces require such action, 50 U.S.C. App. § 456(h)(1) (1964 ed., Supp. IV), but he has not made any such finding at this time.
6
See Selective Service Act of 1948, § 6(h), 62 Stat. 611, as amended. The regulations promulgated pursuant to this authority permitted student deferments in the discretion of the local boards with certain suggested guidelines. See 32 CFR §§ 1622.25, 1622.25a (1967 ed.).
7
H.R.Rep. No. 267, 90th Cong., 1st Sess., 25—26 (1967); H.R.Conf.Rep. No. 346, 90th Cong., 1st Sess., reprinted in U.S.Code Cong. & Admin.News, 90th Cong., 1st Sess., pp. 1352, 1356 1359 (1967); 113 Cong.Rec. 14093, 14095, 16434 (1967).
8
The suggestion that the fleeting reference to 'delinquents' in § 6(h)(1) of the Act, 50 U.S.C.App. § 456(h)(1) (1964 ed., Supp. IV), authorizes delinquency inductions must be rejected for the reasons set forth in Oestereich, supra, at 236 237, 89 S.Ct. at 416, and in Gutknecht v. United States, ante, 396 U.S., at 302, 90 S.Ct., at 509.
9
This statutory directive is implemented by 32 CFR § 1631.7.
10
See n. 4, supra.
| 12
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.