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396 U.S. 435
90 S.Ct. 628
24 L.Ed.2d 634
E. S. EVANS et al., Petitioners,v.Guyton G. ABNEY et al.
No. 60.
Argued Nov. 12 and 13, 1969.
Decided Jan. 26, 1970.
James M. Nabrit, III, New York City, for petitioners.
Louis F. Claiborne, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
Frank C. Jones, Macon, Ga., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
Once again this Court must consider the constitutional implications of the 1911 will of United States Senator A. O. Bacon of Georgia which conveyed property in trust to Senator Bacon's home city of Macon for the creation of a public park for the exclusive use of the white people of that city. As a result of our earlier decision in this case which held that the park, Baconsfield, could not continue to be operated on a racially discriminatory basis, Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), the Supreme Court of Georgia ruled that Senator Bacon's intention to provide a park for whites only had become impossible to fulfill and that accordingly the trust had failed and the parkland and other trust property had reverted by operation of Georgia law to the heirs of the Senator. 224 Ga. 826, 165 S.E.2d 160 (1968). Petitioners, the same Negro citizens of Macon who have sought in the courts to integrate the park, contend that this termination of the trust violates their rights to equal protection and due process under the Fourteenth Amendment. We granted certiorari because of the importance of the questions involved. 394 U.S. 1012, 89 S.Ct. 1628, 23 L.Ed.2d 38 (1969). For the reasons to be stated, we are of the opinion that the judgment of the Supreme Court of Georgia should be, and it is, affirmed.
2
The early background of this litigation was summarized by Mr. Justice Douglas in his opinion for the Court in Evans v. Newton, 382 U.S., at 297-298, 86 S.Ct. at 487-488:
3
'In 1911 United States Senator Augustus O. Bacon executed a will that devised to the Mayor and Council of the City of Macon, Georgia, a tract of land which, after the death of the Senator's wife and daughters, was to be used as 'a park and pleasure ground' for white people only, the Senator stating in the will that while he had only the kindest feeling for the Negroes he was of the opinion that 'in their social relations the two races (white and negro) should be forever separate.' The will provided that the park should be under the control of a Board of Managers of seven persons, all of whom were to be white. The city kept the park segregated for some years but in time let Negroes use it, taking the position that the park was a public facility which it could not constitutionally manage and maintain on a segregated basis.
4
Thereupon, individual members of the Board of Managers of the park brought this suit in a state court against the City of Macon and the trustees of certain residuary beneficiaries of Senator Bacon's estate, asking that the city be removed as trustee and that the court appoint new trustees, to whom title to the park would be transferred. The city answered, alleging it could not legally enforce racial segregation in the park. The other defendants admitted the allegation and requested that the city be removed as trustee.
5
Several Negro citizens of Macon intervened, alleging that the racial limitation was contrary to the laws and public policy of the United States, and asking that the court refuse to appoint private trustees. Thereafter the city resigned as trustee and amended its answer accordingly. Moreover, other heirs of Senator Bacon intervened and they and the defendants other than the city asked for reversion of the trust property to the Bacon estate in the event that the prayer of the petition were denied.
6
'The Georgia court accepted the resignation of the city as trustee and appointed three individuals as new trustees, finding it unnecessary to pass on the other claims of the heirs. On appeal by the Negro intervenors, the Supreme Court of Georgia affirmed, holding that Senator Bacon had the right to give and bequeath his property to a limited class, that charitable trusts are subject to supervision of a court of equity, and that the power to appoint new trustees so that the purpose of the trust would not fail was clear. 220 Ga. 280, 138 S.E.2d 573.'
7
The Court in Evans v. Newton, supra, went on to reverse the judgment of the Georgia Supreme Court and to hold that the public character of Baconsfield 'requires that it be treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who now has title under state law.' 382 U.S., at 302, 86 S.Ct., at 490. Thereafter, the Georgia Supreme Court interpreted this Court's reversal of its decision as requiring that Baconsfield be henceforth operated on a nondiscriminatory basis. 'Under these circumstances,' the state high court held, 'we are of the opinion that the sole purpose for which the trust was created has become impossible of accomplishment and has been terminated.' Evans v. Newton, 221 Ga. 870, 871, 148 S.E.2d 329, 330 (1966). Without further elaboration of this holding, the case was remanded to the Georgia trial court to consider the motion of Guyton G. Abney and others, successor trustees of Senator Bacon's estate, for a ruling that the trust had become unenforceable and that accordingly the trust property had reverted to the Bacon estate and to certain named heirs of the Senator. The motion was opposed by petitioners and by the Attorney General of Georgia, both of whom argued that the trust should be saved by applying the cy pres doctrine to amend the terms of the will by striking the racial restrictions and opening Baconsfield to all the citizens of Macon without regard to race or color. The trial court, however, refused to apply cy pres. It held that the doctrine was inapplicable because the park's segregated, whites-only character was an essential and inseparable part of the testator's plan. Since the 'sole purpose' of the trust was thus in irreconcilable conflict with the constitutional mandate expressed in our opinion in Evans v. Newton, the trial court ruled that the Baconsfield trust had failed and that the trust property had by operation of law reverted to the heirs of Senator Bacon. On appeal, the Supreme Court of Georgia affirmed.
8
We are of the opinion that in ruling as they did the Georgia courts did no more than apply well-settled general principles of Georgia law to determine the meaning and effect of a Georgia will. At the time Senator Bacon made his will Georgia cities and towns were, and they still are, authorized to accept devises of property for the establishment and preservation of 'parks and pleasure grounds' and to hold the property thus received in charitable trust for the exclusive benefit of the class of persons named by the testator. Ga.Code Ann., c. 69-5 (1967); Ga.Code Ann. §§ 108-203, 108-207 (1959). These provisions of the Georgia Code explicitly authorized the testator to include, if he should choose, racial restrictions such as those found in Senator Bacon's will. The city accepted the trust with these restrictions in it. When this Court in Evans v. Newton, supra, held that the continued operation of Baconsfield as a segregated park was unconstitutional, the particular purpose of the Baconsfield trust as stated in the will failed under Georgia law. The question then properly before the Georgia Supreme Court was whether as a matter of state law the doctrine of cy pres should be applied to prevent the trust itself from failing. Petitioners urged that the cy pres doctrine allowed the Georgia courts to strike the racially restrictive clauses in Bacon's will so that the terms of the trust could be fulfilled without violating the Constitution.
9
The Georgia cy pres statutes upon which petitioners relied provide:
10
'When a valid charitable bequest is incapable for some reason of execution in the exact manner provided by the testator, donor, or founder, a court of equity will carry it into effect in such a way as will as nearly as possible effectuate his intention.' Ga.Code Ann. § 108-202 (1959).
11
'A devise or bequest to a charitable use will be sustained and carried out in this State; and in all cases where there is a general intention manifested by the testator to effect a certain purpose, and the particular mode in which he directs it to be done shall fail from any cause, a court of chancery may, by approximation, effectuate the purpose in a manner most similar to that indicated by the testator.' Ga.Code Ann. § 113-815 (1959).
12
The Georgia courts have held that the fundamental purpose of these cy pres provisions is to allow the court to carry out the general charitable intent of the testator where this intent might otherwise be thwarted by the impossibility of the particular plan or scheme provided by the testator. Moss v. Youngblood, 187 Ga. 188, 200 S.E. 689 (1938). But this underlying logic of the cy pres doctrine implies that there is a certain class of cases in which the doctrine cannot be applied. Professor Scott in his treatise on trusts states this limitation on the doctrine of cy pres which is common to many States1 as follows:
13
'It is not true that a charitable trust never fails where it is impossible to carry out the particular purpose of the testator. In some cases * * * it appears that the accomplishment of the particular purpose and only that purpose was desired by the testator and that he had no more general charitable intent and that he would presumably have preferred to have the whole trust fail if the particular purpose is impossible of accomplishment. In such a case the cy pres doctrine is not applicable.' 4 A. Scott, The Law of Trusts § 399, p. 3085 (3d ed. 1967).
14
In this case, Senator Bacon provided an unusual amount of information in his will from which the Georgia courts could determine the limits of his charitable purpose. Immediately after specifying that the park should be for 'the sole, perpetual and unending, use, benefit and enjoyment of the white women, white girls, white boys and white children of the City of Macon,' the Senator stated that 'the said property under no circumstances * * * (is) to be * * * at any time for any reason devoted to any other purpose or use excepting so far as herein specifically authorized.' And the Senator continued:
15
'I take occasion to say that in limiting the use and enjoyment of this property perpetually to white people, I am not influenced by any unkindness of feeling or want of consideration for the Negroes, or colored people. On the contrary I have for them the kindest feeling, and for many of them esteem and regard, while for some of them I have sincere personal affection.
16
'I am, however, without hesitation in the opinion that in their social relations the two races * * * should be forever separate and that they should not have pleasure or recreation grounds to be used or enjoyed, together and in common.'
17
The Georgia courts, construing Senator Bacon's will as a whole, Yerbey v. Chandler, 194 Ga. 263, 21 S.E.2d 636 (1942), concluded from this and other language in the will that the Senator's charitable intent was not 'general' but extended only to the establishment of a segregated park for the benefit of white people. The Georgia trial court found that 'Senator Bacon could not have used language more clearly indicating his intent that the benefits of Baconsfield should be extended to white persons only, or more clearly indicating that this limitation was an essential and indispensable part of his plan for Baconsfield.' App. 519. Since racial separation was found to be an inseparable part of the testator's intent, the Georgia courts held that the State's cy pres doctrine could not be used to alter the will to permit racial integration. See Ford v. Thomas, 111 Ga. 493, 36 S.E. 841 (1900); Adams v. Bass, 18 Ga. 130 (1855). The Baconsfield trust was therefore held to have failed, and, under Georgia law, '(w)here a trust is expressly created, but (its) uses * * * fail from any cause, a resulting trust is implied for the benefit of the grantor, or testator, or his heirs.' Ga.Code Ann. § 108—106(4) (1959).2 The Georgia courts concluded, in effect, that Senator Bacon would have rather had the whole trust fail than have Baconsfield integrated.
18
When a city park is destroyed because the Constitution requires it to be integrated, there is reason for everyone to be disheartened. We agree with petitioners that in such a case it is not enough to find that the state court's result was reached through the application of established principles of state law. No state law or act can prevail in the face of contrary federal law, and the federal courts must search out the fact and truth of any proceeding or transaction to determine if the Constitution has been violated. Presbyterian Church in United States v. Hull Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Here, however, the action of the Georgia Supreme Court declaring the Baconsfield trust terminated presents no violation of constitutionally protected rights, and any harshness that may have resulted from the state court's decision can be attributed solely to its intention to effectuate as nearly as possible the explicit terms of Senator Bacon's will.
19
Petitioners first argue that the action of the Georgia court violates the United States Constitution in that it imposes a drastic 'penalty,' the 'forfeiture' of the park, merely because of the city's compliance with the constitutional mandate expressed by this Court in Evans v. Newton. Of course, Evans v. Newton did not speak to the problem of whether Baconsfield should or could continue to operate as a park; it held only that its continued operation as a park had to be without racial discrimination. But petitioners now want to extend that holding to forbid the Georgia courts from closing Baconsfield on the ground that such a closing would penalize the city and its citizens for complying with the Constitution. We think, however, that the will of Senator Bacon and Georgia law provide all the justification necessary for imposing such a 'penalty.' The construction of wills is essentially a state-law question, Lyeth v. Hoey, 305 U.S. 188, 59 S.Ct. 155, 83 L.Ed. 119 (1938), and in this case the Georgia Supreme Court, as we read its opinion, interpreted Senator Bacon's will as embodying a preference for termination of the park rather than its integration. Given this, the Georgia court had no alternative under its relevant trust laws, which are long standing and neutral with regard to race, but to end the Baconsfield trust and return the property to the Senator's heirs.
20
A second argument for petitioners stresses the similarities between this case and the case in which a city holds and absolute fee simple title to a public park and then closes that park of its own accord solely to avoid the effect of a prior court order directing that the park be integrated as the Fourteenth Amendment commands. Yet, assuming arguendo that the closing of the park would in those circumstances violate the Equal Protection Clause, that case would be clearly distinguishable from the case at bar because there it is the State and not a private party which is injecting the racially discriminatory motivation. In the case at bar there is not the slightest indication that any of the Georgia judges involved were motivated by racial animus or discriminatory intent of any sort in construing and enforcing Senator Bacon's will. Nor is there any indication that Senator Bacon in drawing up his will was persuaded or induced to include racial restrictions by the fact that such restrictions were permitted by the Georgia trust statutes. Supra, at 439—440. On the contrary, the language of the Senator's will shows that the racial restrictions were solely the product of the testator's own full-blown social philosophy. Similarly, the situation presented in this case is also easily distinguishable from that presented in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), where we held unconstitutional state judicial action which had affirmatively enforced a private scheme of discrimination against Negroes. Here the effect of the Georgia decision eliminated all discrimination against Negroes in the park by eliminating the park itself, and the termination of the park was a loss shared equally by the white and Negro citizens of Macon since both races would have enjoyed a constitutional right of equal access to the park's facilities had it continued.
21
Petitioners also contend that since Senator Bacon did not expressly provide for a reverter in the event that the racial restrictions of the trust failed, no one can know with absolute certainty that the Senator would have preferred termination of the park rather than its integration, and the decision of the Georgia court therefore involved a matter of choice. It might be difficult to argue with these assertions if they stood alone, but then petitioners conclude: 'Its (the court's) choice, the anti-Negro choice, violates the Fourteenth Amendment, whether it be called a 'guess,' an item in 'social philosophy,' or anything else at all.' We do not understand petitioners to be contending here that the Georgia judges were motivated either consciously or unconsciously by a desire to discriminate against Negroes. In any case, there is, as noted above, absolutely nothing before this Court to support a finding of such motivation. What remains of petitioners' argument is the idea that the Georgia courts had a constitutional obligation in this case to resolve any doubt about the testator's intent in favor of preserving the trust. Thus stated, we see no merit in the argument. The only choice the Georgia courts either had or exercised in this regard was their judicial judgment in construing Bacon's will to determine his intent, and the Constitution imposes no requirement upon the Georgia courts to approach Bacon's will any differently than they would approach any will creating any charitable trust of any kind. Surely the Fourteenth Amendment is not violated where, as here, a state court operating in its judicial capacity fairly applies its normal principles of construction to determine the testator's true intent in establishing a charitable trust and then reaches a conclusion with regard to that intent which, because of the operation of neutral and nondiscriminatory state trust laws, effectively denies everyone, whites as well as Negroes, the benefits of the trust.
22
Another argument made by petitioners is that the decision of the Georgia courts holding that the Baconsfield trust had 'failed' must rest logically on the unspoken premise that the presence or proximity of Negroes in Baconsfield would destroy the desirability of the park for whites. This argument reflects a rather fundamental misunderstanding of Georgia law. The Baconsfield trust 'failed' under that law not because of any belief on the part of any living person that whites and Negroes might not enjoy being together but, rather, because Senator Bacon who died many years ago intended that the park remain forever for the exclusive use of white people.
23
Petitioners also advance a number of considerations of public policy in opposition to the conclusion which we have reached. In particular, they regret, as we do, the loss of the Baconsfield trust to the City of Macon, and they are concerned lest we set a precedent under which other charitable trusts will be terminated. It bears repeating that our holding today reaffirms the traditional role of the States in determining whether or not to apply their cy pres doctrines to particular trusts. Nothing we have said here prevents a state court from applying its cy pres rule in a case where the Georgia court, for example, might not apply its rule. More fundamentally, however, the loss of charitable trusts such as Baconsfield is part of the price we pay for permitting deceased persons to exercise a continuing control over assets owned by them at death. This aspect of freedom of testation, like most things, has it advantages and disadvantages. The responsibility of this Court, however, is to construe and enforce the Constitution and laws of the land as they are and not to legislate social policy on the basis of our own personal inclinations.
24
In their lengthy and learned briefs, the petitioners and the Solicitor General as amicus curiae have advanced several arguments which we have not here discussed. We have carefully examined each of these arguments, however, and find all to be without merit.
The judgment is
25
Affirmed.
26
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
27
Mr. Justice DOUGLAS, dissenting.
28
Bacon's will did not leave any remainder or reversion in 'Baconsfield' to his heirs. He left 'all remainders and reversions and every estate in the same of whatsoever kind' to the City of Macon. He further provided that the property 'under no circumstances, or by any authority whatsoever' should 'be sold or alienated or disposed of, or at any time for any reason' be 'devoted to any other purpose or use excepting so far as herein specifically authorized.'
29
Giving the property to the heirs, rather than reserving it for some municipal use, does therefore as much violence to Bacon's purpose as would a conversion of an 'all-white' park into an 'all-Negro' park.
30
No municipal use is of course possible where the beneficiaries are members of one race only. That was true in 1911 when Bacon made his will. Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, decided in 1896, had held that while 'separate' facilities could be supplied each race, those facilities had to be 'equal.' The concept of 'equal' in this setting meant not just another park for Negroes but one equal in quality and service to that municipal facility which is furnished the whites. See Sweatt v. Painter, 339 U.S. 629, 633-634, 70 S.Ct. 848, 849-850, 94 L.Ed. 1114. It is apparent that Bacon's will projected a municipal use which at the time was not constitutionally permissible unless like accommodations were made for the Negro race.
31
So far as this record reveals, the day the present park was opened to whites it may, constitutionally speaking, also have been available to Negroes.
32
The Supreme Court of Georgia stated that the sole purpose for which the trust was created had become impossible. But it was impossible in those absolute terms even under the regime of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. As to cy pres, the Georgia statute provides:
33
'When a valid charitable bequest is incapable for some reason of execution in the exact manner provided by the testator donor, or founder, a court of equity will carry it into effect in such a way as will as nearly as possible effectuate his intention.' Ga.Code. Ann. § 108-202 (1959).
34
The Georgia court held that the doctrine of cy pres 'can not be applied to establish a trust for an entirely different purpose from that intended by the testator.' 224 Ga. 826, 830, 165 S.E.2d 160, 164. That, however, does not state the issue realistically. No proposal to bar use of the park by whites has ever been made, except the reversion ordered to the heirs. Continuation of the use of the property as a municipal park or for another municipal purpose carries out a larger share of Bacon's purpose than the complete destruction of such use by the decree we today affirm.
35
The purpose of the will was to dedicate the land for some municipal use. That is still possible. Whatever that use, Negroes will of course be admitted, for such is the constitutional command. But whites will also be admitted. Letting both races share the facility is closer to a realization of Bacon's desire than a complete destruction of the will and the abandonment of Bacon's desire that the property be used for some municipal purpose.
36
Bacon, in limiting the use of this park property 'to white people,' expressed the view that 'in their social relations the two races (white and negro) should be forever separate and that they should not have pleasure or recreation grounds to be used or enjoyed, together and in common.' Can we possibly say that test puts a curse on each and every municipal use—music festivals, medical clinics, hospitals?
37
Moreover, putting the property in the hands of the heirs will not necessarily achieve the racial segregation that Bacon desired. We deal with city real estate. If a theatre is erected, Negroes cannot be excluded. If a restaurant is opened, Negroes must be served. If office or housing structures are erected, Negro tenants must be eligible. If a church is erected, mixed marriage ceremonies may be performed. If a court undertook to attach a racial-use condition to the property once it became 'private,' that would be an unconstitutional covenant or condition.
38
Bacon's basic desire can be realized only by the repeal of the Fourteenth Amendment. So the fact is that in the vicissitudes of time there is no constitutional way to assure that this property will not serve the needs of Negroes.
39
The Georgia decision, which we today approve, can only be a gesture toward a state-sanctioned segregated way of life, now passe . It therefore should fail as the imposition of a penalty for obedience to a principle of national supremacy.
40
Mr. Justice BRENNAN, dissenting.
41
For almost half a century Baconsfield has been a public park. Senator Bacon's will provided that upon the death of the last survivor among his widow and two daughters title to Baconsfield would vest in the Mayor and Council of the City of Macon and their successors forever. Pursuant to the express provisions of the will, the Mayor and City Council appointed a Board of Managers to supervise the operation of the park, and from time to time these same public officials made appointments to fill vacancies on the Board. Senator Bacon also bequeathed to the city certain bonds which provided income used in the operation of the park.
42
The city acquired title to Baconsfield in 1920 by purchasing the interests of Senator Bacon's surviving daughter and another person who resided on the land. Some $46,000 of public money was spent over a number of years to pay the purchase price. From the outset and throughout the years the Mayor and City Council acted as trustees, Baconsfield was administered as a public park. T. Cleveland James, superintendent of city parks during this period, testified that when he first worked at Baconsfield it was a 'wilderness * * * nothing there but just undergrowth everywhere, one road through there and that's all, one paved road.' He said there were no park facilities at that time. In the 1930's Baconsfield was transformed into a modern recreational facility byemployees of the Works Progress Administration, an agency of the Federal Government. WPA did so upon the city's representation that Baconsfield was a public park. WPA employed men daily for the better part of a year in the conversion of Baconsfield to a park. WPA and Mr. James and his staff cut underbrush, cleared paths, dug ponds, built bridges and benches, planted shrubbery, and, in Mr. James' words, 'just made a general park out of it.' Other capital improvements were made in later years with both federal and city money. The Board of Managers also spent funds to improve and maintain the park.
43
Although the Board of Managers supervised operations, general maintenance of Baconsfield was the responsibility of the city's superintendent of parks. Mr. James was asked whether he treated Baconsfield about the same as other city parks. He answered, 'Yes, included in my appropriation * * *.' The extent of the city's services to Baconsfield is evident from the increase of several thousand dollars in the annual expenses incurred for maintenance by the Board of Managers after the Mayor and City Council withdrew as trustees in 1964.
44
The city officials withdrew after suit was brought in a Georgia court by individual members of the Board of Managers to compel the appointment of private trustees on the ground that the public officials could not enforce racial segregation of the park. The Georgia court appointed private trustees, apparently on the assumption that they would be free to enforce the racially restrictive provision in Senator Bacon's will. In Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), we held that the park had acquired such unalterable indicia of a public facility that for the purposes of the Equal Protection Clause it remained 'public' even after the city officials were replaced as trustees by a board of private citizens. Consequently, Senator Bacon's discriminatory purpose could not be enforced by anyone. This Court accordingly reversed the Georgia court's acceptance of the city officials' resignations and its appointment of private trustees. On remand the Georgia courts held that since Senator Bacon's desire to restrict the park to the white race could not be carried out, the trust failed and the property must revert to his heirs. The Court today holds that that result and the process by which it was reached do not constitute a denial of equal protection. I respectfully dissent.
45
No record could present a clearer case of the closing of a public facility for the sole reason that the public authority that owns and maintains it cannot keep it segregated. This is not a case where the reasons or motives for a particular action are arguably unclear, cf. Palmer v. Thompson, 419 F.2d 1222 (C.A.5th Cir. 1969) (en banc), nor is it one where a discriminatory purpose is one among other reasons, cf. Johnson v. Branch, 364 F.2d 177 (C.A.4th Cir. 1966), nor one where a discriminatory purpose can be found only by inference, cf. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). The reasoning of the Georgia Supreme Court is simply that Senator Bacon intended Baconsfield to be a segregated public park, and because it cannot be operated as a segregated public park any longer, Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963); see Mayor & City Council of Baltimore v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 7 (1955), the park must be closed down and Baconsfield must revert to Senator Bacon's heirs. This Court agrees that this 'city park is (being) destroyed because the Constitution require(s) it to be integrated * * *.' No one has put forward any other reason why the park is reverting from the City of Macon to the heirs of Senator Bacon. It is therefore quite plain that but for the constitutional prohibition on the operation of segregated public parks, the City of Macon would continue to own and maintain Baconsfield.
46
I have no doubt that public park may constitutionally be closed down because it is too expensive to run or has become superfluous, or for some other reason, strong or weak, or for no reason at all. But under the Equal Protection Clause a State may not close down a public facility solely to avoid its duty to desegregate that facility. In Griffin v. County School Board, 377 U.S. 218, 231, 84 S.Ct. 1226, 1233, 12 L.Ed.2d 256 (1964), we said, 'Whatever nonracial grounds might support a State's allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional.' In this context what is true of public schools is true of public parks. When it is as starkly clear as it is in this case that a public facility would remain open but for the constitutional command that it be operated on a non-segregated basis, the closing of that facility conveys an unambiguous message of community involvement in racial discrimination. Its closing for the sole and unmistakable purpose of avoiding desegregation, like its operation as a segregated park, 'generates (in Negroes) a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.' Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954). It is no answer that continuing operation as a segregated facility is a constant reminder of a public policy that stigmatizes one race, whereas its closing occurs once and is over. That difference does not provide a constitutional distinction: state involvement in discrimination is unconstitutional, however short-lived.
47
The Court, however, affirms the judgment of the Georgia Supreme Court on the ground that the closing of Baconsfield did not involve state action. The Court concedes that the closing of the park by the city 'solely to avoid the effect of a prior court order directing that the park be integrated' would be unconstitutional. However, the Court finds that in this case it is not the State or city but 'a private party which is injecting the racially discriminatory motivation,' ante, at 445. The exculpation of the State and city from responsibility for the closing of the park is simply indefensible on this record. This discriminatory closing is permeated with state action: at the time Senator Bacon wrote his will Georgia statutes expressly authorized and supported the precise kind of discrimination provided for by him; in accepting title to the park, public officials of the City of Macon entered into an arrangement vesting in private persons the power to enforce a reversion if the city should ever incur a constitutional obligation to desegregate the park; it is a public park that is being closed for a discriminatory reason after having been operated for nearly half a century as a segregated public facility; and it is a state court that is enforcing the racial restriction that keeps apparently willing parties of different races from coming together in the park. That is state action in overwhelming abundance. I need emphasize only three elements of the state action present here.
48
First, there is state action whenever a State enters into an arrangement that creates a private right to compel or enforce the reversion of a public facility. Whether the right is a possibility of reverter, a right of entry, an executory interest, or a contractual right, it can be created only with the consent of a public body or official, for example the official action involved in Macon's acceptance of the gift of Baconsfield. The State's involvement in the creation of such a right is also involvement in its enforcement; the State's assent to the creation of the right necessarily contemplates that the State will enforce the right if called upon to do so. Where, as in this case, the State's enforcement role conflicts with its obligation to comply with the constitutional command against racial segregation the attempted enforcement must be declared repugnant to the Fourteenth Amendment.
49
Moreover, a State cannot divest itself by contract of the power to perform essential governmental functions. E.g., Contributors to Pennsylvania Hospital v. City of Philadelphia, 245 U.S. 20, 38 S.Ct. 35, 62 L.Ed. 124 (1917); Stone v. Mississippi, 101 U.S. 814, 25 L.Ed. 1079 (1880). Thus a State cannot bind itself not to operate a public park in accordance with the Equal Protection Clause, upon pain of forfeiture of the park. The decision whether or not a public facility shall be operated in compliance with the Constitution is an essential by governmental decision. An arrangement that purports to prevent a State from complying with the Constitution cannot be carried out, Evans v. Newton, supra; see Commonwealth of Pennsylvania v. Board of Directors, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1967). Nor can it be enforced by a reversion; a racial restriction is simply invalid when intended to bind a public body and cannot be given any effect whatever, cf. Commonwealth of Pennsylvania v. Brown, 392 F.2d 120 (C.A.3d Cir. 1968).
50
Initially the City of Macon was willing to comply with its constitutional obligation to desegregate Baconsfield. For a time the city allowed Negroes to use the park, 'taking the position that the park was a public facility which it could not constitutionally manage and maintain on a segregated basis.' Evans v. Newton, supra, 382 U.S. at 297, 86 S.Ct. at 487. But the Mayor and Council reneged on their constitutional duty when the present litigation began, and instead of keeping Baconsfield desegregated they sought to sever the city's connection with it by resigning as trustees and telling Superintendent James to stop maintaining the park. The resolution of the Mayor and Council upon their resignation as trustees makes it very clear that the probability of a reversion had induced them to abandon desegregation. Private interests of the sort asserted by the respondents here cannot constitutionally be allowed to control the conduct of public affairs in that manner.
51
A finding of discriminatory state action is required here on a second ground. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), stands at least for the proposition that where parties of different races are willing to deal with one another a state court cannot keep them from doing so by enforcing a privately devised racial restriction. See also Sweet Brair Institute v. Button, 280 F.Supp. 312 (D.C.W.D.Va.1967) (state attorney general enjoined from enforcing privately devised racial restriction). Nothing in the record suggests that after our decision in Evans v. Newton, supra, the City of Macon retracted its previous willingness to manage Baconsfield on a nonsegregated basis, or that the white beneficiaries of Senator Bacon's generosity were unwilling to share it with Negroes, rather than have the park revert to his heirs. Indeed, although it may be that the city would have preferred to keep the park segregated, the record suggests that, given the impossibility of that goal, the city wanted to keep the park open. The resolution by which the Mayor and Council resigned as trustees prior to the decision in Evans v. Newton, supra, reflected, not opposition to the admission of Negroes into the park, but a fear that if Negroes were admitted the park would be lost to the city. The Mayor and Council did not participate in this litigation after the decision in Evans v. Newton. However, the Attorney General of Georgia was made a party after remand from this Court, and, acting 'as parens patriae in all legal matters pertaining to the administration and disposition of charitable trusts in the State of Georgia in which the rights of beneficiaries are involved,' he opposed a reversion to the heirs and argued that Baconsfield should be maintained 'as a park for all the citizens of the State of Georgia.' Thus, so far as the record shows, this is a case of a state court's enforcement of a racial restriction to prevent willing parties from dealing with one another. The decision of the Georgia courts thus, under Shelley v. Kraemer, constitutes state action denying equal protection.
52
Finally, a finding of discriminatory state action is required on a third ground. In Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), this Court announced the basic principle that a State acts in violation of the Equal Protection Clause when it singles out racial discrimination for particular encouragement, and thereby gives it a special preferred status in the law, even though the State does not itself impose or compel segregation. This approach to the analysis of state action was foreshadowed in Mr. Justice White's separate opinion in Evans v. Newton, supra. There Mr. Justice White comprehensively reviewed the law of trusts as that law stood in Georgia in 1905, prior to the enactment of §§ 69-504 and 69-505 of the Georgia Code. He concluded that prior to the enactment of those statutes 'it would have been extremely doubtful' whether Georgia law authorized 'a trust for park purposes when a portion of the public was to be excluded from the park.' 382 U.S., at 310, 86 S.Ct., at 494. Sections 69-504 and 69-505 removed this doubt by expressly permitting dedication of land to the public for use as a park open to one race only. Thereby Georgia undertook to facilitate racial restrictions as distinguished from all other kinds of restriction on access to a public park. Reitman compels the conclusion that in doing so Georgia violated the Equal Protection Clause.
53
In 1911, only six years after the enactment of §§ 69—504 and 69—505, Senator Bacon, a lawyer, wrote his will. When he wrote the provision creating Baconsfield as a public park open only to the white race, he was not merely expressing his own testamentary intent, but was taking advantage of the special power Georgia had conferred by §§ 69—504 and 69—505 on testators seeking to establish racially segregated public parks. As Mr. Justice White concluded in Evans v. Newton, "the State through its regulations has become involved to such a significant extent' in bringing about the discriminatory provision in Senator Bacon's trust that the racial restriction 'must be held to reflect * * * state policy and therefore to violate the Fourteenth Amendment." 382 U.S., at 311, 86 S.Ct., at 495. This state-encouraged testamentary provision is the sole basis for the Georgia courts' holding that Baconsfield must revert to Senator Bacon's heirs. The Court's finding that it is not the State of Georgia but 'a private party which is injecting the racially discriminatory motivation' inexcusably disregards the State's role in enacting the statute without which Senator Bacon could not have written the discriminatory provision.
54
This, then, is not a case of private discrimination. It is rather discrimination in which the State of Georgia is 'significantly involved,' and enforcement of the reverter is therefore unconstitutional. Cf. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964).
55
I would reverse the judgment of the Supreme Court of Georgia.
1
See, e.g., First Universalist Society of Bath v. Swett, 148 Me. 142, 90 A.2d 812 (1952); LaFond v. City of Detroit, 357 Mich. 362, 98 N.W.2d 530 (1959).
2
Although Senator Bacon's will did not contain an express provision granting a reverter to any party should the trust fail, § 108-106(4) of the Georgia Code quoted in the text makes such an omission irrelevant under state law. At one point in the Senator's will he did grant 'all remainders and reversions' to the city of Macon, but the Supreme Court of Georgia showed in its opinion that this language did not relate in any way to what should happen upon a failure of the trust but was relevant only to the initial vesting of the property in the city. The Georgia court said:
'Senator Bacon devised a life estate in the trust property to his wife and two daughters, and the language pointed out by the intervenors appears in the following provision of the will: 'When my wife, Virginia Lamar Bacon and my two daughters, Mary Louise Bacon Sparks and Augusta Lamar Bacon Curry, shall all have departed this life, and immediately upon the death of the last survivor of them, it is my will that all right, title and interest in and to said property hereinbefore described and bounded, both legal and equitable, including all remainders and reversions and every estate in the same of whatsoever kind, shall thereupon vest in and belong to the Mayor and Council of the City of Macon, and to their successors forever, in trust etc.' This language concerned remainders and reversions prior to the vesting of the legal title in the City of Macon, as trustee, and not to remainders and reversions occurring because of a failure of the trust, which Senator Bacon apparently did not contemplate, and for which he made no provision.' 224 Ga. 826, 831, 165 S.E.2d 160, 165.
| 12
|
396 U.S. 471
90 S.Ct. 671
24 L.Ed.2d 663
Anghel GOLDSTEIN aka Andrei Pietraru et al., Appellants,v.Joseph A. COX et al.
No. 66.
Argued Nov. 17, 1969.
Decided Jan. 26, 1970.
John R. Vintilla, Cleveland, Ohio, for appellants.
Daniel M. Cohen, New York City, for appellees.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Appellants are beneficiaries of New York decedents' estates who live in Romania. Their shares of these estates have not been distributed to them, but have been paid into court for their benefit under § 2218 of the New York Surrogate's Court Procedure Act. Section 2218 authorizes the surrogate to order an alien's share of a New York estate paid into court when it appears that the alien 'would not have the benefit or use or control of the money or other property' constituting the share.1
2
In 1966, appellants filed a complaint in the United States District Court for the Southern District of New York, challenging what is now § 2218 on the grounds that it denied them due process and equal protection, that it unconstitutionally intruded upon the Federal Government's conduct of foreign relations, and that it conflicted with federal regulations permitting the payment of federal funds to persons in Romania. Appellants prayed for both temporary and permanent injunctive relief against further operation of the statute, and therefore requested the impaneling of a three-judge court. A single district judge declined to request a three-judge court on the ground that the constitutional questions raised were frivolous, and the Court of Appeals for the Second Circuit affirmed. This Court granted certiorari, vacated the judgment, and remanded the case to the Court of Appeals for further consideration in the light of Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683, decided the same day. 389 U.S. 581, 88 S.Ct. 694, 19 L.Ed.2d 781 (1968). On remand, the Court of Appeals reversed the original order of the District Court, and remanded the case for consideration by a three-judge court. 391 F.2d 586 (C.A.2d Cir. 1968).
3
Appellants then moved for summary judgment, urging that § 2218 was unconstitutional, either on its face or as applied, under the principles of Zschernig v. Miller, supra. In their motion they requested 'the relief demanded in the complaint.' They accompanied their motion with an affidavit, largely consisting of a memorandum of law arguing that the application of § 2218 by the New York courts ran afoul of Zschernig.
4
Appellees, surrogates of several New York counties, opposed the motion for summary judgment and further requested that the action be dismissed. In their accompanying affidavit, they argued that § 2218 was constitutional on its face and that there was at least a triable issue of fact whether it was being constitutionally applied.
5
The District Court denied summary judgment, but did not dismiss the action. 299 F.Supp. 1389 (D.C.S.D.N.Y.1968). In its opinion it held that § 2218 was not unconstitutional on its face under Zschernig, and that the only reported post-Zschernig construction of the statute, Matter of Leikind, 22 N.Y.2d 346, 292 N.Y.S.2d 681, 239 N.E.2d 550 (1968), app. docketed, No. 68, O.T. 1969, did not show unconstitutional application.
6
From the order denying summary judgment, appellants took an appeal to this Court, claiming that we had jurisdiction under 28 U.S.C. § 1253, which provides:
7
'Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.'
8
Appellees did not oppose jurisdiction, but rather filed a motion to affirm. We noted probable jurisdiction, 394 U.S. 996, 89 S.Ct. 1593, 22 L.Ed.2d 774 (1969), and received briefs and heard argument confined to the merits. Further examination of the case since oral argument has for the first time raised the question of our jurisdiction, and we have concluded that we lack jurisdiction of the appeal.
9
A preliminary question is whether the District Court's order denying summary judgment to a plaintiff who has requested injunctive relief is 'an order * * * denying * * * an * * * injunction' within the meaning of § 1253. In construing the analogous provision giving the courts of appeals jurisdiction to hear appeals from interlocutory orders granting or denying injunctions, 28 U.S.C. § 1292(a)(1), this Court has ruled that a denial of summary judgment is not an appealable order denying an injunction, at least where the denial is based upon the existence of a triable issue of fact. Switzerland Cheese Ass'n. v. Horne's Market, 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966).2 However we need not decide whether the same treatment should be given to denials of summary judgment under § 1253, for we conclude that the only interlocutory orders that we have power to review under that provision are orders granting or denying preliminary injunctions. Since in our view the District Court here decided no question of preliminary injunctive relief, we cannot review is order.
10
Section 1253, along with the other provisions concerning three-judge district courts, 28 U.S.C. §§ 2281—2284 (a collectivity hereinafter referred to as the Three-Judge Court Act), derives from § 266 of the Judicial Code of 1911, 36 Stat. 1162, which in turn derived from § 17 of the Mann-Elkins Act of 1910, 36 Stat. 557. As originally enacted, the Three-Judge Court Act required that no interlocutory injunction restraining the operation of any state statute on constitutional grounds could be issued, except by a three-judge court, and provided that '(a)n appeal may be taken directly to the Supreme Court of the United States from the order granting or denying * * * an interlocutory injunction in such case.' 36 Stat. 557. The Act grew out of the public furor over what was felt to be the abuse by federal district courts of their injunctive powers in cases involving state economic and social legislation. While broad and radical proposals were made to deal with the problem, including proposals to deprive the federal courts of all jurisdiction to enjoin state officers, Congress compromised on a provision that would deal with what was felt to be the worst abuse—the issuance of temporary restraining orders and preliminary injunctions against state statutes, either ex parte or merely upon affidavits, and subject to limited and ineffective appellate review. See Phillips v. United States, 312 U.S. 246, 250, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941); Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795, 803—810 (1934); Note, The Three-Judge District Court and Appellate Review, 49 Va.L.Rev. 538, 539—543 (1963).
11
Until 1925, the Act required a three-judge court only on application for an interlocutory (or, as we would say, preliminary) injunction. In that year, the Act was amended to carry the three-judge requirement forward to the issuance of a permanent injunction, 43 Stat. 938, 'in order to avoid the anomalous result of having a single judge review the decree of three judges at the final hearing.' Note, 49 Va.L.Rev., supra, at 543. The provision governing appeal to this Court was correspondingly amended to allow direct appeal from 'a final decree granting or denying a permanent injunction * * *.' 43 Stat. 938.
12
Thus, as of 1925, the provisions of the Three-Judge Court Act relating to appeal to this Court, set out in the Judicial Code, as amended, read as follows:
13
'An appeal may be taken directly to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction in such case * * *.' 36 Stat. 557.
14
'* * * and a direct appeal to the Supreme Court may be taken from a final decree granting or denying a permanent injunction in such suit.' 43 Stat. 938. (Emphasis added.)
15
As clearly as language can, this language confined this Court's review of three-judge court action to (1) final judgments granting or denying permanent injunctions, and (2) interlocutory orders granting or denying preliminary injunctions.
16
In 1948, the present Judicial Code was enacted, including § 1253 as it now stands. As the language now reads, the Court has appellate jurisdiction over any three-judge court order 'granting or pernying * * * an interlocutory or permanent injunction.' On its face, this language is subject to the construction that interlocutory orders denying permanent as well as preliminary injunctions can be appealed to this Court. However, such a construction would involve an expansion of this Court's mandatory appellate jurisdiction over that granted by the clear language of the prior statute. The Reviser's Note to § 1253 indicates no intent to make such a substantive change; indeed, it refers to the section as merely a consolidation of prior provisions in Title 28, themselves derived from the statute as adopted and amended by Congress.3
17
This Court has more than once stated that its jurisdiction under the Three-Judge Court Act is to be narrowly construed since 'any loose construction of the requirements of (the Act) would defeat the purposes of Congress * * * to keep within narrow confines our appellate docket.' Phillips v. United States, supra, 312 U.S., at 250, 61 S.Ct. at 483. See Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 375, 69 S.Ct. 606, 610, 93 L.Ed. 741 (1949); Moore v. Fidelity & Deposit Co., 272 U.S. 317, 321, 47 S.Ct. 105, 106, 71 L.Ed. 273 (1926). That canon of construction must be applied with redoubled vigor when the action sought to be reviewed here is an interlocutory order of a trial court. In the absence of clear and explicit authorization by Congress, piece-meal appellate review is not favored. Switzerland Cheese Ass'n. v. Horne's Market, supra, 385 U.S., at 24, 87 S.Ct., at 194, 17 L.Ed.2d 23, and this Court above all others must limit its review of interlocutory orders. Hamilton-Brown Shoe Co. v. Wolf Brothers, 240 U.S. 251, 258, 36 S.Ct. 269, 271, 60 L.Ed. 629 (1916). In light of these factors, and the history of the statute as set out above, we cannot but conclude that our jurisdiction over interlocutory orders under § 1253 is confined to roders granting or denying a preliminary injunction.
18
As we read the record, this is not such an order. Appellants did, in their original complaint, pray for preliminary as well as permanent injunctive relief. And in moving for summary judgment, they requested 'the relief demanded in the complaint.' However, they took no practical step toward obtaining such relief. They filed no separate application for a preliminary injunction. In none of their papers, in the District Court or in this Court, have they urged the appropriateness of temporary relief. The District Court in its opinion in no way adverted to the possibility of such relief being granted. Indeed, in the nature of the case, preliminary injunctive relief could never have been a practical possibility. Appellants are seeking the release of funds held in court in New York to beneficiaries outside the jurisdiction of the United States. Any injunction granting relief of this sort must necessarily have been final in its effect, and could hardly have been awarded in the absence of a final determination on the merits in appellants' favor. Since the order here in question is an interlocutory one, and is not an order granting or denying a preliminary injunction, we must dismiss the appeal from that order for want of jurisdiction. It is so ordered.
19
Appeal dismissed.
20
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
21
If summary judgment1 had been granted to appellant, there would be no question but that this Court would have jurisdiction under 28 U.S.C. § 1253 over an appeal from that judgment, as it would constitute an 'order granting * * * an interlocutory or permanent injunction.' Similarly, there seems little room for argument that the denial of summary judgment to appellants constitutes an order 'denying * * * an interlocutory or permanent injunction,' since such injunctive relief was requested in appellants' complaint.2 The majority opinion relies on Switzerland Cheese Ass'n v. Horne's Market, 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23, as authority for dismissing this appeal for want of jurisdiction under 28 U.S.C. § 1253. In that case, however, the denial of summary judgment was based solely on the existence of a triable issue of fact;3 the summary judgment did not concern in any way the merits of the case. This case involves more. Appellants claimed that § 2218 of the New York Surrogate's Court Procedure Act was unconstitutional on its face. The denial of summary judgment constituted a rejection of this claim on the merits, as well as a denial of injunctive relief based on that claim. On this basis, I would find jurisdiction under 28 U.S.C. § 1253 to decide this appeal on the merits.
1
Section 2218 (Supp. 1969), formerly § 269—a of the New York Surrogate's Court Act, reads as follows:
'1. (a) Where it shall appear that an alien legatee, distributee or beneficiary is domiciled or resident within a country to which checks or warrants drawn against funds of the United States may not be transmitted by reason of any executive order, regulation or similar determination of the United States government or any department or agency thereof, the court shall direct that the money or property to which such alien would otherwise be entitled shall be paid into court for the benefit of said alien or the person or persons who thereafter may appear to be entitled thereto. The money or property so paid into court shall be paid out only upon
order of the surrogate or pursuant to the order or judgment of a court of competent jurisdiction.
'(b) Any assignment of a fund which is required to be deposited pursuant to the provisions of paragraph one (a) of this section shall not be effective to confer upon the assignee any greater right to the delivery of the fund than the assignor would otherwise enjoy.
'2. Where it shall appear that a beneficiary would not have the benefit or use or control of the money or other property due him or where other special circumstances make it desirable that such payment should be withheld the decree may direct that such money or property be paid into court for the benefit of the beneficiary or the person or persons who may thereafter appear entitled thereto. The money or property so paid into court shall be paid out only upon order of the court or pursuant to the order or judgment of a court of competent jurisdiction.
'3. In any such proceeding where it is uncertain that an alien beneficiary or fiduciary not residing within the United States, the District of Columbia, the Commonwealth of Puerto Rico or a territory or possession of the United States would have the benefit or use or control of the money or property due him the burden of proving that the alien beneficiary will receive the benefit or use or control of the money or property due him shall be upon him or the person claiming from, through or under him.'
2
The Second Circuit originally took the view that denial of summary judgment, where an injunction had been prayed for, was an appealable order denying an injunction under § 1292(a)(1), Federal Glass Co. v. Loshin, 217 F.2d 936 (2 Cir., 1954) (L. Hand, J.; Frank, J., concurring; Clark, J., dissenting). This was contrary to the majority view that such orders were not appealable, a view best represented by Morgenstern Chemical Co. v. Schering Corp., 181 F.2d 160 (C.A.3d Cir. 1950). The Second Circuit, even before this Court's decision in Switzerland Cheese Ass'n., supra, had reversed its position. Chappell & Co. v. Frankel, 367 F.2d 197 (2 Cir. 1966) (en banc). See also 6 J. Moore, Federal Practice 56.21(2), at 2791—2792 (2d ed. 1966).
In Switzerland Cheese Ass'n., supra, this Court left open the question whether an order denying summary judgment might be appealable as an order denying an injunction when the ground for the denial was other than the existence of a triable issue of fact.
3
The 1948 revision of the Judicial Code did make one substantive change in the Three-Judge Court Act; it eliminated the requirement, imposed by the 1925 amendment, that a three-judge court should be required to hear an application for a permanent injunction only where an application for a preliminary injunction had originally been made. Reviser's Note, 28 U.S.C. § 2281.
1
The appellants' motion for summary judgment was as follows:
'Plaintiffs move the court as follows:
'1. That it enter, pursuant to Rule 56 of the Federal Rules of Civil Procedure, a summary judgment in plaintiffs' favor for the relief demanded in the complaint on the ground that there is no genuine issue as to any material fact and that plaintiff is entitled to a judgment as a matter of law; and, especially, in the light of Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683 (1/15/68), decided by the Supreme Court of the United States.
'The Affidavit of John R. Vintilla is attached hereto in support of this motion.'
2
The 'relief demanded in the complaint' included:
'That (the District Court) issue a permanent injunction forever restraining and enjoining the defendants and each of them, their agents and employees, from denying plaintiffs, and others similarly situated the right to their distributive shares from decedents' estates, and to other funds to which they may be entitled; that the defendants, and each of them, their agents, and employees, be ordered and directed to take such action as shall be necessary to deliver the distributive shares and other funds which are due and owing to and being withheld from these plaintiffs and others similarly situated.
'That pending the final hearing and determination of this complaint upon its merits, the Court issue a preliminary injunction, restraining the defendants and each of them, their agents, and employees, from denying the plaintiffs, and others similarly situated, the right to their distributive shares and other funds to which they may be entitled.' (Emphasis added.)
3
Switzerland Cheese Ass'n. involved an action for unfair competition under the federal trademark laws, 60 Stat. 427, 15 U.S.C. § 1051 et seq. The sole claim was that defendant's actions in selling cheese labeled as 'imported Swiss cheese' which had been imported into the United States from a country other than Switzerland were illegal under the trademark laws. The defense was that 'imported Swiss cheese' had come to have an accepted meaning in the trade of Swiss cheese that had been imported from any country. The District Court found that the meaning in the trade of 'imported Swiss cheese' was an issue of fact as to which there was a genuine dispute, and therefore denied the plaintiffs' motion for summary judgment.
The request for injunctive relief therefore had to await a jury trial on the facts.
| 89
|
396 U.S. 488
90 S.Ct. 641
24 L.Ed.2d 677
Bernard SHAPIRO, Welfare Commissioner of the State of Connecticutv.Jane DOE.
No. 805.
Jan. 26, 1970.
Rehearing Denied March 2, 1970.
See 397 U.S. 970, 90 S.Ct. 991.
Robert K. Killian, Atty. Gen. of Connecticut, and Francis J. MacGregor, Asst. Atty. Gen., for appellant.
Lee A. Albert, for appellee.
PER CURIAM.
1
The motion of the appellee for leave to proceed in forma pauperis is granted. The motion to dismiss is also granted and the appeal is dismissed for failure to docket the case within the time prescribed by Rule 13.
2
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
3
In this case a three-judge United States District Court invalidated a Connecticut state welfare regulation requiring the mother of an illegitimate child to reveal the name of the child's father as a precondition to receiving welfare assistance on the ground that the regulation imposed an additional condition of welfare eligibility not required or authorized by the Social Security Act, 49 Stat. 620, as amended, 42 U.S.C. §§ 601—610 (1964 ed. and Supp. IV), 302 F.Supp. 761. The case comes to this Court on direct appeal taken by Connecticut welfare officials pursuant to the authorization in 28 U.S.C. § 1253. There can be no doubt about the fact that this appeal presents a federal question which should be decided here and that this Court has jurisdiction over the appeal since appellee's statutory claim was initially joined with a constitutional attack upon the Connecticut regulation. Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960). Yet, the Court today dismisses this appeal on the ground that it was not timely docketed in accordance with Rule 13(1) of the Rules of the United States Supreme Court. Rule 13(1) provides that in cases appealed pursuant to 28 U.S.C. § 1253 the time limit for docketing the appeal shall be 60 days from the filing of the notice of the appeal. In this case the notice of appeal was properly filed pursuant to 28 U.S.C. § 2101(b) on September 2, 1969. The 60-day time limit thus expired on November 1, 1969, but appellants did not docket the appeal until November 3, 1969, two days later, one of which was a Sunday. It is because of this minor an essentially technical infraction of its own Rules that the Court today dismisses this important appeal. I cannot agree with such a result. Time defects such as this one involving only a failure to comply with the Rules of this Court do not rise to jurisdictional proportions and can be waived by the Court when the interests of justice so require. Taglianetti v. United States, 394 U.S. 316 n. 1, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969). Given the importance of the issue in this case and the harmless, undoubtedly inadvertent nature of appellant's error, this case seems to me an altogether appropriate one for the waiver of Rule 13(1). The Court hardly puts its best foot forward when it dismisses so substantial an appeal on so technical a ground. I would waive the time defect, note probable jurisdiction, and consider the issue presented in this appeal on the merits.
| 89
|
396 U.S. 482
90 S.Ct. 667
24 L.Ed.2d 672
Maurice H. SIGLER, Warden, Petitionerv.Darrel F. PARKER.
No. 743.
Jan. 26, 1970.
Clarence A. H. Meyer, Atty. Gen. of Nebraska, and Ralph H. Gillan, Asst. Atty. Gen., for petitioner.
Richard J. Bruckner, for respondent.
PER CURIAM.
1
In 1956 respondent was found guilty in a Nebraska court of first-degree murder; he was sentenced to life imprisonment. After exhausting his post-conviction remedies under Nebraska law, respondent petitioned the United States District Court for the District of Nebraska for a writ of habeas corpus. After an evidentiary hearing, the District Court dismissed the petition. One of the issues presented to the District Court was the voluntariness of confessions used against respondent at his trial. Relying on the findings of the state court in a 1965 post-conviction proceeding, the District Court concluded that the confessions were voluntarily given and hence admissible. The Court of Appeals for the Eighth Circuit, without reaching the other issues before it, reversed on the ground that respondent's confessions were involuntary. 413 F.2d 459 (1969). The court first found that the opinion of the Nebraska Supreme Court affirming respondent's conviction indicated that the trial judge had not found the confessions voluntary before admitting them into evidence. The court then found that this violation of the procedural rule of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), had tainted all subsequent findings of voluntariness in the Nebraska courts and in the District Court. Since it seemed 'unlikely that either party has any additional substantial evidence on the voluntariness issue,' 413 F.2d, at 463, the Court of Appeals chose to evaluate the confessions itself rather than to remand the case to allow the State to make an untainted determination on the voluntariness question. After examining the record of the trial and the post-conviction proceedings, the court held that the confessions could on no view of the evidence be deemed voluntary. On the basis of this determination, the court directed that the writ of habeas corpus should be granted unless within a reasonable time respondent was given a new trial from which the confessions were excluded.
2
We agree with the Court of Appeals that the record of proceedings in the trial court and the opinion of the Nebraska Supreme Court affirming respondent's conviction do not justify a conclusion that the trial judge made his own determination of voluntariness as required by Jackson v. Denno, supra. See Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). In addition, we accept the Court of Appeals' determination that all subsequent findings of voluntariness were made at least in part in reliance on the first, procedurally defective, determination of the admissibility of the confessions.* However, as indicated in our opinion in Jackson v. Denno, supra, 378 U.S., at 391—396, 84 S.Ct., at 1788—1791, the appropriate remedy when a federal court finds a Jackson v. Denno error in a prior state proceeding is to allow the State a reasonable time to make an error-free determination on the voluntariness of the confession at issue. Hence it was error for the Court of Appeals to pass judgment on the voluntariness of respondent's confessions without first permitting a Nebraska court to make such an evaluation uninfluenced by the apparent finding of voluntariness at the 1956 trial.
3
The writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to that court for further proceedings consistent with this opinion.
4
It is so ordered.
5
Mr. Justice BLACK, with whom THE CHIEF JUSTICE joins, dissenting.
6
This Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), held over my dissent that the question of the voluntariness of a defendant's alleged confession must be made by the trial judge in a separate proceeding prior to the submission of the confession to the jury, and that insofar as federal questions concerning coercion under the Fifth Amendment were involved the decision of the trial judge forecloses the jury from passing upon the voluntariness question. In my dissent I said:
7
'Whatever might be a judge's view of the voluntariness of a confession, the jury in passing on a defendant's guilt or innocence is, in my judgment, entitled to hear and determine voluntariness of a confession along with other factual issues on which its verdict must rest.' Id., at 401, 84 S.Ct., at 1794.
8
I adhere to that dissent and hope that at some future time this Court will restore to defendants their right to have the voluntariness of alleged confessions determined by the jury as the Sixth Amendment requires.
9
I would not object if the Court were remanding the case for a new and complete retrial in which a Nebraska jury of the defendant's peers could determine after hearing the evidence whether the alleged confessions had been voluntarily given. Clearly, when a jury passes upon the truthfulness of a confession, as it must do when a confession is offered, the jury must also be allowed to determine whether the confession was caused by police coercion or whether it was freely given. Jackson v. Denno thus took away a defendant's traditional right to have the jury decide for itself whether a confession was tainted and probably untrue because it was coerced. The vital importance of this issue to defendants tried in this country is a sufficient reason for me to continue my protest against the Court's holding in Jackson v. Denno.
10
Mr. Justice DOUGLAS, dissenting.
11
Respondent was convicted of murder and he was sentenced to life imprisonment on June 2, 1956, nearly 14 years ago. On appeal, his conviction was affirmed. Parker v. State, 164 Neb. 614, 83 N.W.2d 347, and we denied certiorari, 356 U.S. 933, 78 S.Ct. 775, 2 L.Ed.2d 763.
12
In 1962 respondent filed a petition for writ of error coram nobis in the trial court which was dismissed. The dismissal was affirmed on appeal. Parker v. State, 178 Neb. 1, 131 N.W.2d 678.
13
In 1963 respondent sought post-conviction relief in the Nebraska court, alleging that the confessions obtained from him and used at the trial were involuntary and in violation of the Federal Constitution. The court after an evidentiary hearing denied relief and the Supreme Court of Nebraska affirmed. State v. Parker, 180 Neb. 707, 144 N.W.2d 525.
14
In 1966 respondent filed the present petition for habeas corpus in the Federal District Court, again challenging the voluntariness of the confessions. Again a full evidentiary hearing was held and the petition was denied. That was on June 27, 1968. On July 18, 1969, the Court of Appeals reversed, 413 F.2d 459, saying:
15
'The interest of justice would not be served by remanding this case for a hearing upon the voluntariness of the confession(s) if the factual background in the present case is such that in event the state court again found the confession(s) voluntary, a determination that such finding was not warranted would be required. In both the state and federal post conviction hearings reliance was placed upon the extensive record made on voluntariness at the trial, and no additional evidence was introduced. Thus it would seem unlikely that either party has any additional substantial evidence on the voluntariness issue.' Id., at 463.
16
The issue of voluntariness vel non of the confessions is a much-plowed field. If the federal courts were coming to this question without prior state opportunity to act, I would agree that the federal courts should not act until the state tribunal first had the opportunity to try the issue. Moreover, it would be more appropriate, as Mr. Justice BLACK says, to remand the case so that there might be a new trial before a jury. But if this issue is to be resolved in a habeas corpus proceeding, where traditionally a jury does not sit,* then we should affirm the Court of Appeals. The issue as to the voluntary character of the confessions has been hotly contested and the facts thoroughly exposed in the state proceedings. And the conclusion by the Court of Appeals that the confessions were not voluntary is a responsible one. Moreover the observation of the Supreme Court of Nebraska that there is no evidence of 'a real miscarriage of justice,' State v. Parker, 180 Neb., at 714, 144 N.W.2d, at 529, though popular in some legal circles, is irrelevant. For under our presumably civilized constitutional procedures, a conviction on a coerced confession, even of one whom we despise, is intolerable.
*
After a hearing in 1965 under the Nebraska Post Conviction Act, Neb.Rev.Stat. §§ 29—3001 to 29—3004 (Cum.Supp.1967), the state trial court found that the record and exhibits indicated that the confessions were voluntary. The Court of Appeals may have deemed this conclusion unsatisfactory because the state court's finding on the voluntariness question was followed immediately by a reference to the original determination, at trial and on appeal from the conviction, as to the admissibility of the confessions. The Court of Appeals' view is supported by the fact that the Nebraska Supreme Court relied heavily on the apparent finding of voluntariness at the original trial and on appeal in affirming the trial court's denial of collateral relief. State v. Parker, 180 Neb. 707, 144 N.W.2d 525 (1966).
*
The rule that there is no right to jury trial in habeas corpus cases has been codified in the federal statute, 28 U.S.C. § 2243:
'The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.'
Section 2243 does not preclude the use of an advisory jury pursuant to Fed.Rule Civ.Proc. 39(c). See 5 J. Moore, Federal Practice 265—269 (1969); cf. W. Church, A Treatise on the Writ of Habeas Corpus 256 (2d ed. 1893). Yet the use of an advisory jury is discretionary only. See Barry v. White, 62 App.D.C. 69, 70, 64 F.2d 707, 708 (1933).
'(T)he court should not utilize an advisory jury, if to do so would delay the hearing of the habeas corpus proceeding; and as a matter of sound practice the advisory jury should be used, if at all, only in the rare and exceptional case.' Moore, supra, at 168 269.
| 01
|
396 U.S. 491
90 S.Ct. 708
24 L.Ed.2d 700
UNITED STATES, Appellant,v.INTERSTATE COMMERCE COMMISSION et al. Charles E. BRUNDAGE et al., Appellants, v. UNITED STATES et al. CITY OF AUBURN, Appellant, v. UNITED STATES et al. LIVINGSTON ANTI-MERGER COMMITTEE, Appellant, v. INTERSTATE COMMERCE COMMISSION et al.
Nos. 28, 38, 43, 44.
Argued Oct. 21 and 22, 1969.
Decided Feb. 2, 1970.
[Syllabus from pages 491-494 intentionally omitted]
Richard W. McLaren, Chicago, Ill., Louis B. Dailey, New York City, and Valentine B. Deale, Washington, D.C., for appellants.
Fritz R. Kahn, Hugh B. Cox, Washington, D.C., Fred H. Tolan, Seattle, Wash., and R. K. Merrill, Chicago, Ill., for appellees.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The Interstate Commerce Commission orders that give rise to these appeals grow out of applications seeking approval of a merger plan filed by the Great Northern Railway Company and the Northern Pacific Railway Company (collectively the Northern Lines), and three of their subsidiaries—the Pacific Coast Railroad Company, the Chicago, Burlington & Quincy Railroad Company (Burlington), and the Spokane, Portland & Seattle Railway Company (SP&S). The Commission approved the merger and a three-judge Federal District Court for the District of Columbia affirmed the orders of the Commission.1 We affirm the judgment of the District Court.
2
The factual and historical setting of the merger is important to an understanding of our disposition of these appeals. Great Northern operates some 8,200 miles of road located in 10 States and two Canadian provinces. Northern Pacific has approximately 6,200 miles of track in seven States and one Canadian province. The Northern Lines operate largely in the area west of St. Paul, Minneapolis, and Duluth, running from these points across the Northern Tier of States (Minnesota, North Dakota, Montana, Idaho, and Washington) to Spokane, Tacoma, and Portland. The Northern Pacific's tracks run generally somewhat to the south of the Great Northern's. The Northern Lines jointly own and control the Burlington and the SP&S, while the Great Northern owns and controls the Pacific Coast Railroad Company. The Burlington's 8,648 miles of track extend from Chicago to the Twin Cities and generally southwesterly to Missouri, Kansas, Colorado, and Montana. By its subsidiaries2 the Burlington reaches the Gulf of Mexico at Houston and Galveston. The SP&S has 599 miles of road in Oregon and Washington, of which 515 are mainline. This mainline provides the most direct route from Spokane to Portland and is of strategic importance to the Northern Lines because Spokane lies on their main transcontinental routes and Portland is an important West Coast terminal for both roads. The Pacific Coast has 32 miles of track, all in King County, Washington; its rolling stock and motive power are leased from the Great Northern.
3
Rail competition in the areas served by the Northern Lines is principally between three carriers: the Great Northern, the Northern Pacific, and the Chicago, Milwaukee, St. Paul & Pacific Railroad Company (Milwaukee). Because the Burlington's routes largely complement those of the Northern Lines, there is no substantial competition between the Burlington and its corporate parents. The Great Northern and the Northern Pacific overshadow the Milwaukee and are each the principal competitor of the other. The Northern Lines carry the lion's share of traffic between the Twin Cities and Duluth and the Pacific Northwest, both roads having good access to the Pacific Northwest through control of certain vital gateways in the area. Although the Milwaukee was designed and constructed to be a competitor of the Northern Lines, it has never accounted for a large percentage of the carriage across the Northern Tier States to the Pacific Northwest; it has never become a ratemaking railroad. The explanation for this is that although possessing superior grades and a shorter route west of the Twin Cities, it has never had adequate access to the gateways of the Pacific Northwest, largely because of the Northern Lines' control of the SP&S. As a result, its role has been that of a shorthaul carrier feeding much profitable long-haul traffic to the Northern Lines at St. Paul and Minneapolis.
4
The population of the Northern Tier region traversed by the Northern Lines and the Milwaukee is concentrated largely in its easterly and westerly extremities. The Northern Tier is rich in agricultural and mineral resources, and embraces the country's richest timber reserves. However, the markets for the products of the Northern Tier are limited in number and distant from the region; the major shipments must move east. Thus, transportation capable of carrying its bulk products at a rate low enough to permit participation in those markets is of extreme importance to the region. Rail transportation well serves this need. There has been historically, however, an imbalance between the low-rated agricultural, mineral, and forest produce traffic flowing out of the region, and high-rated manufactured goods flowing into the region. The former is traffic inherently suited to rail transport, but the latter is subject to incursions from other modes of carriage. Although water traffic in the Northern Tier is virtually nonexistent, truck competition has been present for some time and is growing.
5
Northern Pacific and Great Northern have long sought to merge into a single unified transportation system. In Pearsall v. Great Northern R. Co., 161 U.S. 646, 16 S.Ct. 705, 40 L.Ed. 838 (1896), this Court ruled that an attempt to consolidate the operation of the two roads was contrary to a Minnesota statute prohibiting the consolidation of parallel and competing railroads. The next merger attempt was struck down in Northern Securities Co. v. United States, 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679 (1904), as contrary to the Sherman Act, 26 Stat. 209, 15 U.S.C. § 1 et seq.3 Then the declining fortunes of rail carriers led Congress to enact the Transportation Act of 1920, 41 Stat. 456, which charged the Interstate Commerce Commission with the affirmative responsibility to formulate plans for simplifying the Nation's rail transport 'into a limited number of systems.' 41 Stat. 481. This engendered a third effort, under the Commission's auspices, to merge the Northern Lines.4 However, this effort foundered on the Commission's requirement that the Burlington be excluded from the Northern Lines system, and the Northern Lines were unwilling to consolidate without the Burlington.
6
* The Present Merger
7
In 1955 the Northern Lines began investigating anew the possibility of a merger that would combine five roads—the Burlington, the SP&S, the Pacific Coast, and the Northern Lines—to form a New Company. Extensive negotiations dealing with all phases of the proposed merger were commenced. Five years later, in 1960, an agreement was finally reached. It provided that the Northern Lines, the Burlington, and the Pacific Coast be merged into New Company, which was to acquire the subsidiaries of the merged companies as well as all their leasehold, trackage, and joint-use rights in other carriers and the terminals incident thereto. New Company would lease the SP&S, thereby acquiring that road's subsidiaries and trackage rights.
8
The merger agreement further provided that Northern Pacific shareholders would receive common stock of New Company on a share-for-share basis. Great Northern stockholders would receive one share of New Company common for each share of Great Northern and, in addition, one-half share of New Company $10 par 5 1/2% preferred for each share of Great Northern held at the date of the merger, this preferred stock to be retired over a 25-year period, beginning at the fifth anniversary of the merger, and to be redeemable at the option of New Company any time after the fifth anniversary of the merger. The Burlington stock held by the Northern Lines, amounting to 97.18% of the total shares outstanding, would be canceled and the remaining shareholders given 3.25 shares of New Company common for each share of Burlington.
Commission Proceedings
9
First Report.—As a result of these renewed merger negotiations between 1955 and 1960, applications were filed in 1961 under § 5 of the Interstate Commerce Act, 24 Stat. 380, as amended, 49 U.S.C. § 5, seeking approval of the merger and authorization for the issuance of stock and securities, the assumption of obligations and other authority necessary to effectuate the merger.5 Extensive public hearings were held in 1961 and 1962 at which the Department of Justice, the Department of Agriculture, various railway employee groups, nine States or state regulatory agencies, and the Milwaukee and the Chicago & North Western Railway Company (North Western), inter alia, actively opposed the merger as proposed. Shippers and related interest groups appeared in support of the proposal. The Hearing Examiner submitted a report in 1964 recommending approval of the merger and the related transactions, subject to certain protective conditions. The Commission heard oral argument and in a report dated March 31, 1966 (First Report), rejected the Examiner's recommendation and disapproved the merger by a vote of 6 to 5.6
10
The applicants petitioned for a reconsideration, asserting that they were willing to accept all protective conditions sought by the Milwaukee and another affected road, the North Western, that they had entered into attrition agreements with the objecting unions for the protection of the employees, and that the merger would yield dollar savings greater than those estimated in the First Report. While this petition was pending before the Commission, the applicants entered into agreements with the North Western and the Milwaukee which provided that the merger applicants would agree to all the conditions sought by those roads; the Milwaukee and the North Western then agreed to support the merger.7 Thereafter, these roads withdrew their opposition to the merger and urged the Commission to approve it. Approval was advocated or objections withdrawn by a number of parties who had previously either completely opposed the merger or opposed it absent imposition of adequate protective conditions. These included the Department of Agriculture, the Public Utility Commissioner or Oregon, and the States of North Dakota, South Dakota, Iowa, Wisconsin, and Michigan.8
11
Second Report.—On January 4, 1967, the Commission granted the application and reopened the proceedings for reconsideration and further hearings. Although the order by its terms reopened the proceedings on all issues, the hearing was limited to taking evidence on the question of the amount of savings the merger would produce in light of the agreement between the applicants and the Milwaukee and Northwestern, and the other changes relevant to savings which had occurred after the close of the first hearing. Oral arguments followed. On November 30, 1967, the Commission handed down a report and order (Second Report) approving the proposed merger by a vote of 8 to 2 as consistent with the public interest and imposing certain conditions to protect other carriers.9 On April 11, 1968, the Commission denied an application for reconsideration.10
District Court Proceedings
12
The United States, acting through the Department of Justice, filed a complaint on May 9, 1968, in the United States District Court for the District of Columbia challenging the Commission order approving the merger. Other parties intervened, some as plaintiffs11 and some as defendants.12 After preliminary proceedings had resulted in a stay of the Commission's order pendente lite, the case was submitted on the merits to the three-judge court designated in accordance with 28 U.S.C. §§ 2325 and 2284. The court, in an opinion by Senior Circuit Judge Charles Fahy, unanimously sustained the Commission, holding that in approving the merger and the related transactions the Commission was guided by the applicable legal principles and that its findings were supported by substantial evidence. The court dismissed the complaints, vacated the stay pendente lite, and then stayed its order pending appeal to this Court. Upon the filing of appeals with this Court, we ordered a further stay pending final disposition.
II
The Appeals Here
13
Four appeals were taken from the District Court's judgment; the Department of Justice (No. 28), the Northern Pacific Stockholders' Protective Committee (No. 38), the City of Auburn, Washington (No. 43), and the Livingston Anti-Merger Committee (No. 44).
14
Each of the four appellants attacks the approval of the merger on different grounds. Because these challenges cover every aspect of the merger, and because of the rather complex expositions of fact necessary to the disposition of each objection, these appeals will be dealt with seriatim. With the cases in this posture the Court must review the proceedings before the Commission to 'determine whether the Commission has proceeded in accordance with law and whether its findings and conclusions accord with the statutory standards and are supported by substantial evidence.' Penn-Central Merger and N&W Inclusion Cases, 389 U.S. 486, 499, 88 S.Ct. 602, 608, 19 L.Ed.2d 723 (1968). It should be emphasized, however, as Mr. Justice Fortas noted, speaking for the Court in a similar context, '[w]ith respect to the merits of the merger * * * our task is limited. We do not inquire whether the merger satisfies our own conception of the public interest. Determination of the factors relevant to the public interest is entrusted by the law primarily to the Commission, subject to the standards of the governing statute.' Id., at 498—499, 88 S.Ct. at 608.
15
The governing statute here is § 5 of the Interstate Commerce Act, as amended by the Transportation Act of 1940, 54 Stat. 905, 49 U.S.C. § 5. The Act provides that the Commission is to approve a proposed merger when it is 'consistent with the public interest' and the terms of the proposal are 'just and reasonable.' In determining whether this standard is met, the Commission is to
16
'give weight to the following considerations, among others: (1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected.' 49 U.S.C. § 5(2)(c).
17
In addition to the four factors listed above, the Commission must also consider the anticompetitive effects of any merger or consolidation, because under § 5(11) of the Interstate Commerce Act any transaction approved by the Commission is relieved of the operation of the antitrust laws. McLean Trucking Co. v. United States, 321 U.S. 67, 83—87, 64 S.Ct. 370, 378—381, 88 L.Ed. 544 (1944).
18
In its First Report the Commission found that the merger would result in improved service to shippers in areas served by the Northern Lines because it would enable the roads to make more efficient use of their facilities and would permit the use of the shortest and swiftest internal routes available. In addition, the merger was found to afford estimated savings of approximately $25 million per year by the tenth year after merger. However, the Commission also found that as a consequence of the merger more than 5,200 jobs would be eliminated, this being a significant source of the reduced operating costs. The Commission then analyzed the anticompetitive impact of the proposal and found it would eliminate substantial competition between the Northern Lines in the Northern Tier. The Commission reasoned that even with protective conditions attached to the merger for the benefit of the Milwaukee, it would remain a weak carrier in the Northern Tier when compared with New Company. The Commission, by a vote of 6 to 5, as noted earlier, concluded that the proposed merger plan did not afford benefits of such scope and importance as to outweigh the lessening of rail competition in the Northern Tier; the merger was disapproved.
19
When the Commission reopened the proceedings in 1967, it considered additional evidence including the changed positions of some of the major objectors, and new evidence on the savings to be realized from the merger; the Second Report was then issued. The Commission found that rather than the $25 million previously estimated, in fact more than $40 million per year in savings would be realized by the tenth year after merger. It also noted that agreements entered into by the applicants and their employees had removed objections of various unions to the merger and that no jobs would be eliminated except in the normal course of attrition. Aside from these changes, and the acceptance by the merger applicants of protective conditions sought by the Milwaukee, the record before the Commission was the same as that on which the First Report was based. The Second Report acknowledged that the First Report had failed to give appropriate weight to one of the aims of the national transportation policy and § 5 of the Interstate Commerce Act, to facilitate rail mergers 'consistent with the public interest' in the development of a comprehensive national transport system, and that this had led the Commission to view the merger proposal too stringently. It then went on to reexamine the anticompetitive effects of the merger, weighing them against the savings and benefits to the public, shippers, and the roads, and, accentuating the new and strengthened competitive posture of the Milwaukee, it concluded that the merger proposal should be approved because its benefits outweighed its anticompetitive effects in the Northern Tier region.
20
That this was not an easy problem for the Commission is attested by the lengthy history of attempts to merge these lines which dates back three-quarters of a century. The efforts to establish a more unified rail transportation system in the Northern Tier represent a 20th century phase of the development of the American West; it brackets a period of enormous growth and change, and of new developments in transportation and public needs. Against this background it is not surprising that the members of the Commission were divided 6 to 5 against the merger on the First Report in 1966 and 8 to 2 in favor of the merger on the Second Report in 1967 after changes had been made in the plan to meet many of the objections raised. Nor is it remarkable that two great departments of government, each charged with responsibility to protect the public interest, took opposing positions; vigorous advocacy of divergent views on this difficult problem has narrowed and sharpened the issues and aided the Court in their resolution, ensuring that no factor which ought to be considered would elude our attention.
Appellants' Contentions
21
(a) No. 28, Department of Justice.—The United States, through the Antitrust Division of the Justice Department, challenges the Commission's approval of the merger primarily on the ground that the Commission in the Second Report did not properly apply the standard of § 5(2)(b) of the Interstate Commerce Act in determining that the merger is consistent with the public interest. The Department contends that under the statute when a proposed merger will result in a substantial diminution of competition between two financially healthy, competing roads, its anticompetitive effects should preclude the approval of the merger absent a clear showing that a serious transportation need will be met or important public benefits will be provided beyond the savings and efficiencies that normally flow from a merger. The Department urges that the instant case presents a merger between two financially healthy carriers, each of which is the prime competitor of the other in the area served. Admittedly the Commission found in its First Report that the merger would result in a 'drastic lessening of competition.' The Department argues that because no benefits are shown to flow from the merger beyond the economies and efficiencies normally resulting from unified operations, the Commission has not satisfied the statutory standard and that the District Court erred in refusing to enjoin the merger.
22
The Department maintains that prior to 1920 the antitrust laws and their underlying policies applied with full force to railroads and that the Transportation Act of 1920, which commanded an affirmative development by the Commission of a nationwide plan 'for the consolidation of the railway properties of the continental United States into a limited number of systems,' 41 Stat. 481, was primarily intended to promote the absorption of financially weak by strong carriers. To the extent that the 1920 Act did not intend to encourage rail mergers producing only the usual or 'normal' kinds of merger benefits, the Department contends that the policies of the antitrust laws remain the guiding standard by which these consolidations are to be judged. The Transportation Act of 1940, according to the Department, did not alter this policy, but only eliminated the Commission's duty to formulate a national plan and to confine mergers to the four corners of this plan. The Department suggests that when the Commission is determining whether a merger or consolidation is consistent with the public interest, it must analyze the merger in terms of its anticompetitive impact and, if that impact would be great, then determine whether the merger is required by a serious transportation need or necessary to secure important public benefits. This standard, it urges, is 'consistent with both the legislative history of [s 5] and, more generally, with the goal of substantial simplification of railroad systems that underlay the Transportation Acts of both 1920 and 1940.'13
23
The Department of Justice is correct in stating that one focal point of concern throughout the legislative consideration of the problems of railroads has been the weak carrier and its preservation through combination with the strong. Congress saw that as one—but only one—means to promote its objectives. The 1920 statute as a whole also embodied concern for economy and efficiency in rail operations. See Railroad Commission of California v. Southern Pacific Co., 264 U.S. 331, 341, 44 S.Ct. 376, 377—378, 68 L.Ed. 713 (1924); Texas & Pacific R. Co. v. Gulf, Colorado & Santa Fe R. Co., 270 U.S. 266, 277, 46 S.Ct. 263, 266, 70 L.Ed. 578 (1926); Texas v. United States, 292 U.S. 522, 530, 54 S.Ct. 819, 824, 78 L.Ed. 1402 (1934); United States v. Lowden, 308 U.S. 225, 232, 60 S.Ct. 248, 252, 84 L.Ed. 208 (1939). Thus, a rail merger that furthers the development of a more efficient transportation unit and one that results in the joining of a 'sick' with a strong carrier serve equally to promote the longrange objectives of Congress and, upon approval by the Commission, both are immunized from the operation of the antitrust laws. The policy of the 1920 Act has been consistently interpreted in this way. We find no basis for reading the congressional objective as confining these mergers to combinations by which the strong rescue the halt and the lame.
24
In New York Central Securities Corp. v. United States, 287 U.S. 12, 53 S.Ct. 45, 77 L.Ed. 138 (1932), this Court cautioned that
25
'[t]he fact that the carriers' lines are parallel and competing cannot be deemed to affect the validity of the authority conferred upon the Commission. * * * The question whether the acquisition of control in the case of competing carriers will aid in preventing an injurious waste and in securing more efficient transportation service is thus committed to the judgment of the administrative agency upon the facts developed in the particular case.' Id., at 25—26, 53 S.Ct., at 48—49.
26
Although this decision was prior to the passage of the Transportation Act of 1940, that Act in no way altered the basic policy14 underlying the 1920 enactment. We recognized in St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U.S. 298, 319, 74 S.Ct. 574, 586, 98 L.Ed. 710 (1954), that Congress adopted the recommendations of the Committee of Six when it passed the 1940 Transportation Act and relieved the Commission of its duty to promulgate a national railroad consolidation plan. That Committee's report recognized economies and efficiencies of operation as well as the elimination of circuitous routing to be benefits that could flow to the public through consolidations.15 As recently as County of Marin v. United States, 356 U.S. 412, 78 S.Ct. 880, 2 L.Ed.2d 879 (1958), this Court observed:
27
'The congressional purpose in the sweeping revision of § 5 of the Interstate Commerce Act in 1940 * * * was to facilitate merger and consolidation in the national transportation system. In the Transportation Act of 1920 the Congress had directed the Commission itself to take the initiative in developing a plan 'for the consolidation of the railway properties of the continental United States into a limited number of systems,' 41 Stat. 481, but after 20 years of trial the approach appeared inadequate. The Transportation Act of 1940 extended § 5 to motor and water carriers, and relieved the Commission of its responsibility to initiate the unifications. 'Instead, it authorized approval by the Commission of carrier-initiated, voluntary plans of merger or consolidation if, subject to such terms, conditions and modifications as the Commission might prescribe, the proposed transactions met with certain tests of public interest, justice and reasonableness * * *.' (Emphasis added.) Schwabacher v. United States, 334 U.S. 182, 193, 68 S.Ct. 958, 964, 92 L.Ed. 1305 (1948). * * * In short, the result of the Act was a change in the means, while the end remained the same. The very language of the amended 'unification section' expresses clearly the desire of the Congress that the industry proceed toward an integrated national transportation system through substantial corporate simplification.' Id., at 416—418, 78 S.Ct. at 883. (Emphasis in original.) (Footnotes omitted.)
28
We turn now to consider the appropriate weight to be accorded by the Commission to antitrust policy in proceedings for approval of a merger. The role of antitrust policy under § 5 was discussed comprehensively and dispositively in McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370 (1944), a case dealing with a merger of several large trucking companies. Since this Court has nowhere else dealt so definitively with this issue, the analysis by Mr. Justice Rutledge in the opinion for the Court merits extended quotation:
29
'The history of the development of the special national transportation policy suggests, quite apart from the explicit provision of Section 5(11), that the policies of the anti-trust laws determine 'the public interest' in railroad regulation only in a qualified way. And the altered emphasis in railroad legislation on achieving an adequate, efficient, and economical system of transportation through close supervision of business operations and practices rather than through heavy reliance on the enforcement of free competition in various phases of the business, cf. New York Central Securities Corp. v. United States, 287 U.S. 12, 53 S.Ct. 45, 77 L.Ed. 138, has its counterpart in motor carrier policy. * * *
30
'[T]here can be little doubt that the Commission is not to measure proposals for all-rail or all-motor consolidations by the standards of the anti-trust laws. Congress authorized such consolidations because it recognized that in some circumstances they were appropriate for effectuation of the national transportation policy. It was informed that this policy would be furthered by 'encouraging the organization of stronger units' in the motor carrier industry. And in authorizing those consolidations it did not import the general policies of the anti-trust laws as a measure of their permissibility. It in terms relieved participants in appropriate mergers from the requirements of those laws. Section 5(11). In doing so, it presumably took into account the fact that the business affected is subject to strict regulation and supervision, particularly with respect to rates charged the public—an effective safeguard against the evils attending monopoly, at which the Sherman Act is directed. Against this background, no other inference is possible but that, as a factor in determining the propriety of motor-carrier consolidations the preservation of competition among carriers, although still a value, is significant chiefly as it aids in the attainment of the objectives of the national transportation policy.
31
'Therefore, the Commission is not bound * * * to accede to the policies of the anti-trust laws * * *.
32
'Congress however neither has made the anti-trust laws wholly inapplicable to the transportation industry nor has authorized the Commission in passing on a proposed merger to ignore their policy. * * * Hence, the fact that the carriers participating in a properly authorized consolidation may obtain immunity from prosecution under the anti-trust laws in no sense relieves the Commission of its duty, as an administrative matter, to consider the effect of the merger on competitors and on the general competitive situation in the industry in the light of the objectives of the national transportation policy.
33
'In short, the Commission must estimate the scope and appraise the effects of the curtailment of competition which will result from the proposed consolidation and consider them along with the advantages of improved service, safer operation, lower costs, etc., to determine whether the consolidation will assist in effectuating the over-all transportation policy. Resolving these considerations is a complex task which requires extensive facilities, expert judgment and considerable knowledge of the transportation industry. Congress left that task to the Commission * * *. 'The wisdom and experience of that commission,' not of the courts, must determine whether the proposed consolidation is 'consistent with the public interest.' [Citations omitted.] If the Commission did not exceed the statutory limits within which Congress confined its discretion and its findings are adequate and supported by evidence, it is not our function to upset its order.' Id., at 83—88, 64 S.Ct. at 378—381. (Footnotes omitted.)
34
Accord, Minneapolis & St. L.R. Co. v. United States, 361 U.S. 173, 186-188, 80 S.Ct. 229, 237—239, 4 L.Ed.2d 223 (1959); Seaboard Air Line R. Co. v. United States, 382 U.S. 154, 156—157, 86 S.Ct. 277, 278—279, 15 L.Ed.2d 223 (1965); see Florida East Coast R. Co. v. United States, 259 F.Supp. 993 (D.C.M.D.Fla.1966), aff'd per curiam, 386 U.S. 544, 87 S.Ct. 1299 (1967).
35
The Department urges that the Commission failed to give sufficient weight to the diminution of competition between the Northern Lines—in short, that it failed to strike the correct balance between antitrust objectives and the overall transportation needs that concern Congress. This contention tends to isolate individual factors that are to enter into the Commission's decision and view them as the controlling considerations. 'Competition is merely one consideration here,' Penn-Central Merger and N&W Inclusion Cases, 389 U.S., at 486, 500, 88 S.Ct., at 602, 609 (1968). And, we might add, it is a consideration that is implied and is in addition to the four specifically mentioned in § 5(2)(c) of the statute. In our view the Commission, in both reports, exhibited a concern and sensitivity to the difficult task of accommodating the regulatory policy based on competition with the long-range policy of achieving carrier consolidations. Indeed, this led the Commission to disapprove the merger by a margin of one vote in 1966 after five years of study because of specified infirmities in the plan. The Commission reached a different conclusion by a decisive vote in 1967 on a supplemental record which reflected substantial changes in the merger plan. Our review, like that of the District Court, reveals substantial record evidence to support the Commission's determination that the conditions agreed to by the applicants, the attrition agreements with the employees, the enhanced savings found in the Second Report, and the service improvements to shippers and the public found in both the First and Second Reports outweighed the loss of competition between the Northern Lines. Striking the balance is for the Commission and we cannot say that it did so improperly.
36
The benefits to the public from this merger are important and deserve elaboration. The Commission found that substantial service benefits would flow from the merger. Shippers will benefit from improved car supply, wider routing, better loading and unloading privileges, and improved tracing and claims service. New Company will be able to use the shortest and most efficient routes while eliminating yard interchange delays, thus providing shippers with faster service. The Commission found that the economies New Company will realize as a result of consolidating yards, repair facilities, and management, eliminating duplicate train services and pooling of cars and trains will result in lower rates to shippers and receivers. In addition, the opening of strategic gateways to the Milwaukee will remove artificial barriers to the development of new markets, sources of supply, and services.
37
The Milwaukee objections prior to the First Report were based on the adverse impact of the merger on its competitive position and, in turn, on shippers and the public. Following the First Report the Northern Lines accepted conditions urged by the Milwaukee. Under the new conditions the posture of the Milwaukee, lying largely between the two Northerns and handicapped by limitations at both eastern and western terminals, will be greatly improved. Absent the protective conditions it would continue to be virtually strangled by the unified system; with them the Milwaukee gives prospect of affording substantial competition to the merged lines and will be placed in the position that at its inception it hoped to achieve. Its past failure to become a meaningful competitor came in large part because its lines did not reach into Portland, Oregon, or into the southwest terminal of the Northern Lines in California. In a strictly competitive situation it is understandable that neither of the Northern Lines would interchange traffic with the Milwaukee except on its own terms and this destined that the Milwaukee would fail to become a true transcontinental line even though its western terminus lay within a few miles of Portland with the latter's access to the sea.
38
The Milwaukee north-south traffic on the West Coast was limited to the short run from Seattle to Longview, barely half the distance from the Canadian border to Washington's southern border. Moreover, westbound traffic destined for points on one of the Northern Lines was taken over by one of them at St. Paul or Minneapolis notwithstanding Milwaukee's line from there deep into Washington. In the proceedings prior to 1966 many objecting shippers joined the Milwaukee in pointing out that rates and limitations on Milwaukee's service precluded full use of the Milwaukee to the disadvantage of both shippers and the carrier.
39
The conditions imposed by the Commission's Second Report will alter that situation and substantially enlarge the Milwaukee's competitive potential between St. Paul and Minneapolis and the West Coast due to enlargement of its long-haul capability. Shippers will be afforded more flexible service. Another condition attached to the Commission's approval will permit the Milwaukee to run lines from its present western terminus into Portland, giving it a link with the Southern Pacific. All this will enable the Milwaukee to compete with the Northern Lines for east-west traffic and some north-south traffic as well as linkage with Canadian carriers to the north, which was previously the exclusive domain of one or both of the Northerns. Other conditions of lesser consequence will buttress the newly designed competitive posture of the Milwaukee.
40
The contention that the Commission failed to project an analysis of the relative position of the Milwaukee vis-a-vis the merged Northerns discounts the difficulty of precise forecasts and tends to overstate the need for such projections. The Commission can deal only in the probabilities that will arise from the Milwaukee's improved posture as a genuine competitor for traffic over a wide area, something it had never been able to achieve. After the merger it will afford shippers a choice of routes and service negating the idea that all rail competition will disappear in the Pacific Northwest.
41
(b) No. 38, The Northern Pacific Stockholders' Protective Committee.—The Northern Pacific Stockholders' Protective Committee16 has appealed the District Court's affirmance of the Commission's approval of the proposed merger's stock exchange provisions. To put each of the Committee's contentions in perspective requires that we describe the source of the Committee's concern and how the applicants dealt with it in reaching the present merger terms.
42
The Committee's continuing opposition to the merger relates to Northern Pacific's land holdings. The Northern Pacific Railway Company holds more than two million acres in fee and has mineral rights in another six million acres. These lands are rich in natural resources, including coal, oil, and timber, and are important sources of income. The negotiations between the parties centered to a large extent on these lands. Northern Pacific's financial adviser had suggested that although Great Northern had a better history of earning power and its stock had generally sold at a level above that of Northern Pacific's, the large land holdings of the Northern Pacific with their vast resources were of sufficient worth to justify a share-for-share exchange ratio between the Great Northern and the Northern Pacific. The Great Northern, however, insisted on a 60—40 stock exchange ratio because of its traditional rail strength. After further negotiations the roads realized that the lands were a stumbling block to the merger and considered several modes of segregating them from Northern Pacific's rail properties. One was to create two classes of New Company stock, one being issued to Northern Pacific shareholders and representing the natural resource properties, and another being issued to both Great Northern and Northern Pacific shareholders and representing Northern Pacific's rail properties. The second solution considered was spinning off the natural resource lands into another corporation and using the proceeds from an issuance of its stock as a Northern Pacific contribution to the merger. Neither of these solutions was acceptable to the negotiators, the former because of the problems inherent in administering a corporation for two classes of stockholders with divergent interests, and the latter because of potential litigation with bondholders and adverse tax consequences to Northern Pacific. The negotiators concluded that the merger plan must include the land holdings of Northern Pacific.
43
Thereafter both roads made concessions, the Great Northern abandoning its claim for a permanently larger share for its stockholders and the Northern Pacific abandoning its claim for immediate equality. The result was an exchange ratio giving immediate recognition to Great Northern's greater earning power and historically higher market price while giving Northern Pacific's shareholders equal participation in the earnings of the enterprise on a longterm basis. The terms of the merger, as worked out by the negotiators over a five-year period, were approved by both roads' financial advisors, their boards of directors and their stockholders.17 Shortly thereafter the Northern Pacific Stockholders' Protective Committee was formed.
44
When the merger proposal was submitted to the Commission for approval the Stockholders' Committee opposed the exchange ratio, pressing its claim that the natural resource lands were undervalued and that the Commission either should adjust the exchange ratio in accordance with the Committee's estimates of the property's worth or, preferably, should order the lands segregated and placed in a separate corporation, the stock of which would be available to Northern Pacific shareholders. The Hearing Examiner's report reviewed the extensive negotiations between the parties and the modes by which they reached a valuation of the contribution each road's shareholders were making to New Company, concluding that there had been good-faith-arm's length bargaining and that the result of this bargaining fairly reflected each group of stockholders' contribution to New Company. The Examiner found the Committee's contention on value to be unsupported by record evidence and its spinoff proposal to be unfair to Northern Pacific shareholders. He recommended approval of the terms of the exchange.
45
The Commission's First Report, which disapproved the merger, did not reach the issue of the exchange ratio. When in 1967 the Commission reconsidered its earlier decision, it refused the Committee's request that it reopen the record for the taking of new evidence on the exchange ratio, but did hear oral argument on the matter. The Committee again pressed its contentions. The Commission's Second Report rejected the Committee's arguments upon basically the same grounds given by the Hearing Examiner in his 1964 Report.
46
The Committee continued its attack on the stock exchange ratio in the District Court and urged that the Commission had abused its discretion in refusing to reopen the record to receive updated evidence on the exchange ratio. The District Court ruled that the Commission's finding that the terms were just and reasonable was supported by substantial evidence. It also held that the evidence the Committee proffered was not of sufficient importance to have affected the ultimate fairness of the Commission's finding. The discretion exercised by the Commission in refusing to reopen the record was, therefore, found free from abuse.
47
The Committee now contends that the record lacks substantial evidence to support the Commission's determination that the exchange ratios are just and reasonable; that the Commission failed to consider the whole record before it; that the Commission erred, abused its discretion, or denied appellant due process of law in not permitting the record to be updated respecting the 1967 worth of the contributions being made by each group of shareholders, especially respecting Northern Pacific's natural resource properties; that the record does not contain substantial evidence to support the determination of the Commission that the proposed segregation of the natural resource lands is a proposal lacking merit and is unfair to Northern Pacific shareholders; and that the District Court erred in upholding the Commission's action. Our review leads us to reject these contentions.
48
Under § 5(2) of the Interstate Commerce Act, the Commission is to approve only such merger terms as it finds to be just and reasonable. The Commission, as had the negotiators and the Hearing Examiner, fully considered the proposed segregation of the natural resource properties and concluded that it was neither feasible nor fair to Northern Pacific stockholders. That determination is supported by substantial record evidence. In passing we note that although the Commission in fulfilling its statutory responsibilities is to carefully review all of the terms of a merger proposal and determine whether they are just and reasonable, it is not for the agency, much less the courts, to dictate the terms of the merger agreement once this standard has been met. It can hardly be argued that the bargaining parties were not capable of protecting their own interests.
49
The Commission's unwillingness to reopen the record in 1967 for the taking of new evidence on the exchange ratio was not an abuse of discretion nor did it deny the appellant due process of law. What this Court said in Interstate Commerce Commission v. Jersey City, 322 U.S. 503, 64 S.Ct. 1129, 88 L.Ed. 1420 (1944), is applicable here:
50
'Administrative consideration of evidence—particularly where the evidence is taken by an examiner, his report submitted to the parties, and a hearing held on their exceptions to it always creates a gap between the time the record is closed and the time the administrative decision is promulgated. This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful. If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening. It has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion. And likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body.' Id., at 514—515, 64 S.Ct., at 1134.
51
Moreover, as this Court noted in United States v. Pierce Auto Freight Lines, 327 U.S. 515, 66 S.Ct. 687, 90 L.Ed. 821 (1946), 'it has been held consistently that rehearings before administrative bodies are addressed to their own discretion. * * * Only a showing of the clearest abuse of discretion could sustain an exception to that rule.' Id., at 535, 66 S.Ct., at 697.
52
We find nothing in the Committee's arguments to persuade us that such an abuse occurred when the Commission refused to take further evidence on the question of each group of shareholders' contribution to the merger. Schwabacher v. United States, 334 U.S. 182, 68 S.Ct. 958, 92 L.Ed. 1305 (1948), relied upon by the Committee, is not to the contrary. That decision requires that the value of a stockholder's contribution to a merger be determined in accord with the 'current worth' of his equity. That does not mean there must be a repeated updating of the evidence before the agency; in a complex merger such as this that would lead to interminable delay. A determination that the terms of a merger proposal fairly reflect the current worth of each shareholder's contribution meets the standards of Schwabacher if the agency had before it evidence as to the worth of the shareholders' contributions at the time of the submission of the proposal, and there is no showing that subsequent events have materially altered the worth of the various shareholders' contributions to the merger. The evidence the appellant Committee presents to this Court, purporting to show that Northern Pacific's stock is presently worth considerably more, vis-a-vis Great Northern's, than was the case at the time of the initial hearings, does show fluctuations in the worth of the two companies' stock. But we cannot say that those fluctuations, in the context of this merger proposal, are sufficient to show that the worth of the various shareholders' contributions to the merger has been materially altered. We agree with the District Court that the Commission's refusal to reopen the record for further evidence was not an abuse of discretion.
53
(c) No. 43, City of Auburn.—The City of Auburn, Washington, opposes the merger for the reasons set out in the brief of the Department of Justice, and, in addition, contends that the Commission failed to adequately assess the impact of the merger upon affected communities and explain why the benefits of the merger convincingly outweigh its adverse effects on these communities. Auburn also objects to the refusal to open the 1967 hearings for further testimony concerning the impact of the merger upon Auburn.
54
Auburn is a city of 19,000 inhabitants in western Washington, halfway between Seattle and Tacoma, which serves as the western terminus for the Northern Pacific's transcontinental trains. A substantial part of the city's economy is dependent upon that road's activity there. The record before the Commission indicated that if the merger were approved, the Auburn yard would be closed, and that the town of Everett, on the other side of Seattle, would become the western terminus for all of New Company's transcontinental trains.
55
Insofar as the city challenges the Commission's action on the same grounds as the Department of Justice, our disposition of the appeal in No. 28 applies here. As for the 1967 hearings, the city failed to object to the scope of the Commission's reopened hearings and made no attempt to present evidence at those hearings. Neither did it challenge the Commission's findings concerning the impact of the merger upon Auburn. Only when it came before the District Court did it raise its contentions. This alone might preclude its attack on the merger. But we need not decide that issue because we find that the Commission did not abuse its discretion in refusing to take evidence in 1967 as to the impact of the merger on Auburn.
56
In the record upon which the Second Report is based the Commission had evidence of the impact of the yard's closing on the city. Thus, even assuming the closing, the Commission found that the long-run effect of the merger would be to benefit communities in the Northern Tier, such as Auburn, and that the brief and transitory dislocations the merger would occasion were not sufficient to outweigh the merger's benefits. We find this to be a justifiable conclusion supported by substantial evidence on the record. We can hardly imagine any merger of substantial carriers that would not cause some dislocations to some shippers, some communities, and some employees.
57
The plans for the Auburn yard now seem to be altered; the applicants stated before the District Court and again before this Court that they now intend to maintain the Auburn yard. As a result, employment in Auburn will be largely unaffected by the merger. Since we conclude that the Commission properly determined that Auburn's hardships and those of communities similarly situated, as posited on the record, did not warrant disapproval of the merger, it is difficult to imagine any basis upon which we might find the Commission to have abused its discretion in not taking further evidence on the merger's impact on Auburn when the principal harm of which the city earlier complained has disappeared.
58
(d) No. 44, Livingston Anti-Merger Committee.—Citizens of Montana, living in and about Livingston, Helena, and Glendive, who appear here as the Livingston Anti-Merger Committee, attack the merger on several grounds. As a prelude to discussing these contentions, the historical facts upon which the Committee's attack is based should be stated.
59
In 1864 Congress created the Northern Pacific Railroad Company (Railroad) and granted it authority to build a railroad from Lake Superior to Puget Sound. To subsidize this enterprise Congress granted Railroad a right-of-way and alternate sections of land along that right-of-way. According to the terms of Railroad's charter it could not encumber its franchise or right-of-way without congressional approval, and was not authorized to merge with another road, except under limited conditions not relevant here.18 In 1870 Congress passed a resolution allowing Railroad to issue bonds secured by its property and subject to foreclosure for default. Shortly thereafter a mortgage was pledged, only to be foreclosed in 1875. After the foreclosure proceedings the property was struck off to a committee of bondholders. Later, however, the property was returned to Railroad pursuant to a reorganization plan. Although Congress did not further authorize mortgaging of the franchise or right-of-way, Railroad again encumbered its property by pledging several mortgages. In 1896, after these mortgages had been defaulted upon and foreclosure proceedings had been commenced, a negotiated settlement was made which resulted in the property of Railroad being sold to the Northern Pacific Railway Company (Railway), which has operated under Railroad's franchise and upon its right-of-way ever since. Railway presently owns 97% of the stock of Railroad, which is no longer an operating company.
60
On the basis of these facts Livingston contends that the Interstate Commerce Commission had no authority to approve the proposed merger because Railway does not own the franchise and right-of-way involved in this merger, and Railroad is not a party to the merger. Livingston argues that the 1896 foreclosure was a sham and it actually was a sale of Railroad property to Railway; because Congress never authorized that sale, it is void. In addition, Livingston contends that the mortgages that led to the 1896 foreclosure were not authorized by Congress; therefore, they could not constitute the basis for a valid foreclosure and liquidation. The claimed consequence is that the title to the franchise and right-of-way remains in Railroad. Livingston argues that even if it should be held that Railway does own the franchise and right-of-way, under the 1864 charter of Railroad, to which Railway succeeded, no merger involving these properties can take place without congressional approval, and such approval has not been procured. Finally, Livingston urges that the Commission and the District Court failed to properly deal with these contentions and make specific findings as to the Commission's jurisdiction.
61
The Commission was presented with these arguments and found them to be without merit. The District Court affirmed the Commission, ruling that it had not erred in refusing to disapprove the merger because of appellant's claims and had not erred in refusing to litigate their merits. We affirm the District Court. Section 5(2)(a) of the Interstate Commerce Act provides in pertinent part:
62
'(a) It shall be lawful, with the approval and authorization of the Commission, as provided in subdivision (b) of this paragraph—
63
'(i) for two or more carriers to consolidate or merge their properties of franchises, or any part thereof, into one corporation for the ownership, management, and operation of the properties theretofore in separate ownership * * *.' 49 U.S.C. § 5(2)(a).
64
The premise of Livingston's position is that under this statute before the Commission can assume jurisdiction over a merger application it must determine that the applicants have proper legal title to the rights and property which they seek to bring into the merger. This is an erroneous assumption. The Commission is not required to deal with the subtleties of 'good title' before assuming jurisdiction over a § 5 matter. Cf. O. C. Wiley & Sons v. United States, 85 F.Supp. 542, 543—545 (D.C.W.D.Va.), aff'd per curiam, 338 U.S. 902, 70 S.Ct. 308, 94 L.Ed. 554 (1949); Walker v. United States, 208 F.Supp. 388, 396 (D.C.W.D.Tex.1962); Interstate Investors, Inc. v. United States, 287 F.Supp. 374, 392 n. 32 (D.C.S.D.N.Y.1968), aff'd per curiam, 393 U.S. 479, 87 S.Ct. 707, 21 L.Ed.2d 687 (1969). And because a Commission order under § 5(2) 'is permissive, not mandatory,' New York Central Securities Corp. v. United States, 287 U.S. 12, 26 27, 53 S.Ct. 45, 49 (1932), the approval of a merger proposal does not amount to an adjudication on any such questions. These are matters for the courts, not for an agency that has responsibility in the realm of regulating transportation systems.
65
In the instant case there were ample grounds for the Commission's assumption of jurisdiction over the applicants. Although the validity of Railway's claim that it is Railroad's successor in interest and has good title to all of Railroad's rights and properties has never been judicially determined, this Court has impliedly recognized it several times. In Northern Pacific R. Co. v. Boyd, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931 (1913), we held that a creditor of Railroad had an assertable claim against the equity of Railroad's shareholders represented by Railway's assets because the foreclosure amounted to little more than a judicially approved reorganization in which the shareholders of the old company became the shareholders of the new. As against a bona fide creditor of Railroad, we found the judicial sale ineffective to bar his rights. However, we also stated that
66
'[a]s between the parties and the public generally, the sale was valid. * * * [T]he Northern Pacific Railroad was divested of the legal title (to its properties) * * *.' Id., at 506, 33 S.Ct. at 561.
67
In United States v. Northern Pacific R. Co., 311 U.S. 317, 61 S.Ct. 264, 85 L.Ed. 210 (1940), we described some of the history of the appellee company as follows:
68
'Pursuant to foreclosure proceedings the Northern Pacific Railway Company acquired title to the railroad, the land grant, and all other property of the original corporation and has since operated the road and obtained patents for millions of acres under the land grants.' Id., at 328, 61 S.Ct. at 269.
69
In addition, Attorney General Harmon in 1897 advised the Secretary of the Interior that Railway had a right, as successor in interest of Railroad, to patents on land grants made to Railroad. 21 Op.Atty.Gen. 486. The Secretary of the Interior thereafter treated Railway as Railroad's legal successor and patented large amounts of land to Railway. When in 1905 the then Secretary of the Interior asked then Attorney General Moody, later an Associate Justice of this Court, about the right of Railway to Railroad's land grants, Mr. Moody, after investigating the matter, reaffirmed his predecessor's conclusion that Railway was Railroad's legitimate successor in interest. 25 Op.Atty.Gen. 401. In 1954 a committee of Railroad's minority shareholders sued Railway seeking to have the 1896 foreclosure set aside and all titles and franchises declared to be in Railroad and to obtain an accounting from Railway for all properties and profits received from 1896 through 1954. In an exhaustive opinion Judge Edward A. Tamm of the United States District Court for the District of Columbia held the action barred by laches and dismissed the complaint. Landell v. Northern Pacific R. Co., 122 F.Supp. 253 (D.C.D.C.1954), aff'd, 96 U.S.App.D.C. 24, 223 F.2d 316, cert. denied, 350 U.S. 844, 76 S.Ct. 85, 100 L.Ed. 752 (1955). In this context we think the Commission did not err in assuming jurisdiction over the applicants while refusing to adjudicate the merits of Railway's title. As the District Court stated, '[f]or purposes of merger proceedings it could rely on the existing judicial records * * * supplemented by the opinions of two Attorneys General.'19
70
We are then faced with the contention of Livingston that Railway is prohibited from participating in the merger and that the Commission is barred from approving it by the terms of Railroad's charter. That charter does not authorize Railroad to merge with the applicant companies and prohibits the mortgaging of its property in the absence of congressional consent. If Railway is Railroad's successor in interest, Livingston contends, it is bound by the provisions of Railroad's charter, and those provisions would be violated by the proposed merger and issuance of securities incident thereto. Livingston argues that because the Act chartering Railroad is a law as much as it is a grant, see Oregon & California R. Co. v. United States, 238 U.S. 393, 427, 35 S.Ct. 908, 921—922, 59 L.Ed. 1360 (1915), it is binding upon the Commission and makes the Commission's approval of the merger unlawful. Livingston relies upon Union Pacific R. Co. v. Mason City & Fort Dodge R. Co., 199 U.S. 160, 26 S.Ct. 19, 50 L.Ed. 134 (1905), as standing for the proposition that statutory restrictions on a predecessor federal railroad company survive a foreclosure sale and apply to a successor private railroad company operating on the original company's rights and franchise.
71
We do not find the Mason Citydecision to be controlling, despite its somewhat similar legal and factual context. In 1862 Congress chartered the Union Pacific Railroad Company and authorized it to build a transcontinental railroad. In 1865 Railroad, pursuant to congressional authorization, pledged a mortgage secured by its right-of-way and franchise to gain monies necessary for construction. In 1871 Congress granted Railroad authority to issue bonds for the construction of a bridge over the Missouri River, that grant being conditioned upon the bridge's being open for the use of all roads for a reasonable compensation, to be paid to the owner of the bridge. This condition was one generally inserted by Congress in statutes authorizing bridge construction. Sometime after the bridge was built the 1865 mortgage was foreclosed and the Union Pacific Railroad Company, a Utah corporation, purchased the assets of the federal corporation. It thereafter refused to allow any but its own trains to use the bridge, contending that as purchaser under the foreclosure of the 1865 mortgage, it was not bound by the 1871 statute's conditions. This Court rejected that contention and concluded that the conditions applied to the Utah corporation, reasoning that the purpose of Congress in authorizing the construction of the bridge required that the conditions appended to that authorization attach to the bridge and bind its owner.
72
The instant case is quite different. Here the provisions of the charter of Northern Pacific Railroad Company which are urged to bar this merger were directed only to the operations of the federal corporation, not to the operation of the railroad. Thus, when the corporation's property was sold to another, the conditions of which Livingston speaks did not follow that property into the hands of the successor corporation. It therefore follows that the statute creating the Northern Pacific Railroad Company did not bar the Interstate Commerce Commission from authorizing a merger involving the Northern Pacific Railway Company, a Wisconsin corporation.20 We find that the Commission acted within its authority in assuming jurisdiction over the instant merger proposal and that Railway is not barred by the statute from participating in that merger. We have considered Livingston's other contentions and find them to be without merit.
Conclusion
73
On the entire record we cannot say that the District Court erred in upholding the order set forth in the Second Report or that the Commission has done other than give effect to the Transportation Act of 1920 as amended in 1940, which vested in the Commission the responsibility of balancing the values of competition against the need for consolidation of rail transportation units.
74
The judgment of the District Court is therefore affirmed and the stay granted by this Court pending the resolution of these appeals is hereby vacated.
75
Mr. Justice DOUGLAS took no part in the decision of these cases.
1
The three-judge court decision is reported as United States v. United States, 296 F.Supp. 853 (D.C.D.C.1968).
2
The Colorado & Southern Railway Company and the Fort Worth & Denver Railway Company are both controlled by the Burlington.
3
The vote in this historic case was 5 to 4 with one of the majority, Justice Brewer, joining on narrower grounds.
4
See Great Northern Pacific R. Co. Acquisition, 162 I.C.C. 37 (1930).
5
Among the allied transactions were the issuance of certain securities and the assumption of obligations and liability in respect of securities under § 20a of the Interstate Commerce Act, and the obtaining of certain extensions and abandonments of railroad lines under §§ 1(18) to 1(20), inclusive, of the Act.
6
328 I.C.C. 460 (1966). The majority included Commissioners Bush, Tucker, Webb, Tierney, Brown, and Deason. Commissioners Tuggle, Freas, Murphy, Walrath, and Goff dissented.
7
The Northern Lines also agreed not to oppose the authorization of a proposed Milwaukee-North Western merger.
8
Petitions were also filed by the Northern Pacific Stockholders' Protective Committee seeking further hearings with respect to the justness and reasonableness of the terms of the merger agreement, and the Denver & Rio Grande Railroad seeking an investigation into the agreements entered into by the applicants with the Milwaukee and the North Western. These petitions were denied.
9
331 I.C.C. 228 (1967). Commissioners Tuggle, Murphy, Walrath, Bush, Tucker, Deason, Stafford, and Syphers voted to approve the merger, while Commissioners Tierney and Brown dissented. Commissioner Hardin did not participate in the decision.
10
In this order the Commission modified one of the conditions placed on the merger by the order of November 30, 1967. On June 17, 1968, a further order was issued, ruling that the Milwaukee must be allowed to bring grain traffic through 11 gateways opened to it by conditions contained in the Second Report. Neither the order of April 11 nor that of June 17 was challenged in the District Court. Hence, they are not before us.
11
Attacking the merger were the following: the Northern Pacific Stockholders' Protective Committee; the City of Auburn, Washington; the State of Washington; the Board of Railroad Commissioners of Montana; the Livingston Anti-Merger Committee; and the Public Service Commission of Minnesota.
12
The intervening defendants included the applicants, the Milwaukee, the Public Utility Commissioner of Oregon, and 230 Pacific Northwest shippers.
13
We might note that the substance of the Department's position with respect to the Commission's power to approve consolidations was presented to this Court by the Secretary of Agriculture in No. 31, O.T. 1943, McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370 (1944), Brief for Secretary of Agriculture of the United States 38, 40, and to the three-judge court in the Seaboard-Coast Line merger litigation, Florida East Coast R. Co. v. United States, 259 F.Supp. 993, 1012—1013 (D.C.M.D.Fla.1966), aff'd per curiam, 386 U.S. 544, 87 S.Ct. 1299, 18 L.Ed.2d 285 (1967). In both of these cases, one decided in 1944 and the other in 1966, the Department's position was rejected. In addition, in 1962 a bill was before the Senate that would have imposed a moratorium on the Commission's approval of large railroad mergers that would otherwise violate § 7 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 18. The Department actively supported the bill. It was not reported out of committee. See Hearings on S. 3097 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 87th Cong., 2d Sess. (1962).
14
The Commission apparently had no difficulty in approving a merger of the Northern Lines under a plan similar to that held violative of the Sherman Act in Northern Securities Co. v. United States, 193 U.S. 197, 24 S.Ct. 436 (1904). The Commission gave as one of the considerations leading it to approve the proposed merger, 'the feasibility of making large operating economies.' Great Northern Pacific R. Co. Acquisition, 162 I.C.C. 37, 47 (1930).
15
Report of Committee appointed September 20, 1938, by the President of the United States, to Submit Recommendations upon the General Transportation Situation, December 23, 1938, in Hearings on H.R. 2531 before the House Committee on Interstate and Foreign Commerce, 76th Cong., 1st Sess., 259—308 (1939).
16
Appellant Committee represents about 3% of Northern Pacific's stockholders, who hold approximately 5% of the outstanding shares of Northern Pacific.
17
Northern Pacific's shareholders approved the merger terms in 1961 by a vote of 73.81% to 6.64%, the remainder of the stock not being voted. In 1968 the shareholders again approved the merger's terms, as conditioned by the ICC's Second Report, 73.2% voting for and 2.57% voting against, the remainder not voting. Prior to both of these votes the members of the appellant Committee vigorously urged the shareholders to reject the merger as being unfair because of the low value given the natural resource properties.
18
See Act of July 2, 1864, § 3, 13 Stat. 367.
19
296 F.Supp. 853, 877 (D.C.D.C.1968).
20
Appellees contend that under §§ 5(11) and 20a(7) of the Interstate Commerce Act, 49 U.S.C. §§ 5(11), 20a(7), the approval of a consolidation proposal operates to relieve the applicants from any inhibiting state or federal laws, that the charter of Railroad is such a law, and that approval of the instant merger proposal modifies any conflicting provisions in that charter. Since we do not find Railroad's charter to be binding upon Railway, we need not reach that contention.
APPENDIX A
APPENDIX B
| 78
|
396 U.S. 531
90 S.Ct. 733
24 L.Ed.2d 729
Howard ROSS and Bernard Ross, as Trustees for Lena Rosenbaum, Petitioners,v.Robert A. BERNHARD et al.
No. 42.
Argued Nov. 10, 1969.
Decided Feb. 2, 1970.
William E. Haudek, New York City, for pertitioners.
Marvin Schwartz, New York City, for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The Seventh Amendment to the Constitution provides that in '(s)uits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.' Whether the Amendment guarantees the right to a jury trial in stockholders' derivative actions is the issue now before us.
2
Petitioners brought this derivative suit in federal court against the directors of their closed-end investment company, the Lehman Corporation and the corporation's brokers, Lehman Brothers. They contended that Lehman Brothers controlled the corporation through an illegally large representation on the corporation's board of directors, in violation of the Investment Company Act of 1940, 54 Stat. 789, 15 U.S.C. § 80a—1 et seq., and used this control to extract excessive brokerage fees from the corporation. The directors of the corporation were accused of converting corporate assets and of 'gross abuse of trust, gross misconduct, willful misfeasance, bad faith, (and) gross negligence.' Both the individual defendants and Lehman Brothers were accused of breaches of fiduciary duty. It was alleged that the payments to Lehman Brothers constituted waste and spoliation, and that the contract between the corporation and Lehman Brothers had been violated. Petitioners requested that the defendants 'account for and pay to the Corporation for their profits and gains and its losses.' Petitioners also demanded a jury trial on the corporation's claims.
3
On motion to strike petitioners' jury trial demand, the District Court held that a shareholder's right to a jury on his corporation's cause of action was to be judged as if the corporation were itself the plaintiff. Only the shareholder's initial claim to speak for the corporation had to be tried to the judge. 275 F.Supp. 569. Convinced that 'there are substantial grounds for difference of opinion as to this question and * * * an immediate appeal would materially advance the ultimate termination of this litigation,' the District Court permitted an interlocutory appeal. 28 U.S.C. § 1292(b). The Court of Appeals reversed, holding that a derivative action was entirely equitable in nature, and no jury was available to try any part of it. 403 F.2d 909. It specifically disagreed with DePinto v. Provident Security Life Ins. Co., 323 F.2d 826 (C.A.9th Cir. 1963), cert. denied, Garsuch v. De P, 376 U.S. 950, 84 S.Ct. 965, 11 L.Ed.2d 969 (1964), on which the District Court had relied. Because of this conflict, we granted certiorari 394 U.S. 917, 89 S.Ct. 1190, 22 L.Ed.2d 450 (1969).
4
We reverse the holding of the Court of Appeals that in no event does the right to a jury trial preserved by the Seventh Amendment extend to derivative actions brought by the stockholders of a corporation. We hold that the right to jury trial attaches to those issues in derivative actions as to which the corporation, if it had been suing in its own right, would have been entitled to a jury.
5
The Seventh Amendment preserves to litigants the right to jury trial in suits at common law—
6
'not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered. * * * In a jury sense, the amendment then may well be construed to embrace all suits, which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.' Parsons v. Bedford, Breedlove & Robeson, 3 Pet. 433, 447, 7 L.Ed. 732 (1830).
7
However difficult it may have been to define with precision the line between actions at law dealing with legal rights and suits in equity dealing with equitable matters, Whitehead v. Shattuck, 138 U.S. 146, 151, 11 S.Ct. 276, 277, 34 L.Ed. 873 (1891), some proceedings were unmistakably actions at law triable to a jury. The Seventh Amendment, for example, entitled the parties to a jury trial in actions for damages to a person or property, for libel and slander, for recovery of land, and for conversion of personal property.1 Just as clearly, a corporation, although an artificial being, was commonly entitled to sue and be sued in the usual forms of action, at least in its own State. See Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357 (1869). Whether the corporation was viewed as an entity separate from its stockholders or as a device permitting its stockholders to carry on their business and to sue and be sued, a corporation's suit to enforce a legal right was an action at common law carrying the right to jury trial at the time the Seventh Amendment was adopted.2
8
The common law refused, however, to permit stockholders to call corporate managers to account in actions at law. The possibilities for abuse, thus presented, were not ignored by corporate officers and directors. Early in the 19th century, equity provided relief both in this country and in England. Without detailing these developments,3 it suffices to say that the remedy in this country, first dealt with by this Court in Dodge v. Woolsey, 18 How. 331, 15 L.Ed. 401 (1856), provided redress not only against faithless officers and directors but also against third parties who had damaged or threatened the corporate properties and whom the corporation through its managers refused to pursue. The remedy made available in equity was the derivative suit, viewed in this country as a suit to enforce a corporate cause of action against officers, directors, and third parties. As elaborated in the cases, one precondition for the suit was a valid claim on which the corporation could have sued; another was that the corporation itself had refused to proceed after suitable demand, unless excused by extraordinary conditions.4 Thus the dual nature of the stockholder's action: first, the plaintiff's right to sue on behalf of the corporation and, second, the merits of the corporation claim itself.5
9
Derivative suits posed no Seventh Amendment problems where the action against the directors and third parties would have been by a bill in equity had the corporation brought the suit. Our concern is with cases based upon a legal claim of the corporation against directors or third parties. Does the trial of such claims at the suit of a stockholder and without a jury violate the Seventh Amendment?
10
The question arose in this Court in the context of a derivative suit for treble damages under the antitrust laws. Fleitmann v. Welsbach Street Lighting Co., 240 U.S. 27, 36 S.Ct. 233, 60 L.Ed. 505 1916). Noting that the bill in equity set up a claim of the corporation alone, Mr. Justice Holmes observed that if the corporation were the plaintiff, 'no one can doubt that its only remedy would be at law,' and inquired 'why the defendants' right to a jury trial should be taken away because the present plaintiff cannot persuade the only party having a cause of action to sue,—how the liability which is the principal matter can be converted into an incident of the plaintiff's domestic difficulties with the company that has been wronged'? Id., at 28, 36 S.Ct., at 234. His answer was that the bill did not state a good cause of action in equity. Agreeing that there Fed.Rule Civ.Proc. 23.1, 383 U.S. 1050 right asserted for the company, or the failure of the defendants concerned to insist upon their rights, or a different state system, has led to the whole matter being disposed of in equity,' he concluded that when the penalty of triple damages is sought, the antitrust statute plainly anticipated a jury trial and should not be read as 'attempting to authorize liability to be enforced otherwise than through the verdict of a jury in a court of common law.' Id., at 28—29, 36 S.Ct., at 234. Although the decision had obvious Seventh Amendment overtones, its ultimate rationale was grounded in the antitrust laws.6
11
Where penal damages were not involved, however, there was no authoritative parallel to Fleitmann in the federal system squarely passing on the applicability of the Seventh Amendment to the trial of a legal claim presented in a pre-merger derivative suit. What can be gleaned from this Court's opinions7 is not inconsistent with the general understanding, reflected by the state court decisions and secondary sources, that equity could properly resolve corporate claims of any kind without a jury when properly pleaded in derivative suits complying with the equity rules.8
12
Such was the prevailing opinion when the Federal Rules of Civil Procedure were adopted in 1938. It continued until 1963 when the Court of Appeals for the Ninth Circuit, relying on the Federal Rules as construed and applied in Beacon Theatres Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), and Dairy Queen Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), required the legal issues in a derivative suit to be tried to a jury.9 DePinto v. Provident Security Life Ins. Co., 323 F.2d 826. It was this decision that the District Court followed in the case before us and that the Court of Appeals rejected.
13
Beacon and Dairy Queen presaged DePinto. Under those cases, where equitable and legal claims are joined in the same action, there is a right to jury trial on the legal claims which must not be infringed either by trying the legal issues as incidental to the equitable ones or by a court trial of a common issue existing between the claims. The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action.10 See Simler v. Conner, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963). The principle of these cases bears heavily on derivative actions.
14
We have noted that the derivative suit has dual aspects: first, the stockholder's right to sue on behalf of the corporation, historically an equitable matter; second, the claim of the corporation against directors or third parties on which, if the corporation had sued and the claim presented legal issues, the company could demand a jury trial. As implied by Mr. Justice Holmes in Fleitmann, legal claims are not magically converted into equitable issues by their presentation to a court of equity in a derivative suit. The claim pressed by the stockholder against directors or third parties 'is not his own but the corporation's.' Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 522, 67 S.Ct. 828, 831 (1947). The corporation is a necessary party to the action; without it the case cannot proceed. Although named a defendant, it is the real party in interest, the stockholder being at best the nominal plaintiff. The proceeds of the action belong to the corporation and it is bound by the result of the suit.11 The heart of the action is the corporate claim. If it presents a legal issue, one entitling the corporation to a jury trial under the Seventh Amendment, the right to a jury is not forfeited merely because the stockholder's right to sue must first be adjudicated as an equitable issue triable to the court. Beacon and Dairy Queen require no less.
15
If under older procedures, now discarded, a court of equity could properly try the legal claims of the corporation presented in a derivative suit, it was because irreparable injury was threatened and no remedy at law existed as long as the stockholder was without standing to sue and the corporation itself refused to pursue its own remedies. Indeed, from 1789 until 1938, the judicial code expressly forbade courts of equity from entertaining any suit for which there was an adequate remedy at law.12 This provision served 'to guard the right of trial by jury preserved by the Seventh Amendment and to that end it should be liberally construed.' Schoenthal v. Irving Trust Co., 287 U.S. 92, 94, 53 S.Ct. 50, 51, 77 L.Ed. 185 (1932). If, before 1938, the law and had borrowed from equity, as it borrowed other things, the idea that stockholders could litigate for their recalcitrant corporation, the corporate claim, if legal, would undoubtedly have been tried to a jury.
16
Of course, this did not occur, but the Federal Rules had a similar impact. Actions are no longer brought as actions at law or suits in equity. Under the Rules there is only one action—a 'civil action'—in which all claims may be joined and all remedies are available. Purely procedural impediments to the presentation of any issue by any party, based on the difference between law and equity, was destroyed. In a civil action presenting a stockholder's derivative claim, the court after passing upon the plaintiff's right to sue on behalf of the corporation is now able to try the corporate claim for damages with the aid of a jury.13 Separable claims may be tried separately, Fed.Rule Civ.Proc. 42(b), or legal and equitable issues may be handled in the same trial. Fanchon & Marco, Inc. v. Paramount Pictures, Inc., 202 F.2d 731 (C.A.2d Cir. 1953). The historical rule preventing a court of law from entertaining a shareholder's suit on behalf of the corporation is obsolete; it is no longer tenable for a district court, administering both law and equity in the same action, to deny legal remedies to a corporation, merely because the corporation's spokesmen are its shareholders rather than its directors. Under the rules, law and equity are procedurally combined; nothing turns now upon the form of the action or the procedural devices by which the parties happen to come before the court. The 'expansion of adequate legal remedies provided by * * * the Federal Rules necessarily affects the scope of equity.' Beacon Theatres, Inc. v. Westover, 359 U.S., at 509, 79 S.Ct., at 956.
17
Thus, for example, before-merger class actions were largely a device of equity, and there was no right to a jury even on issues that might, under other circumstances, have been tried to a jury. 5 J. Moore, Federal Practice 38.38(2) (2d ed. 1969); 3B id., 23.02(1). Although at least one post-merger court held that the device was not available to try legal issues,14 it now seems settled in the lower federal courts that class action plaintiffs may obtain a jury trial on any legal issues they present. Montgomery Ward & Co. v. Langer, 168 F.2d 182 (C.A.8th Cir. 1948); see Oskoian v. Canuel, 269 F.2d 311 (C.A.1st Cir. 1959), aff'g 23 F.R.D. 307; Syres v. Oil Workers Int'l Union, Local 23, 257 F.2d 479 (C.A.5th Cir. 1958), cert. denied, 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed.2d 302 (1959). 2 W. Barron & A. Holtzoff, Federal Practice and Procedure § 571 (Wright ed. 1961).
18
Derivative suits have been described as one kind of 'true' class action. Id., § 562.1. We are inclined to agree with the description, at least to the extent it recognizes that the derivative suit and the class action were both ways of allowing parties to be heard in equity who could not speak at law.15 3B J. Moore, Federal Practice 23.02(1), 23.1.16(1) (2d ed. 1969). After adoption of the rules there is no longer any procedural obstacle to the assertion of legal rights before juries, however the party may have acquired standing to assert those rights. Given the availability in a derivative action of both legal and equitable remedies, we think the Seventh Amendment preserves to the parties in a stockholder's suit the same right to a jury trial that historically belonged to the corporation and to those against whom the corporation pressed its legal claims.
19
In the instant case we have no doubt that the corporation's claim is, at least in part, a legal one. The relief sought is money damages. There are allegations in the complaint of a breach of fiduciary duty, but there are also allegations of ordinary breach of contract and gross negligence. The corporation, had it sued on its own behalf, would have been entitled to a jury's determination, at a minimum, of its damages against its broker under the brokerage contract and of its rights against its own directors because of their negligence. Under these circumstances it is unnecessary to decide whether the corporation's other claims are also properly triable to a jury. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). The decision of the Court of Appeals is reversed.
20
It is so ordered.
21
Decision of Court of Appeals reversed.
22
Mr. Justice STEWART, with whom THE CHIEF JUSTICE and Mr. Justice HARLAN join, dissenting.
23
In holding as it does that the plaintiff in a shareholder's derivative suit is constitutionally entitled to a jury trial, the Court today seems to rely upon some sort of ill-defined combination of the Seventh Amendment and the Federal Rules of Civil Procedure. Somehow the Amendment and the Rules magically interact to do what each separately was expressly intended not to do, namely, to enlarge the right to a jury trial in civil actions brought in the courts of the United States.
24
The Seventh Amendment, by its terms, does not extend, but merely preserves the right to a jury trial '(i)n Suits at common law.' All agree that this means the reach of the Amendment is limited to those actions that were tried to the jury in 1791 when the Amendment was adopted.1 Suits in equity, which were historically tried to the court, were therefore unaffected by it. Similarly, Rule 38 of the Federal Rules has no bearing on the right to a jury trial in suits in equity, for it simply preserves inviolate '(t)he right of trial by jury as declared by the Seventh Amendment.' Thus this Rule, like the Amendment itself, neither restricts nor enlarges the right to jury trial.2 Indeed nothing in the Federal Rules can rightly be construed to enlarge the right of jury trial, for in the legislation authorizing the Rules, Congress expressly provided that they 'shall neither abridge, enlarge, nor modify the substantive rights of any litigant.' 48 Stat. 1064. See 28 U.S.C. § 2072. I take this plain, simple, and straight-forward language to mean that after the promulgation of the Federal Rules, as before, the constitutional right to a jury trial attaches only to suits at common law. So, apparently, has every federal court that has discussed the issue.3 Since, as the Court concedes, a shareholder's derivative suit could be brought only in equity, it would seem to me to follow by the most elementary logic that in such suits there is no constitutional right to a trial by jury.4 Today the Court tosses aside history, logic and over 100 years of firm precedent to hold that the plaintiff in a shareholder's derivative suit does indeed have a constitutional right to a trial by jury. This holding has a questionable basis in policy5 and no basis whatever in the Constitution.
25
The Court begins by assuming the 'dual nature' of the shareholder's action. While the plaintiff's right to get into court at all is conceded to be equitable, once he is there the Court says his claim is to be viewed as though it were the claim of the corporation itself. If the corporation would have been entitled to a jury trial on such a claim, then, it is said, so would the shareholder. This conceptualization is without any historical basis. For the fact is that a shareholder's suit was not originally viewed in this country, or in England, as a suit to enforce a corporate cause of action. Rather, the shareholder's suit was initially permitted only against the managers of the corporation—not third parties—and it was conceived of as an equitable action to enforce the right of a beneficiary against his trustee.6 The shareholder was not, therefore, in court to enforce indirectly the corporate right of action, but to enforce directly his own equitable right of action against an unfaithful fiduciary. Later the rights of the shareholder were enlarged to encompass suits against third parties harming the corporation, but 'the postulated 'corporate cause of action' has never been thought to describe an actual historical class of suit which was recognized by courts of law.'7 Indeed the commentators, including those cited by the Court as postulating the analytic duality of the shareholder's derivative suit, recognize that historically the suit has in practice always been treated as a single cause tried exclusively in equity. They agree that there is therefore no constitutional right to a jury trial even where there might have been one had the corporation itself brought the suit.8
26
This has been not simply the 'general' or 'prevailing' view in the federal courts as the Court says, but the unanimous view with the single exception of the Ninth Circuit's 1963 decision in DePinto v. Provident Security Life Ins. Co., 323 F.2d 826, a decision that has since been followed by no court until the present case.
27
The Court would have us discount all those decisions rendered before 1938, when the Federal Rules of Civil Procedure were adopted, because it says that before the promulgation of the Rules, '(p)urely procedural impediments' somehow blocked the exercise of a constitutional right. In itself this would seem a rather shaky premise upon which to build an argument. But the Court's position is still further weakened by the fact that any '(p)urely procedural impediments' to a jury trial in a derivative suit were eliminated, not in 1938, but at least as early as 1912. For Rule 23 of the Equity Rules of that year provided that if a 'matter ordinarily determinable at law' arose in an equity suit it should 'be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court.' 226 U.S. 654. These applicable principles included the right of jury trial.9 Consequently, when the Court said in United Copper Co. v. Amalgamated Copper Co., 244 U.S. 261, 264, 37 S.Ct. 509, 510, 61 L.Ed. 1119, that 'it is clear' that the remedy of a stockholder seeking to enforce the rights of a corporation—whatever their nature—is not in law but in equity, it was not because there were 'procedural impediments' to a jury trial on any 'legal issues.' Rather, it was because the suit itself was conceived of as a wholly equitable cause of action.
28
This was also true in Fleitmann v. Welsbach Street Lighting Co., 240 U.S. 27, 36 S.Ct. 233, 60 L.Ed. 505, on which the Court so heavily relies even though it was a pre-Federal-Rules case. In Fleitmann the plaintiff sued derivatively to enforce a corporate right of action for treble damages under the antitrust laws. Treble damages were considered punitive, and the statute was read to imply a right in the defendant to a jury trial. In his opinion for the Court, Mr. Justice Holmes recognized the potential for abuse: derivative rather than corporate actions could be brought in order to deprive the defendant of his right to a jury trial. The Court's solution was to dismiss the bill because the antitrust statute 'should not be read as attempting to authorize liability to be enforced otherwise than through the verdict of a jury in a court of common law.' Id., at 29, 36 S.Ct., at 234. I do not see how the Court today can draw sustenance from this decision. Rather, the Fleitmann case seems to me to stand for a proposition diametrically opposed to that which the Court seeks to establish; namely, the proposition that because a derivative action is wholly equitable, there is no right to a jury trial. The Court in Fleitmann simply held that since there was a statutory right to a jury in all actions for treble damages under the antitrust laws, a derivative suit seeking such damages could not be maintained. Thus the bill had to be dismissed.10
29
These pre-1938 cases, then, firmly establish the unitary, equitable basis of shareholders' derivative suits and in no way support the Court's holding here. But, the Court says, whatever the situation may have been before 1938, the Federal Rules of Civil Procedure of that year, at least as construed in our decisions more than 20 years later in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988, and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44, in any event require the conclusion reached today. I can find nothing in either of these cases that leads to that conclusion.
30
In Beacon Theatres the plaintiff sought both an injunction preventing the defendant from instituting an antitrust action and a declaratory judgment that certain moving picture distribution contracts did not violate the antitrust laws. The defendant answered and counterclaimed for treble damages under the antitrust laws. He demanded a jury trial on the factual issues relating to his counterclaim. The district court held that even though there were factual issues common to both the complaint and the counterclaim, it would first hear the plaintiff's suit for equitable relief before submitting the counterclaim to a jury. The Court of Appeals affirmed, and this Court reversed, upon the ground that if the equitable claim were tried first, there might be an estoppel which would defeat the defendant's right to a full jury trial on all the factual issues raised in his counterclaim. Similarly in Dairy Queen the Court simply held that a plaintiff could not avoid a jury trial by joining legal and equitable causes of action in one complaint.
31
It is true that in Beacon Theatres it was stated that the 1938 Rules did diminish the scope of federal equity jurisdiction in certain particulars. But the Court's effort to force the facts of this case into the mold of Beacon Theatres and Dairy Queen simply does not succeed. Those cases involved a combination of historically separable suits, one in law and one in equity. Their facts fit the pattern of cases where, before the Rules, the equity cases where, before the Rules, the equity court would have disposed of the equitable claim and would then have either retained jurisdiction over the suit, despite the availability of adequate legal remedies, or enjoined a subsequent legal action between the same parties involving the same controversy.11
32
But the present case is not one involving traditionally equitable claims by one party, and traditionally legal claims by the other. Nor is it a suit in which the plaintiff is asserting a combination of legal and equitable claims. For, as we have seen, a derivative suit has always been conceived of as a single, unitary, equitable cause of action. It is for this reason, and not because of 'procedural impediments,' that the courts of equity did not transfer derivative suits to the law side. In short, the cause of action is wholly a creature of equity. And whatever else can be said of Beacon Theatres and Dairy Queen, they did not cast aside altogether the historic division between equity and law.
33
If history is to be so cavalierly dismissed, the derivative suit can, of course, be artificially broken down into separable elements. But so then can any traditionally equitable cause of action, and the logic of the Court's position would lead to the virtual elimination of all equity jurisdiction. An equitable suit for an injunction, for instance, often involves issues of fact which, if damages had been sought, would have been triable to a jury. Does this mean that in a suit asking only for injunctive relief these factual issues must be tried to the jury, with the judge left to decide only whether, given the jury's findings, an injunction is the appropriate remedy? Certainly the Federal Rules make it possible to try a suit for an injunction in that way, but even more certainly they were not intended to have any such effect. Yet the Court's approach, it seems, would require that if any 'legal issue' procedurally could be tried to a jury, it constitutionally must be tried to a jury.
34
The fact is, of course, that there are, for the most part, no such things as inherently 'legal issues' or inherently 'equitable issues.' There are only factual issues, and, 'like chameleons (they) take their color from surrounding circumstances.'12 Thus the Court's 'nature of the issue' approach is hardly meaningful.
35
As a final ground for its conclusion, the Court points to a supposed analogy to suits involving class actions. It says that before the Federal Rules such suits were considered equitable and not triable to a jury, but that since promulgation of the Rules the federal courts have found that 'plaintiffs may obtain a jury trial on any legal issues they present.' Of course the plaintiff may obtain such a trial even in a derivative suit. Nothing in the Constitution or the Rules precludes the judge from granting a jury trial as a matter of discretion. But even if the Court means that some federal courts have ruled that the class action plaintiff in some situations has a constitutional right to a jury trial, the analogy to derivative suits is wholly unpersuasive. For it is clear that the draftsmen of the Federal Rules intended that Rule 23 as it pertained to class actions should be applicable, like other rules governing joinder of claims and parties, 'to all actions, whether formerly denominated legal or equitable.'13 This does not mean that a formerly equitable action is triable to a jury simply because it is brought on behalf of a class, but only that a historically legal cause of action can be tried to a jury even if it is brought as a class action. Since a derivate suit is historically wholly a creation of equity, the class action 'analogy' is in truth no analogy at all.
36
The Court's decision today can perhaps be explained as a reflection of an unarticulated but apparently overpowering bias in favor of jury trials in civil actions. It certainly cannot be explained in terms of either the Federal Rules or the Constitution.
1
See, e.g., Curriden v. Middleton, 232 U.S. 633, 34 S.Ct. 458, 58 L.Ed. 765 (1914); Whitehead v. Shattuck, 138 U.S. 146, 11 S.Ct. 276, 34 L.Ed. 873 (1891); 5 J. Moore, Federal Practice 38.11(5) (2d ed. 1969).
2
1 W. Blackstone, Commentaries *475; cf. Bank of Columbia v. Patterson's Adm'r, 7 Cranch 299, 3 L.Ed. 351 (1813); President and Directors of Bank of Commonwealth of Kentucky v. Wister, 2 Pet. 318, 7 L.Ed. 437 (1829).
3
Prunty, The Shareholders' Derivative Suit: Notes on Its Derivation, 32 N.Y.U.L.Rev. 980 (1957), treats the development of the equitable remedy.
4
Delaware & Hudson Co. v. Albany & S.R. Co., 213 U.S. 435, 29 S.Ct. 540, 53 L.Ed. 862 (1909); Doctor v. Harrington, 196 U.S. 579, 25 S.Ct. 355, 49 L.Ed. 606 (1905); City of Quincy v. Steel, 120 U.S. 241, 7 S.Ct. 520, 30 L.Ed. 624 (1887); Hawes v. City of Oakland, 104 U.S. 450, 26 L.Ed. 827 (1882). Soon after Hawes v. Oakland, supra, the preconditions to a shareholder's suit were promulgated as Equity Rule 94, 104 U.S. IX, which became Equity Rule 27, 226 U.S. 656 (1912), then Fed.Rule Civ.Proc. 23(b), 308 U.S. 690 (1938), and is now Fed.Rules Civ.Proc. 23.1, 383 U.S. 1050 (1966).
5
See Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 522 523, 67 S.Ct. 828, 830—831, 91 L.Ed. 1067 (1947); Ashwander v. TVA, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936). See also 13 W. Fletcher,Cyclopedia of the Law of Private Corporations § 5941.1 (1961 ed.); 2 G. Hornstein, Corporation Law and Practice § 716 (1959); 4 J. Pomeroy, Equity Jurisprudence § 1095, p. 278 (5th ed. 1941). Insofar as the stockholders may have been asserting their own direct interest, they closely resemble other class action plaintiffs who could proceed, before merger, only in equity.
6
The dilemma of the stockholder seeking treble damages for the corporation became real and complete in United Copper Co. v. Amalgamated Copper Co., 244 U.S. 261, 37 S.Ct. 509, 61 L.Ed. 1119 (1917), where the stockholder-plaintiff sought treble damages in an action at law. The Court rejected the claim by reiterating the traditional view that a shareholder was without standing to sue at law on a corporate cause. The treble-damage action was a legal proceeding and only the corporation could bring it. The Court of Appeals for the Second Circuit has held that the federal rules have resolved the dilemma and that derivative actions for treble damages under the antitrust laws are now proper. Fanchon & Marco, Inc. v. Paramount Pictures, Inc., 202 F.2d 731 (C.A.2d Cir. 1953). Cf. Ramsburg v. American Inv. Co. of Ill., 231 F.2d 333 (C.A.7th Cir. 1956). See generally Comment, Federal Antitrust Law Stockholders' Remedies For Corporate Injury Resulting From Antitrust Violations: Derivative Antitrust Suit and Fiduciary Duty Action, 59 Mich.L.Rev. 904 (1961).
7
For example, in Amalgamated Copper the Court noted that in City of Quincy v. Steel, 120 U.S. 241, 7 S.Ct. 520, 30 L.Ed. 624 (1887), a shareholder's bill in equity that sought to enforce 'a purely legal claim of the corporation,—damages for breach of contract' was dismissed, 'not because the suit should have been at law, but because the bill failed to show that complainant had made sufficient effort to induce the directors to enter suit.' 244 U.S., at 264—265, n. 3, 37 S.Ct., at 511. Delaware & Hudson Co. v. Albany & S.R. Co., supra, n. 4, involved a derivative suit for money damages due under a lease. The stockholders' right to sue was sustained; no jury trial issue appears to have been raised.
8
See, e.g., Goetz v. Manufacturers' & Traders' Trust Co., 154 Misc. 733, 277 N.Y.S. 802 (Sup.Ct.1935); Isaac v. Marcus, 258 N.Y. 257, 179 N.E. 487 (1932); Morton v. Morton Realty Co., 41 Idaho 729, 241 P. 1014 (1925); Neff v. Barber, 165 Wis. 503, 162 N.W. 667 (1917); Robinson v. Smith, & Paige Ch. 222, 231, 233 (N.Y.1832); 4 W. Cook, Corporations § 734 (8th ed. 1923); S. Thompson & J. Thompson, Law of Corporations § 4661 (Supp.1931); 6 Id., § 4653 (3d ed. 1927).
9
The possibility that the merged federal practice altered the procedures in derivative suits was early recognized, Fanchon & Marco, Inc. v. Paramount Pictures, Inc., supra, n. 6, but until the action of the District Court below DePinto was alone in holding that a right to a jury trial existed in derivative actions. Cf. Richland v. Crandall, 259 F.Supp. 274 (D.C.S.D.N.Y.1966). See also Metcalf v. Shamel, 166 Cal.App.2d 789, 333 P.2d 857 (1959); Steinway v. Griffith Consol. Theatres, 273 P.2d 872 (Okla.1954).
10
As our cases indicate, the 'legal' nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries. Of these factors, the first, requiring extensive and possibly abstruse historical inquiry, is obviously the most difficult to apply. See James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655 (1963).
11
See Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947); Meyer v. Fleming, 327 U.S. 161, 167, 66 S.Ct. 382, 386, 90 L.Ed. 595 (1946); Davenport v. Dows, 18 Wall. 626, 21 L.Ed. 938 (1874).
12
The Judicial Code of 1911, § 267, 36 Stat. 1163, re-enacting the Act of Sept. 24, 1789, § 16, 1 Stat. 82, provided: 'Suits in equity shall not be sustained in any court of the United States in any case where a plain, adequate, and complete remedy may be had at law.'
13
It would appear that the same conclusions could have been reached under Equity Rule 23 and the Law and Equity Act of 1915, Act of March 3, 1915, 38 Stat. 956. See Southern R. Co. v. City of Greenwood, 40 F.2d 679 (D.C.W.D.S.C.1928); 2 J. Moore, Federal Practice 2.05 (2d ed. 1967). Rule 23 provided:
'If in a suit in equity a matter ordinarily determinable at law arises, such matters shall be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court.'
14
Farmers Co-operative Oil Co. Socony-Vacuum Oil Co., 43 F.Supp. 735 (D.C.N.D.Iowa 1942).
15
Other equitable devices are used under the rules without depriving the parties employing them of the right to a jury trial on legal issues. For example, although the right to intervene may in some cases be limited, United States for Use and Benefit of Browne & Bryan Lumber Co. v. Massachusetts Bonding & Ins. Co., 303 F.2d 823 (C.A.2d Cir. 1962); Dickinson v. Burnham, 197 F.2d 973 (C.A.2d Cir.), cert. denied 344 U.S. 875, 73 S.Ct. 169, 97 L.Ed. 678 (1952), when intervention is permitted generally, the intervenor has a right to a jury trial on any legal issues he presents. See 3B J. Moore, Federal Practice 24.16(7) (2d ed. 1969); 5 id., 38.38(3). A similar development seems to be taking place in the lower courts in interpleader actions. Before merger interpleader actions lay only in equity, and there was no right to a jury even on issues that might, under other circumstances, have been tried to a jury. Liberty Oil Co. v. Condon Nat. Bank, 260 U.S. 235, 43 S.Ct. 118, 67 L.Ed. 232 (1922). This view continued for some time after merger, see Bynum v. Prudential Life Ins. Co., 7 F.R.D. 585 (D.C.E.D.S.C.1947), but numerous courts and commentators have now come to the conclusion that the right to a jury should not turn on how the parties happen to be brought into court. See Pan American Fire & Cas. Co. v. Revere, 188 F.Supp. 474 (D.C.E.D.La.1960); Savannah Bank & Trust Co. v. Block, 175 F.Supp. 798 (D.C.S.D.Ga.1959); Westinghouse Elec. Corp. v. United Elec. Radio & Mach. Workers of America, 99 F.Supp. 597 (D.C.W.D.Pa.1951); John Hancock Mut. Life Ins. Co. v. Yarrow, 95 F.Supp. 185 (D.C.E.D.Pa.1951); 2 W. Barron & A. Holtzoff, Federal Practice and Procedure § 556 (Wright ed. 1961); 3A J. Moore, Federal Practice 22.14(4) (2d ed. 1969). But see Pennsylvania Fire Ins. Co. v. American Airlines, Inc., 180 F.Supp. 239 (D.C.E.D.N.Y.1960); Liberty Nat. Life Ins. Co. v. Brown, 119 F.Supp. 920 (D.C.M.D.Ala.1954).
1
Where a new cause of action is created by Congress, and nothing is said about how it is to be tried, the jury trial issue is determined by fitting the cause into its nearest historical analogy. Luria v. United States, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101; see James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655.
2
See, e.g., Ettelson v. Metropolitan Life Ins. Co., 3 Cir., 137 F.2d 62, 65; 5 J. Moore, Federal Practice 38.07(1) and cases cited therein.
3
The principle that the Rules effected no enlargement or restriction of the right of jury trial has 'received complete judicial approbation.' 5 J. Moore, Federal Practice 38.07(1) and cases cited therein.
4
Virtually every state and federal court that has faced this issue has similarly reasoned to the same conclusion. See, e.g., Goetz v. Manufacturers' & Traders' Trust Co., 154 Misc. 733, 277 N.Y.S. 802 (Sup.Ct.); Metcalf v. Shamel, 166 Cal.App.2d 789, 333 P.2d 857; Liken v. Shaffer, D.C., 64 F.Supp. 432; Miller v. Weiant, D.C., 42 F.Supp. 760. The equitable nature of the derivative suit has been recognized in several decisions of this Court. See, e.g., Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 547—548, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528. It was also reflected in the adoption of Equity Rule 94 in 1882, and Rule 27 of the Equity Rules of 1912 which established the preconditions to bringing shareholders' derivative suits in the federal courts. These rules are the forerunners of Rule 23(b) of Fed.Rule Civ.Proc. of 1938, and of Fed.Rule Civ.Proc. 23.1 (1966), which now controls the initiation of such suits. See 3B. J. Moore, Federal Practice 23.1.15(1).
5
See, e.g., Frank, Courts on Trial 110—111 (1949). Certainly there is no consensus among commentators on the desirability of jury trials in civil actions generally. Particularly where the issues in the case are complex—as they are likely to be in a derivative suit—much can be said for allowing the court discretion to try the case itself. See discussion in 5 J. Moore, Federal Practice 38.02(1).
6
Robinson v. Smith, 3 Paige Ch. 222 (N.Y.); Attorney General v. Utica Ins. Co., 2 Johns., Ch. 371 (N.Y.), discussed in Prunty, The Shareholders' Derivative Suit: Notes on its Derivation, 32 N.Y.U.L.Rev. 980.
7
Note, The Right to a Jury Trial in a Stockholder's Derivative Action, 74 Yale L.J. 725, 730.
8
See, e.g., N. Lattin, The Law of Corporations, c. 8, § 3; 2 G. Hornstein, Corporation Law and Practice § 730; 13 W. Fletcher, Cyclopedia of the Law of Private Corporations § 5931 (1961 ed.); 5 J. Moore, Federal Practice 38.38(4).
9
See Southern R. Co. v. City of Greenwood, 40 F.2d 679.
10
Moreover, since the suit was brought after the promulgation of Equity Rule 23 it seems evident that here, too, it was not merely 'procedural impediments' that prevented the antitrust claim from being tried to a jury, but presumably the fact that no matter arising in a derivative suit—whatever its 'inherent nature'—was considered to be one 'ordinarily determinable at law.'
11
See discussion in 74 Yale L.J., at 736—737.
12
James, supra, n. 1, at 692. As Professor Moore has put it, 'Whether issues are legal or equitable may, of course, depend upon the manner in which they are presented. * * *' 5 J. Moore, Federal Practice 38.04(1), n. 40. And he, along with virtually every other commentator, concludes that if the issues are presented in a shareholder's derivative suit they are equitable and the plaintiff has no constitutional right to have them tried by a jury. 5 J. Moore, Federal Practice 38.38(4).
13
Original Committee Note of 1937 to Rule 23. Moreover, as Professor Moore points out, certain class actions could be maintained at law in the federal courts even before the Federal Rules. 5 J. Moore, Federal Practice 38.38(2).
| 01
|
397 U.S. 45
90 S.Ct. 816
25 L.Ed.2d 43
UNITED STATESv.Donald Joseph COTTON et al.
No. 1022.
Supreme Court of the United States
February 24, 1970
Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Mervyn Hamburg, for the United States.
William M. Kunstler, for appellees.
PER CURIAM.
1
The motion of the appellees for leave to proceed in forma pauperis is granted. The motion to dismiss is granted and the appeal is dismissed for failure to docket the case within the time prescribed by Rule 13.
2
Mr. Justice DOUGLAS, dissenting.
3
The requirement for filing the record in an appeal within the time prescribed by Rule 13 is not jurisdictional. Rather it is a provision of our own Rule which we often waive in the interests of justice. We should waive it here. The appeal now dismissed was solely protective under 18 U.S.C. § 3731. The main remedy sought was mandamus in the Court of Appeals, and the record naturally went to that court, not here. The issue tendered by the appeal now dismissed is whether the District Court properly dismissed the indictment, because there could be no 'fair trial' in the district at that time and that if a continuance was granted, appellees would be denied a speedy trial guaranteed by the Constitution.
4
That is an important question we should hear and decide.
| 89
|
397 U.S. 14
90 S.Ct. 803
25 L.Ed.2d 12
UNITED STATES, Petitioner,v.W. G. REYNOLDS et ux.
No. 88.
Argued Jan. 14, 1970.
Decided Feb. 24, 1970.
Shiro Kashiwa, Honolulu, Hawaii, for petitioner.
Erwin S. Solomon, Hot Springs, Va., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The United States brought this suit in the United States District Court for the Western District of Kentucky to condemn more than 250 acres of the respondents' land for a federal development known as the Nolin Reservoir Project located in that State. An important issue in the case was raised by the respondents' claim that 78 acres of the land, taken for construction of recreational facilities adjacent to the reservoir, had not been within the original scope of the project.1 A jury awarded the respondents $20,000 as just compensation for all the land taken. Upon an appeal by the respondents, the Court of Appeals for the Sixth Circuit reversed the judgment and ordered a new trial, finding that the District Judge in his instructions to the jury had erroneously referred to matters disclosed outside the jury's presence.2 The trial and appellate courts were in agreement, however, in rejecting the Government's contention that the 'scope-of-the-project' issue was for the trial judge to decide and should not, therefore, have been submitted to the jury at all. There being a conflict between the circuits on this question,3 we granted certiorari to consider a recurring problem of importance in federal condemnation proceedings. 396 U.S. 814, 90 S.Ct. 54, 24 L.Ed.2d 66.
2
The Fifth Amendment provides that private property shall not be taken for public use without just compensation. And 'just compensation' means the full monetary equivalent of the property taken.4 The owner is to be put in the same position monetarily as he would have occupied if his property had not been taken.5 In enforcing the constitutional mandate, the Court at an early date adopted the concept of market value: the owner is entitled to the fair market value of the property6 at the time of the taking.7 But this basic measurement of compensation has been hedged with certain refinements developed over the years in the interest of effectuating the constitutional guarantee. It is one of these refinements that is in controversy here.
3
The Court early recognized that the 'market value' of property condemned can be affected, adversely or favorably, by the imminence of the very public project that makes the condemnation necessary.8 And it was perceived that to permit compensation to be either reduced or increased because of an alteration in market value attributable to the project itself would not lead to the 'just compensation' that the Constitution requires.9 On the other hand, the development of a public project may also lead to enhancement in the market value of neighboring land that is not covered by the project itself. And if that land is later condemned, whether for an extension of the existing project or for some other public purpose, the general rule of just compensation requires that such enhancement in value be wholly taken into account, since fair market value is generally to be determined with due consideration of all available economic uses of the property at the time of the taking.10
4
In United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336, the Court gave full articulation to these principles:
5
'If a distinct tract is condemned, in whole or in part, other lands in the neighborhood may increase in market value due to the proximity of the public improvement erected on the land taken. Should the Government, at a later date, determine to take these other lands, it must pay their market value as enhanced by this factor of proximity. If, however, the public project from the beginning included the taking of certain tracts but only one of them is taken in the first instance, the owner of the other tracts should not be allowed an increased value for his lands which are ultimately to be taken any more than the owner of the tract first condemned is entitled to be allowed an increased market value because adjacent lands not immediately taken increased in value due to the projected improvement.
6
'The question then is whether the respondents' lands were probably within the scope of the project from the time the Government was committed to it. If they were not, but were merely adjacent lands, the subsequent enlargement of the project to include them ought not to deprive the respondents of the value added in the meantime by the proximity of the improvement. If, on the other hand, they were, the Government ought not to pay any increase in value arising from the known fact that the lands probably would be condemned. The owners ought not to gain by speculating on probable increase in value due to the Government's activities.' 317 U.S., at 376—377, 63 S.Ct., at 281.
7
There is no controversy in the present case regarding these basic principles. The parties agree that if the acreage in issue was 'probably within the scope of the project from the time the Government was committed to it,' substantially less compensation is due than if it was not. For if the property was probably within the project's original scope, then its compensable value is to be measured in terms of agricultural use. If, on the other hand, the acreage was outside the original scope of the project, its compensable value is properly measurable interms of its economic potential as lakeside residential or recreational property.
8
The issue between the parties is simply whether the 'scope-of-the-project' question is to be determined by the trial judge or by the jury. There is no claim that the issue is of constitutional dimensions. For it has long been settled that there is no constitutional right to a jury in eminent domain proceedings. See Bauman v. Ross, 167 U.S. 548, 593, 17 S.Ct. 966, 983, 42 L.Ed. 270. As Professor Moore has put the matter:
9
'The practice in England and in the colonies prior to the adoption in 1791 of the Seventh Amendment, the position taken by Congress contemporaneously with, and subsequent to, the adoption of the Amendment, and the position taken by the Supreme Court and nearly all of the lower federal courts lead to the conclusion that there is no constitutional right to jury trial in the federal courts in an action for the condemnation of property under the power of eminent domain.'11
10
It is not, therefore, to the Seventh Amendment that we look in this case, but to the Federal Rules of Civil Procedure. Rule 71A(h) provides that, except in circumstances not applicable here, 'any party' to a federal eminent domain proceeding 'may have a trial by jury of the issue of just compensation,' unless the court in its discretion orders that that issue 'shall be determined by a commission of three persons appointed by it. * * * Trial of all issues shall otherwise be by the court.'12 The Rule thus provides that, except for the single issue of just compensation, the trial judge is to decide all issues, legal and factual, that may be presented. The critical inquiry is thus whether 'the issue of just compensation,' as that phrase is used in the Rule, is broad enough to embrace the question whether the condemned property was probably within the scope of the federal project.13
11
Although the matter could be decided either way without doing violence to the language of Rule 71A(h), we think the Rule's basic structure makes clear that a jury in federal condemnation proceedings is to be confined to the performance of a single narrow but important function—the determination of a compensation award within ground rules established by the trial judge. The Rule gives the trial court discretion to eliminate a jury entirely. And when a jury is afforded, the sweeping language of the final sentence of the Rule discloses a clear intent to give the district judge a role in condemnation proceedings much broader than he occupies in a conventional jury trial. It is for him to decide 'all issues' other than the precise issue of the amount of compensation to be awarded. It follows that it is for the judge to tell the jury the criteria it must follow in determining what amounts will constitute just compensation, and that in order to do so he must decide the 'scope-of-the-project' issue as a preliminary matter. We therefore approve and adopt the procedural rule announced by the Court of Appeals for the Fifth Circuit in Wardy v. United States, 402 F.2d 762, and hold that it is for the judge and not the jury to decide whether the property condemned was probably within the project's original scope.14
12
Finally, the Government asks us to take this occasion to 'clarify' the 'scope-of-the-project' test. We think the test was stated with admirable clarity by a unanimous Court in Miller: if the 'lands were probably within the scope of the project from the time the Government was committed to it,' no enhancement in value attributable to the project is to be considered in awarding compensation. As with any test that deals in probabilities, its application to any particular set of facts requires discriminating judgment.15 The rule does not require a showing that the land ultimately taken was actually specified in the original plans for the project. It need only be shown that during the course of the planning or original construction it became evident that land so situated would probably be needed for the public use.
13
The judgment of the Court of Appeals is vacated, and the case is remanded to the United States District Court for the Western District of Kentucky for further proceedings consistent with this opinion.
14
It is so ordered.
15
Vacated and remanded.
16
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
17
All constitutional questions aside, there was in the present case a right to trial by jury on 'the issue of just compensation' as provided in Rule 71A(h). I do not see how 'the issue of just compensation' can be decided without considering whether or not the property was probably within or not within the project's original scope. As the opinion of the Court makes plain, important questions of value turn on that decision. In this case it is seen in the difference between the value of the property as agricultural land and its value as potential lakeside residential or recreational property.
18
If it were certain beyond doubt that the property was within the original scope of the project, a different question might be presented. But there is nothing in this record to show that respondents' property was included in the original design. We deal here with probabilities or perhaps with possibilities. If the property were not within the original design, a purchaser could reasonably anticipate that he would be able to devote the land to its highest economic use reflected in part by its proximity to the Government's project. Henry George1 would have it otherwise; but that has not been the direction of our economy. Hence what we are talking about is market value and that in turn includes all of the ingredients that make up price. The most central element of price in the area now litigated was the relation of the land to the original project and that issue was one of fact. The 'issue of just compensation'2 as used in Rule 71A(h) truly cannot be resolved without considering that question.
19
There seems to be no reason why the jury chosen by Congress to decide the final issue of 'just compensation' should be denied the power to determine the subordinate issues of fact upon which the jury's final verdict must rest.
20
There are powerful forces loose in this country that deprecate the use of juries. The Department of Justice and other federal agencies3 often seem to dislike juries in condemnation cases. In my Circuit, juries have unexpectedly risen up in favor of homeowners and against Washington, D.C., and granted 'just compensation' in large sums, in retaliation, it is believed, against hard-nosed officials who, with all the power of the central government, seek to plow them under. At other times the jury has acted differently and cut down the award.4 Juries in these condemnation cases perform, in other words, an historic restraint on both executive and judicial power. See Bushell's Case. 6 How.St.Tr. 999, decided in 1670.
1
Congress authorized the Nolin Reservoir Project in 1938 as part of a comprehensive flood control plan for the Ohio and Mississippi Rivers. See Act of June 28, 1938, § 4, 52 Stat. 1217. Congress first appropriated funds for the planning stage of the project in 1956. See Public Works Appropriation Act of 1957, 70 Stat. 479. In July 1958 the Chief of Army Engineers approved a general design memorandum contemplating the construction of recreational areas in connection with the project, but evidently not specifying where they would be. The first funds for construction were appropriated in 1958. See Public Works Appropriation Act of 1959, 72 Stat. 1573. Construction began in January 1959.
Most of the respondents' acreage condemned by the Government was taken because it would be inundated by the reservoir, and there is no question that this land was within the original scope of the project. But 78 acres of the tract were taken for the construction of recreational facilities adjacent to the reservoir itself. These 78 acres were not referred to in a design memorandum submitted in June 1959. They were, however, designated for taking in a memorandum approved in October of that year. It has been Government policy to build recreational areas in conjunction with federal reservoir projects since 1944. Act of December 22, 1944, § 4, 58 Stat. 889.
2
United States v. 811.92 Acres of Land, 404 F.2d 303.
3
The Court of Appeals for the Fifth Circuit has held that the 'scope-of-the-project' issue is to be determined by the trial judge. Wardy v. United States, 402 F.2d 762, 763.
4
Monongahela Navigation Co. v. United States, 148 U.S. 312, 326, 13 S.Ct. 622, 626, 37 L.Ed. 463.
5
United States v. New River Collieries Co., 262 U.S. 341, 343, 43 S.Ct. 565, 566, 67 L.Ed. 1014; Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 304, 43 S.Ct. 354, 355, 67 L.Ed. 664.
6
City of New York v. Sage, 239 U.S. 57, 61, 36 S.Ct. 25, 26, 60 L.Ed. 143; Boom Co. v. Patterson, 98 U.S. (8 Otto) 403, 408, 25 L.Ed. 206.
7
Kerr v. South Park Commissioners, 117 U.S. 379, 386, 6 S.Ct. 801, 804, 29 L.Ed. 924.
8
Shoemaker v. United States, 147 U.S. 282, 304—305, 13 S.Ct. 361, 392—393, 37 L.Ed. 170.
9
United States v. Virginia Electric & Power Co., 365 U.S. 624, 635—636, 81 S.Ct. 784, 791—792, 5 L.Ed.2d 838; United States v. Cors, 337 U.S. 325, 332—334, 69 S.Ct. 1086, 1090—1091, 93 L.Ed. 1392.
10
United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 81, 33 S.Ct. 667, 679, 57 L.Ed. 1063; Boom Co. v. Patterson, supra.
11
5 J. Moore, Federal Practice 38.32(1), p. 239 (2d ed. 1969). (Footnote omitted.)
12
The full text of Rule 71A(h) is as follows:
'If the action involves the exercise of the power of eminent domain under the law of the United States, any tribunal specially constituted by an Act of Congress governing the case for the trial of the issue of just compensation shall be the tribunal for the determination of that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix, unless the court in its discretion orders that, because of the character, location, or quantity of the property to be condemned, or for other reasons in the interests of justice, the issue of compensation shall be determined by a commission of three persons appointed by it. If a commission is appointed it shall have the powers of a master provided in subdivision (c) of Rule 53 and proceedings before it shall be governed by the provisions of paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and report shall be determined by a majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdivision (e) of Rule 53. Trial of all issues shall otherwise be by the court.'
13
In United States v. Miller, supra, it appears that that question was decided by the trial judge, who excluded all evidence of enhanced value attributable to the project. 317 U.S., at 372 373, 63 S.Ct., at 279—280. While this Court's opinion in Miller approved of that procedure, it is to be remembered that the case was decided before the adoption of Rule 71A(h) in 1951, at a time when federal courts in condemnation proceedings followed the procedures of the States in which they were located. See Advisory Committee Notes to Rule 71A; 7 J. Moore, supra, 71A.03, p. 2716 (2d ed. 1968).
14
'The question was whether appellants' 'lands were probably within the scope of the project from the time the Government was committed to it.' * * * Appellants contend that the jury should have been allowed to answer this question. Under rule 71A(h) the jury's function is limited to determining 'just compensation.' It is the duty of the court to decide the legal issues, as well as all other fact issues. (Citations omitted.) Thus, instead of infringing on the jury's functions, the judge merely decided a legal question which limited the factors necessary to the determination of 'just compensation." Wardy v. United States, 402 F.2d, at 763. See also Scott Lumber Co. v. United States, 390 F.2d 388, 392 (C.A.9th Cir.); United States v. 91.69 Acres of Land, 334 F.2d 229, 231—232 (C.A.4th Cir.).
15
Compare John L. Roper Lumber Co. v. United States, 150 F.2d 329, 332, with Scott v. United States, 146 F.2d 131, 132—133.
1
Progress and Poverty, Book VI (50th Ann. ed. 1945).
2
In United States v. Certain Lands in Raritan & Woodbridge Tps., D.C., 144 F.Supp. 206, a road was taken and the question of 'just compensation' turned on whether the construction of a substitute facility was necessary. The court held that that issue of necessity was properly left to the jury:
'In the average condemnation proceeding, many factors must be considered in arriving at just compensation, factors which are only established and available after the exercise of a fact-finding process. There appears to be no reason for introducing a trial by jury into condemnation proceedings unless the jury's province is broad enough to include the weighing of evidence which directly relates to the issue of compensation. It would seem that in this case the determination as to whether any substitute facilities are required at all is indeed a part of the 'issue of just compensation,' one of the factors to be taken into account by the jury in reaching its verdict.' Id., at 214.
3
The present Rule 71A, which in absence of an Act of Congress gives the courts discretion to have the issue of compensation decided by a commission of three, was inspired by the Act governing condemnations by the TVA which required the appointment of a commission in all cases, 48 Stat. 70. See Notes of Advisory Committee, 28 U.S.C., following Rule 71A. But that Act was amended in 1968. See 82 Stat. 885, 16 U.S.C. § 831x (1964 ed., Supp. IV). Under the bill as reported out of the Senate Committee on Public Works either party had on demand 'an absolute right to a jury trial.' S.Rep. No. 930, 90th Cong., 1st Sess., 2. U.S.Code Cong. & Admin. News, p. 3657. 'Proponents of the legislation indicated that no landowner should be denied his basic right to a trial by jury involving the condemnation of his property. In addition, it was indicated that the absence of a right to a jury trial had generated friction between TVA and landowners which was seriously affecting the public relations of that agency.' Ibid.
The Senate Committee stated: 'While the committee makes no judgment as to the benefits of either the commissioner or jury-trial system, it does feel that a right to trial-by-jury is basic to our American way of life, and accordingly recommends adoption of this legislation.' Id., at 3.
That bill was amended on the floor of the Senate to modify the provision for an absolute right to jury trial by making Rule 71A applicable to TVA condemnation proceedings. The discussion in support of this amendment, however, again stressed the general dissatisfaction with the commission system, and emphasized the right to jury trial in all but the most 'extraordinary circumstances.' 113 Cong.Rec. 36979—36981.
4
See John L. Roper Lumber Co. v. United States, 150 F.2d 329, where the jury refused the land owner any increment of value occasioned by the land's proximity to the project.
| 01
|
397 U.S. 47
90 S.Ct. 811
25 L.Ed.2d 33
Rolf J. KOLDENv.
SELECTIVE SERVICE LOCAL BOARD NO. 4.
No. 70.
Supreme Court of the United States
February 24, 1970*
Melvin L. Wulf, Chester Bruvold, and Lynn Castner, for petitioner Rolf J. Kolden.
John J. Abt, for petition in No. 73.
Stanley Faulkner, for petitioner in No. 164.
Melvin L. Wulf, for petitioner in No. 183.
Robert Eugene Smith, for petitioner Michael J. Kraus.
Sheldon M. Meizlish, for petitioners Marc Belding Anderson and others.
Solicitor General Griswold, Assistant Attorney General Ruckelshaus, Morton Hollander and Ralph A. Fine, for respondents in Nos. 70, 164, and 183.
Solicitor General Griswold, for respondents Michael J. Kraus and Marc Belding Anderson and others.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit.
PER CURIAM.
1
The petitions for writs of certiorari are granted, the judgments are vacated and the cases are remanded to the respective United States Courts of Appeals for further consideration in light of Breen v. Selective Service Board, 396 U.S. 460, 90 S.Ct. 661.
2
Mr. Justice HARLAN would reverse the judgments in these cases and remand them on the basis of his concurring opinion in Breen v. Selective Service Board, 396 U.S., at 468, 90 S.Ct. 661, and the Court's opinion in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506.
*
Together with No. 73, Chaikin v. Selective Service Local Board et al.; No. 164, Faulkner v. Laird, Secretary of Defense, et al.; No. 183, Osher v. Selective Service Local Board No. 6 et al.; on petitions for writs of certiorari to the United States Court of Appeals for the Second Circuit; No. 331, Kraus v. Selective Service System Local 25 et al., on petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit; and No. 449, Anderson et al. v. Hershey, National Director, Selective Service System, et al., on petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit.
| 12
|
397 U.S. 25
90 S.Ct. 770
25 L.Ed.2d 21
Henry J. CZOSEK et al., Petitioners,v.John R. O'MARA et al.
No. 234.
Argued Jan. 13, 1970.
Decided Feb. 24, 1970.
Richard R. Lyman, Toledo, Ohio, for petitioners.
James P. Shea, Buffalo, N.Y., for respondent employees.
Richard F. Griffin, Buffalo, N.Y., for respondent railroad.
Mr. Justice WHITE delivered the opinion of the Court.
1
In 1960, the corporate respondent, Erie Lackawanna Railroad Company, was formed by the merger of the Erie Railroad and the Delaware, Lackawanna & Western Railroad. Thereafter, the individual respondents, former employees of the Delaware Lackawanna, continued as employees of the Erie Lackawanna until 1962, when they were furloughed; after the 1962 furlough, the respondent employees were never recalled by the railroad. Deeming the furlough a final discharge, the individual respondents brought suit in the District Court for the Western District of New York against the Erie Lackawanna and against the International Brotherhood of Firemen and Oilers, subordinate organizations within the union, and local and national officers of the union. The allegations were that the railroad had wrongfully discharged the plaintiffs in violation of § 5 et seq. of the Interstate Commerce Act, 24 Stat. 380, as amended, 49 U.S.C. § 5 et seq., the Railway Labor Act, 44 Stat. 577, as amended, 45 U.S.C. § 151 et seq., and the agreement between the Erie Lackawanna and its employees entered into to implement the 1960 merger of the Erie and the Delaware Lackawanna; and that the union defendants had been 'guilty of gross nonfeasance and hostile discrimination' in arbitrarily and capriciously refusing to process the claims of plaintiffs, who had 'been replaced by 'pre-merger' employees of the Erie Railroad.' Damages in the sum of $160,000 were sought against the railroad, the union defendants, or both. The District Court dismissed the complaint against the railroad for failure to exhaust administrative remedies under the Railway Labor Act and for lack of diversity jurisdiction; the court dismissed the complaint against the union because the complaint failed adequately to allege a breach of duty and because the employees could have processed their own grievances.
2
On appeal, the Court of Appeals for the Second Circuit reversed the District Court's decision with respect to the action against the union defendants. O'Mara v. Erie Lackawanna R. Co., 407 F.2d 674 (1969). The Court of Appeals held that the complaint was adequate to allege a breach by the union of its duty of fair representation subject to vindication in the District Court without resort to administrative remedies. Dismissal of the complaint against the railroad was affirmed; but on remand the individual respondents were to be granted leave to maintain their action against the railroad if they should choose to amend their complaint to allege that the employer was somehow implicated in the union's discrimination.
3
We granted certiorari, Czosek v. O'Mara, 396 U.S. 814, 90 S.Ct. 80, 24 L.Ed.2d 66 (1969), and we affirm the judgment of the Court of Appeals. Although the complaint was not as specific with regard to union discrimination as might have been desirable, we deem the complaint against the union sufficient to survive a motion to dismiss. As the Court of Appeals indicated, 'where the courts are called upon the fulfill their role as the primary guardians of the duty of fair representation,' complaints should be construed to avoid dismissals and the plaintiff at the very least 'should be given the opportunity to file supplemental pleadings unless it appears 'beyond doubt' that he cannot state a good cause of action.' 407 F.2d, at 679. See Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). And surely it is beyond cavil that a suit against the union for breach of its duty of fair representation is not within the jurisdiction of the National Railroad Adjustment Board or subject to the ordinary rule that administrative remedies should be exhausted before resort to the courts. Glover v. St. Louis-S.F.R. Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969); Conley v. Gibson, supra. The claim against the union defendants for the breach of their duty of fair representation is a discrete claim quite apart from the right of individual employees expressly extended to them under the Railway Labor Act to pursue their employer before the Adjustment Board.1
4
Neither the individual respondents nor the railroad sought review here of the Court of Appeals' judgment insofar as it sustained the dismissal of the complaint against the railroad absent allegations implicating the railroad in the union's claimed breach of duty. The petitioning union defendants, however, challenge this aspect of the Court of Appeals' decision, insisting that they may not be sued alone for breach of duty when the damage to employees had its roots in their discharge by the railroad prior to the union's alleged refusal to process grievances. Apparently fearing that if sued alone they may be forced to pay damages for which the employer is wholly or partly responsible, the petitioners claim error in the Court of Appeals' affirmance of the dismissal of the suit against the railroad. These fears are groundless. The Court of Appeals permitted the railroad to be made a party to the suit if it is properly alleged that the discharge was a consequence of the union's discriminatory conduct or that the employer was in any other way implicated in the union's alleged discriminatory action.2 If these allegations are not made and the employer is not a party defendant, judgment against petitioners can in any event be had only for those damages that flowed from their own conduct.3 Assuming a wrongful discharge by the employer independent of any discriminatory conduct by the union and a subsequent discriminatory refusal by the union to process grievances based on the discharge, damages against the union for loss of employment are unrecoverable except to the extent that its refusal to handle the grievances added to the difficulty and expense of collecting from the employer. If both the union and the employer have independently caused damage to employees, the union cannot complain if separate actions are brought against it and the employer for the portion of the total damages caused by each.
5
Since the petitioning union defendants will not be materially prejudiced by the possible absence of the respondent railroad as a codefendant at trial and since neither the Railroad nor the aggrieved employees sought review of the Court of Appeals' judgment, we have no occasion to consider whether under federal law, which governs in cases like these, the employer may always be sued with the union when a single series of events gives rise to claims against the employer for breach of contract and against the union for breach of the duty of fair representation or whether, as the Court of Appeals held, when there are no allegations tying union and employer together, the union is suable in the District Court for breach of duty but resort must be had to the Adjustment Board for a remedy against the employer.
6
Affirmed.
7
THE CHIEF JUSTICE would dismiss the writ of certiorari as improvidently granted.
1
Section 3 First (i) of the Railway Labor Act, 45 U.S.C. § 153 First (i), authorizes reference to the Adjustment Board of disputes 'between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions * * *.' Section 3 First (j) of the Act, 45 U.S.C. § 153 First (j), provides that '(p)arties may be heard either in person, by counsel, or by other representatives, as they may respectively elect * * *.' The individual employee's rights to participate in the processing of his grievances 'are statutory rights, which he may exercise independently or authorize the union to exercise in his behalf.' Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 740 n. 39, 65 S.Ct. 1282, 1298, 89 L.Ed. 1886 (1945), adhered to on rehearing, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946).
2
See Glover v. St. Louis-S.F.R. Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969); Cunningham v. Erie R. Co., 266 F.2d 411 (C.A.2d Cir. 1959); Richardson v. Texas & N.O.R. Co., 242 F.2d 230 (C.A.5th Cir. 1957). See also Ferro v. Railway Express Agency, Inc., 296 F.2d 847 (C.A.2d Cir. 1961).
3
See Vaca v. Sipes, 386 U.S. 171, 196—198, 198, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).
| 67
|
397 U.S. 1
90 S.Ct. 763
25 L.Ed.2d 1
UNITED STATES, Petitioner,v.Lelord KORDEL and Alfred Feldten.
No. 87.
Argued Nov. 20, 1969.
Decided Feb. 24, 1970.
Lawrence G. Wallace, Washington, D.C., for petitioner.
Solomon H. Friend, New York City, for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondents are the president and vice president, respectively, of Detroit Vital Foods, Inc. They were convicted in the United States District Court for the Eastern District of Michigan, along with the corporation, for violations of the Federal Food, Drug, and Cosmetic Act.1 The Court of Appeals for the Sixth Circuit reversed the respondent's convictions on the ground that the Government's use of interrogatories to obtain evidence from the respondents in a nearly contemporaneous civil condemnation proceeding operated to violate their Fifth Amendment privilege against compulsory self-incrimination.2 We granted certiorari to consider the questions raised by the Government's invocation of simultaneous civil and criminal proceedings in the enforcement of federal law.3
2
In March 1960 the Division of Regulatory Management of the Food and Drug Administration (hereafter FDA) instructed the agency's Detroit office to investigate the respondents' possible violations of the Food, Drug, and Cosmetic Act. Within a month the Detroit office recommended to the Division a civil seizure of two of the respondents' products, 'Korleen' and 'frutex'; within another month the Division similarly recommended seizure to the FDA's General Counsel. On June 6, 1960, the General Counsel requested the United States Attorney for the Eastern District of Michigan to commence an in rem action against these products of the corporation, and the United States Attorney filed a libel three days later. The corporation, appearing as the claimant answered the libel on September 12, 1960. An FDA official in the Division of Regulatory Management then prepared extensive interrogatories to be served on the corporation in this civil action. The United States Attorney filed the agency's interrogatories on January 6, 1961, pursuant to Rule 33 of the Federal Rules of Civil Procedure.4
3
After the Division official had drafted the interrogatories, he recommended that pursuant to § 305 of the Food, Drug, and Cosmetic Act the FDA serve upon the corporation and the respondents a notice that the agency contemplated a criminal proceeding against them with respect to the transactions that were the subject of the civil action.5 On January 9, 1961, three days after the filing of the interrogatories in the civil action, the Detroit office received an instruction from the Division to serve the statutory notice. The Detroit office complied 10 days later, and on March 8, 1961, the agency held a hearing on the notice.
4
On April 10, the corporation, having received the FDA's interrogatories but not yet having answered them, moved to stay further proceedings in the civil action or, in the alternative, to extend the time to answer the interrogatories until after disposition of the criminal proceeding signaled by the § 305 notice. The motion was accompanied by the affidavit of counsel. The moving papers urged the District Court to act under Rule 33 'in the interest of substantial justice' and as a 'balancing of hardship and equities of the respective parties * * *.' Permitting the Government to obtain proof of violations of the Act by resort to civil discovery procedures, the movant urged, would be 'improper' and would 'work a grave injustice against the claimant'; it would also enable the Government to have pretrial discovery of the respondents' defenses to future criminal charges. Counsel expressly disavowed any 'issue of a self-incrimination privilege in favor of the claimant corporation.' And nowhere in the moving papers did counsel raise a claim of the Fifth Amendment privilege against compulsory self-incrimination with respect to the respondents.
5
On June 21, 1961, the District Court denied the motion upon finding that the corporation had failed to demonstrate that substantial prejudice and harm would result from being required to respond to the interrogatories. The court reasoned that the § 305 notice did not conclusively indicate the Government would institute a criminal proceeding, that six to 12 months could elapse from the service of the statutory notice to initiation of a criminal prosecution, and that the Government could obtain data for a prosecution from the testimony in the civil action or by subpoenaing the books and records of the corporation. Accordingly, the court concluded, the interests of justice did not require that the Government be denied the information it wanted simply because it had sought it by way of civil-discovery procedures. On September 5, 1961, in compliance with the court's directive, the corporation, through the respondent Feldten, answered the Government's interrogatories.
6
On July 28, 1961, five weeks after the District Court's order but more than a month before receipt of the answers to the interrogatories, the Director of the FDA's Detroit office recommended a criminal prosecution to the Division. The Division forwarded the recommendation to the General Counsel on August 31, 1961, still prior to receipt of Feldten's answers. While the matter was pending in the General Counsel's office, the Division officer who had originally drafted the proposed interrogatories recommended that additional violations of the statute be alleged in the indictment. On June 13, 1962, the Department of Health, Education, and Welfare requested the Department of Justice to institute a criminal proceeding, and about two months after that the latter department instructed the United States Attorney in Detroit to seek an indictment. The civil case, still pending in the District Court, proceeded to settlement by way of a consent decree in November 1962, and eight months later the Government obtained the indictment underlying the present judgments of conviction.
7
* At the outset, we assume that the information Feldten supplied the Government in his answers to the interrogatories, if not necessary to the proof of the Government's case in the criminal prosecution, as the Court of Appeals thought, at least provided evidence or leads useful to the Government.6 However, the record amply supports the express finding of the District Judge who presided at the criminal trial, and who held an extensive evidentiary hearing on the respondents' pretrial motion to suppress evidence, that the Government did not act in bad faith in filing the interrogatories. Rather, the testimony before the trial court demonstrated that the Division of Regulatory Management regularly prepares such interrogatories upon the receipt of claimants' answers to civil libels, and files them in over three-fourths of such cases, to hasten their disposition by securing admissions and laying the foundation for summary judgments.
8
The Court of Appeals thought the answers to the interrogatories were involuntarily given. The District Judge's order denying the corporation's motion to defer the answers to the interrogatories, reasoned the court, left the respondents with three choices: they could have refused to answer, thereby forfeiting the corporation's property that was the subject of the libel; they could have given false answers to the interrogatories, thereby subjecting themselves to the risk of a prosecution for perjury; or they could have done just what they did—disclose the requested information, thereby supplying the Government with evidence and leads helpful in securing their indictment and conviction.7
9
In this analysis we think the Court of Appeals erred. For Feldten need not have answered the interrogatories. Without question he could have invoked his Fifth Amendment privilege against compulsory self-incrimination.8 Surely Feldten was not barred from asserting his privilege simply because the corporation had no privilege of its own,9 or because the proceeding in which the Government sought information was civil rather than criminal in character.10
10
To be sure, service of the interrogatories obliged the corporation to 'appoint an agent who could, without fear of self-incrimination, furnish such requested information as was available to the corporation.'11 The corporation could not satisfy its obligation under Rule 33 simply by pointing to an agent about to invoke his constitutional privilege. 'It would indeed be incongruous to permit a corporation to select an individual to verify the corporation's answers, who because he fears self-incrimination may thus secure for the corporation the benefits of a privilege it does not have.'12 Such a result would effectively permit the corporation to assert on its own behalf the personal privilege of its individual agents.13
11
The respondents press upon us the situation where no one can answer the interrogatories addressed to the corporation without subjecting himself to a 'real and appreciable' risk of self-incrimination.14 For present purposes we may assume that in such a case the appropriate remedy would be a protective order under Rule 30(b), postponing civil discovery until termination of the criminal action.15 But we need not decide this troublesome question. For the record before us makes clear that even though the respondents had the burden of showing that the Government's interrogatories were improper,16 they never even asserted, let alone demonstrated, that there was no authorized person who could answer the interrogatories without the possibility of compulsory self-incrimination.17 To the contrary, the record shows that nobody associated with the corporation asserted his privilege at all. The respondents do not suggest that Feldten, who answered the interrogatories on behalf of the corporation, did so while unrepresented by counsel or without appreciation of the possible consequences. His failure at any time to assert the constitutional privilege leaves him in no position to complain now that he was compelled to give testimony against himself.18
12
Kordel's claim of compulsory self-incrimination is even more tenuous than Feldten's. Not only did Kordel never assert the privilege; he never even answered any interrogatories. The Court of Appeals nevertheless reversed his conviction because it thought it 'clear from the record that Detroit Vital Foods, Inc., was merely the corporate device through which Kordel sold his products. The Government naturally wanted to cut through the facade and get to Kordel who was the president and dominant personality in the corporation.'19 We disagree. The Government brought its libel against the goods; the corporation, not Kordel, appeared as claimant. The Government subsequently prosecuted Kordel as an officer of the company. If anyone has sought to cut through the corporate facade so far as the Fifth Amendment privilege is concerned, it is Kordel: he has, in effect, attempted to fashion a self-incrimination claim by combining testimony that he never gave and an assertion of the privilege that he never made with another assertion of the privilege that his company never had.
13
The Court of Appeals thought that Kordel must go free in any event because the Government had used Feldten's admissions in proving its criminal case against both respondents, in violation of the rule in Bruton v. United States.20 This too was error. Feldten's admissions were never introduced in evidence at the trial, and thus Kordel cannot maintain that the reception in evidence of a codefendant's inculpatory statements violated his Sixth Amendment right to confrontation.21
II
14
The respondents urge that even if the Government's conduct did not violate their Fifth Amendment privilege against compulsory self-incrimination, it nonetheless reflected such unfairness and want of consideration for justice as independently to require the reversal of their convictions. On the record before us, we cannot agree that the respondents have made out either a violation of due process or a departure from proper standards in the administration of justice requiring the exercise of our supervisory power. The public interest in protecting consumers throughout the Nation from misbranded drugs requires prompt action by the agency charged with responsibility for administration of the federal food and drug laws. But a rational decision whether to proceed criminally against those responsible for the misbranding may have to await consideration of a fuller record than that before the agency at the time of the civil seizure of the offending products. It would stultify enforcement of federal law to require a governmental agency such as the FDA invariably to choose either to forgo recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial.22
15
We do not deal here with a case where the Government has brought a civil action solely to obtain evidence for its criminal prosecution23 or has failed to advise the defendant in its civil proceeding that it contemplates his criminal prosecution;24 nor with a case where the defendant is without counsel25 or reasonably fears prejudice from adverse pretrial publicity or other unfair injury;26 nor with any other special circumstances that might suggest the unconstitutionality or even the impropriety of this criminal prosecution.27
16
Overturning these convictions would be tantamount to the adoption of a rule that the Government's use of interrogatories directed against a corporate defendant in the ordinary course of a civil proceeding would always immunize the corporation's officers from subsequent criminal prosecution. The Court of Appeals was correct in stating that the Government may not use evidence against a defendant in a criminal case which has been coerced from him under penalty of either giving the evidence or suffering a forfeiture of his property.'28 But on this record there was no such violation of the Constitution, and no such departure from the proper administration of criminal justice.
17
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
18
It is so ordered.
19
Reversed and remanded.
20
Mr. Justice BLACK did not take part in the decision of this case.
1
52 Stat. 1040, 21 U.S.C. § 301 et seq.
2
United States v. Detroit Vital Foods, Inc., 6 Cir., 407 F.2d 570. The Court of Appeals initially reversed the judgments of conviction of all three defendants, but on the Government's petition for rehearing it affirmed with respect to the corporation.
3
395 U.S. 932, 89 S.Ct. 1998, 23 L.Ed.2d 447.
4
Rule 33 provides in pertinent part: 'Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party.'
5
Section 305 of the Act, 21 U.S.C. § 335, provides:
'Before any violation of (the Act) * * * is reported by the Secretary (of the Department of Health, Education, and Welfare) to any United States attorney for institution of a criminal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present his views, either orally or in writing, with regard to such contemplated proceeding.' Service of the statutory notice did not necessarily mean that a criminal prosecution would follow; the testimony before the District Court on the respondents' pretrial motion to suppress evidence indicated that fewer than 10% of the matters involving a § 305 notice reach the stage of either indictment or information.
6
Compare 407 F.2d, at 575, with id., at 572.
7
Id., at 573.
8
Wilson v. United States, 221 U.S. 361, 377, 385, 31 S.Ct. 538, 543, 546, 55 L.Ed. 771; Boyd v. United States, 116 U.S. 616, 633—635, 6 S.Ct. 524, 533—534, 29 L.Ed. 746; cf. United States v. 42 Jars . . . 'Bee Royale Capsules,' D.C., 162 F.Supp. 944, 946, aff'd, 3 Cir., 264 F.2d 666.
9
Curcio v. United States, 354 U.S. 118, 124, 77 S.Ct. 1145, 1149, 1 L.Ed.2d 1225; Wilson v. United States, supra, 221 U.S. at 385, 31 S.Ct. at 546; United States v. 3963 Bottles . . . of . . . 'Enerjol Double Strength,' 7 Cir., 265 F.2d 332, 335—336, cert. denied, 360 U.S. 931, 79 S.Ct. 1448, 3 L.Ed.2d 1544; United States v. 30 Individually Cartoned Jars . . . 'Ahead Hair Restorer . . .,' D.C., 43 F.R.D. 181, 187; cf. Shapiro v. United States, 335 U.S. 1, 27, 68 S.Ct. 1375, 1389, 92 L.Ed. 1787. That the corporation has no privilege is of course long established, and not disputed here. See George Campbell Painting Corp. v. Reid, 392 U.S. 286, 288—289, 88 S.Ct. 1978, 1979—1980, 20 L.Ed.2d 1094; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 196, 208, 209 210, 66 S.Ct. 494, 498, 505, 505—506, 90 L.Ed. 614; United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 726—727, 64 S.Ct. 805, 815, 88 L.Ed. 1024; Essgee Co. of China v. United States, 262 U.S. 151, 155—156, 43 S.Ct. 514, 516, 67 L.Ed. 917; Wheeler v. United States, 226 U.S. 478, 489—490, 33 S.Ct. 158, 162, 57 L.Ed. 309; Baltimore & Ohio R. Co. v. ICC, 221 U.S. 612, 622—623, 31 S.Ct. 621, 626—627, 55 L.Ed. 878; Hale v. Henkel, 201 U.S. 43, 74—75, 26 S.Ct. 370, 378—379, 50 L.Ed. 652; cf. Curcio v. United States, supra; United States v. White, 322 U.S. 694, 698, 705, 64 S.Ct. 1248, 1251, 1254, 88 L.Ed. 1542.
10
Gardner v. Broderick, 392 U.S. 273, 276, 88 S.Ct. 1913, 1915, 20 L.Ed.2d 1082; McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158; Counselman v. Hitchcock, 142 U.S. 547, 562, 563—564, 12 S.Ct. 195, 197, 198, 35 L.Ed. 1110; Boyd v. United States, supra; United States v. Saline Bank, 1 Pet. 100, 104, 7 L.Ed. 69; 8 J. Wigmore, Evidence § 2257, pp. 339—340 (McNaughton rev. 1961); C. McCormick, Evidence § 123, p. 259 (1954).
11
United States v. 3963 Bottles . . . of . . . 'Enerjol Double Strength,' supra, 265 F.2d at 336; cf. United States v. 48 Jars . . . 'Tranquilease,' D.C., 23 F.R.D. 192, 195, 196; 2A W. Barron & A. Holtzoff, Federal Practice and Procedure § 651, p. 101 (Wright ed. 1961).
12
United States v. 3963 Bottles . . . of . . . 'Enerjol Double Strength,' supra, at 336.
13
Cf. George Campbell Painting Corp. v. Reid, supra, 392 U.S. at 289, 88 S.Ct. at 1980; Hale v. Henkel, supra, 201 U.S. at 69—70, 26 S.Ct. 376—377.
14
Cf. Minor v. United States, 396 U.S. 87, 98, 90 S.Ct. 284, 289, 24 L.Ed.2d 283; Leary v. United States, 395 U.S. 6, 16, 89 S.Ct. 1532, 1537, 23 L.Ed.2d 57; Marchetti v. United States, 390 U.S. 39, 48, 88 S.Ct. 697, 702, 19 L.Ed.2d 889; Mason v. United States, 244 U.S. 362, 365, 37 S.Ct. 621, 622, 61 L.Ed. 1198.
15
See Paul Harrigan & Sons v. Enterprise Animal Oil Co., D.C., 14 F.R.D. 333.
16
Luey v. Sterling Drug, Inc., D.C., 240 F.Supp. 632, 634; Glick v. McKesson & Robbins, Inc., D.C., 10 F.R.D. 477, 479, 480; Bowles v. Safeway Stores, Inc., D.C., 4 F.R.D. 469, 470; Blanc v. Smith, D.C., 3 F.R.D. 182, 183. The respondents, urging that the Government had the burden of establishing the availability of an agent to answer for the corporation, rely upon the decision of the Court of Appeals for the District of Columbia Circuit in Communist Party v. United States, 118 U.S.App.D.C. 61, 331 F.2d 807, cert. denied, 377 U.S. 968, 84 S.Ct. 1646, 12 L.Ed.2d 737. But there the court departed from the customary allocation of the burden on the ground that the mere act of volunteering the information sought, or even of showing that an effort had been made to find someone who would answer, was itself potentially incriminatory. Id., at 68 69, 331 F.2d, at 814—815.
17
See United States v. American Radiator & Standard Sanitary Corp., 3 Cir., 388 F.2d 201, 204, cert. denied, 390 U.S. 922, 88 S.Ct. 857, 19 L.Ed.2d 983; United States v. Simon, 2 Cir., 373 F.2d 649, 653, cert. granted sub nom. Simon v. Wharton, 386 U.S. 1030, 87 S.Ct. 1485, 18 L.Ed.2d 591, vacated as moot, 389 U.S. 425, 88 S.Ct. 577, 19 L.Ed.2d 653; but see National Discount Corp. v. Holzbaugh, D.C., 13 F.R.D. 236, 237.
18
Gardner v. Broderick, 392 U.S. 273, 276, 88 S.Ct. 1913, 1915, 20 L.Ed.2d 1082; Rogers v. United States, 340 U.S. 367, 372 375, 71 S.Ct. 438, 441—443, 95 L.Ed. 344; United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 376; Vajtauer, United States ex rel. v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560; Brown v. Walker, 161 U.S. 591, 597, 16 S.Ct. 644, 647, 40 L.Ed. 819.
19
407 F.2d, at 575.
20
391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. See 407 F.2d, at 575.
21
See Bruton v. United States, supra, at 126, 88 S.Ct. at 1622.
22
Cf. Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 51—52, 33 S.Ct. 9, 15—16, 57 L.Ed. 107 (Sherman Act).
23
Cf. United States v. Procter & Gamble Co., 356 U.S. 677, 683—684, 78 S.Ct. 983, 986—987, 2 L.Ed.2d 1077; United States v. Pennsalt Chemicals Corp., D.C., 260 F.Supp. 171; and see United States v. Thayer, D.C., 214 F.Supp. 929; Beard v. New York Central R. Co., D.C., 20 F.R.D. 607.
24
See Smith v. Katzenbach, 122 U.S.App.D.C. 113, 114—116, 351 F.2d 810, 811—813; United States v. Lipshitz, D.C., 132 F.Supp. 519, 523; United States v. Guerrina, D.C., 112 F.Supp. 126, 128.
25
Cf. Nelson v. United States, 93 U.S.App.D.C. 14, 19, 21, and n. 19, 208 F.2d 505, 510, 512, and n. 19, cert. denied, 346 U.S. 827, 74 S.Ct. 48, 98 L.Ed. 352.
26
Cf. United States v. American Radiator & Standard Sanitary Corp., 3 Cir., 388 F.2d 201, 204—205, cert. denied, 390 U.S. 922, 88 S.Ct. 857, 19 L.Ed.2d 983.
27
Federal courts have deferred civil proceedings pending the completion of parallel criminal prosecutions when the interests of justice seemed to require such action, sometimes at the request of the prosecution, Campbell v. Eastland, 5 Cir., 307 F.2d 478, cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502; United States v. Bridges, D.C., 86 F.Supp. 931, 933; United States v. 30 Individually Cartoned Jars . . . 'Ahead Hair Restorer . . .,' D.C., 43 F.R.D. 181, 187 n. 8; United States v. One 1964 Cadillac Coupe DeVille, D.C., 41 F.R.D. 352, 353—354; United States v. $2,437 United States Currency, D.C., 36 F.R.D. 257; United States v. Steffes, D.C., 35 F.R.D. 24; United States v. Maine Lobstermen's Assn., D.C., 22 F.R.D. 199; United States v. Cigarette Merchandisers Assn., D.C., 18 F.R.D. 497; United States v. Linen Supply Institute, D.C., 18 F.R.D. 452; Sometimes at the request of the defense, Kaeppler v. Jas. H. Matthews & Co., D.C., 200 F.Supp. 229; Perry v. McGuire, D.C., 36 F.R.D. 272; cf. Nichols v. Philadelphia Tribune Co., D.C., 22 F.R.D. 89, 92.
28
407 F.2d, at 575—576.
| 01
|
397 U.S. 31
90 S.Ct. 779
25 L.Ed.2d 27
Kenneth R. JONES, Petitioner,v.STATE BOARD OF EDUCATION of and FOR the STATE OF TENNESSEE et al.
No. 731.
Argued Jan. 19 and 20, 1970.
Decided Feb. 24, 1970.
Rehearing Denied March 30, 1970.
See 397 U.S. 1018, 90 S.Ct. 1230.
Reber F. Boult, Jr., Atlanta, Ga., for petitioner.
Robert H. Roberts, Byrdstown, for respondents.
PER CURIAM.
1
Petitioner Jones was suspended indefinitely as a student at Tennessee A. & I. State University in the summer of 1967. His indefinite suspension was confirmed after a hearing in September of that year, in which charges against him were specified, evidence taken, and findings made. He, along with two other suspended students, brought suit in the United States District Court for the Middle District of Tennessee, seeking to set aside the suspension on First Amendment and due process grounds. After a hearing, the District Court granted judgment on the merits to defendants with an opinion. 279 F.Supp. 190 (1968). On appeal the Court of Appeals for the Sixth Circuit affirmed. 407 F.2d 834 (1969). We granted certiorari, 396 U.S. 817, 90 S.Ct. 145, 24 L.Ed.2d 69 (1969), primarily to consider the issues raised by Jones' claim that he had been separated from the university solely because of his distribution of leaflets urging a boycott of fall registration.
2
After oral argument, and on closer review of the record, it emerges—as it did not from the certiorari papers or the opinions of the District Court and the Court of Appeals—that Jones' indefinite suspension was based in part on a finding that he lied at the hearing on the charges against him. This fact sufficiently clouds the record to render the case an inappropriate vehicle for this Court's first decision on the extent of First Amendment restrictions upon the power of state universities to expel or indefinitely suspend students for the expression of views alleged to be disruptive of the good order of the campus. Accordingly the writ of certiorari is dismissed as improvidently granted.
3
It is so ordered.
4
Writ of certiorari dismissed.
5
Mr. Justice BLACK, for reasons set out in the above opinion and others stated in his dissent in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 515—526, 89 S.Ct. 733, 741—747, 21 L.Ed.2d 731, would affirm the judgment below.
6
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting.
7
Petitioner, a student at Tennessee A. & I. State University, was dismissed from the school on charges preferred by a Faculty Advisory Committee and heard by it. One of the charges read as follows:
8
'You are charged with distributing literature and soliciting students, all of which was designed to boycott the registration at the University for the Fall Quarter 1967. This occurred during the Summer of 1967.'
9
The literature urging a boycott of registration was a pamphlet which is printed in the Appendix to this opinion.
10
Petitioner, being suspended indefinitely, brought this suit in the District Court for an injunction and other relief. That court denied relief, 279 F.Supp. 190, and the Court of Appeals affirmed. 407 F.2d 834. Our failure to reverse is a serious setback for First Amendment rights in a troubled field.
11
The leaflet now censored may be illtempered and in bad taste. But we recognized in Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, that even strongly abusive utterances or publications, not merely polished and urbane pronouncements of dignified people, enjoy First Amendment protection. We said in Terminiello:
12
'(A) function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.' Id., at 4, 69 S.Ct., at 896.
13
Students are certainly entitled to enjoy First Amendment rights. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628; Sweezy v. New Hampshire, by Wyman, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311. This does not mean that free speech can be used with impunity as an excuse to break up classrooms, to destroy the quiet and decorum of convocations, or to bar the constitutional privileges of others to meet together in matters of common concern. But the campus, where this leaflet was distributed, is a fitting place for the dissemination of a wide spectrum of ideas.
14
Moreover, it is far too late to suggest that since attendance at a state university is a 'privilege,' not a 'right,' there are no constitutional barriers to summary withdrawal of the 'privilege.' Such labeling does not resolve constitutional questions, as we recently noted in Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct. 1322, 1327, 22 L.Ed.2d 600. The doctrine that a government, state or federal, may not grant a benefit or privilege on conditions requiring the recipient to relinquish his constitutional rights is now well established. E.g., Cafeteria and Restaurant Workers Union Local 473 v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230; Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965; Speiser v. Randall, 357 U.S. 513, 519—520, 78 S.Ct. 1332, 1338—1339, 2 L.Ed.2d 1460; Garrity v. New Jersey, 385 U.S. 493, 499—500, 87 S.Ct. 616, 619 620, 17 L.Ed.2d 562; Kwong Hai Chew v. Colding, 344 U.S. 590, 597 598, 73 S.Ct. 472, 477—478, 97 L.Ed. 576; Frost & Frost Trucking Co. v. Railroad Comm., 271 U.S. 583, 593—594, 46 S.Ct. 605, 607, 70 L.Ed. 1101; see Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439, 1445—1454 (1968); Comment, Another Look at Unconstitutional Conditions, 117 U.Pa.L.Rev. 144 (1968). As stated in Homer v. Richmond, 110 U.S.App.D.C. 226, 292 F.2d 719, 722:
15
'One may not have a constitutional right to go to Baghdad, but the Government may not prohibit one from going there unless by means consonant with due process of law.'
16
This does not mean that the whole panoply of the Bill of Rights is applicable to student dismissal proceedings. It does mean, however, that where there are 'constitutional restraints upon state and federal governments' in dealing with the persons subject to their supervision, the persons in question have 'a constitutional right to notice and a hearing before they can be removed.' Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, supra, 367 U.S. at 898, 81 S.Ct. at 1750.
17
Judge Rives, speaking for the Circuit Court of Appeals for the Fifth Circuit, stated in Dixon v. Alabama State Board of Education, 294 F.2d 150, 157: '(No) one can question that the right to remain at the college in which the plaintiffs were students in good standing is an interest of extremely great value.' Judge Rives went on to hold that such 'privilege' or 'right' could not be taken away without notice and hearing. Id., at 158. Thus the dissent of Judge Clark in Steier v. New York State Education Comm'r, 2 Cir., 271 F.2d 13, 22—23, became the law. See Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1028—1034 (1969).
18
When we look at the present proceeding we learn that there was notice and that there were hearings. The charge was circulating the leaflet, which clearly was a First Amendment right. As we said in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731:
19
'First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.'
20
At the very least the suspension raises a serious constitutional question in the absence of provision for a timely judicial determination of the First Amendment claims. Cf. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649.
21
The circulation did not disrupt a classroom or any other university function. It would seem, therefore, that it is immune from punishment, censorship, and any form of retaliatory action.
22
'Neither the state in general, nor the state university in particular, is free to prohibit and kind of expression because it does not like what is being said.' Wright, supra, at 1039.
23
The suspension of petitioner was based in part on distributing the literature and in part on the committee's conclusion that, when petitioner at the hearing denied that he 'passed out such literature,' he 'did not tell the truth.'
24
But lying to school authorities was no part of the charges leveled against petitioner. If he is to be expelled for lying, he is entitled to notice and opportunity to be heard on that charge. We said in a case involving the disbarment of a lawyer, 'The charge must be known before the proceedings commence.' In re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117. In that case one of the grounds of disbarment was petitioner's employment of one Orlando as an investigator. That was not included in any charge made prior to the disbarment hearing. Petitioner was not aware that it would be considered as a disbarment offense until after both he and Orlando testified on all aspects of that phase of the case. We said that disbarment proceedings
25
'become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused. He can then be given no opportunity to expunge the earlier statements and start afresh.
26
'How the charge would have been met had it been originally included in those leveled against petitioner * * * no one knows.
27
'This absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges deprived petitioner of procedural due process.' Id., at 551—552, 88 S.Ct. at 1226.
28
Procedural due process in the present case requires that if petitioner is to be deprived of an education at Tennessee A. & I. for lying, he be given notice of that precise charge and an opportunity to be heard.
29
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING.
30
'In the early years of the civil rights movement in America, college students in Nashville's black universities were in the forefront of the struggle. Today, a new vanguard has formed and once again, students at Tennessee State University are called to the helm.
31
'The great white fathers downtown have given the ultimatum to the administrators of this school. They've begun the conspiracy to seize total control of the puppet administrators and the entire student body. For their own security, and in the vested interest of the MAN, the Juda administration has sold out the student body by directing the following atrocities against us:
32
'1. Students whose names appeared in the Nashville rags namely the Banner and the Tennessean—in connection with the April 'disturbances' have been dismissed from this university without pre-warning of their dismissal, and without the opportunity to appear before the student senate to hear the charges brought against them, and to appeal their cases.
33
'COMMENT: If the puppets want to adopt the uncivilized tactics used by the MAN, we must move to correct these erroneously acting, educated TOMS.
34
'2. Legislation has been taken to decrease the number of out-of-state students by increasing out-of-state fees, and adopting rigid academic standards.
35
'COMMENT: The puppet fools have taken this action to remove academic freedom, and student dissent from university life. Thus they secure their own shaky jobs, and their positions in the circus of white man's society. These people are too blind to see that the MAN initiated these moves so that he may 'morally' proceed to infiltrate our black university with his teachers and students who are more adept in perpetuating his culture than the puppets who are already here.
36
'3. Non-city students have been required to move on campus with an increase in dormitory fees.
37
'COMMENT: Thus the campus will become a concentration camp controlled and contained by the legislation of the racist dogs downtown, the acts of the puppet administrators, the billy clubs and guns of Nashville's racist cops, and ultimately the gestapo tactics of the honorable national guard, whose pale faces have already been seen in Memphis, Nashville, Chattanooga.
38
'No longer can we as intelligent human beings allow others to make a charade of democratic principle by submitting to the tyranny of a dictatorial administration. Let it be resolved that * * *
39
'1. We as students of this university will not allow ourselves to be herded into concentration camps disguised as the 'university campus.'
40
'2. We, as intelligent black students, will not be guarded by trembling, powerless idiots who call themselves administrators.
41
'3. We, as black human beings will not be recorded in the pages of history as an ununified race of people, exterminated by the guns of submission and hate.
42
'A generation of inactivity has given today's black students (a) responsibility of informing and uniting our fellow classmates so that we can fight to remove the injustices directed against us as black people.
43
'CAST YOUR VOTE FOR STUDENT POWER!!! BOYCOTT REGISTRATION SEPTEMBER 23 AND FOR AS LONG AS THE PUPPET ADMINISTRATION REFUSES TO ACKNOWLEDGE THAT THIS IS OUR UNIVERSITY!
44
SNCC.'
| 23
|
397 U.S. 82
90 S.Ct. 788
25 L.Ed.2d 68
Augie REETZ, Commissioner of Fish and Game for Alaska, et al., Appellants,v.John BOZANICH et al.
No. 185.
Argued Jan. 23, 1970.
Decided Feb. 25, 1970.
Charles K. Cranston, Juneau, Alaska, for appellants.
Robert Boochever, Juneau, Alaska, for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is an appeal from the judgment of a three-judge District Court, convened under 28 U.S.C. §§ 2281, 2284, declaring certain fishing laws of Alaska and regulations under them unconstitutional and enjoining their enforcement. 297 F.Supp. 300. We noted probable jurisdiction. 396 U.S. 811, 90 S.Ct. 70, 24 L.Ed.2d 65.
2
The laws in question, passed in 1968, concern salmon net gear licenses for commercial fishing, not licenses for other types of salmon fishing. They are challenged because they limit licensees to a defined group of persons. The Act in material part provides:1
3
'Persons eligible for gear licenses. (a) Except in cases of extreme hardship as defined by the Board of Fish and Game, a salmon net gear license for a specific salmon registration area may be issued only to a person who
4
'(1) has previously held a salmon net gear license for that specific salmon registration area; or
5
'(2) has, for any three years, held a commercial fishing license and while so licensed actively engaged in commercial fishing in that specific area.'
6
The regulations2 provide that except in cases of 'extreme hardship3 * * * a salmon net gear license for a specific salmon registration area may be issued only to a person who:
7
'(A) has held in 1965 or subsequent years a salmon net gear license for that specific salmon registration area; or
8
'(B) has, for any three years since January 1, 1960, held a commercial fishing license and while so licensed actively engaged in commercial fishing in that specific area.'
9
Appellees are nonresidents who applied for commercial salmon net gear licenses. They apparently are experienced net gear salmon fishermen but they cannot qualify for a salmon net gear license to fish in any of the 12 regions or areas described in the Act and the regulations.4
10
Appellees filed a motion for summary judgment on the grounds that the Act and regulations deprived them of their rights under the Equal Protection Clause of the Fourteenth Amendment and also their rights under the Alaska Constitution. That constitution provides in Art. VIII, § 3:
11
'Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use.'
And it provides in Art. VIII, § 15:
12
'No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State.'
13
Appellants filed a motion to dismiss or alternatively to stay the proceedings in the District Court pending the determination of the Alaska constitutional question by an Alaska court.
14
Appellants' motion to dismiss or to stay was denied. Appellees' motion for summary judgment was granted, the three-judge District Court holding that the Act and regulations in question were unconstitutional both under the Equal Protection Clause of the Fourteenth Amendment and under the Constitution of Alaska, 297 F.Supp., at 304—307.
15
This case is virtually on all fours with City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562, where a single district judge in construing a Mississippi statute held that it violated both the Federal and the State Constitutions. The Court of Appeals affirmed and we vacated its judgment and remanded to the District Court with directions to hold the case while the parties repaired to a state tribunal 'for an authoritative declaration of applicable state law.' Id., at 640, 79 S.Ct. at 456.
We said:
16
'Proper exercise of federal jurisdiction requires that controversies involving unsettled questions of state law be decided in the state tribunals preliminary to a federal court's consideration of the underlying federal constitutional questions. * * * That is especially desirable where the questions of state law are enmeshed with federal questions. * * * Here, the state law problems are delicate ones, the resolution of which is not without substantial difficulty—certainly for a federal court. * * * In such a case, when the state court's interpretation of the statute or evaluation of its validity under the state constitution may obviate any need to consider its validity under the Federal Constitution, the federal court should hold its hand, lest it render a constitutional decision unnecessarily.' Id., at 640 641, 79 S.Ct. at 456.
17
We are advised that the provisions of the Alaska Constitution at issue have never been interpreted by an Alaska court. The District Court, feeling sure of its grounds on the merits, held, however, that this was not a proper case for abstention, saying that 'if the question had been presented to an Alaska court, it would have shared our conviction that the challenged gear licensing scheme is not supportable.' 297 F.Supp., at 304. The three-judge panel was a distinguished one, two being former Alaska lawyers. And they felt that prompt decision was necessary to avoid the 'grave and irreparable' injury to the 'economic livelihood' of the appellees which would result, if they could not engage in their occupation 'during this year's forthcoming fishing season.' Ibid.
18
It is, of course, true that abstention is not necessary whenever a federal court is faced with a question of local law, the classic case being Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9, where federal jurisdiction was based on diversity only. Abstention certainly involves duplication of effort and expense and an attendant delay. See England v. Louisiana State Board, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440. That is why we have said that this judicially created rule which stems from Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, should be applied only where 'the issue of state law is uncertain.' Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50. Moreover, we said in Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444, that abstention was applicable 'only in narrowly limited 'special circumstances," citing Propper v. Clark, 337 U.S. 472, 492, 69 S.Ct. 1333, 1344, 93 L.Ed. 1480. In Zwickler, a state statute was attacked on the ground that on its face it was repugnant to the First Amendment; and it was conceded that state court construction could not render unnecessary a decision of the First Amendment question. 389 U.S., at 250, 88 S.Ct., at 396. A state court decision here, however, could conceivably avoid any decision under the Fourteenth Amendment and would avoid any possible irritant in the federal-state relationship.
19
The Pullman doctrine was based on 'the avoidance of needless friction' between federal pronouncements and state policies. 312 U.S., at 500, 61 S.Ct., at 645. The instant case is the classic case in that tradition, for here the nub of the whole controversy may be the state constitution. The constitutional provisions relate to fish resources, an asset unique in its abundance in Alaska. The statute and regulations relate to that same unique resource, the management of which is a matter of great state concern. We appreciate why the District Court felt concern over the effect of further delay on these plaintiffs, the appellees here; but we have concluded that the first judicial application of these constitutional provisions should properly be by an Alaska court.
20
We think the federal court should have stayed its hand while the parties repaired to the state courts for a resolution of their state constitutional questions. We accordingly vacate the judgment of the District Court and remand the case for proceedings consistent with this opinion.
21
It is so ordered.
1
Alaska Stat. § 16.05.536 (1968). Subd. (b) of that section specifies the data to be supplied in application for a gear license.
Section 16.05.540 provides that the licensee shall 'personally operate or assist in the operation of the licensed fishing gear'; that he shall 'personally own or lease the licensed fishing gear'; and that the license is 'transferable.'
2
Alaska Commercial Fishing Regulations § 102.09(a) (1969).
3
As defined in the regulations, id., § 102.09(a)(2).
4
While the original complaint challenged the 1968 regulations, it was amended to challenge the 1968 Act and the 1969 regulations under it, which regulated the 1969 fishing season.
| 89
|
397 U.S. 50
90 S.Ct. 791
25 L.Ed.2d 45
Della HADLEY et al., Appellants,v.The JUNIOR COLLEGE DISTRICT OF METROPOLITAN KANSAS CITY, MISSOURI, et al.
No. 37.
Argued Nov. 10, 1969.
Decided Feb. 25, 1970.
Irving Achtenberg, Kansas City, Mo., for appellants.
William J. Burrell, Kansas City, Mo., and Louis C. DeFeo, Jr., Jefferson City, Mo., for appellees.
Mr. Justice BLACK delivered the opinion of the Court.
1
This case involves the extent to which the Fourteenth Amendment and the 'one man, one vote' principle apply in the election of local governmental officials. Appellants are residents and taxpayers of the Kansas City School District, one of eight separate school districts that have combined to form the Junior College District of Metropolitan Kansas City. Under Missouri law separate school districts may vote by referendum to establish a consolidated junior college district and elect six trustees to conduct and manage the necessary affairs of that district.1 The state law also provides that these trustees shall be apportioned among the separate school districts on the basis of 'school enumeration,' defined as the number of persons between the ages of six and 20 years, who reside in each district.2 In the case of the Kansas City School District this apportionment plan results in the election of three trustees, or 50% of the total number from that district. Since that district contains approximately 60% of the total school enumeration in the junior college district,3 appellants brought suit claiming that their right to vote for trustees was being unconstitutionally diluted in violation of the Equal Protection Clause of the Fourteenth Amendment. The Missouri Supreme Court upheld the trial court's dismissal of the suit, stating that the 'one man, one vote' principle was not applicable in this case. 432 S.W.2d 328 (1968). We noted probable jurisdiction of the appeal, 393 U.S. 1115, 89 S.Ct. 991, 22 L.Ed.2d 120 (1969), and for the reasons set forth below we reverse and hold that the Fourteenth Amendment requires that the trustees of this junior college district be apportioned in a manner that does not deprive any voter of his right to have his own vote given as much weight, as far as is practicable, as that of any other voter in the junior college district.
2
In Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), we held that 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. Because of this requirement we struck down a Georgia statute which allowed glaring discrepancies among the populations in that State's congressional districts. In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and the companion cases,4 we considered state laws that had apportioned state legislatures in a way that again showed glaring discrepancies in the number of people who lived in different legislative districts, in an elaborate opinion in Reynolds we called attention to prior cases indicating that a qualified voter has a constitutional right to vote in elections without having his vote wrongfully denied, debased, or diluted. Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1880); Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884); United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355 (1915); Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915); Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). Applying the basic principle of Wesberry, we therefore held that the various state apportionment schemes denied some voters the right guaranteed by the Fourteenth Amendment to have their votes given the same weight as that of other voters. Finally, in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), we applied this same principle to the election of Texas county commissioners, holding that a qualified voter in a local election also has a constitutional right to have his vote counted with substantially the same weight as that of any other voter in a case where the elected officials exercised 'general governmental powers over the entire geographic area served by the body.' Id., at 485, 88 S.Ct. at 1120.
3
Appellants in this case argue that the junior college trustees exercised general governmental powers over the entire district and that under Avery the State was thus required to apportion the trustees according to population on an equal basis, as far as practicable. Appellants argue that since the trustees can levy and collect taxes, issue bonds with certain restrictions, hire and fire teachers, make contracts, collect fees, supervise and discipline students, pass on petitions to annex school districts, acquire property by condemnation, and in general manage the operations of the junior college,5 their powers are equivalent, for apportionment purposes, to those exercised by the county commissioners in Avery. We feel that these powers, while not fully as broad as those of the Midland County Commissioners,6 certainly show that the trustees perform important governmental functions within the districts, and we think these powers are general enough and have sufficient impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here.
4
This Court has consistently held in a long series of cases,7 that in situations involving elections, the States are required to insure that each person's vote counts as much, insofar as it as practicable, as any other person's. We have applied this principle in congressional elections, state legislative elections, and local elections. The consistent theme of those decisions is that the right to vote in an election is protected by the United States Constitution against dilution or debasement. While the particular offices involved in these cases have varied, in each case a constant factor is the decision of the government to have citizens participate individually by ballot in the selection of certain people who carry out governmental functions. Thus in the case now before us, while the office of junior college trustee differs in certain respects from those offices considered in prior cases, it is exactly the same in the one crucial factor—these officials are elected by popular vote.
5
When a court is asked to decide whether a State is required by the Constitution to give each qualified voter the same power in an election open to all, there is no discernible, valid reason why constitutional distinctions should be drawn on the basis of the purpose of the election. If one person's vote is given less weight through unequal apportionment, his right to equal voting participation is impaired just as much when he votes for a school board member as when he votes for a state legislator. While there are differences in the powers of different officials, the crucial consideration is the right of each qualified voter to participate on an equal footing in the election process. It should be remembered that in cases like this one we are asked by voters to insure that they are given equal treatment, and from their perspective the harm from unequal treatment is the same in any election, regardless of the officials selected.
6
If the purpose of a particular election were to be the determining factor in deciding whether voters are entitled to equal voting power, courts would be faced with the difficult job of distinguishing between various elections. We cannot readily perceive judicially manageable standards to aid in such a task. It might be suggested that equal apportionment is required only in 'important' elections, but good judgment and common sense tell us that what might be a vital election to one voter might well be a routine one to another. In some instances the election of a local sheriff may be far more important than the election of a United States Senator. If there is any way of determining the importance of choosing a particular governmental official, we think the decision of the State to select that official by popular vote is a strong enough indication that the choice is an important one. This is so because in our country popular election has traditionally been the method followed when government by the people is most desired.
7
It has also been urged that we distinguish for apportionment purposes between elections for 'legislative' officials and those for 'administrative' officials Such a suggestion would leave courts with an equally unmanageable principle since governmental activities 'cannot easily be classified in the neat categories favored by civics texts,' Avery, supra, at 482, 88 S.Ct. at 1119, and it must also be rejected. We therefore hold today that as a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials. It is of course possible that there might be some case in which a State elects certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in compliance with Reynolds, supra, might not be required, but certainly we see nothing in the present case that indicates that the activities of these trustees fit in that category. Education has traditionally been a vital governmental function and these trustees, whose election the State has opened to all qualified voters, are governmental officials in every relevant sense of that term.
8
In this particular case the 'one man, one vote' principle is to some extent already reflected in the Missouri statute. That act provides that if no one or more of the component school districts has 33 1/3% or more of the total enumeration of the junior college district, then all six trustees are elected at large. If, however, one or more districts has between 33 1/3% and 50% of the total enumeration, each such district elects two trustees and the rest are elected at large from the remaining districts. Similarly, if one district has between 50% and 66 2/3% of the enumeration it elects three trustees, and if one district has more than 66 2/3% it elects four trustees.8 This scheme thus allocates increasingly more trustees to large districts as they represent an increasing proportion of the total enumeration.
9
Although the statutory scheme reflects to some extent a principle of equal voting power, it does so in a way that does not comport with constitutional requirements. This is so because the Act necessarily results in a systematic discrimination against voters in the more populous school districts. This discrimination occurs because whenever a large district's percentage of the total enumeration falls within a certain percentage range it is always allocated the number of trustees corresponding to the bottom of that range. Unless a particular large district has exactly 33 1/3%, 50%, or 66 2/3% of the total enumeration it will always have proportionally fewer trustees than the small districts. As has been pointed out, in the case of the Kansas City School District approximately 60% of the total enumeration entitles that district to only 50% of the trustees. Thus while voters in large school districts may frequently have less effective voting power than residents of small districts, they can never have more. Such built-in discrimination against voters in large districts cannot be sustained as a sufficient compliance with the constitutional mandate that each person's vote count as much as another's, as far as practicable. Consequently Missouri cannot allocate the junior college trustees according to the statutory formula employed in this case.9 We would be faced with a different question if the deviation from equal apportionment presented in this case resulted from a plan that did not contain a built-in bias in favor of small districts, but rather from the inherent mathematical complications in equally apportioning a small number of trustees among a limited number of component districts. We have said before that mathematical exactitude is not required, Wesberry, supra, 376 U.S. at 18, 84 S.Ct. at 535, Reynolds, supra, 377 U.S. at 577, 84 S.Ct. at 1389; but a plan that does not automatically discriminate in favor of certain districts is.
10
In holding that the guarantee of equal voting strength for each voter applies in all elections of governmental officials, we do not feel that the States will be inhibited in finding ways to insure that legitimate political goals of representation are achieved. We have previously upheld against constitutional challenge an election scheme that required that candidates be residents of certain districts that did not contain equal numbers of people. Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967). Since all the officials in that case were elected at large, the right of each voter was given equal treatment.10 We have also held that where a State chooses to select members of an official body by appointment rather than election, and that choice does not itself offend the Constitution, the fact that each official does not 'represent' the same number of people does not deny those people equal protection of the laws. Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967); cf. Fortson v. Morris, 385 U.S. 231, 87 S.Ct. 446, 17 L.Ed.2d 330 (1966). And a State may, in certain cases, limit the right to vote to a particular group or class of people. As we said before, '(v)iable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation.' Sailors, supra, 387 U.S. at 110—111, 87 S.Ct. at 1553. But once a State has decided to use the process of popular election and 'once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded.' Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. at 809 (1963).
11
For the reason set forth above the judgment below is reversed and the case is remanded to the Missouri Supreme Court for proceedings not inconsistent with this opinion.
12
Reversed and remanded.
13
Mr. Justice HARLAN, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, dissenting.
14
Today's decision demonstrates, to a degree that no other case has, the pervasiveness of the federal judicial intrusion into state electoral processes that was unleashed by the 'one man, one vote' rule of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).
15
Reynolds established that rule for the apportionment of state legislatures, thereby denying States the right to take into account in the structuring of their legislatures any historical, geographical, economic, or social considerations, or any of the many other practical and subtle factors that have always been recognized as playing a legitimate part in the practice of politics.
16
Four years later, in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), the 'one man, one vote' rule was extended to many kinds of local governmental units, thereby affecting to an unknown extent the organizational integrity of some 80,000 such units throughout the country, and constricting the States in the use of the electoral process in the establishment of new ones.
17
And today, the Court holds the 'one man, one vote' rule applicable to the various boards of trustees of Missouri's junior college system, and the case forebodes, if indeed it does not decide, that the rule is to be applied to every elective public body, no matter what its nature.
18
While I deem myself bound by Reynolds and Avery—despite my continued disagreement with them as constitutional holdings (see my dissenting opinions in Reynolds, 377 U.S., at 589, 84 S.Ct. at 1395, and in Avery, 390 U.S., at 486, 88 S.Ct. at 1121)—I do not think that either of these cases, or any other in this Court, justifies the present decision. I therefore dissent, taking off from Avery in what is about to be said.
19
* In Avery the Court acknowledged that 'the states' varied, pragmatic approach in establishing governments' has produced 'a staggering number' of local governmental units. The Court noted that, 'while special-purpose organizations abound * * *, virtually every American lives within what he and his neighbors regard as a unit of local government with general responsibility and power for local affairs.' The Midland County Commissioners Court, the body whose composition was challenged in Avery, was found to possess a broad range of powers that made it 'representative of most of the general governing bodies of American cities, counties, towns, and villages,' and the Court was at pains to limit its holding to such general bodies. 390 U.S., at 482—485, 88 S.Ct. at 1119—1120. Today the Court discards that limitation, stating that 'there is no discernible, valid reason why constitutional distinctions should be drawn on the basis of the purpose of the election.' Ante, at 54-55. I believe, to the contrary, that the need to preserve flexibility in the design of local governmental units that serve specialized functions and that must meet particular local conditions, furnishes a powerful reason to refuse to extend the Avery ruling beyond its original limits. If local units having general governmental powers are to be considered, like state legislatures, as having a substantial identity of function that justifies imposing on them a uniformity of elective structure, it is clear that specialized local entities are characterized by precisely the opposite of such identity. From irrigation districts to air pollution control agencies to school districts, such units vary in the magnitude of their impact upon various constituencies and in the manner in which the benefits and burdens of their operations interact with other elements of the local political and economic picture. Today's ruling will forbid these agencies from adopting electoral mechanisms that take these variations into account.
20
In my opinion, this ruling imposes an arbitrary limitation on the ways in which local agencies may be constituted. The Court concedes that the States may use means other than apportionment 'to insure that legitimate political goals of representation are achieved.' For example, officials elected at large may be required to be residents of particular areas that do not contain equal numbers of people, Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967); the right to vote may be denied outright to persons whose interest in the function performed by the agency is nonexistent or slight, cf. Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); or the State may in many instances abandon the elective process altogether and allow members of an official body to be appointed, without any regard for the equal-population principle, Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967). Since the Court recognizes the States' need for flexibility in structing local units, I am unable to see any basis for its selectively denying to them one of the means to achieve such flexibility. If, as the Court speculates, other means will prove as effective as apportionment in the adaptation of local agencies to meet specific needs, presumably those other means will also enable the States just as effectively to accomplish whatever evils the Court thinks it is preventing by today's decision. The Court has not shown that, under the supervision of state legislatures that are apportioned according to Reynolds, flexible methods of apportionment of local official bodies carry any greater danger of abuse than these other means of achieving the desirable goal of specialization. The Court's imposition of this arbitrary limitation on the States can be justified only in the name of mathematical nicety.
21
I do not believe that, even after Avery, such a result is compelled by the absence of 'judicially manageable standards' for the 'difficult job of distinguishing between various elections.' Ante, at 55. Before today, the Court's rule was that 'one man, one vote' applied only to local bodies having 'general governmental powers over the entire geographic area served by the body.' 390 U.S., at 485, 88 S.Ct., at 1120. The Court in Avery professed no temerity about concluding that the Midland County Commissioners Court was such a body. The Court's mere recitation of the powers of that entity, ante, at 53-54, n. 6, suffices to establish that conclusion. At the same time, it cannot be argued seriously that the Junior College District of Metropolitan Kansas City is the general governing body for the people of its area. The mere fact that the trustees can, with restrictions, levy taxes, issue bonds, and condemn property for school purposes does not detract from the crucial consideration that the sole purpose for which the district exists is the operation of a junior college. If the Court adhered to the Avery line, marginal cases would of course arise in which the courts would face difficulty in determining whether a particular entity exercised general governmental powers, but such a determination would be no different in kind from many other matters of degree upon which courts must continually pass. The importance of ensuring flexibility in the organization of specialized units of government, and the uncertainty whether the rule announced today will further any important countervailing interest, convince me that the Court should not proceed further into the political thicket than it has already gone in Avery.
II
22
The facts of this case afford a clear indication of the extent to which reasonable state objectives are to be sacrificed on the altar of numerical equality. We are not faced with an apportionment scheme that is a historical relic, with no present-day justification, or one that reflects the stranglehold of a particular group that, having once attained power, blindly resists a redistribution. The structure of the Junior College District of Metropolitan Kansas City is based upon a state statute enacted in 1961. Prior to that date, the individual school boards had the power to create their own junior colleges, as they still do, but there was apparently no authorization for cooperation among districts. The 1961 statute was enacted out of concern on the part of the legislature that Missouri's public educational facilities were not expanding at a satisfactory rate, see Three Rivers Junior College District of Poplar Bluff v. Statler, 421 S.W.2d 235, 237 (Mo.1967).1 The provisions of the statute evidence a legislative determination of the most effective means to encourage expansion through cooperation between districts.
23
The statutory provision for election of the six-man board of trustees, summarized by the Court, reflects a careful balancing of the desirability of population-based representation against the practical problems involved in the creation of new educational units. The statute does not by its own force create any junior college districts; this is left to the initiative of the residents of particular areas who are interested in providing public junior-college education for their children. In recognition of the fact that individual school districts may lack the funds or the population to support a junior college of their own, the state legislature has authorized them to make voluntary arrangements with their neighbors for joint formation of a junior college district. If one of the cooperating school districts greatly preponderates in size, it enters into the arrangement knowing that its representation on the board of trustees, while large, will be somewhat smaller than it would be if based strictly on relative school enumeration.
24
The features of this system are surely sensibly designed to facilitate creation of new educational bodies while guaranteeing to small school districts that they will not be entirely swallowed up by a large partner. The small districts are free to avoid alliance with a highly populated neighbor, if they prefer to link with enough others of their own size to provide a viable base for a junior college. At the same time, a very large school district is probably capable of forming a junior college on its own if it prefers not to consolidate, on the terms set by statute, with smaller neighbors. On the other hand, large and small districts may work together if they find this the most beneficial arrangement.2 The participation, as here, of seven smaller and one larger school district in the joint formation of a junior college district, represents a pragmatic choice by all concerned from among a number of possible courses of action.
25
I find it bizarre to conclude that such a voluntary arrangement effects an unconstitutional 'dilution' of the votes of residents of the largest school district. When the Court, in Reynolds, rejected a proposed analogy between state legislatures and the Federal Congress, it relied heavily on the fact that state legislative districts 'are merely involuntary political units of the State created by statute to aid in the administration of state government.' 377 U.S., at 548, 84 S.Ct. at 1374. In contrast, the National Government was created by the union of 'a group of formerly independent States.' The system of representation in Congress was 'conceived out of compromise and concession' between the larger and smaller States. Id., at 574, 84 S.Ct. at 1388. The system struck down today shares much of this same character of voluntary compromise. It is true that the analogy would be even closer if the legislature had left the school districts free to negotiate their own apportionment terms, rather than imposing a uniform scale; but as I read the Court's opinion today, it would strike down the apportionment in this case even if the terms had resulted from an entirely free agreement among the eight school districts. Insistence upon a simplistic mathematical formula as the measure of compliance with the Equal Protection Clause in cases involving the electoral process has resulted in this instance in a total disregard of the salutary purposes underlying the statutory scheme.
III
26
Finally, I find particularly perplexing the portion of the Court's opinion explaining why the apportionment involved in this case does not measure up even under the 'one man, one vote' dogma. The Court holds that the voters of the Kansas City School District, who elect 50% of the trustees, are denied equal protection of the laws because that district contains about 60% of the school enumeration. This is so because the statutory formula embodies a 'built-in discrimination against voters in large districts.' Ante, at 57. The Court seems to suggest that the same discrepancy among districts might pass muster if it could be shown to be mathematically unavoidable in the apportionment of the small number of trustees among the component districts; but the discrepancy is not permissible where it simply reflects the legislature's choice of a means to foster a legitimate state goal. This reasoning seems hard to follow and also disturbing on two scores.
27
First, to apply the rule with such rigor to local governmental units, especially single-function units, is to disregard the characteristics that distinguish such units from state legislatures. As I noted in my dissent in Avery, 390 U.S., at 488—490, 88 S.Ct. at 1122, 20 L.Ed.2d 45 there is a much smaller danger of abuse through malapportionment in the case of local units because there exist avenues of political redress that are not similarly available to correct malapportionment of state legislatures. Further, as noted above, the greater diversity of functions performed by local governmental units creates a greater need for flexibility in their structure. If these considerations are inadequate to stave off the extension of the Reynolds rule to units of local government, they at least provide a persuasive rationale for applying that rule so as to allow local governments much more play in the joints.
28
Such an approach is not foreclosed by the previous cases. In Reynolds, 377 U.S., at 577—581, 84 S.Ct. at 1389—1391, 12 L.Ed.2d 506, the Court catalogued a number of considerations indicating that '(s)omewhat more flexibility' might be permissible in state legislative apportionment than in congressional districting. Compare Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), with Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969). The need for more flexibility becomes greater as we proceed down the spectrum from the state legislature to the single-purpose local entity.
29
The disparities of representation in Avery were of an entirely different order from those here. In that case, each of the four districts elected one commissioner to the Commissioners Court, despite the fact that the population of one district was 67,906, while those of the remaining three were 852, 414, and 828. I think that the Avery rule, born in an extreme case, is being applied here with a rigidity that finds no justification in the considerations that gave it birth. Cf. Wells v. Rockefeller, 394 U.S., at 553, 89 S.Ct. at 1241 (White, J., dissenting). In this case, the disparity of representation is relatively minor. Even more important, it is not an unexplained and unjustified deviation from equality, see Swann v. Adams, 385 U.S., at 445—446, 87 S.Ct. at 572—573, but reflects an enlightened state policy of encouraging individual school districts to join together voluntarily to expand the State's public junior college facilities.
30
Second, the Court leaves unexplored the premises underlying its conclusion that the apportionment here does not achieve equality, 'as far as practicable.' Ante, at 57. Missouri is forbidden to use the statutory formula employed in this case because the percentage categories it creates will, in particular instances, only approximate equality, and because whatever discrepancy exists will always favor residents of the smaller districts. The Court does not suggest how a formula could be devised that would provide a general rule for application to all the various junior college districts but would not share these alleged faults. If a large district falling within a given pecentage range were allocated the number of trustees corresponding to the top, rather than the bottom, of the range, that would also produce, on the Court's theory, a 'built-in discrimination' against voters in small districts.
31
Thus, the result of the Court's holding may be that Missouri is forbidden to establish any formula of general application for apportionment of trustees, but must instead provide for the improvisation of an individual apportionment scheme for each junior college district after the contours of the district have been settled. But surely a State could reasonably determine that the mechanics of operating such a system would be so unduly burdensome that it would be better to apportion according to a statewide formula. Would not such considerations justify a conclusion that the statewide formula achieves equality 'as far as practicable'? While the Court does not discuss the problem, its invalidation of this statutory formula seems to be based on the premise that such practical considerations, like a State's desire to encourage cooperation among districts, are constitutionally inadequate to justify any divergence from voting 'equality.' The Court does not, however, spell out any rationale for concluding that such matters of administrative convenience deserve no weight in determining what is 'practicable.' This is especially incongruous in light of the Court's unexplained conclusion that deference can be given to legislative determinations that the boards should have a small number of trustees and that the trustees in some instances should represent component school districts. Why does the Court not require that the number of trustees be increased from six, in order to reduce the roughness with which equality is approximated? Would a three-man board be unconstitutionally small? Why is the Court willing to accept inequality that derives from a desire to give representation to component school districts, when similar inequality in state legislative districting could probably not be justified by a desire to give representation to counties? Cf. Reynolds v. Sims, 377 U.S., at 579—581, 84 S.Ct. at 1390—1391; Swann v. Adams, 385 U.S., at 444, 87 S.Ct. at 572. If equality cannot be achieved when representation is by component districts, why does the 'as far as practicable' standard not require at-large election of trustees? Is there something about these consideration that gives them a status under the Equal Protection Clause that is not possessed by a legislative desire to apportion by a formula of statewide application?
32
It seems to me that beneath the surface of the Court's opinion lie unspoken answers to these and other similar questions, questions that I can characterize only as matters of political judgment. The Court's adoption of a rigid, mathematical rule turns out not to have saved it from having to balance and judge political considerations, concluding that one does merit some weight in an apportionment scheme while another does not. The fact that the courts, rather than the legislatures, now are the final arbiters of such matters will continue, I fear, after the present decision to be the inevitable consequence of the shallow approach to the Equal Protection Clause represented by the 'one man, one vote' theory. The Court could at least lessen the disruptive impact of that approach at the local level by approving this relatively minor divergence from strict equality of the ground that the legislature could reasonably have concluded that it was necessary to accomplish legitimate state interests.
33
I would affirm the judgment of the Supreme Court of Missouri. What our Court has done today seems to me to run far afield of the values embodied in the scheme of government ordained by the Constitution.
34
Mr. Chief Justice BURGER, dissenting.
35
I concur fully in the opinion of Mr. Justice HARLAN. I add this comment to emphasize the subjective quality of a doctrine of constitutional law that has as its primary standard 'a general rule, (that) whenever a state or local government decides to select persons by popular election * * *,' the Constitution commands that each qualified voter must be given a vote which is equally weighted with the votes cast by all other electors.
36
The failue to provide guidelines for determining when the Court's 'general rule' is to be applied is exacerbated when the Court implies that the stringent standards of 'mathematical exactitude' that are controlling in apportionment of federal congressional districts need not be applied to smaller specialized districts such as the junior college district in this case. This gives added relevance to Mr. Justice HARLAN'S observation that '(t)he need for more flexibility becomes greater as we proceed down the spectrum from the state legislature to the single-purpose local entity.' Ante, at 67. Yet the Court has given amost no indication of which nonpopulation interests may or may not legitimately be considered by a legislature in devising a constitutional apportionment scheme for a local, specialized unit of government.
37
Ultimately, only this Court can finally apply these 'general rules' but in the interim all other judges must speculate as best they can when and how to apply them. With all deference I suggest the Court's opinion today fails to give any meaningful guidelines.
1
Mo.Rev.Stat. §§ 178.800, 178.820 (Cum. Supp.1967).
2
Mo.Rev.Stat. § 167.011 (Cum.Supp.1967).
3
For the years 1963 through 1967, the actual enumeration in the Kansas City School District varied between 63.55% and 59.49%. App. 38.
4
WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595, (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964); Lucas v. Colorado Gen. Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964).
5
Mo.Rev.Stat. §§ 167.161, 171.011, 177.031, 177.041, 178.770, 178.850—178.890 (Cum.Supp.1967).
6
The Midland County Commissioners established and maintained the county jail, appointed numerous county officials, made contracts, built roads and bridges, administered the county welfare system, performed duties in connection with elections, set the county tax rate, issued bonds, adopted the county budget, built and ran hospitals, airports, and libraries, fixed school district boundaries, established a housing authority, and determined the election districts for county commissioners. Avery, supra, at 476—477, 88 S.Ct. at 1115—1116.
7
Wesberry, supra; Reynolds, supra; cases cited n. 4, supra; Avery, supra; Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967).
8
Mo.Rev.Stat. § 178.820 (Cum.Supp. 1967).
9
There is some question in this case whether school enumeration figures, rather than actual population figures, can be used as a basis of apportionment. Cf. Burns v. Richardson, 384 U.S. 73, 90—95, 86 S.Ct. 1286, 1295—1298 (1966). There is no need to decide this question at this time since, even if school enumeration is a permissible basis, the present statute fails to apportion trustees constitutionally.
10
The statute involved in this case provides that trustees who are elected from component districts rather than at large must be residents of the district from which they are elected. Mo.Rev.Stat. § 178.820(2) (Cum.Supp.1967).
1
Counsel for appellees informed the Court at oral argument that prior to the passage of this statute, when the law merely authorized each school district in the State to establish its own junior college, there were only seven such junior colleges, with a total enrollment of approximately 5,000 students. Today there are 12 junior college districts, in which nearly 120 individual school districts participate, with a total enrollment of over 30,000 students.
2
At the time this suit was filed, nine junior college districts had been formed pursuant to the statutory procedures. Of these, three did not contain a component district large enough to bring into play the fractional formula; the remaining six did contain such a district.
| 89
|
397 U.S. 72
90 S.Ct. 774
25 L.Ed.2d 60
The COLONNADE CATERING CORP., Petitioner,v.UNITED STATES.
No. 108.
Argued Jan. 15, 1970.
Decided Feb. 25, 1970.
O. John Rogge, New York City, for petitioner.
Jerome Feit, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner, a licensee in New York authorized to serve alcoholic beverages and also the holder of a federal retail liquor dealer's occupational stamp tax, 26 U.S.C. § 5121(a), brought this suit to obtain the return of seized liquor and to suppress it as evidence. The District Court granted the relief. The Court of Appeals reversed. 410 F.2d 197. The case is here on a petition for writ of certiorari which we granted, 396 U.S. 814, 90 S.Ct. 58, 24 L.Ed.2d 66, to review the decision in light of Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1741, 18 L.Ed.2d 943.
2
Petitioner runs a catering establishment. A federal agent, a member of the Alcohol and Tobacco Tax Division of the Internal Revenue Service, was a guest at a party on petitioner's premises and noted a possible violation of the Federal excise tax law. When federal agents later visited the place, another party was in progress. They noticed that liquor was being served. Without the manager's consent, they inspected the cellar. Then they asked the manager to open the locked liquor storeroom. He said that the only person authorized to open that room was one Rozzo, petitioner's president, who was not on the premises. Later Rozzo arrived and refused to open the storeroom. He asked if the agents had a search warrant and they answered that they did not need one. When Rozzo continued to refuse to unlock the room, an agent broke the lock and entered. Then they removed the bottles of liquor now in controversy which they apparently suspected of being refilled contrary to the command of 26 U.S.C. § 5301(c).
3
It is provided in 26 U.S.C. § 5146(b)1 and in 26 U.S.C. § 76062 that the Secretary of the Treasury or his delegate has broad authority to enter and inspect the premises of retail dealers in liquors.3 And in case of the refusal of a dealer to permit the inspection, it is provided in 26 U.S.C. § 7342:
4
'Any owner of any building or place, or person having the agency or superintendence of the same, who refuses to admit any officer or employee of the Treasury Department acting under the authority of section 7606 (relating to entry of premises for examination of taxable articles) or refuses to permit him to examine such article or articles, shall, for every such refusal, forfeit $500.'
5
The question is whether the imposition of a fine for refusal to permit entry—with the attendant consequences that violation of inspection laws may have in this closely regulated industry—is under this statutory scheme the exclusive sanction, absent a warrant to break and enter.
6
In Frank v. Maryland, 359 U.S. 360, 366—367, 79 S.Ct. 804, 809, 3 L.Ed.2d 877, a case involving an inspection under a municipal code, we said:
7
'(The) inspector has no power to force entry and did not attempt it. A fine is imposed for resistance, but officials are not authorized to break past the unwilling occupant.'
8
Frank v. Maryland was overruled in Camara v. Municipal Court, supra, insofar as it permitted warrantless searches or inspections under municipal fire, health, and housing codes. The dictum that the provision for a fine on refusal to allow inspection made the use of force improper when there was no warrant was not disturbed; and the question is whether that dictum contains the controlling principle4 for this case.
9
The Government, emphasizing that the Fourth Amendment bans only 'unreasonable searches and seizures,'5 relies heavily on the long history of the regulation of the liquor industry during pre-Fourth Amendment days, first in England and later in the American Colonies. It is pointed out, for example, that in 1660 the precursor of modern-day liquor legislation was enacted in England6 which allowed commissioners to enter, on demand, brewing houses at all times for inspection. Massachusetts had a similar law in 1692.7 And in 1791, the year in which the Fourth Amendment was ratified, Congress imposed an excise tax on imported distilled spirits and on liquor distilled here,8 under which law federal officers had broad powers to inspect distilling premises and the premises of the importer9 without a warrant. From these and later laws and regulations governing the liquor industry, it is argued that Congress has been most solicitous in protecting the revenue against various types of fraud and to that end has repeatedly granted federal agents power to make warrantless searches and seizures of articles under the liquor laws.
10
The Court recognized the special treatment of inspection laws of this kind in Boyd v. United States, 116 U.S. 616, 624, 6 S.Ct. 524, 529, 29 L.Ed. 746:
11
'(In) the case of excisable or dutiable articles, the government has an interest in them for the payment of the duties thereon, and until such duties are paid has a right to keep them under observation, or to pursue and drag them from concealment.'
And it added:
12
'The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same congress which proposed for adoption the original amendments to the constitution, it is clear that the members of that body did not regard searches and seizures of this kind as 'unreasonable,' and they are not embraced within the prohibition of the amendment.' Id., at 623, 6 S.Ct. at 528.
13
We agree that Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand. The general rule laid down in See v. City of Seattle, supra, 387 U.S. at 545, 87 S.Ct. at 1740—'that administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only becompelled through prosecution or physical force within the framework of a warrant procedure'—is therefore not applicable here. In See, we reserved decision on the problems of 'licensing programs' requiring inspection, saying they can be resolved 'on a case-by-case basis under the general Fourth Amendment standard of reasonableness.' Id., at 546, 87 S.Ct., at 1741.
14
Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply. We said in the See case:
15
'The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by warrant.' Id., at 543, 87 S.Ct. at 1739.
16
What was said in See reflects this Nation's traditions that are strongly opposed to using force without definite authority to break down doors. We deal here with the liquor industry long subject to close supervision and inspection. As respects that industry, and its various branches including retailers, Congress has broad authority to fashion standards of reasonableness for searches and seizures. Under the existing statutes, Congress selected a standard that does not include forcible entries without a warrant. It resolved the issue, not by authorizing forcible, warrantless entries, but by making it an offense for a licensee to refuse admission to the inspector.
17
Reversed.
18
Mr. Chief Justice BURGER, with whom Mr. Justice BLACK and Mr. Justice STEWART join, dissenting.
19
I join in the dissenting opinion of Mr. Justice BLACK; however, since my position goes somewhat beyond his discussion I add my views separately.
20
I assume we could all agree that the search in question must be held valid, and the contraband discovered subject to seizure and forfeiture, unless (a) it is 'unreasonable' under the Constitution or (b) it is prohibited by a statute imposing restraints apart from those in the Constitution. The majority sees no constitutional violation; I agree.
21
The controlling statutes set out in notes 1 and 2 of the majority opinion affirmatively define the conditions and times when agents may enter premises and inspect. Under 26 U.S.C. § 5146(b) agents may enter to inspect 'any distilled spirits, wines, or beer kept or stored by such dealer on such premises.' The time when this may be done is fixed as 'during business hours.' Section 7606 of 26 U.S.C., set forth in note 2 of the majority opinion, provides that agents may enter any building where taxable articles are kept, 'so far as it may be necessary for the purpose of examining said articles or objects.'
22
The government agents needed neither a warrant nor these statutes to secure entry to this place of business since it was as open as any business establishment that seeks to sell goods and services to the public. The agents need to rely on the statutes only to carry out their duty to inspect after accomplishing entry. This was recognized implicitly by Congress in limiting the inspection to 'business hours' and daytime. Congress went beyond mere entry; it provided for inspection. Inspection authorization would be meaningless if the agents could not open lockers, cabinets, closets, and storerooms and indeed pry open cases of liquor to see the contents.
23
Surely Congress was not unaware that purveyors of liquor do not leave their wares or stores or reserve supplies lying casually about; on the contrary they keep supplies under lock in various ways, including lockers, cabinets, closets, or storerooms; this practice is so universal it can be judicially noticed.
24
Here the agents acted explicitly under statutes containing the language 'so far as it may be necessary'; this is simple and clear and for me it is plainly broad enough to permit inspection of all spirits 'kept or stored * * * on such premises' whether in lockers, cabinets, closets, or storerooms. Congress having prescribed this as a reasonable means of enforcing the inspection necessary to tax collection, I see no basis for any court to say it cannot be done.
25
That Congress provided an added penalty for those who refuse access for inspection is irrelevant. We can assume this was to encourage licensed purveyors to comply promptly to facilitate inspections. The majority views the $500 fine as the Government's exclusive remedy for the non-cooperation of the taxpayer. Congress could hardly be so naive as to give to the licensee the option to choose between the risk of a $500 fine against the certain discovery, if he is in violation, of a large store of liquor subject to forfeiture. At current prices $500 would represent four or five cases of spirits. The alternative of securing a warrant touches on the constitutional issues which the majority does not rely on. We should note, of course, that the majority holding eliminates any basis for a forfeiture of the contraband liquor and leaves the Government to another lawsuit to collect a $500 fine.
26
With deference I submit the majority has needlessly complicated a relatively simple issue of statutory construction with undertones of constitutionally limited searches. The words 'so far as it may be necessary' are quite plain and we all agree no issue of constitutional dimensions is presented.
27
Mr. Justice BLACK, with whom the CHIEF JUSTICE and Mr. Justice STEWART join, dissenting.
28
Petitioner brought proceedings under the Federal Rules of Criminal Procedure for the return of liquor seized by federal agents. One of those rules provides that '(a) person aggrieved by an unlawful search and seizure may move the district court * * * for the return of the property * * * so obtained on the ground that (1) the property was illegally seized without warrant * * *.' Fed.Rule Crim.Proc. 41(e). (Emphasis added.) As I read that provision, it requires petitioner to show that the seizure in this case was illegal, either because it violated the Fourth Amendment, or because it was in violation of some law passed by Congress. In my opinion neither requirement has been met and therefore petitioner is not entitled to a return of the seized liquor.
29
There can be no doubt that places that sell liquor to the public have historically been subjected to strict governmental scrutiny for many centuries both in this country and in England. The Court sets out a little of the history of that regulation in its opinion. I therefore agree that there is nothing unreasonable, as that term is used in the Fourth Amendment, in permitting officers to go into an establishment that provides alcoholic beverages to the public, and upon finding something that indicates a flagrant violation of the law to pursue their examination to see whether a violation is actually occurring. The officers did just that in this case, and I see no reason on earth why any man should hold that conduct unreasonable. This Court certainly should not prevent faithful officers, when they see the law being violated practically before their very eyes, from taking the steps necessary to stop and prove that violation.
30
The majority, far from finding this search unreasonable and therefore illegal under the Fourth Amendment, holds only that it was not authorized by 26 U.S.C. §§ 5146(b), 7606(a),1 and that therefore the liquor must be returned. While these statutes do not in express terms authorize forcible breaking and entering to seize liquor kept inviolation of federal law, it is perfectly clear that they do not in express terms declare such seizure illegal, and in my opinion those provisions impliedly authorize exactly the type of official conduct involved here. I am confident that when Congress said that federal liquor agents could search without a warrant and further provided for fines if the owner refused to permit such a search,2 it also intended to authorize forcible entry and seizure if that became necessary. I do not think Congress needed to speak any more clearly than it already has. Since I cannot conclude that this search and seizure was illegal under either the Fourth Amendment or any Act of Congress, but was to the contrary carried out pursuant to congressional authorization, I would affirm the judgment below and hold that petitioner was not entitled to a return of the liquor.
1
26 U.S.C. § 5146(b) provides:
'The Secretary or his delegate may enter during business hours the premises (including places of storage) of any dealer for the purpose of inspecting or examining any records or other documents required to be kept by such dealer under this chapter or regulations issued pursuant thereto and any distilled spirits, wines, or beer kept or stored by such dealer on such premises.'
2
26 U.S.C. § 7606 provides:
'(a) Entry during day.
'The Secretary or his delegate may enter, in the daytime, any building or place where any articles or objects subject to tax are made, produced, or kept, so far as it may be necessary for the purpose of examining said articles or objects.
'(b) Entry at night.
'When such premises are open at night, the Secretary or his delegate may enter them while so open, in the performance of his official duties.'
3
As defined in 26 U.S.C. § 5122(a).
4
And see United States v. Frisch, 140 F.2d 660, 662.
5
The Fourth Amendment reads as follows:
'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.'
6
12 Car. 2, c. 23, § 19.
7
Act of June 24, 1692, Mass. Acts and Resolves, Vol. 1, 1692—1714, p. 33, c. 5, § 8.
8
Act of March 3, 1791, 1 Stat. 199.
9
Section 29 of the Act of March 3, 1791, 1 Stat. 206, provided:
'That it shall be lawful for the officers of inspection of each survey at all times in the daytime, upon request, to enter into all and every the houses, store-houses, ware-houses, buildings and places which shall have been (registered) in manner aforesaid, and by tasting, gauging or otherwise, to take an account of the quantity, kinds and proofs of the said spirits therein contained; and also to take samples thereof, paying for the same the usual price.'
1
Set forth ante, at 73 nn. 1, 2.
2
26 U.S.C. § 7342, ante, at 74.
| 01
|
397 U.S. 137
90 S.Ct. 844
25 L.Ed.2d 174
Loren J. PIKE, etc., Appellant,v.BRUCE CHURCH, INC.
No. 301.
Argued Jan. 13, 1970.
Decided March 2, 1970.
Rex E. Lee, Phoenix, Ariz., for appellant.
Jacob Abramson, Salinas, Cal., for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
The appellee is a company engaged in extensive commercial farming operations in Arizona and California. The appellant is the official charged with enforcing the Arizona Fruit and Vegetable Standardization Act.1 A provision of the Act requires that, with certain exceptions, all cantaloupes grown in Arizona and offered for sale must 'be packed in regular compact arrangement in closed standard containers approved by the supervisor * * *.'2 Invoking his authority under that provision, the appellant issued an order prohibiting the appellee company from transporting uncrated cantaloupes from its Parker, Arizona, ranch to nearby Blythe, California, for packing and processing. The company then brought this action in a federal court to enjoin the order as unconstitutional. A three-judge court was convened. 28 U.S.C. §§ 2281, 2284. After first granting temporary relief, the court issued a permanent injunction upon the ground that the challenged order constituted an unlawful burden upon interstate commerce. This appeal followed. 28 U.S.C. § 1253. 396 U.S. 812, 90 S.Ct. 91, 24 L.Ed.2d 65.
2
The facts are not in dispute, having been stipulated by the parties. The appellee company has for many years been engaged in the business of growing, harvesting, processing, and packing fruits and vegetables at numerous locations in Arizona and California for interstate shipment to markets throughout the Nation. One of the company's newest operations is at Parker, Arizona, where, pursuant to a 1964 lease with the Secretary of the Interior, the Colorado River Indian Agency, and the Colorado River Indian Tribes, it undertook to develop approximately 6,400 acres of uncultivated, arid land for agricultural use. The company has spent more than $3,000,000 in clearing, leveling, irrigating, and otherwise developing this land. The company began growing cantaloupes on part of the land in 1966, and has harvested a large cantaloupe crop there in each subsequent year. The cantaloupes are considered to be of higher quality that those grown in other areas of the State. Because they are highly perishable, cantaloupes must upon maturity be immediately harvested, processed, packed, and shipped in order to prevent spoliage. The processing and packing operations can be performed only in packing sheds. Because the company had no such facilities at Parker, it transported its 1966 Parker cantaloupe harvest in bulk loads to Blythe, California, 31 miles away, where it operated centralized and efficient packing shed facilities. There the melons were sorted, inspected, packed, and shipped. In 1967 the company again sent its Parker cantaloupe crop to Blythe for sorting, packing, and shipping. In 1968, however, the appellant entered the order here in issue, prohibiting the company from shipping its cantaloupes out of the State unless they were packed in containers in a manner and of a kind approved by the appellant. Because cantaloupes in the quantity involved can be so packed only in packing sheds, and because no such facilities were available to the company at Parker or anywhere else nearby in Arizona, the company faced imminent loss of its anticipated 1968 cantaloupe crop in the gross amount of $700,000. It was to prevent this unrecoverable loss that the District Court granted preliminary relief.3
3
After discovery proceedings, an agreed statement of facts was filed with the court. It contained a stipulation that the practical effect of the appellant's order would be to compel the company to build packing facilities in or near Parker, Arizona, that would take many months to construct and would cost approximately $200,000. After briefing and argument, the court issued a permanent injunction, finding that 'the order complained of constitutes an unlawful burden upon interstate commerce.'4
4
The appellant's threshold contention here is that even though the challenged order expressly forbids the interstate bulk shipment of the company's cantaloupes, it imposes no burden upon interstate commerce. If the Arizona Act is complied with, he argues, all that will be regulated will be the intrastate packing of goods destined for interstate commerce. Articles being made ready for interstate movement are not necessarily yet in interstate commerce, which, he says, begins only when the articles are delivered to the interstate shipper. In making this argument, the appellant relies on this Court's decisions in Federal Compress & Warehouse Co. v. McLean, 291 U.S. 17, 54 S.Ct. 267, 78 L.Ed. 622, and Chassaniol v. City of Greenwood, 291 U.S. 584, 54 S.Ct. 541, 78 L.Ed. 1004. Both of those cases involved taxes imposed by Mississippi on a cotton warehouse and compress business located within that State. The taxes were non-discriminatory and were levied both on the warehoused cotton itself and on certain processes necessary to ready it for subsequent resale. The taxes were challenged as unlawful burdens on interstate commerce, since most of the taxed cotton was ultimately to be shipped to out-of-state buyers. The Court upheld the constitutionality of the Mississippi taxes. It is not entirely clear from the Court's opinions whether their rationale was that the taxes were imposed before interstate commerce had begun, or that the burden upon commerce was at the most indirect and remote.
5
But in any event, the decisions do not support the argument that the order in the present case does not offect interstate commerce. In the first place, those cases involved cotton that had come to rest in Mississippi and '(b)efore shipping orders (were) given, it (had) no ascertainable destination without the state.' 291 U.S., at 21, 54 S.Ct. at 269. Here, by contrast, the perishable cantaloupes were destined to be shipped to an ascertainable location in California immediately upon harvest. Even more to the point, the taxes in Federal Compress and Chassaniol were imposed on goods and operations within the State, whereas the application of the statute at issue here would require that an operation now carried on outside the State must be performed instead within the State so that it can be regulated there. If the appellant's theory were correct, then statutes expressly requiring that certain kinds of processing be done in the home State before shipment to a sister State would be immune from constitutional challenge. Yet such statutes have been consistently invalidated by this Court under the Commerce Clause. Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 49 S.Ct. 1, 73 L.Ed. 147; Johnson v. Haydel, 278 U.S. 16, 49 S.Ct. 6, 73 L.Ed. 155; Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460. See also Lemke v. Farmers Grain Co., 258 U.S. 50, 42 S.Ct. 244, 66 L.Ed. 458; Shafer v. Farmers Grain Co., 268 U.S. 189, 45 S.Ct. 481, 69 L.Ed. 909. Thus it is clear that the appellant's order does affect and burden interstate commerce, and the question then becomes whether it does so unconstitutionally.
6
Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 816, 4 L.Ed.2d 852. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Occasionally the Court has candidly undertaken a balancing approach in resolving these issues, Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915, but more frequently it has spoken in terms of 'direct' and 'indirect' effects and burdens. See, e.g., Shafer v. Farmers Grain Co., supra.
7
At the core of the Arizona Fruit and Vegetable Standardization Act are the requirements that fruits and vegetables shipped from Arizona meet certain standards of wholesomeness and quality, and that they be packed in standard containers in such a way that the outer layer or exposed portion of the pack does not 'materially misrepresent' the quality of the lot as a whole.5 The impetus for the Act was the fear that some growers were shipping inferior or deceptively packaged produce, with the result that the reputation of Arizona growers generally was being tarnished and their financial return concomitantly reduced. It was to prevent this that the Act was passed in 1929. The State has stipulated that its primary purpose is to promote and preserve the reputation of Arizona growers by prohibiting deceptive packaging.
8
We are not, then, dealing here with 'state legislation in the field of safety where the propriety of local regulation has long been recognized,'6 or with an Act designed to protect consumers in Arizona from contaminated or unfit goods. Its purpose and design are simply to protect and enhance the reputation of growers within the State. These are surely legitimate state interest. Sligh v. Kirkwood, 237 U.S. 52, 61, 35 S.Ct. 501, 503, 59 L.Ed. 835. We have upheld a State's power to require that produce packaged in the State be packaged in a particular kind of receptacle, Pacific States Box & Basket Co. v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138. And we have recognized the legitimate interest of a State in maximizing the financial return to an industry within it. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315. Therefore, as applied to Arizona growers who package their produce in Arizona, we may assume the constitutional validity of the Act. We may further assume that Arizona has full constitutional power to forbid the misleading use of its name on produce that was grown or packed elsewhere. And, to the extent the Act forbids the shipment of contaminated or unfit produce, it clearly rests on sure footing. For, as the Court has said, such produce is 'not the legitimate subject of trade or commerce, nor within the protection of the commerce clause of the Constitution.' Sligh v. Kirkwood, supra, 237 U.S., at 60, 35 S.Ct., at 502; Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032.
9
But application of the Act through the appellant's order to the appellee company has a far different impact, and quite a different purpose. The cantaloupes grown by the company at Parker are of exceptionally high quality. The company does not pack them in Arizona and cannot do so without making a capital expenditure of approximately $200,000. It transports them in bulk to nearby Blythe, California, where they are sorted, inspected, packed, and shipped in containers that do not identify them as Arizona cantaloupes, but bear the name of their California packer.7 The appellant's order would forbid the company to pack its cantaloupes outside Arizona, not for the purpose of keeping the reputation of its growers unsullied, but to enhance their reputation through the reflected good will of the company's superior produce. The appellant, in other words, is not complaining because the company is putting the good name of Arizona on an inferior or deceptively packaged product, but because it is not putting that name on a product that is superior and well packaged. As the appellant's brief puts the matter, 'It is within Arizona's legitimate interest to require that interstate cantaloupe purchasers be informed that this high quality Parker fruit was grown in Arizona'.8
10
Although it is not easy to see why the other growers of Arizona are entitled to benefit at the company's expense from the fact that it produces superior crops, we may assume that the asserted state interest is a legitimate one. But the State's tenuous interest in having the company's cantaloupes identified as originating in Arizona cannot constitutionally justify the requirement that the company build and operate an unneeded $200,000 packing plant in the State. The nature of that burden is, constitutionally, more significant than its extent. For the Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere. Even where the State is pursuing a clearly legitimate local interest, this particular burden on commerce has been declared to be virtually per se illegal. Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 49 S.Ct. 1, 73 L.Ed. 147; Johnson v. Haydel, 278 U.S. 16, 49 S.Ct. 6, 73 L.Ed. 155; Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460.
11
The appellant argues that the above cases are different because they involved statutes whose express or concealed purpose was to preserve or secure employment for the home State, while here the statute is a regulatory one and there is no hint of such a purpose. But in Toomer v. Witsell, supra, the Court indicated that such a burden upon interstate commerce is unconstitutional even in the absence of such a purpose. In Toomer the Court held invalid a South Carolina statute requiring that owners of shrimp boats licensed by the State to fish in the maritime belt off South Carolina must unload and pack their catch in that State before 'shipping or transporting it to another State.' What we said there applies to this case as well:
12
'There was also uncontradicted evidence that appellants' costs would be materially increased by the necessity of having their shrimp unloaded and packed in South Carolina ports rather than at their home bases in Georgia where they maintain their own docking, warehousing, refrigeration and packing facilities. In addition, an inevitable concomitant of a statute requiring that work be done in South Carolina, even though that be economically disadvantageous to the fishermen, is to divert to South Carolina employment and business which might otherwise go to Georgia; the necessary tendency of the statute is to impose an artificial rigidity on the economic pattern of the industry.' 334 U.S., at 403—404, 68 S.Ct., at 1166.9
13
While the order issued under the Arizona statute does not impose such rigidity on an entire industry, it does impose just such a straitjacket on the appellee company with respect to the allocation of its interstate resources. Such an incidental consequence of a regulatory scheme could perhaps be tolerated if a more compelling state interest were involved. But here the State's interest is minimal at best—certainly less substantial than a State's interest in securing employment for its people. If the Commerce Clause forbids a State to require work to be done within its jurisdiction to promote local employment, then surely it cannot permit a State to require a person to go into a local packing business solely for the sake of enhancing the reputation of other producers within its borders.
14
The judgment is affirmed.
1
Ariz.Rev.Stat.Ann., Tit. 3, c. 3, Art. 4.
2
Ariz.Rev.Stat.Ann. § 3—503, subsec. C. (Supp.1969).
3
In view of the emergency situation presented, and the fact that only a narrow and specific application of the Act was challenged as unconstitutional, the court was fully justified in not abstaining from the exercise of its jurisdiction pending litigation in the state courts. Compare Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 329, 84 S.Ct. 1293, 1296, 12 L.Ed.2d 350 with Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68.
4
The opinion of the District Court is unreported.
5
Ariz.Rev.Stat.Ann. § 3—481, subsecs. 7 and 8.
6
Southern Pacific Co. v. Arizona, 325 U.S. 761, 796, 65 S.Ct. 1515, 1533, 89 L.Ed. 1915 (Douglas, J., dissenting).
7
California Agric. Code § 45691. The California Fruit, Nut and Vegetable Standardization Act, California Agric. Code, Division 17, is virtually identical to the Arizona Act. Each statute has the same primary purpose of preventing deceptive packs, and it is stipulated that the standard containers required for cantaloupes in the two States are exactly the same.
8
Appellant's Brief, 43.
9
Because of the State's recognized common-law property interest in its fish and wild game, Toomer presented an especially strong case for state control.
| 78
|
397 U.S. 112
90 S.Ct. 858
25 L.Ed.2d 156
Robert I. TOUSSIE, Petitioner,v.UNITED STATES.
No. 441.
Argued Jan. 14, 1970.
Decided March 2, 1970.
Murray I. Gurfein, New York City, for petitioner.
Francis X. Beytagh, Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Petitioner Robert Toussie was convicted, after a jury trial, of failing to register for the draft. His conviction was affirmed by the Court of Appeals, 410 F.2d 1156 (C.A.2d Cir.), and we granted certiorari, 396 U.S. 875, 90 S.Ct. 155, 24 L.Ed.2d 133 (1969). For the reasons hereafter set forth we conclude that this prosecution was barred by the statute of limitations and therefore reverse the conviction.
2
Section 3 of the Universal Military Training and Service Act, 65 Stat. 76, provides that:
3
'Except as otherwise provided in this title, it shall be the duty of every male citizen * * * who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder.'1
4
The applicable presidential proclamation provides that '(p)ersons who were born on or after September 19, 1930, shall be registered on the day they attain the eighteenth anniversary of the day of their birth, or within five days thereafter.'2 Since Toussie, an American citizen, was born on June 23, 1941, he was required to register sometime between June 23 and June 28, 1959. He did not do so during that period or at any time thereafter. On May 3, 1967, he was indicted for failing to register and that indictment led to the conviction under review.
5
Before trial Toussie moved to dismiss the indictment, arguing that prosecution was barred by the statute of limitations which provides that '(e)xcept as otherwise expressly provided by law, no person shall be prosecuted, trid, or punished for any offense, not capital, unless the indictment is found * * * within five years next after such offense shall have been committed.' 18 U.S.C. § 3282. Since there is no express provision to the contrary in the Draft Act, Toussie argued that his crime was complete in 1959, and it could not be the subject of a prosecution based on an indictment returned in 1967—eight years thereafter. The Government agreed that the crime was complete in 1959, but argued that it continued to be committed each day that Toussie did not register. The District Court held that the Act imposes a continuing duty to register which lasts until age 26 and that prosecution for failing to perform that duty before the man becomes 26 is timely if the indictment is returned before the defendant becomes 31 years old in this case any time prior to June 23, 1972. 280 F.Supp. 473, 474 (D.C.E.D.N.Y.1967). The Court of Appeals agreed. 410 F.2d, at 1157 1158. If the offense is a continuing one the prosecution was timely, but, if not, the District Court erred in not dismissing the indictment.
6
In deciding when the statute of limitations begins to run in a given case several considerations guide our decision. The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity. For these reasons and others, we have stated before 'the principle that criminal limitations statutes are 'to be liberally interpreted in favor of repose,' United States v. Scharton, 285 U.S. 518, 522, 52 S.Ct. 416, 417, 76 L.Ed. 917 (1932).' United States v. Habig, 390 U.S. 222, 227, 88 S.Ct. 926, 929, 19 L.Ed.2d 1055 (1968). We have also said that '(s)tatutes of limitations normally begin to run when the crime is complete.' Pendergast v. United States, 317 U.S. 412, 418, 63 S.Ct. 268, 271, 87 L.Ed. 368 (1943); see United States v. Irvine, 98 U.S. 450, 452, 25 L.Ed. 193 (1879). And Congress has declared a policy that the statute of limitations should not be extended '(e) xcept as otherwise expressly provided by law.' 18 U.S.C. § 3282. These principles indicate that the doctrine of continuing offenses should be applied in only limited circumstances since, as the Court of Appeals correctly observed in this case, '(t)he tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent; the latter, for all practical purposes, extends the statute beyond its stated term.' 410 F.2d, at 1158. These considerations do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.
7
The statute in this case provides that all young men, with certain exceptions, between the ages of 18 and 26 shall register 'at such time or times and place or places' as the President may prescribe. The Government refers to a regulation promulgated under the Act which provides that '(t)he duty of every person subject to registration * * * shall continue at all times, and if for any reason any such person is not registered on the day or one of the days fixed for his registration, he shall immediately present himself for and submit to registration * * *.' 32 CFR § 1611.7(c). It is urged that this regulation only makes explicit what Congress implicitly said in the Act itself, that is that registration is a duty that continues until age 26 and failure to register before then is a criminal offense that can be punished as late as five years after the 26th birthday.
8
The statute admittedly might be construed as the Government urges, but in light of the history of the draft laws and the principle that continuing offenses are not to be too readily found, we do not feel this particular Act incorporates such a doctrine. The draft law of 1917 provided in § 5 that certain persons were subject to registration and that 'upon proclamation by the President * * * stating the time and place of such registration it shall be the duty of all (such) persons * * * to present themselves for and submit to registration.' 40 Stat. 80. Pursuant to that authority the President proclaimed June 5, 1917, as the first registration day,3 and on that day approximately 10,000,000 young men were registered.4 There were no more general draft registrations until August 24, 1918, when the President required all those men who had become subject to registration since June 5, 1917, to come in and register.5 Later that year Congress amended the statute, expanded the age group subject to registration,6 and provided that 'upon proclamation by the President, * * * stating the time or times and place or places of * * * registration, it shall be the duty of all persons of the designated ages * * * to present themselves for and submit to registration * * *.' 40 Stat. 955—956. Although this provision seemingly would have authorized registrations on different days, the President again issued a proclamation designating a single day, September 12, 1918, as registration day for all those so subject.7 That registration was the last under the World War I draft. It is thus clear that throughout the administration of the first draft law, registration was thought of as a single, instantaneous act to be performed at a given time, and failure to register at that time was a completed criminal offense.
9
As events developed prior to what became World War II, Congress again decided to draft young men for service in the Armed Forces. In the Selective Training and Service Act of 1940 it was provided that men subject to registration were to register 'at such time or times and place or places, and in such manner and in such age group or groups, as shall be determined by rules and regulations prescribed hereunder.' 54 Stat. 885. While this language would again have authorized registration on different days for different men, the first proclamation under the new Act set a uniform date, October 16, 1940, for the registration of all men.8 It was not until two years later that the President first issued a proclamation setting forth different dates for the registration of different groups of men, and in that same proclamation the President established the basic registration procedure of the present system, that all young men shall register on their 18th birthday.9
10
After the 1940 Act expired on March 31, 1947, Congress again decided to register men for the draft and declared that men between the ages of 18 and 26 would be subject to registration. Selective Service Act of 1948, 62 Stat. 604. Since the authority to register under the 1940 Act had expired, it was necessary to provide for the initial registration of the entire group of men between 18 and 26. In language identical to that found in the statute involved in this case,10 Congress again left the administrative details to the President and authorized registration 'at such time or times and place or places' as he might designate. We do not think the imposition of the duty to register on men between 18 and 26 and the provision for registration at different times was intended to indicate that the statute of limitations did not begin to run when the crime was first complete. Since at the time of the initial registration under the 1948 Act there were men of various ages who had to be registered, the Act was phrased generally in terms of a duty imposed on the entire group. Under this authority the President in fact required registration of all men between 18 and 26 during the month of September 1948. Persons of different ages were required to register on different days, and all those born after September 19, 1930, were required to register 'on the day they attain the eighteenth anniversary of the day of their birth, or within five days thereafter.'11 The registration provisions of that Act have remained in force since 1948, and there has thus been a continual registration of 18-year-olds shortly after their birthday. With the exception of a few men who are not subject to registration when they are 18 but may become so later on,12 the effect of these provisions has been to eliminate the necessity for registrations of men older than 18. Viewed in the light of history we do not think the Act intended to treat continued failure to register as a renewal of the original crime or the repeated commission of new offenses, but rather perpetuated the conception of the first registration that a man must register at a particular time and his failure to do so at that time is a single offense. That time will not be the same day for all as it was in 1917, and from the Selective Service System's viewpoint the process of registration is a 'continuing' one. But from the registrant's viewpoint the obligation arises at a specific time. In Toussie's case it arose when he turned 18. He was allowed a five-day period in which to fulfill the duty, but when he did not do so he then and there committed the crime of failing to register.
11
The Government points out that the 'continuing duty' regulation has been in existence since before the passage of the 1948 Act,13 and that most lower federal courts have held that failing to register is a continuing offense for purposes of applying the statute of limitations.14 It is suggested that since Congress has legislated several times in this field, its failure to indicate that the crime should not be treated as a continuing offense supports the Government's argument that it is. Petitioner on the other hand suggests that Congress has on occasion explicitly stated that a certain offense will be deemed a continuing one,15 and its failure to do so in this statute indicates that it did not intend to adopt that theory. Since there is no specific evidence that Congress actually was aware of this limitations question when it acted whatever weight such evidence might deserve—and since we are reluctant to imply a continuing offense except in limited circumstances, we conclude that any argument based on congressional silence is stronger in favor of not construing this Act as incorporating a continuing-offense theory.
12
Unlike other instances in which this Court has held that a particular statute describes a continuing offense, there is no language in this Act that clearly contemplates a prolonged course of conduct.16 While it is true that the regulation does in explicit terms refer to registration as a continuing duty, we cannot give it the effect of making this criminal offense a continuing one. Since such offenses are not to be implied except in limited circumstances, and since questions of limitations are fundamentally matters of legislative not administrative decision, we think this regulation should not be relied upon effectively to stretch a five-year statute of limitations into a 13-year one, unless the statute itself, apart from the regulation, justifies that conclusion.17
13
There is also nothing inherent in the act of registration itself which makes failure to do so a continuing crime. Failing to register is not like a conspiracy which the Court has held continues as long as the conspirators engage in overt acts in furtherance of their plot. See United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168 (1910), Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). It is in the nature of a conspiracy that each day's acts bring a renewed threat of the substantive evil Congress sought to prevent. The fact that the first draft registrations clearly were viewed as instantaneous events and not a continuing process indicates that there is nothing inherent in the nature of failing to register that makes it a continuing offense.
14
We do not mean that the argument in support of implying a continuing offense in this case is insubstantial, but it is at best highly equivocal. Basically we are faced with the task of construing a somewhat ambiguous statute in one of two ways. One way would limit institution of prosecution to a period of five years following the initial violation, while the other could effectively extend the final date for prosecution until as late as 13 years after the crime is first complete. As we have said before:
15
'when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.' United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221—222, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952).
16
Not insignificantly those remarks were also made in the context of considering the continuing-offense doctrine. In light of all these considerations we conclude that the draft law does not intend to permit criminal prosecution for failing to register as late as 13 years after the initial failure. Consequently the statute of limitations begins to run at the initial failure to register as required by law. Since the facts in this case clearly show that Toussie failed in his legal obligation when he did not register prior to June 28, 1959, the statute began to run at that time and prosecution based on an indictment returned almost eight years later was barred.
17
It should be emphasized that this conclusion does not mean that the gravity of this offense is in any way diminished. Failure to register is subject to heavy criminal penalities. The only question is whether those penalties must result from a prosecution begun within five years or whether they can be delayed for a longer period. We are not convinced that limiting prosecution to a period of five years following the initial failure to register will significantly impair either the essential function of raising an army or the prosecution of those who fail to register. We do feel that the threat of criminal punishment and the five-year statute of limitations is a sufficient incentive to encourage compliance with the registration requirements. If Congress had felt otherwise it could easily have provided for a longer period of limitations. It has not yet done so.
18
There is no doubt that the jury found that Toussie willfully failed to register and thereby subject himself to the same possibility of military service that faces other young men who fully comply with their legal obligations. There is some cause to feel that dismissal of the indictment in such a case is an injustice in a society based on full and equal application of the laws. But while Congress has said that failure to register is a crime, it has also made prosecution subject to the statute of limitations. 'Every statute of limitations, of course, may permit a rogue to escape,' Pendergast v. United States, 317 U.S. 412, 418, 63 S.Ct. 268, 271, 87 L.Ed. 368 (1943), but when a court concludes that the statute does bar a given prosecution, it must give effect to the clear expression of congressional will that in such a case 'no person shall be prosecuted, tried, or punished.' The judgment of conviction in this case must therefore be reversed.
19
Reversed.
20
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice HARLAN join, dissenting.
21
The general statute of limitations provides in pertinent part that '(e)xcept as otherwise expressly provided by law, no person shall be prosecuted * * * unless the indictment is found * * * within five years next after such offense shall have been committed.' 18 U.S.C. § 3282. The majority holds that this statute bars petitioner's prosecution, shortly before his 26th birthday, for failing ever to have registered for the draft. That conclusion, I submit, is supported by neither the language, the purpose, nor the history of the applicable Selective Service Acts.
22
It is at once clear that nothing is gained by stressing that the general statute of limitations applies '(e)xcept as otherwise expressly provided by law.' The question in this case is not whether the five-year statute applies, but when it begins to run. That question in turn depends on what the 'offense' is for which petitioner is being tried, and when it was that he committed that offense. In the typical case, an offense if complete as soon as every element in the crime occurs, and the statute of limitations begins to run from that date. But in the case of a 'continuing offense,' the crime is not exhausted for purposes of the statute of limitations as long as the proscribed course of conduct continues. United States v. Cores, 356 U.S. 405, 409, 78 S.Ct. 875, 878, 2 L.Ed.2d 873 (1958); United States v. Kissel, 218 U.S. 601, 607, 31 S.Ct. 124, 125, 54 L.Ed. 1168 (1910); see Model Penal Code s 1.07, Comment (Tent.Draft No. 5, 1956). The question into which category a given offense falls has long been held to be entirely a matter of statutory interpretation. See, e.g., United States v. Cores, supra; Pendergast v. United States, 317 U.S. 412, 419—421, 63 S.Ct. 268, 271, 272, 87 L.Ed. 368 (1943); Bramblett v. United States, 97 U.S.App.D.C. 330, 332, 231 F.2d 489, 492, cert. denied, 350 U.S. 1015, 76 S.Ct. 658, 100 L.Ed. 874 (1956).
23
In this case, the offense derives from 50 U.S.C.App. §§ 453 and 462(a) (1964 ed. and Supp. IV). The latter section makes it a crime to evade registration or to 'neglect or refuse to perform any duty' required by the Selective Service laws. The former section—453—spells out the 'duty' that petitioner is charged with failing to perform here:
24
'(I)t shall be the duty of every male citizen of the United States, and every other male person now or hereafter in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder.'
25
By any natural reading of this language, at least where the President has established 'times' and 'places' for continually accepting registrations, the 'offense' created is the offense of being at one and the same time, unregistered after having been required to register, and being between the ages of 18 and 26. Indeed, coupled with § 462's provision for punishment of anyone who 'evades' registration, this crime is very similar to the crime committed by an alien who unlawfully 'remains' in the country. See United States v. Cores, supra; majority opinion, ante, at 120 n. 16. Under this view of the Act, the only question that the statute of limitations raises is whether, at any time within five years preceding the indictment, those two characteristics—being unregistered and between the specified age limits—accurately described the accused.
26
The majority concludes, however, that the only duty prescribed by § 453 is a duty to register on those specific days and those days only—declared by the President for initial registrations. In this case, by presidential proclamation, persons not yet 18 in 1948 were to 'be registered on the day they attain the eighteenth anniversary of the day of their birth, or within five days thereafter.' According to the majority, once the fifth day has passed, the unregistered 18-year-old, although he has indeed committed an offense, is no longer under any further obligation to register. That conclusion is wholly at odds with the purposes of the Selective Service Act as a whole and this section in particular, as well as with the regulations, longstanding administrative interpretation, and the presidential proclamation itself.
27
Since 1941, Selective Service regulations, issued under authority explicitly granted the President, 50 U.S.C.App. § 460 (1964 ed. and Supp. IV); 32 CFR pt. 1611 (invoking authority under § 460), have provided that:
28
'The duty of every person subject to registration to present himself for and submit to registration shall continue at all times, and if for any reason any such person is not registered on the day or one of the days fixed for his registration, he shall immediately present himself for and submit to registration before the local board in the area where he happens to be.' 32 CFR § 1611.7(c).
29
If there was any doubt as to whether the duty imposed by § 453 extends beyond the fifth day after petitioner's birthday, this regulation surely sets that issue at rest.1 Indeed, the Court apparently concedes as much since it decides to fall back on the theory that the regulation is not authorized by the Act.2
30
That position, however is simply untenable. In addition to the general authorization to the President in § 460(b) 'to prescribe the necessary rules and regulations to carry out the provisions of this title,' § 453 itself expressly requires registration 'at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder.' The majority's reference to the 1917 Act, if it proves anything, proves just the opposite of the Court's conclusion. Under that Act, the President prescribed one day when registration was to take place, utilizing local election precincts and a registration system that were not well adapted to take registrations on any other day.3 By 1942, the system had been streamlined to the point where local boards were open every day for the purpose of accepting new registrations. The current regulations are nothing more or less than a setting of 'times' and 'places' (your nearest local board during the usual business hours)4 for late as well as timely registrations. Within five years prior to the bringing of this indictment, petitioner—in the words of the statute—had a 'time' and a 'place' to register, 'determined by proclamation of the President and by rules and regulations prescribed' by the President.
31
Despite the majority's implication to the contrary, ante, at 120, there is specific evidence that Congress actually was aware of this question when it acted, and that Congress did not expect that the duty to register would cease merely because the times set for initial registration had passed. During the hearings on the 1940 Act, Senator Reynolds asked then-Major Hershey whether a person could avoid his duty to register altogether by, for example, joining the National Guard—which would give him an exemption—and then getting out as soon as registration day had passed. Major Hershey replied that such persons would have to register as soon as they lost their exempt status, and he persisted in that answer despite the Senator's puzzlement (like the majority's) over the fact that the registration period would seem to have expired. The Senator finally accepted Major Hershey's explanation after assuring himself that 'your registration boards are at all times in session * * * (a)nd they would be given the opportunity to register.'5 Even the relevant presidential proclamation, wholly apart from the 'continuing-duty' regulation, accords with this view that the duty to register is not defined solely in terms of the setting of the sun on the day originally fixed for registration. The proclamation declares that a person unable to register on the day fixed for his registration 'because of circumstances beyond his control * * * shall do so as soon as possible after the cause for such inability ceases to exist.'6 Apparently, the majority concedes that in what it calls these few 'exceptions,' the Act does impose a valid duty to register on a day other than the initial date. That being the case, it is inconceivable to me that Congress can be said to have authorized the President to require late registration of those with a good excuse for their tardiness, but not to have similarly authorized him to require late registration of those with a bad excuse or no excuse at all.
32
The 'continuing-duty' view of § 453 receives support from an appraisal of the section's purpose in the context of the statute considered as a whole. Immediately following the registration requirement, § 454 declares that 'every male citizen * * * who is between the ages of 18 years and 6 months and 26 years, at the time fixed for his registration, or who attains the age of 18 years and 6 months after having been required to register pursuant to (§ 453) shall be liable for training and service in the Armed Forces * * *.' Since even under the majority's view, petitioner was at one time a person 'required to register,' this section, by its literal terms, made him still liable for induction at the time this indictment was brought. But if he still had a duty to serve, then it is completely illogical to conclude that he did not also still have a duty to register. The whole purpose of the registration section is to provide a manpower pool from which inductees can be selected; registration is but the necessary first step in the congressional scheme for processing, classifying, and selecting individuals for training.7 See United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). And the instant regulation, declaring that the duty to register 'shall continue at all times,' is but one of numerous provisions and regulations in the Selective Service Act that reflect the concept that continuing duties are essential if this orderly induction process is to take place.8 Even apart from the settled rule that the 'interpretation expressly placed on a statute by those charged with its administration must be given weight by courts faced with the task of construing the statute,' e.g., Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965), it seems clear to me that the regulation merely spells out an intent already inherent in the statutory scheme.9 Yet the majority holds that when dawn breaks on the unregistered male, six days after his 18th birthday, his crime is complete and ended; though the Act specifically declares that he is still liable for induction, he has no obligation to take the step that makes that induction possible. I for one cannot ascribe such inconsistent intent to Congress.
33
The Court does not even have the excuse that its construction is required in order to avoid a serious constitutional problem. Petitioner has argued that if his duty to register continues, he cannot be punished for failing to comply since late registration would necessarily be incriminating. See Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); 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). But the Court of Appeals below drew dead aim on the defect in this argument, and the Court's opinion wisely refrains from relying on the suggested Fifth Amendment problem. For if this is a continuing offense, petitioner—as the Government concedes—is subject to only one prosecution based on his single uninterrupted course of conduct. See Model Penal Code, § 1.08, Comment 33—34 (Tent. Draft No. 5, 1956). Petitioner was subject to that prosecution six days after his 18th birthday; his continued failure to register did not subject him to any additional penalty beyond what he had already risked. Thus, though it may be conceded that late registration would have been incriminating, the statute here, unlike the statutes in Marchetti, Grosso, and Leary does not compel incrimination. Petitioner had nothing to gain in the form of avoiding an additional penalty by registering and revealing that his registration was late. The only possible 'incentive' in this case stems from the fact that by registering, petitioner would have caused the statute of limitations to commence running, thus giving the Government only five years in which to prosecute instead of leaving prosecution open until age 31.10 To suggest that this possibility of starting the statute running is sufficiently 'attractive' to amount to 'compulsion' for purposes of the Fifth Amendment is purest fancy.
34
The 'continuing offense' is hardly a stranger to American jurisprudence. The concept has been extended to embrace such crimes as embezzlement,11 conspiracy,12 bigamy,13 nuisance,14 failure to provide support,15 repeated failure to file reports,16 failure to register under the Alien Registration Act,17 failure to notify the local board of a change in address,18 and, until today, failure to register for the draft.19 Since the continuing-offense concept too freely applied can lead to tension with the purposes of a statute of limitations, we should undoubtedly approach the task of statutory interpretation with 'a presumption against a finding that an offense is a continuing one * * *.' Model Penal Code § 1.07, Comment (Tent. Draft No. 5, 1956). But the presumption is by its nature rebuttable; if it is ever to give way, it must surely do so in a case such as this where every other guide to statutory interpretation points to a contrary legislative intent. To hold otherwise—to erect as the majority does an absolute bar to finding a continuing offense in the absence of express statutory language is to shirk our judicial responsibility of interpreting Acts of Congress as they come to us, without insisting that Congress make our task easier by using some particular form of words to express its intent.20 Our own cases distinguish the 'instantaneous' from the 'continuing' offense on the theory that in the former case, the illegal aim is attained as soon as every element of the crime has occurred, whereas in the latter case, the unlawful course of conduct is 'set on foot by a single impulse and operated by an unintermittent force,' until the ultimate illegal objective is finally attained. United States v. Midstate Co., 306 U.S. 161, 166, 59 S.Ct. 412, 414, 83 L.Ed. 563 (1939); see also United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 224, 73 S.Ct. 227, 230, 231, 97 L.Ed. 260 (1952). The latter definition fits this case precisely. By his own testimony, petitioner admits that he set out to evade registration and liability for the draft. That aim could only be accomplished by remaining unregistered until he was past 26—the age of prime liability. If he had succeeded in reaching 26 and escaping liability, the Government should have its five years to detect and punish his illegal course of conduct. As it is, the Court holds that petitioner not only succeeded in his aim, but was immune from prosecution for his unlawful conduct at the age of 23. While all around him, young men were being inducted, 26-year-olds first, petitioner at 18 years and 6 days is forever free of any duty—and at 23 is forever free from prosecution for his initial failure—to place himself, like them, into the pool from which inductees are selected. I cannot agree. I would affirm.
1
50 U.S.C.App. § 453. This Act was amended by the Military Selective Service Act of 1967, 81 Stat. 100, but those amendments did not change this provision. Failure to perform this duty is punishable by fine, imprisonment, or both. 50 U.S.C.App. § 462(a) (1964 ed., Supp. IV).
2
Proclamation No. 2799, July 20, 1948, 62 Stat. 1531. The Proclamation was first issued under the authority of the Selective Service Act of 1948, 62 Stat. 604, but it was continued after the passage of the Universal Military Training and Service Act by Proclamation No. 2942, August 30, 1951, 65 Stat. c35.
3
Proclamation of May 18, 1917, 40 Stat. 1664.
4
U.S. Selective Service System, Registration and Selective Service 11 (1946).
5
Proclamation of August 13, 1918, 40 Stat. 1834.
6
The first registration was of all men between the ages of 21 and 30. 40 Stat. 80. In 1918 Congress expanded the group to all those between the ages of 18 and 45. 40 Stat. 955.
7
Proclamation of August 31, 1918, 40 Stat. 1840.
8
Proclamation No. 2425, September 16, 1940, 54 Stat. 2739.
9
Proclamation No. 2572, November 17, 1942, 56 Stat. 1982.
10
See supra, at 113.
11
See supra, at 113, and Proclamation No. 2799, July 20, 1948, 62 Stat. 1531.
12
For example, students at certain military colleges are exempted from registration. 50 U.S.C.App. § 456(a)(1) (1964 ed., Supp. IV). If a student in such an institution withdraws, he would presumably be required to register since the Act specifically states that '(n)o exemption from registration * * * shall continue after the cause therefor ceases to exist.' 50 U.S.C.App. § 456(k). Thus such a student may not be required to register until some time after his 18th birthday.
13
The regulation was first promulgated under the 1940 Act on June 4, 1941. Selective Service System Regulations Vol. 2, § IX, 205(d), 6 Fed.Reg. 2747.
14
See Fogel v. United States, 162 F.2d 54 (C.A.5th Cir.), cert. denied, 332 U.S. 791, 68 S.Ct. 99, 92 L.Ed. 373 (1947); Gara v. United States, 178 F.2d 38, 40 (C.A.6th Cir. 1949), aff'd by an equally divided Court, 340 U.S. 857, 71 S.Ct. 87, 95 L.Ed. 628 (1950); McGregor v. United States, 206 F.2d 583 (C.A.4th Cir. 1953); cf. United States v. Guertler, 147 F.2d 796 (C.A.2d Cir. 1945). But cf. United States v. Salberg, 287 F. 208 (D.C.N.D.Ohio 1923).
15
Congress has provided that concealment of a bankrupt's assets shall 'be deemed to be a continuing offense * * * and the period of limitations shall not begin to run until * * * final discharge or denial of discharge.' 18 U.S.C. § 3284.
16
Cf. United States v. Cores, 356 U.S. 405, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958), in which the Court held, for venue purposes, that the statute prohibiting alien crewmen from remaining in the United States after their permits expired contemplated that the offense would continue as long as the crewman remained in this country and the statute of limitations did not start to run when he first overstayed his permit. In that case we stated that '(s) ection 252(c) punishes '(a)ny alien crewman who willfully remains in the United States in excess of the number of days allowed.' The conduct proscribed is the affirmative act of willfully remaining, and the crucial word 'remains' permits no connotation other than continuing presence.' Id., at 408, 78 S.Ct., at 878. See also Armour Packing Co. v. United States, 209 U.S. 56, 28 S.Ct. 428, 52 L.Ed. 681 (1908), in which we held that, for venue purposes, violations of the Elkins Act, 32 Stat. 847, were continuing offenses. In that case the statute specifically provided that '(e)very violation * * * shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed or through which the transportation may have been conducted * * *.' Id., at 73, 28 S.Ct., at 432. Both of these cases dealt with venue and did not involve the statute of limitations question presented in this case.
17
It is significant that the courts that have concluded that failure to register is a continuing offense have done so by relying explicitly on the regulation. See Fogel v. United States, supra, 162 F.2d at 55; McGregor v. United States, supra, 206 F.2d, at 584; Gara v. United States, supra, 178 F.2d, at 39; and the opinions below in this case, 280 F.Supp., at 474, 410 F.2d, at 1157. It is equally significant that the only court that concluded that the offense was not a continuing one did so at a time when there was no 'continuing-duty' regulation issued to implement the registration provisions. United States v. Salberg, supra, interpreting the 1917 Draft Act, held that failure to register was not a continuing offense. The first continuing-duty regulation was promulgated in 1941. See n. 13, supra. These decisions support our conclusion that the statute itself, apart from any reliance on the administrative regulation, does not require that it be construed to incorporate a continuing-offense theory. We do not hold, as the dissent seems to imply, post, at 127, that the continuing duty regulation is unauthorized by the Act. All we hold is that neither the regulation nor the Act itself requires that failure to register be treated as the type of offense that effectively extends the statute of limitations.
1
Despite the majority's assertion to the contrary, the quoted regulation is neither the first nor the only regulation reflecting the expectation that registration was to occur, even though it was 'late' registration. Even under the 1917 Act, the regulations 'prescribed by the President under the authority vested in him by the terms of the Selective Service Law,' U.S. War Dept., Selective Service Regulations, p. i (2d ed. 1918), provided for registration 'other than on Registration Day * * * irrespective of the date on which (the applicant) was required to register.' Id., § 54; see U.S. War Dept., Selective Service Regulations § 54 (1917) ('Local Boards will accomplish the registration of persons subject to registration who, for any reason, have not been registered on or since (Registration Day)') (emphasis added). Similarly, under the 1940 Act, procedures were described for registering '(a)ll persons who present themselves for registration, including persons who should have registered on a previous registration day * * *.' 32 CFR § 613.11(b) (Cum.Supp. 1944) (emphasis added). And the current regulations provide that '(t)he Director of Selective Service shall also arrange for and supervise the registration of persons who present themselves for registration at times other than on the day or days fixed for any registration.' 32 CFR § 1612.1.
It is incongruous, to say the least, to admit that local boards have a duty and responsibility to register late applicants, see also 32 CFR § 1611.6, but that such applicants have no corresponding duty to cooperate with the board. Presumably under the majority's view, an unregistered male, discovered by the local board after the time for his initial registration had passed, could not be punished if he 'refuses to cooperate or is inclined to evade, refuses to answer, or answers falsely * * *.' See 32 CFR § 1613.16 (provision for dealing with 'recalcitrants').
2
The majority seems concerned to distinguish the 'limitations question,' ante, at 120, from the question of whether the duty in this case is continuing, ante, at 121 n. 17. But the Court cannot have it both ways. If the duty continues, as the regulation prescribes, the limitations question has been settled: the definition of the 'offense' was not yet exhausted when this indictment was brought. United States v. Cores, 356 U.S. 405, 409, 78 S.Ct. 875, 878, 2 L.Ed.2d 873 (1958); United States v. Kissel, 218 U.S. 601, 607, 31 S.Ct. 124, 125, 54 L.Ed. 1168 (1910). If, on the other hand, the statute has run, then the 'continuing-duty' regulation must be invalid. While I can sympathize with the Court's discomfort over the position it is thus forced to assume, I view that unease as simply an additional indication that the regulations involved in this case are fully within the scope of the powers given the President under the Act.
3
The first registration is described in U.S. Selective Service System, Registration and Selective Service 10—11 (1946): 'The basic idea was to follow the general organization and the administrative units of the election machinery. The Governors in the States, the County Clerks, or other designated persons in the county and in registration precincts were selected or appointed registrars. The ordinary place of registration was the ordinary place for voting. Thus the normal processes of Government were utilized for this extraordinary activity.'
Although it appears that late registration by local boards after Registration Day was authorized by the President, see n. 1, supra, until World War II and the 1940 Act, the local boards' 'primary functions (were) not registration but classification and induction.' Id., at 23. Once Registration Day had passed, and the emergency machinery had been dismantled, special procedures were required for accomplishing late registration, see U.S. War Dept., Selective Service Regulations § 54(b) (2d ed. 1918), and 'local boards had difficulty with the proper entry or handling of registrations which, too often for insufficient reason, were received late.' U.S. Selective Service System, supra, at 91. Significantly, during subsequent registration days under the 1917 Act, when the boards once again had the help of special machinery, tens of thousands of tardy registrations were effected. Id., at 15. By 1941, the boards were equipped to handle late registrations as a matter of course, resulting in the issuance of the 'continuing-duty' regulation. See id., at 42, 91—92.
4
See, for example, in addition to the 'continuing-duty' regulation, the following regulation designating the 'Place and time of registration':
'Any person required to be registered may present himself for and submit to registration at any designated place of registration or at the office of any local board during the hours for registration specified in the Presidential proclamation or during the usual business hours.' 32 CFR § 1613.1(a) (emphasis added).
5
Hearings on S. 4164 before the Senate Committee on Military Affairs, 76th Cong., 3d Sess., 385 (1940). See also the exchange between Senator Reynolds—by then Chairman of the Committee—and General Hershey during hearings a year later on an amendment to the 1940 Act, pointing out that the Act 'gives a broad discretion to call these men as the Army sees fit * * * (a)nd to register them as they see fit.' Hearings on S. 2126 before the Senate Committee on Military Affairs, 77th Cong., 1st Sess., 34 (1941).
6
Proclamation No. 2799, July 20, 1948, 62 Stat. 1531, 13 Fed.Reg. 4173. Similar language is contained in the Supplementing Proclamation, No. 2942, August 30, 1951, 65 Stat. c36.
7
This view of the registration provisions, relating them to the induction provisions as a reservoir to a pipeline, was repeatedly emphasized in the hearings on the 1940 Act and amendments thereto. See, e.g., Hearings on H.R. 10132 before the House Committee on Military Affairs, 76th Cong., 3d Sess., 10—11, 15, 116 (1940); Hearings on S. 2126 before the Senate Committee on Military Affairs, 77th Cong., 1st Sess., 83 (1941) ('if you do not coordinate registration and induction, you are going to run into embarrassment'); U.S. Selective Service System, supra, n. 3, at 1 2 ('(t)he object * * * of registration is * * * to know where available manpower is and to be able to reach it * * *').
8
See 32 CFR §§ 1617.1, 1623.5 (registration and classification certificates must be kept in one's personal possession 'at all times'); 32 CFR § 1641.7 (duty to keep local board informed of current status); 32 CFR § 1641.3 (duty 'to keep (the registrant's) local board advised at all times of the address where mail will reach him'). The latter regulation was long ago interpreted as imposing a continuing duty to advise the local board of a change of address in a decision that rejected a claim similar to petitioner's that the then three-year statute of limitations barred prosecution, because the address was changed more than three years before the indictment was brought. United States v. Guertler, 147 F.2d 796 (C.A.2d Cir. 1945). Presumably under the majority's theory that 'continuing duties' can only be created by express provision in the statute, this decision is overruled, and the continuing duty imposed by this regulation is brushed aside—all in the face of a statute that Congress knew 'wouldn't be worth a dime to us in 2 years' if registration information and lists were not 'kept up to date.' Hearings on S. 2126 before the Senate Committee on Military Affairs, 77th Cong., 1st Sess., 37, 38 (1941).
9
In the Military Selective Service Act of 1967, enacted June 30, 1967, 81 Stat. 100, Congress added to § 454(a) a provision that registrants who failed or refused to report for induction were 'to remain liable for induction and when available shall be immediately inducted.' 50 U.S.C.App. § 454 (1964 ed., Supp. IV). Petitioner relies on this provision as an indication that Congress did not intend to impose continuing duties except where, as here, it used express language to that effect. The legislative history shows just the opposite to be the case. Congress assumed that, even without express language, liability for induction would continue until age 26; the amendment was prompted solely in order to 'insure that a registrant who prolongs litigation of his draft classification beyond age 26' (when he would 'no longer (be) liable for military service') 'would nonetheless remain liable for induction, regardless of age * * *.' H.R.Rep.No.267, 90th Cong., 1st Sess., 30 (1967). There is not the slightest suggestion that Congress suspected, that the registration and liability provisions of §§ 453 and 454 interrelated provisions which must fairly be read in pari materia ever created anything other than continuing duties until the specified 26-year age limit was reached.
10
Petitioner has suggested that if the duty to register is continuing, there is no logical stopping place for bounding the duty, so that 'a person seventy years old can be prosecuted for having failed to register fifty-two years before at the age of eighteen.' Brief for Petitioner 17. But the paraded horrible overlooks the fact that the same provisions that create the duty, also indicate that the duty ends at age 26—the age beyond which no one was ever required to register under this Act and this proclamation, and beyond which no one would normally have been liable for induction. See nn. 6, 8, supra; S.Rep.No.1268, 80th Cong., 2d Sess., 6 (1948) ('(r)egistration is not required of persons who have reached the age of 26').
11
See State v. Thang, 188 Minn. 224, 246 N.W. 891 (1933).
12
See Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253, 60 S.Ct. 811, 858, 84 L.Ed. 1129 (1940); United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168 (1910).
13
See Cox v. State, 117 Ala. 103, 23 So. 806, 41 L.R.A. 760 (1898); compare People v. Brady, 257 App.Div. 1000, 13 N.Y.S.2d 789 (1939), with Commonwealth v. Ross, 248 Mass. 15, 142 N.E. 791 (1924).
14
E.g., State v. Dry Fork R. Co., 50 W.Va. 235, 40 S.E. 447 (1901).
15
Richardson v. State, 30 Del. (7 Boyce) 534, 109 A. 124 (Ct.Gen.Sess.1920); Towns v. State, 24 Ga.App. 265, 100 S.E. 575 (1919).
16
See Hanf v. United States, 235 F.2d 710 (C.A.8th Cir.), cert. denied 352 U.S. 880, 77 S.Ct. 102, 1 L.Ed.2d 81 (1956).
17
United States v. Franklin, 188 F.2d 182 (C.A.7th Cir. 1951).
18
United States v. Guertler, 147 F.2d 796 (C.A.2d Cir. 1945); see n. 8, supra.
19
See Fogel v. United States, 162 F.2d 54 (C.A.5th Cir.), cert. denied, 332 U.S. 791, 68 S.Ct. 99, 92 L.Ed. 373 (1947); Gara v. United States, 178 F.2d 38, 40 (C.A.6th Cir. 1949), aff'd by an equally divided Court, 340 U.S. 857, 71 S.Ct. 87, 95 L.Ed. 628 (1950); McGregor v. United States, 206 F.2d 583 (C.A.4th Cir. 1953). But cf. United States v. Salberg, 287 F. 208 (D.C.N.D.Ohio 1923) (holding the duty under the 1917 Act not to be continuing).
20
Similarly, the requirement that criminal statutes be strictly construed in determining the substantive offense in order to prevent problems of fair warning, cf. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (holding that defendant's acts constituted a continuing course of conduct, subject only to one presecution), does not lead to the majority's per se rule in deciding what type of offense is involved for purposes of the statute of limitations. Given the explicit provisions of § 453, the 'continuing-duty' regulation, and the consistent administrative interpretation of the Act, there can be no suggestion that petitioner did not have fair warning that he was required to register, or that petitioner was unfairly led into thinking that repose would be his when he reached 23.
| 12
|
397 U.S. 99
90 S.Ct. 821
25 L.Ed.2d 146
H. K. PORTER COMPANY, Inc., etc., Petitioner,v.NATIONAL LABOR RELATIONS BOARD et al.
No. 230.
Argued Jan. 15, 1970.
Decided March 2, 1970.
Donald C. Winson, Pittsburgh, Pa., for petitioner.
Norton J. Come, Washington, D.C., for respondent National Labor Relations Board.
George H. Cohen, Washington, D.C., for respondent United Steelworkers of America, AFL-CIO, by special leave of Court.
Lawrence M. Cohen, Chicago. Ill., for Chamber of Commerce of the United States, as amicus curiae.
Mr. Justice BLACK delivered the opinion of the Court.
1
After an election respondent United Steelworkers Union was, on October 5, 1961, certified by the National Labor Relations Board as the bargaining agent for certain employees at the Danville, Virginia, plant of the petitioner, H. K. Porter Co. Thereafter negotiations commenced for a collective-bargaining agreement. Since that time the controversy has seesawed between the Board, the Court of Appeals for the District of Columbia Circuit, and this Court. This delay of over eight years is not because the case is exceedingly complex, but appears to have occurred chiefly because of the skill of the company's negotiators in taking advantage of every opportunity for delay in an act more noticeable for its generality than for its precise prescriptions. The entire lengthy dispute mainly revolves around the union's desire to have the company agree to 'check off' the dues owed to the union by its members, that is, to deduct those dues periodically from the company's wage payments to the employees. The record shows, as the Board found, that the company's objection to a checkoff was not due to any general principle or policy against making deductions from employees' wages. The company does deduct charges for things like insurance, taxes, and contributions to charities, and at some other plants it has a checkoff arrangement for union dues. The evidence shows, and the court below found, that the company's objection was not because of inconvenience, but solely on the ground that the company was 'not going to aid and comfort the union.' Efforts by the union to obtain some kind of compromise on the checkoff request were all met with the same staccato response to the effect that the collection of union dues was the 'union's business' and the company was not going to provide any assistance. Based on this and other evidence the Board found, and the Court of Appeals approved the finding, that the refusal of the company to bargain about the checkoff was not made in good faith, but was done solely to frustrate the making of any collective-bargaining agreement. In May 1966, the Court of Appeals upheld the Board's order requiring the company to cease and desist from refusing to bargain in good faith and directing it to engage in further collective bargaining, if requested by the union to do so, over the checkoff. United Steelworkers of America v. NLRB, 124 U.S.App.D.C. 143, 363 F.2d 272, cert. denied, H. K. Porter, Inc., Disston Division-Danville Works v. N.L.R.B., 385 U.S. 851, 87 S.Ct. 90, 17 L.Ed.2d 80.
2
In the course of that opinion, the Court of Appeals intimated that the Board conceivably might have required petitioner to agree to a checkoff provision as a remedy for the prior bad-faith bargaining, although the order enforced at that time did not contain any such provision. 124 U.S.App.D.C., at 146—147, and n. 16, 363 F.2d, at 275—276, and n. 16. In the ensuing negotiations the company offered to discuss alternative arrangements for collecting the union's dues, but the union insisted that the company was required to agree to the checkoff proposal without modification. Because of this disagreement over the proper interpretation of the court's opinion, the union, in February 1967, filed a motion for clarification of the 1966 opinion. The motion was denied by the court on March 22, 1967, in an order suggesting that contempt proceedings by the Board would be the proper avenue for testing the employer's compliance with the original order. A request for the institution of such proceedings was made by the union, and, in June 1967, the Regional Director of the Board declined to prosecute a contempt charge, finding that the employer had 'satisfactorily complied with the affirmative requirements of the Order.' App. 111. The union then filed in the Court of Appeals a motion for reconsideration of the earlier motion to clarify the 1966 opinion. The court granted that motion and issued a new opinion in which it held that in certain circumstances a 'checkoff may be imposed as a remedy for bad faith bargaining.' United Steelworkers of America v. NLRB, 128 U.S.App.D.C. 344, 344, 347, 389 F.2d 295, 298 (1967). The case was then remanded to the Board and on July 3, 1968, the Board issued a supplemental order requiring the petitioner to '(g)rant to the Union a contract clause providing for the checkoff of union dues.' 172 N.L.R.B. No. 72, 68 N.R.R.M. 1337. The Court of Appeals affirmed this order, H. K. Porter Co. v. NLRB, 134 U.S.App.D.C. 227, 414 F.2d 1123 (1969). We granted certiorari to consider whether the Board in these circumstances has the power to remedy the unfair labor practice by requiring the company to agree to check off the dues of the workers. 396 U.S. 817, 90 S.Ct. 79, 24 L.Ed.2d 68. For reasons to be stated we hold that while the Board does have power under the National Labor Relations Act, 61 Stat. 136, as amended, to require employers and employees to negotiate, it is without power to compel a company or a union to agree to any substantive contractual provision of a collective-bargaining agreement.
3
Since 1935 the story of labor relations in this country has largely been a history of governmental regulation of the process of collective bargaining. In that year Congress decided that disturbances in the area of labor relations led to undesirable burdens on and obstructions of interstate commerce, and passed the National Labor Relations Act, 49 Stat. 449. That Act, building on the National Industrial Recovery Act, 48 Stat. 195 (1933), provided that employees had a federally protected right to join labor organizations and bargain collectively through their chosen representatives on issues affecting their employment. Congress also created the National Labor Relations Board to supervise the collective-bargaining process. The Board was empowered to investigate disputes as to which union, if any, represented the employees, and to certify the appropriate representative as the designated collective-bargaining agent. The employer was then required to bargain together with this representative and the Board was authorized to make sure that such bargaining did in fact occur. Without spelling out the details, the Act provided that it was an unfair labor practice for an employer to refuse to bargain. Thus a general process was established that would ensure that employees as a group could express their opinions and exert their combined influence over the terms and conditions of their employment. The Board would act to see that the process worked.
4
The object of this Act was not to allow governmental regulation of the terms and conditions of employment, but rather to ensure that employers and their employees could work together to establish mutually satisfactory conditions. The basic theme of the Act was that through collective bargaining the passions, arguments, and struggles of prior years would be channeled into constructive, open discussions leading, it was hoped, to mutual agreement. But it was recognized from the beginning that agreement might in some cases be impossible, and it was never intended that the Government would in such cases step in, become a party to the negotiations and impose its own views of a desirable settlement. This fundamental limitation was made abundantly clear in the legislative reports accompanying the 1935 Act. The Senate Committee on Education and Labor stated:
5
'The committee wishes to dispel any possible false impression that this bill is designed to compel the making of agreements or to permit governmental supervision of their terms. It must be stressed that the duty to bargain collectively does not carry with it the duty to reach an agreement, because the essence of collective bargaining is that either party shall be free to decide whether proposals made to it are satisfactory.'1
6
The discussions on the floor of Congress consistently reflected this same understanding.2
7
The Act was passed at a time in our Nation's history when there was considerable legal debate over the constitutionality of any law that required employers to conform their business behavior to any governmentally imposed standards. It was seriously contended that Congress could not constitutionally compel an employer to recognize a union and allow his employees to participate in setting the terms and conditions of employment. In N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), this Court, in a 5-to-4 decision, held that Congress was within the limits of its constitutional powers in passing the Act. In the course of that decision the Court said:
8
'The Act does not compel agreements between employers and employees. It does not compel any agreement whatever. * * * The theory of the Act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the Act in itself does not attempt to compel.' Id., at 45, 57 S.Ct., at 628.
9
In 1947 Congress reviewed the experience under the Act and concluded that certain amendments were in order. In the House committee report accompanying what eventually became the Labor Management Relations Act, 1947, the committee referred to the abovequoted language in Jones & Laughlin and said:
10
'Notwithstanding this language of the Court, the present Board has gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counterproposals that he may or may not make. * * *
11
(U)nless Congress writes into the law guides for the Board to follow, the Board may attempt to carry this process still further and seek to control more and more the terms of collective-bargaining agreements.'3
12
Accordingly Congress amended the provisions defining unfair labor practices and said in § 8(d) that:
13
'For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.'4
14
In discussing the effect of that amendment, this Court said it is 'clear that the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements.' N.L.R.B. v. American Nat. Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027 (1952). Later this Court affirmed that view stating that 'it remains clear that § 8(d) was an attempt by Congress to prevent the Board from controlling the settling of the terms of collective bargaining agreements.' N.L.R.B. v. Insurance Agents' Inter. Union, 361 U.S. 477, 487, 80 S.Ct. 419, 426, 4 L.Ed.2d 454 (1960). The parties to the instant case are agreed that this is the first time in the 35-year history of the Act that the Board has ordered either an employer or a union to agree to a substantive term of a collective-bargaining agreement.
15
Recognizing the fundamental principle 'that the National Labor Relations Act is grounded on the premise of freedom of contract,' 128 U.S.App.D.C., at 349, 389 F.2d, at 300, the Court of Appeals in this case concluded that nevertheless in the circumstances presented here the Board could properly compel the employer to agree to a proposed checkoff clause. The Board had found that the refusal was based on a desire to frustrate agreement and not on any legitimate business reason. On the basis of that finding the Court of Appeals approved the further finding that the employer had not bargained in good faith, and the validity of that finding is not now before us. Where the record thus revealed repeated refusals by the employer to bargain in good faith on this issue, the Court of Appeals concluded that ordering agreement to the checkoff clause 'may be the only means of assuring the Board, and the court, that (the employer) no longer harbors an illegal intent.' 128 U.S.App.D.C., at 348, 389 F.2d, at 299.
16
In reaching this conclusion the Court of Appeals held that § 8(d) did not forbid the Board from compelling agreement. That court felt that '(s)ection 8(d) defines collective bargaining and relates to a determination of whether a * * * violation has occurred and not to the scope of the remedy which may be necessary to cure violations which have already occurred.' 128 U.S.App.D.C., at 348, 389 F.2d, at 299. We may agree with the Court of Appeals that as a matter of strict, literal interpretation that section refers only to deciding when a violation has occurred, but we do not agree that that observation justifies the conclusion that the remedial powers of the Board are not also limited by the same considerations that led Congress to enact § 8(d). It is implicit in the entire structure of the Act that the Board acts to oversee and referee the process of collective bargaining, leaving the results of the contest to the bargaining strengths of the parties. It would be anomalous indeed to hold that while § 8(d) prohibits the Board from relying on a refusal to agree as the sole evidence of bad-faith bargaining, the Act permits the Board to compel agreement in that same dispute. The Board's remedial powers under § 10 of the Act are broad, but they are limited to carrying out the policies of the Act itself.5 One of these fundamental policies is freedom of contract. While the parties' freedom of contract is not absolute under the Act,6 allowing the Board to compel agreement when the parties themselves are unable to agree would violate the fundamental premise on which the Act is based—private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract.
17
In reaching its decision the Court of Appeals relied extensively on the equally important policy of the Act that workers' rights to collective bargaining are to be secured. In this case the court apparently felt that the employer was trying effectively to destroy the union by refusing to agree to what the union may have considered its most important demand. Perhaps the court, fearing that the parties might resort to economic combat, was also trying to maintain the industrial peace that the Act is designed to further. But the Act as presently drawn does not contemplate that unions will always be secure and able to achieve agreement even when their economic position is weak, or that strikes and lockouts will never result from a bargaining impasse. It cannot be said that the Act forbids an employer or a union to rely ultimately on its economic strength to try to secure what it cannot obtain through bargaining. It may well be true, as the Court of Appeals felt, that the present remedial powers of the Board are insufficiently broad to cope with important labor problems. But it is the job of Congress, not the Board or the courts, to decide when and if it is necessary to allow governmental review of proposals for collective-bargaining agreements and compulsory submission to one side's demands. The present Act does not envision such a process.
18
The judgment is reversed and the case is remanded to the Court of Appeals for further action consistent with this opinion.
19
Reversed and remanded.
20
Mr. Justice WHITE took no part in the decision of this case.
21
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
22
Mr. Justice HARLAN, concurring.
23
I join in the Court's opinion on the understanding that nothing said therein is meant to disturb or question the primary determination made by the Board and sustained by the Court of Appeals, that petitioner did not bargain in 'good faith,' and thus may be subjected to a bargaining order enforceable by a citation for contempt if the Board deems such a proceeding appropriate.
24
Mr. Justice DOUGLAS, with whom Mr. Justice STEWART concurs, dissenting.
25
The Court correctly describes the general design and main thrust of the Act. It does not encompass compulsory arbitration; the Board does not sit to impose what it deems to be the best conditions for the collective-bargaining agreement; the obligation to bargain collectively 'does not compel either party to agree to a proposal or require the making of a concession.' § 8(d) of the Act.
26
Yet the Board has the power, where one party does not bargain in good faith, 'to take such affirmative action * * * as will effectuate the policies' of the Act. § 10(c) of the Act.
27
Here the employer did not refuse the checkoff for any business reason, whether cost, inconvenience, or what not. Nor did the employer refuse the checkoff as a factor in its bargaining strategy, hoping that delay and denial might bring it in exchange favorable terms and conditions. Its reason was a resolve to avoid reaching any agreement with the union.
28
In those narrow and specialized circumstances, I see no answer to the power of the Board in its discretion to impose the checkoff as 'affirmative action' necessary to remedy the flagrant refusal of the employer to bargain in good faith.
29
The case is rare, if not unique, and will seldom arise. I realize that any principle once announced may in time gain a momentum not warranted by the exigencies of its creation. But once there is any business consideration that leads to a denial of a demand or any consideration of bargaining strategy that explains the refusal, the Board has no power to act. Its power is narrowly restricted to the clear case where the refusal is aimed solely at avoidance of any agreement. Such is the present case. Hence, with all respect for the strength of the opposed view, I dissent.
1
S.Rep.No.573, 74th Cong., 1st Sess., 12 (1935).
2
'Let me say that the bill requires no employer to sign any contract, to make any agreement, to reach any understanding with any employee or group of employees. * * *
'Nothing in this bill allows the Federal Government or any agency to fix wages, to regulate rates of pay, to limit hours of work, or to effect or govern and working condition in any establishment or place of employment.
'A crude illustration is this: The bill indicates the method and manner in which employees may organize, the method and manner of selecting their representatives or spokesmen, and leads them to the office door of their employer with the legal authority to negotiate for their fellow employees. The bill does not go beyond the office door. It leaves the discussion between the employer and the employee, and the agreements which they may or may not make, voluntary and with that secredness and solemnity to a voluntary agreement with which both parties to an agreement should be enshrouded.' Remarks of Senator Walsh, 79 Cong.Rec. 7659; see also 79 Cong.Rec. 9682, 9711.
3
H.R.Rep.No.245, 80th Cong., 1st Sess., 19—20 (1947).
4
29 U.S.C. § 158(d) (emphasis added).
5
'If * * * the Board shall be of the opinion that any person * * * has engaged in or is engaging in any * * * unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action * * * as will effectuate the policies of (the Act).' 29 U.S.C. § 160(c).
6
For example, the employer is not free to choose any employee representative he wants, and the representative designated by the majority of the employees represents the minority as well. The Act itself prohibits certain contractual terms relating to refusals to deal in the goods of others, 29 U.S.C. § 158(e). Various practices in enforcing the Act may to some extent limit freedom to contract as the parties desire. See generally Wellington, Freedom of Contract and the Collective Bargaining Agreement, 112 U.Pa.L.Rev. 467 (1964).
| 67
|
397 U.S. 159
90 S.Ct. 838
25 L.Ed.2d 192
ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS, INC., et al., Petitioners,v.William B. CAMP, Comptroller of the Currency of the United States, et al. Clemon BARLOW et al., Petitioners, v. B. L. COLLINS, etc., et al.
Nos. 85, 249.
Supreme Court of the United States
March 3, 1970
Harold Edgar, New York City, for petitioners, pro hac vice, by special leave of Court.
Peter L. Strauss, Washington, D.C., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The question to be decided in this case is whether tenant farmers eligible for payments under the upland cotton program enacted as part of the Food and Agriculture Act of 1965, 79 Stat. 1194, 7 U.S.C. § 1444(d) (1964 ed., Supp. IV), have standing to challenge the validity of a certain amended regulation promulgated by the respondent Secretary of Agriculture in 1966.
2
The upland cotton program incorporates a 1938 statute, § 8(g) of the Soil Conservation and Demestic Allotment Act, as amended, 52 Stat. 35 and 205, 16 U.S.C. § 590h(g), thereby permitting participants in the program to assign payments only 'as security for cash or advances to finance making a crop.'1 The regulation of the respondent Secretary of Agriculture in effect until 1966 defined 'making a crop' to exclude assignments to secure 'the payment of the whole or any part of a cash * * * rent for a farm.' 20 Fed.Reg. 6512 (1955).2 Following passage of the 1965 Act, however, and before any payments were made under it, the Secretary deleted the exclusion and amended the regulation expressly to define 'making a crop' to include assignments to secure 'the payment of cash rent for land used (for planting, cultivating, or harvesting.)' 31 Fed.Reg. 2815 (1966).3
3
Petitioners, cash-rent tenant farmers suing on behalf of themselves and other farmers similarly situated, filed this action in the District Court for the Middle District of Alabama. They sought a declaratory judgment that the amended regulation is invalid and unauthorized by statute, and an injunction prohibiting the respondent federal officials from permitting assignments pursuant to the amended regulation.4 Their complaint alleged that the petitioners are suffering irreparable injury under the amended regulation because it provides their landlord 'with the opportunity to demand that (they) and all those similarly situated assigned the (upland cotton program) benefits in advance as a condition to obtaining a lease to work the land.'5 As a result, the complaint stated, the tenants are required to obtain financing of all their other farm needs—groceries, clothing, tools, and the like—from the landlord as well, since prior to harvesting the crop they lack cash and any source of credit other than the landlord. He, in turn, the complaint alleges, levies such high prices and rates of interest on these supplies that the tenants' crop profits are consumed each year in debt payments. Petitioners contend that they can attain a 'modest measure of economic independence' if they are able to use their 'advance subsidy payments * * * (to) form cooperatives to buy (supplies) at wholesale and reasonable prices in lieu of the excessive prices demanded by (the landlord) of * * * captive consumers with no funds to purchase elsewhere.' Thus, petitioners allege that they suffer injury in fact from the operation of the amended regulation.
4
The District Court, in an unreported opinion, held that the petitioners 'lack standing to maintain this action against these (respondent) governmental officials,' because the latter 'have not taken any action which directly invades any legally protected interest of the plaintiffs.' The Court of Appeals for the Fifth Circuit affirmed, one judge dissenting. 398 F.2d 398. It held that petitioners lacked standing not only because they alleged no invasion of a legally protected interest but also because petitioners 'have not shown us, nor have we found, any provision of the Food and Agriculture Act of 1965 which either expressly or impliedly gives (petitioners) standing to challenge this administrative regulation or gives the Courts authority to review such administrative action.' Id., at 402. We granted certiorari. 395 U.S. 958, 89 S.Ct. 2108, 23 L.Ed.2d 744.
5
Our decision in Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184, leads us to reverse here.
6
First, there is no doubt that in the context of this litigation the tenant farmers, petitioners here, have the personal stake and interest that impart the concrete adverseness required by Article III.
7
Second, the tenant farmers are clearly within the zone of interests protected by the Act.
8
Implicit in the statutory provisions and their legislative history is a congressional intent that the Secretary protect the interests of tenant farmers. Both of the relevant statutes expressly enjoin the Secretary to do so. The Food and Agriculture Act of 1965 states that '(t)he Secretary shall provide adequate safeguards to protect the interests of tenants * * *.' 79 Stat. 1196, 7 U.S.C. § 1444(d)(10) (1964 ed., Supp. IV).6 Title 7 U.S.C. § 1444(d)(13) (1964 ed., Supp. IV), as noted earlier, incorporates by reference § 8(g), as amended, 52 Stat. 35 and 205, 16 U.S.C. § 590h(g). Section 8(b) of that Act, in turn, provides that 'the Secretary shall, as far as practicable, protect the interest of tenants * * *.' 52 Stat. 32, 16 U.S.C. § 590h(b). The legislative history of the 'making a crop' provision, though sparse, similarly indicates a congressional intent to benefit the tenants.7 They are persons 'aggrieved by agency action within the meaning of a relevant statute' as those words are used in 5 U.S.C. § 702 (1964 ed., Supp. IV).
9
Third, judicial review of the Secretary's action is not precluded. The Court of Appeals rested its holding on the view that no provision of the Food and Agriculture Act of 1965 'expressly or impliedly * * * gives the Courts authority to review such administrative action.' 398 F.2d, at 402. Whether agency action is reviewable often poses difficult questions of congressional intent; and the Court must decide if Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion.
10
The Administrative Procedure Act, 5 U.S.C. § 701(a) (1964 ed., Supp. IV), allows judicial review of agency action except where '(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.' The amended regulation here under challenge was promulgated under 16 U.S.C. § 590d(3) which authorizes the Secretary to 'prescribe such regulations, as he may deem proper to carry out the provisions of this chapter.' Plainly this provision does not expressly preclude judicial review, nor does any other provision in either the 1938 or 1965 Act. Nor does the authority to promulgate such regulations 'as he may deem proper' in § 590d(3) constitute a commitment of the task of defining 'making a crop' entirely to the discretionary judgment of the Executive Branch without the intervention of the courts. On the contrary, since the only or principal dispute relates to the meaning of the statutory term, the controversy must ultimately be resolved, not on the basis of matters within the special competence of the Secretary, but by judicial application of canons of statutory construction. See Texas Gas Transmission Corp. v. Shell Oil Co., 363 U.S. 263, 268—270, 80 S.Ct. 1122, 1126—1127, 4 L.Ed.2d 1208. 'The rule of the courts should, in particular, be viewed hospitably where * * * the question sought to be reviewed does not significantly engage the agency's expertise. '(W)here the only or principal dispute relates to the meaning of the statutory term' * * * (the controversy) presents issues on which courts, and not (administrators), are relatively more expert.' Hardin v. Kentucky Utilities Co., 390 U.S. 1, 14, 88 S.Ct. 651, 658—659, 19 L.Ed.2d 787 (Harlan, J., dissenting). Therefore the permissive term 'as he may deem proper,' by itself, is not to be read as a congressional command which precludes a judicial determination of the correct application of the governing canons.
11
The question then becomes whether nonreviewability can fairly be inferred. As we said in Data Processing Service, preclusion of judicial review of administrative action adjudicating private rights is not lightly to be inferred. See Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210; Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503; Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733; American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90. Indeed, judicial review of such administrative action is the rule, and nonreviewability an exception which must be demonstrated. In Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681, we held that 'judicial review of a final agency action by an aggrieved person will not be cut of unless there is persuasive reason to believe that such was the purpose of Congress.' A clear command of the statute will preclude review; and such a command of the statute may be inferred from its purpose. Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61. It is, however, 'only upon a showing of 'clear and convincing evidence' of a contrary legislative intent' that the courts should restrict access to judicial review. Abbott Laboratories v. Gardner, supra, 387 U.S. at 141, 87 S.Ct. at 1511. The right of judicial review is ordinarily inferred where congressional intent to protect the interests of the class of which the plaintiff is a member can be found; in such cases, unless members of the protected class may have judicial review the statutory objectives might not be realized. See the Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667; Hardin v. Kentucky Utilities, supra.
12
We hold that the statutory scheme at issue here is to be read as evincing a congressional intent that petitioners may have judicial review of the Secretary's action.
13
The judgments of the Court of Appeals and of the District Court are vacated and the case is remanded to the District Court for a hearing on the merits.
14
It is so ordered.
15
Judgments vacated and case remanded.
16
Mr. Justice BRENNAN, with whom Mr. Justice WHITE joins, concurring and dissenting.
17
I concur in the result in both cases but dissent from the Court's treatment of the question of standing to challenge agency action.
18
The Court's approach to standing, set out in Data Processing, has two steps: (1) since 'the framework of Article III * * * restricts judicial power to 'cases' and 'controversies," the first step is to determine 'whether the plaintiff alleges that the challenged action has caused him injury in fact'; (2) if injury in fact is alleged, the relevant statute or constitutional provision is then examined to determine 'whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'
19
My view is that the inquiry in the Court's first step is the only one that need be made to determine standing. I had thought we discarded the notion of any additional requirement when we discussed standing solely in terms of its constitutional content in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). By requiring a second, nonconstitutional step, the Court comes very close to perpetuating the discredited requirement that conditioned standing on a showing by the plaintiff that the challenged governmental action invaded one of his legally protected interests.1 Barlow is a typical illustration of the harm that resulted from that requirement. The only substantial issue in that case goes to the merits: does the statutory language 'making a crop' create a legally protected interest for tenant farmers in the form of a prohibition against the assignment of their federal benefits to secure cash rent? By confusing the merits with the plaintiffs' standing to challenge the Secretary's action, both the District Court and the Court of Appeals denied the farmers the focused and careful decision on the merits to which they are clearly entitled. Although this Court properly reverses the Court of Appeals on that account, it encourages more Barlow decisions by engrafting its wholly unnecessary and inappropriate second step upon the constitutional requirement for standing.
20
Before the plaintiff is allowed to argue the merits, it is true that a canvass of relevant statutory materials must be made in cases challenging agency action. But the canvass is made, not to determine standing, but to determine an aspect of reviewability, that is, whether Congress meant to deny or to allow judicial review of the agency action at the instance of the plaintiff.2 The Court in the present cases examines the statutory materials for just this purpose but only after making the same examination during the second step of its standing inquiry. Thus in Data Processing the Court determines that the petitioners have standing because they alleged injury in fact and because '§ 4 (of the Bank Service Corporation Act of 1962) arguably brings a competitor within the zone of interests protected by it.' The Court then determines that the Comptroller's action is reviewable at the instance of the plaintiffs because '(b)oth (the Bank Service Corporation Act and the National Bank Act) are clearly 'relevant' statutes within the meaning of (the Administrative Procedure Act, 5 U.S.C. § 702 (1964 ed., Supp. IV)). The Acts do not in terms protect a specified group. But their general policy is apparent; and those whose interests are directly affected by a broad or narrow interpretation of the Acts are easily identifiable. It is clear that petitioners, as competitiors of national banks that are engaging in data processing services, are within that class of 'aggrieved' persons who, under § 702, are entitled to judicial review of 'agency action." Again in Barlow, the plaintiff tenant farmers are found to have standing because they alleged injury in fact and because 'tenant farmers are * * * within the zone of interests protected by the Act.' Examination of the same statutory materials subsequently leads the Court to the conclusion that the tenant farmers are entitled to judicial review of the Secretary's action because 'the statutory scheme * * * is to be read as evincing a congressional intent that petitioners may have judicial review of the Secretary's action.'
21
I submit that in making such examination of statutory materials an element in the determination of standing, the Court not only performs a useless and unnecessary exercise but also encourages badly reasoned decisions, which may well deny justice in this complex field. When agency action is challenged, standing, reviewability, and the merits pose discrete, and often complicated, issues which can best be resolved by recognizing and treating them as such.
22
* STANDING
23
Although Flast v. Cohen was not a case challenging agency action, its determination of the basis for standing should resolve that question for all cases. We there confirmed what we said in Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), that the 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult * * * questions.' 'In other words,' we said in Flast, 'when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue' and not whether the controversy is otherwise justiciable,3 or whether, on the merits, the plaintiff has a legally protected interest that the defendant's action invaded. 392 U.S., at 99—100, 88 S.Ct. 1942, 1952—1953, 20 L.Ed.2d 947. The objectives of the Article III standing requirement are simple: the avoidance of any use of a 'federal court as a forum (for the airing of) generalized grievances about the conduct of government,' and the creation of a judicial context in which 'the questions will be framed with the necessary specificity, * * * the issues * * * contested with the necessary adverseness and * * * the litigation * * * pursued with the necessary vigor to assure that the * * * challenge will be made in a form traditionally thought to be capable of judicial resolution.' Id., at 106, 88 S.Ct. at 1955—1956. Thus, as we hold in Flast, 'the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.' Id., at 101, 88 S.Ct. at 1953.4 See also Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 83—84, 78 S.Ct. 1063, 1066 1068, 2 L.Ed.2d 1174 (1958).
24
In light of Flast, standing exists when the plaintiff alleges, as the plaintiffs in each of these cases alleged, that the challenged action has caused him injury in fact, economic or otherwise.5 He thus shows that he has the requisite 'personal stake in the outcome' of his suit. Baker v. Carr, supra, 369 U.S. at 204, 82 S.Ct. at 703, 7 L.Ed.2d 663. We may reasonably expect that a person so harmed will, as best he can, frame the relevant questions with specificity, contest the issues with the necessary adverseness, and pursue the litigation vigorously.6 Recognition of his standing to litigate is then consistent with the Constitution, and no further inquiry is pertinent to its existence.
II
REVIEWABILITY
25
When the legality of administrative action is at issue, standing alone will not entitle the plaintiff to a decision on the merits. Pertinent statutory language, legislative history, and public policy considerations must be examined to determine whether Congress precluded all judicial review, and, if not, whether Congress nevertheless foreclosed review to the class to which the plaintiff belongs. Under the Administrative Procedure Act (APA), 'statutes (may) preclude judicial review' or 'agency action (may be) committed to agency discretion by law.' 5 U.S.C. § 701(a) (1964 ed., Supp. IV). In either case, the plaintiff is out of court, not because he has no standing to enter, but because Congress has stripped the judiciary of authority to review agency action. Review may be totally foreclosed, as in Schilling v. Rogers, 363 U.S. 666, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960), or, if permitted, it may nonetheless be denied to the plaintiff's class. But the governing principle laid down in Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1510—1511, 18 L.Ed.2d 681 (1967), is that 'judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.'
26
The APA provides that '(a) person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.' 5 U.S.C. § 702 (1964 ed., Supp. IV). Congressional intent that a particular plaintiff have review may be found either in express statutory language granting it to the plaintiff's class,7 or, in the absence of such express language, in statutory indicia from which a right to review may be inferred.8 Where, as in the instant cases, there is no express grant of review, reviewability has ordinarily been inferred from evidence that Congress intended the plaintiff's class to be a beneficiary of the statute under which the plaintiff raises his claim. See, for example, the Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (C.A.2d Cir. 1968). In light of Abbott Laboratories, slight indicia that the plaintiff's class is a beneficiary will suffice to support the inference.9
III
THE MERITS
27
If it is determined that a plaintiff who alleged injury in fact is entitled to judicial review, inquiry proceeds to the merits—to whether the specific legal interest claimed by the plaintiff is protected by the statute and to whether the protested agency action invaded that interest.10 It is true, of course, that matters relevant to the merits will already have been touched tangentially in the determination of standing and, in some cases, in the determination of reviewability. The aspect of the merits touched in establishing standing is the identification of injury in fact, the existence of which the plaintiff must prove. The merits are also touched in establishing reviewability in cases where the plaintiff's right to review must be inferred from evidence that his class is a statutory beneficiary. The same statutory indicia that afford the plaintiff a right to review also bear on the merits, because they provide evidence that the statute protects his class, and thus that he is entitled to relief if he can show that the challenged agency action violated the statute. Evidence that the plaintiff's class is a statutory beneficiary, however, need not be as strong for the purpose of obtaining review as for the purpose of establishing the plaintiff's claim on the merits. Under Abbott Laboratories, slight beneficiary indicia will suffice to establish his right to have review and thus to reach the merits.
IV
28
To reiterate, in my view alleged injury in fact, reviewability, and the merits pose questions that are largely distinct from one another, each governed by its own considerations. To fail to isolate and treat each inquiry independently of the other two, so far as possible, is to risk obscuring what is at issue in a given case, and thus to risk uninformed, poorly reasoned decisions that may result in injustice. Too often these various questions have been merged into one confused inquiry, lumped under the general rubric of 'standing.' The books are full of opinions that dismiss a plaintiff for lack of 'standing' when dismissal, if proper at all, actually rested either upon the plaintiff's failure to prove on the merits the existence of the legally protected interest that he claimed,11 or on his failure to prove that the challenged agency action was reviewable at his instance.12
29
The risk of ambiguity and injustice can be minimized by cleanly severing, so far as possible, the inquiries into reviewability and the merits from the determination of standing. Today's decisions, however, will only compound present confusion and breed even more litigation over standing. In the first place, the Court's formulation of its non-constitutional element of standing is obscure. What precisely must a plaintiff do to establish that 'the interest sought to be protected * * * is arguably within the zone of interests to be protected or regulated by the statute'? How specific an 'interest' must he advance? Will a broad, general claim, such as competitive interest, suffice, or must he identify a specific legally protected interest? When, too, is his interest 'arguably' within the appropriate 'zone'? Does a mere allegation that it falls there suffice? If more than an allegation is required, is the plaintiff required to argue the merits? And what is the distinction between a 'protected' and a 'regulated' interest? Is it possible that a plaintiff may challenge agency action under a statute that unquestionably regulates the interest at stake, but that expressly excludes the plaintiff's class from among the statutory beneficiaries?
30
In the second place, though the Court insists that its nonconstitutional standing inquiry does not involve a determination of the merits, I have grave misgivings on this score. The formulation of the inquiry most certainly bears a disquieting similarity to the erroneous notion that a plaintiff has no standing unless he can establish the existence of a legally protected interest. Finally, assuming that the inquiry does not, in fact, focus on the merits, then surely it serves only to determine whether the challenged agency action is reviewable at the instance of the plaintiff in cases where there is no express statutory grant of review to members of his class.13 And, if this is so, it has no place in the determination of standing. In terms of treating related questions with one another, this inquiry is best made in the reviewability context. The Constitution requires for standing only that the plaintiff allege that actual harm resulted to him from the agency action. Investigation to determine whether the constitutional requirement has been met has nothing in common with the inquiry into statutory language, legislative history, and public policy that must be made to ascertain whether Congress has precluded or limited judicial review.14 More fundamentally, an approach that treats separately the distinct issues of standing, reviewability, and the merits, and decides each on the basis of its own criteria, assures that these often complex questions will be squarely faced, thus contributing to better reasoned decisions and to greater confidence that justice has in fact been done. The Court's approach does too little to guard against the possibility that judges will use standing to slam the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits. The Court's approach must trouble all concerned with the function of the judicial process in today's world. As my Brother Douglas has said: 'The judiciary is an indispensable part of the operation of our federal system. With the growing complexities of government it is often the one and only place where effective relief can be obtained. * * * (W)here wrongs to individuals are done * * * it is abdication for courts to close their doors.' Flast v. Cohen, supra, 392 U.S. at 111, 88 S.Ct. at 1958 (concurring opinion).
1
by 7 U.S.C. § 1444(d)(5) (1964 ed., Supp. IV) to pay a farmer in advance of the growing season up to 50% of the estimated benefits due him. Section 1444(d)(13) (1964 ed., Supp. IV) authorizes the farmer to assign such benefits subject to the limitations of § 8(g) added by the 1938 Act, 16 U.S.C. § 590h(g). Section 8(g) as enacted in 1938 and as it read in 1965 established an exception to the general prohibition against assignment of federal monies in the Anti-Assignment Act, 31 U.S.C § 203. Section 8(g) provided:
'A payment which may be made to a farmer under this section, may be assigned, without discount, by him in writing as security for cash or advances to finance making a crop. Such assignment shall be signed by the farmer and witnessed by a member of the county or other local committee * * *. Such assignment shall include the statement that the assignment is not made to pay or secure any preexisting indebtedness. This provision shall not authorize any suit against or impose any liability upon the Secretary * * * if payment to the farmer is made without regard to the existence of any such assignment.' 52 Stat. 35 and 205, 16 U.S.C. § 590h(g) (emphasis added).
Section 8(g) was amended by 80 Stat. 1167 (1966) to permit assignments not only to finance 'making a crop' but also to fund 'handling or marketing an agricultural commodity, or performing a conservation practice.' 16 U.S.C. § 590h(g) (1964 ed., Supp. IV).
2
20 Fed.Reg. 6512 (1955) provided:
'Payment may be assigned to finance making a crop. A payment which may be made to a farmer * * * under section 8 of the Soil Conservation and Domestic Allotment Act, as amended, may be assigned only as security for cash or advances to finance making a crop for the current crop year. To finance making a crop means (a) to finance the plainting, cultivating, or harvesting of a crop, including the purchase of equipment required therefor; (b) to provide food, clothing, and other necessities required by the assignor or persons dependent upon the assignor; or (c) to finance the carrying out of soil or water conservation practices. Nothing contained herein shall be construed to authorize an assignment given to secure the payment of the whole or any part of the purchase price of a farm or the payment of the whole or any part of a cash or fixed commodity rent for a farm.'
3
32 Fed.Reg. 14921 (1967), 7 CFR § 709.3 (1969) now provides:
'Purposes for which a payment may be assigned.
'(a) A payment which may be made to a producer under any program to which this part is applicable may be assigned only as security for cash or advances to finance making a crop, handling or marketing an agricultural commodity, or performing a conservation practice, for the current crop year. No assignment may be made to secure or pay any preexisting indebtedness of any nature whatsoever.
'(b) To finance making a crop means (1) to finance the planting, cultivating, or harvesting of a crop, including the purchase of equipment required therefor and the payment of cash rent for land used therefor, or (2) to provide food, clothing, and other necessities required by the producer or persons dependent upon him.
'(c) Nothing contained herein shall be construed to authorize an assignment given to secure the payment of the whole or any part of the purchase price of a farm or the payment of the whole or any part of a fixed commodity rent for a farm.'
4
The respondents, in addition to the Secretary of Agriculture, are the State Executive Director of the Agricultural Stabilization and Conservation Service in Alabama, and the administrator of that Service in the U.S. Department of Agriculture. The complaint also included counts against petitioners' landlord alleging that he acted improperly to deprive them of their right to receive subsidy payments, and, further, that some of the petitioners had been illegally evicted because of their participation in litigation with respect to the cotton program, and, in the case of one petitioner, because of his candidacy for Alabama Agricultural Stabilization and Conservation Service county committeeman. The District Court denied the landlord's motion to dismiss these counts and transferred them for trial to the Southern District of Alabama. That ruling is not before us.
5
The complaint stated that some of the petitioners 'were denied the right to work the land' when they refused to execute assignments to their landlord. The complaint also alleged that '(p)laintiffs have been tenant farmers on this land from eleven to sixty-one years * * * and (two of them) have been on this land all their lives.'
6
In connection with the amended regulations, the Secretary issued under § 1444(d)(10) various rules designed to ensure that tenants receive their fair share of the federal payments. 31 Fed.Reg. 4887—4888; 7 CFR §§ 722.817, 794.3.
7
See the remarks of Representative Fulmer, 82 Cong.Rec. 844 (1937), and of Senator Adams, id., at 1756. The fact that assignments could be made at all indicated a congressional concern for the farmers' welfare, in light of the general statutory prohibition on assignment of federal claims embodied in the Anti-Assignment Act, 31 U.S.C. § 203. This concern was noted in a letter from the Secretary of Agriculture to the President of the Senate in January 1952, in which the Secretary stated that § 8(g) 'was enacted for the purpose of creating additional credit to farmers to assist them in financing farming operations.' S.Rep.No. 1305, 82d Cong., 2d Sess., 3; 1952 U.S. Code Cong. & Admin. News, p. 1494.
1
Cf. the language in Associated Industries v. Ickes, 134 F.2d 694, 700 (C.A.2d Cir. 1943): 'In a suit in a federal court by a citizen against a government officer, complaining of alleged past * * * unlawful conduct by the defendant, there is no justiciable 'controversy,' * * * unless the citizen shows that such conduct * * * invades * * * a private substantive legally protected interest of the plaintiff citizen; such invaded interest must be either of a 'recognized' character, at 'common law' or a substantive private legally protected interest created by statute (or Constitution).'
2
Reviewability has often been treated as if it involved a single issue: whether agency action is conclusive and beyond judicial challenge by anyone. In reality, however, reviewability is equally concerned with a second issue: whether the particular plaintiff then requesting review may have it. See the Administrative Procedure Act, 5 U.S.C. §§ 701(a) and 702 (1964 ed., Supp. IV). Both questions directly concern the extent to which persons harmed by agency action may challenge its legality.
3
Other elements of justiciability are, for instance, ripeness, e.g., Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), mootness, e.g., United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), and the policy against friendly or collusive suits, e.g., Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 12 S.Ct. 400, 36 L.Ed. 176 (1892); United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413 (1943). 'Justiciability' is also the term of art used to refer to the constitutional necessity that courts not deal with certain issues lest they 'intrude into areas committed to the other branches of government.' Flast, supra, 392 U.S. at 95, 88 S.Ct. at 1950. The political-question doctrine has its analogue in the sphere of administrative law in the concept of non-reviewability. See e.g., Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948); Schilling v. Rogers, 363 U.S. 666, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960). And, of course, federal courts may not decide questions over which they lack jurisdiction, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 305, 82 S.Ct. 1502, 1512—1513, 8 L.Ed.2d 510 (1962); American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17—18, 71 S.Ct. 534, 541—542, 95 L.Ed. 702, 19 A.L.R.2d 738 (1951). Thus, on many grounds other than an absence of standing, a court may dismiss a lawsuit without proceeding to the merits to determine whether the plaintiff presents a claim upon which relief may be granted, and, if so, whether he has borne his burden of proof.
4
It is true, of course, that in certain types of litigation parties may properly request judicial resolution of issues not 'presented in an adversary context.' See Davis, Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601, 607 (1968). But in most instances, among them private challenges to agency action, the plaintiff must establish his adverseness to obtain standing.
5
Thus, for purposes of standing, it is sufficient that a plaintiff allege damnum absque injuria, that is, he has only to allege that he has suffered harm as a result of the defendant's action. Injury in fact has generally been economic in nature, but it need not be. See, e.g., Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (C.A.2d Cir. 1965); Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994 (1966). The more 'distinctive or discriminating' the harm alleged and the more clearly it is linked to the defendant's action, the more easily a plaintiff may meet the constitutional test. See L. Jaffe, Judicial Control of Administrative Action 501 (1965). The plaintiffs in the present cases alleged distinctive and discriminating harm, obviously linked to the agency action. Thus, I do not consider what must be alleged to satisfy the standing requirement by parties who have sustained no special harm themselves but sue rather as taxpayers or citizens to vindicate the interests of the general public.
6
Past decisions of this Court indicate that a person who has suffered injury in fact meets the relevant Article III requirement. See, for example, FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 476—477, 60 S.Ct. 693, 698—699, 84 L.Ed. 869 (1940); Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942). In these decisions the Court permitted parties economically harmed by administrative action to challenge it although no legal interest of the parties was found to have been invaded by the action. The Court stated in Scripps-Howard Radio, supra, at 14, 62 S.Ct. at 882, that '(t)he Communications Act of 1934 did not create new private rights. The purpose of the Act was to protect the public interest in communications. By § 402(b)(2) Congress gave the right of appeal to persons 'aggrieved or whose interests are adversely affected' by Commission action.' Accordingly, since Congress cannot expand the Article III jurisdiction of federal courts, Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911), if follows that injury in fact renders a party adverse under the the Constitution. Cf. K. Davis, 3 Administrative Law Treatise § 22.02, at 211 (1958); Jaffe, supra, n. 5, at 336.
7
See, e.g., the Securities Act of 1933, which provides that '(a)ny person aggrieved by an order of the Commission may obtain a review,' 15 U.S.C. § 77i(a), and the Federal Power Act, which grants review to '(a)ny party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding * * *.' 16 U.S.C. § 825l(b).
8
Section 702 also provides that '(a) person suffering legal wrong because of agency action * * * is entitled to judicial review thereof.' Though a person suffering such wrong is clearly entitled to review, he need not show the existence of a legally protected interest to establish either his standing or his right to review. The existence of that interest is a question of the merits.
9
This is particularly the case when the plaintiff is the only party likely to challenge the action. Refusal to allow him review would, in effect, commit the action wholly to agency discretion, thus risking frustration of the statutory objectives.
10
If the alleged legal interest is clearly frivolous, or proof to substantiate the alleged injury in fact is wholly lacking, the plaintiff can be hastened from court by summary judgment.
11
E.g., Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939); Association of Data Processing Service Organizations, Inc. v. Camp, 406 F.2d 837, 843 (C.A.8th Cir. 1969); Barlow v. Collins, 398 F.2d 398, 401 (C.A.5th Cir. 1968).
12
E.g., Association of Data Processing Service Organizations, Inc. v. Camp, supra, 406 F.2d at 843; Barlow v. Collins, supra, 398 F.2d at 401—402; Harrison-Halsted Community Group, Inc. v. Housing & Home Finance Agency, 310 F.2d 99 (C.A.7th Cir. 1962).
13
In cases involving statutes that do expressly grant the plaintiff a right to review, there would be no need for the Court's second standing inquiry—unless it serves to provide a preview of the merits.
14
I would apply my view that all examination of statutory language and congressional intent, as they bear on the right of the plaintiff to challenge agency action, should be made only in the reviewability context even if the pertinent statutory material speaks of 'standing' or 'statutory aid to standing.' Statutory materials, of course, would be properly consulted in the determination of standing if they purport to define what constitutes injury in fact.
| 89
|
397 U.S. 179
90 S.Ct. 850
25 L.Ed.2d 207
UNITED STATES, Petitioner,v.W. M. WEBB, INC., et al.
No. 63.
Argued Nov. 17, 1969.
Decided March 3, 1970.
Solicitor General Erwin N. Griswold for petitioner.
Joseph J. Lyman, Washington, D.C., for repondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The respondents in this case, which was consolidated below, own boats that are used in commercial fishing in the Atlantic Ocean and the Gulf of Mexico. There fishing is carried out through contractual arrangements, shaped by established custom, with boat captains, who man the boats and manage their day-to-day operation. The question before the Court is whether the captains and crewmen of the boats are the 'employees' of the respondents within the provisions of the Federal Insurance Contributions Act (FICA)1 and the Federal Unemployment Tax Act (FUTA),2 which impose taxes on employers to finance government benefits for employees.
2
* During the taxable periods involved here,3 the respondents' vessels were engaged in fishing for menhaden, a non-edible fish that is processed and used for various industrial purposes. The owner of each vessel equipped the vessel and secured the services of an experienced fisherman to be captain. The captain then assembled a crew. The captain customarily served on the same vessel for a full season, and occasionally for several consecutive seasons, although the oral arrangements between owners and captains permitted either to terminate the relationship at the end of any fishing trip. The fishing trips lasted from one to several days.
3
The vessels were operated from docking facilities owned by fish-processing plants, and discharged their catch at these plants upon the completion of each trip. The plants paid respondents for the fish according to the volume of the catch, and respondents paid the captains and crews on the same basis, following terms that had been negotiated in advance. Neither captains nor crews were guaranteed any earnings if they failed to catch fish. While respondents determined the plant to which the vessels would report and generally where and when the fishing would take place, the captains managed the details of the operation of the boats and the manner of fishing.
4
Respondents filed tax returns as employers under the FICA and the FUTA, and paid the employer's share of the taxes due on the earnings of the captains and crews. After making the appropriate claims for refunds, they sued for refunds in the District Court for the Eastern District of Louisiana. The District Court, sitting without a jury, determined after trial that the captains and crews were not respondents' employees for the purposes of these tax statutes. The trial court noted that both the FICA and the FUTA define 'employee' as any individual who has employee status under 'the usual common law rules' applicable to a determination of the master-servant relationship. It found 'without merit' the Government's contention 'that the common-law governing the relationship of the taxpayer and the fishermen in pursuing fishing ventures in the Gulf of Mexico and the Atlantic Ocean is the general maritime law.' 271 F.Supp. 249, 257 (1967). The court found further that the degree of control exercised by respondents over these fishing activities was not sufficient, under the common-law standards governing land-based occupations, to create the relationship of employer and employee between respondents and the captains and crews. Respondents were thus held entitled to their refunds.
5
On appeal, the Court of Appeals for the Fifth Circuit affirmed. It reviewed the facts and observed that 'it is clear that under maritime law the captain is the agent of the owner * * * and the crew hands are employees,' and that '(i)f we were free to apply maritime law as a test of the employer-employee relationship, we would reverse the decision of the district court.' 402 F.2d 956, 959 (1968).4 However, the Court of Appeals agreed with the District Court that the statutes' prescription of 'common law rules' barred application of maritime standards.
6
This conclusion conflicts with the approach of the Court of Claims in Cape Shore Fish Co. v. United States, 330 F.2d 961, 165 Ct.Cl. 630 (1964). In that decision the court found scallop fishermen, operating under arrangements similar to those here, to be employees of the shipowner for the purposes of these statutes. It reached this conclusion by applying to the facts the standards of maritime law. We granted certiorari in this case, 394 U.S. 996, 89 S.Ct. 1591, 22 L.Ed.2d 774 (1969), to resolve this conflict, and to clarify the application to maritime workers of these important federal statutes.
II
7
The parties agree that both the FICA and the FUTA impose taxes on employers measured by the compensation paid to employees, and that in terms of this case the two statutes define 'employee' identically. In the FICA 'employee' is defined to include 'any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee,' and the language of the FUTA is to the same effect.5 These definitions were not included in the original Social Security Act as it was adopted in 1935, which defined 'employee' merely by specifying that it 'includes an officer of a corporation,'6 but were added by amendment in 1948. We must consider the events that prompted the amendment.
8
In 1935 the draftsmen of the Social Security Act apparently thought it unnecessary to elucidate the meaning of 'employee' because they assumed that the term, as it was applied to varying factual situations, would be given the 'usual' meaning it bore at common law. See S.Rep.No.1255, 80th Cong., 2d Sess., 3—4 (1948). However, over the years of applying the Act to a myriad of work relationships, the lower federal courts developed somewhat varying approaches, certain courts relying more heavily on common-law precedents and others attempting to discern a special meaning for the term from the purposes of the legislation.7 In addition, the courts tended to look to local precedents to determine the common-law standards, producing different results for similar factual situations in various parts of the country.8 This divergence of views led this Court, in 1947, to render two decisions in an attempt to clarify the governing standards. United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757; Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947.
9
In Silk, the Court upheld the lower courts' determination that certain truck drivers were, under the circumstances, independent contractors rather than employees, but it upset a similar ruling with respect to a group of men who unloaded coal from railroad cars. In Bartels the Court, reversing the Court of Appeals, held that the members of certain dance bands were not employees of the owners of the dance halls at which they were engaged, despite contractual provisions characterizing them as employees. While the Court's opinions in these cases stressed many of the factors that had been important in common-law determinations of employee status, they also contained language that could be read to detach the question of statutory coverage from the common-law tests.9 The Court stated, in Bartels, that 'in the application of social legislation employees are those who as a matter of economic reality are dependent upon the business to which they render service.' 332 U.S., at 130, 67 S.Ct., at 1550.
10
Acting upon this language, the executive agencies set about replacing their original regulation, which had defined the employment relation in terms of the incidents of employment at common law,10 with a new regulation that would embody the test of 'economic reality.'11 However, the proposed new regulation never took effect. Within two months of its announcement, a resolution was introduced in both the House of Representatives and the Senate calling for 'a reassertion of congressional intent regarding the application of the act.' S.Rep.No. 1255, supra, at 7. This resolution, which was finally passed over the President's veto, added to the statutes the present definitions of 'employee.'12
11
The report of the Senate Finance Committee on the resolution makes clear a congressional purpose to disapprove the proposed regulation and to reaffirm that determinations of employee status were to be based on the traditional legal tests. The Committee seems to have thought that the Silk and Bartels decisions had applied traditional common-law standards, despite the language in the opinions suggesting a less constrictive approach. However, nothing that the Treasury Department claimed support in those decisions for its contemplated new departure, the Committee declared: 'But if it be contended that the Supreme Court has invented new law for determining an 'employee' under the social-security system in these cases, then the purpose of this resolution is to reestablish the usual common-law rules, realistically applied.' Id., at 2.
12
The causes of congressional dissatisfaction with the proposed regulation were twofold. As a fiscal matter, the Committee cited testimony that the new regulation would extend social security benefits to between 500,000 and 750,000 new workers, who had not been covered previously and had not contributed to the trust fund from which benefits would be paid, thus, endangering the integrity of the fund. More generally, the Committee was fearful of the uncertainty that would be created by the new regulation, and the discretion it would give to the executive agencies in determining the applicability of the statutes. The report stated:
13
'In a word, by unbounded and shifting criteria, (the proposed regulation) would confer in those administering the Social Security Act full discretion to include, or to exclude, from the coverage of the act any person whom they might decide to be, or might decide not to be, an 'employee'; and like discretion to fasten tax liabilities and the administrative duties and costs of compliance with the act upon any person whom they might decide to be an 'employer.'
14
'The proposed regulation discards the common-law rules for distinguishing the employer-employee relationship distilled from many decisions by many courts out of many insights of real situations, for a new rule of nebulous character.
15
'Under the proposed regulation an 'employee' is 'an individual in a service relationship who is dependent as a matter of economic reality upon the business to which he renders service and not upon his own business as an independent contractor.'
16
'The rule, obviously, will not serve to make the necessary distinctions. Who, in this whole world engaged in any sort of service relationship, is not dependent as a matter of economic reality on some other person? * * *
17
'(T)he proposed regulation concerns itself mainly, as was stated to your committee by a witness at the hearings: '* * * with making it abundantly clear that on virtually no state of facts may anyone be certain whether or not he has a tax liability until the Commissioner has made up his mind about it." Id., at 7, 10, 11.
18
The Committee stated that, in contrast to the proposed regulation, whose 'basic principle * * * is a dimensionless and amorphous abstraction,' the existing regulation was 'not devoid of uncertainty, but its basis is in established standards of law which frame and limit its application.' Id., at 12. The conclusions stated in the House Report were similar. H.R.Rep. No. 1319, 80th Cong., 2d Sess. (1948).13 By the resolution, Congress unequivocally tied the coverage of these tax provisions to the body of decisional law defining the employer-employee relationship in various occupations.
19
In none of the discussions of the 1948 resolution was there any discussion of maritime employees. The respondents argue that, by failing to make specific provision for the application of maritime law to seagoing occupations, Congress impliedly decreed that those occupations should be gauged by the standards of the 'common law' applicable to land-based activities. They rely in part on the fact that the phrase 'common law' is sometimes used in contradistinction to the 'maritime law' traditionally applied in courts of admiralty, and they also point to the fact that the Senate Report stressed the degree of the employer's control over the employee's work as central to the Committee's understanding of the common-law tests of employment. The Senate Report quoted with approval the then-existing regulation, substantially identical to the one now in effect,14 which stated:
20
'Every individual is an employee if the relationship between him and the person for whom he performs services is the legal relationship of employer and employee.
21
'Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done.' S.Rep. No. 1255, supra, at 3.
22
Respondents argue that this language indicates a congressional intent that, where the maritime nature of a vocation makes impracticable the degree of control generally exercised by land-based employers over their employees, the land-based standards must nevertheless be applied, with the result that no 'employment' exists for the purposes of those statutes.
III
23
We do not think Congress intended the anomalous result of having maritime activities subject to standards, for social security tax purposes, other than those that are relevant to seafaring enterprises. Such a result is not necessary to accomplish the dual concerns underlying the 1948 amendment. Application of maritime standards to determine the status of members of fishing ventures will not open brand new areas of social security coverage. To the contrary, the employee status of captains and crewmen engaged in fishing operations similar to these is supported by a Treasury Department interpretation, applying maritime standards, that was issued in 1940, immediately after maritime employees were first brought within the coverage of the Social Security Act by amendment in 1939. S.S.T. 387, 1940—1 Cum.Bull. 192; see Social Security Act Amendments of 1939, §§ 606, 614, 53 Stat. 1383, 1392, as amended, 26 U.S.C. §§ 3121(b), 3306(c). This ruling, which the Social Security Administration has accepted for purposes of paying benefits to claimants, had existed for eight years before Congress added the present definitions of 'employee' to the statutes. It was not mentioned at the time of the 1948 amendment. Since the ruling represented the accepted view of both the taxing and paying agencies, Congress could have had no concern that payment of benefits to maritime employees would constitute an uncompensated drain on the social security fund.15
24
More important, the chief concern behind the 1948 amendment avoiding the uncertainty of the proposed 'economic reality' test is wholly satisfied if seafaring work relationships are tested against the standards of maritime, rather than land-based, decisional law. Congress' fearfulness of the 'nebulous' nature of the proposed regulation indicates that it used the phrase 'usual common law rules' in a generic sense, to mean the standards developed by the courts through years of adjudication, rather than in a technical sense to mean those standards developed by 'common law' courts as opposed to courts of admiralty. Maritime law, the common law of seafaring men, provides an established network of rules and distinctions that are practically suited to the necessities of the sea, just as land-based decisional law provides a body of rules adapted to the various forms of domestic employment. The goal of minimizing uncertainty can be accomplished, in the maritime field, by resort to the 'usual' rules of maritime jurisprudence.16
25
This conclusion is not weakened by the emphasis given, both in the Senate Report and in the regulation, to the factor of control. Control is probably the most important factor under maritime law,17 just as it is under the tests of land-based employment. It may be true that, in most maritime relationships, the workers enjoy discretion that is unusually broad if measured by land-based standards—a discretion dictated by the seafaring nature of the activity. However, except where there is nearly total relinquishment of control through a bareboat, or demise, charter, the owner may nevertheless be considered, under maritime law, to have sufficient control to be charged with the duties of an employer. See, e.g., The Norland, 101 F.2d 967, 9 Alaska 471 (C.A.9th Cir. 1939); G. Gilmore & C. Black, The Law of Admiralty § 4—23 (1957). Congress' stress on the importance of control reflects the primacy of that factor in the rules governing the most common, land-based vocations,18 which were certainly foremost in the congressional mind at the time of the 1948 amendment. It does not preclude the application, in different areas, of decisional rules that vary in the precise degree of control that is required. Cf. Deecy Products Co. v. Welch, 124 F.2d 592, 598—599, 139 A.L.R. 916 (C.A.1st Cir. 1941); MuGuire v. United States, 349 F.2d 644 (C.A.9th Cir. 1965).19
26
The guidelines in the regulation also allow for such flexibility, as is attested by the existence, for nearly 30 years, of the Treasury ruling, S.S.T. 387, confirming the employee status of fishermen such as those involved here. Now, as in 1948, the regulation proceeds, after the language already quoted, to elaborate some of the factors other than control that may be important:
27
'The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services.' 26 CFR § 31.3121(d) 1(c)(2).20
28
It is clear that this brief sketch of relevant factors cannot be intended to provide a workable test, complete in itself, displacing the complex of common-law rules Congress so carefully tried to preserve. Rather, the regulation provides a summary of the principles of the common law, intended as an initial guide for the determination, required by the first sentence of the regulation, whether a relationship 'is the legal relationship of employer and employee.' The thrust of both statute and regulation is that the standards that are to govern in any field are those that the courts customarily apply to define this 'legal relationship.'21
29
We conclude that the Court of Appeals erred in declining to judge the status of the captains and crewmen against the standards of maritime law. Accordingly, the judgment is reversed, and the case is remanded to that court for proceedings consistent with this opinion.
30
It is so ordered.
31
Reversed and remanded.
1
26 U.S.C. § 3101 et seq.
2
26 U.S.C. § 3301 et seq.
3
The District Court found that the periods were, for different respondents, January 1, 1956, through December 31, 1956, and July 1, 1957, through December 1, 1958.
4
We are not called upon to, and do not, intimate any view on the correctness of the Court of Appeals' statement on this score.
5
The definitions provide:
'For purposes of (the FICA), the term 'employee' means—(1) any officer of a corporation; or (2) any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee; or (3) (any member of several specific occupations, not including fishing, when certain conditions are satisfied).' 26 U.S.C. § 3121(d).
'For purposes of (the FUTA), the term 'employee' includes an officer of a corporation, but such term does not include—(1) any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an independent contractor, or (2) any individual (except an officer of a corporation) who is not an employee under such common law rules.' 26 U.S.C. § 3306(i).
6
Social Security Act § 1101(a)(6), 49 Stat. 647. The language of § 1101(a) (6) was carried over to §§ 1426(c) and 1607(h) of the Internal Revenue Code of 1939, the predecessors of present §§ 3121(d) and 3306(i) of Title 26, respectively. See 53 Stat. 178, 188.
7
Compare, e.g., Jones v. Goodson, 121 F.2d 176 (C.A.10th Cir. 1941); Radio City Music Hall Corp. v. United States, 135 F.2d 715 (C.A.2d Cir. 1943); United States v. Mutual Trucking Co., 141 F.2d 655 (C.A.6th Cir. 1944); McGowan v. Lazeroff, 148 F.2d 512 (C.A.2d Cir. 1945); United States v. Wholesale Oil Co., 154 F.2d 745 (C.A.10th Cir. 1946), with United States v. Vogue, Inc., 145 F.2d 609 (C.A.4th Cir. 1944); United States v. Aberdeen Aerie, etc., 148 F.2d 655 (C.A.9th Cir. 1945); Grace v. Magruder, 80 U.S.App.D.C. 53, 148 F.2d 679 (1945).
8
See S.Rep.No.1255, supra, at 6.
9
In Silk, the Court said:
'As the federal social security legislation is an attack on recognized evils in our national economy, a constricted interpretation of the phrasing by the courts would not comport with its purpose. * * *
'* * * When (the problem of differentiating between employee and independent contractor) arose in the administration of the National Labor Relations Act, (29 U.S.C.A. § 151 et seq.), we pointed out that the legal standards to fix responsibility for acts of servants, employees or agents had not been reduced to such certainty that it could be said there was 'some simple, uniform and easily applicable test.' The word 'employee,' we said, was not there used as a word of art, and its content in its context was a federal problem to be construed 'in the light of the mischief to be corrected and the end to be attained.' We concluded that, since that end was the elimination of labor disputes and industrial strife, 'employees' included workers who were such as a matter of economic reality. * * * We rejected the test of the 'technical concepts pertinent to an employer's legal responsibility to third persons for acts of his servants.' * * * (National) Labor (Relations) Board v. Hearst Publications, 322 U.S. 111, 120, 123, 124, 128, 131, (64 S.Ct. 851, 88 L.Ed. 1170).
'Application of the social security legislation should follow the same rule that we applied to the National Labor Relations Act in the Hearst case.' 331 U.S., at 712—714, 67 S.Ct., at 1463.
10
1 Fed.Reg., pt. 2 at 1764 (1936), promulgated November 9, 1936 (Treasury Department); 2 Fed.Reg., Pt. 1, at 1276 (1937), promulgated July 20, 1937 (Social Security Board).
11
12 Fed.Reg. 7966 (1947).
12
H.J.Res. 296, 62 Stat. 438; see H.R.Doc.No. 711, 80th Cong., 2d Sess. (veto message of President Truman). This 1948 amendment put the definitions in both statutes in the negative form now found in 26 U.S.C. § 3306(i), see n. 5, supra. The Social Security Act Amendments of 1950 restyled the predecessor of § 3121(d), giving it the form now possessed by that provision, without changing the applicable principles except to extend coverage to specified classes of workers irrespective of their common-law status. § 205, 64 Stat. 536; see H.R.Rep.No. 2771, 81st Cong., 2d Sess., 104 (1950); cf. S.Rep.No.1669, 81st Cong., 2d Sess., 17—18 (1950); H.R.Rep.No.1300, 81st Cong., 1st Sess., 80 91, 189—207 (1949).
13
In a report published just two weeks before the enactment of the resolution (commenting on H.R. 6777, a bill that contained the same amendment ultimately accomplished by the resolution), the House Committee on Ways and Means stated: 'Our failure to act may be further construed as conferring upon the administrative agencies and the courts an unbridled license to say, at will, whether an individual is an employee or an independent contractor * * *.
'(T)he basic, controlling factor is whether the policy of the Congress shall be to cover as employees only those who are employees under the common-law rule, or to cover a broader class of individuals under some nebulous hypothesis with no bounds to its application.' H.R.Rep.No. 2168, 80th Cong., 2d Sess., 9 (1948).
14
26 CFR § 31.3121(d)—1—(c).
15
Subsequent amendments to the social security laws make it now even clearer that clasisfication of some maritime workers as employees will not threaten the social security fund. The Social Security Act Amendments of 1950 extended benefits coverage to the self-employed for the first time. 64 Stat. 502, 540; see H.R.Rep.No.1300, 81st Cong., 1st Sess., 9—10 (1949). Benefits for the self-employed are financed by taxes paid by them under the Self-Employment Contributions Act, 26 U.S.C. § 1401 et seq.; see H.R.Rep.No.1300, supra, at 135—145; S.Rep.No.1669, 81st Cong., 2d Sess., 153—166 (1950). Therefore, the captains and crewmen are eligible for social security benefits whether they are considered employees or self-employed.
16
A conclusion that maritime standards could not be applied might frustrate Congress' evident expectation that the FICA and FUTA legislation would apply to seamen, and specifically to fishermen. As noted above, the 1939 amendments extended the statutes to cover maritime employees. Additionally, 26 U.S.C. § 3121(b)(4) provides an exemption for service by aliens on foreign vessels, and § 3306(c)(17) exempts fishermen on vessels that do not exceed 10 tons in displacement. These provisions raise the inference that fishermen on larger vessels were expected to be covered, under the general 'common law rules' provision. However, if shipowners were relieved of the employers' tax liabilities unless their relationship with the captains and crews were of the sort that would constitute an employer-employee relationship in a land-based activity, application of the statutes to fishermen might be seriously limited.
17
See, e.g., Cape Shore Fish Co. v. United States, 330 F.2d 961, 965—968, 165 Ct.Cl. 630, 637—641 (1964); G. Gilmore & C. Black, The Law of Admiralty § 4—21 (1957).
18
See, e.g., Radio City Music Hall Corp. v. United States, 135 F.2d 715, 717—718 (C.A.2d Cir. 1943).
19
See H.R.Rep.No.2168, supra, n. 13, at 9—10:
'Ample flexibility is possible under (the common-law) rule to accommodate peculiar or unusual employment relationships so frequently found in our complex economic system.
'The common-law concept of master and servant, of course, is no more fixed and immutable than the common law itself. Hence it will produce in practice varying results under varying circumstances and in different jurisdictions. But such variations will not offend the common-law rule itself. * * *
'* * * There is nothing to fear from differences in the application of the common-law tests, but there is much to fear from the abandonment of recognized common-law principles in resolving such questions of fact. Such abandonment would simply amount to reliance upon no recognized body of legal principles.'
20
Other factors that may have significance are discussed in United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947); Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962); Kirkconnell v. United States, 347 F.2d 260, 171 Ct.Cl. 43 (1965); Illinois Tri-Seal Products, Inc. v. United States, 353 F.2d 216, 173 Ct.Cl. 499 (1965).
21
We find no support for a contrary conclusion in the fact that, shortly after the District Court's decision in this case, the Treasury Department unsuccessfully sought an amendment to § 3121(d)(3) defining 'employee' to include the captains and crews of commercial fishing vessels without regard to their status under the general definition in § 3121(d)(2), see n. 5, supra. See the bill that became the Social Security Amendments of 1967, H.R.12080, §§ 504(b), (1), (2) (as amended by the Senate); S.Rep.No.744, 90th Cong., 1st Sess., 203—205, 320—324 (1967); H.R.Rep.No.1030, 90th Cong., 1st Sess., 74 (1967) U.S.Code Cong. & Admin.News, p. 2834. (Conference Report deleting the amendment). That the Treasury also chose to proceed on the legislative front does not impair the argument put forth by the United States here, and Congress' failure to adopt the amendment is a dubious indication of the position of Congress in 1967 on the question before us, let alone the position of a different Congress in 1948. Cf. United States v. Price, 361 U.S. 304, 310—312, 80 S.Ct. 326, 330—331, 4 L.Ed.2d 334 (1960); United States v. Wise, 370 U.S. 405, 411, 82 S.Ct. 1354, 1358, 8 L.Ed.2d 590 (1962).
| 1112
|
397 U.S. 150
90 S.Ct. 827
25 L.Ed.2d 184
ASSOCIATION OF DATA PROCESSING SERVICE ORGANIZATIONS, INC., et al., Petitioners,v.William B. CAMP, Comptroller of the Currency of the United States, et al.
No. 85.
Argued Nov. 18, 1969.
Decided March 3, 1970.
Bert M. Gross, for petitioners.
Alan S. Rosenthal, Washington, D.C., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioners sell data processing services to businesses generally. In this suit they seek to challenge a ruling by respondent Comptroller of the Currency that, as an incident to their banking services, national banks, including respondent American National Bank & Trust Company, may make data processing services available to other banks and to bank customers. The District Court dismissed the complaint for lack of standing of petitioners to bring the suit. 279 F.Supp. 675. The Court of Appeals affirmed. 406 F.2d 837. The case is here on a petition for writ of certiorari which we granted. 395 U.S. 976, 89 S.Ct. 2128, 23 L.Ed.2d 764.
2
Generalizations about standing to sue are largely worthless as such. One generalization is, however, necessary and that is that the question of standing in the federal courts is to be considered in the framework of Article III which restricts judicial power to 'cases' and 'controversies.' As we recently stated in Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 '(I)n terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.' Flast was a taxpayer's suit. The present is a competitor's suit. And while the two have the same Article III starting point, they do not necessarily track one another.
3
The first question is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise. There can be no doubt but that petitioners have satisfied this test. The petitioners not only allege that competition by national banks in the business of providing data processing services might entail some future loss of profits for the petitioners, they also allege that respondent American National Bank & Trust Company was performing or preparing to perform such services for two customers for whom petitioner Data Systems, Inc., had previously agreed or negotiated to perform such services. The petitioners' suit was brought not only against the American National Bank & Trust Company, but also against the Comptroller of the Currency. The Comptroller was alleged to have caused petitioners injury in fact by his 1966 ruling which stated:
4
'Incidental to its banking services, a national bank may make available its data processing equipment or perform data processing services on such equipment for other banks and bank customers.' Comptroller's Manual for National Banks 3500 (October 15, 1966).
5
The Court of Appeals viewed the matter differently, stating:
6
'(A) plaintiff may challenge alleged illegal competition when as complainant it pursues (1) a legal interest by reason of public charter or contract, * * * (2) a legal interest by reason of statutory protection, * * * or (3) a 'public interest' in which Congress has recognized the need for review of administrative action and plaintiff is significantly involved to have standing to represent the public * * *.' 406 F.2d, at 842—843.1
7
Those tests were based on prior decisions of this Court, such as Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543, where private power companies sought to enjoin TVA from operating, claiming that the statutory plan under which it was created was unconstitutional. The Court denied the competitors' standing, holding that they did not have that status 'unless the right invaded is a legal right,—one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.' Id., at 137—138, 59 S.Ct. at 369.
8
The 'legal interest' test goes to the merits. The question of standing is different. It concerns, apart from the 'case' or 'controversy' test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Thus the Administrative Procedure Act grants standing to a person 'aggrieved by agency action within the meaning of a relevant statute.' 5 U.S.C. § 702 (1964 ed., Supp. IV). That interest, at times, may reflect 'aesthetic, conservational, and recreational' as well as economic values. Scenic Hudson Preservation Conference v. FCC, 2 Cir., 354 F.2d 608, 616; Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 334—340, 359 F.2d 994, 1000—1006. A person or a family may have a spiritual stake in First Amendment values sufficient to give standing to raise issues concerning the Establishment Clause and the Free Exercise Clause. Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844. We mention these noneconomic values to emphasize that standing may stem from them as well as from the economic injury in which petitioners rely here. Certainly he who is 'likely to be financially' injured, FCC v. Sanders Bros. Radio Station, 309 U.S. 470, at 477, 60 S.Ct. 693, at 698, may be a reliable private attorney general to litigate the issues of the public interest in the present case.
9
Apart from Article III jurisdictional questions, problems of standing, as resolved by this Court for its own governance, have involved a 'rule of self-restraint.' Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586. Congress can, of course, resolve the question one way or another, save as the requirements of Article III dectate otherwise. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246.
10
Where statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action. The whole drive for enlarging the category of aggrieved 'persons' is symptomatic of that trend. In a closely analogous case we held that an existing entrepreneur had standing to challenge the legality of the entrance of a newcomer into the business, because the established business was allegedly protected by a valid city ordinance that protected it from unlawful competition. Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 83—84, 78 S.Ct. 1063, 1066—1068, 2 L.Ed.2d 1174. In that tradition was Hardin v. Kentucky Utilities Co., 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787, which involved a section of the TVA Act designed primarily to protect, through area limitations, private utilities against TVA competition. We held that no explicit statutory provision was necessary to confer standing, since the private utility bringing suit was within the class of persons that the statutory provision was designed to protect.
11
It is argued that the Chicago case and the Hardin case are relevant here because of § 4 of the Bank Service Corporation Act of 1962, 76 Stat. 1132, 12 U.S.C. § 1864, which provides:
12
'No bank service corporation may engage in any activity other than the performance of bank services for banks.'
13
The Court of Appeals for the First Circuit held in Arnold Tours, Inc. v. Camp, 408 F.2d 1147, 1153, that by reason of § 4 a data processing company has standing to contest the legality of a national bank performing data processing services for other banks and bank customers:
14
'Section 4 had a broader purpose than regulating only the service corporations. It was also a response to the fears expressed by a few senators, that without such a prohibition, the bill would have enabled 'banks to engage in a nonbanking activity,' S.Rep.No.2105, (87th Cong., 2d Sess., 7—12) (Supplemental views of Senators Proxmire, Douglas, and Neuberger), and thus constitute 'a serious exception to the accepted public policy which strictly limits banks to banking.' (Supplemental views of Senators Muskie and Clark). We think Congress has provided the sufficient statutory aid to standing even though the competition may not be the precise kind Congress legislated against.' We do not put the issue in those words, for they implicate the merits. We do think, however, that § 4 arguably brings a competitor within the zone of interests protected by it.
15
That leaves the remaining question, whether judicial review of the Comptroller's action has been precluded. We do not think it has been. There is great contrariety among administrative agencies created by Congress as respects 'the extent to which, and the procedures by which, different measures of control afford judicial review of administrative action.' Stark v. Wickard, 321 U.S. 288, 312, 64 S.Ct. 559, 572, 88 L.Ed. 733 (Frankfurter, J., dissenting). The answer, of course, depends on the particular enactment under which review is sought. It turns on 'the existence of courts and the intent of Congress as deduced from the statutes and precedents.' Id., at 308, 64 S.Ct. at 570.
16
The Administrative Procedure Act provides that the provisions of the Act authorizing judicial review apply 'except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.' 5 U.S.C. § 701(a) (1964 ed., Supp. IV).
17
In Shaughnessy v. Pedreiro, 349 U.S. 48, 51, 75 S.Ct. 591, 593—594, 99 L.Ed. 868, we referred to 'the generous review provisions' of that Act; and in that case as well as in others (see Rusk v. Cort, 369 U.S. 367, 379—380, 82 S.Ct. 787, 794—795, 7 L.Ed.2d 809) we have construed that Act not grudgingly but as serving a broadly remedial purpose.
18
We read § 701(a) as sympathetic to the issue presented in this case. As stated in the House Report:
19
'The statutes of Congress are not merely advisory when they relate to administrative agencies, any more than in other cases. To preclude judicial review under this bill a statute, if not specific in withholding such review, must upon its face give clear and convincing evidence of an intent to withhold it.
20
The mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold review.' H.R.Rep. No. 1980, 79th Cong., 2d Sess., 41.
21
There is no presumption against judicial review and in favor of administrative absolutism (see Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1510—1511, 18 L.Ed.2d 681), unless that purpose is fairly discernible in the statutory scheme. Cf. Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61.
22
We find no evidence that Congress in either the Bank Service Corporation Act or the National Bank Act2 sought to preclude judicial review of administrative rulings by the Comptroller as to the legitimate scope of activities available to national banks under those statutes. Both Acts are clearly 'relevant' statutes within the meaning of § 702. The Acts do not in terms protect a specified group. But their general policy is apparent; and those whose interests are directly affected by a broad or narrow interpretation of the Acts are easily identifiable. It is clear that petitioners, as competitors of national banks which are engaging in data processing services, are within that class of 'aggrieved' persons who, under § 702, are entitled to judicial review of 'agency action.' Whether anything in the Bank Service Corporation Act or the National Bank Act gives petitioners a 'legal interest' that protects them against violations of those Acts, and whether the actions of respondents did in fact violate either of those Acts, are questions which go to the merits and remain to be decided below.
23
We hold that petitioners have standing to sue and that the case should be remanded for a hearing on the merits.
24
Reversed and remanded.
1
The first two tests applied by the Court of Appeals required a showing of a 'legal interest.' But the existence or non-existence of a 'legal interest' is a matter quite distinct from the problem of standing. Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832. The third test mentioned by the Court of Appeals, which rests on an explicit provision in a regulatory statute conferring standing and is commonly referred to in terms of allowing suits by 'private attorneys general,' is inapplicable to the present case. See FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869; Associated Industries of New York v. Ickes, 2 Cir., 134 F.2d 694, vacated on suggestion of mootness, 320 U.S. 707, 64 S.Ct. 74, 88 L.Ed. 414.
2
Petitioners allege that the Comptroller's ruling violates the National Bank Act, Rev.Stat. § 5136, 12 U.S.C. § 24 Seventh, which provides that national banks have power to exercise 'all such incidental powers as shall be necessary to carry on the business of banking.'
We intimate no view, here and in Barlow v. Collins, supra, under the decisions rendered today on the issue of standing involved in No. 835, National Association of Securities Dealers v. SEC, and No. 843, Investment Company Institute v. Camp, now pending on petitions for writs of certiorari.
| 89
|
397 U.S. 232
90 S.Ct. 891
25 L.Ed.2d 246
NORTHCROSS et al.v.BOARD OF EDUCATION OF the MEMPHIS, TENNESSEE, CITY SCHOOLS et al.
No. 1136.
March 9, 1970.
Jack Greenberg and James M. Nabrit III, for petitioners.
Jack Petree, for respondents.
PER CURIAM.
1
In 1966 the District Court for the Western District of Tennessee approved a plan of respondent Board of Education for the desegregation of the Memphis school system. In July 1968 petitioners made a motion that the court order the Board to adopt a new plan prepared with the assistance of the Title IV Center of the University of Tennessee. The Center is funded by the Department of Health, Education, and Welfare. The 1966 plan permitted unrestricted free transfers, and petitioners desired a plan without such a provision, and one that would also provide among other things for complete faculty desegregation. The District Court denied the motion as filed but on May 15, 1969, in an unreported opinion, directed respondent Board to file a revised plan which would incorporate the existing plan (as respondent proposed during the hearing to supplement it), and which also would contain a modified transfer provision, a provision for the appointment of a Director of Desegregation charged with responsibility to devise ways and means 'of assisting the Board in its affirmative duty to convert to a unitary system in which racial discrimination will be eliminated root and branch,' and provision for faculty desegregation. The court also directed that, prior to January 1, 1970, the Board file a map of proposed revised zone boundary lines and enrollment figures by race within the revised zones to enable the court then to 'reconsider the adequacy of the transfer plan.' The District Court expressly found that such further steps were necessary because, although the respondent Board 'has acted in good faith,' 'the existing and proposed (supplemental) plans do not have real prospects for dismantling the state-imposed dual system at the 'earliest practicable date." Petitioners appealed to the Court of Appeals for the Sixth Circuit. In June 1969 they filed a Motion for Summary Reversal and on November 3, 1969, after this Court's decision in Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969), a motion to require adoption of a unitary system now. Both motions were denied on December 19, 1969, and the case was remanded to the District Court; the Court of Appeals stated that action on its part would be premature 'until the United States District Court has had submitted to it the ordered plan, and has had opportunity to consider and act upon it.'
2
Petitioners thereupon filed in the Court of Appeals a motion for injunction pending certiorari which, in reliance upon Alexander v. Holmes County Board, sought an injunction requiring respondent Board 'to prepare and file on or before January 5, 1970, in addition to the adjusted zone lines it is presently required to file, a plan for the operation of the City of Memphis public schools as a unitary system during the current 1969—70 school year.' The motion was denied on January 12, 1970, on the ground that Alexander v. Holmes County Board was inapplicable to the case because '(the Court of Appeals is) satisfied that the respondent Board of Education of Memphis is not now operating a 'dual school system' and has, subject to complying with the present commands of the District Judge, converted its pre-Brown dual system into a unitary system 'within which no person is to be effectively excluded because of race or color."
3
Petitioners, on January 30, 1970, filed in this Court a petition for certiorari and a motion for injunction pending certiorari 'requiring the preparation, with the assistance of H.E.W. or the H.E.W. funded University of Tennessee Title IV Center, of a plan of complete pupil and faculty integration affecting all phases of the operations of the Memphis public school system, for implementation during the 1969—70 school year in conformity with * * * Alexander v. Holmes County Bd. * * *.'
4
The petition for certiorari is branted. We hold that the Court of Appeals erred in the following respects:
5
1. Since the findings of the District Court—that the state-imposed dual system had not been dismantled under the 1966 plan and that that plan and the Board's proposed supplemental plan did 'not have real prospects for dismantling (it) * * * at the 'earliest practicable date"—are supported by substantial evidence, the Court of Appeals erred in substituting its own finding that respondent Board 'is not now operating a 'dual school system' * * *.'
6
2. Since it appears that neither the revised plan of desegregation filed on June 9, 1969, nor the revised school zones and updated enrollment figures which were ordered to be filed on or before January 1, 1970, were properly before the Court of Appeals for review, it was premature for the Court of Appeals to rule that the Board 'has, subject to complying with the present commands of the District Judge, converted its pre-Brown dual system into a unitary system 'within which no person is to be effectively excluded because of race or color."
7
3. In holding that Alexander v. Holmes County Board is inapplicable to this case.
8
The Court of Appeals' order of remand of December 19, 1969, is affirmed, but with direction that the District Court proceed promptly to consider the issues before it and to decide the case consistently with Alexander v. Holmes County Board. The order of the Court of Appeals of January 12, 1970, denying injunctive relief is affirmed. The motion for injunction pending certiorari filed in this Court is denied.
9
The judgment herein shall issue forthwith.
10
It is so ordered.
11
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
12
Mr. Chief Justice BURGER, concurring in the result.
13
Save for one factor, I would grant the petition and set the case for expedited argument at a special sitting, if necessary. The factor which is a barrier to taking this step now in this particular case is that one Justice would not be able to participate, thus limiting the Court to seven justices. I would do this on the basis that the time has come to clear up what seems to be a confusion, genuine or simulated, concering this Court's prior mandates. By the time of No. 944, Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970), Mr. Justice Stewart and I indicated we preferred not to reach decision without first hearing oral argument.
14
These school cases present widely varying factors: some records reveal plans for desegregating schools, others have no plans or only partial plans; some records reflect rezoning of school districts, others do not; some use traditional bus transportation such as began with consolidated schools where such transportation was imperative, others use school bus transportation for a different purpose and unrelated to the availability of a school as to which such transportation is not required.
15
The suggestion that the Court has not defined a unitary school system is not supportable. In Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969), we stated, albeit perhaps too cryptically, that a unitary system was one 'within which no person is to be effectively excluded from any school because of race or color.' From what is now before us in this case it is not clear what issues might be raised or developed on argument. As soon as possible, however, we ought to resolve some of the basic practical problems when they are appropriately presented including whether, as a constitutional matter, any particular racial balance must be achieved in the schools; to what extent school districts and zones may or must be altered as a constitutional matter; and to what extent transportation may or must be provided to achieve the ends sought by prior holdings of the Court. Other related issues may emerge.
16
However, for the reasons stated, namely that the Court is already disabled by one vacancy of long standing and further disabled in the particular case, I join in the result reached by the Court.
| 12
|
397 U.S. 223
90 S.Ct. 876
25 L.Ed.2d 240
Clifford TAGGART et al., Petitioners,v.WEINACKER'S, INC.
No. 74.
Argued Jan. 12, 1970.
Decided March 9, 1970.
Bernard Dunau, Washington, D.C., for petitioners.
Shayle P. Fox, Chicago, Ill., for respondent.
PER CURIAM.
1
The complaint in this case was filed January 21, 1965, and the state court issued a temporary injunction on January 22, 1965. After hearing, the state court on April 1, 1965, denied petitioners' motion to dissolve the temporary injunction and continued it in effect. On April 9, 1965, an appeal was taken to the Supreme Court of Alabama. Over three years later, on September 19, 1968, that court entered a judgment of affirmance. The petition for certiorari was filed here on March 28, 1969, and granted on October 13, 1969. 396 U.S. 813, 90 S.Ct. 52, 24 L.Ed.2d 65.
2
At the time the appeal was taken to the Supreme Court of Alabama, respondent operated a retail grocery and drug business on the premises that petitioners picketed. Late in 1966, while the appeal was pending in the Supreme Court of Alabama, respondent ceased to operate the grocery and drug business, leasing part of the space to Delchamps, Inc., for a retail grocery store, and part to Walgreen's, Inc., for a retail drug store. Respondent continues to own the land and the building at the site and maintains an office in the building. The injunction enjoins petitioners from 'trespassing upon the property of the complainant and from further interfering with the complainant's property and right of ingress and egress to the complainant's property and place of business, until the further orders of this Court.'
3
While the changed circumstances do not necessarily make the controversy moot, they are such that, if known at the time the petition for a writ of certiorari was acted upon, we would not have granted it. For such small embers of controversy that may remain do not present the threat of grave state-federal conflict that we need sit to resolve.
4
In this connection one other circumstance should be noted. The Alabama Supreme Court found that this picketing 'obstructed customers using the entrances to the store.' Petitioners complain (a) that no evidentiary hearing to resolve that factual question was ever held; (b) that it rests solely on conclusory affidavits; (c) that that is a fundamentally infirm procedure for handling facts in the area of the First Amendment; and (d) that if there were obstruction the remedy is enjoining the obstruction, not picketing generally. Yet this phase of the case is overshadowed by the special facts of the case as they were finally clarified on oral argument. The picketing started on the public sidewalks around respondent's premises which are removed from respondent's store by a parking lot; but it soon was transferred to a sidewalk owned and maintained by respondent, a sidewalk from 4 feet to 5.5 feet wide and adjacent to the door of the store where the picketing took place. Even if under Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603, the union had a First Amendment right to picket on the property involved in this case, a matter that we need not decide, in final analysis we would come down to whether, in light of the physical circumstances of this narrow sidewalk at the store entrance, the following ruling in Logan Valley, 391 U.S., at 320—321, 88 S.Ct., at 1609, is applicable:
5
'(T)he exercise of First Amendment rights may be regulated where such exercise will unduly interfere with the normal use of the public property by other members of the public with an equal right of access to it.' While the finding of obstruction was based on affidavits filed by respondent, petitioners, though they had the right under Alabama procedure to do so, Ala.Code, Tit. 7, § 1055 (1958), filed no counter-affidavits prior to issuance of the temporary injunction.1 Nor did they, as was their right under Tit. 7, § 1061, of the Alabama Code, submit any such affidavits on the hearing to dissolve the injunction.2 They did, however, deny in their motion to dissolve that they were 'obstructing customers from leaving or entering' respondent's place of business. But the only evidence before the Alabama courts on the issue of obstruction was in respondent's affidavits. That issue was critical, in light of the physical circumstances concerning the narrow sidewalk in front of the door where the picketing took place. Petitioners, however, chose to rest on jurisdictional grounds.
6
In light of the obscure record, the physical circumstances of this narrow sidewalk, and the finding of the Alabama courts on obstruction of customers, coupled with the fact that only a bare remnant of the original controversy remains, we conclude that the writ should be dismissed as improvidently granted.
7
Writ of certiorari dismissed.
8
Mr. Justice BLACK and Mr. Justice HARLAN would hold under San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, that the State's jurisdiction in the case is pre-empted by the National Labor Relations Board's primary jurisdiction over labor disputes.
9
Mr. Chief Justice BURGER, concurring.
10
I am in accord with the Court's action in dismissing this petition as having been improvidently granted. As the opinion of the Court indicates, 'the obscure record' and 'the fact that only a bare remnant of the original controversy remains' cast serious doubt on whether we have enough before us to pass on the claim of the union that it had a First Amendment right to picket on the private premises of the employer.
11
The obscure record and the atrophied controversy now remaining have little if any impact—I think none—on the issue of whether the State's jurisdiction over this matter is 'pre-empted' by the National Labor Relations Board's primary jurisdiction over labor disputes. In my view any contention that the States are pre-empted in these circumstances is without merit. The protection of private property, whether a home, factory, or store, through trespass laws is historically a concern of state law. Congress has never undertaken to alter this allocation of power, and has provided no remedy to an employer within the National Labor Relations Act (NLRA) to prevent an illegal trespass on his premises.* Rather, it has acted against the backdrop of the general application of state trespass laws to provide certain protections to employees through § 7 of the NLRA, 61 Stat. 140, 29 U.S.C. § 157. A holding that the States were precluded from acting would remove the backdrop of state law that provided the basis of congressional action but would leave intact the narrower restraint present in federal law through § 7 and would thereby artificially create a no-law area.
12
Nothing in San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), would warrant this Court to declare state-law trespass remedies to be ineffective and thus to remit a person to his own self-help resources if he desires redress for illegal trespassory picketing. Garmon left to the States the power to regulate any matter of 'peripheral concern' to the NLRA or that conduct that touches interests 'deeply rooted in local feeling and responsibility.' (359 U.S., at 243, 244, 79 S.Ct., at 779.) Few concepts are more 'deeply rooted' than the power of a State to protect the rights of its citizens. Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), applied the Garmon exceptions to allow state jurisdiction over malicious libel in union organizational literature, recognizing that if the States were precluded from acting, there would be an absence of any legal remedy. The Court there observed that:
13
'The fact that the Board has no authority to grant effective relief aggravates to State's concern since the refusal to redress an otherwise actionable wrong creates disrespect for the law and encourages the victim to take matters into his own hands.' 383 U.S., at 64 n. 6, 86 S.Ct., at 664.
14
A holding that Congress pre-empted this entire area is as inappropriate here as it was in Linn, and for precisely the same reasons. Cf. International Longshoremen's Local 1416, A.F.L.-C.I.O. v. Ariadne Shipping Co., 397 U.S. at 201, 90 S.Ct. at 875, 25 L.Ed.2d at 223 (White, J., concurring).
15
Separate memorandum of Mr. Justice HARLAN.
16
I am prompted by the concurring opinion of THE CHIEF JUSTICE in this case, and by the concurring opinion of Mr. Justice WHITE (joined by THE CHIEF JUSTICE and Mr. Justice STEWART) in International Longshoremen's Local 1416, A.F.L.-C.I.O. v. Ariadne Shipping Co., Ltd., 397 U.S. at 201, 90 S.Ct. at 875, 25 L.Ed.2d at 223, to amplify, with the following observations, my vote to grant certiorari and reverse the state judgment in the present case.
17
I would have thought this an easy case after San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), wherein the Court concluded, in the broadest terms, that conduct that is either 'arbuably protected' or 'arguably prohibited' under the federal labor laws is not subject to regulation by the States. In such cases the Court held that federal law and federal remedies apply to the exclusion of any state rules, and that whether federal law does apply is to be decided in the first instance by the National Labor Relations Board in accordance with the policy of 'primary jurisdiction' established by the National Labor Relations Act. It was concluded that the Board's jurisdiction was pre-emptive notwithstanding the fact that access to the Board was barred by its refusal to exercise jurisdiction because of failure to meet the dollar-amount requirements.
18
The picketing in the case before us occurred, as found by the Alabama trial court, in the context of a labor dispute, and ultimately took place on private sidewalks maintained by respondent in front of entrances to its building. The trial court also found that there was no violence or threat of violence. Thus, notwithstanding my differences with the Garmon majority, see my concurring opinion, 359 U.S., at 249, 79 S.Ct., at 782, as to whether States are pre-empted from regulating arguably 'unprotected' activities, id., at 253, 79 S.Ct., at 784, I would reverse the decision below since the picketing in this case falls well within the range of what could be considered to be protected under the Act.
19
While I recognize THE CHIEF JUSTICE's and Mr. Justice WHITE's concern over the hiatus created when the Board does not or cannot assert its jurisdiction, see the concurring opinion of THE CHIEF JUSTICE, ante, at 875, and the concurring opinion of Mr. Justice WHITE in International Longshoremen's Local 1416, A.F.L.-C.I.O. v. Ariadne Shipping Co., Ltd., 397 U.S. at 201, 90 S.Ct. at 875, 25 L.Ed.2d at 223; see also Broomfield, Preemptive Federal Jurisdiction Over Concerted Trespassory Union Activity, 83 Harv.L.Rev. 552 (1970), that consideration is foreclosed, correctly in my view, by Garmon. Congress in the National Labor Relations Act erected a comprehensive regulatory structure and made the Board its chief superintendent in order to assure uniformity of application by an experienced agency. Where conduct is 'arguably protected,' diversity of decisions by state courts would subvert the uniformity Congress envisioned for the federal regulatory program. In the absence of any further expression from Congress I would stand by Garmon and foreclose state action with respect to 'arguably protected activities,' until the Board has acted, even if wrongs may occasionally go partially or wholly unredressed.
20
Nothing in Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 86 S.Ct., 657, 15 L.Ed.2d 582 (1966), is to the contrary. The allusion there to the exacerbating effect of the vacuum created by the Board's inability to 'redress' an 'otherwise actionable wrong' was made in the context of an implicit holding that 'malicious libel,' even though published during a labor campaign, was not 'arguably protected' by the Act and the determination that it was a 'merely peripheral concern of the Labor Management Relations Act.' 383 U.S., at 61, 86 S.Ct., at 662. Linn is far removed from the present case. Cf. International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958).
1
Section 1055 provides:
'Upon the hearing of the application for injunction, the sworn answer of the defendant may be considered as well as the bill, and both sides may introduce affidavits of themselves or other witnesses; and upon consideration, the judge must determine whether the injunction be granted or refused.'
2
Section 1061 provides:
'Upon the hearing of motion to dissolve an injunction, the court may consider the sworn bill and answer, whether the answer contains denials of the allegations of the bill or independent defensive matter, and also such affidavits as any party may introduce.'
*
See People v. Goduto, 21 Ill.2d 605, 608—609, 174 N.E.2d 385, 387, cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961); Hood v. Stafford, 213 Tenn. 684, 694—695, 378 S.W.2d 766, 771 (1964); Moreland Corp. v. Retail Store Employees Union Local No. 444, A.F.L.—C.I.O., 16 Wis.2d 499, 503, 114 N.W.2d 876, 878 (1962); Broomfield, Preemptive Federal Jurisdiction Over Concerted Trespassory Union Activity, 83 Harv.L.Rev. 552, 555, 562—568 (1970).
| 910
|
397 U.S. 195
90 S.Ct. 872
25 L.Ed.2d 218
INTERNATIONAL LONGSHOREMEN'S LOCAL 1416, AFL-CIO, Petitioner,v.ARIADNE SHIPPING COMPANY, Limited, et al.
No. 231.
Argued Jan. 13, 1970.
Decided March 9, 1970.
Seymour M. Waldman, New York City, for petitioner.
Richard M. Leslie, Miami, Fla., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question presented here is whether the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S.C. § 151 et seq., pre-empts state jurisdiction to enjoin peaceful picketing protesting substandard wages paid by foreign-flag vessels to American longshoremen working in American ports. The Florida courts held that there was no pre-emption, citing McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), and Incres Steamship Co. v. International Maritime Workers Union, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557 (1963). We granted certiorari. 396 U.S. 814, 90 S.Ct. 79, 24 L.Ed.2d 66 (1969). We reverse.
2
In 1966 the respondents, a Liberian corporation and a Panamanian corporation, operated cruise ships to the Caribbean from Port Everglades and Miami, Florida. Respondent Ariadne Shipping Company operated the S.S. Ariadne, of Liberian registry, with a crew subject to Liberian ship's articles. Respondent Evangeline Steamship Company operated S.S. Bahama Star, of Panamanian registry, with a crew subject to Panamanian ship's articles. The uncontradicted evidence showed that '(l)oading of the ship, stowage and loading of automobiles, loading cargo and ship stowage' occurred whenever either vessel berthed at Port Everglades or Miami, '(p)art of it (performed) by employees of the ship and some of it by outside labor.' The petitioner is a labor organization representing longshoremen in the Miami area. Although none of those doing the longshore work for the ships belonged to the union, whenever either vessel docked at Port Everglades or Miami in May 1966, petitioner stationed a picket near the vessel to patrol with a placard protesting that the longshore work was being done under substandard wage conditions.1 Respondents obtained temporary injunctive relief against the picketing from the Circuit Court for Dade County.2 That court rejected petitioner's contention that the subject matter was pre-empted, holding that under McCulloch the picketing was beyond the reach of the regulatory power of the National Labor Relations Board, and hence could be enjoined, since it violated Florida law. The temporary injunction was affirmed by the District Court of Appeal for the Third District of Florida in a brief per curiam order citing McCulloch and Incres. 195 So.2d 238 (1967). Thereafter the Circuit Court, without further hearing, made the injunction permanent. The District Court of Appeal again affirmed, although noting that the testimony 'tended to show' that the picketing was carried on to protest against the substandard wages paid for the longshore work. 215 So.2d 51, 53 (1968).3 The Supreme Court of Florida denied review in an unreported order.
3
McCulloch and Incres construed the National Labor Relations Act to preclude Board jurisdiction over labor disputes concerning certain maritime operations of foreign-flag vessels. Specifically, Incres, 372 U.S., at 27, 83 S.Ct., at 613, held that 'maritime operations of foreign-flag ships employing alien seamen are not in 'commerce' within the meaning of § 2(6) (of the Act).' See also Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957). This construction of the statute, however, was addressed to situations in which Board regulation of the labor relations in question would necessitate inquiry into the 'internal discipline and order' of a foreign vessel, an intervention thought likely to 'raise considerable disturbance not only in the field of maritime law but in our international relations as well.' McCulloch, 372 U.S., at 19, 83 S.Ct., at 676.
4
In Benz a foreign-flag vessel temporarily in an American port was picketed by an American seamen's union, supporting the demands of a foreign crew for more favorable conditions than those in the ship's articles which they signed under foreign law, upon joining the vessel in a foreign port. In McCulloch an American seamen's union petitioned for a representation election among the foreign crew members of a Honduran-flag vessel who were already represented by a Honduran union, certified under Honduran labor law. Again, in Incres the picketing was by an American union formed 'for the primary purpose of organizing foreign seamen on foreign-flag ships.' 372 U.S., at 25—26, 83 S.Ct., at 612. In these cases, we concluded that, since the Act primarily concerns strife between American employers and employees, we could reasonably expect Congress to have stated expressly any intention to include within its coverage disputes between foreign ships and their foreign crews. Thus we could not find such an intention by implication, particularly since to do so would thrust the National Labor Relations Board into 'a delicate field of international relations,' Benz, 353 U.S., at 147, 77 S.Ct., at 704. Assertion of jurisdiction by the Board over labor relations already governed by foreign law might well provoke 'vigorous protests from foreign governments and * * * international problems for our Government,' McCulloch, 372 U.S., at 17, 83 S.Ct., at 675, and 'invite retaliatory action from other nations,' Id., at 21, 83 S.Ct., at 677. Moreover, to construe the Act to embrace disputes involving the 'internal discipline and order' of a foreign ship would be to impute to Congress the highly unlikely intention of departing from 'the well-established rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship,' a principle frequently recognized in treaties with other countries. Ibid.
5
The considerations that informed the Court's construction of the statute in the cases above are clearly inapplicable to the situation presented here. The participation of some crew members in the longshore work does not obscure the fact that this dispute centered on the wages to be paid American residents, who were employed by each foreign ship not to serve as members of its crew but rather to do casual longshore work. There is no evidence that these occasional workers were involved in any internal affairs of either ship which would be governed by foreign law.4 They were American residents, hired to work exclusively on American docks as longshoremen, not as seamen on respondents' vessels. The critical inquiry then is whether the longshore activities of such American residents were within the 'maritime operations of foreign-flag ships' which McCulloch, Incres, and Benz found to be beyond the scope of the Act.
6
We hold that their activities were not within these excluded operations. The American longshoremen's short-term, irregular and casual connection with the respective vessels plainly belied any involvement on their part with the ships' 'internal discipline and order.' Application of United States law to resolve a dispute over the wages paid the men for their longshore work, accordingly, would have threatened no interference in the internal affairs of foreign-flag ships likely to lead to conflict with foreign or international law. We therefore find that these longshore operations were in 'commerce' within the meaning of § 2(6), and thus might have been subject to the regulatory power of the National Labor Relations Board.5
7
The jurisdiction of the National Labor Relations Board is exclusive and pre-emptive as to activities that are 'arguably subject' to regulation under § 7 or § 8 of the Act. San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). The activities of petitioner in this case met that test. The union's peaceful primary picketing to protest wage rates below established area standards arguably constituted protected activity under § 7. See United Steelworkers of America, AFL-CIO v. NLRB, 376 U.S. 492, 498—499, 84 S.Ct. 899, 903—904, 11 L.Ed.2d 863 (1964); Garner v. Teamsters Chauffeurs & Helpers Local Union No. 776, 346 U.S. 485, 499—500, 74 S.Ct. 161, 170—171, 98 L.Ed. 228 (1953).
8
Reversed.
9
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, concurring.
10
I agree with the majority that the Florida courts were in error in concluding that the National Labor Relations Act does not govern relations between the operators of foreign-flag vessels and the American longshoremen who work on such vessels while they are in American ports. However, I would not rest reversal on the conclusion that the union's conduct in this case was "arguably subject' to regulation under § 7 or § 8 of the Act.' The union's picketing was clearly not proscribed by any part of § 8 of the Act. The only possible dispute could be over whether the picketing was activity protected by § 7 of the Act or whether the picketing was neither protected nor prohibited by the Act and therefore was subject to state regulation or prohibition. If the National Labor Relations Act provided an effective mechanism whereby an employer could obtain a determination from the National Labor Relations Board as to whether picketing is protected or unprotected, I would agree that the fact that picketing is 'arguably' protected should require state courts to refrain from interfering in deference to the expertise and national uniformity of treatment offered by the NLRB. But an employer faced with 'arguably protected' picketing is given by the present federal law no adequate means of obtaining an evaluation of the picketing by the NLRB. The employer may not himself seek a determination from the Board and is left with the unsatisfactory remedy of using 'self help' against the pickets to try to provoke the union to charge the employer with an unfair labor practice.
11
So long as employers are effectively denied determinations by the NLRB as to whether 'arguably protected' picketing is actually protected except when an employer is willing to threaten or use force to deal with picketing, I would hold that only labor activity determined to be actually, rather than arguably, protected under federal law should be immune from state judicial control. To this extent San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), should be reconsidered. I concur in the Court's judgment in this case because in my view the record clearly indicates that the peaceful, nonobstructive picketing on the public docks near the ships was union activity protected under the National Labor Relations Act. See Garner v. Teamsters Chauffeurs & Helpers Local Union No. 776, 346 U.S. 485, 499—500, 74 S.Ct. 161, 170—171, 98 L.Ed. 228 (1953).
1
A picket was also stationed in front of the terminal through which passengers embarked and disembarked. This picket carried a sign alleging that the ships were unsafe, and passed out handbills to the same effect.
2
The injunctive order was in four paragraphs. Paragraphs 1 and 2 prohibited picketing with signs, or distributing handbills stating, alleging, or inferring that the vessels were unsafe. The petitioner abandoned its appeal from these provisions and they are not before us. Paragraph 4 was set aside on appeal. See n. 3, infra. Paragraph 3 therefore is the only provision under review in this Court. It prohibits petitioner from:
'Picketing or patrolling with signs or placards indicating or inferring that a labor dispute exists between (respondents) and (petitioner), by any statement, legend or language alleging (that respondents) pay their employees substandard wages.'
Initially petitioner directed the picketing not at respondents' ships but at Eastern Steamship Lines, Inc., a Florida corporation that acted as respondents' general agent. Eastern obtained a temporary injunction, 193 So.2d 73 (1966), whereupon petitioner shifted the picketing to the ships themselves.
3
The Court of Appeal set aside paragraph 4 of the injunction which prohibited '(b)y any manner or by any means, including picketing or the distribution of handbills, inducing or attempting to induce customers and potential customers of (respondents) to cease doing business with (respondents).' 215 So.2d at 52 n. 1.
4
We put to one side situations in which the longshore work, although involving activities on an American dock, is carried out entirely by a ship's foreign crew, pursuant to foreign ship's articles.
5
The Board has reached the same conclusion in similar situations. See e.g., International Longshoremen's & Warehousemen's Union, Local 13, 161 N.L.R.B. 451 (1966); Marine Cooks & Stewards Union, 156 N.L.R.B. 753 (1966); New York Shipping Assn., Inc., 116 N.L.R.B. 1183 (1956). Cf. Uravic v. F. Jarka Co., 282 U.S. 234, 51 S.Ct. 111, 75 L.Ed. 312 (1931).
Our conclusion makes it unnecessary to consider petitioner's further contention that in the absence of any evidence of an illegal objective, prohibition of peaceful picketing to publicize substandard wages deprived petitioner of freedom of speech in violation of the First and Fourteenth Amendments.
| 910
|
397 U.S. 203
90 S.Ct. 880
25 L.Ed.2d 224
UNITED STATES, Petitioner,v.M. O. SECKINGER, Jr., etc.
No. 395.
Argued Jan. 14, 1970.
Decided March 9, 1970.
Rehearing Denied April 6, 1970.
See 397 U.S. 1031, 90 S.Ct. 1255.
James van R. Springer, Washington, D.C., for petitioner.
John G. Kennedy, Savannah, Ga., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case concerns the construction of a provision common to fixed-price government construction contracts that states that the private contractor 'shall be responsible for all damages to persons or property that occur as a result of his fault or negligence * * *.' The Court of Appeals for the Fifth Circuit held that the provision could not be construed to allow the Government to recover from the contractor damages suffered by the Government on account of its own negligence. 408 F.2d 146 (1969). We granted certiorari because of the large amount of litigation that this contract clause has produced1 and because of the divergent results that the lower courts have reached in construing the same or similar provisions.2 396 U.S. 815, 90 S.Ct. 104, 24 L.Ed.2d 67 (1969). We reverse.
2
* The United States had entered into a contract with the Seckinger Company for the performance of certain plumbing work at a United States Marine base in South Carolina. While working on this project, one of Seckinger's employees was directed by his foreman to assist a fellow employee on a particular section of pipe that had been partially constructed above a street. About four or five feet above the place where the employee was working, there was an electric wire that carried 2,400 volts of electricity. The employee accidentally came into contact with the wire, was thrown to the ground 18 feet below, and was seriously injured.
3
The injured employee recovered benefits under South Carolina's workmen's compensation law, S.C.Code Ann. §§ 72—1 to 72 504 (1962), and then commenced a suit in the Eastern District of South Carolina against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671—2680, on the theory that his injuries had been sustained as the proximate result of the Government's negligence. The United States, relying on the contract clause, moved to implead Seckinger as a third-party defendant. This motion was denied on the ground that the addition of Seckinger would 'unnecessarily and improperty complicate the issues.'3
4
On the merits, the South Carolina District Court found that the United States had customarily de-energized its electric wires whenever Seckinger employees were required to work dangerously near them. The court therefore held that the United States had been grossly negligent in failing to de-energize the wire in this particular case. Alternatively, the Government was held to have been negligent in failing to advise Seckinger's employees that the electric wire had not been de-energized. Concluding also that the employee had in no way contributed to his injury, the District Judge ordered that he recover a judgment against the United States in the amount of $45,000 plus costs. No appeal was taken from this judgment of the District Court.4
5
Thereafter, the United States proceeded to the District Court for the Southern District of Georgia and commenced the instant suit against Seckinger. The complaint alleged that Seckinger's negligence was solely responsible for its employee's injuries5 and that therefore the United States should be fully indemnified for the judgment which it had satisfied. In a second count, the Government alleged that Seckinger, having undertaken to perform its contract with the United States, was obligated 'to perform the work properly and safely and to provide workmanlike service in the performance of said work.'
6
The District Court granted Seckinger's motion to dismiss the complaint on the alternative grounds, first, that the suit was barred by the prior litigation in South Carolina and, second, that the contractual language was not sufficiently broad to permit the Government to recover indemnification for its own negligence. The Court of Appeals rejected the first ground of decision,6 but sustained the holding that any recovery on the contract was foreclosed to the United States because its negligence had contributed substantially to the injury. The Court of Appeals held that, under the 'majority rule,' an indemnitee cannot recover for his own negligence in the absence of a contractual provision which unmistakably authorized this result. Since the contract here did not unequivocally command that the Government be indemnified for its own negligence, and because the injuries in question were thought to have been caused by the 'active direct negligence' of the Government with no more than a 'slight dereliction' on the part of Seckinger, no recovery whatsoever on the contract would be permitted to the United States.7
7
In the Government's view, this construction of the clause renders it a nullity, for the United States can never be held liable in tort under the Tort Claims Act or otherwise in the absence of negligence on the part of its agents. Thus, so the argument goes, the contractual provision in question can have meaning only in a context in which both the United States and the contractor are jointly negligent.8 In that circumstance, the contractor would be obligated to sustain the full burden of ultimate liability for the injuries produced. Alternatively, the Government suggests that it is entitled to indemnity on a comparative basis to the extent that the negligence of Seckinger contributed to its employee's injuries.
II
8
In the posture in which this case reaches us, the historical background of the clause9 and evidence concerning the actual intention of these particular parties with respect to that provision are sparsely presented. We do know that the clause was required in government fixed-price construction contracts as early as 1938.10 This fact merely precipitates confusion, however, because it was not until the passage of the Tort Claims Act in 1946, §§ 401—424, 60 Stat. 842, as amended, 28 U.S.C. §§ 2671 2680, that the United States permitted recovery in tort against itself for the negligent acts of its agents. Viewed in the pre-Tort Claims Act context, the purpose of the clause is totally unclear except, perhaps, as an exercise in caution on the part of the government draftsmen, or, conceivably, as an attempt to insulate government agents from liability in their private capacities if their negligence arguably combined with that of the contractor to produce a given injury.
9
In American Stevedores, Inc. v. Porello, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed. 1011 (1947), we had before us a contractual provision that was similar to that involved here. There we noted that the clause was susceptible of several different constructions, 330 U.S., at 457—458, 67 S.Ct. at 853, and remanded the case to the District Court to ascertain the intention of the parties with respect to the clause. It does not appear that a similar course of action would be fruitful in the instant case. In Porello there were clear indications from the parties that further evidentiary proceedings in the District Court would shed light on the actual intention of the parties.11 Here, by contrast, there is not only no representation that further proceedings would aid in clarifying the intentions of the parties, but there is at least tacit agreement that the background of the clause has been explored as thoroughly as possible. In these circumstances, we have no alternative but to proceed directly to the contractual construction problem.
III
10
Preliminarily, we agree with the Court of Appeals that federal law controls the interpretation of the contract. See United States v. County of Allegheny, 322 U.S. 174, 183, 64 S.Ct. 908, 88 L.Ed. 1209 (1944);12 Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). This conclusion results from the fact that the contract was entered into pursuant to authority conferred by federal statute and, ultimately, by the Constitution.13
11
In fashioning a federal rule was are, of course, guided by the general principles that have evolved concerning the interpretation of contractual provisions such as that involved here. Among these principles is the general maxim that a contract should be construed most strongly against the drafter, which in this case was the United States.14 The Government seeks to circumvent this principle by arguing that it is inapplicable unless there is ambiguity in the contractual provisions in dispute and there exists an alternative interpretation that is, 'under all the circumstances, a reasonable and practical one.' Gelco Builders & Burjay Const. Co. v. United States, 369 F.2d 992, 999—1000, 177 Ct.Cl. 1025, 1035 (1966). The Government itself, however, has proffered two mutually inconsistent interpretations of the contract clause. To be sure, one of them is pressed with considerably more enthusiasm than the other. The Government, nevertheless, must be taken implicitly to have conceded (a) that the clause is not without ambiguity and (b) that there is an alternative construction of the clause that is both 'reasonable and practical.' Even in the Government's view of the matter, therefore, there is necessarily room for the construction-against-drafter principle to operate.
12
More specifically, we agree with the Court of Appeals that a contractual provision should not be construed to permit an indemnitee to recover for his own negligence unless the court is firmly convinced that such an interpretation reflects the intention of the parties. This principle, though variously articulated, is accepted with virtual unanimity among American jurisdictions.15 The traditional reluctance of courts to cast the burden of negligent actions upon those who were not actually at fault16 is particularly applicable to a situation in which there is a vast disparity in bargaining power and economic resources between the parties, such as exists between the United States and particular government contractors. See United States v. Haskin, 395 F.2d 503, 508 (C.A.10th Cir. 1968).
13
In short, if the United States expects to shift the ultimate responsibility for its negligence to its various contractors, the mutual intention of the parties to this effect should appear with clarity from the face of the contract. We can hardly say that this intention is manifested by the formulation incorporated into the present contract.17 By its terms Seckinger is clearly liable for its negligence, but the contractual language cannot readily be stretched to encompass the Government's negligence as well.18
14
On the other hand, we must not fail to accord appropriate consideration to Seckinger's clear liability under the contract for 'all damages' that resulted from its 'fault or negligence.' (Emphasis added.) The view adopted by the Court of Appeals, and now urged by Seckinger, would drain this clause of any significant meaning or protection for the Government, and, indeed, would tend to insulate Seckinger from potential liability in any circumstance in which any negligence is also attributable to the United States. Whatever may have been the actual intention of the parties with respect to the meaning of the clause, it is extremely difficult to believe that they sought to utilize this contractual provision to reduce Seckinger's potential liability under common law or statutory rules of contribution or indemnity.19 Yet, that is arguably the result if the clause is interpreted to mean that Seckinger's liability is limited to situations in which it, as opposed to the United States, is the sole negligent party.
15
Furthermore, in this latter situation, it is perfectly clear that, both before and after the passage of the Tort Claims Act, the United States could not, in any event, be charged with liability in the absence of negligence on its part. In short, the construction of the clause adopted by the Court of Appeals tends to narrow Seckinger's potential liability and, also, limits its application to circumstances in which no doubt concerning Seckinger's sole liability existed. In the process, considerable violence is done to the plain language of the contract that Seckinger be responsible for all damages resulting from its negligence.
16
A synthesis of all of the foregoing considerations leads to the conclusion that the most reasonable construction of the clause is the alternative suggestion of the Government, that is, that liability be premised on the basis of comparative negligence.20 In the first place, this interpretation is consistent with the plain language of the clause, for Seckinger will be required to indemnify the United States to the full extent that its negligence, if any, contributed to the injuries to the employee.
17
Secondly, the principle that indemnification for the indemnitee's own negligence must be clearly and unequivocally indicated as the intention of the parties is preserved intact. In no event will Seckinger be required to indemnify the United States to the extent that the injuries were attributable to the negligence, if any, of the United States. In short, Seckinger will be responsible for the damages caused by its negligence; similarly, responsibility will fall upon the United States to the extent that it was negligent.
18
Finally, our interpretation adheres to the principle that as between two reasonable and practical constructions of an ambiguous contractual provision, such as the two proffered by the Government, the provision should be construed less favorably to that party which selected the contractual language. This principle is appropriately accorded considerable emphasis in this case because of the Government's vast economic resources and stronger bargaining position in contract negotiations.21
19
For these reasons, we reverse the judgment of the Court of Appeals and remand this case to the District Court for further proceedings consistent with this opinion.22
20
Reversed and remanded.
21
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
22
Mr. Justice STEWART, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.
23
The standard form that the Government uses for its fixed-price construction contracts has long contained a single sentence saying that the contractor 'shall be responsible for all damages to persons or property that occur as a result of his fault or negligence in connection with the prosecution of the work.'1 For more than 30 years it has evidently been understood that these words mean what they rather clearly say that the contractor cannot hold the Government for losses he incurs resulting from his own negligence.2 The provision, in short, is what the Court of Appeals called 'a simple responsibility clause.' 408 F.2d 146, 148.3 But today this innocuous boilerplate language is turned inside out. For the Court says that the provision really is a promise by the contractor to reimburse the Government for losses it incurs resulting from its negligence.
24
To be sure, the Court does not go quite so far as to hold that this obscure clause operates as a complete liability insurance policy. But the Court does hold that the clause requires the contractor to indemnify the Government 'to the full extent that its negligence, if any contributed to the injuries to the employee.' The magnitude of the burden the Court imposes is well illustrated by the circumstances of this case. Here an employee of the contractor was injured in the scope of his employment on plumbing work that the contractor was performing at the Paris Island Marine Depot in South Carolina. The employee recovered from the contractor the benefits to which he was entitled under the state workmen's compensation law. The employee then sued the Government under the Federal Tort Claims Act, claiming that his injuries had actually been caused by the Government's negligence. The Federal District Court agreed, finding that the negligence of the United States was the 'sole cause' of the employee's injuries and awarding him $45,000 in damages. The Court today says that the United States can now recover an indeterminate portion of this $45,000 from the contractor, because the contractor has agreed to 'indemnify the United States * * *.'
25
Despite intimations in the Court's opinion to the contrary, we do not deal here with 'common law or statutory rules of contribution or indemnity.'4 The only question the Court decides is the meaning of the words of a clause in a government contract.5 I think the meaning attributed to that clause today is as unconscionable as it is inaccurate.
26
The clause first appeared in government contracts at least eight years before the enactment of the Federal Tort Claims Act in 1946. Before the passage of that Act the United States could not be sued in tort for personal injuries. Thus there was absolutely no reason for the Government to secure for itself a right to recovery over against an alleged joint tortfeasor. Yet we are asked to believe that the drafter of this clause was so prescient as to foresee the day of government tort liability nearly a decade in the future, and so ingenious as to smuggle a provision into a standard contract form that would, when that day arrived, allow the Government to shift its liability onto the backs of its contractors. This theory is nothing short of incredible.
27
In drafting its construction contracts the United States certainly has both the power and the resources to write contracts providing expressly that it will pass off onto its contractors, either in whole or in part, liability it incurs for damages caused by its own judicially determined negligence. The Government could require its contractors to hold it harmless without regard to fault on their part, or it could establish a proration of liability arising from the joint negligence of the parties. But the contractual provision before us does neither. It no more says that the contractor shall reimburse the Government for his share of joint negligence than that shall be a liability insurer for the Government's sole negligence.
28
The Court nonetheless manages to discover that the clause amounts to a contribution agreement, relying for its conclusion upon cases involving, not the simple responsibility clause before us, but express indemnification agreements with 'hold harmless' clauses.6 This result is said to be desirable because it ensures a fair distribution of loss between those jointly responsible for the damage. But when Seckinger entered into this contract, it had every reason to expect that its liability for injuries to its employees would be limited to what is imposed by the South Carolina compensation law. That law relieved it of responsibility in tort in exchange for its guarantee that its employees would recover without regard to fault. Presumably its bid on the government project reflected its reasonable expectation that this would be the extent of its liability on account of employee accidents. Now the Court heaps an unforeseen federal contractual burden atop the requirement the State has already imposed.7
29
If the Government wants to impose additional liabilities upon those with whom it contracts to do its work, I would require it to do so openly, so that every bidder may clearly know the extent of his potential liability. Even in the domain of private contract law, the author of a standard-form agreement is required to state its terms with clarity and candor.8 Surely no less is required of the United States of America when it does business with its citizens.9
30
Mr. Justice Holmes once said that '(m)en must turn square corners when they deal with the Government.'10 I had always supposed this was a two-way street. The Government knows how to write an indemnification or contribution clause when that is what it wants. It has not written one here.
31
I would affirm the judgment.
1
In the petition for certiorari, the Solicitor General advised that there are presently pending 200 government suits involving the same or similar clauses.
2
Compare, e.g., Fisher v. United States, 299 F.Supp. 1 (D.C.E.D.Pa.1969), and United States v. Accrocco, 297 F.Supp. 966 (D.C.D.C.1969), with, e.g., the decision of the Court of Appeals in the instant case.
3
The third-party complaint was therefore dismissed 'with leave to * * * the United States * * * to take such further action at an appropriate time.' The order was not appealed, and we imply no view concerning the propriety of the District Court's action.
4
The District Court concluded, inter alia, that the negligence of the United States was the 'sole cause' of the employee's injuries. We do not pause to consider what effect, if any, under all the circumstances of this case, the South Carolina judgment could properly have in the instant case. The effect of the prior judgment was not raised below except as a defense contention that it constituted an absolute bar to the instant proceedings.
5
Specifically, the United States alleged that Seckinger was negligent in that it (1) failed to request that the power distribution line be de-energized; (2) failed to request that the wires at the place where the accident occurred be insulated; (3) failed to provide safety insulation on the wires; (4) permitted, and in fact directed, the subsequently injured employee to work in close proximity to the wires; and (5) failed to prevent the employee from proceeding in a manner that was dangerous and that caused him to be injured.
6
The Court of Appeals held that the Government's suit was not barred by principles of res judicata because the South Carolina District Court expressly left open the option of the United States to pursue its claim against Seckinger at a later time. We agree with this conclusion of the Court of Appeals.
7
In the present state of the record, we neither accept nor reject this characterization of the relative degrees of fault of Seckinger and the United States.
8
The Government, therefore, does not take issue with those authorities that exhibit reluctance to permit a negligent indemnitee to recover from a faultless indemnitor unless this intention appeared with particular clarity from the contract. See, e.g., Associated Engineers, Inc. v. Job, 370 F.2d 633, 651 (C.A.8th Cir. 1966), cert. denied, sub nom. Troy v. Cannon Const. Co. v. Job, 389 U.S. 823, 88 S.Ct. 59, 19 L.Ed.2d 77 (1967).
9
In context, the clause in question appears as follows:
'11. PERMITS AND RESPONSIBILITY FOR WORK, ETC.
'The Contractor shall, without additional expense to the Government, obtain all licenses and permits required for the prosecution of the work. He shall be responsible for all damages to persons or property that occur as a result of his fault or negligence in connection with the prosecution of the work. He shall also be responsible for all materials delivered and work performed until completion and final acceptance, except for any completed unit thereof which theretofore may have been finally accepted.'
10
See, e.g., 41 CFR §§ 11.1, 11.3, 12.23, Art. 10 (1938).
11
The objective of the remand was frustrated when no additional evidence was presented to the District Court. That court merely adhered to the construction of the contract that had been adopted by the Court of Appeals, 153 F.2d 605 (C.A.2d Cir. 1946), namely, that the United States was entitled to full indemnity from a stevedoring contractor although both the United States and the contractor were found to have been negligent. Porello v. United States, 94 F.Supp. 952 (D.C.S.C.N.Y.1950).
12
'The validity and construction of contracts through which the United States is exercising its constitutional functions, their consequences on the rights and obligations of the parties, the titles or liens which they create or permit, all present questions of federal law not controlled by the law of any state.' 322 U.S., at 183, 64 S.Ct. at 914.
13
Congress has provided extensive arrangements for the procurement, management, and disposal of government property. See generally 40 U.S.C. §§ 471—535 (1964 ed. and Supp. IV). As part of this statutory scheme, the Administrator of General Services is authorized to issue regulations necessary to perform his various managerial functions. 40 U.S.C. § 486(c). Pursuant to this authority, various form contracts, one of which includes the provision that is the subject of this suit, have been promulgated for official use. 41 CFR §§ 1—16.401 to 1—16.404, 1—16.901—23A, Art. 12 (1969). See generally State Bar of California, Committee on Continuing Education of the Bar, Government Contracts Practice § 13.93 (1964).
14
See, e.g., Sternberger v. United States, 401 F.2d 1012, 1021, 185 Ct.Cl. 528, 543 (1968); Sun Shipbuilding & Drydock Co. v. United States, 393 F.2d 807, 816, 183 Ct.Cl. 358, 372 (1968); Jones v. United States, 304 F.Supp. 94, 103 (D.C.S.D.N.Y.1969).
15
A number of courts take the view, frequently in a context in which the indemnitee was solely or principally responsible for the damages, that there can be indemnification for the indemnitee's negligence only if this intention is explicitly stated in the contract. See, e.g., Freed v. Great A. & P. Tea Co., 401 F.2d 266 (C.A.6th Cir. 1968) (intention of parties must be 'clear and unambiguous' necessitating a clause such as 'including damage from indemnitee's own negligence'); Brogdon v. Southern R. Co., 384 F.2d 220 (C.A.6th Cir. 1967) (same); City of Beaumont v. Graham, 441 S.W.2d 829 (Tex.1969) (indemnitor's promise to indemnify for his negligent acts does not extend to indemnification for indemnitee's negligence); Young v. Anaconda American Brass Co., 43 Wis.2d 36, 168 N.W.2d 112 (1969) (indemnitor not liable for such portion of total liability attributable to act of indemnitee unless indemnity contract by express provision and strict construction so provides); cases collected in Annot., 175 A.L.R. 8, 29—38 (1948).
Other cases do not require that indemnification for the indemnitee's negligence be specifically or expressly stated in the contract if this intention otherwise appears with clarity. See, e.g., Auto Owners Mut. Ins. Co. v. Northern Ind. Pub. Serv. Co., 414 F.2d 192 (C.A.7th Cir. 1969); Eastern Gas & Fuel Associates v. Midwest-Raleigh, Inc., 374 F.2d 451 (C.A.4th Cir. 1967); Unitec Corp. v. Beatty Safway Scaffold Co., 358 F.2d 470 (C.A.9th Cir. 1966); Batson-Cook Co. v. Industrial Steel Erectors, 257 F.2d 410 (C.A.5th Cir. 1958).
16
Several earlier cases declared clauses that purported to indemnify for the indemnitee's negligence void as contrary to public policy. See, e.g., Sternaman v. Metropolitan Life Ins. Co., 170 N.Y. 13, 62 N.E. 763, 57 L.R.A. 318 (1902); Johnson's Administratrix v. Richmond & D.R. Co., 86 Va. 975, 11 S.E. 829 (1890). See also Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955); Otis Elevator Co. v. Maryland Cas. Co., 95 Colo. 99, 33 P.2d 974 (1934).
17
An example of an indemnification clause that makes specific reference to the effect of the negligence of the indemnitee is the following recommendation of the American Institute of Architects:
'4.18. INDEMNIFICATION
'4.18.1. The Contractor shall indemnify and hold harmless the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses including attorneys' fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom, and (b) is caused in whole or in part by any negligent act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder.' AIA Document A201, Sept. 1967.
We specifically decline to hold that a clause that is intended to encompass indemnification for the indemnitee's negligence must include an 'indemnify and hold harmless' clause or that it must explicitly state that indemnification extends to injuries occasioned by the indemnitee's negligence. Thus, contrary to the view apparently adopted in the dissenting opinion, we assign no talismanic significance to the absence of a 'hold harmless' clause. Our approach is, in this respect, consistent with American Stevedores, Inc. v. Porello, 330 U.S., at 457—458, 67 S.Ct. 847, 853—854. Contract interpretation is largely an individualized process, with the conclusion in a particular case turning on the particular language used against the background of other indicia of the parties' intention. Consequently, we hold only that, in this case, the clause that provides that Seckinger will be responsible for all damages resulting from its negligence is insufficiently broad to encompass responsibility for injuries resulting from the negligence of the Government. And, of course, the Government is entitled to no recovery unless it establishes that Seckinger was negligent. Thus the dissenting opinion mischaracterizes the scope of our holding when it states that Seckinger must 'reimburse the Government for losses it incurs resulting from its negligence.'
18
See, e.g., United States v. Haskin, 395 F.2d 503 (C.A.10th Cir. 1968); Brogdon v. Southern R. Co., 384 F.2d 220 (C.A.6th Cir. 1967); Shamrock Towing Co. v. City of New York, 16 F.2d 199 (C.A.2d Cir. 1926); Williams v. Midland Constructors, 221 F.Supp. 400 (D.C.E.D.Ark.1963); City of Beaumont v. Graham, 441 S.W.2d 829 (Tex.1969); Young v. Anaconda American Brass Co., 43 Wis.2d 36, 168 N.W.2d 112 (1969).
19
An employer's liability for injuries suffered by his employees to which his negligence partially contributed varies from jurisdiction to jurisdiction. In the absence of workmen's compensation statutes, the employer and the third-party tertfeasor would be jointly and severally liable, under traditional principles, for the injuries produced. In a majority of jurisdictions, contribution or indemnity is available either by statute or common law, as a device for the redistribution of the burden among the joint tortfeasors. See generally W. Prosser, Law of Torts §§ 47, 48 (3d ed. 1964). In 1956, when Seckinger's employee was injured, South Carolina law was unclear in this respect, apparently permitting contribution or indemnity under some circumsta nces. See generally Comment, Indemnity Among Joint Tort-Feasors—As Affected by the Federal Employers Liability Act, 17 S.C.L.Rev. 423 (1965).
Workmen's compensation provisions, now enacted in all States, have considerable effect on the employer's potential liability to the third-party tortfeasor. However, these statutes vary greatly in the categories of employers and employees to which they apply, see generally, A. Reede, Adequacy of Workmen's Compensation (1947), and even today about two-thirds of the statutes provide that coverage is voluntary as to both employers and employees. 2 A. Larson, The Law of Workmen's Compensation § 67.10 (1969).
When a workmen's compensation plan does cover particular employers and employees, a third-party suit against an employer who was also negligent is barred by the majority rule, although recovery is not infrequently permitted on implied or quasi-contractual theories. See, e.g., Associated Engineers, Inc. v. Job, 370 F.2d 633, 651 (C.A.8th Cir. 1966); 2 A. Larson, supra, §§ 76.00—76.53. Whether such a suit is permitted under South Carolina law apparently has not been authoritatively determined. See generally Burns v. Carolina Power & Light Co., 88 F.Supp. 769 (D.C.E.D.S.C.1950).
20
A number of courts have reached comparable results. See, e.g., Brogdon v. Southern R. Co., 384 F.2d 220 (C.A.6th Cir. 1967); Williams v. Midland Constructors, 221 F.Supp. 400 (D.C.E.D.Ark.1963); C & L Rural Elec. Coop. Corp. v. Kincaid, 221 Ark. 450, 256 S.W.2d 337 (1953), after remand, 227 Ark. 321, 299 S.W.2d 67 (1957); Young v. Anaconda American Brass Co., 43 Wis.2d 36, 168 N.W.2d 112 (1969). See also United States v. Haskin, 395 F.2d 503 (C.A.10th Cir. 1968); Shamrock Towing Co. v. City of New York, 16 F.2d 199 (C.A.2d Cir. 1926).
21
While it is true that the interpretation adopted by the Court of Appeals is even less favorable to the Government than that which we adopt, we have concluded, for reasons previously stated, that the Court of Appeals' view would drain the clause of any significant meaning and is decidedly contrary to its plain language.
A 1941 letter from the Comptroller General, 21 Comp.Gen. 149, relied upon in dissent, sheds no light whatever on the problem on contract construction before us. There the Comptroller General, in commenting upon a question that he said was 'of first impression' suggested that, under some circumstances, a contractor under a cost-plus-fixed-fee contract may seek reimbursement from the Government, as an element of his actual costs, for damages that he sustained by reason of his negligence. Since the contract clause in question was introduced long before the 1941 letter, it obviously was not responsive to any issues raised by the Comptroller. Moreover, we deal in this case with a fixed-price construction contract, a type of contract with which the Comptroller General was in no way concerned. Thus, no support is provided for the facile assumption of the dissent that, merely because a cost-plus contractor may arguably seek reimbursement for additional costs produced by his own negligence, it follows that a contractor committed to complete a project for a fixed-price also may seek reimbursement because of damage caused by his own negligent acts.
We agree with the dissenting opinion that the contract clause does mean exactly what it says. What it says is that Seckinger shall be 'responsible for all damages' arising from its negligence, that is, that the burden of Seckinger's negligence may not be shifted to the United States. To be sure, the clause bars any attempt by Seckinger to obtain reimbursement from the Government for Seckinger's negligence. But an interpretation that limited the operation of the clause to this narrow situation would constitute an impermissible frustration of the contractual scheme, for such a construction would shift the burden of Seckinger's negligence to the United States through the medium of a recovery against the Government by the injured employee. The contractual objective—that liability for the contractor's negligence not be shifted to the United States—can be achieved in cases of concurrent negligence when there has been a prior recovery against the Government only by resort to the comparative negligence analysis that we have adopted, which requires Seckinger to indemnify the Government, but only to the extent that the Government was called upon, in the first instance, to respond in damages as a result of Seckinger's negligence.
22
Because we have taken the view that the rights and liabilities of Seckinger and the United States inter se are governed by contract, we need not reach the Government's alternative theory, rejected by the Court of Appeals, that Seckinger breached an implied warranty of workmanlike service.
1
This sentence is contained in a paragraph entitled 'Permits and Responsibility for Work, etc.' See ante, at 208 n. 9.
2
I have found no previous reported decision construing this clause as the Court construes it today.
3
It will not do to say, as the Court says today, that this construction of the clause makes its purpose 'totally unclear' or 'would drain this clause of any significant meaning or protection for the Government * * *.' For without such a clause, there would surely be room for the contractor to claim reimbursement from the Government for unforeseen increased costs incurred on account of his negligence, particularly where the Government was jointly negligent. With respect to contracts not containing such a clause cost-plus contracts, for example—the Comptroller General advised the Secretary of War almost 30 years ago that the Government may, indeed, be liable to the contractor under such circumstances. See 21 Comp.Gen. 149, 156—157 (1941).
4
Under the law of South Carolina—which determines the Government's liability in tort to the injured employee, 28 U.S.C. § 1346(b); Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492—the general rule is that there is no right to contribution among joint tortfeasors. Atlantic Coast Line R. Co. v. Whetstone, 243 S.C. 61, 68—70, 132 S.E.2d 172, 175—176. Moreover, since the injured employee has accepted his award against Seckinger under the state workmen's compensation statute, he cannot hold Seckinger in tort. S.C.Code Ann. § 72—121, 72—123 (1962); Adams v. Davison-Paxon Co., 230 S.C. 532, 545, 96 S.Ed.2d 566, 572—573. So Seckinger can hardly be cast in the role of a tortfeasor in any event.
5
The Court's conclusion that the Court of Appeals' construction of the clause might 'reduce Seckinger's potential liability under common law or statutory rules of contribution or indemnity' seems wholly incorrect. The contractor's agreement not to seek reimbursement or contribution from the Government would have no bearing upon the question whether local 'common law or statutory rules of contribution and indemnity' give the Government any right to recover from the contractor.
6
These cases are cited in the Court's opinion, ante, 215 n. 20.
7
Under South Carolina law Seckinger has been subrogated to its injured employee's claim against the United States to the extent of its own compensation payment. S.C.Code Ann. § 72—124 (1962). But the Court today subjects Seckingers to the incremental risk of liability in contribution, in a yet-to-be-determined proportion, for the employee's added recovery in his tort suit against the Government.
8
E.g., Chrysler Corp. v. Hanover Ins. Co., 350 F.2d 652, 655; Riess v. Murchison, 329 F.2d 635, 642; Restatement of Contracts § 235(e); 3 A. Corbin on Contracts § 559 (1960).
9
Sternberger v. United States, 401 F.2d 1012, 1021, 185 Ct.Cl. 528, 543; Jones v. United States, 304 F.Supp. 94, 101.
10
Rock Island, A. & L.R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188.
| 78
|
397 U.S. 238
90 S.Ct. 1099
25 L.Ed.2d 275
Jonathan O. COLE, Superintendent, Boston State Hospital, et al.v.Lucretia Peteros RICHARDSON.
No. 679.
Lucretia Peteros RICHARDSON
v.
Jonathan O. COLE, Superintendent, Boston State
Hospital, et al.
No. 774.
Supreme Court of the United States
March 16, 1970
Robert H. Quinn, Atty. Gen. of Mass., Mark L. Cohen, Asst. Atty. Gen., and Gregor I. McGregor, Deputy Asst. Atty. Gen., for appellants Jonathan O. Cole and others.
Ernest Winsor and John F. Cogan, Jr., for appellee Lucretia Peteros Richardson.
PER CURIAM.
1
The judgment is vacated and the cases are remanded to the United States District Court for the District of Massachusetts to determine whether these cases have become moot.
2
Mr. Justice HARLAN, with whom THE CHIEF JUSTICE joins, concurring in the result.
3
The present appeals are from a single action commenced in the Federal District Court for the District of Massachusetts, by Mrs. Richardson, challenging the validity of Mass.Gen.Laws Ann., c. 264, § 14 (1959). That law requires all public employees to subscribe to a loyalty oath which reads as follows:
4
'I do solemnly swear (or affirm) that I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method.'
5
Mrs. Richardson sought declaratory and injunctive relief against enforcement of the oath as a bar to her resuming employment with Boston State Hospital, and also sought damages for pay withheld by reason of her having refused to subscribe to the oath.
6
The District Court granted the requested declaratory and injunctive relief, but stated in its opinion, 'We cannot grant her [Mrs. Richardson's] request for back pay.'* Accordingly, the formal judgment contained no allusion to the back-pay request.
7
Dr. Cole, the hospital superintendent, and another official in No. 679 appeal from the award of declaratory and injunctive relief. Mrs. Richardson has cross-appealed from the denial of back pay and by way of response to the appeal moved for summary affirmance and suggested, in the alternative, that the appeal is moot since the particular job she held has been 'discontinued.' In reply, Dr. Cole has submitted an affidavit asserting that '[e]mployment consonant with [Mrs. Richardson's] abilities and qualifications has been and is periodically available should she wish to apply for such employment.'
8
I fail to understand today's wholly unexplained and extraordinary disposition of remanding to the lower court to determine if these cases are moot. Since appellants in No. 679 have not disputed Mrs. Richardson's specific statement that the job she held is no longer in existence, there may be some question as to whether a controversy continues to exist in that case, although I would have thought this question one to be resolved by this Court, without the necessity of a remand. Certainly, however, there can be no question that a live controversy exists over the damages question.
9
I am, however, content to acquiesce in the Court's action because of the manifest triviality of the impact of the oath under challenge, a factor that may, I suspect, underlie today's unusual disposition.
10
Whether or not one considers that the District Court erred in what perforce amounts to an exercise in semantics, I would suppose that the vagueness contentions in this instance can, depending on how one defines his terms, be characterized as at least colorable for, as the opinion below aptly points out, almost any word or phrase may be rendered vague and ambiguous by dissection with a semantic scalpel. I do not, however, consider it a provident use of the time of this Court to coach what amounts to little more than verbal calisthenics. Cf. S. Chase, The Tyranny of Words (1959); W. Empson, Seven Types of Ambiguity (1955). This kind of semantic inquiry, however interesting, should not occupy the time of federal courts unless fundamental rights turn on the outcome.
11
I think it can be fairly said that subscribing to the instant oath subjected Mrs. Richardson to no more than an amenity. No First Amendment considerations, in my view, are at all involved in these cases. This oath does not impinge on conscience or belief, except to the extent that oath taking as such may offend particular individuals. I also think it safe to say that the signing of this oath triggered no serious possibility of prosecution for either perjury or failure to perform the obligations of the oath. Indeed, I consider it most unfortunate that our past decisions in this field can be construed even to require solemn convocation of three federal judges to deal with a matter of such practical inconsequence.
12
Mr. Justice DOUGLAS, dissenting.
13
The plaintiff Richardson brought this action before a three-judge District Court to declare unconstitutional a Massachusetts loyalty oath statute, to enjoin her superiors at the Boston State Hospital from prohibiting her from discharging her duties at the hospital, and to recover back pay. The District Court entered its opinion, granting the declaratory and injunctive relief but denying the claim for back pay, on June 26, 1969. 300 F.Supp. 1321. Appellants in No. 679 filed a notice of appeal from the grant of injunctive and declaratory relief in the District Court on July 30, 1969, and docketed a timely appeal in this Court on September 29, 1969. Notice of appeal from the denial of back pay was filed in No. 774 in the District Court on August 25, 1969, and a timely appeal was docketed in this Court on October 24, 1969.
14
On October 25, 1969, appellee in No. 679 filed a motion to affirm or dismiss on the grounds of mootness: 'At the time this case was heard and argued in the district court the appellee's job at Boston State Hospital was still in existence, but at or before the time the appellants filed their present appeal such job had been discontinued.'
15
In reply, appellants in No. 679 deny that the case is moot and in support thereof submit an affidavit of Dr. Cole, Superintendent of the Boston State Hospital, which states:
16
'1. At all times subsequent to the decision of the United States District Court in the above-entitled case on June 26, 1969 it has been, and at the present time is, open for the appellee Lucretia Peteros Richardson to apply for employment at Boston State Hospital and enjoy full consideration pursuant to the terms of the decision of the District Court;
17
'2. Employment consonant with her abilities and qualifications has been and is periodically available should she wish to apply for such employment;
18
'3. The project for which the appellee was hired is still on-going at Boston State Hospital.'
19
I do not see how one can even arguably maintain that the cases are moot.
20
The question tendered is an important one. The state oath struck down by the District Court on the grounds of vagueness reads as follows:
21
'I do solemnly swear (or affirm) that I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method.' Mass.Gen.Laws Ann., c. 264, § 14 (1959).
The District Court said:
22
'A 'violation' of section 14, which presumably means a failure to 'live up' to the oath, since its phraseology is in the future tense, is a felony.' 300 F.Supp., at 1322.
23
The unanimous opinion of the District Court holding the oath unconstitutional is earnestly challenged by appellants in No. 679, who maintain that the invalidation of the oath is an unwarranted federal invasion of the State's domain.
24
I would note probable jurisdiction on both appeals and put the cases down for oral argument.
*
It appears from Mrs. Richardson's jurisdictional statement in No. 774 that she stipulated in the District Court that after her formal termination of employment on November 25, 1968, for refusing to take the oath, she 'volunteered to work full-time at Boston State Hospital * * * to continue her research project.'
| 23
|
25 L.Ed.2d 323
90 S.Ct. 1041
397 U.S. 301
UNITED STATES, Petitioner,v.Maclin P. DAVIS et ux.
No. 282.
Argued Jan. 12, 1970.
Decided March 23, 1970.
Rehearing Denied April 27, 1970.
See 397 U.S. 1071, 90 S.Ct. 1495.
Sol. Gen. Erwin N. Griswold, for petitioner.
William Waller, Nashville, Tenn., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
In 1945, taxpayer1 and E. B. Bradley organized a corporation. In exchange for property transferred to the new company, Bradley received 500 shares of common stock, and taxpayer and his wife similarly each received 250 such shares. Shortly thereafter, taxpayer made an additional contribution to the corporation, purchasing 1,000 shares of preferred stock at a par value of $25 per share.
2
The purpose of this latter transaction was to increase the company's working capital and thereby to qualify for a loan previously negotiated through the Reconstruction Finance Corporation. It was understood that the corporation would redeem the preferred stock when the RFC loan had been repaid. Although in the interim taxpayer bought Bradley's 500 shares and divided them between his son and daughter, the total capitalization of the company remained the same until 1963. That year, after the loan was fully repaid and in accordance with the original understanding, the company redeemed taxpayer's preferred stock.
3
In his 1963 personal income tax return taxpayer did not report the $25,000 received by him upon the redemption of his preferred stock as income. Rather, taxpayer considered the redemption as a sale of his preferred stock to the company—a capital gains transaction under § 302 of the Internal Revenue Code of 1954 resulting in no tax since taxpayer's basis in the stock equaled the amount he received for it. The Commissioner of Internal Revenue, however, did not approve this tax treatment. According to the Commissioner, the redemption of taxpayer's stock was essentially equivalent to a dividend and was thus taxable as ordinary income under §§ 301 and 316 of the Code. Taxpayer paid the resulting deficiency and brought this suit for a refund. The District Court ruled in his favor, 274 F.Supp. 466 (D.C.M.D. Tenn. 1967), and on appeal the Court of Appeals affirmed. 408 F.2d 1139 (C.A.6th Cir. 1969).
4
The Court of Appeals held that the $25,000 received by taxpayer was 'not essentially equivalent to a dividend' within the meaning of that phrase in § 302(b)(1) of the Code because the redemption was the final step in a course of action that had a legitimate business (as opposed to a tax avoidance) purpose. That holding represents only one of a variety of treatments accorded similar transactions under § 302(b)(1) in the circuit courts of appeals.2 We granted certiorari, 396 U.S. 815, 90 S.Ct. 88, 24 L.Ed.2d 66 (1969), in order to resolve this recurring tax question involving stock redemptions by closely held corporations. We reverse.
5
* The Internal Revenue Code of 1954 provides generally in §§ 301 and 316 for the tax treatment of distributions by a corporation to its shareholders; under those provisions, a distribution is includable in a taxpayer's gross income as a dividend out of earnings and profits to the extent such earnings exist.3 There are exceptions to the application of these general provisions, however, and among them are those found in § 302 involving certain distributions for redeemed stock. The basic question in this case is whether the $25,000 distribution by the corporation to taxpayer falls under that section—more specifically, whether its legitimate business motivation qualifies the distribution under § 302(b)(1) of the Code. Preliminarily, however, we must consider the relationship between § 302(b)(1) and the rules regarding the attribution of stock ownership found in § 318(a) of the Code.
6
Under subsection (a) of § 302, a distribution is treated as 'payment in exchange for the stock,' thus qualifying for capital gains rather than ordinary income treatment, if the conditions contained in any one of the four paragraphs of subsection (b) are met. In addition to paragraph (1)'s 'not essentially equivalent to a dividend' test, capital gains treatment is available where (2) the taxpayer's voting strength is substantially diminished, (3) his interest in the company is completely terminated, or (4) certain railroad stock is redeemed. Paragraph (4) is not involved here, and taxpayer admits that paragraphs (2) and (3) do not apply. Moreover, taxpayer agrees that for the purposes of §§ 302(b)(2) and (3) the attribution rules of § 318(a) apply and he is considered to own the 750 outstanding shares of common stock held by his wife and children in addition to the 250 shares in his own name.4
7
Taxpayer, however, argues that the attribution rules do not apply in considering whether a distribution is essentially equivalent to a dividend under § 302(b)(1). According to taxpayer, he should thus be considered to own only 25 percent of the corporation's common stock, and the distribution would then qualify under § 302(b)(1) since it was not pro rata or proportionate to his stock interest, the fundamental test of dividend equivalency. See Treas.Reg. 1.302—2(b). However, the plain language of the statute compels rejection of the argument. In subsection (c) of § 302, the attribution rules are made specifically applicable 'in determining the ownership of stock for purposes of this section.' Applying this language, both courts below held that § 318(a) applies to all of § 302, including § 302(b)(1)—a view in accord with the decisions of the other courts of appeals,5 a longstanding treasury regulation,6 and the opinion of the leading commentators.7
8
Against this weight of authority, taxpayer argues that the result under paragraph (1) should be different because there is no explicit reference to stock ownership as there is in paragraphs (2) and (3). Neither that fact, however, nor the purpose and history of § 302(b)(1) support taxpayer's argument. The attribution rules—designed to provide a clear answer to what would otherwise be a difficult tax question—formed part of the tax bill that was subsequently enacted as the 1954 Code. As is discussed further, infra, the bill as passed by the House of Representatives contained no provision comparable to § 302(b)(1). When that provision was added in the Senate, no purpose was evidenced to restrict the applicability of § 318(a). Rather, the attribution rules continued to be made specifically applicable to the entire section, and we believe that Congress intended that they be taken into account wherever ownership of stock was relevant.
9
Indeed, it was necessary that the attribution rules apply to § 302(b)(1) unless they were to be effectively eliminated from consideration with regard to §§ 302(b)(2) and (3) also. For if a transaction failed to qualify under one of those sections solely because of the attribution rules, it would according to taxpayer's argument nonetheless qualify under § 302(b)(1). We cannot agree that Congress intended so to nullify its explicit directive. We conclude, therefore, that the attribution rules of § 318(a) do apply; and, for the purposes of deciding whether a distribution is 'not essentially equivalent to a dividend' under § 302(b)(1), taxpayer must be deemed the owner of all 1,000 shares of the company's common stock.
II
10
After application of the stock ownership attribution rules, this case viewed most simply involves a sole stockholder who causes part of his shares to be redeemed by the corporation. We conclude that such a redemption is always 'essentially equivalent to a dividend' within the meaning of that phrase in § 302(b)(1)8 and therefore do not reach the Government's alternative argument that in any event the distribution should not on the facts of this case qualify for capital gains treatment.9
11
The predecessor of § 302(b)(1) came into the tax law as § 201(d) of the Revenue Act of 1921, 42 Stat. 228:
12
'A stock dividend shall not be subject to tax but if after the distribution of any such dividend the corporation proceeds to cancel or redeem its stock at such time and in such manner as to make the distribution and cancellation or redemption essentially equivalent to the distribution of a taxable dividend, the amount received in redemption or cancellation of the stock shall be treated as a taxable dividend * * *.'
13
Enacted in response to this Court's decision that pro rata stock dividends do not constitute taxable income, Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521 (1920), the provision had the obvious purpose of preventing a corporation from avoiding dividend tax treatment by distributing earnings to its shareholders in two transactions—a pro rata stock dividend followed by a pro rata redemption—that would have the same economic consequences as a simple dividend. Congress, however, soon recognized that even without a prior stock dividend essentially the same result could be effected whereby any corporation, 'especially one which has only a few stockholders, might be able to make a distribution to its stockholders which would have the same effect as a taxable dividend.' H.R.Rep. No. 1, 69th Cong., 1st Sess., 5. In order to cover this situation, the law was amended to apply '(whether or not such stock was issued as a stock dividend)' whenever a distribution in redemption of stock was made 'at such time and in such manner' that it was essentially equivalent to a taxable dividend. Revenue Act of 1926, § 201(g), 44 Stat. 11.
14
This provision of the 1926 Act was carried forward in each subsequent revenue act and finally became § 115(g)(1) of the Internal Revenue Code of 1939. Unfortunately, however, the policies encompassed within the general language of § 115(g)(1) and its predecessors were not clear, and there resulted much confusion in the tax law. At first, courts assumed that the provision was aimed at tax avoidance schemes and sought only to determine whether such a scheme existed. See, e.g., Commissioner of Internal Revenue v. Quackenbos, 78 F.2d 156 (C.A.2d Cir., 1935). Although later the emphasis changed and the focus was more on the effect of the distribution, many courts continued to find that distributions otherwise like a dividend were not 'essentially equivalent' if, for example, they were motivated by a sufficiently strong nontax business purpose. See cases cited n. 2, supra. There was general disagreement, however, about what would qualify as such a purpose, and the result was a case-by-case determination with each case decided 'on the basis of the particular facts of the transaction in question.' Bains v. United States, 289 F.2d 644, 646, 153 Ct.Cl. 599, 603 (1961).
15
By the time of the general revision resulting in the Internal Revenue Code of 1954, the draftsmen were faced with what has aptly been described as 'the morass created by the decisions.' Balenger v. United States, 301 F.2d 192, 196 (C.A.4th Cir. 1962). In an effort to eliminate 'the considerable confusion which exists in this area' and thereby to facilitate tax planning, H.R.Rep. No. 1337, 83d Cong., 2d Sess., 35, U.S. Code Cong. & Admin. News 1954, p. 4025, the authors of the new Code sought to provide objective tests to govern the tax consequences of stock redemptions. Thus, the tax bill passed by the House of Representatives contained no 'essentially equivalent' language. Rather, it provided for 'safe harbors' where capital gains treatment would be accorded to corporate redemptions that met the conditions now found in §§ 302(b)(2) and (3) of the Code.
16
It was in the Senate Finance Committee's consideration of the tax bill that § 302(b)(1) was added, and Congress thereby provided that capital gains treatment should be available 'if the redemption is not essentially equivalent to a dividend.' Taxpayer argues that the purpose was to continue 'existing law,' and there is support in the legislative history that § 302(b)(1) reverted 'in part' or 'in general' to the 'essentially equivalent' provision of § 115(g)(1) of the 1939 Code. According to the Government, even under the old law it would have been improper for the Court of Appeals to rely on 'a business purpose for the redemption' and 'an absence of the proscribed tax avoidance purpose to bail out dividends at favorable tax rates.' See Northup v. United States, 240 F.2d 304, 307 (C.A.2d Cir. 1957); Smith v. United States, 121 F.2d 692, 695 (C.A.3d Cir. 1941); cf. Commissioner of Internal Revenue, v. Estate of Bedford, 325 U.S. 283, 65 S.Ct. 1157, 89 L.Ed. 1611 (1945). However, we need not decide that question, for we find from the history of the 1954 revisions and the purpose of § 302(b)(1) that Congress intended more than merely to re-enact the prior law.
17
In explaining the reason for adding the 'essentially equivalent' test, the Senate Committee stated that the House provisions 'appeared unnecessarily restrictive, particularly, in the case of redemptions of preferred stock which might be called by the corporation without the shareholder having any control over when the redemption may take place.' S.Rep. No. 1622, 83d Cong., 2d Sess., 44; U.S. Code Cong. & Admin. News 1954, p. 4675. This explanation gives no indication that the purpose behind the redemption should affect the result.10 Rather, in its more detailed technical evaluation of § 302(b) (1), the Senate Committee reported as follows:
18
'The test intended to be incorporated in the interpretation of paragraph (1) is in general that currently employed under section 115(g)(1) of the 1939 Code. Your committee further intends that in applying this test for the future * * * the inquiry will be devoted solely to the question of whether or not the transaction by its nature may properly be characterized as a sale of stock by the redeeming shareholder to the corporation. For this purpose the presence or absence of earnings and profits of the corporation is not material. Example: X, the sole shareholder of a corporation having no earnings or profits causes the corporation to redeem half of its stock. Paragraph (1) does not apply to such redemption notwithstanding the absence of earnings and profits.' S.Rep. No. 1622, supra, at 234, U.S. Code Cong. & Admin. News 1954, p. 4870.
19
The intended scope of § 302(b)(1) as revealed by this legislative history is certainly not free from doubt. However, we agree with the Government that by making the sole inquiry relevant for the future the narrow one whether the redemption could be characterized as a sale, Congress was apparently rejecting past court decisions that had also considered factors indicating the presence or absence of a tax-avoidance motive.11 At least that is the implication of the example given. Congress clearly mandated that pro rata distributions be treated under the general rules laid down in §§ 301 and 316 rather than under § 302 and nothing suggests that there should be a different result if there were a 'business purpose' for the redemption. Indeed, just the opposite inference must be drawn since there would not likely be a tax-avoidance purpose in a situation where there were no earnings or profits. We conclude that the Court of Appeals was therefore wrong in looking for a business purpose and considering it in deciding whether the redemption was equivalent to a dividend. Rather, we agree with the Court of Appeals for the Second Circuit that 'the business purpose of a transaction is irrelevant in determining dividend equivalence' under § 302(b)(1). Hasbrook v. United States, 343 F.2d 811, 814 (1965).
20
Taxpayer strongly argues that to treat the redemption involved here as essentially equivalent to a dividend is to elevate form over substance. Thus, taxpayer argues, had he not bought Bradley's shares or had he made a subordinated loan to the company instead of buying preferred stock, he could have gotten back his $25,000 with favorable tax treatment. However, the difference between form and substance in the tax law is largely problematical, and taxpayer's complaints have little to do with whether a business purpose is relevant under § 302(b)(1). It was clearly proper for Congress to treat distributions generally as taxable dividends when made out of earnings and profits and then to prevent avoidance of that result without regard to motivation where the distribution is in exchange for redeemed stock.
21
We conclude that that is what Congress did when enacting § 302(b)(1). If a corporation distributes property as a simple dividend, the effect is to transfer the property from the company to its shareholders without a change in the relative economic interests or rights of the stockholders. Where a redemption has that same effect, it cannot be said to have satisfied the 'not essentially equivalent to a dividend' requirement of § 302(b)(1). Rather, to qualify for preferred treatment under that section, a redemption must result in a meaningful reduction of the shareholder's proportionate interest in the corporation. Clearly, taxpayer here, who (after application of the attribution rules) was the sole shareholder of the corporation both before and after the redemption, did not qualify under this test. The decision of the Court of Appeals must therefore be reversed and the case remanded to the District Court for dismissal of the complaint.
22
It is so ordered.
23
Reversed and remanded.
24
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting.
25
I agree with the District Court, 274 F.Supp. 466, and with the Court of Appeals, 408 F.2d 1139, that respondent's contribution of working capital in the amount of $25,000 in exchange for 1,000 shares of preferred stock with a par value of $25 was made in order for the corporation to obtain a loan from the RFC and that the preferred stock was to be redeemed when the loan was repaid. For the reasons stated by the two lower courts, this redemption was not 'essentially equivalent to a dividend,' for the bona fide business purpose of the redemption belies the payment of a dividend. As stated by the Court of Appeals:
26
'Although closely-held corporations call for close scrutiny under the tax law, we will not under the facts and circumstances of this case, allow mechanical attribution rules to transform a legitimate corporate transaction into a tax avoidance scheme.' 408 F.2d, at 1143—1144.
27
When the Court holds it was a dividend, it effectively cancels § 302(b)(1) from the Code. This result is not a matter of conjecture, for the Court says that in the case of closely held or one-man corporations a redemption of stock is 'always' equivalent to a dividend. I would leave such revision to the Congress.
1
References in this opinion to 'taxpayer' are to Maclin P. Davis. His wife is a party solely because joint returns were filed for the year in question.
2
Only the Second Circuit has unequivocally adopted the Commissioner's view and held irrelevant the motivation of the redemption. See Levin v. Commissioner of Internal Revenue, 385 F.2d 521 (1967); Hasbrook v. United States, 343 F.2d 811 (1965). The First Circuit, however, seems almost to have come to that conclusion, too. Compare Wiseman v. United States, 371 F.2d 816 (1967), with Bradbury v. Commissioner of Internal Revenue, 298 F.2d 111 (1962).
The other courts of appeals that have passed on the question are apparently willing to give at least some weight under § 302(b)(1) to the business motivation of a distribution and redemption. See, e.g., Commissioner of Internal Revenue v. Berenbaum, 369 F.2d 337 (C.A.10th Cir. 1966); Kerr v. Commissioner of Internal Revenue, 326 F.2d 225 (C.A.9th Cir. 1964); Ballenger v. United States, 301 F.2d 192 (C.A.4th Cir. 1962); Heman v. Commissioner of Internal Revenue, 283 F.2d 227 (C.A.8th Cir. 1960); United States v. Fewell, 255 F.2d 496 (C.A.5th Cir. 1958). See also Neff v. United States, 305 F.2d 455, 157 Ct.Cl. 322 (1962). Even among those courts that consider business purpose, however, it is generally required that the business purpose be related, not to the issuance of the stock, but to the redemption of it. See Commissioner of Internal Revenue v. Berenbaum, supra; Ballenger v. United States, supra.
3
See, e.g., Commissioner of Internal Revenue v. Gordon, 391 U.S. 83, 88—89, 88 S.Ct. 1517, 20 L.Ed.2d 448 (1968). Taxpayer makes no contention that the corporation did not have $25,000 in accumulated earnings and profits.
4
Section 318(a) provides in relevant part as follows:
'General rule.—For purposes of those provisions of this subchapter to which the rules contained in this section are expressly made applicable—
'(1) Members of family.—
'(A) In general.—An individual shall be considered as owning the stock owned, directly or indirectly, by or for—
'(i) his spouse (other than a spouse who is legally separated from the individual under a decree of divorce or separate maintenance), and
'(ii) his children, grandchildren, and parents.'
In § 318(b) the rules contained in subsection (a) are made specifically applicable to 'section 302 (relating to redemption of stock).'
5
See Levin v. Commissioner of Internal Revenue, 385 F.2d 521, 526—527 (C.A.2d Cir.1967); Commissioner v. Berenbaum, 369 F.2d 337, 342 (C.A.10th Cir. 1966); Ballenger v. United States, 301 F.2d 192, 199 (C.A.4th Cir. 1962); Bradbury v. Commissioner of Internal Revenue, 298 F.2d 111, 116—117 (C.A.1st Cir. 1962).
6
See Treas.Reg. 1.302—2(b).
7
See B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders 292 n. 32 (2d ed. 1966).
8
Of course, this just means that a distribution in redemption to a sole shareholder will be treated under the general provisions of § 301, and it will only be taxed as a dividend under § 316 to the extent that there are earnings and profits.
9
The Government argues that even if business purpose were relevant under § 302(b)(1), the business purpose present here related only to the original investment and not at all to the necessity for redemption. See cases cited, n. 2, supra. Under either view, taxpayer does not lose his basis in the preferred stock. Under Treas. Reg. 1.302—2(c) that basis is applied to taxpayer's common stock.
10
See Bittker v. Eustice, supra, n. 7, at 291: 'It is not easy to give § 302(b)(1) an expansive construction in view of this indication that its major function was the narrow one of immunizing redemptions of minority holdings of preferred stock.'
11
This rejection is confirmed by the Committee's acceptance of the House treatment of distributions involving corporate contractions—a factor present in many of the earlier 'business purpose' redemptions. In describing its action, the Committee stated as follows:
'Your committee, as did the House bill, separates into their significant elements the kind of transactions now incoherently aggregated in the definition of a partial liquidation. Those distributions which may have capital-gain characteristics because they are not made pro rata among the various shareholders would be subjected, at the shareholder level, to the separate tests described in (§ 301 to 318). On the other hand, those distributions characterized by what happens solely at the corporate level by reason of the assets distributed would be included as within the concept of a partial liquidation.' S.Rep.No.1622, supra, at 49, U.S. Code Cong. & Admin.News 1954, p. 4680. (Emphasis added.)
| 1112
|
397 U.S. 286
90 S.Ct. 1033
25 L.Ed.2d 312
UNITED STATESv.ESTATE of Thomas S. DONNELLY, Sr., et al.
No. 104.
Argued Jan. 12, 1970.
Decided March 23, 1970.
Matthew J. Zinn, Asst. to the Solicitor Gen., for petitioner.
Daniel N. Pevos. Southfield, Mich., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
In 1950, a tax liability of approximately $26,000 was assessed against the taxpayer Donnelly, a resident of Michigan. Upon assessment, a statutory lien was created in favor of the United States 'upon all property and rights to property, whether real or personal' belonging to the taxpayer. Internal Revenue Code of 1939, § 3670. Under § 3672 of the 1939 Code, such a lien could become effective against subsequent purchasers of Donnelly's property in either of two ways: (1) by filing notice of the lien in the state office in which filing of such notice was authorized by state law; or (2) if filing in a state office was not authorized by state law, by filing notice of the lien in the United States District Court for the district in which the property was located.1
2
A Michigan statute purported to authorize the filing of federal tax lien notices with the county register of deeds. However, the Michigan statute expressly required that notices of federal tax liens upon real property contain 'a description of the land on which a lien is claimed.'2 The standard tax lien notice form used by the Treasury Department made no provision for such a description, but was rather a blanket notice covering all property of the taxpayer in the county. The Department had taken the position that § 3672 permitted state law to dictate the place for filing the notice of lien, but not the form or content of the notice. Accordingly, the Department, believing that state law did not 'authorize' filing of the standard federal notice with the register of deeds, filed its notice of lien on Donnelly's property in the United States District Court for the Eastern District of Michigan. The Eastern District includes the land involved in the case, which was held by Donnelly and his wife as tenants by the entirety. The question is whether the filing in federal court gave the United States priority against a subsequent good-faith purchaser of Donnelly's land.
3
The Department did not collect in full on Donnelly's tax liability nor did it foreclose its lien on any of his property. Rather, between 1950 and his death in 1963, it obtained waivers from him of the statute of limitations on the assessed liability, the last of which extended the time for collection to December 31, 1966. In the meantime, Donnellt's wife died and he became fee owner of the Livingston County land. Shortly thereafter, in August 1960, he sold the land to respondents Mr. and Mrs. Carlson, who are the real parties in interest in this case. An abstract of title, prepared for the Carlsons by the Livingston County abstract office, disclosed no tax liens affecting real property owned by Donnelly; the same abstract, however, disclaimed any examination of court records, state or federal. The United States concedes that the Carlsons had no actual notice of the lien on Donnelly's land.
4
After the Carlsons purchased the land, this Court decided in United States v. Union Central Life Ins. Co., 368 U.S. 291, 82 S.Ct. 349, 7 L.Ed.2d 294 (1961), that the Department had been right in maintaining that it did not have to conform its lien notices to the Michigan requirement that such notices must contain a description of the land upon which the lien is claimed. Thus, this Court held, the state law did not 'authorize' state filing of federal lien notices, and the filing of a notice in the appropriate federal district court was fufficient to give the lien priority against subsequent purchasers.
5
In 1966, just before the last statutory waiver executed by Donnelly expired, the United States brought suit in federal court to foreclose its tax lien on the Livingston County property, now owned by the Carlsons. The District Court held that Union Central, supra, was distinguishable, and in any event should not be applied retroactively against a person making a good-faith purchase before its date of decision, and granted summary judgment for the Carlsons. 295 F.Supp. 557 (D.C.E.D.Mich.1967). The Court of Appeals affirmed on the basis of the opinion of the District Court. 406 F.2d 1065 (C.A.6th Cir. 1969). We granted certiorari, 396 U.S. 814, 90 S.Ct. 57, 24 L.Ed.2d 66 (1969), to consider the apparent conflict with our decision in Union Central, supra, and we reverse.
6
The District Court distinguished Union Central on the ground that 'an attempt had been made in (that case) to file notice with the Register of Deeds in 1954, which had been refused by the Register of Deeds pursuant to a Michigan Attorney General opinion rendered in 1953, which ruled that federal tax lien notices not containing a description of the property are not entitled to be recorded. In the instant case, there had been no attempt to file with the Register of Deeds.' 295 F.Supp., at 559.
7
The attempted distinction is unsatisfactory for two reasons. First, nothing in this Court's opinion in Union Central or in the record of that case indicates that any attempt was made to file the notice of lien with the register of deeds. Second, whether or not such an attempt was made, state law barred the local office from accepting the federal lien notice, which lacked the description of the land explicitly required by the state statute. The presence or absence of the legally futile act of tendering the noncomplying lien notice to the register of deeds could not be a factor determinative of the priority to be granted the federal lien.3
8
Further, the District Court held that when the Carlsons purchased Donnelly's land in 1960, they were entitled to rely on the law as it appeared at that time. As the court saw it, the prevailing interpretation of the federal statute in Michigan, stated in Youngblood v. United States, 141 F.2d 912 (C.A.6th Cir. 1944), required the Treasury Department to file a complying notice of lien with the register of deeds in order to gain priority against subsequent purchasers. Conceding that this Court rejected the Youngblood interpretation in its Union Central decision in 1961, the District Court nevertheless concluded that Union Central should not be applied retroactively to give the 1950 federal lien priority over the Carlsons' 1960 goodfaith purchase of the same land, and thus to upset the Carlsons' allegedly justifiable expectation of unclouded title.
9
In its retroactivity determination, the District Court relied largely on this Court's decision in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940). The petitioner in that case had taken advantage of a federal statute that permitted readjustment of municipal debt, amounting to a reduction of that debt, upon a finding by a district court that the readjustment plan was fair and equitable and upon approval of the plan by holders of two-thirds of the outstanding indebtedness. The respondents, holders of bonds issued by the petitioner, had been parties to that action, had raised no constitutional challenge to the statute, and had not appealed the final decree of the District Court approving the plan. Subsequently, in an unrelated proceeding, the statute was declared unconstitutional. Ashton v. Cameron County District, 298 U.S. 513, 56 S.Ct. 892, 80 L.Ed. 1309 (1936). The respondents then brought suit on the original bonds, which had been canceled by the original decree, claiming that a decree obtained under an unconstitutional statute could not support a plea of res judicata. This Court held that res judicata barred the new action, stressing the fact that the respondents had not raised the constitutional claim in the original action. The Court noted generally that the actual existence of a statute, prior to determination of its unconstitutionality
10
'is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. * * * Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination.' 308 U.S., at 374, 60 S.Ct., at 318.
11
The District Court here found that this Court's decision in Union Central amounted to an invalidation of the Michigan statute providing for local filing of federal tax lien notices, and that the Carlsons had justifiably relied upon the state statute, prior to its invalidation, in purchasing Donnelly's property without first searching the records of the federal court. Quoting the above language from Chicot County the court held that the Carlson's reliance on the subsequently invalidated statute was sufficient to give them priority over the earlier filed tax lien.
12
In our view, Chicot County does not support failure to apply Union Central here. In the first place, the Union Central decision did not invalidate any statute, state or federal. It merely construed § 3672, in accordance with the clear language of the statute, to authorize the filing of tax lien notices in federal court where the state law failed to provide for local filing. It determined, as the courts and other authorities who had considered the question had all agreed, that Michigan law did not authorize the filing of the standard federal lien notice, which lacked the description of the land required by the Michigan filing statute. Finally it held, in accordance witht the will of Congress as expressed in the 1942 amendment to § 3672 and the accompanying legislative history, that state law imposing more onerous requirements of content on lien notices than federal law did not 'authorize' state filing within the meaning of the federal statute.
13
Thus, the Carlsons did not rely on any statute subsequently declared unconstitutional by this Court. The most that can be said is that they may have failed to search for notices of tax lien in the federal court on the basis of a construction of § 3672 given by the Court of Appeals for the Sixth Circuit in Youngblood v. United States, supra. However, the Youngblood construction, which the Government never accepted and which it could not seek to have reviewed in this Court because the judgment in that case rested on independent grounds,4 cannot be sufficient to deprive the Government of the fruits of following what under the statute was the proper filing procedure.
14
Further, in Chicot County the petitioner did not merely rely on a federal statute later declared unconstitutional, but on a final judgment rendered in his favor in a proceeding in which the respondent did not even raise the constitutional issue. The analogous situation would be presented here only if the Carlsons had, before the decision in Union Central, obtained a decree of quiet title to their property in a proceeding to which the United States was a party and in which the United States had not raised the issue of the priority of its lien under § 3672. In short, this case lacks the element of res judicata—reliance by a party on a final judgment rendered in his favor—which was the decisive factor in Chicot County.
15
Acts of Congress are generally to be applied uniformly throughout the country from the date of their effectiveness onward. Generally the United States, like other parties, is entitled to adhere to what it believes to be the correct interpretation of a statute, and to reap the benefits of that adherence if it proves to be correct, except where bound to the contrary by a final judgment in a particular case. Deviant rulings by circuit courts of appeals, particularly in apparent dictum, cannot generally provide the 'justified reliance' necessary to warrant withholding retroactive application of a decision construing a statute as Congress intended it. In rare cases, decisions construing federal statutes might be denied full retroactive effect, as for instance where this Court overrules its own construction of a statute, cf. Simpson v. Union Oil Co., 377 U.S. 13, 25, 84 S.Ct. 1051, 1059, 12 L.Ed.2d 98 (1964), but this is not such a case.
16
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings5 not inconsistent with this opinion.
17
It is so ordered.
18
Judgment of Court of Appeals reversed and case remanded.
19
Mr. Justice HARLAN, concurring.
20
I fully agree that the Government is entitled to prevail in this case, but I would rest that conclusion on a broader ground than the Court's opinion might be taken to evince. More especially, I fear that certain distinctions suggested by the Court's opinion—e.g., between clear and ambiguous statutes, decisions construing statutes for the first time, decisions overruling prior constructions of statutes—may point in the direction of a retroactivity quagmire in civil litigation not unlike that in which the Court has become ensnared in the criminal field. See my dissenting opinion in Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248 (1969).
21
The impulse to make a new decisional rule nonretroactive rests, in civil cases at least, upon the same considerations that lie at the core of stare decisis, namely to avoid jolting the expectations of parties to a transaction. Yet once the decision to abandon precedent is made, I see no justification for applying principles determined to be wrong, be they constitutional or otherwise, to litigants who are in or may still come to court. The critical factor in determining when a new decisional rule should be applied to a transaction consummated prior to the decision's announcement is, in my view, the point at which the transaction has acquired such a degree of finality that the rights of the parties should be considered frozen. Just as in the criminal field the crucial moment is, for most cases, the time when a conviction has become final, see my Desist dissent, supra, so in the civil area that moment should be when the transaction is beyond challenge either because the statute of limitations has run or the rights of the parties have been fixed by litigation and have become res judicata. Any uncertainty engendered by this approach should. I think, be deemed part of the risks of life.
22
These considerations, I believe, underlie the Court's holdings in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 s,.Ct. 317, 84 L.Ed. 329 (1940), where the Court refused to upset a judgment based on a subsequent change in the law, and Cipriano v. City of Houma, 395 U.S 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), where we held that municipal bonds, authorized by invalid referenda, would not be subject to challenge 'where, under state law, the time for challenging the election result has * * * expired.' 395 U.S., at 706, 89 S.Ct., at 1901.
23
To the extent that equitable considerations, for example, 'reliance,' are relevant, I would take this into account in the determination of what relief is appropriate in any given case. There are, of course, circumstances when a change in the law will jeopardize an edifice which was reasonably constructed on the foundation of prevailing legal doctrine. Thus, it may be that the law of remedies would permit rescission, for example, but not an award of damages to a party who finds himself able to avoid a once-valid contract under new notions of public policy. Cf. Simpson v. Union Oil Co., 377 U.S. 13, 25, 84 S.Ct. 1051, 1059, 12 L.Ed.2d 98 (1964). Another instance, though apt to arise infrequently in federal court, would be where certain real property transactions fail to anticipate changes in principles governing land usage, for example, the enforce-ability of certain kinds of easements or covenants. In such instances it may be appropriate to withhold an equitable remedy and confine an award of damages to a limited period, or the like.* The essential point is that while there is flexibility in the law of remedies this does not affect the underlying substantive principle that short of a bar of res judicata or statute of limitations, courts should apply the prevailing decisional rule to the cases before them.
24
On these premises I join the Court's opinion.
25
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice STEWART concur, dissenting.
26
Respondents are bona fide purchasers of real property located in Livingston County, Michigan. Their purchase was made in August 1960 from one Donnelly, against whom the United States had acquired a tax lien in 1950. By § 3672 of the Internal Revenue Code of 1939 that lien is not valid against a purchaser until notice thereof is filed in the office 'authorized' by state law. Where state law 'authorized' no such office, notice of lien was to be filed in the office of the United States District Court for the judicial district in which the land is located. Ibid. Michigan law authorized notice of a federal tax lien containing 'a description of the land' to be filed with the register of deeds in the county where the land was located.1
27
The United States refused to be bound by the requirement of Michigan law regarding a 'description of the land' and filed notice of lien in the District Court.
28
Hence a title search in the accustomed way revealed no notice of lien clouding Donnelly's title. Hence respondents purchased the land innocently and in good faith. Thereafter, on March 20, 1961, the United States filed its notice of lien with the register of deeds of Livingston County, as required by Michigan law.2
29
On December 18, 1961, over a year after respondents' purchase, this Court held in United States v. Union Central Life Ins. Co., 368 U.S. 291, 82 S.Ct. 349, 7 L.Ed.2d 294, that 'Michigan law authorizing filing only if a description of the property was given' ran counter to the intent of § 3672, and consequently no real property filing requirement could be considered 'authorized' by Michigan law. Id., at 296, 82 S.Ct., at 352. Therefore, the Court held, a notice of lien was properly filed in the District Court.
30
I dissent from a retroactive application of that holding so as to injure bona fide purchasers who had relied on the prior law to make their investments. The Michigan Act had at the time of the purchase been approved both by the District Court in United States v. Maniaci, 36 F.Supp. 293, and by the Court of Appeals for the Sixth Circuit in Youngblood v. United States, 141 F.2d 912.
31
It seems manifestly unjust to deprive respondents of their property for the benefit of a lawless tax collector who knowingly concealed his secret lien until after the purchase was made.3
32
It is true that later, in Union Central, we ruled that § 3672 did not require the Government to file pursuant to Michigan law. Yet this new ruling on federal preemption should not, in my view, be applied to undo everything done by those relying on the former construction, as upheld in Youngblood.
33
I would hold that the teaching of Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 318, 84 L.Ed. 329, as to statutes ruled unconstitutional, should be applied to the present situation:
34
'The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects,—with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations, deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination.' The majority of the Court in the present case narrowly confines that statement to the particular facts involved in Chicot County. The principle there involved, however, rooted deeply in considerations of fairness, clearly applies to the present case. I would hold that bona fide purchasers, whose purchases antedate our Union Central decision and who relied on the law as it had been previously construed, are protected in their investments. I dissent from the Court's holding to the contrary.
1
The Internal Revenue Code of 1939 provided:
'Sec. 3670. Property Subject to Lien.
'If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, penalty, additional amount, or addition to such tax, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.' 26 U.S.C. § 3670 (1940 ed.).
'Sec. 3672. Validity Against Mortgagees, Pledgees, Purchasers, and Judgment Creditors.
'(a) Invalidity of Lien Without Notice.—Such lien shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the collector—
'(1) Under State or Territorial laws.—In the office in which the filing of such notice is authorized by the law of the State or Territory in which the property subject to the lien is situated, whenever the State or Territory has by law authorized the filing of such notice in an office within the State or Territory; or
'(2) With Clerk of District Court.—In the office of the clerk of the United States district court for the judicial district in which the property subject to the lien is situated, whenever the State or Territory has not by law authorized the filing of such notice in an office within the State or Territory * * *.' 26 U.S.C. § 3672 (1946 ed.).
2
Michigan Public Acts, 1923, No. 104, as amended by Michigan Public Acts, 1925, No. 13, repealed by Michigan Public Acts, 1956, No. 107, provided in pertinent part:
'Sec. 1. That whenever the collector of internal revenue for any district in the United States, or any tax collecting officers of the United States having charge of the collection of any tax payable to the United States, shall desire to acquire a lien in favor of the United States for any tax payable to the United States against any property real or personal, within the state of Michigan pursuant to section three thousand one hundred eighty-six of the revised statutes of the United States, he is hereby authorized to file a notice of lien, setting forth the name and the residence or business address of such taxpayer, the nature and the amount of such assessment, and a description of the land upon which a lien is claimed, in the office of the register of deeds in and for the county or counties in Michigan in which such property subject to such lien is situated; and such register of deeds shall, upon receiving a filing fee of fifty cents for such notice, file and index the same * * *.'
3
Nor is it significant that the lien notice here was filed in 1950, before the Michigan Attorney General's opinion referred to by the District Court (opinion of the Attorney General of Michigan, No. 1709, September 10, 1953), whereas the filing in Union Central came in 1954, after that opinion was rendered. The Attorney General's opinion merely declared what was already the law of Michigan.
4
In Youngblood, the United States sought an order in the nature of a writ of mandamus to compel a county register of deeds in Michigan to accept and file a standard federal lien notice, which lacked the description of the encumbered land required by the state statute. The Court of Appeals held that the order should not issue, first, because United States district courts lack jurisdiction to issue original writs of mandamus or orders in the nature of mandamus; and second, because the law of Michigan clearly provided in terms that in order to be filed with the register of deeds, a federal tax lien notice had to contain a description of the land. The court went on, in apparent dictum, to confirm its earlier holding in United States v. Maniaci, 116 F.2d 935 (1940), aff'g 36 F.Supp. 293 (D.C.W.D.Mich.1939), that § 3672 required the United States to file in the local office lien notices conforming to the state law requirements as to content. In delivering this apparent dictum, the Court of Appeals ignored the clear legislative history, summarized in this Court's Union Central decision, 368 U.S., at 295—296, 82 S.Ct., at 352, which showed that in enacting the 1942 amendment to § 3672, Congress had meant to disapprove the Maniaci holding.
5
The Carlsons have raised additional defenses to the foreclosure suit brought by the United States, but as these defenses were not considered by the District Court or the Court of Appeals, we do not rule on them here.
*
I would not, of course, hold this view of retroactivity binding on state courts and a federal court would, in fact, be obligated to abide by the applicable state rule should a retroactivity question arise in a diversity case.
1
Michigan Public Acts, 1923, No. 104, as amended, Michigan Public Acts, 1925, No. 13.
2
Previously, on November 28, 1950, the United States had filed notice of its lien with the register of deeds of Wayne County.
3
The Michigan statute requiring notices of liens to contain a description of real property upon which a lien was claimed was repealed in April 1956 by Act No. 107, Michigan Public Acts, 1956. The United States, however, did not thereafter promptly file its notice of lien in the state office as it was now authorized to do under Michigan law. Nor did it stand on its previous filing in the District Court. Instead, it waited until March 20, 1961, on which date it filed a notice of the lien with the register of deeds of Livingston County.
| 1112
|
397 U.S. 319
90 S.Ct. 1110
25 L.Ed.2d 334
David G. CAIN et al.v.KENTUCKY.
No. 347.
Supreme Court of the United States
March 23, 1970
Rehearing Denied May 4, 1970.
See 397 U.S. 1081, 90 S.Ct. 1520.
Edmund C. Grainger, Jr., and James E. Thornberry, for appellants.
John B. Breckinridge, Atty. Gen. of Kentucky, and John B. Browning, Asst. Atty. Gen., for appellee.
PER CURIAM.
1
The judgment is reversed. Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515.
2
Mr. Chief Justice BURGER, dissenting.
3
In my view we should not inflexibly deny to each of the States the power to adopt and enforce its own standards as to obscenity and pornographic materials; States ought to be free to deal with varying conditions and problems in this area. I am unwilling to say that Kentucky is without power to bar public showing of this film; therefore, I would affirm the judgment from which the appeal is taken.
4
Mr. Justice HARLAN, dissenting.
5
If this case involved obscenity regulation by the Federal Government, I would unhesitatingly reverse the conviction, for the reasons stated in my separate opinion in Roth v. United States, 354 U.S. 476, 496, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Even in light of the much greater flexibility that I have always thought should be accorded to the States in this field, see, e. g., my dissenting opinion in Jacobillis v. Ohio, 378 U.S. 184, 203, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), suppression of this particular film presents a borderline question. However, laying aside my own personal estimate of the film, I cannot say that Kentucky has exceeded the constitutional speed limit in banning public showing of the film within its borders, and accordingly I vote to affirm the judgment below.
| 23
|
397 U.S. 249
90 S.Ct. 1029
25 L.Ed.2d 282
UNITED STATES, Petitioner,v.Gerritt Johannes VAN LEEUWEN.
No. 403.
Argued Feb. 25, 1970.
Decided March 23, 1970.
Solicitor Gen., Erwin N. Griswold, for petitioner.
Craig G. Davis for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Respondent, at about 1:30 p.m. on Thursday, March 28, 1968, mailed two 12-pound packages at the post office in Mt. Vernon, Washington, a town some 60 miles from the Canadian border. One package was addressed to a post office box in Van Nuys, California, and the other to a post office box in Nashville, Tennessee. Respondent declared they contained coins. Each package was to be sent airmail registered and each was insured for $10,000, a type of mailing that the parties agree was first class, making them not subject to discretionary inspection.1
2
When the postal clerk told a policeman who happened to be present that he was suspicious of the packages, the policeman at once noticed that the return address on the packages was a vacant housing area of a nearby junior college, and that the license plates of respondent's car were British Columbia. The policeman called the Canadian police, who called customs in Seattle. At 3 o'clock that afternoon customs called Van Nuys and learned that the addressee of one package was under investigation in Van Nuys for trafficking in illegal coins. Due to the time differential, Seattle customs was unable to reach Nashville until the following morning, March 29, when Seattle was advised that the second addressee was also being investigated for the same crime. A customs official in Seattle thereupon filed an affidavit for a search warrant for both packages with a United States commissioner, who issued the search warrant at 4 p.m., and it was executed in Mt. Vernon at 6:30 p.m., 2 1/2 hours later. Thereupon the packages were opened, inspected, resealed and promptly sent on their way.
3
Other evidence showed that respondent had brought the two packages in from Canada without declaring them. He was tried for illegally importing gold coins in violation of 18 U.S.C. § 545 and found guilty and sentenced and fined. On appeal, the Court of Appeals reversed, holding that the coins were improperly admitted in evidence because a timely warrant had not been obtained. 414 F.2d 758. The case is here on a petition for a writ of certiorari, 396 U.S. 885, 90 S.Ct. 175, 24 L.Ed.2d 160. We reverse.
4
It has long been held that first-class mail such as letters and sealed packages subject to letter postage—as distinguished from newspapers, magazines, pamphlets, and other printed matter—is free from inspection by postal authorities, except in the manner provided by the Fourth Amendment. As stated in Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877, decided in 1878:
5
'Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the Constitution.'
6
The course of events since 1878 has underlined the relevance and importance of the Post Office to our constitutional rights. Mr. Justice Holmes in United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437, 41 S.Ct. 352, 363, 65 L.Ed. 704 (dissenting opinion), said that 'the use of the mails is almost as much a part of free speech as the right to use our tongues.' We have emphasized over and over again that while Congress may classify the mail and fix the charges for its carriage, it may not set up regimes of censorship over it. Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586, nor encumber its flow by setting 'administrative officials astride the flow of mail to inspect it, appraise it, write the addressee about it, and await a response before dispatching the mail' to him.2 Lamont v. Postmaster General, 381 U.S. 301, 306, 85 S.Ct. 1493, 1496, 14 L.Ed.2d 398. Yet even first-class mail is not beyond the reach of all inspection; and the sole question here is whether the conditions for its detention and inspection had been satisfied. We think they had been.
7
The nature and weight of the packages, the fictitious return address, and the British Columbia license plates of respondent who made the mailings in this border town certainly justified detention, without a warrant, while an investigation was made. The 'protective search for weapons' of a suspect which the Court approved in Terry v. Ohio, 392 U.S. 1, 20—27, 88 S.Ct. 1868, 1879 1883, 20 L.Ed.2d 889, even when probable cause for an arrest did not exist, went further than we need go here. The only thing done here on the basis of suspicion was detention of the packages. There was at that point no possible invasion of the right 'to be secure' in the 'persons, houses, papers, and effects' protected by the Fourth Amendment against 'unreasonable searches and seizures.' Theoretically—and it is theory only that respondent has on his side—detention of mail could at some point become an unreasonable seizure of 'papers' or 'effects' within the meaning of the Fourth Amendment. Detention for 1 1/2 hours—from 1:30 p.m. to 3 p.m.—for an investigation certainly was not excessive; and at the end of that time probable cause existed for believing that the California package was part of an illicit project. A warrant could have been obtained that day for the one package; yet the mystery of the other package remained unsolved and federal officials in Tennessee could not be reached because of the time differential. The next morning they were reached and it was learned that the second package was also probably part of an illicit project. By 4 p.m.—or 26 1/2 hours after the mailing in Mt. Vernon—a search warrant was obtained in Seattle and at 6:30 p.m., or 29 hours after the mailing, the search warrant reached Mt. Vernon, a speedy transmission considering the rush-hour time of day and the congested highway.
8
No interest protected by the Fourth Amendment was invaded by forwarding the packages the following day rather than the day when they were deposited. The significant Fourth Amendment interest was in the privacy of this first-class mail; and that privacy was not disturbed or invaded until the approval of the magistrate was obtained.
9
The rule of our decision certainly is not that first-class mail can be detained 29 hours after mailing in order to obtain the search warrant needed for its inspection. We only hold that on the facts of this case—the nature of the mailings, their suspicious character, the fact that there were two packages going to separate destinations, the unavoidable delay in contacting the more distant of the two destinations, the distance between Mt. Vernon and Seattle—a 29-hour delay between the mailings and the service of the warrant cannot be said to be 'unreasonable' within the meaning of the Fourth Amendment. Detention for this limited time was, indeed, the prudent act rather than letting the packages enter the mails and then, in case the initial suspicions were confirmed, trying to locate them en route and enlisting the help of distant federal officials in serving the warrant.
10
Reversed.
1
39 CFR § 131.2 describes 'first class' mail as 'matter closed against postal inspection,' which follows the definition in 39 U.S.C. § 4251(a).
2
The question as to the right of the addressee to stop deliveries is a separate and distinct one. See No. 399, Rowan v. U.S. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736.
| 01
|
397 U.S. 280
90 S.Ct. 1028
25 L.Ed.2d 307
Mae WHEELER et al., Appellants,v.John MONTGOMERY, Director of the State Department of Social Welfare, et al. Jack R. GOLDBERG, Commissioner of Social Services of the City of New York, Appellant, v. John KELLY et al.
Nos. 14, 62.
Supreme Court of the United States
March 23, 1970
Peter E. Sitkin, San Francisco, Cal., for appellants.
Elizabeth Palmer, San Francisco, Cal., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This is a companion case to No. 62, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. It is a class action brought by all recipients of old age benefits who are subject to California welfare termination provisions. A three-judge District Court for the Northern District of California held that the California procedure for pre-termination review in welfare cases satisfies the requirements of the Due Process Clause, 296 F.Supp. 138 (1968), and we noted probable jurisdiction, 394 U.S. 970, 89 S.Ct. 1452, 22 L.Ed.2d 751 (1969). This procedure requires notice to the recipient of the proposed discontinuance or suspension at least three days prior to its effective date, together with reasons for the intended action and a statement of what information or action is required to reestablish eligibility, advice that the recipient may meet his caseworker before his benefits are terminated '(t)o discuss the entire matter informally for purposes of clarification and, where possible, resolution,' and assurance that there will be 'prompt investigation' of the case and restoration of payments 'as soon as there is eligibility' to receive them.* The procedure does not, however, afford the recipient an evidentiary hearing at which he may personally appear to offer oral evidence and confront and cross-examine the witnesses against him. In Goldberg v. Kelly, supra, decided today, we held that procedural due process requires such an evidentiary pre-termination hearing before welfare payments may be discontinued or suspended. Accordingly, the judgment of the District Court must be and is reversed on the authority of Goldberg v. Kelly.
2
Reversed.
3
Mr. Chief Justice BURGER, with whom Mr. Justice BLACK joins, dissenting.
4
Although I agree in large part with Mr. Justice BLACK's views in No. 62, Goldberg v. Kelly, ante, p. 1022, there are additional factors I wish to mention in dissent from today's unwise and precipitous constitutional holdings.
5
The procedures for review of administrative action in the 'welfare' area are in a relatively early stage of development; HEW has already taken the initiative by promulgating regulations requiring that AFDC payments be continued until a final decision after a 'fair hearing' is held.1 The net effect would be to provide a hearing prior to a termination of benefits. Indeed, the HEW administrative regulations go far beyond the result reached today since they require that recipients be given the right to appointed counsel,2 a position expressly rejected by the majority. As the majority notes, see ante, at 1014 n. 3, these regulations are scheduled to take effect in July 1970. Against this background I am baffled as to why we should engage in 'legislating' via constitutional fiat when an apparently reasonable result has been accomplished administratively.
6
That HEW has already adopted such regulations suggests to me that we ought to hold the heavy hand of constitutional adjudication and allow evolutionary processes at various administrative levels to develop, given their flexibility to make adjustments in procedure without long delays. This would permit orderly development of procedural solutions, aided as they would be by expert guidance available within federal agencies which have an overview of the entire problem in the 50 States. I cannot accept—indeed I reject—any notion that a government which pays out billions of dollars to nearly nine million welfare recipients is heartless, insensitive, or indifferent to the legitimate needs of the poor.
7
The Court's action today seems another manifestation of the now familiar constitutionalizing syndrome: once some presumed flaw is observed, the Court then eagerly accepts the invitation to find a constitutionally 'rooted' remedy. If no provision is explicit on the point, it is then seen as 'implicit' or commanded by the vague and nebulous concept of 'fairness.' I can share the impatience of all who seek instant solutions; there is a great temptation in this area to frame remedies that seem fair and can be mandated forthwith as against administrative or congressional action that calls for careful and extended study. That is thought too slow. But, however cumbersome or glacial, this is the procedure the Constitution contemplated.
8
I would not suggest that the procedures of administering the Nation's complex welfare programs are beyond the reach of courts, but I would wait until more is known about the problems before fashioning solutions in the rigidity of a constitutional holding.
9
By allowing the administrators to deal with these problems we leave room for adjustments if, for example, it is found that a particular hearing process is too costly. The history of the complexity of the administrative process followed by judicial review as we have seen it for the past 30 years should suggest the possibility that new layers of procedural protection may become an intolerable drain on the very funds earmarked for food, clothing, and other living essentials.3
10
Aside from the administrative morass that today's decision could well create, the Court should also be cognizant of the legal precedent it may be setting. The majority holding raises intriguing possibilities concerning the right to a hearing at other stages in the welfare process which affect the total sum of assistance, even though the action taken might fall short of complete termination. For example, does the Court's holding embrace welfare reductions or denial of increases as opposed to terminations, or decisions concerning initial applications or requests for special assistance? The Court supplies no distinguishable considerations and leaves these crucial questions unanswered.
11
Mr. Justice STEWART, dissenting.
12
Although the question is for me a close one, I do not believe that the procedures that New York and California now follow in terminating welfare payments are violative of the United States Constitution. See Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 894—897, 81 S.Ct. 1743, 1748—1750, 6 L.Ed.2d 1230.
*
California State Department of Social Welfare, Public Social Services Manual, Reg. 44—325 (effective April 1, 1968). The pertinent provisions of the regulation state:
'.43 * * * The recipient * * * shall be notified, in writing, immediately upon the initial decision being made to withhold a warrant beyond its usual delivery date * * * and in no case less than three * * * mail delivery days prior to the usual delivery date of the warrant * * *. The county shall give such notice as it has reason to believe will be effective including, if necessary, a home call by appropriate personnel. * * * Every notification shall include:
'.431 A statement setting forth the proposed action and the grounds therefor, together with what information, if any, is needed or action required to reestablish eligibility. * * *
'.432 Assurance that prompt investigation is being made; that the withheld warrant will be delivered as soon as there is eligibility to receive it; and that the evidence or other information which brought about the withholding action will be freely discussed with the recipient * * * if he so desires * * *.
'.434 A statement that the recipient * * * may have the opportunity to meet with his caseworker * * * in the county department, at a specified time, or during a given time period which shall not exceed three * * * working days, and the last day of which shall be at least one * * * day prior to the usual delivery date of the warrant, and at a place specifically designated in order to enable the recipient * * *
'(a) To learn the nature and extent of the information on which the withholding action is based;
'(b) To provide any explanation or information, including, but not limited to that described in the notification * * *;
'(c) To discuss the entire matter informally for purposes of clarification and, where possible, resolution.'
1
45 CFR § 205.10, 34 Fed.Reg. 1144 (1969).
2
45 CFR § 220.25, 34 Fed.Reg. 1356 (1969). See also HEW Handbook, pt. IV, §§ 2300(d)(5), 6200—6400.
3
We are told, for example, that Los Angeles County alone employs 12,500 welfare workers to process grants to 500,000 people under various welfare programs. The record does not reveal how many more employees will be required to give this newly discovered 'due process' to every welfare recipient whose payments are terminated for fraud or other factors of ineligibility or those whose initial applications are denied.
| 12
|
397 U.S. 254
90 S.Ct. 1011
25 L.Ed.2d 287
Jack R. GOLDBERG, Commissioner of Social Services of the City of New York, Appellant,v.John KELLY et al.
No. 62.
Argued Oct. 13, 1969.
Decided March 23, 1970.
John J. Loflin, Jr., New York City, for appellant.
Lee A. Albert, New York City, for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question for decision is whether a State that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in violation of the Due Process Clause of the Fourteenth Amendment.
2
This action was brought in the District Court for the Southern District of New York by residents of New York City receiving financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) or under New York State's general Home Relief program.1 Their complaint alleged that the New York State and New York City officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law.2 At the time the suits were filed there was no requirement of prior notice or hearing of any kind before termination of financial aid. However, the State and city adopted procedures for notice and hearing after the suits were brought, and the plaintiffs, appellees here, then challenged the constitutional adequacy of those procedures.
3
The State Commissioner of Social Services amended the State Department of Social Services' Official Regulations to require that local social services officials proposing to discontinue or suspend a recipient's financial aid do so according to a procedure that conforms to either subdivision (a) or subdivision (b) of § 351.26 of the regulations as amended.3 The City of New York elected to promulgate a local procedure according to subdivision (b). That subdivision, so far as here pertinent, provides that the local procedure must include the giving of notice to the recipient of the reasons for a proposed discontinuance or suspension at least seven days prior to its effective date, with notice also that upon request the recipient may have the proposal reviewed by a local welfare official holding a position superior to that of the supervisor who approved the proposed discontinuance or suspension, and, further, that the recipient may submit, for purposes of the review, a written statement to demonstrate why his grant should not be discontinued or suspended. The decision by the reviewing official whether to discontinue or suspend aid must be made expeditiously, with written notice of the decision to the recipient. The section further expressly provides that '(a)ssistance shall not be discontinued or suspended prior to the date such notice of decision is sent to the recipient and his representative, if any, or prior to the proposed effective date of discontinuance or suspension, whichever occurs later.'
4
Pursuant to subdivision (b), the New York City Department of Social Services promulgated Procedure No. 68—18. A caseworker who has doubts about the recipient's continued eligibility must first discuss them with the recipient. If the caseworker concludes that the recipient is no longer eligible, he recommends termination of aid to a unit supervisor. If the latter concurs, he sends the recipient a letter stating the reasons for proposing to terminate aid and notifying him that within seven days he may request that a higher official review the record, and may support the request with a written statement prepared personally or with the aid of an attorney or other person. If the reviewing official affirms the determination of ineligibility, aid is stopped immediately and the recipient is informed by letter of the reasons for the action. Appellees' challenge to this procedure emphasizes the absence of any provisions for the personal appearance of the recipient before the reviewing official, for oral presentation of evidence, and for confrontation and cross-examination of adverse witnesses.4 However, the letter does inform the recipient that he may request a post-termination 'fair hearing.'5 This is a proceeding before an independent state hearing officer at which the recipient may appear personally, offer oral evidence, confront and cross-examine the witnesses against him, and have a record made of the hearing. If the recipient prevails at the 'fair hearing' he is paid all funds erroneously withheld.6 HEW Handbook, pt. IV, §§ 6200—6500; 18 NYCRR §§ 84.2—84.23. A recipient whose aid is not restored by a 'fair hearing' decision may have judicial review. N.Y.Civil Practice Law and Rules, Art. 78 (1963). The recipient is so notified, 18 NYCRR § 84.16.
5
* The constitutional issue to be decided, therefore, is the narrow one whether the Due Process Clause requires that the recipient be afforded an evidentiary hearing before the termination of benefits.7 The District Court held that only a pretermination evidentiary hearing would satisfy the constitutional command, and rejected the argument of the state and city officials that the combination of the post-termination 'fair hearing' with the informal pre-termination review disposed of all due process claims. The court said: 'While post-termination review is relevant, there is one overpowering fact which controls here. By hypothesis, a welfare recipient is destitute, without funds or assets. * * * Suffice it to say that to cut off a welfare recipient in the face of * * * 'brutal need' without a prior hearing of some sort is unconscionable, unless overwhelming considerations justify it.' Kelly v. Wyman, 294 F.Supp. 893, 899, 900 (1968). The court rejected the argument that the need to protect the public's tax revenues supplied the requisite 'overwhelming consideration.' 'Against the justified desire to protect public funds must be weighed the individual's overpowering need in this unique situation not to be wrongfully deprived of assistance. * * * While the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process. Under all the circumstances, we hold that due process requires an adequate hearing before termination of welfare benefits, and the fact that there is a later constitutionally fair proceeding does not alter the result.' Id., at 901. Although state officials were party defendants in the action, only the Commissioner of Social Services of the City of New York appealed. We noted probable jurisdiction, 394 U.S. 971, 89 S.Ct. 1469, 22 L.Ed.2d 751 (1969), to decide important issues that have been the subject of disagreement in principle between the three-judge court in the present case and that convened in Wheeler v. Montgomery, 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2d 307. We affirm.
6
Appellant does not contend that procedural due process is not applicable to the termination of welfare benefits. Such benefits are a matter of statutory entitlement for persons qualified to receive them.8 Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are 'a 'privilege' and not a 'right." Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct. 1322, 1327 (1969). Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); or to denial of a tax exemption, Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); or to discharge from public employment, Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956).9 The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss,' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring), and depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers Union, etc. v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748—1749, 6 L.Ed.2d 1230 (1961), 'consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.' See also Hannah v. Larche, 363 U.S. 420, 440, 442, 80 S.Ct. 1502, 1513, 1514, 4 L.Ed.2d 1307 (1960).
7
It is true, of course, that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing.10 But we agree with the District Court that when welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care.11 Cf. Nash v. Florida Industrial Commission, 389 U.S. 235, 239, 88 S.Ct. 362, 366, 19 L.Ed.2d 438 (1967). Thus the crucial factor in this context—a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are ended—is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy.12
8
Moreover, important governmental interests are promoted by affording recipients a pre-termination evidentiary hearing. From its founding the Nation's basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty.13 This perception, against the background of our traditions, has significantly influenced the development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community. At the same time, welfare guards against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity. Public assistance, then, is not mere charity, but a means to 'promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.' The same governmental interests that counsel the provision of welfare, counsel as well its uninterrupted provision to those eligible to receive it; pre-termination evidentiary hearings are indispensable to that end.
9
Appellant does not challenge the force of these considerations but argues that they are outweighed by countervailing governmental interests in conserving fiscal and administrative resources. These interests, the argument goes, justify the delay of any evidentiary hearing until after discontinuance of the grants. Summary adjudication protects the public fisc by stopping payments promptly upon discovery of reason to believe that a recipient is no longer eligible. Since most terminations are accepted without challenge, summary adjudication also conserves both the fisc and administrative time and energy by reducing the number of evidentiary hearings actually held.
10
We agree with the District Court, however, that these governmental interests are not overriding in the welfare context. The requirement of a prior hearing doubtless involves some greater expense, and the benefits paid to ineligible recipients pending decision at the hearing probably cannot be recouped, since these recipients are likely to be judgment-proof. But the State is not without weapons to minimize these increased costs. Much of the drain on fiscal and administrative resources can be reduced by developing procedures for prompt pre-termination hearings and by skillful use of personnel and facilities. Indeed, the very provision for a post-termination evidentiary hearing in New York's Home Relief program is itself cogent evidence that the State recognizes the primacy of the public interest in correct eligibility determinations and therefore in the provision of procedural safeguards. Thus, the interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the State's interest that his payments not be erroneously terminated, clearly outweighs the State's competing concern to prevent any increase in its fiscal and administrative burdens. As the District Court correctly concluded, '(t)he stakes are simply too high for the welfare recipient, and the possibility for honest error or irritable misjudgment too great, to allow termination of aid without giving the recipient a chance, if he so desires, to be fully informed of the case against him so that he may contest its basis and produce evidence in rebuttal.' 294 F.Supp., at 904—905.
II
11
We also agree with the District Court, however, that the pre-termination hearing need not take the form of a judicial or quasi-judicial trial. We bear in mind that the statutory 'fair hearing' will provide the recipient with a full administrative review.14 Accordingly, the pre-termination hearing has one function only: to produce an initial determination of the validity of the welfare department's grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 343, 89 S.Ct. 1820, 1823, 23 L.Ed.2d 349 (1969) (Harlan, J., concurring). Thus, a complete record and a comprehensive opinion, which would serve primarily to facilitate judicial review and to guide future decisions, need not be provided at the pre-termination stage. We recognize, too, that both welfare authorities and recipients have an interest in relatively speedy resolution of questions of eligibility, that they are used to dealing with one another informally, and that some welfare departments have very burdensome caseloads. These considerations justify the limitation of the pre-termination hearing to minimum procedural safeguards, adapted to the particular characteristics of welfare recipients, and to the limited nature of the controversies to be resolved. We wish to add that we, no less than the dissenters, recognize the importance of not imposing upon the States or the Federal Government in this developing field of law any procedural requirements beyond those demanded by rudimentary due process.
12
'The fundamental requisite of due process of law is the opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). The hearing must be 'at a meaningful time and in a meaingful manner.' Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). In the present context these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally. These rights are important in cases such as those before us, where recipients have challenged proposed terminations as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases.15
13
We are not prepared to say that the seven-day notice currently provided by New York City is constitutionally insufficient per se, although there may be cases where fairness would require that a longer time be given. Nor do we see any constitutional deficiency in the content or form of the notice. New York employs both a letter and a personal conference with a caseworker to inform a recipient of the precise questions raised about his continued eligibility. Evidently the recipient is told the legal and factual bases for the Department's doubts. This combination is probably the most effective method of communicating with recipients.
14
The city's procedures presently do not permit recipients to appear personally with or without counsel before the official who finally determines continued eligibility. Thus a recipient is not permitted to present evidence to that official orally, or to confront or cross-examine adverse witnesses. These omissions are fatal to the constitutional adequacy of the procedures.
15
The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard.16 It is not enough that a welfare recipient may present his position to the decision maker in writing or second-hand through his caseworker. Written submissions are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance. Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision. The second-hand presentation to the decisionmaker by the caseworker has its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligibility rests, the presentation of the recipient's side of the controversy cannot safely be left to him. Therefore a recipient must be allowed to state his position orally. Informal procedures will suffice; in this context due process does not require a particular order of proof or mode of offering evidence. Cf. HEW Handbook, pt. IV, § 6400(a).
16
In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. E.g., ICC v. Louisville & N.R. Co., 227 U.S. 88, 93—94, 33 S.Ct. 185, 187—188, 57 L.Ed. 431 (1913); Willner v. Committee on Character & Fitness, 373 U.S. 96, 103—104, 83 S.Ct. 1175, 1180—1181, 10 L.Ed.2d 224 (1963). What we said in Greene v. McElroy, 360 U.S. 474, 496—497, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959), is particularly pertinent here:
17
'Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment * * *. This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, * * * but also in all types of cases where administrative * * * actions were under scrutiny.'
18
Welfare recipients must therefore be given an opportunity to confront and cross-examine the witnesses relied on by the department.
19
'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.' Powell v. Alabama, 287 U.S. 45, 68—69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). We do not say that counsel must be provided at the pre-termination hearing, but only that the recipient must be allowed to retain an attorney if he so desires. Counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination, and generally safeguard the interests of the recipient. We do not anticipate that this assistance will unduly prolong or otherwise encumber the hearing. Evidently HEW has reached the same conclusion. See 45 CFR § 205.10, 34 Fed.Reg. 1144 (1969); 45 CFR § 220.25, 34 Fed.Reg. 13595 (1969).
20
Finally, the decisionmaker's conclusion as to a recipient's eligibility must rest solely on the legal rules and evidence adduced at the hearing. Ohio Bell Tel. Co. v. PUC, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937); United States v. Abilene & S.R. Co., 265 U.S. 274, 288—289, 44 S.Ct. 565, 569—570, 68 L.Ed. 1016 (1924). To demonstrate compliance with this elementary requirement, the decision maker should state the reasons for his determination and indicate the evidence he relied on, cf. Wichita R. & Light Co. v. PUC, 260 U.S. 48, 57—59, 43 S.Ct. 51, 54—55, 67 L.Ed. 124 (1922), though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law. And, of course, an impartial decision maker is essential. Cf. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Wong Yang Sung v. McGrath, 339 U.S. 33, 45—46, 70 S.Ct. 445, 451 452, 94 L.Ed. 616 (1950). We agree with the District Court that prior involvement in some aspects of a case will not necessarily bar a welfare official from acting as a decision maker. He should not, however, have participated in making the determination under review.
21
Affirmed.
22
Mr. Justice BLACK, dissenting.
23
In the last half century the United States, along with many, perhaps most, other nations of the world, has moved far toward becoming a welfare state, that is, a nation that for one reason or another taxes its most affluent people to help support, feed, clothe, and shelter its less fortunate citizens. The result is that today more than nine million men, women, and children in the United States receive some kind of state or federally financed public assistance in the form of allowances or gratuities, generally paid them periodically, usually by the week, month, or quarter.1 Since these gratuities are paid on the basis of need, the list of recipients is not static, and some people go off the lists and others are added from time to time. These ever-changing lists put a constant administrative burden on government and it certainly could not have reasonably anticipated that this burden would include the additional procedural expense imposed by the Court today.
24
The dilemma of the ever-increasing poor in the midst of constantly growing affluence presses upon us and must inevitably be met within the framework of our democratic constitutional government, if our system is to survive as such. It was largely to escape just such pressing economic problems and attendant government repression that people from Europe, Asia, and other areas settled this country and formed our Nation. Many of those settlers had personally suffered from persecutions of various kinds and wanted to get away from governments that had unrestrained powers to make life miserable for their citizens. It was for this reason, or so I believe, that on reaching these new lands the early settlers undertook to curb their governments by confining their powers within written boundaries, which eventually became written constitutions.2 They wrote their basic charters as nearly as men's collective wisdom could do so as to proclaim to their people and their officials an emphatic command that: 'Thus far and no farther shall you go; and where we neither delegate powers to you, nor prohibit your exercise of them, we the people are left free.'3
25
Representatives of the people of the Thirteen Original Colonies spent long, hot months in the summer of 1787 in Philadelphia, Pennsylvania, creating a government of limited powers. They divided it into three departments—Legislative, Judicial, and Executive. The Judicial Department was to have no part whatever in making any laws. In fact proposals looking to vesting some power in the Judiciary to take part in the legislative process and veto laws were offered, considered, and rejected by the Constitutional Convention.4 In my judgment there is not one word, phrase, or sentence from the beginning to the end of the Constitution from which it can be inferred that judges were granted any such legislative power. True, Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), held, and properly, I think, that courts must be the final interpreters of the Constitution, and I recognize that the holding can provide an opportunity to slide imperceptibly into constitutional amendment and law making. But when federal judges use this judicial power for legislative purposes, I think they wander out of their field of vested powers and transgress into the area constitutionally assigned to the Congress and the people. That is precisely what I believe the Court is doing in this case. Hence my dissent.
26
The more than a million names on the relief rolls in New York,5 and the more than nine million names on the rolls of all the 50 States were not put there at random. The names are there because state welfare officials believed that those people were eligible for assistance. Probably in the officials' haste to make out the lists many names were put there erroneously in order to alleviate immediate suffering, and undoubtedly some people are drawing relief who are not entitled under the law to do so. Doubtless some draw relief checks from time to time who know they are not eligible, either because they are not actually in need or for some other reason. Many of those who thus draw undeserved gratuities are without sufficient property to enable the government to collect back from them any money they wrongfully receive. But the Court today holds that it would violate the Due Process Clause of the Fourteenth Amendment to stop paying those people weekly or monthly allowances unless the government first affords them a full 'evidentiary hearing' even though welfare officials are persuaded that the recipients are not rightfully entitled to receive a penny under the law. In other words, although some recipients might be on the lists for payment wholly because of deliberate fraud on their part, the Court holds that the government is helpless and must continue, until after an evidentiary hearing, to pay money that it does not owe, never has owed, and never could owe. I do not believe there is any provision in our Constitution that should thus paralyze the government's efforts to protect itself against making payments to people who are not entitled to them.
27
Particularly do I not think that the Fourteenth Amendment should be given such an unnecessarily broad construction. That Amendment came into being primarily to protect Negroes from discrimination, and while some of its language can and does protect others, all know that the chief purpose behind it was to protect ex-slaves. Cf. Adamson v. California, 332 U.S. 46, 71—72, and n. 5, 67 S.Ct. 1672, 1686, 91 L.Ed. 1903 (1947) (dissenting opinion). The Court, however, relies upon the Fourteenth Amendment and in effect says that failure of the government to pay a promised charitable instalment to an individual deprives that individual of his own property, in violation of the Due Process Clause of the Fourteenth Amendment. It somewhat strains credulity to say that the government's promise of charity to an individual is property belonging to that individual when the government denies that the individual is honestly entitled to receive such a payment.
28
I would have little, if any, objection to the majority's decision in this case if it were written as the report of the House Committee on Education and Labor, but as an opinion ostensibly resting on the language of the Constitution I find it woefully deficient. Once the verbiage is pared away it is obvious that this Court today adopts the views of the District Court 'that to cut off a welfare recipient in the face of * * * 'brutal need' without a prior hearing of some sort is unconscionable,' and therefore, says the Court, unconstitutional. The majority reaches this result by a process of weighing 'the recipient's interest in avoiding' the termination of welfare benefits against 'the governmental interest in summary adjudication.' Ante, at 263. Today's balancing act requires a 'pre-termination evidentiary hearing,' yet there is nothing that indicates what tomorrow's balance will be. Although the majority attempts to bolster its decision with limited quotations from prior cases, it is obvious that today's result doesn't depend on the language of the Constitution itself or the principles of other decisions, but solely on the collective judgment of the majority as to what would be a fair and humane procedure in this case.
29
This decision is thus only another variant of the view often expressed by some members of this Court that the Due Process Clause forbids any conduct that a majority of the Court believes 'unfair,' 'indecent,' or 'shocking to their consciences.' See, e.g., Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). Neither these words nor any like them appear anywhere in the Due Process Clause. If they did, they would leave the majority of Justices free to hold any conduct unconstitutional that they should conclude on their own to be unfair or shocking to them.6 Had the drafters of the Due Process Clause meant to leave judges such ambulatory power to declare laws unconstitutional, the chief value of a written constitution, as the Founders saw it, would have been lost. In fact, if that view of due process is correct, the Due Process Clause could easily swallow up all other parts of the Constitution. And truly the Constitution would always be 'what the judges say it is' at a given moment, not what the Founders wrote into the document.7 A written constitution, designed to guarantee protection against governmental abuses, including those of judges, must have written standards that mean something definite and have an explicit content. I regret very much to be compelled to say that the Court today makes a drastic and dangerous departure from a Constitution written to control and limit the government and the judges and moves toward a constitution designed to be no more and no less than what the judges of a particular social and economic philosophy declare on the one hand to be fair or on the other hand to be shocking and unconscionable.
30
The procedure required today as a matter of constitutional law finds no precedent in our legal system. Reduced to its simplest terms, the problem in this case is similar to that frequently encountered when two parties have an ongoing legal relationship that requires one party to make periodic payments to the other. Often the situation arises where the party 'owing' the money stops paying it and justifies his conduct by arguing that the recipient is not legally entitled to payment. The recipient can, of course, disagree and go to court to compel payment. But I know of no situation in our legal system in which the person alleged to owe money to another is required by law to continue making payments to a judgment-proof claimant without the benefit of any security or bond to insure that these payments can be recovered if he wins his legal argument. Yet today's decision in no way obligates the welfare recipient to pay back any benefits wrongfully received during the pretermination evidentiary hearings or post any bond, and in all 'fairness' it could not do so. These recipients are by definition too poor to post a bond or to repay the benefits that, as the majority assumes, must be spent as received to insure survival.
31
The Court apparently feels that this decision will benefit the poor and needy. In my judgment the eventual result will be just the opposite. While today's decision requires only an administrative, evidentiary hearing, the inevitable logic of the approach taken will lead to constitutionally imposed, time-consuming delays of a full adversary process of administrative and judicial review. In the next case the welfare recipients are bound to argue that cutting off benefits before judicial review of the agency's decision is also a denial of due process. Since, by hypothesis, termination of aid at that point may still 'deprive an eligible recipient of the very means by which to live while he waits,' ante, at 264, I would be surprised if the weighing process did not compel the conclusion that termination without full judicial review would be unconscionable. After all, at each step, as the majority seems to feel, the issue is only one of weighing the government's pocketbook against the actual survival of the recipient, and surely that balance must always tip in favor of the individual. Similarly today's decision requires only the opportunity to have the benefit of counsel at the administrative hearing, but it is difficult to believe that the same reasoning process would not require the appointment of counsel, for otherwise the right to counsel is a meaningless one since these people are too poor to hire their own advocates. Cf. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963). Thus the end result of today's decision may well be that the government, once it decides to give welfare benefits, cannot reverse that decision until the recipient has had the benefits of full administrative and judicial review, including, of course, the opportunity to present his case to this Court. Since this process will usually entail a delay of several years, the inevitable result of such a constitutionally imposed burden will be that the government will not put a claimant on the rolls initially until it has made an exhaustive investigation to determine his eligibility. While this Court will perhaps have insured that no needy person will be taken off the rolls without a full 'due process' proceeding, it will also have insured that many will never get on the rolls, or at least that they will remain destitute during the lengthy proceedings followed to determine initial eligibility.
32
For the foregoing reasons I dissent from the Court's holding. The operation of a welfare state is a new experiment for our Nation. For this reason, among others, I feel that new experiments in carrying out a welfare program should not be frozen into our constitutional structure. They should be left, as are other legislative determinations, to the Congress and the legislatures that the people elect to make our laws.
1
AFDC was established by the Social Security Act of 1935, 49 Stat. 627, as amended, 42 U.S.C. §§ 601—610 (1964 ed. and Supp. IV). It is a categorical assistance program supported by federal grants-in-aid but administered by the States according to regulations of the Secretary of Health, Education, and Welfare. See N.Y. Social Welfare Law §§ 343—362 (1966). We considered other aspects of AFDC in King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), and in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).
Home Relief is a general assistance program financed and administered solely by New York state and local governments. N.Y. Social Welfare Law §§ 157—165 (1966), since July 1, 1967, Social Services Law §§ 157—166. It assists any person unable to support himself or to secure support from other sources. Id., § 158.
2
Two suits were brought and consolidated in the District Court. The named plaintiffs were 20 in number, including intervenors. Fourteen had been or were about to be cut off from AFDC, and six from Home Relief. During the course of this litigation most, though not all, of the plaintiffs either received a 'fair hearing' (see infra, at 259—260) or were restored to the rolls without a hearing. However, even in many of the cases where payments have been resumed, the underlying questions of eligibility that resulted in the bringing of this suit have not been resolved. For example, Mrs. Altagracia Guzman alleged that she was in danger of losing AFDC payments for failure to cooperate with the City Department of Social Services in suing her estranged husband. She contended that the departmental policy requiring such cooperation was inapplicable to the facts of her case. The record shows that payments to Mrs. Guzman have not been terminated, but there is no indication that the basic dispute over her duty to cooperate has been resolved, or that the alleged danger of termination has been removed. Home Relief payments to Juan DeJesus were terminated because he refused to accept counseling and rehabilitation for drug addiction. Mr. DeJesus maintains that he does not use drugs. His payments were restored the day after his complaint was filed. But there is nothing in the record to indicate that the underlying factual dispute in his case has been settled.
3
The adoption in February 1968 and the amendment in April of Regulation § 351.26 coincided with or followed several revisions by the Department of Health, Education, and Welfare of its regulations implementing 42 U.S.C. § 602(a)(4), which is the provision of the Social Security Act that requires a State to afford a 'fair hearing' to any recipient of aid under a federally assisted program before termination of his aid becomes final. This requirement is satisfied by a post-termination 'fair hearing' under regulations presently in effect. See HEW Handbook of Public Assistance Administration (hereafter HEW Handbook), pt. IV, §§ 6200—6400. A new HEW regulation, 34 Fed.Reg. 1144 (1969), now scheduled to take effect in July 1970, 34 Fed.Reg. 13595 (1969), would require continuation of AFDC payments until the final decision after a 'fair hearing' and would give recipients a right to appointed counsel at 'fair hearings.' 45 CFR § 205.10, 34 Fed.Reg. 1144 (1969); 45 CFR § 220.25, 34 Fed.Reg. 1356 (1969). For the safeguards specified at such 'fair hearings' see HEW Handbook, pt. IV, §§ 6200—6400. Another recent regulation now in effect requires a local agency administering AFDC to give 'advance notice of questions it has about an individual's eligibility so that a recipient has an opportunity to discuss his situation before receiving formal written notice of reduction in payment or termination of assistance.' Id., pt. IV, § 2300(d)(5). This case presents no issue of the validity or construction of the federal regulations. It is only subdivision (b) of § 351.26 of the New York State regulations and implementing procedure 68—18 of New York City that pose the constitutional question before us. Cf. Shapiro v. Thompson, 394 U.S. 618, 641, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600 (1969). Even assuming that the constitutional question might be avoided in the context of AFDC by construction of the Social Security Act or of the present federal regulations thereunder, or by waiting for the new regulations to become effective, the question must be faced and decided in the context of New York's Home Relief program, to which the procedures also apply.
4
These omissions contrast with the provisions of subdivision (a) of § 351.26, the validity of which is not at issue in this Court. That subdivision also requires written notification to the recipient at least seven days prior to the proposed effective date of the reasons for the proposed discontinuance or suspension. However, the notification must further advise the recipient that if he makes a request therefor he will be afforded an opportunity to appear at a time and place indicated before the official identified in the notice, who will review his case with him and allow him to present such written and oral evidence as the recipient may have to demonstrate why aid should not be discontinued or suspended. The District Court assumed that subdivision (a) would be construed to afford rights of confrontation and cross-examination and a decision based solely on the record. Kelly v. Wyman, 294 F.Supp. 893, 906—907 (1968).
5
N.Y. Social Welfare Law § 353(2) (1966) provides for a post-termination 'fair hearing' pursuant to 42 U.S.C. § 602(a)(4). See n. 3, supra. Although the District Court noted that HEW had raised some objections to the New York 'fair hearing' procedures, 294 F.Supp., at 898 n. 9, these objections are not at issue in this Court. Shortly before this suit was filed, New York State adopted a similar provision for a 'fair hearing' in terminations of Home Relief. 18 NYCRR §§ 84.2—84.23. In both AFDC and Home Relief the 'fair hearing' must be held within 10 working days of the request, § 84.6, with decision within 12 working days thereafter, § 84.15. It was conceded in oral argument that these time limits are not in fact observed.
6
Current HEW regulations require the States to make full retroactive payments (with federal matching funds) whenever a 'fair heairng' results in a reversal of a termination of assistance. HEW Handbook, pt. IV, §§ 6200(k), 6300(g), 6500(a); see 18 NYCRR § 358.8. Under New York State regulations retroactive payments can also be made, with certain limitations, to correct an erroneous termination discovered before a 'fair hearing' has been held. 18 NYCRR § 351.27. HEW regulations also authorize, but do not require, the State to continue AFDC payments without loss of federal matching funds pending completion of a 'fair hearing.' HEW Handbook, pt. IV, § 6500(b). The new HEW regulations presently scheduled to become effective July 1, 1970, will supersede all of these provisions. See n. 3, supra.
7
Appellant does not question the recipient's due process right to evidentiary review after termination. For a general discussion of the provision of an evidentiary hearing prior to termination, see Comment, The Constitutional Minimum for the Termination of Welfare Benefits: The Need for and Requirements of a Prior Hearing, 68 Mich.L.Rev. 112 (1969).
8
It may be realistic today to regard welfare entitlements as more like 'property' than a 'gratuity.' Much of the existing wealth in this country takes the form of rights that do not fall within traditional common-law concepts of property. It has been aptly noted that
'(s)ociety today is built around entitlement. The automobile dealer has his franchise, the doctor and lawyer their professional licenses, the worker his union membership, contract, and pension rights, the executive his contract and stock options; all are devices to aid security and independence. Many of the most important of these entitlements now flow from government: subsidies to farmers and businessmen, routes for airlines and channels for television stations; long term contracts for defense, space, and education; social security pensions for individuals. Such sources of security, whether private or public, are no longer regarded as luxuries or gratuities; to the recipients they are essentials, fully deserved, and in no sense a form of charity. It is only the poor whose entitlements, although recognized by public policy, have not been effectively enforced.' Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965). See also Reich, The New Property, 73 Yale L.J. 733 (1964).
9
See also Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926) (right of a certified public accountant to practice before the Board of Tax Appeals); Hornsby v. Allen, 326 F.2d 605 (C.A.5th Cir. 1964) (right to obtain a retail liquor store license); Dixon v. Alabama State Board of Education, 294 F.2d 150 (C.A.5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961) (right to attend a public college).
10
One Court of Appeals has stated: 'In a wide variety of situations, it has long been recognized that where harm to the public is threatened, and the private interest infringed is reasonably deemed to be of less importance, an official body can take summary action pending a later hearing.' R. A. Holman & Co. v. SEC, 112 U.S.App.D.C. 43, 47, 299 F.2d 127, 131, cert. denied, 370 U.S. 911, 82 S.Ct. 1257, 8 L.Ed.2d 404 (1962) (suspension of exemption from stock registration requirement). See also, for example, Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950) (seizure of mislabeled vitamin product); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908) (seizure of food not fit for human use); Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (adoption of wartime price regulations); Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (1964) (disqualification of a contractor to do business with the Government). In Cafeteria & Restaurant Workers Union, etc. v. McElroy, supra, 367 U.S. at 896, 81 S.Ct. at 1749, summary dismissal of a public employee was upheld because '(i)n (its) proprietary military capacity, the Federal Government, * * * has traditionally exercised unfettered control,' and because the case involved the Government's 'dispatch of its own internal affairs.' Cf. Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940).
11
Administrative determination that a person is ineligible for welfare may also render him ineligible for participation in state-financed medical programs. See N.Y. Social Welfare Law § 366 (1966).
12
His impaired adversary position is particularly telling in light of the welfare bureaucracy's difficulties in reaching correct decisions on eligibility. See Comment, Due Process and the Right to a Prior Hearing in Welfare Cases, 37 Ford.L.Rev. 604, 610 611 (1969).
13
See, e.g., Reich, supra, n. 8, 74 Yale L.J., at 1255.
14
Due process does not, of course, require two hearings. If, for example, a State simply wishes to continue benefits until after a 'fair' hearing there will be no need for a preliminary hearing.
15
This case presents no question requiring our determination whether due process requires only an opportunity for written submission, or an opportunity both for written submission and oral argument, where there are no factual issues in dispute or where the application of the rule of law is not intertwined with factual issues. See FCC v. WJR, 337 U.S. 265, 275—277, 69 S.Ct. 1097, 1103—1104, 93 L.ed. 1353 (1949).
16
'(T)he prosecution of an appeal demands a degree of security, awareness, tenacity, and ability which few dependent people have.' Wedemeyer & Moore, The American Welfare System, 54 Calif.L.Rev. 326, 342 (1966).
1
This figure includes all recipients of Oldage Assistance, Aid to Families with Dependent Children, Aid to the Blind, Aid to the Permanently and Totally Disabled, and general assistance. In this case appellants are AFDC and general assistance recipients. In New York State alone there are 951,000 AFDC recipients and 108,000 on general assistance. In the Nation as a whole the comparable figures are 6,080,000 and 391,000. U.S. Bureau of the Census, Statistical Abstract of the United States: 1969 (90th ed.), Table 435, p. 297.
2
The goal of a written constitution with fixed limits on governmental power had long been desired. Prior to our colonial constitutions, the closest man had come to realizing this goal was the political movement of the Levellers in England in the 1640's. J. Frank, The Levellers (1955). In 1647 the Levellers proposed the adoption of An Agreement of the People which set forth written limitations on the English Government. This proposal contained many of the ideas which later were incorporated in the constitutions of this Nation. Id. at 135—147.
3
This command is expressed in the Tenth Amendment:
'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.'
4
It was proposed that members of the judicial branch would sit on a Council of Revision which would consider legislation and have the power to veto it. This proposal was rejected. J. Elliot, 1 Elliot's Debates 160, 164, 214 (Journal of the Federal Convention); 395, 398 (Yates' Minutes); vol. 5, pp. 151, 161—166, 344—349 (Madison's Notes) (Lippincott ed. 1876). It was also suggested that The Chief Justice would serve as a member of the President's executive council, but this proposal was similarly rejected. Id., vol. 5, pp. 442, 445, 446, 462.
5
See n. 1, supra.
6
I am aware that some feel that the process employed in reaching today's decision is not dependent on the individual views of the Justices involved, but is a mere objective search for the 'collective conscience of mankind,' but in my view that description is only a euphemism for an individual's judgment. Judges are as human as anyone and as likely as others to see the world through their own eyes and find the 'collective conscience' remarkably similar to their own. Cf. Griswold v. Connecticut, 381 U.S. 479, 518—519, 85 S.Ct. 1678, 1700—1701, 14 L.Ed.2d 510 (1965) (Black, J., dissenting); Sniadach v. Family Finance Corp., 395 U.S. 337, 350—351, 89 S.Ct. 1820, 1827, 23 L.Ed.2d 349 (1969) (Black, J., dissenting).
7
To realize how uncertain a standard of 'fundamental fairness' would be, one has only to reflect for a moment on the possible disagreement if the 'fairness' of the procedure in this case were propounded to the head of the National Welfare Rights Organization, the president of the national Chamber of Commerce, and the chairman of the John Birch Society.
| 12
|
25 L.Ed.2d 340
90 S.Ct. 1049
397 U.S. 322
UNITED STATES, Petitioner,v.Sheldon A. KEY, Trustee.
No. 402.
Argued Jan. 21, 1970.
Decided March 30, 1970.
Lawrence G. Wallace, Washington, D.C., for petitioner.
Sigmund J. Beck, Indianapolis, Ind., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
In this case the United States challenges the treatment given to its claim for unpaid taxes against an insolvent corporation in reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C. §§ 501—676. Under the reorganization plan approved by the District Court, the debtor, Hancock Trucking, Inc., will sell its chief asset, its Interstate Commerce Commission operating rights, to Hennis Freight Lines, Inc., for $935,000. The sale contract provides for a $300,000 down payment, with the balance to be paid in 78 monthly installments. Under the reorganization plan, the down payment will be used to satisfy certain wage and state and local tax claims in full, to satisfy 20% of the claims of the unsecured creditors, and to satisfy about 10% of the United States' tax claim of $375,386.55. The remainder of the United States' claim will be paid out of the monthly installments. The plan, an atypical one for a corporate reorganization, does not contemplate the continued existence of the debtor as a going concern, but amounts in substance to a liquidation.
2
The United States objects to that aspect of the plan that provides for partial or complete payment of the claims of unsecured creditors and state and local government units before full payment of the federal tax claims. This, the Government urges, violates the command of § 3466 of the Revised Statutes, 31 U.S.C. § 191, that '(w)henever any person indebted to the United States is insolvent * * * the debts due to the United States shall be first satisfied.' Respondent urges that § 3466 does not apply to Chapter X proceedings, but that the United States is entitled only to 'payment' of its tax claim, as provided by § 199 of the Bankruptcy Act, 11 U.S.C. § 599.
3
The Court of Appeals accepted respondent's theory, and affirmed the order of the District Court approving the plan. 407 F.2d 635 (C.A.7th Cir. 1969). We granted certiorari, 396 U.S. 874, 90 S.Ct. 153, 24 L.Ed.2d 132 (1969), and we reverse.
4
Since the earliest days of the Republic, § 3466 and its predecessors have given the Government priority over all other claimants in collecting debts due it from insolvent debtors.1 The present statute has existed almost unchanged since 1797,2 and its historical roots reach back to the similar priority of the Crown in England, an aspect of the royal prerogative, founded upon a policy of protecting the public revenues.3 The same policy underlies the federal statute, United States v. State Bank of North Carolina, 6 Pet. 29, 35, 8 L.Ed. 308 (1832), and it is established that the terms of § 3466 are to be liberally construed to achieve this broad purpose. Beaston v. Farmers' Bank, 12 Pet. 102, 134, 9 L.Ed. 1017 (1838); Bramwell v. United States Fidelity Co., 269 U.S. 483, 487, 46 S.Ct. 176, 177, 70 L.Ed. 368 (1926).
5
Section 3466 applies literally to the situation here. The debtor is concededly insolvent, and it is established that a tax debt is a 'debt due to the United States' within the meaning of the statute. Price v. United States, 269 U.S. 492, 499, 46 S.Ct. 180, 181, 70 L.Ed. 373 (1926). No provision of Chapter X explicitly excepts corporate debtors in reorganization from the application of § 3466, and so the only remaining question is whether the legislative scheme established in Chapter X, either by logical inconsistency or other manifestation of congressional intent, implies such an exception.
6
In approaching a claim of an implied exception to § 3466, we start with the principle, noted above, that the statute must be given a liberal construction consonant with the public policy underlying it. Applying that principle to an earlier claim that a statutory scheme implicitly excluded § 3466, this Court held that '(o)nly the plainest inconsistency would warrant our finding an implied exception to the operation of so clear a command as that of § 3466.' United States v. Emory, 314 U.S. 423, 433, 62 S.Ct. 317, 322—323, 86 L.Ed. 315 (1941).
7
Here the Court of Appeals discerned an intent not to apply § 3466 to Chapter X proceedings from § 199 of the Bankruptcy Act, which forbids the approval of any reorganization plan which does not provide for the 'payment' of taxes or customs due to the United States, unless the Secretary of the Treasury accepts 'a lesser amount.'4 The Court of Appeals further supported its inference of exclusionary intent from §§ 216(7) and 221 of the Act, 11 U.S.C. §§ 616(7) and 621. Section 216(7) provides that where a class of creditors dissents from a reorganization plan, the District Court shall provide 'adequate protection for the realization by them of the value of their claims against the property' in any of four ways, the last and most general of which is by 'such method as will, under and consistent with the circumstances of the particular case, equitably and fairly provide such protection.' Section 221 merely sums up the applicable tests for a valid reorganization plan by providing that '(t)he judge shall confirm a plan if satisfied that' § 199 has been complied with and that 'the plan is fair and equitable, and feasible.'
8
The Court of Appeals reasoned from these provisions to the implied exclusion of the operation of § 3466 as follows:
9
'Within Chapter X, §§ 199, 216 and 221 are inter-related statutes and part of a studied statutory plan. Section 199 outlines the nature of the government's tax claim 'priority', and the two other sections establish an equitable standard to govern the method of payment. If, as the government would have us hold, § 3466 creates an absolute right to first payment in addition to full payment, there would be little need for §§ 199, 216(7) and 221. These sections apply specifically to Chapter X proceedings and should control over the more general and conflicting direction of § 3466.' 407 F.2d, at 638.
10
In our view these provisions are not logically inconsistent with the terms of § 3466, nor would they be rendered redundant if the older statute applied, nor does their language or legislative history reveal a purpose incongruous with its application.
11
In the first place, § 216(7) has nothing to do with the priorities of different classes of claimants under Chapter X. That section merely provides that where an affected class of creditors (and here the United States itself constitutes the whole of such a class) dissents from a plan, their claims are to be dealt with in one of the four ways specified, one of which is that those claims must be disposed of 'equitably and fairly.' This Court has long held that these words, along with the words 'fair and equitable' in § 221, in no way authorize a District Court to ignore or erode priorities otherwise granted by law, and it follows that this language cannot be taken to exclude by implication an explicit statutory priority, such as that granted the United States by § 3466. In short, the words 'fair and equitable' in Chapter X are terms of art, and no plan can be 'fair and equitable' which compromises the rights of senior creditors in order to protect junior creditors. Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 115—116, 60 S.Ct. 1, 7—8, 84 L.Ed. 110 (1939); Consolidated Rock Co. v. Du Bois, 312 U.S. 510, 527—529, 61 S.Ct. 675, 685—687, 85 L.Ed. 982 (1941).
12
We turn then to the argument upon which respondent chiefly relies for his claim that § 3466 does not reach to Chapter X proceedings—the alleged inconsistency between application of the 'first satisfied' requirement and the terms and purposes of § 199. As already noted, § 199 provides that the United States shall have 'payment' of its tax claims in Chapter X proceedings unless the Secretary of the Treasury accepts 'a lesser amount.' Respondent argues and the Court of Appeals held that this establishes by negative implication that Congress did not mean the United States to be able to insist upon the more onerous remedy of payment first in time.5
13
As a matter of logic, we see no inconsistency between a requirement of payment and a requirement of first satisfaction. Congress surely could have provided that the United States receive payment out of a limited fund at the expense of other claimants, and quite consistently provided that when the wherewithal to make such payment became available in installments over time the United States should also have the right to claim the first of those installments and each succeeding one until its debt was satisfied.6 Separate provisions to this effect in the same statute could certainly be read in harmony with each other, and there is no reason why § 3466 should not be read to supplement the requirement of payment contained in § 199 in the same fashion.
14
Nor is § 199 redundant if § 3466 applies in Chapter X proceedings on the ground that a requirement of first satisfaction necessarily implies a requirement of payment. Section 3466 applies only to insolvent debtors.7 Yet Chapter X proceedings are not open merely to corporations that are insolvent, in that their liabilities exceed their assets, but also to those that are solvent in the bankruptcy or asset-liability sense and yet are unable to meet their obligations as they mature. Bankruptcy Act § 130(1), 11 U.S.C. § 530(1). Thus § 199 does not merely give the Government rights already granted by implication in § 3466, but extends the Government's priority, for tax claims at least, to solvent corporations in Chapter X reorganization.
15
Thus, on the face of the statute, no inconsistency arises from applying both § 3466 and § 199 to Chapter X proceedings, much less the 'plain inconsistency' required if respondent is to prevail under the test of United States v. Emory, supra. That in itself strongly suggests that § 3466 should apply here, and our examination of the background and legislative history of § 199 and of Chapter X generally does not reveal a contrary intent on the part of Congress.
16
Before the reorganization legislation of the 1930's, the principle method of reorganizing corporations that were unable to meet their debts was the equity receivership. This judge-made device was designed to preserve the debtor business as a going concern by cancelling claims against it, in return for which cancellation the claimants received debt or equity interests in a new corporation, which then acquired the assets of the old corporation in a judicial sale. See T. Finletter, The Law of Bankruptcy Reorganization 1—17 (1939). By 1926, it was established that § 3466 applied to give the United States an absolute priority for payment of debts due it from insolvent corporations in equity receivership. Price v. United States, 269 U.S., at 502—503, 46 S.Ct., at 181—182; and see Blair, The Priority of the United States in Equity Receiverships, 39 Harv.L.Rev. 1 (1925).
17
In 1933, Congress enacted § 77 of the Bankruptcy Act, 47 Stat. 1474, providing a statutory procedure for the reorganization of railroads. Section 77, as well as later corporate reorganization statutes discussed below, was designed to follow the general format of the equity receivership. As one of the early commentators on the federal statutes has noted, '(t)he principles of the equity receivership underlie nearly every substantive provision of the (reorganization acts).' Finletter, supra, at 3. These statutes were not, of course, mere codifications of the law governing equity receiverships. They were designed in part to correct abuses and inefficiencies that had existed under the prior regime. Duparquet Huot & Noneuse Co. v. Evans, 297 U.S. 216, 218—219, 56 S.Ct. 412, 413—414, 80 L.Ed. 591 (1936). However, the problems of the equity receivership that led to the legislative intervention did not include the Government's priority under § 3466, a relatively uncontroversial aspect of the receivership procedure.
18
Nothing in § 77 casts any doubt on the continued priority of the United States under § 3466. Indeed the only provision in the new statute affecting the claims of the United States was § 77(e), which provided in pertinent part:
19
'If the United States of America is directly a creditor or stockholder, the Secretary of the Treasury is hereby authorized to accept or reject a plan in respect of the interests or claims of the United States.' 47 Stat. 1478.
20
The purpose of this provision was to overcome the effect of two prior rulings of the Attorney General that the Secretary of the Treasury lacked authority to compromise claims of indebtedness owed to the Government by the railroads, 33 Op.Atty.Gen. 423 (1923), 34 Op.Atty.Gen. 108 (1924).8
21
In 1934, Congress enacted § 77B of the Bankruptcy Act, 48 Stat. 911, which provided a reorganization scheme for corporations generally, closely modeled on the railroad reorganization scheme of § 77; § 77B(e)(1) granted the Secretary of the Treasury power to compromise federal claims, in language almost identical with that of § 77(e). 48 Stat. 918. There is no language in the statute, and nothing in its history, to suggest any intention to alter the established priority of the United States under § 3466.
22
In 1935, the Secretary of the Treasury called the attention of Congress to the fact that the courts were construing § 77B(e)(1) to include the United States among the general creditors in reorganization proceedings, so that plans disapproved by the Secretary for failure to satisfy a federal claim could nevertheless be confirmed if the necessary majority of general creditors approved. S.Rep. No. 953, 74th Cong., 1st Sess. (1935). The Secretary proposed an amendment, which, after some weakening in the House, see S.Rep. No. 1386, 74th Cong., 1st Sess. (1935), was adopted.9 49 Stat. 966 (1935). In its relevant provisions, the amendment was identical with present § 199, and the 1938 revisions which culminated in the replacement of § 77B by present Chapter X did not affect it.
23
Thus § 199 is derived from an enactment designed to grant the Government the power to compromise its claims against debtors, and an amendment designed to ensure priority for federal claims over the claims of general creditors. Nothing in this background lends any support to respondent's claim that the draftsmen of Chapter X meant to provide an exception to the operation of § 3466 for reorganization proceedings under the new statute. Indeed the established practice of applying § 3466 to equity receiverships, the acknowledged predecessor of the Chapter X proceeding, combined with the failure to indicate in any way an intent to alter that practice in the new statutes, supports the conclusion that Congress affirmatively meant § 3466 to apply to statutory reorganization.10
24
As we noted at the outset, § 3466 must apply according to its terms except where expressly superseded, or where excluded by a later enactment 'plainly inconsistent' with it. Here the statute literally applies, and no plain inconsistency with the scheme of Chapter X appears. The terms of § 3466 are clearly not satisfied by the reorganization plan here in question, which provides payment in part to general creditors and other nonpreferred claimants11 before satisfaction of the federal tax claim. Therefore the judgment upholding the plan must be reversed, and the case remanded to the Court of Appeals for further proceedings consistent with this opinion.
25
Reversed.
26
Mr. Justice DOUGLAS (concurring).
27
I join the opinion of the Court. As it holds, the Chandler Act provides the standard for treatment of claims of the United States as 'a secured or unsecured creditor' of the debtor. Those are the words of § 199, 52 Stat. 893, 11 U.S.C. § 599. Section 199 goes on to provide that 'no plan which does not provide for the payment' of the claims of the United States for taxes or customs duties shall be 'confirmed' by the judge, 'except upon the acceptance of a lesser amount by the Secretary of the Treasury.'
28
The question therefore is what kind of 'payment,' as used in § 199, the claim of the United States must receive in a Chapter X proceeding.
29
There is no doubt but that the claim of the United States has priority by reason of § 3466 of the Revised Statutes, 31 U.S.C. § 191.
30
Section 216 of the Chandler Act provides the standards for dealing with the priorities among creditors. Section 216(7) says that where 'any class of creditors' affected by the plan does not accept the plan, those claims can be dealt with in several ways, including a method which 'equitably and fairly' protects them. And § 221(2) of the Act provides that the judge shall confirm the plan if satisfied that it is 'fair and equitable, and feasible.'
31
The words 'fair and equitable' are words of art; we have made unmistakably clear that compromising the rights of senior creditors to protect junior creditors is not 'fair and equitable' treatment. Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 115—116, 60 S.Ct. 1, 7—8, 84 L.Ed. 110; Consolidated Rock Co. v. Du Bois, 312 U.S. 510, 527—529, 61 S.Ct. 675, 685—687, 85 L.Ed. 982. We said in the Du Bois case:
32
'(I)t is plain that while creditors may be given inferior grades of securities, their 'superior rights' must be recognized. Clearly, those prior rights are not recognized, in cases where stockholders are participating in the plan, if creditors are given only a face amount of inferior securities equal to the face amount of their claims. They must receive, in addition, compensation for the senior rights which they are to surrender. If they receive less than that full compensatory treatment, some of their property rights will be appropriated for the benefit of stockholders without compensation. That is not permissible.' Id., at 528—529, 61 S.Ct., at 686.
33
The present plan is likewise infirm because it provides junior creditors with immediate, partial payment, while making the United States with a prior claim accept delayed and therefore discounted payment of its claim with all the attendant risks. If the United States is to forego the right to be paid out of the first available funds, it must receive equivalent compensation in return. The Court of Appeals thought that it contradicted § 216 and § 221 to apply § 3466 to a Chapter X plan. Today we take the contrary view. Section 3466 is relevant in defining the priority; § 216 and § 221 are relevant in providing how that priority shall be honored.
1
See, e.g., Act of July 31, 1789, § 21, 1 Stat. 42; Act of August 4, 1790, § 45, 1 Stat. 169.
2
See Act of March 3, 1797, § 5, 1 Stat. 515, as amended by Act of March 2, 1799, § 65, 1 Stat. 676.
3
See 33 Hen. 8, c. 39, § 74 (1541); 13 Eliz. 1, c. 4 (1570).
4
Section 199 provides:
'If the United States is a secured or unsecured creditor or stockholder of a debtor, the claims or stock thereof shall be deemed to be affected by a plan under this chapter, and the Secretary of the Treasury is authorized to accept or reject a plan in respect of the claims or stock of the United States. If, in any proceeding under this chapter, the United States is a secured or unsecured creditor on claims for taxes or customs duties (whether or not the United States has any other interest in, or claim against the debtor, as secured or unsecured creditor or stockholder), no plan which does not provide for the payment thereof shall be confirmed by the judge except upon the acceptance of a lesser amount by the Secretary of the Treasury certified to the court: Provided, That if the Secretary of the Treasury shall fail to accept or reject a plan for more than ninety days after receipt of written notice so to do from the court to which the plan has been proposed, accomplained by a certified copy of the plan, his consent shall be conclusively presumed.' 11 U.S.C. § 599.
5
The Government argues in the alternative that even if § 3466 does not apply to claims against debtors in Chapter X, the plan here is defective even under the § 199 requirement of 'payment' alone, since the defendant of payment of the Government's tax claim while the cash flow from the installment contract is used to satisfy the claims of lower ranking creditors means that the Government is receiving a 'lesser amount,' which § 199 in its terms contrasts with 'payment,' than what it would receive if it had first claim on all cash as it came in. The argument is premised on the fact that the Government cannot collect post-petition interest on its claim. City of New York v. Saper, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710 (1949); United States v. Edens, 189 F.2d 876 (C.A.4th Cir. 1951), aff'd per curiam, 342 U.S. 912, 72 S.Ct. 357, 96 L.Ed. 682 (1952). Because of our determination that § 3466 applies here and requires payment first in time, we need not reach this contention.
6
In the normal Chapter X reorganization no provision need be made for priority in time of different claims. Claimants receive debt or equity interests in a going concern in the usual situation, and the priority of one claimant over another means only that if there is insufficient going-concern value to satisfy both claims, the claimant with priority must receive value equivalent to his full claim if the other claimant is to receive anything. Here a second sense of priority is involved: when cash becomes available to pay off outstanding claims only over a period of time, the claimant with 'priority' in this second sense receives his cash first in time; the nonpriority claimant may receive full payment, but receives it later. In its literal language—' first satisfied'—s 3466 provides this kind of priority, and respondent has not argued that it should not be so construed if it applies here.
7
It seems to have long been assumed that the term insolvent in § 3466 meant insolvent in the bankruptcy sense, and this Court clearly so held in United States v. Oklahoma, 261 U.S. 253, 260 261, 43 S.Ct. 295, 297—298, 67 L.Ed. 638 (1923).
8
See Senate Committee on the Judiciary, Criticisms and Suggestions Relating to H.R. 14359 and S. 5551, Amending the Bankruptcy Act 19—20, 72d Cong., 2d Sess. (Comm.Print.1933).
9
The Secretary had proposed that he be given a veto over plans that failed to provide for 'payment' of any federal claim. See S.Rep. No. 953, supra. The House imposed the 'payment' requirement only upon tax and customs claims, possibly intending to leave the Government in the position of a general creditor with respect to other claims, see S.Rep. No. 1386, supra, and this was the form in which the amendment was adopted. Section 199 preserves this apparent distinction between tax and other claims, see text at n. 4, supra. However the courts, relying on the strong presumption against implied exceptions to § 3466, have not treated the Government as a general creditor in its nontax claims, but rather have held that it has priority under § 3466. United States v. Anderson, 334 F.2d 111 (C.A.5th Cir. 1964); In re Cherry Valley Homes, Inc., 255 F.2d 706 (C.A.3d Cir. 1958); Reconstruction Finance Corp. v. Flynn, 175 F.2d 761 (C.A.2d Cir. 1949).
'If, as appears from the present case, § 3466, if applicable, may, in some instances, give the Government greater protection than § 199, it would be anomalous to deny that protection to Government tax claims while granting it to nontax claims, since Congress clearly intended that tax claims should have greater protection.
10
The leading authorities agree that § 3466 applies to Chapter X proceedings. Finletter, supra, at 388—393; 6A Collier on Bankruptcy 269 n. 11 (14th ed. 1969).
11
This case does not raise the question, never decided by this Court, whether § 3466 grants the Government priority over the prior specific liens of secured creditors. See United States v. Gilbert Associates, 345 U.S. 361, 365—366, 73 S.Ct. 701, 704—705, 97 L.Ed. 1071 (1953).
| 1112
|
397 U.S. 337
90 S.Ct. 1057
25 L.Ed.2d 353
State of ILLINOIS, Petitioner,v.William ALLEN.
No. 606.
Argued Feb. 24, 1970.
Decided March 31, 1970.
Rehearing Denied May 18, 1970.
See 398 U.S. 915, 90 S.Ct. 1684.
Joel M. Flaum, Chicago, Ill., for petitioner.
H. Reed Harris, Chicago, Ill., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that: 'In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.' We have held that the Fourteenth Amendment makes the guarantees of this clause obligatory upon the States. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial. Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). The question presented in this case is whether an accused can claim the benefit of this constitutional right to remain in the courtroom while at the same time he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial.
2
The issue arose in the following way. The respondent, Allen, was convicted by an Illinois jury of armed robbery and was sentenced to serve 10 to 30 years in the Illinois State Penitentiary. The evidence against him showed that on August 12, 1956, he entered a tavern in Illinois and, after ordering a drink, took $200 from the bartender at gunpoint. The Supreme Court of Illinois affirmed his conviction, People v. Allen, 37 Ill.2d 167, 226 N.E.2d 1 (1967), and this Court denied certiorari. 389 U.S. 907, 88 S.Ct. 226, 19 L.Ed.2d 225 (1967). Later Allen filed a petition for a writ of habeas corpus in federal court alleging that he had been wrongfully deprived by the Illinois trial judge of his constitutional right to remain present throughout his trial. Finding no constitutional violation, the District Court declined to issue the writ. The Court of Appeals reversed, 413 F.2d 232 (1969), Judge Hastings dissenting.
3
The facts surrounding Allen's expulsion from the courtroom are set out in the Court of Appeals' opinion sustaining Allen's contention:
4
'After his indictment and during the pretrial stage, the petitioner (Allen) refused court-appointed counsel and indicated to the trial court on several occasions that he wished to conduct his own defense. After considerable argument by the petitioner, the trial judge told him, 'I'll let you be your own lawyer, but I'll ask Mr. Kelly (court-appointed counsel) (to) sit in and protect the record for you, insofar as possible.'
5
'The trial began on September 9, 1957. After the State's Attorney had accepted the first four jurors following their voir dire examination, the petitioner began examining the first juror and continued at great length. Finally, the trial judge interrupted the petitioner, requesting him to confine his questions solely to matters relating to the prospective juror's qualifications. At that point, the petitioner started to argue with the judge in a most abusive and disrespectful manner. At last, and seemingly in desperation, the judge asked appointed counsel to proceed with the examination of the jurors. The petitioner continued to talk, proclaiming that the appointed attorney was not going to act as his lawyer. He terminated his remarks by saying, 'When I go out for lunchtime, you're (the judge) going to be a corpse here.' At that point he tore the file which his attorney had and threw the papers on the floor. The trial judge thereupon stated to the petitioner, 'One more outbreak of that sort and I'll remove you from the courtroom.' This warning had no effect on the petitioner. He continued to talk back to the judge, saying, 'There's not going to be no trial, either. I'm going to sit here and you're going to talk and you can bring your shackles out and straight jacket and put them on me and tape my mouth, but it will do no good because there's not going to be no trial.' After more abusive remarks by the petitioner, the trial judge ordered the trial to proceed in the petitioner's absence. The petitioner was removed from the courtroom. The voir dire examination then continued and the jury was selected in the absence of the petitioner.
6
'After a noon recess and before the jury was brought into the courtroom, the petitioner, appearing before the judge, complained about the fairness of the trial and his appointed attorney. He also said he wanted to be present in the court during his trial. In reply, the judge said that the petitioner would be permitted to remain in the courtroom if he 'behaved (himself) and (did) not interfere with the introduction of the case.' The jury was brought in and seated. Counsel for the petitioner then moved to exclude the witnesses from the courtroom. The (petitioner) protested this effort on the part of his attorney, saying: 'There is going to be no proceeding. I'm going to start talking and I'm going to keep on talking all through the trial. There's not going to be no trial like this. I want my sister and my friends here in court to testify for me.' The trial judge thereupon ordered the petitioner removed from the courtroom.' 413 F.2d, at 233 234.
7
After this second removal, Allen remained out of the courtroom during the presentation of the State's case-in-chief, except that he was brought in on several occasions for purposes of identification. During one of these latter appearances, Allen responded to one of the judge's questions with vile and abusive language. After the prosecution's case had been presented, the trial judge reiterated his promise to Allen that he could return to the courtroom whenever he agreed to conduct himself properly. Allen gave some assurances of proper conduct and was permitted to be present through the remainder of the trial, principally his defense, which was conducted by his appointed counsel.
8
The Court of Appeals went on to hold that the Supreme Court of Illinois was wrong in ruling that Allen had by his conduct relinquished his constitutional right to be present, declaring that:
9
'No conditions may be imposed on the absolute right of a criminal defendant to be present at all stages of the proceeding. The insistence of a defendant that he exercise this right under unreasonable conditions does not amount to a waiver. Such conditions, if insisted upon, should and must be dealt with in a manner that does not compel the relinquishment of his right.
10
'In light of the decision in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884) and Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927), as well as the constitutional mandate of the sixth amendment, we are of the view that the defendant should not have been excluded from the courtroom during his trial despite his disruptive and disrespectful conduct. The proper course for the trial judge was to have restrained the defendant by whatever means necessary, even if those means included his being shackled and gagged.' 413 F.2d at 235.
11
The Court of Appeals felt that the defendant's Sixth Amendment right to be present at his own trial was so 'absolute' that, no matter how unruly or disruptive the defendant's conduct might be, he could never be held to have lost that right so long as he continued to insist upon it, as Allen clearly did. Therefore the Court of Appeals concluded that a trial judge could never expel a defendant from his own trial and that the judge's ultimate remedy when faced with an obstreperous defendant like Allen who determines to make his trial impossible is to bind and gag him.1 We cannot agree that the Sixth Amendment, the cases upon which the Court of Appeals relied, or any other cases of this Court so handicap a trial judge in conducting a criminal trial. The broad dicta in Hopt v. Utah, supra, and Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), that a trial can never continue in the defendant's absence have been expressly rejected. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). We accept instead the statement of Mr. Justice Cardozo who, speaking for the Court in Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934), said: 'No doubt the privilege (of personally confronting witnesses) may be lost by consent or at times even by misconduct.'2 Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.3 Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.
12
It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.
13
* Trying a defendant for a crime while he sits bound and gagged before the judge and jury would to an extent comply with that part of the Sixth Amendment's purposes that accords the defendant an opportunity to confront the witnesses at the trial. But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury's feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold. Moreover, one of the defendant's primary advantages of being present at the trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total physical restraint. It is in part because of these inherent disadvantages and limitations in this method of dealing with disorderly defendants that we decline to hold with the Court of Appeals that a defendant cannot under any possible circumstances be deprived of his right to be present at trial. However, in some situations which we need not attempt to foresee, binding and gagging might posibly be the fairest and most reasonable way to handle a defendant who acts as Allen did here.
II
14
In a footnote the Court of Appeals suggested the possible availability of contempt of court as a remedy to make Allen behave in his robbery trial, and it is true that citing or threatening to cite a contumacious defendant for criminal contempt might in itself be sufficient to make a defendant stop interrupting a trial. If so, the problem would be solved easily, and the defendant could remain in the courtroom. Of course, if the defendant is determined to prevent any trial, then a court in attempting to try the defendant for contempt is still confronted with the identical dilemma that the Illinois court faced in this case. And criminal contempt has obvious limitations as a sanction when the defendant is charged with a crime so serious that a very severe sentence such as death or life imprisonment is likely to be imposed. In such a case the defendant might not be affected by a mere contempt sentence when he ultimately faces a far more serious sanction. Nevertheless, the contempt remedy should be borne in mind by a judge in the circumstances of this case.
15
Another aspect of the contempt remedy is the judge's power, when exercised consistently with state and federal law, to imprison an unruly defendant such as Allen for civil contempt and discontinue the trial until such time as the defendant promises to behave himself. This procedure is consistent with the defendant's right to be present at trial, and yet it avoids the serious shortcomings of the use of shackles and gags. It must be recognized, however, that a defendant might conceivably, as a matter of calculated strategy, elect to spend a prolonged period in confinement for contempt in the hope that adverse witnesses might be unavailable after a lapse of time. A court must guard against allowing a defendant to profit from his own wrong in this way.
III
16
The trial court in this case decided under the circumstances to remove the defendant from the courtroom and to continue his trial in his absence until and unless he promised to conduct himself in a manner befitting an American courtroom. As we said earlier, we find nothing unconstitutional about this procedure. Allen's behavior was clearly of such an extreme and aggravated nature as to justify either his removal from the courtroom or his total physical restraint. Prior to his removal he was repeatedly warned by the trial judge that he would be removed from the courtroom if he persisted in his unruly conduct, and, as Judge Hastings observed in his dissenting opinion, the record demonstrates that Allen would not have been at all dissuaded by the trial judge's use of his criminal contempt powers. Allen was constantly informed that he could return to the trial when he would agree to conduct himself in an orderly manner. Under these circumstances we hold that Allen lost his right guaranteed by the Sixth and Fourteenth Amendments to be present throughout his trial.
IV
17
It is not pleasant to hold that the respondent Allen was properly banished from the court for a part of his own trial. But our courts, palladiums of liberty as they are, cannot be treated disrespectfully with impunity. Nor can the accused be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him. It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes. As guardians of the public welfare, our state and federal judicial systems strive to administer equal justice to the rich and the poor, the good and the bad, the native and foreign born of every race, nationality, and religion. Being manned by humans, the courts are not perfect and are bound to make some errors. But, if our courts are to remain what the Founders intended, the citadels of justice, their proceedings cannot and must not be infected with the sort of scurrilous, abusive language and conduct paraded before the Illinois trial judge in this case. The record shows that the Illinois judge at all times conducted himself with that dignity, decorum, and patience that befit a judge. Even in holding that the trial judge had erred, the Court of Appeals praised his 'commendable patience under severe provocation.'
18
We do not hold that removing this defendant from his own trial was the only way the Illinois judge could have constitutionally solved the problem he had. We do hold, however, that there is nothing whatever in this record to show that the judge did not act completely within his discretion. Deplorable as it is to remove a man from his own trial, even for a short time, we hold that the judge did not commit legal error in doing what he did.
19
The judgment of the Court of Appeals is reversed.
20
Reversed.
21
Mr. Justice BRENNAN, concurring.
22
The safeguards that the Constitution accords to criminal defendants presuppose that government has a sovereign prerogative to put on trial those accused in good faith of violating valid laws. Constitutional power to bring an accused to trial is fundamental to a scheme of 'ordered liberty' and prerequisite to social justice and peace. History has known the breakdown of lawful penal authority—the feud, the vendetta, and the terror of penalties meted out by mobs or roving bands of vigilantes. It has known, too, the perversion of that authority. In some societies the penal arm of the state has reached individual men through secret denunciation followed by summary punishment. In others the solemn power of condemnation has been confided to the caprice of tyrants. Down the corridors of history have echoed the cries of innocent men convicted by other irrational or arbitrary procedures. These are some of the alternatives history offers to the procedure adopted by our Constitution. The right of a defendant to trial—to trial by jury—has long been cherished by our people as a vital restraint on the penal authority of government. And it has never been doubted that under our constitutional traditions trial in accordance with the Constitution is the proper mode by which government exercises that authority.
23
Lincoln said this Nation was 'conceived in liberty and dedicated to the proposition that all men are created equal'. The Founders' dream of a society where all men are free and equal has not been easy to realize. The degree of liberty and equality that exists today has been the product of unceasing struggle and sacrifice. Much remains to be done—so much that the very institutions of our society have come under challenge. Hence, today, as in Lincoln's time, a man may ask 'whether (this) nation or any nation so conceived and so dedicated can long endure.' It cannot endure if the Nation falls short on the guarantees of liberty, justice, and equality embodied in our founding documents. But it also cannot endure if we allow our precious heritage of ordered liberty to be ripped apart amid the sound and fury of our time. It cannot endure if in individual cases the claims of social peace and order on the one side and of personal liberty on the other cannot be mutually resolved in the forum designated by the Constitution. If that resolution cannot be reached by judicial trial in a court of law, it will be reached elsewhere and by other means, and there will be grave danger that liberty, equality, and the order essential to both will be lost.
24
The constitutional right of an accused to be present at his trial must be considered in this context. Thus there can be no doubt whatever that the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward. Over a half century ago this Court in Diaz v. United States, 223 U.S. 442, 457 458, 32 S.Ct. 250, 254—255, 56 L.Ed. 500 (1912), approved what I believe is the governing principle. We there quoted from Falk v. United States, 15 App.D.C. 446 (1899), the case of an accused who appeared at his trial but fled the jurisdiction before it was completed. The court proceeded in his absence, and a verdict of guilty was returned. In affirming the conviction over the accused's objection that he could not be convicted in his absence, the Court of Appeals for the District of Columbia said:
25
'It does not seem to us to be consonant with the dictates of common sense that an accused person * * * should be at liberty, whenever he pleased, * * * to break up a trial already commenced. The practical result of such a proposition, if allowed to be law, would be to prevent any trial whatever until the accused person himself should be pleased to permit it. * * * This would be a travesty of justice which could not be tolerated. * * * (W)e do not think that any rule of law or constitutional principle leads us to any conclusion that would be so disastrous as well to the administration of justice as to the true interests of civil liberty.
26
'The question is one of broad public policy, whether an accused person, placed upon trial for crime and protected by all the safeguards with which the humanity of our present criminal law sedulously surrounds him, can with impunity defy the processes of that law, paralyze the proceedings of courts and juries and turn them into a solemn farce, and ultimately compel society, for its own safety, to restrict the operation of the principle of personal liberty. Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong.'
27
To allow the disruptive activities of a defendant like respondent to prevent his trial is to allow him to profit from his own wrong. The Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes.
28
Of course, no action against an unruly defendant is permissible except after he has been fully and fairly informed that his conduct is wrong and intolerable, and warned of the possible consequences of continued misbehavior. The record makes clear that respondent was so informed and warned in this case. Thus there can be no doubt that respondent, by persisting in his reprehensible conduct, surrendered his right to be present at the trial.
29
As the Court points out, several remedies are available to the judge faced with a defendant bent on disrupting his trial. He can have him bound, shackled, and gagged; he can hold him in civil or criminal contempt; he can exclude him from the trial and carry on in his absence. No doubt other methods can be devised. I join the Court's opinion and agree that the Constitution does not require or prohibit the adoption of any of these courses. The constitutional right to be present can be surrendered if it is abused for the purpose of frustrating the trial. Due process does not require the presence of the defendant if his presence means that there will be no orderly process at all. However, I also agree with the Court that these three methods are not equally acceptable. In particular, shackling and gagging a defendant is surely the least acceptable of them. It offends not only judicial dignity and decorum, but also that respect for the individual which is the lifeblood of the law.
30
I would add only that when a defendant is excluded from his trial, the court should make reasonable efforts to enable him to communicate with his attorney and, if possible, to keep apprised of the progress of his trial. Once the court has removed the contumacious defendant, it is not weakness to mitigate the disadvantages of his expulsion as far as technologically possible in the circumstances.
31
Mr. Justice DOUGLAS.
32
I agree with the Court that a criminal trial, in the constitutional sense, cannot take place where the courtroom is a bedlam and either the accused or the judge is hurling epithets at the other. A courtroom is a hallowed place where trials must proceed with dignity and not become occasions for entertainment by the participants, by extraneous persons, by modern mass media, or otherwise.
33
My difficulty is not with the basic hypothesis of this decision, but with the use of this case to establish the appropriate guidelines for judicial control.
34
This is a stale case, the trial having taken place nearly 13 years ago. That lapse of time is not necessarily a barrier to a challenge of the constitutionality of a criminal conviction. But in this case it should be.
35
There is more than an intimation in the present record that the defendant was a mental case. The passage of time since 1957, the date of the trial, makes it, however, impossible to determine what the mental condition of the defendant was at that time. The fact that a defendant has been found to understand 'the nature and object of the proceedings against him' and thus competent to stand trial1 does not answer the difficult questions as to what a trial judge should do with an otherwise mentally ill defendant who creates a courtroom disturbance. What a judge should do with a defendant whose courtroom antics may not be volitional is a perplexing problem which we should not reach except on a clear record. This defendant had no lawyer and refused one, though the trial judge properly insisted that a member of the bar be present to represent him. He tried to be his own lawyer and what transpired was pathetic, as well as disgusting and disgraceful.
36
We should not reach the merits but should reverse the case for staleness of the record and affirm the denial of relief by the District Court. After all, behind the issuance of a writ of habeas corpus is the exercise of an informed discretion. The question, how to proceed in a criminal case against a defendant who is a mental case, should be resolved only on a full and adequate record.
37
Our real problems of this type lie not with this case but with other kinds of trials. First are the political trials. They frequently recur in our history2 and insofar as they take place in federal courts we have broad supervisory powers over them. That is one setting where the question arises whether the accused has rights of confrontation that the law invades at its peril.
38
In Anglo-American law, great injustices have at times been done to unpopular minorities by judges, as well as by prosecutors. I refer to London in 1670 when William Penn, the gentle Quaker, was tried for causing a riot when all that he did was to preach a sermon on Grace Church Street, his church having been closed under the Conventicle Act:
39
'Penn. I affirm I have broken no law, nor am I Guilty of the indictment that is laid to my charge; and to the end the bench, the jury, and myself, with these that hear us, may have a more direct understanding of this procedure, I desire you would let me know by what law it is you prosecute me, and upon what law you ground my indictment.
40
'Recorder. Upon the common-law.
41
'Penn. Where is that commonlaw?
42
'Rec. You must not think that I am able to run up so many years, and over so many adjudged cases, which we call common-law, to answer your curiosity.
43
'Penn. This answer I am sure is very short of my question, for if it be common, it should not be so hard to produce.
44
'Rec. Sir, will you plead to your indictment?
45
'Penn. Shall I plead to an Indictment that hath no foundation in law? If it contain that law you say I have broken, why should you decline to produce that law, since it will be impossible for the jury to determine, or agree to bring in their verdict, who have not the law produced, by which they should measure the truth of this indictment, and the guilt, or contrary of my fact? 'Rec. You are a saucy fellow, speak to the Indictment.
46
'Penn. I say, it is my place to speak to matter of law; I am arraigned a prisoner; my liberty, which is next to life itself, is now concerned: you are many mouths and ears against me, and if I must not be allowed to make the best of my case, it is hard, I say again, unless you shew me, and the people, the law you ground your indictment upon, I shall take it for granted your proceedings are merely arbitrary.
47
'Rec. The question is, whether you are Guilty of this Indictment?
48
'Penn. The question is not, whether I am Guilty of this Indictment, but whether this Indictment be legal. It is too general and imperfect an answer, to say it is the common-law, unless we knew both where and what it is. For where there is no law, there is no transgression; and that law which is not in being, is so far from being common, that it is no law at all.
49
'Rec. You are an impertinent fellow, will you teach the court what law is? It is 'Lex non scripta,' that which many have studied 30 or 40 years to know, and would you have me to tell you in a moment?
50
'Penn. Certainly, if the common law be so hard to be understood, it is far from being very common; but if the lord Coke in his Institutes be of any consideration, he tells us, That Common-law is common right, and that Common Right is the Great Charter-Privileges * * *.
51
'Rec. Sir, you are a troublesome fellow, and it is not for the honour of the court to suffer you to go on.
52
'Penn. I have asked but one question, and you have not answered me; though the rights and privileges of every Englishman be concerned in it.
53
'Rec. If I should suffer you to ask questions till to-morrow morning, you would be never the wiser.
54
Penn. That is according as the answers are.
55
'Rec. Sir, we must not stand to hear you talk all night.
56
'Penn. I design no affront to the court, but to be heard in my just plea: and I must plainly tell you, that if you will deny me Oyer of that law, which you suggest I have broken, you do at once deny me an acknowledged right, and evidence to the whole world your resolution to sacrifice the privileges of Englishmen to your sinister and arbitrary designs.
57
'Rec. Take him away. My lord, if you take not some course with this pestilent fellow, to stop his mouth, we shall not be able to do any thing to night.
58
'Mayor. Take him away, take him away, turn him into the bale-dock.'3 The Trial of William Penn, 6 How.St.Tr. 951, 958 959.
59
The panel of judges who tried William Penn were sincere, law-and-order men of their day. Though Penn was acquitted by the jury, he was jailed by the court for his contemptuous conduct. Would we tolerate removal of a defendant from the courtroom during a trial because he was insisting on his constitutional rights, albeit vociferously, no matter how obnoxious his philosophy might have been to the bench that tried him? Would we uphold contempt in that situation? Problems of political indictments and of political judges raise profound questions going to the heart of the social compact. For that compact is two-sided: majorities undertake to press their grievances within limits of the Constitution and in accord with its procedures; minorities agree to abide by constitutional procedures in resisting those claims.
60
Does the answer to that problem involve defining the procedure for conducting political trials or does it involve the designing of constitutional methods for putting an end to them? This record is singularly inadequate to answer those questions. It will be time enough to resolve those weighty problems when a political trial reaches this Court for review.
61
Second are trials used by minorities to destroy the existing constitutional system and bring on repressive measures. Radicals on the left historically have used those tactics to incite the extreme right with the calculated design of fostering a regime of repression from which the radicals on the left hope to emerge as the ultimate victor.4 The left in that role is the provocateur. The Constitution was not designed as an instrument for that form of rough-and-tumble contest. The social compact has room for tolerance, patience, and restraint, but not for sabotage and violence. Trials involving that spectacle strike at the very heart of constitutional government.
62
I would not try to provide in this case the guidelines for those two strikingly different types of cases. The case presented here is the classical criminal case without any political or subversive overtones. It involves a defendant who was a sick person and who may or may not have been insane in the classical sense5 but who apparently had a diseased mind. And, as I have said, the record is so stale that it is now much too late to find out what the true facts really were.
1
In a footnote the Court of Appeals also referred to the trial judge's contempt power. This subject is discussed in Part II of this opinion. Infra, at 344-345.
2
Rule 43 of the Federal Rules of Criminal Procedure provides that '(i)n prosecutions for offenses not punishable by death, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.'
3
See Murray, The Power to Expel a Criminal Defendant From His Own Trial: A Comparative View, 36 U.Colo.L.Rev. 171—175 (1964); Goldin, Presence of the Defendant at Rendition of the Verdict in Felony Cases, 16 Col.L.Rev. 18—31 (1916).
1
See n. 5, infra.
2
From Spies v. People, 122 Ill. 1, 12 N.E. 865, 17 N.E. 898, involving the Haymarket riot; In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092, involving the Pullman strike; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, involving the copper strikes of 1917; Commonwealth v. Sacco, 255 Mass. 369, 151 N.E. 839, 259 Mass. 128, 156 N.E. 57, 261 Mass. 12, 158 N.E. 167, involving the Red scare of the 20's; to Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, involving an agreement to teach Marxism.
As to the Haymarket riot resulting in the Spies case, see 2 J. Commons and Associates, History of Labour in the United States 386 et seq. (1918); W. Swindler, Court and Constitution in the Twentieth Century, cc. 3 and 4 (1969).
As to the Pullman strike and the Debs case, see L. Pfeffer, This Honorable Court 215—216 (1965); A. Lindsey, The Pullman Strike, cc. XII and XIII (1942); Commons, supra, at 502—508.
As to the Mooney case, see the January 18, 1922, issue of The New Republic; R. Frost, The Mooney Case (1968).
As to the Sacco-Vanzetti case see Fraenkel, The Sacco-Vanzetti Case; F. Frankfurter, The Case of Sacco and Vanzetti (1927).
As to the repression of teaching involved in the Dennis case, see O. Kirchheimer. Political Justice 132—158 (1961).
3
At Old Bailey, where the William Penn trial was held the baledock (or baildock) was 'a small room taken from one of the corners of the court, and left open at the top; in which, during the trials, are put some of the malefactors.' Oxford Eng. Dict.
4
As respects the strategy of German Communists vis-a-vis the Nazis in the 1930's, see K. Heiden, Der Fuehrer 461, 462, 525, 551—552 (1944).
5
In a 1956 pretrial sanity hearing, Allen was found to be incompetent to stand trial. Approximately a year later, however, on October 19, 1957, in a second competency hearing, he was declared sane and competent to stand trial.
Allen's sister and brother testified in Allen's behalf at the trial. They recited instances of Allen's unusual past behavior and stated that he was confined to a mental institution in 1953, although no reason for this latter confinement was given. A doctor called by the prosecution testified that he had examined Allen shortly after the commission of the crime which took place on August 12, 1956, and on other subsequent occasions, and that, in his opinion, Allen was sane at the time of each examination. This evidence was admitted on the question of Allen's sanity at the time of the offense. The jury found him sane at that time and the Illinois Supreme Court affirmed that finding. See People v. Allen, 37 Ill.2d 167, 226 N.E.2d 1.
At the time of Allen's trial in 1957, the tests in Illinois for the defendant's sanity at the time of the criminal act were the M'Naghten Rule supplemented by the so-called 'irrestible impulse test.' People v. Carpenter, 11 Ill.2d 60, 142 N.Ed.2d 11. The tests for determining a defendant's sanity at the time of trial were that '(h)e should be capable of understanding the nature and object of the proceedings against him, his own condition in reference to such proceedings, and have sufficient mind to conduct his defense in a rational and reasonable manner,' and, further, that 'he should be capable of co-operating with his counsel to the end that any available defenses may be interposed.' People v. Burson, 11 Ill.2d 360, 369, 143 N.E.2d 239, 244—245.
| 01
|
397 U.S. 358
90 S.Ct. 1068
25 L.Ed.2d 368
In the Matter of Samuel WINSHIP, Appellant.
No. 778.
Argued Jan. 20, 1970.
Decided March 31, 1970.
Rena K. Uviller, New York City, for appellant.
Stanley Buchsbaum, Brooklyn, N.Y., for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Constitutional questions decided by this Court concerning the juvenile process have centered on the adjudicatory stage at 'which a determination is made as to whether a juvenile is a 'delinquent' as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution.' In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967). Gault decided that, although the Fourteenth Amendment does not require that the hearing at this stage conform with all the requirements of a criminal trial or even of the usual administrative proceeding, the Due Process Clause does require application during the adjudicatory hearing of "the essentials of due process and fair treatment." Id., at 30, 87 S.Ct. at 1445. This case presents the single, narrow question whether proof beyond a reasonable doubt is among the 'essentials of due process and fair treatment' required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.1
2
Section 712 of the New York Family Court Act defines a juvenile delinquent as 'a person over seven and less than sixteen years of age who does any act which, if done by an adult, would constitute a crime.' During a 1967 adjudicatory hearing, conducted pursuant to § 742 of the Act, a judge in New York Family Court found that appellant, then a 12-year-old boy, had entered a locker and stolen $112 from a woman's pocketbook. The petition which charged appellant with delinquency alleged that his act, 'if done by an adult, would constitute the crime or crimes of Larceny.' The judge acknowledged that the proof might not establish guilt beyond a reasonable doubt, but rejected appellant's contention that such proof was required by the Fourteenth Amendment. The judge relied instead on § 744(b) of the New York Family Court Act which provides that '(a)ny determination at the conclusion of (an adjudicatory) hearing that a (juvenile) did an act or acts must be based on a preponderance of the evidence.'2 During a subsequent dispositional hearing, appellant was ordered placed in a training school for an initial period of 18 months, subject to annual extensions of his commitment until his 18th birthday—six years in appellant's case. The Appellate Division of the New York Supreme Court, First Judicial Department, affirmed without opinion, 30 A.D.2d 781, 291 N.Y.S.2d 1005 (1968). The New York Court of Appeals then affirmed by a four-to-three vote, expressly sustaining the constitutionality of § 744(b), 24 N.Y.2d 196, 299 N.Y.S.2d 414, 247 N.W.2d 253 (1969).3 We noted probable jurisdiction 396 U.S. 885, 90 S.Ct. 179, 24 L.Ed.2d 160 (1969). We reverse.
3
* The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The 'demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, (though) its crystallization into the formula 'beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.' C. McCormick, Evidence § 321, pp. 681—682 (1954); see also 9 J. Wigmore, Evidence, § 2497 (3d ed. 1940). Although virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does 'reflect a profound judgment about the way in which law should be enforced and justice administered.' Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968).
4
Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. See, for example, Miles v. United States, 103 U.S. 304, 312, 26 L.Ed. 481 (1881); Davis v. United States, 160 U.S. 469, 488, 16 S.Ct. 353, 358, 40 L.Ed. 499 (1895); Holt v. United States, 218 U.S. 245, 253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910); Wilson v. United States, 232 U.S. 563, 569—570, 34 S.Ct. 347, 349, 350, 58 L.Ed. 728 (1914); Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949); Leland v. Oregon, 343 U.S. 790, 795, 72 S.Ct. 1002, 1005, 1006, 96 L.Ed. 1302 (1952); Holland v. United States, 348 U.S. 121, 138, 75 S.Ct. 127, 136, 137, 99 L.Ed. 150 (1954); Speiser v. Randall, 357 U.S. 513, 525—526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958). Cf. Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895). Mr. Justice Frankfurter stated that '(i)t the duty of the Government to establish * * * guilt beyond a reasonable doubt. This notion—basic in our law and rightly one of the boasts of a free society—is a requirement and a safeguard of due process of law in the historic, procedural content of 'due process." Leland v. Oregon, supra, 343 U.S., at 802—803, 72 S.Ct., at 1009 (dissenting opinion). In a similar vein, the Court said in Brinegar v. United States, supra, 338 U.S., at 174, 69 S.Ct., at 1310, that '(g)uilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.' Davis v. United States, supra, 160 U.S., at 488, 16 S.Ct., at 358 stated that the requirement is implicit in 'constitutions * * * (which) recognize the fundamental principles that are deemed essential for the protection of life and liberty.' In Davis a murder conviction was reversed because the trial judge instructed the jury that it was their duty to convict when the evidence was equally balanced regarding the sanity of the accused. This Court said: 'On the contrary, he is entitled to an acquittal of the specific crime charged, if upon all the evidence, there is reasonable doubt whether he was capable in law of committing crime. * * * No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them * * * is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.' Id., at 484, 493, 16 S.Ct., at 357, 360.
5
The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law.' Coffin v. United States, supra, 156 U.S., at 453, 15 S.Ct., at 403. As the dissenters in the New York Court of Appeals observed, and we agree, 'a person accused of a crime * * * would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.' 24 N.Y.2d, at 205, 299 N.Y.S.2d, at 422, 247 N.E.2d, at 259.
6
The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interest of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we said in Speiser v. Randall, supra, 357 U.S., at 525—526, 78 S.Ct., at 1342: 'There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of * * * persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of * * * convincing the factfinder of his guilt.' To this end, the reasonable-doubt standard is indispensable, for it 'impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.' Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967).
7
Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
8
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
II
9
We turn to the question whether juveniles, like adults, are constitutionally entitled to proof beyond a reasonable doubt when they are charged with violation of a criminal law. The same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child. We do not find convincing the contrary arguments of the New York Court of Appeals, Gault rendered untenable much of the reasoning relied upon by that court to sustain the constitutionality of § 744(b). The Court of Appeals indicated that a delinquency adjudication 'is not a 'conviction' (§ 781); that it affects no right or privilege, including the right to hold public office or to obtain a license (§ 782); and a cloak of protective confidentiality is thrown around all the proceedings (§§ 783 784).' 24 N.Y.2d at 200, 299 N.Y.S.2d, at 417—418, 247 N.E.2d, at 255—256. The court said further: 'The delinquency status is not made a crime; and the proceedings are not criminal. There is, hence, no deprivation of due process in the statutory provision (challenged by appellant) * * *.' 24 N.Y.2d, at 203, 299 N.Y.S.2d, at 420, 247 N.E.2d, at 257. In effect the Court of Appeals distinguished the proceedings in question here from a criminal prosecution by use of what Gault called the "civil' label-of-convenience which has been attached to juvenile proceedings.' 387 U.S., at 50, 87 S.Ct., at 1455. But Gault expressly rejected that distinction as a reason for holding the Due Process Clause inapplicable to a juvenile proceeding. 387 U.S., at 50—51, 87 S.Ct., at 1455, 1456. The Court of Appeals also attempted to justify the preponderance standard on the related ground that juvenile proceedings are designed 'not to punish, but to save the child.' 24 N.Y.2d, at 197, 299 N.Y.S.2d, at 415, 247 N.E.2d, at 254. Again, however, Gault expressly rejected this justification. 387 U.S., at 27, 87 S.Ct., at 1443. We made clear in that decision that civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for '(a) proceeding where the issue is whether the child will be found to be 'delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.' Id., at 36, 87 S.Ct., at 1448.
10
Nor do we perceive any merit in the argument that to afford juveniles the protection of proof beyond a reasonable doubt would risk destruction of beneficial aspects of the juvenile process.4 Use of the reasonable-doubt standard during the adjudicatory hearing will not disturb New York's policies that a finding that a child has violated a criminal law does not constitute a criminal conviction, that such a finding does not deprive the child of his civil rights, and that juvenile proceedings are confidential. Nor will there be any effect on the informality, flexibility, or speed of the hearing at which the factfinding takes place. And the opportunity during the post-adjudicatory or dispositional hearing for a wide-ranging review of the child's social history and for his individualized treatment will remain unimpaired. Similarly, there will be no effect on the procedures distinctive to juvenile proceedings that are employed prior to the adjudicatory hearing.
11
The Court of Appeals ovserved that 'a child's best interest is not necessarily, or even probably, promoted if he wins in the particular inquiry which may bring him to the juvenile court.' 24 N.Y.2d, at 199, 299 N.Y.S.2d, at 417, 247 N.E.2d, at 255. It is true, of course, that the juvenile may be engaging in a general course of conduct inimical to his welfare that calls for judicial intervention. But that intervention cannot take the form of subjecting the child to the stigma of a finding that he violated a criminal law5 and to the possibility of institutional confinement on proof insufficient to convict him were he an adult.
12
We conclude, as we concluded regarding the essential due process safeguards applied in Gault, that the observance of the standard of proof beyond a reasonable doubt 'will not compel the States to abandon or displace any of the substantive benefits of the juvenile process.' Gault, supra, at 21, 87 S.Ct., at 1440.
13
Finally, we reject the Court of Appeals' suggestion that there is, in any event, only a 'tenuous difference' between the reasonable-doubt and preponderance standards. The suggestion is singularly unpersuasive. In this very case, the trial judge's ability to distinguish between the two standards enabled him to make a finding of guilt that he conceded he might not have made under the standard of proof beyond a reasonable doubt. Indeed, the trial judge's action evidences the accuracy of the observation of commentators that 'the preponderance test is susceptible to the misinterpretation that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted.' Dorsen & Rezneck, supra, at 26—27.6
III
14
In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault—notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals, 'that, where a 12-year-old child is charged with an act of stealing which renders him liable to confinement for as long as six years, then, as a matter of due process * * * the case against him must be proved beyond a reasonable doubt.' 24 N.Y.2d, at 207, 299 N.Y.S.2d, at 423, 247 N.E.2d, at 260.
15
Reversed.
16
Mr. Justice HARLAN, concurring.
17
No one, I daresay, would contend that state juvenile court trials are subject to no federal constitutional limitations. Differences have existed, however, among the members of this Court as to what constitutional protections do apply. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
18
The present case draws in question the validity of a New York statute that permits a determination of juvenile delinquency, founded on a charge of criminal conduct, to be made on a standard of proof that is less rigorous than that which would obtain had the accused been tried for the same conduct in an ordinary criminal case. While I am in full agreement that this statutory provision offends the requirement of fundamental fairness embodied in the Due Process Clause of the Fourteenth Amendment, I am constrained to add something to what my Brother BRENNAN has written for the Court, lest the true nature of the constitutional problem presented become obscured or the impact on state juvenile court systems of what the Court holds today be exaggerated.
19
* Professor Wigmore, in discussing the various attempts by courts to define how convinced one must be to be convinced beyond a reasonable doubt, wryly observed: 'The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief. Hence there can be yet no successful method of communicating intelligibly * * * a sound method of selfanalysis for one's belief,' 9 J. Wigmore, Evidence 325 (3d ed. 1940).1
20
Notwithstanding Professor Wigmore's skepticism, we have before us a case where the choice of the standard of proof has made a difference: the juvenile court judge below forthrightly acknowledged that he believed by a preponderance of the evidence, but was not convinced beyond a reasonable doubt, that appellant stole $112 from the complainant's pocketbook. Moreover, even though the labels used for alternative standards of proof are vague and not a very sure guide to decisionmaking, the choice of the standard for a particular variety of adjudication does, I think, reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.2
21
To explain why I think this so, I begin by stating two propositions, neither of which I believe can be fairly disputed. First, in a judicial proceeding in which there is a dispute about the facts of some earlier event, the factfinder cannot acquire unassailably accurate knowledge of what happened. Instead, all the fact-finder can acquire is a belief of what probably happened. The intensity of this belief—the degree to which a factfinder is convinced that a given act actually occurred—can, of course, vary. In this regard, a standard of proof represents an attempt to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Although the phrases 'preponderance of the evidence' and 'proof beyond a reasonable doubt' are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.
22
A second proposition, which is really nothing more than a corollary of the first, is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff's favor. The criminal analogue would be the acquittal of a guilty man.
23
The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each.
24
When one makes such an assessment, the reason for different standards of proof in civil as opposed to criminal litigation becomes apparent. In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor. A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly,3 it simply requires the trier of fact 'to believe that the existence of a fact is more probable than its nonexistence before (he) may find in favor of the party who has the burden to persuade the (judge) of the fact's existence.'4
25
In a criminal case, on the other hand, we do not view the social disutility of convincting an innocent man as equivalent to the disutility of acquitting someone who is guilty. As Mr. Justice Brennan wrote for the Court in Speiser v. Randall, 357 U.S. 513, 525—526, 78 S.Ct. 1332, 1341—1342, 2 L.Ed.2d 1460 (1958):
26
'There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty this margin of error is reduced as to him by the process of placing on the other party the burden * * * of persuading the fact-finder at the conclusion of the trial of his guilt beyond a reasonable doubt.'
27
In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. It is only because of the nearly complete and long-standing acceptance of the reasonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness,5 requires a more stringent standard for criminal trials than for ordinary civil litigation.
II
28
When one assesses the consequences of an erroneous factual determination in a juvenile delinquency proceeding in which a youth is accused of a crime, I think it must be concluded that, while the consequences are not identical to those in a criminal case, the differences will not support a distinction in the standard of proof. First, and of paramount importance, a factual error here, as in a criminal case, exposes the accused to a complete loss of his personal liberty through a state-imposed confinement away from his home, family, and friends. And, second, a delinquency determination, to some extent at least, stigmatizes a youth in that it is by definition bottomed on a finding that the accused committed a crime.6 Although there are no doubt costs to society (and possibly even to the youth himself) in letting a guilty youth go free, I think here, as in a criminal case, it is far worse to declare an innocent youth a delinquent. I therefore agree that a juvenile court judge should be no less convinced of the factual conclusion that the accused committed the criminal act with which he is charged than would be required in a criminal trial.
III
29
I wish to emphasize, as I did in my separate opinion in Gault, 387 U.S. 1, 65, 87 S.Ct. 1428, 1463, that there is no automatic congruence between the procedural requirements imposed by due process in a criminal case, and those imposed by due process in juvenile cases.7 It is of great importance, in my view, that procedural strictures not be constitutionally imposed that jeopardize 'the essential elements of the State's purpose' in creating juvenile courts, id., at 72, 87 S.Ct. at 1467. In this regard, I think it worth emphasizing that the requirement of proof beyond a reasonable doubt that a juvenile committed a criminal act before he is found to be a delinquent does not (1) interfere with the worthy goal of rehabilitating the juvenile, (2) make any significant difference in the extent to which a youth is stigmatized as a 'criminal' because he has been found to be a delinquent, or (3) burden the juvenile courts with a procedural requirement that will make juvenile adjudications significantly more time consuming, or rigid. Today's decision simply requires a juvenile court judge to be more confident in his belief that the youth did the act with which he has been charged.
30
With these observations, I join the Court's opinion, subject only to the constitutional reservations expressed in my opinion in Gault.
31
Mr. Chief Justice BURGER, with whom Mr. Justice STEWART joins, dissenting.
32
The Court's opinion today rests entirely on the assumption that all juvenile proceedings are 'criminal prosecutions,' hence subject to constitutional limitations. This derives from earlier holdings, which, like today's holding, were steps eroding the differences between juvenile courts and traditional criminal courts. The original concept of the juvenile court system was to provide a benevolent and less formal means than criminal courts could provide for dealing with the special and often sensitive problems of youthful offenders. Since I see no constitutional requirement of due process sufficient to overcome the legislative judgment of the States in this area, I dissent from further straitjacketing of an already overly restricted system. What the juvenile court system needs is not more but less of the trappings of legal procedure and judicial formalism; the juvenile court system requires breathing room and flexibility in order to survive, if it can survive the repeated assaults from this Court.
33
Much of the judicial attitude manifested by the Court's opinion today and earlier holdings in this field is really a protest against inadequate juvenile court staffs and facilities; we 'burn down the stable to get rid of the mice.' The lack of support and the distressing growth of juvenile crime have combined to make for a literal breakdown in many if not most juvenile courts. Constitutional problems were not seen while those courts functioned in an atmosphere where juvenile judges were not crushed with an avalanche of cases.
34
My hope is that today's decision will not spell the end of a generously conceived program of compassionate treatment intended to mitigate the rigors and trauma of exposing youthful offenders to a traditional criminal court; each step we take turns the clock back to the pre-juvenile-court era. I cannot regard it as a manifestation of progress to transform juvenile courts into criminal courts, which is what we are well on the way to accomplishing. We can only hope the legislative response will not reflect our own by having these courts abolished.
35
Mr. Justice BLACK, dissenting.
36
The majority states that 'many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required.' Ante, at 362. I have joined in some of those opinions, as well as the dissenting opinion of Mr. Justice Frankfurter in Leland v. Oregon, 343 U.S. 790, 802, 72 S.Ct. 1002, 1009, 96 L.Ed. 1302 (1952). The Court has never clearly held, however, that proof beyond a reasonable doubt is either expressly or impliedly commanded by any provision of the Constitution. The Bill of Rights, which in my view is made fully applicable to the States by the Fourteenth Amendment, see Adamson v. California, 332 U.S. 46, 71—75, 67 S.Ct. 1672, 1686—1688, 91 L.Ed. 1903 (1947) (dissenting opinion), does by express language provide for, among other things, a right to counsel in criminal trials, a right to indictment, and the right of a defendant to be informed of the nature of the charges against him.1 And in two places the Constitution provides for trial by jury,2 but nowhere in that document is there any statement that conviction of crime requires proof of guilt beyond a reasonable doubt. The Constitution thus goes into some detail to spell out what kind of trial a defendant charged with crime should have, and I believe the Court has no power to add to or subtract from the procedures set forth by the Founders. I realize that it is far easier to substitute individual judges' ideas of 'fairness' for the fairness prescribed by the Constitution, but I shall not at any time surrender my belief that that document itself should be our guide, not our own concept of what is fair, decent, and right. That this old 'shock-the-conscience' test is what the Court is relying on, rather than the words of the Constitution, is clearly enough revealed by the reference of the majority to 'fair treatment' and to the statement by the dissenting judges in the New York Court of Appeals that failure to require proof beyond a reasonable doubt amounts to a 'lack of fundamental fairness.' Ante, at 359, 363. As I have said time and time again, I prefer to put my faith in the words of the written Constitution itself rather than to rely on the shifting, day-to-day standards of fairness of individual judges.
37
* Our Constitution provides that no person shall be 'deprived of life, liberty, or property, without due process of law.'3 The four words—due process of law—have been the center of substantial legal debate over the years. See Chambers v. Florida, 309 U.S. 227, 235—236, and n. 8, 60 S.Ct. 472, 476—477, 84 L.Ed. 716 (1940). Some might think that the words themselves are vague. But any possible ambiguity disappears when the phrase is viewed in the light of history and the accepted meaning of those words prior to and at the time our Constitution was written.
38
'Due process of law' was originally used as a shorthand expression for governmental proceedings according to the 'law of the land' as it existed at the time of those proceedings. Both phrases are derived from the laws of England and have traditionally been regarded as meaning the same thing. The Magna Charta provided that:
39
'No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by Law of the Land.'4
40
Later English statutes reinforced and confirmed these basic freedoms. In 1350 a statute declared that 'it is contained in the Great Charter of the Franchises of England that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land * * *.'5 Four years later another statute provided '(t)hat no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.'6 And in 1363 it was provided 'that no man be taken or imprisoned, nor put out of his freehold, without process of law.'7
41
Drawing on these and other sources, Lord Coke, in 1642, concluded that 'due process of law' was synonymous with the phrase 'by law of the land.'8 One of the earliest cases in this Court to involve the interpretation of the Due Process Clause of the Fifth Amendment declared that '(t)he words, 'due process of law,' were undoubtedly intended to convey the same meaning as the words 'by the law of the land' in Magna Charta.' Murray's Lessee v. Hoboken Land & Improv. Co., 18 How. 272, 276, 15 L.Ed. 372 (1856).
42
While it is thus unmistakably clear that 'due process of law' means according to 'the law of the land,' this Court has not consistently defined what 'the law of the land' means and in my view members of this Court frequently continue to misconceive the correct interpretation of that phrase. In Murray's Lessee, supra, Mr. Justice Curtis, speaking for the Court, stated:
43
'The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.' Id., at 276—277.9
44
Later in Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908), Mr. Justice Moody, again speaking for the Court, reaffirmed that 'due process of law' meant 'by law of the land,' but he went on to modify Mr. Justice Curtis' definition of the phrase. He stated:
45
'First. What is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. * * *
46
'Second. It does not follow, however, that a procedure settled in English law at the time of the emigration, and brought to this country and practiced by our ancestors, is an essential element of due process of law. If that were so the procedure of the first half of the seventeenth century would be fastened upon the American jurisprudence like a straight-jacket, only to be unloosed by constitutional amendment. * * *
47
'Third. But, consistently with the requirements of due process, no change in ancient procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law and protect the citizen in his private right, and guard him against the arbitrary action of government.' Id., at 100—101, 29 S.Ct., at 20.10
48
In those words is found the kernel of the 'natural law due process' notion by which this Court frees itself from the limits of a written Constitution and sets itself loose to declare any law unconstitutional that 'shocks its conscience,' deprives a person of 'fundamental fairness,' or violates the principles 'implicit in the concept of ordered liberty.' See Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 210, 96 L.Ed. 183 (1952); Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). While this approach has been frequently used in deciding so-called 'procedural' questions, it has evolved into a device as easily invoked to declare invalid 'substantive' laws that sufficiently shock the consciences of at least five members of this Court. See, e.g., Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905); Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915); Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813 (1924); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). I have set forth at length in prior opinions my own views that this concept is completely at odds with the basic principle that our Government is one of limited powers and that such an arrogation of unlimited authority by the judiciary cannot be supported by the language or the history of any provision of the Constitution. See, e.g., Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684, 91 L.Ed. 1903 (1947) (dissenting opinion); Griswold v. Connecticut, supra, 381 U.S., at 507, 85 S.Ct., at 1694, 14 L.Ed.2d 510 (1965) (dissenting opinion).
49
In my view both Mr. Justice Curtis and Mr. Justice Moody gave 'due process of law' an unjustifiably broad interpretation. For me the only correct meaning of that phrase is that our Government must proceed according to the 'law of the land'—that is, according to written constitutional and statutory provisions as interpreted by court decisions. The Due Process Clause, in both the Fifth and Fourteenth Amendments, in and of itself does not add to those provisions, but in effect states that our governments are governments of law and constitutionally bound to act only according to law.11 To some that view may seem a degrading and niggardly view of what is undoubtedly a fundamental part of our basic freedoms. But that criticism fails to note the historical importance of our Constitution and the virtual revolution in the history of the government of nations that was achieved by forming a government that from the beginning had its limits of power set forth in one written document that also made it abundantly clear that all governmental actions affecting life, liberty, and property were to be according to law.
50
For years our ancestors had struggled in an attempt to bring England under one written constitution, consolidating in one place all the threads of the fundamental law of that nation. They almost succeeded in that attempt,12 but it was not until after the American Revolution that men were able to achieve that longsought goal. But the struggle had not been simply to put all the constitutional law in one document, it was also to make certain that men would be governed by law, not the arbitrary fiat of the man or men in power. Our ancestors' ancestors had known the tyranny of the kings and the rule of man and it was, in my view, in order to insure against such actions that the Founders wrote into our own Magna Carta the fundamental principle of the rule of law, as expressed in the historically meaningful phrase 'due process of law.' The many decisions of this Court that have found in that phrase a blanket authority to govern the country according to the views of at least five members of this institution have ignored the essential meaning of the very words they invoke. When this Court assumes for itself the power to declare any law—state or federal—unconstitutional because it offends the majority's own views of what is fundamental and decent in our society, our Nation ceases to be governed according to the 'law of the land' and instead becomes one governed ultimately by the 'law of the judges.'
51
It can be, and has been, argued that when this Court strikes down a legislative act because it offends the idea of 'fundamental fairness' it furthers the basic thrust of our Bill of Rights by protecting individual freedom. But that argument ignores the effect of such decisions on perhaps the most fundamental individual liberty of our people—the right of each man to participate in the self-government of his society. Our Federal Government was set up as one of limited powers, but it was also given broad power to do all that was 'necessary and proper' to carry out its basic purpose of governing the Nation, so long as those powers were not exercised contrary to the limitations set forth in the Constitution. And the States, to the extent they are not restrained by the provisions in that document, were to be left free to govern themselves in accordance with their own views of fairness and decency. Any legislature presumably passes a law because it thinks the end result will help more than hinder and will thus further the liberty of the society as a whole. The people, through their elected representatives, may of course be wrong in making those determinations, but the right of self-government that our Constitution preserves is just as important as any of the specific individual freedoms preserved in the Bill of Rights. The liberty of government by the people in my opinion, should never be denied by this Court except when the decision of the people as stated in laws passed by their chosen representatives, conflicts with the express or necessarily implied commands of our Constitution.
II
52
I admit a strong, persuasive argument can be made for a standard of proof beyond a reasonable doubt in criminal cases—and the majority has made that argument well—but it is not for me as a judge to say for that reason that Congress or the States are without constitutional power to establish another standard that the Constitution does not otherwise forbid. It is quite true that proof beyond a reasonable doubt has long been required in federal criminal trials. It is also true that this requirement is almost universally found in the governing laws of the States. And as long as a particular jurisdiction requires proof beyond a reasonable doubt, then the Due Process Clause commands that every trial in that jurisdiction must adhere to that standard. See Turner v. United States, 396 U.S. 398, 430, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (Black, J., dissenting). But when, as here, a State through its duly constituted legislative branch decides to apply a different standard, then that standard, unless it is otherwise unconstitutional, must be applied to insure that persons are treated according to the 'law of the land.' The State of New York has made such a decision, and in my view nothing in the Due Process Clause invalidates it.
1
Thus, we do not see how it can be said in dissent that this opinion 'rests entirely on the assumption that all juvenile proceedings are 'criminal prosecutions,' hence subject to constitutional limitations.' As in Gault, 'we are not here concerned with * * * the pre-judicial stages of the juvenile process, nor do we direct our attention to the post-adjudicative or dispositional process.' 387 U.S., at 13, 87 S.Ct., at 1436. In New York, the adjudicatory stage of a delinquency proceeding is clearly distinct from both the preliminary phase of the juvenile process and from its dispositional stage. See N.Y. Family Court Act §§ 731—749. Similarly, we intimate no view concerning the constitutionality of the New York procedures governing children 'in need of supervision.' See id., at §§ 711, 712, 742—745. Nor do we consider whether there are other 'essentials of due process and fair treatment' required during the adjudicatory hearing of a delinquency proceeding. Finally, we have no occasion to consider appellant's argument that § 744(b) is a violation of the Equal Protection Clause, as well as a denial of due process.
2
The ruling appears in the following portion of the hearing transcript:
Counsel: 'Your Honor is making a finding by the preponderance of the evidence.'
Court: 'Well, it convinces me.'
Counsel: 'It's not beyond a reasonable doubt, Your Honor.'
Court: 'That is true * * * Our statute says a preponderance and a preponderance it is.'
3
Accord, e.g., In re Dennis M., 70 Cal.2d 444, 75 Cal.Rptr. 1, 450 P.2d 296 (1969); In re Ellis, 253 A.2d 789 (D.C.Ct.App. 1969); State v. Arenas, 253 Or. 215, 453 P.2d 915 (Or.1969); State v. Santana, 444 S.W.2d 614 (Texas 1969). Contra. United States v. Costanzo, 395 F.2d 441 (C.A.4th Cir. 1968); In re Urbasek, 38 Ill.2d 535, 232 N.E.2d 716 (1967); Jones v. Commonwealth, 185 Va. 335, 38 S.E.2d 444 (1946); N.D.Cent.Code § 27—20—29(2) (Supp. 1969); Colo.Rev.Stat.Ann. § 22—3—6(1) (1967); Md.Ann.Code, Art. 26, § 70—18(a) (Supp. 1969); N.J.Ct.Rule 6:9(1)(f) (1967); Wash.Sup.Ct., Juv.Ct.Rule § 4.4(b) (1969); cf. In re Agler, 19 Ohio St.2d 70, 249 N.E.2d 808 (1969).
Legislative adoption of the reasonabledoubt standard has been urged by the National Conference of Commissioners on Uniform State Laws and by the Children's Bureau of the Department of Health, Education, and Welfare's Social and Rehabilitation Service. See Uniform Juvenile Court Act § 29(b) (1968); Children's Bureau, Social and Rehabilitation Service, U.S. Department of Health, Education and Welfare, Legislative Guide for Drafting Family and Juvenile Court Acts § 32(c) (1969). Cf. the proposal of the National Council on Crime and Delinquency that a 'clear and convincing' standard be adopted. Model Rules for Juvenile Courts, Rule 26, p. 57 (1969). See generally Cohen, The Standard of Proof in Juvenile Proceedings: Gault Beyond a Reasonable Doubt, 68 Mich.L.Rev. 567 (1970).
4
Appellee, New York City, apparently concedes as much in its Brief, page 8, where it states:
'A determination that the New York law unconstitutionally denies due process because it does not provide for use of the reasonable doubt standard probably would not have a serious impact if all that resulted would be a change in the quantum of proof.'
And Dorsen & Rezneck, supra, at 27, have observed:
'(T)he reasonable doubt test is superior to all others in protecting against an unjust adjudication of guilt, and that is as much a concern of the juvenile court as of the criminal court. It is difficult to see how the distinctive objectives of the juvenile court give rise to a legitimate institutional interest in finding a juvenile to have committed a violation of the criminal law on less evidence than if he were an adult.'
5
The more comprehensive and effective the procedures used to prevent public disclosure of the finding, the less the danger of stigma. As we indicated in Gault, however, often the 'claim of secrecy * * * is more rhetoric than reality.' 387 U.S., at 24, 87 S.Ct., at 1442.
6
Compare this Court's rejection of the preponderance standard in deportation proceedings, where we ruled that the Government must support its allegations with 'clear, unequivocal, and convincing evidence.' Woodby v. Immigration and Naturalization Service, 385 U.S., 276, 285, 87 S.Ct. 483, 488, 17 L.Ed.2d 362 (1966). Although we ruled in Woodby that deportation is not tantamount to a criminal conviction, we found that since it could lead to 'drastic deprivations,' it is impermissible for a person to be 'banished from this country upon no higher degree of proof than applies in a negligence case.' Ibid.
1
See also Paulsen, Juvenile Courts and the Legacy of '67, 43 Ind.L.J. 527, 551—552 (1968).
2
For an interesting analysis of standards of proof see Kaplan, Decision Theory and the Factfinding Process, 20 Stan.L.Rev. 1065, 1071—1077 (1968).
3
The preponderance test has been criticized, justifiably in my view, when it is read as asking the trier of fact to weigh in some objective sense the quantity of evidence submitted by each side rather than asking him to decide what he believes most probably happened. See J. Maguire, Evidence, Common Sense and Common Law 180 (1947).
4
F. James, Civil Procedure 250—251 (1965); see E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 84—85 (1956).
5
In dissent my Brother BLACK again argues that, apart from the specific prohibitions of the first eight amendments, any procedure spelled out by a legislature—no matter how unfair—passes constitutional muster under the Due Process Clause. He bottoms his conclusion on history that he claims demonstrates (1) that due process means 'law of the land'; (2) that any legislative enactment, ipso facto, is part of the law of the land; and (3) that the Fourteenth
Amendment incorporates the prohibitions of the Bill of Rights and applies them to the States. I cannot refrain from expressing my continued bafflement at my Brother BLACK'S insistence that due process, whether under the Fourteenth Amendment or the Fifth Amendment, does not embody a concept of fundamental fairness as part of our scheme of constitutionally ordered liberty. His thesis flies in the face of a course of judicial history reflected in an unbroken line of opinions that have interpreted due process to impose restraints on the procedures government may adopt in its dealing with its citizens, see, e.g., the cases cited in my dissenting opinions in Poe v. Ullman, 367 U.S. 497, 522, 539—545, 81 S.Ct. 1752, 1765, 1774—1778, 6 L.Ed.2d 989 (1961); Duncan v. Louisiana, 391 U.S. 145, 171, 88 S.Ct. 1444, 1458, 1459, 20 L.Ed.2d 491 (1968); as well as the uncontroverted scholarly research (notwithstanding H. Flack, The Adoption of the Fourteenth Amendment (1908)), respecting the intendment of the Due Process Clause of the Fourteenth Amendment, see Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949). Indeed, with all respect, the very case cited in Brother BLACK'S dissent as establishing that 'due process of law' means 'law of the land' rejected the argument that any statute, by the mere process of enactment, met the requirements of the Due Process Clause. In Murray's Lessee v. Hoboken Land & Improv. Co., 18 How, 272, 15 L.Ed. 372 (1856), an issue was whether a 'distress warrant' issued by the Solicitor of the Treasury under an act of Congress to collect money due for taxes offended the Due Process Clause. Justice Curtis wrote: 'That the warrant now in question is legal process, is not denied. It was issued in conformity with an Act of Congress. But is it 'due process of law?' The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will.' Id., at 276. (Emphasis supplied.)
6
The New York statute was amended to distinguish between a 'juvenile delinquent,' i.e., a youth 'who does any act which, if done by an adult, would constitute a crime,' N.Y.Family Court Act § 712 (1963), and a '(p)erson in need of supervision' (PINS) who is a person 'who is an habitual truant or who is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority.' The PINS category was established in order to avoid the stigma of finding someone to be a 'juvenile delinquent' unless he committed a criminal act. The Legislative Committee report stated: "Juvenile delinquent' is now a term of disapproval. The judges of the Children's Court and the Domestic Relations Court of course are aware of this and also aware that government officials and private employers often learn of an adjudication of delinquency.' N.Y.Jt. Legislative Committee on Court Reorganization, The Family Court Act, pt. 2, p. 7 (1962). Moreover, the powers of the police and courts differ in these two categories of cases. See id., at 7—9. Thus, in a PINS type case, the consequences of an erroneous factual determination are by no means identical to those involved here.
7
In Gault, for example, I agreed with the majority that due process required (1) adequate notice of the 'nature and terms' of the proceedings; (2) notice of the right to retain counsel, and an obligation on the State to provide counsel for indigents 'in cases in which the child may be confined'; and (3) a written record 'adequate to permit effective review.' 387 U.S., at 72, 87 S.Ct., at 1467. Unlike the majority, however, I thought it unnecessary at the time of Gault to impose the additional requirements of the privilege against self-incrimination, confrontation, and cross-examination.
1
Amdts. V, VI, U.S. Constitution.
2
Art. III, § 2, cl. 3; Amdt. VI, U.S. Constitution.
3
The Fifth Amendment applies this limitation to the Federal Government and the Fourteenth Amendment imposes the same restriction on the States.
4
9 Hen. 3, c. 29 (1225). A similar provision appeared in c. 39 of the original issue signed by King John in 1215.
5
25 Edw. 3, Stat. 5, c. IV.
6
28 Edw. 3, c. III.
7
37 Edw. 3, c. XVIII.
8
Coke's Institutes, Second Part, 50 (1st ed. 1642).
9
Cf. United States v. Hudson, 7 Cranch 32, 3 L.Ed. 259 (1812), in which the Court held that there was no jurisdiction in federal courts to try criminal charges based on the common law and that all federal crimes must be based on a statute of Congress.
10
Cf. the views of Mr. Justice Iredell in Calder v. Bull, 3 Dall. 386, 398, 1 L.Ed. 648 (1798).
11
It is not the Due Process Clause of the Fourteenth Amendment, standing alone, that requires my conclusion that that Amendment was intended to apply fully the protection of the Bill of Rights to actions by the States. That conclusion follows from the language
of the entire first section of the Fourteenth Amendment, as illuminated by the legislative history surrounding its adoption. See Adamson v. California, supra, 32 U.S., at 71—75, 92—123, 67 S.Ct., at 1686—1688, 1696—1711.
Mr. Justice Harlan continues to insist that uncontroverted scholarly research shows that the Fourteenth Amendment did not incorporate the Bill of Rights as limitations on the States. See Poe v. Ullman, 367 U.S. 497, 540, 81 S.Ct. 1752, 1775, 6 L.Ed.2d 989 (1961) (dissenting opinion); Griswold v. Connecticut, supra, 381 U.S., at 500, 85 S.Ct., at 1690 (concurring in judgment); ante, at 372-373, n. 5. I cannot understand that conclusion. Mr. Fairman, in the article repeatedly cited by Mr. Justice Harlan, surveys the legislative history and concludes that it is his opinion that the amendment did not incorporate the Bill of Rights. Mr. Flack, in at least an equally 'scholarly' writing, surveys substantially the same documents relied upon by Mr. Fairman and concludes that a prime objective of Congress in proposing the adoption of the Fourteenth Amendment was '(t)o make the Bill of Rights (the first eight Amendments) binding upon, or applicable to, the States.' Compare H. Flack, The Adoption of the Fourteenth Amendment 95 (1908), with Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949). It is, of course, significant that since the adoption of the Fourteenth Amendment this Court has held almost all the provisions of the Bill of Rights applicable to the States: the First Amendment, e.g., Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); the Fourth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); the Fifth Amendment, Chicago B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897), Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); the Sixth Amendment Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); and the Eighth Amendment, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). To me this history indicates that in the end Mr. Flack's thesis has fared much better than Mr. Fairman's 'uncontroverted' scholarship.
12
See J. Frank, The Levellers (1955).
| 12
|
397 U.S. 397
90 S.Ct. 1207
25 L.Ed.2d 442
Julia ROSADO et al., Petitioners,v.George K. WYMAN, etc., et al.
No. 540.
Argued Nov. 19, 1969.
Decided April 6, 1970.
[Syllabus from pages 397-398 intentionally omitted]
Lee A. Albert, New York City, for petitioners.
Philip Weinberg, New York City, for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The present controversy, which involves the compatibility of the New York Social Services Law, McKinney's Consol. Laws, c. 55 (c. 184, L. 1969) with § 402(a)(23) of the Social Security Act of 1935, as amended, 81 Stat. 898, 42 U.S.C. § 602(a)(23) (1964 ed., Supp. IV), arises out of a pendent claim originally included in petitioners' complaint bringing a class action challenging § 131—a of the same New York statute as violative of equal protection by virtue of its provision for lesser payments to Aid to Families With Dependent Children recipients in Nassau County than those allowed for New York City residents. Pursuant to the recommendation of Judge Weinstein, a three-judge court was convened on April 24, 1969, and a hearing was held. 304 F.Supp. 1350.
2
Before a decision was rendered New York State amended § 131—a to permit the State Commissioner of Social Services to make, in his discretion, grants to recipients in Nassau County equal to those provided for New York City residents. The three-judge panel in a memorandum opinion of May 12, 1969, concluded that the equal protection issue was 'no longer justiciable' and that '(t)he constitutional attack on the provision (§ 131—a) as originally adopted has been rendered moot and any attack on the newly adopted subdivision would not be ripe for adjudication * * * until there (had) been opportunity for action by state officials * * *.'1 That court further held that since there existed 'no reason for continuing the three-judge court,' the 'matter' should be 'remanded to the single judge to whom the complaint was originally presented for such further proceedings as are appropriate.' 304 F.Supp. 1354, 1356. On the same day as the three-judge court dissolved itself, Judge Weinstein issued a preliminary injunction prohibiting respondents from reducing or discontinuing payments of 'regular recurring grants and special grants,' payable under the predecessor welfare law, 304 F.Supp. 1356, and the State's elimination of which from the computation of welfare benefits is the subject matter of the controversy now before this Court.
3
An interlocutory appeal was taken to the Court of Appeals and the case was granted a calendar preference. After hearing oral argument the Court of Appeals, on June 11, entered an order staying the preliminary injunction pending its disposition of the appeal and later converted its stay into an order staying the permanent injunction subsequently issued by the District Court when it granted summary judgment on June 18, 1969, 304 F.Supp. 1356, 1381. On July 16, 1969, the Court of Appeals panel announced its judgment of reversal, accompanied by three opinions. 414 F.2d 170. Chief Judge Lumbard and Judge Hays agreed that the three-judge panel had properly dissolved itself and were of the view, for somewhat different reasons, that Judge Weinstein should not have ruled on the merits of petitioners' statutory claim; they also expressed their opinion that the single-judge District Court (hereinafter District Court) erred on the merits. Judge Feinberg disagreed on all scores, expressing the view that the District Court properly reached and correctly decided the merits of the statutory claim.
4
Petitioners' application to the author of this opinion, as Circuit Justice, for a stay and an accelerated review was referred by him to the entire Court, and on October 13, 1969, certiorari was granted. 396 U.S. 815, 90 S.Ct. 106, 24 L.Ed.2d 68. The request for a stay was denied but the case was set down for early argument.
5
We now reverse. For essentially those reasons stated in the opinion of the District Court and Circuit Jduge Feinberg's dissent, we think the District Court correctly exercised its discretion by proceeding to the merits. We are also unable to accept the conclusion reached by a majority of the Court of Appeals that § 402(a)(23) does not affect States like New York that place no limitation on the level of payments of welfare benefits as determined by their standard of need. For reasons set forth in Part II, we conclude that the present New York program does not fulfill the requirements of § 402(a)(23) of the federal statute.
6
* A.
7
We consider the threshold question of whether subject matter jurisdiction was vested in the District Court to decide this federal statutory challenge to the New York Social Services Law.
8
That the three-judge court itself not only had jurisdiction but would have been obliged to adjudicate this statutory claim in preference to deciding the original constitutional claim in this case follows from King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), where, on an appeal from a three-judge court, we decided the statutory question in order to avoid a constitutional ruling. 392 U.S., at 312 n. 3, 88 S.Ct., at 2130.
9
In the case before us the constitutional claim was declared moot prior to decision by the three-judge court and the question arises whether that circumstance removed not only the obligation but destroyed the power of a federal court to adjudicate the pendent claim.2 We think not. Jurisdiction over federal claims, constitutional or otherwise, is vested, exclusively or concurrently, in the federal district courts. Such courts usually sit as single-judge tribunals. While Congress has determined that certain classes of cases shall be heard in the first instance by a district court composed of three judges, that does not mean that the court qua court loses all jurisdiction over the complaint that is initially lodged with it. To the contrary, once petitioners filed their complaint alleging the unconstitutionality of § 131—a, the District Court sitting as a one-man tribunal, was properly seised of jurisdiction over the case under §§ 1343(3) and (4) of Title 28 and could dispose of even the constitutional question either by dismissing the complaint for want of a substantial federal question, Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933),3 or by granting requested injunctive relief if 'prior decisions (made) frivolous any claim that (the) state statute on its face (was) not unconstitutional.' Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L.Ed.2d 512 (1962). Even had the constitutional claim not been declared moot, the most appropriate course may well have been to remand to the single district judge for findings and the determination of the statutory claim rather than encumber the district court, at a time when district court calendars are overburdened, by consuming the time of three federal judges in a matter that was not required to be determined by a three-judge court. See Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965).
10
On remand the District Court correctly considered mootness a factor affecting its discretion, not its power, and balanced the policy considerations that have spawned the doctrine of pendency and the countervailing policy of federalism: the extent of the investment of judicial energy and the character of the claim. Not only had there been hearings and argument prior to dismissal of the constitutional claim, but the statutory question is so essentially one 'of federal policy that the argument for exercise of pendent jurisdiction is particularly strong.'4 United Mine Workers v. Gibbs, 383 U.S. 715, 727, 86 S.Ct. 1130, 1139 (1966).
11
Respondents analogize dismissal for mootness to dismissal for want of a substantial claim and rely on language in United Mine Workers v. Gibbs, to the effect that a federal court should not pass on a state claim when the federal claim falters at the threshold and is 'dismissed before trial.'5 383 U.S., at 726, 86 S.Ct., at 1139. The argument would appear to be that once a federal court loses power over the jurisdiction-conferring claim, it may not consider a pendent claim. They contend that mootness, like insubstantiality, is a threshold jurisdictional defect.
12
Whether or not the view that an insubstantial federal question does not confer jurisdiction—a maxim more ancient than analytically sound—should now be held to mean that a district court should be considered without discretion, as opposed to power, to hear a pendent claim, we think the respondents' analogy fails. Unlike insubstantiality, which is apparent at the outset, mootness, frequently a matter beyond the control of the parties, may not occur until after substantial time and energy have been expended looking toward the resolution of a dispute that plaintiffs were entitled to bring in a federal court.
13
We are not willing to defeat the commonsense policy of pendent jurisdiction—the conservation of judicial energy and the avoidance of multiplicity of litigation—by a conceptual approach that would require jurisdiction over the primary claim at all stages as a prerequisite to resolution of the pendent claim.6 The Court has shunned this view. See Moore v. New York Cotton Exch., 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926); Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933) (dictum).7
B
14
A further reason given to support the contention that the District Court should have declined to exercise jurisdiction is that the Department of Health, Education, and Welfare was the appropriate forum, at least in the first instance, for resolution on the merits of the questions before us, and that at the time thi action came to Court HEW was 'engaged in a study of the relationship between Section 602(a)(23) and Section 131—a.' 414 F.2d, at 176 (opinion of Judge Hays).8 Petitioners answer, we think correctly, that neither the principle of 'exhaustion of administrative remedies' nor the doctrine of 'primary jurisdiction' has any application to the situation before us. Petitioners do not seek review of an administrative order, nor could they have obtained an administrative ruling since HEW has no procedures whereby welfare recipients may trigger and participate in the Department's review of state welfare programs. Cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); K. Davis, Administrative Law § 19.01 (1965); L. Jaffe, Judicial Control of Administrative Action 425 (1965).
15
That these formal doctrines of administrative law do not preclude federal jurisdiction does not mean, however, that a federal court must deprive itself of the benefit of the expertise of the federal agency that is primarily concerned with these problems. Whenever possible the district courts should obtain the views of HEW in those cases where it has not set forth its views, either in a regulation or published opinion, or in cases where there is real doubt as to how the Department's standards apply to the particular state regulation or program.9
16
The District Court, in this instance, made considerable effort to learn the views of HEW. The possibility of HEW's participation, either as a party or an amicus, was explored in the District Court and the Department at hat stage determined to remain aloof. We cannot in these circumstances fault the District Court for proceeding to try the case.
II
17
We turn to the merits which may be broadly characterized as involving the interpretation of § 402(a)(23) of the Social Security Amendments of 1967 and its application to certain changes inaugurated by New York in its method of computing welfare benefits that have resulted in reduced payments to these petitioners and, on a broader scale, decreased by some $40 million the State's public assistance undertaking.
A.
18
We begin with a brief review of the general structure of the Federal Aid to Families With Dependent Children (AFDC program, one of the four 'categorical assistance' programs established by the Social Security Act of 1935.10
19
The general topography of the AFDC program was mapped in part by this Court in King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); and several lower court opinions, in addition to the opinion below, have surveyed the pertinent statutory and regulatory provisions.11 While participating States must comply with the terms of the federal legislation, see King v. Smith, supra, the program is basically voluntary and States have traditionally been at liberty to pay as little or as much as they choose, and there are, in fact, striking differences in the degree of aid provided among the States.
20
There are two basic factors that enter into the determination of what AFDC benefits will be paid. First, it is necessary to establish a 'standard of need,' a yardstick for measuring who is eligible for public assistance. Second, it must be decided how much assistance will be given, that is, what 'level of benefits' will be paid. On both scores Congress has always left to the States a great deal of discretion. King v. Smith, 392 U.S., at 318, 88 S.Ct., at 2133—2134. Thus, some States include in their 'standard of need' items that others do not take into account. Diversity also exists with respect to the level of benefits in fact paid.12 Some States impose so-called dollar maximums on the amount of public assistance payable to any one individual or family. Such maximums establish the upper limit irrespective of how far short the limitation may fall of the theoretical standard of need. Other States curtail the payments of benefits by a system of 'ratable reductions' whereby all recipients will receive a fixed percentage of the standard of need.13 It is, of course, possible to pay 100% of need as defined. New York, in fact, purports to do so.
B
21
In 1967 the Administration introduced omnibus legislation to amend the social security laws. The relevant AFDC proposals provided for more adequate assistance to welfare recipients and set up several programs for education and training accompanied by child care provisions designed to permit AFDC parents to take advantage of the training programs. In the former respect the AFDC proposals paralleled other provisions that put forward amendments to adjust benefits to recipients of other categorical aid to reflect the rise in the cost of living.14 Thus, in its embryo stage the amendment to § 402 was § 202(b) of the Administration bill, H.R. 5710, 90th Cong., 1st Sess. (1967), which would have added to § 402(a) of the Social Security Act the following clause:
22
'(14) provide (A), effective July 1, 1969, for meeting (in conjunction with other income that is not disregarded * * * under the plan and other resources) all the need, as determined in accordance with standards applicable under the plan for determining need, of individuals eligible to receive aid to families with dependent children (and such standards shall be no lower than the standards for determining need in effect on January 1, 1967), and (B), effective July 1, 1968, for an annual review of such standards and (to the extent prescribed by the Secretary) for up-dating such standards to take into account changes in living costs.' (Emphasis added.)
23
Section 202(b), however, was stillborn and no such provision was contained in the ultimate bill reported out by the House Ways and Means Committee. See H.R. 12080, 90th Cong., 1st Sess.
24
The Administration's renewed efforts, on behalf of a mandatory increase in benefit payments under the categorical assistance programs,15 met with only limited success, resulting in § 213(a) of the Senate version, which provided for a mandatory $7.50 per month increase in the standards and benefits for the adult categories, and § 213(b) which is, in substance, the present § 402(a) (23). The Committee's comment on § 213(b), to the effect that States would be required 'to price their standards * * * to reflect changes in living costs,' tracks the statutory language.'16
25
The Conference Committee eliminated the Senate provision in § 213 which would have required an annual adjustment for cost of living, and § 402 was enacted. It now provides:
26
'(The States shall) provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any maximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted.'
C
27
The background of § 402(a)(23) reveals little except that we have before us a child born of the silent union of legislative compromise. Thus, Congress, as it frequently does, has voiced its wishes in muted strains and left it to the courts to discern the theme in the cacophony of political understanding. Our chief resources in this undertaking are the words of the statute and those common-sense assumptions that must be made in determining direction without a compass
28
Reverting to the language of § 402(a)(23) we find two separate mandates: first, the States must re-evaluate the component factors that compose their need equation; and, second, any 'maximums' must be adjusted.
29
We think two broad purposes may be ascribed to § 402(a)(23): First, to require States to face up realistically to the magnitude of the public assistance requirement and lay bare the extent to which their programs fall short of fulfilling actual need; second to prod the States to apportion their payments on a more equitable basis. Consistent with this interpretation of § 402(a) (23), a State may, after recomputing its standard of need, pare down payments to accommodate budgetary realities by reducing the percent of benefits paid or switching to a percent reduction system, but it may not obscure the actual standard of need.
30
The congressional purpose we discern does not render § 402(a)(23) a meaningless exercise in 'bookkeeping.' Congress sometimes legislates by innuendo, making declarations of policy and indicating a preference while requiring measures that though falling short of legislating its goals, serve as a nudge in the preferred directions. In § 402(a)(23) Congress has spoken in favor of increases in AFDC payments. While Congress rejected the mandatory adjustment provision in the administration bill, it embodied in legislation the cost-of-living exercise which has both practical and political consequences.
31
It has the effect of requiring the States to recognize and accept the responsibility for those additional individuals whose income falls short of the standard of need as computed in light of economic realities and to place them among those eligible for the care and training provisions. Secondly, while it leaves the States free to effect downward adjustments in the level of benefits paid, it accomplishes within that framework the goal, however modest, of forcing a State to accept the political consequence of such a cutback and bringing to light the true extent to which actual assistance falls short of the minimum acceptable. Lastly, by imposing on those States that disire to maintain 'maximums' the requirement of an appropriate adjustment, Congress has introduced an incentive to abandon a flat 'maximum' system, thereby encouraging those States desirous of containing their welfare budget to shift to a percentage system that will more equitably apportion those funds in fact allocated for welfare and also more accurately reflect the real measure of public assistance being given.
32
While we do not agree with the broad interpretation given § 402(a)(23) by the District Court,17 we cannot accept the conclusion reached by the two-judge majority in the Court of Appeals—that § 42(a)(23) does not affect New York.18 It follows from what we fathom to be the congressional purpose that a State may not redefine its standard of need in such a way that it skirts the requirement of re-evaluating its existing standard. This would render the cost-of-living reappraisal a futile, hollow, and, indeed, a deceptive gesture, and would avoid the consequences of increasing the numbers of those eligible and facing up to the failure to allocate sufficient funds to provide for them.
33
These conclusions, if not compelled by the words of the statute or manifested by legislative history, represent the natural blend of the basic axiom—that courts should construe all legislative enactments to give them some meaning—with the compromise origins of § 402(a)(23), set forth above. This background, we think, precludes the more adventuresome reading that petitioners and the District Court would give the statute. See n. 17, supra. This reading is also buttressed by the fact that this construction has been placed on the statute by the Department of Health, Education, and Welfare.19 While, in view of Congress' failure to track the Administration proposals and its substitution without comment of the present compromise section, HEW's construction commands less than the usual deference that may be accorded an administrative interpretation based on its expertise, it is entitled to weight as the attempt of an experienced agency to harmonize an obscure enactment with the basic structure of a program it administers. Cf. Zuber v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 327, 24 L.Ed.2d 345 (1969); Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).
D
34
While the application of the statute to the New York program is by no means simple, we think the evidence adduced supports the ultimate finding of the District Court, unquestioned by the Court of Appeals, that New York has, in effect, impermissibly lowered its standard of need by eliminating items that were included prior to the enactment of § 402(a)(23).
35
Prior to March 31, 1969, New York computed its standard of need on an individualized basis. Schedules existed showing the cost of particular items of recurring need, for example, food and clothing required by children at given ages. Payments of 'recurring' grants were made no families based on the number of children per household and the age of the oldest child. Additional payments, designated as 'special needs grants,' were also made. Under an experiment in New York City instituted August 27, 1968, many allowances for special needs were eliminated and a flat grant of $100 per person was substituted.
36
Chapter 184 of the Session Laws, the present § 131—a, radically altered the New York approach. In lieu of individualized grants for 'recurring' needs to be supplemented by special grants or the flat $100 grant, New York adopted a system fixing maximum allowances per family based on the number of individuals per household. The maximum dollar amounts were established by ascertaining '(t)he mean age of the oldest child in each size family.' See Memorandum of Law in Support of Defendants' Motion for Summary Judgment 9—10. While these family maximums are exclusive of rent and fuel costs the District Court found that '(s)pecial grants were seemingly not included in these computations. No attempt was made to average them out across the state and then to add that figure to that of the basic recurring grant.' 304 F.Supp., at 1368.
37
The impact of the new system has been to reduce substantially benefits paid to families of these petitioners and of those similarly situated, and to decrease benefits to New York City recipients by almost $40,000,000. 304 F.Supp., at 1369—1370. The effect of the new program on upstate cases is less severe, with gains to some families apparently cancelling out losses to others, but the net effect is a drastic reduction in overall payments since New York City recipients compose approximately 72% of the State's welfare clientele. 304 F.Supp., at 1369.
E
38
Notwithstanding this $40,000,000 decrease in welfare payments after adjustment for increases in the cost of living, the State argues that the present § 131—a represents neither an attempt to circumvent federal requirements nor a reduction in the content of its former standard. The conversion to a flat grant maximum system is justified as an advance in administrative efficiency.20
39
While § 402(a)(23) does not prevent the State from pursuing what is beyond dispute the laudable goal of administrative efficiency,21 we think Congress has foreclosed them from achieving this purpose at the expense of significantly reducing the content of their standard of need. The findings and conclusions of the District Court, undisturbed by the Court of Appeals and supported by the record, clearly demonstrate that a significant reduction has here occurred. It is conceded by respondents that the present program does not include allowances for the items formerly covered by the so-called 'special' grants.
40
We have no occasion to decide on the record before us whether we agree with that part of HEW's interpretation of § 402(a)(23) that might approve elimination of grants for particular needs, without out some averaging or other provision therefor such as direct payments to the provider of services. It suffices in this case that particular items such as laundry and telephones, had formerly been deemed essential by New York, and were considered regular recurring expenses to a significant number of New York City welfare residents. We need look no farther than the state social service department's own regulations and the action taken by the state administrators in providing the $25 per quarter cyclical grant to city residents in the 1968 pilot project.
41
Thus, the state social service department's own regulations provided:
42
'An individual or family shall be deemed 'in need' when a budget deficit exists or when the budget surplus is inadequate to meet one or more nonbudgeted special needs required by the case circumstances and included in the standards of assistance.' 18 NYCRR § 353.1(c).22 (Emphasis added.)
43
This persuasive, if not conclusive, evidence of what constituted the standard of need is further supported by testimony of the administrators of New York's welfare program to the effect that these grants covered costs for essentials of life for numerous welfare residents in New York City.
F
44
We reach our conclusions without relying on the finding made by the court below that in § 131—a New York was attempting to constrict its welfare payments. Speculation as to legislative and executive motive is to be shunned. Section 402(a)(23) invalidates any state program that substantially alters the content of the standard of need in such a way that it is less than it was prior to the enactment of § 402(a)(23), unless a State can demonstrate that the items formerly included no longer constituted part of the reality of existence for the majority of welfare recipients. We do not, of course, hold that New York may not, consistently with the federal statutes, consolidate items on the basis of statistical averages. Obviously such averaging may affect some families adversely and benefit others. Moreover, it is conceivable that the net payout, assuming no change in the level of benefits, may be somewhat less under a streamlined program. Providing all factors in the old equation are accounted for and fairly priced and providing the consolidation on a statistical basis reflects a fair averaging, a State may, of course, consistently with § 402(a)(23) redefine its method for determining need. A State may, moreover, as we have noted, accommodate any increases in its standard by reason of 'cost-of-living' factors to its budget by reducing its level of benefits. What is at the heart of this dispute is the elimination of special grants in the New York program, not the system of maximum grants based on average age. Lest there be uncertainty we also reiterate that New York is not foreclosed from accounting for basic and recurring items of need formerly subsumed in the special grant category by an averaging system like that adopted in the 1968 New York City experiment with cyclical grants.
III
45
New York is, of course, in no way prohibited from using only state funds according to whatever plan it chooses, providing it violates no provision of the Constitution. It follows, however, from our conclusion that New York's program is incompatible with § 402(a)(23), that petitioners are entitled to declaratory relief and an appropriate injunction by the District Court against the payment of federal monies according to the new schedules, should the State not develop a conforming plan within a reasonable period of time.
46
We have considered and rejected the argument that a federal court is without power to review state welfare provisions or prohibit the use of federal funds by the States in view of the fact that Congress has lodged in the Department of HEW the power to cut off federal funds for noncompliance with statutory requirements. We are most reluctant to assume Congress has closed the avenue of effective judicial review to those individuals most directly affected by the administration of its program. Cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). We adhere to King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), which implicitly rejected the argument that the statutory provisions for HEW review of plans should be read to curtail judicial relief and held Alabama's 'substitute father' regulation to be inconsistent with the federal statute. While King did not advert specifically to the remedial problem, the unarticulated premise was that the State had alternative choices of assuming the additional cost of paying benefits to families with substitute fathers or not using federal funds to pay welfare benefits according to a plan that was inconsistent with federal requirements.
47
The prayer in the District Court in Smith v. King, as in the case before us, was for declaratory and injunctive relief against the enforcement of the invalid provision. 277 F.Supp. 31 (D.C.M.D.Ala.1967). We see no justification in principle for drawing a distinction between invalidating a single nonconforming provision or an entire program. In both circumstances federal funds are being allocated and paid in a manner contrary to that intended by Congress. In King the withholding of benefits based on the invalid state regulation resulted in overpayments to some recipients, assuming a constant state welfare budget, and a corresponding misallocation of matching federal resources. In the case before us, noncompliance with § 402(a)(23) may result in limiting the welfare rolls unduly and thus channeling the matching federal grants in a way not intended by Congress. We may also assume that Congress would not countenance the circumnavigation of the political consequences of § 402(a)(23) see Part II C, supra, by permitting States to use federal funds while obscuring the actual extent to which their programs fall short of the ideal.
48
Unlike King v. Smith, however, any incremental cost to the State, assuming a desire to comply with § 402(a)(23), is massive; nor is there a discreet and severable provision whose enforcement can be prohibited. Accordingly, we remand the case to the District Court to fix a date that will afford New York an opportunity to revise its program in accordance with the requirements of § 402 if the State wishes to do so. The District Court shall retain jurisdiction to review, taking into account the views of HEW should it care to offer its recommendations, any revised program adopted by the State, or, should New York choose not to submit a revamped program by the determined date, issue its order restraining the further use of federal monies pursuant to the present statute.
49
In conclusion, we add simply this. While we view with concern the escalating involvement of federal courts in this highly complicated area of welfare benefits,23 one that should be formally placed under the supervision of HEW, at least in the first instance, we find not the slightest indication that Congress meant to deprive federal courts of their traditional jurisdiction to hear and decide federal questions in this field. It is, of course, no part of the business of this Court to evaluate, apart from federal constitutional or statutory challenge, the merits or wisdom of any welfare programs, whether state or federal, in the large or in the particular. It is, on the other hand, peculiarly part of the duty of this tribunal, no less in the welfare field than in other areas of the law, to resolve disputes as to whether federal funds allocated to the States are being expended in consonance with the conditions that Congress has attached to their use. As Mr. Justice Cardozo stated, speaking for the Court of Helvering v. Davis, 301 U.S. 619, 645, 57 S.Ct. 904, 910, 81 L.Ed. 1307 (1937): 'When (federal) money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states.' Cf. Lassen v. Arizona ex rel. Arizona Highway Dept., 385 U.S. 458, 87 S.Ct. 584, 17 L.Ed.2d 515 (1967).
50
The judgment of the Court of Appeals is reversed and the case is remanded to that court for further proceedings consistent with this opinion.
51
It is so ordered.
52
Reversed and remanded.
53
Mr. Justice DOUGLAS, concurring.
54
While I join this opinion of the Court, I add a few words.
55
* Our leading case on pendent jurisdiction is United Mine Workers v. Gibbs, 383 U.S. 715, 721—729, 86 S.Ct. 1130, 1136—1140, 16 L.Ed.2d 218. In line with Gibbs, the courts below distinguished between the power to exercise pendent jurisdiction and the discretionary use of that power. Gibbs abandoned the 'single cause of action' test which had been the controlling standard under Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, and instead held that pendent jurisdiction exists when '(t)he state and federal claims * * * derive from a common nucleus of operative fact' and 'if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding.' 383 U.S., at 725, 86 S.Ct., at 1138.
56
The claims presented in this case attacked the New York statute on two grounds. The constitutional ground attacked the differential in the level of welfare payments between New York City and Nassau County. The statutory claim attacked the State's reduction in the overall level of payments, on the ground that it violated § 402(a)(23) of the Social Security Act, as amended, 81 Stat. 898, 42 U.S.C. § 602(a)(23) (1964 ed., Supp. IV), which requires States to make cost-of-living adjustments in the amounts used to determine need. No argument is made by any of the parties in this case that the three-judge court did not have pendent jurisdiction over the statutory claim. The sole basis for respondents' contention that pendent jurisdiction is not present in this case flows from the action of the three-judge court in remanding the case to the single district judge 'for such further proceedings as are appropriate.'
57
Yet if the three-judge court had pendent jurisdiction over the statutory claim, it had the power to decide that claim despite the dismissal of the constitutional claim. This Court held in United States v. Georgia Pub. Serv. Comm'n, 371 U.S. 285, 287—288, 83 S.Ct. 397, 399, 9 L.Ed.2d 317: 'Once (a three-judge court is) convened the case can be disposed of below or here on any ground, whether or not it would have justified the calling of a three-judge court.' See also Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80—81, 80 S.Ct. 568, 573—574, 4 L.Ed.2d 568. There is no rule, however, holding that a three-judge court is required to decide all the claims presented in a suit properly before it, although the practice of a three-judge court remanding a case to the initial district judge for further proceedings seems to have been little used. See Landry v. Daley, D.C., 288 F.Supp. 194.
58
What united Judges Hays and Lumbard was the view that, as a matter of discretion, the District Court should have refused to exercise its pendent jurisdiction. The factors outlined in Gibbs to guide the discretionary exercise of pendent jurisdiction are those of 'judicial economy, convenience and fairness to litigants.' 383 U.S., at 726, 86 S.Ct., at 1139.
59
The main distinction between this case and Gibbs is that the pendent claim here was one of federal rather than state law. And it is clear from the opinion in Gibbs that the factor of federal-state comity is highly relevant in deciding whether or not the exercise of pendent jurisdiction is proper. Thus the Court stated: 'There may, on the other hand, be situations in which the state claim is so closely tied to questions of federal policy that the argument for exercise of pendent jurisdiction is particularly strong.' Id., at 727, 86 S.Ct., at 1139. Since the claim involved here is one of federal law, the reasons for the exercise of pendent jurisdiction are especially weighty, and exceptional circumstances should be required to prevent the exercise.
60
Moreover, incident to the issuance of a temporary restraining order, prior to the impaneling of the three-judge court, District Judge Weinstein had received and considered substantial testimony, affidavits, and briefs, so that he required no further hearings or testimony prior to issuing his preliminary injunction opinion three days after the case was remanded to him. In light of this fact, considerations of economy, convenience, and fairness all point to the exercise of pendent jurisdiction. See Moore v. New York Cotton Exch., 270 U.S. 593, 608—610, 46 S.Ct. 367, 370—371, 70 L.Ed. 750.
II
61
The fact that the Department of Health, Education, and Welfare is studying the relationship between the contested provision of the New York statute and the relevant section of the Social Security Act is irrelevant to the judicial problem. Once a State's AFDC plan is initially approved by the Secretary of HEW, federal funds are provided the State until the Secretary finds, after notice and opportunity for hearing to the State, that changes in the plan or the administration of the plan are in conflict with the federal requirements. Social Security Act § 404(a), 49 Stat. 628, as amended 81 Stat. 918, 42 U.S.C. § 604(a) (1964 ed., Supp. IV).
62
The statutory provisions for review by HEW of state AFDC plans1 do not permit private individuals, namely, present or potential welfare recipients, to initiate or participate in these compliance hearings. Thus, there is no sense in which these individuals can be held to have failed to exhaust their administrative remedies by the fact that there has been no HEW determination on the compliance of a state statute with the federal requirements. In the present case, that problem was discussed in terms of the District Court's discretion to refuse to exercise pendent jurisdiction. The argument for such a refusal has little to comment it. HEW has been extremely reluctant to apply the drastic sanction of cutting off federal funds to States that are not complying with federal law. Instead, HEW usually settles its differences with the offending States through informal negotiations. See Note, Federal Judicial Review of State Welfare Practices, 67 Col.L.Rev. 84, 91—92 (1967).2
63
Whether HEW could provide a mechanism by which welfare recipients could theoretically get relief is immaterial. It has not done so, which means there is no basis for the refusal of federal courts to adjudicate the merits of these claims. Their refusal to act merely forces plaintiffs into the state courts which certainly are no more competent to decide the federal question than are the federal courts. The terms of the New York statute are clear, and there is no way in which a state court could interpret the challenged law in a way that would avoid the statutory claim pressed here.
64
State participation in federal welfare programs is not required. States may choose not to apply for federal assistance or may join in some, but not all, of the various programs, of which AFDC is only one. That a State may choose to refuse to comply with the federal requirements at the cost of losing federal funds is, of course, a risk that any welfare plaintiff takes. Such a risk was involved in King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118, which attacked Alabama's 'substitute father' regulation as inconsistent with the Social Security Act. As long as a State is receiving federal funds, however, it is under a legal requirement to comply with the federal conditions placed on the receipt of those funds; and individuals who are adversely affected by the failure of the State to comply with the federal requirements in distributing those federal funds are entitled to a judicial determination of such a claim. King v. Smith, supra. The duty of a State, which receives this federal bounty to comply with the conditions imposed by Congress was adverted to by Mr. Justice Cardozo who wrote for the Court in Steward Machine Co. v. Davis, 301 U.S. 548, 597—598, 57 S.Ct. 883, 895—896, 81 L.Ed. 1279, sustaining the constitutionality of the Social Security Act:
65
'Alabama is seeking and obtaining a credit of many millions in favor of her citizens out of the Treasury of the nation. Nowhere in our scheme of government—in the limitations express or implied of our Federal Constitution—do we find that she is prohibited from assenting to conditions that will assure a fair and just requital for benefits received.'
66
As he also said, speaking for the Court in Helvering v. Davis, 301 U.S. 619, 645, 57 S.Ct. 904, 910, 81 L.Ed. 1307, a companion case to Steward Machine Co.:
67
'When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states.' Where the suit involves an alleged conflict between the state regulation and the federal law, neither the United States nor HEW is a necessary party to such an action. The wrong alleged is the State's failure to comply with federal requirements in its use of federal funds, not HEW's failure to withhold funds from the State.
68
Whether HEW should withhold federal funds is entrusted to it, at least as a preliminary matter, by § 404(a) of the Social Security Act.3 Whether the courts have any role to perform beyond ruling on an alleged conflict between the state regulation and the federal law is a question we need not reach.
APPENDIX TO OPINION OF DOUGLAS, J., CONCURRING
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20201
December 29, 1969
Mr. George R. Houston
Associate Librarian
The Supreme Court of the United States
69
1st Street & East Capitol, N.W.
Washington, D.C. 20543
Dear Mr. Houston:
70
This relates to your conversation with me on December 29 concerning statements made in the last paragraph and footnote 55 on page 91 of volume 67, Columbia Law Review, January 1967, that this Department had not responded to a complaint and petition for hearing filed by Georgia and Arkansas claimants.
71
The author of the Law Review article is correct. There was, in fact, no response to the request for a conformity hearing. Had we replied to the letter, however, we would have stated, as we usually do in such cases, that conformity hearings are held only on the initiative of this Department when a determination has been made that the deficiencies in a state program are such that the state, under its applicable laws, cannot, or the responsible official, will not, voluntarily bring the state into compliance.
72
Letters such as the one you refer to may, however, trigger action by this Department when the contents bring to light conformity matters of which the Department has not been made aware * * * as a result of its own audits.
73
To date this Department has initiated conformity hearings in connection with the state plans of Nevada and Connecticut. In view of the fact that the imposition of sanctions against states which are found to be out of conformity are mandatory, we exert every effort at our command to bring a state into conformity without the necessity of a formal hearing.
74
If you have any further questions, please let us know.
75
Very truly yours,
76
Robert C. Mardian,
77
General Counsel.
78
Mr. Justice BLACK, with whom THE CHIEF JUSTICE joins, dissenting.
79
Petitioners are New York welfare recipients who contend that recently enacted New York welfare legislation which reduces the welfare benefits to which they are entitled under the Aid to Families With Dependent Children (AFDC) program is inconsistent with the federal AFDC requirements found in § 402(a)(23) of the Social Security Act, 42 U.S.C. § 602(a)(23) (1964 ed., Supp. IV). The New York statute that petitioners are challenging, § 131—a of the New York Social Services Law, was enacted on March 31, 1969. Little more than a week later on April 9, petitioners filed their complaint challenging this statute. The Court today holds that 'the District Court correctly exercised its discretion by proceeding to the merits' of petitioners' claim that the federal and state statutes are inconsistent. At 401. The Court reaches this conclusion despite the fact that the determination whether a State is following the federal AFDC requirements is clearly vested in the first instance not in the federal courts but in the Department of Health, Education, and Welfare (HEW); despite the fact that at the very moment the District Court was deciding the merits of petitioners' claim HEW was performing its statutory duty of reviewing the New York legislation to determine if it was at odds with § 402(a)(23); and despite the fact that if HEW had been given enough time to make a decision with regard to the New York legislation, its decision might have obviated the need for this and perhaps many other lawsuits. I regret that I cannot join an opinion which fails to give due consideration to the unmistakeable intent of the Social Security Act to give HEW primary jurisdiction over these highly technical and difficult welfare questions, which affirms what is to me a clear abuse of discretion by the District Court, and which plunges this Court and other federal courts into an ever-increasing and unnecessary involvement in the administration of the Nation's categorical assistance programs administered by the States.1
80
Under the AFDC program, 42 U.S.C. §§ 601—610 (1964 ed., and Supp. IV), the Federal Government provides funds to a State on the condition that the State's plan for supplementing and distributing those funds to needy individuals satisfies the various federal requirements set out in the Social Security Act. By statute, the Secretary of HEW is charged with the duty of reviewing state plans to determine if they comply with the now considerable list of federal requirements. 42 U.S.C. § 602 (1964 ed., and Supp. IV), and his approval of such a plan, and only his approval, qualifies the state program for federal financial assistance. 42 U.S.C. § 601 (1964 ed., Supp. IV). So that HEW may determine whether the state plan continues at all times to meet the federal requirements, each State is required by regulation to submit all relevant changes, such as new state statutes, regulations, and court decisions, to HEW for its review. 45 CFR § 201.3. If, after affording the State reasonable notice and an opportunity for a hearing, HEW determines that the state plan does not conform to the federal requirements, the federal agency then has a legal obligation to terminate federal aid to which the State would otherwise be entitled. 42 U.S.C. §§ 604, 1316 (1964 ed., Supp. IV); 45 CFR § 201.5. Waiver by the Secretary of any of the federal requirements is permitted only where the Secretary and state welfare officials have together undertaken a 'demonstration' or experimental welfare project. 42 U.S.C. § 1315 (1964 ed., Supp. IV). The administrative procedures that the Secretary must afford a State before denying or curtailing the use of federal funds are elaborated in 42 U.S.C. § 1316 (1964 ed., Supp. IV), and this section also provides that a State can obtain judicial review in a United States court of appeals of an adverse administrative determination.
81
This unified, coherent scheme for reviewing state welfare rules and practices was established by Congress to ensure that the federal purpose behind AFDC is fully carried out. The statutory provisions evidence a clear intent on the part of Congress to vest in HEW the primary responsibility for interpreting the federal Act and enforcing its requirements against the States. Although the agency's sanction, the power to terminate federal assistance, might seem at first glance to be a harsh and inflexible remedy, Congress wisely saw that in the vast majority of cases a credible threat of termination will be more than sufficient to bring about compliance. These procedures, if followed as Congress intended, would render unnecessary countless lawsuits by welfare recipients. In the case before the Court today it is undisputed that HEW had by the time of the proceedings in the District Court commenced its own administrative proceedings to determine whether § 131—a conforms to the Social Security Act's provisions. The agency had requested the New York welfare officials to provide detailed information regarding the statute and was preparing to make its statutorily required decision on the conformity or nonconformity of § 131—a. It was at this point, when HEW was in the midst of performing its statutory obligation, that the District Court assumed jurisdiction over petitioners' claim and decided the very state-federal issue then pending before HEW. Both Judge Hays and Judge Lumbard of the Court of Appeals were of the opinion that the District Court abused its discretion in finding that it had jurisdiction over this statutory claim, and both judges relied in part on the pendency of the identical question before the federal agency. 414 F.2d 170, 176, 181 (1969). Chief Judge Lumbard's reasoning is instructive:
82
'(H)ere, as Judge Hays points out, the federal claim seems more apt for initial resolution by the Department of Health, Education and Welfare, than by the courts. The two issues upon a resolution of which this claim turns—the practical effect of § 131—a and the proper construction of § 602(a)(23) of the Social Security Act—both are exceedingly complex. The briefs and arguments of the parties, and the varying judicial views they have elicited, have demonstrated the wisdom of allowing HEW, with its expertise in the operation of the AFDC program and its experience in reviewing the very technical provisions of state welfare laws, an initial opportunity to consider whether or not § 131—a is in compliance with § 602(a)(23). This is HEW's responsibility under the Social Security Act, see 42 U.S.C.A. § 1316 (Supp.1969). I believe that the district court should have declined to exercise its jurisdiction, thus permitting HEW to determine the statutory claim asserted by plaintiffs, for the Department already had initiated review proceedings concerning § 131—a.' 414 F.2d, at 181.
83
I agree with the Court of Appeals that the District Court abused its discretion in taking jurisdiction over this case, but I would go further than holding that the District Court's action was a mere abuse of discretion. Ensuring that the federal courts have the benefit of HEW's expertise in the welfare area is an important but by no means the only consideration supporting the limitation of judicial intervention at this stage. Congress has given to HEW the grave responsibility of guaranteeing that in each case where federal AFDC funds are used, federal policies are followed, and it has established procedures through which HEW can enforce the federal interests against the States. I think these congressionally mandated compliance procedures should be the exclusive ones until they have run their course. The explicitness with which Congress set out the HEW compliance procedures without referring to other remdies suggests that such was the congressional intent. But more fundamentally, I think it will be impossible for HEW to fulfill its function under the Social Security Act if its proceedings can be disrupted and its authority undercut by courts which rush to make precisely the same determination that the agency is directed by the Act to make. And in instances when HEW is confronted with a particularly sensitive question, the agency might be delighted to be able to pass on to the courts its statutory responsibility to decide the question. In the long run, then, judicial pre-emption of the agency's rightful responsibility can only lead to the collapse of the enforcement scheme envisioned by Congress, and I fear that this case and others have carried such a process well along its way. Finally, there is the very important consideration of judicial economy and the prevention of premature and unnecessary lawsuits, particularly at this time when the courts are overrun with litigants on every subject. If courts are permitted to consider the identical questions pending before HEW for its determination, inevitably they will hand down a large number of decisions that could have been mooted if only they had postponed deciding the issues until the administrative proceedings were completed. For all these reasons I would go one step further than the Court of Appeals majority and hold that all judicial examinations of alleged conflicts between state and federal AFDC programs prior to a final HEW decision approving or disapproving the state plan are fundamentally inconsistent with the enforcement scheme created by Congress and hence such suits should be completely precluded. This preclusion of judicial action does not, of course, necessarily mean that the individual welfare recipient has no legal remedies. The precise questions of when and under what circumstances individual welfare recipients can properly seek federal judicial review are not before the Court, however, and I express no views about those issues.2
1
A separate action was subsequently brought again challenging the disparity in payments between New York and Nassau County welfare recipients. See Rothstein v. Wyman, 303 F.Supp. 339 (D.C.S.D.N.Y.1969), prob. juris. noted, Wyman v. Rothstein, 397 U.S. 903, 90 S.Ct. 910, 25 L.Ed.2d 85.
2
Judge Hays expressed the view:
'Since the single judge at no time had jurisdiction over the constitutional claim there was never a claim before him to which the statutory claim could have been pendent. If the three-judge court had attempted to give the single judge power to adjudicate the statutory claim, it could not have done so, since with the dissolution of the three-judge court the statutory claim was no longer pendent to any claim at all, much less to any claim over which the single judge could exercise adjudicatory power.' 414 F.2d, at 175.
3
Even if Poresky is read simply as a restatement of the truism that a court always has jurisdiction to determine its own jurisdiction, in view of the now settled rule that the insubstantiality of a federal question is the occasion for a jurisdictional dismissal as opposed to a dismissal on the merits for failure to state a claim upon which relief can be granted, it still lends support to the proposition that jurisdiction is vested at the outset in the district court and not the three-judge panel.
4
We intimate no view as to whether the situation might have been different had the constitutional claim become moot before the District Court had invested substantial time in its resolution.
5
See United Mine Workers v. Gibbs, 383 U.S., at 725, 86 S.Ct., at 1138, where the Court said:
'(I)f, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.'
6
A persuasive analogy is to be found in the well-settled rule that a federal court does not lose jurisdiction over a diversity action which was well founded at the outset even though one of the parties may later change domicile or the amount recovered falls short of $10,000. See Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1113, 1 L.Ed.2d 1205 (1957); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289—290, 58 S.Ct. 586, 590—591, 82 L.Ed. 845 (1938); Smithers v. Smith, 204 U.S. 632, 27 S.Ct. 297, 51 L.Ed. 656 (1907); see generally C. Wright, Federal Courts § 33, pp. 93—94 (1963).
7
Since we conclude that the District Court properly exercised its pendent jurisdiction, we have no occasion to consider whether, as urged by petitioners, this statutory claim satisfies the $10,000 amount-in-controversy requirement of the general federal jurisdiction provision, 28 U.S.C. § 1331, or whether it could be maintained under 28 U.S.C. § 1343(3), which contains no amount-in-controversy limitation, as an action '(t)o redress the deprivation, under color of any State law * * * of any right, privilege or immunity secured by * * * any Act of Congress providing for equal rights of citizens * * *.' See King v. Smith, 392 U.S., at 312 n. 3, 88 S.Ct., at 2130, see generally Note, Federal Judicial Review of State Welfare Practices, 67 Col.L.Rev. 84 (1967).
8
In order to evaluate this argument, it is necessary to understand the mechanism by which HEW reviews state plans under the AFDC program. States desiring to obtain federal funds available for AFDC programs are required to submit a plan to the Secretary of HEW for his approval. 42 U.S.C. § 601 (1964 ed., Supp. IV). Once initially approved, federal funds are provided to the State until a change in its plan is formally disapproved. 42 U.S.C. § 604(a) (1964 ed., Supp. IV). The Secretary must afford the State notice of an alleged noncompliance with federal requirements and an opportunity for a hearing. Ibid. If after notice and hearing, the Secretary finds that the State does not comply with the federal requirements, he is directed to make a total or partial cutoff of federal funds to the State. Ibid. 42 U.S.C. § 1316 (1964 ed., Supp. IV) describes the administrative procedures that the Secretary must afford a State before cutting off funds, and also provides for review in the courts of appeals of the Secretary's action at the behest of the State. Whether HEW could provide a mechanism by which welfare recipients could theoretically get relief is immaterial. It has not done so, which means there is no basis for the refusal of federal courts to adjudicate the merits of these claims.
9
As we observed in Southwestern Sugar & Molasses Co., Inc. v. River Terminals Corp., 360 U.S. 411, 420, 79 S.Ct. 1210, 1216, 3 L.Ed.2d 1334 (1959), that an issue is 'one appropriate ultimately for judicial rather than administrative resolution. * * * does not mean that the courts must therefore deny themselves the enlightment which may be had from a consideration of the relevant * * * facts which the administrative agency charged with regulation of the transaction * * * is peculiarly well equipped to marshal and initially to evaluate.' See also Far East Conference v. United States, 342 U.S. 570, 574—575, 72 S.Ct. 492, 494—495, 96 L.Ed. 576 (1952).
10
The four categorical assistance programs are the Old Age Assistance (OAA), 42 U.S.C. § 301 et seq.; Aid to Families With Dependent Children (AFDC), 42 U.S.C. § 601 et seq.; Aid to the Blind (AB), 42 U.S.C. § 1201 et seq.; Aid For the Permanently and Totally Disabled (APTD), 42 U.S.C. § 1351 et seq.
11
See Lampton v. Bonin, 299 F.Supp. 336, 304 F.Supp. 1384 (D.C.E.D.La.1969); Jefferson v. Hackney, 304 F.Supp. 1332 (D.C.N.D.Tex.1969); Williams v. Dandridge, 297 F.Supp. 450 (1968 and 1969), prob. juris. noted, Dandridge v. Williams, 396 U.S. 811, 90 S.Ct. 62, 24 L.Ed.2d 64 (1969), decided this date, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491.
12
According to information supplied by HEW in 1967, reported in the Explanation of Provisions of H.R. 5710, p. 36, $3,100 annually for a family of four marked the 'poverty' level. According to the report, 'Although a few States define need at or above the poverty level, no State pays as much as that amount.' It further appears that at that time 33 States provided less than their avowed standard of need which frequently fell short of the poverty mark. While New York purports to have paid its full standard, it would thus appear not to have paid enough to take a family out of poverty. See Hearings before the House Committee on Ways and Means on H.R. 5710, 90th Cong., 1st Sess., pt. 1, p. 118 (1967).
13
A maximum may either be fixed in relation to the number of persons on welfare, e.g., X dollars per child, no matter what age, or in terms of a family, X dollars per family unit, irrespective of the number of persons in th unit. This latter procedure has been challenged on equal protection grounds, see Williams v. Dandridge, supra. A 'ratable reduction' represents a fixed percentage of the standard of need that will be paid to all recipients. In the event that there is some income that is first deducted, the ratable reduction is applied to the amount by which the individual or family income falls short of need.
14
See §§ 202(a), (c), (d), and (e).
15
Secretary Gardner testified:
'The House bill does nothing to improve the level of State public assistance payments. As things stand today, the States are required to set assistance standards for needy persons in order to determine eligibility—but they need not make their assistance payments on the basis of these standards. The result is that welfare payments are much too low in a good many State. That is a widely accepted fact among all who are concerned with these programs; indeed it is probably the most widely agreed-upon fact among welfare experts today.
'We strongly urge you to adopt the administration's proposal requiring States to meet need in full as they determine it in their own State assistance standards, and to update these standards periodically to keep pace with changes in the cost of living.' Hearings before the Senate Committee on Finance on H.R. 12080, 90th Cong., 1st Sess., pt. 1, p. 216 (1967). See also testimony of Undersecretary Cohen. Id., at 255—259.
16
The comment to § 213 in the Senate Report reads:
'Social security benefits have been increased 15 percent across the board by the committee with a minimum of $70, for an average increase of 20 percent. However, there is no similar across-the-board increase in the amount of benefits payable to aged welfare recipients. * * * In view of this situation and the need to recognize that the increase in the cost of living since the last change made in the Federal matching formula in 1965 also is detrimental to the well-being of these recipients, the committee is recommending a further change in the law. It is proposed that the law be amended to provide that recipients of old-age assistance, aid to the blind, and aid to the permanently and totally disabled shall receive an average increase in assistance plus social security or assistance alone (for the recipients who do not receive social security benefits) of $7.50 a month. * * *
'To accomplish these changes, the States would have to adjust their standards and any maximums imposed on payments by July 1, 1968, so as to produce an average increase of $7.50 from assistance alone or assistance and social security benefits (or other income). Any State which wishes to do so can claim credit for any increase it may have made since December 31, 1966. Thus, no State needs to make an increase to the extent that it has recently done so.
'States would be required to price their standards used for determining the amount of assistance under the AFDC program by July 1, 1969 and to reprice them at least annually thereafter, adjusting the standards and any maximums imposed on payments to reflect changes in living costs.' S.Rep. No. 744, 90th Cong., 1st Sess., 169—170 (1967); see also id., at 293; U.S.Code Cong. & Admin.News 1967, pp. 3006—3007.
17
The District Court, while disclaiming any construction of § 402(a)(23) that would preclude converting to a flat-grant system by averaging, concluded: '(S)ection 402(a)(23) precludes a state from making changes resulting in either reduced standards of need or levels of payments.' 304 F.Supp., at 1377. (Emphasis added.) An extensive alternation in the basic underlying structure of an established program is not to be inferred from ambiguous language that is not clarified by legislative history. Such legislative history as there is suggests the opposite. The Senate's failure to adopt the Administration's proposals and its failure to provide for AFDC recipients an increase like that provided for the adult program, notwithstanding a proposed amendment to that effect by Senator McGovern, gives rise to an inference, not negatived by the noncommittal and unilluminating comments of the committee, see n. 16, supra, that Congress had no such purpose. These considerations, we think, foreclose the broad construction adopted by the District Court.
18
While it might be technically said that there was no majority holding on the merits in the Court of Appeals, this overlooks Judge Hays' preface to his discussion of the merits: 'Although we are persuaded that the district judge had no power to adjudicate this action, we turn to a brief discussion of the merits, sinc our decision does not rest solely on jurisdictional grounds.' 414 F.2d, at 178. Chief Judge Lumbard disavowed reaching the merits but expressly disagreed with Judge Feinberg. 414 F.2d, at 181. In these circumstances, it would be hypertechnical to conclude that the merits had not been faced and decided below so as to make a remand desirable prior to review and decision by this Court. Cf. Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).
19
The regulations and explanations are set forth in the Government's Amicus Memorandum.
20
New York points to the preamble to § 131—a which sets forth as its purpose the streamlining of administration of the welfare grant system and relies on that part of the HEW program that invites the States to adopt administrative programs that curtail unnecessarily burdensome calculations and paperwork.
21
HEW's position, set forth in the Government's Amicus Memorandum, p. 12, seems to be that under its regulations, a 'reduction of content' does not necessarily result from 'reductions in the recognition of special needs.' The Department has, however, recognized both administratively and in the Government's Memorandum that certain 'special' needs should properly be regarded as part of the basic standard. Thus, which the memorandum suggests that payments for special diets or special attendants are extraordinary and not susceptible of averaging, it leaves open the question whether New York's special grants have not been for recurring items which are basic.
22
See also former 18 NYCRR § 351.2, Aspects of Eligibility. 'Social investigation shall cover the following aspects of initial and continuing eligibility. (b) Need. Consideration shall be given to individual and family requirements for the items of basic maintenance and for items of special need. * * *' (Second emphasis added.)
23
The judiciary is being called upon with increasing frequency to review not only the viability of state welfare procedures, e.g., Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 and Wheeler v. Montgomery, 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2d 307 (1970); Wyman v. James, 303 F.Supp. 935 (D.C.S.D.N.Y.1969), prob. juris. noted, 397 U.S. 904, 90 S.Ct. 921, 25 L.Ed.2d 85 (1970) (inspections of the house), but also the substance and structure of state programs and the validity of innumerable individual provisions. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (residence requirements); King v. Smith, supra (substitute father); Solman v. Shapiro, 300 F.Supp. 409, aff'd, 396 U.S. 5, 90 S.Ct. 25, 24 L.Ed.2d 5 (1969); Lewis v. Stark, 312 F.Supp. 197 (D.C.N.D.Cal.1968), prob. juris. noted, 396 U.S. 900, 90 S.Ct. 237, 24 L.Ed.2d 176 (1969) ('man-in-the-house rule'). At least two other actions have been instituted to review various aspects of state programs in light of the statutory provisions involved in this case. See Lampton v. Bonin, 299 F.Supp. 336, 304 F.Supp. 1384 (D.C.E.D.La.1969); Jefferson v. Hackney, 304 F.Supp. 1332 (D.C.N.D.Tex.1969); cf. Rothstein v. Wyman, 303 F.Supp. 339 (D.C.S.D.N.Y.1969); Dandridge v. Williams, decided today, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).
1
The procedure by which HEW reviews state plans is set out in the opinion of the Court, at 406 n. 8.
2
See Appendix to this concurrence.
3
Section 404(a) of the Act provides: 'In the case of any State plan for aid and services to needy families with children which has been approved by the Secretary, if the Secretary, after reasonable notice and opportunity for hearing to the State agency administering or supervising the administration of such plan, finds—
'(1) that the plan has been so changed as to impose any residence requirement prohibited by section 602(b) of this title, or that in the administration of the plan any such prohibited requirement is imposed, with the knowledge of such State agency, in a substantial number of cases; or
'(2) that in the administration of the plan there is a failure to comply substantially with any provision required by section 602(a) of this title to be included in the plan;
'(T)he Secretary shall notify such State agency that further payments will not be made to the State (or in his discretion, that payments will be limited to categories under or parts of the State plan not affected by such failure) until the Secretary is satisfied that such prohibited requirement is no longer so imposed, and that there is no longer any such failure to comply. Until he is so satisfied he shall make no further payments to such State (or shall limit payments to categories under or parts of the State plan not affected by such failure).' 42 U.S.C. § 604(a) (1964 ed., Supp. IV).
1
This precise issue was not so clearly and sharply presented in King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), which I joined. See id., at 317 n. 11, 326 n. 23, 88 S.Ct. 2133, 2138.
2
The issues are canvassed in Note, Federal Judicial Review of State Welfare Practices, 67 Col.L.Rev. 84 (1967).
| 12
|
397 U.S. 387
90 S.Ct. 1184
25 L.Ed.2d 435
Joseph WALLER, Jr., Petitioner,v.State of FLORIDA.
No. 24.
Argued Nov. 13, 1969.
Decided April 6, 1970.
Rehearing Denied May 18, 1970.
See 398 U.S. 914, 90 S.Ct. 1684.
Leslie H. Levinson, Gainesville, Fla., for petitioner.
George Georgieff, Tallahassee, Fla., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted the writ in this case to review a narrow question which can best be treated on the basis of the facts as stated by the District Court of Appeal of Florida, Second District, and the holding of that couet. Petitioner was one of a number of persons who removed a canvas mural which was affixed to a wall inside the City Hall of St. Petersburg, Florida. After the mural was removed, the petitioner and others carried it through the streets of St. Petersburg until they were confronted by police officers. After a scuffle, the officers recovered the mural, but in a damaged condition.
2
The petitioner was charged by the City of St. Petersburg with the violation of two ordinances: first, destruction of city property; and second, disorderly breach of the peace. He was found guilty in the municipal court on both counts, and a sentence of 180 days in the county jail was imposed.
3
Thereafter an information was filed against the petitioner by the State of Florida charging him with grand larceny. It is conceded that this information was based on the same acts of the petitioner as were involved in the violation of the two city ordinances.
4
Before his trial in the Circuit Court on the felony charge, petitioner moved in the Supreme Court of Florida for a writ of prohibition to prevent the second trial, asserting the claim of double jeopardy as a bar. Relief was denied without opinion. State ex rel. Waller v. Circuit Court for the Sixth Judicial Circuit in and for Pinellas County, 201 So.2d 554 (1967). Thereafter petitioner was tried in the Circuit Court of Florida by a jury and was found guilty of the felony of grand larceny. After verdict in the state court, he was sentenced to six months to five years less 170 days of the 180-day sentence previously imposed by the municipal court of St. Petersburg, Florida.
5
On appeal, the District Court of Appeal of Florida considered and rejected petitioner's claim that he had twice been put in jeopardy because prior to his conviction of grand larceny, he had been convicted by the municipal court of an included offense of the crime of grand larceny. Waller v. State, 213 So.2d 623 (1968). The opinion of the District Court of Appeal first explicitly acknowledged that the charge on which the state court action rested 'was based on the same acts of the appellant as were involved in the violation of the two city ordinances.' Then in rejecting Waller's claim of double jeopardy, the court said:
6
'Assuming but not holding that the violations of the municipal ordinances were included offenses of the crime of grand larceny, the appellant nevertheless has not twice been put in jeopardy, because even if a person has been tried in a municipal court for the identical offense with which he is charged in a state court, this would not be a bar to the prosecution of such person in the proper state court. This has been the law of this state since 1894, as is established in the case of Theisen v. McDavid, 34 Fla. 440, 16 So. 321, 26 L.R.A. 234. The Florida Supreme Court has followed the Theisen case, supra, throughout the years and as recently as July 17, 1968, in Hilliard v. City of Gainesville, Fla., 213 So.2d 689, reaffirmed the Theisen case and stated as follows:
7
"This double jeopardy argument has long been settled contrary to the claims of the petitioner. We see no reason to recede from our established precedent on the subject. Long ago it was decided that an act committed within municipal limits may be punished by city ordinance even though the same act is also proscribed as a crime by a state statute. An offender may be tried for the municipal offense in the city court and for the crime in the proper state court. Conviction or acquittal in either does not bar prosecution in the other." (Emphasis added.)
8
A petition for a writ of certiroari to the Supreme Court of Florida was denied, Waller v. State, 221 So.2d 749 (1968). It is reasonable to assume that the Florida trial court and the District Court of Appeal considered themselves bound by the doctrine of Theisen v. McDavid, 34 Fla. 440, 16 So. 321, which at that time was being reasserted in Hilliard v. City of Gainesville, 213 So.2d 689, and had been reaffirmed by the Florida Supreme Court's denial of a writ of prohibition sought by Waller on the claim of double jeopardy.
9
We act on the statement of the District Court of Appeal that the second trial on the felony charge by information 'was based on the same acts of the appellant as were involved in the violation of the two city ordinances' and on the assumption that the ordinance violations were included offenses of the felony charge.1
10
Whether in fact and law petitioner committed separate offenses which could support separate charges was not decided by the Florida courts, nor do we reach that question. What is before us is the asserted power of the two courts within one State to place petitioner on trial for the same alleged crime.
11
In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), this Court declared the double jeopardy provisions of the Fifth Amendment applicable to the States, overruling Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). Here, as in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2089, 23 L.Ed.2d 656 (1969), Benton should be applied to test petitioner's conviction, although we need not and do not decide whether each of the several aspects of the constitutional guarantee against double jeopardy requires such application in similar procedural circumstances.2
12
Florida does not stand alone in treating municipalities and the State as separate sovereign entities, each capable of imposing punishment for the same alleged crime.3 Here, respondent State of Florida seeks to justify this separate sovereignty theory by asserting that the relationship between a municipality and the State is analogous to the relationship between a State and the Federal Government. Florida's chief reliance is placed upon this Court's holdings in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L,.ed.2d 684 (1959), and Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), which permitted successive prosecutions by the Federal and State Governments as separate sovereigns. Any such reading of Abbate is foreclosed. In another context, but relevant here, this Court noted—
13
'Political subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.' Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 1388, 12 L.Ed.2d 506 (1964).
14
Florida has recognized this unity in its Constitution. Article VIII, § 2, of the Florida Constitution (1968 revision) contains a grant of power to the Florida Legislature respecting municipalities:4
15
'(a) Establishment. Municipalities may be established or abolished and their charters amended pursuant to general or special law. * * * '(b) Powers. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services * * *.'
16
Moreover, Art. V, § 1, of the Florida Constitution (1885), which does not appear to have been changed in the 1968 Constitutional revision, declares:
17
'The judicial power of the State of Florida is vested in a supreme Court * * * and such other courts, including municipal courts * * * as the legislature may from time to time ordain and establish.' (Emphasis added.)
18
These provisions of the Florida Constitution demonstrate that the judicial power to try petitioner on the first charges in municipal court springs from the same organic law that created the state court of general jurisdiction in which petitioner was tried and convicted for a felony. Accordingly, the apt analogy to the relationship between municipal and state governments is to be found in the relationship between the government of a Territory and the Government of the United States. The legal consequence of that relationship was settled in Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907), where this Court held that a prosecution in a court of the United States is a bar to a subsequent prosecution in a territorial court, since both are arms of the same sovereign.5 In Grafton a soldier in the United States Army had been acquitted by a general court-martial convened in the Philippine Islands of the alleged crime of feloniously killing two men. Subsequently, a criminal information in the name of the United States was filed in a Philippine court while those islands were a federal territory, charging the soldier with the same offense committed in violation of local law. When Philippine courts upheld a conviction against a double jeopardy challenge, this Court reversed, resting upon the single-sovereign rationale and distinguishing cases like Fox v. Ohio, 5 How. 410, 12 L.Ed. 213 (1847), which sanctioned successive prosecutions by State and Federal Governments for the same acts:
19
'An offense against the United States can only be punished under its authority and in the tribunals created by its laws; whereas, an offense against a state can be punished only by its authority and in its tribunals. The same act * * * may constitute two offenses, one against the United States and the other against a state. But these things cannot be predicated of the relations between the United States and the Philippines. The government of a state does not derive its powers from the United States, while the Government of the Philippines owes its existence wholly to the United States, and its judicial tribunals exert all their powers by authority of the United States. The jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government, is paramount. So that the cases holding that the same acts committed in a state of the Union may constitute an offense against the United States and also a distinct offense against the state, do not apply here, where the two tribunals that tried the accused exert all their powers under and by authority of the same government—that of the United States.' 206 U.S., at 354—355, 27 S.Ct. at 755.
20
Thus Grafton, not Fox v. Ohio, supra, or its progeny, Bartkus v. Illinois, supra, or Abbate v. United States, supra, controls, and we hold that on the basis of the facts upon which the Florida District Court of Appeal relied petitioner could not lawfully be tried both by the municipal government and by the State of Florida. In this context a 'dual sovereignty' theory is an anachronism, and the second trial constituted double jeopardy violative of the Fifth and Fourteenth Amendments to the United States Constitution.
21
We decide only6 that the Florida courts were in error to the extent of holding that—
22
'even if a person has been tried in a municipal court for the identical offense with which he is charged in a state court, this would not be a bar to the prosecution of such person in the proper state court.'
23
The second trial of petitioner which resulted in a judgment of conviction in the state court for a felony having no valid basis, that judgment is vacated and the cause remanded to the District Court of Appeal of Florida, Second District, for further proceedings in accord with this opinion. In these circumstances we do not reach other contentions raised by petitioner. It is so ordered.
24
Judgment vacated and cause remanded to District Court of Appeal of Florida, Second District.
25
Mr. Justice BLACK joins the opinion of the Court, but nonetheless adheres to the views expressed in his dissenting opinions in Bartkus v. Illinois, 359 U.S. 121, 150, 79 S.Ct. 676, 695, 3 L.Ed.2d 684 (1959), and Abbate v. United States, 359 U.S. 187, 201, 79 S.Ct. 666, 674, 3 L.Ed.2d 729 (1959).
26
Mr. Justice BRENNAN, concurring.
27
I join the holding of the Court that, because the municipal and state courts of a State are part of one sovereign judicial system, successive prosecutions in the municipal and state courts are not prosecutions by separate sovereign entities. Moreover, for the reasons stated in my concurring opinion in Ashe v. Swenson, 397 U.S. 448, 90 S.Ct. 1197, I believe that, unless this case fell within one of the exceptions to the 'same transaction' rule, see, id., 397 U.S. at 453 n. 7, 455 n. 11, 90 S.Ct., at 1199, 1200, the Double Jeopardy Clause barred a second trial since all the charges grew out of the same criminal episode.*
1
We accept the assumption of the District Court of Appeal although the record is not adequate to verify its accuracy. For example, no part of the record of the municipal court conviction has been incorporated into the record in the present case.
2
Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056 (1969), controls any case which arises in its ambit. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 n. 1. Nonetheless, when this Court granted certiorari in Price v. Georgia, it requested that counsel 'brief and argue (the) question of retroactivity of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, and whether that decision is applicable to this case.' 395 U.S. 975, 89 S.Ct. 2138, 23 L.Ed.2d 764 (1969). By our decisions in the instant case and in Ashe v. Swenson, Supra, we do not resolve, with respect to the circumstances presented in Price v. Georgia, supra, either of the two questions posed by the Court in that case.
3
Decisions of the States that concurrently appear to treat municipalities and the State as separate sovereigns for double jeopardy purposes are as follows:
Pike v. City of Birmingham, 36 Ala. App. 53, 53 So.2d 394, cert. denied, 255 Ala. 664, 53 So.2d 396 (1951). See also Ala.Code. Tit. 37, § 594 (1958). United States v. Farwell, 11 Alaska 507, 76 F.Supp. 35 (D.C.Alaska 1948); McInerney v. City of Denver, 17 Colo. 302, 29 P. 516 (1892); State v. Musser, 67 Idaho 214, 176 P.2d 199 (1946); People v. Behymer, 48 Ill.App.2d 218, 198 N.E.2d 729 (1964); State v. Garcia, 198 Iowa 744, 200 N.W. 201 (1924); Earwood v. State, 198 Kan. 659, 426 P.2d 151 (1967); State v. Clifford, 45 La.Ann. 980, 13 So. 281 (1893). See also La.Crim.Pro.Code Ann., Art. 597 (1967); State v. End, 232 Minn. 266, 45 N.W.2d 378 (1950); May v. Town of Carthage. 191 Miss. 97, 2 So.2d 801 (1941); 378 (1950); May v. Town of Carthage, 604 (1950); State v. Amick, 173 Neb. 770, 114 N.W.2d 893 (1962); Ex parte Sloan, 47 Nev. 109, 217 P. 233 (1923); State v. Simpson, 78 N.D. 360, 49 N.W.2d 777 (1951); Koch v. State, 53 Ohio St. 433, 41 N.E. 689 (1895); McCann v. State, 82 Okl.Cr. 374, 170 P.2d 562 (1946); Miller v. Hansen, 126 Or. 297, 269 P. 864 (1928); Webster v. Knewel, 47 S.D. 142, 196 N.W. 549 (1924); State v. Tucker, 137 Wash. 162, 242 P. 363, 246 P. 758 (1926); City of Milwaukee v. Johnson, 192 Wis. 585, 213 N.W. 335 (1927); State v. Jackson, 75 Wyo. 13, 291 P.2d 798 (1955). Gross, Successive Prosecutions by City and State—The Question of Double Jeopardy, 43 Ore.L.Rev. 281 (1964), contains a discussion of the origins and development of this 'dual sovereignty' doctrine. See also Note, 1968 Duke L.J. 362.
4
At the time of petitioner's trial before the 1968 revision of the Florida Constitution, Art. VIII, § 8, of the Florida Constitution (1885) gave power to the State Legislature:
'to establish, and to abolish, municipalities(,) to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time.'
5
See also Puerto Rico v. Shell Co. (P.R.), Ltd., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235 (1937), where the Court in dicta approved of Grafton.
6
If petitioner has committed offenses not embraced within the charges against him in the municipal court he may, or may not, be subject to further prosecution depending on statutes of limitation and other restrictions not covered by the double jeopardy restraints of the Constitutions of Florida and of the United States.
*
I adhere to the Court's holding in Ashe v. Swenson, 397 U.S., at 437, 90 S.Ct., at 1191, 25 L.Ed.2d, at 472 n. 1, that our decision in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), holding the Double Jeopardy Clause of the Fifth Amendment applicable to the States, is 'fully 'retroactive." See also North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2089, 23 L.Ed.2d 656 (1969).
| 01
|
397 U.S. 471
90 S.Ct. 1153
25 L.Ed.2d 491
Edmund P. DANDRIDGE, Jr., et al., Appellants,v.Linda WILLIAMS et al.
No. 131.
Argued Dec. 9, 1969.
Decided April 6, 1970.
Rehearing Denied May 18, 1970.
See 398 U.S. 914, 90 S.Ct. 1684.
George W. Liebmann, Baltimore, Md., for appellants.
Joseph A. Matera, Baltimore, Md., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
This case involves the validity of a method used by Maryland, in the administration of an aspect of its public welfare program, to reconcile the demands of its needy citizens with the finite resources available to meet those demands. Like every other State in the Union, Maryland participates in the Federal Aid to Families With Dependent Children (AFDC program, 42 U.S.C. § 601 et seq. (1964 ed. and Supp. IV), which originated with the Social Security Act of 1935.1 Under this jointly financed program, a State computes the so-called 'standard of need' of each eligible family unit within its borders. See generally Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442. Some States provide that every family shall receive grants sufficient to meet fully the determined standard of need. Other States provide that each family unit shall receive a percentage of the determined need. Still others provide grants to most families in full accord with the ascertained standard of need, but impose an upper limit on the total amount of money any one family unit may receive. Maryland, through administrative adoption of a 'maximum grant regulation,' has followed this last course. This suit was brought by several AFDC recipients to enjoin the application of the Maryland maximum grant regulation on the ground that it is in conflict with the Social Security Act of 1935 and with the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court, convened pursuant to 28 U.S.C. § 2281, held that the Maryland regulation violates the Equal Protection Clause. 297 F.Supp. 450. This direct appeal followed, 28 U.S.C. § 1253, and we noted probable jurisdiction, 396 U.S. 811, 90 S.Ct. 62, 24 L.Ed.2d 64.
2
The operation of the Maryland welfare system is not complex. By statute2 the State participates in the AFDC program. It computes the standard of need for each eligible family based on the number of children in the family and the circumstances under which the family lives. In general, the standard of need increases with each additional person in the household, but the increments become proportionately smaller.3 The regulation here in issue imposes upon the grant that any single family may receive an upper limit of $250 per month in certain counties and Baltimore City, and of $240 per month elsewhere in the State.4 The appellees all have large families, so that their standards of need as computed by the State substantially exceed the maximum grants that they actually receive under the regulation. The appellees urged in the District Court that the maximum grant limitation operates to discriminate against them merely because of the size of their families, in violation of the Equal Protection Clause of the Fourteenth Amendment. They claimed further that the regulation is incompatible with the purpose of the Social Security Act of 1935, as well as in conflict with its explicit provisions.
3
In its original opinion the District Court held that the Maryland regulation does conflict with the federal statute, and also concluded that it violates the Fourteenth Amendment's equal protection guarantee. After reconsideration on motion, the court issued a new opinion resting its determination of the regulation's invalidity entirely on the constitutional ground.5 Both the statutory and constitutional issues have been fully briefed and argued here, and the judgment of the District Court must, of course, be affirmed if the Maryland regulation is in conflict with either the federal statute or the Constitution.6 We consider the statutory question first, because if the appellees' position on this question is correct, there is no occasion to reach the constitutional issues. Ashwander v. TVA, 297 U.S. 288, 346—347, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (Brandeis, J., concurring); Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000.
4
* The appellees contend that the maximum grant system is contrary to § 402(a) (10) of the Social Security Act, as amended,7 which requires that a state plan shall
5
'provide * * * that all individuals wishing to make application for aid to families with dependent children shall have opportunity to do so, and that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.'
6
The argument is that the state regulation denies benefits to the younger children in a large family. Thus, the appellees say, the regulation is in patent violation of the Act, since those younger children are just as 'dependent' as their older siblings under the definition of 'dependent child' fixed by federal law.8 See King v. Smith, 382 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118. Moreover, it is argued that the regulation, in limiting the amount of money any single household may receive, contravenes a basic purpose of the federal law by encouraging the parents of large families to 'farm out' their children to relatives whose grants are not yet subject to the maximum limitation.
7
It cannot be gainsaid that the effect of the Maryland maximum grant provision is to reduce the per capita benefits to the children in the largest families. Although the appellees argue that the younger and more recently arrived children in such families are totally deprived of aid, a more realistic vie is that the lot of the entire family is diminished because of the presence of additional children without any increase in payments. Cf. King v. Smith, supra, at 335 n. 4, 88 S.Ct. at 2142 (Douglas, J., concurring). It is no more accurate to say that the last child's grant is wholly taken away than to say that the grant of the first child is totally rescinded. In fact, it is the family grant that is affected. Whether this per capita diminution is compatible with the statute is the question here. For the reasons that follow, we have concluded that the Maryland regulation is permissible under the federal law.
8
In King v. Smith, supra, we stressed the States' 'undisputed power,' under these provisions of the Social Security act, 'to set the level of benefits and the standard of need.' Id., at 334, 88 S.Ct. at 2142. We described the AFDC enterprise as 'a scheme of cooperative federalism,' id., at 316, 88 S.Ct. at 2133, and noted carefully that '(t)here is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.' Id., at 318—319, 88 S.Ct. at 2134.
9
Congress was itself cognizant of the limitations on state resources from the very outset of the federal welfare program. The first section of the Act, 42 U.S.C. § 601 (1964 ed., Supp. IV), provides that the Act is
10
'For the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services, as far as practicable under the conditions in such State, to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection, * * *' (Emphasis added.)
11
Thus the starting point of the statutory analysis must be a recognition that the federal law gives each State great latitude in dispensing its available funds.
12
The very title of the program, the repeated references to families added in 1962, Pub.L. 87—543, § 104(a)(3), 76 Stat. 185, and the words of the preamble quoted above, show that Congress wished to help children through the family structure. The operation of the statute itself has this effect. From its inception the Act has defined 'dependent child' in part by reference to the relatives with whom the child lives.9 When a 'dependent child' is living with relatives, then 'aid' also includes payments and medical care to those relatives, including the spouse of the child's parent. 42 U.S.C. § 606(b) (1964 ed., Supp. IV). Thus, as the District Court noted, the amount of aid 'is * * * computed by treating the relative, parent or spouse of parent as the case may be, of the 'dependent child' as a part of the family unit.' 297 F.Supp., at 455. Congress has been so desirous of keeping dependent children within a family that in the Social Security Amendments of 1967 it provided that aid could go to children whose need arose merely from their parents' unemployment, under federally determined standards, although the parent was not incapacitated. 42 U.S.C. § 607 (1964 ed., Supp. IV).
13
The States must respond to this federal statutory concern for preserving children in a family environment. Given Maryland's finite resources, its choice is either to support some families adequately and others less adequately, or not to give sufficient support to any family. We see nothing in the federal statute that forbids a State to balance the stresses that uniform insufficiency of payments would impose on all families against the greater ability of large families—because of the inherent economies of scale—to accommodate their needs to diminished per capita payments. The strong policy of the statute in favor of preserving family units does not prevent a State from sustaining as many families as it can, and providing the largest families somewhat less than their ascertained per capita standard of need.10 Nor does the maximum grant system necessitate the dissolution of family bonds. For even if a parent should be inclined to increase his per capita family income by sending a child away, the federal law requires that the child, to be eligible for AFDC payments, must live with one of several enumerated relatives.11 The kinship tie may be attenuated but it cannot be destroyed.
14
The appellees rely most heavily upon the statutory requirement that aid 'shall be furnished with reasonable promptness to all eligible individuals.' 42 U.S.C. § 602(a)(10) (1964 ed., Supp. IV). But since the statute leaves the level of benefits within the judgment of the State, this language cannot mean that the 'aid' furnished must equal the total of each individual's standard of need in every family group. Indeed the appellees do not deny that a scheme of proportional reductions for all families could be used that would result in no individual's receiving aid equal to his standard of need. As we have noted, the practical effect of the Maryland regulation is that all children, even in very large families, do receive some aid. We find nothing in 42 U.S.C. § 602(a)(10) (1964 ed., Supp. IV) that requires more than this.12 So long as some aid is provided to all eligible families and all eligible children, the statute itself is not violated.
15
This is the view that has been taken by the Secretary of Health, Education, and Welfare (HEW), who is charged with the administration of the Social Security Act and the approval of state welfare plans. The parties have stipulated that the Secretary has, on numerous occasions, approved the Maryland welfare scheme, including its provision of maximum payments to any one family, a provision that has been in force in various forms since 1947. Moreover, a majority of the States pay less than their determined standard of need, and 20 of these States impose maximums on family grants of the kind here in issue.13 The Secretary has not disapproved any state plan because of its maximum grant provision. On the contrary, the Secretary has explicitly recognized state maximum grant systems.14
16
Finally, Congress itself has acknowledged a full awareness of state maximum grant limitations. In the Amendments of 1967 Congress added to § 402(a) a subsection, (23):
17
'(The State shall) provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any maximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted.' 81 Stat. 898, 42 U.S.C. § 602(a)(23) (1964 ed., Supp. IV). (Emphasis added.)
18
This specific congressional recognition of the state maximum grant provisions is not, of course, an approval of any specific maximum. The structure of specific maximums Congress left to the States, and the validity of any such structure must meet constitutional tests. However, the above amendment does make clear that Congress fully recognized that the Act permits maximum grant regulations.15
19
For all of these reasons, we conclude that the Maryland regulation is not prohibited by the Social Security Act.
II
20
Although a State may adopt a maximum grant system in allocating its funds available for AFDC payments without violating the Act, it may not, of course, impose a regime of invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Maryland says that its maximum grant regulation is wholly free of any invidiously discriminatory purpose or effect, and that the regulation is rationally supportable on at least four entirely valid grounds. The regulation can be clearly justified, Maryland argues, in terms of legitimate state interests in encouraging gainful employment, in maintaining an equitable balance in economic status as between welfare families and those supported by a wage-earner, in providing incentives for family planning, and in allocating available public funds in such a way as fully to meet the needs of the largest possible number of families. The District Court, while apparently recognizing the validity of at least some of these state concerns, nonetheless held that the regulation 'is invalid on its face for overreaching,' 297 F.Supp., at 468—that it violates the Equal Protection Clause '(b)ecause it cuts too broad a swath on an indiscriminate basis as applied to the entire group of AFDC eligibles to which it purports to apply, * * *' 297 F.Supp., at 469.
21
If this were a case involving government action claimed to violate the First Amendment guarantee of free speech, a finding of 'overreaching' would be significant and might be crucial. For when otherwise valid governmental regulation sweeps so broadly as to impinge upon activity protected by the First Amendment, its very overbreadth may make it unconstitutional. See, e.g., Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231. But the concept of 'overreaching' has no place in this case. For here we deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights, and claimed to violate the Fourteenth Amendment only because the regulation results in some disparity in grants of welfare payments to the largest AFDC families.16 For this Court to approve the invalidation of state economic or social regulation as 'overreaching' would be far too reminiscent of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws 'because they may be unwise, improvident, or out of harmony with a particular school of thought.' Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563. That era long ago passed into history. Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93.
22
In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369. 'The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69—70, 33 S.Ct. 441, 443, 57 L.Ed. 730. 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393.
23
To be sure, the cases cited, and many others enunciating this fundamental standard under the Equal Protection Clause, have in the main involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard.17 See Snell v. Wyman, D.C., 281 F.Supp. 853, aff'd, 393 U.S. 323, 89 S.Ct. 553, 21 L.Ed.2d 511. It is a standard that has consistently been applied to state legislation restricting the availability of employment opportunities. Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163; Kotch v. Board of River Port Pilot Com'rs, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093. See also Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435. And it is a standard that is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.18
24
Under this long-established meaning of the Equal Protection Clause, it is clear that the Maryland Maximum grant regulation is constitutionally valid. We need not explore all the reasons that the State advances in justification of the regulation. It is enough that a solid foundation for the regulation can be found in the State's legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of the working poor. By combining a limit on the recipient's grant with permission to retain money earned, without reduction in the amount of the grant, Maryland provides an incentive to seek gainful employment. And by keying the maximum family AFDC grants to the minimum wage a steadily employed head of a household receives, the State maintains some semblance of an equitable balance between families on welfare and those supported by an employed breadwinner.19
25
It is true that in some AFDC families there may be no person who is employable.20 It is also true that with respect to AFDC families whose determined standard of need is below the regulatory maximum, and who therefore receive grants equal to the determined standard, the employment incentive is absent. But the Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369. It is enough that the State's action be rationally based and free from invidious discrimination. The regulation before us meets that test.
26
We do not decide today that the Maryland regulation is wise, that it best fulfills the relevant social and economic objectives that Maryland might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. The Constitution may impose certain procedural safeguards upon systems of welfare administration, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. But the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients. Cf. Charles C. Steward Mach. Co. v. Davis, 301 U.S. 548, 584—585, 57 S.Ct. 883, 889—890, 81 L.Ed. 1279; Helvering v. Davis, 301 U.S. 619, 644, 57 S.Ct. 904, 909, 81 L.Ed. 1307.
27
The judgment is reversed.
APPENDIX TO OPINION OF THE COURT
28
The following was the schedule for determining subsistence needs, exclusive of rent, at the time this action was brought. Md. Manual of Dept. of Pub. Welfare, pt. II, Rule 200, Sched. A, p. 27:
29
STANDARD FOR DETERMINING COST OF SUBSISTENCE NEEDS
I II III IV V
Monthly costs when
Number of persons in
30
assistance unit (include
31
unborn child as an No heat Light and/ Heat with Heat, Heat
32
additional person) or or cooking or cooking and all
33
utilities fuel without fuel and utilities
34
included included light water included
35
with with included heating with
36
shelter shelter with included shelter
37
shelter with
38
shelter
1 person living:
39
Alone. $51.00. $49.00 $43.00 $40.00 $38.00
40
With 1 person. 42.00 41.00 38.00 36.00 35.00
41
With 2 persons. 38.00 37.00 35.00 34.00 33.00
42
With 3 or more persons 36.00 35.00 34.00 33.00 32.00
2 persons living:
Alone. 84.00. 82.00 76.00 72.00 70.00
43
With 1 other person 76.00 74.00 70.00 68.00 66.00
With 2 or more other
44
persons. 72.00. 70.00 68.00 66.00 64.00
3 persons living:
45
Alone. 113.00. 110.00 105.00 101.00 99.00
With 1 or more other
46
persons. 108.00 106.00 101.00 99.00 97.00
47
4 persons. 143.00 140.00 135.00 131.00 128.00
48
5 persons. 164.00 162.00 156.00 152.00 150.00
49
6 persons. 184.00 181.00 176.00 172.00 169.00
50
7 persons. 209.00 205.00 201.00 197.00 193.00
51
8 persons. 235.00 231.00 227.00 222.00 219.00
52
9 persons. 259.00 256.00 251.00 247.00 244.00
53
10 person. 284.00 281.00 276.00 271.00 268.00
Each additional person over
54
10 persons. 24.50 24.50 24.50 24.50 24.50
55
Modification of standard for cost of eating in restaurant: Add $15 per individual.
56
Other schedules set the estimated cost of shelter in the various counties in Maryland. See id., Sched. B—Plan A, p. 29; Sched. B—Plan B, p. 30. The present schedules, which are substantially the same, appear in the Md. Manual of Dept. of Social Services, Rule 200, pp. 33, 35.
57
Mr. Justice BLACK, with whom THE CHIEF JUSTICE joins, concurring.
58
Assuming, as the Court apparently does, that individual welfare recipients can bring an action against state welfare authorities challenging an aspect of the State's welfare plan as inconsistent with the provisions of the Social Security Act, 42 U.S.C. §§ 601—610 (1964 ed. and Supp. IV), even though the Secretary of Health, Education, and Welfare has determined as he has here that the federal and state provisions are consistent, cf. Rosado v. Wyman, 397 U.S. 430, 90 S.Ct. 1227 (1970) (Black, J., dissenting), I join in the opinion of the Court in this case.
59
Mr. Justice HARLAN, concurring.
60
I join the Court's opinion, with one reservation which I deem called for by certain implications that might be drawn from the opinion.
61
As I stated in dissent in Shapiro v. Thompson, 394 U.S. 618, 658—663, 89 S.Ct. 1322, 1344—1347, 22 L.Ed.2d 600 (1969), I find no solid basis for the doctrine there expounded that certain statutory classifications will be held to deny equal protection unless justified by a 'compelling' governmental interest, while others will pass muster if they meet traditional equal protection standards. See also my dissenting opinion in Katzenbach v. Morgan, 384 U.S. 641, 660—661, 86 S.Ct. 1731, 1732—1733, 16 L.Ed.2d 828 (1966). Except with respect to racial classifications, to which unique historical considerations apply, see Shapiro, 394 U.S. at 659, 89 S.Ct. at 1344, I believe the constitutional provisions assuring equal protection of the laws impose a standard of rationality of classification, long applied in the decisions of this Court, that does not depend upon the nature of the classification or interest involved.
62
It is on this basis, and not because this case involves only interests in 'the area of economics and social welfare,' at 485, that I join the Court's constitutional holding.
63
Mr. Justice DOUGLAS, dissenting.
64
Appellees, recipients of benefits under the Aid to Families With Dependent Children (AFDC) program, brought this suit under 42 U.S.C. § 1983 to have declared invalid and permanently enjoined the enforcement of the Maryland maximum grant regulation, which places a ceiling on the amount of benefits payable to a family under AFDC. They alleged that the regulation was inconsistent with the Social Security Act and that it denied equal protection of the laws in violation of the Fourteenth Amendment. I do not find it necessary to reach the constitutional argument in this case, for in my view the Maryland regulation is inconsistent with the terms and purposes of the Social Security Act.
65
The Maryland regulation under attack, Rule 200, § X, B, of the Maryland Department of Social Services, places an absolute limit of $250 per month on the amount of a grant under AFDC, regardless of the size of the family and its actual need.1 The effect of this regulation is to deny benefits to additional children born into a family of six, thus making it impossible for families of seven persons or more to receive an amount commensurate with their actual need in accordance with standards formulated by the Maryland Department of Social Services whereas families of six or less can receive the full amount of their need as so determined. Appellee Williams, according to the computed need for herself and her eight children, should receive $296.15 per month. Appellees Gary should receive $331.50 for themselves and their eight children. Instead, these appellees received the $250 maximum grant.
66
In King v. Smith, 392 U.S. 309, 318—319, 88 S.Ct. 2128, 2134, 20 L.Ed.2d 1118, this Court stated: 'There is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.' That dictum, made in the context of a case that dealt with Alabama's 'substitute father' regulation, does little to clarify the limits of state authority. The holding in King was that the Alabama regulation, which denied AFDC benefits to the children of a mother who 'cohabited' in or outside her home with an able-bodied man, was invalid because it defined 'parent' in a manner inconsistent with § 406(a) of the Social Security Act, 42 U.S.C. § 606(a) (1964 ed., Supp. IV). The Court rejected the State's contention that its regulation was 'a legitimate way of allocating its limited resources available for AFDC assistance.' 392 U.S., at 318, 88 S.Ct., at 2133. Thus, whatever else may be said of the 'latitude' extended to States in determining the benefits payable under AFDC, the holding in King makes clear that it does not include restrictions on the payment of benefits that are incompatible with the Social Security Act.
67
The methods by which a State can limit AFDC payments below the level of need are numerous. The method used in King was to deny totally benefits to a specifically defined class of otherwise eligible recipients. Another method, which was disapproved by Congress in § 402(a)(10) of the Social Security Act, 42 U.S.C. § 602(a)(10) (1964 ed., Supp. IV), was to refuse to take additional applications pending a decrease in the number of recipients on the assistance rolls or an increase in available funds. The two methods most commonly employed by the States at present, however, are percentage reductions and grant maximums. See Department of Health, Education, and Welfare (HEW), State Maximums and Other Methods of Limiting Money Payments to Recipients of the Special Types of Public Assistance, Oct. 1968, Tables 2, 3 (NCSS Report D—3). Grant maximums, in which payments are made according to need but subject to a stated dollar maximum, are of two types; individual maximums and family maximums. Only the latter type is at issue in the present case. Percentage reductions involve payments of a fixed percentage of actual need as determined by the State's need standard.
68
The authority given the States to set the level of benefits payable under their AFDC plans stems from § 401 of the Social Security Act, 42 U.S.C. § 601 (1964 ed., Supp. IV), which states the purpose of the federal AFDC appropriations as 'enabling each State to furnish financial assistance and rehabilitation and other services, as far as practicable under the conditions in such State, * * *' (Emphasis added.) It is significant in this respect that the Court in King referred only to a State's determination of the level of benefits 'by the amount of funds it devotes to the (AFDC) program.' 392 U.S. at 318—319, 88 S.Ct., at 2134 (emphasis added). The language of § 401 and the language of the Court in King both reflect a concern that the Federal Government not require a state legislature to appropriate more money for welfare purposes than it is willing and able to appropriate. The use of the matching formula in § 403 of the Act, 42 U.S.C. § 603 (1964 ed., Supp. IV), supports this deference to the fiscal decisions of state legislatures. The question of a State's authority to pay less than its standard of need, however, has never been expressly decided.
69
Assuming, arguendo, that a State need not appropriate sufficient funds to pay all eligible AFDC recipients the full amount of their need, it does not follow that it can distribute such funds as it deems appropriate in a manner inconsistent with the Social Security Act. The question involved here is not one of ends; it is one of means. Thus the United States Government, in its Memorandum as Amicus Curiae in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442, stated, at 6 7.
70
'Maximums, whether so many dollars per individual or a total number of dollars per family, have an arbitrary aspect lacking from ratable reductions, since their application means that one family or individual will receive a smaller proportion of the amounts he is determined to need under the state's test than another family or individual. Where percentage reductions are used, the payment of every family is reduced proportionately * * * (t)his aspect explains why Congress might wish to distinguish between maximums and ratable reductions as a means of reducing a state's financial obligation and, at least inferentially, to disfavor the former.'
71
The District Court, in its initial ruling that the Maryland regulation was inconsistent with the Social Security Act, relied primarily on § 402(a)(10) of the Act, which provides that 'all individuals wishing to make application for aid to (families with) dependent children shall have opportunity to do so, and that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.' 42 U.S.C. § 602(a)(10) (1964 ed., Supp. IV.). (Emphasis added.) This provision was added by the Social Security Act Amendments of 1950, 64 Stat. 549. The House Committee on Ways and Means, where the provision originated, explained its purpose as follows:
72
'Shortage of funds in aid to dependent children has sometimes, as in old-age assistance, resulted in a decision not to take more applications or to keep eligible families on waiting lists until enough recipients could be removed from the assistance rolls to make a place for them. * * * (T)his difference in treatment accorded to eligible people results in undue hardship on needy persons and is inappropriate in a program financed from Federal funds.' H.R.Rep. No. 1300, 81st Cong., 1st Sess., 48 (1949).
73
In the court below, the appellants relied upon this legislative history to argue that the 'eligible individuals' to whom aid must be furnished are the applicants for aid referred to in the beginning of the provision, and not the individual members of a family unit. I find nothing in the Act or in the legislative history of § 402(a)(10) which supports that argument.
74
The purpose of the AFDC program, as stated in the Act, is to encourage 'the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services, as far as practicable under the conditions in such State, to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life * * *.' Social Security Act § 401, 42 U.S.C. § 601 (1964 ed., Supp. IV) (emphasis added). The terms 'dependent child' and 'relative with whom any dependent child is living' are defined in § 406 of the Act, 42 U.S.C. § 606 (1964 ed., Supp. IV).
75
The aid provided through the AFDC program has always been intended for the individual dependent children, not for those who apply for the aid on their behalf. The Senate Committee on Finance, in its report on the Social Security Bill of 1935, stated this purpose in the following terms:
76
'The heart of any program for social security must be the child. All parts of the Social Security Act are in a very real sense measures for the security of children. * * *
77
'In addition, however, there is great need for special safeguards for many underprivileged children. Children are in many respects the worst victims of the depression. * * *
78
'Many of the children included in relief families present no other problem than that of providing work for the breadwinner of the family. These children will be benefited through the work relief program and still more through the revival of private industry. But there are large numbers of children in relief families which will not be benefited through work programs or the revival of industry.
79
'These are the children in families which have been deprived of a father's support and in which there is no other adult than one who is needed for the care of the children. * * *
80
'With no income coming in, and with young children for whom provision must be made for a number of years, families without a father's support require public assistance, unless they have been left with adequate means or are aided by friends and relatives. * * * Through cash grants adjusted to the needs of the family it is possible to keep the young children with their mother in their own home, thus preventing the necessity of placing the children in institutions. This is recognized by everyone to be the least expensive and altogether the most desirable method for meeting the needs of these families that has yet been devised.' S.Rep. No. 628, 74th Cong., 1st Sess., 16—17 (1935) (emphasis added).
81
Prior to 1950, no specific provision was made for the need of the parent or other relative with whom the dependent child was living. Although this underscores the fact that the payments were intended to benefit the children and not the applicants who received those payments, the exclusion from the federal scheme of provision for the need of the caring relative operated effectively to dilute the ability of the AFDC payments to meet the need of the child. To correct this latter deficiency, the 1950 Amendments allowed provision for the needs of this caring relative. The Report of the House Committee on Ways and Means stated:
82
'Particularly in families with small children, it is necessary for the mother or another adult to be in the home full time to provide proper care and supervision. Since the person caring for the child must have food, clothing, and other essentials, amounts allotted to the children must be used in part for this purpose if no other provision is made to meet her needs. * * *
83
'To correct the present anomalous situation wherein no provision is made for the adult relative and to enable States to make payments that are more nearly adequate, the bill would include the relative with whom the dependent child is living as a recipient for Federal matching purposes. * * *' H.R.Rep. No. 1300, 81st Cong., 1st Sess., 46 (1949).
84
This amendment emphasizes the congressional concern with fully meeting the needs of the dependent children in a given family; and it would seem to negative the necessity of those children sharing their individual allocations with other essential members of the family unit.
85
There is other evidence that Congress intended each eligible recipient to receive his fair share of benefits under the AFDC program. The Public Welfare Amendments of 1962 provided that a state AFDC plan must 'provide for the development and application of a program for (services to maintain and strengthen family life) for each child who receives aid to families with dependent children, * * *' 42 U.S.C. § 602(a)(13). The Social Security Amendments of 1967, which extended this program of 'family services' to relatives receiving AFDC payments and 'essential persons' living in the same home as the child and relative, retained the emphasis on providing these services to 'each appropriate individual.' Social Security Act, §§ 402(a)(14), (15), 42 U.S.C. §§ 602(a)(14), (15) (1964 ed., Supp.IV). The Senate Finance Committee Report on the 1967 Amendments stated:
86
'Under the Social Security Act Amendments of 1962, an amendment was added to title IV requiring the State welfare agency to make a program for each child, identifying the services needed, and then to provide the necessary services. This has proven a useful amendment, for it has required the States to give attention to the children and to provide services necessary to carry out the plans for the individual child, * * * (T)he committee believes that it is essential to broaden the requirement for the program of services for each child to include the entire family. The committee bill would require, therefore, that the States establish a social services program for each AFDC family. Thus there will be a broadened emphasis to include a recognition of the needs of all members of the family, including 'essential persons." S.Rep. No. 744, 90th Cong., 1st Sess., 155 (1967) U.S.Code Cong. and Admin.News, p. 2291.
87
These 'family services' provisions are helpful in interpreting the words 'all eligible individuals' in § 402(a)(10) of the Act for they reveal Congress' overriding concern with meeting the needs of each eligible recipient of aid under the AFDC program. The resources commanded to meet those needs, as well as the definition of those individuals eligible to receive this aid, have expanded over the years. At first, only financial assistance was available. Now 'family services' programs have been added.2 In each case, however, the concern has been with meeting the needs of each eligible recipient.
88
A further indication that the phrase 'all eligible individuals' as used in § 402(a)(10) refers to the idividual beneficiaries of aid, and not those who apply for and receive the payments, lies in the provisions of the Act that concern the computation of federal payments to the States. Social Security Act § 403. These payments are presently computed in relation to the State's contribution to individual recipients, with federal payment of five-sixths of the first $18 a month per recipient of state expenditure, and further payment up to a maximum of $32 a month per recipient. There is no limitation on federal payments based on family size in the present provisions, nor has there ever been such a limitation in previous versions of the Act.
89
Section 403(d)(1) of the Act imposes a limitation on federal payments to States as respects children whose eligibility is based upon the absence from the home of a parent. Under this section, the number of AFDC children under the age of 18 for whom federal sharing is available cannot exceed the ratio of AFDC children eligible because of an 'absent parent' to the total child population of a State as of January 1, 1968. Appellants have argued that this limitation somehow indicates congressional approval of the maximum grant concept. The District Court below properly rejected that contention. The Report of the House Committee on Ways and Means indicates that the purpose of the limitation is to keep federal financial participation 'within reasonable bounds' and to 'give the States an incentive to make effective use of the constructive programs which the bill would establish.' H.R. Rep. No. 544, 90th Cong., 1st Sess., 110. Keeping federal participation 'within reasonable bounds' was tied to the fact that the 'absent parent' category of AFDC recipients was the one that was growing most rapidly. Ibid. This provision, however, relates only to federal contributions to a State's AFDC program, and does not authorize the State's termination of aid to any of the children who would otherwise be eligible for aid because of an absent parent. Representative Mills explained the purpose of this limitation to the House in the following terms:
90
'Finally, Mr. Chairman, the bill would add a provision to present law which would limit Federal financing for the largest AFDC category—where the parent is absent from the home—to the proportion of each State's total child population that is now receiving AFDC in this category. This provision, we believe, would give the States an additional incentive to make effective use of the constructive programs which the bill would establish. Moreover, this limitation on Federal matching will not prevent any deserving family from receiving aid payments. The States would not be free to keep any family off the rolls to keep within this limitation because there is a requirement in the law that requires equal treatment of recipients and uniform administration of a program within a State. * * *.' 113 Cong. Rec. 23055.
91
In sum, the provisions of the Act that compute the amount of federal contribution to state AFDC programs are related to state payments to individual recipients and have consistently excluded any limitation based upon family size. The limitation contained in § 403(d)(1) of the Act affects only the amount of federal matching funds in one category of aid, and in no way indicates congressional approval of maximum grants.
92
The purpose of the AFDC provisions of the Social Security Act is not only to provide for the needs of dependent children but also 'to keep the young children with their mother in their own home, thus preventing the necessity of placing the children in institutions.' S. Rep. No. 628, 74th Cong., 1st Sess., 17 (1935). Also see Social Security Act § 401. As the District Court noted, however, 'the maximum grant regulation provides a powerful economic incentive to break up large families by placing 'dependent children in excess of those whose subsistence needs, when added to the subsistence needs of other members of the family, exceed the maximum grant, in the homes of persons included in the class of eligible relatives.' 297 F.Supp., at 456. By this device, payments for the 'excess' children can be obtained.
93
'If Mrs. Williams were to place two of her children of twelve years or over with relatives, each child so placed would be eligible for assistance in the amount of $79.00 per month, and she and her six remaining children would still be eligible to receive the maximum grant of $250.00. If Mr. and Mrs. Gary were to place two of their children between the ages of six and twelve with relatives, each child so placed would be eligible for assistance in the amount of $65.00 per month, and they and their six remaining children would still be eligible to receive the maximum grant of $250.00.' Id., at 453—454.
94
The District Court correctly states that this incentive to break up family units created by the maximum grant regulation is in conflict with a fundamental purpose of the Act.
95
The history of the Social Security Act thus indicates that Congress intended the financial benefits, as well as the other benefits, of the AFDC program to reach each individual recipient eligible under the federal criteria. It was to this purpose that Congress had reference when it commanded in § 402(a)(10) of the Act that aid to families with dependent children shall be furnished to 'all eligible individuals.'
96
The Court attempt to avoid the effect of this command by stating that 'it is the family grant that is affected.' Ante, At 477-478. The implication is that, regardless of how the AFDC payments are computed or to whom they apply, the payments will be used by the parents for the benefit of all the members of the family unit. This is no doubt true. But the fact that parents may take portions of the payments intended for certain children to give to other children who are not given payments under the State's AFDC plan, does not alter the fact that aid is not being given by the State to the latter children. And it is payments by the State, not by the parents, to which the command of § 402(a)(10) is directed. The Court's argument would equate family grant maximums with percentage reductions, but the two are, in fact, quite distinct devices for limiting welfare payments. If Congress wished to design a scheme under which each family received equal payments, irrespective of the size of the family, I see nothing that would prevent it from doing so. But that is not the scheme of Congress under the present Act.
97
Against the legislative history and the command of § 402(a)(10), the appellants cite three provisions of the Social Security Act as recognizing the validity of state maximum grant regulations.
98
The first of these provisions is § 402(a)(23) of the Act, 42 U.S.C. § 602(a) (23) (1964 ed., Supp. IV), which provides:
99
'(A State plan for aid and services to needy families with children must) provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any maximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted.'
100
This section had its genesis in an Administration proposal to require States to pay fully the amounts required by their standard of need, and also to make cost-of-living adjustments to that standard of need by July 1, 1968, and annually thereafter. Hearings on H.R. 5710 before the House Committee on Ways and Means, 90th Cong., 1st Sess., pt. 1, p. 59 (1967); House Committee on Ways and Means, Section-by-Section Analysis and Explanation of Provisions of H.R. 5710, 90th Cong., 1st Sess., 36 (Comm.Print) (1967). The bill that emerged from the House as H.R. 12080, however, did not include any provision relating to an increase in benefit levels or adjustments to standards of need. See Hearings on H.R. 12080 before the Senate Committee on Finance, 90th Cong., 1st Sess., pt. 1, pp. 109—144 (1967). A provision requiring a cost-of-living adjustment in the standard of need by July 1, 1969, and annually thereafter was added to the House bill by the Senate Finance Committee, and this provision also required that 'any maximums * * * on the amount of aid' be proportionately adjusted. S. Rep. No. 774, 90th Cong., 1st Sess., 293 (1967). An amendment of the bill was proposed in the Senate that would have required a positive increase in AFDC payments, but that amendment was rejected. 113 Cong. Rec. 33560. The Senate-House Conference Committee adopted the Senate AFDC cost-of-living provision, omitting only the requirement for annual updating of need standards after July 1, 1969. H.R. Conf. Rep. No. 1030, 90th Cong., 1st Sess., 63 (1967).
101
Nowhere in any of the hearings, committee reports, or floor debates, is there shown a congressional intent to validate state maximum grant regulations by the provisions of § 402(a)(23). Rather, the legislative history shows that Congress was exclusively concerned with increasing the income of AFDC recipients. If Congress had not required cost-of-living adjustments in state-imposed grant maximums, the States could easily nullify the effect of the cost-of-living adjustments for many AFDC families by retaining the grant ceilings in force before the adjustment was made. Congress was, to be sure, acknowledging the existence of maximum grant regulations. But every congressional reference to an existing practice does not automatically imply approval of that practice. The task of statutory construction requires more. It requires courts to look to the context of that reference, and to the history of relevant legislation. In the present context, the reference to maximum grants was necessary to preserve the integrity of the cost-of-living adjustment required by the bill. No further significance can legitimately be read into that reference.
102
Appellants also rely on § 108(a) of Pub.L. 87—543, 76 Stat. 189, a provision of the Public Welfare Amendments of 1962 that amended § 406 of the Act. This amendment, which has since been superseded, authorized 'protective payments' to an individual other than the relative with whom the dependent child is living. The problem which this amendment was designed to cure was that some payees were unable to manage their funds so that the dependent children received the full benefit of the AFDC payments. Hearings on H.R. 10606 before the Senate Committee on Finance, 87th Cong., 2d Sess., 137 (1962). The House bill required 'a meeting of all need as determined by the State' as a condition to including 'protective payments' within the definition of 'aid to families with dependent children.' The Senate Finance Committee changed that requirement, however, by an amendment which authorized federal funding of 'protective payments' if the state-determined need of individuals with respect to whom such payments were made was fully met by their assistance payment and other income or resources. The Senate Committee explained this provision as follows:
103
'The effect of this provision is to make it possible for protective payments to be made in behalf of certain ADC recipients in States in which there is a maximum limiting the amount of assistance an individual may receive. These are the cases in which the statutory maximum does not prevent need from being met in full according to the State's standards.' S. Rep. No. 1589, 87th Cong., 2d Sess., 14 (1962); U.S.Code Cong. & Adm.News, p. 1956 (1962).
104
This reference to a state-imposed maximum can hardly be interpreted as a congressional approval of a family maximum grant. If anything, it implicitly disapproves the concept by withholding federal payments with respect to individuals receiving 'protective payments' when a maximum grant operates to prevent these individuals from receiving the full amount of their state-determined need.
105
The final statutory provision relied upon by appellants is § 220(a) of Pub.L. 90—248, 81 Stat. 898, which added to the Medical Assistance Title of the Act a new § 1903(f), 42 U.S.C. § 1396b(f) (1964 ed., Supp. IV). This section limits federal financial participation in medical assistance benefits to those whose incomes do not exceed 133 1/3% of the highest amount of AFDC assistance paid to a family of the same size without any income or resources. This section, however, also provides: 'If the Secretary (of HEW) finds that the operation of a uniform maximum limits payments to families of more than one size, he may adjust the amount otherwise determined * * * to take account of families of different sizes.' The purpose of this provision was to allow qualification as medically indigent of those individuals who would have qualified but for the operation of an AFDC grant maximum, and thus prevent the extension of the operation of grant maximums into the Medical Assistance Title. Congressional rejection of grant maximums in the Medical Assistance Title does not infer their approval in the context of the AFDC provisions. Quite the contrary would seem to be the case.
106
In all of the legislative provisions relied upon by the appellants, the congressional reference to maximum grants has been made in the context of attempting to alleviate the harsh results of their application, not in a context of approving and supporting their operation. The three statutory references cited by appellants and discussed above are clearly inadequate to overcome the long history of concern manifested in the AFDC provisions of the Social Security Act for meeting the needs of each eligible recipient, and the command of § 402(a)(10) of the Act to that effect.
107
Appellants tender one further argument as to the compliance of the Maryland maximum grant regulation with the Social Security Act. That argument is that the Department of Health, Education, and Welfare has not disapproved of any of the Maryland plans that have included maximum grant provisions, and that this lack of disapproval by HEW is a binding administrative determination as to the conformity of the regulation with the Social Security Act. That argument was thoroughly explored by the District Court below in its supplemental opinion. The District Court accepted the claim that HEW considers the Maryland maximum grant regulation not to be violative of the Act, but held:
108
'In view of the fact, however, that there is no indication from administrative decision, promulgated regulation, or departmental statement that the question of the conformity of maximum grants to the Act has been given considered treatment, we believe that the various action and inactions on the part of HEW are not entitled to substantial, much less to decisive, weight in our consideration of the instant case.' 297 F.Supp., at 460.
109
HEW seldom has formally challenged the compliance of a state welfare plan with the terms of the Social Security Act. See Note, Federal Judicial Review of State Welfare Practices, 67 Col.L.Rev. 84, 91 (1967). The mere absence of such a formal challenge, whatever may be said for its constituting an affirmative determination of the compliance of a state plan with the Social Security Act, is not such a determination as is entitled to decisive weight in the judicial determination of this question.
110
On the basis of the inconsistency of the Maryland maximum grant regulation with the Social Security Act, I would affirm the judgment below.
111
Mr. Justice MARSHALL, whom Mr. Justice BRENNAN joins, dissenting.
112
For the reasons stated by Mr. Justice DOUGLAS, to which I add some comments of my own, I believe that the Court has erroneously concluded that Maryland's maximum grant regulation is consistent with the federal statute. In my view, that regulation is fundamentally in conflict with the basic structure and purposes of the Social Security Act.
113
More important in the long run than this misreading of a federal statute, however, is the Court's emasculation of the Equal Protection Clause as a constitutional principle applicable to the area of social welfare administration. The Court holds today that regardless of the arbitrariness of a classification it must be sustained if any state goal can be imagined that is arguably furthered by its effects. This is so even though the classification's underinclusiveness or overinclusiveness clearly demonstrates that its actual basis is something other than that asserted by the State, and even though the relationship between the classification and the state interests which it purports to serve is so tenuous that it could not seriously be maintained that the classification tends to accomplish the ascribed goals.
114
The Court recognizes, as it must, that this case involves 'the most basic economic needs of impoverished human beings,' and that there is therefore a 'dramatically real factual difference' between the instant case and those decisions upon which the Court relies. The acknowledgment that these dramatic differences exist is a candid recognition that the Court's decision today is wholly without precedent. I cannot subscribe to the Court's sweeping refusal to accord the Equal Protection Clause any role in this entire area of the law, and I therefore dissent from both parts of the Court's decision.
115
* At the outset, it should be emphasized exactly what is involved in determining whether this maximum grant regulation is consistent with and valid under the federal law. In administering its AFDC program, Maryland has established its own standards of need, and they are not under challenge in this litigation. Indeed, the District Court specifically refused to require additional appropriations on the part of the State or to permit appellees to recover a monetary judgment against the State. At the same time, however, there is no contention, nor could there be any, that the maximum grant regulation is in any manner related to calculation of need.1 Rather, it arbitrarily cuts across state-defined standards of need to deny any additional assistance with respect to the fifth or any succeeding child in a family.2 In short, the regulation represents no less than the refusal of the State to give any aid whatsoever for the support of certain dependent children who meet the standards of need that the State itself has established.
116
Since its inception in the Social Security Act of 1935, the focus of the federal AFDC program has been to provide benefits for the support of dependent children of needy families with a view toward maintaining and strengthening family life within the family unit. As succinctly stated by the Senate Committee on Finance, '(t)he objective of the aid to dependent children program is to provide cash assistance for needy children in their own homes.'3 In meeting these objectives, moreover, Congress has provided the outlines that the AFDC plan is to follow if a State should choose to participate in the federal program. The maximum grant regulation, however, does not fall within these outlines or accord with the purposes of the Act. And the Court by approving it allows for a complete departure from the congressional intent.
117
The phrase 'aid to families with dependent children,' from which the AFDC program derives its name, appears in § 402(a)(10) of the Act, 42 U.S.C. § 602(a)(10) (1964 ed., Supp. IV), and is defined in 42 U.S.C. § 606(b) (1964 ed., Supp. IV) as, inter alia, 'money payments with respect to * * * dependent children.' (Emphasis added.) Moreover, the term 'dependent child' is also extensively defined in the Act. See 42 U.S.C. § 606(a) (1964 ed., Supp. IV). Nowhere in the Act is there any sanction or authority for the State to alter those definitions—that is, to select arbitrarily from among the class of needy dependent children those whom it will aid. Yet the clear effect of the maximum grant regulation is to do just that, for the regulation creates in effect a class of otherwise eligible dependent children with respect to whom no assistance is granted.
118
It was to disapprove just such an arbitrary device to limit AFDC payments that Congress amended § 402(a)(10) in 1950 to provide that aid 'shall be furnished with reasonable promptness to all eligible individuals.' (Emphasis added.) Surely, as my Brother DOUGLAS demonstrates, this statutory language means at least that the State must take into account the needs of, and provide aid with respect to, all needy dependent children. Indeed, that was our assessment of the congressional design embodied in the AFDC program in King v. Smith, 392 U.S. 309, 329—330, 333, 88 S.Ct. 2128, 2139—2140, 2141, 20 L.Ed.2d 1118 (1968).
119
The opinion of the Court attempts to avoid this reading of the statutory mandate by the conclusion that parents will see that all the children in a large family share in whatever resources are available so that all children 'do receive some aid.' And '(s)o long as some aid is provided to all eligible families and all eligible children, the statute itself is not violated.' The Court also views sympathetically the State's contention that the 'all eligible individuals' clause was designed solely to prevent discrimination against new applicants for AFDC benefits. I am unpersuaded, however, by the view that Congress simultaneously prohibited discrimination against one class of dependent children those in families not presently receiving benefits—and at the same time sanctioned discrimination against another class—those children in large families. Furthermore, the Court's interpretation would permit a State to impose a drastically reduced maximum grant limitation—or, indeed, a uniform payment of, say, $25 per family per month—as long as all families were subject to the rule. Thus, merely by purporting to compute standards of need and granting some benefits to all eligible families, the State would comply with the federal law—in spite of the fact that the needs of no or very few dependent children would thereby be taken into account in the actual assistance granted. I cannot agree that Congress intended that a State should be entitled to participate in the federally funded AFDC program under such circumstances.
120
Moreover, the practical consequences of the maximum grant regulation in question here confirming view that it is invalid. Under the complicated formula for determining the extent of federal support for the AFDC program in the various States, the federal subsidy is based upon 'the total number of recipients of aid to families with dependent children.' 42 U.S.C. § 603(a) (1964 ed., Supp. IV). 'Recipients' is defined in the same provision to include both dependent children and the eligible relative or relatives with whom they live. There is, however, no limitation upon the number of recipients per family unit for whom the federal subsidy is paid to the States. Thus, when a maximum family grant regulation is in effect, the State continues to receive a federal subsidy for each and every dependent child even though the State passes none of this subsidy on to the large families for the use of the additional dependent children.
121
Specifically, in Maryland, the record in this case indicates that the State spends an average of almost $40 per recipient per month. Under the federal matching formula, federal funds provide $22 of the first $32 per recipient, with anything above $32 being supplied by the State.4 However, the Federal Government provides a maximum of $22 for every dependent child, although none of that amount is received by the needy family in the case of the fifth or sixth and succeeding children. The effect is to shift a greater proportion of the support of large families from the State to the Federal Government as the family size increases. Indeed, if the size of the family should exceed 11, the State would succeed in transferring the entire support burden for the family to the Federal Government, and even make a 'profit' in the sense that it would receive more from the Federal Government with respect to the family than the $250 maximum that is actually paid to that family. It is impossible to conclude that Congress intended so incongruous a result. On the contrary, when Congress undertook to subsidize payments on behalf of each recipient—including each dependent child—it seems clear that Congress intended each needy dependent child to receive the use and benefit of at least the incremental amount of the federal subsidy paid on his account.
122
A second effect of the maximum family grant regulation further demonstrates its inconsistency with the federal program. As administered in Maryland, the regulation serves to provide a strong economic incentive to the disintegration of large families. This is so because a family subject to the maximum regulation can, merely by placing the ineligible children in the homes of other relatives, receive additional monthly payments for the support of these additional dependent children.5 When families are receiving support that is concededly far below their bare minimum subsistence needs, the economic incentive that the maximum grant regulation provides to divide up large families can hardly be viewed as speculative or negligible. The opinion of this Court does not even dispute this effect.6 The Court answers by saying that the family relationship 'may be attenuated but it cannot be destroyed.' Yet it was just this kind of attenuation that, as the legislative history conclusively demonstrates,7 Congress was concerned with eliminating in establishing the AFDC program. The Court's rationale takes a long step backwards toward the time when persons were dependent upon the charity of their relatives—the very situation meant to be remedied by AFDC.
123
Despite its denial of the principle that payments should be made with regard to all eligible individuals and its conflict with the basic purposes of the Act, the Maryland regulation is nevertheless found by the Court to be consistent with the federal law because the existence of such regulations has been recognized by Congress. To bolster this view, the Court argues that the same conclusion has been reached by the department charged with administering the Act. On neither score is the Court convincing.
124
With regard to the position of the Secretary of HEW, about all that can be said with confidence is that we do not know his views on the validity of family maximum regulations within the federal structure.8 The reason is simple—he has not been asked. Thus, contrary to our admonition given today to the district courts in considering cases in this area, that whenever possible they 'should obtain the views of HEW in those cases where it has not set forth its views,' Rosado v. Wyman, 396 U.S. at 407, 90 S.Ct. at 1215, the Government was not invited to file a brief in this case. Perhaps the reason is that this Court is fully versed in the complexities of the Federal AFDC program. I am dubious, however, when the Court explicitly relies on the failure of the Secretary to disapprove the Maryland welfare scheme. For if anything at all is completely clear in this area of the law it is that the failure of HEW to cut off funds from a state program has no meaning at all. See Rosado v. Wyman, supra, 396 U.S. at 426, 90 S.Ct. at 1225 (Douglas, J., concurring).
125
Finally, the Court tells us that Congress has said that the Act permits maximum grant regulations. If it had, this part of the case would be obvious; but, of course, it has not. There is no indication Congress has focused on the family maximum as opposed to individual or other maximums or combinations of such limiting devices.9 And, to the extent that it could be said to have done so, as my Brother Douglas fully demonstrates, it was in the context of disapproving all maximums and ameliorating the harshness of their effects. See also Rosado v. Wyman, supra, 396 U.S. at 413—414, 90 S.Ct. at 1218. These slender threads of legislative comment simply cannot be woven into a conclusion of legislative sanction. Cf. Shapiro v. Thompson, 394 U.S. 618, 638 640, 89 S.Ct. 1322, 1333—1334, 22 L.Ed.2d 600 (1969). Furthermore, it is fundamental that in construing legislation, 'we must not be guided by a single sentence or member of a sentence, but (should) look to the provisions of the whole law, and to its object and policy.' Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 592, 7 L.Ed.2d 492 (1962). We concluded in King v. Smith, supra, after an extensive review of the AFDC program, that Congress 'intended to provide programs for the economic security and protection of all children' and did not intend 'arbitrarily to leave one class of destitute children entirely without meaningful protection.' 392 U.S., at 330, 88 S.Ct. at 2140. (Emphasis in original.) That reasoning is likewise applicable to the instant case, in which the maximum grant regulation excludes consideration of the needs of a certain class of dependent children in large families. It is apparent, therefore, that Maryland's maximum grant regulation is not consistent with the Social Security Act, and hence appellees were entitled to the injunction they obtained against its operation.
II
126
Having decided that the injunction issued by the District Court was proper as a matter of statutory construction, I would affirm on that ground alone. However, the majority has of necessity passed on the constitutional issues. I believe that in overruling the decision of this and every other district court that has passed on the validity of the maximum grant device,10 the Court both reaches the wrong result and lays down an insupportable test for determining whether a State has denied its citizens the equal protection of the laws.
127
The Maryland AFDC program in its basic structure operates uniformly with regard to all needy children by taking into account the basic subsistence needs of all eligible individuals in the formulation of the standards of need for families of various sizes. However, superimposed upon this uniform system is the maximum grant regulation, the operative effect of which is to create two classes of needy children and two classes of eligible families: those small families and their members who receive payments to cover their subsistence needs and those large families who do not.11
128
This classification process effected by the maximum grant regulation produces a basic denial of equal treatment. Persons who are concededly similarly situated (dependent children and their families), are not afforded equal, or even approximately equal, treatment under the maximum grant regulation. Subsistence benefits are paid with respect to some needy dependent children; nothing is paid with respect to others. Some needy families receive full subsistence assistance as calculated by the State; the assistance paid to other families is grossly below their similarly calculated needs.
129
Yet, as a general principle, individuals should not be afforded different treatment by the State unless there is a relevant distinction between them and 'a statutory discrimination must be based on differences that are reasonably related to the purposes of the Act in which it is found.' Morey v. Doud, 354 U.S. 457, 465, 77 S.Ct. 1344, 1350, 1 L.Ed.2d 1485 (1957). See Gulf, Colorado & Santa Fe R. Co. v. Ellis, 165 U.S. 150, 155, 17 S.Ct. 255, 256, 41 L.Ed. 666 (1897). Consequently, the State may not, in the provision of important services or the distribution of governmental payments, supply benefits to some individuals while denying them to others who are similarly situated. See, e.g., Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964).
130
In the instant case, the only distinction between those children with respect to whom assistance is granted and those children who are denied such assistance is the size of the family into which the child permits himself to be born. The class of individuals with respect to whom payments are actually made (the first four or five eligible dependent children in a family), is grossly underinclusive in terms of the class that the AFDC program was designed to assist, namely, all needy dependent children. Such underinclusiveness manifests 'a prima facie volation of the equal protection requirement of reasonable classification,'12 compelling the State to come forward with a persuasive justification for the classification.
131
The Court never undertakes to inquire for such a justification; rather it avoids the task by focusing upon the abstract dichotomy between two different approaches to equal protection problems that have been utilized by this Court.
132
Under the so-called 'traditional test,' a classification is said to be permissible under the Equal Protection Clause unless it 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).13 On the other hand, if the classification affects a 'fundamental right,' then the state interest in perpetuating the classification must be 'compelling' in order to be sustained. See, e.g., Shapiro v. Thompson, supra; Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).
133
This case simply defies easy characterization in terms of one or the other of these 'tests.' The cases relied on by the Court, in which a 'mere rationality' test was actually used, e.g., Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), are most accurately described as involving the application of equal protection reasoning to the regulation of business interests. The extremes to which the Court has gone in dreaming up rational bases for state regulation in that area may in many instances be ascribed to a healthy revulsion from the Court's earlier excesses in using the Constitution to protect interests that have more than enough power to protect themselves in the legislative halls. This case, involving the literally vital interests of a powerless minority—poor families without breadwinners—is far removed from the area of business regulation, as the Court concedes. Why then is the standard used in those cases imposed here? We are told no more than that this case falls in 'the area of economics and social welfare,' with the implication that from there the answer is obvious.
134
In my view, equal protection analysis of this case is not appreciably advanced by the a priori definition of a 'right,' fundamental or otherwise.14 Rather, concentration must be placed upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification. As we said only recently, '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.' Kramer v. Union Free School District No. 15, 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969), quoting Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968).15
135
It is the individual interests here at stake that, as the Court concedes, most clearly distinguish this case from the 'business regulation' equal protection cases. AFDC support to needy dependent children provides the stuff that sustains those children's lives: food, clothing, shelter.16 And this Court has already recognized several times that when a benefit, even a 'gratuitous' benefit, is necessary to sustain life, stricter constitutional standards, both procedural17 and substantive,18 are applied to the deprivation of that benefit.
136
Nor is the distinction upon which the deprivation is here based—the distinction between large and small families—one that readily commends itself as a basis for determining which children are to have support approximating subsistence and which are not. Indeed, governmental discrimination between children on the basis of a factor over which they have no control—the number of their brothers and sisters—bears some resemblance to the classification between legitimate and illegitimate children which we condemned as a violation of the Equal Protection Clause in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968).
137
The asserted state interests in the maintenance of the maximum grant regulation, on the other hand, are hardly clear. In the early stages of this litigation, the State attempted to rationalize the maximum grant regulation on the theory that it was merely a device to conserve state funds, in the language of the motion to dismiss, 'a legitimate way of allocating the State's limited resources available for AFDC assistance.' Indeed, the initial opinion of the District Court concluded that the sole reason for the regulation, as revealed by the record, was 'to fit the total needs of the State's dependent children, as measured by the State's standards of their subsistence requirements, into an inadequate State appropriation.' 297 F.Supp., at 458. The District Court quire properly rejected this asserted justification, for '(t)he saving of welfare costs cannot justify an otherwise invidious classification.' Shapiro v. Thompson, supra, 394 U.S. at 633, 89 S.Ct. at 1330. See Goldberg v. Kelly, 397 U.S. at 266, 90 S.Ct. at 1019.
138
In post-trial proceedings in the District Court, and in briefs to this court, the State apparently abandoned reliance on the fiscal justification. In its place, there have now appeared several different rationales for the maximum grant regulation, prominent among them being those relied upon by the majority—the notions that imposition of the maximum serves as an incentive to welfare recipients to find and maintain employment and provides a semblance of equality with persons earning a minimum wage.
139
With regard to the latter, Maryland has urged that the maximum grant regulation serves to maintain a rough equality between wage earning families and AFDC families, thereby increasing the political support for—or perhaps reducing the opposition to—the AFDC program. It is questionable whether the Court really relies on this ground, especially when in many States the prescribed family maximum bears no such relation to the minimum wage.19 But the Court does not indicate that a different result might obtain in other cases. Indeed, whether elimination of the maximum would produce welfare incomes out of line with other incomes in Maryland is itself open to question on this record.20 It is true that government in the United States, unlike certain other countries, has not chosen to make public aid available to assist families generally in raising their children. Rather, in this case Maryland, with the encouragement and assistance of the Federal Government, has elected to provide assistance at a subsistence level for those in particular need—the aged, the blind, the infirm, and the unemployed and unemployable, and their children. The only question presented here is whether, having once undertaken such a program, the State may arbitrarily select from among the concededly eligible those to whom it will provide benefits. And it is too late to argue that political expediency will sustain discrimination not otherwise supportable. Cf. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958).
140
Vital to the employment-incentive basis found by the Court to sustain the regulation is, of course, the supposition that an appreciable number of AFDC recipients are in fact employable. For it is perfectly obvious that limitations upon assistance cannot reasonably operate as a work incentive with regard to those who cannot work or who cannot be expected to work. In this connection, Maryland candidly notes that 'only a very small percentage of the total universe of welfare recipients are employable.' The State, however, urges us to ignore the 'total universe' and to concentrate attention instead upon the heads of AFDC families. Yet the very purpose of the AFDC program since its inception has been to provide assistance for dependent children. The State's position is thus that the State may deprive certain needy children of assistance to which they would otherwise be entitled in order to provide an arguable work incentive for their parents. But the State may not wield its economic whip in this fashion when the effect is to cause a deprivation to needy dependent children in order to correct an arguable fault of their parents. Cf. Levy v. Louisiana, supra; King v. Smith, supra, 392 U.S. at 334—336, 88 S.Ct. at 2141—2143 (Douglas, J., concurring); Doe v. Shapiro, 302 F.Supp. 761 (D.C.Conn.1969), appeal dismissed, 396 U.S. 488, 90 S.Ct. 641, 24 L.Ed.2d 677 (1970).
141
Even if the invitation of the State to focus upon the heads of AFDC families is accepted, the minimum rationality of the maximum grant regulation is hard to discern. The District Court found that of Maryland's more than 32,000 AFDC families, only about 116 could be classified as having employable members, and, of these, the number to which the maximum grant regulation was applicable is not disclosed by the record. The State objects that this figure includes only families in which the father is unemployed and fails to take account of families in which an employable mother is the head of the household. At the same time, however, the State itself has recognized that the vast proportion of these mothers are in fact unemployable because they are mentally or physically incapacitated, because they have no marketable skills, or, most prominently, because the best interests of the children dictate that the mother remain in the home.21 Thus, it is clear, although the record does not disclose precise figures, that the total number of 'employable' mothers is but a fraction of the total number of AFDC mothers. Furthermore, the record is silent as to what proportion of large families subject to the maximum have 'employable' mothers. Indeed, one must assume that the presence of the mother in the home can be less easily dispensed with in the case of large families, particularly where small children are involved and alternative provisions for their care are accordingly more difficult to arrange. In short, not only has the State failed to establish that there is a substantial or even a significant proportion of AFDC heads of households as to whom the maximum grant regulation arguably serves as a viable and logical work incentive, but it is also indisputable that the regulation at best is drastically overinclusive since it applies with equal vigor to a very substantial number of persons who like appellees are completely disabled from working.
142
Finally, it should be noted that, to the extent there is a legitimate state interest in encouraging heads of AFDC households to find employment, application of the maximum grant regulation is also grossly underinclusive because it singles out and affects only large families. No reason is suggested why this particular group should be carved out for the purpose of having unusually harsh 'work incentives' imposed upon them. Not only has the State selected for special treatment a small group from among similarly situated families, but it has done so on a basis—family size—that bears no relation to the evil that the State claims the regulation was designed to correct. There is simply no indication whatever that heads of large families, as opposed to heads of small families, are particularly prone to refuse to seek or to maintain employment.
143
The State has presented other arguments to support the regulation. However, they are not dealt with specifically by the Court, and the reason is not difficult to discern. The Court has picked the strongest available; the others suffer from similar and greater defects.22 Moreover, it is relevant to note that both Congress and the State have adopted other measures that deal specifically with exactly those interests the State contends are advanced by the maximum grant regulation. Thus, for example, employable AFDC recipients are required to seek employment through the congressionally established Work Incentive Program which provides an elaborate system of counseling, training, and incentive payments for heads of AFDC families. See generally 42 U.S.C. §§ 630—644 (1964 ed., Supp. IV).23 The existence of these alternatives does not, of course, conclusively establish the invalidity of the maximum grant regulation. It is certainly relevant, however, in appraising the overall interest of the State in the maintenance of the regulation.
144
In the final analysis, Maryland has set up an AFDC program structured to calculate and pay the minimum standard of need to dependent children. Having set up that program, however, the State denies some of those needy children the minimum subsistence standard of living, and it does so on the wholly arbitrary basis that they happen to be members of large families. One need not speculate too far on the actual reason for the regulation, for in the early stages of this litigation the State virtually conceded that it set out to limit the total cost of the program along the path of least resistance. Now, however, we are told that other rationales can be manufactured to support the regulation and to sustain it against a fundamental constitutional challenge.
145
However, these asserted state interests, which are not insignificant in themselves, are advanced either not at all or by complete accident by the maximum grant regulation. Clearly they could be served by measures far less destructive of the individual interests at stake. Moreover, the device assertedly chosen to further them is at one and the same time both grossly underinclusive—because it does not apply at all to a much larger class in an equal position—and grossly overinclusive—because it applies so strongly against a substantial class as to which it can rationally serve no end. Were this a case of pure business regulation, these defects would place it beyond what has heretofore seemed a borderline case, see, e.g., Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949), and I do not believe that the regulation can be sustained even under the Court's 'reasonableness' test.
146
In any event, it cannot suffice merely to invoke the spectre of the past and to recite from Lindsley v. Natural Carbonic Gas Co. and Williamson v. Lee Optical of Oklahoma, Inc. to decide the case. Appellees are not a gas company or an optical dispenser; they are needy dependent children and families who are discriminated against by the State. The basis of that discrimination—the classification of individuals into large and small families—is too arbitrary and too unconnected to the asserted rationale, the impact on those discriminated against—the denial of even a subsistence existence—too great, and the supposed interests served too contrived and attenuated to meet the requirements of the Constitution. In my view Maryland's maximum grant regulation is invalid under the Equal Protection Clause of the Fourteenth Amendment.
147
I would affirm the judgment of the District Court.
1
49 Stat. 620, as amended, 42 U.S.C. §§ 301—1394 (1964 ed. and Supp. IV).
2
Maryland Ann.Code, Art. 88A, § 44A et seq. (1969 Repl.Vol.).
3
The schedule for determining subsistence needs is set forth in an Appendix to this opinion.
4
The regulation now provides:
'B. Amount—The amount of the grant is the resulting amount of need when resources are deducted from requirements as set forth in this Rule, subject to a maximum on each grant from each category:
'1. $250—for local departments under any 'Plan A' of Shelter Schedule
'2. $240—for local departments under any 'Plan B' of Shelter Schedule
'Except that:
'a. If the requirements of a child over 18 are included to enable him to complete high school or training for employment (III-C-3), the grant may exceed the maximum by the amount of such child's needs.
'b. If the resource of support is paid as a refund (VI-B-6), the grant may exceed the maximum by an amount of such refund. This makes consistent the principle that the amount from public assistance funds does not exceed the maximum.
'c. The maximum may be exceeded by the amount of an emergency grant for items not included in a regular monthly grant. (VIII)
'd. The maximum may be exceeded up to the amount of a grant to a person in one of the nursing homes specified in Schedule D, Section a.
'3. A grant is subject to any limitation established because of insufficient funds.' Md. Manual of Dept. of Social Services, Rule 200, § X, B, p. 23, formerly Md. Manual of Dept. of Pub. Welfare, pt. II, Rule 200, § VII, 1, p. 20.
In addition, AFDC recipients in Maryland may be eligible for certain assistance in kind, including food stamps, public housing, and medical aid. See, e.g., 42 U.S.C. § 1396 et seq. (1964 ed., Supp. IV); 7 U.S.C. §§ 1695—1697. The applicable provisions of state and federal law also permit recipients to keep part of their earnings from outside jobs. 42 U.S.C. §§ 630—644 (1964 ed., Supp. IV); Md. Manual of Dept. of Social Services, Rule 200, § VI, B(8)(c) (2). Both federal and state law require that recipients seek work and take it if it is available. 42 U.S.C § 602(a)(19)(F) (1964 ed., Supp. IV); Md. Manual of Dept. of Social Services, Rule 200, § III(D)(1)(d).
5
Both opinions appear at 297 F.Supp. 450.
6
The prevailing party may, of course, assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court. Compare Langnes v. Green, 282 U.S. 531, 538, 51 S.Ct. 243, 246, 75 L.Ed. 520, with Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 567—568, 51 S.Ct. 248, 252, 75 L.Ed. 544. As the Court said in United States v. American Ry. Express Co., 265 U.S. 425, 435—436, 44 S.Ct. 560, 564, 68 L.Ed. 1087; '(I)t is likewise settled that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it. By the claims now in question, the American does not attack, in any respect, the decree entered below. It merely asserts additional grounds why the decree should be affirmed.' When attention has been focused on other issues, or when the court from which a case comes has expressed no views on a controlling question, it may be appropriate to remand the case rather than deal with the merits of that question in this Court. See Aetna Cas. & Sur. Co. v. Flowers, 330 U.S. 464, 468, 67 S.Ct. 798, 800, 91 L.Ed. 1024; United States v. Ballard, 322 U.S. 78, 88, 64 S.Ct. 882, 887, 88 L.Ed. 1148. That is not the situation here, however. The issue having been fully argued both here and in the District Court, consideration of the statutory claim is appropriate. Bondholders Committee, Marlborough Inv. Co., etc. v. Commissioner of Internal Revenue, 315 U.S. 189, 192 n. 2, 62 S.Ct. 537, 539, 86 L.Ed. 784; H. Hart & H. Wechsler, The Federal Courts and the Federal System 1394 (1953). See also Jaffke v. Dunham, 352 U.S. 280, 77 S.Ct. 307, 1 L.Ed.2d 314.
7
64 Stat. 550, as amended, 76 Stat. 185, 81 Stat. 881, 42 U.S.C. § 602(a) (10) (1964 ed., Supp. V).
8
42 U.S.C. § 606(a) (1964 ed., Supp. IV) provides:
'The term 'dependent child' means a needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or niece, in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary) a student regularly attending a school, college, or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment.'
The Act also covers children who have been placed in foster homes pursuant to judicial order or because they are state charges. 42 U.S.C. § 608 (1964 ed., Supp, IV).
9
42 U.S.C. § 606(a) (1964 ed., Supp. IV), supra, n. 8, formerly § 406, 49 Stat. 629, as amended, § 321, 70 Stat. 850. See also S.Rep. No. 628, 74th Cong., 1st Sess., 16—17 (1935).
10
The Maryland Dept. of Social Services, Monthly Financial and Statistical Report, Table (7 Nov. 1969), indicates that 32,504 families receive AFDC assistance. In the Maryland Dept. of Social Services, 1970 Fiscal Year Budget, the department estimated that 2,537 families would be affected by the removal of the maximum grant limitation. It thus appears that only one-thirteenth of the AFDC families in Maryland receive less than their determined need because of the operation of the maximum grant regulation. Of course, if the same funds were allocated subject to a percentage limitation, no AFDC family would receive funds sufficient to meet its determined need.
11
42 U.S.C. § 606(a) (1964 ed., Supp. IV), n. 8, supra.
12
The State argues that in the total context of the federal statute, reference to 'eligible individuals' means eligible applicants for AFDC grants, rather than all the family members whom the applicants may represent, and that the statutory provision was designed only to prevent the use of waiting lists. There is considerable support in the legislative history for this view. See H.R.Rep. No. 1300, 81st Cong., 1st Sess., 48, 148 (1949); 95 Cong.Rec. 13934 (1949) (remarks of Rep. Forand). And it is certainly true that the statute contemplates that actual payments will be made to responsible adults. See, e.g., 42 U.S.C. § 605. For the reasons given above, however, we do not find it necessary to consider this argument.
13
See HEW Report on Money Payments to Recipients of Special Types of Public Assistance, Oct. 1967, Table 4 (NCSS Report D—4). See also Hearings on H.R. 5710 before the House Committee on Ways and Means, 90th Cong., 1st Sess., pt. 1, p. 118 (1967).
14
HEW, State Maximums and Other Methods of Limiting Money Payments to Recipients of Special Types of Public Assistance, Oct. 1962, p. 3:
'When States are unable to meet need as determined under their standards they reduce payments on a percentage or flat reduction basis * * *. These types of limitations may be used in the absence of, or in conjunction with, legal or administrative maximums. A maximum limits the amount of assistance that may be paid to persons whose determined need exceeds that maximum, whereas percentage or flat reductions usually have the effect of lowering payments to most or all recipients to a level below that of determined need.'
See also HEW, Interim Policy Statement of May 31, 1968, 33 Fed.Reg. 10230 (1968); 45 CFR § 233.20(a)(2)(ii), 34 Fed.Reg. 1394 (1969).
15
The provisions of 42 U.S.C. § 1396b(f), (1964 ed., Supp. IV), also added by the Amendment of 1967, 81 Stat. 898, are consistent with this view. That section provides that no medical assistance shall be given to any family that has a certain level of income. The section, however, makes an exception, 42 U.S.C. § 1396b(f)(1)(B)(ii) (1964 ed., Supp. IV):
1965-66...................... $1.4
1966-67...................... $1.6
1967-68...................... $1.7
1968-69...................... $1.9
1969-70...................... $2.1
'If the Secretary finds that the operation of a uniform maximum limits payments to families of more than one size, he may adjust the amount otherwise determined under clause (i) to take account of families of different sizes.'
These provisions have particular significance in light of the Administration's initial effort to secure a law forcing each State to pay its full standard of need. See Rosado v. Wyman, supra.
This recognition of the existence of state maximums is not new with the Amendments of 1967. In reporting on amendments to the Social Security Act in 1962, 76 Stat. 185, the Senate committee referred to 'States in which there is a maximum limiting the amount of assistance an individual may receive.' S.Rep. No. 1589, 87th Cong., 2d Sess., 14 (1962) U.S.Code Cong. and Admin.News, p. 1956.
16
Cf. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, where, by contrast, the Court found state interference with the constitutionally protected freedom of interstate travel.
17
It is important to note that there is no contention that the Maryland regulation is infected with a racially discriminatory purpose or effect such as to make it inherently suspect. Cf. McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222.
18
See Developments in the Laws—Equal Protection, 82 Harv.L.Rev. 1065, 1082—1087.
19
The present federal minimum wage is $52—$64 per 40-hour week, 29 U.S.C. § 206 (1964 ed., Supp. IV). The Maryland minimum wage is $46—$52 per week, Md.Ann.Code, Art. 100, § 83 (Supp. 1969).
20
It appears that no family members of any of the named plaintiffs in the present case are employable.
1
In certain counties the applicable maximum grant is $240 per month. All of the appellees in this case are residents of Baltimore City, where the $250-per-month maximum grant applies.
2
The benefits distributed under the AFDC program include 'financial assistance and rehabilitation and other services.' Social Security Act § 401. The term 'aid to families with dependent children' is itself defined in § 406(b) of the Act, as 'money payments with respect to, or * * * medical care in behalf of or any type of remedial care recognized under State law' in behalf of dependent children, the relatives with whom they live, and other 'essential persons' residing with the relative and child.
The services provided by the Act for AFDC recipients include 'family services' and 'child-welfare services.' 'Family services' are defined by § 406(d) of the Act, as 'services to a family or any member thereof for the purpose of preserving, rehabilitating, reuniting, or strengthening the family, and such other services as will assist members of a family to attain or retain capability for the maximum self-support and personal independence.' 'Child-welfare programs' are defined by § 425 of the Act, 42 U.S.C. § 625 (1964 ed., Supp. IV), as 'public social services which supplement, or substitute for, parental care and supervision for the purpose of (1) preventing or remedying, or assisting in the solution of problems which may result in, the neglect, abuse, exploitation, or delinquency of children, (2) protecting and caring for homeless, dependent, or neglected children, (3) protecting and promoting the welfare of children of working mothers, and (4) otherwise protecting and promoting the welfare of children, including the strengthening of their own homes where possible or, where needed, the provision of adequate care of children away from their homes in foster family homes or day-care or other child-care facilities.' In addition, § 402(a)(15) of the Act requires the State AFDC plan to provide for the development of a program for each appropriate relative and dependent child receiving aid under the plan, and other 'essential persons' living with a relative and child receiving such aid, 'with the objective of—(i) assuring, to the maximum extent possible, that such relative, child, and individual will enter the labor force and accept employment so that they will become self-sufficient, and (ii) preventing or reducing the incidence of births out of wedlock and otherwise strengthening family life * * *.'
Section 432 of the Act, 42 U.S.C. § 632 (1964 ed., Supp. IV), provides for the establishment of work-incentive programs for AFDC recipients which include the placement of recipients over the age of 16 in employment, 'institutional and work experience training for those individuals for whom such training is likely to lead to regular employment,' and 'special work projects for individuals for whom a job in the regular economy cannot be found.' See also, Social Security Act § 402(a)(19).
The State must also provide foster care in accordance with § 408 of the Act. See Social Security Act § 402(a)(20). And whenever the State feels that AFDC payments may not be used in the best interests of the child, it may provide for counseling or guidance with respect to the use of such payments and the management of other funds. Social Security Act § 405, 42 U.S.C. § 605.
1
The Court is thus wrong in speaking of 'the greater ability of large families—because of the inherent economies of scale—to accommodate their needs to diminished per capita payments.' Those economies have already been taken into account once in calculating the standard of need. Indeed, it borders on the ludicrous to suggest that a large family is more capable of living on perhaps 50% of its standard of need than a small family is on 95%.
2
Because of minor variations in the calculation of the subsistence needs of particular families, and because the maximum grant varies between $240 and $250 per month, depending upon the county in which a particular family resides, the cutoff point between families that receive the full subsistence allowance and those that do not is not precisely families of more than six members. In practice, it appears that the subsistence needs of a family of six members are fully met. The needs of the seventh member (i.e., the fifth or sixth child, depending upon whether one or both parents are within the assistance unit), as defined by the State are met, if at all, only to a very small extent. In the usual situation, no payments whatever would be made with respect to any additional eligible dependent children.
3
S.Rep. No. 165, 87th Cong., 1st Sess., 6 (1961). (Emphasis added.)
4
More technically, the Federal Government supplies five-sixths of the overall amount spent per recipient up to $18, plus one-half of the amount from $18 to $32, to a total of $22. See 42 U.S.C. § 603 (1964 ed., Supp. IV).
5
For example, in the case of the appellee Mrs. Williams, if she were to place two of her children over 12 years of age with relatives, payments of $79 per month would be paid with respect to each child. Thus, a total of $408 per month, or $158 above the maximum, would be available for the support of Mrs. Williams and her eight children. Similarly, if appellees Mr. and Mrs. Gary were to place with relatives two of their children who are between the ages of 6 and 12 years, each child would be eligible to receive $65. Hence Mr. and Mrs. Gary and their eight children would receive support in the amount of $380 per month, or some $130 above the family maximum.
6
The State has contended that the economic incentive to the disintegration of large families that the maximum grant regulation provides is merely speculative. However, serious doubt is cast upon this view by the stipulation of facts entered in the District Court which states in part that, despite the strong desire to keep their families together, appellees in this case were having great difficulty in doing so because of the limitations on their grants.
7
In S.Rep. No. 628, 74th Cong., 1st Sess., 17 (1935), the original goals of the AFDC program are stated as follows: 'With no income coming in, and with young children for whom provision must be made for a number of years, families without a father's support require public assistance, unless they have been left with adequate means or are aided by friends and relatives. * * * Through cash grants adjusted to the needs of the family it is possible to keep the young children with their mother in their own home, thus, preventing the necessity of placing the children in institutions. This is recognized by everyone to be the least expensive and altogether the most desirable method for meeting the needs of these families that has yet been devised.' (Emphasis added.) See also H.R.Rep. No. 615, 74th Cong., 1st Sess., 10 (1935).
These goals remain the same today. See 42 U.S.C. § 601 (1964 ed., Supp. IV). See generally Note, Welfare's 'Condition X,' 76 Yale L.J. 1222, 1232—1233 (1967).
8
In various briefs submitted both to this Court and to other courts in analogous litigation, the Secretary of HEW and the Solicitor General have taken the occasion to label family maximum grant regulations as 'arbitrary,' oppressive of large families, as resulting in 'patently different treatment of individuals,' and having received, at least inferentially, the disfavor of Congress. See, e.g., Memorandum for the United States as Amicus Curiae, Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442; Brief of Robert H. Finch, Secretary of Health, Education, and Welfare as Amicus Curiae, Lampton v. Bonin, 299 F.Supp. 336, 304 F.Supp. 1384 (D.C.E.D.La.1969); Brief of Robert H. Finch, Jefferson v. Hackney, 304 F.Supp. 1332 (D.C.N.D.Tex.1969). Hence the views of HEW on the precise issue presented in the instant case are, at the very best, ambiguous and quite possibly the opposite of what the Court ascribes to it.
9
The maximum may be expressed in terms of a flat dollar amount, as a percentage of the individual's budgetary deficit (i.e., the difference between need and other income), or in both ways. A system of individual maximums may, or may not, be combined with a family maximum, or, alternatively, a family maximum may be imposed in the absence of individual maximums. See generally HEW, State Maximums and Other Methods of Limiting Money Payments to Recipients of the Special Types of Public Assistance, Oct. 1968 (NCSS Report D—3); Sparer, Social Welfare Law Testing, 12 Prac.Law. (No. 4) 13, 21 (1966). In addition, there are differing methods by which family maximums may be related to other resources available to the family. Some States, including Maryland, subtract available resources from the state-calculated need; in other jurisdictions, available resources are subtracted from the family maximum. See, e.g., Dews v. Henry, 297 F.Supp. 587 (D.C.Ariz.1969), involving litigation with respect to the Arizona family maximum.
10
The lower courts have been unanimous in the view that maximum grant regulations such as Maryland's are invalid. See Dews v. Henry, supra; Westberry v. Fisher, 297 F.Supp. 1109 (D.C.Me.1969); Lindsey v. Smith, 303 F.Supp. 1203 (D.C.W.D.Wash.1969); Kaiser v. Montgomery (D.C.N.D.Cal.1969). See also Collins v. State Board of Social Welfare, 248 Iowa 369, 81 N.W.2d 4 (1957) (family maximum invalid under equal protection clause of state constitution); Metcalf v. Swank, 293 F.Supp. 268 (D.C.N.D.Ill.1968) (dictum).
11
In theory, no payments are made with respect to needy dependent children in excess of four or five as the case may be. In practice, of course, the excess children share in the benefits that are paid with respect to the other members of the family. The result is that support for the entire family is reduced below minimum subsistence levels. However, for purposes of equal protection analysis, it makes no difference whether the class against which the maximum grant regulation discriminates is defined as eligible dependent children in excess of the fourth or fifth, or, alternatively, as individuals in large families generally, that is, those with more than six members.
12
Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341, 348 (1949).
13
See generally Developments in the Law—Equal Protection, 82 Harv.L.Rev. 1065, 1076—1087 (1969).
14
See generally Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968). Appellees do argue that their 'fundamental rights' are infringed by the maximum grant regulation. They cite, for example, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), for the proposition that the 'right of procreation' is fundamental. This statement is no doubt accurate as far as it goes, but the effect of the maximum grant regulation upon the right of procreation is marginal and indirect at best, totally unlike the compulsory sterilization law that was at issue in Skinner.
At the same time the Court's insistence that equal protection analysis turns on the basis of a closed category of 'fundamental rights' involves a curious value judgment. It is certainly difficult to believe that a person whose very survival is at stake would be comforted by the knowledge that his 'fundamental' rights are preserved intact.
On the issue of whether there is a 'right' to welfare assistance, see generally Graham, Public Assistance: The Right To Receive; the Obligation To Repay, 43 N.Y.U.L.Rev. 451 (1968); Harvith, Federal Equal Protection and Welfare Assistance, 31 Albany L.Rev. 210 (1967); Note, Welfare Due Process: The Maximum Grant Limitation on the Right To Survive, 3 Ga.L.Rev. 459 (1969). See also Universal Declaration of Human Rights, Art. 25.
15
This is essentially what this Court has done in applying equal protection concepts in numerous cases, though the various aspects of the approach appear with a greater or lesser degree of clarity in particular cases. See, e.g., McLaughlin v. Florida, supra; Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Skinner v. Oklahoma ex rel. Williamson, supra.
For an application of this approach to several welfare questions, see Comment, Equal Protection as a Measure of Competing Interests in Welfare Litigation, 21 Me.L.Rev. 175 (1969).
16
See also Rothstein v. Wyman, 303 F.Supp. 339, 346—347 (D.C.S.D.N.Y.1969); Harvith, supra, n. 14, 31 Albany L.Rev., at 222—226.
17
See Sniadach v. Family Finance Corp., 395 U.S. 337, 340 342, 89 S.Ct. 1820, 1822—1823, 23 L.Ed.2d 349 (1969) (relying on devastating impact of wage garnishment to require prior hearing as a matter of due process); Goldberg v. Kelly, 397 U.S. 254, at 264, 90 S.Ct. 1011, at 1018, 25 L.Ed.2d 287 (1970); 'Thus the crucial factor in this context—a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are ended—is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.'
18
Compare Shapiro v. Thompson, supra, 394 U.S. at 627, 89 S.Ct. at 1327, striking down one-year residency requirement for welfare eligibility as violation of equal protection, and noting that the benefits in question are 'the very means to subsist—food, shelter, and other necessities of life,' with Kirk v. Board of Regents, etc., 273 Cal.App.2d 430, 439—440, 78 Cal.Rptr. 260, 266 267 (1969), appeal dismissed, 396 U.S. 554, 90 S.Ct. 754, 24 L.Ed.2d 747 (1970), upholding one-year residency requirement for tuition-free graduate education at state university, and distinguishing Shapiro on the ground that it 'involved the immediate and pressing need for preservation of life and health of persons unable to live without public assistance, and their dependent children.'
These cases and those cited in n. 17, supra, suggest that whether or not there is a constitutional 'right' to subsistence (as to which see n. 14, supra), deprivations of benefits necessary for subsistence will receive closer constitutional acrutiny, under both the Due Process and Equal Protection Clauses, than will deprivations of less essential forms of governmental entitlements.
19
See HEW Report on Money Payments to Recipients of Special Types of Public Assistance, Oct. 1967, Table 4 (NCSS Report D—4).
20
The State of Maryland has long spoken with at least two voices on the issue of the maximum grant regulation. The Department of Public Welfare has taken the position, over a number of years, that the regulation should be abolished and has made several proposals to that effect. In so doing, the Department has taken the position that its proposals would not set welfare benefits out of line with household incomes throughout the State. See, e.g., Minutes of State Board of Public Welfare Meeting, September 26, 1958, App. 130—132.
21
Indeed, Rule 200, IX A(2)(b)(5) of the Manual of the Md. Dept. of Social Services prohibits the referral for employment of AFDC mothers who are needed in the home. And the unsuitability of many AFDC mothers has been well chronicled in Md. Dept. of Social Services, Profile of Caseloads, Research Report No. 5, p. 6 (1969). See also Carter, The Employment Potential of AFDC Mothers, 6 Welfare in Review, No. 4, p. 4 (1968).
22
Thus, the State cannot single out a minuscule proportion of the total number of families in the State as in need of birth control incentives. Not only is the classification effected by the regulation totally underinclusive if this is its rationale, but it also arbitrarily punishes children for factors beyond their control, and overinclusively applies to families like appellees' that were already large before it became necessary to seek assistance. For similar reasons, the argument that the regulation serves as a disincentive to desertion does not stand scrutiny.
23
Likewise, the State, with the encouragement of Congress see 42 U.S.C. §§ 602(a)(21), 610 (1964 ed., Supp. IV), has developed extensive statutory provisions to deal specifically with the problem of parental desertion. See generally Md.Ann.Code, Art. 27, §§ 88—96 (1967 Repl.Vol.). And Congress has mandated, with respect to family planning, that the States provide services to AFDC recipients with the objective of 'preventing or reducing the incidence of births out of wedlock and otherwise strengthening family life.' 42 U.S.C. § 602(a)(15) (1964 ed., Supp. IV).
| 12
|
397 U.S. 436
90 S.Ct. 1189
25 L.Ed.2d 469
Bob Fred ASHE, Petitioner,v.Harold R. SWENSON, Warden.
No. 57.
Argued Nov. 13, 1969.
Decided April 6, 1970.
Clark M. Clifford, Washington, D.C., for petitioner.
Gene E. Voigts, Jefferson City, Mo., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, the Court held that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. The question in this case is whether the State of Missouri violated that guarantee when it prosecuted the petitioner a second time for armed robbery in the circumstances here presented.1
2
Sometime in the early hours of the morning of January 10, 1960, six men were engaged in a poker game in the basement of the home of John Gladson at Lee's Summit, Missouri. Suddenly three or four masked men, armed with a shotgun and pistols, broke into the basement and robbed each of the poker players of money and various articles of personal property. The robbers—and it has never been clear whether there were three or four of them—then fled in a car belonging to one of the victims of the robbery. Shortly thereafter the stolen car was discovered in a field, and later that morning three men were arrested by a state trooper while they were walking on a highway not far from where the abandoned car had been found. The petitioner was arrested by another officer some distance away.
3
The four were subsequently charged with seven separate offenses—the armed robbery of each of the six poker players and the theft of the car. In May 1960 the petitioner went to trial on the charge of robbing Donald Knight, one of the participants in the poker game. At the trial the State called Knight and three circumstances of the holdup and itemized witnesses. Each of them described the circumstances f the holdup and itemized his own individual losses. The proof that an armed robbery had occurred and that personal property had been taken from Knight as well as from each of the others was unassailable. The testimony of the four victims in this regard was consistent both internally and with that of the others. But the State's evidence that the petitioner had been one of the robbers was weak. Two of the witnesses thought that there had been only three robbers altogether, and could not identify the petitioner as one of them. Another of the victims, who was the petitioner's uncle by marriage, said that at the 'patrol station' he had positively identified each of the other three men accused of the holdup, but could say only that the petitioner's voice 'sounded very much like' that of one of the robbers. The fourth participant in the poker game did identify the petitioner, but only by his 'size and height, and his actions.'
4
The cross-examination of these witnesses was brief, and it was aimed primarily at exposing the weakness of their identification testimony. Defense counsel made no attempt to question their testimony regarding the holdup itself or their claims as to their losses. Knight testified without contradiction that the robbers had stolen from him his watch, $250 in cash, and about $500 in checks. His billfold, which had been found by the police in the possession of one of the three other men accused of the robbery, was admitted in evidence. The defense offered no testimony and waived final argument.
5
The trial judge instructed the jury that if it found that the petitioner was one of the participants in the armed robbery, the theft of 'any money' from Knight would sustain a conviction.2 He also instructed the jury that if the petitioner was one of the robbers, he was guilty under the law even if he had not personally robbed Knight.3 The jury—though not instructed to elaborate upon its verdict—found the petitioner 'not guilty due to insufficient evidence.'
6
Six weeks later the petitioner was brought to trial again, this time for the robbery of another participant in the poker game, a man named Roberts. The petitioner filed a motion to dismiss, based on his previous acquittal. The motion was overruled, and the second trial began. The witnesses were for the most part the same, though this time their testimony was substantially stronger on the issue of the petitioner's identity. For example, two witnesses who at the first trial had been wholly unable to identify the petitioner as one of the robbers, now testified that his features, size, and mannerisms matched those of one of their assailants. Another witness who before had identified the petitioner only by his size and actions now also remembered him by the unusual sound of his voice. The State further refined its case at the second trial by declining to call one of the participants in the poker game whose identification testimony at the first trial had been conspicuously negative. The case went to the jury on instructions virtually identical to those given at the first trial. This time the jury found the petitioner guilty, and he was sentenced to a 35-year term in the state penitentiary.
7
The Supreme Court of Missouri affirmed the conviction, holding that the 'plea of former jeopardy must be denied.' State v. Ashe, 350 S.W.2d 768, 771. A collateral attack upon the conviction in the state courts five years later was also unsuccessful. State v. Ashe, 403 S.W.2d 589. The petitioner then brought the present habeas corpus proceeding in the United States District Court for the Western District of Missouri, claiming that the second prosecution had violated his right not to be twice put in jeopardy. Considering itself bound by this court's decision in Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913, the District Court denied the writ, although apparently finding merit in the petitioner's claim.4 The Court of Appeals for the Eighth Circuit affirmed, also upon the authority of Hoag v. New Jersey, supra.5 We granted certiorari to consider the important constitutional question this case presents. 393 U.S. 1115, 89 S.Ct. 995, 22 L.Ed.2d 121.
8
As the District Court and the Court of Appeals correctly noted, the operative facts here are virtually identical to those of Hoag v. New Jersey, supra. In that case the defendant was tried for the armed robbery of three men who, along with others, had been held up in a tavern. The proof of the robbery was clear, but the evidence identifying the defendant as one of the robbers was weak, and the defendant interposed an alibi defense. The jury brought in a verdict of not guilty. The defendant was then brought to trial again, on an indictment charging the robbery of a fourth victim of the tavern holdup. This time the jury found him guilty. After appeals in the state courts proved unsuccessful, Hoag brought his case here.
9
Viewing the question presented solely in terms of Fourteenth Amendment due process—whether the course that New Jersey had pursued had 'led to fundamental unfairness,' 356 U.S., at 467, 78 S.Ct. at 832—this Court declined to reverse the judgment of conviction, because 'in the circumstances shown by this record, we cannot say that petitioner's later prosecution and conviction violated due process.'6 356 U.S., at 466, 78 S.Ct., at 832. The Court found it unnecessary to decide whether 'collateral estoppel'—the principle that bars relitigation between the same parties of issues actually determined at a previous trial—is a due process requirement in a state criminal trial, since it accepted New Jersey's determination that the petitioner's previous acquittal did not in any event give rise to such an estoppel. 356 U.S., at 471, 78 S.Ct. 829. And in the view the Court took of the issues presented, it did not, of course, even approach consideration of whether collateral estoppel is an ingredient of the Fifth Amendment guarantee against double jeopardy.
10
The doctrine of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, puts the issues in the present case in a perspective quite different from that in which the issues were perceived in Hoag v. New Jersey, Supra. The question is no longer whether collateral estoppel is a requirement of due process, but whether it is a part of the Fifth Amendment's guarantee against double jeopardy. And if collateral estoppel is embodied in that guarantee, then its applicability in a particular case is no longer a matter to be left for state court determination within the broad bounds of 'fundamental fairness,' but a matter of constitutional fact we must decide through an examination of the entire record. Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728—729, 11 L.Ed.2d 686; Niemotko v. Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 95 L.Ed. 267; Watts v. Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801; Chambers v. Florida, 309 U.S. 227, 229, 60 S.Ct. 472, 473—474, 84 L.Ed. 716; Norris v. Alabama, 294 U.S. 587, 590, 55 S.Ct. 579, 79 L.Ed. 1074.
11
'Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161. As Mr. Justice Holmes put the matter in that case, 'It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.' 242 U.S., at 87, 37 S.Ct. at 69.7 As a rule of federal law, therefore, '(i)t is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of lack of 'mutuality' or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases for the Government's evidence as a whole although not necessarily as to every link in the chain.' United States v. Kramer, 289 F.2d 909, 913.
12
The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to 'examine that record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'8 The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.9
13
Straightforward application of the federal rule to the present case can lead to but one conclusion. For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of Roberts wholly impermissible.
14
The ultimate question to be determined, then, in the light of Benton v. Maryland, supra, is whether this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy. We do not hesitate to hold that it is.10 For whatever else that constitutional guarantee may embrace, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, it surely protects a man who has been acquitted from having to 'run the gantlet' a second time. Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199.
15
The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.
16
After the first jury had acquitted the petitioner of robbing Knight, Missouri could certainly not have brought him to trial again upon that charge. Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery of Knight in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery. For the name of the victim, in the circumstances of this case, had no bearing whatever upon the issue of whether the petitioner was one of the robbers.
17
In this case the State in its brief has frankly conceded that following the petitioner's acquittal, it treated the first trial as no more than a dry run for the second prosecution: 'No doubt the prosecutor felt the state had a provable case on the first charge and, when he lost, he did what every good attorney would do he refined his presentation in light of the turn of events at the first trial.' But this is precisely what the constitutional guarantee forbids.
18
The judgment is reversed, and the case is remanded to the Court of Appeals for the Eighth Circuit for further proceedings consistent with this opinion.
19
It is so ordered.
20
Reversed and remanded.
21
Mr. Justice BLACK, concurring.
22
I join in the opinion of the Court although I must reject any implication in that opinion that the so-called due process test of 'fundamental fairness' might have been appropriate as a constitutional standard at some point in the past or might have a continuing relevancy today in some areas of constitutional law. In my view it is a wholly fallacious idea that a judge's sense of what is fundamentally 'fair' or 'unfair' should ever serve as a substitute for the explicit, written provisions of our Bill of Rights. One of these provisions is the Fifth Amendment's prohibition against putting a man twice in jeopardy. On several occasions I have stated my view that the Double Jeopardy Clause bars a State or the Federal Government or the two together from subjecting a defendant to the hazards of trial and possible conviction more than once for the same alleged offense. Bartkus v. Illinois, 359 U.S. 121, 150, 79 S.Ct. 676, 695, 3 L.Ed.2d 684 (1959) (dissenting opinion); Abbate v. United States, 359 U.S. 187, 201, 79 S.Ct. 666, 674, 3 L.Ed.2d 729, (1959) (dissenting opinion); Cuicci v. Illinois, 356 U.S. 571, 575, 78 S.Ct. 839, 841, 2 L.Ed.2d 983 (1958) (dissenting statement); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The opinion of the Court in the case today amply demonstrates that the doctrine of collateral estoppel is a basic and essential part of the Constitution's prohibition against double jeopardy. Accordingly, for the reasons stated in the Court's opinion I fully agree that petitioner's conviction must be reversed.
23
Mr. Justice HARLAN, concurring.
24
If I were to judge this case under the traditional standards of Fourteenth Amendment due process, I would adhere to the decision in Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), believing that regardless of the reach of the federal rule of collateral estoppel, it would have been open to a state court to treat the issue differently. However, having acceded in North Carolina v. Pearce, 395 U.S. 711, 744, 89 S.Ct. 2072, 2085, 23 L.Ed.2d 656 (1969), to the decision in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), which, over my dissent, held that the Fourteenth Amendment imposes on the States the standards of the Double Jeopardy Clause of the Fifth Amendment. I am satisfied that on this present record Ashe's acquittal in the first trial brought double jeopardy standards into play. Hence, I join the Court's opinion. In doing so I wish to make explicit my understanding that the Court's opinion in no way intimates that the Double Jeopardy Clause embraces to any degree the 'same transaction' concept reflected in the concurring opinion of my Brother BRENNAN.
25
Mr. Justice BRENNAN, whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, concurring.
26
I agree that the Double Jeopardy Clause incorporates collateral estoppel as a constitutional requirement and therefore join the Court's opinion. However, even if the rule of collateral estoppel had been inapplicable to the facts of this case, it is my view that the Double Jeopardy Clause nevertheless bars the prosecution of petitioner a second time for armed robbery. The two prosecutions, the first for the robbery of Knight and the second for the robbery of Roberts, grew out of one criminal episode, and threfore I think it clear on the facts of this case that the Double Jeopardy Clause prohibited Missouri from prosecuting petitioner for each robbery at a different trial. Abbate v. United States, 359 U.S. 187, 196—201, 79 S.Ct. 666, 671 674, 3 L.Ed.2d 729 (1959) (separate opinion).
27
My conclusion is not precluded by the Court's decision in Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), although the basic fact situation there was identical to that in this case. Three armed men entered a tavern and robbed five customers. Hoag was tried and acquitted under indictments for robbing three of the customers. He was then brought to trial under a fourth indictment, the same as the first three in all respects except that it named a fourth customer as the victim. This time Hoag was convicted. The New Jersey courts, in rejecting Hoag's double-jeopardy claim, construed the applicable New Jersey statute as making each of the four robberies, although taking place on the same occasion, a separate offense. This construction was consistent with the state courts' view that a claim of double jeopardy cannot be upheld unless the same evidence necessary to sustain a second indictment would have been sufficient to secure a conviction on the first. The issues differed only in the identifications of the victims and the property taken from each; otherwise the State's evidence covered the same ground at both trials. This Court stated that it was unable to hold that the Due Process Clause of the Fourteenth Amendment 'always prevents a State from allowing different offenses arising out of the same act or transaction to be prosecuted separately, as New Jersey has done. For it has long been recognized as the very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice.' 356 U.S., at 468, 78 S.Ct. at 833. But in the present case Missouri did not have 'the widest latitude,' because Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), decided after Hoag, held that the Fifth Amendment guarantee that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb' is enforceable against the States, and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), accorded fully retroactive effect to that holding. This means, under our decisions, that federal standards as to what constitutes then 'same offence' apply alike to federal and state proceedings; it would be incongruous to have different standards determine the validity of a claim of double jeopardy depending on whether the claim was asserted in a state or federal court. Cf. Malloy v. Hogan, 378 U.S. 1, 11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653 (1964).
28
The Double Jeopardy Clause is a guarantee 'that the State with all its resources and power (shall) 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 * * *.' Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). This guarantee is expressed as a prohibition against multiple prosecutions for the 'same offence.' Although the phrase 'same offence' appeared in most of the early common-law articulations of the double-jeopardy principle,1 questions of its precise meaning rarely arose prior to the 18th century, and by the time the Bill of Rights was adopted it had not been authoritatively defined.2
29
When the common law did finally attempt a definition, in The King v. Vandercomb, 2 Leach 708, 720, 168 Eng.Rep. 455, 461 (Crown 1796), it adopted the 'same evidence' test, which provided little protection from multiple prosecution:
30
'(U)nless the first indictment were such as the prisoner might have been convicted upon by rpoof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second.'
31
The 'same evidence' test of 'same offence' was soon followed by a majority of American jurisdictions, but its deficiencies are obvious. It does not enforce but virtually annuls the constitutional guarantee. For example, where a single criminal episode involves several victims, under the 'same evidence' test a separate prosecution may be brought as to each. E.g., State v. Hoag, 21 N.J. 496, 122 A.2d 628, (1956), aff'd, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958). The 'same evidence' test permits multiple prosecutions where a single transaction is divisible into chronologically discrete crimes. E.g., Johnson v. Commonwealth, 201 Ky. 314, 256 S.W. 388 (1923) (each of 75 poker hands a separate 'offense'). Even a single criminal act may lead to multiple prosecutions if it is viewed from the perspectives of different statutes. E.g., State v. Elder, 65 Ind. 282 (1879). Given the tendency of modern criminal legislation to divide the phrases of a criminal transaction into numerous separate crimes, the opportunities for multiple prosecutions for an esentially unitary criminal episode are frightening. And given our tradition of virtually unreviewable prosecutorial discretion concerning the initiation and scope of a criminal prosecution,3 the potentialities for abuse inherent in the 'same evidence' test are simply intolerable.4
32
The 'same evidence' test is not constitutionally required. It was first expounded after the adoption of the Fifth Amendment, and, as shown in Abbate v. United States, supra, 359 U.S. at 197 198 and n. 2, 79 S.Ct. 666, 671—673, has never been squarely held by this Court to be the required construction of the constitutional phrase 'same offence' in a case involving multiple trials; indeed, in that context it has been rejected. See In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), discussed in Abbate v. United States, supra, 359 U.S. at 201, 79 S.Ct. 674. The 'same evidence' test may once have been defensible at English common law, which, for reasons peculiar to English criminal procedure, severely restricted the power of prosecutors to combine several charges in a single trial.5 In vivid contrast, American criminal procedure generally allows a prosecutor freedom, subject to judicial control, to prosecute a person at one trial for all the crimes arising out of a single criminal transaction.6
33
In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances,7 to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction. This 'same transaction' test of 'same offence' not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience.8 Modern rules of criminal and civil procedure reflect this recognition. See United Mine Workers v. Gibbs, 383 U.S. 715, 724—726, 86 S.Ct. 1130, 1137—1139, 16 L.Ed.2d 218 (1966). Although in 1935 the American Law Institute adopted the 'same evidence' test, it has since replaced it with the 'same transaction' test.9 England, too, has abandoned its surviving rules against joinder of charges and has adopted the 'same transaction' test.10 The Federal Rules of Criminal Procedure liberally encourage the joining of parties and charges in a single trial. Rule 8(a) provides for joinder of charges that are similar in character, or arise from the same transaction or from connected transactions or form part of a common scheme or plan. Rule 8(b) provides for joinder of defendants. Rule 13 provides for joinder of separate indictments or informations in a single trial where the offenses alleged could have been included in one indictment or information.11 These rules represent considered modern thought concerning the proper structuring of criminal litigation.
34
The same thought is reflected in the Federal Rules of Civil Procedure. A pervasive purpose of those Rules is to require or encourage the consolidation of related claims in a single lawsuit. Rule 13 makes compulsory (upon pain of a bar) all counterclaims arising out of the same transaction or occurrence from which the plaintiff's claim arose. Rule 14 extends this compulsion to third-party defendants. Rule 18 permits very broad joinder of claims, counterclaims, cross-claims, and third-party claims. Rules 19, 20, and 24 provide for joinder of parties and intervention by parties having claims related to the subject matter of the action. Rule 23 permits the consolidation of separate claims in a class action; see particularly Rule 23(b)(3).
35
In addition, principles of res judicata and collateral estoppel caution the civil plaintiff against splitting his case. The doctrine of pendent jurisdiction has furthered single trials of related cases. See United Mine Workers v. Gibbs, supra. Moreover, we have recognized the jurisdiction of three-judge courts to hear statutory claims pendent to the constitutional claim that required their convening. See, e.g., United States v. Georgia Pub. Serv. Comm., 371 U.S. 285, 287—288, 83 S.Ct. 397, 398 399, 9 L.Ed.2d 317 (1963); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).
36
It is true that these developments have not been of a constitutional dimension, and that many of them are permissive and discretionary rather than mandatory. Flexibility in the rules governing the structure of civil litigation is appropriate in order to give the parties the opportunity to shape their own private lawsuits, provided that injustice, harassment, or an undue burden on the courts does not result. Some flexibility in the structuring of criminal litigation is also desirable and consistent with our traditions. But the Double Jeopardy Clause stands as a constitutional barrier against possible tyranny by the overzealous prosecutor. The considerations of justice, economy, and convenience that have propelled the movement for consolidation of civil cases apply with even greater force in the criminal context because of the constitutional principle that no man shall be vexed more than once by trial for the same offense.12 Yet, if the Double Jeopardy Clause were interpreted by this Court to incorporate the 'same evidence' test, criminal defendants would have less protection from multiple trials than civil defendants. This anomaly would be intolerable. It was condemned by a New Jersey court nearly a century and a half ago in words even more applicable today:
37
'If in civil cases, the law abhors a multiplicity of suits, it is yet more watchful in criminal cases, that the crown shall not oppress the subject, or the government the citizen, by unnecessary prosecutions. * * * (This) is a case where the state has thought proper to prosecute the offence in its mildest form, and it is better that the residue of the offence go unpunished, than by sustaining a second indictment to sanction a practice which might be rendered an instrument of oppression to the citizen.' State v. Cooper, 13 N.J.L. 361, 375—376 (1833).
38
The present case highlights the hazards of abuse of the criminal process inherent in the 'same evidence' test and demonstrates the necessity for the 'same transaction' test. The robbery of the poker game involved six players—Gladson, Knight, Freeman, Goodwin, McClendon, and Roberts. The robbers also stole a car. Seven separate informations were filed against the petitioner, one covering each of the robbery victims, and the seventh covering the theft of the car. Petitioner's first trial was under the information charging the robbery of Knight. Since Missouri has offered no justification for not trying the other informations at that trial, it is reasonable to infer that the other informations were held in reserve to be tried if the State failed to obtain a conviction on the charge of robbing Knight. Indeed, the State virtually concedes as much since it argues that the 'same evidence' test is consistent with such an exercise of prosecutorial discretion.
39
Four of the robbery victims testified at the trial. Their testimony conflicted as to whether there were three or four robbers. Gladson testified that he saw four robbers, but could identify only one, a man named Brown. McClendon testified that he saw only three men at any one time during the course of the robbery, and he positively identified Brown, Larson, and Johnson; he also thought he heard petitioner's voice during the robbery, but said he was not sure. Knight thought only three men participated in the robbery, and he could not identify anyone. Roberts said he saw four different men and he identified them as Brown, Larson, Johnson, and petitioner. Under cross-examination, he conceded that he did not recognize petitioner's voice, and that he did not see his face or his hands. He maintained that he could identify him by his 'size and height' even though all the robbers had worn outsized clothing, and even though he could not connect petitioner with the actions of any of the robbers. On this evidence the jury acquitted petitioner.
40
At the second trial, for the robbery of Roberts, McClendon was not called as a witness. Gladson, who previously had been able to identify only one man—Brown—now was able to identify three Brown, Larson, and petitioner. On a number of details his memory was much more vivid than it had been at the first trial. Knight's testimony was substantially the same as at the first trial—he still was unable to identify any of the robbers. Roberts, who previously had identified petitioner only by his size and height, now identified him by his size, actions, voice, and a peculiar movement of his mouth. As might be expected, this far stronger identification evidence brought a virtually inevitable conviction.
41
The prosecution plainly organized its case for the second trial to provide the links missing in the chain of identification evidence that was offered at the first trial. McClendon, who was an unhelpful witness at the first trial was not called at the second trial. The hesitant and uncertain evidence of Gladson and Roberts at the first trial became detailed, positive, and expansive at the second trial. One must experience a sense of uneasiness with any double-jeopardy standard that would allow the State this second chance to plug up the holes in its case. The constitutional protection against double jeopardy is empty of meaning if the State may make 'repeated attempts' to touch up its case by forcing the accused to 'run the gantlet' at many times as there are victims of a single episode.
42
Fortunately for petitioner, the conviction at the second trial can be reversed under the doctrine or collateral estoppel, since the jury at the first trial clearly resolved in his favor the only contested issue at that trial, which was the identification of him as one of the robbers. There is at least doubt whether collateral estoppel would have aided him had the jury been required toresolve additional contested issues on conflicting evidence.13 But correction of the abuse of criminal process should not in any event be made to depend on the availability of collateral estoppel. Abuse of the criminal process is foremost among the feared evils that led to the inclusion of the Double Jeopardy Clause in the Bill of Rights. That evil will be most effectively avoided, and the Clause can thus best serve its worthy ends, if 'same offence' is construed to embody the 'same transaction' standard. Then both federal and state prosecutors will be prohibited from mounting successive prosecutions for offenses growing out of the same criminal episode, at least in the absence of a showing of unavoidable necessity for successive prosecutions in the particular case.14
43
Mr. Chief Justice BURGER, dissenting.
44
The Fifth Amendment to the Constitution of the United States provides in part: 'nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *.' Nothing in the language or gloss previously placed on this provision of the Fifth Amendment remotely justifies the treatment that the Court today accords to the collateral-estoppel doctrine. Nothing in the purpose of the authors of the Constitution commands or even justifies what the Court decides today; this is truly a case of expanding a sound basic principle beyond the bounds—or needs—of of its rational and legitimate objectives to preclude harassment of an accused.
45
* Certain facts are not in dispute. The home of John Gladson was the scene of 'a friendly game of poker' in the early hours of the morning of January 10, 1960. Six men—Gladson Knight, Freeman, Goodwin, McClendon, and Roberts—were playing cards in the basement. While the game was in progress, three men, armed with a sawed-off shotgun and pistols, broke into the house and forced their way into the basement. They ordered the players to remove their trousers and tied them up, except for Gladson who had a heart condition of which the robbers seemed to be aware. Substantial amounts of currency and checks were taken from the poker table and items of personal property were taken from the persons of the players. During the same period in which the men were being robbed in the basement, one man entered Mrs. Gladson's bedroom three floors above, ripped out the telephone there, tied her with the telephone cord, and removed the wedding ring from her finger. The robbers then fled in a car belonging to Roberts.
46
Four men—Ashe, Johnson, Larson, and Brown—were arrested later in the morning of the robbery. Each was subsequently charged in a separate information with the robbery of each of the six victims. Ashe, Johnson, and Larson were also charged with the theft of the car belonging to Roberts.
47
Ashe went to trial on May 2, 1960, on the charge of robbing Knight. No charge as to other victims was presented. Four of the six men—Knight, Gladson, McClendon, and Roberts—testified about the robbery and described their individual losses. Mrs. Gladson did not testify because she was ill on the day of trial. As Mr. Justice BRENNAN has stated, the victims' testimony conflicted as to whether there were three or four robbers:
48
'Gladson testified that he saw four robbers, but could identify only one, a man named Brown. McClendon testified that he saw only three men at any one time during the course of the robbery, and he positively identified Brown, Larson, and Johnson; he also thought he heard petitioner's voice during the robbery, but said he was not sure. Knight thought only three men participated in the robbery, and he could not identify any one. Roberts said he saw four different men and he identified them as Brown, Larson, Johnson, and petitioner.' Ante, at 458.
49
Ashe put in no evidence whatever, as was his right, and even waived closing arguments to the jury; nonetheless, the jury did not reach a verdict of guilty but returned a somewhat unorthodox verdict of 'not guilty due to insufficient evidence.'
50
Then, on June 20, 1960, Ashe was tried for the robbery of Roberts. Mrs. Gladson testified at this trial, relating that she was asleep in her bedroom when one the robbers entered, awoke her, tied her up with a telephone cord, and took cash and her wedding ring. The robber stayed in her room for about 15 or 20 minutes, during which time she could hear scuffling and talking in the basement. She said that she was able to identify the robber by his voice, and that he was Johnson, not Ashe.
51
The Court's opinion omits some relevant facts. The other victims' testimony at the second trial corroborated that of Mrs. Gladson that four robbers were present during the time in which the robbery took place. Gladson identified three robbers—Brown, Larson, and Ashe—as having been in the basement for the first minutes of the robbery; also he stated that one or more of the robbers had left the basement after 20 or 25 minutes. Roberts identified Brown, Larson, and Ashe as the men who formed the original group who entered the basement and testified that after the robbery, two of the three men, including Ashe, left the room. Two men returned in a short time with car keys, but Johnson had replaced Ashe as one of the two. There can be no doubt that the record shows four persons in the robbery band. The jury found Ashe guilty of robbing Roberts—the only charge before it.
52
Thereafter, as described in the opinion of the majority, Ashe's conviction was reviewed and upheld by the Supreme Court of Missouri, the United States District Court for the Western District of Missouri, and the Court of Appeals for the Eighth Circuit; in turn each rejected Ashe's double-jeopardy claim.
II
53
The concept of double jeopardy and our firm constitutional commitment is against repeated trials 'for the same offence.' This Court, like most American jurisdictions, has expanded that part of the Constitution into a 'same evidence' test.1 For example, in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), it was stated, so far as here relevant, that
54
'the test to be applied to determine whether there are two offenses or only one is whether each provision (i.e., each charge) requires proof of a fact which the other does not.' (Emphasis added).
55
Clearly and beyond dispute the charge against Ashe in the second trial required proof of a fact—robbery of Roberts—which the charge involving Knight did not. The Court, therefore, has had to reach out far beyond the accepted offense-defining rule to reach its decision in this case. What it has done is to superimpose on the same-evidence test a new and novel collateral-estoppel gloss.
56
The majority rests its holding in part on a series of cases beginning with United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916), which did not involve constitutional double jeopardy but applied collateral estoppel as developed in civil litigation to federal criminal prosecutions as a matter of this Court's supervisory power over the federal court system. The Court now finds the federal collateral estoppel rule to be an 'ingredient' of the Fifth Amendment guarantee against double jeopardy and applies it to the States through the Fourteenth Amendment. This is an ingredient that eluded judges and justices for nearly two centuries; the Court finds itself endowed with a perception all our predecessors lacked and in an area of the law which encounters no new facts.
57
The collateral-estoppel concept—originally a product only of civil litigation—is a strange mutant as it is transformed to control this criminal case. In civil cases the doctrine was justified as conserving judicial resources as well as those of the parties to the actions and additionally as providing the finality needed to plan for the future. It ordinarily applies to parties on each side of the litigation who have the same interest as or who are identical with the parties in the initial litigation. Here the complainant in the second trial is not the same as in the first even though the State is a party in both cases. Very properly, in criminal cases, finality and conservation of private, public and judicial resources are lesser values than in civil litigation. Also, courts that have applied the collateral-estoppel concept to criminal actions would certainly not apply it to both parties, as is true in civil cases, i.e., here, if Ashe had been convicted at the first trial, presumably no court would then hold that he was thereby by foreclosed from litigating the identification issue at the second trial.2
58
Perhaps, then, it comes as no surprise to find that the only expressed rationale for the majority's decision is that Ashe has 'run the gantlet' once before. This is not a doctrine of the law or legal reasoning but a colorful and graphic phrase, which, as used originally in an opinion of the Court written by Mr. Justice Black, was intended to mean something entirely different. The full phrase is 'run the gantlet once on that charge * * *.' (emphasis added); it is to be found in Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225 (1957), where no question of multiple crimes against multiple victims was involved. Green, having been found guilty of second degree murder on a charge of first degree, secured a new trial. This Court held nothing more than that Green, once put in jeopardy—once having 'run the gantlet * * * on that charge'—of first degree murder, could not be compelled to defend against that charge again on retrial.
59
Today's step in this area of constitutional law ought not be taken on no more basis than casual reliance on the 'gantlet' phrase lifted out of the context in which it was originally used. This is decision by slogan.
60
Some commentators have concluded that the harassment inherent in standing trial a second time is a sufficient reason for use of collateral estoppel in criminal trials.3 If the Court is today relying on a harassment concept to superimpose a new brand of collateral-estoppel gloss on the 'same evidence' test, there is a short answer; this case does not remotely suggest harassment of an accused who robbed six victims and the harassment aspect does not rise to constitutional levels.4
61
Finally, the majority's opinion tells us 'that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.' Ante, at 444.
62
With deference I am bound to pose the question: what is reasonable and rational about holding that an acquittal of Ashe for robbing Knight bars a trial for robbing Roberts? To borrow a phrase from the Court's opinion, what could conceivably be more 'hypertechnical and archaic' and more like the stilted formalisms of 17th and 18th century common-law England, than to stretch jeopardy for robbing Knight into jeopardy for robbing Roberts?
63
After examining the facts of this case the Court concludes that the first jury must have concluded that Ashe was not one of the robbers—that he was not present at the time.5 Also, since the second jury necessarily reached its decision by finding he was present, the collateral-estoppel doctrine applies. But the majority's analysis of the facts completely disregards the confusion injected into the case by the robbery of Mrs. Gladson. To me, if we are to psychoanalyze the jury, the evidence adduced at the first trial could more reasonably be construed as indicating that Ashe had been at the Gladson home with the other three men but was not one of those involved in the basement robbery. Certainly, the evidence at the first trial was equivocal as to whether there were three or four robbers, whether the man who robbed Mrs. Gladson was one of the three who robbed the six male victims, and whether a man other than the three had robbed Mrs. Gladson. Then, since the jury could have thought that the 'acting together' instruction given by the trial court in both trials6 only applied to the actual taking from the six card players, and not to Mrs. Gladson, the jury could well have acquitted Ashe but yet believed that he was present in the Gladson home. On the other hand, the evidence adduced at the second trial resolved issues other than identity that may have troubled the first jury. If believed, that evidence indicated that a fourth robber, Johnson, not Ashe, was with Mrs. Gladson when Ashe, Larson, and Brown were robbing the male victims. Johnson did go to the basement where the male victims were located, but only after the other three had already taken the stolen items and when the robbers were preparing for their departure in a car to be stolen from Roberts.
64
Accordingly, even the facts in this case, which the Court's opinion considers to 'lead to but one conclusion,' are susceptible of an interpretation that the first jury did not base its acquittal on the identity ground which the Court finds so compelling. The Court bases its holding on sheer 'guesswork,'7 which should have no place particularly in our review of state convictions by way of habeas corpus. As Mr. Justice Holmes said in Guy v. Donald, 206 U.S. 399, 406, 27 S.Ct. 63, 64, 51 L.Ed. 245 (1906):
65
'As long as the matter to be considered is debated in artificial terms there is danger of being led by a technical definition to apply a certain name, and then to deduce consequences which have no relation to the grounds on which the name was applied. * * *'
III
66
The essence of Mr. Justice BRENNAN's concurrence is that this was all one transaction, one episode, or, if I may so characterize it, one frolic, and, hence, only one crime. His approach, like that taken by the Court, totally overlooks the significance of there being six entirely separate charges of robbery against six individuals.
67
This 'single frolic' concept is not a novel notion; it has been urged in various courts including this Court.8 One of the theses underlying the 'single frolic' notion is that the criminal episode is 'indivisible.' The short answer to that is that to the victims, the criminal conduct is readily divisible and intensely personal; each offense is an offense against a person. For me it demeans the dignity of the human personality and individuality to talk of 'a single transaction' in the context or six separate assaults on six individuals.
68
No court that elevates the individual rights and human dignity of the accused to a high place—as we should—ought to be so casual as to treat the victims as a single homogenized lump of human clay. I would grant the dignity of individual status to the victims as much as to those accused, not more but surely no less.
69
If it be suggested that multiple crimes can be separately punished but must be collectively tried, one can point to the firm trend in the law to allow severance of defendants and offenses into separate trials so as to avoid possible prjudice of one one criminal act or of the conduct of one defendant to 'spill over' on another.
70
What the Court holds today must be related to its impact on crimes more serious than ordinary housebreaking, followed by physical assault on six men and robbery of all of them. To understand its full impact we must view the holding in the context of four men who break and enter, rob, and then kill six victims. The concurrence tells us that unless all the crimes are joined in one trial the alleged killers cannot be tried for more than one of the killings even if the evidence is that they personally killed two, three, or more of the victims. Or alter the crime to four men breaking into a college dormitory and assaulting six girls. What the Court is holding is, in effect, that the second and third and fourth criminal acts are 'free,' unless the accused is tried for the multiple crimes in a single trial—something defendants frantically use every legal device to avoid, and often succeed in avoiding. This is the reality of what the Court holds today; it does not make good sense and it cannot make good law.
71
I therefore join with the four courts that have found no double jeopardy in this case.
72
To borrow some wise words from Mr. Justice Black in his separate opinion in Jackson v. Denno, 378 U.S. 368, 401, 407—408, 84 S.Ct. 1774, 1797, 12 L.Ed.2d 908 (1964), the conviction struck down in this case 'is in full accord with all the guarantees of the Federal Constitution and * * * should not be held invalid by this Court because of a belief that the Court can improve on the Constitution.'
1
There can be no doubt of the 'retroactivity' of the Court's decision in Benton v. Maryland. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, decided the same day as Benton, the Court unanimously accorded fully 'retroactive' effect to the Benton doctrine.
2
'The Court instructs the jury that if you believe and find from the evidence in this case, beyond a reasonable doubt, that at the County of Jackson and State of Missouri, on the 10th day of January, 1960, the defendant herein, BOB FRED ASHE, alias BOBBY FRED ASHE, either alone or knowingly acting in concert with others, did then and there with force and arms in and upon one Don Knight, unlawfully and feloniously make an assault and took and carried away any money from his person or in his presence and against his will, by force and violence to his person, or by putting him in fear of some immediate injury to his person, with felonious intent to convert the same to his own use, without any honest claim to said money on the part of the defendant and with intent to permanently deprive the said Don Knight of his ownership and without the consent of the said Don Knight, if such be your finding, then you will find the defendant guilty of Robbery, First Degree, and so find in your verdict.'
3
'The Court instructs the jury that all persons are equally guilty who act together with a common intent in the commission of a crime, and a crime so committed by two or more persons jointly is the act of all and of each one so acting.
'The Court instructs the jury that when two or more persons knowingly act together in the commission of an unlawful act or purpose, then whatever either does in furtherance of such unlawful act or purpose is in law the act and deed of each of such persons.'
4
'However persuasive the dissenting opinions in the Hoag case may be, it is the duty of this Court to follow the law as stated by the Supreme Court of the United States until it expresses a contrary view. Certainly the factual circumstances of this case provide an excellent opportunity for reexamination of the questions presented. An examination of the transcript of both trials shows that in both the single issue in real contest, as distinguished from the issues that may be said to have been in technical dispute, was the question of whether petitioner was or was not present at the time the money was taken from the poker table and the other property taken from persons of the respective poker players.' Ashe v. Swenson, 289 F.Supp. 871, 873.
5
'It usually is difficult for a lower federal court to forecast with assurance a Supreme Court decision as to the continuing validity of a holding of a decade ago by a Court then divided as closely as possible. This is particularly so when the decision is in the rapidly developing and sensitive area of the criminal law and the Fourteenth Amendment Bill of Rights relationship. We feel, however, that our task is not to forecast but to follow those dictates, despite their closeness of decision, which at this moment in time are on the books and for us to read. * * * ' Ashe v. Swenson, 399 F.2d 40, 46.
6
The particular 'circumstance' most relied upon by the Court was 'the unexpected failure of four of the State's witnesses at the earlier trial to identify petitioner, after two of these witnesses had previously identified him in the course of the police investigation. Indeed, after the second of the two witnesses failed to identify petitioner, the State pleaded surprise and attempted to impeach his testimony. We cannot say that, after such an unexpected turn of events, the State's decision to try petitioner for the Yager robbery was so arbitrary or lacking in justification that it amounted to a denial of those concepts constituting 'the very essence of a scheme of ordered justice, which is due process." 356 U.S., at 469—470, 78 S.Ct. at 833.
In the case now before us, by contrast, there is no claim of any 'unexpected turn of events' at the first trial, unless the jury verdict of acquittal be so characterized.
7
See also Coffey v. United States, 116 U.S. 436, 442—443, 6 S.Ct. 437, 440, 29 L.Ed. 684; Frank v. Mangum, 237 U.S. 309, 333 334, 35 S.Ct. 582, 589, 59 L.Ed. 969; Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180; United States v. De Angelo, 138 F.2d 466; United States v. Curzio, 170 F.2d 354; Yawn v. United States, 244 F.2d 235; United States v. Cowart, 118 F.Supp. 903.
8
Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 38—39. See Yawn v. United States, supra; United States v. De Angelo, supra.
9
'If a later court is permitted to state that the jury may have disbelieved substantial and uncontradicted evidence of the prosecution on a point the defendant did not contest, the possible multiplicity of prosecutions is staggering. * * * In fact, such a restrictive definition of 'determined' amounts simply to a rejection of collateral estoppel, since it is impossible to imagine a statutory offense in which the government has to prove only one element or issue to sustain a conviction.' Mayers & Yarbrough, supra, at 38. See generally Lugar, Criminal Law, Double Jeopardy and Res Judicata, 39 Iowa L.Rev. 317. See also Comment, Twice in Jeopardy, 75 Yale L.J. 262; Hunvald, Criminal Law in Missouri, 25 Mo.L.Rev. 369, 369—375; Comment, Double Jeopardy and Collateral Estoppel in Crimes Arising From the Same Transaction, 24 Mo.L.Rev. 513; McLaren, The Doctrine of Res Judicata as Applied to the Trial of Criminal Cases, 10 Wash.L.Rev. 198.
10
It is true, as this Court said in Hoag v. New Jersey, supra, that we have never squarely held collateral estoppel to be a constitutional requirement. Until perhaps a century ago, few situations arose calling for its application. For at common law, and under early federal criminal statutes, offense categories were relatively few and distinct. A single course of criminal conduct was likely to yield but a single offense. See Comment, Statutory Implementation of Double Jeopardy Clauses: New Life for a Moribund Constitutional Guarantee, 65 Yale L.J. 339, 342. In more recent times, with the advent of specificity in draftsmanship and the extraordinary proliferation of overlapping and related statutory offenses, it became possible for prosecutors to spin out a startingly numerous series of offenses from a single alleged criminal transaction. See Note, Double Jeopardy and the Multiple-Count Indictment, 57 Yale L.J. 132, 133. As the number of statutory offenses multiplied, the potential for unfair and abusive reprosecutions became far more pronounced. Comment, Twice in Jeopardy, 75 Yale L.J. 262, 279—280; Note, Double Jeopardy and the Concept of Identity of Offenses, 7 Brooklyn L.Rev. 79, 82. The federal courts soon recognized the need to prevent such abuses through the doctrine of collateral estoppel, and it became a safeguard firmly embedded in federal law. See n. 7, supra. Whether its basis was a constitutional one was a question of no more than academic concern until this Court's decision in Benton v. Maryland, supra.
1
See, e.g., Vaux's Case, 4 Co.Rep. 44 a, 45 a, 76 Eng.Rep. 992, 993 (K.B. 1591); 2 M. Hale, Pleas of the Crown **240—255 ('same felony'); 2 W. Hawkins, Pleas of the Crown 515 (8th ed. 1824); 4 W. Blackstone, Commentaries *335.
2
See generally J. Sigler, Double Jeopardy 1—37 (1969).
3
See Baker, The Prosecutor—Initiation of Prosecution, 23 J.Crim.L. & C. 770 (1933); Baker & De Long, The Prosecuting Attorney—Powers and Duties in Criminal Prosecution, 24 J.Crim.L. & C. 1025 (1934); Kaplan, The Prosecutorial Discretion—A Comment, 60 N.W.U.L.Rev. 174 (1965); Note, Prosecutor's Discretion, 103 U.Pa.L.Rev. 1057 (1955); Note, Discretion Exercised by Montana County Attorneys in Criminal Prosecutions, 28 Mont.L.Rev. 41 (1966); Note, Prosecutorial Discretion in the Initiation of Criminal Complaints, 42 So.Cal.L.Rev. 519 (1969).
4
Several subsidiary rules have been developed in attempts to eliminate anomalies resulting from the 'same evidence' test. Thus, where one offense is included in another, prosecution for one bars reprosecution for the other even though the evidence necessary to prove the two offenses is different. Similarly, doctrines of res judicata and collateral estoppel have provided some, though not very much, relief from the extreme permissiveness of the test. See generally Kirchheimer, The Act, The Offense and Double Jeopardy, 58 Yale L.J. 513 (1949). Numerous practical exceptions to the test are discussed in Horack, The Multiple Consequences of a Single Criminal Act, 21 Minn.L.Rev. 805 (1937). So many exceptions to the 'same evidence' rule have been found necessary that it is hardly a rule at all; yet the numerous exceptions have not succeeded in wholly preventing prosecutorial abuse.
5
As Mr. Justice Frankfurter has said, 'Since the prohibition in the Constitution against double jeopardy is derived from history, its significance and scope must be determined, 'not simply by taking the words and a dictionary, but by considering (its) * * * origin and the line of (its) * * * growth." Green v. United States, supra, 355 U.S. at 199, 78 S.Ct. at 230 (dissenting opinion). The relation between the history of English criminal procedure and the history of the common law of double jeopardy is comprehensively examined in M. Friedland, Double Jeopardy (1969). See in particular pp. 161—194.
6
See, e.g., Fed.Rules Crim.Proc. 8, 13, 14; Ill.Rev.Stat., c. 38, § 3—3 (1967); Ann., 59 A.L.R.2d 841 (1958).
7
For example, where a crime is not completed or not discovered, despite diligence on the part of the police, until after the commencement of a prosecution for other crimes arising from the same transaction, an exception to the 'same transaction' rule should be made to permit a separate prosecution. See, e.g., Diaz v. United States, 223 U.S. 442, 448—449, 32 S.Ct. 250, 251, 56 L.Ed. 500 (1912). Cf. ALI, Model Penal Code, Proposed Official Draft §§ 1.07(2), 1.09(1)(b) (1962); Connelly v. D.P.P., (1964) A.C. 1254, 1360. Another exception would be necessary if no single court had jurisdiction of all the alleged crimes. An additional exception is discussed in n. 11, infra.
8
Admittedly, the phrase 'same transaction' is not self-defining. Guidance for its application can be obtained from cases interpreting the phrase as it is used in the Federal Rules of Criminal Procedure. See in particular cases under Rule 8(a). Although analogies to the use of the phrase in civil litigation are not perfect since policy considerations differ, some further guidance for its application in the present context can be obtained from the course of its application in civil litigation, where the courts have not encountered great difficulty in reaching sound results in particular cases. See 3 J. Moore, Federal Practice 13.13 (1968); 1A W. Barron & A. Holtzoff, Federal Practice and Procedure § 394 (Wright ed. 1960). Additional guidance may be found in cases developing the standard of 'common nucleus of operative fact.' UMW v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138 (1966), for purposes of pendent jurisdiction. See generally Note, United Mine Workers v. Gibbs and Pendent Jurisdiction, 81 Harv.L.Rev. 657, 660—662 (1968).
9
Compare ALI, Administration of the Criminal Law, Official Draft: Double Jeopardy § 5 (1935) with ALI, Model Penal Code, Proposed Official Draft §§ 1.07(2), 1.09(1)(b) (1962). See also Ill.Rev.Stat., c. 38, §§ 3—3, 3—4(b)(1) (1967).
10
See Connelly v. D.P.P., (1964) A.C. 1254.
11
Rule 14 provides for separate trials under court order where joinder would be prejudicial to either the prosecution or the defense. Cf. Fed.Rule Civ.Proc. 42. Even where separate trials are permitted to avoid prejudicial joinder, the 'same transaction' rule can serve a useful purpose since the defendant is at least informed at one time of all the charges on which he will actually be tried, and can prepare his defense accordingly. Moreover, the decision on whether charges are to be tried jointly or separately will rest with the judge rather than the prosecutor. And separate trials may not be ordered, of course, where the proofs will be repetitious, or the multiplicity of trials vexatious, or where the multiplicity will enable the prosecution to use the experience of the first trial to strengthen its case in a subsequent trial.
12
Joinder of defendants, as distinguished from joinder of offenses, requires separate analysis. For example, joinder of defendants can lead to Sixth Amendment problems. See, e.g., Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
13
And, of course, collateral estoppel would not prevent multiple prosecutions when the first trial ends in a verdict of guilty.
14
The question of separate trials for different crimes committed during a single criminal transaction is entirely distinct from and independent of the question of prosecutorial discretion to select the charges on which a defendant shall be prosecuted; and, as explained in my separate opinion in Abbate, supra, 359 U.S. at 198—199, 79 S.Ct. at 672—673, it is also distinct from and independent of the question of the imposition of separate punishments for different crimes committed during a single transaction. The Double Jeopardy Clause does not limit the power the Congress and the States to split a single transaction into separate crimes so as to give the prosecution a choice of charges. Cf. Gore v. United States, 357 U.S. 386, 395, 78 S.Ct. 1280, 1285—1286, 2 L.Ed.2d 1405 (1958) (Douglas, J., dissenting). Moreover, the clause does not, as a general matter, prohibit the imposition at one trial of cumulative penalties for different crimes committed during one transaction. See my separate opinion in Abbate, supra. Thus no crime need go unpunished. However, the clause does provide an outer limit on the power of federal and state courts to impose cumulative punishments for a single criminal transaction. See Gore v. United States, supra, 357 U.S. at 397—398, 78 S.Ct. 1286—1287 (Brennan, J., dissenting).
1
The test was first enunciated in The King v. Vandercomb, 2 Leach 708, 720, 168 Eng.Rep. 455, 461 (Crown 1796).
2
If Knight and Roberts had been passengers in a car that collided with one driven by Ashe no one would seriously suggest that a jury verdict for Ashe in an action by Knight against Ashe would bar an action by Roberts against Ashe. To present this situation shows how far the Court here has distorted collateral estoppel beyond its traditional boundaries.
3
See, e.g., Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 29—41 (1960); Comment, 24 Mo.L.Rev. 513 (1959); cf. Note, 75 Yale L.J. 262, 283—292 (1965).
4
The weight of the harassment factor does not warrant elevating collateral-estoppel principles in criminal trials to the level of an 'ingredient' of the Fifth and Fourteenth Amendments. True harassment deserves serious consideration because of the strain of the new trial. But society has an urgent interest in protecting the public from criminal acts and we ought not endorse any concepts that put a premium on aggravated criminal conduct in multiple crimes committed at the same time.
5
Arguably if Ashe had madea defense solely by alibi, that he was in Vietnam at the time and offered evidence of Army records etc., one might reasonably say the jury decided what the Court today says it probably decided. On this record however, such an analysis is baseless.
6
See ante, at 439 n. 3.
7
For a criticism of the collateral-estoppel doctrine because of the 'guesswork' necessary to apply it to general criminal verdicts, see Note, 75 Yale L.J. 262, 285 (1965).
8
Hoag v. New Jersey, 356 U.S. 464, 473, 78 S.Ct. 829, 835 (Warren, C.J., dissenting), 477, 78 S.Ct. 837 (Douglas, J., dissenting) (1958).
| 01
|
25 L.Ed.2d 577
90 S.Ct. 1302
397 U.S. 572
Fred W. WOODWARD et al., Petitioners,v.COMMISSIONER OF INTERNAL REVENUE.
No. 412.
Argued Feb. 26, 1970.
Decided April 20, 1970.
Donald P. Cooney, Dubuque, Iowa, for petitioners.
Mr. Johnnie McK. Walters, for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case and United States v. Hilton Hotels Corp., 397 U.S. 580, 90 S.Ct. 1307, 25 L.Ed.2d 585, involve the tax treatment of expenses incurred in certain appraisal litigation.
2
Taxpayers owned or controlled a majority of the common stock of the Telegraph-Herald, an Iowa publishing corporation. The Telegraph-Herald was incorporated in 1901, and its charter was extended for 20-year periods in 1921 and 1941. On June 9, 1960, taxpayers voted their controlling share of the stock of the corporation in favor of a perpetual extension of the charter. A minority stockholder voted against the extension. Iowa law requires 'those (stockholders) voting for such renewal * * * (to) purchase at its real value the stock voted against such renewal.' Iowa Code, § 491.25 (1966).
3
Taxpayers attempted to negotiate purchase of the dissenting stockholder's shares, but no agreement could be reached on the 'real value' of those shares. Consequently, in 1962 taxpayers brought an action in state court to appraise the value of the minority stock interest. The trial court fixed a value, which was slightly reduced on appeal by the Iowa Supreme Court, Woodward v. Quigley, 257 Iowa 1077, 133 N.W.2d 38, on rehearing, 257 Iowa 1104, 136 N.W.2d 280 (1965). In July 1965, taxpayers purchased the minority stock interest at the price fixed by the court.
4
During 1963, taxpayers paid attorneys', accountants', and appraisers' fees of over $25,000, for services rendered in connection with the appraisal litigation. On their 1963 federal income tax returns, taxpayers claimed deductions for these expenses, asserting that they were 'ordinary and necessary expenses paid * * * for the management, conservation, or maintenance of property held for the production of income' deductible under § 212 of the Internal Revenue Code of 1954, 26 U.S.C. § 212. The Commissioner of Internal Revenue disallowed the deduction 'because the fees represent capital expenditures incurred in connection with the acquisition of capital stock of a corporation.' The Tax Court sustained the Commissioner's determination, with two dissenting opinions, 49 T.C. 377 (1968), and the Court of Appeals affirmed, 410 F.2d 313 (C.A.8th Cir. 1969). We granted certiorari, 396 U.S. 875, 90 S.Ct. 153, 24 L.Ed.2d 133 (1969), to resolve the conflict over the deductibility of the costs of appraisal proceedings between this decision and the decision of the Court of Appeals for the Seventh Circuit in United States v. Hilton Hotels Corp., supra.1 We affirm.
5
Since the inception of the present federal income tax in 1913, capital expenditures have not been deductible.2 See Internal Revenue Code of 1954, § 263. Such expenditures are added to the basis of the capital asset with respect to which they are incurred, and are taken into account for tax purposes either through depreciation or by reducing the capital gain (or increasing the loss) when the asset is sold. If an expense is capital, it cannot be deducted as 'ordinary and necessary,' either as a business expense under § 162 of the Code or as an expense of 'management, conservation, or maintenance' under § 212.3
6
It has long been recognized, as a general matter, that costs incurred in the acquisition or disposition of a capital asset are to be treated as capital expenditures. The most familiar example of such treatment is the capitalization of brokerage fees for the sale or purchase of securities, as explicitly provided by a longstanding Treasury regulation, Treas.Reg. on Income Tax § 1.263(a)—2(e), and as approved by this Court in Helvering v. Winmill, 305 U.S. 79, 59 S.Ct. 45, 83 L.Ed. 52 (1938), and Sprecks v. Commissioner of Internal Revenue, 315 U.S. 626, 62 S.Ct. 777, 86 L.Ed. 1073 (1942). The Court recognized that brokers' commissions are 'part of the (acquisition) cost of the securities,' Helvering v. Winmill, supra, 305 U.S. at 84, 59 S.Ct. at 47, and relied on the Treasury regulation, which had been approved by statutory re-enactment, to deny deductions for such commissions even to a taxpayer for whom they were a regular and recurring expense in his business of buying and selling securities.
7
The regulations do not specify other sorts of acquisition costs, but rather provide generally that '(t)he cost of acquisition * * * of * * * property having a useful life substantially beyond the taxable year' is a capital expenditure. Treas.Reg. on Income Tax § 1.263(a)—2(a). Under this general provision, the courts have held that legal, brokerage, accounting, and similar costs incurred in the acquision or disposition of such property are capital expenditures. See, e.g., Spangler v. Commissioner of Internal Revenue, 323 F.2d 913, 921 (C.A.9th Cir. 1963); United States v. St. Joe Paper Co., 284 F.2d 430, 432 (C.A.5th Cir. 1960). See generally 4A J. Mertens, Law of Federal Income Taxation §§ 25.25, 25.26, 25.40, 25A.15 (1966 rev.). The law could hardly be otherwise, for such ancillary expenses incurred in acquiring or disposing of an asset are as much part of the cost of that asset as is the price paid for it.
8
More difficult questions arise with respect to another class of capital expenditures, those incurred in 'defending or perfecting title to property.' Treas.Reg. on Income Tax § 1.263(a) 2(c). In one sense, any lawsuit brought against a taxpayer may affect his title to property—money or other assets subject to lien.4 The courts, not believing that Congress meant all litigation expenses to be capitalized, have created the rule that such expenses are capital in nature only where the taxpayer's 'primary purpose' in incurring them is to defend or perfect title. See, e.g., Rassenfoss v. Commissioner of Internal Revenue, 158 F.2d 764 (C.A.7th Cir. 1946); Industrial Aggregate Co. v. United States, 284 F.2d 639, 645 (C.A.8th Cir. 1960). This test hardly draws a bright line, and has produced a melange of decisions, which, as the Tax Court has noted, '(i)t would be idle to suggest * * * can be reconciled.' Ruoff v. Commissioner, 30 T.C. 204, 208 (1958).5
9
Taxpayers urge that this 'primary purpose' test, developed in the context of cases involving the costs of defending property, should be applied to costs incurred in acquiring or disposing of property as well. And if it is so applied, they argue, the costs here in question were properly deducted, since the legal proceedings in which they were incurred did not directly involve the question of title to the minority stock, which all agreed was to pass to taxpayers, but rather was concerned solely with the value of that stock.6
10
We agree with the Tax Court and the Court of Appeals that the 'primary purpose' test has no application here. That uncertain and difficult test may be the best that can be devised to determine the tax treatment of costs incurred in litigation that may affect a taxpayer's title to property more or less indirectly, and that thus calls for a judgment whether the taxpayer can fairly be said to be 'defending or perfecting title.' Such uncertainty is not called for in applying the regulation that makes the 'cost of acquisition' of a capital asset a capital expense. In our view application of the latter regulation to litigation expenses involves the simpler inquiry whether the origin of the claim litigated is in the process of acquisition itself.
11
A test based upon the taxpayer's 'purpose' in undertaking or defending a particular piece of litigation would encourage resort to formalisms and artificial distinctions. For instance, in this case there can be no doubt that legal, accounting, and appraisal costs incurred by taxpayers in negotiating a purchase of the minority stock would have been capital expenditures. See Atzingen-Whitehouse Dairy, Inc. v. Commissioner, 36 T.C. 173 (1961). Under whatever test might be applied, such expenses would have clearly been 'part of the acquisition cost' of the stock. Helvering v. Winmill, supra. Yet the appraisal proceeding was no more than the substitute that state law provided for the process of negotiation as a means of fixing the price at which the stock was to be purchased. Allowing deduction of expenses incurred in such a proceeding, merely on the ground that title was not directly put in question in the particular litigation, would be anomalous.
12
Further, a standard based on the origin of the claim litigated comports with this Court's recent ruling on the characterization of litigation expenses for 372 U.S. 39, 83 S.Ct. 623, 9 L.Ed.2d 570 372 U.S. 39, 83 S.Ct. 623, 9 L.Ed.id 570 (1963). This Court there held that the expense of defending a divorce suit was a nondeductible personal expense, even though the outcome of the divorce case would affect the taxpayer's property holdings, and might affect his business reputation. The Court rejected a test that looked to the consequences of the litigation, and did not even consider the taxpayer's motives or purposes in undertaking defense of the litigation, but rather examined the origin and character of the claim against the taxpayer, and found that the claim arose out of the personal relationship of marriage.
13
The standard here pronounced may, like any standard, present borderline cases, in which it is difficult to determine whether the origin of particular litigation lies in the process of acquisition.7 This is not such a borderline case. Here state law required taxpayers to 'purchase' the stock owned by the dissenter. In the absence of agreement on the price at which the purchase was to be made, litigation was required to fix the price. Where property is acquired by purchase, nothing is more clearly part of the process of acquisition than the establishment of a purchase price.8 Thus the expenses incurred in that litigation were properly treated as part of the cost of the stock that the taxpayers acquired.
14
Affirmed.
1
Other federal court decisions on the point are in conflict. Compare Boulder Building Corp. v. United States, 125 F.Supp. 512 (D.C.W.D.Okl.1954) (holding appraisal proceeding costs capital expenditures), with Smith Hotel Enterprises, Inc. v. Nelson, 236 F.Supp. 303 (D.C.E.D.Wis.1964) (holding such costs deductible as ordinary and necessary business expense). And see Walter S. Heller, 2 T.C. 371 (1943), aff'd, Heller v. Commissioner of Internal Revenue, 147 F.2d 376 (C.A.9th Cir. 1945) (holding dissenting stockholder's appraisal costs deductible under predecessor to § 212).
See also Naylor v. Commissioner of Internal Revenue, 203 F.2d 346 (C.A.5th Cir. 1953), in which expenses of litigation to fix the purchase price of stock sold pursuant to an option to purchase it at its net asset value on a certain date were held deductible under the predecessor of § 212.
2
See § IIB of the Income Tax Act of 1913, 38 Stat. 167.
3
The two sections are in pari materia with respect to the capital-ordinary distinction, differing only in that § 212 allows deductions for the ordinary and necessary expenses of nonbusiness profitmaking activities. See United States v. Gilmore, 372 U.S. 39, 44—45, 83 S.Ct. 623, 626—627, 9 L.Ed.2d 570 (1963). Heller v. Commissioner, n. 1, supra, may have been based in part on the premise that the predecessor of § 212 permitted the deduction of some expenses that would have been capitalized if incured in the conduct of a trade or business.
4
See Hochschild v. Commissioner of Internal Revenue, 161 F.2d 817, 820 (C.A.2d Cir. 1947) (Frank, J., dissenting).
5
A large number of these decisions are collected in 4A Mertens, supra, §§ 25.24, 25A.16.
6
Taxpayers argue at length that under Iowa law title to the stock passed before the appraisal proceeding. The Court of Appeals viewed Iowa law differently, and it seems to us that it was correct in so doing. See United States v. Hilton Hotels Corp., 397 U.S., at 583—584, n. 2, 90 S.Ct., at 1309. But resolution of this question of state law makes no difference and is not necessary for decision of the case, since, as we hold in Hilton Hotels, the sequence in which title passes and price is determined is irrelevant for purposes of the tax question involved here.
7
See, e.g., Petschek v. United States, 335 F.2d 734 (C.A.2d Cir. 1964), for a borderline case of whether legal expenses were incurred in the disposition of property.
8
Taxpayers argue that 'purchase' analysis cannot properly be applied to the appraisal situation, because the transaction is an involuntary one from their point of view—an argument relied upon by the District Court in the Smith Hotel Enterprises case, supra, n. 1. In the first place, the transaction is in a sense voluntary, since the majority holders know that under state law they will have to buy out any dissenters. More fundamentally, however, wherever a capital asset is transferred to a new owner in exchange for value either agreed upon or determined by law to be a fair quid pro quo, the payment itself is a capital expenditure, and there is no reason why the costs of determining the amount of that payment should be considered capital in the case of the negotiated price and yet considered deductible in the case of the price fixed by law. See Isaac G. Johnson & Co. v. United States, 149 F.2d 851 (C.A.2d Cir. 1945) (expenses of litigating amount of fair compensation in condemnation proceeding held capital expenditures).
| 1112
|
397 U.S. 596
90 S.Ct. 1350
25 L.Ed.2d 594
George Rivera SANTANAv.TEXAS.
No. 1002.
Supreme Court of the United States
April 20, 1970
H. Ernest Griffith, for petitioner.
Crawford C. Martin, Atty. Gen. of Texas, Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., and Robert C. Flowers and Monroe Clayton, Asst. Attys. Gen., for respondent.
On Petition for Writ of Certiorari to the Supreme Court of Texas.
PER CURIAM.
1
The petition for a writ of certiorari is granted, the judgment is vacated and the case is remanded to the Supreme Court of Texas for further consideration in light of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.
2
THE CHIEF JUSTICE and Mr. Justice STEWART dissent for the reasons set forth in the dissenting opinion of The Chief Justice in In re Winship, 397 U.S., at 375, 90 S.Ct., at 1078. Mr. Justice BLACK dissents for the reasons set forth in his dissenting opinion in In re Winship, 397 U.S., at 377, 90 S.Ct., at 1079.
| 12
|
397 U.S. 586
90 S.Ct. 1310
25 L.Ed.2d 590
STANDARD INDUSTRIES, INC., Petitioner,v.TIGRETT INDUSTRIES, INC., et al.
No. 445.
Argued March 2, 1970.
Decided April 20, 1970.
Rehearing Denied June 1, 1970.
See 398 U.S. 944, 90 S.Ct. 1835.
Walton Bader, New York City, for petitioner.
Lawrence G. Wallace, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
Ralph W. Kalish, St. Louis, Mo., for respondents.
Sidney Neuman, Chicago, Ill., for American Patent Law Association, as amicus curiae.
PER CURIAM.
1
The judgments are affirmed by an equally divided Court.
2
Affirmed.
3
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
4
In this case respondents sued petitioner for payments alleged to be due under a patent-licensing agreement. At trial and on appeal petitioner defended primarily on the ground that its product did not involve any use of the respondent's patent. Petitioner did not at any time attack the validity of the patent itself, and apparently conceded that controlling law prevented it from doing so. The District Court found that the product did utilize the patented invention and awarded damages. The Court of Appeals for the Sixth Circuit affirmed in an opinion delivered May 27, 1969, 411 F.2d 1218 (1969).
5
On June 16, 1969, this Court decided in Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610, that a patent licensee could attack the validity of a patent. That case specifically overruled the patent-licensee estoppel doctrine applied in Automatic Radio Mfg. Co. v. Hazaltine Research, Inc., 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312 (1950), a doctrine that was the controlling law at all times in the proceedings below. Petitioner now seeks to attack the validity of the patent, but respondents argue that since the issue was never raised below, it cannot now be litigated.
6
The failure to assert invalidity below cannot, in these circumstances, be deemed a waiver of that defense. The Court has recognized that to be effective a waiver 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, 1023, 82 L.Ed. 1461 (1938), and we have frequently allowed parties to raise issues for the first time on appeal when there has been a significant change in the law since the trial. This principle has most often been applied in proceedings relating to criminal prosecutions,1 but it has also been invoked in purely civil cases.2 The principle has not been limited to constitutional issues, and the Court has permitted consideration on appeal of statutory arguments not presented below.3 In deciding whether such new arguments can be considered, we have primarily considered three factors: first, whether there has been a material change in the law; second, whether assertion of the issue earlier would have been futile; and third, whether an important public interest is served by allowing consideration of the issue. It is clear to me that all these criteria are met in this case.
7
Undoubtedly our decision in Lear was a major change in the field of patent law. The Court implicitly recognized this fact by overruling the estoppel holding in Automatic Radio. It is also clear that the trial court was satisfied that applicable law precluded the assertion of invalidity by patent licensees4 and thus earlier argument on the point would have been futile. Finally, and most importantly, an overriding public interest would be served by allowing petitioner to challenge the validity of this patent. Last Term we unanimously held that 'the public's interest in the elimination of specious patents would be significantly prejudiced if the retroactive effect of (Lear) were limited in any way.' Lear, supra, 395 U.S., at 674 n. 19, 89 S.Ct., at 1913. I do not understand how today's decision can be reconciled with that statement. Although analytically this case may present a question of waiver and not retroactivity, the public interest that the Court felt required full retroactivity in Lear is an equally compelling reason for allowing petitioner's attack now in spite of the concessions below. I would vacate the judgments below and remand the case to the District Court for a determination of the validity of the patent in issue.
1
See White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); cf. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); Linkletter v. Walker, 381 U.S. 618, 622—629, 85 S.Ct. 1731, 1733—1737, 14 L.Ed.2d 601 (1965); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
2
Curtis Publishing Co. v. Butts, 388 U.S. 130, 142—145 (opinion of Harlan, J.), 172 n. 1 (separate opinion of Brennan, J.), 87 S.Ct. 1975, 1984—1986, 18 L.Ed.2d 1094 (1967); Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966); Uebersee Finanz-Korp, A.G. v. McGrath, 343 U.S. 205, 213, 72 S.Ct. 618, 621, 96 L.Ed. 888 (1952); Hormel v. Helvering, 312 U.S. 552, 556—557, 61 S.Ct. 719, 721—722, 85 L.Ed. 1037 (1941).
3
In Hormel v. Helvering, supra, the Court allowed the Commissioner of Internal Revenue to rely on § 22(a) of the Revenue Act of 1934 although his argument before the Board of Tax Appeals had rested solely on §§ 166 and 167. We did so because of the intervening decision in Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788 (1940).
4
App. 52a, 129a—3.
| 78
|
397 U.S. 552
90 S.Ct. 1282
25 L.Ed.2d 561
Genever LEWIS et al., Appellants,v.Robert MARTIN, Director of the State Department of Social Welfare of State of California, et al.
No. 829.
Argued March 3 and 4, 1970.
Decided April 20, 1970.
Anthony G. Amsterdam, Stanford, Cal., for appellants.
Francis X. Beytagh, Jr., Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
Jay S. Linderman, for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Appellants are mothers and children who receive welfare assistance under California law.1 At the time these actions were commenced, California law provided2 that payments to a 'needy child' who 'lives with his mother and a stepfather or an adult male person assuming the role of spouse to the mother although not legally married to her'—known in the vernacular as a MARS—shall be computed after consideration is given to the income of the stepfather or MARS.3 The California law conclusively presumes that the needs of the children are reduced by the amount of income available from the man in the house whether or not it is fact available or actually used to meet the needs of the dependent children.
2
Following our decision in King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118, the Department of Health, Education, and Welfare (HEW) promulgated a regulation reaffirming its earlier rulings that the income of a man not ceremonially married to the mother of the dependent children may not be treated as available to the children unless there is proof that he has made actual contributions.4 Even where the man is ceremonially married to the mother but is not the real or adoptive father his income may not be treated as available to the children unless he is legally obligated to support the children by state law.5
3
These suits by appellants were brought in a three-judge District Court to have the California law and regulations declared invalid. That court dismissed the complaints, holding the HEW regulations were invalid. 312 F.Supp. 197. The cases are here on appeal and we noted probable jurisdiction. 396 U.S. 900, 90 S.Ct. 237, 24 L.Ed.2d 176.
4
The Social Security Act defines a dependent child as a 'needy child * * * who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with' a specified relative. § 406(a), 49 Stat. 629, 42 U.S.C. § 606(a). This is the Aid to Families With Dependent Children (AFDC) program which we discussed in King v. Smith.
5
The federal statute provides that state agencies administering AFDC plans 'shall, in determining need (of an eligible child), take into consideration any other income and resources (of the child) * * * as well as any expenses reasonably attributable to the earning of any such income.' 42 U.S.C. § 602(a) (7) (1964 ed., Supp. IV).
6
This directive was implemented by a regulation of HEW, effective July 1, 1967, which, as then worded, provided in part:
7
'(O)nly income and resources that are, in fact, available to an applicant or recipient for current use on a regular basis will be taken into consideration in determining need and the amount of payment.'6
8
We stated in King v. Smith, supra, at 319, 88 S.Ct. at 2134 n. 16, that those regulations 'clearly comport with' the Act. And as we have noted, shortly after King v. Smith, HEW promulgated a new regulation7 which provided in pertinent part:
9
'(a) A State plan for aid and services to needy families with children * * * must provide that the determination whether a child has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent * * * will be made only in relation to the child's natural or adoptive parent, or in relation to a child's stepparent who is ceremonially married to the child's natural or adoptive parent and is legally obligated to support the child under State law of general applicability which requires stepparents to support stepchildren to the same extent that natural or adoptive parents are required to support their children.
10
'(b) The inclusion in the family, or the presence in the home, of a 'substitute parent' or 'man-in-the-house' or any individual other than one described in paragraph (a) of this section is not an acceptable basis for a finding of ineligibility or for assuming the availability of income by the State. * * * (I)n the consideration of all income and resources in establishing financial eligibility and the amount of the assistance payment, only such net income as is actually available for current use on a regular basis will be considered, and the income only of the parent described in paragraph (a) of this section will be considered available for children in the household in absence of proof of actual contributions.' (Emphasis added).
11
In other words, the regulations explicitly negate the idea that in determining a child's needs, a stepfather (i.e., a man married to a child's mother but who has not adopted the child and is not legally obligated to support the child under state law) or a MARS may be presumed to be providing support.8
12
We said in King v. Smith that AFDC aid can be granted 'only if 'a parent' of the needy child is continually absent from the home.' 392 U.S., at 313, 88 S.Ct. at 2131. If the stepfather or MARS is a 'parent' within the meaning of the federal Act, any federal matching assistance under the AFDC program for children living with a MARS or stepfather would not be available to appellants. The three-judge court said that '(t)he HEW regulation, by requiring proof of actual contributions from a MARS, reduces the expectation of Congress to a mere hope.' 312 F.Supp., at 202. We disagree. We traversed the entire spectrum of that question in King v. Smith, and find it unnecessary to restate the legislative history of the relevant statutes. We concluded that Congress 'intended the term 'parent' in § 406(a) of the Act * * * to include only those persons with a legal duty of support.' 392 U.S., at 327, 88 S.Ct. at 2138. And we went on to say:
13
'It is clear, as we have noted, that Congress expected 'breadwinners' who secured employment would support their children. This congressional expectation is most reasonably explained on the basis that the kind of breadwinner Congress and in mind was one who was legally obligated to support his children. We think it beyond reason to believe that Congress would have considered that providing employment for the paramour of a deserted mother would benefit the mother's children whom he was not obligated to support.
14
'By a parity of reasoning, we think that Congress must have intended that the children in such a situation remain eligible for AFDC assistance notwithstanding their mother's impropriety.' Id., at 329, 88 S.Ct. at 2139—2140.
15
That reasoning led us to invalidate Alabama's 'substitute father' regulation.9 Like reasoning leads us to hold, contrary to the three-judge District Court, that the HEW regulation is valid. We only add that HEW might reasonably conclude that only he who is as near as a real or adoptive father would be has that consensual relation to the family which makes it reliably certain that his income is actually available for support of the children in the household. HEW may, in other words, reasonably conclude that an obligation to support under state law must be of 'general applicability' to make that obligation in reality a solid assumption on which estimates of funds actually available to children on a regular basis may be calculated.
16
Any lesser duty of support might merely be a device for lowering welfare benefits without guaranteeing that the child would regularly receive the income on which the reduction is based, that is to say, it would not approximate the obligation to support placed on and normally assumed by natural or adoptive parents. That reading of the Act and of King v. Smith certainly cannot be said to be impermissible.
17
Our decision in King v. Smith held only that a legal obligation to support was a necessary condition for qualification as a 'parent'; it did not also suggest that it would always be a sufficient condition. We find nothing in this regulation to suggest inconsistency with the Act's basic purpose of providing aid to 'needy' children, except where there is a 'breadwinner' in the house who can be expected to provide such aid himself. HEW, the agency charged with administering the Act, has apparently concluded that as a matter of current, practical realities, the relationship of the MARS to the home is less stable than that of the stepfather who at least has the additional tie of the ceremonial marriage, and that the likelihood of the MARS' contributing his income to the children—even if legally obligated to do so—is sufficiently uncertain in the absence of the marriage tie, to prevent viewing him as a 'breadwinner' unless the bread is actually set on the table. Nothing in this record shows that this administrative judgment does not correspond to the facts. We give HEW the deference due the agency charged with the administration of the Act, see, e.g., Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371; Zemel v. Rusk, 381 U.S. 1, 11—12, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179. In the absence of proof of actual contribution, California may not consider the child's 'resources' to include either the income of a nonadopting stepfather who is not legally obligated to support the child as is a natural parent, or the income of a MARS—whatever the nature of his obligation to support.
18
California on remand is foreclosed from arguing that its assumption-of-income provisions are consistent with the Act as applied to MARS; the State is limited to demonstrating that those provisions may be retained under the Act as applied to nonadopting stepfathers by showing that the legal obligation placed on such stepparents is consistent with the obligation required by the federal regulation.
19
Whether in that posture of the case California's laws and regulations are inconsistent with the federal standard is a question that the District Court did not reach. The case is therefore reversed and remanded so that such an adjudication can be made.
20
It is so ordered.
21
Reversed and remanded.
22
Mr. Justice BLACK, with whom THE CHIEF JUSTICE joins, dissenting.
23
In my dissenting opinion in Rosado v. Wyman, 397 U.S. 397, at 430—433, 90 S.Ct. 1207, at 1227—1228, 25 L.Ed.2d 442 (1970), I pointed out that in many lawsuits brought against state welfare authorities by recipients of Aid to Families With Dependent Children (AFDC) the real controversy is not between the AFDC recipients and the State but between the Federal Government and the state government. This case presents precisely that situation. The Solicitor General has informed the Court that the Department of Health, Education, and Welfare (HEW)—the federal agency vested by statute with the duty of insuring that States which receive federal AFDC matching funds abide by the federal requirements—has determined that § 11351 of the California Welfare and Institutions Code is inconsistent with federal AFDC regulations, 45 CFR § 203.1. This California statute provided when this suit was brought that the income of a stepfather or a man assuming the role of a spouse (MARS) to the mother of dependent, needy children shall be considered as available to the children in computing the AFDC assistance to which the children are entitled. The federal regulations, however, in general refuse to assume that the income of a stepfather or MARS is available to the children in the absence of proof of actual contributions. California admits that there is a conflict between these state and federal provisions but contends that the federal regulations are inconsistent with the requirements of the Social Security Act and that its statute is consistent with the Act. The controversy between these two governments is thus real and substantial. It was for exactly such situations that the Social Security Act provided a comprehensive remedial scheme for resolving disputes between federal and state governments. See 42 U.S.C. §§ 602, 604, 1316 (1964 ed. and Supp. IV). Under this scheme HEW has the power, subject to certain notice and hearing requirements, to terminate AFDC assistance to a State that refuses to conform to the federal policies. In this case, the termination of federal AFDC assistance to California or the credible threat to terminate that assistance in the near future would compel a resolution of the underlying issue in this lawsuit by forcing California (1) to amend its laws to conform to the existing federal regulations, (2) to challenge HEW's determination of nonconformity in the federal courts as provided in 42 U.S.C. § 1316 (1964 ed., Supp. IV), or (3) to withdraw from the federally assisted AFDC program. Generally, the Act provides procedures that allow the state and federal governments to resolve their difference either by agreement or by lawsuit. As I stated in my dissent in Rosado v. Wyman, supra, at 434—435, 90 S.Ct. at 1229, if the congressional objective in establishing the Act's remedial procedures is to be realized it is imperative that the integrity of these procedures not be undermined by premature lawsuits brought by welfare recipients. I think these remedial provisions of the Social Security Act reflect an unmistakable intent to give HEW primary jurisdiction over technical and difficult welfare issues and that these procedures should be the exclusive ones until they have been exhausted. Accordingly, in my view it was error for the District Court to assume jurisdiction and decide this case. It is strange indeed to me that the Federal Government has never been made a party to this lawsuit although its interests are deeply involved.
24
I would add this note of caution, however. The Federal Government has no power under our Constitution to force or coerce a State into disobeying its own valid laws while those laws are still on the books. My concern in this regard arises from my belief that a State, absent some express constitutional prohibition, has power and authority to fix and determine the property relationships and support obligations among persons within its boundaries. I certainly hope that the opinion of the Court today will not be interpreted as compelling a State to violate its own valid laws in order to obtain money from the Federal Government.
25
When this action was brought challenging the California statute as inconsistent with the federal regulations, HEW was in the process of considering the effect of its new regulations on the California statute. It is now clear that HEW was preparing to rule that the California provision was inconsistent with the federal requirements. If this Court today would vacate the jugment of the District Court, that order would leave HEW free to proceed to settle its controversy with Califoria as Congress has provided. For this reason, and for those stated above, I would vacate the judgment of the District Court and order that the case be dismissed as prematurely brought.
26
Mr. Chief Justice BURGER, dissenting.
27
Unlike Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491, the administrative procedures provided by statute have not been exhausted here. For this reason HEW's primary jurisdiction remains a bar to the jurisdiction of federal courts over suits brought by welfare recipients. See Rosado v. Wyman, 397 U.S. 397, at 430, 90 S.Ct. 1207, at 1227, 25 L.Ed.2d 442 (dissenting opinion of Mr. Justice Black). I therefore join the dissent filed by Mr. Justice BLACK.
1
Some of the appellants sue on behalf of themselves, their children, a man assuming the role of spouse (MARS), and all others similarly situated. There are also intervenors who represent two families, one with a stepfather and another with a MARS.
2
Cal.Welf. & Inst'ns Code, § 11351 (1966).
On September 3, 1969, the Governor of California signed into law a new § 11351.5 of the California Welfare and Institutions Code, which became effective November 10, 1969. It leaves unchanged § 11351 and implementing regulations insofar as they apply to a stepfather, but repeals the old § 11351 insofar as it applied to 'an adult male person assuming the role of spouse.' Under the new law, a MARS 'shall be required to make a financial contribution to the family which shall not be less than it would cost him to provide himself with an independent living arrangement.' The new law also provides that, under regulations to be promulgated by the State Welfare Department, the MARS and the mother will be required to present the Department with 'all of the facts in connection with the sharing of expenses * * *.'
3
The California regulations that governed a MARS at the time these suits were brought were Cal.State Dept. of Social Welfare, Public Social Services Manual §§ 42—535 (effective Nov. 1, 1967), 44—133.5 (effective July 1, 1967). As to a stepfather, the pertinent regulations were id. §§ 42—531 (effective Nov. 1, 1967), 44—113.242 (effective July 1, 1967).
For criminal sanctions against a natural father who fails to support his children see Cal.Penal Code, § 270; Cal.Welf. & Inst'ns Code, §§ 11476—11477 (1966).
4
45 CFR § 203.1.
5
Id., § 203.1(a).
6
HEW Handbook of Public Assistance Administration, pt. IV, § 3131.7. In its present form the regulation provides:
'(ii) * * * in establishing financial eligibility and the amount of the assistance payment: * * * (c) only such net income as is actually available for current use on a regular basis will be considered, and only currently available resources will be considered.' 45 CFR § 233.20(a)(3)(ii), 34 Fed.Reg. 1395.
7
45 CFR § 203.1.
8
An exception is a person whose presence is deemed essential to the well-being of the recipient of assistance and who is included in the family budget unit for calculation of need. See 42 U.S.C. § 602(a)(7) (1964 ed., Supp. IV) which provides:
'A State plan * * * must * * * provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children, or of any other individual (living in the same home as such child and relative) whose needs the State determines should be considered in determining the need of the child or relative claiming such aid, as well as any expenses reasonably attributable to the earning of any such income * * *.'
The so-called AFDC 'essential person' is also covered by regulation. See 45 CFR § 233.20(a)(2)(vi), 34 Fed.Reg. 1394.
9
'Under the Alabama regulation, an 'able-bodied man, married or single, is considered a substitute father of all the children of the applicant * * * mother' in three different situations: (1) if 'he lives in the home with the child's natural or adoptive mother for the purpose of cohabitation'; or (2) if 'he visits (the home) frequently for the purpose of cohabiting with the child's natural or adoptive mother'; or (3) if 'he does not frequent the home but co-habits with the child's natural or adoptive mother elsewhere.' Whether the substitute father is actually the father of the children is irrelevant. It is also irrelevant whether he is legally obligated to support the children, and whether he does in fact contribute to their support. What is determinative is simply whether he 'cohabits' with the mother.' 392 U.S., at 313—314, 88 S.Ct., at 2131—2132.
| 12
|
397 U.S. 597
90 S.Ct. 1376
25 L.Ed.2d 599
Richard Sv.CITY OF NEW YORK.
No. 1478, Misc.
Supreme Court of the United States
April 20, 1970
Jonathan A. Weiss, for appellant.
J. Lee Rankin, Stanley Buchsbaum, and Robert T. Hartmann, for appellee.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis is granted. The judgment is vacated and the case is remanded to the Court of Appeals of New York for further consideration in light of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.
2
THE CHIEF JUSTICE and Mr. Justice STEWART dissent for the reasons set forth in the dissenting opinion of The Chief Justice in In re Winship, 397 U.S., at 375, 90 S.Ct., at 1078.
3
Mr. Justice BLACK dissents for the reasons set forth in his dissenting opinion in In re Winship, 397 U.S., at 377, 90 S.Ct., at 1079.
| 12
|
397 U.S. 532
90 S.Ct. 1288
25 L.Ed.2d 547
AMERICAN FARM LINES, Appellant,v.BLACK BALL FREIGHT SERVICE et al. INTERSTATE COMMERCE COMMISSION, Appellant, v. BLACK BALL FREIGHT SERVICE et al.
Nos. 369, 382.
Argued Feb. 25, 1970.
Decided April 20, 1970.
Joseph A. Califano, Jr., Washington, D.C., at appellant American Farm lines.
Arthur J. Cerra, Washington, D.C., for appellants Interstate Commerce Commission and the United States.
William H. Dempsey, Jr., Washington, D.C., for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
The Interstate Commerce Commission has statutory power to grant motor carriers temporary operating authority 'without hearings or other proceedings' when the authority relates to a 'service for which there is an immediate and urgent need' and where there is 'no carrier service capable of meeting such need.'1 Interstate Commerce Act § 210a, 52 Stat. 1238, as amended, 49 U.S.C. § 310a. The ICC processes applications for such authority under rules promulgated in 1965. 49 CFR pt. 1131.2 Among other things, those require that an applicant accompany his application with supporting statements of shippers that contain information 'designed to establish an immediate and urgent need for service which cannot be met by existing carriers.' Id., § 1131.2(c). Each such supporting statement 'must contain at least' 11 items of information3 including the following:
2
'(8) Whether efforts have been made to obtain the service from existing motor, rail, or water carriers, and the dates and results of such efforts.
3
'(9) Names and addresses of existing carriers who have either failed or refused to provide the service, and the reasons given for any such failure or refusal.' Appellant American Farm Lines (AFL) filed an application for temporary operating authority.4 The application was accompanied by a supporting statement of the Department of Defense (DOD). The ICC Temporary Authorities Board denied the application on the ground that the 'applicant has not established that there exists an immediate and urgent need for any of the service proposed.' Divison I of the ICC (acting as an Appellate Division) reversed the Board and granted AFL temporary authority. Protesting carriers sought review of this action in the United States District Court for the Western District of Washington. A single judge of the District Court temporarily restrained the operation of the ICC order and the ICC thereupon ordered postponement of the operation of its grant. At that time numerous petitions for reconsideration were pending before the Commission and the stay order did not direct the Commission to stay its hand with respect to them. The record was indeed not filed with the court until much later. Meanwhile, the Commission granted the petitions and reopened the proceeding to receive a further supporting statement of DOD. This took the form of the verified statement of Vincent F. Caputo, DOD Director for Transportation and Warehousing Policy, which was submitted as a purported reply to the pending petitions for reconsideration. Based upon this statement, the ICC entered a new order granting the AFL application. A single judge of the District Court restrained the operation of the new order. Thereafter a three-judge District Court conducted a full hearing on the merits.5 The ICC admitted at that stage that its first order 'may not have been based upon evidence to support its conclusion,' but argued that there was no infirmity in the new order. The three-judge court set aside both orders. 298 F.Supp. 1006. Both AFL and ICC appealed to this Court and we noted probable jurisdiction.6 396 U.S. 884, 90 S.Ct. 173, 24 L.Ed.2d 159.
4
* The first alleged error in the case is the failure of the Interstate Commerce Commission to require strict compliance with its own rules. The rules in question, unlike some of our own, do not involve 'jurisdictional' problems but only require certain information to be set forth in statements filed in support of applications of motor carriers for temporary operating authority.
5
The Caputo statement asserted that part of the tremendous volume of traffic that DOD moved in the territories involved had to be moved 'in the most expeditious manner possible,' and that, since air transport was prohibitively expensive 'except in the most extreme emergencies,' there was an 'imperative' need for the most expeditious motor carrier service. The need for this expeditious transport did not rest merely on a desire to obtain the most efficient service, but in addition rested on the need to coordinate arrival times of shipments with factory production schedules and with shiploading or airlift times for overseas shipments. The particular inadequacies in existing service were pointed out, namely, the delays inherent in joint-line service, regular-route service, and the use of single drivers. The statement did not assert that none of the existing carriers provided sufficiently expeditious service to meet DOD needs; rather it claimed that the carriers providing satisfactory service in the territories in question were so few in number that the additional services of AFL were required to meet DOD's transportation needs.
6
Concededly, the Caputo statement did not give the dates of DOD's efforts to secure service from other existing carriers or a complete list of the names and addresses of the carriers who failed or refused to provide service, as required by the terms of subsections (8) and (9), 49 CFR § 1131.2(c). Such a complete listing of this information, given the volume of traffic involved, would indeed have been a monumental undertaking.
7
The failure of the Caputo statement to provide these particular specifics did not prejudice the carriers in making precise and informed objections to AFL's application. The briefest perusal of the objecting carriers' replies, which cover some 156 pages in the printed record of these appeals, belies any such contention. Neither was the statement so devoid of information that it, along with the replies of the protesting carriers, could not support a finding that AFL's service was required to meet DOD's immediate and urgent transportation needs. In our view, the District Court exacted a standard of compliance with procedural rules that was wholly unnecessary to provide an adequate record to review the Commission's decision.
8
The Commission is entitled to a measure of discretion in administering its own procedural rules in such a manner as it deems necessary to resolve quickly and correctly urgent transportation problems. It is argued that the rules were adopted to confer important procedural benefits upon individuals; in opposition it is said the rules were intended primarily to facilitate the development of relevant information for the Commission's use in deciding applications for temporary authority.
9
We agree with the Commission that the rules were promulgated for the purpose of providing the 'necessary information' for the Commission 'to reach an informed and equitable decision' on temporary authority applications. ICC Policy Release of January 23, 1968. The Commission stated that requests for temporary authority would be turned down 'if the applications do not adequately comply with (the) * * * rules.' Ibid. (Emphasis added.). The rules were not intended primarily to confer important procedural benefits upon indivduals in the face of otherwise unfettered discretion as in Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012; nor is this a case in which an agency required by rule to exercise independent discretion has failed to do so. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681; Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778. Thus there is no reason to exempt this case from the general principle that '(i)t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party.' NLRB v. Monsanto Chemical Co., 8 Cir., 205 F.2d 763, 764. And see NLRB v. Grace Co., 8 Cir., 184 F.2d 126, 129; Sun Oil Co. v. FPC, 5 Cir. 256 F.2d 233; McKenna v. Seaton, 104 U.S.App.D.C. 50, 259 F.2d 780.
10
We deal here with the grant of temporary authority similar to that granted in Estes Express Lines v. United States, D.C., 292 F.Supp. 842, aff'd, 394 U.S. 718, 89 S.Ct. 1469, 22 L.Ed.2d 673. There the grant of temporary authority was upheld even though there may not have been literal compliance with subsections (8) and (9) of the Commission's rules. That result was in line with § 210a(a) of the Act which was designed to provide the Commission with a swift and procedurally simple ability to respond to urgent transportation needs. That functional approach is served by treating (8) and (9) not as inflexible procedural conditions but as tools to aid the Commission in exercising its discretion to meet 'an immediate and urgent need' for services where the existing service is incapable of meeting that need. Unlike some rules, the present ones are mere aids to the exercise of the agency's independent discretion.
II
11
After the Commission issued its first order, petitions for reconsideration were filed and before they were passed upon, some carriers filed suit and a single judge temporarily restrained operation of that first order. It was after that order issued and over a month before the case was argued to the three-judge court that the Commission granted the petitions for rehearing and reopened the record and received the Caputo verified statement.
12
The District Court held that the pendency of the review proceedings deprived the Commission of jurisdiction to reopen the administrative record.
13
Congress has provided as respects some regulatory systems that the agency may modify any finding up until the record is filed with a court. Such is the provision of the National Labor Relations Act, as amended, 61 Stat. 147, 29 U.S.C. § 160(d) and § 160(e), which provides that any subsequent changes in the record will be made only at the direction of the court. A similar provision is included in § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. § 45(c) and in § 11 of the Clayton Act, 38 Stat. 734, as amended, 15 U.S.C. § 21(c). And a like provision is included in the review by the courts of appeals of orders of other designated federal agencies. 28 U.S.C. § 2347(c) (1964 ed., Supp. IV). But there is no such requirement in the Interstate Commerce Act.7 It indeed empowers the Commission 'at any time to grant rehearings as to any decision, order, or requirement and to reverse, change, or modify the same.'8
14
The power of the Commission to grant rehearings is not limited or qualified by the terms of 49 U.S.C. s 17(6) or (7). Thus in § 17(6) it is said, 'Rehearing, reargument, or reconsideration may be granted if sufficient reason therefor be made to appear.' And § 17(7) provides that if after rehearing or reconsideration the original decision, order, or requirement appears 'unjust or unwarranted,' the Commission may 'reverse, change, or modify' the same. These broad powers are plainly adequate to add to the findings or firm them up as the Commission deems desirable, absent any collision or interference with the District Court.
15
Unless Congress provides otherwise, '(w)here a motion for rehearing is in fact filed there is no final action until the rehearing is denied.' Outland v. CAB, 109 U.S.App.D.C. 90, 93, 284 F.2d 224, 227. In multi-party proceedings, such as the present one, some may seek judicial review and others may seek administrative reconsideration. 'That both tribunals have jurisdiction does not mean, of course, that they will act at cross purposes.' Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U.S.App.D.C. 324, 327, 248 F.2d 646, 649. The concept 'of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit' some statutory schemes, ibid., but it does not fit this one.
16
This power of the Commission to reconsider a prior decision does not necessarily collide with the judicial power of review. For while the court properly could provide temporary relief against a Commission order, its issuance does not mean that the Commission loses all jurisdiction to complete the administrative process. It does mean that thereafter the Commission is 'without power to act inconsistently with the Court's jurisdiction.' Inland Steel Co. v. United States, 306 U.S. 153, 160, 59 S.Ct. 415, 419, 83 L.Ed. 557. When the Commission made the additional findings after its first order was stayed by the court, it did not act inconsistently with what the court had done. It did not interfere in the slightest with the court's protective order. What the Commission did came before the court was ready to hear arguments on the merits and before the record was filed with it. Moreover, the Commission in light of the District Court's stay, by express terms, directed AFL not to perform operations under the first order and made the second order effective only on further order of the Commission.9 Since by the Act the Commission never lost jurisdiction to pass on petitions for rehearing, and since the stay order did not forbid it from acting on those pending petitions, it was not necessary for the Commission to seek permission of the court to make those rulings.
17
The Commission reopened the record merely to remedy a deficiency in it before any judicial review of the merits had commenced and fully honored the stay order of the District Court. It therefore acted in full harmony with the court's jurisdiction.
18
Reversed.
19
Mr. Justice BRENNAN, whom Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
20
I would affirm the judgment of the District Court on the ground that '(e)ven if ICC had jurisdiction to reopen the ICC proceeding and to consider the Caputo verified statement, (the statement) would not meet the requirements of categories (8) and (9) of ICC Rule 49 C.F.R. 1131.2(c).' 298 F.Supp. 1006, 1011.
21
Insofar as ICC regulations emphasize the requirement of information concerning the ability of existing carriers to provide the service sought by a shipper, they implement not only the statutory standard under Interstate Commerce Act § 210a, 49 U.S.C. § 310a, but also the fundamental scheme of our national transportation policy. Ever since the enactment in 1887 of the Interstate Commerce Act, 24 Stat. 379, national policy has reflected the congressional determination that the public interest is served by regulating competition among carriers. See, e.g., Act of September 18, 1940, § 1, 54 Stat. 899, 49 U.S.C. preceding § 1. Regulation of entry into the motor transportation industry is one important feature of the pattern of regulation. American Trucking Associations, Inc. v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953); Pan-Atlantic Steamship Corp. v. Atlantic Coast Line R. Co., 353 U.S. 436, 440, 77 S.Ct. 999, 1002, 1 L.Ed.2d 963 (1957) (Burton, J., dissenting). The Motor Carrier Part of the Interstate Commerce Act was passed because 'the industry was unstable economically, dominated by ease of competitive entry and a fluid rate picture' and 'as a result * * * became overcrowded with small economic units which proved unable to satisfy even the most minimal standards of safety or financial responsibility.' Therefore, 'Congress felt compelled to require authorization for all interestate operations to preserve the motor transportation system from overcompetition.' American Trucking Associations, Inc. v. United States, supra, 344 U.S. at 312—313, 73 S.Ct. at 316. To ensure fair and effective regulation of entry, 49 U.S.C. §§ 305—309 require that entry ordinarily be authorized by the ICC only after full adversary proceedings.
22
Section 210a is a narrow exception to the basis procedural pattern of the Motor Carrier Part since it permits the Commission to grant temporary operating authority after conducting only a minimal adversary proceeding;1 under 49 CFR §§ 1131.2—1131.3 action is taken on the basis of the written application, supporting statements of shippers, and written responses and objections of protestants. But § 210a, like the statutory provision considered in United States v. Drum, 368 U.S. 370, 375, 82 S.Ct. 408, 410, 7 L.Ed.2d 360 (1962), expressly 'bespeaks congressional concern over diversions of traffic which may harm existing carriers upon whom the bulk of shippers must depend for access to market.' The section is explicit that the ICC may grant temporary operating authority only 'to a point or points or within a territory having no carrier service capable of meeting such need.' (Emphasis supplied.)
23
This congressional concern to protect existing carriers was again forcefully expressed in the 1968 amendment to § 203(b)(5) of the Act, 82 Stat. 448, 49 U.S.C. § 303(b)(5) (1964 ed., Supp. IV), which curtails substantially the authority of agricultural cooperatives like AFL to haul nonmembers' freight.
24
The Senate Committee noted that the decision of the Court of Appeals for the Ninth Circuit in Northwest Agricultural Cooperative Assn. v. ICC, 350 F.2d 252 (1965), 'and the publicity attendant thereto has, as a practical matter, been construed by some cooperatives as an invitation to substantially expand their hauling of nonfarm-related traffic for nonfarm members, and by certain groups and organizations as a device to institute unlawful transportation activities.' S.Rep.No. 1152, 90th Cong., 2d Sess., 6. The report also states, at 2:
25
'The relative decline of the Nation's common carrier system in recent years is a matter of serious concern. Several traffic studies reveal that common carriers have lost considerable traffic which they formerly handled and, at the same time, have been unable to share proportionately in the additional traffic generated by the Nation's expanding economy.
26
'This decline is essentially a result of the growth of unregulated private and exempt carriage. But it is also attributable in part to the growth of unauthorized and illegal carriage. Such illegal operators are inimical to the public interest, and if left unchecked, could ultimately undermine the common carrier system.'
27
The ICC recognizes its duty to give effect to this congressional concern for existing carriers in the provision of Rule 1131.4(b)(2) that '(a)n immediate and urgent need justifying a grant of temporary authority will be determined to exist only where it is established that there is or soon will be an immediate transportation need which reasonably cannot be met by existing carrier service.' This key determination is made upon the basis of the information supplied in response to items (8) and (9) of 49 CFR § 1131.2(c). Reasonable disclosure of whatever evidence there may be as to the inadequacy of existing service is thus of crucial importance. Disclosure makes it possible for protestants to frame specific objections addressed to concrete situations, and thereby comply with the provision of Rule 1131.3(a)(2) that protests 'must be specific as to the service which (the) protestant can and will offer * * *.' Disclosure also permits the ICC to come to an informed judgment that properly respects the congressional concern for existing carriers. It follows that details and not generalities are called for. There must be disclosure, by dates and results, of efforts made by the shipper to obtain the needed service from existing carriers, with names and specific reasons given for failure or refusal to provide the service. In a case such as this, ICC action without such information flouts the congressional concern.
28
ICC Rules 1131.2(c)(8) and (9) are not hypertechnical rules, or mere matters of housekeeping convenience. They go to the heart of the issue in a temporary authority proceeding. The significance of the rules does not depend on whether, in the Court's words, they 'confer important procedural benefits upon individuals.' but rather on the fact that they are designed to elicit information crucial to determining whether in light of congressional policies a particular factual situation warrants the grant of a temporary authority. Nor is the question in this case, as the Court assumes, whether the ICC erred in failing to require 'strict' compliance with the rules. The District Court did not hold the Commission to a standard of strict compliance, and appellees have not argued that strict compliance is required. The issue is whether there was reasonable compliance with rules that the ICC purported to apply in this case.2 The District Court found that the Caputo statement relied on by the ICC in issuing the new order 'fails to show any efforts by the Department of Defense to obtain from existing carriers the service AFL seeks to provide, or the identity of any existing carriers who failed or refused to provide the needed service and the reasons given for any such failure or refusal.' 298 F.Supp., at 1011. I reach the same conclusion from my examination of the statement.
29
AFL argues that (8) and (9) require information, not action, and that therefore a response that no effort has been made to obtain the service from other carriers is compliance with both items. However, apart from the doubtful premise that in the circumstances of this case the statute would authorize a grant of temporary operating authority without proof of such effort, the argument is foreclosed by the ICC's express finding in its second order that DOD did in fact attempt to obtain the service elsewhere.3 See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 1760, 91 L.Ed. 1995 (1947); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168—169, 83 S.Ct. 239, 245 246, 9 L.Ed.2d 207 (1962).
30
The ICC makes a different argument. It concedes that the DOD statement does not literally comply with (8) and (9) but argues that the content of the statement constitutes resonable compliance. The ICC insists, therefore, that the protesting carriers were not prejudiced by the lack of specific information. Insofar as this argument rests on the extensive explanation in the DOD statement of the advantages of single-line service, ICC's own rule refutes it. 49 CFR § 1131.4(b)(4) states:
31
'Generally, the desire of a shipper for single-line service in lieu of existing interchange or connecting-carrier service will not warrant a grant of temporary authority. A grant of temporary authority to effectuate single-line service will be authorized only when it is clearly established that the carriers providing multiple-line service are not capable of, or have failed in, meeting the reasonable immediate and urgent needs of shippers or receivers between the points or territories and in respect of the commodity or commodities involved.'
32
Thus it was not enough for the statement to assert simply that DOD desires AFL's single-line service because DOD is interested in economy and efficiency; the requirement is that the statement spell out in detail just what DOD's needs are, why these needs cannot be met by existing carriers, and why the authority applied for will enable AFL to meet the needs. Consequently, in this case reasonable compliance with (8) and (9) means at least compliance sufficient to permit an informed application of the standard set forth in § 1131.4(b)(4). In my view the DOD statement fails this test. It does not indicate specifically what needs are not being satisfied by the joint- or single-line services provided by existing certificated carriers, or how those needs were brought to the attention of the unsatisfactory carriers so as to discover whether they could improve their performance to meet DOD's needs.
33
The statement begins by noting that DOD ships a 'tremendous volume' of freight between the nine-state area and the five-state area in question, and that '(a) part of this traffic requires that it be transported from origin to destination in the most expeditious manner possible.' It adds that '(t)his defense need for speed has not been met in many, many instances by the current certified motor carriers due to a number of factors,' among which are the facts that the 'majority' of carriers offer only joint-line service, that 'virtually all' carriers use regular routes which 'often' are circuitous, and that 'some carriers use single drivers instead of two-man teams. The statement then gives three examples of inadequate service. The first two examples show that joint-line service is in these instances slower than single-line service, but the single-line service cited is currently being provided by a certificated carrier. Thus these two examples do not show that any of DOD's needs are not currently being met. The third example states that in some instances, where single-line service is available over regular routes, service over irregular routes would be faster. But the statement does not identify these instances; it does not state whether DOD brought the inadequacies to the attention of any carrier; nor does it state that to DOD's knowledge there is no way the certificated carriers could speed up their service between the points in question so as to meet DOD's reasonable 'immediate and urgent need.' This entire segment of the Caputo statement fails substantially to carry out the purpose of Rules 1131.2(c)(8) and (9) because it does not sufficiently identify what DOD regards as particular inadequacies in current service, so as to permit the protestants to make a focused response and the ICC to make a focused assessment of DOD's asserted needs.
34
The statement goes on to identify numerous points between which no known certificated carrier is authorized to provide single-line service. But for none of these specific routes does it explain why joint-line service is not or could not be made reasonably adequate for DOD's needs.
35
The statement next refers to particular situations calling for reliable delivery times, and examples of how present service is unreliable. Again, there is a fatal lack of specific information showing that present service is inadequate. The statement explains that it is often necessary to coordinate arrival of inbound shipments with production schedules at factories. As an example, it cites a situation in which only one of the currently certificated carriers has proven able to meet the delivery schedules, even though other carriers were made aware of the need for 'timed' deliveries. The one satisfactory carrier cannot transport the entire load. However, the statement does not identify the carriers whose service has been unsatisfactory; it does not say what efforts were made to have them improve their service; and it does not say why they have not conformed to DOD requirements. The same is true of the example of present carriers' failure to make deliveries on time for transshipment outside the United States. It is also claimed that current carriers sometimes lack authority to formulate truckload shipments of diverse commodities, but no examples whatever are cited.
36
Finally, the statement gives five examples of outstanding service by AFL, and states that in each case DOD experience shows that joint-line carriers could not have met the Department's needs. Again, the unsatisfactory carriers are not identified; their reasons for not improving are not reported; and the 'experience' on which DOD bases its assessment of them is not specified.
37
In sum, the DOD statement fails to supply that concrete evidence of the inability of particular existing carriers to provide the needed service that would enable protestants and ICC to make an informed assessment of AFL's application. Of course, DOD was not called upon to supply the specifics of innumerable instances of inadequate or unavailable service or of every effort to obtain improved service. However, the congressional concern expressed in the statutory limitation demanded that ICC be given at least enough specifics concerning inadequate or unavailable service and efforts to obtain better service so that protestants would have an opportunity for informed rebuttal and ICC the basis for an informed determination. It is of course irrelevant that DOD is the Nation's largest shipper and that its freight consists almost entirely of defense needs. ICC has held that '(w)here necessary facts are lacking' the Government is in no better position than any other shipper. Riss & Co., Inc., Extension—Explosives, 64 M.C.C. 299, 328 (1955), National Freight, Inc., Extension—Commodities in Bulk, 84 M.C.C. 403, 407 (1961).
38
The Court purports to find in Estes Express Lines v. United States, 292 F.Supp. 842 (D.C.E.D.Va.1968), aff'd per curiam, 394 U.S. 718, 89 S.Ct. 1469, 22 L.Ed.2d 673 (1969), some support for its glossing over the inadequacies in the DOD statement. In that case an ICC grant of temporary authority was sustained without a showing that efforts had been made to establish whether any other carrier was able to meet the asserted need for the applicant's services. But the differences between that case and the present one are instructive. There the application was supported by statements of 11 separate shippers, each of whom reported that he had previously obtained the service from the applicant, and thus had never sought it elsewhere and, further, knew of no other carrier with the special characteristics of the applicant. The application covered a single route between the District of Columbia and Richmond, Virginia, and thus it could reasonably have been found that protestants were not prejudiced by any lack of information in the supporting statements. In striking contrast, the authority sought by AFL covers transportation between all points in a nine-state area and all points in a five-state area. In my view, where an applicant seeks temporary authority as broad as this, reasonable compliance with Rules 1131.2(c)(8) and (9) requires more information than DOD provided. Accordingly, I would affirm.
1
Section 210a(a) provides in part:
'To enable the provision of service for which there is an immediate and urgent need to a point or points or within a territory having no carrier service capable of meeting such need, the Commission may, in its discretion and without hearings or other proceedings, grant temporary authority for such service by a common carrier or a contract carrier by motor vehicle, as the case may be. * * *'
2
49 CFR § 1131.4(b)(2) defines the statutory term 'immediate and urgent need' as follows:
'An immediate and urgent need justifying a grant of temporary authority will be determined to exist only where it is established that there is or soon will be an immediate transportation need which reasonably cannot be met by existing carrier service. Such a showing may involve a new or relocated plan, different method of distribution, new or unusual commodities, an origin or destination not presently served by carriers, a discontinuance of existing service, failure of existing carriers to provide service, or comparable situations which require new motor carrier service before an application for permanent authority can be filed and processed.'
3
See 49 CFR § 1131.2(c).
4
AFL is a federation of agricultural marketing cooperatives created in 1964 to provide transportation for its members. By virtue of § 203(b)(5) of the Interstate Commerce Act, 54 Stat. 921, as amended, 49 U.S.C. § 303(b)(5), AFL may transport freight for its members without obtaining a certificate of convenience and necessity from the ICC. In 1965 § 203(b)(5) was construed to exempt from the certification requirement any freight transportation by an agricultural cooperative for shippers other than its own members to the extent that such nonmember transportation is incidental and necessary to its principal transportation activities. See Northwest Agricultural Cooperative Assn. v. ICC, 9 Cir., 350 F.2d 252. The next year, AFL began transporting freight for DOD. In 1968—1969 AFL's ability to continue serving DOD was restricted by two events. First, certain competing carriers obtaned injunctions prohibiting AFL from making two consecutive movements for DOD and from transporting freight for any nonmember except when going to pick up or returning from delivery of, a member's freight. Munitions Carriers Conference, Inc. v. American Farm Lines, 10 Cir., 415 F.2d 747. Second, § 203(b)(5) was amended to restrict the exemption for agricultural cooperatives to those whose transportation for nonmembers does not exceed 15% of their total annual interstate transportation, measured by tonnage. See 82 Stat. 448, 49 U.S.C. § 303(b)(5) (1964 ed., Supp. IV). AFL had transported 74,155,685 pounds for DOD between December 1966 and June 1968, and, in an effort to continue providing this service, applied to the ICC in May 1968 for temporary operating authority. The authority sought was to transport general commodities, including Class A and B explosives moving on government bills of lading over irregular routes between points in Kentucky, Indiana, Illinois, Missouri, Arkansas, Louisiana, Texas, Oklahoma, and Kansas on the one hand, and points in Washington, California, Nevada, Utah, and Arizona on the other.
AFL has applied to the ICC for a certificate of permanent authority. It was estimated at oral argument that final action on this application will not be taken by ICC before mid-1971. Meanwhile the ICC may extend the temporary authority. Pan-Atlantic Steamship Corp. v. Atlantic Coast Line R. Co., 353 U.S. 436, 77 S.Ct. 999, 1 L.Ed.2d 963.
5
The precise chronology of these events is shown in n. 9, infra.
6
ICC is not appealing from the District Court's decision setting aside the first order.
7
It was once proposed that the same requirement be written into the law respecting those orders of the Commission reviewed by the courts of appeal as distinguished from the three-judge district courts. See H.R.Rep.No.1619, 80th Cong., 2d Sess., 4. But the ICC was deleted from the measure. Id., at 1. And the Act as approved covered only other designated agencies. 28 U.S.C. § 2342 (1964 ed., Supp. IV).
8
See Baldwin v. Scott County Milling Co., 307 U.S. 478, 484, 59 S.Ct. 943, 83 L.Ed. 1409.
9
The District Court's stay was issued October 2, 1968. On October 9, the Commission stayed the effective date of its first order 'until further order of the Commission.' On November 5, 1968, the Commission reopened the proceeding before it and directed AFL, in light of the District Court's order, 'not to perform' any operations under its first order 'until further order of the Commission.' On November 12, 1968, the Commission advised the District Court of its action. On December 20, 1968, the Commission entered its second other which authorized commencement of service by AFL only on further notice by the ICC. On December 31, 1968, a supplemental complaint was filed in the District Court challenging the Commission's second order. On January 6, 1969, a single judge of the District Court stayed that order. On March 26, 1969, the District Court entered its judgment now being reviewed.
1
In some 'emergency' situations temporary authority may be granted without the notice to protestants otherwise required by ICC rules. See 49 CFR § 1131.2(d). That provision is not at issue in this case.
2
The ICC makes no claim that it did not apply its regulations in this case; the insistence is that DOD's supporting statement satisfied the rules. There is, therefore, no occasion to consider the question mooted in the briefs whether, in light of the principle applied in Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957), the ICC could depart from its own rules. See also Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963); Bridges v. Wixon, 326 U.S. 135, 153, 65 S.Ct. 1443, 1452, 89 L.Ed. 2103 (1945).
3
The ICC expressly found '(t)hat (DOD) has attempted but has been unable to obtain the required and necessary type of service and knows of no carrier in a position to meet its needs.'
| 78
|
397 U.S. 564
90 S.Ct. 1312
25 L.Ed.2d 570
Donald BACHELLAR et al., Petitioners,v.State of MARYLAND.
No. 729.
Argued March 2, 1970.
Decided April 20, 1970.
Anthony G. Amsterdam, Stanford, Cal., for petitioners.
H. Edgar Lentz, Baltimore, Md., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
A jury in Baltimore City Criminal Court convicted petitioners of violating Md.Ann.Code, Art. 27, § 123 (1967 Repl. Vol.),1 which prohibits 'acting in a disorderly manner to the disturbance of the public peace, upon any public street * * * in any (Maryland) city * * *.'2 The prosecution arose out of a demonstration protesting the Vietnam war which was staged between 3 and shortly after 5 o'clock on the afternoon of March 28, 1966, in front of a United States Army recruiting station located on a downtown Baltimore street. The Maryland Court of Special Appeals rejected petitioners' contention that their conduct was constitutionally protected under the First and Fourteenth Amendments and affirmed their convictions. 3 Md.App. 626, 240 A.2d 623 (1968). The Court of Appeals of Maryland denied certiorari in an unreported order. We granted certiorari, 396 U.S. 816, 90 S.Ct. 109, 24 L.Ed.2d 68 (1969). We reverse.
2
The trial judge instructed the jury that there were alternative grounds upon which petitioners might be found guilty of violating § 123. The judge charged, first, that a guilty verdict might be returned if the jury found that petitioners had engaged in 'the doing or saving or both of that which offends, disturbs, incites or tends to incite a number of people gathered in the same area.' The judge also told the jury that '(a) refusal to obey a policeman's command to move on when not to do so may endanger the public peace, may amount to disorderly conduct.'3 So instructed, the jury returned a general verdict of guilty against each of the petitioners.
3
Since petitioners argue that their conduct was constitutionally protected, we have examined the record for ourselves. When 'a claim of constitutionally protected right is involved, it 'remains our duty * * * to make an independent examination of the whole record." Cox v. Louisiana (I), 379 U.S. 536, 545 n. 8, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). We shall discuss first the factual situation that existed until shortly before 5 o'clock on the afternoon of the demonstration, since the pattern of events changed after that time. There is general agreement regarding the nature of the events during the initial period.
4
Baltimore law enforcement authorities had advance notice of the demonstration, and a dozen or more police officers and some United States marshals were on hand when approximately 15 protesters began peacefully to march in a circle on the sidewalk in front of the station. The marchers carried or more signs bearing such legends as: 'Peasant Emancipation, Not Escalation,' 'Make Love not War,' 'Stop in the Name of Love,' and 'Why are We in Viet Nam?' The number of protesters increased to between 30 and 40 before the demonstration ended. A crowd of onlookers gathered nearby and across the street. From time to time some of the petitioners and other marchers left the circle and distributed leaflets among and talked to persons in the crowd. The lieutenant in charge of the police detail testified that he 'overheard' some of the marchers debate with members of the crowd about 'the Viet Cong situation,' and that a few in the crowd resented the protest; '(o)ne particular one objected very much to receiving the circular.' However, the lieutenant did not think that the situation constituted a disturbance of the peace. He testified that '(a)s long as the peace was not disturbed I wasn't doing anything about it.'
5
Clearly the wording of the placards was not within that small class of 'fighting words' that, under Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 770, 86 L.Ed. 1031 (1942), are 'likely to provoke the average person to retaliation, and thereby cause a breach of the peace,' nor is there any evidence that the demonstrators' remarks to the crowd constituted 'fighting words.' Any shock effect caused by the placards, remarks and peaceful marching must be attributed to the content of the ideas being expressed, or to the onlookers' dislike of demonstrations as a means of expressing dissent. But '(i)t 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,' Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1366, 22 L.Ed.2d 572 (1969); see also Cox v. Louisiana (I), supra; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), or simply because bystanders object to peaceful and orderly demonstrations. Plainly nothing that occurred during this period could constitutionally be the ground for conviction under § 123. Indeed, the State makes no claim that § 123 was violated then.
6
We turn now to the events that occurred shortly before and after 5 o'clock. The petitioners had left the marchers after half past 3 to enter the recruiting station. There they had attempted to persuade the sergeant in charge to permit them to display their antiwar materials in the station or in its window fronting on the sidewalk. The sergeant had told them that Army regulations forbade him to grant such permission. The six thereupon staged a sit-in on chairs and a couch in the station.4 A few minutes before 5 o'clock the sergeant asked them to leave, as he wanted to close the station for the day. When petitioners refused, the sergeant called on United States marshals who were present in the station to remove them. After deputizing several police officers to help, the marshals undertook to eject the petitioners.5
7
There is irreconcilable conflict in the evidence as to what next occurred. The prosecution's witnesses testified that the marshals and the police officers 'escorted' the petitioners outside, and that the petitioners thereupon sat or lay down, 'blocking free passage of the sidewalk.' The police lieutenant in charge stated that he then took over and three times ordered the petitioners to get up and leave. He testified that when they remained sitting or lying down, he had each of them picked up bodily and removed to a patrol wagon. In sharp contrast, defense witnesses said that each petitioner was thrown bodily out the door of the station and landed on his back, that petitioners were not positioned so as to block the sidewalk completely, and that no police command was given to them to move away; on the contrary, that as some of them struggled to get to their feet, they were held down by the police officers until they were picked up and thrown into the patrol wagon. The evidence is clear, however, that while petitioners were on the sidewalk, they began to sing 'We Shall Overcome' and that they were surrounded by other demonstrators carrying antiwar placards. Thus, petitioners remained obvious participants in the demonstration even after their expulsion from the recruiting station.6 A crowd of 50—150 people, including the demonstrators, was in the area during this period.
8
The reaction of the onlookers to these events was substantially the same as that to the earlier events of the afternoon. The police lieutenant added only that two uniformed marines in the crowd appeared angry and that a few other bystanders 'were debating back and forth about Bomb Hanoi and different things and I had to be out there to protect these people because they wouldn't leave.' Earlier too, however, some of the crowd had taken exception to the petitioners' protest against the Vietnam war.
9
On this evidence, in light of the instructions given by the trial judge, the jury could have rested its verdict on any of a number of grounds. The jurors may have found that petitioners refused 'to obey a policeman's command to move on when not to do so (might have endangered) the public peace.' Or they may have relied on a finding that petitioners deliberately obstructed the sidewalk, thus offending, disturbing, and inciting the bystanders.7 Or the jurors may have credited petitioners' testimony that they were thrown to the sidewalk by the police and held there, and yet still have found them guilty of violating § 123 because their anti-Vietnam protest amounted to 'the doing or saying * * * of that which offends, disturbs, incites or tends to incite a number of people gathered in the same area.' Thus, on this record, we find that petitioners may have been found guilty of violating § 123 simply because they advocated unpopular ideas. Since conviction on this ground would violate the Constitution, it is our duty to set aside petitioners' convictions.
10
Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), is the controlling authority. There the jury returned a general verdict of guilty against an appellant charged under a California statute marking it an offense publicly to display a red flag (a) 'as a sign, symbol or emblem of opposition to organized government,' (b) 'as an invitation or stimulus to anarchistic action,' or (c) 'as an aid to propaganda that is and was of a seditious character.' Id., at 361, 51 S.Ct., at 533. This Court held that clause (a) was unconstitutional as possibly punishing peaceful and orderly opposition to government by legal means and within constitutional limitations. The Court held that, even though the other two statutory grounds were severable and constitutional, the conviction had to be reversed, because the verdict 'did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury was instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause. * * * (T)he necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.' 283 U.S., at 368, 51 S.Ct., at 535. See also Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942); Terminiello v. Chicago, supra; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); Street v. New York, supra.
11
On this record, if the jury believed the State's evidence, petitioners' convictions could constitutionally have rested on a finding that they sat or lay across a public sidewalk with the intent of fully blocking passage along it, or that they refused to obey police commands to stop obstructing the sidewalk in this manner and move on. See, e.g., Cox v. Louisiana (I), supra, 379 U.S. at 554—555, 85 S.Ct., at 464—465; Shuttlesworth v. Birmingham, 382 U.S. 87, 90—91, 86 S.Ct. 211, 213—214, 15 L.Ed.2d 176 (1965). It is impossible to say, however, that either of these grounds was the basis for the verdict. On the contrary, so far as we can tell, it is equally likely that the verdict resulted 'merely because (petitioners' views about Vietnam were) themselves offensive to some of their hearers.' Street v. New York, supra, 394 U.S., at 592, 89 S.Ct. at 1366. Thus, since petitioners' convictions may have rested on an unconstitutional ground, they must be set aside.
12
The judgment of the Maryland Court of Special Appeals is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
13
Judgment reversed and case remanded.
1
The trial in the Criminal Court was de novo upon appeal from a conviction in the Municipal Court of Baltimore. The Criminal Court judge sentenced each petitioner to 60 days in jail and a $50 fine.
2
The statute was amended in 1968 but without change in the operative language involved in this case. See Md.Ann. Code, Art. 27, § 123(c) (Supp.1969).
3
Both elements of the instruction were based on the Maryland Court of Appeals' construction of § 123 in Drews v. Maryland, 224 Md. 186, 192, 167 A.2d 341, 343—344 (1961), vacated and remanded on other grounds, 378 U.S. 547, 84 S.Ct. 1900, 12 L.Ed.2d 1032 (1964), reaffirmed on remand, 236 Md. 349, 204 A.2d 64 (1964), appeal dismissed and cert. denied, 381 U.S. 421, 85 S.Ct. 1576, 14 L.Ed.2d 693 (1965). The instruction was 'that disorderly conduct is the doing or saying or both of that which offends, disturbs, incites or tends to incite a number of people gathered in the same area. It is conduct of such nature as to affect the peace and quiet of persons who may witness it and who may be disturbed or provoked to resentment because of it. A refusal to obey a policeman's command to move on when not to do so may endanger the public peace, may amount to disorderly conduct.'
The trial judge refused to grant petitioners' request that the jury be charged to disregard any anger of onlookers that arose from their disagreement with petitioners' expressed views about Vietnam. For example, the judge refused to instruct the jury that 'if the only threat of public disturbance arising from the actions of these defendants was a threat that arose from the anger of others who were made angry by their disagreement with the defendants' expressed views concerning Viet Nam, or American involvement in Viet Nam, you must acquit these defendants. And if you have a reasonable doubt whether the anger of those other persons was occasioned by their disagreement with defendants' views on Viet Nam, rather than by the conduct of the defendants in sitting or staying on the street, you must acquit these defendants.'
4
Petitioners' conduct in the station is not at issue in this case, since the State did not prosecute them for their conduct in that place.
5
The local police officers were deputized as marshals because their local police powers did not extend to the federally operated recruiting station.
6
The defense evidence indicated that petitioners were on the sidewalk after their removal from the recruiting station for only five minutes. A prosecution witness testified that they were there for 15 or 20 minutes.
7
Maryland states in its brief, at 41—42, that '(o)bstructing the sidewalk had the legal effect under these circumstances of not only constituting a violation of * * * § 123 * * * but also of Article 27, § 121 of the Maryland Code, obstructing free passage.' Had the State wished to ensure a jury finding on the obstruction question, it could have prosecuted petitioners under § 121, which specifically punishes '(a)ny person who shall wilfully obstruct or hinder the free passage of persons passing along or by any public street or highway * * *.'
| 23
|
25 L.Ed.2d 585
90 S.Ct. 1307
397 U.S. 580
UNITED STATES, Petitioner,v.HILTON HOTELS CORPORATION.
No. 528.
Argued Feb. 26, 1970.
Decided April 20, 1970.
Johnnie McK. Walters, Washington, D.C., for petitioner.
Milton A. Levenfeld, Chicago, Ill., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This is the companion case to Wood-ward v. Commissioner of Internal Revenue, 397 U.S. 572, 90 S.Ct. 1302, 25 L.Ed.2d 577, and presents a similar question involving the tax treatment of appraisal litigation expenses.
2
In 1953 taxpayer Hilton Hotels Corporation, which owned close to 90% of the common shares of the Hotel Waldorf-Astoria Corporation, determined to merge the two companies. Hilton retained a consulting firm to prepare a merger study to determine a fair rate of exchange between Hilton stock and Waldorf stock. After this study was completed, on November 12, 1953, Hilton and Waldorf entered into a merger agreement under which Hilton would be the surviving corporation, and 1.25 shares of Hilton stock would be offered for each outstanding Waldorf share not already held by Hilton. On December 28, Hilton voted its Waldorf stock to approve the merger by the requisite majority. Prior to the vote, the holders of about 6% of the Waldorf shares had filed with Waldorf their written objections to the merger, and demanded payment for their stock, pursuant to § 91 of the New York Stock Corporation Law, McKinney's Consol.Laws, c. 59.
3
On December 31, 1953, Hilton filed the merger agreement and the certificate of consolidation with the Secretary of State of New York, thus consummating the merger under New York law. On January 7, 1954, Hilton made a cash offer to the dissenting Waldorf shareholders, which they rejected. The dissenters then began appraisal proceedings in the New York courts, pursuant to § 21 of the New York Stock Corporation Law.
4
Between January and May 1954, Hilton asked its consulting firm to value the Waldorf stock as of December 27, 1953, the day prior to the Waldorf shareholders' vote approving the merger. Hilton also obtained the services of lawyers, and other professional services, in connection with the appraisal litigation. The appraisal proceeding was finally terminated in June 1955, when the state court approved a settlement agreed to by the parties.
5
Hilton deducted the fees paid to the consulting firm, and the cost of legal and other professional services arising out of the appraisal proceeding, as ordinary and necessary business expenses under § 162 of the Internal Revenue Code of 1954, 26 U.S.C. § 162. The Commissioner of Internal Revenue disallowed the deduction on the ground that the payments were capital expenditures. Hilton paid the tax and sued for a refund in the District Court. In the course of that suit, Hilton conceded, and the court held, that the payments to the consulting firm for the pre-merger determination of fair value were a non-deductible capital outlay. But the District Court held that the fees and costs related to the post-merger appraisal proceeding itself were deductible. 285 F.Supp. 617 (D.C.N.D.Ill.1968). The Court of Appeals affirmed, 410 F.2d 194 (C.A.7th Cir.), and we granted certiorari, 396 U.S. 954, 90 S.Ct. 426, 24 L.Ed.2d 419 (1969). We reverse.
6
The Court of Appeals recognized that expenses of acquiring capital assets are capital expenditures for tax purposes. However, the court believed that the 'primary purpose' test of Rassenfoss v. Commissioner of Internal Revenue, 158 F.2d 764 (C.A.7th Cir. 1946), should be applied to determine whether the appraisal proceeding was sufficiently related to the merger or the stock acquisition. Noting that 'the proceeding was not necessary to the consummation of the merger nor did it function primarily to permit the acquisition of the objecting holders' shares,' the court found that 'the paramount purpose of the appraisal proceeding was to determine the fair value of the dissenting stockholders' shares in Waldorf.' 410 F.2d, at 197.
7
As we held in Woodward, supra the expenses of litigation that arise out of the acquisition of a capital asset are capital expenses, quite apart from whether the taxpayer's purpose in incurring them is the defense or perfection of title to property. The chief distinction between this case and Woodward is that under New York law title to the dissenters' stock passed to Waldorf as soon as they formally registered their dissent, placing them in the relationship of creditors of the company for the fair value of the stock,1 whereas under Iowa law passage of title was delayed until after the price was settled in the appraisal proceeding.2
8
This is a distinction without a difference. The functional nature of the appraisal remedy as a forced purchase of the dissenters' stock is the same, whether title passes before or after the price is determined. Determination and payment of a price is no less an element of an acquisition by purchase than is the passage of title to the property. In both Woodward and this case, the expenses were incurred in determining what that price should be, by litigation rather than by negotiation. The whole process of acquisition required both legal operations—fixing the price, and conveying title to the property—and we cannot see why the order in which those operations occurred under applicable state law should make any difference in the characterization of the expenses incurred for the particular federal tax purposes involved here.
9
Hilton also argues that the appraisal costs cannot be considered as its own capital expenditures, since Waldorf acquired the shares (on December 28) before the merger (on December 31). This argument would carry too far. It is true that title to the dissenters' stock passed to Waldorf before that corporation was merged into the surviving corporation, Hilton. But the stock was never paid for by Waldorf; rather Hilton assumed all of Waldorf's debts under the merger agreement, and finally paid for the stock after the appraisal proceeding was settled. If Waldorf's acquisition of the minority stock interest was not a capital transaction of Hilton's, then Hilton's payment for the stock itself, as well as the expenditures made in fixing that price, would lose its character as a capital expenditure of Hilton's. But Hilton concedes that the payment for the stock was a capital expenditure on its part. The debts that Hilton inherited from Waldorf retained their capital or ordinary character through the merger, and so did the expenditues for fixing the amount of those debts.
10
In short, the distinctions urged between this case and Woodward are not availing. The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court with directions to dismiss the complaint.
11
It is so ordered.
12
Reversed and remanded.
1
Section 91, subd. 9 of the New York Stock Corporation Law provides that a corporate consolidation becomes effective upon the filing of the requisite certificate. Section 21, subd. 6, of the same law provides that as of the time of a merger vote, a dissenting shareholder loses all rights as such, except the right to receive payment for the value of his shares.
2
Iowa Code § 491.25 (1966) provides that majority shareholders voting for renewal 'shall have three years from the date such action for renewal was taken in which to purchase and pay for the stock voting against such renewal * * *.' There is no intimation in the statute itself, nor in Iowa cases construing it cited by petitioners in Woodward, supra, that dissenters lose any of their rights as shareholders, or that title passes to the majority shareholders prior to the actual purchase of the dissenters' shares.
| 1112
|
397 U.S. 663
90 S.Ct. 1408
25 L.Ed.2d 644
Shirley LAMPTON et al.v.Garland L. BONIN et al.
No. 1112, Misc.
Supreme Court of the United States
April 27, 1970
Rehearing Denied June 1, 1970.
See 398 U.S. 945, 90 S.Ct. 1849.
Jeffrey B. Schwartz and Richard S. Buckley, for appellants.
Jack P. F. Gremillion, Atty. Gen. of Louisiana, and William P. Schuler and Dorothy D. Wolbrette, Asst. Attys. Gen., for appellees.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis is granted and the judgment of the United States District Court is vacated. The case is remanded to that court for further consideration in light of Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442.
2
THE CHIEF JUSTICE and Mr. Justice BLACK dissent for the reasons set forth in Mr. Justice Black's dissenting opinion in Rosado v. Wyman, 397 U.S. 430, 90 S.Ct. 1227, 35 L.Ed.2d 465.
| 12
|
397 U.S. 598
90 S.Ct. 1316
25 L.Ed.2d 600
Julia TOOAHNIPPAH (GOOMBI) et al., Petitioners,v.Walter J. HICKEL, Secretary of the Interior, et al.
No. 300.
Argued Jan. 14, 1970.
Decided April 27, 1970.
Omer Luellen, Hinton, Okl., for petitioners.
Richard B. Stone, Dept. of Justice, Washington, D.C., for respondent, Secretary of the Interior, pro hac vice, by special leave of Court.
Houston Bus Hill, Oklahoma City, Okl., for respondent, Dorita High horse.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted the writ to review the action of the Court of Appeals holding that the decision of the Regional Solicitor, acting for the Secretary of the Interior, disapproving the will of a Comanche Indian constitutes final and unreviewable agency action. We conclude that such decision is subject to judicial review.1
2
George Chahsenah, a Comanche Indian, died on October 11, 1963, unmarried and without a surviving father, mother, brother, or sister. His estate consisted of interests in three Comanche allotments situated in Oklahoma under the jurisdiction of the Bureau of Indian Affairs, Department of the Interior.2 Shortly after Chahsenah's death, the value of those interests was fixed at $34,867. On March 14, 1963, Chahsenah had made a will devising and bequeathing his estate to a niece, Viola Atewooftakewa Tate, and her three children, petitioners herein. Chahsenah had resided with this niece a considerable portion of the later years of his life. His will made no mention of a surviving daughter, but stated that he was leaving nothing to his 'heirs at law * * * for the reason that they have shown no interest in me.'
3
The beneficiaries under the will sought to have it approved by the Secretary of the Interior, as required by 25 U.S.C. § 373.3 A hearing was had before an Examiner of Interitance, Office of the Solicitor, Department of the Interior. Dorita High Horse, claiming as sole surviving issue, and certain nieces and nephews of the testator contended that the will was not entitled to departmental approval, arguing that due to the effects of chronic alcoholism, cirrhosis of the liver, and diabetes, George Chahsenah was incompetent to make a will. Pursuant to the provisions of § 5 of the Act of February 28, 1891, 26 Stat. 795, 25 U.S.C. § 371, if Chahsenah had died intestate his putative daughter, Dorita High Horse, would have been an heir at law, whether or not her parents were married.
4
The Examiner found that the will of March 14, 1963, drawn on a form printed by the Department of the Interior for that purpose, was Chahsenah's last will and testament and that it had been prepared by an attorney employed by the Department of the Interior who advised the testator concerning the will. He also found that at the time the will was made the attorney and the witnesses executed an affidavit attesting that the will was properly made and executed, and that the decedent was of sound and disposing mind and memory and not acting under undue influence, fraud, duress, or coercion at the time of its execution. The Examiner found that Dorita High Horse was George Chahsenah's illegitimate daughter and his sole heir at law. He concluded, however, that the evidence presented by the contestants was not sufficient to outweigh the presumption of correctness attaching to a properly executed will, in addition to which were the unimpeached statements of the draftsman and witnesses that Chahsenah possessed testamentary capacity. The Examiner concluded that the testator's failure to provide for Dorita High Horse was not unnatural since there was no evidence of any close relationship between the two during any part of their lives. The will was approved and distribution in accordance with its provisions was ordered.
5
A petition for rehearing, contending that the evidence did not support the Examiner's conclusion regarding the decedent's competency, was denied. An appeal was taken to the Regional Solicitor, Department of the Interior, an officer having authority to make a final decision in the matter on behalf of the Secretary. He concluded that although the evidence supported the Examiner's finding that decedent's will met the technical requirements for a valid testamentary instrument, 25 U.S.C. § 373 vested in the Secretary broad authority to approve or disapprove the will. In exercising that discretion, the Regional Solicitor viewed his authority as requiring him to examine all the circumstances to determine whether 'approval will most nearly achieve just and equitable treatment of the beneficiaries thereunder and the decedent's heirs-at-law.' Under this standard he concluded that the decedent, an unemployed person addicted to alcohol4 and living on the income he received from his inherited land allotments, had not fulfilled his obligations to his illegitimate daughter and had ceased cohabiting with her mother shortly before Dorita's birth, thus failing to provide her with a 'normal home life during her childhood.' The Reginal Solicitor concluded that although the daughter was a married adult and could not legally claim support monies from her father or his estate, 'it is inappropriate that the Secretary perpetuate this utter disregard for the daughter's welfare * * *.' Accordingly, he found that under the circumstances the Examiner's approval of the will was not a reasonable exercise of the discretioanry responsibility vested in the Secretary. He thereupon set side the Examiner's action, disapproved the will,5 and ordered the entire estate distributed by intestate succession to Dorita High Horse as sole heir at law.
6
The beneficiaries under the will brought an action against the Secretary of the Interior in the United States District Court for the Western District of Oklahoma contending that the action of the Regional Solicitor was arbitrary, capricious, and an abuse of discretion, and that it exceeded the authority conferred upon the Secretary by 25 U.S.C. § 373. The plaintiffs sought to have the District Court review the Regional Solicitor's action in accord with the standards of the Administrative Procedure Act, 5 U.S.C. §§ 701—706 (1964 ed., Supp. IV), arguing that the District Court had jurisdiction over the matter by virtue of either that Act6 or 28 U.S.C. § 1361.7 Dorita High Horse was allowed to intervene as a party defendant. Both the Secretary and Dorita High Horse moved for summary judgment, contending that the action of the Regional Solicitor was within the authority conferred upon the Secretary, and, as such, is made final and unreviewable by 25 U.S.C. § 373. They also contended that the Regional Solicitor's decision was in accordance with the evidence, was not arbitrary or capricious, and did not involve an abuse of discretion. Although the Secretary conceded that the District Court had jurisdiction to review the action of the Regional Solicitor, Dorita High Horse contended that neither the Administrative Procedure Act nor 28 U.S.C. § 1361 allowed judicial review.
7
The District Court held that while there was some question as to whether jurisdiction existed under the Administrative Procedure Act, 28 U.S.C. § 1361 did provide a basis for jurisdiction, 'in order to effectuate the purposes of the Administrative Procedure Act by providing the review function which the act contemplates.'8 Atewooftakewa v. Udall, 277 F.Supp. 464, 465 n. 1. The court then reasoned that, unlike § 1 of the Act of June 25, 1910, 36 Stat. 855, 25 U.S.C. § 372,9 § 2, 36 Stat. 856, as amended by the Act of February 14, 1913, 37 Stat. 678, 25 U.S.C. § 373, contains no language conferring unreviewable finality upon a decision of the Secretary approving or disapproving an Indian's will. The District Judge concluded that the Administrative Procedure Act, 5 U.S.C. § 701 (1964 ed., Supp. IV), does not preclude judicial review of the Regional Solicitor's action. On the merits he held that Congress had conferred upon adult Indians the right to make a will, limited only by the requirement that it be approved by the Secretary.
8
The District Court held that the review powers of the Secretary are not so broad as to defeat a plainly expressed and rationally based distribution by one who possessed testamentary capacity. The court concluded that the Regional Solicitor incorrectly viewed the Secretary's powers as authorizing disapproval of any will thought unwise or unequitable, and stated: 'Congress has conferred the right to make a will upon the Indian and not upon the Secretary. The Secretary can no more use his approval powers to substitute his will for that of the Indian than he can dictate its terms.' 277 F.Supp., at 468. The case was remanded to the Secretary with directions to approve the will and distribute the estate in accordance with its provisions.
9
On appeal the Court of Appeals for the Tenth Circuit reversed the District Court, holding that the Secretary's action under 25 U.S.C. § 373 was unreviewable.10
10
Two basic questions are presented here: First, whether the Secretary's action is subject to judicial review; and second, if judicial review is available, whether on this record the Secretary's decision on the validity of the will was within the scope of authority vested in him under 25 U.S.C. § 373.
11
* The Administrative Procedure Act contemplates judicial review of agency action 'except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. * * *' 5 U.S.C. § 701 (1964 ed., Supp. IV). Earlier in this Term in City of Chicago v. United States, 396 U.S. 162, 164, 90 S.Ct. 309, 311, 24 L.Ed.2d 340 (1969), relying on Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1510, 18 L.Ed.2d 681 (1967), we noted that '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.'11 Section 2 of the Act of 1910 contains no language displaying a congressional intention to make unreviewable the Secretary's approval or disapproval of an Indian's will.
12
The respondents argue that we should follow the course taken by the Court of Appeals, reading into § 2 the language of the first section of the 1910 Act, which declares that the Secretary's decisions ascertaining the legal heirs of deceased Indians are 'final and conclusive.' Cf. First Moon v. White Tail, 270 U.S. 243, 244, 46 S.Ct. 246, 70 L.Ed. 565 (1926). The respondents contend that §§ 1 and 2 of the 1910 Act must be read in pari materia because both deal with the Secretary's power over the devolution of lands held in trust by the United States and both vest in the Secretary broad managerial and supervisory power over allotted lands.
13
We find this unpersuasive. First, while § 1 of the 1910 Act applies only to Indians possessed of allotments, § 2, as amended in 1913, also applies to all Indians having individual Indian monies or other properties held in trust of the United States. Thus, the coverage of these sections is not identical. Second, the 1910 Act is composed of some 33 sections, virtually all of which deal with the Secretary's managerial and supervisory powers over Indian lands. Many of these provisions vest in the Secretary discretionary authority. For example, § 3 of the Act permits transfers of beneficial ownership of allotments by providing that allottees can relinquish allotments to their unallotted children if the Secretary 'in his discretion' approves. 25 U.S.C. § 408. Yet neither this section nor any of the others in the enactment contains language cloaking the Secretary's actions with immunity from judicial review. If the respondents' position were accepted and we implied the finality language of § 1 into § 2, it would be difficult to justify on a reading of the statute a later refusal to extend the 'final and conclusive' clause to other sections, such as § 3. Congress quite plainly stated that the Secretary's action under § 1 was not to be subject to judicial scrutiny. Similar language in § 2 would have made clear that Congress desired to work a like result under that section. Cf. City of Chicago v. United States, supra.
II
14
The Regional Solicitor accepted the findings and conclusions of the Examiner of Inheritance that the testator had testamentary capacity when he executed the instrument, that he was not unduly influenced in its execution, and that it was executed in compliance with the prescribed formalities. This removes from the case before us all questions except the scope of the Secretary's power to grant or withhold approval of the instrument under 25 U.S.C. § 373.
15
The Regional Solicitor's view of the scope of the Secretary's power is reflected in his statement:
16
'When a purported will is submitted for approval and it has been determined that it meets the technical requirements for a valid will, further consideration must be given before approving or disapproving it to determine whether approval will most nearly achieve just and equitable treatment of the beneficiaries thereunder and the decedent's heirs-at-law.' App. 84—85. (Emphasis added.)
17
The basis of the Regional Solicitor's action emerges most clearly from his reliance on the legal relationship of the testator to his daughter and his failure to support her. From this he concluded that failure to provide for the daughter in the will did not meet the just and equitable 'standard' that he considered the Secretary was authorized to apply in passing on an Indian will. The Regional Solicitor related the failure to support the daughter in her childhood to the absence of provision for her in the will and declared that the decedent 'had an obligation to his daughter which was not discharged either during his lifetime or under the terms of his purported will. For this reason it is inappropriate that the Secretary perpetuate this utter disregard for the daughter's welfare * * *' (Emphasis added.) While thus stressing the natural ties with Dorita High Horse, the Regional Solicitor neither challenged nor gave weight to the predicate of the Examiner's determination which was that the decedent has a close and sustained familial relationship with his niece and had resided in her home, while in contrast, he had virtually no contact with his natural daughter.
18
To sustain the administrative action performed on behalf of the Secretary would, on this record, be tantamount to holding that a public officer can substitute his preference for that of an Indian testator. We need not here undertake to spell out the scope of the Secretary's power, but we cannot assume that Congress, in giving testamentary power to Indians respecting their allotted property with the one hand, was taking that power away with the other by vesting in the Secretary the same degree of authority to disapprove such a disposition.12
19
In reaching our conclusions it is not necessary to accept the contention of the petitioners that the Secretary's authority is narrowly limited to passing on the formal sufficiency of a document claimed to be a will. The power to make testamentary dispositions arises by statute; here we deal with a special kind of property right under allotments from the Government. The right is not absolute; the allottee is the beneficial owner while the Government is trustee. 25 U.S.C. § 348. The Indian's right to make inter vivos dispositions is limited and requires approval of the Secretary. The legislative history reflects the concern of the Government to protect Indians from improvident acts or exploitation by others and comprehensive regulations govern the process of such inter vivos dispositions. No comparable regulations govern the right to make testamentary dispositions, and from this one might argue that the power of an Indian relating to testamentary disposition of allotted property is uninhibited. The legislative history on this score is perhaps no more or less reliable an indicator of what Congress intended than is usual when the scope of administrative discretion is in question.
20
Whatever may be the scope of the Secretary's power to grant or withhold approval of a will under 25 U.S.C. s 373, we perceive nothing in the statute or its history or purpose that vests in a governmental official the power to revoke or rewrite a will that reflects a rational testamentary scheme with a provision for a relative who befriended the testator and omission of one who did not, simply because of a subjective feeling that the disposition of the estate was not 'just and equitable.' The Regional Solicitor's action was based on nothing more that we can discern than his concept of equity and in our view this was not the kind or degree of discretion Congress vested in him. Cf. Attocknie v. Udall, 261 F.Supp. 876 (D.C.W.D.Okl.1966), reversed on other grounds, 390 F.2d 636 (C.A.10th Cir.), cert. denied, 393 U.S. 833, 89 S.Ct. 104, 21 L.Ed.2d 104 (1968).
21
The Secretary's task is not always an easy one and perhaps is rendered more difficult by the absence of regulations giving guidelines. It is not difficult to conceive of dispositions so lacking in rational basis that the Secretary's approval could reasonably be withheld under § 373 even though the same scheme of disposition by a non-Indian of unrestricted property might pass muster in a conventional probate proceeding; on this record, however, we see no basis for the decision of the Regional Solicitor and must hold it arbitrary and capricious. There being no suggestion that the record need or could be supplemented by added factual material, the case is remanded to the Court of Appeals with directions to reinstate the judgment of the District Court.
22
Reversed and remanded.
23
Mr. Justice BLACK, for the reasons set forth by the Court of Appeals in this case, High Horse v. Tate, 407 F.2d 394, and in Heffelman v. Udall, 378 F.2d 109 (C.A.10th Cir. 1967), would affirm the judgments below.
24
Mr. Justice HARLAN, concurring.
25
The Court's opinion has two aspects: First, that the Secretary of the Interior's approval or disapproval of a will disposing of restricted Indian property is subject to judicial review in a federal court. Second, that the Secretary's action disapproving the decedent's will in the circumstances of this case was not a valid exercise of the authority vested in him by the first proviso of 25 U.S.C. § 373.1 I join the Court's opinion in both respects; but I deem it appropriate to amplify the reasons given by the Court for its second conclusion.
26
From the facts stated in the Court's opinion, I think the issue presented by the merits of this case can fairly be characterized as follows: When there is no evidence of fraud, duress, or undue influence, when the decedent is of sound and disposing mind, when there is a rational basis for the decedent's disposition, and when the will meets all the technical requirements of the Secretary's regulations, does the proviso of 25 U.S.C. § 373 authorize the Secretary of the Interior or his delegate to withhold approval of an Indian will simply because he concludes, in the absence of any standards of general applicability, that the distribution pursuant to the will does not 'most nearly achieve just and equitable treatment of the beneficiaries thereunder and the decedent's heirs-at-law'?
27
As the Court's opinion suggests, the petitioners would have us decide this issue by holding that the Secretary can do no more under § 373 than see to it that the various technical requirements of a valid testamentary instrument have been met. Nothing in the language of the statute would prevent such a construction, and as a way of preventing any possibility of arbitrary bureaucratic action to be undertaken in the name of paternalism there is much to commend it. I think the petitioners' claim must be rejected, however, because both the statutory network relating to the restrictions on allotted lands (of which § 373 is only a part) and the legislative history of § 373 itself, suggest the Secretary's role was not to be that limited. Nevertheless, like the Court, I conclude that the Secretary is not empowered to disapprove a will simply on the basis of an ad hoc determination that it is unfair. In reaching this conclusion although the Court's reasoning and my own are parallel in significant respects, I think it helpful for purposes of analysis to elaborate in somewhat greater detail than the Court finds necessary the background of the allotment system, the legislative history of § 373, and the administrative practice of the Department of the Interior in administering Indian wills.
28
Section 373 relates to the testamentary disposition of what is known as restricted Indian property. This property consists primarily of beneficial interests in land allotments held in trust by the Government for individual Indians. Under the allotment system established by the Dawes Act in 1887, 24 Stat. 388, an eligible Indian was given a property interest in a specific tract of land. Although the allottee was ordinarily given possessory rights to the land, his interest was not a fee simple. Instead, the land is held in trust by the United States for the benefit of the particular Indian, 25 U.S.C. § 348. See 25 U.S.C. §§ 331—358.
29
As long as the legal title to the land is held in trust, there are drastic restrictions on the alienability of these allotment interests.2 In fact, 25 U.S.C. § 348 broadly states that any 'conveyance' of an allotment held in trust, or any 'contract' affecting that land, 'shall be absolutely null and avoid.' Moreover, it is a crime for 'any person to induce any Indian to execute any contract, deed, mortgage * * * purporting to convey any land * * * held by the United States in trust for such Indian,' 25 U.S.C. § 202. Under an elaborate regulatory scheme, it is only by securing the prior approval of the Secretary of the Interior that someone like George Chahsenah, the decedent here, could sell, mortgage, or give away his restricted allotments.3 These substantial restrictions on the free alienability of allotted lands suggest that, in making the Secretary's approval a condition for the validity of a will disposing of these lands, Congress did not mean to foreclose the possibility that the Secretary might do more than simply see that the will had the requisite number of witnesses, and that the testator had the capacity to make a will.
30
What little legislative history there is for § 373—and there is very little—also suggests that the Secretary was given broader powers than a state probate judge. Section 373 has its origins in a 1910 'omnibus' Indian bill, 36 Stat. 855—863. This bill was a potpourri or provisions, for the most part unrelated to the devolution of allotted lands. However, § 2 of the bill, 36 Stat. 856, gave to the Indian, for the first time, the power to dispose of his restricted allotments by will,4 rather than simply having the allotments descend to his heirs by the operations of law.5 The origins of § 2 are rather obscure, and only the House Committee Report on omnibus bill even refers to § 2 and then only in descriptive terms.6
31
Even though the Committee Reports provide no indication of the Secretary's powers under the proviso of § 373, there was one exchange on the floor of the House in which Congressman Burke, the sponsor of the omnibus bill, does strongly suggest that he at least envisioned the role of the Secretary under § 373 to extend beyond simply seeing that the will met all the formal requirements of a valid testamentary instrument. This exchange between Congressman Burke and Congressman Cox of Indiana went as follows:
32
'MR. COX of Indiana. Mr. Chairman, what is the gentleman's opinion as to whether or not the proviso contained in section 2 (now 25 U.S.C. § 373) does not place the complete power of the will in the hands of the Commissioner of Indian Affairs?
33
'MR. BURKE of South Dakota. The Commissioner of Indian Affairs and the Secretary of the Interior, of course, would not favor the provision permitting Indians to make wills unless the making of them were subject to the approval of the department.
34
'MR. COX of Indiana. Under the proviso as it now exists in section 2, does it not place complete power in the hands of the Secretary of the Interior and the Commissioner of Indian Affairs over the will of an Indian with absolute power to revoke the Indian's will?
35
'MR. BURKE of South Dakota. I think so.
36
'MR. COX of Indiana. Then after all it simply imposes the entire power of making the will in the hands of the Commissioner of Indian Affairs.
37
'MR. BURKE of South Dakota. I will say the purpose was this: It frequently happened—and I will speak of that in connection with sections 3 and 7 at the same time—it frequently happened an Indian has three or four children. He was allotted land at the time he had only two children, and the father and the mother have allotments and the two children who were living at the time allotments were made have allotments, but the other children have no land at all.
38
'Now, the Indian is just as human as a white man, and it frequently happens that he desires to have permission to give his allotment to the children who have no land, and in a case of that kind undoubtedly the Interior Department would O.K. it, whereas if it was a will giving his estate to some person who ought not to have it, then they would disapprove it.
39
'MR. COX of Indiana. I suppose the purpose of this proviso is an equitable purpose, reserving in the Department of the Interior the power to compel the Indian to make a proper will
40
'MR. BURKE of South Dakota. Not compel him at all.
41
MR. COX of Indiana. Or else revoke the will if he did not make a proper will.
42
'MR. BURKE of South Dakota. If the Indian makes a will, and it is not satisfactory to the commissioner and the Secretary, and I put both in to safeguard it, it will be disapproved of, and of course will be of no effect.' 45 Cong.Rec. 5812.
43
It is primarily on the basis of the colloquy on the floor that the United States argues that we should uphold the Secretary's action in this case. According to the Government, this exchange shows that the Secretary was empowered to take 'equitable considerations' into account in approving or disapproving a will. However, to affirm the administrative action in this instance, it would be necessary to hold that an otherwise valid will reflecting a rational testamentary disposition of the decedent's property can be disapproved simply because a government official decides that had he been the testator he would have written a different, and, to his way of thinking, a 'fairer' will.
44
Without attempting to define with precision the outer limits of the Secretary's authority under the proviso of § 373, I think it clear that it cannot be construed this broadly. First, it must be remembered that the primary purpose of § 373 is to give to the testator, not to the Secretary, the power to dispose of restricted property by a will. In accordance to the Indian testamentary capacity over restricted property Congress could have only intended to give him the power to dispose of restricted property according to personal preference rather than the predetermined dictates of intestate succession. Such is the essence of the power to make a will. The notion that the Secretary can disapprove a will on the basis of a subjective appraisal—governed by no standards of general applicability7—that the disposition is unfair to a person who would otherwise inherit as a legal heir simply cuts too deeply into the primary objective of the statutory grant.
45
This conclusion that there must be limits to the Secretary's power under the proviso of § 373 if the primary purpose of the statute is to be accomplished, finds explicit support in the Department of the Interior's own earlier construction of § 373. In response to a letter suggesting that the Secretary disapprove a will that both disinherited certain legal heirs and left part of the estate to a white person not related to the Indian decedent, the Office of the Solicitor stated in a written memorandum, after quoting the statute:
46
'The right to make a will is thus conferred on the Indian not on the Secretary. Whatever discretion the Secretary may have in the matter of approving or disapproving the will, it is clear that this discretion should not be exercised to the extent of substituting his will for that of the testator. Such would clearly be the effect of disapproval in the present case. The naming of a non-Indian as one of the beneficiaries obviously is not a valid objection to approval of the will in the absence of fraud or other imposition, which is clearly not present.'8
47
This statement reflects what appears to have been the consistent practice of the Secretary from 1910 up to the time of the administrative action taken in this case. For, apart from the case now before us, no other instance has been called to our attention in which an Indian's will was disapproved under circumstances requiring the broad discretionary authority claimed here.9
48
In summary, I think the statutory framework and legislative history of § 373 do indicate that the Secretary of the Interior is not foreclosed from going beyond the technical requirements in deciding whether to approve a will. A will that disinherits the natural object of the testator's bounty should be scrutinized closely. If such a will was the result of overreaching by a beneficiary, or fraud; if the will is inconsistent with the decedent's existing legal obligation of support, or in some other way clearly offends a similar public policy; on if the disinheritance can be fairly said to be the product of inadvertence—as might be the case if the testator married or became a parent after the will was executed—the Secretary might properly disapprove it. However, I do not think the Secretary can withhold approval simply because he concludes it was unfair of the testator to disinherit a legal heir in circumstances where as here there is a perfectly understandable and rational basis for the testator's decision.10
1
The Court of Appeals decision, which held that the United States District Court for the Western District of Oklahoma had erred in reviewing the Regional Solicitor's action, is reported as High Horse v. Tate, 407 F.2d 394.
2
The General Allotment Act of February 8, 1887, 24 Stat. 388, as amended by Act of February 28, 1891, 26 Stat. 794, as amended by Act of June 25, 1910, 36 Stat. 855, 25 U.S.C. § 331 et seq., provides, inter alia, for the allotment to individual Indians of parcels of land. The title to these lands is held by the United States in trust for the allottee, or his heirs, during the trust period, or any extension thereof. Chahsenah had interited the interests he held at his death.
3
Section 2 of the Act of June 25, 1910, 36 Stat. 856, as amended by Act of February 14, 1913, 37 Stat. 678, 25 U.S.C. § 373, provides in pertinent part:
'Any persons of the age of twenty-one years having any right, title, or interest in any allotment held under trust or other patent containing restrictions on alienation or individual Indian moneys or other property held in trust by the United States shall have the right prior to the expiration of the trust or restrictive period, and before the issuance of a fee simple patent or the removal of restrictions, to dispose of such property by will, in accordance with regulations to be prescribed by the Secretary of the Interior: Provided, however, That no will so executed shall be valid or have any force or effect unless and until it shall have been approved by the Secretary of the Interior: Provided further, That the Secretary of the Interior may approve or disapprove the will either before or after the death of the testator * * * Provided also, That this section and section 372 of this title shall not apply to the Five Civilized Tribes or the Osage Indians.'
4
Reference to Chahsenah's supposed alcohol addiction carries an intimation that the Regional Solicitor saw some want of testamentary capacity, a notion contrary to his approval of the Examiner's finding of testamentary capacity and absence of undue influence.
5
The Regional Solicitor gratuitously volunteered that if any of the five previous wills made by the testator between 1956 and 1963 were presented he would disapprove them because they made no provision for Dorita High Horse. The record discloses no inquiry by him into the circumstances of the execution of those wills, the testator's state of health at the time of their execution or his reasons for omitting provision for Dorita High Horse.
6
The plaintiffs supporting the will appear to have relied upon 5 U.S.C. § 702 (1964 ed., Supp. IV), which provides:
'A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.'
7
28 U.S.C. § 1361 provides:
'The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.'
8
We express no opinion as to the correctness of this determination. The complaint alleged that the amount in dispute was in excess of $10,000, exclusive of interest and costs, and that the dispute arose under the laws of the United States. Independently of the District Court's ruling, it had jurisdiction over the complaint under 28 U.S.C. § 1331. Cf. International Association of Machinists AFL-CIO v. Central Airlines, Inc., 372 U.S. 682, 685 n. 2, 83 S.Ct. 956, 958, 10 L.Ed.2d 67 (1963); AFL v. Watson, 327 U.S. 582, 589—591, 66 S.Ct. 761, 764—765, 90 L.Ed. 873 (1946).
9
That section provides in pertinent part:
'When any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive. * * *' (Emphasis added.)
10
There is a conflict in the circuits on this point. Compare Hayes v. Seaton, 106 U.S.App.D.C. 126, 128, 270 F.2d 319, 321 (1959); Homovich v. Chapman, 89 U.S.App.D.C. 150, 153, 191 F.2d 761, 764 (1951), with Heffelman v. Udall, 378 F.2d 109 (C.A.10th Cir.), cert. denied, 389 U.S. 926, 88 S.Ct. 287, 19 L.Ed.2d 278 (1967); Attocknie v. Udall, 390 F.2d 636 (C.A.10th Cir.), cert. denied, 393 U.S. 833, 89 S.Ct. 104, 21 L.Ed.2d 104 (1968).
11
See also Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184; Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192.
12
This is borne out by the Secretary's interpretation of § 373 in an arguably 'improvident' testamentary disposition. As to a will naming a Caucasian as a beneficiary, a memorandum, dated May 10, 1941, from the Solicitor's Office to the Assistant Secretary of the Interior, stated, inter alia,
'Whatever discretion the Secretary may have in the matter of approving or disapproving the will, it is clear that this discretion should not be exercised to the extent of substituting his will for that of the testator * * *.'
1
The text of 25 U.S.C. § 373 is quoted in relevant part in n. 3, at 600, of the Court's opinion.
2
At the end of the trust period—not yet expired because the initial 25-year period has been extended—the allottee was to receive a fee simple interest in the land. See 25 U.S.C. § 391. Before the termination of the trust period, the Secretary is now authorized, for a particular Indian, to remove the restrictions on alienation, see 25 U.S.C. § 372; 25 CFR § 121.49.
3
See 25 CFR §§ 121.9—121.20, 121.61, 121.18(b), promulgated under the authority of 25 U.S.C. § 379. There are also restrictions on the allottee's ability to lease the land, see 25 U.S.C. §§ 393, 403, 415a; 25 CFR subchs. P and Q.
4
Section 2, 36 Stat. 856 provided:
'That any Indian of the age of twenty-one years, or over, to whom an allotment of land has been or may hereafter be made, shall have the right, prior to the expiration of the trust period and before the issue of a fee simple patent, to dispose of such allotment by will, in accordance with rules and regulations to be prescribed by the Secretary of the Interior: Provided, however, That no will so executal shall be valid or have any force or effect unless and until it shall have been approved by the Commissioner of Indian Affairs and the Secretary of the Interior: Provided further, The sections one and two of this Act shall not apply to the State of Oklahoma.' Section 2 was amended to its present form (25 U.S.C. § 373) by 37 Stat. 678 (1913).
5
See 25 U.S.C. § 348.
6
See H.R.Rep. No. 1135, 61st Cong., 2d Sess., 2 (April 26, 1910); S.Rep.No.868, 61st Cong., 2d Sess. (June 17, 1910); H.R.Conf.Rep. No. 1727, 61st Cong., 2d Sess. (June 23, 1910).
The original bill, as introduced in the House by Congressman Burke and referred to the Indian Affairs Committee, contained no provision empowering Indians to make wills. See H.R. 12439, 61st Cong., 2d Sess. (introduced Dec. 6, 1909). The bill reported out of committee, H.R. 24992, had such a provision, however. The House Committee Report suggested that the changes and additions to H.R. 12439 found in H.R. 24992 were made in response to recommendations made by the Secretary of the Interior in a letter of April 13, 1910. See H.R.Rep. No. 1135, supra, at 1. However, examination of the letter referred to in the House Committee Report, together with the revisions suggested therein, reveals neither a reference to nor an espousal of the idea that Indians be given testamentary capacity over restricted lands. See letter of April 13, 1910, from Secretary of the Interior Richard A. Ballinger to Hon. Charles H. Burke with new draft of H.R. 12439.
The bill (H.R. 24992) was passed by the House as reported out of the Committee. The Senate amended the bill, deleting § 2 along with most of the remainder of the original House version. See S.Rep. No. 868, supra. However, the Conference readopted for the most part all of the original House version, see H.R.Conf.Rep. No. 1727, supra, and § 2 was enacted into law in the identical form as originally passed by the House.
7
See n. 10, infra.
8
Memorandum dated May 10, 1941, from the Solicitor's Office to the Assistant Secretary of the Interior.
9
At oral argument, the government attorney was asked whether there were any other instances where the Secretary had disapproved a will in circumstances such as those here. He replied, 'No; I have only been able to find cases in which the wills have been approved, though it is clear that equitable considerations were taken into account.' Transcript of Oral Argument 30. The opinion of the Regional Solicitor in the present case cites three unreported decisions to support his broad claim of the right to determine whether the 'will most nearly achieve(s) just and equitable treatment.' Although there is language in these opinions claiming for the Secretary 'discretionary' authority to disapprove wills, all three involved wills that disinherited minor children for whom the decedent had an obligation of support at the time of his death. Moreover, in two of the three cases the disinherited child was born after the execution of the will, thus creating the possibility that the disinheritance was inadvertent. See Estate of Oliver Maynahonah, IA—T—1 (June 30, 1966); Estate of Kosope (Richard Maynahonah, IA—141 141 (Oct. 28, 1954); Estate of Frank (Oren F.) Simpkins (will disapproved Dec. 1, 1943). In this case, on the other hand, the decedent's daughter was an adult, who was married, and who was completely estranged from her father both when his will was executed and at the time of his death. On the facts shown here there is no basis for concluding that the decedent's will reflects an uninformed or irrational disposition, or one that is contrary to public policy. Any notion that the Secretary has a regular policy of disapproving wills that disinherit illegitimate offspring is belief by Attocknie v. Udall, 261 F.Supp. 876 (D.C.W.D.Okl.1966), where the Secretary approved a will that disinherited a son born out of wedlock.
10
I do not mean to suggest that the Secretary might not promulgate a regulation that, like certain state statutes, provides that a testator cannot completely disinherit any of his offspring. A general standard like this would, of course, eliminate the dangers inherent in ad hoc determinations of whether the will is in some vague sense fair to an heir.
| 89
|
397 U.S. 660
90 S.Ct. 1408
25 L.Ed.2d 642
Lee Arthur HESTER, petitioner,v.State of ILLINOIS.
No. 82.
Supreme Court of the United States
October Term, 1969.
April 27, 1970
Marshall Kaplan, Chicago, Ill., for petitioner.
Joel M. Flaum, Chicago, Ill., for respondent.
On Writ of Certiorari to the Supreme Court of Illinois.
PER CURIAM.
1
The writ of certiorari is dismissed as improvidently granted.
2
Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL dissent.
| 89
|
397 U.S. 620
90 S.Ct. 1328
25 L.Ed.2d 615
The CHOCTAW NATION and the Chickasaw Nation, Petitioners,v.State of OKLAHOMA et al. The CHEROKEE NATION OR TRIBE OF INDIANS IN OKLAHOMA, Petitioner, v. State of OKLAHOMA et al.
Nos. 41, 59.
Argued March 5, 1970.
Decided April 27, 1970.
Rehearings Denied June 1, 1970.
See 398 U.S. 945, 90 S.Ct. 1834.
Lon Kile, Hugo, Okl., and Peyton Ford, Washington, D.C., for petitioners.
G. T. Blackenship, Oklahoma City, Okl., and M. Darwin Kirk, Tulsa, Okl., for respondents.
Louis F. Claiborne, Washington, D.C., for United States, amicus curiae, by special leave of Court.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case involves a dispute over the title to land underlying the navigable portion of parts of the Arkansas River in the State of Oklahoma. As a practical matter, what is at stake is the ownership of the minerals beneath the river bed and of the dry land created by navigation projects that are narrowing and deepening the river channel.
2
In December 1966, petitioner Cherokee Nation brought suit in the United States District Court for the Eastern District of Oklahoma against the State of Oklahoma and various corporations to which the State had leased oil and gas and other mineral rights. In its complaint, the Cherokee Nation sought both to recover the royalties derived from the leases and to prevent future interference with its property rights, claiming that it had been since 1835 the absolute fee owner of certain land below the mean high water level of the Arkansas River. Subsequently, petitioners Choctaw and Chickasaw Nations sought and were granted leave to intervene in the case in order to present their claims that part of the river bed belongs to them.
3
After pre-trial proceedings in the District Court, a judgment on the pleadings was entered against petitioners and in favor of the State. The District Court held that land grants made to petitioners by the United States conveyed no rights to the bed of the navigable portion of the Arkansas River. The court thus held that title to the river bed remained in the United States until 1907, when it passed to the State upon Oklahoma's admission to the Union. On appeal, the United States Court of Appeals for the Tenth Circuit affirmed the judgment of the District Court. 402 F.2d 739 (1968). We granted certiorari, Choctaw Nation v. Oklahoma, 394 U.S. 972, 89 S.Ct. 1455, 22 L.Ed.2d 972 (1969), to consider petitioners' claims that they received title to the land in question by treaties with the United States in 1830 and 1835.
4
* At the outset, we note that these cases require us to pass upon the effect of treaties that were entered into nearly a century and a half ago. As background, it is necessary briefly to relate the circumstances by which petitioners received large grants of land by treaty from the United States.
5
The history behind these treaties goes back at least to the period immediately after the Revolutionary War and prior to the adoption of the Constitution—a time when petitioners and other Indian Nations occupied much of what are today the southern and southeastern parts of the United States. In 1785, in the Treaty of Hopewell, November 28, 1785, 7 Stat. 18, the United States entered into a treaty of peace and friendship with the Cherokee Indians which established the boundaries of the Cherokee Nation and in which the Indians acknowledged themselves to be under the protection of the United States. The next year, a similar treaty was concluded between the Choctaws and the United States. Treaty of Hopewell, January 3, 1786, 7 Stat. 21.
6
In following years, the United States entered into a number of additional treaties with both the Cherokees and Choctaws.1 By means of these treaties, the United States purchased large areas of land from the Indians to provide room for the increasing numbers of new settlers who were encroaching upon Indian lands during their westward migrations. Although the Indians were not considered to own the fee title to the land on which they lived, they did have the right to the exclusive use and occupancy of the land—a right that could be ceded only to the United States.2 Moreover, the Indians continued to live on the land not ceded under their own laws and way of life, and their rights to those lands were 'solemnly' guaranteed by the United States. Treaty of Holston, July 2, 1791, 7 Stat. 39, 40; see Indian Intercourse Act of 1802, 2 Stat. 139.
7
Even while it was making this solemn guarantee, however, the United States adopted a policy aimed at completely extinguishing these Indian Nations' rights to their native lands. The United States had acquired a large western territory in 1803 by the Louisiana Purchase, and it was soon proposed that the Indians be relocated on new lands west of the Mississippi.3 For a time, it seemed that the westward removal of the Indians might be readily accomplished. In the Treaty of July 8, 1817, 7 Stat. 156, the Cherokee Nation agreed to trade part of its lands in Georgia for a large amount of land in the Arkansas Territory. See also Treaty of February 27, 1819, 7 Stat. 195. Thereafter, a number of the Cherokees left their eastern lands and traveled west. Three years later, in the Treaty of Doak's Stand, October 18, 1820, 7 Stat. 210, the Choctaw Nation agreed to exchange approximately half of its remaining Mississippi lands for a large tract of land in the Arkansas Territory and an even larger one farther west.
8
Before the United States could relocate the Indians on these new lands, however, at least part of the land that had been set aside in the Arkansas Territory was already settled. It was apparent that the westward removal had not been aimed far enough west to escape the new nation's expansion. By the Treaty of January 20, 1825, 7 Stat. 234, the Choctaws were persuaded to cede back to the United States the eastern portion of the land given them in the Treaty of Doak's Stand. Similarly, the Cherokees who had voluntarily moved to Arkansas agreed to move again—farther west to a new tract of land, 'a permanent home, and which shall, under the most solemn guarantee of the United States, be, and remain, theirs forever.' Treaty of May 6, 1828, 7 Stat. 311.
9
The prospect of the voluntary removal of the Indians to land west of the Mississippi soon disappreared. For the most part, the Choctaws and the Cherokees who had not already left their eastern lands refused to give up the land that had long been their home. The abortive attempt to set aside Arkansas Territory land for the Indians justifiably made many of them doubt that the United States would protect them in their new lands. But at the same time the Indians were deciding to remain, the new settlers' expansion and desire for their lands increased. In Georgia, the state legislature, tired of waiting for the United States to fulfill its promise to extinguish Indian rights to Georgia lands,4 asserted jurisdiction over the Cherokees and prepared to distribute the Cherokee lands. Mississippi soon followed suit, abolishing tribal government and extending its laws to Choctaw territory.
10
A clash between the obligation of the United States to protect Indian property rights on the one hand and the policy of forcing their relinquishment on the other was inevitable. With the passage of the Indian Removal Act of 1830, 4 Stat. 411, it became apparent that policy, not obligation, would prevail. In spite of the promises to protect the Indians' land and sovereignty, it was clear that the United States was unable or unwilling to prevent the States and their citizens from violating Indian rights.
11
Thus faced with the prospect of losing both their lands and way of life, the Choctaws agreed in 1830 to leave Mississippi and to move to new lands west of the Arkansas Territory. As a guarantee that they would not again be forced to move, the United States promised to convey the land to the Choctaw Nation in fee simple 'to inure to them while they shall exist as a nation and live on it.' In addition, the United States pledged itself to secure to the Choctaws the 'jurisdiction and government of all the persons and property that may be within their limits west, so that no Territory or State shall ever have a right to pass laws for the government of the Choctaw Nation * * * and that no part of the land granted them shall ever be embraced in any Territory or State.' Treaty of Dancing Rabbit Creek, Sept. 27, 1830, 7 Stat. 333—334.
12
The Cherokees were at first determined to retain the Georgia lands on which they had by that time settled down, establishing farms and towns.5 However, after a time, they, too, were forced to leave. In the Treaty of New Echota, December 29, 1835, 7 Stat. 478, the Cherokees who had remained in the East agreed to leave their lands and to join the Cherokees who had already moved west of the Mississippi. Once again, the United States assured the Indians that they would not be forced to move from their new lands: a patent would issue to convey those lands in fee simple, and they would never be embraced within the boundaries of any State or Territory.
13
The United States thus succeeded in its efforts to remove the Indians from their eastern lands. In exchange, by the Treaty of Dancing Rabbit Creek with the Choctaws in 1830 and the Treaty of New Echota with the Cherokees in 1835, the United States granted a vast area of its western territory to the two Indian Nations. The land thus granted to the Choctaws encompassed what is today approximately the southern third of the State of Oklahoma; to the north, the Cherokees received title to a tract of land in the eastern part of the remainder of the State with a perpetual outlet to and other rights in land farther west.
14
Although by later treaties other Indian tribes were settled on parts of the land originally included in these grants, and the Chickasaw Nation was granted an undividued one-fourth interest in the remainder of the Choctaw land, see Treaty of January 17, 1837, 11 Stat. 573; Treaty of June 22, 1855, 11 Stat. 611, the fee simple title to a vast tract of land continued to be held by the petitioner Indian Nations for well over half a century.
15
Then, again due in large part to the pressure of settlers who were encroaching on Indian lands,6 Congress acted to change the arrangement. By § 16 of the Act of March 3, 1893, 27 Stat. 645, a commission was created to negotiate with the Indian tribes that had been located in Oklahoma on the allotment of land to their indiviual members in preparation for the final dissolution of the tribes. Thereafter, the Indians—including the Choctaws, Chickasaws, and Cherokees—agreed to the allotment of their lands and the termination of tribal affairs. See Act of June 28, 1898, 30 Stat. 495; Act of July 1, 1902, 32 Stat. 716. Finally, Congress provided for the disposition of all petitioners' lands with the provision that any remaining tribal property 'be held in trust by the United States for the use and benefit of the Indians.' Act of April 26, 1906, § 27, 34 Stat. 148. The way was thus paved for Oklahoma's admission to the Union 'on an equal footing with the original States,' conditioned on its disclaimer of all right and title to lands 'owned or held by any Indian, tribe, or nation.' Act of June 16, 1906, §§ 3, 4, 34 Stat. 270, 271.
16
According to petitioners, they received title to the bed of the Arkansas River by treaty and patent from the United States. Because the land was not individually allotted or otherwise disposed of pursuant to the 1906 Act, title remained in petitioners or passed to the United States to be held in trust for them. The State, on the other hand, claims that petitioners never received title to the land. The courts below held in favor of the State, thus disposing of the case since it was undisputed that if title remained in the United States, it passed to Oklahoma upon admission to the Union as an incident of statehood. The sole question for review then is whether the treaty grants from the United States conveyed title to the bed of the Arkansas River to the Cherokee and Choctaw Nations.
II
17
We more then to the construction and effect of the treaties between petitioners and the United States. At the outset, the State argues that the bed of the Arkansas River was not included in the grants to petitioners even by the accepted standards of ordinary conveyancing since to a skilled draftsman 'the land descriptions in the treaties, standing alone, actually exclude the river beds.'
18
Part of the Arkansas River here in question is surrounded on both sides by land granted to the Cherokees, and with regard to it the argument is at the least strained. There is no explicit exclusion of the river bed in the 1835 Treaty of New Echota; in fact, there is no reference at all to the river from 'a point where a stone is placed opposite the east or lower bank of Grand river at its junction with the Arkansas' to its junction with the Canadian. See 7 Stat. 480. As we read the Cherokee treaties and the patent issued thereunder by the President, the Cherokee Nation was granted one undivided tract of land described merely by exterior metes and bounds. That portion of the Arkansas River between its junctions with the Grand and Canadian Rivers lies completely within those metes and bounds, and all of the land inside those boundaries including the river bed seems clearly encompassed within the grant.
19
Below its confluence with the Canadian, the Arkansas River forms the boundary between the land granted to the Cherokees to the north and the Choctaws to the south, and the treaties do explicitly refer to this portion of the river. In the Treaty of Doak's Stand in 1820, petitioner Choctaw Nation was granted all the land within the following boundaries:
20
'Beginning on the Arkansas River, where the lower boundary line of the Cherokees strikes the same; thence up the Arkansas to the Canadian Fork, and up the same to its source; thence due South to the Red River; thence down Red River, three miles below the mouth of Little River, which empties itself into Red River on the north side; thence a direct line to the beginning.' 7 Stat. 211. (Emphasis added.)
21
Ten years later, this grant was superseded by the Treaty of Dancing Rabbit Creek, which 'varied the description a little, and provided for a special patent,' Fleming v. McCurtain, 215 U.S. 56, 59, 30 S.Ct. 16, 17, 54 L.Ed. 88 (1909):
22
'beginning near Fort Smith where the Arkansas boundary crosses the Arkansas River, running thence to the source of the Canadian fork; if in the limits of the United States, or to those limits; thence due south to Red River, and down Red River to the west boundary of the Territory of Arkansas; thence north along that line to the beginning.' 7 Stat. 333. (Emphasis added.)
23
And the patent issued to the Choctaw Nation in 1842 by President Tyler merely repeated the language of this latter treaty.
24
The Choctaw treaties preceded any grant to the Cherokee Nation; and, under them, petitioners Choctaw and Chickasaw Nations claim the entire bed of the Arkansas River between its confluence with the Canadian River and the Oklahoma-Arkansas border. The Cherokees, however, also have a claim to this part of the river, based on the language setting out the southern border of the land granted them in the Treaty of New Echota: From a point on the Canadian River,
25
'thence down the Canadian to the Arkansas; thence down the Arkansas to that point on the Arkansas where the eastern Choctaw boundary strikes said river * * *.' 7 Stat. 480. (Emphasis added.)
26
Moreover, they point to the patent issued them by President Van Buren in 1838, which described the southern boundary of their lands as follows:
27
'down the Canadian river on its north bank to its junction with Arkansas river; thence down the main channel of Arkansas river to the western boundary of the State of Arkansas at the northern extremity of the eastern boundary of the lands of the Choctaws on the south bank of Arkansas river. * * *' (Emphasis added.
28
According to the Cherokee Nation, the United States thereby conveyed to it the north half of the Arkansas River from its junction with the Canadian to the eastern Oklahoma border. Petitioners thus are in disagreement about the effect of the words in the treaties and patents with regard to this lower portion of the river.7
29
That disagreement, however, does nothing to make convincing even the State's argument that this part of the river bed was excluded from the grants as a matter of conveyancing law. About all that can be said about the treaties from the standpoint of a skilled draftsman is that they were not skillfully drafted. More important is the fact that these treaties are not to be considered as exercises in ordinary conveyancing. The Indian Nations did not seek out the United States and agree upon an exchange of lands in an arm's-length transaction. Rather, treaties were imposed upon them and they had no choice but to consent. As a consequence, this Court has often held that treaties with the Indians must be interpreted as they would have understood them, see, e.g., Jones v. Meehan, 175 U.S. 1, 11, 20 S.Ct. 1, 5, 44 L.Ed. 49 (1899), and any doubtful expressions in them should be resolved in the Indians' favor. See Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89, 39 S.Ct. 40, 41, 42, 63 L.Ed. 138 (1918). Indeed, the Treaty of Dancing Rabbit Creek itself provides that 'in the construction of this Treaty wherever well founded doubt shall arise, it shall be construed most favourably towards the Choctaws.' 7 Stat. 336.
30
Applying these principles here, we conclude that the entire Arkansas River below its confluence with the Grand River was within the metes and bounds of the treaty grants to petitioners. The State argues that the treaty terms 'up the Arkansas' and 'down the Arkansas' should be read to mean 'along the bank of the Arkansas River.' However, the United States was competent to say the 'north side' or 'bank' of the Arkansas River when that was what it meant, as it had in the 1817 grant to the Cherokees in the Arkansas Territory. See 7 Stat. 158. Even more damaging to the State's argument is the contemporaneous interpretation of the treaty language by the President as reflected in the specific language of the Cherokee patent, 'down the Canadian river on its north bank to its junction with Arkansas river; thence down the main channel of Arkansas river.'8 (Emphasis added.) According to the State, the italicized part of this description should be read to mean 'down the north bank of the main branch of the Arkansas River.' However, not only does this reading itself seem to include part of the river bed—that underlying the 'secondary' branches—but it also conflicts with this Court's interpretation of the term in Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140 (1922).
31
The facts involved in Brewer-Elliott were essentially similar to those of the present cases. There the United States had established a reservation for the Osage Indians which was bounded on one side by 'the main channel of the Arkansas river.' 260 U.S. at 81, 43 S.Ct., at 62. The United States brought suit to establish the Indians' right to the river bed and the oil reserves beneath it, and the State of Oklahoma intervened to claim that the river bed had passed to it at statehood. The case came here after the Court of Appeals had held that 'whether the river was navigable or nonnavigable, the United States, as the owner of the territory through which the Arkansas flowed before statehood, had the right to dispose of the river bed, and had done so, to the Osages.' Id., at 80, 43 S.Ct. at 61. This Court held that in the region in question the Arkansas River was non-navigable and that 'the title of the Osages as granted certainly included the bed of the river as far as the main channel, because the words of the grant expressly carry the title to that line.' Id., at 87, 43 S.Ct. at 64. (Emphasis added.) The question whether it would have been beyond the power of the United States to make the grant had the river been navigable was reserved for future decision.
32
In the present cases, there is no question that the Arkansas River is navigable below its junction with the Grand River.9 However, we do not understand the State to argue the question reserved in Brewer-Elliott. Indeed, it seems well settled that the United States can dispose of lands underlying navigable waters just as it can dispose of other public lands. See Shively v. Bowlby, 152 U.S. 1, 47—48, 14 S.Ct. 548, 565—566, 38 L.Ed. 331 (1894). Rather, the question is whether the United States intended to convey title to the river bed to petitioners. See Alaska Pacific Fisheries v. United States, supra, at 87, 39 S.Ct. at 41; Moore v. United States, 157 F.2d 760, 763 (C.A.9th Cir. 1946); cf. Donnelly v. United States, 228 U.S. 243, 259, 33 S.Ct. 449, 453 454, 57 L.Ed. 820 (1913).
33
Turning then to that question, we think it clear, as did the Court of Appeals, that the parties to the treaties and patents did not pause specifically to provide for the ownership of the river bed. According to the State—even if the river bed was within the bounds of the grants to petitioners—we need look no further because 'disposals by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.' United States v. Holt State Bank, 270 U.S. 49, 55, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1926). Even were we limited to the treaties and patents alone, the most specific language of those instruments is identical to that we said 'expressly' conveyed title to the river bed in Brewer-Elliott. However, nothing in the Holt State Bank case or in the policy underlying its rule of construction, (see Shively v. Bowlby, supra, at 49—50, 14 S.Ct., at 566) requires that courts blind themselves to the circumstances of the grant in determining the intent of the grantor. Indeed, the court in Holt State Bank itself examined the circumstances in detail and concluded 'the reservation was not intended to effect such a disposal.' 270 U.S., at 58, 46 S.Ct. at 200. We think that the similar conclusion of the Court of Appeals in this case was in error, given the circumstances of the treaty grants and the countervailing rule of construction that well-founded doubt should be resolved in petitioners' favor.
34
Together, petitioners were granted fee simple title to a vast tract of land through which the Arkansas River winds its course. The natural inference from those grants is that all the land within their metes and bounds was conveyed, including the banks and bed of rivers. To the extent that the documents speak to the question, they are consistent with and tend to confirm this natural reading. Certainly there was no express exclusion of the bed of the Arkansas River by the United States as there was to other land within the grants.
35
As a practical matter, reservation of the river bed would have meant that petitioners were not entitled to enter upon and take sand and gravel or other minerals from the shallow parts of the river or islands formed when the water was low. In many respects however, the Indians were promised virtually complete sovereignty over their new lands. See Atlantic & Pacific R. Co. v. Mingus, 165 U.S. 413, 435—436, 17 S.Ct. 348, 354, 41 L.Ed. 770 (1897). We do not believe that petitioners would have considered that they could have been precluded from exercising these basic ownership rights to the river bed, and we think it very unlikely that the United States intended otherwise. Nor do we believe that the United States would intend that it rather than petitioners have title to the dry bed left from avulsive changes of the river's course, which as the District Court noted are common in this area. Indeed, the United States seems to have had no present interest in retaining title to the river bed at all; it had all it was concerned with in its navigational easement via the constitutional power over commerce. Cf. Pollard v. Hagan, 3 How. 212, 229, 11 L.Ed. 565 (1845).
36
Finally, it must be remembered that the United States accompanied its grants to petitioners with the promise that 'no part of the land granted to them shall ever be embraced in any Territory or State.' In light of this promise, it is only by the purest of legal fictions that there can be found even a semblance of an understanding (on which Oklahoma necessarily places its principal reliance), that the United States retained title in order to grant it to some future State.
37
We thus conclude that the United States intended to and did convey title to the bed of the Arkansas River below its junction with the Grand River within in the present State of Oklahoma in the grants it made to petitioners. The judgments of the Court of Appeals are therefore reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered.
38
Judgment of Court of Appeals reversed and case remanded.
39
Mr. Justice HARLAN took no part in the consideration or decision of these cases.
40
Mr. Justice DOUGLAS, concurring.
41
While I join the Court's opinion, I add a few words.
42
The Cherokees, pursuant to treaties with the United States, exchanged their aboriginal domain in the East for more than 14,000,000 acres of land west of the Mississippi, then in Indian Territory but now a part of Oklahoma. Pursuant to promises in the treaties, the United States on December 31, 1838, issued a patent to the Cherokees describing the lands by metes and bounds and conveying the lands here in question in fee simple.1
43
A portion of the Arkansas River is entirely within the grant to the Cherokees. It is therefore a mystery why all of the bed in that portion of the river was not conveyed to the Cherokees. The river bed was not reserved to the United States by the patent. The United States, however, made other reservations: (1) the right to permit other tribes to get salt on the western part of the grant; (2) any rights to lands assigned the Quapaws which turned out to be within the bounds of these Cherokee lands; (3) the right to establish and maintain military posts and roads together with the free use of land, timber, fuel, and materials for the construction and support of those facilities. Since the United States made some reservations but made no reservations of the river bed, and if fair dealing is the standard, one would conclude, I think, that the river bed was the tail that went with the hide.
44
As respects the Choctaws, another section of the Arkansas River was the boundary between the Choctaw and the Cherokee grants. Whatever may be the rights between the Cherokees and the Choctaws, it seems clear to me than since one portion of the Arkansas was within the exterior boundaries of the Cherokee grant and another portion was within the exterior boundaries of the Choctaw grant, the river bed of each of those segments went to the respective grantees in fee simple.
45
Here an entire region was conveyed to these tribes as part of their resettlement,2 with assurances of selfgovernment3 and with pledges that their new homelands would never be part of any State.4 They were indeed constituted as the sovereign autonomy established in lieu of a prospective State.5
46
The title held by these tribes was not the usual aboriginal Indian title of use and occupancy but a fee simple, cf. United States v. Creek Nation, 295 U.S. 103, 55 S.Ct. 681, 79 L.Ed. 1331 terminable if and when these Indian nations ceased to exist or abandoned the territory—conditions not yet occurring. The reliance by the Court of Appeals on United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465, was therefore misplaced as that case involved only the aboriginal Indian title of use and occupancy. Id., at 58—59, 46 S.Ct., at 200.
47
The United States, speaking through the Solicitor General, has filed a brief amicus taking that position in these cases and maintaining it vigorously on oral argument. It concedes, as it must in light of Shively v. Bowlby, 152 U.S. 1, 49—50, 14 S.Ct. 548, 566—567, 38 L.Ed. 331, that while the United States holds a domain as a territory, it may convey away the right to the bed of a navigable river, not retaining that property for transfer to a future State, though as stated in Holt State Bank that purpose is 'not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.' 270 U.S., at 55, 46 S.Ct. at 199. Such exceptional circumstances are present here.
48
The treaties with the present Indians solemnly assured them that these new homelands would never be made part of a State or Territory. So it is reasonable to infer that the United States did not have a plan to hold this river bed in trust for a future State. As the United States says, we would have to indulge 'a cynical fiction without any basis in fact' to attribute such a purpose to the parties. Sixty years later, however, Congress was intent in creating a State out of these lands.6
49
Friction between the Indians and the whites who sought to settle on these lands mounted. As time passed the American attitude towards these treaties became as hostile as the opinion below. The Commissioner of Indian Affairs in his 1886 Report spoke of the exploitation of many Indians by a few Indians who had a monopoly of land and he attacked the treaties as such:
50
'(I)t is perfectly plain to my mind that the treaties never contemplated the un-American and absurd idea of a separate nationality in our midst, with power as they may choose to organize a government of their own, or not to organize any government nor allow one to be organized, for the one proposition contains the other. These Indians have no right to obstruct civilization and commerce and set up an exclusive claim to self-government, establishing a government within a government, and then expect and claim that the United States shall protect them from all harm, while insisting that it shall not be the ultimate judge as to what is best to be done for them in a political point of view. I repeat, to maintain any such view is to acknowledge a foreign sovereignty, with the right of eminent domain, upon American soil—a theory utterly repugnant to the spirit and genius of our laws, and wholly unwarranted by the Constitution of the United States.' H.R. Exec. Doc. No. 1, pt. 5, 49th Cong., 2d Sess., 87.
51
But cf. the views of Robert L. Owen, U.S. Indian Agent, in H.R. Exec. Doc. No. 1, pt. 5, vol. 2, 50th Cong., 2d Sess., 134—135 (1888). And see A. Debo, The Rise and Fall of the Choctaw Republic 245 et seq. (1934).
52
A commission was created to negotiate an agreement with these tribes superseding the earlier treaties, all as related in Choate v. Trapp, 224 U.S. 665, 667—670, 32 S.Ct. 565, 566—567, 56 L.Ed. 941. An agreement was in time reached whereby tribal lands were allotted to individual members of the tribe, with any remaining tribal land passing to the United State as trustees for the Indians. 34 Stat. 137. The bed of the Arkansas was not allotted. The next year—1907—Oklahoma was admitted to the Union on an equal footing with the original States. 34 Stat. 267. Certainly this cession by the tribes of their interest in the river bed of the Arkansas to the United States in trust for their members was no possible vehicle for transferring that title to Oklahoma.7
53
The Court properly makes these cases candidates for application of the classic rule that treaties or agreements with Indians are to be construed in their favor, not in favor of commercial interests that repeatedly in our history have sought to exploit them. The idea was perhaps best stated in United States v. Winans, 198 U.S. 371, 380—381, 25 S.Ct. 662, 664, 49 L.Ed. 1089:
54
'(W)e will construe a treaty with the Indians as 'that unlettered people' understood it, and 'as justice and reason demand, in all cases where power is exerted by the strong over those to whom they owe care and protection,' and counterpoise the inequality 'by the superior justice which looks only to the substance of the right without regard to technical rules.' (Choctaw Nation v. United States) 119 U.S. 1, 30 L.ed. 306, 7 Sup.Ct.Rep. 75; (Jones v. Meehan) 175 U.S. 1, 44 L.ed. 49, 20 Sup.Ct.Rep. 1. How the treaty in question was understood may be gathered from the circumstances.'
55
We should therefore resolve any doubts in these cases in favor of these Indians, mindful of what President Jackson said at a meeting with the Choctaws and Chickasaws:
56
'Brothers, listen: the only plan by which this can be done, and tranquillity for your people obtained, is, that you pass across the Mississippi to a country in all respects equal, if not superior, to the one you have. Your great father will give it to you for ever, that it may belong to your and your children while you shall exist as a nation, free from all interruption.
57
Peace invites you there; annoyance will be left behind; within your limits, no State or territorial authority will be permitted; intruders, traders, and above all, ardent spirits, so destructive to health and morals, will be kept from among you, only as the laws and ordinances of your nation may sanction their admission.' S.Doc. No. 512, 23d Cong., 1st Sess., Vol. 2, 240—242.
58
Only the continuation of a regime of discrimination against these people,8 which long plagued the relations between the races, can now deny them this just claim.
59
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join, dissenting.
60
At issue in these cases is the ownership of the lands underlying the Arkansas River from it confluence with the Grand River in Oklahoma downstream to the western border of Arkansas. The Arkansas River is a navigable stream below, but not above, its junction with the Grand River. The contending parties are three Indian tribes on the one hand and the State of Oklahoma on the other. The Cherokees base their claim on a United States patent of 1838 and underlying treaties, the Choctaws and the Chickasaws on an 1842 patent also issued in fulfillment of prior treaty commitments. The State claims under the settled doctrine that a newly admitted State takes title to the beds of all navigable rivers within its borders; the State denies that the prior patents conveyed the river bed. The patent to the Cherokees included property on both sides of the Arkansas River from its confluence with the Grand River downstream to its junction with the Canadian River. From the Canadian River to the Arkansas border, the Arkansas River was the boundary between Cherokee lands on the north side and the Choctaw lands on the south.
61
According to the Court, the Indians became the owners of all of the river bed from the Grand River to the Arkansas border: the river bed between the Grand River and the Canadian River is Cherokee property because the metes and bounds description of the grant crossed the river without purporting to exclude the river bed; the remaining portion of the river bed is said to be Indian property because by ordinary conveyancing standards the relevant patents and treaties reveal an intent by the United States to convey the river bed to the tribes. I differ with the Court as to both portions of the river bed.
62
* As far as riparian rights are concenred—and for other purposes too—the policy and applicable laws of the United States have always distinguished between navigable and nonnavigable streams. Section 931 of Title 43 of the United States Code, Rev. Stat. § 2476, which dates from 1796, does so unmistakably:
63
'All navigable rivers, within the territory occupied by the public lands, shall remain and be deemed public highways; and, in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both.'
64
The owners of land adjacent to a non-navigable stream own the river bed, but the surveys of public lands stop with the banks of navigable streams; conveyances by the United States of land located on a navigable river carry no interest in the river bed under federal law. St. Paul and Pacific Railroad Co. v. Schurmeir, 7 Wall. 272, 288—289, 19 L.Ed. 74 (1869), made the difference very clear:
65
'(T)he court does not hesitate to decide, that Congress, in making a distinction between streams navigable and those not navigable intended to provide that the common law rules of riparian ownership should apply to lands bordering on the latter, but that the title to lands bordering on navigable streams should stop at the stream, and that all such streams should be deemed to be, and remain public highways.'
66
Packer v. Bird, 137 U.S. 661, 672, 11 S.Ct. 210, 212, 213, 34 L.Ed. 819 (1891), is to like effect. Shively v. Bowlby, 152 U.S. 1, 49—50, 14 S.Ct. 548, 566, 38 L.Ed. 331 (1894), re-emphasized that:
67
'The congress of the United States, in disposing of the public lands, has constantly acted upon the theory that those lands, whether in the interior or on the coast, above high-water mark, may be taken up by actual occupants, in order to encourage the settlement of the country; but that the navigable waters and the soils under them, whether within or above the ebb and flow of the tide, shall be and remain public highways; and, being chiefly valuable for the public purposes of commerce, navigation, and fishery, and for the improvements necessary to secure and promote those purposes, shall not be granted away during the period of territorial government, but, unless in case of some international duty or public exigency, shall be held by the United States in trust for the future states, and shall vest in the several states, when organized and admitted into the Union, with all the powers and prerogatives appertaining to the older states in regard to such waters and soils within their respective jurisdictions; in short, shall not be disposed of piecemeal to individuals, as private property, but shall be held as a whole for the purpose of being ultimately administered and dealt with for the public benefit by the state, after it shall have become a completely organized community.'
68
The issue in Shively was whether the grantee of lands along a navigable river in Oregon Territory had an interest in the river bed by reason of his federal grant. It was held that he did not.
69
In 1845, Pollard v. Hagan, 3 How. 212, 11 L.Ed. 565, held that the United States had no power, except where state law permitted, to convey an interest in the bed of a navigable river after the State in which it was located had been admitted to the Union. The Court also implied that because the beds of navigable streams were held in trust for future States, the United States was without power to dispose of the beds prior to statehood. This implication was repudiated by statements in such later cases as Goodtitle v. Kibbe, 9 How. 471, 478, 13 L.Ed. 220 (1850), and Shively v. Bowlby, supra, 152 U.S., at 47—48, 14 S.Ct., at 565 566. In the words of the latter:
70
'We cannot doubt, therefore, that congress has the power to make grants of lands below high-water mark of navigable waters in any territory of the United States, whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several states, or to carry out other public purposes appropriate to the objects for which the United States hold the territory.' 152 U.S., at 48, 14 S.Ct., at 566.
71
Nevertheless, whether the United States had only a retricted power to convey interests in navigable river beds prior to statehood was deemed an open question in Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 85—86, 43 S.Ct. 60, 63, 64, 67 L.Ed. 140 (1922); decision on that question was reserved as was decision on the issue whether, if the power to convey was limited to certain purposes, provision of a home for an Indian tribe came within one of these permitted purposes. Three years later, United States v. Holt State Bank, 270 U.S. 49, 55, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1926), again recognized that 'the United States early adopted and constantly has adhered to the policy of regarding lands under navigable waters in acquired territory, while under its sole dominion, as held for the ultimate benefit of future states, and so has refrained from making any disposal thereof, save in exceptional instances when impelled to particular disposals by some international duty or public exigency.'
72
The ownership of lands under navigable waters was deemed an incident of sovereignty, Martin v. Waddell, 16 Pet. 367, 409—411, 10 L.Ed. 997 (1842), and whatever the power of the Federal Government to convey such lands lying in its unorganized territories, Congress never undertook to do so by general laws. Shively v. Bowlby, supra, 152 U.S., at 48—50, 14 S.Ct., at 566 567. Conveyance of a river bed would not be implied and would not be found unless the grant 'in terms embraces the land under the waters of the stream,' Packer v. Bird, supra, 137 U.S., at 672, 11 S.Ct., at 213; Shively v. Bowlby, supra, 152 U.S., at 47—48, 14 S.Ct., at 565—566. Such disposals by the United States 'during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.' United States v. Holt State Bank, supra, 270 U.S., at 55, 46 S.Ct., at 199.
II
73
Against this doctrinal background, for either the Cherokees, the Choctaws, or the Chickasaws to prevail, there must be found in their grant a 'very plain' basis for concluding that the United States intended to convey an interest in the river bed. As I see it, neither the patents nor the treaties here involved satisfy that standard.
74
The patent to the Choctaws in 1842, which merely quotes from the 1830 Treaty of Dancing Rabbit Creek, 7 Stat. 333, describes the northern boundary of the Choctaw grant as '(b)eginning near fort Smith where the Arkansas boundary crosses the Arkansas River, running thence to the source of the Canadian fork * * *.' An earlier treaty, the 1820 Treaty of Doak's Stand, 7 Stat. 210, described the northern boundary of the Choctaw lands as going 'up the Arkansas to the Canadian Fork * * *.' The quoted phrases of the patent (and the Treaty of Dancing Rabbit Creek) and of the Treaty of Doak's Stand are the sole bases for the Choctaw claim to the entire bed of the Arkansas River from the western boundary of Arkansas upstream to the junction with the Canadian River. The Cherokees claim that the conveyance gave the Choctaws only the southern half of the river bed; the State of Oklahoma claims that the northern boundary of the Choctaw lands went up the river on its south bank and hence gave the Choctaws none of the river bed since the river was navigable and there was no express conveyance of the river bed to the Choctaws.
75
As for the Cherokees, their southern boundary from the Canadian River to the Arkansas border is described in the 1838 patent as proceeding from the north bank of the Canadian River at its junction with the Arkansas River, 'thence down the main channel of Arkansas river to the western boundary of the State of Arkansas, at the northern extremity of the eastern boundary of the lands of the Choctaws, on the south bank of the Arkansas river. * * *' The patent was in execution of three prior treaties. The 1835 Treaty of New Echota, 7 Stat. 478, in describing the land to be conveyed, repeated the description of the Treaty of February 14, 1833, 7 Stat. 414, which was supplemental to the Treaty of May 6, 1828, 7 Stat. 311. The description in the Treaty of New Echota did not contain the 'main channel' language later used in the patent; from the Canadian, the southern boundary ran 'down the Arkansas to that point on the Arkansas where the eastern Choctaw boundary strikes said river * * *.' The Cherokees claim this language gives them the northern half of the river bed. The Choctaws and the State claim that the Cherokees have no interest in this part of the river bed.
76
Insofar as the river bed from the Canadian River to the Arkansas border is concerned, the terms of the patents and the treaties are obviously a far cry from what the cases require to evidence the intention of the United States to dispose of lands under a navigable river. But it is said that these cases are irrelevant where the grantee is an Indian tribe and that countervailing considerations require treaties with Indian tribes to be interpreted as the treaties would have been understood by the Indians. Reliance is also placed on the provision in the 1830 Choctaw treaty stating that 'wherever well founded doubt shall arise,' the treaty shall be construed in favor of the Choctaws. But I find it difficult to conclude from such murky language that the United States intended to reject its historic policy with respect to beds of navigable rivers in executing these treaties and patents. Nor is there any evidence whatsoever that the Indians of that day would have considered the land under a navigable river to be of any utility to them or as being included in a grant of lands adjacent to the river. Indeed, the Treaty of Dancing Rabbit Creek expressly negatives any inference that the United States was sharing with the Choctaws any of its sovereignty over the navigable portion of the Arkansas River. It provided that '(n)avigable streams shall be free to the Choctaws who shall pay no higher toll or duty than citizens of the U.S.'
77
The Cherokee patent recited that the treaty lands had been surveyed and the description in the patent was taken from the survey. Field notes of an 1831 survey of the eastern Cherokee boundary show unmistakably that the surveyor 'fixed, the South East corner of the Cherokee lands' on the north bank of the Arkansas River and that from this point it was '64.50 Ch, to the South bank, where the northern extremity of the Eastern boundary of the Choctaw lands, strikes the Arkansas River.'
78
The Choctaw grant had also been surveyed pursuant to treaties executed prior to the patent. The field notes of an official survey made in 1821 show that the northern pint of the eastern boundary of Choctaw territory was on 'the south bank of the Arkansas River * * * distance from the Cherokee corner on the north bank of the river, one mile and thirty chains, Arkansas River 630 yards wide,' and that the surveyor on 'October 4th started from a post on the south side of the Arkansas, opposite the lower boundary of the Cherokees to meander the Arkansas.' A plat of another survey of Choctaw lands made in 1825 shows the northern terminus of the eastern Choctaw boundary as being on the south side of the river.
79
There is little, if anything, in these early surveys to support ownership of the river bed in the Indians. On the contrary, the indications clearly are that downstream from the Canadian River the southern border of the Cherokees' land was on the north side of the Arkansas River and the northern boundary of the Choctaws' land was on the south side.
80
I find unimpressive the Court's reliance on Brewer-Elliott Oil & Gas Co. v. United States, supra, for the proposition that because the southern boundary of the Cherokee lands ran 'down the main channel of Arkansas river' the northern half of the river bed belonged to the Indians. In Brewer-Elliott the Cherokees had ceded certain land to the United States and from that land the United States created a home for the Osage Indians, '(b)ounded * * * on the south and west by * * * the main channel of the Arkansas river * * *.' 17 Stat. 229. As stated by the Court of Appeals, the central issue was whether the Osage Indians owned 'the bed of the Arkansas river north of the thread of the main channel thereof, which was the south boundary of the lands of the Osage Tribe of Indians.' 270 F. 100, 101 (C.A.8th Cir. 1920). The Court of Appeals ruled that the river at that point was not navigable and that 'riparian grantees and owners under the acts of Congress and under the law applicable in 1838, 1872, and 1883 at the place where these leased premises lie became the owners of the beds of unnavigable streams to the respective threads thereof. Rev.Stat. § 2476 (43 U.S.C. § 931); (St. Paul and Pacific) Railroad Co. v. Schurmeier (sic), 7 Wall. 272, 287, 19 L.Ed. 74. * * *' 270 F., at 109. This Court affirmed, pointing out, as was obviously true, that the grant extended 'as far as the main channel * * *.' 260 U.S., at 87, 43 S.Ct., at 64. Nothing the Court said, however, is any basis for construing a grant to or as far as the main channel of a navigable river as an express grant of any lands under that channel.
81
Much is made of the declarations in the treaties with the Cherokee and the Choctaw Nations that the Indian lands would not be included within any State or Territory. It is argued that in view of these declarations the United States had no reason to reserve the river bed. But this is a narrow view of the historic policy of the United States. Navigable rivers in the public domain were a public resource and lands underlying them were not to be conveyed to private hands by the United States. Whether or not it was anticipated that the public domain would be included in a future State, congressional policy, declared early in our history, was that conveyances of public lands bordering on navigable rivers carried no title to the adjoining river bed.
82
I cannot, therefore, conclude that either the Cherokees or the Choctaws took any interest in the bed of the Arkansas River, at least from the junction of the Arkansas River and the Canadian River downstream to the Arkansas border.
III
83
The river bed above the Canadian River is said to be owned by the Cherokees because the tribe was granted lands on both sides of the river pursuant to a single metes and bounds description the calls of which crossed the river without excluding the river bed. It is quite true that if one plots out the conveyance described by the patent the Arkansas River is included within the perimeters of the granted property. But there is no express reference to the river bed, the river was a navigable stream, and the policy of the United States was not to convey lands underlying such waters. No such conveyance should be recognized unless the intention to make such a conveyance was unmistakably stated. No one suggests that the Cherokees were granted full sovereignty over the Arkansas River, that the United States had conveyed away its power to control navigation and commerce on the Arkansas, or that the public had lost its right to travel the navigable portion of the Arkansas by virtue of the conveyance to the Cherokee Nation. There being no indications that the Indians thought one way or the other about the underwater lands or that they had any use for them in those days, the evidence is insufficient to prove an intent on the part of the Government to convey the river bed. Cf. United States v. Holt State Bank, supra.
84
Even if it were otherwise, however, the conveyance to the Cherokees was to the Cherokees as a Nation; it created no rights, legal or equitable, in individuals. Cf. Fleming v. McCurtain, 215 U.S. 56, 30 S.Ct. 16, 54 L.Ed. 88 (1909). If the river bed passed to the tribe, it was to be held by the Nation as property common to all. Moreover, the Cherokee patent expressly provided 'that the lands hereby granted shall revert to the United States, if the said Cherokee Nation becomes extinct, or abandons the same.' The Choctaw patent and treaties contained a similar condition. Such provision limited the duration of title and qualified 'the absoluteness of the earlier words, 'in fee simple." Fleming v. McCurtain, supra, at 61, 30 S.Ct., at 18. The significance of the limitation is that pursuant to agreements reached with the Cherokee, Choctaw, and Chickasaw Nations, Congress early in this century provided for the allotment of tribal lands to individual members of the tribe, terminated the general powers of the tribal governments and continued tribal existence for limited purposes only under the supervision of the Interior Department. See Act of June 28, 1898, 30 Stat. 495; Act of July 1, 1902, 32 Stat. 716; Act of April 26, 1906, c. 1876, 34 Stat. 137. Tribal lands for the most part were conveyed to individual Indians or sold. Transfers of lands to individuals along the navigable portion of the Arkansas River neither expressly nor by implication carried with them the river bed. The former Indian territory is not now either occupied or owned solely by Indians but is widely held by diverse peoples and interests in the State of Oklahoma. Should it now be held that the title to the river bed, severed from and no longer serving communal property, remains in the tribe, to be administered or sold by it for purely private purposes? I think not. For the purposes anticipated by the treaties and patents, the Cherokee, Choctaw, and Chickasaw Nations ceased to exist as general governmental entities in 1906. Oklahoma became a State in 1907 and took title to the river bed, which had meanwhile reverted to the United States if title to the river bed had ever been in the Indian Nations.
85
I would affirm the judgment of the Court of Appeals.
1
E.g., Treaty of October 2, 1798, 7 Stat. 62; Treaty of December 17, 1801, 7 Stat. 66; Treaty of October 25, 1805, 7 Stat. 93.
2
See Johnson v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681 (1823); Fletcher v. Peck, 6 Cranch 87, 142—143, 3 L.Ed. 162 (1810).
3
See Act of March 26, 1804, § 15, 2 Stat. 289. In 1802, even before it had acquired new lands west of the Mississippi, 'the United States agreed to extinguish Indian title within the limits of the States as soon as it could be done 'peaceable (sic) and on reasonable terms." U.S. Interior Dept., Federal Indian Law 180—181 (1958).
4
See n. 3, supra.
5
The efforts on behalf of the Cherokees remaining in Georgia included two cases that were brought to this court, Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25 (1831), and Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832). For a recent account of these and other Cherokee efforts, see Burke, The Cherokee Cases: A Study in Law, politics, and Morality, 21 Stan.L.Rev. 500 (1969). See generally, Federal Indian Law, supra, n. 3, at 180—200.
6
See Marlin v. Lewallen, 276 U.S. 58, 61, 48 S.Ct. 248, 249, 72 L.Ed. 467 (1928); Choate v. Trapp, 224 U.S. 665, 667—668, 32 S.Ct. 565, 566, 56 L.Ed. 941 (1912).
7
The courts below did not resolve the dispute between petitioners, and we likewise do not pass on that question.
8
This construction of the treaty term 'down the Arkansas' indicates that at the minimum the boundary of the Choctaws was also the middle of the main channel. Congress was accustomed to using the terms 'up' or 'down' the river when designating a navigable river as the boundary between States, see, e.g., Act of March 2, 1819, § 2, 3 Stat. 490 (Alabama); Act of February 20, 1811, § 1, 2 Stat. 641 (Louisiana); and, when it did so, the boundary was set as the middle of the main channel. See Arkansas v. Mississippi, 250 U.S. 39, 39 S.Ct. 422, 63 L.Ed. 832 (1919); Iowa v. Illinois, 147 U.S. 1, 13 S.Ct. 239, 37 L.Ed. 55 (1893).
Given this congressional usage, it seems natural for the President, on whose behalf the treaties had been negotiated, to have given the same interpretation to identical language in the analogous situation involving the boundary between petitioners Choctaw and Cherokee Nations, which had long been considered sovereign entities. In fact, this Court recognized the analogy in Barney v. Keokuk, 94 U.S. 324, 337, 24 L.Ed. 224 (1877), a case involving a grant bounded by the Mississippi River, when it quoted with apparent approval the following language from Haight v. City of Keokuk 4 Iowa 199, 213 (1856): 'The grant to the (Indians) was to them as persons, and not as a political body. The political jurisdiction remained in the United States. Had the grant been to them as a political society, it would have been a question of boundary between nations or states, and then the line would have been the medium filum aguae, as it is now between Iowa and Illinois.' The grants to petitioners were undoubtedly to them as 'a political society,' and any 'well founded doubt' regarding the boundaries must, of course, be resolved in their favor.
9
The District Court took judicial notice of the navigability at all relevant times of those portions of the Arkansas River in question, and that issue is not in dispute here. In the Brewer-Elliott case, this Court affirmed the finding of the District Court that 'the head of navigation is and was the mouth of the Grand river.' 260 U.S., at 86, 43 S.Ct., at 64.
1
In addition to the millions of acres conveyed to the Cherokees in fee simple, which included the land surrounding the segment of the Arkansas River here in question, they were guaranteed lands to the west of that tract as 'a perpetual outlet west' which provided for 'free and unmolested use' of those lands.
2
The details of the removal of the Cherokees from their ancestral lands are related in Western Cherokee Indians v. United States, 27 Ct.Cl. 1, 20 et seq. While 6,000 had moved west to their new lands by 1838, 18,000 were still in their ancestral homes.
'The Eastern Cherokees were prisoners in Georgia, under the guard of 5,000 United States soldiers, who had hunted them down from their mountains and driven them out of their valleys and were now bringing them to the terms of an enforced emigration.' Id., at 20.
They were finally forcibly removed by the U.S. Army under General Scott:
'He moved quickly and successfully, and has thus recorded the most painful experience of his military life:
"Food in abundance had been provided at the depots, and wagons accompanied every detachment of troops. The Georgians distinguished themselves by their humanity and tenderness. Before the first night thousands—men, women, and children, sick and well were brought in. Poor creatures. They had obstinately refused to prepare for the removal. Many arrived half starved, but refused the food that was pressed upon them. At length the children, with less pride, gave way, and next their parents. The Georgians were the waiters on the occasion, many of them with flowing tears. The autobiographer has never witnessed a scene of deeper pathos." Id., at 23.
For early incidents involving this Court in aspects of the removal problems see M. James, Andrew Jackson: Portrait of a President 280—281, 304—305 (1937); 1 C. Warren, Supreme Court in U.S. History, c. 19 (1937); Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483.
3
Our agents said the following to the Cherokee Council on July 31, 1837: 'Here you are subjected to laws, in the making of which you have no voice; laws which are unsuited to your customs, and abhorrent to your ideas of liberty. There, Cherokees, you will make laws for yourselves, and establish such government as in your own estimation may be best suited to your condition. There, Cherokees, in your new country, you will be far beyond the limits or jurisdiction of any State or Territory. The country will be yours; yours exclusively. No other people can make claim to it, and you will be protected by the vigilant power of the United States against the intrusion of the white man.' S.Doc. No. 120, 25th Cong., 2d Sess., 988.
4
The Treaty with the Cherokees of December 29, 1835, 7 Stat. 478, provided in Article 5 that no lands conveyed shall without the consent of the Cherokees ever 'be included within the territorial limits or jurisdiction of any State or Territory.' And see Article IV of the Treaty of Sept. 27, 1830, 7 Stat. 333.
5
The Treaty with the Cherokees of May 6, 1828, 7 Stat. 311, spoke of the desire of the United States to provide the Cherokees 'a permanent home, and which shall, under the most solemn guarantee of the United States, be, and remain, theirs forever—a home that shall never, in all future time, be embarrassed by having extended around it the lines, or placed over it the jurisdiction of a Territory or State, nor be pressed upon by the extension, in any way, of any of the limits of any existing Territory or State.'
6
The story of the exploitation of Indians by state and local agencies has been recently summarized by William Brandon:
'Termination is truly a word of ill omen to tribal Indians. Its meaning in Indian affairs is the termination of 'Federal responsibility,' the responsibility of the Federal Government to act as trustee for Indian lands, rights, and resources; the responsibility to protect Indian groups in these rights and possessions—protect them particularly against states, counties, cities, or other local powers
that might divest them of their rights and possesstions—and to provide certain services such as education and health.
'These responsibilities are based upon treaty promises or other equally legal commitments, in which the Federal Government pledged, in return for cessions of value, to render unto specific Indian groups specific rights and their protection, plus the provision of schools, hospitals, sawmills, teachers, doctors, tools and implements, roads, supplies when needed—all the services of the modern world, to be supplied and administered by the Federal Government rather than administered under state and local jurisdictions, because of well-founded apprehensions that state and local jurisdictions might not be trustworthy in carrying out such promises.' Progressive, January 1970, p. 38.
E. Cahn, Our Brother's Keeper 21 (1969), states the same theme:
'The Indian knows that termination takes many forms. He can be flooded out of his reservation; he can be relocated; his reservation can be sold out from under him if he cannot meet taxes to which it is subject. His limited power to protect himself on the reservation from local prejudice and discrimination can be wiped away by the substitution of state laws for tribal law, and state jurisdiction for tribal jurisdiction. All of these, the Indian knows, are variants on one basic truth: the United States Government does not keep its promises. Sometimes it breaks them all at once, and sometimes slowly, one at a time. The result is the same—termination. When the Indian is asked to forsake his status under the Bureau in exchange for cash, for promises of technical aid, for public works improvements and industrial developments, he has learned to expect two things:
'—That the promises will not be kept.
'—That even if they should be kept, they will prove inadequate to maintain the Indian at even his reservation level of deprivation.'
7
The Cherokee Nation claims to have negotiated some 13 sand and gravel leases for the bed of the Arkansas River between April 12, 1883, and May 27, 1893—prior to the admission of Oklahoma into the Union. The record does not disclose the date when the State of Oklahoma first assumed the role of lessor of the river bed, although several cases have involved such leases by the State. See, e.g., Lynch v. Clements, Okl., 263 P.2d 153.
8
Sequoyah, the great Cherokee from Tennessee, whose home stood on the banks of the Little Tennesee River, was crippled for life on a hunting trip; and in his inactive life thereafter invented the Cherokee syllabary, inspired by the 'talking leaves' or written and printed pages by which the whites communicated. His syllabary contains some 80 syllables in the Cherokee language. His memory is perpetuated in the name of the genus of California giant redwoods and his statue was placed in Statuary Hall of the National Capitol in 1917.
| 12
|
397 U.S. 655
90 S.Ct. 1299
25 L.Ed.2d 637
SEARS, ROEBUCK AND CO., Petitioner,v.CARPET, LINOLEUM, SOFT TILE AND RESILIENT FLOOR COVERING LAYERS, LOCAL UNION NO. 419, AFL-CIO, et al.
No. 476.
Argued March 3, 1970.
Decided April 27, 1970.
Gerard C. Smetana, Chicago, Ill., for petitioner.
Dominick L. Manoli, Washington, D.C., for respondent National Labor Relations Board.
David S. Barr, Washington, D.C., for respondent Union.
PER CURIAM.
1
The petitioner, Sears, Roebuck and Company (Sears), filed a charge with the NLRB Regional Director, alleging that the respondent union was engaged in unlawful secondary picketing of the petitioner's premises in violation of § 8(b)(4)(B) of the National Labor Relations Act, as amended.1 The Regional Director investigated the charge and, finding there was reasonable cause to believe it was true, issued an unfair labor practice complaint with the Board. He also petitioned a Federal District Court for injunctive relief pursuant to § 10(l) of the Act, which directs him to apply for such temporary relief 'pending the final adjudication of the Board with respect to such matter.'2
2
Counsel for Sears appeared at the hearing before the District Court, but Sears did not seek to intervene formally. After hearing testimony the court declined to issue an injunction, believing that Sears was not likely to prevail before the Board on its unfair labor practice charge.3 The Regional Director did not appeal the court's decision, but Sears sought to do so. 410 F.2d 1148. The Court of Appeals dismissed Sears' appeal on the ground that under the Act only the Regional Director could appeal from the denial of a § 10(l) injunction. Thereafter the Board issued its decision and order in the underlying unfair labor practice proceeding, finding that the respondent union had violated § 8(b)(4)(B) of the Act, and ordering it to cease and desist from its unlawful conduct. 176 N.L.R.B. No. 120, 71 L.R.R.M. 1372 (1969).
3
Under these circumstances the question whether Sears could appeal the District Court's denial of an injunction has now become moot. For even if the Court of Appeals was wrong in dismissing Sears' appeal, any relief that that court might have given would now have terminated. "To adjudicate a cause which no longer exists is a proceeding which this court uniformly has declined to entertain." Local No. 8—6 Oil, Chemical and Atomic Workers International Union, A.F.L.—C.I.O. v. Missouri, 361 U.S. 363, 371, 80 S.Ct. 391, 396, 4 L.Ed.2d 373, quoting from Brownlow v. Schwartz, 261 U.S. 216, 217—218, 43 S.Ct. 263, 264, 67 L.Ed. 620. See also Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214; Brockington v. Rhodes, 396 U.S. 41, 90 ,S.Ct. 206, 24 L.Ed.2d 209; Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113.
4
Sears concedes that an injunction, had one issued, would terminate upon 'final' Board resolution of the underlying unfair labor practice charge. But it argues that the Board's action cannot be considered final where, as here, one of the parties, in this case the respondent union, has sought review of the Board's order. In this situation, Sears maintains, the injunctive relief, if granted, would remain in effect until the Board's order with respect to the underlying unfair labor practice were either enforced or denied enforcement by the Court of Appeals. It is argued that because the Court of Appeals has not yet acted on the Board's order here, Sears may still be entitled to injunctive relief, and thus the question of whether it was entitled to appeal the denial of a § 10(l) injunction remains a viable one.
5
But neither the language, the legislative history, nor the policies of the Act support this construction. For by its terms § 10(l) merely authorizes the issuance of an injunction 'pending the final adjudication of the Board with respect to (the) matter.' (Emphasis added.) Once the Board has acted, it can itself seek injunctive relief from the Court of Appeals, pursuant to § 10(e) of the Act, which empowers that court to grant 'such temporary relief or restraining order as it deems just and proper.'4 See McLeod For and on Behalf of N.L.R.B. v. Business Machine and Office Appliance Mechanics Conference Board, 2 Cir., 300 F.2d 237, 241. The legislative history makes clear that the purpose of enacting § 10(l) in 1947 was simply to supplement the pre-existing § 10(e) power of the Board by authorizing injunctive relief prior to Board action.5 It was thus relief prior to Board action that Congress was concerned with providing when it enacted § 10(l), and any injunction issued pursuant to that section terminates when the Board resolves the underlying dispute.
6
Where the Board ultimately finds no unfair labor practice, it would clearly be contrary to the policies of the Act to permit a district court injunction to remain in effect pending Court of Appeals review of the District Court's action. And where the Board does find an unfair labor practice, § 10(e) provides an adequate remedy should its order be disobeyed. Yet on the petitioner's reading of the Act, the District Court injunction would remain in effect until Court of Appeals review, whatever the Board did. This is not what was intended by § 10(l), and the courts that have confronted the issue have consistently so held. Carpenters' District Council of Miami, Florida and Vicinity, United Brotherhood of Carpenters & Joiners of America, A.F.L.—C.I.O. v. Boire, 5 Cir., 288 F.2d 454, 455; Monique, Inc. v. Boire, 5 Cir., 344 F.2d 1017, 1018; NLRB v. Nashville Bldg. & Construction Trades Council, 6 Cir., 383 F.2d 562, 564. See also this Court's disposition in Los Angeles Building and Construction Trades Council v. LeBaron, 342 U.S. 802, 72 S.Ct. 25, 96 L.Ed. 607. But see Houston Insulation Contractors Assn. v. NLRB, 5 Cir., 339 F.2d 868.
7
Because any injunctive relief to which Sears might have been entitled under s 10(l) would now have terminated in any event, the question, of whether Sears was entitled to challenge the denial of such relief has become moot.
8
Accordingly the judgment of the Court of Appeals is vacated and the case is remanded to the District Court with directions to dismiss the complaint as moot. It is so ordered.
9
Judgment of Court of Appeals vacated and case remanded to the District Court with directions.
1
Sec. 8(b). 'It shall be an unfair labor practice for a labor organization or its agents—
'(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—* * * (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor oganization has been certified as the representative of such employees under the provisions of section 159 * * *.' (61 Stat. 141, 73 Stat. 542, 29 U.S.C. § 158(b).)
2
29 U.S.C. § 160(l).
3
The District Court decision is unreported.
4
29 U.S.C. § 160(e).
5
'Under the present act the Board is empowered to seek interim relief only after it has filed in the appropriate circuit court of appeals its order and the record on which it is based * * *.
'In subsections (j) and (l) * * * the Board is given additional authority to seek injunctive relief * * *. Thus the Board need not wait, if the circumstances call for such relief, until it has held a hearing, issued its order, and petitioned for enforcement of its order.' S.Rep. No. 105, 80th Cong., 1st Sess., 27 (1947).
| 89
|
397 U.S. 759
90 S.Ct. 1441
25 L.Ed.2d 763
Daniel McMANN, Warden, et al., Petitioners,v.Willie RICHARDSON et al.
No. 153.
Argued Feb. 24, 1970.
Decided May 4, 1970.
Brenda Soloff, New York City, for petitioners.
Michael R. Juviler, New York City, for the District Attorney of New York County, as amicus curiae, by special leave of Court.
Gretchen White Oberman, New York City, for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The petition for certiorari, which we granted, McMann v. Ross, 396 U.S. 813, 90 S.Ct. 65, 24 L.Ed.2d 67 (1969), seeks reversal of three separate judgments of the Court of Appeals for the Second Circuit ordering hearings on petitions for habeas corpus filed by the respondents in this case.1 The principal issue before us is whether and to what extent an otherwise valid guilty plea may be impeached in collateral proceedings by assertions or proof that the plea was motivated by a prior coerced confession. We find ourselves in substantial disagreement with the Court of Appeals.
2
* The three respondents now before us are Dash, Richardson, and Williams. We first state the essential facts involved as to each.
3
Dash: In February 1959, respondent Dash was charged with first-degree robbery which, because Dash had previously been convicted of a felony, was punishable by up to 60 years' imprisonment.2 After pleading guilty to robbery in the second degree in April, he was sentenced to a term of eight to 12 years as a second-felony offender.3 His petition for collateral relief in the state courts in 1963 was denied without a hearing.4 Relief was then sought in the United States District Court for the Southern District of New York where his petition for habeas corpus alleged that his guilty plea was the illegal product of a coerced confession and of the trial judge's threat to impose a 60-year sentence if he was convicted after a plea of not guilty. His petition asserted that he had been beaten, refused counsel, and threatened with false charges prior to his confession and that the trial judge's threat was made during an off-the-record colloquy in one of Dash's appearances in court prior to the date of his plea of guilty. Dash also asserted that his court-appointed attorney had advised pleading guilty since Dash did not 'stand a chance due to the alleged confession signed' by him. The District Court denied the petition without a hearing because 'a voluntary plea of guilty entered on advice of counsel constitutes a waiver of all non-jurisdictional defects in any prior stage of the proceedings against (defendant),' citing United States ex rel. Glenn v. McMann, 349 F.2d 1018 (C.A.2d Cir. 1965), cert. denied, 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966), and other cases. The allegation of coercion by the trial judge did not call for a hearing since the prosecutor had filed an affidavit in the state court categorically denying that the trial judge ever threatened the defendant. Dash then appealed to the Court of Appeals for the Second Circuit.
4
Richardson: Respondent Richardson was indicted in April 1963 for murder in the first degree. Two attorneys were assigned to represent Richardson. He initially pleaded not guilty but in July withdrew his plea and pleaded guilty to murder in the second degree, specifically admitting at the time that he struck the victim with a knife. He was convicted and sentenced to a term of 30 years to life. Following the denial without a hearing of his application for collateral relief in the state courts,5 Richardson filed his petition for habeas corpus in the United States District Court for the Northern District of New York, alleging in conclusory fashion that his plea of guilty was induced by a coerced confession and by ineffective court-appointed counsel. His petition was denied without a hearing, and he appealed to the Court of Appeals for the Second Circuit, including with his appellate brief a supplemental affidavit in which he alleged that he was beaten into confessing the crime, that his assigned attorney conferred with him only 10 minutes prior to the day the plea of guilty was taken, that he advised his attorney that he did not want to plead guilty to something he did not do, and that his attorney advised him to plead guilty to avoid the electric chair, saying that 'this was not the proper time to bring up the confession' and that Richardson 'could later explain by a writ of habeas corpus how my confession had been beaten out of me.'
5
Williams: In February 1956, respondent Williams was indicted for five felonies, including rape and robbery. He pleaded guilty to robbery in the second degree in March and was sentenced in April to a term of 7 1/2 to 15 years. After unsuccessful applications for collateral relief in the state courts,6 he petitioned for a writ of habeas corpus in the United States District Court for the Southern District of New York, asserting that his plea was the consequence of a coerced confession and was made without an understanding of the nature of the charge and the consequences of the plea. In his petition and in documents supporting it, allegations were made that he had been handcuffed to a desk while being interrogated, that he was threatened with a pistol and physically abused, and that his attorney, in advising him to plead guilty, ignored his alibi defense and represented that his plea would be to a misdemeanor charge rather than to a felony charge. The petition was denied without a hearing and Williams appealed.
6
The Court of Appeals for the Second Circuit reversed in each case, sitting en banc and dividing six to three in Dash's case7 and disposing of Richardson's and Williams' cases in decisions by three-judge panels.8 In each case it was directed that a hearing be held on the petition for habeas corpus.9 It was the Court of Appeals' view that a plea of guilty is an effective waiver of pretrial irregularities only if the plea is voluntary and that a plea is not voluntary if it is the consequence of an involuntary confession.10 That the petitioner was represented by counsel and denied the existence of coercion or promises when tendering his plea does not foreclose a hearing on his petition for habeas corpus alleging matters outside the state court record. Although conclusory allegations would in no case suffice, the allegations in each of these cases concerning the manner in which the confession was coerced and the connection between the confession and the plea were deemed sufficient to require a hearing. The law required this much, the Court of Appeals thought, at least in New York, where prior to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), constitutionally acceptable procedures were unavailable to a defendant to test the voluntariness of his confession. The Court of Appeals also ordered a hearing in each case for reasons other than that the plea was claimed to rest on a coerced confession which the defendant had no adequate opportunity to test in the state courts. In the Dash case, the additional issue to be considered was whether the trial judge coerced the guilty plea by threats as to the probable sentence after trial and conviction on a plea of not guilty; in Richardson, the additional issue was the inadequacy of counsel allegedly arising from the short period of consultation and counsel's advice to the effect that the confession issue could be raised after a plea of guilty; and in Williams, the additional question was the alleged failure of counsel to consider Williams' alibi defense and to make it clear that he was pleading to a felony rather than to a misdemeanor.
II
7
The core of the Court of Appeals' holding is the proposition that if in a collateral proceeding a guilty plea is shown to have been triggered by a coerced confession—if there would have been no plea had there been no confession—the plea is vulnerable at least in cases coming from New York where the guilty plea was taken prior to Jackson v. Denno, supra. We are unable to agree with the Court of Appeals on this proposition.
8
A conviction after a plea of guilty normally rests on the defendant's own admission in open court that he committed the acts with which he is charged. Brady v. United States, 397 U.S. 742, at 748, 90 S.Ct. 1463, at 1468, 25 L.Ed.2d 747; McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170—1171, 22 L.Ed.2d 418 (1969). That admission may not be compelled, and since the plea is also a waiver of trial—and unless the applicable law otherwise provides,11 a waiver of the right to contest the admissibility of any evidence the State might have offered against the defendant—it must be an intelligent act 'done with sufficient awareness of the relevant circumstances and likely consequences.' Brady v. United States, 397 U.S., at 748, 90 S.Ct., at 1469, 25 L.Ed.2d 747.
9
For present purposes, we put aside those cases whrer the defendant has his own reasons for pleading guilty wholly aside from the strength of the case against him as well as those cases where the defendant, although he would have gone to trial had he thought the State could not prove its case, is motivated by evidence against him independent of the confession. In these cases, as the Court of Appeals recognized, the confession, even if coerced, is not a sufficient factor in the plea to justify relief. Neither do we have before us the uncounseled defendant, see Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956), nor the situation where the circumstances that coerced the confession have abiding impact and also taint the plea. Cf. Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940). It is not disputed that in such cases a guilty plea is properly open to challenge.12
10
The issue on which we differ with the Court of Appeals arises in those situations involving the counseled defendant who allegedly would put the State to its proof if there was a substantial enough chance of acquittal, who would do so except for a prior confession that might be offered against him, and who because of the confession decides to plead guilty to save himself the expense and agony of a trial and perhaps also to minimize the penalty that might be imposed. After conviction on such a plea, is a defendant entitled to a hearing, and to relief if his factual claims are accepted, when his petition for habeas corpus alleges that his confession was in fact coerced and that it motivated his plea? We think not if he alleges and proves no more than this.
III
11
Since we are dealing with a defendant who deems his confession crucial to the State's case against him and who would go to trial if he thought his chances of acquittal were good, his decision to plead guilty or not turns on whether he thinks the law will allow his confession to be used against him. For the defendant who considers his confession involuntary and hence unusable against him at a trial, tendering a plea of guilty would seem a most improbable alternative. The sensible course would be to contest his guilt, prevail on his confession claim at trial, on appeal, or, if necessary, in a collateral proceeding, and win acquittal, however guilty he might be. The books are full of cases in New York and elsewhere, where the defendant has made this choice and has prevailed. If he nevertheless pleads guilty the plea can hardly be blamed on the confession which in his view was inadmissible evidence and no proper part of the State's case. Since by hypothesis the evidence aside from the confession is weak and the defendant has no reasons of his own to plead, a guilty plea in such circumstances is nothing less than a refusal to present his federal claims to the state court in the first instance—a choice by the defendant to take the benefits, if any, of a plea of guilty and then to pursue his coerced-confession claim in collateral proceedings. Surely later allegations that the confession rendered his plea involuntary would appear incredible, and whether his plain bypass of state remedies was an intelligent act depends on whether he was so incompetently advised by counsel concerning the forum in which he should first present his federal claim that the Constitution will afford him another chance to plead.
12
A more credible explanation for a plea of guilty by a defendant who would go to trial except for his prior confession is his prediction that the law will permit his admissions to be used against him by the trier of fact. At least the probability of the State's being permitted to use the confession as evidence is sufficient to convince him that the State's case is too strong to contest and that a plea of guilty is the most advantageous course. Nothing in this train of events suggests that the defendant's plea, as distinguished from his confession, is an involuntary act. His later petition for collateral relief asserting that a coerced confession induced his plea is at most a claim that the admissibility of his confession was mistakenly assessed and that since he was erroneously advised, either under the then applicable law or under the law later announced, his plea was an unintelligent and voidable act. The Constitution, however, does not render pleas of guilty so vulnerable.
13
As we said in Brady v. United States, 397 U.S., at 756—757, 90 S.Ct., at 1473—1474, 25 L.Ed.2d 747, the decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State's case. Counsel must predict how the facts, as he understands them, would be viewed by a court. If proved, would those facts convince a judge or jury of the defendant's guilt? On those facts would evidence seized without a warrant be admissible? Would the trier of fact on those facts find a confession voluntary and admissible? Questions like these cannot be answered with certitude; yet a decision to plead guilty must necessarily rest upon counsel's answers, uncertain as they may be. Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts.
14
That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing. Courts continue to have serious differences among themselves on the admissibility of evidence, both with respect to the proper standard by which the facts are to be judged and with respect to the application of that standard to particular facts. That this Court might hold a defendant's confession inadmissible in evidence, possibly by a divided vote, hardly justifies a conclusion that the defendant's attorney was incompetent or ineffective when he thought the admissibility of the confession sufficiently probable to advise a plea of guilty.
15
In our view a defendant's plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant's confession.13 Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases. On the one hand, uncertainty is inherent in predicting court decisions; but on the other hand defendants facing felony charges are entitled to the effective assistance of competent counsel.14 Beyond this we think the matter, for the most part, should be left to the good sense and discretion of the trial courts with the admonition that if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.
IV
16
We hold, therefore, that a defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for habeas corpus. Nor do we deem the situation substantially different where the defendant's plea was entered prior to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). At issue in that case was the constitutionality of the New York procedure for determining the voluntariness of a confession offered in evidence at a jury trial. This procedure, which would have been applicable to the respondents if they had gone to trial, required the trial judge, when the confession was offered and a prima facie case of voluntariness established, to submit the issue to the jury without himself finally resolving disputed issues of fact and determining whether or not the confession was voluntary. The Court held this procedure unconstitutional because it did not 'afford a reliable determination of the voluntariness of the confession offered in evidence at the trial, did not adequately protect Jackson's right to be free of a conviction based upon a coerced confession and therefore cannot withstand constitutional attack under the Due Process Clause of the Fourteenth Amendment.' 378 U.S., at 377, 84 S.Ct., at 1781. In reaching that conclusion, the Court overruled Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953), which had approved the New York practice.
17
Whether a guilty plea was entered before or after Jackson v. Denno, the question of the validity of the plea remains the same: was the plea a voluntary and intelligent act of the defendant? As we have previously set out, a plea of guilty in a state court is not subject to collateral attack in a federal court on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney. For the respondents successfully to claim relief based on Jackson v. Denno, each must demonstrate gross error on the part of counsel when he recommended that the defendant plead guilty instead of going to trial and challenging the New York procedures for determining the admissibility of confessions. Such showing cannot be made for precisely this challenge was presented to the New York courts and to this Court in Stein v. New York, supra, and in 1953 this Court found no constitutional infirmity in the New York procedures for dealing with coerced-confession claims. Counsel for these respondents cannot be faulted for not anticipating Jackson v. Denno or for considering the New York procedures to be as valid as the four dissenters in that case thought them to be.
18
We are unimpressed with the argument that because the decision in Jackson has been applied retroactively to defendants who had previously gone to trial, the defendant whose confession allegedly caused him to plead guilty prior to Jackson is also entitled to a hearing on the voluntariness of his confession and to a trial if his admissions are held to have been coerced. A conviction after trial in which a coerced confession is introduced rests in part on the coerced confession, a constitutionally unacceptable basis for conviction. It is that conviction and the confession on which it rests that the defendant later attacks in collateral proceedings. The defendant who pleads guilty is in a different posture. He is convicted on his counseled admission in open court that he committed the crime charged against him. The prior confession is not the basis for the judgment, has never been offered in evidence at a trial, and may never be offered in evidence. Whether or not the advice the defendant received in the pre-Jackson era would have been different had Jackson then been the law has no bearing on the accuracy of the defendant's admission that he committed the crime.
19
What is at stake in this phase of the case is not the integrity of the state convictions obtained on guilty pleas, but whether, years later, defendants must be permitted to withdraw their pleas, which were perfectly valid when made, and be given another choice between admitting their guilt and putting the State to its proof. It might be suggested that if Jackson had been the law when the pleas in the cases below were made—if the judge had been required to rule on the voluntariness of challenged confessions at a trial—there would have been a better chance of keeping the confessions from the jury and there would have been no guilty pleas. But because of inherent uncertainty in guilty-plea advice, this is a highly speculative matter in any particular case and not an issue promising a meaningful and productive evidentiary hearing long after entry of the guilty plea. The alternative would be a per se constitutional rule invalidating all New York guilty pleas that were motivated by confessions and that were entered prior to Jackson. This would be an improvident invasion of the State's interests in maintaining the finality of guilty-plea convictions that were valid under constitutional standards applicable at the time. It is no denigration of the right to trial to hold that when the defendant waives his state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk or ordinary error in either his or his attorney's assessment of the law and facts. Although he might have pleaded differently had later decided cases then been the law, he is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.
V
20
As we have previously indicated, in each case below the Court of Appeals ruled that a hearing was required to consider claims other than the claim that the plea of guilty rested on a coerced confession and was entered prior to Jackson v. Denno, supra. With respect to these other claims, we now express no disagreement with the judgments of the Court of Appeals; but since our holding will require reassessment of the petitions for habeas corpus in the light of the standards expressed herein, the judgments of the Court of Appeals are vacated and the case is remanded to that court for further proceedings consistent with this opinion.
21
It is so ordered.
22
Judgments vacated and cases remanded.
23
Mr. Justice BLACK, while still adhering to his separate opinion in Jackson v. Denno, 378 U.S. 368, 401—423, 84 S.Ct. 1774, 1793—1794, 1805, 12 L.Ed.2d 908, concurs in the Court's opinion and judgment in this case.
24
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
25
In this case the Court moves yet another step toward the goal of insulating all guilty pleas from subsequent attack no matter what unconstitutional action of government may have induced a particular plea. Respondents alleged in some detail that they were subjected to physical and mental coercion in order to force them to confess; that they succumbed to these pressures; and that because New York provided no constitutionally acceptable procedures for challenging the validity of their confessions in the trial court they had no reasonable alternative to pleading guilty.1 Respondents' contention, in short, is that their pleas were the product of the State's illegal action. Notwithstanding the possible truth of the claims, the Court holds that respondents are not even entitled to a hearing which would afford them an opportunity to substantiate their allegations. I cannot agree, for it is clear that the result reached by the Court is inconsistent not only with the prior decisions of this Court but also with the position adopted by virtually every court of appeals that has spoken on this issue.2
26
* The basic principle applicable to this case was enunciated for the Court by Mr. Justice Black in Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S.Ct. 223, 224, 100 L.Ed. 126 (1956): '(A) conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause.' The critical factor in this formulation is that convictions entered on guilty pleas are not valid if they are 'based on' coerced confessions. A defendant who seeks to overturn his guilty plea must therefore demonstrate the existence of a sufficient interrelationship or nexus between the plea and the antecedent confession so that the plea may be said to be infected by the State's prior illegal action. Thus to invalidate a guilty plea more must be shown than the mere existence of a coerced confession. The Court of Appeals so held; respondents do not disagree. The critical question, then, is what elements in addition to the coerced confession must be alleged and proved to demonstrate the invalidity of a guilty plea.
27
The Court abruptly forecloses any inquiry concerning the impact of an allegedly coerced confession by decreeing that the assistance of 'reasonably competent' counsel insulates a defendant from the effects of a prior illegal confession. However, as the Court tacitly concedes, the absolute rigor of its new rule must be adjusted to accommodate cases such as Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940). In that case, the four defendants confessed. Subsequently, three of them pleaded guilty, while the fourth pleaded not guilty and was tried before a jury. Each of the defendants, represented by counsel, stated during the trial that he had confessed and was testifying voluntarily.3 Notwithstanding this testimony in open court, the proffering of guilty pleas, and representation by counsel, the state courts and this Court as well properly permitted a collateral attack upon the judgments of conviction entered on the guilty pleas.
28
In explication of Chambers, the Court notes that the coercive circumstances that compelled the confessions may 'have abiding impact and also taint the plea.' Ante at 767. Apparently the Court would permit a defendant who was represented by counsel to attack his conviction collaterally if he could demonstrate that coercive pressures were brought to bear upon him at the very moment he was called to plead. This position is certainly unexceptionable. I cannot agree, however, that the pleading process is constitutionally adequate despite a coerced confession merely because the coercive pressures that compelled the confession ceased prior to the entry of the plea, In short, the 'abiding impact' of the coerced confession may continue to prejudice a defendant's case or unfairly influence his decisions regarding his legal alternatives.
29
Moreover, our approach in Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956), is inconsistent with the absolute rule that the Court adopts today. We there considered whether, under all the circumstances of the case, the pressures brought to bear on the defendant by the State, including the extraction of a coerced confession, were sufficient to render his guilty plea involuntary. While the fact that the defendant was not assisted by counsel was given considerable weight in determining involuntariness, it was hardly the sole critical consideration. Thus the Court's attempt to distinguishe Claudy on the basis of counsel's assistance alone is unpersuasive. I would continue to adhere to the approach adopted in Chambers and Claudy and take into account all of the circumstances surrounding the entry of a plea rather than attach talismanic significance to the presence of counsel.
30
I concluded in Parker v. North Carolina and Brady v. United States, 397 U.S. at 802, 90 S.Ct. at 1476, 25 L.Ed.2d 793, that 'the legal concept of 'involuntariness' has not been narrowly confined but refers to a surrender of constitutional rights influenced by considerations that the government cannot properly introduce' into the pleading process. In Parker and Brady the 'impermissible factor' introduced by the government was an unconstitutional death penalty scheme; here the improper influence is a coerced confession. In either event the defendant must establish that the unconstitutional influence actually infected the pleading process, that it was a significant factor in his decision to plead guilty. But if he does so, then he is entitled to reversal of the judgment of conviction entered on the plea.
31
Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), lends additional support to this conclusion. There confessions had been illegally procured from a defendant and then introduced at his trial. At a new trial, after reversal of the defendant's conviction, he objected to the introduction of his testimony from the previous trial on the ground that he had been improperly induced to testify at the former trial by the introduction of the inadmissible confessions. We sustained this contention, noting in part that
32
'the petitioner testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained, and the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby—the fruit of the poisonous tree, to invoke a time-worn metaphor. For the 'essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.' Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319.
33
'* * * The question is not whether the petitioner made a knowing decision to testify, but why. If he did so in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.' 392 U.S., at 222—223, 88 S.Ct., at 2010. (Emphasis in original.)
34
The same reasoning is applicable here. That is, if the coerced confession induces a guilty plea, that plea, no less than the surrender of the self-incrimination privilege in Harrison, is the fruit of the State's prior illegal conduct, and thus is vulnerable to attack.4
35
As in Parker and Brady the Court lays great stress upon the ability of counsel to offset the improper influence injected into the pleading process by the State's unconstitutional action. However, here again, the conclusions that the Court draws from the role it assigns to counsel are, in my view, entirely incorrect, for it cannot be blandly assumed, without further discussion, that counsel will be able to render effective assistance to the defendant in freeing him from the burdens of his unconstitutionally extorted confession.
36
In Parker and Brady there was no action that counsel could take to remove the threat posed by the unconstitutional death penalty scheme. There was no way, in short, to counteract the intrusion of an impermissible factor into the pleading process.
37
However, where the unconstitutional factor is a coerced confession, it is not necessarily true that counsel's role is so limited. It is a common practice, for example, to hold pretrial hearings or devise other procedures for the purpose of permitting defendants an opportunity to challenge the admissibility of allegedly coerced confessions. If it is assumed that these procedures provide a constitutionally adequate means to attack the validity of the confession, then it must be expected that a defendant who subsequently seeks to overturn his guilty plea will come forward with a persuasive explanation for his failure to invoke those procedures which were readily available to test the validity of his confession.
38
It does not follow from this that a defendant assisted by counsel can never demonstrate that this failure to invoke the appropriate procedures was justified. The entry of a guilty plea is, essentially, a waiver, or the 'intentional relinquishment or abandonment of a known right,' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). By pleading guilty the defendant gives up not only his right to a jury trial, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), but also, in most jurisdictions, the opportunity to challenge the validity of his confession by whatever procedures are provided for that purpose. It is always open to a defendant to establish that his guilty plea was not a constitutionally valid waiver, that he did not deliberately bypass the orderly processes provided to determine the validity of confessions. Cf. Fay v. Noia, 372 U.S. 391, 438—440, 83 S.Ct. 822, 848—849, 9 L.Ed.2d 837 (1963). Whether or not there has been a deliberate bypass can be determined, of course, only by a consideration of the total circumstances surrounding the entry of each plea.5
II
39
In the foregoing discussion I have assumed that the State has provided a constitutionally adequate method to challenge an allegedly invalid confession in the trial court. That assumption is not applicable to respondents in this case, however, because, as we held in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the procedure that New York employed at the time their pleas were tendered failed to provide a constitutionally acceptable means to challenge the validity of confessions. Thus, even the most expert appraisal and advice by counsel necessarily had to take into account a procedure for challenging the validity of confessions that was fundamentally defective, but that had nevertheless been approved by this Court in Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953). Hence the advice of counsel could not remedy or offset the constitutional defect infused into the pleading process. Therefore, respondents are entitled to relief if they can establish that confessions were coerced from them and that their guilty pleas were motivated in significant part by their inability to challenge the validity of the confessions in a constitutionally adequate procedure.6 By such a showing they would establish a nexus between the coerced confessions and the subsequent pleas and thereby demonstrate that their respective pleas were the product of the State's illegal action.
40
The Court seeks to avoid the impact of Jackson v. Donno upon pre-Jackson guilty pleas by adding a new and totally unjustified element to the Court's confused pattern of retroactivity rules. Jackson v. Denno has been held to be retroactive, at least in the sense that it requires hearings to determine the voluntariness of pre-Jackson confessions that were introduced at trial.7 The Court today decides, however, that Jackson's effect is to be limited to situations in which the confession was introduced at trial and is to have no application whatever to guilty pleas. In short, Jackson v. Denno is now held to be only partially retroactive, a wholly novel and unacceptable result.
41
As I understand the Court's opinion, there are basically three reasons why the Court rejects the contention that the Jackson-Denno defect may unconstitutionally infect the pleading process. The first is the highly formalistic notion that the guilty plea, and not the antecedent confession, is the basis of the judgments against respondents. Of course this is true in the technical sense that the guilty plea is always the legal basis of a judgment of conviction entered thereon. However, this argument hardly disposes adequately of the contention that the plea in turn was at least partially induced, and therefore is tainted, by the fact that no constitutionally adequate procedures existed to test the validity of a highly prejudicial and allegedly coerced confession.
42
The Court's formalism is symptomatic of the desire to ignore entirely the motivational aspect of a decision to plead guilty. As long as counsel is present when the defendant pleads, the Court is apparently willing to assume that the government may inject virtually any influence into the process of deciding on a plea. However, as I demonstrated in Parker and Brady, this insistence upon ignoring the factors with which the prosecution confronts the defendant before he pleads departs broadly from the manner in which the voluntariness of guilty pleas has traditionally been approached. In short, the critical question is not, as the Court insists, whether respondents knowingly decided to plead guilty but why they made that decision. Cf. Harrison v. United States, 392 U.S. 219, 223, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047 (1968).
43
Secondly, the Court views the entry of the guilty pleas as waivers of objections to the allegedly coerced confessions. For the reasons previously stated, I do not believe that the pleas were legally voluntary if respondents' allegations are proved. Nor were the pleas the relinquishment of a known right, for it was only when Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953), was overruled by Jackson v. Denno that it became clear that the New York procedure was constitutionally inadequate. Thus there is no sense in which respondents deliberately by-passed or 'waived' state procedures constitutionally adequate to adjudicate their coerced-confession claims. See Moreno v. Beto, 415 F.2d 154 (C.A.5th Cir. 1969); cf. Smith v. Yeager, 393 U.S. 122, 89 S.Ct. 277, 21 L.Ed.2d 246 (1968).
44
Finally, the Court takes the position, in effect, that the defect in the Stein-approved New York procedure was not very great that the procedure was only a little bit unconstitutional—and hence that it is too speculative to inquire whether the difference between the pre-Jackson and post-Jackson procedures would, in a particular case, alter the advice given by counsel concerning the desirability of a plea. If, indeed, the deficiency in the pre-Jackson procedure was not very great, then it is difficult to undestand why we found it necessary to invalidate the procedure and, particularly, why it was imperative to apply the Jackson decision retroactively. I, for one, have never thought Jackson v. Denno is so trivial, that it deals with procedural distinctions of such insignificance that they would necessarily make no difference in the plea advice given to a defendant by his attorney. To the contrary, the extent to which the constitutional defect in the pre-Jackson-Denno procedure actually infected the pleading process cannot be determined by a priori pronouncements by this Court; rather, its effect can be evaluated only after a factual inquiry into the circumstances motivating particular pleas.
45
Despite the disclaimers to the contrary, what is essentially involved both in the instant case and in Brady and Parker is nothing less than the determination of the Court to preserve the sanctity of virtually all judgments obtained by means of guilty pleas. There is no other adequate explanation for the surprising notion of partial retroactivity that the Court today propounds. An approach that shrinks from giving effect to the clear implications of our prior decisions by drawing untenable distinctions may have its appeal, but it hardly furthers the goal of principled decisionmaking. Thus, I am constrained to agree with the concurring judge in the Court of Appeals that it is
46
'the rankest unfairness, and indeed a denigration of the rule of law, to recognize the infirmity of the pre-Jackson v. Denno procedure for challenging the legality of a confession in the case of prisoners who went to trial but to deny access to the judicial process to those who improperly pleaded guilty merely because the state would have more difficulty in affording a new trial to them.' 409 F.2d, at 1027.
47
Lest it be thought that my views would render the criminal process 'less effective in protecting society against those who have made it impossible to live today in safety,' Harrison v. United States, 392 U.S. 219, 235, 88 S.Ct. 2008, 2016, 2017, 20 L.Ed.2d 1047 (White, J., dissenting), I emphasize again that the only issue involved in this case is whether respondents are entitled to a hearing on their claims that coerced confessions and a procedural device that we condemned as unconstitutional deterred them from exercising their constitutional rights. Whether or not these allegations have bases in fact is not before us, for these individuals have never been afforded a judicial forum for the presentation of their claims. In these circumstances, I would not simply slam shut the door of the courthouse in their faces.
III
48
I agree with the Court of Appeals that a hearing is required for the coercedconfession claims presented in these cases. We have, of course, held that a post-conviction hearing must be afforded to defendants whose allegations of constitutional deprivation raise factual issues and are neither 'vague, conclusory, or palpably incredible,' Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962), nor 'patently frivolous or false,' Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 119, 76 S.Ct. 223, 225, 100 L.Ed. 126 (1956).8 Respondents have raised at least three factual issues that the record in its present form does not resolve: (1) whether confessions were obtained from them; (2) whether these confessions, if given, were coerced; and (3) whether respondents had a justifiable reason for their failure to challenge the validity of the confessions—more specifically, whether the confessions, together with the Jackson-Denno defect in New York's procedures, influenced in significant part the decisions to plead guilty. As to each of these issues, respondents of course bear the burden of proof.
49
Respondents alleged in some detail that they had been coerced by the police into confessing. They also alleged that the Jackson-Denno defect in the state procedures rendered futile any attempt to challenge the confessions in the state trial court.9 The Court of Appeals noted that, in the ordinary case, additional supporting material, such as an affidavit from the attorney who represented the petitioner, should be appended to his habeas corpus petition. Without elaboration, however, the Court of Appeals concluded that no material in corroboration was necessary in this case.
50
To be sure, it is difficult, though not impossible, to believe that without any corroborative evidence a petitioner would ultimately succeed with a sophisticated argument such as the contention that a coerced confession, coupled with the Jackson-Denno defect, induced his guilty plea. In this connection, the views of the defense attorney when the plea was entered are particularly important because in the ordinary case counsel is in a good position to appraise the factors that actually entered into the decision to plead guilty. As a technical matter of pleading, however, I would not absolutely require that a petitioner, particularly one who is proceeding pro se, accompany his petition with extensive supporting materials.10 It is of course prudent for petitioners who raise a claim such as the one presented in the instant case to append a statement from counsel, or at least an explanation of why such a statement was not procured, for the petitioner who does not do so takes a considerable risk that his petition will be denied as vague, conclusory or frivolous.11
51
The respondents in this case clearly raised the Jackson-Denno issue in their petitions to the District Court. Furthermore, this Court has not affected the judgment below insofar as it requires hearings for these respondents on issues other than their coerced-confession claims. In these circumstances, I would not disturb that portion of the Court of Appeals' order that requires the District Court to consider the merits of respondents' coerced-confession allegations.
52
Accordingly, I would affirm the judgment of the Court of Appeals.
1
Our grant of certiorari also included a fourth respondent, another petitioner for habeas corpus, Wilbert Ross. See n. 7, infra. However, upon consideration of a subsequent suggestion of mootness by reason of Ross' death, we vacated the Court of Appeals' judgment and remanded to the District Court for the Eastern District of New York with directions to dismiss the petition for habeas corpus as moot. 396 U.S. 118, 90 S.Ct. 395, 24 L.Ed.2d 303 (1969).
2
N.Y.Penal Law, McKinney's Consol.Laws, c. 40, § 2125, then in effect, provided that first-degree robbery was punishable by imprisonment for an indeterminate term the minimum of which was to be not less than 10 years and the maximum of which was to be not more than 30 years. Under N.Y.Penal Law § 1941, subd. 1, then in effect, conviction for a second felony was punishable by imprisonment for an indeterminate term with the minimum one-half the maximum set for a first conviction and the maximum twice the maximum set for a first conviction.
In addition to the first-degree robbery charge, Dash was also charged with grand larceny and assault.
3
Waterman and Devine, two men accused of taking part in the robbery along with Dash, did not plead guilty; after a jury trial they were convicted of first-degree robbery, second-degree grand larceny, and second-degree assault and were sentenced to 15 to 20 years' imprisonment. On appeal these convictions were reversed because of the State's use of post-indictment confessions given by one of the defendants in the absence of counsel. People v. Waterman, 12 A.D.2d 84, 208 N.Y.S.2d 596 (1960), aff'd, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445 (1961). Waterman and Devine then pleaded guilty to assault in the second degree and were sentenced to imprisonment for 2 1/2 to 3 years.
4
The denial of relief was affirmed by the Appellate Division of the New York Supreme Court, People v. Dash, 21 A.D.2d 978, 252 N.Y.S.2d 1016 (1964), aff'd mem., 16 N.Y.2d 493, 260 N.Y.S.2d 437, 208 N.E.2d 171 (1965).
5
The denial of relief was affirmed without opinion by the Appellate Division of the New York Supreme Court, People v. Richardson, 23 A.D.2d 969, 260 N.Y.S.2d 586 (1965).
6
The denial of relief on the claims later presented in the Federal District Court was affirmed without opinion by the Appellate Division of the New York Supreme Court, People v. Williams, 25 A.D.2d 620, 268 N.Y.S.2d 958 (1966).
7
United States ex rel. Ross v. McMann, 409 F.2d 1016 (C.A. 2d Cir. 1969). The Court of Appeals' opinion dealt also with the appeal of Wilbert Ross from a denial of habeas corpus without a hearing by the United States District Court for the Eastern District of New York. Ross in his habeas petition alleged that his 1955 plea of guilty to second-degree murder was induced by the State's possession of an unconstitutionally obtained confession. The Court of Appeals held that, like Dash, Ross was entitled to a hearing on his claims. Along with the three respondents dealt with in this opinion, we granted certiorari as to Ross but the matter was subsequently remanded for dismissal as moot after the death of Ross. See n. 1, supra.
8
United States ex rel. Richardson v. McMann, 408 F.2d 48 (C.A. 2d Cir. 1969); United States ex rel. Williams v. Follette, 408 F.2d 658 (C.A. 2d Cir. 1969).
9
The same day that the Court of Appeals ordered hearings in the Dash and Richardson cases, the court, en banc and without dissent, held that a hearing was not required in the case of a petitioner for habeas corpus who had pleaded guilty after a trial judge ruled that his confession was admissible in evidence—the Court of Appeals found that the petition for habeas corpus did not allege with sufficient specificity that the plea of guilty was infected by the allegedly coerced confession. United States ex rel. Rosen v. Follette, 409 F.2d 1042 (C.A. 2d Cir. 1969).
10
The majority and concurring opinions in the Dash case relied on decisions in several other circuits: United States ex rel. Collins v. Maroney, 382 F.2d 547 (C.A.3d Cir. 1967); Jones v. Cunningham, 297 F.2d 851 (C.A. 4th Cir. 1962); Smith v. Wainwright, 373 F.2d 506 (C.A. 5th Cir. 1967); Carpenter v. Wainwright, 372 F.2d 940 (C.A. 5th Cir. 1967); Bell v. Alabama, 367 F.2d 243 (C.A. 5th Cir. 1966), cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967); Reed v. Henderson, 385 F.2d 995 (C.A. 6th Cir. 1967); Smiley v. Wilson, 378 F.2d 144 (C.A. 9th Cir. 1967); Doran v. Wilson, 369 F.2d 505 (C.A. 9th Cir. 1966).
11
New York law now permits a defendant to challenge the admissibility of a confession in a pretrial hearing and to appeal from an adverse ruling on the admissibility of the confession even if the conviction is based on a plea of guilty. N.Y.Code Crim.Proc. § 813—g (Supp.1969) (effective July 16, 1965). A similar provision permits a defendant to appeal an adverse ruling on a Fourth Amendment claim after a plea of guilty. N.Y.Code Crim.Proc. § 813—c (Supp.1969) (effective April 29, 1962).
12
Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956), involved a plea of guilty made by a defendant without assistance of counsel. Herman did not hold that a plea of guilty, offered by a defendant assisted by competent counsel, is invalid whenever induced by the prosecution's possession of a coerced confession. Likewise, Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940), does not support the position taken by the Court of Appeals in these cases. In Chambers the voluntariness of the confessions was properly considered by this Court both because the alleged coercion producing the confessions appeared to carry over to taint the guilty pleas and because the convictions were based on the confessions as well as the guilty pleas. See Chambers v. State, 136 Fla. 568, 187 So. 156 (1939), rev'd, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940).
13
We do not here consider whether a conviction, based on a plea of guilty entered in a State permitting the defendant pleading guilty to challenge on appeal the admissibility of his confession (as in New York after July 16, 1965, see n. 11, supra), would be open to attack in federal habeas corpus proceedings on the grounds that the confession was coerced. Cf. United States ex rel. Rogers v. Warden of Attica State Prison, 381 F.2d 209 (C.A. 2d Cir. 1967).
14
Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), it has been clear that a defendant pleading guilty to a felony charge has a federal right to the assistance of counsel. See White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968). It has long been recognized that the right to counsel is the right to the effective assistance of counsel. See Reece v. Georgia, 350 U.S. 85, 90, 76 S.Ct. 167, 170, 100 L.Ed. 77 (1955); Glasser v. United States, 315 U.S. 60, 69—70, 62 S.Ct. 457, 464—465, 86 L.Ed. 680 (1942); Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940); Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59—60, 77 L.Ed. 158 (1932).
1
There are additional allegations involved in this case, including Richardson's claim that he was ineffectively represented by counsel when he entered his plea and Dash's contention that he was threatened by the trial judge with imposition of the statutory maximum sentence (60 years) if he elected to stand trial and did not prevail. I understand that the Court does not disturb the Court of Appeals' holding that a hearing is required to consider these additional allegations.
2
The Court does not deny that the decision of the Court of Appeals in the instant case is in complete harmony with the decisions of numerous other courts that have considered the same or similar issues. See, e.g., Moreno v. Beto, 415 F.2d 154 (C.A.5th Cir. 1969); United States ex rel. McCloud v. Rundle, 402 F.2d 853 (C.A.3d Cir. 1968); Kott v. Green, 387 F.2d 136 (C.A.6th Cir. 1967); Reed v. Henderson, 385 F.2d 995 (C.A.6th Cir. 1967); United States ex rel. Collins v. Maroney, 382 F.2d 547 (C.A.3d Cir. 1967); Smiley v. Wilson, 378 F.2d 144 (C.A.9th Cir. 1967); Carpenter v. Wainwright, 372 F.2d 940 (C.A.5th Cir. 1967); Doran v. Wilson, 369 F.2d 505 (C.A.9th Cir. 1966); White v. Pepersack, 352 F.2d 470 (C.A.4th Cir. 1965); Zachery v. Hale, 286 F.Supp. 237 (D.C.M.D.Ala.1968); United States ex rel. Cuevas v. Rundle, 258 F.Supp. 647 (D.C.E.D.Pa.1966); People v. Spencer, 66 Cal.2d 158, 57 Cal.Rptr. 163, 424 P.2d 715 (1967); Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172 (1968).
3
'(E)ach of the defendants testified on the trial that the confessions were freely and voluntarily made that the respective statements of each made upon the trial was the free and voluntary statement of such defendant as a witness in his behalf.' Chambers v. State, 113 Fla. 786, 792, 152 So. 437, 438 (1934), on subsequent appeal, 136 Fla. 568, 187 So. 156 (1939), rev'd, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940).
4
Indeed, one of the dissenting opinions in Harrison concludes that '(s) imilarly, an inadmissible confession preceding a plea of guilty would taint the plea.' 392 U.S., at 234, 88 S.Ct., at 2016 (White, J., dissenting). In response to this suggestion, the Court noted that 'we decide here only a case in which the prosecution illegally introduced the defendant's confession in evidence against him at trial in its case-in-chief.' 392 U.S., at 223 n. 9, 88 S.Ct., at 2011. Of course, in Harrison we did consider a case in which evidence had been introduced at trial. It hardly follows, however, that the fruit-of-the-poisonous-tree rationale has no application apart from the narrow confines of the Harrison factual context. See generally Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939).
There are factual differences between Harrison and the instant case, but they are insufficient to undermine the analogy. For example, in Harrison the inadmissible confessions had actually been used in proceedings against the defendant, whereas here no more is involved than the potential use of the coerced confessions. However, confessions have traditionally been considered extremely valuable evidentiary material, and, in the ordinary course of events, it is not to be expected that the prosecution would, on its own initiative, refrain from attempting to introduce a relevant confession. Of course, when a guilty plea is attacked on the ground that it was induced by an involuntary confession, it is always open to the prosecution to establish that there was no confession, that any confession was not coerced, or that the prosecution had decided not to use the confession against the defendant and had communicated this fact to him.
Moreover, it is perhaps not as clear in the instant case as it was in Harrison that the prosecution's illegality infected the subsequent proceedings involving the respective defendants. In Harrison, the defense attorney had initially announced that the defendant would not testify, and the defendant did in fact take the stand only after the prosecution had introduced his confessions. In that circumstance the burden was appropriately placed upon the prosecution to rebut the clear inference that the inadmissible confessions induced the subsequent testimony. By contrast, in the instant case we are dealing with guilty pleas that are usually the culmination of a decision-making process in which the defendant has taken into account numerous factors. It can therefore hardly be established on the basis of mere allegations that, in a given case, a coerced confession induced the guilty plea. This factual difference indicates no more, however, than that the respondents here may have a more difficult time than the petitioner in Harrison in substantiating their respective claims.
5
If the procedures for challenging the validity of confessions are constitutionally adequate, then a persuasive justification for the failure to invoke them does not arise from the fear that a confession, erroneously or otherwise, will be determined to be voluntary. If this were not true, then no guilty plea could constitute an effective waiver, for the risk of error or adverse result is inherent in every criminal proceeding, and it would be open to every defendant to contend that this risk induced his guilty plea.
6
The Court of Appeals held that a plea of guilty was not voluntary 'if the plea was substantially motivated by a coerced confession the validity of which (the defendant) was unable, for all practical purposes, to contest.' 409 F.2d, at 1023. I would accept this formulation with the understanding that a 'substantial' motivating factor is any one which is not merely de minimis. Ordinarily, a decision to plead guilty is the result of numerous considerations. As long as a defendant was in fact motivated in significant part by the influence of an unconstitutionally obtained confession that he had no adequate means to challenge, I would relieve him of the consequences of his guilty plea.
7
See, e.g., Johnson v. New Jersey, 384 U.S. 719, 727—728, 86 S.Ct. 1772, 1777—1778, 16 L.Ed.2d 882 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453 (1966); Linkletter v. Walker, 381 U.S. 618, 639 and n. 20, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965).
8
Respondents have never had a hearing in the state courts on their coerced-confession claims because the state courts rejected their contentions on the pleadings. In these circumstances, the Court of Appeals properly instructed the District Court to afford the State a reasonable time to proceed with its own hearings, if it be so advised.
9
For example, respondent Dash stated the following in his petition to the District Court:
'The futility of relator's position is more clearly seen when this Court considers the fact, that the only choice remaining to him—beside the entry of the plea of guilty to a crime that he had not committed—was to proceed to trial in the hope of challenging the admissibility of the alleged coerced confession. For it was only in the case of Jackson v. Denno * * * that the Court recognized the insoluble plight of a defendant in New York, faced with the decision whether to challenge the admissibility of a confession, had in violation of the United States Constitution. Relator had no such remedy when he was faced with this situation.'
Respondent Williams' petition contains similar references to Jackson v. Denno. Respondent Richardson's principal claim relates to the adequacy of the legal assistance afforded him. He concedes that the pre-Jackson-Denno procedure played no role in his decision to plead guilty.
10
See, e.g., Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948).
11
See, e.g., United States ex rel. Nixon v. Follette, 299 F.Supp. 253 (D.C.S.D.N.Y.1969).
| 01
|
397 U.S. 790
90 S.Ct. 1474
25 L.Ed.2d 785
Charles Lee PARKER, Petitioner,v.State of NORTH CAROLINA. Robert M. BRADY, Petitioner, v. UNITED STATES.
Nos. 268, 270.
Supreme Court of the United States
May 4, 1970
Norman B. Smith, Greensboro, N.C., for petitioner.
Jacob L. Safron, Raleigh, N.C., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
At about 11 p.m. on July 16, 1964, petitioner was arrested after entering the yard of a home where a burglary and rape had been committed four days earlier. Petitioner, a Negro boy then 15 years old, was taken to the police station and was questioned for one or two hours. After the questioning, petitioner was placed alone in a dimly lit cell for the remainder of the night. Although petitioner refused to give even his name during the questioning, the police eventually determined his identity and notified petitioner's mother the next day between 3:30 and 4:30 a.m. That morning, petitioner was given drinking water and was then questioned by the police; petitioner almost immediately confessed to the burglary and rape committed several days earlier at the house where he had been arrested. Shortly thereafter, an attorney retained by petitioner's mother came to the police station and talked with petitioner. Petitioner told the attorney that the confession had not been prompted by threats or promises and that he had not been frightened when he made the statement to the police.
2
Petitioner was indicted for first-degree burglary, an offense punishable by death under North Carolina law.1 Petitioner's retained attorney discussed with petitioner and his mother the nature and seriousness of the charge. In due course, petitioner and his mother signed written statements authorizing the entry of a plea of guilty. Both petioner and his mother were aware at the time they signed the authorization for the guilty plea that, if the plea was accepted, petitioner would receive the mandatory sentence of life imprisonment.2 The prosecutor and the trial judge accepted the plea. In accepting the plea on August 18, 1964, the trial court asked the petitioner if the plea was made in response to any promise or threat and petitioner answered in the negative; petitioner affirmed that he tendered the plea 'freely without any fear or compulsion.'3 Upon acceptance of the plea, petitioner was sentenced to life imprisonment.
3
In 1967, petitioner, assisted by counsel, filed a petition under the North Carolina Post-Conviction Hearing Act4 to obtain relief from his conviction. In his petition, Parker urged that his plea of guilty was the product of a coerced confession and that the indictment to which he pleaded was invalid because members of his race had been systematically excluded from the grand jury which returned the indictment. After a hearing, the Superior Court of Halifax County found that there was no deliberate exclusion of Negroes from the grand jury that indicted petitioner and that petitioner had freely admitted his guilt and had pleaded guilty 'freely, voluntarily, without threat, coercion or duress * * *.' The Court of Appeals of North Carolina, the highest state court in which petitioner could seek review,5 affirmed the conviction after reviewing not only the claims presented to the lower court but also the additional assertion by petitioner that his guilty plea was involuntary because North Carolina statutes at that time allowed a defendant to escape the possibility of a death penalty on a capital charge by pleading guilty to that charge. 2 N.C.App. 27, 162 S.E.2d 526 (1968). We granted certiorari, 395 U.S. 974, 89 S.Ct. 2136, 23 L.Ed.2d 764 (1969), to consider petitioner's federal constitutional claims. For the reasons presented below, we affirm.
4
* Parker would have us hold his guilty plea involuntary and therefore invalid for two reasons: first, because it was induced by a North Carolina statute providing a maximum penalty in the event of a plea of guilty lower than the penalty authorized after a verdict of guilty by a jury; and, second, because the plea was the product of a coerced confession given to the police shortly after petitioner was arrested. Neither reason is sufficient to warrant setting aside Parker's plea.
5
It may be that under United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), it was unconstitutional to impose the death penalty under the statutory framework which existed in North Carolina at the time of Parker's plea.6 Even so, we determined in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, that an otherwise valid plea is not involuntary because induced by the defendant's desire to limit the possible maximum penalty to less than that authorized if there is a jury trial. In this respect we see nothing to distinguish Parker's case from Brady's.
6
Nor can we accept the claim that the plea was infirm because it was the product of a coerced confession. According to Parker's testimony at the post-conviction hearing, he was denied food and water, promised unspecified help if he confessed, and denied counsel's advice when he requested it. In the record, however, was an abundance of evidence contradicting Parker's claim of coercion: Parker's statements to his attorney soon after his interrogation that there had been no threats or promises and that he had not been afraid, his similar declarations in his sworn statement authorizing his plea,7 his answers to the trial judge at the time the plea was accepted,8 and his failure to complain of any mistreatment by the police until many months after he began serving his sentence. The North Carolina courts accordingly refused to credit his testimony and concluded that his confession was a free and voluntary act.
7
We would in any event be reluctant to question the judgment of the state courts in this respect; but we need not evaluate the voluntariness of petitioner's confession since even if the confession should have been found involuntary, we cannot believe that the alleged conduct of the police during the interrogation period was of such a nature or had such enduring effect as to make involuntary a plea of guilty entered over a month later. Parker soon hadd food and water, the lack of counsel was immediately remedied, and there was ample opportunity to consider the significance of the alleged promises. After the allegedly coercive interrogation, there were no threats, misrepresentations, promises, or other improper acts by the State. Parker had the advice of retained counsel and of his family for the month before he pleaded. The connection, if any, between Parker's confession and his plea of guilty had 'become so attenuated as to dissipate the taint.' Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 267—268, 84 L.Ed. 307 (1939); Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963). As far as this record reveals, the guilty plea was Parker's free and voluntary act, the product of his own choice, just as he affirmed it was when the plea was entered in open court.
II
8
On the assumption that Parker's confession was inadmissible, there remains the question whether his plea, even if voluntary, was unintelligently made because his counsel mistakenly thought his confession was admissible. As we understand it, Parker's position necessarily implies that his decision to plead rested on the strength of the case against him: absent the confession, his chances of acquittal were good and he would have chosen to stand trial; but given the confession, the evidence was too strong and it was to his advantage to plea guilty and limit the possible penalty to life imprisonment.9 On this assumption, had Parker and his counsel thought the confession inadmissible, there would have been a plea of not guilty and a trial to a jury. But counsel apparently deemed the confession admissible and his advice to plead guilty was followed by his client. Parker now considers his confession involuntary and inadmissible. The import of this claim is that he suffered from bad advice and that had he been correctly counseled he would have gone to trial rather than enter a guilty plea. He suggests that he is entitled to plead again, a suggestion that we reject.
9
For the reasons set out in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, even if Parker's counsel was wrong in his assessment of Parker's confession, it does not follow that his error was sufficient to render the plea unintelligent and entitle Parker to disavow his admission in open court that he committed the offense with which he was charged.10 Based on the facts of record relating to Parker's confession and guilty plea, which we have previously detailed, we think the advice he received was well within the range of competence required of attorneys representing defendants in criminal cases. Parker's plea of guilty was an intelligent plea not open to attack on the grounds that counsel misjudged the admissibility of Parker's confession.
III
10
We also have before us the question whether the indictment to which Parker pleaded is invalid because members of his race were allegedly systematically excluded from the grand jury which returned the indictment. The North Carolina Court of Appeals refused to consider the claim since under North Carolina law an objection to the composition of the grand jury must be raised by motion to quash the indictment prior to the entry of the guilty plea.11 Because Parker had failed to raise his objection in timely fashion, relief was unavailable. This state rule of practice would constitute an adequate state ground precluding our reaching the grand jury issue if this case were here on direct review. See Fay v. Noia, 372 U.S. 391, 428—429, 83 S.Ct. 822, 843—844, 9 L.Ed.2d 837 (1963). We are under similar constraint when asked to review a state court decision holding that the same rule of practice requires denial of collateral relief. Ibid. Whether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide. Compare United States ex rel. Goldsby v. Harpole, 263 F.2d 71 (C.A.2th Cir.), cert. denied, 361 U.S. 838 and 850, 80 S.Ct. 58 and 109, 4 L.Ed.2d 78 (1959), with Labat v. Bennett, 365 F.2d 698 (C.A.5th Cir. 1966), cert. denied, 386 U.S. 991, 87 S.Ct. 1303, 18 L.Ed.2d 334 (1967). See also McNeil v. North Carolina, 368 F.2d 313 (C.A.4th Cir. 1966).
11
The North Carolina Court of Appeals correctly concluded that petitioner's plea of guilty was intelligent and voluntary, and there was an adequate basis in North Carolina procedural law for the North Carolina Court of Appeals' refusal to consider the claim of racial exclusion in the composition of the grand jury that indicted petitioner.
12
Affirmed.
13
Mr. Justice BLACK, concurring.
14
I concur in the judgment of affirmance and also concur in the opinion except that part on p. 1461 stating, 'It may be that under United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), it was unconstitutional to impose the death penalty under the statutory framework which existed in North Carolina at the time of Parker's plea.'
15
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting in No. 268, and concurring in the result in No. 270.
16
In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), we held that the operative effect of the capital punishment provisions of the Federal Kidnaping Act was unconstitutionally 'to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial.' 390 U.S., at 581, 88 S.Ct., at 1216. The petitioners in these cases claim that they were the victims of the very vices we condemned in Jackson. Yet the Court paradoxically holds that each of the petitioners must be denied relief even if his allegations are substantiated.1 Indeed, the Court apparently holds that never, except perhaps in highly unrealistic hypothetical situations, will the constitutional defects identified in Jackson vitiate a guilty plea.2 In so holding, the Court seriously undermines the rational underpinnings of Jackson and departs broadly from our prior approach to the determination of the voluntariness of guilty pleas and also confessions. This is merely one manifestation of a design to insulate all guilty pleas from subsequent attack no matter what influences induced them. I cannot acquiesce in this wholesale retreat from the sound principles to which we have previously adhered.
17
* The Court properly notes the grave consequences for a defendant that attach to his plea of guilty; for the plea constitutes a simultaneous surrender of numerous constitutional rights, including the privilege against compulsory self-incrimination and the right to a trial by jury, with all of its attendant safeguards. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969); Boykin v. Alabama, 395 U.S. 238, 242—244, 89 S.Ct. 1709, 1711—1713, 23 L.Ed.2d 274 (1969). Indeed, we have pointed out that a guilty plea is more serious than a confession because it is tantamount to a conviction. Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927). Accordingly, we have insisted that a guilty plea, like any surrender of fundamental constitutional rights, reflect the unfettered choice of the defendant. See Botkin v. Alabama, supra; Machibroda v. United States 368 U.S. 487, 493, 182 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962). In deciding whether any illicit pressures have been brought to bear on a defendant to induce a guilty plea, courts have traditionally inquired whether it was made 'voluntarily' and 'intelligently' with full understanding and appreciation of the consequences.
18
The concept of 'voluntariness' contains an ambiguous element, accentuated by the Court's opinions in these cases, because the concept has been employed to analyze a variety of pressures to surrender constitutional rights, which are not all equally coercive or obvious in their coercive effect. In some cases where an 'involuntary' surrender has been found, the physical or psychological tactics employed exerted so great an influence upon the accused that it could accurately be said that his will was literally overborne or completely dominated by his interrogators, who rendered him incapable of rationally weighing the legal alternatives open to him.3
19
There is some intimation in the Court's opinions in the instant cases that, at least with respect to guilty pleas, 'involuntariness' covers only the narrow class of cases in which the defendant's will has been literally overborne. At other points, however, the Court apparently recognizes that the term 'involuntary' has traditionally been applied to situations in which an individual, while perfectly capable of rational choice, has been confronted with factors that the government may not constitutionally inject into the decision-making process. For example, in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), we held a surrender of the self-incrimination privilege to be involuntary when an individual was presented by the government with the possibility of discharge from his employment if he invoked the privilege. So, also, it has long been held that certain promises of leniency or threats of harsh treatment by the trial judge or the prosecutor unfairly burden or intrude upon the defendant's decision-making process. Even though the defendant is not necessarily rendered incapable of rational choice, his guilty plea nonetheless may be invalid.4
20
Thus the legal concept of 'involuntariness' has not been narrowly confined but refers to a surrender of constitutional rights influenced by considerations that the government cannot properly introduce. The critical question that divides the Court is what constitutes an impermissible factor, or, more narrowly in the context of these cases, whether the threat of the imposition of an unconstitutional death penalty is such a factor.5
21
Even after the various meanings of 'involuntary' have been identified, application of voluntariness criteria in particular circumstances remains an elusory process because it entails judicial evaluation of the effect of particular external stimuli upon the state of mind of the accused. See Haley v. Ohio, 332 U.S. 596, 603, 68 S.Ct. 302, 305, 92 L.Ed. 224 (1948) (separate opinion of Frankfurter, J). Nevertheless, we have consistently taken great pains to insulate the accused from the more obvious and oppressive forms of physical coercion. Beyond this, in the analogous area of coerced confessions, for example, it has long been recognized that various psychological devices, some of a very subtle and sophisticated nature, may be employed to induce statements. Such influences have been condemned by this Court.6 Thus, a confession is not voluntary merely because it is the 'product of a sentient choice,' if it does not reflect a free exercise of the defendant's will. Id., at 606, 68 S.C., at 307. Indeed, as the Court recognizes, we held in an early case that the concept of 'voluntariness' requires that a confession 'not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.' Bram v. United States, 168 U.S. 532, 542—543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). More recently, we held in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), that the Fifth and Fourteenth Amendments guarantee to every person the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * for such silence.' 378 U.S., at 8, 84 S.Ct., at 1493. Cf. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967).
22
The Court's answer to the stringent criterion of voluntariness imposed by Bram and subsequent cases is that the availability of counsel to an accused effectively offsets the illicit influence upon him that threats or promises by the government may impose. Of course, the presence of counsel is a factor to be taken into account in any overall evaluation of the voluntariness of a confession or a guilty plea. However, it hardly follows that the support provided by counsel is sufficient by itself to insulate the accused from the effect of any threat or promise by the government.
23
It has frequently been held, for example, that a guilty plea induced by threats or promises by the trial judge is invalid because of the risk that the trial judge's impartiality will be compromised and because of the inherently unequal bargaining power of the judge and the accused.7 The assistance of counsel in this situation, of course, may improve a defendant's bargaining ability, but it does not alter the underlying inequality of power. Significantly, the Court explicitly refrains from expressing its views on this issue. (397 U.S., at 751, 90 S.Ct., at 1470 n. 8.) This is an unfortunate omission, for judicial promises of leniency in return for a guilty plea provide a useful analogy to what has occurred in the instant cases. Here, the government has promised the accused, through the legislature, that he will receive a substantially reduced sentence if he pleads guilty. In fact, the legislature has simultaneously threatened the accused with the ultimate penalty—death—if he insists upon a jury trial and has promised a penalty no greater than life imprisonment if he pleads guilty.8
24
It was precisely this statutorily imposed dilemma that we identified in Jackson as having the 'inevitable effect' of discouraging assertion of the right not to plead guilty and to demand a jury trial. As recognized in Jackson, it is inconceivable that this sort of capital penalty scheme will not have a major impact upon the decisions of many defendants to plead guilty. In any particular case, therefore, the influence of this unconstitutional factor must necessarily be given weight in determining the voluntariness of a plea.9
25
To be sure, we said in Jackson that 'the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implied that every defendant who enters a guilty plea to a charge under the Act does so involuntarily.'10 390 U.S., at 583, 88 S.Ct., at 1217. But that statement merely emphasized the obvious fact that it is perfectly possible that a defendant pleaded guilty for reasons entirely unrelated to the penalty scheme, for example, because his guilt was clear or because he desired to spare himself and his family 'the spectacle and expense of protracted courtroom proceedings.' 390 U.S., at 584, 88 S.Ct., at 1217. The converse, however, is equally clear: not every defendant who pleaded guilty under the Act did so voluntarily, that is, uninfluenced by the highly coercive character of the penalty scheme. This much is merely the teaching of Jackson.
26
The Court has elected to deny this latter aspect of Jackson, but in doing so it undermines the rationale on which Jackson was decided. In Jackson we invalidated the death penalty provision of the Kidnaping Act because the Act's penalty scheme as a whole encouraged guilty pleas and waivers of jury trial, and in the circumstances of particular cases this improper influence could render pleas and waivers constitutionally involuntary. Today the Court appears to distinguish sharply between a guilty plea that has been 'encouraged' by the penalty scheme and one that has been entered 'involuntarily.' However, if the influence of the penalty scheme can never render a plea involuntary, it is difficult to understand why in Jackson we took the extraordinary step of invalidating part of that scheme. Apparently in the Court's view, we invalidated the death penalty in Jackson because it 'encouraged' pleas that are perfectly valid despite the encouragement. Rarely, if ever, have we overturned an Act of Congress for what proves to be so frivolous a reason. Moreover, the Court's present covert rejection of the Jackson rationale, together with its acceptance of the result in Jackson, leads to a striking anomaly. Since the death penalty provision of the Kidnaping Act remains void, those who resisted the pressures identified in Jackson and after a jury trial were sentenced to death receive relief, but those who succumbed to the same pressures and were induced to surrender their constitutional rights are left without any remedy at all. Where the penalty scheme failed to produce its unconstitutional effect, the intended victims obtain relief; where it succeeded, the real victims have none. Thus the Court puts a premium on strength of will and invulnerability to pressure at the cost of constitutional rights.
27
Of course, whether in a given case the penalty scheme has actually exercised its pernicious influence so as to make a guilty plea involuntary can be decided only by consideration of the factors that actually motivated the defendant to enter his plea. If a particular defendant can demonstrate that the death penalty scheme exercised a significant influence upon his decision to plead guilty, then, under Jackson, he is entitled to reversal of the conviction based upon his illicitly produced plea.
28
The Court attempts to submerge the issue of voluntariness of a plea under an unconstitutional capital punishment scheme in a general discussion of the pressures upon defendants to plead guilty which are said to arise from, inter alia, the venerable institution of plea bargaining. The argument appears to reduce to this: because the accused cannot be insulated from all inducements to plead guilty, it follows that he should be shielded from none.
29
The principal flaw in the Court's discourse on plea bargaining, however, is that it is, at best, only marginally relevant to the precise issues before us. There are critical distinctions between plea bargaining as commonly practiced and the situation presently under consideration—distinctions which, in constitutional terms, make a difference. Thus, whatever the merit, if any, of the constitutional objections to plea bargaining generally,11 those issues are not presently before us.
30
We are dealing here with the legislative imposition of a markedly more severe penalty if a defendant asserts his right to a jury trial and a concomitant legislative promise of leniency if he pleads guilty. This is very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.12 No such flexibility is built into the capital penalty scheme where the government's harsh terms with respect to punishment are stated in unalterable form.
31
Furthermore, the legislatively ordained penalty scheme may affect any defendant, even one with respect to whom plea bargaining is wholly inappropriate because his guilt is uncertain.13 Thus the penalty scheme presents a clear danger that the innocent, or those not clearly guilty, or those who insist upon their innocence, will be induced nevertheless to plead guilty. This hazard necessitates particularly sensitive scrutiny of the voluntariness of guilty pleas entered under this type of death penalty scheme.
32
The penalty schemes involved here are also distinguishable from most plea bargaining because they involve the imposition of death—the most severe and awesome penalty known to our law. This Court has recognized that capital cases are treated differently in some respects from noncapital cases. See, e.g., Williams v. Georgia, 349 U.S. 375, 391, 75 S.Ct. 814, 823, 99 L.Ed. 1161 (1955). We have identified the threat of a death penalty as a factor to be given considerable weight in determining whether a defendant has deliberately waived his constitutional rights. Thus, for example, in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), it was contended that a defendant initially convicted of second-degree murder upon an indictment charging first-degree murder waived his double-jeopardy objections to a second trial for murder in the first degree by taking a successful appeal. We rejected this argument, observing that
33
'a defendant faced with such a 'choice' takes a 'desperate chance' in securing the reversal of the erroneous conviction. The law should not, and in our judgment does not, place the defendant in such an incredible dilemma.' 355 U.S., at 193, 78 S.Ct., at 227.
34
So, also, in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), it was argued that the petitioner had deliberately failed to seek redress through appeal of his conviction within the state appellate process and thus was not entitled to federal habeas corpus relief. Noting that the petitioner had been confronted with the 'grisly choice' of forgoing his appellate rights or facing a possible death sentence if his appeal were successful, we held that the failure to seek state appellate review, motivated by fear of the death penalty, could not be interposed to bar the federal habeas corpus remedy.14 372 U.S., at 438—440, 83 S.Ct., at 848—850.
35
Finally, under our express holding in Jackson, the death penalty in no circumstances could have been constitutionally imposed upon these defendants.15 If they had been aware of the constitutional deficiency in the penalty scheme, they might well have decided to assert their right to a jury trial since the maximum penalty that could have been imposed after an unfavorable jury verdict was life imprisonment. It is in this narrow context, involving a legislatively mandated unconstitutional death penalty scheme, that the defendant should be relieved of the rigid finality of his plea if he demonstrates that it was a consequence of the unconstitutional scheme.16
II
36
Turning to the facts of these particular cases, I consider first the contention that the North Carolina capital punishment scheme under which Parker was convicted (90 S.Ct., at 1460, nn. 1, 2), was constitutionally deficient under the standards set forth in Jackson. Although the Court assumes arguendo that the North Carolina statutes were indistinguishable from the Federal Kidnaping Act, this conclusion is, in my view, inescapable. Under North Carolina law as it formerly existed, the capital defendant had but two choices: he could demand a jury trial and thereby risk the imposition of the death penalty, or he could absolutely avoid that possibility by pleading guilty.17 If anything, the defect in the North Carolina statutory scheme was more serious than that in the statute considered in Jackson, for under the Kidnaping Act a defendant at least had a potential opportunity to avoid the death penalty and to have his guilt determined in a bench trial. Therefore, Parker is entitled to relief is he can demonstrate that the unconstitutional capital punishment scheme was a significant factor in his decision to plead guilty.
37
Parker comes here after denial of state post-conviction relief. The North Carolina courts have consistently taken the position that United States v. Jackson has no applicability to the former North Carolina capital punishment scheme.18 Thus, the merits of Parker's contention that his plea was motivated by the unconstitutional death penalty have not been considered by the state courts. I would, therefore, reverse the judgment of the North Carolina Court of Appeals and remand the Parker case to that court for proceedings not inconsistent with the principles elaborated herein.19
III
38
In 1959 Brady was indicted under the Federal Kidnaping Act. The indictment alleged that the kidnaped person had 'not been liberated unharmed.' Thus Brady was subject to a potential sentence of death if he demanded a jury trial.20 He ultimately elected to plead guilty, a decision that followed a similar action by his codefendant. Subsequently Brady was sentenced to 50 years' imprisonment. There exists in the record substantial evidence that Brady decided to plead guilty because the similar plea decision of his codefendant seriously undermined his own defense. It is also true that Brady was under the impression that the maximum penalty that could be imposed following a jury trial was the death sentence.
39
A hearing was held pursuant to Brady's motion under 28 U.S.C. § 2255 to vacate his sentence, at which Brady, his codefendant, and their trial attorneys testified. This hearing was completed after the District Court had decided the Jackson case, but before this Court had spoken in the matter. The District Judge took the position that the death penalty provision of the Federal Kidnaping Act was constitutional. In this respect, of course, he erred. However, the District Judge also concluded that Brady 'decided to plead guilty when he learned that his co-defendant was going to plead guilty' and that this decision was not induced or influenced improperly by anything the trial judge or his attorney had told him. The District Court further found that 'the plea of guilty was made by (Brady) by reason of other matters and not by reason of (the Kidnaping Act).'
40
The decision in the Court of Appeals for the Tenth Circuit was rendered after our decision in Jackson. The Court of Appeals correctly pointed out that not every plea entered under the Federal Kidnaping Act is necessarily invalid and ultimately concluded that '(t)he finding of the trial court that the guilty plea was not made because of the statute but because of other matters is supported by substantial evidence and is binding on us.' 404 F.2d 601, 602.
41
An independent examination of the record in the instant case convinces me that the conclusions of the lower courts are not clearly erroneous. Although Brady was aware that he faced a possible death sentence, there is no evidence that this factor alone played a significant role in his decision to enter a guilty plea. Rather, there is considerable evidence, which the District Court credited, that Brady's plea was triggered by the confession and plea decision of his codefendant and not by any substantial fear of the death penalty. Moreover, Brady's position is dependent in large measure upon his own assertions, years after the fact, that his plea was motivated by fear of the death penalty and thus rests largely upon his own credibility. For example, there is no indication, contemporaneous with the entry of the guilty plea, that Brady thought he was innocent and was pleading guilty merely to avoid possible execution. Furthermore, Brady's plea was accepted by a trial judge who manifested some sensitivity to the seriousness of a guilty plea and questioned Brady at length concerning his guilt and the voluntariness of the plea before it was finally accepted.
42
In view of the foregoing. I concur in the result reached by the Court in the Brady case.
1
In North Carolina the crime of first-degree burglary is defined as follows:
'There shall be two degrees in the crime of burglary as defined at the common law. If the crime be committed in a dwelling house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling house or sleeping apartment at the time of the commission of such crime, it shall be burglary in the first degree.' N.C.Gen.Stat. § 14—51 (1969 Repl. vol.).
The punishment for first-degree burglary is death unless the jury recommends that the penalty be life imprisonment:
'Any person convicted, according to due course of law, of the crime of burglary in the first degree shall suffer death: Provided, if the jury when rendering its verdict in open court shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury.' N.C.Gen.Stat. § 14—52 (1969 Repl. vol.).
2
At the time petitioner's plea was entered, North Carolina law provided that if a plea of guilty to first-degree burglary was accepted the punishment would be life imprisonment rather than death:
'(a) Any person, when charged in a bill of indictment with the felony of murder in the first degree, or burglary in the first degree, or arson, or rape, when represented by counsel, whether employed by the defendant or appointed by the court * * *, may, after arraignment, tender in writing, signed by such person and his counsel, a plea of guilty of such crime; and the State, with the approval of the court, may accept such plea. Upon rejection of such plea, the trial shall be upon the defendant's plea of not guilty, and such tender shall have no legal significance whatever.
'(b) In the event such plea is accepted, the tender and acceptance thereof shall have the effect of a jury verdict of guilty of the crime charged with recommendation by the jury in open court that the punishment shall be imprisonment for life in the State's prison; and thereupon, the court shall pronounce judgment that the defendant be imprisoned for life in the State's prison.' N.C.Gen.Stat. § 15—162.1 (1965 Repl. vol.), repealed, effective March 25, 1969, N.C.Laws 1969, c. 117.
3
The Court: 'Has anybody made you any promise or forced you in any way to make this plea?'
Petitioner: 'No, sir.'
The Court: 'Did you sign this plea freely without any fear or compulsion?'
Petitioner: 'Yes, sir.'
The Court: 'Has any person promised you anything if you do this?'
Petitioner: 'No, sir.' App. 46.
4
N.C.Gen.Stat. §§ 15—217 to 15—222 (Supp.1969).
5
N.C.Gen.Stat. § 7A—28 (1969 Repl. vol.).
6
The statute authorizing guilty pleas to capital charges was repealed, effective March 25, 1969. See n. 2, supra. As a result of the repeal, a person who is charged with a capital offense and who is not allowed to plead to a lesser charge must apparently face a jury trial and a death penalty upon a verdict of guilty unless the jury recommends life imprisonment.
7
In his affidavit authorizing the entry of a plea of guilty Parker stated that: 'I have not been threatened or abused in any manner by any person and no promises have been made to me if I plead guilty to any charge.'
8
See n. 3, supra.
9
The North Carolina Court of Appeals noted that the prosecution may have had strong evidence against Parker in addition to the confession and that if other strong evidence existed the guilty plea could not be viewed as the product of the confession, 2 N.C.App. 27, 32, 162 S.E.2d 526, 529 (1968).
10
We find nothing in the record raising any doubts about the integrity of petitioner's admission. The following appears in the findings entered after the post-conviction hearing in the state trial court:
'(S)aid petitioner defendant freely admitted to his attorney his guilt of the crime with which he was charged, in fact said petitioner defendant Charles Lee Parker, upon cross examination at this hearing, and the Court so finds as a fact, has freely admitted his guilt of the capital offense of burglary and rape. * * *'
11
'All exceptions to grand jurors on account of their disqualifications shall be taken before the petit jury is sworn and impaneled to try the issue, by motion to quash the indictment, and if not taken at that time shall be deemed to be waived. * * *' N.C.Gen.Stat. § 9—23 (1969 Repl. vol.). See State v. Rorie, 258 N.C. 162, 128 S.E.2d 229 (1962). Under North Carolina law, a guilty plea does not waive objections to racial exclusion in the selection of the grand jury if, before the plea of guilty, the defendant raises his objection in a motion to quash the indictment. State v. Covington, 258 N.C. 501, 128 S.E.2d 827 (1963).
1
The present discussion, while containing occasional references to the Federal Kidnaping Act, is equally applicable to Parker, for, as I shall demonstrate in Part II of this opinion, there is no pertinent distinction between the Kidnaping Act and the North Carolina statutes under which Parker was convicted.
2
The precise contours of the Court's theory, developed principally in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, are unclear. The Court initially states that 'the possibility of a heavier sentence following a guilty verdict after a trial' is one of the 'relevant circumstances' to be taken into account in determining the voluntariness of the guilty plea. At 749, 90 S.Ct., at 1469. Subsequently, however, after discussing its notion of voluntariness, the Court concludes that 'a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty.' At 755, 90 S.Ct., at 1472. Elsewhere the Court states that 'there (is no) evidence that Brady was so gripped by fear of the death penalty or hope of leniency that the did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty.' At 750, 90 S.Ct., at 1470. If the latter is what the Court deems to be the criterion of voluntariness, the holding is totally without precedent, for it has never been thought that an individual's mental state must border on temporary insanity before his confession or guilty plea can be found 'involuntary.'
3
See, e.g., Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936).
4
See, e.g., Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510 (1962); cases cited, n. 7, infra.
5
A further latent ambiguity in the concept of 'voluntariness' arises from the notion that a plea is involuntary only if it is the product of coercion directly applied to the accused at the time his plea is entered, and hence that a plea cannot be tainted by prior unconstitutional action on the part of the government. With this view I am in disagreement for reasons more fully set forth in my dissenting opinion in McMann v. Richardson, 397 U.S. 775, 90 S.Ct. 1451, 25 L.Ed.2d 776, decided this day.
6
See, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302 (1948).
7
See, e.g., Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264 (1969); United States ex rel. McGrath v. LaVallee, 319 F.2d 308 (C.A.2d Cir. 1963); Exuziere v. United States, 249 F.2d 293 (C.A.10th Cir. 1957); United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244 (D.C.S.D.N.Y.1966); United States v. Tateo, 214 F.Supp. 560 (D.C.S.D.N.Y.1963); Commonwealth v. Evans, 434 Pa. 52, 252 A.2d 689 (1969). See generally Recent Developments, Judicial Plea Bargaining, 19 Stan.L.Rev. 1082 (1967).
8
The only alternative to a jury trial available to Parker under the North Carolina statutes was a plea of guilty. Under the Federal Kidnaping Act, however, the possibility existed that a defendant could contest his guilt in a bench trial and simultaneously avoid a potential death penalty. Nothing more appearing, it is arguable that an individual who pleaded guilty without seeking a bench trial did so for reasons other than the fear of the death penalty.
We have previously held, however, that there is no constitutional right to a bench trial, Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), and under Fed.Rule Crim.Proc. 23 the consent of both the trial judge and the prosecution is a prerequisite to the waiver of a jury trial. In Brady the trial judge indicated that he would not permit the case to be tried without a jury. Thus, in substance, the choice that confronted Brady—jury trial or guilty plea—was the same that faced Parker.
There is room for argument that a direct confrontation between a trial judge and the defendant would have more impact upon the accused than a statute. However, when the accused appears before the trial judge, he at least has an opportunity to present his views to the judge, and, if all else fails, to preserve a record for direct or collateral review of any overreaching by the trial court.
9
North Carolina argues that Jackson ought not to be applied retroactively so as to affect guilty pleas entered prior to that decision. In one sense, of course, the Jackson retroactivity problem is chimerical, for the long-standing constitutional requirement that valid guilty pleas be voluntary and intelligent was not altered by that decision.
However, Jackson did apply the standard of voluntariness in a new context by considering the inducement to plead guilty punishment scheme. In a sense, therefore, Jackson did in fact mandate a new application of the voluntariness test. To the extent that the retroactivity issue need be resolved, I have no difficulty in concluding that Jackson should be so applied as to provide relief for those who suffered the very constitutional vices that we condemned in that case. The entry of a guilty plea concerns the very essence of the guilt-determining process, and, if that plea is involuntarily induced, the result is 'to infect a criminal proceeding the innocent.' Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453 (1966). See Johnson v. New Jersey, 384 U.S. 719, 727—729, 86 S.Ct. 1772, 1777—1779, 16 L.Ed.2d 882 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).
10
If this statement means that no plea can be rendered involuntary by the statutory scheme, it was at least an obscure, not to say highly misleading, way of saying so. Laboy v. New Jersey, 266 F.Supp. 581 (D.C.N.J.1967), cited in Jackson, upon which the Court now seizes, is merely an example of a case that rejected an attack upon the voluntariness of a plea allegedly induced by fear of a death penalty. Surely it cannot be relied upon to establish guidelines with respect to the quantum of proof necessary to demonstrate the involuntariness of a plea under a Jackson-defective statute, particularly since the District Court in Laboy erroneously concluded, in dicta, that the Federal Kidnaping Act contained no constitutional infirmity.
11
See generally Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264 (1969); D. Newman, Conviction, The Determination of Guilt or Innocence Without Trial (1966); American Bar Association Project on Standards for Criminal Justice, Pleas of Guilty §§ 3.1—3.4 (Approved Draft 1968); President's Comm'n on Law Enforcement & Administration of Justice, The Challenge of Crime in a Free Society 134—137 (1967); Note, The Unconstitutionality of Plea Bargaining, 83 Harv.L.Rev. 1387 (1970); Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U.Pa.L.Rev. 865 (1964).
12
See generally D. Newman, Conviction, The Determination of Guilt or Innocence Without Trial 78—104 (1966).
13
See, e.g., Bailey v. MacDougall, 392 F.2d 155, 158 n. 7 (C.A.4th Cir.), cert. denied, 393 U.S. 847, 89 S.Ct. 133, 21 L.Ed.2d 118 (1968): 'Plea bargaining that induces an innocent person to plead guilty cannot be sanctioned. Negotiation must be limited to the quantum of punishment for an admittedly guilty defendant.' (Emphasis added.)
14
A perceptive commentator, prior to our decision in Jackson, noted the interrelation of guilty pleas and an unconstitutional legislatively mandated capital punishment penalty scheme:
'It is incontrovertible that the (Federal Kidnaping) act promises a person pleading guilty at least substantial security from the imposition of capital punishment, while it threatens him with the ultimate sanction of the law—death. Can not the statute be accurately characterized as containing a legislative promise of substantial security from infliction of the death penalty in the event of a plea of guilty by the defendant? Is there any legitimate reason why a defendant's guilty plea under the act should be considered any less the product of coercion because it was induced by a legislative promise of substantial immunity than is a guilty plea induced by the previously mentioned judicial offers of sentencing concessions (in United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244 (D.C.S.D.N.Y.1966), and United States v. Tateo, 214 F.Supp. 560 (D.C.S.D.N.Y.1963))? Can it be seriously contended that statements given by police officers in order to avoid being discharged from their employment are any more the product of coercion than is a guilty plea made by a defendant in mortal fear of the executioner's chair (citing Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967))? In a capital case where a defendant is put to plea under the Lindbergh Law, he is faced with a choice 'between the rock and the whirlpool' (385 U.S., at 498, 87 S.Ct., at 619), and coercion quite probably is inherent in his choice to waive his right to a jury trial.' Note, United States v. Jackson: The Possible Consequences of Impairing the Right to Trial by Jury, 22 Rutgers L.Rev. 167, 189—190 (1967). (Emphasis in original.)
15
Of course, no malevolent intent may be ascribed to the prosecution in seeking the death penalty prior to its invalidation in Jackson. That the death penalty could not have been exacted in the instant cases is, however, merely a consequence of the retroactive effect of Jackson. While the Court denies that Jackson affects the validity of guilty pleas, surely the Court would not insist that a sentence of death pronounced prior to our decision in Jackson could now be carried out. The Court's position, if I have accurately described it, does contain a certain paradoxical element. That is, any defendant who resisted the inducements of the Jackson-defective penalty scheme, received a jury trial and was sentenced to death, is presumably entitled to relief. However, the defendant who succumbed to the unconstitutional influence of that same scheme and pleaded guilty is left to suffer the consequences of his illicitly induced plea. While the relaxation of strict logic may be viewed sympathetically if necessary to prevent executions under an unconstitutional penalty scheme, I am at a loss to understand what values are preserved by the curious inversion the Court has brought about.
16
The Court apparently takes comfort from the authorities that it cites for the proposition that a guilty plea entered to avoid a possible death penalty is not involuntary. (397 U.S., at 792—793, 90 S.Ct., at 1472 n. 14.) This reliance is misplaced. In the first instance, most of these authorities antedate Jackson and therefore were uninstructed by that decision. For example, it does not appear in those cases whether the capital punishment scheme was defective under Jackson or otherwise unconstitutional. In this discussion, I do not consider the case of a death penalty scheme that is not unconstitutional under Jackson.
Secondly, several cases decided subsequent to Jackson take the position that a constitutionally defective capital penalty scheme may impermissibly induce guilty pleas. See, e.g., Alford v. North Carolina, 405 F.2d 340 (C.A.4th Cir. 1968), prob. juris. noted, 394 U.S. 956, 89 S.Ct. 1306, 22 L.Ed.2d 558 (1969), set for reargument, 397 U.S. 1060, 90 S.Ct. 1494, 25 L.Ed.2d 682; Quillien v. Leeke, 303 F.Supp. 698 (D.C.S.C.1969); Wilson v. United States, 303 F.Supp. 1139 (D.C.W.D.Va.1969); Shaw v. United States, 299 F.Supp. 824 (D.C.S.D.Ga.1969); Breland v. State of South Carolina, 253 S.C. 187, 169 S.E.2d 604 (1969). See also United States ex rel. Brown v. LaVallee, 424 F.2d 457 (C.A.2d Cir. 1970); Commonwealth v. Hargrove, 434 Pa. 393, 254 A.2d 22 (1969).
17
Sophistic arguments cannot alter the fact that this in substance was the effect of the North Carolina penalty scheme. It is contended by North Carolina, for example, that under the state statutes the actual penalty imposed upon conviction was death but that the jury had the power to mitigate punishment to life imprisonment. Under the Federal Kidnaping Act, so the argument goes, the penalty upon conviction was life imprisonment, or a term of years, but the jury had the power to increase the sentence beyond that which the trial judge could impose, thereby 'usurping the province of the judge in sentencing the defendant.' This is a distinction without a difference. The simple fact is that under both the Kidnaping Act and the North Carolina scheme the jury alone, in its unfettered discretion, could impose the death sentence. In both instances the defendant was promised by the legislature complete insulation from this awesome possibility if he would plead guilty.
18
See, e.g., State v. Spence, 274 N.C. 536, 164 S.E.2d 593 (1968); State v. Peele, 274 N.C. 106, 161 S.E.2d 568 (1968).
19
In view of my position on the Jackson issue, I need not, in this case, reach Parker's other contentions, in particular that his guilty plea was the product of his allegedly coerced confession. I would direct that Parker's allegations concerning the coerced confession be considered on remand in proceedings not inconsistent with my views as expressed in McMann v. Richardson, 397 U.S. 775, 90 S.Ct. 1451, 25 L.Ed.2d 776, decided this day.
20
As previously noted, the trial judge indicated that he would not permit Brady to be tried without a jury. See n. 8, supra.
| 01
|
397 U.S. 742
90 S.Ct. 1463
25 L.Ed.2d 747
Robert M. BRADY, Petitioner,v.UNITED STATES.
No. 270.
Argued Nov. 18, 1969.
Decided May 4, 1970.
Peter J. Adang, Albuquerque, N.M., for petitioner.
Joseph J. Connolly, Washington, D.C., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
In 1959, petitioner was charged with kidnaping in violation of 18 U.S.C. § 1201(a).1 Since the indictment charged that the victim of the kidnaping was not liberated unharmed, petitioner faced a maximum penalty of death if the verdict of the jury should so recommend. Petitioner, represented by competent counsel throughout, first elected to plead not guilty. Apparently because the trial judge was unwilling to try the case without a jury, petitioner made no serious attempt to reduce the possibility of a death penalty by waiving a jury trial. Upon learning that his codefendant, who had confessed to the authorities, would plead guilty and be available to testify against him, petitioner changed his plea to guilty. His plea was accepted after the trial judge twice questioned him as to the voluntariness of his plea.2 Petitioner was sentenced to 50 years' imprisonment, later reduced to 30.
2
In 1967, petitioner sought relief under 28 U.S.C. § 2255, claiming that his plea of guilty was not voluntarily given because § 1201(a) operated to coerce his plea, because his counsel exerted impermissible pressure upon him, and because his plea was induced by representations with respect to reduction of sentence and clemency. It was also alleged that the trial judge had not fully complied with Rule 11 of the Federal Rules of Criminal Procedure.3
3
After a hearing, the District Court for the District of New Mexico denied relief. According to the District Court's findings, petitioner's counsel did not put impermissible pressure on petitioner to plead guilty and no representations were made with respect to a reduced sentence or clemency. The court held that § 1201(a) was constitutional and found that petitioner decided to plead guilty when he learned that his codefendant was going to plead guilty: petitioner pleaded guilty 'by reason of other matters and not by reason of the statute' or because of any acts of the trial judge. The court concluded that 'the plea was voluntarily and knowingly made.'
4
The Court of Appeals for the Tenth Circuit affirmed, determining that the District Court's findings were supported by substantial evidence and specifically approving the finding that petitioner's plea of guilty was voluntary. 404 F.2d 601 (1968). We granted certiorari, 395 U.S. 976, 89 S.Ct. 2146, 23 L.Ed.2d 764 (1969), to consider the claim that the Court of Appeals was in error in not reaching a contrary result on the authority of this Court's decision in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). We affirm.
5
* In United States v. Jackson, supra, the defendants were indicted under § 1201(a). The District Court dismissed the § 1201(a) count of the indictment, holding the statute unconstitutional because it permitted imposition of the death sentence only upon a jury's recommendation and thereby made the risk of death the price of a jury trial. This Court held the statute valid, except for the death penalty provision; with respect to the latter, the Court agreed with the trial court 'that the death penalty provision * * * imposes an impermissible burden upon the exercise of a constitutional right * * *.' 390 U.S., at 572, 88 S.Ct., at 1211. The problem was to determine 'whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury.' 390 U.S., at 581, 88 S.Ct., at 1216. The inevitable effect of the provision was said to be to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. Because the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing those defendants who plead not guilty and elect a jury trial, the death penalty provision 'needlessly penalize(d) the assertion of a constitutional right,' 390 U.S., at 583, 88 S.Ct., at 1217, and was therefore unconstitutional.
6
Since the 'inevitable effect' of the death penalty provision of § 1201(a) was said by the Court to be the needless encouragement of pleas of guilty and waivers of jury trial, Brady contends that Jackson requires the invalidation of every plea of guilty entered under that section, at least when the fear of death is shown to have been a factor in the plea. Petitioner, however, has read far too much into the Jackson opinion.
7
The Court made it clear in Jackson that it was not holding § 1201(a) inherently coercive of guilty pleas: 'the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that every defendant who enters a guilty plea to a charge under the Act does so involuntarily.' 390 U.S., at 583, 88 S.Ct., at 1217. Cited in support of this statement, 390 U.S., at 583 n. 25, 88 S.Ct., at 1217, was Laboy v. New Jersey, 266 F.Supp. 581 (D.C.N.J.1967), where a plea of guilty (non vult) under a similar statute was sustained as voluntary in spite of the fact, as found by the District Court, that the defendant was greatly upset by the possibility of receiving the death penalty.
8
Moreover, the Court in Jackson rejected a suggestion that the death penalty provision of § 1201(a) be saved by prohibiting in capital kidnaping cases all guilty pleas and jury waivers, 'however clear (the defendants') guilt and however strong their desire to acknowledge it in order to spare themselves and their families the spectacle and expense of protracted courtroom proceedings.' '(T)hat jury waivers and guilty pleas may occasionally be rejected' was no ground for automatically rejecting all guilty pleas under the statute, for such a rule 'would rob the criminal process of much of its flexibility.' 390 U.S., at 584, 88 S.Ct., at 1218.
9
Plainly, it seems to us, Jackson ruled neither that all pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas nor that such encouraged pleas are invalid wheth-involuntary or not. Jackson prohibits the imposition of the death penalty under § 1201(a), but that decision neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated that guilty pleas are valid if both 'voluntary' and 'intelligent.' See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711—1712, 23 L.Ed.2d 274 (1969).4
10
That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so—hence the minimum requirement that his plea be the voluntary expression of his own choice.5 But the plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial—a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.6 On neither score was Brady's plea of guilty invalid.
II
11
The trial judge in 1959 found the plea voluntary before accepting it; the District Court in 1968, after an evidentiary hearing, found that the plea was voluntarily made; the Court of Appeals specifically approved the finding of voluntariness. We see no reason on this record to disturb the judgment of those courts. Petitioner, advised by competent counsel, tendered his plea after his codefendant, who had already given a confession, determined to plead guilty and became available to testify against petitioner. It was this development that the District Court found to have triggered Brady's guilty plea.
12
The voluntariness of Brady's plea can be determined only by considering all of the relevant circumstances surrounding it. Cf. Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963); Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 717, 98 L.Ed. 948 (1954). One of these circumstances was the possibility of a heavier sentence following a guilty verdict after a trial. It may be that Brady, faced with a strong case against him and recognizing that his chances for acquittal were slight, preferred to plead guilty and thus limit the penalty to life imprisonment rather than to elect a jury trial which could result in a death penalty.7 But even if we assume that Brady would not have pleaded guilty except for the death penalty provision of § 1201(a), this assumption merely identifies the penalty provision as a 'but for' cause of his plea. That the statute caused the plea in this sense does not necessarily prove that the plea was coerced and invalid as an involuntary act.
13
The State to some degree encourages pleas of guilty at every important step in the criminal process. For some people, their breach of a State's law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State's responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State's evidence at trial that he must take the stand or face certain conviction.
14
Of course, the agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. But nothing of the sort is claimed in this case; nor is there evidence that Brady was so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty. Brady's claim is of a different sort: that it violates the Fifth Amendment to influence or encourage a guilty plea by opportunity or promise of leniency and that a guilty plea is coerced and invalid if influenced by the fear of a possibly higher penalty for the crime charged if a conviction is obtained after the State is put to its proof.
15
Insofar as the voluntariness of his plea is concerned, there is little to differentiate Brady from (1) the defendant, in a jurisdiction where the judge and jury have the same range of sentencing power, who pleads guilty because his lawyer advises him that the judge will very probably be more lenient than the jury; (2) the defendant, in a jurisdiction where the judge alone has sentencing power, who is advised by counsel that the judge is normally more lenient with defendants who plead guilty than with those who go to trial; (3) the defendant who is permitted by prosecutor and judge to plead guilty to a lesser offense included in the offense charged; and (4) the defendant who pleads guilty to certain counts with the understanding that other charges will be dropped. In each of these situations,8 as in Brady's case, the defendant might never plead guilty absent the possibility or certainty that the plea will result in a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty. We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.
16
The issue we deal with is inherent in the criminal law and its administration because guilty pleas are not constitutionally forbidden, because the criminal law characteristically extends to judge or jury a range of choice in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law. For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages—the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof.9 It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty,10 a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury.
17
Of course, that the prevalence of guilty pleas is explainable does not necessarily validate those pleas or the system which produces them. But we cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.
18
A contrary holding would require the States and Federal Government to forbid guilty pleas altogether, to provide a single invariable penalty for each crime defined by the statutes, or to place the sentencing function in a separate authority having no knowledge of the manner in which the conviction in each case was obtained. In any event, it would be necessary to forbid prosecutors and judges to accept guilty pleas to selected counts, to lesser included offenses, or to reduced charges. The Fifth Amendment does not reach so far.
19
Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), held that the admissibility of a confession depended upon whether it was compelled within the meaning of the Fifth Amendment. To be admissible, a confession must be "free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." 168 U.S., at 542—543, 18 S.Ct., at 187. More recently, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), carried forward the Bram definition of compulsion in the course of holding applicable to the States the Fifth Amendment privilege against compelled self-incrimination.11
20
Bram is not inconsistent with our holding that Brady's plea was not compelled even though the law promised him a lesser maximum penalty if he did not go to trial. Bram dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess. But Bram and its progeny did not hold that the possibly coercive impact of a promise of leniency could not be dissipated by the presence and advice of counsel, any more than Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), held that the possibly coercive atmosphere of the police station could not be counteracted by the presence of counsel or other safeguards.12
21
Brady's situation bears no resemblance to Bram's. Brady first pleaded not guilty; prior to changing his plea to guilty he was subjected to no threats or promises in face-to-face encounters with the authorities. He had competent counsel and full opportunity to assess the advantages and disadvantages of a trial as compared with those attending a plea of guilty; there was no hazard of an impulsive and improvident response to a seeming but unreal advantage. His plea of guilty was entered in open court and before a judge obviously sensitive to the requirements of the law with respect to guilty pleas. Brady's plea, unlike Bram's confession, was voluntary.
22
The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit:
23
"(A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).' 242 F.2d at page 115.'13
24
Under this standard, a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty.14
III
25
The record before us also supports the conclusion that Brady's plea was intelligently made. He was advised by competent counsel, he was made aware of the nature of the charge against him, and there was nothing to indicate that he was incompetent or otherwise not in control of his mental faculties; once his confederate had pleaded guilty and became available to testify, he chose to plead guilty, perhaps to ensure that he would face no more than life imprisonment or a term of years. Brady was aware of precisely what he was doing when he admitted that he had kidnaped the victim and had not released her unharmed.
26
It is true that Brady's counsel advised him that § 1201(a) empowered the jury to impose the death penalty and that nine years later in United States v. Jackson, supra, the Court held that the jury had no such power as long as the judge could impose only a lesser penalty if trial was to the court or there was a plea of guilty. But these facts do not require us to set aside Brady's conviction.
27
Often the decision to plead guilty is heavily influenced by the defendant's appraisal of the prosecution's case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant's lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.
28
The fact that Brady did not anticipate United States v. Jackson, supra, does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.
29
This is not to say that guilty plea convictions hold no hazards for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady's plea or suggests that his admissions in open court were anything but the truth.
30
Although Brady's plea of guilty may well have been motivated in part by a desire to avoid a possible death penalty, we are convinced that his plea was voluntarily and intelligently made and we have no reason to doubt that his solemn admission of guilt was truthful.
31
Affirmed.
32
Mr. Justice BLACK, while adhering to his belief that United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, was wrongly decided, concurs in the judgment and in substantially all of the opinion in this case.
1
'Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.'
2
Eight days after petitioner pleaded guilty, he was brought before the court for sentencing. At that time, the court questioned petitioner for a second time about the voluntariness of his plea:
'THE COURT: * * * Having read the presentence report and the statement you made to the probation officer, I want to be certain that you know what you are doing and you did know when you entered a plea of guilty the other day. Do you want to let that plea of guilty stand, or do you want to withdraw it and plead not guilty?
'DEFENDANT BRADY: I want to let that plea stand, sir.
'THE COURT: You understand that in doing that you are admitting and confessing the truth of the charge contained in the indictment and that you enter a plea of guilty voluntarily, without persuasion, coercion of any kind? Is that right?
'DEFENDANT BRADY: Yes, your Honor.
'THE COURT: And you do do that?
'DEFENDANT BRADY: Yes, I do.
'THE COURT: You plead guilty to the charge?
'DEFENDANT BRADY: Yes, I do.' App. 29—30.
3
When petitioner pleaded guilty, Rule 11 read as follows:
'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 the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. 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.'
Rule 11 was amended in 1966 and now reads as follows:
'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.'
In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), we held that a failure to comply with Rule 11 required that a defendant who had pleaded guilty be allowed to plead anew. In Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), we held that the McCarthy rule should apply only in cases where the guilty plea was accepted after April 2, 1969, the date of the McCarthy decision.
4
The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. See nn. 5 and 6, infra. The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. This Court has not yet passed on the question of the retroactivity of this new requirement.
5
Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962); Waley v. Johnston, 316 U.S. 101, 104, 62 S.Ct. 964, 965—966, 86 L.Ed. 1302 (1942); Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 579, 85 L.Ed. 830 (1941); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927).
6
See Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930).
Since an intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney, this Court has scrutinized with special care pleas of guilty entered by defendants without the assistance of counsel and without a valid waiver of the right to counsel. See Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); Von Moltke v. Gillies, 332 U.S. 708 and 727, 68 S.Ct. 316 and 325, 92 L.Ed. 309 (1948) (opinions of Black and Frankfurter, JJ.); Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398 (1945). Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), it has been clear that a guilty plea to a felony charge entered without counsel and without a waiver of counsel is invalid. See White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968).
The importance of assuring that a defendant does not plead guilty except with a full understanding of the charges against him and the possible consequences of his plea was at the heart of our recent decisions in McCarthy v. United States, supra, and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See nn. 3 and 4, supra.
7
Such a possibility seems to have been rejected by the District Court in the § 2255 proceedings. That court found that 'the plea of guilty was made by the petitioner by reason of other matters and not by reason of the statute * * *.'
8
We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty. In Brady's case there is no claim that the prosecutor threatened prosecution on a charge not justified by the evidence or that the trial judge threatened Brady with a harsher sentence if convicted after trial in order to induce him to plead guilty.
9
For a more elaborate discussion of the factors that may justify a reduction in penalty upon a plea of guilty, see American Bar Association Project on Standards for Criminal Justice, Pleas of Guilty § 1.8 and commentary, pp. 37—52 (Approved Draft 1968).
10
It has been estimated that about 90%, and perhaps 95%, of all criminal convictions are by pleas of guilty; between 70% and 85% of all felony convictions are estimated to be by guilty plea. D. Newman, Conviction, The Determination of Guilt or Innocence Without Trial 3 and n. 1 (1966).
11
Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). See also Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963); Lynumn v. Illinois, 372 U.S. 528 (1963); Wilson v. United States, 162 U.S. 613, 622—623, 16 S.Ct. 895, 899—900, 40 L.Ed. 1090 (1896).
12
'The presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege (against compelled self-incrimination). His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.' Miranda v. Arizona, 384 U.S. 436, 466, 86 S.Ct. 1602, 1623 (1966).
13
Shelton v. United States, 246 F.2d 571, 572 n. 2 (C.A.5th Cir. 1957) (en banc), rev'd on confession of error on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958).
14
Our conclusion in this regard seems to coincide with the conclusions of most of the lower federal courts that have considered whether a guilty plea to avoid a possible death penalty is involuntary. See United States ex rel. Brown v. LaVallee, 424 F.2d 457 (C.A.2d Cir. 1970); United States v. Thomas, 415 F.2d 1216 (C.A.9th Cir. 1969); Pindell v. United States, 296 F.Supp. 751 (D.C.Conn.1969); McFarland v. United States, 284 F.Supp. 969 (D.C.Md.1968), aff'd, No. 13,146 (C.A.4th Cir., May 1, 1969), cert. denied, 397 U.S. 1077, 90 S.Ct. 1525, 25 L.Ed.2d 811; Laboy v. New Jersey, 266 F.Supp. 581 (D.C.N.J.1967); Gilmore v. California, 364 F.2d 916 (C.A.9th Cir. 1966); Busby v. Holman, 356 F.2d 75 (C.A.5th Cir. 1966); Cooper v. Holman, 356 F.2d 82 (C.A.5th Cir.), cert. denied, 385 U.S. 855, 87 S.Ct. 103, 17 L.Ed.2d 83 (1966); Godlock v. Ross, 259 F.Supp. 659 (D.C.E.D.N.C.1966); United States ex rel. Robinson v. Fay, 348 F.2d 705 (C.A.2d Cir. 1965), cert. denied, 382 U.S. 997, 86 S.Ct. 583, 15 L.Ed.2d 484 (1966); Overman v. United States, 281 F.2d 497 (C.A.6th Cir. 1960), cert. denied, 368 U.S. 993, 82 S.Ct. 612, 7 L.Ed.2d 530 (1962); Martin v. United States, 256 F.2d 345 (C.A.5th Cir.), cert. denied, 358 U.S. 921, 79 S.Ct. 294, 3 L.Ed.2d 240 (1958). But see Shaw v. United States, 299 F.Supp. 824 (D.C.S.D.Ga.1969); Alford v. North Carolina, 405 F.2d 340 (C.A.4th Cir. 1968), prob. juris. noted, 394 U.S. 956, 89 S.Ct. 1306, 22 L.Ed.2d 558 (1969), restored to calendar for reargument, 397 U.S. 1060, 90 S.Ct. 1494, 25 L.Ed.2d 682.
| 01
|
397 U.S. 664
90 S.Ct. 1409
25 L.Ed.2d 697
Frederick WALZ, Appellant,v.TAX COMMISSION OF the CITY OF NEW YORK.
No. 135.
Argued Nov. 19, 1969.
Decided May 4, 1970.
Edward J. Ennis, New York City, for appellant.
[Syllabus from pages 664-665 intentionally omitted]
J. Lee Rankin, New York City, for appellee.
[Amicus Curiae from pages 665-666 intentionally omitted]
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
Appellant, owner of real estate in Richmond County, New York, sought an injunction in the New York courts to prevent the New York City Tax Commission from granting property tax exemptions to religious organizations for religious properties used solely for religious worship. The exemption from state taxes is authorized by Art. 16, § 1, of the New York Constitution, which provides in relevant part:
2
'Exemptions from taxation may be granted only by general laws. Exemptions may be altered or repealed except those exempting real or personal property used exclusively for religious, educational or charitable purposes as defined by law and owned by any corporation or association organized or conducted exclusively for one or more of such purposes and not operating for profit.'1
3
The essence of appellant's contention was that the New York City Tax Commission's grant of an exemption to church property indirectly requires the appellant to make a contribution to religious bodies and thereby violates provisions prohibiting establishment of religion under the First Amendment which under the Fourteenth Amendment is binding on the States.2
4
Appellee's motion for summary judgment was granted and the Appellate Division of the New York Supreme Court, and the New York Court of Appeals affirmed. We noted probable jurisdiction, 395 U.S. 957, 89 S.Ct. 2105, 23 L.Ed.2d 744 (1969), and affirm.
5
* Prior opinions of this Court have discussed the development and historical background of the First Amendment in detail. See Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). It would therefore serve no useful purpose to review in detail the background of the Establishment and Free Exercise Clauses of the First Amendment or to restate what the Court's opinions have reflected over the years.
6
It is sufficient to note that for the men who wrote the Religion Clauses of the First Amendment the 'establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity. In England, and in some Colonies at the time of the separation in 1776, the Church of England was sponsored and supported by the Crown as a state, or established, church; in other countries 'establishment' meant sponsorship by the sovereign of the Lutheran or Catholic Church. See Engel v. Vitale, 370 U.S., at 428 n. 10, 82 S.Ct., at 1265. See generally C. Antieau, A. Downey, & E. Roberts, Freedom from Federal Establishment (1964). The exclusivity of established churches in the 17th and 18th centuries, of course, was often carried to prohibition of other forms of worship. See Everson v. Board of Education, 330 U.S., at 9—11, 67 S.Ct., at 508—509; L. Pfeffer, Church, State and Freedom 71 et seq. (1967).
7
The Establishment and Free Exercise Clauses of the First Amendment are not the most precisely drawn portions of the Constitution. The sweep of the absolute prohibitions in the Religion Clauses may have been calculated; but the purpose was to state an objective not to write a statute. In attempting to articulate the scope of the two Religion Clauses, the Court's opinions reflect the limitations inherent in formulating general principles on a case-by-case basis. The considerable internal inconsistency in the opinions of the Court derives from what, in retrospect, may have been to sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles.
8
The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other. For example, in Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952), Mr. Justice Douglas, writing for the Court, noted:
9
'The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State.' Id., at 312, 72 S.Ct., at 683.
10
'We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.' Id., at 313, 72 S.Ct. 685.
11
Mr. Justice Harlan expressed something of this in his dissent in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), saying that the constitutional neutrality imposed on us
12
'is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation.' Id., at 422, 83 S.Ct., at 1803.
13
The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.
14
Each value judgment under the Religion Clauses must therefore turn on whether particular acts in question are intended to establish or interfere with religious beliefs and practices or have the effect of doing so. Adherence to the policy of neutrality that derives from an accommodation of the Establishment and Free Exercise Clauses has prevented the kind of involvement that would tip the balance toward government control of churches or governmental restraint on religious practice.
15
Adherents of particular faiths and individual churches frequently take strong positions on public issues including, as this case reveals in the several briefs amici, vigorous advocacy of legal or constitutional positions. Of course, churches as much as secular bodies and private citizens have that right. No perfect or absolute separation is really possible; the very existence of the Religion Clauses is an involvement of sorts—one that seeks to mark boundaries to avoid excessive entanglement.
16
The hazards of placing too much weight on a few words or phrases of the Court is abundantly illustrated within the pages of the Court's opinion in Everson. Mr. Justice Black, writing for the Court's majority, said the First Amendment.
17
'means at least this: Neither a state nor the Federal Government can * * * pass laws which aid one religion, aid all religions, or prefer one religion over another.' 330 U.S., at 15, 67 S.Ct., at 511.
Yet he had no difficulty in holding that:
18
'Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets * * *.' Id., at 17, 67 S.Ct. at 512. (Emphasis added.) The Court did not regard such 'aid' to schools teaching a particular religious faith as any more a violation of the Establishment Clause than providing 'state-paid policemen, detailed to protect children * * * (at the schools) from the very real hazards of traffic * * *.' Ibid.
19
Mr. Justice Jackson, in perplexed dissent in Everson, noted that
20
'the undertones of the opinion, advocating complete and uncompromising separation * * * seem utterly discordant with its conclusion * * *.' Id., at 19, 67 S.Ct., at 513.
21
Perhaps so. One can sympathize with Mr. Justice Jackson's logical analysis but agree with the Court's eminently sensible and realistic application of the language of the Establishment Clause. In Everson the Court declined to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history. Surely, bus transportation and police protection to pupils who receive religious instruction 'aid' that particular religion to maintain schools that plainly tend to assure future adherents to a particular faith by having control of their total education at an early age. No religious body that maintains schools would deny this as an affirmative if not dominant policy of church schools. But if as in Everson buses can be provided to carry and policemen to protect church school pupils, we fail to see how a broader range of police and fire protection given equally to all churches, along with nonprofit hospitals, art galleries, and libraries receiving the same tax exemption, is different for purposes of the Religion Clauses.
22
Similarly, making textbooks available to pupils in parochial schools in common with public schools was surely an 'aid' to the sponsoring churches because it relieved those churches of an enormous aggregate cost for those books. Supplying of costly teaching materials was not seen either as manifesting a legislative purpose to aid or as having a primary effect of aid contravening the First Amendment. Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). In so holding the Court was heeding both its own prior decisions and our religious tradition. Mr. Justice Douglas, in Zorach v. Clauson, supra, after recalling that we 'are a religious people whose institutions presuppose a Supreme Being,' went on to say:
23
'We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. * * * When the state encourages religious instruction * * * it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs.' 343 U.S., at 313—314, 72 S.Ct., at 684. (Emphasis added.)
24
With all the risks inherent in programs that bring about administrative relationships between public education bodies and church-sponsored schools, we have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion. This is a 'tight rope' and one we have successfully traversed.
II
25
The legislative purpose of a property tax exemption is neither the advancement nor the inhibition of religion; it is neither sponsorship nor hostility. New York, in common with the other States, has determined that certain entities that exist in a harmonious relationship to the community at large, and that foster its 'moral or mental improvement,' should not be inhibited in their activities by property taxation or the hazard of loss of those properties for nonpayment of taxes. It has not singled out one particular church or religious group or even churches as such; rather, it has granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations which include hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups. The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest. Qualification for tax exemption is not perpetual or immutable; some tax-exempt groups lose that status when their activities take them outside the classification and new entities can come into being and qualify for exemption.
26
Governments have not always been tolerant of religious activity, and hostility toward religion has taken many shapes and forms—economic, political, and sometimes harshly oppressive. Grants of exemption historically reflect the concern of authors of constitutions and statutes as to the latent dangers inherent in the imposition of property taxes; examption constitutes a reasonable and balanced attempt to guard against those dangers. The limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause. To equate the two would be to deny a national heritage with roots in the Revolution itself. See Sherbert v. Verner, 374 U.S. 398, 423, 83 S.Ct. 1790, 1804, 10 L.Ed.2d 965 (1963) (Harlan J., dissenting); Braunfeld v. Brown, 366 U.S. 599, 608, 81 S.Ct. 1144, 1148, 6 L.Ed.2d 563 (1961). See generally Kauper, The Constitutionality of Tax Exemptions for Religious Activities in The Wall Between Church and State 95 (D.Oaks ed. 1963). We cannot read New York's statute as attempting to establish religion; it is simply sparing the exercise of religion from the burden of property taxation levied on private profit institutions.
27
We find it unnecessary to justify the tax exemption on the social welfare services or 'good works' that some churches perform for parishioners and others—family counselling, aid to the elderly and the infirm, and to children. Churches vary substantially in the scope of such services; programs expand or contract according to resources and need. As public-sponsored programs enlarge, private aid from the church sector may diminish. The extent of social services may vary, depending on whether the church serves an urban or rural, a rich or poor constituency. To give emphasis to so variable an aspect of the work of religious bodies would introduce an element of governmental evaluation and standards as to the worth of particular social welfare programs, thus producing a kind of continuing day-to-day relationship which the policy of neutrality seeks to minimize. Hence, the use of a social welfare yardstick as a significant element to qualify for tax exemption could conceivably give rise to confrontations that could escalate to constitutional dimensions.
28
Determining that the legislative purpose of tax exemption is not aimed at establishing, sponsoring, or supporting religion does not end the inquiry, however. We must also be sure that the end result—the effect—is not an excessive government entanglement with religion. The test is inescapably one of degree. Either course, taxation of churches or exemption, occasions some degree of involvement with religion. Elimination of exemption would tend to expand the involvement of government by giving rise to tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes.
29
Granting tax exemptions to churches necessarily operates to afford an indirect economic benefit and also gives rise to some, but yet a lesser, involvement than taxing them. In analyzing either alternative the questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement. Obviously a direct money subsidy would be a relationship pregnant with involvement and, as with most governmental grant programs, could encompass sustained and detailed administrative relationships for enforcement of statutory or administrative standards, but that is not this case. The hazards of churches supporting government are hardly less in their potential than the hazards of government supporting churches;3 each relationship carries some involvement rather than the desired insulation and separation. We cannot ignore the instances in history when church support of government led to the kind of involvement we seek to avoid.
30
The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state. No one has ever suggested that tax exemption has converted libraries, art galleries, or hospitals into arms of the state or put employees 'on the public payroll.' There is no genuine nexus between tax exemption and establishment of religion. As Mr. Justice Holmes commented in a related context 'a page of history is worth of volume of logic.' New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921). The exemption creates only a minimal and remote involvement between church and state and far less than taxation of churches. It restricts the fiscal relationship between church and state, and tends to complement and reinforce the desired separation insulating each from the other.
31
Separation in this context cannot mean absence of all contact; the complexities of modern life inevitably produce some contact and the fire and police protection received by houses of religious worship are no more than incidental benefits accorded all persons or institutions within a State's boundaries, along with many other exempt organizations. The appellant has not established even an arguable quantitative correlation between the payment of an ad valorem property tax and the receipt of these municipal benefits.
32
All of the 50 States provide for tax exemption of places of worship, most of them doing so by constitutional guarantees. For so long as federal income taxes have had any potential impact on churches—over 75 years—religious organizations have been expressly exempt from the tax.4 Such treatment is an 'aid' to churches no more and no less in principle than the real estate tax exemption granted by States. Few concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference.
33
It is significant that Congress, from its earliest days, has viewed the Religion Clauses of the Constitution as authorizing statutory real estate tax exemption to religious bodies. In 1802 the 7th Congress enacted a taxing statute for the County of Alexandria, adopting the 1800 Virginia statutory pattern which provided tax exemptions for churches. 2 Stat. 194.5 As early as 1813 the 12th Congress refunded import duties paid by religious societies on the importation of religious articles.6 During this period the City Council of Washington, D.C., acting under congressional authority, Act of Incorporation, § 7, 2 Stat. 197 (May 3, 1802), enacted a series of real and personal property assessments that uniformly exempted church property.7 In 1870 the Congress specifically exempted all churches in the District of Columbia and appurtenant grounds and property 'from any and all taxes or assessments, national, municipal, or county.' Act of June 17, 1870, 16 Stat. 153.8
34
It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice of according the exemption to churches, openly and by affirmative state action, not covertly or by state inaction, is not something to be lightly cast aside. Nearly 50 years ago Mr. Justice Holmes stated:
35
'If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it * * *.' Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67 L.Ed. 107 (1922).
36
Nothing in this national attitude toward religious tolerance and two centuries of uninterrupted freedom from taxation has given the remotest sign of leading to an established church or religion and on the contrary it has operated affirmatively to help guarantee the free exercise of all forms of religious belief. Thus, it is hardly useful to suggest that tax exemption is but the 'foot in the door' or the 'nose of the camel in the tent' leading to an established church. If tax exemption can be seen as this first step toward 'establishment' of religion, as Mr. Justice DOUGLAS fears, the second step has been long in coming. Any move that realistically 'establishes' a church or tends to do so can be dealt with 'while this Court sits.'
37
Mr. Justice Cardozo commented in The Nature of the Judicial Process 51 (1921) on the 'tendency of a principle to expand itself to the limit of its logic'; such expansion must always be contained by the historical frame of reference of the principle's purpose and there is no lack of vigilance on this score by those who fear religious entanglement in government.
38
The argument that making 'fine distinctions' between what is and what is not absolute under the Constitution is to render us a government of men, not laws, gives too little weight to the fact that it is an essential part of adjudication to draw distinctions, including fine ones, in the process of interpreting the Constitution. We must frequently decide, for example, what are 'reasonable' searches and seizures under the Fourth Amendment. Determining what acts of government tend to establish or interfere with religion falls well within what courts have long been called upon to do in sensitive areas.
39
It is interesting to note that while the precise question we now decide has not been directly before the Court previously, the broad question was discussed by the Court in relation to real estate taxes assessed nearly a century ago on land owned by and adjacent to a church in Washington, D.C.9 At that time Congress granted real estate tax exemptions to buildings devoted to art, to institutions of public charity, libraries, cemeteries, and 'church buildings, and grounds actually occupied by such buildings.' In denying tax exemption as to land owned by but not used for the church, but rather to produce income, the Court concluded: may tax them at a lower rate than other property.' Gibbons v. District of Columbia, 116 U.S. 404, 408, 6 S.Ct. 427, 429, 29 L.Ed. 680 (1886).
40
It appears that at least up to 1885 this Court, reflecting more than a century of our history and uninterrupted practice, accepted without discussion the proposition that federal or state grants of tax exemption to churches were not a violation of the Religion Clauses of the First Amendment. As to the New York statute, we now confirm that view.
41
Affirmed.
42
Mr. Justice BRENNAN, concurring.
43
I concur for reasons expressed in my opinion in School District of Abington Township, Pa. v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 1575, 10 L.Ed.2d 844 (1963). I adhere to the view there stated that to give concrete meaning to the Establishment Clause,
44
'the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers. It is a line which the Court has consistently sought to mark in its decisions expounding the religious guarantees of the First Amendment. What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice. When the secular and religious institutions become involved in such a manner, there inhere in the relationship precisely those dangers—as much to church as to state—which the Framers feared would subvert religious liberty and the strength of a system of secular government. On the other hand, there may be myriad forms of involvements of government with religion which do not import such dangers and therefore should not, in my judgment, be deemed to violate the Establishment Clause.' Id., at 294—295, 83 S.Ct., at 1609—1610.
45
Thus, in my view, the history, purpose, and operation of real property tax exemptions for religious organizations must be examined to determine whether the Establishment Clause is breached by such exemptions. See id., at 293, 83 S.Ct., at 1609.
46
* The existence from the beginning of the Nation's life of a practice, such as tax exemptions for religious organizations, is not conclusive of its constitutionality. But such practice is a fact of considerable import in the interpretation of abstract constitutional language. On its face, the Establishment Clause is reasonably susceptible of different interpretations regarding the exemptions. This Court's interpretation of the clause, accordingly, is appropriately influenced by the reading it has received in the practices of the Nation. As Mr. Justice Holmes observed in an analogous context, in resolving such questions of interpretation 'a page of history is worth a volume of logic.' New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921). The more longstanding and widely accepted a practice, the greater its impact upon constitutional interpretation. History is particularly compelling in the present case because of the undeviating acceptance given religious tax exemptions from our earliest days as a Nation. Rarely if ever has this Court considered the constitutionality of a practice for which the historical support is so overwhelming.
47
The Establishment Clause, along with the other provisions of the Bill of Rights, was ratified by the States in 1791. Religious tax exemptions were not an issue in the petitions calling for the Bill of Rights, in the pertinent congressional debates, or in the debates preceding ratification by the States.1 The absence of concern about the exemptions could not have resulted from failure to foresee the possibility of their existence, for they were widespread during colonial days.2 Rather, it seems clear that the exemptions were not among the evils that the Framers and Ratifiers of the Establishment Clause sought to avoid. Significantly, within a decade after ratification, at least four States passed statutes exempting the property of religious organizations from taxation.3
48
Although the First Amendment may not have applied to the States during this period, practice in Virginia at the time is nonetheless instructive. The Commonwealth's efforts to separate church and state provided the direct antecedents of the First Amendment, see McGowan v. Maryland, 366 U.S. 420, 437—440, 81 S.Ct. 1101, 1111—1113, 6 L.Ed.2d 393 (1961); School District of Abington Township, Pa. v. Schempp, supra, 374 U.S. at 233—234, 83 S.Ct., at 1577—1578 (Brennan, J., concurring); Everson v. Board of Education, 330 U.S. 1, 33—38, 67 S.Ct. 504, 520—522, 91 L.Ed. 711 (1947) (Rutledge, J., dissenting), and Virginia remained unusually sensitive to the proper relation between church and state during the years immediately following ratification of the Establishment Clause. Virginia's protracted movement to disestablish the Episcopal Church culminated in the passage on January 24, 1799, of 'An ACT to repeal certain acts, and to declare the construction of the (Virginia) bill of rights and constitution, concerning religion.' The 1799 Act stated that the Virginia Bill of Rights had 'excepted from the powers given to the (civil) government, the power of reviving any species of ecclesiastical or church government * * * by referring the subject of religion to conscience' and that the repealed measures had 'bestowed property upon (the Anglican) church,' had 'asserted a legislative right to establish any religious sect,' and had 'incorporated religious sects, all of which is inconsistent with the principles of the constitution, and of religious freedom, and manifestly tends to the reestablishment of a national church.' 2 Va. Statutes at Large of 1792—1806 (Shepherd) 149. Yet just one year after the passage of this Act, Virginia re-enacted a measure exempting from taxation property belonging to 'any * * * college, houses for divine worship, or seminary of learning.' Id., at 200. This exemption dated at least from 1777 and had been reaffirmed immediately before and after ratification of the First Amendment. See 9 Va. Statutes at Large (1775—1778, Hening), at 351; 13 Va. Statutes at Large (1789—1792, Hening), at 112, 241, 336—337. It may reasonably be inferred that the Virginians did not view the exemption for 'houses of divine worship' as an establishment of religion.
49
Similarly, in 1784 the New York Legislature repealed colonial acts establishing the Episcopal Church in several counties of the State. See N.Y. Laws of 1777—1784, c. 38, p. 661. Yet in 1799, the legislature provided that 'no house or land belonging to * * * any church or place of public worship, * * * nor any college or incorporated academy, nor any school house, * * * alms house or property belonging to any incorporated library, shall be taxed by virtue of this act.' N.Y. Laws of 1797—1800, c. 72, at 414. And early practice in the District of Columbia—governed from the outset by the First Amendment—mirrored that in the States. In 1802 the Corporation of the City of Washington, under authority delegated by Congress, exempted 'houses for public worship' from real property taxes. Acts of the Corporation of the City of Washington. First Council, c. V, approved Oct. 6, 1802, p. 13. See also the congressional Acts cited in the Court's opinion, ante, at 677—678.
50
Thomas Jefferson was President when tax exemption was first given Washington churches, and James Madison sat in sessions of the Virginia General Assembly that voted exemptions for churches in that Commonwealth.4 I have found no record of their personal views on the respective Acts.5 The absence of such a record is itself significant. It is unlikely that two men so concerned with the separation of church and state would have remained silent had they thought the exemptions established religion. And if they had not either approved the exemptions, or been mild in their opposition, it is probable that their views would be known to us today. Both Jefferson and Madison wrote prolifically about issues they felt important, and their opinions were well known to contemporary chroniclers. See, for example, the record preserved of Madison's battle in 1784—1785 against the proposal in the Virginia Assembly to levy a general tax to support 'Teachers of the Christian Religion,' in the dissenting opinion of Mr. Justice DOUGLAS, post, at 704—706, 719—727. Much the same can be said of the other Framers and Ratifiers of the Bill of Rights who remained active in public affairs during the late 18th and early 19th centuries. The adoption of the early exemptions without controversy, in other words, strongly suggests that they were not thought incompatible with constitutional prohibitions against involvements of church and state.
51
The exemptions have continued uninterrupted to the present day. They are in force in all 50 States. No judicial decision, state or federal, has ever held that they violate the Establishment Clause. In 1886, for example, this Court in Gibbons v. District of Columbia, 116 U.S. 404, 6 S.Ct. 427, 29 L.Ed. 680, rejected on statutory grounds a church's claim for the exemption of certain of its land under congressional statutes exempting Washington churches and appurtenant ground from real property taxes. But the Court gave not the slightest hint that it ruled against the church because, under the First Amendment, any exemption would have been unconstitutional. To the contrary, the Court's opinion implied that nothing in the Amendment precludes exemption of church property: 'We are not disposed to deny that grounds left open around a church, not merely to admit light and air, but also to add to its beauty and attractiveness, may, if not used or intended to be used for any other purpose, be exempt from taxation under these statutes.' Id., at 407, 6 S.Ct., at 428.6
52
Mr. Justice Holmes said that '(i)f a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it * * *.' Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67 L.Ed. 107 (1922). For almost 200 years the view expressed in the actions of legislatures and courts has been that tax exemptions for churches do not threaten 'those consequences which the Framers deeply feared' or 'tend to promote that type of interdependence between religion and state which the First Amendment was designed to prevent,' Schempp, supra, 374 U.S., at 236, 83 S.Ct., at 1578 (Brennan, J., concurring). An examination both of the governmental purposes for granting the exemptions and of the type of church-state relationship that has resulted from their existence makes clear that no 'strong case' exists for holding unconstitutional this historic practice.7
II
53
Government has two basic secular purposes for granting real property tax exemptions to religious organizations.8 First, these organizations are exempted because they, among a range of other private, nonprofit organizations contribute to the well-being of the community in a variety of nonreligious ways, and thereby bear burdens that would otherwise either have to be met by general taxation, or be left undone, to the detriment of the community. See, for example, 1938 N.Y. Constitutional Convention, Report of the Committee on Taxation, Doc. No. 2, p. 2. Thus, New York exempts '(r)eal property owned by a corporation or association organized exclusively for the moral or mental improvement of men and women, or for religious, bible, tract, charitable, benevolent, missionary, hospital, infirmary, educational, public playground, scientific, literary, bar association, medical society, library, patriotic, historical or cemetery purposes, for the enforcement of laws relating to children or animals, or for two or more such purposes, * * *.' N.Y. Real Prop. Tax Law § 420, subd. 1 (Supp. 1969—1970).
54
Appellant seeks to avoid the force of this secular purpose of the exemptions by limiting his challenge to 'exemptions from real property taxation to religious organizations on real property used exclusively for religious purposes.' Appellant assumes, apparently, that church-owned property is used for exclusively religious purposes if it does not house a hospital, orphanage, weekday school, or the like. Any assumption that a church building itself is used for exclusively religious activities, however, rests on a simplistic view of ordinary church operations. As the appellee's brief cogently observes, 'the public welfare activities and the sectarian activities of religious institutions are * * * intertwined * * *. Often a particular church will use the same personnel, facilities and source of funds to carry out both its secular and religious activities.' Thus, the same people who gather in church facilities for religious worship and study may return to these facilities to participate in Boy Scout activities, to promote antipoverty causes, to discuss public issues, or to listen to chamber music. Accordingly, the funds used to maintain the facilities as a place for religious worship and study also maintain them as a place for secular activities beneficial to the community as a whole. Even during formal worship services, churches frequently collect the funds used to finance their secular operations and make decisions regarding their nature.
55
Second, government grants exemptions to religious organizations because they uniquely contribute to the pluralism of American society by their religious activities. Government may properly include religious institutions among the variety of private, nonprofit groups that receive tax exemptions, for each group contributes to the diversity of association, viewpoint, and enterprise essential to a vigorous, pluralistic society. See Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 373, 249 F.2d 127, 129 (1957). To this end, New York extends its exemptions not only to religious and social service organizations but also to scientific, literary, bar, library, patriotic, and historical groups, and generally to institutions 'organized exclusively for the moral or mental improvement of men and women.' The very breadth of this scheme of exemptions negates any suggestion that the State intends to single out religious organizations for special preference. The scheme is not designed to inject any religious activity into a nonreligious context, as was the case with school prayers. No particular activity of a religious organization—for example, the propagation of its beliefs—is specially promoted by the exemptions. They merely facilitate the existence of a broad range of private, non-profit organizations, among them religious groups, by leaving each free to come into existence, then to flourish or wither, without being burdened by real property taxes.
III
56
Although governmental purposes for granting religious exemptions may be wholly secular, exemptions can nonetheless violate the Establishment Clause if they result in extensive state involvement with religion. Accordingly, those who urge the exemptions' unconstitutionality argue that exemptions are the equivalent of governmental subsidy of churches. General subsidies of religious activities would, of course, constitute impermissible state involvement with religion.
57
Tax exemptions and general subsidies, however, are qualitatively different. Though both provide economic assistance,9 they do so in fundamentally different ways. A subsidy involves the direct transfer of public monies to the subsidized enterprise and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer.10 It assists the exempted enterprise only passively, by relieving a privately funded venture of the burden of paying taxes. In other words, '(i)n the case of direct subsidy, the state forcibly diverts the income of both believers and nonbelievers to churches,' while '(i)n the case of an exemption, the state merely refrains from diverting to its own uses income independently generated by the churches through voluntary contributions.' Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, pt. II, 81 Harv.L.Rev. 513, 553 (1968). Thus, 'the symbolism of tax exemption is significant as a manifestation that organized religion is not expected to support the state; by the same token the state is not expected to support the church.' Freund, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1687 n. 16 (1969). Tax exemptions, accordingly, constitute mere passive state involvement with religion and not the affirmative involvement characteristic of outright governmental subsidy.11
58
Even though exemptions produce only passive state involvement with religion, nonetheless some argue that their termination would be desirable as a means of reducing the level of church-state contract. But it cannot realistically be said that termination of religious tax exemptions would quantitatively lessen the extent of state involvement with religion. Appellee contends that '(a)s a practical matter, the public welfare activities and the sectarian activities of religious institutions are so intertwined that they cannot be separated for the purpose of determining eligibility for tax exemptions.' If not impossible, the separation would certainly involve extensive state investigation into church operations and finances. Moreover, the termination of exemptions would give rise, as the Court says, to the necessity for 'tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes.' Ante, at 674. Taxation, further, would bear unequally on different churches, having its most disruptive effect on those with the least ability to meet the annual levies assessed against them. And taxation would surely influence the allocation of church resources. By diverting funds otherwise available for religious or public service purposes to the support of the Government, taxation would necessarily affect the extent of church support for the enterprises that they now promote. In many instances, the public service activities would bear the brunt of the reallocation, as churches looked first to maintain their places and programs of worship. In short, the cessation of exemptions would have a significant impact on religious organizations. Whether Government grants or withholds the exemptions, it is going to be involved with religion.12
IV
59
Against the background of this survey of the history, purpose, and operation of religious tax exemptions, I must conclude that the exemptions do not 'serve the essentially religious activities of religious institutions.' Their principal effect is to carry out secular purposes—the encouragement of public service activities and of a pluralistic society. During their ordinary operations, most churches engage in activities of a secular nature that benefit the community; and all churches by their existence contribute to the diversity of association, viewpoint, and enterprise so highly valued by all of us.
60
Nor do I find that the exemptions 'employ the organs of government for essentially religious purposes.' To the extent that the exemptions further secular ends, they do not advance 'essentially religious purposes.' To the extent that purely religious activities are benefited by the exemptions, the benefit is passive. Government does not affirmatively foster these activities by exempting religious organizations from taxes, as it would were it to subsidize them. The exemption simply leaves untouched that which adherents of the organization bring into being and maintain.
61
Finally, I do not think that the exemptions 'use essentially religious means to serve governmental ends, where secular means would suffice.' The means churches use to carry on their public service activities are not 'essentially religious' in nature. They are the same means used by any purely secular organization—money, human time and skills, physical facilities. It is true that each church contributes to the pluralism of our society through its purely religious activities, but that state encourages these activities not because it champions religion per se but because it values religion among a variety of private, nonprofit enterprises that contribute to the diversity of the Nation. Viewed in this light, there is no nonreligious substitute for religion as an element in our societal mosaic, just as there is no nonliterary substitute for literary groups.
62
As I said in Schempp, the First Amendment does not invalidate 'the propriety of certain tax * * * exemptions which incidentally benefit churches and religious institutions, along with many secular charities and nonprofit organizations. * * * (R)eligious institutions simply share benefits which government makes generally available to educational, charitable, and eleemosynary groups. There is no indication that taxing authorities have used such benefits in any way to subsidize worship or foster belief in God.' 374 U.S., at 301, 83 S.Ct., at 1613.
63
Opinion of Mr. Justice HARLAN.
64
While I entirely subscribe to the result reached today and find myself in basic agreement with what THE CHIEF JUSTICE has written, I deem it appropriate, in view of the radiations of the issues involved, to state those considerations that are, for me, controlling in this case and lead me to conclude that New York's constitutional provision, as implemented by its real property law, does not offend the Establishment Clause. Preliminarily, I think it relevant to face up to the fact that it is far easier to agree on the purpose that underlies the First Amendment's Establishment and Free Exercise Clauses than to obtain agreement on the standards that should govern their application. What is at stake as a matter of policy is preventing that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point.
65
* Two requirements frequently articulated and applied in our cases for achieving this goal are 'neutrality' and 'voluntarism.' E.g., see Abington School Dist. v. Schempp, 374 U.S. 203, 305, 83 S.Ct. 1560, 1615, 10 L.Ed.2d 844 (1963) (concurring opinion of Mr. Justice Goldberg); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). These related and mutually reinforcing concepts are short-form for saying that the Government must neither legislate to accord benefits that favor religion over nonreligion, nor sponsor a particular sect, nor try to encourage participation in or abnegation of religion. Mr. Justice Goldberg's concurring opinion in Abington which I joined set forth these principles: 'The fullest realization of true religious liberty requires that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief.' 374 U.S., at 305, 83 S.Ct., at 1615. The Court's holding in Torcaso v. Watkins, 367 U.S. 488, 495, 81 S.Ct. 1680, 1683—1684, 6 L.Ed.2d 982 (1961), is to the same effect: the State cannot 'constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can (it) aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.' In the vast majority of cases the inquiry, albeit an elusive one, can end at this point. Neutrality and voluntarism stand as barriers against the most egregious and hence divisive kinds of state involvement in religious matters.
66
While these concepts are at the 'core' of the Religion Clauses, they may not suffice by themselves to achieve in all cases the purposes of the First Amendment. As Professor Freund has only recently pointed out in Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680 (1969), governmental involvement, while neutral, may be so direct or in such degree as to engender a risk of politicizing religion. Thus, as the opinion of THE CHIEF JUSTICE notes, religious groups inevitably represent certain points of view and not infrequently assert them in the political arena, as evidenced by the continuing debate respecting birth control and abortion laws. Yet history cautions that political fragmentation on sectarian lines must be guarded against. Although the very fact of neutrality may limit the intensity of involvement, government participation in certain programs, whose very nature is apt to entangle the state in details of administration and planning, may escalate to the point of inviting undue fragmentation. See my concurring opinion in Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 249, 88 S.Ct. 1923, 1929, 20 L.Ed.2d 1060 (1968), and the concurring opinion of Mr. Justice Goldberg in Abington School Dist. v. Schempp, supra, 374 U.S. at 307, 83 S.Ct. at 1616.
II
67
This legislation neither encourages nor discourages participation in religious life and thus satisfies the voluntarism requirement of the First Amendment. Unlike the instances of school prayers, Abington School Dist. v. Schempp, supra, and Engel v. Vitale, supra, or 'released time' programs, Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952), and People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948), the State is not 'utilizing the prestige, power, and influence' of a public institution to bring religion into the lives of citizens. 374 U.S., at 307, 83 S.Ct., at 1616 (Goldberg, J., concurring).
68
The statute also satisfies the requirement of neutrality. Neutrality in its application requires an equal protection mode of analysis. The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders. In any particular case the critical question is whether the circumference of legislation encircles a class so broad that it can be fairly concluded that religious institutions could be thought to fall within the natural perimeter.
69
The statute that implements New York's constitutional provision for tax exemptions to religious organizations has defined a class of nontaxable entities whose common denominator is their nonprofit pursuit of activities devoted to cultural and moral improvement and the doing of 'good works' by performing certain social services in the community that might otherwise have to be assumed by government. Included are such broad and divergent groups as historical and literary societies and more generally associations 'for the moral or mental improvement of men.' The statute by its terms grants this exemption in furtherance of moral and intellectual diversity and would appear not to omit any organization that could be reasonably thought to contribute to that goal.
70
To the extent that religious institutions sponsor the secular activities that this legislation is designed to promote, it is consistent with neutrality to grant them an exemption just as other organizations devoting resources to these projects receive exemptions. I think, moreover, in the context of a statute so broad as the one before us, churches may properly receive an exemption even though they do not themselves sponsor the secular-type activities mentioned in the statute but exist merely for the conveience of their interested members. As long as the breadth of exemption includes groups that pursue cultural, moral, or spiritual improvement in multifarious secular ways, including, I would suppose, groups whose avowed tenets may be antitheological, atheistic, or agnostic, I can see no lack of neutrality in extending the benefit of the exemption to organized religious groups.1
III
71
Whether the present exemption entails that degree of involvement with government that presents a threat of fragmentation along religious lines involves, for me, a more subtle question than deciding simply whether neutrality has been violated. Unlike the subsidy that my Brother Douglas foresees as the next step down the road, tax exemptions to nonprofit organizations are an institution in themselves, so much so that they are, as THE CHIEF JUSTICE points out, expected and accepted as a matter of course. See Freund, Public Aid to Parochial Schools, supra. In the instant case noninvolvement is further assured by the neutrality and breadth of the exemption. In the context of an exemption so sweeping as the one before us here its administration need not entangle government in difficult classifications of what is or is not religious, for any organization—although not religious in a customary sense—would qualify under the pervasive rubric of a group dedicated to the moral and cultural improvement of men. Obviously the more discriminating and complicated the basis of classification for an exemption—even a neutral one—the greater the potential for state involvement in evaluating the character of the organizations. Cf. Presbyterian Church in United States v. Mary Eliz. Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969).
72
I agree with my Brother DOUGLAS that exemptions do not differ from subsidies as an economic matter. Aside from the longstanding tradition behind exemptions there are other differences, however. Subsidies, unlike exemptions, must be passed on periodically and thus invite more political controversy than exemptions. Moreover, subsidies or direct aid, as a general rule, are granted on the basis of enumerated and more complicated qualifications and frequently involve the state in administration to a higher degree, though to be sure, this is not necessarily the case.
73
Whether direct aid or subsidies entail that degree of involvement that is prohibited by the Constitution is a question that must be reserved for a later case upon a record that fully develops all the pertinent considerations2 such as the significance and character of subsidies in our political system and the role of the government in administering the subsidy in relation to the particular program aided. It may also be that the States, while bound to observe strict neutrality, should be freer to experiment with involvement—on a neutral basis—than the Federal Government. Cf., e.g., my separate opinion in Roth v. United States, 354 U.S. 476, 496, 77 S.Ct. 1304, 1315, 1 L.Ed.2d 1498 (1957).
74
I recognize that for those who seek inflexible solutions this tripartite analysis provides little comfort. It is always possible to shrink from a first step lest the momentum will plunge the law into pitfalls that lie in the trail ahead. I, for one, however, do not believe that a 'slippery slope' is necessarily without a constitutional toehold. Like THE CHIEF JUSTICE I am of the view that it is the task of this tribunal to 'draw distinctions, including fine ones, in the process of interpreting the Constitution.' Ante, at 679. The prospect of difficult questions of judgment in constitutional law should not be the basis for prohibiting legislative action that is constitutionally permissible. I think this one is, and on the foregoing premises join with the Court in upholding this New York statute.
75
Mr. Justice DOUGLAS, dissenting.
76
Petitioner is the owner of real property in New York and is a Christian. But he is not a member of any of the religious organizations, 'rejecting them as hostile.' The New York statute exempts from taxation real property 'owned by a corporation or association organized exclusively for * * * religious * * * purposes' and used 'exclusively for carrying out' such purposes.1 Yet nonbelievers who own realty are taxed at the usual rate. The question in the case therefore is whether believers—organized in church groups—can be made exempt from real estate taxes, merely because they are believers, while non-believers, whether organized or not, must pay the real estate taxes.
77
My Brother HARLAN says he 'would suppose' that the tax exemption extends to 'groups whose avowed tenets may be antitheological, atheistic, or agnostic.' Ante, at 697. If it does, then the line between believers and nonbelievers has not been drawn. But, with all respect, there is not even a suggestion in the present record that the statute covers property used exclusively by organizations for 'antitheological purposes,' 'atheistic purposes,' or 'agnostic purposes.'
78
In Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982, we held that a State could not bar an atheist from public office in light of the freedom of belief and religion guaranteed by the First and Fourteenth Amendments. Neither the State nor the Federal Government, we said, 'can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.' Id., at 495, 81 S.Ct., at 1683—1684.
79
That principle should govern this case.
80
There is a line between what a State may do in encouraging 'religious' activities, Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954, and what a State may not do by using its resources to promote 'religious' activities, People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649, or bestowing benefits because of them. Yet that line may not always be clear. Closing public schools on Sunday is in the former category; subsidizing churches, in my view, is in the latter. Indeed I would suppose that in common understanding one of the best ways to 'establish' one or more religions is to subsidize them, which a tax exemption does. The State may not do that any more than it may prefer 'those who believe in no religion over those who do believe.' Zorach v. Clauson, supra, 343 U.S. at 314, 72 S.Ct., at 684.
81
In affirming this judgment the Court largely overlooks the revolution initiated by the adoption of the Fourteenth Amendment. That revolution involved the imposition of new and far-reaching constitutional restraints on the States. Nationalization of many civil liberties has been the consequence of the Fourteenth Amendment, reversing the historic position that the foundations of those liberties rested largely in state law.
82
The process of the 'selective incorporation' of various provisions of the Bill of Rights into the Fourteenth Amendment, although often provoking lively disagreement at large as well as among the members of this Court, has been a steady one. It started in 1897 with Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979, in which the Court held that the Fourteenth Amendment precluded a State from taking private property for public use without payment of just compensation, as provided in the Fifth Amendment. The first direct holding as to the incorporation of the First Amendment into the Fourteenth occurred in 1931 in Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, a case involving the right of free speech, although that holding in Stromberg had been foreshadowed in 1925 by the Court's opinion in Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. As regards the religious guarantees of the First Amendment, the Free Exercise Clause was expressly deemed incorporated into the Fourteenth Amendment in 1940 in Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, although that holding had been foreshadowed in 1923 and 1934 by the Court's dicta in Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 and Hamilton v. Regents, 293 U.S. 245, 262, 55 S.Ct. 197, 204, 79 L.Ed. 343. The Establishment Clause was not incorporated in the Fourteenth Amendment until Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, was decided in 1947.
83
Those developments in the last 30 years have had unsettling effects. It was, for example, not until 1962 that state-sponsored, sectarian prayers were held to violate the Establishment Clause. Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601. That decision brought many protests, for the habit of putting one sect's prayer in public schools had long been practiced. Yet if the Catholics, controlling one school board, could put their prayer into one group of public schools, the Mormons, Baptists, Moslems, Presbyterians, and others could do the same, once they got control. And so the seeds of Establishment would grow and a secular institution would be used to serve a sectarian end.
84
Engel was as disruptive of traditional state practices as was Stromberg. Prior to Stromberg, a State could arrest an unpopular person who made a rousing speech on the charge of disorderly conduct. Since Stromberg, that has been unconstitutional. And so the revolution occasioned by the Fourteenth Amendment has progressed as Article after Article in the Bill of Rights has been incorporated in it and made applicable to the States.
85
Hence the question in the present case makes irrelevant the 'two centuries of uninterrupted freedom from taxation,' referred to by the Court. Ante, at 678. If history be our guide, then tax exemption of church property in this country is indeed highly suspect, as it arose in the early days when the church was an agency of the state. See W. Torpey, Judicial Doctrines of Religious Rights in America 171 (1948). The question here, though, concerns the meaning of the Establishment Clause and the Free Exercise Clause made applicable to the States for only a few decades at best.
86
With all due respect the governing principle is not controlled by Everson v. Board of Education, supra. Everson involved the use of public funds to bus children to parochial as well as to public schools. Parochial schools teach religion; yet they are also educational institutions offering courses competitive with public schools. They prepare students for the professions and for activities in all walks of life. Education in the secular sense was combined with religious indoctrination at the parochial schools involved in Everson. Even so, the Everson decision was five to four and, though one of the five, I have since had grave doubts about it, because I have become convinced that grants to institutions teaching a sectarian creed violate the Establishment Clause. See Engel v. Vitale, supra, at 443—444, 82 S.Ct., at 1273—1274 (Douglas, J., concurring).
87
This case, however, is quite different. Education is not involved. The financial support rendered here is to the church, the place of worship. A tax exemption is a subsidy. Is my Brother BRENNAN correct in saying that we would hold that state or federal grants to churches, say, to construct the edifice itself would be unconstitutional? What is the difference between that kind of subsidy and the present subsidy?2
88
The problem takes us back where Madison was in 1784 and 1785 when he battled the Assessment Bill3 in Virginia. That bill levied a tax for the support of Christian churches, leaving to each taxpayer the choice as to 'what society of christians' he wanted the tax paid; and absent such designation, the tax was to go for education. Even so, Madison was unrelenting in his opposition. As stated by Mr. Justice Rutledge:
89
'The modified Assessment Bill passed second reading in December, 1784, and was all but enacted.
90
Madison and his followers, however, maneuvered deferment of final consideration until November, 1785. And before the Assembly reconvened in the fall he issued his historic Memorial and Remonstrance.' Everson v. Board of Education, supra, at 37, 67 S.Ct., at 522 (dissenting opinion).
91
The Remonstrance4 stirred up such a storm of popular protest that the Assessment Bill was defeated.5
92
The Remonstrance covers some aspects of the present subsidy, including Madison's protest in paragraph 3 to a requirement that any person be compelled to contribute even 'three pence' to support a church. All men, he maintained in paragraph 4, enter society 'on equal conditions,' including the right to free exercise of religion:
93
'Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offense against God, not against man: To God, therefore, not to men, must an account of it be rendered. As the Bill violates equality be subjecting some to peculiar burdens; so it violates the same principle, by granting to others peculiar exemptions.'
94
Madison's assault on the Assessment Bill was in fact an assault based on both the concepts of 'free exercise' and 'establishment' of religion later embodied in the First Amendment. Madison whom we recently called 'the leading architect of the religion clauses of the First Amendment,' Flast v. Cohen, 392 U.S. 83, 103, 88 S.Ct. 1942, 1954, 20 L.Ed.2d 947 was indeed their author and chief promoter.6 As Mr. Justice Rutledge said:
95
'All the great instruments of the Virginia struggle for religious liberty thus became warp and woof of our constitutional tradition, not simply by the course of history, but by the common unifying force of Madison's life, thought and sponsorship. He epitomized the whole of that tradition in the Amendment's compact, but nonetheless comprehensive, phrasing.' Everson v. Board of Education, supra, 330 U.S. at 39, 67 S.Ct., at 523.
96
The Court seeks to avoid this historic argument as to the meaning of 'establishment' and 'free exercise' by relying on the long practice of the States in granting the subsidies challenged here.
97
Certainly government may not lay a tax on either worshiping or preaching. In Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, we ruled on a state license tax levied on religious colporteurs as a condition to pursuit of their activities. In holding the tax unconstitutional we said:
98
'The power to tax the exercise of a privilege is the power to control or suppress its enjoyment. Magnano Co. v. Hamilton, 292 U.S. 40, 44—45, 54 S.Ct. 599, 601, 78 L.Ed. 1109, and cases cited. Those who can tax the exercise of this religious practice can make its exercise so costly as to deprive it of the resources necessary for its maintenance. Those who can tax the privilege of engaging in this form of missionary evangelism can close its doors to all those who do not have a full purse. Spreading religious beliefs in this ancient and honorable manner would thus be denied the needy. Those who can deprive religious groups of their colporteurs can take from them a part of the vital power of the press which has survived from the Reformation.' Id., at 112, 63 S.Ct. at 874.
99
Churches, like newspapers also enjoying First Amendment rights, have no constitutional immunity from all taxes. As we said in Murdock:
100
'We do not mean to say that religious groups and the press are free from all financial burdens of government. See Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660. We have here something quite different, for example, from a tax on the income of one who engages in religious activities or a tax on property used or employed in connection with those activities. It is one thing to impose a tax on the income or property of a preacher. It is quite another thing to exact a tax from him for the privilege of delivering a sermon.' Ibid.
101
State aid to places of worship, whether in the form of direct grants or tax exemption, takes us back to the Assessment Bill and the Remonstrance. The church qua church would not be entitled to that support from believers and from nonbelievers alike. Yet the church qua nonprofit, charitable institution is one of many that receive a form of subsidy through tax exemption. To be sure, the New York statute7 does not single out the church for grant or favor. It includes churches in a long list of nonprofit organizations: for the moral or mental improvement of men and women (§ 420); for charitable, hospital, or educational purposes (ibid.); for playgrounds (ibid.); for scientific or literary objects (ibid.); for bar associations, medical societies, or libraries (ibid.); for patriotic and historical purposes (ibid.); for cemeteries (ibid.); for the enforcement of laws relating to children or animals (ibid.); for opera houses (§ 426); for fraternal organizations (§ 428); for academies of music (§ 434); for veterans' organizations (§ 452); for pharmaceutical societies (§ 472); and for dental societies (§ 474). While the beneficiaries cover a wide range, 'atheistic,' (agnostic,' or 'antitheological' groups do not seem to be included.
102
Churches perform some functions that a State would constitutionally be empowered to perform. I refer to nonsectarian social welfare operations such as the care of orphaned children and the destitute and people who are sick. A tax exemption to agencies performing those functions would therefore be as constitutionally proper as the grant of direct subsidies to them. Under the First Amendment a State may not, however, provide worship if private groups fail to do so. As Mr. Justice Jackson said:
103
'(A State) may socialize utilities and economic enterprises and make taxpayers' business out of what conventionally had been private business. It may make public business of individual welfare, health, education, entertainment or security. But it cannot make public business of religious worship or instruction, or of attendance at religious institutions of any character. * * * That is a difference which the Constitution sets up between religion and almost every other subject matter of legislation, a difference which goes to the very root of religious freedom and which the Court is overlooking today.' Everson v. Board of Education, supra, 330 U.S., at 26, 67 S.Ct., at 516 (dissenting opinion).
104
That is a major difference between churches on the one hand and the rest of the nonprofit organizations on the other. Government could provide or finance operas, hospitals, historical societies, and all the rest because they represent social welfare programs within the reach of the police power. In contrast, government may not provide or finance worship because of the Establishment Clause any more than it may single out 'atheistic' or 'agnostic' centers or groups and create or finance them.
105
The Brookings Institution, writing in 1933, before the application of the Establishment Clause of the First Amendment to the States, said about tax exemptions of religious groups:8
106
'Tax exemption, no matter what its form, is essentially a government grant or subsidy. Such grants would seem to be justified only if the purpose for which they are made is one for which the legislative body would be equally willing to make a direct appropriation from public funds equal to the amount of the exemption. This test would not be met except in the case where the exemption is granted to encourage certain activities of private interests, which, if not thus performed, would have to be assumed by the government at an expenditure at least as great as the value of the exemption.' (Emphasis added.)
107
Since 1947, when the Establishment Clause was made applicable to the States, that report would have to state that the exemption would be justified only where 'the legislative body could make' an appropriation for the cause.
108
On the record of this case, the church qua nonprofit, charitable organization is intertwined with the church qua church. A church may use the same facilities, resources, and personnel in carrying out both its secular and its sectarian activities. The two are unitary and on the present record have not been separated one from the other. The state has a public policy of encouraging private public welfare organizations, which it desires to encourage through tax exemption. Why may it not do so and include churches qua welfare organizations on a nondiscriminatory basis? That avoids, it is argued, a discrimination against churches and in a real sense maintains neutrality toward religion which the First Amendment was designed to foster. Welfare services, whether performed by churches or by nonreligious groups, may well serve the public welfare.
109
Whether a particular church seeking an exemption for its welfare work could constitutionally pass muster would depend on the special facts. The assumption is that the church is a purely private institution, promoting a sectarian cause. The creed, teaching, and beliefs of one may be undesirable or even repulsive to others. Its sectarian faith sets it apart from all others and makes it difficult to equate its constituency with the general public. The extent that its facilities are open to all may only indicate the nature of its proselytism. Yet though a church covers up its religious symbols in welfare work its welfare activities may merely be a phase of sectarian activity. I have said enough to indicate the nature of this tax exemption problem.
110
Direct financial aid to churches or tax exemptions to the church qua church is not, in my view, even arguably permitted. Sectarian causes are certainly not antipublic and many would rate their own church or perhaps all churches as the highest form of welfare. The difficulty is that sectarian causes must remain in the private domain not subject to public control or subsidy. That seems to me to be the requirement of the Establishment Clause. As Edmond Cahn said:
111
'In America, Madison submitted most astutely, the rights of conscience must be kept not only free but equal as well. And in view of the endless variations—not only among the numerous sects, but also among the organized activities they pursued and the relative emotional values they attached to their activities—how could any species of government assistance be considered genuinely equal from sect to sect? If, for exemple, a state should attempt to subsidize all sectarian schools without discrimination, it would necessarily violate the principle of equality because certain sects felt impelled to conduct a large number of such schools, others few, others none.9 How could the officers of government begin to measure the intangible factors that a true equality of treatment would involve, i.e., the relative intensity of religious attachment to parochial education that the respective groups required of their lay and clerical members? It would be presumptuous even to inquire. Thus, just as in matters of race our belated recognition of intangible factors has finally led us to the maxim 'separate therefore unequal,' so in matters of religion Madison's immediate recognition of intangible factors led us promptly to the maxim 'equal therefore separate.' Equality was out of the question without total separation.' Confronting Injustice 186—187 (1967).
112
The exemptions provided here insofar as welfare projects are concerned may have the ring of neutrality. But subsidies either through direct grant or tax exemption for sectarian causes, whether carried on by church qua church or by church qua welfare agency, must be treated differently, lest we in time allow the church qua church to be on the public payroll, which, I fear, is imminent.
113
As stated by my Brother Brennan in Abington School Dist. v. Schempp, 374 U.S. 203, 259, 83 S.Ct. 1560, 1591, 10 L.Ed.2d 844 (concurring opinion), 'It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government.'
114
Madison as President vetoed a bill incorporating the Protestant Episcopal Church in Alexandria, Virginia, as being a violation of the Establishment Clause. He said, inter alia:10
115
'(T)he bill vests in the said incorporated church an authority to provide for the support of the poor and the education of poor children of the same, an authority which, being altogether superfluous if the provision is to be the result of pious charity, would be a precedent for giving to religious societies as such a legal agency in carrying into effect a public and civil duty.'
116
He also vetoed a bill that reserved a parcel of federal land 'for the use' of the Baptist Church, as violating the Establishment Clause.11
117
What Madison would have thought of the present state subsidy to churches—a tax exemption as distinguished from an outright grant—no one can say with certainty. The fact that Virginia early granted church tax exemptions cannot be credited to Madison. Certainly he seems to have been opposed. In his paper Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments he wrote:12 'Strongly guarded as is the separation between Religion & Govt in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history.' And he referred, inter alia, to the 'attempt in Kentucky for example, where it was proposed to exempt Houses of Worship from taxes.' From these three statements, Madison, it seems, opposed all state subsidies to churches. Cf. D. Robertson, Should Churches Be Taxed? 60—61 (1968).
118
We should adhere to what we said in Torcaso v. Watkins, 367 U.S., at 495, 81 S.Ct., at 1683—1684, that neither a State nor the Federal Government 'can constitutionally pass laws or impose requirements which aid all religion as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religious founded on different beliefs.' (Emphasis added.)
119
Unless we adhere to that principle, we do not give full support either to the Free Exercise Clause or to the Establishment Clause.
120
If a church can be exempted from paying real estate taxes, why may not it be made exempt from paying special assessments? The benefits in the two cases differ only in degree; and the burden on non-believers is likewise no different in kind.13
121
The religiously used real estate of the churches today constitutes a vast domain. See M. Larson & C. Lowell, The Churches: Their Riches, Revenues, and Immunities (1969). Their assets total over $141 billion and their annual income at least $22 billion. Id., at 232. And the extent to which they are feeding from the public trough in a variety of forms is alarming. Id., c. 10.
122
We are advised that since 1968 at least five States have undertaken to give subsidies to parochial and other private schools14—Pennsylvania, Ohio, New York, Connecticut, and Rhode Island. And it is reported that under two federal Acts, the Elementary and Secondary Education Act of 1965, 79 Stat. 27, and the Higher Education Act of 1965, 79 Stat. 1219, billions of dollars have been granted to parochial and other private schools.
123
The federal grants to elementary and secondary schools under 79 Stat. 27 were made to the States which in turn made advances to elementary and secondary schools. Those figures are not available.
124
But the federal grants to private institutions of higher education are revealed in Department of Health, Education, and Welfare (HEW), Digest of Educational Statistics 16 (1969). These show in billions of dollars the following:15
125
It is an old, old problem. Madison adverted to it:16
126
'Are there not already examples in the U.S. of ecclesiastical weatlh equally beyond its object and the foresight of those who laid the foundation of it? In the U.S. there is a double motive for fixing limits in this case, because wealth may increase not only from additional gifts, but from exorbitant advances in the value of the primitive one. In grants of vacant lands, and of lands in the vicinity of growing towns & Cities the increase of value is often such as if foreseen, would essentially controul the liberality confirming them. The people of the U.S. owe their Independence & their liberty, to the wisdom of descrying in the minute tax of 3 pence on tea, the magnitude of the evil comprized in the precedent. Let them exert the same wisdom, in watching agst every evil lurking under plausible disguises, and growing up from small beginnings.'17
127
If believers are entitled to public financial support, so are nonbelievers. A believer and nonbeliever under the present law are treated differently because of the articles of their faith. Believers are doubtless comforted that the cause of religion is being fostered by this legislation. Yet one of the mandates of the First Amendment is to promote a viable, pluralistic society and to keep government neutral, not only between sects, but also between believers and nonbelievers. The present involvement of government in religion may seem de minimis. But it is, I fear, a long step down the Establishment path. Perhaps I have been misinformed. But as I have read the Constitution and its philosophy, I gathered that independence was the price of liberty.
128
I conclude that this tax exemption is unconstitutional.
129
APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING
130
Assessment Bill. The December 24, 1784, print reproduced in the Supplemental Appendix to the dissenting opinion of Rutledge, J., in Everson v. Board of
131
Education, 330 U.S. 1, 72, 67 S.Ct. 504, 539, 91 L.Ed. 711: 'A BILL ESTABLISHING A PROVISION FOR TEACHERS OF THE CHRISTIAN RELIGION.
132
'Whereas the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society; which cannot be effected without a competent provision for learned teachers, who may be thereby enabled to devote their time and attention to the duty of instructing such citizens, as from their circumstances and want of education, cannot otherwise attain such knowledge; and it is judged that such provision may be made by the Legislature, without counteracting the liberal principle heretofore adopted and intended to be preserved by abolishing all distinctions of pre-eminence amongst the different societies or communities of Christians;
133
'Be it therefore enacted by the General Assembly, That for the support of Christian teachers, per centum on the amount, or in the pound on the sum payable for tax on the property within this Commonwealth, is hereby assessed, and shall be paid by every person chargeable with the said tax at the time the same shall become due; and the Sheriffs of the several Counties shall have power to levy and collect the same in the same manner and under the like restrictions and limitations, as are or may be prescribed by the laws for raising the Revenues of this State.
134
'And be it enacted, That for every sum so paid, the Sheriff or Collector shall give a receipt, expressing therein to what society of Christians the person from whom he may receive the same shall direct the money to be paid, keeping a distinct account thereof in his books. The Sheriff of every County, shall, on or before the day of in every year, return to the Court, upon oath, two alphabetical lists of the payments to him made, distinguishing in columns opposite to the names of the persons who shall have paid the same, the society to which the money so paid was by them appropriated; and one column for the names where no appropriation shall be made. One of which lists, after being recorded in a book to be kept for that purpose, shall be filed by the Clerk in his office; the other shall by the Sheriff be fixed up in the Court-house, there to remain for the inspection of all concerned. And the Sheriff, after deducting five per centum for the collection, shall forthwith pay to such person or persons as shall be appointed to receive the same by the Vestry, Elders, or Directors, however denominated of each such society, the sum so stated to be due to that society; or in default thereof, upon the motion of such person or persons to the next or any succeeding Court, execution shall be awarded for the same against the Sheriff and his security, his and their executors or administrators; provided that ten days previous notice be given of such motion. And upon every such execution, the Officer serving the same shall proceed to immediate sale of the estate taken, and shall not accept of security for payment at the end of three months, nor to have the goods forthcoming at the day of sale; for his better direction wherein, the Clerk shall endorse upon every such execution that no security of any kind shall be taken.
135
'And be it further enacted, That the money to be raised by virtue of this Act, shall be by the Vestries, Elders, or Directors of each religious society, appropriated to a provision for a Minister or Teacher of the Gospel of their denomination, or the providing places of divine worship, and to none other use whatsoever; except in the denominations of Quakers and Menonists, who may receive what is collected from their members, and place it in their general fund, to be disposed of in a manner which they shall think best calculated to promote their particular mode of worship.
136
'And be it enacted, That all sums which at the time of payment to the Sheriff or Collector may not be appropriated by the person paying the same, shall be accounted for with the Court in manner as by this Act is directed; and after deducting for his collection, the Sheriff shall pay the amount thereof (upon account certified by the Court to the Auditors of Public Accounts, and by them to the Treasurer) into the public Treasury, to be disposed of under the direction of the General Assembly, for the encouragement of seminaries of learning within the Counties whence such sums shall arise, and to no other use or purpose whatsoever.
137
'THIS Act shall commence, and be in force, from and after the day of in the year
138
'A Copy from the Engrossed Bill.
139
'John Beckley, C.H.D.'
140
APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING18
141
Memorial and Remonstrance Against Religious Assessments, as reproduced in the Appendix to the dissenting opinion of Rutledge, J., in Everson v. Board of Education, 330 U.S. 1, 63, 67 S.Ct. 504, 535, 91 L.Ed. 711 (2 The Writings of James Madison 183—191 (G. Hunt ed. 1901)):
142
'We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled 'A Bill establishing a provision for Teachers of the Christian Religion,' and conceiving that the same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State, to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill,
143
'1. Because we hold it for a fundamental and undeniable truth, 'that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.' The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true, that the majority may trespass on the rights of the minority.
144
'2. Because if religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free government requires not merely, that the metes and bounds which separate each department of power may be invariably maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.
145
'3. Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of (the) noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?
146
'4. Because, the bill violates that equality which ought to be the basis of every law, and which is more indispensible, in proportion as the validity of expediency of any law is more liable to be impeached. If 'all men are by nature equally free and independent,' all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an 'equal title to the free exercise of Religion according to the dictates of conscience.' Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to men, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens; so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their religions unnecessary and unwarrantable? Can their piety alone be intrusted with the care of public worship? Ought their Religions to be endowed above all others, with extraordinary privileges, by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations, to believe that they either covet pre-eminencies over their fellow citizens, or that they will be seduced by them, from the common opposition to the measure.
147
'5. Because the bill implies either that the Civil Magistrate is a competent Judge of Religions truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: The second an unhallowed perversion of the means of salvation.
148
'6. Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself; for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them; and not only during the period of miraculous aid, but long after it had been left to its own evidence, and the ordinary care of Providence: Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence, and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are to conscious of its fallacies, to trust it to its own merits.
149
'7. Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries, has the legal estabishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy. Proposed a restoration of this primitive state in which its Teachers depended on the voluntary rewards of their flocks; many of them predict its downfall. On which side ought their testimony to have greatest weight, when for or when against their interest?
150
'8. Because the establishment in question is not necessary for the support of Civil Government. If it be urged as necessary for the support of Civil Government only as it is a means of supporting Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If Religion be not within (the) cognizance of Civil Government, how can its legal establishment be said to be necessary to civil Government? What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established clergy convenient auxiliaries. A just government, instituted to secure & perpetuate it, needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.
151
'9. Because the proposed establishment is a departure from that generous policy, which, offering an asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthropy in their due extent may offer a more certain repose from his troubles.
152
'10. Because, it will have a like tendency to banish our Citizens. The allurements presented by other situations are every day thinning their number. To super-add a fresh motive to emigration, by revoking the liberty which they now enjoy, would be the same species of folly which has dishonoured and depopulated fluorishing kingdoms.
153
'11. Because, it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm to extinguish Religious discord, by proscribing all difference in Religious opinions. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs, that equal and compleat liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If with the salutary effects of this system under our own eyes, we begin to contract the bonds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed that 'Christian forbearance, love and charity,' which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded should this enemy to the public quiet be armed with the force of a law?
154
'12. Because, the policy of the bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift, ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions; and how small is the former! Does the policy of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of (revelation) from coming into the Region of it; and countenances, by example the nations who continue in darkness, in shutting out those who might convey it to them. Instead of levelling as far as possible, every obstacle to the victorious progress of truth, the Bill with an ignoble and unchristian timidity would circumscribe it, with a wall of defence, against the encroachments of error.
155
'13. Because attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute may law which is not generally deemed necessary or salutary, what must be the case where it is deemed invalid and dangerous? and what may be the effect of so striking an example of impotency in the Government, on its general authority.
156
'14. Because a measure of such singular magnitude and delicacy ought not to be imposed, without the clearest evidence that it is called for by a majority of citizens: and no satisfactory method is yet proposed by which the voice of the majority in this case may be determined, or its influence secured. 'The people of the respective counties are indeed requested to signify their opinion respecting the adoption of the Bill to the next Session of Assembly.' But the representation must be made equal, before the voice either of the Representatives or of the Counties, will be that of the people. Our hope is that neither of the former will, after due consideration, espouse the dangerous principle of the Bill. Should the event disappoint us, it will still leave us in full confidence, that a fair appeal to the latter will reverse the sentence against our liberties.
157
'15. Because, finally, 'the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience' is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consult the Declaration of those rights which pertain to the good people of Virginia, as the 'basis and foundation of Government,' it is enumerated with equal solemnity, or rather studied emphasis. Either then, we must say, that the will of the Legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: Either we must say, that they may controul the freedom of the press, may abolish the trial by jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may despoil us of our very right to suffrage, and erect themselves into an independent and hereditary assembly: or we must say, that they have no authority to enact into law the Bill under consideration. We the subscribers say, that the General Assembly of this Commonwealth have no such authority: And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty bound, that the Supreme Law-giver of the Universe, by illuminating those to whom it is addressed, may on the one hand, turn their councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his (blessing, may re) dound to their own praise, and may establish more firmly the liberties, the prosperity, and the Happiness of the Commonwealth.'
1
Art. 16, § 1, of the New York State Constitution is implemented by § 420, subd. 1, of the New York Real Property Tax Law, McKinney's Consol.Laws, c. 50—A which states in pertinent part:
'Real property owned by a corporation or association organized exclusively for the moral or mental improvement of men and women, or for religious, bible, tract, charitable, benevolent, missionary, hospital, infirmary, educational, public playground, scientific, literary, bar association, medical society, library, patriotic, historical or cemetery purposes * * * and used exclusively for carrying out thereupon one or more of such purposes * * * shall be exempt from taxation as provided in this section.'
2
The First Amendment to the United States Constitution provides in part that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *.'
3
The support of religion with direct allocation of public revenue was a common colonial practice. See C. Antieau, A. Downey, & E. Roberts, Freedom from Federal Establishment cc. 1 and 2 (1964). A general assessment proposed in the Virginia Legislature in 1784 prompted the writing of James Madison's Remonstrance. See opinion of Mr. Justice DOUGLAS dissenting, post, at 704—706; 716 727. Governmental support of religion is common in many countries. See e.g., R. Murray, A Brief History of the Church of Sweden 75 (1961); G. Codding, The Federal Government of Switzerland 53—54 (1961); M. Scehic, Zbirka Propisa, o Doprinosima i Porezima Gradjana 357 (Yugoslavia) (1968).
4
Act of August 27, 1894, § 32, 28 Stat. 556. Following passage of the Sixteenth Amendment, federal income tax acts have consistently exempted corporations and associations, organized and operated exclusively for religious purposes along with eleemosynary groups, from payment of the tax. Act of Oct. 3, 1913, § 11G(a) 38 Stat. 172. See Int.Rev.Code of 1954, § 501 et seq., 26 U.S.C. § 501 et seq.
5
In 1798 Congress passed an Act to provide for the valuation of lands and dwelling houses. All existing state exemptions were expressly excluded from the aforesaid valuation and enumeration. Act of July 9, 1798, § 8, 1 Stat. 585. Subsequent levies of direct taxes expressly or impliedly incorporated existing state exemptions. Act of July 14, 1798, § 2, 1 Stat. 598 (express incorporation of state exemption). See Act of Aug. 2, 1813, § 4, 3 Stat. 71; Act of Jan. 9, 1815, § 5, 3 Stat. 166 (express incorporation of state exemptions).
6
See 6 Stat. 116 (1813), relating to plates for printing Bibles. See also 6 Stat. 346 (1826) relating to church vestments, furniture, and paintings; 6 Stat. 162 (1816), Bible plates; 6 Stat. 600 (1834), and 6 Stat. 675 (1836), church bells.
7
See, e.g., Acts of the Corporation of the City of Washington, First Council, c. V, approved Oct. 6, 1802, p. 13; Acts of the Corporation of the City of Washington, Second Council, § 1, approved Sept. 12, 1803, p. 13; Acts of the Corporation of the City of Washington, Third Council, § 1, approved Sept. 5, 1804, p. 13. Succeeding Acts of the Corporation impliedly renewed the exemption in subsequent assessments. See, e.g., Acts of the Corporation of the City of Washington, Thirteenth Council, c. 19, § 2, approved July 27, 1815, p. 24.
8
Subsequent Acts of Congress carried over the substance of the exemption. Act of July 12, 1876, § 8, 19 Stat. 85; Act of March 3, 1877, § 8, 19 Stat. 399; Act of August 15, 1916, 39 Stat. 514; D.C.Code Ann. § 47—801a (1967).
9
Gibbons v. District of Columbia, 116 U.S. 404, 6 S.Ct. 427, 29 L.Ed. 680 (1886). Cf. Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957).
'In the exercise of this (taxing) power, congress, like any state legislature unrestricted by constitutional provisions, may, at its discretion, wholly exempt certain classes of property from taxation, or
1
In fact, it does not appear that the exemptions were even discussed. See, e.g., C. Antieau, P. Carroll, & T. Burke, Religion Under the State Constitutions 122 (1965): 'As far as anyone has been able to discover, the topic was never mentioned in the debates which took place prior to the adoption of the First Amendment.'
2
See, e.g., C. Antieau, A. Downey, & E. Roberts, Freedom from Federal Establishment 20—21, 73—74, 175 (1964); cf. 3 A. Stokes, Church and State in the United States 419 (1950).
3
2 Del.Laws of 1700—1797, p. 1247 (Act of Feb. 9, 1796); 2 Md.Laws (1785—1709, Kilty), c. 89 (Act of Jan. 20, 1798); N.Y.Laws of 1797—1800, c. 72, at 414 (Act of April 1, 1799); 2 Va.Statutes at Large of 1792—1806 (Shepherd) 200 (Act of Jan. 23, 1800). See also 16 Penn.Statutes at Large of 1682—1801, at 379 (Act of April 11, 1799). For practice in other States, see the accounts in Antieau, Carroll, & Burke, supra, n. 1, at 123—169; Antieau, Downey, & Roberts, supra, n. 2, at 73—74; C. Zollmann, American Civil Church Law 238—242 (1917).
4
See, e.g., E. Swem & J. Williams, A Register of the General Assembly of Virginia, 1776—1918, p. 53 (1918); Journal of the House of Delegates of the Commonwealth of Virginia 94, 98 (1799—1800).
5
In an essay written after he had left the presidency, Madison did argue against tax exemptions for churches, the incorporation of ecclesiastical bodies with the power of acquiring and holding property in perpetuity, the right of the Houses of Congress to choose chaplains who are paid out of public funds, the provision of chaplains in the Army and Navy, and presidential proclamations of days of thanksgiving or prayer—though he admitted proclaiming several such days at congressional request. See Fleet, Madison's 'Detatched Memoranda,' 3 Wm. & Mary Q. (3d ser.) 534, 555—562 (1946). These arguments were advanced long after the passage of the Virginia exemption discussed in the text, supra, and even longer after the adoption of the Establishment Clause. They represent at most an extreme view of church-state relations, which Madison himself may have reached only late in life. He certainly expressed no such understanding of Establishment during the debates on the First Amendment. See 1 Annals of Cong. 434, 730 731, 755 (1789). And even if he privately held these views at that time, there is no evidence that they were shared by others among the Framers and Ratifiers of the Bill of Rights.
6
See also, e.g., Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 237, 10 S.Ct. 533, 535, 33 L.Ed. 892 (1890), where the Court stated: 'The provision in the fourteenth amendment, that no state shall deny to any person within its jurisdiction the equal protection of the laws, was not intended to prevent a state from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions.' Indeed, the Court seems always to have viewed attacks upon the constitutionality of the exemptions as wholly frivolous. See, e.g., Lundberg v. County of Alameda, 46 Cal.2d 644, 298 P.2d 1, appeal dismissed sub nom. Heisey v. County of Alameda, 352 U.S. 921, 77 S.Ct. 224, 1 L.Ed.2d 157 (1956); General Finance Corp. v. Archetto, 93 R.I. 392, 176 A.2d 73, (1961), appeal dismissed, 369 U.S. 423, 82 S.Ct. 879, 8 L.Ed.2d 6 (1962).
7
Compare the very different situation regarding prayers in public schools. The practice was not widespread at the time of the adoption of the First Amendment. Legislative authorization for the prayers came much later and then only in a relatively small number of States. Moreover, courts began to question the constitutionality of the practice by the late 19th century. The prayers were found unconstitutional by courts in six States and by state attorneys general in several others. See 374 U.S., at 270, 274—275, 83 S.Ct., at 1597, 1599.
8
The only governmental purposes germane to the present inquiry, of course, are those that now exist. As I said in Schempp, 'In the Sunday Law Cases, we found in state laws compelling a uniform day of rest from worldly labor no violation of the Establishment Clause * * *. The basic ground of our decision was that, granted the Sunday Laws were first enacted for religious ends, they were continued in force for reasons wholly secular, namely, to provide a universal day of rest and ensure the health and tranquillity of the community. In other words, government may originally have decreed a Sunday day of rest for the impermissible purpose of supporting religion but abandoned that purpose and retained the laws for the permissible purpose of furthering overwhelmingly secular ends.' 374 U.S., at 263—264, 83 S.Ct., at 1593—1594.
9
In certain circumstances, of course, the economic value of a subsidy exceeds that of an exemption. If the only state assistance received by a religious organization is a real property tax exemption, the church must raise privately every cent that it spends. If, on the other hand, the only state aid to a church is a general subsidy, the church is relieved of the need to support itself to the extent that its subsidy payments from the State exceed its tax payments to the State. Thus, to take the extreme case, a lightly taxed religious organization that received a large, general subsidy could purchase property, construct buildings and maintain its program wholly at public expense. Such dependence on state support is impossible when the only aid provided is a real property tax exemption.
10
A real property tax exemption cannot be viewed as the free provision by the State of certain basic services—fire, police, water, and the like. As the Court, ante, at 676, points out, 'the fire and police protection received by houses of religious worship are no more than incidental benefits accorded all persons or institutions within a State's boundaries, along with many other exempt organizations. The appellant has not established even an arguable quantitative correlation between the payment of an ad valorem property tax and the receipt of these municipal benefits.' See generally Bittker, Churches, Taxes and the Constitution, 78 Yale L.J. 1285, 1304—1310 (1969).
11
See also, e.g., Bittker, supra, n. 10, at 1285—1304.
12
The state involvement with religion that would be occasioned by any cessation of exemptions might conflict with the demands of the Free Exercise Clause. Cf. Presbyterian Church in United States v. Mary Eliz. Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969); Maryland & Virginia Eldership of Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368—370, 90 S.Ct. 499, 500—501, 24 L.Ed.2d 582 (1970) (Brennan, J., concurring). It is unnecessary to reach any questions of free exercise in the present case, however. And while I believe that 'hostility, not neutrality, would characterize the refusal to provide (the exemptions) * * *, I do not say that government must provide (them), or that the courts should intercede if it fails to do so.' 374 U.S., at 299, 83 S.Ct., at 1612.
1
While I would suppose most churches devote part of their resources to secular community projects and conventional charitable activities, it is a question of fact, a fact that would only be relevant if we had before us a statute framed more narrowly to include only 'charities' or a limited class of organizations, and churches. In such a case, depending on the administration of the exemption, it might be that the granting of an exemption to religion would turn out to be improper. This would depend, I believe, on what activities the church in fact sponsored. It would also depend, I think, on whether or to what extent the exemption were accorded to secular social organizations, conceived to benefit their own membership but also engaged in incidental general philanthropic or cultural undertakings. It might also depend on whether, if church-sponsored programs were not open to all without charge, the exemption were extended to private clubs and organizations promoting activities on a contributory basis. These would all be questions of fact to be determined by the revenue authorities and the courts. While such determinations necessarily involve government in the religious institutions, they do not offend the First Amendment. That an evaluation of the scope of charitable activities in proportion to doctrinal pursuits may be difficult, does not render it undue interference with religion, cf. Presbyterian Church in United States v. Mary Eliz. Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969), for it does not entail judicial imquiry into dogma and belief. Indeed, such an inquiry may be inescapable in the context of a statute of less breadth than the one before us.
I would hold the present exemption neutral because New York has created a general class so broad that it would be difficult to conclude that religious organizations cannot properly be included in it.
2
The dimension of the problem would also require consideration of what kind of pluralistic society is compatible with the political concepts and traditions embodied in our Constitution.
1
N.Y.Real Prop.Tax Law § 420, subd. 1 (Supp.1969—1970).
2
In the oral argument in People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 the following colloquy took place between Mr. Justice Black and counsel John L. Franklin:
'MR. JUSTICE BLACK. Do I understand you to take the position that if the State of Illinois wanted to contribute five million dollars a year to religion they could do so, so long as they provided the same to every faith?
'MR. FRANKLIN. Yes, and the State of Illinois does contribute five million dollars annually to religious faiths, equally, and more than five million dollars, and has during its entire history.
'MR. JUSTICE BLACK. How does it do it?
'MR. FRANKLIN. By tax exemptions specifically granted to religious organizations.
'MR. JUSTICE BLACK. Your position is that they could grant five million dollars a year to religion, if they wanted to, out of the taxpayer's money, so long as they treated all faiths the same?
'MR. FRANKLIN. Yes, Your Honor. That is our interpretation of the meaning of the first clause of the First Amendment.' J. O'Neill, Religion and Education under the Constitution 225 (1949).
3
See Appendix I to this dissent, post, p. 716.
4
See Appendix II to this dissent, post, p. 719.
5
See H. Eckenrode, Separation of Church and State in Virginia, c. V (1910).
6
1 Annals of Cong. 434, 729—731.
7
N. 1, supra.
8
The Brookings Institution, Report on a Survey of Administration in Iowa: The Revenue System 33 (1933).
9
This inequality, some argue, is pronounced when it comes to aid to parochial schools now run mainly by the Catholic Church. See G. Cogdell, What Price Parochiaid? 68—70 (1970).
10
H.R.Misc.Doc. No. 210, pt. 1, 53d Cong., 2d Sess., 489 490.
11
Id., at 490.
12
Fleet, Madison's 'Detatched Memoranda,' 3 Wm. & Mary Q. (3d ser.) 534, 551, 555 (1946).
13
See Zollmann, Tax Exemptions of American Church Property, 14 Mich.L.Rev. 646, 655—656 (1916).
The New York Supreme Court in In re Mayor of New York, 11 Johns, 77, 81, said:
'As the church property is not, nor is likely soon to be, either appropriated to renting or exposed to sale, but is devoted exclusively to religious purposes, the benefit resulting to it, by the improvement of Nassau-street, must be small in comparison with that of other property, and it, therefore, ought not to contribute in the like proportion. It may be considered, possibly, as benefited, by rendering the access to the churches more convenient, and the places more pleasant and salubrious, by the freer circulation of the air. This may have some influence on the pew rents, and the ground may become permanently more valuable. These, however, appear to be small and remote benefits to property so circumstanced; and to charge the churches equally with adjoining private property is unreasonable and extravagant; and on this point the report ought to be sent back to the commissioners for revisal and correction.'
14
U.S. News & World Report, May 4, 1970, p. 34.
15
These totals include all types of federal aid—physical plants, dormitory construction, laboratories, libraries, lunch programs, fellowships and scholarships, etc.
Of the total federal outlays for education only two-fifths are for programs administered by the Office of Education, other parts of the Department of HEW account for one-fifth. The rest of the outlays are distributed among 24 federal departments and agencies, of which the largest shares are accounted for by the Department of Defense, the Veterans Administration, the National Science Foundation, and the Office of Economic Opportunity. U.S. Bureau of the Budget, Special Analysis, Federal Education Program, 1971 Budget, Special Analysis I, pt. 2, p. 115 (Feb. 1970).
1965-66....................... $1.4
1966-67....................... $1.6
1967-68....................... $1.7
1968-69....................... $1.9
1969-70....................... $2.1
16
Fleet, supra, n. 12, at 557—558.
17
In 1875 President Grant in his State of the Union Message referred to the vast amounts of untaxed church property:
'In 1850, I believe, the church property of the United States which paid no tax, municipal or State, amounted to about $83,000,000. In 1860 the amount had doubled; in 1875 it is about $1,000,000,000. By 1900, without check, it is safe to say this property will reach a sum exceeding $3,000,000,000. So vast a sum, receiving all the protection and benefits of Government without bearing its proportion of the burdens and expenses of the same, will not be looked upon acquiescently by those who have to pay the taxes. In a growing country, where real estate enhances so rapidly with time, as in the United States, there is scarcely a limit to the wealth that may be acquired by corporations, religious or otherwise, if allowed to retain real estate without taxation. The contemplation of so vast a property as here alluded to, without taxation, may lead to sequestration, without constitutional authority and through blood.
'I would suggest the taxation of all property equally, whether church or corporation, exempting only the last resting place of the dead and possibly, with proper restrictions, church edifices.' 9 Messages and Papers of the Presidents 4288—4289 (1897).
18
Footnotes omitted.
| 23
|
397 U.S. 817
90 S.Ct. 1483
25 L.Ed.2d 804
In the Matter of Dan A. SPENCER, Appellant.
No. 513.
Supreme Court of the United States
Argued April 28, 1970.
May 4, 1970
Rehearing Denied June 15, 1970.
See 398 U.S. 968, 90 S.Ct. 2164.
Melvin L. Wulf, New York City, for appellant.
Neil Dixon, Shreveport, La., for appellee.
PER CURIAM.
1
The judgment is affirmed by an equally divided Court. 254 La. 294, 223 So.2d 672.
| 01
|
397 U.S. 728
90 S.Ct. 1484
25 L.Ed.2d 736
Daniel ROWAN, dba American Book Service, et al., Appellants,v.UNITED STATES POST OFFICE DEPARTMENT et al.
No. 399.
Argued Jan. 22, 1970.
Decided May 4, 1970.
Joseph Taback, Beverly Hills, Cal., for appellants.
William D. Ruckelshaus, Washington, D.C., for appellees.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
Appellants challenge the constitutionality of Title III of the Postal Revenue and Federal Salary Act of 1967, 81 Stat. 645, 39 U.S.C. § 4009 (1964 ed., Supp. IV), under which a person may require that a mailer remove his name from its mailing lists and stop all future mailings to the householder. The appellants are publishers, distributors, owners, and operators of mail order houses, mailing list brokers, and owners and operators of mail service organizations whose business activities are affected by the challenged statute.
2
A brief description of the statutory framework will facilitate our analysis of the questions raised in this appeal. Section 4009 is entitled 'Prohibition of pandering advertisements in the mails.' It provides a procedure whereby any householder may insulate himself from advertisements that offer for sale 'matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative.' 39 U.S.C. § 4009(a) (1964 ed., Supp. IV).1
3
Subsection (b) mandates the Postmaster General, upon receipt of a notice from the addressee specifying that he has received advertisements found by him to be within the statutory category, to issue on the addressee's request an order directing the sender and his agents or assigns to refrain from further mailings to the named addressee. Additionally, subsection (c) requires the Postmaster General to order the affected sender to delete the name of the designated addressee from all mailing lists owned or controlled by the sender and prohibits the sale, rental, exchange, or other transactions involving mailing lists bearing the name of the designated addressee.
4
If the Postmaster General has reason to believe that an order issued under this section has been violated, subsection (d) authorizes him to notify the sender by registered or certified mail of his belief and the reasons therefor, and grant him an opportunity to respond and have a hearing on whether a violation has occurred.
5
If the Postmaster General thereafter determines that the order has been or is being violated, he is authorized to request the Attorney General to seek an order from a United States District Court directing compliance with the prohibitory order. Subsection (e) grants to the district court jurisdiction to issue a compliance order upon application of the Attorney General.
6
Appellants initiated an action in the United States District Court for the Central District of California upon a complaint and petition for declaratory relief on the ground that 39 U.S.C. § 4009 (1964 ed., Supp. IV) is unconstitutional. They alleged that they had received numerous prohibitory orders pursuant to the provisions of the statute. Appellants contended that the section violates their rights of free speech and due process guaranteed by the First and Fifth Amendments to the United States Constitution. Additionally, appellants argued that the section is unconstitutionally vague, without standards, and ambiguous.
7
A three-judge court was convened pursuant to 28 U.S.C. § 2284 and it determined that the section was constitutional when interpreted to prohibit advertisements similar to those initially mailed to the addressee.2 300 F.Supp. 1036.
8
The District Court construed subsections (b) and (c) to prohibit 'advertisements similar' to those initially mailed to the addressee. Future mailings, in the view of the District Court, 'are to be measured by the objectionable material of such first mailing.' 300 F.Supp., at 1041. In our view Congress did not intend so restrictive a scope to those provisions.
I. Background and Congressional Objectives
9
Section 4009 was a response to public and congressional concern with use of mail facilities to distribute unsolicited advertisements that recipients found to be offensive because of their lewd and salacious character. Such mail was found to be pressed upon minors as well as adults who did not seek and did not want it. Use of mailing lists of youth organizations was part of the mode of doing business. At the congressional hearings it developed that complaints to the Postmaster General had increased from 50,000 to 250,000 annually. The legislative history, including testimony of child psychology specialists and psychiatrists before the House Committee on the Post Office and the Civil Service, reflected concern over the impact of the materials on the development of children. A declared objective of Congress was to protect minors and the privacy of homes from such material and to place the judgment of what constitutes an offensive invasion of those interests in the hands of the addressee.
10
To accomplish these objectives Congress provided in subsection (a) that the mailer is subject to an order 'to refrain from further mailings of such materials to designated addressees.' Subsection (b) states that the Postmaster General shall direct the sender to refrain from 'further mailings to the named addressees.' Subsection (c) in describing the Postmaster's order states that it shall 'expressly prohibit the sender * * * from making any further mailings to the designated addressees, * * *' Subsection (c) also requires the sender to delete the addressee's name 'from all mailing lists' and prohibits the sale, transfer, and exchange of lists bearing the addressee's name.
11
There are three plausible constructions of the statute, with respect to the scope of the prohibitory order. The order could prohibit all future mailings to the addressees, all future mailings of advertising material to the addressees, or all future mailings of similar materials.
12
The seeming internal statutory inconsistency is undoubtedly a residue of the language of the section as it was initially proposed. The section as originally reported by the House Committee prohibited 'further mailings of such pandering advertisements.' § 4009(a), 'further mailings of such matter,' § 4009(b), and 'any further mailings of pandering advertisements,' § 4009(c). H.R.Rep. No. 722, 90th Cong., 1st Sess., 125 (1967). The section required the Postmaster General to make a determination whether the particular piece of mail came within the proscribed class of pandering advertisements, 'as that term is used in the Ginzburg case (Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31).' Id., at 69.
13
The section was subsequently amended by the House of Representatives to eliminate from the Post Office any censorship function. Congressman Waldie, who proposed the amendment, envisioned a minimal role for the Post Office. The amendment was intended to remove 'the right of the Government to involve itself in any determination of the content and nature of these objectionable materials * * *.' 113 Cong.Rec. 28660 (1967). The only determination left for the Postmaster General is whether or not the mailer has removed the addressee's name from the mailing list. Statements by the proponents of the legislation in both the House and Senate manifested an intent to prohibit all further mailings from the sender. In describing the effect of his proposed amendment Congressman Waldie stated:
14
'So I have said in my amendment that if you receive literature in your household that you consider objectionable * * * you can inform the Postmaster General to have your name stricken from that mailer's mailing list.' 113 Cong.Rec. 28660.
15
The Senate Committee Report on the bill contained similar language:
16
'If a person receives an advertisement which * * * he * * * believes to be erotically arousing * * * he may notify the Postmaster General of his determination. The Postmaster General is then required to issue an order to the sender directing him to refrain from sending any further mailings of any kind to such person.' S.Rep. No. 801, 90th Cong., 1st Sess., 38; U.S.Code Cong. & Admin.News 1967, p. 2295.
17
Senator Monroney, a major proponent of the legislation in the Senate, described the bill as follows:
18
'With respect to the test contained in the bill, if the addressee declared it to be erotically arousing or sexually provocative, the Postmaster General would have to notify the sender to send no more mail to that address * * *.' 113 Cong.Rec. 34231 (1967).3
19
The legislative history of subsection (a) thus supports an interpretation that prohibits all future mailings independent of any objective test. This reading is consistent with the provisions of related subsections in the section. Subsection (c) provides that the Postmaster General 'shall also direct the sender and his agents or assigns to delete immediately the names of the designated addressees from all mailing lists owned or controlled by the sender or his agents or assigns and, further, shall prohibit the sender and his agents or assigns from the sale, rental, exchange, or other transaction involving mailing lists bearing the names of the designated addressees.' 39 U.S.C. § 4009(c) (1964 ed., Supp. IV).
20
It would be anomalous to read the statute to affect only similar material or advertisements and yet require the Postmaster General to order the sender to remove the addressee's name from all mailing lists in his actual or constructive possession. The section was intended to allow the addressee complete and unfettered discretion in electing whether or not he desired to receive further material from a particular sender. See n. 6, infra. The impact of this aspect of the statute is on the mailer, not the mail. The interpretation of the statute that most completely effectuates that intent is one that prohibits any further mailings. Limiting the prohibitory order to similar materials or advertisements is open to at least two criticisms: (a) it would expose the householder to further burdens of scrutinizing the mail for objectionable material and possible harassment, and (b) it would interpose the Postmaster General between the sender and the addressee and, at the least, create the appearance if not the substance of governmental censorship.4 It is difficult to see how the Postmaster General could decide whether the materials were 'similar' or possessing touting or pandering characteristics without an evaluation suspiciously like censorship. Additionally, such an interpretation would be incompatible with the unequivocal language in subsection (c).
II. First Amendment Contentions
21
The essence of appellants' argument is that the statute violates their constitutional right to communicate. One sentence in appellants' brief perhaps characterizes their entire position:
22
'The freedom to communicate orally and by the written word and, indeed, in every manner whatsoever in imperative to a free and sane society.' Brief for Appellants 15.
23
Without doubt the public postal system is an indispensable adjunct of every civilized society and communication is imperative to a healthy social order. But the right of every person 'to be let alone' must be placed in the scales with the right of others to communicate.
24
In today's complex society we are inescapably captive audiences for many purposes, but a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail. To make the householder the exclusive and final judge of what will cross his threshold undoubtedly has the effect of impeding the flow of ideas, information, and arguments that, ideally, he should receive and consider. Today's merchandising methods, the plethora of mass mailings subsidized by low postal rates, and the growth of the sale of large mailing lists as an industry in itself have changed the mailman from a carrier of primarily private communications, as he was in a more leisurely day, and have made him an adjunct of the mass mailer who sends unsolicited and often unwanted mail into every home. It places no strain on the doctrine of judicial notice to observe that whether measured by pieces or pounds, Everyman's mail today is made up overwhelmingly of material he did not seek from persons he does not know. And all too often it is matter he finds offensive.
25
In Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), Mr. Justice Black, for the Court, while supporting the '(f)reedom to distribute information to every citizen,' id., at 146, 63 S.Ct., at 865, acknowledged a limitation in terms of leaving 'with the homeowner himself' the power to decide 'whether distributors of literature may lawfully call at a home.' Id., at 148, 63 S.Ct., at 866. Weighing the highly important right to communicate, but without trying to determine where it fits into constitutional imperatives, against the very basic right to be free from sights, sounds, and tangible matter we do not want, it seems to us that a mailer's right to communicate must stop at the mailbox of an unreceptive addressee.
26
The Court has traditionally respected the right of a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property. See Martin v. City of Struthers, supra; cf. Hall v. Commonwealth, 188 Va. 72, 49 S.E.2d 369, appeal dismissed, 335 U.S. 875, 69 S.Ct. 240, 93 L.Ed. 418 (1948). In this case the mailer's right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer.
27
To hold less would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home. Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit; we see no basis for according the printed word or pictures a different or more preferred status because they are sent by mail. The ancient concept that 'a man's home is his castle' into which 'not even the king may enter' has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another. See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).
28
Both the absoluteness of the citizen's right under § 4009 and its finality are essential; what may not be provocative to one person may well be to another. In operative effect the power of the householder under the statute is unlimited; he may prohibit the mailing of a dry goods catalog because he objects to the contents—or indeed the text of the language touting the merchandise. Congress provided this sweeping power not only to protect privacy but to avoid possible constitutional questions that might arise from vesting the power to make any discretionary evaluation of the material in a governmental official.
29
In effect, Congress has erected a wall—or more accurately permits a citizen to erect a wall—that no advertiser may penetrate without his acquiescence. The continuing operative effect of a mailing ban once imposed presents no constitutional obstacles; the citizen cannot be put to the burden of determining on repeated occasions whether the offending mailer has altered its material so as to make it acceptable. Nor should the householder have to risk that offensive material come into the hands of his children before it can be stopped.
30
We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even 'good' ideas on an unwilling recipient. That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. See Public Utilities Comm. of District of Columbia v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952). The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain.
31
The statutory scheme at issue accords to the sender an 'opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.' Anderson Nat. Bank v. Luckett, 321 U.S. 233, 246, 64 S.Ct. 599, 88 L.Ed. 692 (1944). It thus comports with the Due Process Clause of the Fifth Amendment. The statutory scheme accomplishes this by providing that the Postmaster General shall issue a prohibitory order to the sender on the request of the complaining addressee. Only if the sender violates the terms of the order is the Postmaster General authorized to serve a complaint on the sender, who is then allowed 15 days to respond. The sender can then secure an administrative hearing.5 The sender may question whether the initial material mailed to the addressee was an advertisement and whether he sent any subsequent mailings. If the Postmaster General thereafter determines that the prohibitory order has been violated, he is authorized to request the Attorney General to make application in a United States District Court for a compliance order;6 a second hearing is required if an order is to be entered.
32
The only administrative action not preceded by a full hearing is the initial issuance of the prohibitory order. Since the sender risks no immediate sanction by failing to comply with that order—it is only a predicate for later steps—it cannot be said that this aspect of the procedure denies due process. It is sufficient that all available defenses, such as proof that no mail was sent, may be presented to a competent tribunal before a contempt finding can be made. See Nickey v. Mississippi, 292 U.S. 393, 396, 54 S.Ct. 743, 744, 78 L.Ed. 1323 (1934).
33
The appellants also contend that the requirement that the sender remove the addressee's name from all mailign lists in his possession violates the Fifth Amendment because it constitutes a taking without due process of law. The appellants are not prohibited from using, selling, or exchanging their mailing lists; they are simply required to delete the names of the complaining addressees from the lists and cease all mailings to those persons.
34
Appellants next contend that compliance with the statute is confiscatory because the costs attending removal of the names are prohibitive. We agree with the conclusion of the District Court that the 'burden does not amount to a violation of due process guaranteed by the Fifth Amendment of the Constitution. Particularly when in the context presently before this Court it is being applied to commercial enterprises.' 300 F.Supp., at 1041. See California State Auto Assn. Inter-Ins. Bureau v. Maloney, 341 U.S. 105, 71 S.Ct. 601, 95 L.Ed. 788 (1951).
35
There is no merit to the appellants' allegations that the statute is unconstitutionally vague. A statute is fatally vague only when it exposes a potential actor to some risk or detriment without giving him fair warning of the nature of the proscribed conduct. United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 190, 97 L.Ed. 200 (1952). Here the appellants know precisely what they must do on receipt of a prohibitory order. The complainants' names must be removed from the sender's mailing lists and he must refrain from future mailings to the named addressees. The sender is exposed to a contempt sanction only if he continues to mail to a particular addressee after administrative and judicial proceedings. Appellants run no substantial risk of miscalculation.
36
For the reasons stated, the judgment appealed from is affirmed.
37
It is so ordered.
38
Judgment affirmed.
39
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS joins, concurring.
40
I join the Court's opinion but add a few words. I agree that 39 U.S.C. § 4009 (1964 ed., Supp. IV) is constitutional insofar as it permits an addressee to require a mailer to remove his name from its mailing lists and to stop all future mailings to the addressee. As the Court notes, however, subsection (g) of § 4009 also allows an addressee to request the Postmaster General to include in any prohibitory order 'the names of any of his minor children who have not attained their nineteenth birthday, and who reside with the addressee.' In light of the broad interpretation that the Court assigns to § 4009, and see ante, at 1491, the possibility exists that parents coulds prevent their children, even if they are 18 years old, from receiving political, religious, or other materials that the parents find offensive. In my view, a statute so construed and applied is not without constitutional difficulties. Cf. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). In this case, however, there is no particularized attack upon the constitutionality of subsection (g), nor, indeed, is there any indication on this record that under § 4009(g) children in their late teens have been unwillingly deprived of the opportunity to receive materials. In these circumstances, I understand the Court to leave open the question of the right of older children to receive materials through the mail without governmental interference and also the more specific question whether § 4009(g) may constitutionally be applied with respect to all materials and to all children under 19.
1
Subsection (g) provides that upon the addressee's request the order shall include names of the addressee's minor children who reside with him and who have not attained their nineteenth birthday.
2
Judge Hufstedler, concurring specially but without dissent, would require the District Court prior to issuing a compliance order to determine de novo whether the sender is a person who has mailed or has caused to be mailed any pandering advertisements.
3
Senator Hruska spoke similarly: 'Title III would allow the recipient of obscene mail to return it to the Postmaster General with a request that the Postmaster General notify the sender to stop mailings to the addressee * * *.' 113 Cong.Rec. 34232 (1967).
4
Subsection (d) vests the Postmaster General with the duty to determine whether the sender has violated the order. This determination was intended to be primarily a ministerial one involving an adjudication whether the initial material was an advertisement and whether the sender mailed materials to the addressee more than 30 days after the receipt of the prohibitory order. An interpretation which requires the Postmaster General to determine whether the subsequent material was pandering and/or similar would tend to place him 'astride the flow of mail * * *.' Lamont v. Postmaster General, 381 U.S. 301, 306, 85 S.Ct. 1493, 1496, 14 L.Ed.2d 398 (1965).
5
Although subsection (h) specifically excludes the pre-complaint hearing from the provisions of the Administrative Procedure Act, 5 U.S.C. § 554 et seq. (1964 ed., Supp. IV), the Post Office Department has promulgated regulations setting forth procedures governing the departmental administrative hearings. 39 CFR pt. 916.
6
The function of the district court is similar to that of the Postmaster General. It is to determine whether the initial mailing included advertising material and whether there was a mailing by the sender to the addressee more than 30 days after receipt of the order. We reject the suggestions that the section should be read to require the district judge to make a determination of the addressee's good faith, or to conduct an independent adjudication of the pandering nature of the material. The statute was intended to entrust unreviewable discretion to the addressee to determine whether or not the advertisement was 'erotically arousing or sexually provocative.' '(T)he sole determination as to whether the literature you receive is objectionable or not is within your discretion and you are not second-guessed on that discretion.' 113 Cong.Rec. 28660 (1967) (remarks of Congressman Waldie).
| 23
|
398 U.S. 25
90 S.Ct. 1547
26 L.Ed.2d 21
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.RAYTHEON COMPANY et al.
No. 440.
Argued Feb. 26, 1970.
Decided May 18, 1970.
Richard G. Kleindienst, Deputy Atty. Gen. of United States, for petitioner.
Charles H. Resnick, Washington, D.C., for respondents.
Opinion of the Court by Mr. Justice MARSHALL, announced by Mr. Justice STEWART.
This case was brought here on certiorari by the National Labor Relations Board for review of the dismissal of its petition for enforcement of a cease-and-desist order forbidding certain conduct of the Raytheon Company found to be in violations of § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1).
After it lost a representation election conducted by the Board on February 4, 1965, the International Union of Electrical, Radio and Machine Workers, AFL—CIO, filed objections to the election and unfair labor practice charges, both based on pre-election misconduct of the company. On October 19, 1965, an unfair labor practice complaint issued alleging violations of § 8(a)(1). The proceedings on that charge were consolidated with the objections to the election case, and a hearing was held before a Trial Examiner. Thereafter, on October 5, 1966, the Board rendered its decision, ordering that a new election be held and that the company cease and desist certain anti-union activity.
On February 8, 1968, pursuant to § 10(e) of the Act, 29 U.S.C. § 160(e), the Board filed a petition in the Court of Appeals for the Ninth Circuit seeking enforcement of its unfair labor practice order. The company answered, urging that enforcement be denied on the merits and on the ground that the proceedings were moot because a second election had been held in the interim. After the case was briefed and argued on the merits, the company called to the attention of the court that yet a third election had been held and that this time the result (a majority vote for 'no union') had been certified by the Board. The question whether this intervening election had mooted the case was briefed on all sides; and, on the authority of its earlier decision in General Engineering, Inc. v. NLRB, 311 F.2d 570 (C.A.9th Cir. 1962), the Court of Appeals dismissed the proceedings with a brief per curiam. 408 F.2d 681 (C.A.9th Cir. 1969). We granted certiorari, 396 U.S. 900, 90 S.Ct. 215, 24 L.Ed.2d 177 (1969), and we reverse.
1
As stated by the Court of Appeals, the ground upon which the petition was dismissed was 'that since (it was) filed the Board has held a new representation election and certified the result.' Thus, without more, the Court followed its decision in General Engineering that an intervening election 'makes moot all portions of the order under review which relate to the representation case.' 311 F.2d, at 572. We cannot agree to the automatic effect accorded in General Engineering to a later valid election and rather find correct the decisions of the two circuits that have specifically refused to adopt the reasoning of that case. NLRB v. Metalab-Labcraft, 367 F.2d 471 (C.A.4th Cir. 1966); NLRB v. Marsh Supermarkets, Inc., 327 F.2d 109 (C.A.7th Cir. 1963); cf. NLRB v. Clark Bros., 163 F.2d 373 (C.A.2d Cir. 1947).
2
In NLRB v. Mexia Textile Mills, 339 U.S. 563, 567—568, 70 S.Ct. 826, 828, 94 L.Ed. 1067 (1950), this Court held:
3
'We think it plain from the cases that the employer's compliance with an order of the Board does not render the cause moot, depriving the Board of its opportunity to secure enforcement from an appropriate court. * * * A Board order imposes a continuing obligation; and the Board is entitled to have the resumption of the unfair practice barred by an enforcement decree. * * * The Act does not require the Board to play hide-and-seek with those guilty of unfair labor practices.'
4
Properly viewed, this holding controls the present case. The later election and certification here are simply evidence that the company complied with the Board order during the pendency of the election. The Act, however, is not designed merely to protect a particular election or organizational campaign. It is designed to protect employees in the exercise of their organizational rights, and that protection cannot be affected merely because a particular labor organization has chosen an immediate election rerun rather than to await enforcement of the Board order.
5
Undoubtedly, as the Court recognized in NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 428, 67 S.Ct. 1274, 1281, 91 L.Ed. 1575 (1947), there are situations where an enforcement proceeding will become moot because a party can establish that 'there is no reasonable expectation that the wrong will be repeated.' United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). But this is not such a case. Nothing in the record here shows that the specific acts complained of have not been repeated or gives any assurance that they will not be repeated in the future. Cf. United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968); Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U.S. 463, 474—475, 88 S.Ct. 643, 649—650, 19 L.Ed.2d 705 (1968).
6
The Board, established by Congress with primary responsibility for the protection of the public interest in this area, see NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969), has determined that the company engaged in illegal activities and that a remedial order is called for. Under these circumstances, the employees cannot be denied the protection of the order (with the possible sanction of contempt proceedings for violations) in the absence of a decision on the merits. '(I)f the Board's order is justified, it is entitled to have it enforced as a means of insuring that in future elections the conduct may not be repeated.' NLRB v. Marsh Supermarkets, Inc., supra, 327 F.2d at 111.
7
In this Court, the company essentially admits that the judgment below cannot be 'based on mootness in its classical sense' and instead attempts to support it on other grounds. Thus, the company says—and we agree—that it is the courts of appeals that are charged with the primary and usual responsibility for granting or denying enforcement of Board orders. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). From this proposition and the fact that the Court of Appeals had before it the entire record in the case, the company urges that the decision below 'should be construed as a determination, in the exercise of the discretion vested in the Court by Section 10(e) of the Act, that on the basis of all of the circumstances, including the subsequent certification, enforcement was inappropriate.'
8
We need not pause to consider whether such a determination would have been proper on the facts of this case. The simple answer is that the Court of Appeals did not pass upon the merits of the Board's petition for enforcement. While the company is, of course, free to argue on remand either that there was no violation, or that if there was it was so marginal as not to justify judicial enforcement, or both, these questions are for the Court of Appeals in the first instance. We will not pass on how that court might have regarded the case had it not erroneously concluded that the election and certification mooted the proceedings.
9
The judgment of the Court of Appeals dismissing the petition for enforcement is reversed and the case is remanded for consideration of the petition on its merits.
10
It is so ordered.
11
Judgment reversed and case remanded.
| 67
|
26 L.Ed.2d 1
90 S.Ct. 1550
398 U.S. 1
James G. NASH et al., Petitioners,v.UNITED STATES.
No. 678.
Argued April 21, 1970.
Decided May 18, 1970.
Harold I. Apolinsky, Birmingham, Ala., for petitioners.
Matthew J. Zinn, office Sol. Gen., Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioners were partners operating eight finance offices in Alabama. The partnership reported its income on the accrual method of accounting and instead of deducting bad debts within the taxable year as permitted by § 166(a) of the Internal Revenue Code of 1954 it used the reserve method of accounting as permitted by § 166(c). Under the reserve method of accounting a taxpayer includes in his income the full face amount of a receivable on its creation and adjusts at the end of each taxable year the reserve account so that it equals that portion of current accounts receivable that is estimated to become worthless in subsequent years. Any additions necessary to increase the reserve are currently deductible. When an account receivable becomes worthless during the year, the reserve account is decreased and no additional bad debt deduction is allowed. As of May 31, 1960, the partnership books showed accounts receivable of $486,853.69 and a reserve for bad debts of $73,028.05.
2
On June 1, 1960, petitioners formed eight new corporation and transferred the assets of the eight partnership offices, including the accounts receivable, to the corporations in exchange for shares of the corporations—a transfer that concededly provided no gain or loss under § 351 of the Code.
3
The Commissioner determined that the partnership should have included in income the amount of the bad debt reserve ($73,028.05) applicable to the accounts receivable that had been transferred. Tax deficiencies were computed; and petitioners, having paid them, brought this suit for refunds. The District Court allowed recovery and the Court of Appeals reversed, 414 F.2d 627. We granted the petition for certiorari to resolve the conflict between the Fifth and the Ninth Circuits1 on this question of law. 396 U.S. 1000, 90 S.Ct. 556, 24 L.Ed.2d 492. We share the view of the Ninth Circuit and reverse the present judgment.
4
There is no provision of the Code that deals precisely with this question. But the Commissioner's basic premise2 rests on the so-called tax benefit rule, viz., that a recovery of an item that has produced an income tax benefit in a prior year is to be added to income in the year of recovery.3 The Commissioner argues that that rule, applicable here, means that unused amounts in a bad debt reserve must be restored to income when the reserve is found to be no longer necessary, as it was here, when the partnership's 'need' for the reserve ended with the termination of its business. Congress could make the end of 'need' synonymous with 'recovery' in the meaning of the tax benefit rule and make the rule read: '(A) bad debt reserve that has produced an income tax benefit in a prior year is to be added to income in the year when it was recovered or when its need is ended.' The semantics would then be honored by the Commissioner's ruling. But we do not feel free to state the tax benefit rule in those terms in the present context. We deal with § 351(a) of the Code which provides:
5
'No gain or loss shall be recognized if property is transferred to a corporation by one or more persons solely in exchange for stock or securities in such corporation and immediately after the exchange such person or persons are in control * * * of the corporation.'
6
All that petitioners received from the corporations were securities equal in value to the net worth of the accounts transferred, that is the face value less the amount of the reserve for bad debts. If, as conceded, there is no 'gain' or 'loss' recognized as a result of the transaction, it seems anomalous to treat the bad debt reserve as 'income' to the transferor.4
7
Deduction of the reserve from the face amount of the receivables transferred conforms to the reality of the transaction, as the risk of noncollection was on the transferee. Since the reserve for purposes of this case was deemed to be reasonable and the value of the stock received upon the transfer was equal to the net value of the receivables, there does not seem to us to have been any 'recovery.' A tax benefit was received by the partnership when the bad debt reserve was originally taken as a deduction from income. There would be a double benefit to the partnership if securities were issued covering the face amount of the receivables. We do not, however, understand how there can be a 'recovery' of the benefit of the bad debt reserve when the receivables are transferred less the reserve.5 That merely perpetuates the status quo and does not tinker with it for any double benefit out of the bad debt reserve.
8
For these reasons, the Court of Appeals in the Schmidt case6 held that although the 'need' for the reserve ended with the transfer, the end of that need did not mark a 'recovery' within the meaning of the tax benefit cases, 355 F.2d, at 113. We agree and accordingly reverse the judgment below.
9
Reversed.
10
Mr. Justice BLACK and Mr. Justice STEWART, dissenting.
11
We agree with the reasoning of Judge Tuttle's opinion for the Court of Appeals in this case, 414 F.2d 627, and with Judge Raum's opinion for the Tax Court in Schuster v. Commissioner, 50 T.C. 98. Accordingly, we would affirm the judgment.
1
Estate of Schmidt v. Commissioner of Internal Revenue, 9 Cir., 355 F.2d 111.
2
See Rev.Rul. 62—128, 1962—2 Cum.Bull. 139.
3
Section 111(a) of the 1954 Code provides:
'Gross income does not include income attributable to the recovery during the taxable year of a bad debt, prior tax, or delinquency amount, to the extent of the amount of the recovery exclusion with respect to such debt, tax, or amount.'
4
As stated in Geyer, Cornell & Newell, Inc. v. Commissioner, 6 T.C. 96, 100: 'A reserve consists of entries upon books of account. It is neither an asset nor a liability. It has no existence except upon the books, and, unlike an asset or a liability, it can not be transferred to any other entity.'
5
'(T)he infirmities in the accounts receivable which justify the bad debt reserve carry over to those accounts in the hands of the corporation. Presumably the amount that will ultimately be collected by the corporation will not be the gross amount of the receivables, but rather the net amount after deducting the bad debt reserve. Thus, the stock received in exchange for such accounts receivable can only be worth what the receivables themselves are worth, namely, the net collectable amount rather than the gross amount.' Arent, Reallocation of Income and Expenses in Connection with Formation and Liquidation of Corporations, 40 Taxes 995, 998 (1962).
6
N. 1, supra.
| 1112
|
398 U.S. 6
90 S.Ct. 1537
26 L.Ed.2d 6
GREENBELT COOPERATIVE PUBLISHING ASSOCIATION, Inc., et al., Petitioners,v.Charles S. BRESLER.
No. 413.
Argued Feb. 24 and 25, 1970.
Decided May 18, 1970.
Roger A. Clark, New York City, for petitioners.
Abraham Chasanow, Greenbelt, Md., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioners are the publishers of a small weekly newspaper, the Greenbelt News Review, in the city of Greenbelt, Maryland. The respondent Bresler is a prominent local real estate developer and builder in Greenbelt, and was, during the period in question, a member of the Maryland House of Delegates from a neighboring district. In the autumn of 1965 Bresler was engaged in negotiations with the Greenbelt City Council to obtain certain zoning variances that would allow the construction of high-density housing on land owned by him. At the same time the city was attempting to acquire another tract of land owned by Bresler for the construction of a new high school. Extensive litigation concerning compensation for the school site seemed imminent, unless there should be an agreement on its price between Bresler and the city authorities, and the concurrent negotiations obviously provided both parties considerable bargainign leverage.
2
These joint negotiations evoked substantial local controversy, and several tumultuous city council meetings were held at which many members of the community freely expressed their views. The meetings were reported at length in the news columns of the Greenbelt News Review. Two news articles in consecutive weekly editions of the paper stated that at the public meetings some people had characterized Bresler's negotiating position as 'blackmail.' The word appeared several times, both with and without quotation marks, and was used once as a subheading within a news story.1
3
Bresler reacted to these news articles by filing the present lawsuit for libel, seeking both compensatory and punitive damages. The primary thrust of his complaint was that the articles, individually and along with other items published in the petitioners' newspaper, imputed to him the crime of blackmail. The case went to trial, and the jury awarded Bresler $5,000 in compensatory damages and $12,500 in punitive damages. The Maryland Court of Appeals affirmed the judgment. 253 Md. 324, 252 A.2d 755. We granted certiorari to consider the constitutional issues presented. 396 U.S. 874, 90 S.Ct. 154, 24 L.Ed.2d 133.
4
In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, we held that the Constitution permits a 'public official' to recover money damages for libel only if he can show that the defamatory publication was not only false but was uttered with "actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.' Id., at 279, 280, 84 S.Ct. at 726. In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, we dealt with the constitutional restrictions upon a libel suit brought by a 'public figure.'
5
In the present case Bresler's counsel conceded in his opening statement to the jury that Bresler was a public figure in the community. This concession was clearly correct. Bresler was deeply involved in the future development of the city of Greenbelt. He had entered into agreements with the city for zoning variances in the past, and was again seeking such favors to permit the construction of housing units of a type not contemplated in the original city plan. At the same time the city was trying to obtain a tract of land owned by Bresler for the purpose of building a school. Negotiations of significant public concern were in progress, both with school officials and the city council. Bresler's status thus clearly fell within even the most restrictive definition of a 'public figure.' Curtis Publishing Co. v. Butts, supra, 154—155, 87 S.Ct. 1991—1992 (opinion of Harlan, J.). See also Pauling v. Globe-Democrat Publishing Co., 8 Cir., 362 F.2d 188, 195—196, cert. denied, 388 U.S. 909, 87 S.Ct. 2097, 18 L.Ed.2d 1347.
6
Whether as a state legislator representing another county, or for some other reason, Bresler was a 'public official' within the meaning of the New York Times rule is a question we need not determine. Cf. Time, Inc. v. Hill, 385 U.S. 374, 390, 87 S.Ct. 534, 543, 17 L.Ed.2d 456; Rosenblatt v. Baer, 383 U.S. 75, 86 n. 12, 86 S.Ct. 669, 676, 15 L.Ed.2d 597. For the instructions to the jury in this case permitted a finding of liability under an impermissible constitutional standard, whichever status Bresler might be considered to occupy. In his charge to the members of the jury, the trial jduge repeatedly instructed them that Bresler could recover if the petitioners' publications had been made with malice or with a reckless disregard of whether they were true or false. This instruction was given in one form or another half a dozen times during the course of the judge's charge.2 The judge then defined 'malice' to include 'spite, hostility or deliberate intention to harm.' Moreover, he instructed the jury that 'malice' could be found from the 'language' of the publication tiself.3 Thus the jury was permitted to find liability merely on the basis of a combination of falsehood and general hostility.
7
This was error of constitutional magnitude, as our decisions have made clear. 'This definition of malice is constitutionally insufficient where discussion of public affairs is concerned; '(w)e held in New York Times that a public official might be allowed the civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true." Rosenblatt v. Baer, supra, at 84, 86 S.Ct. at 675. '(E)ven where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; * * *' Garrison v. Louisiana, 379 U.S. 64, 73, 85 S.Ct. 209, 215, 13 L.Ed.2d 125. See also Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82, 88 S.Ct. 197, 198, 19 L.Ed.2d 248. And the constitutional prohibition in this respect is no different whether the plaintiff be considered a 'public official' or a 'public figure.' Curtis Publishing Co. v. Butts, supra.
8
The erroneous instructions to the jury would, therefore, alone be enough to require the reversal of the judgment before us. For when 'it is impossible to know, in view of the general verdict returned' whether the jury imposed liability on a permissible or an impermissible ground 'the judgment must be reversed and the case remanded.' New York Times Co. v. Sullivan, supra, 376 U.S. at 284, 84 S.Ct. at 728. See Time, Inc. v. Hill, supra, 385 U.S. at 394—397, 87 S.Ct. at 545—547; Rosenblatt v. Baer, supra, 383 U.S. at 82, 86 S.Ct. at 674; Stromberg v. California, 283 U.S. 359, 367 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117.
9
This, however, does not end the inquiry. As we noted in New York Times, '(t) his Court's duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. * * * We must 'make an independent examination of the whole record,' * * * so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.' 376 U.S., at 285, 84 S.Ct., at 728.
10
This case involves newspaper reports of public meetings of the citizens of a community concerned with matters of local governmental interest and importance. The very subject matter of the news reports, therefore, is one of particular First Amendment concern. 'The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means * * * is a fundamental principle of our constitutional system.' Stromberg v. California, supra, 283 U.S. at 369, 51 S.Ct. at 536. 'Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.' Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093.4 Because the threat or actual imposition of pecuniary liability for alleged defamation may impair the unfettered exercise of these First Amendment freedoms, the Constitution imposes stringent limitations upon the permissible scope of such liability.5
11
It is not disputed that the articles published in the petitioners' newspaper were accurate and truthful reports of what had been said at the public hearings before the city council.6 In this sense, therefore, it cannot even be claimed that the petitioners were guilty of any 'departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers,' Curtis Publishing Co. v. Butts, supra, 388 U.S. at 155, 87 S.Ct. at 1991 (opinion of Harlan, J.), much less the knowing use of falsehood or a reckless disregard of whether the statements made were true or false. New York Times Co. v. Sullivan, supra, 376 U.S. at 280, 84 S.Ct. at 726.
12
The contention is, rather, that the speakers at the meeting, in using the word 'blackmail,' and the petitioners in reporting the use of that word in the newspaper articles, were charging Bresler with the crime of blackmail, and that since the petitioners knew that Bresler had committed no such crime, they could be held liable for the knowing use of falsehood. It was upon this theory that the case was submitted to the jury, and upon this theory that the judgment was affirmed by the Maryland Court of Appeals. 253 Md. 324, 360—364, 252 A.2d 755, 775—778. For the reasons that follow, we hold that the imposition of liability on such a basis was constitutionally impermissible—that as a matter of constitutional law, the word 'blackmail' in these circumstances was not slander when spoken, and not libel when reported in the Greenbelt News Review.
13
There can be no question that the public debates at the sessions of the city council regarding Bresler's negotiations with the city were a subject of substantial concern to all who lived in the community. The debates themselves were heated, as debates about controversial issues usually are. During the course of the arguments Bresler's opponents characterized the position he had taken in his negotiations with the city officials as 'blackmail.' The Greenbelt News Review was performing its wholly legitimate function as a community newspaper when it published full reports of these public debates in its news columns. If the reports had been truncated or distorted in such a way as to extract the word 'blackmail' from the context in which it was used at the public meetings, this would be a different case. But the reports were accurate and full. Their headlines, 'School Site Stirs Up Council—Rezoning Deal Offer Debated' and 'Council Rejects By 4—1 High School Site Deal,' made it clear to all readers that the paper was reporting the public debates on the pending land negotiations. Bresler's proposal was accurately and fully described in each article, along with the accurate statement that some people at the meetings had referred to the proposal as blackmail, and others had indicated they thought Bresler's position not unreasonable.
14
It is simply impossible to believe that a reader who reached the word 'blackmail' in either article would not have understood exactly what was meant: it was Bresler's public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense.7 On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable. Indeed, the record is completely devoid of evidence that anyone in the city of Greenbelt or anywhere else thought Bresler had been charged with a crime.
15
To permit the infliction of financial liability upon the petitioners for publishing these two news articles would subvert the most fundamental meaning of a free press, protected by the First and Fourteenth Amendments. Accordingly, we reverse the judgment and remand the case to the Court of Appeals of Maryland for further proceedings not inconsistent with this opinion.
16
It is so ordered.
17
Judgment reversed and case remanded.
APPENDIX TO OPINION OF THE COURT
18
On October 14, 1965, the following story appeared in the Greenbelt News Review:
19
SCHOOL SITE STIRS UP COUNCIL REZONING DEAL OFFER DEBATED
By Dorothy Sucher
20
Delay in construction of a new Greenbelt high school is the lever by which a local developer is pressuring the city to endorse his bid for higher density rezoning of two large tracts of land; so citizens heard at a well-attended special meeting of the City Council on Monday night, Oct. 11.
21
For the past nine months, the Board of Education has been trying to acquire land owned by Consolidated Syndicates, Inc. (Charles Bresler-Theodore Lerner), for a high school site. The landowners, developers of Charlestowne Village, also own other tracts of undeveloped land in Greenbelt.
22
The developer has refused to accept the Board of Education's price, and condemnation proceedings have already been delayed three times * * *. Originally, it was hoped the new school would open September 1966.
23
Some time ago, it became known that the developer would agree on the price, provided the city would help him obtain higher density rezoning for two of his tracts (Parcels 1 and 2, totaling 230 acres) near the center of Greenbelt. If the city refused, he threatened to delay the school site acquisition as long as possible through the courts.
24
This 'deal' as it was termed by several citizens at Monday's meeting, has been rumored for months, but only became public knowledge recently. It was categorically opposed by Nathan Shinderman, a Board member of Greenbelt Homes, Inc. (GHI), who read a lengthy statement by GHI president Charles Schwan * * *.
Blackmail
25
'It seems that this is a slight case of blackmail,' commented Mrs. Marjorie Bergemann on Monday night, and the word was echoed by many speakers from the audience.
26
Councilman David Champion, however, denied that it was 'blackmail,' explaining that he would rather 'refer to it (i.e., the negotiations—Ed.) as a two-way street.'
27
Speaking from the floor, Gerald Gough, commented: 'Everyone knows there's a need for a school—just walk through the halls of High Point. The developer knows there's a need and says, 'we'll meet your need if you meet our need.' In my opinion, it's highly unethical.'
Delay Probable
28
Mayor Edgar Smith remarked that it should be made clear that refusing the developer's terms did not necessarily mean the loss of the school site; that it would, however, probably mean a two or three year delay in the construction of the school.
29
Among the parents who spoke was Mrs. Joseph Rosetti, who said: 'I have several children going into high school, but I would rather adhere to the Greenbelt Master Plan than overcrowd the town with dense development. I would stand for my children's discomfort, rather than give in to a blackmailing scheme.'
30
The following week, the News Review carried the sequel to its earlier story:
COUNCIL REJECTS BY 4—1 HIGH SCHOOL SITE DEAL
By Mary Lou Williamson
31
More than 150 citizens came to hear how the new City Council would respond to pressure by a local developer for higher density zoning on a large tract of land in exchange for uncontested consummation of the sale of a Greenbelt senior high school site to the Board of Education at the Council meeting Monday night.
32
Council sat quietly listening for more than an hour to citizen statements before voting to reject the proposal (4—1) with Councilman Dave Champion dissenting.
Citizens Speak
33
A procession of citizens took the floor to make impassioned speeches—some from prepared texts, some extemporaneously. The mayor occasionally had to caution them to refrain from engaging in personalities.
34
Albert Herling suggested skulduggery in the September court postponement. Although he praised most of the City Manager's report, he criticized the section entitled 'Risks and Conclusions,' saying they appeared negative in the extreme. He suggested a list of positive steps that council ought to take: 1) fight Bresler's 'blackmail'; 2) make clear to the Board of Education—no deals; 3) make clear to the District Council (zoning authority) unanimous opposition to the requested R—30 zoning; and 4) seek the swiftest possible court settlement. 'For anything less,' charged Herling, 'Would be other than what you believe. And when the chips are down, this is exactly what you'll do.'
35
Pilski asked if anyone in the audience cared to speak in support of Bresler's proposal.
36
Only James Martin took the floor. He suggested that Bresler's action was not 'blackmail' but the legitimate advance of his rights to develop his land. Martin suggested, by way of example, that GHI's long-range planning committee had been doing much the same thing some months ago. He alleged that the density of the 'frame homes (GHI) is far more atrocious than anything Bresler's considering.'
37
Mr. Justice WHITE, concurring.
38
I concur in the judgment of reversal and join the opinion of the Court insofar as it rests reversal on the erroneous definition of malice contained in the instructions given to the jury. I do not, however, join the remainder of the Court's opinion.
39
Respondent Bresler charged that he had been libeled by at least four statements published in petitioners' newspaper: (1) a statement that Bresler's conduct amounted to 'a slight case of blackmail,' accompanied by the use of the word 'blackmail' as a column subheading; (2) a charge that Bresler had engaged in an 'unethical trade'; (3) an allegation that Bresler had been guilty of 'skulduggery,' a word used by the newspaper to characterize statements made by others about Bresler; and (4) a statement that Bresler had had legal proceedings 'started against him for failure to make construction corrections in accordance with county standards.' Petitioners contended that the use of the word blackmail had not been intended in the criminal sense and was not libelous and that in any event the newspaper had not made its publications with malice, that is, with knowledge that any of the statements were false or with reckless disregard of the falsity of any of them.
40
In instructing the jury the trial court defined libel as:
41
'the publication of words, pictures or symbols which imputes to a person a crime or a disgraceful or dishonest or immoral conduct or is otherwise injurious to the private character or credit of the person in the minds of a considerable and respectable class in the community * * *.
42
'(T)he burden is upon the plaintiff to establish by a preponderance of the evidence that the publication imputed to him a crime, or disgraceful, dishonest or immoral conduct or was otherwise injurious to his private character or credit * * *.' App. E. 189.
43
With respect to the dispute over the sense with which the charge of blackmail had been used the court told the jury:
44
'(I)f you are unable to conclude from the preponderance of the evidence that the publication bears a meaning ascribed to it by the plaintiff, or if you find that the evidence is equally balanced on that issue, then your verdict must be for the defendant.
45
'In considering the publication complained of, you must consider the publication as a whole—the Court would say in this case we are talking about serious, (sic) number of publications—and determine the meaning of the publication and how it would be understood by ordinary readers from the entire context thereof with the other facts and circumstances shown by the evidence.
46
'Where a publication is susceptible of two meanings one of those which would be libelous and the other not, it is up to you say which of the two meanings would be attributable to it, by those to whom it is addressed or by whom it may be read. In reaching your decision you can consider all the circumstances surrounding the publication, which includes all of the evidence which has been admitted.' Id., at E. 189—190.
47
The court also defined the crime of blackmail and told the jury that in this sense the defendant newspaper did not claim that the allegations were true.
48
Petitioners took exception to none of the foregoing instructions although in their motion for judgment n.o.v. or for a new trial, error was claimed in not instructing the jury that the failure to plead truth meant only that the defendants did not adopt the meaning of the words alleged by the plaintiff. See App. E. 10—11.
49
The jury returned a verdict for plaintiff, and judgment was entered on the verdict for both compensatory and punitive damages.
50
The Court of Appeals of Maryland affirmed. The court held that aside from federal constitutional protections urged by petitioners, the jury's verdict and subsequent judgment thereon were supported by the evidence. With respect to the blackmail charge the court said:
51
'In the instant case the word 'blackmail' was used as a sub-heading without qualification. The charge of blackmail was stated in the News Review issue of October 14, 1965, and was again repeated in the next week in the issue of October 21. The appellants argue that the word 'blackmail' was used in a noncriminal sense, but the intended meaning was for the jury to determine. American Stores (Co.) v. Byrd, supra (229 Md. 5, 181 A.2d 333). The jury found against the appellants.
52
'The charging of Mr. Bresler with having committed blackmail could be found by the jury (as it was) to charge him with the commission of a crime.' 253 Md. 324, 351—352, 252 A.2d 755, 770 (1969).
53
The court also dealt with the other publications:
54
'In addition to the publications that Mr. Bresler had committed blackmail, there were publications that he had engaged in 'An unethical trade', had been guilty of 'skulduggery', had had legal proceedings 'started against him for failure to make construction corrections in accordance with county standards.' These allegations were injurious to Mr. Bresler in his business as a contractor and were libelous per se.' Id., at 354, 252 A.2d, at 772.
55
As for the issue of malice, the Court of Appeals noted that the newspaper knew the blackmail charge was false in the criminal sense. With reference to the charge of 'skulduggery' the court pointed out that the newspaper had not quoted another source in using that word; rather, it was the publishers' own characterization of the events.
56
'There is little doubt that the word 'skulduggery' was intended to indicate dishonest conduct on the part of Bresler and to hold him up to ridicule and contempt. * * * The jury could properly conclude that the reports of the hearing were not accurately reported and were, also, published with a knowledge of their falsity or with serious doubt of their truthfulness.' Id., at 360, 252 A.2d, at 775.
57
The court also held that the allegations that homeowners had started legal proceedings against Bresler in regard to construction defects in their homes built by him had been made with reckless disregard for the truth.
58
In reversing the Maryland Court of Appeals, the Court does not deny that the Constitution would permit recovery for charging the crime of blackmail, or even for falsely accusing one of 'blackmail' in a noncriminal but derogatory sense 'injurious to the private character or credit of the person.' The Court does not deny that the jury was told it had the authority to decide in what sense a word was used or understood, nor does the Court question the conclusion of the Court of Appeals that the jury had found that the word had been used and understood in the criminal sense. What the Court does hold on the cold record is that the trial judge, the jury, and the Maryland Court of Appeals were quite wrong in concluding that 'ordinary readers' could have understood that a crime had been charged. If this conclusion rests on the proposition that there was no evidence to support a judgment that the charge of blackmail would be understood by the average reader to import criminal conduct, I cannot agree. The very fact that the word is conceded to have a double meaning in normal usage is itself some evidence; and without challenging the reading of the jury's verdict by the Maryland Court of Appeals, I cannot join the majority claim of superior insight with respect to how the word 'blackmail' would be understood by the ordinary reader in Greenbelt, Maryland.
59
Although the Court does not so hold, arguably the newspaper should not be liable if it had no intention of charging a crime and had a good-faith, nonreckless belief that it was not doing so. Should New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), be extended to preclude liability for injury to reputation caused by employing words of double meaning, one of which is libelous, whenever the publisher claims in good faith to have intended the innocent meaning? I think not. The New York Times case was an effort to effectuate the policies of the First Amendment by recognizing the difficulties of ascertaining the truth of allegations about a public official whom the newspaper is investigating with an eye to publication. Absent protection for the nonreckless publication of 'facts' that subsequently prove to be false, the danger is that legitimate news and communication will be suppressed. But it is quite a different thing, not involving the same danger of self-censorship, to immunize professional communicators from liability for their use of ambiguous language and their failure to guard against the possibility that words known to carry two meanings, one of which imputes commission of a crime, might seriously damage the object of their comment in the eyes of the average reader. I see no reason why the members of a skilled calling should not be held to the standard of their craft and assume the risk of being misunderstood—if they are—by the ordinary reader of their publications. If it is thought that the First Amendment requires more protection for the media in this respect in accurately reporting events and statements occurring at official meetings, it would be preferable directly to carve out a wider privilege for such reporting.
60
I agree with the Court that there was error in the instructions concerning malice. The error, however, is irrelevant to the 'blackmail' phase of this case as I view it: if one assumes that the jury found that the crime of blackmail was charged, 'malice' is conceded, since the defendants admittedly knew such a charge was false.
61
Nevertheless, the jury returned a general verdict; it might have found that the blackmail statement did not impute a crime, but that the other damaging statements published by the newspaper were libelous. Indeed, this was the most likely course for the jury to have taken if the Court is correct that there was so little reason for basing liability on the blackmail allegation. Given this possibility, the error in the instructions requires reversal of the judgment. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).
62
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurs in the judgment of the Court for the reasons set out in Mr. Justice Black's concurring opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733, 11 L.Ed.2d 686 (1964), in his concurring and dissenting opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 170, 87 S.Ct. 1975, 1999, 18 L.Ed.2d 1094 (1967), and in Mr. Justice Douglas' concurring opinion in Garrison v. Louisiana, 379 U.S. 64, 80, 85 S.Ct. 209, 218, 13 L.Ed.2d 125 (1964).
1
The relevant portions of these news articles are printed as an appendix to this opinion.
2
The following excerpts from the trial judge's charge are illustrative:
'Accordingly * * * you must find for the defendant on the issue of fair comment, unless you determine by a preponderance of the evidence that the comment or criticism * * * was published with malice or a reckless disregard of whether it was true or false.
'* * * And such statements repeated and/or published, unless with actual malice, or knowledge that they are false, reckless disregard for whether they are true or false, is not libel.
'The law recognizes the importance of free discussion and criticism and matters of public interest to the extent that it grants immunity even with respect to the publication of foolish and prejudicial criticism if they are not published with malice, knowledge of their not being true, it is knowledge they are false, or reckless disregard of whether they are true or false. * * *
'(Y)our verdict should be for the defendant unless you find that the publication was made with actual malice, knowledge of its falsity, or reckless disregard of whether it was true or false.
'(Y)our verdict should be for the defendant unless you find again the publication was with actual malice, knowledge of its being false or reckless disregard of whether it was true or false.'
3
The trial judge said:
'With respect to your consideration of presence of actual malice on the part of defendant, you may infer its presence from the language or circumstances of the publication, but this may be done only if the character of the publication is so excessive, intemperate, unreasonable and abusive as to defy any other reasonable conclusion than that the defendant was moved by actual malice toward the plaintiff.'
4
See also Note, The Scope of First Amendment Protection for Good-Faith Defamatory Error, 75 Yale L.J. 642, 644—645; Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Cornell L.Q. 581, 592—593.
5
Cf. Pauling v. Globe-Democrat Publishing Co., 8 Cir., 362 F.2d 188, cert. denied, 388 U.S. 909, 87 S.Ct. 2097, 18 L.Ed.2d 1347; Kalven, The New York Times Case: A Note of 'The Central Meaning of the First Amendment,' 1964 Sup.Ct.Rev. 191, 221.
6
The mayor of the city testified, 'Certainly nothing in here that reports the meeting any different from the way it happened. This is pretty much the way it happened. If I would say anything, it is rather conservative in presenting some of the comments.'
The reporter who wrote one of the articles testified: '(T)he people were really made and that word 'blackmail' was used not once or twice like in my story, but over and over and over again.
'Q. By who?
'A. By people at the meeting. And I felt if I left that out I really wouldn't be writing a truthful article.'
7
Under the law of Maryland the crime of blackmail consists in threatening to accuse any person of an indictable crime or of anything which, if true, would bring the person into contempt or disrepute, with a view to extorting money, goods, or things of value. See Md.Ann.Code, Art. 27, §§ 561—563 (1967 Repl.Vol.). There is, of course, no indication in any of the articles that Bresler had engaged in anything approaching such conduct.
| 23
|
398 U.S. 30
90 S.Ct. 1564
26 L.Ed.2d 26
Robert Dean DICKEY, Petitioner,v.State of FLORIDA.
No. 728.
Argued Jan. 21, 1970.
Decided May 25, 1970.
John D. Buchanan, Jr., Tallahassee, Fla., for petitioner.
George R. Georgieff, Tallahassee, Fla., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted the writ in this case to consider the petitioner's claim that he had been denied his Sixth Amendment right to a speedy trial: he was tried in 1968 on charges of alleged criminal acts committed in 1960.
2
Prior to the commencement of his jury trial in 1968 for armed robbery petitioner, Robert Dickey, moved to quash the information against him, alleging, inter alia, that if he were tried he would be denied his right to a speedy trial, as guaranteed by § 11 of the Declaration of Rights of the Florida Constitution, F.S.A.1 and the Sixth Amendment to the United States Constitution.2 The motion was denied. Dickey was subsequently tried and convicted. He appealed to the Florida District Court of Appeal, First District, alleging error in the trial court's denial of his motion to quash. The Court of Appeal affirmed the conviction in a brief order. 215 So.2d 772 (1968). We granted Dickey leave to proceed in forma pauperis and granted his petition for a writ of certiorari. 396 U.S. 816, 90 S.Ct. 109, 24 L.Ed.2d 68 (1969). We reverse.
3
* At about 2 o'clock in the morning of June 28, 1960, Clark's Motor Court in Quincy, Gadsden County, Florida, was robbed by a lone armed robber. The victim and only eyewitness was Mrs. Ralph Clark. She immediately reported the crime to Deputy County Sheriff Martin and gave a description of the robber to him; this description was routinely recorded for later reference. Shortly thereafter, Dickey was taken into custody on federal bank robbery charges and placed in the Jackson County Jail, Marianna, Florida. Apparently the description Mrs. Clark had given Deputy Martin was sufficiently similar to Dickey that on July 1, 1960, he showed Mrs. Clark a picture of Dickey. Mrs. Clark and Deputy Martin then went to the Jackson County Jail where she identified Dickey as her assailant. Later that day Deputy Martin secured an arrest warrant charging Dickey with armed robbery.3
4
From July 1, 1960, to September 2, 1960, Dickey remained in the Jackson County Jail. The Gadsden County Sheriff's Office knew of his whereabouts but made no effort to serve the warrant or gain custody for the purpose of trial. On September 2, 1960, Dickey, having been convicted on federal charges, was removed from Florida, first to Leavenworth and then Alcatraz. On the same day, the Gadsden County warrant was sent to the Chief United States Marshal, Atlanta, Georgia, and a formal detainer was lodged against Dickey.
5
In 1962 Dickey filed in the Gadsden County Circuit Court a petition styled 'writ of habeas corpus ad prosequendum' naming the State Attorney for Gadsden County as respondent and asking that he be required to show cause why he should not be ordered to either take the steps necessary to obtain Dickey's presence in Florida for trial or withdraw the detainer for failure to provide Dickey with a speedy trial, as guaranteed by the Sixth Amendment. The Circuit Court, in an order dated December 1, 1962, denied the petition on several grounds: first, that Dickey's unavailability for trial in Florida was the result of his voluntary commission of a federal crime, the natural consequence of which was incarceration in a federal penal institution; second, that the speedy-trial issue was prematurely raised because only at the time of trial can a determination be made as to whether the delay has made a fair trial impossible; third, that even if the denial of an immediate trial was violative of Dickey's Sixth Amendment rights, it was a deprivation caused wholly by the federal officials having custody of his person, and any relief had to flow from those authorities.
6
Dickey filed papers raising substantially the same contentions on two later occasions, April 1, 1963, and March 28, 1966. The Circuit Court denied both petitions, simply citing the prior denial dated December 1, 1962.
7
Dickey next petitioned the Supreme Court of Florida to issue a writ of mandamus ordering the Circuit Court to either secure his return for trial or withdraw the detainer against him. The Circuit Court judge filed as a return the orders of December 1962, April 1963, and April 1966. Thereafter the Attorney General of Florida filed a brief in opposition arguing that Dickey should not be heard to complain that he had not received a speedy trial in Gadsden County because his unavailability was caused by the voluntary commission of criminal acts. Counsel was appointed for Dickey and the Florida Supreme Court heard argument on the petition for mandamus.
8
The Florida Supreme Court rejected the State's claim that a person incarcerated for one crime has no right to demand his constitutionally guaranteed right to a speedy trial on another charge. Dickey v. Circuit Court, 200 So.2d 521 (1967). The court held that incarceration does not make the accused unavailable since there have long been means by which one jurisdiction, for the purpose of a criminal trial, can obtain custody of a prisoner held by another. That court also held that the prisoner's demand upon the accusing State gives rise to an obligation to act affirmatively to secure his presence for trial; failure of the accusing State to promptly obtain the defendant from the detaining sovereign might invalidate any judgment ultimately obtained, if the time lapse is sufficiently great and is not excused.4 The Florida Supreme Court concluded that once the discretionary decision to charge a prisoner with a crime has been made, an obligation arises to act diligently toward procuring the accused for trial and that obligation is a ministerial duty subject to a writ of mandamus. However, since Dickey had named the Circuit Court as the respondent, rather than the appropriate State Attorney, the petition was dismissed without prejudice to his right to file another petition naming the appropriate respondent.
9
On September 1, 1967, Dickey filed with the Circuit Court a motion to have the court order the Gadsden County State Attorney to dismiss the detainer warrant because he had been denied his right to a speedy trial. The State Attorney then filed a petition for a writ of habeas corpus ad prosequendum to secure Dickey's return to Florida for trial. On December 15, 1967, the Circuit Court issued the writ, and on the same day the State Attorney filed an information charging Dickey with the armed robbery allegedly committed in 1960. Dickey was returned to Florida on January 23, 1968. On January 30, the day before the trial was to begin, Dickey's appointed counsel filed a motion for a continuance so that the whereabouts of two witnesses could be determined, and a motion asking that the information be quashed on the ground that the delay of over seven years amounted to a denial of Dickey's right to a speedy trial. The motion alleged that the delay was sufficiently prejudicial to make a fair trial impossible.5 The Circuit Court granted the continuance but took the motion to quash under advisement. The trial was set for February 13.
10
Dickey's counsel filed another motion for a continuance, dated February 12, stating that one of the witnesses could not be located and that more time was needed.6 The court denied the motion and, before the commencement of the trial on the next day, denied the motion to quash.
11
At the trial Mrs. Clark testified from memory as to the description she had given the deputy after the crime, that she had identified Dickey in the Jackson County Jail, and that he was the robber. She stated that she could not recall having seen Dickey before the night of the crime. Deputy Martin also testified concerning the identification at the Jackson jail, noting that the jailer who had been present when Mrs. Clark viewed Dickey had since died. He further testified as to the description of the robber Mrs. Clark had given him, admitting that his memory was hazy and that the notes he had made while investigating the crime had long since been destroyed.
12
The record indicates that Dickey's defense consisted of his claim that he was in Waycross, Georgia, at the time of the crime and of testimony of another witness that he and Dickey had visited the victimized motel several times. From this latter evidence the defense argued the unlikelihood that Dickey would commit robbery at a place where he was known and would be recognized.
13
Dickey was convicted and sentenced to 10 years' imprisonment in the State Penitentiary, the sentence to run consecutively with the federal term he was then serving. He then sought review in the Florida District Court of Appeal, alleging that the trial judge had erred in not granting his motion to quash. That court affirmed the conviction without opinion, saying only that 'appellant * * * failed to demonstrate reversible error * * *.' 215 So.2d 772, 773.
II
14
The record in this case shows that petitioner was available to the State at all times during the seven-year period before his trial. The State suggests no tenable reason for deferring the trial in the face of petitioner's diligent and repeated efforts by motions in the state court in 1962, 1963, and 1966 to secure a prompt trial. In the interval two witnesses died and another potential defense witness is alleged to have become unavailable. Police records of possible relevance have been lost or destroyed.
15
Florida argues that the right of the petitioner under the Federal Constitution did not arise until this Court's decision in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), and that not until Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), was there a constitutional requirement that the State press for trial of a defendant in custody in another jurisdiction.
16
As noted by the Court in Smith v. Hooey, the holding of the Klopfer case was that
17
'the Fourteenth Amendment, (applying) the Sixth Amendment right to a speedy trial is enforceable against the States as 'one of the most basic rights preserved by our Constitution." 393 U.S., at 374—375, 89 S.Ct. at 575.
18
From this the Court went on to hold that on demand a State had a duty to make a diligent and good-faith effort to secure the presence of the accused from the custodial jurisdiction and afford him a trial. In Smith we remanded the case to the state court without deciding whether the defendant, when available for trial in the state court, would be required to show prejudice arising from the delay.
19
Here the State of Florida brought the petitioner back to Florida, tried, and convicted him. Petitioner's challenge is directly to the power of the State to try him after the lapse of almost eight years during which he repeatedly demanded and was denied a trial.
20
The right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality in the need to have charges promptly exposed. If the case for the prosecution calls on the accused to meet charges rather than rest on the infirmities of the prosecution's case, as is the defendant's right, the time to meet them is when the case is fresh. State claims have never been favored by the law, and far less so in criminal cases.7 Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial.8 This is brought sharply into focus when, as here, the accused presses for an early confrontation with his accusers and with the State. Crowded dockets, the lack of judges or lawyers, and other factors no doubt make some delays inevitable. Here, however, no valid reason for the delay existed; it was exclusively for the convenience of the State. On this record the delay with its consequent prejudice is intolerable as a matter of fact and impermissible as a matter of law.
21
In addition to exerting every effort to require the State to try him, there is present in this record abundant evidence of actual prejudice to petitioner in the death of two potential witnesses, unavailability of another, and the loss of police records. This is sufficient to make a remand on that issue unnecessary.9 We therefore reverse and remand to the District Court of Appeal of Florida, First District, with directions to vacate the judgment appealed from and direct the dismissal of any proceedings arising out of the charges on which that judgment was based.
22
Reversed and remanded with directions.
23
Mr. Justice HARLAN, concurring.
24
I join the Court's opinion with the following reservation and comment.
25
I think that claims such as those of the petitioner in this case, arising out of a state proceeding, should be judged by the principles of procedural fairness required by the Due Process Clause of the Fourteenth Amendment, and not by 'incorporating' or 'absorbing' into the Fourteenth Amendment the 'speedy trial' provision of the Sixth Amendment. See my concurring opinion in Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967), and my separate opinion in Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 579, 21 L.Ed.2d 607 (1969). This reservation reflects the hope that some day the Court will return to adjudicating state criminal cases in accordance with the historic meaning of the Due Process Clause of the Fourteenth Amendment, see, e.g., my dissenting opinion in Duncan v. Louisiana, 391 U.S. 145, 171, 88 S.Ct. 1444, 1458, 20 L.Ed.2d 491 (1968).
26
However, whether it be the Due Process Clause or the Sixth Amendment that is deemed to apply, I fully agree that petitioner's federal constitutional rights were violated by Florida's actions in this instance.
27
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring.
28
* In Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), this Court held that the Sixth Amendment standards governing speedy trial are made obligatory on the States by the Fourteenth Amendment Due Process Clause. Petitioner's prosecution, however, began in July 1960, nearly seven years before our decision in Klopfer. Accordingly, assuming, arguendo, that Klopfer is not retroactive, the question here is whether petitioner's trial was unconstitutionally delayed under the test of due process applicable to the States prior to Klopfer. See, e.g., Beasley v. Pitchess, 358 F.2d 706 (C.A.9th Cir. 1966); United States ex rel. Von Cseh v. Fay, 313 F.2d 620 (C.A.2d Cir. 1963); Germany v. Hudspeth, 209 F.2d 15, 18—19 (C.A.10th Cir. 1954).1 Petitioner has established his claim. Although the Florida police secured an arrest warrant in 1960 charging petitioner with armed robbery, he was not tried until 1968; he demanded a speedy trial as early as 1962; he has shown that he was substantially prejudiced by the delay; and the State, it appears, was deliberately slow in prosecuting him. Thus, I join the Court's opinion.
29
I do not read the Court's opinion as deciding that in post-Klopfer cases (1) the defendant can challenge only delay occurring after his arrest; (2) he is not entitled to a speedy trial unless he demands it at the time of the delay; (3) he must prove actual prejudice, or (4) the delay must be deliberately caused by the government. It is timely to note that the Court has as yet given scant attention to these and other questions essential to the definition of the speedy-trial guarantee. Before Klopfer, only three of our opinions dealt at any length with the right, and each was decided with little analysis of its scope and content. See Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1905); Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). Klopfer itself attempted no extensive analysis; nor did our later decision, Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). And today we do not consider the effect of the application of the Speedy Trial Clause to the States. Thus, although we said in Klopfer that the right to a speedy trial is 'one of the most basic rights preserved by our Constitution,' 386 U.S., at 226, 87 S.Ct., at 995, a guarantee 'as fundamental as any of the rights secured by the Sixth Amendment,' id., at 223, 87 S.Ct., at 993, we have yet even to trace its contours. Accordingly, I think it appropriate to point out certain of the major problems that courts must consider in defining the speedy-trial guarantee.
II
30
In my view, there are two groups of issues to be met in interpreting the right: first, those concerned with when during the criminal process the speedy-trial guarantee attaches, and second, those concerned with the criteria by which to judge the constitutionality of the delays to which the right does attach. These questions, of course, must be answered in light of the purposes of the Speedy Trial Clause.2 The evils at which the Clause is directed are readily identified. It is intended to spare an accused those penalties and disabilities—incompatible with the presumption of innocence—that may spring from delay in the criminal process. The Court recognized in Ewell, supra, 383 U.S. at 120, 86 S.Ct. at 776, that the speedy-trial right 'is an important safeguard to prevent undue and oppressive incarceration prior to trial.' We also recognized in Ewell that a speedy trial is intended 'to minimize anxiety and concern accompanying public accusation.' Ibid. As we observed in Klopfer, supra, 386 U.S. at 222, 87 S.Ct. at 993, lengthy prosecution may subject an accused to 'public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes.'
31
These disabilities, singly or in league, can impair the accused's ability to mount a defense. The passage of time by itself, moreover, may dangerously reduce his capacity to counter the prosecution's charges. Witnesses and physical evidence may be lost; the defendant may be unable to obtain witnesses and physical evidence yet available. His own memory and the memories of his witnesses may fade. Some defenses, such as insanity, are likely to become more difficult to sustain; as one court has stated, '(p)assage of time makes proof of any fact more difficult. When the fact at issue is as subtle as a mental state, the difficulty is immeasurably enhanced.' Williams v. United States, 102 U.S.App.D.C. 51, 55, 250 F.2d 19, 23 (1957). See also Ewell, supra, 383 U.S. at 120, 86 S.Ct. at 776.
32
The Speedy Trial Clause protects societal interests, as well as those of the accused. The public is concerned with the effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Just as delay may impair the ability of the accused to defend himself, so it may reduce the capacity of the government to prove its case. See Ponzi v. Fessenden, 258 U.S. 254, 264, 42 S.Ct. 309, 312, 66 L.Ed. 607 (1922). Moreover, while awaiting trial, an accused who is at large may become a fugitive from justice or commit other criminal acts. And the greater the lapse of time between commission of an offense and the conviction of the offender, the less the deterrent value of his conviction.3
33
Deliberate governmental delay in the hope of obtaining an advantage over the accused is not unknown. In such a circumstance, the fair administration of criminal justice is imperiled. The Speedy Trial Clause then serves the public interest by penalizing official abuse of the criminal process and discouraging official lawlessness. See, e.g., United States v. Provoo, 17 F.R.D. 183 (D.C.Md.), aff'd per curiam, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955). Thus the guarantee protects our common interest that government prosecute, not persecute, those whom it accuses of crime.
III
34
Against this background of the purposes of the speedy-trial safeguard, I turn to the question of when during the criminal process the right attaches. A criminal prosecution has many stages, and delay may occur during or between any of them. It may take place at the beginning of the process: between the time at which the government decides to prosecute a man and has sufficient evidence to proceed against him and the actual time of his arrest or indictment.4 Or it may occur, for instance, between arrest and indictment,5 during trial, or between trial and sentencing.
35
Authorities agree that delay between indictment and trial is subject to the speedy-trial safeguard, e.g., Lucas v. United States, 363 F.2d 500, 502 (C.A.9th Cir. 1966), and there is substantial authority that the right attaches upon arrest, e.g., Hardy v. United States, 119 U.S.App.D.C. 364, 365, 343 F.2d 233, 234 (1964). But see, e.g., Reece v. United States, 337 F.2d 852 (C.A.5th Cir. 1964). Similarly, it has been generally held that the Speedy Trial Clause applies to intervals between separate indictments or between separate trials on the same charge, e.g., Williams v. United States, supra. This Court has assumed, arguendo, but has not decided, that the interval between judgment and sentencing is governed by the clause, Pollard v. United States, supra, 352 U.S. at 361, 77 S.Ct. at 485; see also Welsh v. United States, 348 F.2d 885 (C.A.6th Cir. 1965). I have found no cases dealing with delay during the trial. With some exceptions,6 it has been held that the right to speedy trial does not apply to delays that occur before the defendant's arrest or indictment, e.g., Parker v. United States, 252 F.2d 680, 681 (C.A.6th Cir. 1958); Terlikowski v. United States, 379 F.2d 501, 503—504 (C.A.8th Cir. 1967).
36
Does the speedy-trial guarantee apply to all delays between a defendant's arrest and his sentencing? The view that it does is not without support in the wording of the Sixth Amendment. The Consitution says that an 'accused' is entitled to a speedy trial '(i)n all criminal prosecutions.' Can it be that one becomes an 'accused' only after he is indicted, or that the Sixth Amendment subdivides 'prosecution' into various stages, granting the right to speedy trial in some and withholding it in others? In related contexts involving other clauses of the Sixth Amendment, we have held that the 'prosecution' of an 'accused' can begin before his indictment; for example, in Escobedo v. Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977 (1964), we spoke of the time when 'investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect.' And as regards realization of the purposes of the Speedy Trial Clause, the possibility of harm to interests protected by the clause is certainly great whenever delay occurs after arrest.7
37
The applicability of the safeguard to delays occurring before arrest or indictment poses a more difficult question. A few courts have reasoned that the language of the Sixth Amendment precludes its application then,8 and prior to arrest or indictment not all of the interests protected by the right are threatened. The accused suffers no preconviction penalty, since his freedom is not impaired by actual imprisonment or conditioned release. He suffers none of the personal or social disabilities that flow from public accusation. And, so far as society's interest in the effective prosecution of criminal cases is concerned, delay on the government's part need not impair its ability to prove the defendant's guilt beyond a reasonable doubt.9
38
Deliberate governmental delay designed to harm the accused, however, constitutes abuse of the criminal process. It lessens the deterrent value of any conviction obtained. And it very probably reduces the capacity of the accused to defend himself; unlike the prosecution, he may remain unaware that charges are pending and thus fail to take steps necessary to his defense.10 Accordingly, some of the interests protected by the Speedy Trial Clause can be threatened by delay prior to arrest or indictment. Thus, it may be that for the purposes of the clause to be fully realized, it must apply to any delay in the criminal process that occurs after the government decides to prosecute and has sufficient evidence for arrest or indictment.11
39
Some lower courts have held that the applicable statute of limitations provides the exclusive control over governmental delay prior to arrest or indictment. See, E.g., United States v. Panczko, 367 F.2d 737, 739 (C.A.7th Cir. 1966), which found delay in bringing charges 'limited only by the statute of limitations.' We said in Ewell, supra, 383 U.S. at 122, 86 S.Ct. at 777, that 'the applicable statute of limitations * * * is usually considered the primary guarantee against bringing overly stale criminal charges.' Such legislative judgments are clearly entitled to great weight in determining what constitutes unreasonable delay. But for some crimes there is no statute of limitations. None exists, for example, in prosecutions of federal capital offenses, 18 U.S.C. § 3281. And, even when there is an applicable statute, its limits are subject to change at the will of the legislature, and they are not necessarily co-extensive with the limits set by the Speedy Trial Clause. Judge Wright, concurring in the result in Nickens v. United States, 116 U.S.App.D.C. 338, 343 n. 4, 323 F.2d 808, 813 n. 4 (1963), observed: 'The legislature is free to implement the (speedy-trial) right and to provide protections greater than the constitutional right. But the minimum right of the accused to a speedy trial is preserved by the command of the Sixth Amendment, whatever the terms of the statute.' Cf. Nickens, supra, at 340 n. 2, 323 F.2d, at 810 n. 2.
IV
40
What are the criteria to be used in judging the constitutionality of those delays to which the safeguard applies? This Court has stated that '(t)he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.' Beavers v. Haubert, supra, 198 U.S. at 87, 25 S.Ct. at 576. We have also observed that '(w)hile justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed.' Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1959). It appears that consideration must be given to at least three basic factors in judging the reasonableness of a particular delay: the source of the delay, the reasons for it, and whether the delay prejudiced interests protected by the Speedy Trial Clause.12
41
A defendant may be disentitled to the speedy-trial safeguard in the case of a delay for which he has, or shares, responsibility. It has been held, for example, that an accused cannot sustain a speedy-trial claim when delay results from his being a fugitive from justice, making dilatory pleadings or motions, failing to object when a continuance is granted the government,13 or from delay occasioned by his incompetence to stand trial, e.g., United States v. Davis, 365 F.2d 251, 255 (C.A.6th Cir. 1966).
42
It has also been held that the defendant's failure, upon being confronted with delay, to demand a speedy trial justifies the denial of his claim.14 In other words, his silence—or inaction has been construed as an implied relinquishment of the right to speedy trial, e.g., United States v. Lustman, 258 F.2d 475, 478 (C.A.2d Cir. 1958).15 The view that an accused loses his right to a speedy trial by silence or inaction is open to question on at least three grounds. First, it rests on what may be an unrealistic understanding of the effect of delay. One court in explaining the 'demand' rule stated that it 'is based on the almost universal experience that delay in criminal cases is welcomed by defendants as it usually operation in their favor.' United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (C.A.2d Cir. 1963). It is true that delay may be welcomed by an accused, especially if he greatly fears the possible consequences of his trial. See United States v. Chase, 135 F.Supp. 230, 233 (D.C.N.D.Ill.1955). But an accused may just as easily object to delay for its prolongation of the time in which he must live in uncertainty, carrying the emotional and financial burdens of accusation, and possessing the conditioned freedom of a potential felon. Moreover, the passage of time may threaten the ability of both the defendant and the government to prepare and present a complete case; in this regard, delay does not inherently benefit the accused any more than it does the prosecution.
43
Second, the equation of silence or inaction, with waiver is a fiction that has been categorically rejected by this Court when other fundamental rights are at stake. Over 30 years ago in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), we defined 'waiver' as 'an intentional relinquishment or abandonment of a known right or privilege,' We have made clear that courts should 'indulge every reasonable presumption against waiver,' Aetna Ins. Co. v. Kennedy to use of Bogash, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177 (1937), and that they should 'not presume acquiescence in the loss of fundamental rights.' Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81 L.Ed. 1093 (1937). In Klopfer, supra, 386 U.S. at 223, 87 S.Ct. at 993, we held that the right to a speedy trial 'is as fundamental as any of the rights secured by the Sixth Amendment.' It is a safeguard of the interests of both the accused and the community as a whole. Thus, can it be that affirmative action by an accused is required to preserve—rather than to waive—the right?
44
Third, it is possible that the implication of waiver from silence or inaction misallocates the burden of ensuring a speedy trial. The accused has no duty to bring on his trial. He is presumed innocent until proved guilty; arguably, he should be presumed to wish to exercise his right to be tried quickly, unless he affirmatively accepts delay. The government, on the other hand, would seem to have a responsibility to get on with the prosecution, both out of fairness to the accused and to protect the community interests in a speedy trial. Judge Weinfeld of the District Court for the Southern District of New York has observed, 'I do not conceive it to be the duty of a defendant to press that he be prosecuted upon an indictment under penalty of waiving his right to a speedy trial if he fails to do so. It is the duty of the public prosecutor, not only to prosecute those charged with crime, but also to observe the constitutional mandate guaranteeing a speedy trial. If a prosecutor fails to do so, the defendant cannot be held to have waived his constitutional right to a speedy trial.' United States v. Dillon, 183 F.Supp. 541, 543 (1960).16
45
If the defendant does not cause the delay of his prosecution, the responsibility for it will almost always rest with one or another governmental authority. The police and prosecutor are not the only governmental officials whose conduct is governed by the Speedy Trial Clause; it covers that of court personnel as well, e.g., Pollard v. United States, supra; Marshal v. United States, 119 U.S.App.D.C. 83, 337 F.2d 119 (1964). And the public officials responsible for delay may not even be associated with law enforcement agencies or the courts. Delay, for example, may spring from a refusal by other branches of government to provide these agencies and the judiciary with the resources necessary for speedy trials. See, e.g., King v. United States, 105 U.S.App.D.C. 193, 195, 265 F.2d 567, 569 (1959).
46
When is governmental delay reasonable? Clearly, a deliberate attempt by the government to use delay to harm the accused, or governmental delay that is 'purposeful or oppressive,' is unjustifiable. Pollard v. United States, supra, 352 U.S., at 361, 77 S.Ct., at 485. See also United States v. Provoo, supra. The same may be true of any governmental delay that is unnecessary, whether intentional or negligent in origin.17 A negligent failure by the government to ensure speedy trial is virtually as damaging to the interests protected by the right as an intentional failure; when negligence is the cause, the only interest necessarily unaffected is our common concern to prevent deliberate misuse of the criminal process by public officials. Thus the crucial question in determining the legitimacy of governmental delay may be whether it might reasonably have been avoided—whether it was unnecessary. To determine the necessity for governmental delay, it would seem important to consider, on the one hand, the intrinsic importance of the reason for the delay, and, on the other, the length of the delay and its potential for prejudice to interests protected by the speedy-trial safeguard. For a trivial objective, almost any delay could be reasonably avoided. Similarly, lengthy delay, even in the interest of realizing an important objective, would be suspect. Perhaps the most important reason for the delay of one criminal prosecution is to permit the prosecution of other criminal cases that have been in process longer than the case delayed. But surely even this objective cannot justify interminable interruption of a prosecution.18
47
Finally, what is the role of prejudice in speedy-trial determinations? The discharge of a defendant for denial of a speedy trial is a drastic step, justifiable only when further proceedings against him would harm the interests protected by the Speedy Trial Clause. Thus it is unlikely that a prosecution must be ended simply because the government has delayed unnecessarily, without the agreement of the accused. The courts below, however, are divided in their conclusions regarding prejudice. One court has stated that 'we think that a showing of prejudice is not required when a criminal defendant is asserting a constitutional right under the Sixth Amendment,' United States v. Lustman, 258 F.2d 475, 477—478 (C.A.2d Cir. 1958). Some have held that prejudice may be assumed after lengthy delays, e.g., Hedgepeth v. United States, 124 U.S.App.D.C. 291, 294 and n. 3, 364 F.2d 684, 687 and n. 3 (1966). Others have insisted that its existence be shown by the defendant, e.g., United States v. Jackson, 369 F.2d 936, 939 (C.A.4th Cir. 1966), though some courts have shifted the burden of proof to the government after long delay, e.g., Williams v. United States, 102 U.S.App.D.C. 51, 250 F.2d 19, 21—22 (C.A.D.C. Cir. 1957).
48
Although prejudice seems to be an essential element of speedy-trial violations, it does not follow that prejudice—or its absence, if the burden of proof is on the government—can be satisfactorily shown in most cases. Certainly, as the present case indicates, it can be established in some instances. It is obvious, for example, if the accused has been imprisoned for a lengthy period awaiting trial, or if the government has delayed in clear bad faith. But concrete evidence of prejudice is often not at hand. Even if it is possible to show that witnesses and documents, once present, are now unavailable, proving their materiality is more difficult. And it borders on the impossible to measure the cost of delay in terms of the dimmed memories of the parties and available witnesses. As was stated in Ross v. United States, 121 U.S.App.D.C. 233, 238, 349 F.2d 210, 215 (1965): '(The defendant's) failure of memory and his inability to reconstruct what he did not remember virtually precluded his showing in what respects his defense might have been more successful if the delay had been shorter. * * * In a very real sense, the extent to which he was prejudiced by the Government's delay is evidenced by the difficulty he encountered in establishing with particularity the elements of that prejudice.' Similarly, there is usually little chance of conclusively showing the harm sustained by an accused as a result of public accusation. One commentator has stated that '(t)here is no way of proving the prejudice to the accused which occurs outside the courtroom * * * the public suspicion, the servering of family and social ties, and the personal anxiety.' Note, The Right to a Speedy Criminal Trial, 57 Col.L.Rev. 864. Nor, of course, is there any ready way of establishing the prejudice to community interests from delay.
49
Despite the difficulties of proving, or disproving, actual harm in most cases, it seems that inherent in prosecutorial delay is 'potential substantial prejudice,' United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967), to the interests protected by the Speedy Trial Clause. The speedy-trial safeguard is premised upon the reality that fundamental unfairness is likely in overlong prosecutions. We said in Ewell, supra, 383 U.S. at 120, 86 S.Ct. at 776, that the guarantee of a speedy trial 'is an important safeguard * * * to limit the possibilities that long delay will impair the ability of an accused to defend himself,' and Judge Frankel of the District Court for the Southern District of New York has stated that 'prejudice may fairly be presumed simply because everyone knows that memories fade, evidence is lost, and the burden of anxiety upon any criminal defendant increases with the passing months and years.' United States v. Mann, 291 F.Supp. 268, 271 (1968).
50
Within the context of Sixth Amendment rights, the defendant generally does not have to show that he was prejudiced by the denial of counsel, confrontation, public trial, and impartial jury, knowledge of the charges against him, trial in the district where the crime was committed, or compulsory process.19 Because potential substantial prejudice inheres in the denial of any of these safeguards, prejudice is usually assumed when any of them is shown to have been denied. Because concrete evidence that their denial caused the defendant substantial prejudice is often unavailable, prejudice must be assumed, or constitutional rights will be denied without remedy. Prejudice is an issue, as a rule, only if the government wishes to argue harmless error. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). When the Sixth Amendment right to speedy trial is at stake, it may be equally realistic and necessary to assume prejudice once the accused shows that he was denied a rapid prosecution.
51
The difficulty in such an approach, of course, lies in determining how long a prosecution must be delayed before prejudice is assumed. It is likely that generalized standards would have to be developed to indicate when during the course of a delay there arises a probability of substantial prejudice. Until delay exceeds that point, the burden most probably would remain on the accused to show that he was actually harmed. Once, however, delay exceeds that point, prejudice would cease to be an issue, unless the government wished to argue harmless error.20 Though one temporal standard could very likely govern most prosecutions, account would need to be taken of those types of cases that diverge from the norm.21
52
Thus, it may be that an accused makes out a prima facie case of denial of speedy trial by showing that his prosecution was delayed beyond the point at which a probability of prejudice arose and that he was not responsible for the delay, and by alleging that the government might reasonably have avoided it. Arguably the burden should then shift to the government to establish, if possible, that the delay was necessary by showing that the reason for it was of sufficient importance to justify the time lost.22 General standards could be developed by determining, first, the weight to be given various grounds for delay and, then, how great a delay is justifiable for each. Some grounds, such as an attempt to gain an advantage over the accused, would have no value; legitimate reasons might have different weights, an attempt to locate a minor prosecution witness having less justificatory force than an attempt to locate a witness on whose testimony the prosecution hinges.
V
53
These comments provide no definitive answers. I make them only to indicate that many—if not most—of the basic questions about the scope and context of the speedy-trial guarantee remain to be resolved. Arguments of some force can be made that the guarantee attaches as soon as the government decides to prosecute and has sufficient evidence for arrest or indictment; similar arguments exist that an accused does not lose his right to a speedy trial by silence or inaction, that governmental delay that might reasonably have been avoided is unjustifiable, and that prejudice ceases to be an issue in speedy-trial cases once the delay has been sufficiently long to raise a probability of substantial prejudice. Insofar as these arguments are meritorious, they suggest that the speedy-trial guarantee should receive a more hospitable interpretation than it has yet been accorded.
1
The Declaration of Rights, Florida Constitution, reads in pertinent part:
Section 11. Rights of accused; speedy trial; etc.—
'In all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury, in the county where the crime was committed * * *.'
2
The Sixth Amendment to the United States Constitution provides in pertinent part:
'In all criminal prosecution, the accused shall enjoy the right to a speedy and public trial * * *.'
3
Under Florida law this step tolled the statute of limitations. See Rosengarten v. State, 171 So.2d 591 (Dist.Ct.App.Fla.1965); Dubbs v. Lehman, 100 Fla. 799, 130 So. 36 (1930); State v. Emanuel, 153 So.2d 839 (Dist.Ct.App.Fla.1963).
4
The decision of the Florida Supreme Court was based upon both the Florida Constitution's guarantee of a speedy trial, see n. 1, supra, and the similar guarantee in the Sixth Amendment, the latter being applicable to the States through the Fourteenth Amendment's Due Process Clause. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The Florida court treated these guarantees as substantively coterminous. See 200 So.2d 521, 524, 526—527.
5
The motion to quash stated that an essential and material witness, Mrs. Hazel Varnadore, Dickey's sister, had died in 1964. The motion further stated that had she been available she would have testified that Dickey called her at 12:15 o'clock in the morning of June 28, 1960, from Waycross, Georgia. The motion was accompanied by an affidavit to the same effect, signed by Dickey.
6
In both the January 30 and February 12 motions for a continuance Dickey's counsel asserted that he had been unable to locate one A. C. Strickland. The defense expected this witness to testify that he had been with Dickey in Waycross, Georgia, on June 28, 1960, the date of the crime. This witness was never located.
7
Cf. American Bar Association Project on Standards for Criminal Justice, Speedy Trial § 4.1 (Approved Draft 1968).
8
Cf. American Bar Association Project on Standards for Criminal Justice, The Prosecution Function and the Defense Function § 2.9 (Tent.Draft Mar. 1970).
9
Cf. Regina v. Robins, 1 Cox Crim.Cas. 114 (Somerset Winter Assizes, 1844).
1
Cf. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), where, without reliance on the Sixth Amendment, the Court held that a State violates the Due Process Clause by denying an accused a public trial. The Sixth Amendment, of course, links the rights of speedy and public adjudication, guaranteeing in one phrase 'a speedy and public trial.'
2
Records of the intent of its Framers are sparse. There is, for example, no account of the Senate debate, and the House deliberations give little indication of the Representatives' intent. See Note, The Right to a Speedy Trial, 20 Stan.L.Rev. 476, 484—485 (1968). Nonetheless, there appears to have been general agreement among the Framers that a speedy trial is essential to fundamental fairness. The principal opposition to the Clause was insignificant: it came from a Representative concerned lest trial be so speedy that an accused not have an opportunity to secure witnesses material to his defense. See 1 Annals of Cong. 756; F. Heller, The Sixth Amendment 31 (1951). The Framers seem clearly to have understood and valued the right in the context of its common-law antecedents. See the historical discussion in Klopfer, supra, at 223—226, 87 S.Ct. at 993—995.
3
See American Bar Association Project on Standards for Criminal Justice, Speedy Trial 10—11 (Approved Draft 1968); United States ex rel. Solomon v. Mancusi, 412 F.2d 88, 93 (C.A.2d Cir. 1969) (Feinberg, J., dissenting).
4
Delay may also occur during the appellate process or during collateral proceedings. I do not consider those situations here.
5
By 'indictment' I refer to the bringing of charges against a defendant, whether by information, indictment, or some analogous procedure.
6
See, e.g., Mann v. United States, 113 U.S.App.D.C. 27, 29 30, n. 4, 304 F.2d 394, 396—397, n. 4 (1962); United States v. Reed, 285 F.Supp. 738, 740 (D.C.D.C.1968); cf. Sanchez v. United States, 341 F.2d 225, 228 n. 3 (C.A.9th Cir. 1965).
7
At whatever point delay then occurs, the accused can suffer the penalties and disabilities of a prolonged prosecution. His stock of emotional and financial resources continues to be spent. His capacity to defend himself may be undermined. It is true that once trial has begun, or after one trial has been completed, he should have less difficulty in defending himself; but even then delay can result in the loss of witnesses or deterioration in the value of available testimony, and, of course, issues for which no preparation was previously made can arise with the passage of time. The government's ability to prove its case can also suffer from delay; even should a conviction be obtained, its deterrent value would be lessened by its distance from the offense. And if governmental delay is deliberate, intended to harm the accused, it strikes at the fairness of our criminal process.
8
See, e.g., People v. Jordan, 45 Cal.2d 697, 708, 290 P.2d 484, 491 (1955). Again, however, it can be argued that it is unrealistic for speedy-trial purposes to say that a man is not an 'accused' once the government has decided to prosecute him and has sufficient evidence to move against him, or that his 'prosecution' does not begin at that time.
9
The government may delay for a variety of reasons, e.g., to gain time in which to stengthen and document its case while the potential defendant remains unaware, or in the hope that the passage of time will deny him certain witnesses or evidence. The government may also delay, not with a view to ensuring the conviction of the accused, but to use the threat of his trial to coerce him into assisting police operations or becoming a prosecution witness in other cases. Delay, of course, may also result because the government lacks sufficient resources to move more quickly or because it negligently fails to act. When delay is not the result of an intentional attempt to strengthen the government's case. it will very likely make more difficult proof of the accused's guilt.
10
Such a person is in much the same position as an accused imprisoned in one jurisdiction who is unaware that another jurisdiction has formal charge outstanding against him. The latter has been held to have the protection of the Speedy Trial Clause, e.g., Fouts v. United States, 253 F.2d 215, 218 (C.A.6th Cir. 1958).
11
This would not necessarily mean that the government should be denied broad discretion to determine that its evidence is insufficient to make worthwhile an arrest or indictment, or that it may not have legitimate reasons for delay other than insufficient evidence; moderate delay necessary for law enforcement operations, such as the completion of undercover work involving a number of suspects, may be compatible with the Speedy Trial Clause. And, of course, the question whether, after an accused has been arrested or indicted, he may challenge prior governmental delay is wholly distinct from the question whether before arrest or indictment he may bring an action to compel the government to begin formal proceedings against him.
12
Four factors—length of the delay, the reason for it, prejudice to the defendant caused by it, and waiver by the accused of speedy trial—are often mentioned as the determinants of reasonableness. See, e.g., United States v. Simmons, 338 F.2d 804, 807 (C.A.2d Cir.1964). The length of the delay, however, appears to be significant principally as it affects the legitimacy of the reasons for delay and the likelihood that it had prejudicial effects, and waiver by the accused seems relevant primarily to the source of the delay.
13
See the cases cited in Note, The Lagging Right to a Speedy Trial, 51 Va.L.Rev. 1587, 1598—1599 (1965).
14
But see the rejection by some States of the view that the right to speedy trial can be lost by silence or inaction. Representative cases are cited in 51 Va.L.Rev., supra, n. 13, at 1604 n. 87.
15
For elaboration of the 'demand' rule, see generally Note, The Right to a Speedy Criminal Trial, 57 Col.L.Rev. 846, 852—855 (1957); 51 Va.L.Rev., supra, n. 13, at 1601—1609.
16
The defendant in any event, cannot force the beginning of his trial, even if he takes affirmative steps to that end. The present case provides a striking instance of the fact. The government, on the other hand, can and does set the case for trial. Thus, constitutional right aside, the government might reasonably bear the burden of going forward with the trial since it alone has the ultimate capacity to do so. The burden, moreover, might reasonably fall on the government since the prosecutor is the initiating party in criminal proceedings. Cf. Fed.Rule Civ.Proc. 41(b) (dismissal for failure to prosecute by the plaintiff).
17
It has been held that negligent delay violates the Speedy Trial Clause, Hanrahan v. United States, 121 U.S.App.D.C. 134, 139, 348 F.2d 363, 368 (1965); United States v. Reed, 285 F.Supp. 738, 741 (D.C.D.C.1968). Cf. Fed.Rule Crim.Proc. 48(b) which gives the federal courts discretion to dismiss an indictment if there has been 'unnecessary' delay in prosecution.
18
As the court stated in King v. United States, 105 U.S.App.D.C. 193, 195, 265 F.2d 567, 569 (1959), '(C)ases have to take their turn. The case on trial is entitled to deliberate consideration; the others on the calendar stack up. At the same time, too much heed to practicalities may encroach upon the individual's rights. If the legislature were to refuse to install sufficient judicial machinery to perform the judicial tasks, it might be necessary to turn some accused persons loose.'
19
See the cases cited in 20 Stan.L.Rev., supra, n. 2, at 494—495.
20
We have indicated that 'there are some constitutional rights (such as assistance of counsel during trial) so basic to a fair trial that their infraction can never be treated as harmless error.' Chapman, supra, at 23, 87 S.Ct. at 827. The same may be true of prosecutorial delays of great length. Cf. United States v. Chase, 135 F.Supp. 230, 233 (D.C.N.D.Ill.1955).
21
For example, less than average delay might give rise to the probability of prejudice in cases where the evidence consists of the testimony of a few witnesses, as opposed to documentary evidence. See the discussion in 20 Stan.L.Rev., supra, n. 2, at 499—500.
22
The government might appropriately bear this burden, since it, far more than the defendant, is likely to know why the delay took place. Courts below, however, have generally required the defendant to show that the delay was unnecessary, e.g., Schlinsky v. United States, 379 F.2d 735, 737 (C.A.1st Cir. 1967).
| 01
|
398 U.S. 71
90 S.Ct. 1563
26 L.Ed.2d 54
William MONKS, Petitioner,v.State of NEW JERSEY.
No. 127.
Argued Feb. 26, 1970.
Decided May 25, 1970.
Anthony G. Amsterdam, Stanford, Cal., for petitioner.
Archibald Kreiger, Paterson, N.J., for respondent.
PER CURIAM.
1
Having scrutinized the record and considered the briefs and oral arguments submitted on both sides, we are satisfied that petitioner's claim of coercion respecting his confession, given by him over 12 years ago upon his apprehension as an alleged juvenile delinquent, does not merit the plenary review that we thought it might deserve at the time petitioner's pro se petition for certiorari was granted. 395 U.S. 903, 89 S.Ct. 1754, 23 L.Ed.2d 216. The other claims tendered in such petition fare no better.
2
The further claim advanced by petitioner's appointed counsel in this Court respecting the alleged unconstitutional application of N.J.Stat.Ann. § 2A:4—37(b) has been raised for the first time upon this writ and the state courts have had no opportunity to pass upon it.
3
Accordingly we conclude that the writ of certiorari should be dismissed as improvidently granted, without prejudice to any further appropriate proceedings below.
4
Writ dismissed.
5
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS joins, dissenting.
6
Petitioner, a 15-year-old boy, was arrested at 1 o'clock in the morning of February 16, 1957, removed to the police station, and questioned by detectives for several hours about two purse-snatching incidents. He was then held in confinement in the Children's Shelter for 10 days during which time he was questioned at least three times by two detectives in the presence of a juvenile probation officer. Further questioning began on other crimes including two murders in the same area as the purse snatchings.
7
During the entire 10-day period this 15-year-old boy was without advice of his parents, lawyer, or friends. Indeed, his mother first learned he was in custody after he confessed to the two murders. During the entire 10-day period petitioner was never told he had a right to remain silent, or to refuse to answer the questions by the two detectives.
8
The end came on February 26, 1957. Petitioner arose at 7 o'clock in the morning, questioning began at 10 o'clock and continued off and on for 15 hours before the confession was typed. During this period he was moved from the Children's Shelter to the courthouse, the grand jury room, and an adjacent room. He was given several lie-detector tests and confronted with alleged witnesses. He had no sleep. He was given sandwiches for his lunch and dinner.
9
Certainly, such treatment so clearly violates the holdings of Haley v Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); and Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968), as to require a reversal in this case.
| 01
|
398 U.S. 58
90 S.Ct. 1555
26 L.Ed.2d 44
Daniel Jay SCHACHT, Petitioner,v.UNITED STATES.
No. 628.
Argued March 31, 1970.
Decided May 25, 1970.
David H. Berg, Houston, Tex., for petitioner, pro hac vice, by special leave of Court.
Solicitor Gen. Erwin N. Griswold for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The petitioner, Daniel Jay Schacht, was indicted in a United States District Court for violating 18 U.S.C. § 702, which makes it a crime for any person 'without authority (to wear) the uniform or a distinctive part thereof * * * of any of the armed forces of the United States, * * *'1 He was tried and convicted by a jury, and on February 29, 1968, he was sentenced to pay a fine of $250 and to serve a six-month prison term, the maximum sentence allowable under 18 U.S.C. § 702. There is no doubt that Schacht did wear distinctive parts of the uniform of the United States Army2 and that he was not a member of the Armed Forces. He has defended his conduct since the beginning, however, on the ground that he was authorized to wear the uniform by an Act of Congress, 10 U.S.C. § 772(f), which provides as follows:
2
'When wearing by persons not on active duty authorized.
3
'(f) While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.' (Emphasis added.)
4
Schacht argued in the trial court and in this Court that he wore the army uniform as an 'actor' in a 'theatrical production' performed several times between 6:30 and 8:30 a.m. on December 4, 1967, in front of the Armed Forces Induction Center at Houston, Texas. The street skit in which Schacht wore the army uniform as a costume was designed, in his view, to expose the evil of the American presence in Vietnam and was part of a larger, peaceful antiwar demonstration at the induction center that morning. The Court of Appeals' opinion affirming the conviction summarized the facts surrounding the skit as follows:
5
'The evidence indicates that the demonstration in Houston was part of a nationally coordinated movement which was to take place contemporaneously at several places throughout the country. The appellants and their colleagues prepared a script to be followed at the induction center and they actually rehearsed their roles at least once prior to the appointed day before a student organization called the 'Humanists'.
6
'The skit was composed of three people. There was Schacht who was dressed in a uniform and cap. A second person was wearing 'military colored' coveralls. The third person was outfitted in typical Viet Cong apparel. The First two men carried water pistols. One of them would yell, 'Be an able American,' and then they would shoot the Viet Cong with their pistols. The pistols expelled a red liquid which, when it struck the victim, created the impression that he was bleeding. Once the victim fell down the other two would walk up to him and exclaim, 'My God, this is a pregnant woman.' Without noticeable variation this skit was reenacted several times during the morning of the demonstration.' 414 F.2d 630, 632.
7
* Our previous cases would seem to make it clear that 18 U.S.C. § 702, making it an offense to wear our military uniforms without authority is, standing alone, a valid statute on its face. See, e.g., United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). But the general prohibition of 18 U.S.C. § 702 cannot always stand alone in view of 10 U.S.C. § 772, which authorizes the wearing of military uniforms under certain conditions and circumstances including the circumstance of an actor portraying a member of the armed services in a 'theatrical production.' 10 U.S.C. § 772(f). The Government's argument in this case seems to imply that somehow what these amateur actors did in Houston should not be treated as a 'theatrical production' within the meaning of § 772(f). We are unable to follow such a suggestion. Certainly theatrical productions need not always be performed in buildings or even on a defined area and as a conventional stage. Nor need they be performed by professional actors or be heavily financed or elaborately produced. Since time immemorial, outdoor theatrical performances, often performed by amateurs, have played an important part in the entertainment and the education of the people of the world. Here, the record shows without dispute the preparation and repeated presentation by amateur actors of a short play designed to create in the audience an understanding of and opposition to our participation in the Vietnam war. Supra, at 60 and this page. It may be that the performances were crude and amateurish and perhaps unappealing, but the same thing can be said about many theatrical performances. We cannot believe that when Congress wrote out a special exception for theatrical productions it intended to protect only a narrow and limited category of professionally produced plays.3 Of course, we need not decide here all the questions concerning what is and what is not within the scope of § 772(f). We need only find, as we emphatically do, that the street skit in which Schacht participated was a 'theatrical production' within the meaning of that section.
8
This brings us to petitioner's complaint that giving force and effect to the last clause of § 772(f) would impose an unconstitutional restraint on his right of free speech. We agree. This clause on its face simply restricts § 772(f)'s authorization to those dramatic portrayals that do not 'tend to discredit' the military, but, when this restriction is read together with 18 U.S.C. § 702, it becomes clear that Congress has in effect made it a crime for an actor wearing a military uniform to say things during his performance critical of the conduct or policies of the Armed Forces. An actor, like everyone else in our country, enjoys a constitutional right to freedom of speech, including the right openly to criticize the Government during a dramatic performance. The last clause of § 772(f) denies this constitutional right to an actor who is wearing a military uniform by making it a crime for him to say things that tend to bring the military into discredit and disrepute. In the present case Schacht was free to participate in any skit at the demonstration that praised the Army, but under the final clause of § 772(f) he could be convicted of a federal offense if his portrayal attacked the Army instead of praising it. In light of our earlier finding that the skit in which Schacht participated was a 'theatrical production' within the meaning of § 772(f), it follows that his conviction can be sustained only if he can be punished for speaking out against the role of our Army and our country in Vietnam. Clearly punishment for this reason would be an unconstitutional abridgment of freedom of speech. The final clause of § 772(f), which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment. To preserve the constitutionality of § 772(f) that final clause must be stricken from the section.
II
9
The Government's brief and argument seriously contend that this Court is without jurisdiction to consider and decide the merits of this case on the ground that the petition for certiorari was not timely filed under Rule 22(2) of the Rules of this Court. This Rule provides that a petition for certiorari to review a court of appeals' judgment in a criminal case 'shall be deemed in time when * * * filed with the clerk within thirty days after the entry of such judgment.' We cannot accept the view that this time requirement is jurisdictional and cannot be waived by the Court. Rule 22(2) contains no language that calls for so harsh an interpretation, and it must be remembered that this rule was not enacted by Congress but was promulgated by this Court under authority of Congress to prescribe rules concerning the time limitations for taking appeals and applying for certiorari in criminal cases. See 18 U.S.C. § 3772; Rule 37, Fed.Rules Crim.Proc. The procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion when the ends of justice so require. This discretion has been expressly declared in several opinions of the Court. See Taglianetti v. United States, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302, n. 1 (1969); Heflin v. United States, 358 U.S. 415, 418, 79 S.Ct. 451, 453, 3 L.Ed.2d 407, n. 7 (1959). See also R. Stern & E. Gressman, Supreme Court Practice, 242—244 (4th ed. 1969), and the cases cited therein. It is true that the Taglianetti and Heflin cases dealt with this time question only in footnotes. But this is no reason to disregard their holdings and in fact indicates the Court deemed a footnote adequate treatment to give this issue.
10
When the petition for certiorari was filed in this case it was accompanied by a motion, supported by affidavits, asking that we grant certiorari despite the fact that the petition was filed 101 days after the appropriate period for filing the petition had expired. Affidavits filed with the motion, not denied or challenged by the Government present facts showing that petitioner had acted in good faith and that the delay in filing the petition for certiorari was brought about by circumstances largely beyond his control. Without detailing these circumstances, it is sufficient to note here that after consideration of the motion and affidavits this Court on December 15, 1969, granted the motion, three Justices dissenting. The decision of this Court waiving the time defect and permitting the untimely filing of the petition was thus made several months ago, and no new facts warranting a reconsideration of that decision have been presented to us.
11
For the reasons stated in Parts I and II of this opinion, the judgment of the Court of Appeals is reversed.
12
Reversed.
13
Mr. Justice HARLAN, concurring.
14
I join Part I of the Court's opinion. With respect to Part II, I agree with the Court's rejection of the Government's 'jurisdictional' contention premised on the untimely filing of the petition for certiorari. In my view, however, that contention deserves fuller consideration than has been accorded it in the Court's opinion.
15
* The Court's opinion does not fully come to grips with the Solicitor General's position. The Court rejects the argument that untimeliness under Rule 22(2) should be given jurisdictional effect by stating, in part, that the Rule 'contains no language that calls for so harsh an interpretation.' In this regard, however, the time limitation found in Rule 22(2) is no different from those established by statute;1 neither makes explicit reference to waivers of the limitation. In the absence of language providing for waiver, we have without exception treated the statutory limitations as jurisdictional.2 The Solicitor General asks why we should not do the same under our Rule. This issue, i.e., why we treat time requirements under our Rule differently from the requirements imposed by statute, is hardly acknowledged in the Court's opinion. Moreover, although it is true that Taglianetti v. United States, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302, n. 1 (1969), and Heflin v. United States, 358 U.S. 415, 418, 79 S.Ct. 451, 453, 3 L.Ed.2d 407, n. 7 (1959), held that the Court could waive untimeliness under our Rule, neither opinion explained why this is so. The Solicitor General does not belittle those two cases merely because each dealt with the problem in a footnote, but rather urges that they are inconclusive because neither gave reasons for the conclusion.3
II
16
My own analysis of the issue presented here begins with an examination of the statutory authority for Rule 22(2). This is found in what is now 18 U.S.C. § 3772,4 a provision authorizing this Court to prescribe post-verdict rules of practice and procedure in criminal cases. Section 3772 specifically delegates to this Court the power to promulgate rules prescribing 'the times for and manner of taking appeals (to the Courts of Appeals) and applying for writs of certiorari * * *.' While the legislative history of this provision evinces a congressional concern over undue delays in the disposition of criminal cases,5 the board terms of the statutory language, as well as what was written in the committee reports,6 convince me that Congress' purpose was to give this Court the freedom to decide what time limits should apply.
17
Under the unqualified delegation found in § 3772, I have no doubts concerning this Court's authority to promulgate a rule that required certiorari petitions to be filed within 30 days of the judgment below but that expressly provided that this requirement could be waived for good cause shown, in order to avoid unfairness in extraordinary cases. I also think the Court might promulgate a rule that expressly provided that untimeliness could not be waived even for 'excusable neglect'—in other words a 'jurisdictional rule.'7
18
Rule 22(2), as promulgated, contains no express provision allowing for waiver. It is clear from prior decisions that the Court has interpreted the rule to allow for such a waiver, however.8 So interpreted, I find Rule 22(2) no less authorized under 18 U.S.C. § 3772 than would be a rule that by its terms provided expressly for the possibility of a waiver.
19
Nor do I find it at all anomalous that this Court on occasion waives the time limitations imposed by its own Rules and yet treats time requirements imposed by statute as jurisdictional. As a matter of statutory interpretation, the Court has not presumed the right to extend time limits specified in statutes where there is no indication of a congressional purpose to authorize the Court to do so. Because we cannot 'waive' congressional enactments, the statutory time limits are treated as jurisdictional. On the other hand, for the time requirement of Rule 22(2), established under a broad statutory delegation, it is appropriate to apply the 'general principle' that "(i)t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it," American Farm Lines v. Black Ball, 397 U.S. 532, 539, 90 S.Ct. 1288, 1292, 25 L.Ed.2d 547 (1970), quoting from N.L.R.B. v. Monsanto Chemical Co., 205 F.2d 763, 764 (C.A.8th Cir. 1953).
III
20
Although I therefore conclude that this Court possesses the discretion to waive the time requirements of Rule 22(2), it must be recognized that such requirements are essential to an orderly appellate process. Consequently, I believe our discretion must be exercised sparingly, and only when an adequate reason exists to excuse noncompliance with our Rules. In the present case, I agree with the Court that petitioner has adequately explained why he failed to meet our time requirements. On this basis I concur in Part II of the Court's opinion.
21
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, concurring in the result.
22
I agree that Congress cannot constitutionally distinguish between those theatrical performances that do and those that do not 'tend to discredit' the military, in authorizing persons not on active duty to wear a uniform. I do not agree, however, with the Court's conclusion that as a matter of law petitioner must be found to have been engaged in a 'theatrical production' within the meaning of 10 U.S.C. § 772(f). That issue, it seems to me, is properly left to the determination of the jury.
23
The United States has argued that the exception for 'theatrical productions' must be limited to performances in a setting equivalent to a playhouse or theater where observers will necessarily be aware that they are watching a make-believe performance. Under this interpretation, the Government suggests, petitioner must be found as a matter of law not to have been engaged in a 'theatrical production'; hence, his conviction for unauthorized wearing of the uniform is lawful without regard to the validity of the 'tend to discredit' proviso to § 772(f). The Court, on the other hand while refusing to assay a definition of the statutory language, flatly declares that under any interpretation, Congress could not possibly have meant to exclude petitioner's 'street skit' from the class of 'theatrical productions.' Neither extreme, in my view, is correct. The critical question in deciding what is to count as a 'theatrical production' ought to be whether or not, considering all the circumstances of the performance, an ordinary observer would have thought he was seeing a fictitious portrayal rather than a piece of reality. And, although the judge's instructions here did not precisely reflect this interpretation, this question seems eminently suited to resolution by the jury.
24
Under proper instructions, then, a jury could have concluded that no theatrical production was involved, in which case the verdict should be sustained. However, the judge's instructions also permitted conviction on a finding that petitioner was engaged in a theatrical production, but that the production tended to discredit the military. See App. 51—54. Since the general verdict does not disclose which of these findings—only one of which can constitutionally entail conviction—was the actual finding, the conviction must of course be reversed. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). I thus join the judgment of reversal but find it neither necessary nor correct to hold that petitioner's 'theatrics' performance amounted to a 'theatrical production.'
1
Title 18 U.S.C. § 702 provides as follows:
'Whoever, in any place within the jurisdiction of the United States or in the Canal Zone, without authority, wears the uniform or a distinctive part thereof or anything similar to a distinctive part of the uniform of any of the armed forces of the United States, Public Health Service or any auxiliary of such, shall be fined not more than $250 or imprisoned not more than six months, or both.'
2
Schacht wore a blouse of the type currently authorized for Army enlisted men with a shoulder patch designating service in Europe. The buttons on his blouse were of the official Army design. On his head Schacht wore an outmoded military hat. Affixed to the hat in an inverted position was the eagle insignia currently worn on the hats of Army officers.
3
The precise language of 10 U.S.C. § 772(f) derives from the 1956 revision of Titles 10 and 32, which was undertaken for the purpose of combining laws affecting the Armed Forces, eliminating duplicate provisions, and clarifying statutory language. At that time the phrase 'actor in a theatrical or motion-picture production' was substituted for the previous phrase 'in any playhouse or theater or in moving-picture films while actually engaged in representing therein a military * * * character * * *.' 39 Stat. 216—217. Although the 1956 revision and codification were not in general intended to make substantive changes, changes were made for the purpose of clarifying and updating language. The shift to the present version of § 772(f) clearly reflects an intent to move to broader, more flexible language which, for example, would include television as well as other types of theatrical productions wherever presented. H.R.Rep. No. 970, 84th Cong., 1st Sess., 8; Statements of Senators O'Mahoney and Wiley, 102 Cong.Rec. 13944, 13953 (July 23, 1956).
1
Compare Rule 22(2) with, e.g., 28 U.S.C. §§ 2101(b), (c). Both the Rule and this statute provide for limited extensions of time. There was, however, no extension in the case before us.
2
E.g., Matton Steamboat Co., Inc. v. Murphy, 319 U.S. 412, 63 S.Ct. 1126, 87 L.Ed. 1483 (1943); Department of Banking, State of Nebraska v. Pink, 317 U.S. 264, 63 S.Ct. 233, 87 L.Ed. 254 (1942); Citizens Bank v. Opperman, 294 U.S. 448, 39 S.Ct. 330, 63 L.Ed. 701 (1919).
3
The Government relies on language in United States ex rel. Coy v. United States, 316 U.S. 342, 62 S.Ct. 1137, 86 L.Ed. 1517 (1942), a case not cited by the Court, as support for its claim that the 30-day limit established by rule was 'jurisdictional.' The issue in that case was which time limit—the 30-day limit imposed by what was then Rule XI or instead the 90-day limit of the general statutory provision—applied to a petition for certiorari for review of a circuit court affirmance of a district court denial of a motion to correct sentence in a criminal case. After noting that the petition was filed more than 30 days after the judgment of the Court of Appeals, the Court said: 'If the judgment of the Court of Appeals is one to which Rule XI applies, the petition for certiorari was filed too late and we are without jurisdiction,' Id., at 344, 62 S.Ct. at 1138. In disposing of the case, however, the opinion simply stated that the 'writ will * * * be dismissed for failure to comply with Rule XI,' id., at 346, 62 S.Ct. at 1139, not for want of jurisdiction. In any event, the Court in Coy did not focus on the issue of whether for good cause Rule XI might be waived, thereby removing a time limitation that otherwise might be termed jurisdictional.
4
18 U.S.C. § 3772 derives from 47 Stat. 904 (1933) and 48 Stat. 399 (1934). Before these enactments, certiorari in criminal cases was governed by the general three-month time limitation provided by § 8(a) of the Judiciary Act of February 13, 1925, 43 Stat. 940.
5
See H.R.Rep. No. 2047, 72d Cong., 2d Sess., 2 (1933); S.Rep. No. 257, 73d Cong., 2d Sess., 1 (1934).
6
See H.R.Rep. No. 2047, supra, at 2 ('A statutory code of procedure is not flexible; changes made desirable by experience can not be promptly made. The overwhelming weight of opinion among judges and lawyers is that matters of practice and procedure may better be controlled by rule than by statute.').
7
See United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960), where we held that under the Federal Rules of Criminal Procedure the Court of Appeals could not enlarge the time for filing an appeal even though it has found 'excusable neglect.' The Court thought, inter alia, that time extensions were inconsistent with the express language of Rule 45(b), and the 'deliberate intention' of its drafters.
In that case, the Court decided that the 'conflicting considerations' in favor of or against an 'excusable-neglect' provision should be 'resolved through the rule-making process and not by judicial decision,' given the rather clear indications from the language and background of the existing rule that the omission had been deliberate. Although the Government relies heavily on Robinson here, neither the language nor the background of Rule 22(2) indicates a 'deliberate intention' to preclude waiver.
8
See, e.g., Heflin v. United States, supra; Taglianetti v. United States, supra.
| 23
|
398 U.S. 73
90 S.Ct. 1722
26 L.Ed.2d 57
David L. DANIELv.Clara GOLIDAY et al.
No. 1211.
Supreme Court of the United States
May 25, 1970
PER CURIAM.
1
The court below has held that the Due Process Clause of the Fourteenth Amendment requires a State to provide a recipient of public welfare benefits with notice and a hearing prior to 'termination, suspension, or reduction' of benefits. This Court's subsequent decisions in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, and Wheeler v. Montgomery, 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2d 307, decided March 23, 1970, dealt only with termination and suspension, not reduction, of benefits. We think that the bearing of those decisions on the treatment of benefit reductions should be determined in the first instance by the District Court on a record developed by the parties with specific attention to that issue. Accordingly, the judgment is vacated and the case is remanded to the District Court for further proceedings in conformity with this opinion.
2
THE CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice STEWART dissent.
| 12
|
398 U.S. 262
90 S.Ct. 1578
26 L.Ed.2d 221
William L. MAXWELL, Petitioner,v.O. E. BISHOP, Superintendent, Arkansas State Penitentiary.
No. 13.
Reargued May 4, 1970.
Decided June 1, 1970.
Anthony G. Amsterdam, Stanford, Cal., for petitioner.
Don Langston, Little Rock, Ark., for respondent.
Albert W. Harris, Jr., San Francisco, Cal., for the State of California, as amicus curiae, by special leave of Court.
PER CURIAM.
1
In 1962 the petitioner was found guilty of rape by an Arkansas jury without a verdict of life imprisonment, and the trial court imposed a sentence of death.1 The Arkansas Supreme Court affirmed the judgment of conviction. 236 Ark. 694, 370 S.W.2d 113. The petitioner then sought a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas, claiming, among other things, that his conviction and punishment were unconstitutional in that (1) the jury had determined the two issues of guilt or innocence and of a life or death sentence in a single proceeding, thereby precluding him from presenting evidence pertinent to the question of penalty without subjecting himself to self-incrimination on the issue of guilt; and (2) the jury had been given no standards or directions of any kind to guide it is deciding whether to impose a sentence of life imprisonment or death. The District Court denied the writ, 257 F.Supp. 710, and the Court of Appeals for the Eighth Circuit affirmed, 398 F.2d 138. We granted certiorari limited to the two questions noted above. 393 U.S. 997, 89 S.Ct. 488, 21 L.Ed.2d 462.
2
The petitioner's trial took place long before this Court's decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The trial transcript makes evident that several prospective jurors were removed from the panel upon grounds held impermissible in the Witherspoon case. One prospective juror, for example, was successfully challenged for cause solely on the basis of the following exchange:
3
'Q. If you were convinced beyond a reasonable doubt at the end of this trial that the defendant was guilty and that his actions had been so shocking that they would merit the death penalty do you have any conscientious scruples about capital punishment that might prevent you from returning such a verdict?
4
'A. I think I do.' (Emphasis supplied.)
5
Another venireman was removed from the jury panel on the basis of the following question and answer:
6
'Q. Do you entertain any conscientious scruples about imposing the death penalty?
7
'A. Yes, I am afraid I do.' Still another member of the panel was dismissed after the following colloquy:
8
'Q. Mr. Adams, do you have any feeling concerning capital punishment that would prevent you or make you have any feelings about returning a death sentence if you felt beyond a reasonable doubt that the defendant was guilty and that his crime was so bad as to merit the death sentence?
9
'A. No, I don't believe in capital punishment.' (Emphasis supplied.)2
10
As was made clear in Witherspoon, 'a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.' 391 U.S., at 522, 88 S.Ct. at 1777. We reaffirmed that doctrine in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433. As we there observed, it cannot be supposed that once such people take their oaths as jurors they will be unable 'to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.' 394 U.S., at 484, 89 S.Ct. at 1142. 'Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.' Witherspoon v. Illinois, supra, 391 U.S. at 516 n. 9, 88 S.Ct. at 1774 n. 9.
11
'The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out * * *.' Id., at 522 n. 21, 88 S.Ct. at 1777 n. 21.
12
It appears, therefore, that the sentence of death imposed upon the petitioner cannot constitutionally stand under Witherspoon v. Illinois. As in Boulden v. Holman, however, we do not finally decide that question here. The situation in this case closely resembles that presented in Boulden, in that the petitioner's trial took place before the Witherspoon decision, and the Witherspoon issue was not raised in the District Court, in the Court of Appeals, or in the petition for certiorari filed in this Court. The reasons that persuaded us to remand the Boulden case to the District Court apply with equal force here: 'A further hearing directed to the issue might conceivably modify in some fashion the conclusion so strongly suggested by the record now before us. Further, it is not clear whether the petitioner has exhausted his state remedies with respect to this issue. Finally, in the event it turns out, as now appears, that relief from this death sentence must be ordered, a local federal court will be far better equipped than are we to frame an appropriate decree with due regard to available (Arkansas) procedures.' 394 U.S., at 484, 89 S.Ct. at 1142.3
13
Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court, where the issue that has belatedly been brought to our attention may be fully considered. In the action we take today, we express no view whatever with respect to the two questions originally specified in our grant of certiorari.4
14
It is so ordered.
15
Judgment of Court of Appeals vacated and case remanded to the District Court.
16
Mr. Justice MARSHALL took no part in the decision of this case.
17
Mr. Justice BLACK, dissenting.
18
Since I am still of the view that Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), was erroneously decided, I dissent from the opinion of the Court in this case.
1
At the time of the petitioner's trial Arkansas law provided only two alternative sentences upon conviction for rape:
'Penalty for rape.—Any person convicted of the crime of rape shall suffer the punishment of death (or life imprisonment).' Ark.Stat.Ann. § 41—3403 (1964 Repl.Vol.).
'Capital cases—Verdict of life imprisonment.—The jury shall have the right in all cases where the punishment is now death by law, to render a verdict of life imprisonment in the State penitentiary at hard labor.' Ark.Stat.Ann. § 43—2153 (1964 Repl.Vol.).
2
The record shows possible violations of the Witherspoon rule in the removal from the venire of at least four other prospective jurors.
3
During oral argument of this case reference was made to the following Arkansas statute:
'Reduction of verdict.—The court shall have power, in all cases of conviction, to reduce the extent or duration of the punishment assessed by a jury, if, in the opinion of the court, the conviction is proper, and the punishment assessed is greater than, under the circumstances of the case, ought to be inflicted, so that the punishment be not, in any case, reduced below the limit prescribed by law in such cases.' Ark.Stat.Ann. § 43—2310 (1964 Repl.Vol.).
No effort was made by the petitioner to seek relief in the state courts under this statute. There is nothing in the record or otherwise reported to us to indicate that this remedy is not now available.
4
We have today granted certiorari in McGautha v. California, 398 U.S. 936, 90 S.Ct. 1846, 26 L.Ed.2d 267 and Crampton v. Ohio, 398 U.S. 936, 90 S.Ct. 1847, 26 L.Ed.2d 268, in which these two questions will be considered at an early date in the 1970 Term.
| 01
|
398 U.S. 235
90 S.Ct. 1583
26 L.Ed.2d 199
The BOYS MARKETS, INC., Petitioner,v.RETAIL CLERK'S UNION, LOCAL 770.
No. 768.
Argued April 21, 22, 1970.
Decided June 1, 1970.
[Syllabus from pages 235-236 intentionally omitted]
Joseph M. McLaughlin, Los Angeles, Cal., for petitioner.
Kenneth M. Schwartz, Los Angeles, Cal., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
In this case we re-examine the holding of Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962), that the anti-injunction provisions of the Norris-LaGuardia Act1 preclude a federal district court from enjoining a strike in breach of a no-strike obligation under a collectivebargaining agreement, even though that agreement contains provisions, enforceable under § 301(a) of the Labor Management Relations Act, 1947,2 for binding arbitration of the grievance dispute concerning which the strike was called. The Court of Appeals for the Ninth Circuit, considering itself bound by Sinclair reversed the grant by the District Court for the Central District of California of petitioner's prayer for injunctive relief. 416 F.2d 368 (1969). We granted certiorari. 396 U.S. 1000, 90 S.Ct. 572, 24 L.Ed.2d 492 (1970). Having concluded that Sinclair was erroneously decided and that subsequent events have undermined its continuing validity, we overrule that decision and reverse the judgment of the Court of Appeals.
2
* In February 1969, at the time of the incidents that produced this litigation, petitioner and respondent were parties to a collective-bargaining agreement which provided, inter alia, that all controversies concerning its interpretation or application should be resolved by adjustment and arbitration procedures set forth therein3 and that, during the life of the contract, there should be 'no cessation or stoppage of work, lock-out, picketing or boycotts * * *.'4 The dispute arose when petitioner's frozen foods supervisor and certain members of his crew who were not members of the bargaining unit began to rearrange merchandise in the frozen food cases of one of petitioner's supermarkets. A union representative insisted that the food cases be stripped of all merchandise and be restocked by union personnel. When petitioner did not accede to the union's demand, a strike was called and the union began to picket petitioner's establishment. Thereupon petitioner demanded that the union cease the work stoppage and picketing and sought to invoke the grievance and arbitration procedures specified in the contract.
3
The following day, since the strike had not been terminated, petitioner filed a complaint in California Superior Court seeking a temporary restraining order, a preliminary and permanent injunction, and specific performance of the contractual arbitration provision. The state court issued a temporary restraining order forbidding continuation of the strike and also an order to show cause why a preliminary injunction should not be granted. Shortly thereafter, the union removed the case to the Federal District Court and there made a motion to quash the state court's temporary restraining order. In opposition, petitioner moved for an order compelling arbitration and enjoining continuation of the strike. Concluding that the dispute was subject to arbitration under the collective-bargaining agreement and that the strike was in violation of the contract, the District Court ordered the parties to arbitrate the underlying dispute and simultaneously enjoined the strike, all picketing in the vicinity of petitioner's supermarket, and any attempts by the union to induce the employees to strike or to refuse to perform their services.
II
4
At the outset, we are met with respondent's contention that Sinclair ought not to be disturbed because the decision turned on a question of statutory construction which Congress can alter at any time. Since Congress has not modified our conclusions in Sinclair, even though it has been urged to do so,5 respondent argues that principles of stare decisis should govern the present case.
5
We do not agree that the doctrine of stare decisis bars a re-examination of Sinclair in the circumstances of this case. We fully recognize that important policy considerations militate in favor of continuity and predictability in the law. Nevertheless, as Mr. Justice Frankfurter wrote for the Court, '(S)tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.' Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604 (1940). See Swift & Co. v. Wickham, 382 U.S. 111, 116, 86 S.Ct. 258, 261, 15 L.Ed.2d 194 (1965). It is precisely because Sinclair stands as a significant departure from our otherwise consistent emphasis upon the congressional policy to promote the peaceful settlement of labor disputes through arbitration6 and our efforts to accommodate and harmonize this policy with those underlying the anti-injunction provisions of the Norris-LaGuardia Act7 that we believe Sinclair should be reconsidered. Furthermore, in light of developments subsequent to Sinclair, in particular our decision in Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), it has become clear that the Sinclair decision does not further but rather frustrates realization of an important goal of our national labor policy.
6
Nor can we agree that conclusive weight should be accorded to the failure of Congress to respond to Sinclair on the theory that congressional silence should be interpreted as acceptance of the decision. The Court has cautioned that '(i)t 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). Therefore, in the absence of any persuasive circumstances evidencing a clear design that congressional inaction be taken as acceptance of Sinclair, the mere silence of Congress is not a sufficient reason for refusing to reconsider the decision. Helvering v. Hallock, supra, 309 U.S. at 119—120, 60 S.Ct. at 451 452.
III
7
From the time Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912 (1957), was decided, we have frequently found it necessary to consider various substantive and procedural aspects of federal labor contract law and questions concerning its application in both state and federal courts. Lincoln Mills held generally that 'the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws,' 353 U.S., at 456, 77 S.Ct. at 918, and more specifically that a union can obtain specific performance of an employer's promise to arbitrate grievances. We rejected the contention that the anti-injunction proscriptions of the Norris-LaGuardia Act prohibited this type of relief, noting that a refusal to arbitrate was not 'part and parcel of the abuses against which the Act was aimed,' id., at 458, 77 S.Ct. at 918, and that the Act itself manifests a policy determination that arbitration should be encouraged. See 29 U.S.C. § 108.8 Subsequently in the Steelworkers Trilogy9 we emphasized the importance of arbitration as an instrument of federal policy for resolving disputes between labor and management and cautioned the lower courts against usurping the functions of the arbitrator.
8
Serious questions remained, however, concerning the role that state courts were to play in suits involving collective-bargaining agreements. Confronted with some of these problems in Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962), we held that Congress clearly intended not to disturb the pre-existing jurisdiction of the state courts over suits for violations of collective-bargaining agreements. We noted that the
9
'clear implication of the entire record of the congressional debates in both 1946 and 1947 is that the purpose of conferring jurisdiction upon the federal district courts was not to displace, but to supplement, the thoroughly considered jurisdiction of the courts of the various States over contracts made by labor organizations.' Id., at 511, 82 S.Ct. at 525.
10
Shortly after the decision in Dowd Box, we sustained, in Local 174, Teamsters, etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962), an award of damages by a state court to an employer for a breach by the union of a no-strike provision in its contract. While emphasizing that 'in enacting § 301 Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules,' id., at 104, 82 S.Ct. at 577, we did consider the applicability of the Norris-LaGuardia Act to state court proceedings because the employer's prayer for relief sought only damages and not specific performance of a no-strike obligation.
11
Subsequent to the decision in Sinclair, we held in Avco Corp. v. Aero Lodge 735, supra, that § 301(a) suits initially brought in state courts may be removed to the designated federal forum under the federal question removal jurisdiction delineated in 28 U.S.C. § 1441. In so holding, however, the Court expressly left open the questions whether state courts are bound by the anti-injunction proscriptions of the Norris-LaGuardia Act and whether federal courts, after removal of a § 301(a) action, are required to dissolve any injunctive relief previously granted by the state courts. See generally General Electric Co. v. Local Union 191, 413 F.2d 964 (C.A.5th Cir. 1969) (dissolution of state injunction required). Three Justices who concurred expressed the view that Sinclair should be reconsidered 'upon an appropriate future occasion.' 390 U.S., at 562, 88 S.Ct., at 1238 (Stewart, J., concurring).10
12
The decision in Avco, viewed in the context of Lincoln Mills and its progeny, has produced an anomalous situation which, in our view, makes urgent the reconsideration of Sinclair. The principal practical effect of Avco and Sinclair taken together is nothing less than to oust state courts of jurisdiction in § 301(a) suits where injunctive relief is sought for breach of a no-strike obligation. Union defendants can, as a matter of course, obtain removal to a federal court,11 and there is obviously a compelling incentive for them to do so in order to gain the advantage of the strictures upon injunctive relief which Sinclair imposes on federal courts. The sanctioning of this practice, however, is wholly inconsistent with our conclusion in Dowd Box that the congressional purpose embodied in § 301(a) was to supplement, and not to encroach upon, the pre-existing jurisdiction of the state courts.12 It is ironic indeed that the very provision that Congress clearly intended to provide additional remedies for breach of collective-bargaining agreements has been employed to displace previously existing state remedies. We are not at liberty thus to depart from the clearly expressed congressional policy to the contrary.
13
On the other hand, to the extent that widely disparate remedies theoretically remain available in state, as opposed to federal, courts, the federal policy of labor law uniformity elaborated in Lucas Flour Co., is seriously offended. This policy, of course, could hardly require, as a practical matter, that labor law be administered identically in all courts, for undoubtedly a certain diversity exists among the state and federal systems in matters of procedural and remedial detail, a fact that Congress evidently took into account in deciding not to disturb the traditional jurisdiction of the States. The injunction, however, is so important a remedial device, particularly in the arbitration context, that its availability or non-availability in various courts will not only produce rampant forum shopping and maneuvering from one court to another but will also greatly frustrate any relative uniformity in the enforcement of arbitration agreements.
14
Furthermore, the existing scheme, with the injunction remedy technically available in the state courts but rendered inefficacious by the removal device, assigns to removal proceedings a totally unintended function. While the underlying purposes of Congress in providing for federal question removal jurisdiction remain somewhat obscure,13 there has never been a serious contention that Congress intended that the removal mechanism be utilized to foreclose completely remedies otherwise available in the state courts. Although federal question removal jurisdiction may well have been intended to provide a forum for the protection of federal rights where such protection was deemed necessary or to encourage the development of expertise by the federal courts in the interpretation of federal law, there is no indication that Congress intended by the removal mechanism to effect a wholesale dislocation in the allocation of judicial business between the state and federal courts. Cf. City of Greenwood, Mis. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).
15
It is undoubtedly true that each of the foregoing objections to Sinclair-Avco could be remedied either by overruling Sinclair or by extending that decision to the States. While some commentators have suggested that the solution to the present unsatisfactory situation does lie in the extension of the Sinclair prohibition to state court proceedings,14 we agree with Chief Justice Traynor of the California Supreme Court that 'whether or not Congress could deprive state courts of the power to give such (injunctive) remedies when enforcing collective bargaining agreements, it has not attempted to do so either in the Norris-LaGuardia Act or section 301.' McCarroll v. Los Angeles County Dist. Council of Carpenters, 49 Cal.2d 45, 63, 315 P.2d 322, 332 (1957), cert. denied, 355 U.S. 932, 78 S.Ct. 413, 2 L.Ed.2d 415 (1958). See e.g., American Dredging Co. v. Local 25, Marine, 338 F.2d 837 (C.A.3d Cir. 1964), cert. denied, 380 U.S. 935, 85 S.Ct. 941, 13 L.Ed.2d 822 (1965); Shaw Electric Co. v. I.B.E.W., 418 Pa. 1, 208 A.2d 769 (1965).
16
An additional reason for not resolving the existing dilemma by extending Sinclair to the States is the devastating implications for the enforceability of arbitration agreements and their accompanying no-strike obligations if equitable remedies were not available.15 As we have previously indicated, a no-strike obligation, express or implied, is the quid pro quo for an undertaking by the employer to submit grievance disputes to the process of arbitration. See Textile Workers Union of America v. Lincoln Mills, supra, 353 U.S., at 455, 77 S.Ct. at 917.16 Any incentive for employers to enter into such an arrangement is necessarily dissipated if the principal and most expeditious method by which the no-strike obligation can be enforced is eliminated. While it is of course true, as respondent contends, that other avenues of redress, such as an action for damages, would remain open to an aggrieved employer, an award of damages after a dispute has been settled is no substitute for an immediate halt to an illegal strike. Furthermore, an action for damages prosecuted during or after a labor dispute would only tend to aggravate industrial strife and delay an early resolution of the difficulties between employer and union.17
17
Even if management is not encouraged by the unavailability of the injunction remedy to resist arbitration agreements, the fact remains that the effectiveness of such agreements would be greatly reduced if injunctive relief were withheld. Indeed, the very purpose of arbitration procedures is to provide a mechanism for the expeditious settlement of industrial disputes without resort to strikes, lockouts, or other self-help measures. This basic purpose is obviously largely undercut if there is no immediate, effective remedy for those very tactics that arbitration is designed to obviate. Thus, because Sinclair, in the aftermath of Avco, casts serious doubt upon the effective enforcement of a vital element of stable labor-menagement relations—arbitration agreements with their attendant no-strike obligations—we conclude that Sinclair does not make a viable contribution to federal labor policy.
IV
18
We have also determined that the dissenting opinion in Sinclair states the correct principles concerning the accommodation necessary between the seemingly absolute terms of the Norris-LaGuardia Act and the policy considerations underlying § 301(a).18 370 U.S., at 215, 82 S.Ct., at 1339. Although we need not repeat all that was there said, a few points should be emphasized at this time.
19
The literal terms of § 4 of the Norris-LaGuardia Act must be accommodated to the subsequently enacted provisions of § 301(a) of the Labor Management Relations Act and the purposes of arbitration. Statutory interpretation requires more than concentration upon isolated words; rather, consideration must be given to the total corpus of pertinent law and the policies that inspired ostensibly inconsistent provisions. See Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 592, 7 L.Ed.2d 492 (1962); Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956); United States v. Hutcheson, 312 U.S. 219, 235, 61 S.Ct. 463, 467, 85 L.Ed. 788 (1941).
20
The Norris-LaGuardia Act was responsive to a situation totally different from that which exists today. In the early part of this century, the federal courts generally were regarded as allies of management in its attempt to prevent the organization and strengthening of labor unions; and in this industrial struggle the injunction became a potent weapon that was wielded against the activities of labor groups.19 The result was a large number of sweeping decrees, often issued ex parte, drawn on an ad hoc basis without regard to any systematic elaboration of national labor policy. See Milk Wagon Drivers' Union, etc. v. Lake Valley Co., 311 U.S. 91, 102, 61 S.Ct. 122, 127, 85 L.Ed. 63 (1940).
21
In 1932 Congress attempted to bring some order out of the industrial chaos that had developed and to correct the abuses that had resulted from the interjection of the federal judiciary into union-management disputes on the behalf of management. See declaration of public policy, Norris-LaGuardia Act, § 2, 47 Stat. 70. Congress, therefore, determined initially to limit severely the power of the federal courts to issue injunctions 'in any case involving or growing out of any labor dispute * * *.' § 4, 47 Stat. 70. Even as initially enacted, however, the prohibition against federal injunctions was by no means absolute. See Norris-LaGuardia Act, §§ 7, 8, 9, 47 Stat. 71, 72. Shortly thereafter Congress passed the Wagner Act,20 designed to curb various management activities that tended to discourage employee participation in collective action.
22
As labor organizations grew in strength and developed toward maturity, congressional emphasis shifted from protection of the nascent labor movement to the encouragement of collective bargaining and to administrative techniques for the peaceful resolution of industrial disputes. This shift in emphasis was accomplished, however, without extensive revision of many of the older enactments, including the anti-injunction section of the Norris-LaGuardia Act. Thus it became the task of the courts to accommodate, to reconcile the older statutes with the more recent ones.
23
A leading example of this accommodation process is Brotherhood of Railroad Trainmen v. Chicago River & Ind. R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957). There we were confronted with a peaceful strike which violated the statutory duty to arbitrate imposed by the Railway Labor Act. The Court concluded that a strike in violation of a statutory arbitration duty was not the type of situation to which the Norris-LaGuardia Act was responsive, that an important federal policy was involved in the peaceful settlement of disputes through the statutorily mandated arbitration procedure, that this important policy was imperiled if equitable remedies were not available to implement it, and hence that Norris-LaGuardia's policy of nonintervention by the federal courts should yield to the overriding interest in the successful implementation of the arbitration process.
24
The principles elaborated in Chicago River are equally applicable to the present case. To be sure, Chicago River involved arbitration procedures established by statute. However, we have frequently noted, in such cases as Lincoln Mills, the Steelworkers Trilogy, and Lucas Flour, the importance that Congress has attached generally to the voluntary settlement of labor disputes without resort to self-help and more particularly to arbitration as a means to this end. Indeed, it has been stated that Lincoln Mills, in its exposition of § 301(a), 'went a long way towards making arbitration the central institution in the administration of collective bargaining contracts.'21
25
The Sinclair decision, however, seriously undermined the effectiveness of the arbitration technique as a method peacefully to resolve industrial disputes without resort to strikes, lockouts, and similar devices. Clearly employers will be wary of assuming obligations to arbitrate specifically enforceable against them when no similarly efficacious remedy is available to enforce the concomitant undertaking of the union to refrain from striking. On the other hand, the central purpose of the Norris-LaGuardia Act to foster the growth and viability of labor organizations is hardly retarded—if anything, this goal is advanced—by a remedial device that merely enforces the obligation that the union freely undertook under a specifically enforceable agreement to submit disputes to arbitration.22 We conclude, therefore, that the unavailability of equitable relief in the arbitration context presents a serious impediment to the congressional policy favoring the voluntary establishment of a mechanism for the peaceful resolution of labor disputes, that the core purpose of the Norris-LaGuardia Act is not sacrificed by the limited use of equitable remedies to further this important policy, and consequently that the Norris-LaGuardia Act does not bar the granting of injunctive relief in the circumstances of the instant case.
V
26
Our holding in the present case is a narrow one. We do not undermine the vitality of the Norris-LaGuardia Act. We deal only with the situation in which a collective-bargaining contract contains a mandatory grievance adjustment or arbitration procedure. Nor does it follow from what we have said that injunctive relief is appropriate as a matter of course in every case of a strike over an arbitrable grievance. The dissenting opinion in Sinclair suggested the following principles for the guidance of the district courts in determining whether to grant injunctive relief—principles that we now adopt:
27
'A District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity—whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance.' 370 U.S., at 228, 82 S.Ct., at 1346. (Emphasis in original.)
28
In the present case there is no dispute that the grievance in question was subject to adjustment and arbitration under the collective-bargaining agreement and that the petitioner was ready to proceed with arbitration at the time an injunction against the strike was sought and obtained. The District Court also concluded that, by reason of respondent's violations of its no-strike obligation, petitioner 'has suffered irreparable injury and will continue to suffer irreparable injury.' Since we now overrule Sinclair, the holding of the Court of Appeals in reliance on Sinclair must be reversed. Accordingly, we reverse the judgment of the Court of Appeals and remand the case with directions to enter a judgment affirming the order of the District Court.
29
It is so ordered.
30
Judgment of Court of Appeals reversed and case remanded with directions.
31
Mr. Justice MARSHALL took no part in the decision of this case.
32
Mr. Justice STEWART, concurring.
33
When Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440, was decided in 1962, I subscribed to the opinion of the Court. Before six years had passed I had reached the conclusion that the Sinclair holding should be reconsidered, and said so in Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 562, 88 S.Ct. 1235, 1238, 20 L.Ed.2d 126 (concurring opinion). Today I join the Court in concluding 'that Sinclair was erroneously decided and that subsequent events have undermined its continuing validity * * *.'
34
In these circumstances the temptation is strong to embark upon a lengthy personal apologia. But since Mr. Justice BRENNAN has so clearly stated my present views in his opinion for the Court today, I simply join in that opinion and in the Court's judgment. An aphorism of Mr. Justice Frankfurter provides me refuge: 'Wisdom too often never comes, and so one ought not to reject it merely because it comes late.' Henslee v. Union Planters Bank, 335 U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259 (dissenting opinion).
35
Mr. Justice BLACK, dissenting.
36
Congress in 1932 enacted the Norris-LaGuardia Act, § 4 of which, 29 U.S.C. § 104, with exceptions not here relevant, specifically prohibited federal courts in the broadest and most comprehensive language from issuing any injunctions, temporary or permanent, against participation in a labor dispute. Subsequently, in 1947, Congress gave jurisdiction to the federal courts in '(s) uits for violation of contracts between an employer and a labor organization.' Although this subsection, § 301(a) of the Taft-Hartley Act, 29 U.S.C. § 185(a), explicitly waives the diversity and amount-in-controversy requirements for federal jurisdiction, it says nothing at all about granting injunctions. Eight years ago this Court considered the relation of these two statutes: after full briefing and argument, relying on the language and history of the Acts, the Court decided that Congress did not wish this later statute to impair in any way Norris-LaGuardia's explicit prohibition against injunctions in labor disputes. Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962).
37
Although Congress has been urged to overrule our holding in Sinclair, it has steadfastly refused to do so. Nothing in the language or history of the two Acts has changed. Nothing at all has changed, in fact, except the membership of the Court and the personal views of one Justice. I remain of the opinion that Sinclair was correctly decided, and, moreover, that the prohibition of the Norris-LaGuardia Act is close to the heart of the entire federal system of labor regulation. In my view Sinclair should control the disposition of this case.
38
Even if the majority were correct, however, in saying that Sinclair misinterpreted the Taft-Hartley and Norris-LaGuardia Acts, I should be compelled to dissent. I believe that both the making and the changing of laws which affect the substantial rights of the people are primarily for Congress, not this Court. Most especially is this so when the laws involved are the focus of strongly held views of powerful but antagonistic political and economic interests. The Court's function in the application and interpretation of such laws must be carefully limited to avoid encroaching on the power of Congress to determine policies and make laws to carry them out.
39
When the Court implies that the doctrine called Stare decisis rests solely on 'important policy considerations * * * in favor of continuity and predictability in the law,' it does not tell the whole story. Such considerations are present and, in a field as delicate as labor relations, extremely important. Justice Brandeis said, dissenting in Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932):
40
'Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.'
41
In the ordinary case, considerations of certainty and the equal treatment of similarly situated litigants will provide a strong incentive to adhere to precedent.
42
When this Court is interpreting a statute, however, an additional factor must be weighed in the balance. It is the deference that this Court owes to the primary responsibility of the legislature in the making of laws. Of course, when this Court first interprets a statute, then the statute becomes what this court has said it is. See Gulf, C. & S.F.R. Co. v. Moser, 275 U.S. 133, 136, 48 S.Ct. 49, 50, 72 L.Ed. 200 (1927). Such an initial interpretation is proper, and unavoidable, in any system in which courts have the task of applying general statutes in a multitude of situations. B. Cardozo, The Nature of the Judicial Process 112 115 (1921). The Court undertakes the task of interpretation, however, not because the Court has any special ability to fathom the intent of Congress, but rather because interpretation is unavoidable in the decision of the case before it. When the law has been settled by an earlier case then any subsequent 'reinterpretation' of the statute is gratuitous and neither more nor less than an amendment: it is no different in effect from a judicial alteration of language that Congress itself placed in the statute.
43
Altering the important provisions of a statute is a legislative function. And the Constitution states simply and unequivocally: 'All legislative Powers herein granted shall be vested in a Congress of the United States * * *.' U.S.Const. Art. I. It is the Congress, not this Court, that responds to the presures of political groups, pressures entirely proper in a free society. It is Congress, not this Court, that has the capacity to investigate the divergent considerations involved in the management of a complex national labor policy. And it is Congress, not this Court, that is elected by the people. This Court should, therefore, interject itself as little as possible into the law-making and law-changing process. Having given our view on the meaning of a statute, our task is concluded, absent extraordinary circumstances. When the Court changes its mind years later, simply because the judges have changed, in my judgment, it takes upon itself the function of the legislature.
44
The legislative effect of the Court's reversal is especially clear here. In Sinclair the Court invited Congress to act if it should be displeased with the judicial interpretation of the statute. We said, 370 U.S., at 214—215, 82 S.Ct., at 1339:
45
'Strong arguments are made to us that it is highly desirable that the Norris-LaGuardia Act be changed in the public interest. If that is so, Congress itself might see fit to change that law and repeal the anti-injunction provisions of the Act insofar as suits for violation of collective agreements are concerned, as the House bill under consideration originally provided. It might, on the other hand, decide that if injunctions are necessary, the whole idea of enforcement of these agreements by private suits should be discarded in favor of enforcement through the administrative machinery of the Labor Board, as Senator Taft provided in his Senate bill. Or it might decide that neither of these methods is entirely satisfactory and turn instead to a completely new approach. The question of what change, if any, should be made in the existing law is one of legislative policy properly within the exclusive domain of Congress—it is a question for lawmakers, not law interpreters.'
46
Commentators on our holding found this invitation to legislative action clear, and judicial self-restraint proper. See Dunau, Three Problems in Labor Arbitration, 55 Va.L.Rev. 427, 464 465 (1969); Wellington & Albert, Statutory Interpretation and the Political Process: A Comment on Sinclair v. Atkinson, 72 Yale L.J. 1547, 1565—1566 (1963). Bills were introduced in Congress seeking to effect a legislative change. S. 3132, 89th Cong., 1st Sess. (1965); H.R. 9059, 89th Cong., 1st Sess. (1965). Congress, however, did not act, thus indicating at least a willingness to leave the law as Sinclair had construed it. It seems to me highly inappropriate for this Court now, eight years later, in effect to enact the amendment that Congress has refused to adopt. Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64 (1953); see also United States v. International Boxing Club of New York, Inc., 348 U.S. 236, 242—244, 75 S.Ct. 259, 262—263, 99 L.Ed. 290 (1955).
47
I do not believe that the principle of stare decisis forecloses all reconsiderations of earlier decisions. In the area of constitutional law, for example, where the only alternative to action by this Court is the laborious process of constitutional amendment and where the ultimate responsibility rests with this Court, I believe reconsideration is always proper. See James v. United States, 366 U.S. 213, 233—234, 81 S.Ct. 1052, 1062—1063, 6 L.Ed.2d 246 (1961) (separate opinion of Black, J.).* Even on statutory questions the appearance of new facts or changes in circumstances might warrant re-examination of past decisions in exceptional cases under exceptional circumstances. In the present situation there are no such circumstances. Congress has taken no action inconsistent with our decision in Sinclair. Girouard v. United States, 328 U.S. 61, 70, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946). And, although bills have been introduced, cf. Helvering v. Hallock, 309 U.S. 106, 119—120, 60 S.Ct. 444, 451—452, 84 L.Ed. 604 (1940), Congress has declined the invitation to act.
48
The only 'subsequent event' to which the Court can point is our decision in Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). The Court must recognize that the holding of Avco is in no way inconsistent with Sinclair. As we said in Avco, supra, at 561, 88 S.Ct., at 1237: 'The nature of the relief available after jurisdiction attaches is, of course, different from the question whether there is jurisdiction to adjudicate the controversy.' The Court contends, however, that the result of the two cases taken together is the 'anomalous situation' that no-strike clauses become unenforceable in state courts, and this is inconsistent with 'an important goal of our national labor policy.' Avco does make any effort to enforce a no-strike clause in a state court removable to a federal court, but it does not follow that the no-strike clause is unenforceable. Damages may be awarded; the union may be forced to arbitrate. And the employer may engage in self-help. The Court would have it that these techniques are less effective than an injunction. That is doubtless true. But the harshness and effectiveness of injunctive relief—and opposition to 'government by injunction'—were the precise reasons for the congressional prohibition in the Norris-LaGuardia Act. The effect of the Avco decision is, indeed, to highlight the limited remedial powers of federal courts. But if the Congress is unhappy with these powers as this Court defined them, then the Congress may act; this Court should not. The members of the majority have simply decided that they are more sensitive to the 'realization of an important goal of our national labor policy' than the Congress or their predecessors on this Court.
49
The correct interpretation of the Taft-Hartley Act, and even the goals of 'our national labor policy,' are less important than the proper division of functions between the branches of our Federal Government. The Court would do well to remember the words of John Adams, written in the Declaration of Rights in the Constitution of the Commonwealth of Massachusetts:
50
'The judicial (department) shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.'
51
I dissent.
52
Mr. Justice WHITE dissents for the reasons stated in the majority opinion in Sinclair Refining Co. v. Atkinso, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962).
1
'No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
'(a) Ceasing or refusing to perform any work or to remain in any relation of employment;
'(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;
'(f) Assembling peaceably to act or to organize to act in promotion of their interests in a labor dispute;
'(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified * * *.' § 4, 47 Stat. 70, 29 U.S.C. § 104.
2
'Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.' 61 Stat. 156, 29 U.S.C. § 185(a).
3
'ARTICLE XIV
'ADJUSTMENT AND ARBITRATION
'A. CONTROVERSY, DISPUTE OR DISAGREEMENT.
'Any and all matters of controversy, dispute or disagreement of any kind or character existing between the parties and arising out of or in any way involving the interpretation or application of the terms of this Agreement * * * (with certain exceptions not relevant to the instant case) shall be settled and resolved by the procedures and in the manner hereinafter set forth.
'B. ADJUSTMENT PROCEDURE.
'C. ARBITRATION.
'1. Any matter not satisfactorily settled or resolved in Paragraph B hereinabove shall be submitted to arbitration for final determination upon written demand of either party * * *.
'4. The arbitrator or board of arbitration shall be empowered to hear and determine the matter in question and the determination shall be final and binding upon the parties, subject only to their rights under law * * *.'
4
'D. POWERS, LIMITATIONS AND RESERVATIONS.
'2. Work Stoppages. Matters subject to the procedures of this Article shall be settled and resolved in the manner provided herein. During the term of this Agreement, there shall be no cessation or stoppage of work, lock-out, picketing or boycotts, except that this limitation shall not be binding upon either party hereto if the other party refuses to perform any obligation under this Article or refuses or fails to abide by, accept or perform a decision or award of an arbitrator or board.'
5
See, e.g., Report of Special Atkinson-Sinclair Committee, A.B.A. Labor Relations Law Section—Proceedings 226 (1963) (hereinafter cited as A.B.A. Sinclair Report).
6
See, e.g., United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).
7
See, e.g., Brotherhood of Railroad Trainmen v. Chicago River & Ind. R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957); Textile Workers Union v. Lincoln Mills, supra; cf. Graham v. Brotherhood of Locomotive Firemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22 (1949). See also United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941).
8
Section 108 provides:
'No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.'
See generally Brotherhood of Railroad Trainmen v. Toledo, Peoria, & W.R. Co., 321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534 (1944).
9
United Steelworkers of America v. American Mfg. Co., supra; United Steelworkers of America v. Warrior & Gulf Nav. Co., supra; United Steelworkers of America v. Enterprise Wheel & Car Corp., supra.
10
Shortly after Sinclair was decided, an erosive process began to weaken its underpinnings. Various authorities suggested methods of mitigating the absolute rigor of the Sinclair rule. For example, the Court of Appeals for the Fifth Circuit held that Sinclair does not prevent a federal district court from enforcing an arbitrator's order directing a union to terminate work stoppages in violation of a no-strike clause. New Orleans Steamship Assn. v. General Longshore Workers, 389 F.2d 369, cert. denied, 393 U.S. 828, 89 S.Ct. 92, 21 L.Ed.2d 99 (1968); see Pacific Maritime Assn. v. International Longshoremen's and Warehousemen's Union, 304 F.Supp. 1315 (D.C.N.D.Cal.1969). See generally Keene, The Supreme Court, Section 301 and No-Strike Clauses: From Lincoln Mills to Avco and Beyond, 15 Vill.L.Rev. 32 (1969).
11
Section 301(a) suits require neither the existence of diversity of citizenship nor a minimum jurisdictional amount in controversy. All § 301(a) suits may be removed pursuant to 28 U.S.C. § 1441.
12
The view that state court jurisdiction would not be disturbed by § 301(a) was perhaps most clearly articulated by Senator Ferguson, a spokesman for that provision, in a Senate debate in 1946:
'MR. FERGUSON. Mr. President, there is nothing whatever in the now-being-considered amendment which takes away from the State Courts all the present rights of the State courts to adjudicate the rights between parties in relation to labor agreements. The amendment merely says that the Federal courts shall have jurisdiction. It does not attempt to take away the jurisdiction of the State courts, and the mere fact that the Senator and I disagree does not change the effect of the amendment.
'MR. MURRAY. But it authorizes the employers to bring suit in the Federal courts, if they so desire.
'MR. FERGUSON. That is correct. That is all it does. It takes away no jurisdiction of the State courts.' 92 Cong.Rec. 5708.
13
The legislative history of the federal question removal provision is meager, but it has been suggested that its purpose was the same as original federal question jurisdiction, enacted at the same time in the Judiciary Act of 1875, 18 Stat. 470, namely, to protect federal rights, see H. Hart & H. Wechsler, The Federal Courts and the Federal System 727—733 (1953), and to provide a forum that could more accurately interpret federal law, see Mishkin, The Federal 'Question' in the District Courts, 53 Col.L.Rev. 157, 159 (1953). 113 U.Pa.L.Rev. 1096, 1098 and n. 17 (1965).
14
See, e.g., Bartosic, Injunctions and Section 301: The Patchwork of Avco and Philadelphia Marine on the Fabric of National Labor Policy, 69 Col.L.Rev. 980 (1969); Dunau, Three Problems in Labor Arbitration, 55 Va.L.Rev. 427 (1969).
15
It is true that about one-half of the States have enacted so-called 'little Norris-LaGuardia Acts' that place various restrictions upon the granting of injunctions by state courts in labor disputes. However, because many States do not bar injunctive relief for violations of collective-bargaining agreements, in only about 14 jurisdictions is there a significant Norris-LaGuardia-type prohibition against equitable remedies for breach of no-strike obligations. See Bartosic, supra, n. 14, at 1001—1006; Keene, supra, n. 10, at 49 and nn. 79, 80.
16
We held in Local 174, Teamsters, etc. v. Lucas Flour Co., supra, that, even in the absence of an express no-strike clause in the collective-bargaining contract, an agreement that certain disputes 'will be exclusively covered by compulsory terminal arbitration' (369 U.S., at 106, 82 S.Ct., at 578) gives rise to an implied promise by the union not to strike during the term of the contract in response to these arbitrable disputes. Id., at 104 106, 82 S.Ct., at 577—578. In the present case, there was an express no-strike clause in the union-management contract. See n. 4, supra.
17
As the neutral members of the A.B.A. committee on the problems raised by Sinclair noted in their report:
'Under existing laws, employers may maintain an action for damages resulting from a strike in breach of contract and may discipline the employees involved. In many cases, however, neither of these alternatives will be feasible. Discharge of the strikers is often inexpedient because of a lack of qualified replacements or because of the adverse effect on relationships within the plant. The damage remedy may also be unsatisfactory because the employer's losses are often hard to calculate and because the employer may hesitate to exacerbate relations with the union by bringing a damage action. Hence, injunctive relief will often be the only effective means by which to remedy the breach of the no-strike pledge and thus effectuate federal labor policy.' A.B.A. Sinclair Report 242.
18
Scholarly criticism of Sinclair has been sharp, and it appears to be almost universally recognized that Sinclair, particularly after Avco, has produced an untenable situation. The commentators are divided, however, with respect to proposed solutions, some favoring reconsideration of Sinclair, others suggesting extension of Sinclair to the States, and still others recommending that any action in this area be left to Congress. See generally Aaron, Strikes in Breach of Collective Agreements: Some Unanswered Questions, 63 Col.L.Rev. 1027 (1963); Aaron, The Labor Injunction Reappraised, 10 U.C.L.A.L.Rev. 292 (1963); Bartosic, supra, n. 14; Dunau, supra, n. 14; Keene, supra, n. 10; Kiernan, Availability of Injunctions Against Breaches of No-Strike Agreements in Labor Contracts, 32 Albany L.Rev. 303 (1968); Wellington, The No-Strike Clause and the Labor Injunction: Time for a Re-examination, 30 U.Pitt.L.Rev. 293 (1968); Wellington & Albert, Statutory Interpretation and the Political Process: A Comment on Sinclair v. Atkinson, 72 Yale L.J. 1547 (1963).
19
See generally F. Frankfurter & N. Greene, The Labor Injunction (1930).
20
National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S.C. § 151 Et seq.
21
Wellington & Albert, supra, n. 18, at 1557.
22
As well stated by the neutral members of the A.B.A. Sinclair committee:
'Any proposal which would subject unions to injunctive relief must take account of the Norris-LaGuardia Act and the opposition expressed in that Act to the issuing of injunctions in labor disputes. Nevertheless, the reasons behind the Norris-LaGuardia Act seem scarcely applicable to the situation * * * (in which a strike in violation of a collective-bargaining agreement is enjoined). The Act was passed primarily because of wide-spread dissatisfaction with the tendency of judges to enjoin concerted activities in accordance with 'doctrines of tort law which made the lawfulness of a strike depend upon judicial views of social and economic policy.' (Citation omitted.) Where an injunction is used against a strike in breach of contract, the union is not subjected in this fashion to judicially created limitations on its freedom of action but is simply compelled to comply with limitations to which it has previously agreed. Moreover, where the underlying dispute is arbitrable, the union is not deprived of any practicable means of pressing its claim but is only required to submit the dispute to the impartial tribunal that it has agreed to establish for this purpose.' A.B.A. Sinclair Report 242.
*
Other members of the Court have drawn the distinction between constitutional and statutory matters, and indicated that the correction of this Court's errors in statutory interpretation is best left to Congress. For example, Mr. Justice Douglas noted in dissent in Swift & Co. v. Wickham, 382 U.S. 111, 133—134, 86 S.Ct. 258, 271, 15 L.Ed.2d 194 (1965):
'An error in interpreting a federal statute may be easily remedied. If this Court has failed to perceive the intention of Congress, or has interpreted a statute in such a matter as to thwart the legislative purpose, Congress may change it. The lessons of experience are not learned by judges alone.'
See also United Gas Improvement Co. v. Continental Oil Co., 381 U.S. 392, 406, 85 S.Ct. 1517, 1525, 14 L.Ed.2d 466 (1965) (Douglas, J., dissenting). Apparently, however, some members of the Court are willing to give greater weight to state decisis in constitutional than in statutory matters. See, e.g., Orozco v. Texas, 394 U.S. 324, 327—328, 89 S.Ct. 1095, 1097—1098, 22 L.Ed.2d 311 (1969) (Harlan, J., concurring).
| 67
|
398 U.S. 144
90 S.Ct. 1598
26 L.Ed.2d 142
Sandra ADICKES, Petitioner,v.S. H. KRESS & COMPANY.
No. 79.
Argued Nov. 12, 1969.
Decided June 1, 1970.
[Syllabus from pages 144-146 intentionally omitted]
Eleanor Jackson Piel, New York City, for petitioner.
Sanford M. Litvack, New York City, for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Petitioner, Sandra Adickes, a white school teacher from New York, brought this suit in the United States District Court for the Southern District of New York against respondent S. H. Kress & Co. ('Kress') to recover damages under 42 U.S.C. § 19831 for an alleged violation of her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment. The suit arises out of Kress' refusal to serve lunch to Miss Adickes at its restaurant facilities in its Hattiesburg, Mississippi, store on August 14, 1964, and Miss Adickes' subsequent arrest upon her departure from the store by the Hattiesburg police on a charge of vagrancy. At the time of both the refusal to serve and the arrest, Miss Adickes was with six young people, all Negroes, who were her students in a Mississippi 'Freedom School' where she was teaching that summer. Unlike Miss Adickes, the students were offered service, and were not arrested.
2
Petitioner's complaint had two counts,2 each bottomed on § 1983, and each alleging that Kress had deprived her of the right under the Equal Protection Clause of the Fourteenth Amendment not to be discriminated against on the basis of race. The first count charged that Miss Adickes had been refused service by Kress because she was a 'Caucasian in the company of Negroes.' Petitioner sought, inter alia, to prove that the refusal to serve her was pursuant to a 'custom of the community to segregate the races in public eating places.' However, in a pretrial decision, 252 F.Supp. 140 (1966), the District Court ruled that to recover under this court, Miss Adickes would have to prove that at the time she was refused service, there was a specific 'custom * * * of refusing service to whites in the company of Negroes' and that this custom was 'enforced by the State' under Mississippi's criminal trespass statute.3 Because petitioner was unable to prove at the trial that there were other instances in Hattiesburg of a white person having been refused service while in the company of Negroes, the District Court directed a verdict in favor of respondent. A divided panel of the Court of Appeals affirmed on this ground, also holding that § 1983 'requires that the discriminatory custom or usage be proved to exist in the locale where the discrimination took place, and in the State generally,' and that petitioner's 'proof on both points was deficient,' 409 F.2d 121, 124 (1968).
3
The second count of her complaint, alleging that both the refusal of service and her subsequent arrest were the product of a conspiracy between Kress and the Hattiesburg police, was dismissed before trial on a motion for summary judgment. The District Court ruled that petitioner had 'failed to allege any facts from which a conspiracy might be inferred.' 252 F.Supp., at 144. This determination was unanimously affirmed by the Court of Appeals, 409 F.2d, at 126—127.
4
Miss Adickes, in seeking review here, claims that the District Court erred both in directing a verdict on the substantive count, and in granting summary judgment on the conspiracy count. Last Term we granted certiorari, 394 U.S. 1011, 89 S.Ct. 1635, 23 L.Ed.2d 38 (1969), and we now reverse and remand for further proceedings on each of the two counts.
5
As explained in Part I, because the respondent failed to show the absence of any disputed material fact, we think the District Court erred in granting summary judgment. With respect to the substantive count, for reasons explained in Part II, we think petitioner will have made out a claim under § 1983 for violation of her equal protection rights if she proves that she was refused service by Kress because of a state-enforced custom requiring racial segregation in Hattiesburg restaurants. We think the courts below erred (1) in assuming that the only proof relevant to showing that a custom was state-enforced related to the Mississippi criminal trespass statute; (2) in defining the relevant state-enforced custom as requiring proof of a practice both in Hattiesburg and throughout Mississippi, of refusing to serve white persons in the company of Negroes rather than simply proof of state-enforced segregation of the races in Hattiesburg restaurants.
6
* Briefly stated, the conspiracy count of petitioner's complaint made the following allegations: While serving as a volunteer teacher at a 'Freedom School' for Negro children in Hattiesburg, Mississippi, petitioner went with six of her students to the Hattiesburg Public Library at about noon on August 14, 1964. The librarian refused to allow the Negro students to use the library, and asked them to leave. Because they did not leave, the librarian called the Hattiesburg chief of police who told petitioner and her students that the library was closed, and ordered them to leave. From the library, petitioner and the students proceeded to respondent's store where they wished to eat lunch. According to the complaint, after the group sat down to eat, a policeman came into the store 'and observed (Miss Adickes) in the company of the Negro students.' A waitress then came to the booth where petitioner was sitting, took the orders of the Negro students, but refused to serve petitioner because she was a white person 'in the company of Negroes.' The complaint goes on to allege that after this refusal of service, petitioner and her students left the Kress store. When the group reached the sidewalk outside the store, 'the Officer of the Law who had previously entered (the) store' arrested petitioner on a groundless charge of vagrancy and took her into custody.
7
On the basis of these underlying facts petitioner alleged that Kress and the Hattiesburg police had conspired (1) 'to deprive (her) of her right to enjoy equal treatment and service in a place of public accommodation'; and (2) to cause her arrest 'on the false charge of vagrancy.'
8
A. CONSPIRACIES BETWEEN PUBLIC OFFICIALS AND PRIVATE PERSONS GOVERNING PRINCIPLES
9
The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the 'Constitution and laws' of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right 'under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.' This second element requires that the plaintiff show that the defendant acted 'under color of law.'4
10
As noted earlier we read both counts of petitioner's complaint to allege discrimination based on race in violation of petitioner's equal protection rights.5 Few principles of law are more firmly stitched into our constitutional fabric than the proposition that a State must not discriminate against a person because of his race or the race of his companions, or in any way act to compel or encourage racial segregation.6 Although this is a lawsuit against a private party, not the State or one of its officials, our cases make clear that petitioner will have made out a violation of her Fourteenth Amendment rights and will be entitled to relief under § 1983 if she can prove that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss Adickes service in The Kress store, or to cause her subsequent arrest because she was a white person in the company of Negroes.
11
The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner's Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); see United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941); Screws v. United States, 325 U.S. 91, 107—111, 65 S.Ct. 1031, 1038—1040, 89 L.Ed. 1495 (1945); Williams v. United States, 341 U.S. 97, 99—100, 71 S.Ct. 576, 578—579, 95 L.Ed. 774 (1951). Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. 'Private persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of the statute. To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,' United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157 (1966).7
B. SUMMARY JUDGMENT
12
We now proceed to consider whether the District Court erred in granting summary judgment on the conspiracy count. In granting respondent's motion, the District Court simply stated that there was 'no evidence in the complaint or in the affidavits and other papers from which a 'reasonably-minded person' might draw an inference of conspiracy,' 252 F.Supp., at 144, aff'd, 409 F.2d, at 126—127. Our own scrutiny of the factual allegations of petitioner's complaint, as well as the material found in the affidavits and depositions presented by Kress to the District Court, however, convinces us that summary judgment was improper here, for we think respondent failed to carry its burden of showing the absence of any genuine issue of fact. Before explaining why this is so, it is useful to state the factual arguments, made by the parties concerning summary judgment, and the reasoning of the courts below.
13
In moving for summary judgment, Kress argued that 'uncontested facts' established that no conspiracy existed between any Kress employee and the police. To support this assertion, Kress pointed first to the statements in the deposition of the store manager (Mr. Powell) that (a) he had not communicated with the police,8 and that (b) he had, by a prearranged tacit signal,9 ordered the food counter supervisor to see that Miss Adickes was refused service only because he was fearful of a riot in the store by customers angered at seeing a 'mixed group' of whites and blacks eating together.10 Kress also relied on affidavits from the Hattiesburg chief of police,11 and the two arresting officers,12 to the effect that store manager Powell had not requested that petitioner be arrested. Finally, Kress pointed to the statements in petitioner's own deposition that she had no knowledge of any communication between any Kress employee and any member of the Hattiesburg police, and was relying on circumstantial evidence to support her contention that there was an arrangement between Kress and the police.
14
Petitioner, in opposing summary judgment, pointed out that respondent had failed in its moving papers to dispute the allegation in petitioner's complaint, a statement at her deposition,13 and an unsworn statement by a Kress employee,14 all to the effect that there was a policeman in the store at the time of the refusal to serve her, and that this was the policeman who subsequently arrested her. Petitioner argued that although she had no knowledge of an agreement between Kress and the police, the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial, especially given the fact that the noncircumstantial evidence of the conspiracy could only come from adverse witnesses. Further, she submitted an affidavit specifically disputing the manager's assertion that the situation in the store at the time of the refusal was 'explosive,' thus creating an issue of fact as to what his motives might have been in ordering the refusal of service.
15
We think that on the basis of this record, it was error to grant summary judgment. As the moving party, respondent had the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party.15 Respondent here did not carry its burden because of its failure to foreclose the possibility that there was a policeman in the Kress store while petitioner was awaiting service, and that this policeman reached an understanding with some Kress employee that petitioner not be served.
16
It is true that Mr. Powell, the store manager, claimed in his deposition that he had not seen or communicated with a policeman prior to his tacit signal to Miss Baggett, the supervisor of the food counter. But respondent did not submit any affidavits from Miss Baggett,16 or from Miss Freeman,17 the waitress who actually refused petitioner service, either of whom might well have seen and communicated with a policeman in the store. Further, we find it particularly noteworthy that the two officers involved in the arrest each failed in his affidavit to foreclose the possibility (1) that he was in the store while petitioner was there; and (2) that, upon seeing petitioner with Negroes, he communicated his disapproval to a Kress employee, thereby influencing the decision not to serve petitioner.
17
Given these unexplained gaps in the materials submitted by respondent, we conclude that respondent failed to fulfill its initial burden of demonstrating what is a critical element in this aspect of the case—that there was no policeman in the store. If a policeman were present, we think it would be open to a jury, in light of the sequence that followed, to infer from the circumstances that the policeman and a Kress employee had a 'meeting of the minds' and thus reached an understanding that petitioner should be refused service. Because '(o)n summary judgment the inferences to be drawn from the underlying facts contained in (the moving party's) materials must be viewed in the light most favorable to the party opposing the motion,' United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, (1962), we think respondent's failure to show there was no policeman in the store requires reversal.
18
Pointing to Rule 56(e), as amended in 1963,18 respondent argues that it was incumbent on petitioner to come forward with an affidavit properly asserting the presence of the policeman in the store, if she were to rely on that fact to avoid summary judgment. Respondent notes in this regard that none of the materials upon which petitioner relied met the requirements of Rule 56(e).19
19
This argument does not withstand scrutiny, however, for both the commentary on and background of the 1963 amendment conclusively show that it was not intended to modify the burden of the moving party under Rule 56(c) to show initially the absence of a genuine issue concerning any material fact.20 The Advisory Committee note on the amendment states that the changes were not designed to 'affect the ordinary standards applicable to the summary judgment.' And, in a comment directed specifically to a contention like respondent's, the Committee stated that '(w)here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.'21 Because respondent did not meet its initial burden of establishing the absence of a policeman in the store, petitioner here was not required to come forward with suitable opposing affidavits.22
20
If respondent had met its initial burden by, for example, submitting affidavits from the policemen denying their presence in the store at the time in question, Rule 56(e) would then have required petitioner to have done more than simply rely on the contrary allegation in her complaint. To have avoided conceding this fact for purposes of summary judgment, petitioner would have had to come forward with either (1) the affidavit of someone who saw the policeman in the store or (2) an affidavit under Rule 56(f) explaining why at that time it was impractical to do so. Even though not essential here to defeat respondent's motion, the submission of such an affidavit would have been the preferable course for petitioner's counsel to have followed. As one commentator has said:
21
'It has always been perilous for the opposing party neither to proffer any countering evidentiary materials nor file a 56(f) affidavit. And the peril rightly continues (after the amendment to Rule 56(e)). Yet the party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden then he is not entitled to judgment. No defense to an insufficient showing is required.' 6 J.Moore, Federal Practice 56.22(2), pp. 2824—2825 (2d ed. 1966).
II
22
There remains to be discussed the substantive count of petitioner's complaint, and the showing necessary for petitioner to prove that respondent refused her service 'under color of any * * * custom, or usage, of (the) State' in violation of her rights under the Equal Protection Clause of the Fourteenth Amendment.23
A. CUSTOM OR USAGE
23
We are first confronted with the issue of whether a 'custom' for purposes of § 1983 must have the force of law, or whether, as argued in dissent, no state involvement is required. Although this Court has never explicitly decided this question, we do not interpret the statute against an amorphous backdrop.
24
What is now 42 U.S.C. § 1983 came into existence as § 1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13. The Chairman of the House Select Committee which drafted this legislation described24 § 1 as modeled after § 2 of the Civil Rights Act of 1866—a criminal provision that also contained language that forbade certain acts by any person 'under color of any law, statute, ordinance, regulation, or custom,' 14 Stat. 27. In the Civil Rights Cases, 109 U.S. 3, 16, 3 S.Ct. 18, 25, 27 L.Ed. 835 (1883), the Court said of this 1866 statute: 'This law is clearly corrective in its character, intended to counteract and furnish redress against state laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified.' (Emphasis added.) Moreover, after an exhaustive examination of the legislative history of the 1866 Act, both the majority and dissenting opinions25 in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), concluded that § 2 of the 1866 Civil Rights Act was intended to be limited to 'deprivations perpetrated 'under color of law."26 (Emphasis added.)
25
Quite apart from this Court's construction of the identical 'under color of' provision of § 2 of the 1866 Act, the legislative history of § 1 of the 1871 Act, the lineal ancestor of § 1983, also indicates that the provision in question here was intended to encompass only conduct supported by state action. That such a limitation was intended for § 1 can be seen from an examination of the statements and actions of both the supporters and opponents of the Ku Klux Klan Act.
26
In first reporting the Committee's recommendations to the House, Representative Shellabarger, the Chairman of the House Select Committee which drafted the Ku Klux Klan Act, said that § 1 was 'in its terms carefully confined to giving a civil action for such wrongs against citizenship as are done under color of State laws which abridge these rights.'27 (Emphasis added.) Senator Edmunds, Chairman of the Senate Committee on the Judiciary, and also a supporter of the bill, said of this provision: 'The first section is one that I believe nobody objects to, as defining the rights secured by the Constitution of the United States when they are assailed by any State law or under color of any State law, and it is merely carrying out the principles of the civil rights bill, which have since become a part of the Constitution.'28 (Emphasis added.) Thus, in each House, the leader of those favoring the bill expressly stated his understanding that § 1 was limited to deprivations of rights done under color of law.
27
That Congress intended to limit the scope of § 1 to actions taken under color of law is further seen by contrasting its legislative history with that of other sections of the same Act. On the one hand, there was comparatively little debate over § 1 of the Ku Klux Klan Act, and it was eventually enacted in form identical to that in which it was introduced in the House.29 Its history thus stands in sharp contrast to that of other sections of the Act.30 For example, § 2 of the 1871 Act,31 a provision aimed at private conspiracies with no 'under color of law' requirement, created a great storm of controversy, in part because it was thought to encompass private conduct. Senator Thurman, for example, one of the leaders of the opposition to the Act, although objecting to § 1 on other grounds, admitted its constitutionality32 and characterized it as 'refer(ring) to a deprivation under color of law, either statute law or 'custom or usage' which has become common law.'33 (Emphasis added.) This same Senator insisted vociferously on the absence of congressional power under § 5 of the Fourteenth Amendment to penalize a conspiracy of private individuals to violate state law.34 The comparative lack of controversy concerning § 1, in the context of the heated debate over the other provisions, suggests that the opponents of the Act, with minor exceptions, like its proponents understood § 1 to be limited to conduct under color of law.
28
In addition to the legislative history, there exists an unbroken line of decisions, extending back many years, in which this Court has declared that action 'under color of law' is a predicate for a cause of action under § 1983,35 or its criminal counterpart, 18 U.S.C. § 242.36 Moreover, with the possible exception of an exceedingly opaque district court opinion,37 every lower court opinion of which we are aware that has considered the issue, has concluded that a 'custom or usage' for purposes of § 1983 requires state involvement and is not simply a practice that reflects longstanding social habits, generally observed by the people in a locality.38 Finally, the language of the statute itself points in the same direction for it expressly requires that the 'custom, or usage' be that 'of any State,' not simply of the people living in a state. In sum, against this background, we think it clear that a 'custom or usage, of (a) State' for purposes of § 1983 must have the force of law by virtue of the persistent practices of state officials.
29
Congress included customs and usages within its definition of law in § 1983 because of the persistent and widespread discriminatory practices of state officials in some areas of the post-bellum South. As Representative Garifield said: '(E)ven where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them.'39 Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law.
30
This interpretation of custom recognizes that settled practices of state officials may, by imposing sanctions or withholding benefits, transform private predilections into compulsory rules of behavior no less than legislative pronouncements. If authority be needed for this truism, it can be found in Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254 (1940), where the Court held that although a statutory provision suggested a different note, the 'law' in Tennessee as established by longstanding practice of state officials was that railroads and public utilities were taxed at full cash value. What Justice Frankfurter wrote there seems equally apt here:
31
'It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice * * * can establish what is state law. The equal protection clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text.' Id., at 369, 60 S.Ct., at 972.
32
And in circumstances more closely analogous to the case at hand, the statements of the chief of police and mayor of New Orleans, as interpreted by the Court in Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963), could well have been taken by restaurant proprietors as articulating a custom having the force of law. Cf. Garner v. Louisiana, 368 U.S. 157, 176—185, 82 S.Ct. 248, 258—263, 7 L.Ed.2d 207 (Douglas, J., concurring) (1961); Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963); Baldwin v. Morgan, 287 F.2d 750, 754 (C.A.5th Cir. 1961).
B. STATE ACTION—14TH AMENDMENT VIOLATION
33
For petitioner to recover under the substantive count of her complaint, she must show a deprivation of a right guaranteed to her by the Equal Protection Clause of the Fourteenth Amendment. Since the 'action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States,' Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948), we must decide, for purposes of this case, the following 'state action' issue: Is there sufficient state action to prove a violation of petitioner's Fourteenth Amendment rights if she shows that Kress refused her service because of a state-enforced custom compelling segregation of the races in Hattiesburg restaurants?
34
In analyzing this problem, it is useful to state two polar propositions, each of which is easily identified and resolved. On the one hand, the Fourteenth Amendment plainly prohibits a State itself from discriminating because of race. On the other hand, § 1 of the Fourteenth Amendment does not forbid a private party, not acting against a backdrop of state compulsion or involvement, to discriminate on the basis of race in his personal affairs as an expression of his own personal predilections. As was said in Shelley v. Kraemer, supra, § 1 of '(t)hat Amendment erects no shield against merely private conduct, however discriminatory or wrongful.' 334 U.S., at 13, 68 S.Ct., at 842.
35
At what point between these two extremes a State's involvement in the refusal becomes sufficient to make the private refusal to serve a violation of the Fourteenth Amendment, is far from clear under our case law. If a State had a law requiring a private person to refuse service because of race, it is clear beyond dispute that the law would violate the Fourteenth Amendment and could be declared invalid and enjoined from enforcement. Nor can a State enforce such a law requiring discrimination through either convictions of proprietors who refuse to discriminate, or trespass prosecutions of patrons who, after being denied service pursuant to such a law, refuse to honor a request to leave the premises.40
36
The question most relevant for this case, however, is a slightly different one. It is whether the decision of an owner of a restaurant to discriminate on the basis of race under the compulsion of state law offends the Fourteenth Amendment. Although this Court has not explicitly decided the Fourteenth Amendment state action issue implicit in this question, underlying the Court's decisions in the sit-in cases is the notion that a State is responsible for the discriminatory act of a private party when the State, by its law, has compelled the act. As the Court said in Peterson v. City of Greenville, 373 U.S. 244, 248, 83 S.Ct. 1119, 1121 (1963): 'When the State has commanded a particular result, it has saved to itself the power to determine that result and thereby 'to a significant extent' has 'become involved' in it.' Moreover, there is much support in lower court opinions for the conclusion that discriminatory acts by private parties done under the compulsion of state law offend the Fourteenth Amendment. In Baldwin v. Morgan, supra, the Fifth Circuit held that '(t)he very act of posting and maintaining separate (waiting room) facilities when done by the (railroad) Terminal as commanded by these state orders is action by the state.' The Court then went on to say: 'As we have pointed out above the State may not use race or color as the basis for distinction. It may not do so by direct action or through the medium of others who are under State compulsion to do so.' Id., 287 F.2d at 755—756 (emphasis added). We think the same principle governs here.
37
For state action purposes it makes no difference of course whether the racially discriminatory act by the private party is compelled by a statutory provision or by a custom having the force of law—in either case it is the State that has commanded the result by its law. Without deciding whether less substantial involvement of a State might satisfy the state action requirement of the Fourteenth Amendment, we conclude that petitioner would show an abridgement of her equal protection right, if she proves that Kress refused her service because of a state-enforced custom of segregating the races in public restaurants.
C. THREE ADDITIONAL POINTS
38
For purposes of remand, we consider it appropriate to make three additional points.
39
First, the District Court's pretrial opinion seems to suggest that the exclusive means available to petitioner for demonstrating that state enforcement of the custom relevant here would be by showing that the State used its criminal trespass statute for this purpose. We disagree with the District Court's implicit assumption that a custom can have the force of law only if it is enforced by a state statute.41 Any such limitation is too restrictive, for a state official might act to give a custom the force of law in a variety of ways, at least two examples of which are suggested by the record here. For one thing, petitioner may be able to show that the police subjected her to false arrest for vagrancy for the purpose of harassing and punishing her for attempting to eat with black people.42 Alternatively, it might be shown on remand that the Hattiesburg police would intentionally tolerate violence or threats of violence directed toward those who violated the practice of segregating the races at restaurants.43
40
Second, we think the District Court was wrong in ruling that the only proof relevant to showing a custom in this case was that demonstrating a specific practice of not serving white persons who were in the company of black persons in public restaurants. As Judge Waterman pointed out in his dissent below, petitioner could not possibly prove a 'long and unvarying' habit of serving only the black persons in a 'mixed' party of whites and blacks for the simple reason that 'it was only after the Civil Rights Act of 1964 became law that Afro-Americans had an opportunity to be served in Mississippi 'white' restaurants' at all, 409 F.2d, at 128. Like Judge Waterman, we think the District Court viewed the matter too narrowly, for under petitioner's complaint the relevant inquiry is whether at the time of the episode in question there was a longstanding and still prevailing state-enforced custom of segregating the races in public eating places. Such a custom, of course, would perforce encompass the particular kind of refusal to serve challenged in this case.
41
Third, both the District Court and the majority opinion in the Court of Appeals suggested that petitioner would have to show that the relevant custom existed throughout the State, and that proof that it had the force of law in Hattiesburg—a political subdivision of the State—was insufficient. This too we think was error. In the same way that a law whose source is a town ordinance can offend the Fourteenth Amendment even though it has less than state-wide application, so too can a custom with the force of law in a political subdivision of a State offend the Fourteenth Amendment even though it lacks state-wide application.
42
In summary, if petitioner can show (1) the existence of a state-enforced custom of segregating the races in public eating places in Hattiesburg at the time of the incident in question; and (2) that Kress' refusal to serve her was motivated by that state-enforced custom, she will have made out a claim under § 1983.44
43
For the foregoing reasons we think petitioner is entitled to a new trial on the substantive count of her complaint.
44
The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
45
It is so ordered.
46
Mr. Justice MARSHALL took no part in the decision of this case.
47
Mr. Justice BLACK, concurring in the judgment.
48
The petitioner, Sandra Adickes, brought suit against the respondent, S. H. Kress & Co., to recover damages for alleged violations of 42 U.S.C. § 1983. In one count of her complaint she alleged that a police officer of the City of Hattiesburg, Mississippi, had conspired with employees of Kress to deprive her of rights secured by the Constitution and that this joint action of a state official and private individuals was sufficient to constitute a violation of § 1983. She further alleged in another count that Kress' refusal to serve her while she was in the company of Negroes was action 'under color of' a custom of refusing to serve Negroes and whites together in Mississippi, and that this action was a violation of § 1983. The trial judge granted a motion for summary judgment in favor of Kress on the conspiracy allegation and, after full presentation of evidence by the petitioner, granted a motion for a directed verdict in favor of the respondent on the custom allegation. Both decisions rested on conclusions that there were no issues of fact supported by sufficient evidence to require a jury trial. I think the trial court and the Court of Appeals which affirmed were wrong in allowing summary judgment on the conspiracy allegation. And assuming for present purposes that the trial court's statutory interpretation concerning 'custom or usage' was correct—it was also error to direct a verdict on that count. In my judgment, on this record, petitioner should have been permitted to have the jury consider both her claims.
49
Summary judgments may be granted only when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact * * *.' Fed.Rule Civ.Proc. 56(c). Petitioner in this case alleged that she went into Kress in the company of Negroes and that the waitress refused to serve her, stating '(w)e have to serve the colored, but we are not going to serve the whites that come in with them.' Petitioner then alleged that she left the store with her friends and as soon as she stepped outside a policeman arrested her and charged her with vagrancy. On the basis of these facts she argued that there was a conspiracy between the store and the officer to deprive her of federally protected rights. The store filed affidavits denying any such conspiracy and the trial court granted the motion for summary judgment, concluding that petitioner had not alleged any basic facts sufficient to support a finding of conspiracy.
50
The existence or nonexistence of a conspiracy is essentially a factual issue that the jury, not the trial judge, should decide. In this case petitioner may have had to prove her case by impeaching the store's witnesses and appealing to the jury to disbelieve all that they said was true in the affidavits. The right to confront, cross-examine and impeach adverse witnesses is one of the most fundamental rights sought to be preserved by the Seventh Amendment provision for jury trials in civil cases. The advantages of trial before a live jury with live witnesses, and all the possibilities of considering the human factors, should not be eliminated by substituting trial by affidavit and the sterile bareness of summary judgment. '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." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962).
51
Second, it was error for the trial judge to direct a verdict in favor of the respondent on the 'custom' count. The trial judge surveyed the evidence and concluded that it was insufficient to prove the existence of a custom of not serving white people in the company of Negroes. He thereupon took the case away from the jury, directing a verdict for the respondent. The Court of Appeals affirmed this conclusion. In my opinion this was clear error.
Petitioner testified at trial as follows:
52
'Q. Did you have occasion to know of specific instances where white persons in the company of Negroes were discriminated against? A. Yes.
53
'Q. How many such instances can you recall? A. I can think of about three at the moment.
54
'Q. Will you describe the three instances to us? A. I know that people were turned away from a white church, an integrated group was turned away from a white church in Hattiesburg. I was not present but this was explained to me. I saw a rabbi being beaten because he was in the company of Negroes.
55
'Q. This was a white rabbi? A. Yes. And people were turned away from a drug store in Hattiesburg, an integrated group. I don't remember the name of the drug store.
56
'Q. On the basis of what you studied and on the basis of what you observed, and on the basis of your conversations with other persons there, did you come to a conclusion with regard to the custom and usage with regard to the white community towards serving persons, white persons, in the company of Negroes? A. Yes.
57
'Q. What was that conclusion? A. The conclusion was that white persons—it was a custom and usage not to serve white persons in the company of Negroes.' This evidence, although weakened by the cross-examination, was sufficient, I think, to require the court to let the case go to the jury and secure petitioner's constitutionally guaranteed right to a trial by that jury. See Galloway v. United States, 319 U.S. 372, 396, 63 S.Ct. 1077, 1090, 87 L.Ed. 1458 (1943) (Black, J., dissenting).
58
I do not find it necessary at this time to pass on the validity of the statutory provision concerning 'custom or usage' or on the trial court's views, concurred in by the Court of Appeals, on the proper interpretation of that term. Assuming that the trial court's interpretation was correct and that the provision as so interpreted is valid, there was enough evidence in this record to warrant submitting the entire question of custom or usage to the jury in accordance with instructions framed to reflect those views.
59
For the foregoing reasons I concur in the judgment reversing the Court of Appeals and remanding for a new trial on both counts.
60
Mr. Justice DOUGLAS, dissenting in part.
61
* The statutory words 'under color of any statute, ordinance, regulation, custom, or usage, of any State,' 42 U.S.C. § 1983, are seriously emasculated by today's ruling. Custom, it is said, must have 'the force of law'; and 'law,' as I read the opinion, is used in the Hamiltonian sense.1
62
The Court requires state involvement in the enforcement of a 'custom' before that 'custom' can be actionable under 42 U.S.C. § 1983. That means, according to the Court, that 'custom' for the purposes of § 1983 'must have the force of law by virtue of the persistent practices of state officials.' That construction of § 1983 is, to borrow a phrase from the first Mr. Justice Harlan, 'too narrow and artificial.' In re Civil Rights Cases, 109 U.S. 3, 26, 3 S.Ct. 18, 32, 27 L.Ed. 835 (dissenting opinion).
63
Section 1983 by its terms protects all 'rights' that are 'secured by the Constitution and laws' of the United States. There is no more basic 'right' than the exemption from discrimination on account of race—an exemption that stems not only from the Equal Protection Clause of the Fourteenth Amendment but also from the Thirteenth Amendment and from a myriad of 'laws' enacted by Congress. And so far as § 1983 is concerned it is sufficient that the deprivation of that right be 'under color' of 'any * * * custom * * * of any State.' The 'custom' to be actionable must obviously reflect more than the prejudices of a few; it must reflect the dominant communal sentiment.
II
64
The 'custom * * * of any State' can of course include the predominant attitude backed by some direct or indirect sanctions inscribed in law books. Thus in Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207, another restaurant case involving racial discrimination, there was no state law or municipal ordinance that in terms required segregation of the races in restaurants. But segregation was basic to the structure of Louisiana as a community as revealed by a mosaic of laws. Id., at 179—181, 82 S.Ct. at 259—261 (concurring opinion).
65
The same is true of Mississippi in the present case.
66
In 1964, at the time of the discrimination perpetrated in this case, there were numerous Mississippi laws that were designed to continue a regime of segregation of the races. The state legislature had passed a resolution condemning this Court's Brown v. Board of Education decisions, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, as 'unconstitutional' infringements on States' rights. Miss. Laws (1956), c. 466, Senate Concurrent Resolution No. 125. Part of the Mississippi program to perpetuate the segregated way of life was the State Sovereignty Commission, Miss.Code Ann. § 9028—31 et seq. (1956), of which the Governor was chairman and which was charged with the duty 'to do and perform any and all acts and things deemed necessary and proper to protect the sovereignty of the State of Mississippi * * * from encroachment thereon by the Federal Government * * *.' Id., § 9028 35. Miss.Code Ann. § 4065.3 (1956) required 'the entire executive branch of the government of the State of Mississippi * * * to prohibit by any lawful, peaceful, and constitutional means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state, by any branch of the federal government. * * *' Every word and deed of a state officer, agent, or employee that was connected with maintaining segregated schools in Mississippi was deemed to be 'the sovereign act * * * of the sovereign State of Mississippi.' Id., § 4065.4 (Supp.1968). It was unlawful for a white student to attend any school of high school or lower level that was also attended by Negro students. Id., § 6220.5. Separate junior college districts were established for blacks and whites. Id., § 6475—14 (1952). The Ellisville State School for the feebleminded was required to provide for separate maintenance of blacks and whites. Id., § 6766. The State Insane Hospital was required to keep the two races separate, id., § 6883, as was the South Mississippi Charity Hospital. Id., § 6927. Separate entrances were required to be maintained at state hospitals for black and white patients. Id., § 6973. It was the responsibility of those in authority to furnish a sufficient number of Negro nurses to attend Negro patients, but the Negro nurses were to be under the supervision of white supervisors. Id., § 6974. It was unlawful for Negro and white convicts to be confined or worked together. Id., § 7913 (1956). County sheriffs were required to maintain segregated rooms in the jails. Id., § 4259. It was unlawful for taxicab drivers to carry black and white passengers together. Id., § 3499. Railroad depots in cities of 3,000 or more inhabitants were required to have separate 'closets' for blacks and whites. Id., § 7848. And it was a crime to overthrow the segregation laws of the State. Id., § 2056(7).
67
The situation was thus similar to that which existed in Garner. Although there was no law that in terms required segregation of the races in restaurants, it was plain that the discrimination was perpetrated pursuant to a deeply entrenched custom in Louisiana that was 'at least as powerful as any law.' Garner v. Louisiana, supra, 368 U.S. at 181, 82 S.Ct. at 260 (concurring opinion); cf. Robinson v. Florida, 378 U.S. 153, 156, 84 S.Ct. 1693, 1695, 12 L.Ed.2d 771.
III
68
The 'custom * * * of any State,' however, can be much more pervasive. It includes the unwritten commitment, stronger than ordinances, statutes, and regulations, by which men live and arrange their lives. Bronislaw Malinowski, the famed anthropologist, in speaking of the 'cake of custom' of a Melanesian community 'safeguarding life, property and personality' said:2
69
'There is no religious sanction to these rules, no fear, superstitious or rational, enforces them, no tribal punishment visits their breach, nor even the stigma of public opinion or moral blame. The forces which make these rules binding we shall lay bare and find them not simple but clearly definable, not to be described by one word or one concept, but very real none the less. The binding forces of Melanesian civil law are to be found in the concatenation of the obligations, in the fact that they are arranged into chains of mutual services, a give and take extending over long periods of time and covering wide aspects of interest and activity. To this there is added the conspicuous and ceremonial manner in which most of the legal obligations have to be discharged. This binds people by an appeal to their vanity and self-regard, to their love of self-enhancement by display. Thus the binding force of these rules is due to the natural mental trend of self-interest, ambition and vanity, set into play by a special social mechanism into which the obligatory actions are framed.'
70
This concept of 'custom' is, I think, universal and as relevant here as elsewhere. It makes apparent that our problem under 42 U.S.C. § 1983 does not make our sole aim the search for 'state action' in the Hamiltonian sense of 'law.'
71
That restricted kind of a search certainly is not compelled by grammar. 'Of' is a word of many meanings, one of which indicates 'the thing or person whence anything originates, comes, is acquired or sought.' 7 Oxford English Dictionary (definition III). The words 'under color of any * * * custom * * * of any State' do no more than describe the geographical area or political entity in which the 'custom' originates and where it is found.
72
The philosophy of the Black Codes reached much further than the sanctions actually prescribed in them. Federal judges, who entered the early school desegregation decrees, often felt the ostracism of the community, though the local 'law' never even purported to place penalties on judges for doing such acts. Forty years ago in Washington, D.C., a black who was found after the sun set in the northwest section of the District on or above Chevy Chase Circle was arrested, though his only 'crime' was waiting for a bus to take him home after caddying at a plush golf course in the environs. There was no 'law' sanctioning such an arrest. It was done 'under color' of a 'custom' of the Nation's Capital.
Harry Golden3 recently wrote:
73
'Southerners drew a line and prohibited Negroes crossing it. They doomed themselves to a lifetime of guarding that line, fearing it would be breached. Because the white Southerner must forever watch that line, the Negro intrudes upon the white at every level of life.'
74
Is not the maintenance of that line by habit a 'custom?'
75
Title 42 U.S.C. § 1983 was derived from § 1 of the 'Ku Klux Klan Act' of 1871, 17 Stat. 13. The 'under-color-of' provisions of § 1 of the 1871 Act, in turn, were derived from § 2 of the Civil Rights Act of 1866, 14 Stat. 27. The meaning of 'under color of * * * custom' in the context of the 1866 Act is therefore relevant to the meaning of that phrase as it is used in § 1983, for, as the Court states, the 'under color of' provisions mean the same thing for § 1983 as they do for 18 U.S.C. § 242, the direct descendant of § 2 of the 1866 Act.4 Ante, at 152 n. 7.
76
A 'custom' of the community or State was one of the targets of the Civil Rights Act of 1866. Section 1, which we upheld in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, provided a civil remedy for specified private acts of racial discrimination. Section 2 of that Act provided criminal sanctions for acts done 'under color of any' custom of a State. A Congress that in 1866 was not bent only on 'the nullification of racist laws,' id., at 429, 88 S.Ct. at 2198, was not restricting itself strictly to state action; it was out to ban racial discrimination partly as respects private actions, partly under state law in the Hamiltonian sense, and partly under the color of 'custom.'
77
Of course, § 2 of the 1866 Act did not cover purely private actions as did § 1 of the Act, and that was the point of our discussion of § 2 in Jones v. Alfred H. Mayer Co. But the Court does not come to grips with the fact that actions taken 'under color of any * * * custom' were covered by § 2 of the 1866 Act quite apart from actions taken under 'color of any statute, ordinance, (or) regulation'—in other words, quite apart from actions taken under 'color of law' in the traditional sense. Instead, the Court seems to divide all actions into two groups—those constituting 'state action' and those constituting purely 'private action'—with coverage of § 2 limited to the former. While § 2 did not reach 'private violations,' it did reach discrimination based on 'color of custom,' which is far beyond the realm of a mere private predilection or prejudice. And, despite the Court's suggestion to the contrary, the use of the term 'under color of law' by the Court in Jones v. Alfred H. Mayer Co. was merely a shorthand reference for all the 'under color of' provisions in § 2 and had no relevance to the specific problem of defining the meaning of 'under color of * * * custom.'5
78
Section 2, like § 1, involved in Jones v. Alfred H. Mayer Co., was bottomed on the Thirteenth Amendment, for it was enacted before the Fourteenth Amendment was adopted. As we stated in Jones v. Alfred H. Mayer Co.:
79
'Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.' Id., at 440, 88 S.Ct. at 2203.
80
While the Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause of the Fourteenth Amendment are each protective of the individual as against 'state' action, the guarantees of the Thirteenth Amendment and various laws of the United States are not so restricted. And § 1983 protects not only Fourteenth Amendment rights, but 'any rights * * * secured by the Constitution and laws.' With regard to § 1983's scope of protection for violations of these rights, Congress in § 1983 aimed partly at 'state' action and it was with that aspect of it that we were concerned in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.
81
If the wrong done to the individual was under 'color' of 'custom' alone, the ingredients of the cause of action were satisfied.6 The adoption of the Fourteenth Amendment expanded the substantive rights covered by § 1 of the 1871 Act vis-a -vis those covered by § 2 of the 1866 Act. But that expanded coverage did not make 'state action' a necessary ingredient in all of the remedial provisions of § 1 of the 1871 Act. Neither all of § 1 of the 1871 Act nor all of its successor, § 1983, was intended to be conditioned by the need for 'state' complicity.
82
Moreover, a majority of the Court held in United States v. Guest, 383 U.S. 745, 761, 774, 782 and n. 6, 86 S.Ct. 1170, 1180, 1186, 1191, 16 L.Ed.2d 239, that § 5 of the Fourteenth Amendment enables Congress to punish interferences with constitutional rights 'whether or not state officers or others acting under the color of state law are implicated.' Id., at 782, 86 S.Ct. at 1191. There the statute involved (18 U.S.C. § 241) proscribed all conspiracies to impair any right 'secured' by the Constitution. A majority agreed that in order for a conspiracy to qualify it need not involve any 'state' action. By the same reasoning the 'custom * * * of any State' as used in § 1983 need not involve official state development, maintenance, or participation. The reach of § 1983 is constitutional rights, including those under the Fourteenth Amendment; and Congress rightfully was concerned with their full protection, whoever might be the instigator or offender.
83
To repeat, § 1983 was 'one of the means whereby Congress exercised the power vested in it by § 5 of the Fourteenth Amendment to enforce the provisions of that Amendment.' Monroe v. Pape, supra, 365 U.S. at 171, 81 S.Ct. at 475. Yet powers exercised by Congress may stem from more than one constitutional source. McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579; Veazie Bank v. Fenno, 8 Wall. 533, 548—549, 19 L.Ed. 482; Edye v. Robertson, 112 U.S. 580, 595—596, 5 S.Ct. 247, 252—253, 28 L.Ed. 798; United States v. Gettysburg Electric R. Co., 160 U.S. 668, 683, 16 S.Ct. 427, 430, 40 L.Ed. 576. Moreover, § 1983 protects 'any rights' that are 'secured' by 'the Constitution and laws' of the United States, which makes unmistakably clear that § 1983 does not cover, reach, protect, or secure only Fourteenth Amendment rights. The Thirteenth Amendment and its enabling legislation cover a wide range of 'rights' designed to rid us of all the badges of slavery. And, as I have said, the phrase 'under color of any * * * custom' derives from § 2 of the 1866 Act which rested on the Thirteenth Amendment whose enforcement does not turn on 'state action.'7 The failure of the Court to come to face with those realities leads to the regressive decision announced today.
84
It is time we stopped being niggardly in construing civil rights legislation. It is time we kept up with Congress and construed its laws in the full amplitude needed to rid their enforcement of the lingering tolerance for racial discrimination that we sanction today.
85
Mr. Justice BRENNAN, concurring in part and dissenting in part.
86
Petitioner contends that in 1964 respondent, while acting 'under color of * * * statute' or 'under color of * * * custom, or usage' of the State of Mississippi, subjected her to the deprivation of her right under the Equal Protection Clause of the Fourteenth Amendment not to be denied service in respondent's restaurant due to racial discrimination in which the State of Mississippi was involved, and that therefore respondent is liable to her in damages under 42 U.S.C. § 1983. To recover under § 1983 petitioner must prove two separate and independent elements: first, that respondent subjected her to the deprivation of a right 'secured by the Constitution and laws'; and, second, that while doing so respondent acted under color of a statute, ordinance, regulation, custom, or usage of the State of Mississippi.
87
Whether a person suing under § 1983 must show state action in the first element—the deprivation of a right 'secured by the Constitution and laws'—depends on the nature of the particular right asserted. For example, a person may be deprived of a right secured by the Constitution and 42 U.S.C. § 1982 by a private person acting completely independently of state government. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct 2186, 20 L.Ed.2d 1189 (1968). On the other hand, the constitutional right to equal protection of the laws, unelaborated by any statute, can be violated only by action involving a State. The discussion in United States v. Reese, 92 U.S. 214, 249—252, 23 L.Ed. 563 (1876) (Hunt, J., dissenting), of various constitutional uses of the word 'State' suggests that as an original matter 'State' in the Equal Protection Clause might have been interpreted in any of several ways. Moreover, some have thought that historical evidence points to an interpretation covering some categories of state inaction in the face of wholly private conduct, see, e.g., Bell v. Maryland, 378 U.S. 226, 286—316, 84 S.Ct. 1814, 1847—1864, 12 L.Ed.2d 822 (1964) (Goldberg, J., concurring); R. Harris, The Quest for Equality 24—56 (1960); J. tenBroek, Equal Under Law 201—239 (1965). However, our cases have held that the Equal Protection Clause applies only to action by state government or officials and those significantly involved with them. Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948); Burton v. Wilmington Parking Authority, 365 U.S. 715, 721—722, 81 S.Ct. 856, 859—860, 6 L.Ed.2d 45 (1961). Whether and when a person suing under § 1983 must show state action in the second element—action under color of a statute, ordinance, regulation, custom, or usage of a State—depends on an analysis of the text, legislative history, and policy of § 1983. See Part II, infra. These two inquiries are wholly different, though in particular cases a showing of state action under one element may suffice under the other.
88
In the present case petitioner alleged as the first element under § 1983 a deprivation of her right to equal protection. Therefore, under our cases, she must show state action. She asserts that there was state action in two different respects. First, she contends that there was a conspiracy between respondent and local police to discriminate against her in restaurant service because she, a white person, sought service while accompanied by Negro friends. The Court treats this aspect of her claim in Part I of its opinion, which I join.1 Petitioner contends, alternatively, that respondent's discrimination was authorized and encouraged by Mississippi statutes. To that contention I now turn.
89
* The state-action doctrine reflects the profound judgment that denials of equal treatment, and particularly denials on account of race or color, are singularly grave when government has or shares responsibility for them. Government is the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct. Therefore something is uniquely amiss in a society where the government, the authoritative oracle of community values, involves itself in racial discrimination. Accordingly, in the cases that have come before us this Court has condemned significant state involvement in racial discrimination, however subtle and indirect it may have been and whatever form it may have taken. See, e.g., Burton v. Wilmington Parking Authority, supra; Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969). These decisions represent vigilant fidelity to the constitutional principle that no State shall in any significant way lend its authority to the sordid business of racial discrimination.
90
Among the state-action cases that most nearly resemble the present one are the sit-in cases decided in 1963 and 1964. In Peterson v. City of Greenville, 373 U.S. 244, 83 S.ct. 1119, 10 L.Ed.2d 323 (1963), the petitioners were convicted of trespass for refusing to leave a lunch counter at a Kress store in South Carolina. A Greenville ordinance at that time imposed on the proprietors of restaurants the duty to segregate the races in their establishments, and there was evidence that the Kress manager was aware of the ordinance. We held that the existence of the ordinance, together with a showing that the Kress manager excluded the petitioners solely because they were Negroes, was sufficient to constitute discriminatory state action in violation of the Fourteenth Amendment:
91
'When the State has commanded a particular result, it has saved to itself the power to determine that result and thereby 'to a significant extent' has 'become involved' in it, and, in fact, has removed that decision from the sphere of private choice. * * *
92
'Consequently these convictions cannot stand, even assuming, as respondent contends, that the manager would have acted as he did independently of the existence of the ordinance.' 373 U.S. at 248, 83 S.Ct. at 1121.
93
Although the case involved trespass convictions, the Court did not rely on the State's enforcement of its neutral trespass laws in analyzing the elements of state action present. Nor did it cite Shelley v. Kraemer, supra, the logical starting point for an analysis in terms of judicial enforcement. The denial of equal protection occurred when the petitioners were denied service in the restaurant. That denial of equal protection tainted the subsequent convictions. And as we noted in Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 1633, 18 L.Ed.2d 830 (1967), no 'proof (was) required that the restaurant owner had actually been influenced by the state statute * * *.' Thus Peterson establishes the proposition that where a State commands a class of persons to discriminate on the basis of race, discrimination by a private person within that class is state action, regardless of whether he was motivated by the command. The Court's intimation in the present case that private discrimination might be state action only where the private person acted under compulsion imposed by the State echoes Mr. Justice Harlan's argument in Peterson that private discrimination is state action only where the State motivates the private person to discriminate. See 373 U.S., at 251 253. That argument was squarely rejected by the Court in Peterson, and I see no reason to resurrect it now.
94
The rationale of Peterson was extended in Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963). There the petitioners were convicted of trespass for refusing to leave a restaurant after being denied service. Prior to the arrests the mayor and superintendent of police of New Orleans had publicly stated that sit-in demonstrations were undesirable and that relevant trespass laws would be fully enforced. Although these statements, unlike the ordinance in Peterson, were not discriminatory on their face, the Court interpreted them as evidencing state support for the system of racial segregation prevalent in the private institutions against which the petitioners' sit-in was directed. Moreover, the statements, unlike the ordinance in Peterson, did not command restaurateurs to discriminate. A restaurateur in New Orleans, unlike one in Greenville, could integrate his services without violating any law. Although there was evidence that the restaurateur's actions were influenced by the official statements, the Court did not rely on this factor. The Court held on the basis of the statements alone that the regree of state involvement in the private discriminatory denial of service to the petitioners was sufficient to make that denial state action violative of the Fourteenth Amendment. As in Peterson, the Court's analysis of state action did not turn on the actual enforcement of the State's criminal law. Lombard, therefore, advances at least two propositions. First, an authoritative expression of state policy that is nondiscriminatory on its face may be found to be discriminatory when considered against the factual background of its promulgation. Cf. Guinn v. United States, 238 U.S. 347, 364—365, 35 S.Ct. 926, 931, 59 L.Ed. 1340 (1915); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). Second, where a state policy enforces privately chosen racial discrimination in places of public accommodation, it renders such private discrimination unconstitutional state action, regardless of whether the private discriminator was motivated or influenced by it.
95
The principles of Peterson and Lombard were extended further in Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964). That case also involved trespass convictions arising out of a sit-in at a segregated restaurant. At the time, a Florida regulation required restaurants to maintain separate lavatory and toilet facilities for each race as well each sex. However, the regulation did not require segregation of a restaurant itself; nor did the convictions of the demonstrators result from anything they did with respect to the facilities that were the subject of the regulation. Nevertheless, this Court reversed the convictions on the ground that by virtue of the regulation the State had become sufficiently involved in the privately chosen segregation of the restaurant to make that segregation state action. The Court commented:
96
'While these Florida regulations do not directly and expressly forbid restaurants to serve both white and colored people together, they certainly embody a state policy putting burdens upon any restaurant which serves both races, burdens bound to discourage the serving of the two races together.' 378 U.S., at 156, 84 S.Ct. at 1695.
97
Robinson involved neither a state command of restaurant segregation, as in Peterson, nor a state policy of enforcing restaurant segregation, as in Lombard. It involved state imposition of burdens amounting to discouragement of private integration. It is true that the burden in that case happened to take the form of a requirement of segregated lavatory facilities; but any other burden—for example, a tax on integrated restaurants would have sufficed to render the privately chosen restaurant segregation unconstitutional state action. Again, the Court's finding of state action did not depend on the use of the State's trespass law. Robinson thus stands for the proposition that state discouragement of a particular kind of privately chosen integration renders that kind of privately chosen segregation unconstitutional state action.
98
The step from Peterson, Lombard, and Robinson to the present case is a small one. Indeed, it may be no step at all, since those cases together hold that a state policy of discouraging privately chosen integration or encouraging privately chosen segregation, even though the policy is expressed in a form non-discriminatory on its face, is unconstitutional and taints the privately chosen segregation it seeks to bring about. These precedents suggest that the question of state action in this case is whether, as petitioner contends, Mississippi statutes do in fact manifest a state policy of encouraging and supporting restaurant segregation so that respondent's alleged privately chosen segregation is unconstitutional state action.
99
To establish the existence in 1964 of a state statutory policy to maintain segregation in restaurant facilities, petitioner relies principally on Miss.Code Ann. § 2046.5 (1956), which, on its face, 'authorizes' and 'empowers' owners of hotels, restaurants, and other places of public accommodation and amusement to refuse to serve whomsoever they choose.2 The decision whether to serve a particular individual is left to the unfettered discretion of the restaurant management, which may refuse service for any reason or for no reason. Thus, while there is no explicit command in § 2046.5 that segregated eating facilities be maintained, a refusal to serve on the basis of race alone falls clearly within the broad terms of the statute. The restaurateur is informed, in essence, that he may discriminate for racial or any other reasons and that he may call upon the police power of the State to make that private decision effective through the trespass sanctions expressly incorporated in § 2046.5. It is clear that, to the extent that the statute authorizes and empowers restaurateurs to discriminate on the basis of race, it cannot pass muster under the Fourteenth Amendment. Burton v. Wilmington Parking Authority, supra, 365 U.S., at 726—727, 81 S.Ct., at 862—863 (Stewart, J., concurring).
100
Burton involved a statute that permitted a restaurateur to refuse service to 'persons whose reception or entertainment by him would be offensive to the major part of his customers * * *.' Mr. Justice Stewart took the position that the state courts had 'construed this legislative enactment as authorizing discriminatory classification based exclusively on color.' 365 U.S., at 726—727, 81 S.Ct., at 862. Justices Frankfurter, Harlan, and Whittaker, the only other Justices who dealt at length with the statute,3 agreed that it would violate the Fourteenth Amendment if so construed. However, they thought the construction adopted by the state courts insufficiently clear to make possible a final determination of the issue.
101
The language of § 2046.5 is considerably broader than that involved in Burton. Although § 2046.5 apparently has not been authoritatively interpreted by the state courts, its plain language clearly authorizes a restaurateur to refuse service for any reason, which obviously includes a refusal based upon race. Were there any conceivable doubt that § 2046.5 was intended to authorize, inter alia, 'discriminatory classification based exclusively on color,' it is completely dispelled by a consideration of the historical context in which § 2046.5 was enacted.
102
A legislative or constitutional provision need not be considered in isolation, but may be examined 'in terms of its 'immediate objective,' its 'ultimate effect' and its 'historical context and the conditions existing prior to its enactment." Reitman v. Mulkey, supra, 387 U.S., at 373, 87 S.Ct., at 1630; cf. Lombard v. Louisiana, supra. Through the 1950's and 1960's Mississippi had a 'steel-hard, inflexible, undeviating official policy of segregation.' United States v. City of Jackson, 318 F.2d 1, 5 (C.A. 5th Cir. 1963) (Wisdom, J.). See generally J. Silver, Mississippi: The Closed Society (1964). Section 2046.5 itself was originally enacted in 1956 in the wake of our decisions in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). It was passed contemporaneously with numerous statutes and resolutions condemning Brown,4 requiring racial segregation in various transportation facilities,5 and committing the state government to continued adherence to the principles of racial segregation.6 Together with these other statutes and resolutions, § 2046.5 is indexed in the 1956 Mississippi Session Laws under 'Segregation' and 'Races.'7 Prior to 1956, the State had declared unlawful any conspiracy '(t)o overthrow or violate the segregation laws of this state * * *.'8 Subsequent to the passage of § 2046.5, breach of the peace, vagrancy, and trespass statutes similar to § 2046.59 were enacted or employed to give local officials additional weapons to combat attempts to desegregate places of public accommodation. See, .e.g., Dilworth v. Riner, 343 F.2d 226 (C.A.5th Cir. 1965).10
103
Illustrative of the practical effect of these various provisions is the incident that gave rise to this litigation. Petitioner was arrested for vagrancy shortly after she had unsuccessfully sought service at respondent's store. In ordering dismissal of the charges after removal of the prosecutions to the federal courts, the Court of Appeals for the Fifth Circuit noted '(t)he utter baselessness of any conceivable contention that the vagrancy statutes prohibited any conduct in which these persons were engaged' and concluded that the arrests had been made solely because petitioner had attempted to receive service at a city library and at respondent's store in the company of Negro friends. Achtenberg v. Mississippi, 393 F.2d 468, 474—475 (C.A.5th Cir. 1968).11
104
In sum, it may be said of the various statutes and resolutions that constituted Mississippi's response to Brown that 'they are bound together as the parts of a single plan. The plan may make the parts unlawful.' Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518 (1905) (Holmes, J.). Section 2046.5 was an integral part of this scheme to foster and encourage the practice of segregation in places of public accommodation and elsewhere, which it furthered by authorizing discrimination and by affording those who elected to discriminate on the basis of race a remedy under state law. Indeed, it is difficult to conceive of any purpose for the enactment of § 2046.5 other than to make clear the authorization of private discrimination where such express authorization did not exist previously. Cf. Mulkey v. Reitman, 64 Cal. 2d 529, 544, 50 Cal.Rptr. 881, 413 P.2d 825, 835—836 (1966), aff'd, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967).
105
Judge Waterman, dissenting in the Court of Appeals, states that under the common law an innkeeper, and by analogy a restaurateur, did not have the right to serve only whomever he wished and to discriminate on the basis of race in selecting his customers. 409 F.2d 121, 131—133. See Bell v. Maryland, 378 U.S., 226, at 296—300, 84 S.Ct. 1814, at 1852—1855, 12 L.2d 822 (1964) (Goldberg, J., concurring). Since the common law is presumed to apply in Mississippi, Western Union Telegraph Co. v. Goodman, 166 Miss. 782, 146 So. 128 (1933), Judge Waterman concludes that the State has 'drastically changed the common law' by enacting § 2046.5.12 409 F.2d, at 132. Further support for this view can be found in the preamble to § 2046.5 which states that the provision 'confer(s) upon any person * * * the further right to refuse to sell or render a service to any person * * *.' Miss.Laws 1956, c. 257. (Emphasis added.) This formulation suggests that the legislature intended to alter the existing state law.
106
It is not completely clear, however, that the common law in regard to innkeepers and restaurateurs, as understood by Judge Waterman, was ever widely enforced in Mississippi in racial matters. In Reconstruction times the State enacted a civil rights law that forbade discrimination in places of public accommodation and amusement. See Miss.Laws 1873, c. LXIII. It was upheld and applied in Donnell v. State, 48 Miss. 661 (1873). That law, however, quickly fell into desuetude.13 Thus some question exists as to whether Mississippi 'changed' the law as it existed in that State in 1956. At least it can be said, however, that Mississippi, by enacting § 2046.5, clarified the state law, and in doing so elected to place the full authority of the State behind private acts of discrimination. Since § 2046.5 authorizes discrimination on the basis of race, it is invalid as applied to authorize such discrimination in particular cases.
107
The remaining question concerning this aspect of the present case is what nexus between § 2046.5 and respondent's alleged discrimination petitioner must show to establish that that discrimination is state action violative of the Fourteenth Amendment. Our prior decisions leave no doubt that the mere existence of efforts by the State, through legislation or otherwise, to authorize, encourage, or otherwise support racial discrimination in a particular facet of life constitutes illegal state involvement in those pertinent private acts of discrimination that subsequently occur. See, e.g., Peterson v. City of Greenville, supra; Lombard v. Louisiana, supra; Robinson v. Florida, supra.14 This is so, as we noted in Reitman v. Mulkey, supra, 387 U.S., at 380, 87 S.Ct., at 1633 whether or not the private discriminator was actually influenced in the commission of his act by the policy of the State. Thus, when private action conforms with state policy, it becomes a manifestation of that policy and is thereby drawn within the ambit of state action. In sum, if an individual discriminates on the basis of race and does so in conformity with the State's policy to authorize or encourage such discrimination, neither the State nor the private party will be heard to say that their mutual involvement is outside the prohibitions of the Fourteenth Amendment. Therefore, in light of the statutory scheme including § 2046.5, which authorized and encouraged restaurant segregation, petitioner will fully satisfy the state-action requirement of the Fourteenth Amendment if she establishes that she was refused service on the basis of race.
108
I turn now to the other elements of petitioner's case under § 1983.
II
109
Title 42 U.S.C. § 1983 derives from § 1 of the Civil Rights Act of 1871, 17 Stat. 13, entitled, 'An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.'15 The 1871 Act, popularly known as the 'Ku Klux Klan Act,' was, as its legislative history makes absolutely clear, a response to the outrages committed by the Klan in many parts of the South. The conditions that gave rise to the Act were discussed extensively in Monroe v. Pape, 365 U.S. 167, 172—183, 81 S.Ct. 473, 476—482 (1961). In the context of that case we pointed out that although the 1871 Act was engendered by the activities of the Klan, the language and purposes of § 1983 are not restricted to that evil. See 365 U.S., at 183, 81 S.Ct., at 482. See also United States v. Mosley, 238 U.S. 383, 388, 35 S.Ct. 904, 906, 59 L.Ed. 1355 (1915), where Mr. Justice Holmes, speaking for the Court, commented on § 6 of the Enforcement Act of 1870, 16 Stat. 141, as amended, now 18 U.S.C. § 241, in words applicable to § 1983:
110
'Just as the Fourteenth Amendment * * * was adopted with a view to the protection of the colored race, but has been found to be equally important in its application to the rights of all, (the statute) had a general scope and used general words that have become the most important now that the Ku Klux have passed away. * * * (W)e cannot allow the past so far to affect the present as to deprive citizens of the United States of the general protection which, on its face (the statute) most reasonably affords.'
111
Stirred to action by the wholesale breakdown of protection of civil rights in the South, Congress carried to completion the creation of a comprehensive scheme of remedies—civil, criminal, and military16—for the protection of constitutional rights from all major interference.
112
In the 1871 Act, Congress undertook to provide broad federal civil remedies against interference with the exercise and actual enjoyment of constitutional rights, particularly the right to equal protection. Section 1 (now § 1983) provided a civil remedy for deprivation of any constitutional right by a person acting 'under color of any law, statute, ordinance, regulation, custom, or usage of any State * * *.' Section 2 (now surviving in part as § 1985(3)) provided a civil and a criminal remedy against conspiratorial interference with any person's enjoyment of equal protection. Section 6 (now § 1986) cast the net of civil liability even more widely by providing a remedy against any person who, having the ability by reasonable diligence to prevent a violation of § 2, fails to do so. These remedies were bolstered by other criminal provisions of § 2 and by previously enacted criminal laws. Section 2 of the Civil Rights Act of 1866, 14 Stat. 27, re-enacted as § 17 of the Enforcement Act of 1870, 16 Stat. 144, as amended, now 18 U.S.C. § 242, provided a criminal remedy against what amounts to a violation of § 1983. Section 6 of the Enforcement Act of 1870, 16 Stat. 141 as amended, now 18 U.S.C. § 241, provided a criminal remedy against conspiracies to interfere with the exercise or enjoyment of a federal right.17
113
The history of this scheme of remedies for the protection of civil rights was, until very recently, one of virtual nullification by this Court. Key provisions were declared unconstitutional or given an unduly narrow construction wholly out of keeping with their purposes.18 In United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1883), the Court invalidated the criminal provision of § 2 of the Ku Klux Klan Act, the criminal analogue to § 1985(3), on the ground that Congress was not authorized by § 5 of the Fourteenth Amendment to prohibit interference by private persons with the exercise of Fourteenth Amendment rights, except perhaps in extreme and remote circumstances. Essential to the holding was a recognition that the language of § 2 plainly reaches conspiracies not involving state officials. See also Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 656, 32 L.Ed. 766 (1887). The statute (Rev.Stat. § 5519) was repealed in 1909. 35 Stat. 1154. In Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951), the Court, under the influence of Harris, construed § 1985(3). Pointing out that the language of § 1985(3) is exactly the same (except for the remedy provided) as the language of the statute condemned in Harris, the Court thought it necessary to read in a limitation of the section to conspiracies involving state action, in order to sustain its constitutionality. This limiting construction necessarily carried over to § 1986, whose scope is keyed to that of § 1985.
114
Section 241 of 18 U.S.C. fared little better. That statute, as indicated, deals generally with conspiracies to interfere with the exercise of federal rights. It was established soon after its enactment that § 241 reaches conspiracies among private persons to interfere with 'rights which arise from the relationship of the individual and the Federal Government.' United States v. Williams, 341 U.S. 70, 77, 71 S.Ct. 581, 585, 95 L.Ed. 758 (1951) (opinion of Frankfurter, J.). See e.g., Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884); United States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673 (1884); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892); In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1895). However, the concept of 'arising from' was given a very narrow construction in United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876). Moreover, in United States v. Williams, supra, the Court divided 4 to 4 on the question whether § 241 reaches private conspiracies to interfere with the exercise of Fourteenth Amendment rights, which arise from the relation of an individual and a State. The four members of the Court who thought § 241 does not protect the exercise of Fourteenth Amendment rights placed considerable reliance on the argument that § 241 would be unconstitutional if construed otherwise. See 341 U.S., at 77—78, 71 S.Ct., at 584—585. See also Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65 (1906).
115
Although the other principal criminal statute protecting civil rights, 18 U.S.C. § 242, the criminal analogue to § 1983, was construed to protect Fourteenth Amendment rights, it was nonetheless held constitutional. However, under this statute a violation can be found only if the defendant acted 'willfully,' that is, with 'a specific intent to deprive a person of a federal right made definite by decision or other rule of law.' See Screws v. United States, 325 U.S. 91, 103, 65 S.Ct. 1031, 1036, 89 L.Ed. 1495 (1945). Moreover, this Court has never had occasion to consider whether § 242 reaches wholly nonofficial conduct.
116
Thus, until very recently, the construction of the surviving remedial civil rights statutes was narrowed or placed in doubt by a restrictive view of the power of Congress under § 5 of the Fourteenth Amendment. But that view of congressional power has now been completely rejected by this Court.
117
In United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), and United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966), the Court expressly held that § 241 does protect Fourteenth Amendment rights, thereby squarely resolving the issue that divided the court in Williams. Because the conspiracy in Guest was alleged to have been carried out by private persons acting in conjunction with state officials,19 the Court found it unnecessary to consider whether § 241 would be constitutional if construed to reach wholly private conspiracies to interfere with the exercise of Fourteenth Amendment rights. However, to put the point beyond doubt, six members of the Court in Guest expressly stated their view that Congress has power under § 5 of the Fourteenth Amendment to protect Fourteenth Amendment rights against interference by private persons, without regard to state involvement in the private interference. See United States v. Guest, supra, 383 U.S., at 761—762, 86 S.Ct., at 1180—1181 (opinion of Clark, J., joined by Black and Fortas, JJ.), 774—786, 86 S.Ct. 1186—1193 (opinion of Brennan, J., joined by Warren, C.J., and Douglas, J.). This general view of congressional power under § 5 was expressly adopted by the Court in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), where we said:
118
'By including § 5 the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18. * * * Correctly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.' 384 U.S., at 650 651, 86 S.Ct., at 1723.
119
See also South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769. (1966).20
120
Thus the holding of Harris and the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), that Congress cannot under § 5 protect the exercise of Fourteenth Amendment rights from private interference has been overruled. See United States v. Guest, supra, 383 U.S., at 782—783, 86 S.Ct., at 1190—1192 (opinion of Brennan, J.). Consequently, the interpretation of the civil rights statutes need no longer be warped by unwarranted concern that Congress lacks power under § 5 to reach conduct by persons other than public officials. There is no doubt that § 1983 protects Fourteenth Amendment rights. See Monroe v. Pape, supra, 365 U.S., at 170—171, 81 S.Ct., at 475—476; id., at 205—206, 81 S.Ct., at 493—494 (opinion of Frankfurter, J.). Accordingly, the only substantial question in this branch of the present case is whether § 1983 was intended by Congress to reach nonofficial conduct of the kind at issue here.
121
Petitioner contends that respondent's discrimination against her was within the scope of § 1983 on either of two grounds. First, she claims that respondent acted under color of Mississippi statutory law, and in particular Mississippi Code § 2046.5. Second, she claims that respondent acted under color of a custom or usage of Mississippi, which prescribed segregation of the races in dining facilities.
122
Petitioner's claim that respondent acted under color of Mississippi statutory law is similar to her claim that respondent's action constituted state action. Indeed, the two claims would be proved by the same factual showing if respondent were a state official who acted by virtue of his official capacity or a private party acting in conjunction with such state official, for when a state official acts by virtue of his official capacity it is precisely the use or misuse of state authority that makes the action state action. However, when a private party acts alone,21 more must be shown, in my view, to establish that he acts 'under color of' a state statute or other authority than is needed to show that his action constitutes state action.
123
As I pointed out in Part I, supra, under the constitutional principle that no State shall have any significant involvement whatever in racial discrimination, and under our prior cases, the mere existence of a state policy authorizing, encouraging, or otherwise supporting racial discrimination in a particular kind of service is sufficient to render private discrimination in that service state action. However, the statutory term 'under color of any statute' has a narrower meaning than the constitutional concept of 'state action.' The 'under color' language of § 1983 serves generally to limit the kinds of constitutional violation for which the section provides a remedy. To understand how that language applies to private persons, it is helpful to consider its application to state officials. In other legal usage, the word 'color,' as in 'color of authority,' 'color of law,' 'color of office,' 'color of title,' and 'colorable,' suggests a kind of holding out and means 'appearance, semblance, or simulacrum,' but not necessarily the reality. See H. Black, Law Dictionary 331—332 (rev.4th ed. 1968). However, as the word appears in § 1983, it covers both actions actually authorized by a State, see Myers v. Anderson, 238 U.S. 368, 35 S.Ct. 932, 59 L.Ed. 1349 (1915); Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927); Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939), and misuse of state authority in ways not intended by the State, see, e.g., Monroe v. Pape, supra; Screws v. United States, supra, 325 U.S. at 111, 65 S.Ct. 1040. In some of these latter situations there is a holding out in that the official uses his actual authority to give the appearance that he has authority to take the particular action he is taking. In other cases the abuse of power is so palpable that the victim or any observer may well be aware that the official is exceeding his authority, so that any holding out of authority would be wholly transparent. In these cases the misuse of authority alone is enough to warrant recovery. See, e.g., Monroe v. Pape, supra; United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941); Catlette v. United States, 132 F.2d 902 (C.A.4th Cir. 1943). Thus, a public official acting by virtue of his official capacity always acts under color of a state statute or other law, whether or not he overtly relies on that authority to support his action, and whether or not that action violates state law. A private person acts 'under color of' a state statute or other law when he, like the official, in some way acts consciously pursuant to some law that gives him aid, comfort, or incentive, cf. Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964); Flemming v. South Carolina Elec. & Gas Co., 224 F.2d 752 (C.A.4th Cir. 1955), appeal dismissed, 351 U.S. 901, 76 S.Ct. 692, 100 L.Ed. 1439 (1956); or when he acts in conjunction with a state official, as in United States v. Price, supra. In the present case Mississippi statutory law did authorize and encourage respondent to discriminate against petitioner on the basic of race. Therefore petitioner can establish that respondent acted 'under color of' Mississippi statutory law by showing that respondent was aware of that body of law as prescribing, encouraging, authorizing, legitimating, effectuating, or otherwise supporting its refusal to serve petitioner. The vice of action under color of statute exists wherever the private discriminator consciously draws from a state statute any kind of support for his discrimination. Therefore, it is irrelevant that petitioner was not arrested under the trespass provision of § 2046.5.
124
Petitioner's second contention, that respondent discriminated against her 'under color of (a) custom, or usage' of Mississippi, presents more difficulty. I have found few prior cases construing the phrase 'under color of custom, or usage' in the context of § 1983;22 and it has not been litigated under 18 U.S.C. § 242, though in that context it was briefly discussed in the opinions in Jones v. Alfred H. Mayer Co., supra. It is true that on occasion this Court has summed up the statutory language 'under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory' as meaning 'under color of law,' and as incorporating a requirement of state action akin to that of the Equal Protection Clause. See, e.g., United States v. Price, supra, 383 U.S. at 794, 86 S.Ct., at 1157 n. 7. But the loose and vague phrase 'under color of law' has always been used by the Court in the context of cases in which reliance was put on something other than 'custom or usage.' The Court has never held, or even intimated, that 'custom or usage' means 'law.' Indeed, Mr. Justice Harlan, dissenting in Jones v. Alfred H. Mayer Co., supra, used a different formula in summarizing the 'under color of' language in § 242; he said it referred to 'action taken pursuant to state or community authority.' 392 U.S., at 454, 88 S.Ct., at 2211. Moreover, he referred to 'discriminations which were legitimated by a state or community sanction sufficiently powerful to deserve the name 'custom." Id., at 457, 88 S.Ct., at 2212. (Emphasis added). See also Monroe v. Pape, supra, 365 U.S. at 193, 81 S.Ct., at 487 (Harlan, J., concurring) ('abuses so recurrent as to amount to 'custom, or usage"). Thus, 'under color of law' has not been the only formula used by members of this Court to summarize the parallel language in §§ 242 and 1983.23 It is also true that the phrase 'under color of law' occurs in the debates on the 1871 Act, see n. 25, infra. But since in the original version of § 1983, as introduced and enacted, the word 'law' was the first word in the enumeration following 'color of,'24 the use of 'under color of law' as a handy formula in debate is readily explained. More importantly, the phrase has never been taken to be a considered, comprehensive, and authoritative summation of the provisions of § 1983. As this Court said over a century ago and has since repeated, 'In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' United States v. Boisdore § Heirs, 8 How. 113, 122, 12 L.Ed. 1009 (1849) (Taney, C.J.,); Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956); Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 592, 7 L.Ed.2d 492 (1962); Dandridge v. Williams, 397 U.S. 471, 517, 90 S.Ct. 1153, 1173, 25 L.Ed.2d 491 (1970) (Marshall, J., dissenting).
125
The legislative history of § 1983 provides no direct guidance for the interpretation of the phrase 'custom or usage.' Much of the lengthy debate concerned the truth of the allegations of KKK outrages and the constitutionality and wisdom of other sections of the Act. Little attention was given to the precise wording of § 1983, and there was no sustained discussion of the meaning of 'custom or usage.'25 Consequently, in my view, we are called on to analyze the purposes Congress sought to achieve by enacting § 1983 in the context of the Civil Rights Act of 1871. Only by relating the phrase 'custom or usage' to congressional purposes can we properly interpret and apply the statutory language today.
126
In seeking to determine the purposes of § 1983, it is important to recall that it originated as part of a statute directed against the depredations of a private army. Cong. Globe, 42d Cong., 1st Sess., 339 (remarks of Rep. Kelley, a supporter of the bill). The Klan was recognized by Congress to be a widespread conspiracy 'operating wholly outside the law,' Jones v. Alfred H. Mayer Co., supra, 392 U.S., at 436, 88 S.Ct., at 2201, and employing a variety of methods to coerce Negroes and others to forgo exercise of civil rights theoretically protected by the Constitution and federal statutes. In some areas of the South the Klan was strong enough to paralyze the operations of state government. As Representative Coburn, a supporter of the bill, noted:
127
'Such, then, is the character of these outrages—numerous, repeated, continued from month to month and year to year, extending over many States; all similar in their character, aimed at a similar class of citizens; all palliated or excused or justified or absolutely denied by the same class of men. Not like the local outbreaks sometimes appearing in particular districts, where a mob or a band of regulators may for a time commit crimes and defy the law, but having every mark and attribute of a systematic, persistent, well-defined organization, with a fixed purpose, with a regular plan of action.
128
'The development of this condition of affairs was not the work of a day or even of a year. It could not be, in the nature of things; it must be slow; one fact to be piled on another, week after week, year after year. * * *
129
'Such occurrences show that there is a pre-concerted and effective plan by which thousands of men are deprived of the equal protection of the laws. The arresting power is fettered, the witnsesses are silenced, the courts are impotent, the laws are annulled, the criminal goes free, the persecuted citizen looks in vain for redress. This condition of affairs extends to counties and States; it is, in many places, the rule, and not the exception.' Cong. Globe, 42nd Cong., 1st Sess., 458—459.
130
See also id., at App. 172 (remarks of Sen. Pool, a supporter); id., at 653 (remarks of Sen. Osborn, a supporter); id., at 155—160 (remarks of Sen. Sherman, a supporter). Thus the mischief that the legislation of 1871 was intended to remedy derived, not from state action, but from concerted 'private' action that the States were unwilling or unable to cope with.
131
Senator Schurz, a moderate opponent who on behalf of the President had personally investigated the disorders in the South, summed up the condition to be dealt with:
132
'The real evil in the southern States you will find in the baffled pro-slavery tendency prevailing there; in a diseased public sentiment which partly vents itself in violent acts, partly winks at them, and partly permits itself to be overawed by them. That public sentiment is not only terrorizing timid people, but it is corrupting the jury-box, it is overawing the witness-stand, and it is thus obstructing the functions of justice.' Id., at 687.
133
Representative (later President) Garfield, a moderate supporter, focused more specifically on one of the principal evils § 1983 was designed to remedy:
134
'(T)he chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, of a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them.' Id., at App. 153.
135
Accordingly, in his view, § 1983 was intended to provide a remedy in federal court for, inter alia, certain denials of equal protection that occurred even in States with just and equal laws when some private persons acted against others and the State failed to provide protection. Thus, both the House and the Senate were quite aware that the task before them was to device a scheme of remedies against privately instigated interference with the exercise of constitutional rights, through terror, force of numbers, concerted action, and other means.
136
The debates in both Houses also make it clear that many of those who gave the most careful attention to the conditions that called for the bill, to the provisions of the bill itself, and to the problems of constitutionality and policy it presented, did not think that in § 1983 the Federal Government undertook to provide a federal remedy for every isolated act by private persons that amounted to interference with the exercise of a constitutional right. See, e.g., id., at 578—579 (remarks of Sen. Trumbull, an opponent); id., at 514 (remarks of Rep. Poland, a supporter and conferee); id., at App. 153 (remarks of Rep. Garfield); id., at App. 79 (remarks of Rep. A. Perry, a supporter).26 Where, for example, the injury to federal rights was the result of a genuinely individual act of private prejudice, then it could not be said that the state and local authorities were failing to give equal protection by countenancing major interference with the exercise of federal rights. Indeed, in most instances it could rightly be said that the acts of discrimination were isolated precisely because the State was affirmatively fulfilling its obligation to afford equal protection. In such circumstances no useful purpose would be served by providing a federal remedy for the isolated wrong, and the resulting federal intrusion into state affairs would be unjustified.
137
Near the conclusion of the debate, Rep. Garfield observed:
138
'I believe, Mr. Speaker, that we have at last secured a bill, trenchant in its provisions, that reaches down into the very heart of the Ku Klux organization, and yet is so guarded as to preserve intact the autonomy of the States, the machinery of the State governments, and the municipal organizations established under State laws.' Id., at 808.
139
This statute, 'trenchant' but measured, provided a scheme of three civil remedies, currently codified in §§ 1983, 1985, and 1986. In view of the purposes these remedies were designed to achieve, §§ 1983 would be read too narrowly if it were restricted to acts of state officials and those acting in concert with them. Congress did not say, 'Every state official and others acting in concert with him * * *'; Congress said, '(A)ny (now Every) person who, under color * * *' (emphasis added). Similarly, it would be read too broadly if interpreted to reach acts of purely individual discrimination. As I read § 1983 together with the other sections, against the background of the congressional debates, I understand them to protect the exercise of constitutional rights by reaching three kinds of interference that are sufficiently 'major' in their effects to have warranted congressional action.
140
The first category is that involving action under color of authority derived from state government and this category of invasions is clearly within § 1983. Where state officials of private persons acting consciously with state support participate in the interference with the exercise of federal rights, the interference assumes a far graver cast than it otherwise would have, and the authority of the State is brought into conflict with the authority of the Constitution. See, e.g., Monroe v. Pape, supra, 365 U.S. at 238, 81 S.Ct. at 511 (opinion of Frankfurter, J.).
141
The second category is that involving conspiracy, which is within the ambit of § 1985. It is well recognized in the criminal law that conspiratorial agreements for concerted action present aggravated dangers to society, see United States v. Rabinowich, 238 U.S. 78, 88, 35 S.Ct. 682, 684, 59 L.Ed. 1211 (1915); Pinkerton v. United States, 328 U.S. 640, 644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946); Krulewitch v. United States, 336 U.S. 440, 448—449, 69 S.Ct. 716, 720—721, 93 L.Ed. 790 (1949) (Jackson, J., concurring); Note, Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 920, 923—924 (1959), and for this general reason, as exemplified in the activities of the Ku Klux Klan, Congress provided for a civil remedy against conspiratorial interference with the right to equal protection.27
142
The third category is that where, in the absence of the overt elements of a conspiracy, constitutional rights are violated by widespread habitual practices or conventions regarded as prescribing norms for conduct, and supported by common consent, or official or unofficial community sanctions—in short, customs and usages. Where violation of constitutional rights is customary, the violation is, by definition, widespread and enduring, and therefore worthy of congressional response. As I read § 1983, that response was made in the provision of a remedy against
143
'(e)very person who, under color of any * * * custom, or usage, of any State * * * subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution * * *.'28
144
The excerpts from the congressional debate that I have quoted make clear that Congress wanted a civil remedy, not only against conspiratorial violence, but also against the perhaps more subtle but potentially more virulent customary infringements of constitutional rights. The Ku Klux Klan was an extreme reflection of broadly held attitudes toward Negroes and longstanding practices of denying them rights that the Constitution secured for all people. The fundamental evil was a 'diseased public sentiment' reflected in multifarious efforts to confine Negroes in their former status of inferiority. Accordingly, a statute designed to reach 'down into the very heart of the Ku Klux organization' had to deal with the widespread manifestations of that diseased public sentiment. Respect for constitutional rights was to be 'embodied not only in the laws, but intrenched in the daily habits of the American people * * *.' Cong. Globe, 42d Cong., 1st Sess., 339 (remarks of Rep. Kelley). Congress could not legislate popular sentiments, but in providing generally in the Ku Klux Klan Act for the protection of constitutional rights against major types of interference it could, and I think it did in § 1983, provide a remedy against violations that in particular States were so common as to be customary.
145
As this Court recently said in construing another of the early civil rights statutes, 'We think that history leaves no doubt that, if we are to give (the statute) the scope that its origins dictate, we must accord it a sweep as broad as its language.' United States v. Price, supra, 383 U.S. at 801, 86 S.Ct. at 1160. The language of § 1983 imposes no obstacle to an interpretation carrying out the congressional purposes I have identified. I think it clearly possible for a private person or entity like respondent to 'subject' a person or '(cause him) to be subjected * * * to the deprivation' of a constitutional right, as those quoted words are used in § 1983. In Monroe v. Pape, supra, we held that a cause of action was stated under § 1983 by an allegation that police officers invaded petitioners' home in violation of the Fourth and Fourteenth Amendments. Certainly if 'deprivation' in § 1983 means something like 'extinguishment,' then no cause of action could have been stated, for no policeman, nor even any state government as a whole, can extinguish a constitutional right, at least not while this Court sits. Cf. Panhandle Oil Co. v. State of Miss. ex rel. Knox, 277 U.S. 218, 223, 48 S.Ct. 451, 453, 72 L.Ed. 857 (Holmes, J., dissenting).29 A constitutional right can be extinguished only by amendment of the Constitution itself. If 'deprivation' meant 'extinguishment,' § 1983—and also 18 U.S.C. § 242—would be a nullity. Thus all the cases finding violations of these sections must be taken to have held that 'deprivation' as used in these statutes means, not 'extinguishment,' but rather something like 'violation,' 'denial,' or 'infringement.' Cf. Jones v. Alfred H. Mayer Co., supra, 392 U.S., at 420—421, 88 S.Ct., at 2193—2194; Cong. Globe, 39th Cong., 1st Sess., 605 (remarks of Sen. Trumbull, manager of 1866 Civil Rights bill, on § 242). As the present case illustrates, it is possible for private action in some circumstances to constitute state action violating a constitutional right, and such action amounts to 'deprivation' within the meaning of § 1983.
146
In discussing petitioner's contention that respondent acted under color of state law I have already indicated my understanding of the words 'under color of.' See supra, at 211—212. I would apply that understanding here as well. I read 'custom, or usage' in § 1983 to mean what it has usually meant at common law—a widespread and longstanding practice, commonly regarded as prescribing norms for conduct, and backed by sanctions. See, e.g., Strother v. Lucas, 12 Pet. 410, 437, 445—446, 9 L.Ed. 1137 (1838); United States v. Arredondo, 6 Pet. 691, 713—714, 8 L.Ed. 547 (1832). The sanctions need not be imposed by the State. A custom can have the effect or force of law even where it is not backed by the force of the State. See, e.g., Adams v. Otterback, 15 How. 539, 545, 14 L.Ed. 805 (1854); Merchants' Bank v. State Bank, 10 Wall. 604, 651, 19 L.Ed. 1008 (1871); cf. Jones v. Alfred H. Mayer Co., supra, 392 U.S. at 423, 88 S.Ct., at 2194.30 The power of custom to generate and impose rules of conduct, even without the support of the State, has long been recognized. See, e.g., Mercer County v. Hacket, 1 Wall. 83, 95, 17 L.Ed. 548 (1864); 1 W. Blackstone, Commentaries *64; B. Cardozo, The Nature of the Judicial Process 58—64 (1921).31
147
Of course, a custom or usage is within § 1983 only if it is a custom of a 'State or Territory.' It was recognized during the debate on the Ku Klux Klan Act that the word 'State' does not refer only to state government. In Texas v. White, 7 Wall. 700, 720—721, 19 L.Ed. 227 (1869),32 decided just two years before the debate, this Court said of the word 'State' as used in the Constitution:
148
'It describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region, inhabited by such a community; not unfrequently it is applied to the government under which the people live; at other times it represents the combined idea of people, territory, and government.
149
'It is not difficult to see that in all these senses the primary conception is that of a people or community. The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the state.
150
'This is undoubtedly the fundamental idea upon which the republican institutions of our own country are established. * * *
151
'In the Constitution the term state most frequently expresses the combined idea just noticed, of people, territory, and government. A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.'
152
This language was quoted in the debate. See Cong. Globe, 42d Cong., 1st Sess., App. 80 (remarks of Rep. A. Perry). When the word 'State' in § 1983 is so understood, then it is not at all strained or tortured—indeed, it is perfectly natural—to read 'custom' as meaning simply 'custom' in the enumeration 'statute, ordinance, regulation, custom, or usage, of any State.' Moreover, I agree with the Court that just as an ordinance can be state action, so, too, can a custom of a subdivision of a State be a custom 'of (a) State' for purposes of § 1983; and in my view a custom of the people living in a subdivision is a custom of the subdivision. Thus a person acts under color of a custom or usage of a State when there is among the people of a State or subdivision of a State a widespread and longstanding practice regarded as prescribing norms for conduct and supported by community sentiment or sanctions, and a person acts in accordance with this custom either from a belief that the norms it prescribes authorize or require his conduct or from a belief that the community at large regards it as authorizing or requiring his conduct.33
153
The Court eschews any attempt to interpret § 1983 against the background of a rational scheme of congressional purposes. Instead it relies basically on three sets of materials to support its restrictive interpretation of the statute. First are cases; some make casual use of the vague phrase 'under color of law' as a summation of the 'under color' language of § 1983, and the rest interpret the significance of custom either under an erroneous theory of constitutional law or outside the specific context of § 1983 altogether. I have already shown why these cases are hardly relevant, much less controlling, here. See supra, at 213—214 and n. 22. The Court's second set of authorities consists of three quotations from the legislative history purporting to explain the scope of § 1983. I have already shown that such quotations cannot be set up as a reliable guide to interpretation. See n. 25, supra. Given the demonstrable lack of consensus among the debaters on this precise issue, it is highly misleading to select two or three statements arguably favorable to one view and pronounce them authoritative. Moreover, as I have already indicated, see n. 25, supra, the remarks of Representative Shellabarger and Senator Edmunds consist merely of a handy formula for a debate not directed to matters of draftsmanship, and are themselves subject to varying interpretation.
154
Finally, the Court dwells on the relative lack of controversy over § 1983 in contrast to the heated debate over § 2 of the 1871 Act. However, despite Senator Edmunds' complacement prediction, § 1983 was opposed, and opposed vigorously. Senator Johnston commented, 'The Senator from Vermont (Senator Edmunds) said that there would be no objection to the first section of the bill. That section, in my view, has only the slight objection of being unconstitutional.' Cong. Globe, 42d Cong., 1st Sess., App. 215. Representative McHenry called § 1983 an 'outrage,' a 'flagrant infraction' of the Constitution. Id., at 429. Representative Edward Rice characterized it as bringing 'lambs to the slaughter'; it was, he said, 'a provision for dragging persons from their homes, from their neighbors, and from the vicinage of the witnesses for the redress of private grievances to the Federal courts.' Id., at 395. See also id., at App. 216—217 (remarks of San. Thurman).
155
Moreover, the Court does not adequately characterize the controversy over § 2 of the Act. As originally proposed, § 2 would have made a federal crime of any conspiracy in a State to commit an act that if committed on a federal enclave would constitute 'murder, manslaughter, mayhem, robbery, assault and battery, perjury, subornation of perjury, criminal obstruction of legal process or resistance of officers in discharge of official duty, arson, or larceny.' See id., at App. 68—69 (remarks of Rep. Shellabarger). Extreme opponents of the bill attacked this section, as they attacked other sections. Moderate opponents objected not because the section reached private conduct but because it ousted the States from a broad range of their criminal jurisdiction even where they were successfully meeting their constitutional obligation to provide equal protection. See, e.g., id., at 366 (remarks of Rep. Arthur, an opponent). Representative Garfield, for example, criticized the original § 2, see id., at App. 153, but praised and voted for the final bill, including § 2, which he understood to reach private conduct, see id., at 807, 808.
156
On its intrinsic merits, the Court's conclusion that custom 'for purposes of § 1983 must have the force of law' would be wholly acceptable if the phrase 'force of law' meant, as at common law, merely that custom must have the effect of law—that it be generally regarded as having normative force, whether or not enforced or otherwise supported by government. It is clear, however, that this is not the Court's meaning. The Court takes the position that custom can acquire the force of law only 'by virtue of the persistent practices of state officials.' Little in the debate supports this narrow reading of the statute. The statement by Representative Garfield on which the Court relies, ante, at 167, refers not merely to 'permanent and well-settled' official practices, but more broadly to 'systematic maladministration of (the laws), or a neglect or refusal to enforce' them. In short, under Representative Garfield's theory of the Equal Protection Clause, private customary violations of constitutional rights on the basis of race were denials of equal protection because of the failure of the State to prevent or remedy them. Mere state inaction converted customary private discrimination into a denial of equal protection, which Congress under §§ 1 and 5 had power to remedy. See also Cong. Globe, 42d Cong., 1st Sess., 333—334 (remarks of Rep. Hoar, a moderate supporter); id., at 375 (remarks of Rep. Lowe, a supporter). Our cases have never explicitly held that state inaction alone in the face of purely private discrimination constitutes a denial of equal protection. But cf. Burton v. Wilmington Parking Authority, supra, 365 U.S., at 725, 81 S.Ct., at 861; Catlette v. United States, 132 F.2d 902, 907 (C.A.4th Cir. 1943); Lynch v. United States, 189 F.2d 476 (C.A.5th Cir. 1951); Henkin, Shelley v. Kraemer: Notes for a Revised Opinion, 110 U.Pa.L.Rev. 473 (1962); see also supra, at 189. Nevertheless, the constitutional theory of the men who enacted § 1983 remains relevant for our interpretation of its meaning. Representative Garfield's theory of § 1 of the Fourteenth Amendment and of congressional power under §§ 1 and 5 had strong support in the debate. See Harris, supra, n. 26. Recognition of that theory—and a fortiori of the other principal theory among the bill's supporters, the radical view that the Fourteenth Amendment empowers Congress to assert plenary jurisdiction over state affairs, see ibid.—only provides further confirmation for the conclusion that 'custom' in § 1983 means custom of the people of a State, not custom of state officials.
III
157
Since this case is being remanded, I think it proper to express my views on the kinds of relief to which petitioner may be entitled if she should prevail on the merits.
158
Section 1983 in effect authorizes the federal courts to protect rights 'secured by the Constitution and laws' by invoking any of the remedies known to the arsenal of the law. Standards governing the granting of relief under § 1983 are to be developed by the federal courts in accordance with the purposes of the statute and as a matter of federal common law. See Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Monroe v. Pape, supra; Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Basista v. Weir, 340 F.2d 74, 85—87 (C.A.3d Cir. 1965); cf. Sullivan v. Little Hunting Park, 396 U.S. 229, 238—240, 90 S.Ct. 400, 405—406, 24 L.Ed.2d 386 (1969); J. I. Case Co. v. Borak, 377 U.S. 426, 433—434, 84 S.Ct. 1555, 1560 1561, 12 L.Ed.2d 423 (1964). Of course, where justice requires it, federal district courts are duty-bound to enrich the jurisprudence of § 1983 by looking to the remedies provided by the States wherein they sit. 42 U.S.C. § 1988. But resort to state law as such should be had only in cases where for some reason federal remedial law is not and cannot be made adequate to carry out the purposes of the statute.
159
Section 1983 does not in general impose strict liability on all who come within its prohibitions; certain broad immunities are recognized. See Tenney v. Brandhove, supra; Monroe v. Pape, supra, 365 U.S. at 187—192, 81 S.Ct., at 484—487; Pierson v. Ray, supra, 386 U.S. at 553—555, 87 S.Ct., at 1217—1218. In some types of cases where the wrong under § 1983 is closely analogous to a wrong recognized in the law of torts, it is appropriate for the federal court to apply the relevant tort doctrines as to the bearing of particular mental elements on the existence and amount of liability. See, e.g., Pierson v. Ray, supra; Whirl v. Kern, 407 F.2d 781 (C.A.5th Cir. 1969). In other types of cases, however, the common law of torts may be divided on important questions of defenses and relief, or it may be inadequate to carry out the purposes of the statute. Thus the common law is not an infallible guide for the development of § 1983. In particular, denial of equal protection on the basis of race was the central evil that § 1983 was designed to stamp out. Where that is the basis for recovery, relief should not depend on the vagaries of the general common law but should be governed by uniform and effective federal standards.
160
The appropriateness of any particular remedy in a given case depends on the circumstances of that case, and especially on the degree of culpability of the defendant. In my view, where a plaintiff shows a voluntary denial of equal protection on the ground of race amounting to a violation of § 1983 he is entitled to recover compensation for actual damages, if any, simply on the basis of the proved violation. The question of compensatory damages is one of allocation of actual loss, and, as between the innocent plaintiff and the defendant who deliberately discriminates on the basis of race, I think it just and faithful to the statutory purposes to impose the loss on the discriminator, even if he was unaware that his discrimination constituted state action denying equal protection. Proof of an evil motive or of a specific intent to deprive a person of a constitutional right is generally not required under § 1983. Monroe v. Pape, supra, 365 U.S. at 183—187, 81 S.Ct., at 481—484; Whirl v. Kern, supra. And, indeed, in Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927), and Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939), this Court upheld complaints seeking $5,000 recoveries from state election officials who merely carried out their official duty to prevent the plaintiffs from voting under discriminatory state statutes which made them ineligible to vote. Of course, there may be cases where it would be proper to give declaratory or injunctive relief without damages. See Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 370, 293 F.2d 835, 847 (1961) (Bazelon, J., dissenting).
161
To recover punitive damages, I believe a plaintiff must show more than a bare violation of § 1983. On the other hand, he need not show that the defendant specifically intended to deprive him of a recognized federal right, as is required by the word 'willfully' in 18 U.S.C. § 242, see Screws v. United States, supra. Nor need he show actual damages. Basista v. Weir, supra, 340 F.2d at 87—88; Tracy v. Robbins, 40 F.R.D. 108, 113 (D.C.S.C.1966). It is sufficient for the plaintiff to show either that the defendant acted 'under color of (a) statute, ordinance, regulation, custom, or usage of any State or Territory,' with actual knowledge that he was violating a right 'secured by the Constitution and laws,' or that the defendant acted with reckless disregard of whether he was thus violating such a right. Cf. C. McCormick, Handbook on the Law of Damages § 79 (1935). However, in my view, a proprietor of a place of public accommodation who discriminates on the basis of race after our decision in Peterson v. City of Greenville, supra, and the enactment of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a to 2000h—6, does so with reckless disregard as a matter of law, and therefore may be found liable for punitive damages.34 Of course, it is proper for the factfinder to consider the degree of recklessness or actual knowledge and other circumstances in assessing the amount of punitive damages to award in a particular case.
162
It may be argued that it is inequitable to impose punitive damages on a defendant, a restaurateur for example, who knowingly or recklessly violates a constitutional right and § 1983 out of fear that he will lose some of his customers if he does not. That argument is plainly unacceptable. The protection of constitutional rights may not be watered down because some members of the public actively oppose the exercise of constitutional rights by others. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). To give any weight at all to that argument would be to encourage popular opposition to compliance with the Constitution. Moreover, the argument is particularly devoid of merit in the context of § 1983, which was enacted by a Congress determined to stamp out widespread violations of constitutional rights at virtually any cost, and which imposed liability even on persons who simply failed to prevent certain violations. See Cong. Globe, 41st Cong., 1st Sess., 804 (remarks of Rep. Poland). If § 1983 is given an interpretation befitting its purposes, the threat of withdrawal of patronage will be largely empty since no other place of public accommodation in the community will be in a better position to discriminate. The prospect of substantial punitive damages may be the most effective means to persuade all proprietors of places of public accommodation to respect constitutional rights.
1
Rev.Stat. § 1979, 42 U.S.C. § 1983 provides:
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State of Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
2
The District Court denied petitioner's request to amend her complaint to include a third count seeking liquidated damages under §§ 1 and 2 of the Civil Rights Act of 1875, 18 Stat. 335. Although in her certiorari petition, petitioner challenged this ruling, and asked this Court to revive this statute by overruling the holding in the Civil Rights Cases, 109 U.S. 3 (1883), examination of the record shows that petitioner never raised any issue concerning the 1875 statute before the Court of Appeals. Accordingly, the Second Circuit did not rule on these contentions. Where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them. Lawn v. United States, 355 U.S. 339, 362—363, 78 S.Ct. 311, 324—325, 2 L.Ed.2d 321, n. 16 (1958); Husty v. United States, 282 U.S. 694, 701—702, 51 S.Ct. 240, 241—242, 75 L.Ed. 629 (1931); Duignan v. United States, 274 U.S. 195, 200, 47 S.Ct. 566, 568, 71 L.Ed. 996 (1927). We decline to do so here.
3
The statute, Miss.Code Ann. § 2046.5 (1956), inter alia, gives the owners, managers, or employees of business establishments the right to choose customers by refusing service.
4
See, e.g., Monroe v. Pape, 365 U.S. 167, 184, 187, 81 S.Ct. 473, 482, 484, 5 L.Ed.2d 492 (1961); United States v. Price, 383 U.S. 787, 793, 794, 86 S.Ct. 1152, 1156, 1157, 16 L.Ed.2d 267 (1966).
5
The first count of petitioner's complaint alleges that Kress' refusal to serve petitioner 'deprived (her) of the privilege of equal enjoyment of a place of public accommodation by reason of her association with Negroes and (she) was thereby discriminated against because of race in violation of the Constitution of the United States and of Title 42 United States Code, Section 1983.' (App. 4.) (Emphasis added.) The conspiracy count alleges, inter alia, that Kress and the Hattiesburg police 'conspired together to deprive plaintiff of her right to enjoy equal treatment and service in a place of public accommodation.'
The language of the complaint might, if read generously, support the contention that petitioner was alleging a violation of Title II, the Public Accommodations provisions, of the 1964 Civil Rights Act, 78 Stat. 243, 42 U.S.C. § 2000a et seq. It is clear, and respondent seemingly concedes, that its refusal to serve petitioner was a violation of § 201 of the 1964 Act, 42 U.S.C. § 2000a. It is very doubtful, however, that Kress' violation of Miss Adickes' rights under the Public Accommodations Title could properly serve as a basis for recovery under § 1983. Congress deliberately provided no damages
remedy in the Public Accommodations Act itself, and § 207(b) provides that the injunction remedy of § 206 was the 'exclusive means of enforcing the rights based on this title.' Moreover, the legislative history makes quite plain that Congress did not intend that violations of the Public Accommodations Title be enforced through the damages provisions of § 1983. See 110 Cong.Rec. 9767 (remark of floor manager that the language of 207(b) 'is necessary because otherwise it * * * would result * * * in civil liability for damages under 42 U.S.C. § 1983'); see also 110 Cong.Rec. 7384, 7405.
In United States v. Johnson, 390 U.S. 563, 88 S.Ct. 1231, 20 L.Ed.2d 132 (1968), the Court held that violations of § 203(b) of the Public Accommodations Title could serve as the basis for criminal prosecution under 18 U.S.C. § 241 (another civil rights statute) against 'outsiders,' having no relation to owners and proprietors of places of public accommodations, notwithstanding the 'exclusive' remedy provision of § 207(b). It is doubtful whether the Johnson reasoning would allow recovery under § 1983 for Kress' alleged violation of § 201, and indeed the petitioner does not otherwise contend. The Court, in Johnson, in holding that the § 207(b) limitation did not apply to violations of § 203, stated: '(T)he exclusive-remedy provision of § 207(b) was inserted only to make clear that the substantive rights to public accommodation defined in § 201 and § 202 are to be enforced exclusively by injunction.' 390 U.S., at 567, 88 S.Ct., at 1234.
In any event, we think it clear that there can be recovery under § 1983 for conduct that violates the Fourteenth Amendment, even though the same conduct might also violate the Public Accommodations Title which itself neither provides a damages remedy nor can be the basis of a § 1983 action. Section 207(b) of the Public Accommodations Title expressly provides that nothing in that title 'shall preclude any individual * * * from asserting any right based on any other Federal or State law not inconsistent with this title * * * or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right.' Therefore, quite apart from whether § 207 precludes enforcement of one's rights under the Public Accommodations Title through a damages action under 42 U.S.C. § 1983, we think it evident that enforcement of one's constitutional rights under § 1983 is not 'inconsistent' with the Public Accommodations Act.
6
E.g., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); cf. Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953).
7
Although Price concerned a criminal prosecution involving 18 U.S.C. § 242, we have previously held that 'under color of law' means the same thing for § 1983. Monroe v. Pape, supra, 365 U.S., at 185, 81 S.Ct., at 483 (majority opinion), 212, 81 S.Ct. at 497 (opinion of Frankfurter, J.); United States v. Price, supra, 383 U.S., at 794, 86 S.Ct., at 1157 n. 7.
8
In his deposition, Powell admitted knowing Hugh Herring, chief of police of Hattiesburg, and said that he had seen and talked to him on two occasions in 1964 prior to the incident with Miss Adickes. (App. 123—126). When asked how often the arresting officer, Ralph Hillman, came into the store, Powell stated that he didn't know precisely but 'Maybe every day.' However, Powell said that on August 14 he didn't recall seeing any policemen either inside or outside the store (App. 136, and he denied (1) that he had called the police, (2) that he had agreed with any public official to deny Miss Adickes the use of the library, (3) that he had agreed with any public official to refuse Miss Adickes service in the Kress store on the day in question, or (4) that he had asked any public official to have Miss Adickes arrested. App. 154 155.
9
The signal, according to Powell, was a nod of his head. Powell claimed that at a meeting about a month earlier with Miss Baggett, the food counter supervisor, he 'told her not to serve the white person in the group if I * * * shook my head no. But, if I didn't give her any sign, to go ahead and serve anybody.' App. 135.
Powell stated that he had prearranged this tacit signal with Miss Baggett because 'there was quite a lot of violence * * * in Hattiesburg' directed towards whites 'with colored people, in what you call a mixed group.' App. 131.
10
Powell described the circumstances of his refusal as follows:
'On this particular day, just shortly after 12 o'clock, I estimate there was 75 to 100 people in the store, and the lunch counter was pretty—was pretty well to capacity there, full, and I was going up towards the front of the store in one of the aisles, and looking towards the front of the store, and there was a group of colored girls, and a white woman who came into the north door, which was next to the lunch counter.
'And the one thing that really stopped me and called my attention to this group, was the fact that they were dressed alike. They all had on, what looked like a light blue denim skirt. And the best I can remember is that they were—they were almost identical, all of them. And they came into the door, and people coming in stopped to look, and they went on to the booths. And there happened to be two empty there. And one group of them and the white woman sat down in one, and the rest of them sat in the second group.
'And, almost immediately there—I mean this, it didn't take just a few seconds from the time they came into the door to sit down, but, already the people began to mill around the store and started coming over towards the lunch counter. And, by that time I was up close to the candy counter, and I had a wide open view there. And the people had real sour looks on their faces, nobody was joking, or being corny, or carrying on. They looked like a frightened mob. They really did. I have seen mobs before. I was in Korea during the riots in 1954 and 1955. And I know what they are. And this actually got me.
'I looked out towards the front, and we have what they call see-through windows. There is no backs to them. You can look out of the store right into the street. And the north window, it looks right into the lunch counter. 25 or 30 people were standing there looking in, and across the street even, in a jewelry store, people were standing there, and it looked really bad to me. It looked like one person could have yelled 'Let's get them,' which has happened before, and cause this group to turn into a mob. And, so, quickly I just made up my mind to avoid the riot, and protect the people that were in the store, and my employees, as far as the people in the mob who were going to get hurt themselves. I just knew that something was going to break loose there.' App. 133—134.
11
The affidavit of the chief of police, who it appears was not present at the arrest, states in relevant part:
'Mr. Powell had made no request of me to arrest Miss Sandra Adickes or any other person, in fact, I did not know Mr. Powell personally until the day of this statement. (But cf. Powell's statement at his deposition, n. 8, supra.) Mr. Powell and I had not discussed the arrest of this person until the day of this statement and we had never previously discussed her in any way.' (App. 107.)
12
The affidavits of Sergeant Boone and Officer Hillman each state, in identical language:
'I was contacted on this date by Mr. John H. Williams, Jr., a representative of Genesco, owners of S. H. Kress and Company, who requested that I make a statement concerning alleged conspiracy in connection with the aforesaid arrest.
'This arrest was made on the public streets of Hattiesburg, Mississippi, and was an officers discretion arrest. I had not consulted with Mr. G. T. Powell, Manager of S. H. Kress and Company in Hattiesburg, and did not know his name until this date. No one at the Kress store asked that the arrest be made and I did not consult with anyone prior to the arrest.' (App. 110, 112.)
13
When asked whether she saw any policeman in the store up to the time of the refusal of service, Miss Adickes answered: 'My back was to the door, but one of my students saw a policeman come in.' (App. 75.) She went on to identify the student as 'Carolyn.' At the trial, Carolyn Moncure, one of the students who was with petitioner, testified that 'about five minutes' after the group had sat down and while they were still waiting for service, she saw a policeman come in the store. She stated: '(H)e came in the store, my face was facing the front of the store, and he came in the store and he passed, and he stopped right at the end of our booth, and he stood up and he looked around and he smiled, and he went to the back of the store, he came right back and he left out.' (App. 302.) This testimony was corroborated by that of Dianne Moncure, Carolyn's sister, who was also part of the group. She testified that while the group was waiting for service, a policeman entered the store, stood 'for awhile' looking at the group, and then 'walked to the back of the store.' (App. 291.)
14
During discovery, respondent gave to petitioner an unsworn statement by Miss Irene Sullivan, a check-out girl. In this statement Miss Sullivan said that she had seen Patrolman Hillman come into the store '(s)hortly after 12:00 noon,' while petitioner's group was in the store. She said that he had traded a 'hello greeting' with her, and then walked past her check-out counter toward the back of the store 'out of (her) line of vision.' She went on: 'A few minutes later Patrolman Hillman left our store by the northerly front door just slightly ahead of a group composed of several Negroes accompanied by a white woman. As Hillman stepped onto the sidewalk outside our store the police car pulled across the street and into an alley that is alongside our store. The police car stopped and Patrolman Hillman escorted the white woman away from the Negroes and into the police car.' (App. 178.)
15
See, e.g., United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); 6 V. Moore, Federal Practice 56.15(3) (2d ed. 1966).
16
In a supplemental brief filed in this Court respondent lodged a copy of an unsworn statement by Miss Baggett denying any contact with the police on the day in question. Apart from the fact that the statement is unsworn, see Fed.Rule Civ.Proc. 56(e), the statement itself is not in the record of the proceedings below and therefore could not have been considered by the trial court. Manifestly, it cannot be properly considered by us in the disposition of the case.
During discovery, petitioner attempted to depose Miss Baggett. However, Kress successfully resisted this by convincing the District Court that Miss Baggett was not a 'managing agent,' and 'was without power to make managerial decisions.'
17
The record does contain an unsworn statement by Miss Freeman in which she states that she 'did not contact the police or ask anyone else to contact the police to make the arrest which subsequently occurred.' (App. 177.) (Emphasis added.) This statement, being unsworn, does not meet the requirements of Fed.Rule Civ.Proc. 56(e), and was not relied on by respondent in moving for summary judgment. Moreover, it does not foreclose the possibility that Miss Freeman was influenced in her refusal to serve Miss Adickes by some contact with a policeman present in the store.
18
The amendment added the following to Rule 56(e):
'When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.'
19
Petitioner's statement at her deposition, see n. 13, supra, was, of course, hearsay; and the statement of Miss Sullivan, see n. 14, supra, was unsworn. And, the rule specifies that reliance on allegations in the complaint is not sufficient. See Fed.Rule Civ.Proc. 56(e).
20
The purpose of the 1963 amendment was to overturn a line of cases, primarily in the Third Circuit, that had held that a party opposing summary judgment could successfully create a dispute as to a material fact asserted in an affidavit by the moving party simply by relying on a contrary allegation in a well-pleaded complaint. E.g., Frederick Hart & Co. v. Recordgraph Corp., 169 F.2d 580 (1948); United States ex rel. Kolton v. Halpern, 260 F.2d 590 (1958). See Advisory Committee Note on 1963 Amendment to subdivision (e) of Rule 56.
21
Ibid. (emphasis added).
22
In First National Bank of Ariz. v. Cities Service, 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968), the petitioner claimed that the lower courts had misapplied Rule 56(e) to shift the burden imposed by Rule 56(c). In rejecting this contention, we said: 'Essentially all that the lower courts held in this case was that Rule 56(e) placed upon (petitioner) the burden of producing evidence of the conspiracy he alleged only after respondent * * * conclusively showed that the facts upon which he relied to support his allegation were not susceptible of the interpretation which he sought to give them.' Id., at 289, 88 S.Ct., at 1593. (Emphasis added.) In this case, on the other hand, we hold that respondent failed to show conclusively that a fact alleged by petitioner was 'not susceptible' of an interpretation that might give rise to an inference of conspiracy.
23
Petitioner also appears to argue that, quite apart from custom, she was refused service under color of the state trespass statute, supra, n. 2. It should be noted, however, that this trespass statute by its terms does not compel segregation of the races. Although such a trespass statute might well have invalid applications if used to compel segregation of the races through state trespass convictions, see Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964), the statute here was not so used in this case. Miss Adickes, although refused service, was not asked to leave the store, and was not arrested for a trespass arising from a refusal to leave pursuant to this statute. The majority below, because it thought the code provision merely restated the common law 'allowing (restaurateurs) to serve whomever they wished,' 409 F.2d, at 126, concluded that a private discrimination on the basis of race pursuant to this provision would not fulfill the 'state action' requirement necessary to show a violation of the Fourteenth Amendment. Judge Waterman, in dissent, argued that the statute changed the common law, and operated to encourage racial discrimination.
Because a factual predicate for statutory relief under § 1983 has not yet been established below, we think it inappropriate in the present posture of this case to decide the constitutional issue of whether or not proof that a private person knowingly discriminated on the basis of race pursuant to a state trespass statute like the one involved here would make out a violation of the Fourteenth Amendment. Whatever else may also be necessary to show that a person has acted 'under color of (a) statute' for purposes of § 1983, see n. 44, infra, we think it essential that he act with the knowledge of and pursuant to that statute. The courts below have made no factual determinations concerning whether or not the Kress refusal to serve Miss Adickes was the result of action by a Kress employee who had knowledge of the trespass statute, and who was acting pursuant to it.
24
Cong.Globe, 42d Cong., 1st Sess., App. 68 (statement by Rep. Shellabarger).
25
392 U.S., at 424—426, 88 S.Ct., at 2195—2196 (majority opinion); id., at 454—473, 88 S.Ct., at 2210—2220 (Harlan, J., dissenting).
26
Id., at 426, 88 S.Ct., at 2196. In arguing that § 1 of the 1866 Act (the predecessor of what is now 42 U.S.C. § 1982) was meant to cover private as well as governmental interference with certain rights, the Court in Jones said:
'Indeed, if § 1 had been intended to grant nothing more than an immunity from governmental interference, then much of § 2 would have made no sense at all. For that section, which provided fines and prison terms for certain individuals who deprived others of rights 'secured or protected' by § 1, was carefully drafted to exempt private violations of § 1 from the criminal sanctions it imposed. * * * Hence the structure of the 1866 Act, as well as its language, points to the conclusion * * * (that) only those deprivations perpetrated 'under color of law' were to be criminally punishable under § 2.' Id., 424—426, 88 S.Ct., at 2195. The Court in Jones cited the legislative history of § 2 to support its conclusion that the section 'was carefully drafted to exempt private violations' and punish only 'governmental interference.' Id., at 425, 88 S.Ct., at 2195 and n. 33.
27
Cong.Globe, 42d Cong., 1st Sess., App. 68.
28
Id., at 568 (emphasis added), quoted in Monroe v. Pape, supra, 365 U.S., at 171. 81 S.Ct., at 475; see also Cong.Globe, supra, at App. 79 (Rep. A. Perry) (§ 1 understood to remedy injuries done 'under color of State authority').
29
Compare id., at App. 68 with 17 Stat. 13. See id., at 568; App. 153—154 (Rep. Garfield).
30
Throughout the debates, for example, 'moderates' who expressed no opposition to § 1, objected to other proposals that they saw as allowing the Federal Government to take over the State's traditional role of punishing unlawful conduct of private parties. See, e.g., id., at 578—579 (Sen. Trumbull, the author of the 1866 Act); 514 (Rep. Poland); App. 153 (Rep. Garfield).
31
Section 2 of the Ku Klux Klan Act is, as amended, 42 U.S.C. § 1985(3). In Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951), in order to avoid deciding whether there was congressional power to allow a civil remedy for purely private conspiracies, the Court in effect interpreted § 1985(3) to require action under color of law even though this element is not found in the express terms of the statute. In a dissent joined by Mr. Justice Black and Mr. Justice Douglas, Mr. Justice Burton said of § 1985(3): 'The language of the statute refutes the suggestion that action under color of state law is a necessary ingredient of the cause of action which it recognizes. * * * When Congress, at this period, did intend to limit comparable civil rights legislation to action under color of state law, it said so in unmistakable terms,' citing and quoting what is now § 1983. Id., at 663—664, 71 S.Ct., at 943. Without intimating any view concerning the correctness of the Court's interpretation of § 1985(3) in Collins, we agree with the dissenters in that case that Congress in enacting what is now § 1983 'said * * * in unmistakable terms' that action under color of law is necessary.
32
Cong.Globe, supra, at App. 216.
33
Id., at App. 217; see also id., at App. 268 (Rep. Sloss).
34
Id., at App. 218.
35
E.g., Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967); Monroe v. Pape, supra; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944).
36
United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157 n. 7 (1966); Williams v. United States, supra; Screws v. United States, supra, 325 U.S., at 109, 65 S.Ct., at 1039; United States v. Classic, supra, 313 U.S. at 326—329, 61 S.Ct., at 1043 1044. Section 242 of 18 U.S.C. is the direct descendant of § 2 of the 1866 Civil Rights Act. See n. 26, supra.
37
In Gannon v. Action, 303 F.Supp. 1240 (D.C.E.D.Mo.1969), the opinion on the one hand said that 'Section 1983 * * * requires that the action for which redress is sought be under 'color' of state law.' It then went on to decide that the defendants under color of a 'custom of (sic) usage of the State of Missouri * * * (of) undisturbed worship by its citizens according to the dictates of their consciences' entered a St. Louis cathedral, disrupted a service and thus 'deprived plaintiffs of their constitutional rights of freedom of assembly, speech, and worship, and to use and enjoy their property, all in violation of section 1983,' id., at 1245. See 23 Vand.L.Rev. 413, 419—420 (1970).
38
Williams v. Howard Johnson's, Inc., 323 F.2d 102 (C.A.4th Cir. 1963); Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 363, 293 F.2d 835, 840 (1961) ('As to the argument based upon the 'custom or usage' language of the statute, we join with the unanimous decision of the Fourth Circuit in support of the proposition that—'The customs of the people of a state do not constitute state action within the prohibition of the Fourteenth Amendment," quoting from Williams v. Howard Johnson's Restaurant, 268 F.2d 845, 848 (C.A.4th Cir. 1959)), and 110 U.S.App.D.C., at 367—368, 293 F.2d, at 844—845 (Bazelon, J., dissenting); see Slack v. Atlantic White Tower System, 181 F.Supp. 124, 127—128, 130 (D.C.Md.), aff'd 284 F.2d 746 (C.A.4th Cir. 1960).
It should also be noted that the dissenting opinion below thought a 'custom or usage' had to have the force of law. 409 F.2d, at 128.
39
Cong.Globe, 42d Cong., 1st Sess., App. 153. Mr. Justice Brennan, post, at 219, 230, infers from this statement that Rep. Garfield thought § 1983 was meant to provide a remedy in circumstances where the State had failed to take affirmative action to prevent widespread private discrimination. Such a reading of the statement is too broad, however. All Rep. Garfield said was that a State, through the practices of its officials, could deny a person equal protection of the laws by the 'systematic maladministration' of, or 'a neglect or refusal to enforce' written laws that were 'just and equal on their face.' Official inaction in the sense of neglecting to enforce laws already on the books is quite different from the inaction implicit in the failure to enact corrective legislation.
40
E.g., Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963); Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964); see Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122 (1963); Shuttlesworth v. City of Birmingham, 373 U.S. 262, 83 S.Ct. 1130, 10 L.Ed.2d 335 (1963).
41
Because it thought petitioner had failed to prove the existence of a custom, the majority of the Second Circuit explicitly refused to decide whether petitioner had to prove 'the custom or usage was enforced by a state statute,' 409 F.2d, at 125.
42
Together with some other civil rights workers also being prosecuted on vagrancy charges, Miss Adickes, in a separate action, removed the state vagrancy prosecution against her to a federal court on the ground that the arrest and prosecution were in retaliation for her attempt to exercise her rights under the Public Accommodations Title of the 1964 Civil Rights Act. The District Court remanded the charge to the state courts, but the Fifth Circuit reversed, finding that '(t)he utter baselessness of any conceivable contention that the vagrancy statutes prohibited any conduct in which these persons were engaged, merely buttresses the undisputed evidence before the trial court when the order of remand was entered that these protected acts (i.e., 'attempts to enjoy equal public accommodations in the Hattiesburg City Library, and a restaurant in the nationally known Kress store') constituted the conduct for which they were then and there being arrested.' Achtenberg v. Mississippi, 393 F.2d 468, 474 (C.A.5th Cir. 1968). Although one judge dissented on the ground that Miss Adickes' case was not properly removable under Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), he too thought that the 'vagrancy charges against Miss Adickes were shown to be baseless and an unsophisticated subterfuge,' id., at 475.
43
See n. 10, supra.
44
Any notion that a private person is necessarily immune from liability under § 1983 because of the 'under color of' requirement of the statute was put to rest by our holding in United States v. Price, supra, see n. 7, supra. There, in the context of a conspiracy, the Court said: 'To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State. * * *,' id., 383 U.S., at 794, 86 S.Ct. at 1157. Because the core of congressional concern in enacting § 1983 was to provide a remedy for violations of the Equal Protection Clause arising from racial discrimination, we think that a private person who discriminates on the basis of race with the knowledge of and pursuant to a state-enforced custom requiring such discrimination, is a 'participant in joint activity with the State,' and is acting 'under color of' that custom for purposes of § 1983.
We intimate no views concerning the relief that might be appropriate if a violation is shown. See Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 370—371, 293 F.2d 835, 847—848 (1961) (Bazelon, J., dissenting). The parties have not briefed these remedial issues and if a violation is proved they are best explored in the first instance below in light of the new record that will be developed on remand. Nor do we mean to determine at this juncture whether there are any defenses available to defendants in § 1983 actions like the one at hand. Cf. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).
1
The Federalist, No. 15:
'It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms.'
2
B. Malinowski, Crime and Custom in Savage Society 66—67 (1962).
3
Book Guide, Boston Sunday Herald Traveler, February 22, 1970, p. 2.
4
Section 2 of the 1866 Act, which we discussed in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 424—426, 88 S.Ct. 2186, 20 L.Ed.2d 1189, made it a criminal offense for any person 'under color of any law, statute, ordinance, regulation, or custom' to subject any inhabitant of 'any State or Territory to the deprivation of any right secured or protected by this act.' The direct descendant of § 2 is 18 U.S.C. § 242, which, in an earlier form, was before the Court in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, and Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, Section 242 provides:
'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both.' (Emphasis added.)
Section 1983 of 42 U.S.C. provides a civil remedy. It reads:
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.' (Emphasis added.)
5
The meaning of 'under color of * * * custom' was not before the Court in Jones v. Alfred H. Mayer Co., and language from the Court's opinion in that case, taken out of context, can be highly misleading. For example, the language quoted in n. 26 of the Court's opinion in this case distinguished 'private violations' covered by § 1 of the 1866 Act from 'deprivations perpetrated 'under color of law" covered by § 2 of the Act. The Court here interprets that use of the phrase 'under color of law' to exclude actions taken 'under color of * * * custom' sans state action. A more realistic interpretation of the quoted language, however, is that 'under color of law' was merely being used by the Court as a shorthand phrase for 'under color of any statute, ordinance, regulation, custom, or usage, of any State,' and that the Court, without in any way addressing the question of the meaning of 'custom,' was merely using the phrase to distinguish purely private violations.
6
The trial court restricted the evidence on custom to that which related to the specific practice of not serving white persons who were in the company of black persons in public restaurants. Such evidence was necessarily limited, as the Court points out, by the fact that it was only after the Civil Rights Act of 1964 went into effect that blacks could be served in "white' restaurants' in Mississippi at all. Although I agree with my Brother BLACK that the evidence introduced under this narrow definition of custom, as outlined in his opinion, was sufficient to require a jury trial on that question, I also agree with the Court's conclusion that the definition employed by the trial court was far too restrictive. Petitioner argued that the relevant custom was the custom against integration of the races, and that the refusal to serve a white person in the company of blacks was merely a specific manifestation of that custom. I think that petitioner's definition of custom is the correct one. There is abundant evidence in the record of a custom of racial segregation in Mississippi, and in Hattiesburg in particular. In fact the trial judge conceded, 'I certainly don't dispute that it could be shown that there was a custom and usage of discrimination in the past. * * * It is certainly a way of life so far as the people in Mississippi were concerned.'
7
This case concerns only the meaning of 'custom * * * of any State' as those words are used in § 1983. It does not involve the question whether under certain circumstances 'custom' can constitute state action for purposes of the Fourteenth Amendment. See Garner v. Louisiana, supra, 368 U.S. at 178—179, 82 S.Ct. at 259—260 (concurring opinion).
1
I do not agree with the statement on page 150 of the Court's opinion that the 'second element (of § 1983) requires that the plaintiff show that the defendant acted 'under color of law." See Part II, infra.
2
Section 2046.5 reads as follows:
'1. Every person, firm or corporation engaged in any public business, trade or profession of any kind whatsoever in the State of Mississippi, including, but not restricted to, hotels, motels, tourist courts, lodging houses, restaurants, dining room or lunch counters, barber shops, beauty parlors, theatres, moving picture shows, or other places of entertainment and amusement, including public parks and swimming pools, stores of any kind wherein merchandise is offered for sale, is hereby authorized and empowered to choose or select the person or persons he or it desires to do business with, and is further authorized and empowered to refuse to sell to, wait upon or serve any person that the owner, manager or employee of such public place of business does not desire to sell to, wait upon or serve. * * *
'2. Any public place of business may, if it so desires, display a sign posted in said place of business serving notice upon the general public that 'the management reserves the right to refuse to sell to, wait upon or serve any person,' however, the display of such a sign shall not be a prerequisite to exercising the authority conferred by this act.
'3. Any person who enters a public place of business in this state, or upon the premises thereof, and is requested or ordered to leave therefrom by the owner, manager or any employee thereof, and after having been so requested or ordered to leave, refuses so to do, shall be guilty of a trespass and upon conviction therefor shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six (6) months, or both such fine and imprisonment. * * *
3
The Court found state action on a different ground.
4
Miss.Laws 1956, c. 466, Senate Concurrent Resolution No. 125.
5
E.g., Miss.Laws 1956, cc. 258—260 (now Miss.Code. Ann. §§ 7787.5, 2351.5, 2351-7).
6
E.g., Miss.Laws 1956, c. 254 (now Miss.Code Ann. § 4065.3). See Inaugural Address of former Governor James P. Coleman, Miss. House Journal 59, 65—68 (1956). See also Miss.Code Ann. § 4065.4 (enacted 1962).
7
The 1956 session of the Mississippi Legislature produced many statutes and resolutions, including § 2046.5, dealing with the separation of the races. Under the heading 'Segregation' in the index to the General Laws volume for that session there is a cross-reference to 'Races.' In addition to § 2046.5, Miss.Laws 1956, c. 257, the following chapters of the General Laws of Mississippi, all enacted during February, March, and April, 1956, are cited under that heading:
(1) Chapter 241 (maximum ten-year penalty for incestuous or interracial marriage);
(2) Chapter 253 (now Miss.Code Ann. §§ 2049—01 to 2049—08) (act 'to prohibit the fomenting and agitation or litigation');
(3) Chapter 254 (now Miss.Code Ann. § 4065.3) ('entire executive branch' of state government 'to prohibit by any lawful * * * means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly');
(4) Chapter 255 (now Miss.Code. Ann. § 8666) (standards for admitting foreign lawyers to practice of Mississippi);
(5) Chapter 256 (now Miss.Code Ann. § 2090.5) (act 'to prohibit any person from creating a disturbance or breach of the peace in any public place of business');
(6) Chapter 258 (now Miss.Code Ann. § 7787.5) (act 'to require railroad companies, bus companies and other common carriers, of passengers owning, operating or leasing depots, bus stations or terminals to provide separate accommodations (sic) for the races traveling in intrastate travel');
(7) Chapter 259 (now Miss.Code Ann. § 2351.5) (act 'to require railroad companies, but companies or other common carriers for hire maintaining and operating waiting rooms for passengers to provide separate toilet facilities for the races traveling in intrastate travel');
(8) Chapter 260 (now Miss.Code Ann. § 2351.7) (act 'to require all persons traveling in intrastate travel to use and occupy the waiting rooms marked and provided for such persons; to prohibit persons traveling in intrastate travel from entering and using the waiting rooms not marked and provided for such persons');
(9) Chapter 261 (act 'to prohibit the use of profane, vulgar, indecent, offensive, slanderous language over a telephone');
(10) Chapter 273 (separate schools to be maintained for white and black children) (see Miss.Code Ann. § 6220.5 (unlawful for whites to attend integrated schools));
(11) Chapter 288 (repeal of compulsory education laws);
(12) Chapter 365 (now Miss.Code Ann. §§ 9028—31 to 9028—48) (creation of state sovereignty commission);
(13) Chapter 466 (Senate Concurrent Resolution No. 125 'condemning and protesting' Brown v. Board of Education).
In addition to the foregoing enactments of 1956, numerous other statutes, in force in 1956 and not thereafter repealed, manifest Mississippi's segregation policies. See, e.g., Miss.Code Ann. § 2339 (punishment for those guilty of 'printing, publishing or circulating * * * matter urging or presenting for public acceptance or general information, arguments or suggestions in favor of social equality or of intermarriage between whites and negroes'). Other provisions purport to require segregation in taxicabs (except for servants) (Miss.Code Ann. § 3499); in the State Insane Hospital (Miss.Code Ann. §§ 6882, 6883); and in schools (Miss.Const., Art. 8, § 207).
8
Miss.Laws 1954, c. 20, Miss.Code Ann. § 2056. The explicit reference to segregation was omitted from the 1968 reenactment of the conspiracy statute. Miss.Code Ann. § 2056 (Supp.1968).
9
E.g., Miss.Code Ann. §§ 2087.5, 2087.7, 2089.5 (enacted 1960); § 2087.9 (enacted 1964).
10
See generally Bailey v Patterson, 323 F.2d 201 (C.A.5th Cir.1963).
11
Cf. United States v. City of Jackson, 318 F.2d 1, 6—7 (C.A.5th Cir.1963), involving segregation in railroad and bus terminals, where the Court of Appeals noted that 'one of the sophisticated methods for circumventing the law is for local police to eschew 'segregation' laws, using in their place conventional breach of peace or trespass laws as instruments for enforcing segregation, euphemistically termed 'separation." See also Lewis v. Greyhound Corp., 199 F.Supp. 210 (D.C.M.D.Ala.1961); Bailey v. Patterson, 199 F.Supp. 595, 609—622 (D.C.S.D.Miss.1961) (Rives, J., dissenting), vacated and remanded 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962).
12
See Donnell v. State, 48 Miss. 661, 680—681 (1873):
'Among those customs which we call the common law, that have come down to us from the remote past, are rules which have a special application to those who sustain a quasi public relation to the community. The wayfarer and the traveler had a right to demand food and lodging from the inn-keeper; the common carrier was found to accept all passengers and goods offered for transportation, according to his means. Soo, (sic) too, all who applied for admission to the public shows and amusements, were entitled to admission, and in each instance, for a refusal, an action on the case lay, unless sufficient reason were shown. The (state civil rights) statute deals with subjects which have always been under legal control.'
13
The state civil rights law of 1873 took the form of an amendment to Miss.Rev. Code §§ 2731, 2732 (1871), which forbade, inter alia, segregation of the races on railroads, stage coaches, and steamboats. None of the provisions of the amended statutes, though apparently never explicitly repealed, appear in the 1880 Mississippi Code or in subsequent codifications of state law. In 1888 the Mississippi Legislature enacted a criminal statute that provided that 'all railroads * * * shall provide equal but separate accommodations for the white and colored races' and that all prior statutes in conflict therewith were repealed pro tanto. Miss.Laws 1888, c. 27.
14
Also see McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169 (1914); Evans v. Abney, 396 U.S. 435, 457—458, 90 S.Ct. 628, 639—640, 24 L.Ed.2d 634 (1970) (Brennan, J., dissenting); Evans v. Newton, 382 U.S. 296, at 302—312, 86 S.Ct. 486, at 495, 15 L.Ed.2d 373 (opinion of White, J.); Burton v. Wilmington Parking Authority, supra, 365 U.S., at 726—727, 81 S.Ct., at 862—863 (Stewart, J., concurring). See also Mulkey v. Reitman, supra.
15
As originally enacted, § 1 of the 1871 Act provided:
'That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities
secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled 'An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication'; and the other remedial laws of the United States which are in their nature applicable in such cases.'
Section 1983 presently provides:
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
The language was changed without comment into its present form when § 1 was codified in 1874 as Revised Statutes § 1979. See id.; 1 Revision of U.S. Statutes, Draft 947 (1872). The jurisdictional provisions of the 1871 Act now appear in 28 U.S.C. § 1343. For purposes of this opinion I assume that the linguistic differences between the original § 1 and present § 1983 are immaterial. See Monroe v. Pape, 365 U.S. 167, 212—213, 81 S.Ct. 473, 497—498, 5 L.Ed.2d 492, n. 18 (1961) (opinion of Frankfurter, J.); cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, at 422—423, 88 S.Ct. 2186, at 2194—2195, 20 L.Ed.2d 1189, n. 29 (1968).
16
The military remedy, designed to become available when the other remedies were inadequate, was created by § 3 of the 1871 Act, now 10 U.S.C. § 333. See generally Comment, Federal Intervention in the States for the Suppression of Domestic Violence: Constitutionality, Statutory Power, and Policy, 1966 Duke L.J. 415.
17
Numerous other criminal and civil remedies had been created by prior civil rights acts, principally to protect voting rights. See § 6 of the 1866 Act, 14 Stat. 28; §§ 2, 3, 4, 5, 7, 11, 15, 19, 20, and 22 of the 1870 Act, 16 Stat. 140 et seq.; §§ 1, 10, and 11 of the Act of Feb. 28, 1871, 16 Stat. 433, 436, 437. All of these statutes have been repealed, see 28 Stat. 36 (1894); 35 Stat. 1088, 1153 (1909), some after having been declared unconstitutional. See, e.g., United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 (1876) (ss 3, 4 of 1870 Act held unconstitutional); James v. Bowman, 190 U.S. 127, 23 S.Ct. 678, 47 L.Ed. 979 (1903) (§ 5 of 1870 Act held unconstitutional).
18
See generally Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich.L.Rev. 1323 (1952).
19
Guest was an appeal from the dismissal of an indictment for failure to state an offense under the laws of the United States.
20
See generally Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv.L.Rev. 91 (1966).
21
For purposes of this part of the opinion I put aside petitioner's allegation of a conspiracy.
22
Mr. Justice Frankfurter made a passing reference to 'custom' in his separate opinion in Monroe v. Pape, supra, 365 U.S. at 246, S.Ct., at 515—516; see infra, at 216, n. 25. In the lower courts the phrase 'custom or usage' has not received thorough consideration and has been given different inter-
pretations. Compare Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 363—364, 293 F.2d 835, 840—841 (1961) with Gannon v. Action, 303 F.Supp. 1240 (D.C.E.D.Mo.1969). In the Hot Shoppes case, the court construed 'custom or usage' to include a state-action requirement; but it did so solely on the basis of doubts about congressional power to reach private interference with Fourteenth Amendment rights. Those doubts have now been completely removed by decisions of this Court. See Supra, at 208 210. In two other cases, Williams v. Howard Johnson's, Restaurant, 260 F.2d 845 (C.A.4th Cir. 1959), and Williams v. Howard Johnson's, Inc., 323 F.2d 102 (C.A.4th Cir. 1963), on subsequent appeal sub nom. Williams v. Lewis, 342 F.2d 727 (C.A.4th Cir. 1965) (en banc), the Court of Appeals for the Fourth Circuit held that private custom and usage did not amount to state action. In each case the court dealt with custom and usage under the first element of § 1983—deprivation of a constitutional right—and not under the second element—action under color of statute, ordinance, regulation, custom, or usage. Those two decisions were constructions of the Equal Protection Clause, not of § 1983. The same is true of Slack v. Atlantic White Tower System, 181 F.Supp. 124 (D.C.Md.), aff'd, 284 F.2d 746 (C.A.4th Cir. 1960), cited by the Court. Moreover, in that case the court had no occasion to consider the elements of a § 1983 custom, because it took judicial notice of reports showing that in the defendant's area there was in fact no custom of restaurant segregation in any sense. See 181 F.Supp., at 126.
23
As presently codified, § 242 begins:
'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States * * *.'
This language differs from the comparable language of § 1983; n. 15, supra, in several respects. For example: 'law' precedes 'statute' in § 242, but not in § 1983; 'or usage' follows 'custom' in § 1983, but not in § 242; the entire enumeration 'statute * * * usage' is qualified by 'of any State or Territory' in § 1983, but not in § 242; § 1983 refers to rights that are 'secured,' whereas § 242 refers to rights 'secured or protected'; § 1983 covers rights secured 'by the Constitution and laws' (emphasis added), whereas § 242 covers rights secured or protected 'by the Constitution or laws of the United States' (emphasis added); § 242 reaches only acts done 'willfully,' but § 1983 is not so limited. As originally enacted, § 1983 was modeled on the precursor of § 242, with differences of coverage not material here. See Cong.Globe, 42d Cong., 1st Sess., App. 68 (remarks of Rep. Shellabarger). Apart from the inclusion of the word 'willfully' in § 242, see Monroe v. Pape, supra, at 187, 81 S.Ct., at 484, the linguistic differences memtioned here have not been thought to be substantive. See, e.g., id., at 185, 81 S.Ct., at 483; id., at 212 213, 81 S.Ct. at 497—498, n. 18 (opinion of Frankfurter, J.); United States v. Price, supra, 383 U.S., at 794, 86 S.Ct., at 1157 n. 7.
24
See n. 15, supra.
25
The legislative history concerning the precise congressional understanding of 'custom or usage' is inconclusive. At least four possible interpretations were suggested. Representative Blair, an opponent of the bill, argued that § 1983 operated only against state legislation and as such would be a nullity. See Cong. Globe, 42d Cong., 1st Sess., App. 209; see also id., at App. 268 (remarks of Rep. Sloss, an opponent). Our cases squarely reject any such limited construction of § 1983. See, e.g., Monroe v. Pape, supra. A second view was that § 1983 reached deprivations of constitutional rights under 'color of law.' See, e.g., id., at App. 68 (remarks of Rep. Shellabarger); id., at 568 (remarks of Sen. Edmunds); but see id., at 697—698 (remarks of Sen. Edmunds). Since Representa-
tive Shellabarger and Senator Edmunds were the managers of the bill, their commentary would ordinarily be entitled to great weight; but at no point did either explain what he meant by 'color of law.' Representative Kerr, an opponent, employed the formula 'color of state laws,' but predicted that § 1983 would give rise to a flood of litigation involving all types of injury to person or property. See id., at App. 50. A third view was reflected in the comment of Senator Thurman, an opponent, who said in passing that § 1983 'refers to a deprivation under color of law, either statute law or 'custom or useage' which has become common law.' Id., at App. 217. There is little or no further support in the debate for this reading of the statute, thought it apparently was adopted without discussion by Mr. Justice Frankfurter, see Monroe v. Pape, supra, 365 U.S., at 246, 81 S.Ct., at 515—516 (opinion of Frankfurter, J.). The precise meaning of Senator Thurman's formula is unclear. He may have been referring to customs that had been expressly recognized and approved by state courts, or he may have had in mind the ancient principle that a general custom as such 'is really a part of the common law itself.' Louisville & Nashville R. Co. v. Reverman, 243 Ky. 702, 707, 49 S.W.2d 558, 560 (1932). See 1 W. Blackstone, Commentaries **68—74. Moreover, Senator Thurman joined several others in taking a fourth position: that § 1983 reaches private persons. See id., at App. 216—217 (remarks of Sen. Thurman); id., at App. 215 (remarks of Sen. Johnston, an opponent); id., at 429 (remarks of Rep. McHenry, an opponent); id., at 395 (remarks of Rep. Rice, an opponent); cf. id., at 804 (remarks of Rep. Poland, a supporter and conferee). Other speeches during the debate and consideration of the purposes of the statute make it clear that Congress did not intend to reach every private interference with a constitutional right. See infra, at 219-220. Finally, two members of the House expressed a view compatible with any of the preceding positions: they thought the principal effect of § 1983 was to remove the possible defense that the defendant acted under state authority. See id., at 416 (remarks of Rep. Biggs, an opponent); id., at App. 310 (remarks of Rep. Maynard, a supporter).
Section 1983 was patterned after § 2 of the Civil Rights Act of 1866, 14 Stat. 27. See Cong.Globe, 42d Cong., 1st Sess., App. 68 (remarks of Rep. Shellabarger). The legislative history of the latter
section is no more enlightening on the precise meaning of 'under color of any law, statute, ordinance, regulation, or custom' than are the comments on the similar language in § 1983. See Cong.Globe, 39th Cong., 1st Sess., 1680 (veto message of President Johnson); Id., at 1120 (remarks of Rep. Loan, a supporter, and Rep. J. Wilson, a manager); id., at 1778 (remarks of Sen. Johnson, an opponent); id., at 1785 (remarks of Sen. Stewart, a supporter); id., at 475, 500, 1758 (remarks of Sen. Trumbull, a manager).
Similar language appeared in § 8 of the Freedmen's Bureau bill, which was also debated at the first session of the 39th Congress. In addition, the word 'custom' appeared in § 7 of the bill. See id., at 209. However, the precise language of both sections received virtually no attention during debate. There was, though, some indication that custom was recognized as different from law. See id., at 318 (remarks of Sen. Hendricks, an opponent). See also n. 29, infra.
26
See generally R. Harris, The Quest for Equality 44—50 (1960).
27
I consider the narrow construction given to § 1985 in Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951), as no longer binding. See supra, at 206—210.
28
Section 1986 fits into this legislative scheme by providing a remedy against individuals who share responsibility for conspiratorial wrongs under § 1985 by failing to make reasonable use of their power to prevent the perpetration of such wrongs.
29
I think this is also an adequate answer to the argument made in the Civil Rights Cases, supra, 109 U.S., at 17, 3 S.Ct., at 25, that a private party differs from a State in that the former cannot, whereas the latter can, deprive a person of a constitutional right in the sense of extinguishing that right. Neither a private person nor a State can extinguish or impair a constitutional right, although a State can certainly violate, infringe, or fail to protect a constitutional right. A private person can violate or infringe a constitutional right when, due to some factual circumstances, his action constitutes state action, or when his wholly private conduct violates some constitutional prohibition of such conduct, e.g., § 1 of the Thirteenth Amendment. Cf. Civil Rights Cases, supra, at 20, 3 S.Ct., at 27; Clyatt v. United States, 197 U.S. 207, 216, 25 S.Ct. 429, 430, 49 L.Ed. 726 (1905); Bailey v. Alabama, 219 U.S. 219, 241, 31 S.Ct. 145, 151, 55 L.Ed. 191 (1911). A private person can also, of course, by wholly private conduct interfere with the exercise or enjoyment of constitutional rights that run only against the States. United States v. Guest, supra, 383 U.S., at 774—784, 86 S.Ct., at 1186—1192 (opinion of Brennan, J.). Thus interference can occur even where there has been no violation of the constitutional right by a party having a duty correlative to it.
30
In Jones v. Alfred H. Mayer Co., supra, 392 U.S. at 423, 88 S.Ct., at 2194 n. 30, the Court noted that the same session of Congress that passed the Civil Rights Act of 1866 also passed a Freedmen's Bureau bill, § 7 of which extended military jurisdiction over parts of the South where 'in consequence of any State or local law, ordinance, police, or other regulation, custom, or prejudice, any of the civil rights * * * belonging to white persons * * * are refused or denied to (N)egroes * * * on account of race, color, or any previous condition of slavery or involuntary servitude * * *.' See Cong.Globe, 39th Cong., 1st Sess., 209, 318. The Court pointed out that although the bill was vetoed by President Johnson, it 'was nonetheless significant for its recognition that the 'right to purchase (property)' was a right that could be 'refused or denied' by 'custom or prejudice' as well as by 'State or local law." The Court also observed: 'Of course an 'abrogation of civil rights made 'in consequence of * * * custom, or prejudice' might as easily be perpetrated by private individuals or by unofficial community activity as by state officers armed with statute or ordinance."
31
I agree with the Court, for the reasons stated in its opinion, that the relevant custom in this case would be one of segregating the races in dining facilities, rather than one of refusing to serve white persons in the company of Negroes. Of course, I do not agree that the custom must be shown to have been 'state enforced.'
32
Texas v. White was overruled on an unrelated issue in Morgan v. United States, 113 U.S. 476, 496, 5 S.Ct. 588, 595, 28 L.Ed. 1044 (1885). Thereafter, it was quoted approvingly on the meaning of 'State' in McPherson v. Blacker, 146 U.S. 1, 25, 13 S.Ct. 3, 6, 36 L.Ed. 869 (1892).
33
It is only superficially odd that a violation of a constitutional right may be actionable under § 1983 if the violation occurs in one State where there is a custom, but not in another State where there is not. In both cases it would be just to impose liability on the violator. However, Congress was interested in providing a remedy only against what I have called 'major' violations, and it is for that reason that liability may vary from one State to another. Similarly, privately chosen discrimination will constitute state action in some States, but not in others, depending on the public policies of the different States. That result, too, is dictated by sound considerations of principle and policy, though reflected in the Constitution rather than in a statute.
34
Moreover, there was evidence below that respondent's attention was expressly called to the Civil Rights Act.
| 12
|
398 U.S. 275
90 S.Ct. 1582
26 L.Ed.2d 218
George K. WYMAN, etc., et al., Appellants,v.Edna ROTHSTEIN et al.
No. 896.
Argued April 27, 28, 1970.
Decided June 1, 1970.
Philip Weinberg, New York City, for appellants.
Edward V. Sparer, Philadelphia, Pa., for appellees.
Peter L. Strauss, Washington, D.C., for United States, amicus curiae, by special leave of Court.
PER CURIAM.
1
Appellees commenced this action in the federal District Court for the Southern District of New York challenging on equal protection and statutory grounds § 131—a of the New York Social Services Law, McKinney's Consol.Laws, c. 55, which provides for payments to welfare recipients in Nassau, Suffolk, and certain other New York State counties in lesser amounts than provided for residents of New York City should the Welfare Administrator determine that adequate cause exists for the differential. A three-judge court was convened and it found that appellees' likelihood of success on their constitutional claim warranted the issuance of a preliminary injunction against what it found to be the payment of welfare in violation of the Equal Protection Clause of the Fourteenth Amendment. The court found it unnecessary to consider appellees' statutory claims. We noted probable jurisdiction. 397 U.S. 903, 90 S.Ct. 910, 25 L.Ed.2d 85.
2
Subsequent to the decision of the District Court this Court rendered its decision in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), wherein we held that a federal court called upon to pass upon the constitutional validity of a State's welfare program should, before reaching the constitutional issues, consider first any pendent statutory claims that are presented, notwithstanding the pendency of negotiations between the State and the Department of Health, Education, and Welfare.
3
In light of the foregoing, the judgment of the District Court is vacated and the case is remanded to that court for an opportunity to pass on the propriety of granting interim relief in accordance with conventional equitable principles on the basis of appellees' statutory claims, or, if the question is reached, continuing the present injunction in light of this Court's decision in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491.
4
It is so ordered.
5
Vacated and remanded.
6
Mr. Justice MARSHALL took no part in the decision of this case.
7
Mr. Justice BLACK, with whom THE CHIEF JUSTICE joins, dissenting.
8
When this action was commenced by appellees, the Secretary of Health, Education, and Welfare was in the process of determining if the New York welfare provisions under attack in this case are consistent with the federal standard requiring uniform statewide application of state welfare plans. See Social Security Act § 402, as amended, 81 Stat. 877 et seq., 42 U.S.C. § 602 (1964 ed., Supp. IV); 45 CFR § 233.20. Although the federal agency has not yet made a final decision, it appears from the brief submitted by the United States as amicus curiae that HEW has made a preliminary determination that the New York provisions do not conform to the Social Security Act's requirements. Accordingly, the statutory claim which this Court today remands to the District Court for its consideration involves a live controversy 397, 430, 90 S.Ct. 1207, 1227, 25 L.Ed.2d 442 (1970), it is my belief that such controversies should be resolved in proceedings between the two governments involved, as provided in the Social Security Act. See, e.g., 42 U.S.C. §§ 602, 1316 (1964 ed., Supp. IV). For this reason, I would vacate the judgment of the District Court and remand with directions that the complaint be dismissed.
| 12
|
398 U.S. 268
90 S.Ct. 1723
26 L.Ed.2d 226
UNITED STATES, appellant,v.ARMOUR & COMPANY et al.
No. 103.
Supreme Court of the United States
October Term, 1969.
Argued March 5, 1970.
June 1, 1970
James van R. Springer, Washington, D. C., for appellant.
Herbert A. Bergson, Washington, D. C., for appellees.
PER CURIAM.
1
The judgment is vacated and the case is remanded to the United States District Court for the Northern District of Illinois with instructions to dismiss the case as moot.
2
Mr. Justice DOUGLAS, dissenting.
3
I dissent from dismissal of the case as moot.
4
In an historic consent decree the giant meatpackers were separated in a complete and continuing way from the general food business, the District Court retaining in the customary way the power to grant additional relief, at the foot of the decree. Some years later motions to vacate the decree were made, and a judgment overruling them was affirmed by this Court. Swift & Co. v. United States, 276 U.S. 311, 48 S.Ct. 311, 72 L.Ed. 587. Later Armour and other meatpacker defendants, claiming that conditions in the food business had changed, sought modifications of the decree to relieve them from the structural bars against engaging in various aspects of the general food and retail meat business. That effort was also unsuccessful. United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999. Later, another attempt was made to obtain similar relief and it too failed. United States v. Swift & Co., D. C., 189 F.Supp. 885, aff'd, 367 U.S. 909, 81 S.Ct. 1918, 6 L.Ed.2d 1249.
5
Mr. Justice BLACK took no part in the consideration or decision of this case.
6
Mr. Justice MARSHALL took no part in the decision of this case.
7
Armour is now the second largest meatpacker in the Nation. General Host is engaged in the food products business; it operates some 380 grocery stores, and some lodges, restaurants, and coffee shops. It is, in other words, engaged in lines of business from which Armour, as a party to the decree, would be barred, whether it did so directly or through stock ownership.
8
Against the resistance of Armour, General Host, which held about 16 1/2% of Armour's outstanding stock, undertook to acquire at least 51% of it. The United States asked the District Court having jurisdiction over the meatpackers consent decree to make General Host a party under § 5 of the Sherman Act, 26 Stat. 210, as amended, 15 U.S.C. § 5. The refusal of the District Court to do so was, I think, error. After the District Court's ruling, General Host acquired 57% of Armour's stock. As a result, a species of the monopoly at which the consent decree was aimed was achieved.
9
General Host, it appears, has now transferred, pursuant to authority of the Interstate Commerce Commission, its Armour stock to Greyhound Corporation. It is alleged that Greyhound, like General Host, is engaged in food business prohibited to Armour under the decree. The United States contends that Greyhound's control of Armour is as inconsistent with the decree as General Host's control. Greyhound, the United States states, owns other food interests that Armour could not own by virtue of the decree.
10
Neither General Host nor Greyhound could, of course, be held in contempt under the decree as it is written, for they were not parties. But they presumably knew of the decree and seemingly fashioned a procedure to circumvent it. The District Court had ample power under § 5 of the Sherman Act, to restrain General Host from frustrating the decree, for § 5 provides:
11
'Whenever it shall appear to the court before which any proceeding under section 4 of this title may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof.'
12
General Host and Greyhound would have, of course, the opportunity to litigate the question whether their acts do interfere with the decree before any citation for contempt.
13
Moreover, Rule 25(c) of the Federal Rules of Civil Procedure provides:
14
'In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.'
15
Unless the District Court proceeds against General Host and Greyhound to supplement the decree, there may be no remedy. Without the hearing I urge, they cannot be punished for contempt. Armour, though a party to the decree, was the victim of its violation, not a participant.
16
Under the decree Armour could not acquire either General Host or Greyhound. Yet the combination of meatpackers with food products arguably is realized whether Armour acquired them, or they, Armour. The misconception of the thrust of the decree by the District Court is evident in its statement that 'General Host is not a large meat packer extending its monopolistic grasp toward the rest of the food industry and through the use of its already established distributing facilities, superior financial resources and other means making a dominant position felt, resulting in a restraint of trade by squeezing out present or potential competitors. Rather, General Host, a wholly separate corporate entity, has acquired some shares of Armour stock and evinced an interest in acquiring additional shares.' The evil is in an interference with the decree through the combination of Armour's meatpacking power with the food lines of General Host—the precise type of evil at which the decree was aimed. And that evil is apparently present in Greyhound's acquisition.
17
Mr. Justice Cardozo speaking for the Court in the second Swift case said:
18
'Whether the defendants would resume [their predatory practices] if they were to deal in groceries again, we do not know. They would certainly have the temptation to resume it. Their low overhead and their gigantic size, even when they are viewed as separate units, would still put them in a position to starve out weaker rivals. Mere size, according to the holding of this court, is not an offense against the Sherman Act unless magnified to the point at which it amounts to a monopoly * * *, but size carries with it an opportunity for abuse that is not to be ignored when the opportunity is proved to have been utilized in the past. The original decree at all events was framed upon that theory. It was framed upon the theory that even after the combination among the packers had been broken up and the monopoly dissolved, the individual units would be so huge that the capacity to engage in other forms of business as adjuncts to the sale of meats should be taken from them altogether. It did not say that the privilege to deal in groceries should be withdrawn for a limited time, or until the combination in respect of meats had been effectually broken up. It said that the privilege should be renounced forever, and this whether the units within the combination were acting collectively or singly. The combination was to be disintegrated, but relief was not to stop with that. To curb the aggressions of the huge units that would remain, there was to be a check upon their power, even though acting independently, to wage a war of extermination against dealers weaker than themselves. * * * Groceries and other enumerated articles they were not to sell at all, either by wholesale or by retail. Even the things that they were free to sell, meats and meat products, they were not to sell by retail.' United States v. Swift & Co., 286 U.S. 106, 116-117, 52 S.Ct. 460, 76 L.Ed. 999.
19
Mr. Justice Cardozo added that with the addition of groceries to meats, '[t]he opportunity will be theirs to renew the war of extermination that they waged in years gone by.' Id., at 118, 52 S.Ct., at 464.
20
The same sentiment had previously been stated in the Senate by Senator (now Mr. Justice) Black in opposing the move of the meatpacking industry to relax the decree. His fear was opening the doors to control of groceries and other food by the meatpackers:1
21
'If this court decree should be canceled and set aside by governmental consent, a giant food trust would not only be permitted but encouraged to rear its stupendous and ominous form over North, South, East, and West alike. Such governmental action will tacitly invite a monopoly of such size and power that with one stroke of a pen in some large financial center of the Nation this trust could lift the price of bread and meat from Maine to California.'
22
Later he spoke of a financial prospectus based upon an expected modification of the decree:2
23
"With the expected modification of the consent decree, the big meat packers will enter the retail field anew, with nation-wide chains of grocery and other food shops, which will overshadow all the existing enterprises of that type in the United States.'
24
* * *
25
"As the nucleus of such chains of meat and grocery stores as they now contemplate the packers may take over most of the huge retail food store chains already existing, such as the big grocery chains, which now operate meat departments in 20,000 to 30,000 such shops in various parts of the country.
26
"It will pay every investor to scrutinize closely the increasing profit potentialities of the packing organizations."
27
The spectre of meatpacking and food products merging is as ominous today as it was then. It should not matter how the predatory scheme is effectuated, whether one acquires the other or vice versa. On the facts here tendered, a case has been made out for making General Host and Greyhound parties and having a hearing to determine whether they or either of them has interfered with the decree. The question is not whether, as a de novo matter, the combination of either with Armour constitutes a violation of the Act. The issue whether General Host or Greyhound has interfered with the decree is a narrower one. If they and Armour had designed this scheme to avoid the decree, interference would be rather obvious. Why does it matter that General Host or Greyhound, acting without the connivance of Armour, achieves the same result unilaterally? A federal court has inherent power to prevent obstruction of its authority by acts of 'force, guile, or otherwise,' whether or not the person charged was or was not a party defendant. See Mississippi Valley Barge Line Co. v. United States, D. C., 273 F.Supp. 1, aff'd sub nom. Osbourne v. Mississippi Valley Barge Line Co., 389 U.S. 579, 88 S.Ct. 692, 19 L.Ed.2d 779. For it is an historic equity principle that even a nonparty is bound 'not to interfere with, and not to obstruct, the course of justice,' or treat a court order as 'unworthy of notice.' See Seaward v. Paterson, [1897] 1 Ch. 545, 554. Cf. Rule 65(d), Federal Rules of Civil Procedure.
28
I would not dismiss the case as moot. Rather, I would remand it to the District Court for a full hearing on the issue of interference.
1
72 Cong.Rec. 1239.
2
72 Cong.Rec. 9336.
| 78
|
398 U.S. 278
90 S.Ct. 1727
26 L.Ed.2d 230
Floyd BLOSS et al.v.Steven L. DYKEMA.
No. 1347.
Supreme Court of the United States
June 1, 1970
On Petition for Writ of Certiorari to the Supreme Court of Michigan.
PER CURIAM.
1
The petition for a writ of certiorari is granted and the judgment of the Michigan Court of Appeals is reversed. Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515.
2
Mr. Justice HARLAN, dissenting.
3
I would affirm the judgment of the Michigan Court of Appeals upon principles heretofore often expressed by me. See my opinions in Roth v. United States, 354 U.S. 476, 496, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Jacobellis v. Ohio, 378 U.S. 184, 203, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); 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). From the standpoint of what I regard as the permissible excercise of state power in this field, the materials in this case fall far short of the 'borderline' movie involved in Cain v. Kentucky (reversed summarily), 397 U.S. 319, 90 S.Ct. 1110, 25 L.Ed.2d 335 (1970), see my dissent in that case, and I am at a loss to understand how these materials can be deemed to qualify for Redrup treatment when only a short time ago the Court declined to accord that treatment to the materials involved in Spicer v. New York, cert. denied, 397 U.S. 1042, 90 S.Ct. 1364, 25 L.Ed.2d 653.
4
THE CHIEF JUSTICE and Mr. Justice WHITE are of the opinion that certiorari should be denied.
5
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
| 23
|
398 U.S. 74
90 S.Ct. 1648
26 L.Ed.2d 100
Stephen S. CHANDLER, United States District Judge for the Western District of Oklahoma, Petitioner,v.JUDICIAL COUNCIL OF the TENTH CIRCUIT OF the UNITED STATES.
No. 2, Misc.
Argued Dec. 10, 1969.
Decided June 1, 1970.
Rehearing Denied June 29, 1970.
See 399 U.S. 937, 90 S.Ct. 2248.
Thomas J. Kenan, Oklahoma City, Okl., for petitioner.
Carl L. Shipley, Washington, D.C., amicus curiae.
Charles Alan Wright, Austin, Tex., for respondent.
Solicitor Gen., Erwin N. Griswold, for the United States, amicus curiae, by special leave of Court.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
Petitioner, a United States District Judge, filed a motion for leave to file a petition for a writ of mandamus or alternatively a writ of prohibition addressed to the Judicial Council of the Tenth Circuit. His petition seeks resolution of questions of first impression concerning, inter alia, the scope and constitutionality of the powers of the Judicial Councils under 28 U.S.C. §§ 137 and 332.1 The Judicial Council of each federal circuit is, under the present statute, composed of the active circuit judges of the circuit. Petitioner has asked this Court to issue an order under the All Writs Act2 telling the Council to 'cease acting (in) violation of its powers and in violation of Judge Chandler's rights as a federal judge and an American citizen.' The background facts are of some importance.
2
* On December 13, 1965, the Judicial Council of the Tenth Circuit convened in special session,3 and adopted an order which reflected a long history of controversy between petitioner and the Council concerning the conduct of the work of the District Court assigned to petitioner. The Order of December 13 purported to issue under the authority of 28 U.S.C. § 332, supra, n. 1, and recited that during
3
'the past four years the Judicial Council at many meetings has discussed and considered the business of the United States District Court for the Western District of Oklahoma and has done so with particular regard to the effect thereon of the attitude and conduct of Judge Chandler who, as the Chief Judge of that District, is primarily responsible for the administration of such business. * * *'
4
The Order noted that during that period petitioner had been a party defendant in both civil and criminal litigation, as well as the subject of two applications to disqualify him in litigation in which on challenge petitioner had refused to disqualify himself.4 The Order continued with a finding that
5
'Judge Chandler is presently unable, or unwilling, to discharge efficiently the duties of his office; that a change must be made in the division of business and the assignment of cases in the Western District of Oklahoma; and that the effective and expeditious administration of the business of the United States District Court for the Western District of Oklahoma requires the orders herein made.'
6
Expressly invoking the powers of the Judicial Council under 28 U.S.C. § 332, supra, n. 1, the Order directed that
7
'until the further order of the Judicial Council, the Honorable Stephen S. Chandler shall take no action whatsoever in any case or proceeding now or hereafter pending in the United States District Court for the Western District of Oklahoma; that all cases and proceedings now assigned to or pending before him shall be reassigned to and among the other judges of said court; and that until the further order of the Judicial Council no cases or proceedings filed or instituted in the United States District Court for the Western District of Oklahoma shall be asigned to him for any action whatsoever.
8
'It is further ORDERED that in the event the active judges of the United States District Court for the Western District of Oklahoma, including Judge Chandler, cannot agree among themselves upon the division of business and assignment of cases made necessary by this order, the Judicial Council, upon such disagreement being brought to its attention, will act under 28 U.S.C. § 137 and make such division and assignment as it deems proper.' Copies of the above Order were filed in the Court of Appeals for the Tenth Circuit and in the United States District Court for the Western District of Oklahoma on December 27 and 28, respectively. Another copy was served on Judge Chandler by a U. S. Marshal.
9
On January 6, 1966, as previously noted, Judge Chandler filed with this Court his motion for leave to file a petition for a writ of prohibition and/or mandamus directed to the Judicial Council. He also sought a stay of its Order. The Solicitor General, appearing on behalf of the Judicial Council, asked this Court to deny the stay application on the Council's representation that the Order of December 13 was only temporary pending prompt further inquiry into Judge Chandler's administration of the business of his court. The stay was denied on January 21, 1966, on the ground that the Order was 'entirely interlocutory in character pending prompt further proceedings * * * and that at such proceedings Judge Chandler will be permitted to appear before the Council, with counsel * * *.' 382 U.S. 1003, 86 S.Ct. 610, 15 L.Ed.2d 494.
10
On January 24, 1966, Judge Chandler addressed a letter to his fellow district judges indicating that he objected to the removal and reassignment of cases previously assigned and pending before him on December 28, 1965, but that he was not in disagreement with them as to the assignment of all new cases to judges other than himself. Judge Chandler asserted continuing judicial authority, however, over the cases pending before him as of December 28. The following day the judges of the Western District of Oklahoma advised the Judicial Council that all judges of that Disrict had agreed on the division of new business filed in that court, but that they could not agree on the assignment to other judges of cases then pending before Judge Chandler.
11
On January 27, 1966, the Judicial Council again convened in special session and ordered a hearing on February 10, 1966, in Oklahoma City at which Judge Chandler was invited to appear, with counsel if he desired. However, by February 4, when the Council met again, it had been advised that no judge of the Western District, including Judge Chandler, desired to be heard pursuant to the order for hearing. Accordingly, no hearing took place.
12
At this same meeting on February 4, 1966, the Council concluded that there was a disagreement among the District Judges of the Western District as to the division of business; it reached this conclusion on the basis of the disagreement between Judge Chandler and the other District Judges as to the reassignment of cases previously assigned to Judge Chandler as of December 28, 1965. The Council accordingly, acting under 28 U.S.C. §§ 137 and 332, entered an order authorizing Judge Chandler to continue to sit on cases filed and asssigned to him prior to December 28, 1965; the Order assigned to the other judges of the Western District cases filed after that date. This Order of February 4 recited further that
13
'4. The division of business and assignment of cases made herein may be amended or modified by written order signed by all active judges of the Western District of Oklahoma, provided that nothing contained herein shall be construed as preventing Judge Chandler from surrendering any pending cases for re-assignment to another active judge or to prevent transfer between judges to whom new business is assigned pursuant to this order.
14
'5. This order supersedes the orders of the Council entered on December 13, 1965, and on January 27, 1966, entitled 'In the Matter of the Honorable Stephen S. Chandler, United States District Judge for the Western District of Oklahoma' and shall remain in effect until the further order of the Council.' On February 9, 1966, the Solicitor General filed a memorandum on behalf of the Council suggesting that in light of the above developments, namely the confirmation of Judge Chandler's authority to dispose of the case load then before him and the assignment of new business in accordance with an order previously agreed to by Judge Chandler, the case had become moot since there was nothing more to argue about. To this memorandum Judge Chandler filed a reply on February 25, 1966, contesting the suggestion that he had acquiesced in the Council's actions. Judge Chandler argued that his acquiescence in the division of new business settled upon by his fellow district judges was given deliberately for reasons of 'strategy' in order to prevent any possibility that the Council could find that 'the district judges * * * are unable to agree upon the adoption of rules or orders' for the distribution of business and assignment of cases under 28 U.S.C. § 137.
15
A supplemental memorandum filed by the Solicitor General on behalf of the Council expressed the latter's position that Judge Chandler should dispose of his pending docket of pre-December 28, 1965, cases before seeking assignment of new cases. In view of Judge Chandler's expressed disagreement with the February 4 Order the Solicitor General withdrew the suggestion of mootness. Later in March 1966 Judge Chandler submitted a reply to that supplemental memorandum asserting that the Council was continuing to act beyond its authority by purporting to require that he certify to it his subsequent willingness and ability to undertake new business. He contended that the supplemental memorandum setting forth the condition that he must apply for assignment was in effect a new order fixing still another condition on the exercise of his judicial office.
16
On July 12, 1967, the Judicial Council convened and, in light of a report from the District Judges of the Western District showing that Judge Chandler had only 12 cases then pending, concluded that a modification of the Order of February 4, 1966, might be in order. The Council transmitted a copy of the minutes of the meeting to the District Judges and asked them to consider anew and agree upon a division of business within the Western District. On August 28, 1967, Judge Chandler wrote his district judge colleagues claiming that the Council's action of July 12 was but another 'illegal effort' to create a situation in which the Council could assert its powers under 28 U.S.C. § 137 to assign and apportion cases.
17
On September 1, 1967, the Western District Judges, including Judge Chandler, advised the Judicial Council that 'the current order for the division of business in this district is agreeable under the circumstances.' (Emphasis added.) When the Council convened two weeks later, it noted the latter expressing agreement and concluded that there need be no new order in the case; accordingly the Order of February 4 was left in effect. All of these developments were reported to the Clerk of this Court and are part of the record.
2
18
In essence petitioner challenges all orders of the Judicial Council relating to assignment of cases in the Western District of Oklahoma as fixing conditions on the exercise of his constitutional powers as a judge. Specifically, petitioner urges that the Council has usurped the impeachment power, committed by the Constitution to the Congress exclusively. While conceding that the statute here invoked confers some powers on the Judicial Council, petitioner contends that the legitimate administrative purposes to which it may be turned do not include stripping a judge of his judicial functions as he claims was done here.
19
The Judicial Council contends that petitioner seeks to invoke the original jurisdiction of this Court in a case to which such jurisdiction does not extend. The Council argues that the purely administrative action taken in this case has never been reviewed by any court and cannot now be reviewed in an original proceeding under the guise of a claim under the All Writs Act.
20
The judicial Council also contends that the order of December 13, 1965, has been altogether superseded by the Order of February 4, 1966. The latter, in accordance with petitioner's desire, gave back those cases that had been temporarily withdrawn from Judge Chandler. It also continued in force the assignment and division of judicial business agreed upon by the District Judges including Judge Chandler. Alternatively, the Council contends that even absent petitioner's agreement on the division of cases, nonetheless the Council's action is authorized by 28 U.S.C. §§ 137 and 332.
21
The Solicitor General, who has filed a brief as amicus curiae, contends that this Court has jurisdiction to entertain the petition for a writ of mandamus or prohibition when a Judicial Council order is directed to a district judge because it acted as a judicial, not an administrative, tribunal for purposes of meeting the requirement that the case fall within this Court's appellate jurisdiction. The Solicitor General suggests that the Council is nothing more nor less than the Court of Appeals sitting en banc, and that the proceedings in the present case may be analogized to a disbarment.5 From this the Solicitor General concludes that the case falls within the extraordinary relief available through the All Writs Act. That conclusion in turn rests on the further assumption that this Court's supervisory authority over lower courts under § 13 and 14 of the First Judiciary Act, 1 Stat. 80, 81, was not withdrawn when the letter two sections were repealed in favor of the All Writs Act by the revision of the Judicial Code in 1948. The Solicitor General concludes, however, that even though there is appellate jurisdiction in this Court, nonetheless it ought not to be exercised since the Order of December 13 has been superseded for four years by the Order of February 4, the terms of which have been expressly approved by petitioner. The respondent Council also urges this point.
3
22
Whether the action taken by the Council with respect to the division of business in Judge Chandler's district falls to one side or the other of the line defining the maximum permissible intervention consistent with the constitutional requirement of judicial independence is the ultimate question on which review is sought in the petition now before us. The dissenting view of this case seems to be that the action of the Judicial Council relating to assignment of cases is an impingement on judicial independence. There can, of course, be no disagreement among us as to the imperative need for total and absolute independence of judges in deciding cases or in any phase of the decisional function. But it is quite another matter to say that each judge in a complex system shall be the absolute ruler of his manner of conducting judicial business. The question is whether Congress can vest in the Judicial Council power to enforce reasonable standards as to when and where court shall be held, how long a case may be delayed in decision, whether a given case is to be tried, and many other routine matters. As to these things—and indeed an almost infinite variety of others of an administrative nature—can each judge be an absolute monarch and yet have a complex judicial system function efficiently?
23
The legislative history of 28 U.S.C. § 332 and related statutes is clear that some management power was both needed and granted.6 That is precisely what a group of distinguished chief judges and others seem to have had in mind when, in 1939, Congress was urged by Chief Justice Hughes, Chief Judge Groner, Judges Parker, Stephens and Biggs, and others to give judges a statutory framework and power whereby they might 'put their own house in order.'
24
Many courts—including federal courts—have informal, unpublished rules which, for example, provide that when a judge has a given number of case under submission, he will not be assigned more cases until opinions and orders issue on his 'backlog.' These are reasonable, proper, and necessary rules, and the need for enforcement cannot reasonably be doubted. These internal rules do not come to public notice simply because reasonable judges acknowledge their necessity and abide by their intent. But if one judge in any system refuses to abide by such reasonable procedures, it can hardly be that the extraordinary machinery of impeachment is the only recourse.
25
These questions have long been discussed and debated; they are not easy questions and the risks suggested by the dissents are not to be lightly cast aside. But for the reasons that follow we do not find it necessary to answer them because the threshold question in this case is whether we have jurisdiction to entertain the petition for extraordinary relief.
26
The authority of this Court to issue a writ of prohibition or mandamus 'can be constitutionally exercised only insofar as such writs are in aid of its appellate jurisdiction. Marbury v. Madison, 1 Cranch 137, 173—180, 2 L.Ed. 60.' Ex parte Republic of Peru, 318 U.S. 578, 582, 63 S.Ct. 793, 796, 87 L.Ed. 1014 (1943). If the challenged action of the Judicial Council was a judicial act or decision by a judicial tribunal,7 then perhaps it could be reviewed by this Court without doing violence to the constitutional requirement that such review be appellate. As the concurring and dissenting opinions amply demonstrate, finding the prerequisites to support a conclusion that we do have appellate jurisdiction in this case would be no mean feat. It is an exercise we decline to perform since we conclude that in the present posture of the case other avenues of relief on the merits may yet be open to Judge Chandler. See Rescue Army v. Municipal Court, 331 U.S. 549, 568—575, 67 S.Ct. 1409, 1410, 1419—1423, 91 L.Ed. 1666 (1947).
27
Judge Chandler contends that his acquiescence in the division of business agreed upon by his fellow judges was given under some kind of duress flowing from the Council's Order of December 13, and that it was also given as a matter of 'strategy,' specifically in order to avoid the appearance of an absence of agreement among the District Judges as to a division of work. By so doing he sought to avoid creating a situation in which the Council would undoubtedly have had jurisdiction under § 137. The Council, however, noting that the judges had been unable to reach agreement as to those cases previously assigned to Judge Chandler, found nonetheless that a disagreement existed. Despite his apparent acquiescence, Judge Chandler contends that his actions since then belie his words; specifically that his subsequent attack in this Court established his disagreement.
28
Whatever the merits of this apparent attempt to have it both ways, one thing is clear: except for the effort to seek the aid of this Court, Judge Chandler has never once since giving his written acquiescence in the division of business sought any relief from either the Council or some other tribunal.8 Were he to disagree with the present division of business, the Judicial Council would thereupon be obliged to 'make the necessary orders.' 28 U.S.C. § 137. He chose to avoid that course. As Mr. Justice HARLAN'S concurring opinion points out, Judge Chandler apparently desires to have the status quo ante restored without the bother of either disagreeing with the present order of the Council or persuading his fellow district judges to enter another. To say the least this is a remarkable litigation posture for a lawyer to assert in his own behalf.
29
Instead, Judge Chandler brought an immediate challenge in this Court to the Order of December 13. As noted above, supra, at 79, we denied any relief on the ground that that Order was 'entirely interlocutory in character pending prompt further proceedings * * * and that at such proceedings Judge Chandler will be permitted to appear before the Council, with counsel. * * *' He expressly refused to attend the hearing called by the Council for February 10, 1966, in response to this Court's order; in his brief he gives as a reason that he was unwilling to 'attend a hearing conducted by a body whose jurisdiction he challenged * * *.'9 As a result of that refusal we have no record, no petition for relief addressed to any agency, court or tribunal of any kind other than this Court, and a very knotty jurisdictional problem as well.10 Parenthetically it might be noted that Chandler could have appeared, in person or by counsel, and challenged the jurisdiction of the Council without impairing his claim that it had no power in the matter.
30
As noted above, and as conceded by the dissents, the Order of December 13, 1965, was terminated by the Order of February 4, 1966. Judge Chandler has twice expressed agreement with the disposition of judicial business effected by that latter Order. Nothing in this record suggests that, were he to express disagreement, relief would not be forthcoming. On the contrary, on July 12, 1967, the Council expressly invited the judges of Chandler's district to agree among themselves upon a new rule or order for the division of business, and all the judges wrote back advising the Council that 'the current order for the division of business in this district is agreeable under the circumstances.'
31
Whether the Council's action was administrative action not reviewable in this Court, or whether it is reviewable here, plainly petitioner has not made a case for the extraordinary relief of mandamus or prohibition. The motion for leave to file the petition is therefore
32
Denied.
33
Mr. Justice MARSHALL took no part in the consideration of decision of this case.
34
Mr. Justice HARLAN, concurring in the denial of an extraordinary writ.
35
This opinion sets forth my reasons for concluding (1) that the subsisting Order of the Judicial Council of February 4, 1966, raises issues that are adequately presented to this Court and should be faced by it; (2) that this Court does have jurisdiction to pass upon them; and (3) that promulgation and effectuation of the Order of February 4, 1966, are within the Council's authority, and hence this petition for an extraordinary writ should be denied. The novelty and unusual character of these questions require, regrettably, an opinion of some length.
36
* I am perplexed by the Court's explanation for its failure to reach the issues presented by Judge Chandler's petition. As the Court states, the issues are whether this Court has jurisdiction to review the orders of the Judicial Council, and, if so, whether those orders are invalid because beyond the statutory and constitutional bounds of the Council's authority. The Court says, correctly I believe, that 'the threshold question in this case is whether we have jurisdiction to entertain the petition for extraordinary relief.' Ante, at 86. However, that question is never decided, and the Court's opinion closes with the statement that whether or not we have jurisdiction, 'plainly petitioner has not made a case for the extraordinary relief of mandamus or prohibition.' The predicate for this conclusion appears to be that Judge Chandler has an adequate remedy available before the Council, which he must invoke before seeking relief here. As authority for this unusual disposition, the Court cites only Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947), a decision that I do not consider lends itself to the gloss the Court today places upon it.
37
It is clear that, although the Council's Order of December 13, 1965, has been revoked, the subsequent Order of February 4, 1966, is still outstanding and is attacked by Judge Chandler as beyond the authority constitutional exercisable by the Council under either § 137 or § 332 of the Judicial Code. Judge Chandler has twice certified to the Council his acquiescence in the allocation of business mandated by the February 4 Order; indeed, his first certification was relied upon by the then Solicitor General, appearing for the Council in February 1966, as a basis for suggesting that the case was moot. Judge Chandler immediately responded that he did not in any way concede the Council's power to enter the February 4 Order, and that his indication of acquiescence made to the Council did not constitute such a concession. In light of this continued challenge to the order, the Solicitor General in March 1966 agreed 'that the case can no longer be deemed moot.'
38
The case thus reached the posture in which it now stands: Judge Chandler unequivocally asserts that the February 4 Order is beyond the Council's authority. If his contention were sound, the only validly outstanding directives for the allocation of business in the District Court would be those 'rules and orders' of that court, issued under § 137, that were in effect prior to December 13, 1965. Though the terms of those rules and orders are not before us, it is evident that they provided for assignment to Judge Chandler of a portion of the cases continually filed in his court. In challenging the validity of the Council's attempts to modify the previous allocation of business, and in requesting restoration of the status quo ante, Judge Chandler seeks to achieve a marked departure from the manner in which business is currently allocated.
39
Judge Chandler claims a right to accomplish this result without the necessity of mobilizing all the judges of his district to change the assignment of business by unanimous action, as the February 4 Order allows them to do. Further, since he denies the Council's authority to deprive him of all new business, he of course denies that he should be required to request the Council to renege as a condition of obtaining review of its outstanding order. He claims that it is illegal for the Council to deprive him of new cases, and equally so for the Council to condition his access to new cases upon his making a request to it that is tantamount to a form of a certification of disagreement under § 137.
40
Although the Court states that it does not decide the merits of this claim, see ante, at 87, I can read its opinion only as a determination that the claim is insubstantial. The Court states that it is a 'remarkable litigation posture' for Judge Chandler to argue that the Council has no authority to force him to choose between remaining without new business, seeking further action by the Council, or seeking unanimous action by the District Judges. The Court denies relief because '(n)othing in this record suggests that, were he to express disagreement, relief would not be forthcoming,' a decision that can only be premised on a holding that he is denied no rights by being relegated to that course of action. Ante, at 87, 88—89. But this is the contrary of what Judge Chandler contends, and a conclusion with which two members of this Court sharply differ. As explained in Part III, infra, I too believe that Judge Chandler now lacks meritorious ground for complaint. However, I do not believe that the Court can properly make that holding without first determining its jurisdiction to consider the question.
41
Rescue Army, supra, provides no authority for such a procedure. That decision represents one branch of the longsettled doctrine that this Court will not determine constitutional questions unnecessarily or in a case that does not present them with sufficient clarity to make possible the circumspect consideration they require. See generally id., at 568—585, 67 S.Ct. at 1419—1428; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Because the constitutional issues in Rescue Army were presented in a highly abstract and speculative form, and were clouded by factors not present in this case,1 the Court dismissed the appeal, declining to adjudicate them. It concluded that an appellant there, faced with state criminal charges, would have to undergo a trial on the charges before obtaining review in this Court of his constitutional claims. As in this case, the Court's action had the effect of rejecting the appellant's claim of a right to obtain relief without further proceedings in a lower tribunal, see 331 U.S., at 584, 67 S.Ct., at 1427. However, the Court made that disposition only after carefully determining that it had jurisdiction in the case. See id., at 565—568, 67 S.Ct., at 1417 1419.
42
The Court does suggest, by footnote, an alternative basis for its refusal to consider Judge Chandler's petition. Ante, at 87 n. 8. If an adequate means of review of Council orders were available in the Federal District Court under 28 U.S.C. § 1361, that might justify this Court's staying its hand until such review had been sought. However, as pointed out by the United States as amicus curiae, it seems wholly unrealistic to suggest that an appropriate remedy could be obtained from a District Court. The District Court mandamus statute, § 1361, extends to 'officers,' 'employees,' and 'agencies' of the United States; there is no indication that it empowers the District Courts to issue mandamus to other judicial tribunals. Thus, as the Judicial Council seems to concede, the availability of a remedy under that statute hinges on a determination, which the Court avoids making, whether the Council's actions under review were judicial or not. Brief for Respondent 19. Beyond that, direct review by a district judge of the actions of circuit judges would present serious incongruities and practical problems certainly not contemplated when § 1361 was enacted. It is unrealistic for the Court to imply that § 1361 presents an appropriate avenue of relief justifying this Court's refusal to exercise its jurisdiction.
43
I do not disagree with the Court that the issues presented by Judge Chandler's petition are troublesome ones that we might wish to avoid deciding. However, I can perceive no reasoned justification for the Court's refusal to decide them. Chief Justice Marshall long ago enunciated the principle that should govern us here:
44
'It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. * * * With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usrup that which is not given.' Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257 (1821).
45
That principle has not been abrogated by the Rescue Army decision, which merely undertook to define the limits of our ability to adjudicate constitutional issues in cases that adequately present them. I find no license in that decision for the action taken by the Court today.
II
46
Before Judge Chandler's attack on the orders of the Judicial Council can be considered, it must be determined whether the Court possesses jurisdiction to entertain his petition for a writ of mandamus or prohibition. While I agree with my Brothers Black and Douglas that the Court does have jurisdiction, I think the question warrants fuller treatment than they have given it.
A. Constitutional Jurisdiction
47
Any discussion of the scope of this Court's authority under the Constitution must take as its point of departure Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803), where the Court held that except in those instances specifically enumerated in Article III of the Constitution,2 this Court may exercise only appellate not original—jurisdiction. Because this suit is not cognizable as an original cause, the question initially to be faced is whether it is within our appellate jurisdiction.
48
The Court was asked in Marbury to issue a writ of mandamus to compel the Secretary of State to deliver to an appointed justice of the peace his previously signed commission. After nothing that the suit did not fall within any of the enumerated heads of original jurisdiction, the Court, through Chief Justice Marshall, concluded: 'To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable (the Court) to exercise appellate jurisdiction.' Id., at 175. The Court held that issuance of mandamus to a nonjudicial federal officer would not be an exercise of appellate, but of original, jurisdiction. Thus the statute that purported to authorize such action by the Supreme Court was ineffective. See 2 J. Story, Commentaries on the Constitution of the United States § 1761 (5th ed. 1891).
49
The Chief Justice stated, as the 'essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.' I Cranch, at 175. Beyond cavil, the issuance of a writ of mandamus to an inferior court is an exercise of appellate jurisdiction. In re Winn, 213 U.S. 458, 465—466, 29 S.Ct. 515, 516 517, 53 L.Ed. 873 (1909). If the challenged orders of the Judicial Council in this instance were 'an exercise of judicial power.' this Court is constitutionally vested with jurisdiction to review them, absent any statute curtailing such review. Williams v. United States, 289 U.S. 553, 566, 53 S.Ct. 751, 755, 77 L.Ed. 1372 (1933); Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U.S. 716, 723, 49 S.Ct. 499, 501, 73 L.Ed. 918 (1929); In re Sanborn, 148 U.S. 222, 224, 13 S.Ct. 577, 578, 37 L.Ed. 429 (1893). On the other hand, if they were not, Marbury alone is sufficient authority to support a conclusion that this suit is beyond this Court's power under Article III. An analysis of the nature of the Council's orders must begin with consideration of the statute by which the Council was created.
50
The Judicial Councils of the circuits were brought into being by the Act of August 7, 1939, which was termed 'An act to provide for the administration of the United States courts, and for other purposes.' 53 Stat. 1223. The major purposes of the Act were to free the federal courts from their previous reliance on the Justice Department in budgetary matters, and 'to furnish to the Federal courts the administrative machinery for self-improvement, through which those courts will be able to scrutinize their own work and develop efficiency and promptness in their administration of justice.' H.R.Rep. No. 702, 76th Cong., 1st Sess., 2 (1939). To this end the Act established the Administrative Office of the United States Courts, headed by a Director, to compile statistical data on the operation of the courts and to provide support services of a logistical nature.3 The Act further established two new entities in each of the judicial circuits: the Judicial Council, composed of all the active circuit judges, and the Judicial Conference, composed of circuit and district judges along with participating members of the bar. The Council, in regular meetings, was to consider the reports of the Director and take 'such action * * * thereon' as might be necessary;4 the Conference was to meet annually 'for the purpose of considering the state of the business of the courts and advising ways and means of improving the administration of justice within the circuit.'5
51
As these statutory provisions indicate, Congress envisioned quite different functions for the three new bodies. The role of the Administrative Office, and its Director, was to be 'administrative' in the narrowest sense of that term. The Director was entrusted with no authority over the performance of judicial business—his role with respect to such business was, and is, merely to collect information for use by the courts themselves. Chief Justice Groner of the Court of Appeals for the District of Columbia, who was chairman of the committee of circuit judges that participated in drafting the bill, stressed to the Senate Committee on the Judiciary that the bill would give the Director no 'supervision or control over the exercise of purely judicial duties,' because to grant such power to an administrative officer 'would be to destroy the very fundamentals of our theory of government. The administrative officer (the Director) proposed in this bill is purely an administrative officer.' Hearings on S. 188 before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 1st Sess., 12 (1939) (response to question by Senator Hatch). See also id., at 36 (statement of A. Holtzoff).
52
The Judicial Conference for each circuit was given a complementary role, again divorced from direct involvement in the disposition by the courts of their judicial business. Patterned in large part after the voluntary conferences that had been held for years in the Fourth Circuit, the Conference was intended to provide an opportunity for friendly interchange among judges and between bench and bar, out of which might grow increased understanding of problems of judicial administration and enhanced cooperation toward their solution. Its function, as indicated by the statutory language quoted above, was to be 'purely advisory.' See Hearings on H.R. 5999 before the House Committee on the Judiciary, 76th Cong., 1st Sess., 11—12, 17, 23—24 (1939).
53
The Judicial Council, on the other hand, was designed as an actual participant in the management of the judicial work of the circuit. The Act provided that, '(t)o the end that the work of the district courts shall be effectively and expeditiously transacted,' the circuit judges of each circuit were to meet as a council at least twice a year. After consideration of the statistical reports submitted by the Administrative Office, 'such action shall be taken thereon by the council as may be necessary. It shall be the duty of the district judges promptly to carry out the directions of the council as to the administration of the business of their respective courts.'6 This provision exists today as § 332 without relevant change, except that the 1948 revision of the Judicial Code added a declaration that '(e)ach judicial council shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit,' and correspondingly directed the district judges to carry out all such 'orders.' The reviser's note explained this amendment as merely a change in 'phraseology,' embodying in new words the original understanding of the powers of the councils. H.R.Rep. No. 308, 80th Cong., 1st Sess., A46 (1947).
54
The most helpful guide in determining the role envisaged for the Judicial Councils is the testimony of Chief Justice Groner, who shouldered most of the task of explaining the purposes of the bill to the committees of both Houses of Congress. He explained that under existing law the circuit judges had 'no authority to require a district judge to speed up his work or to admonish him that he is not bearing the full and fair burden that he is expected to bear, or to take action as to any other matter which is the subject of criticism, * * * for which he may be responsible.' Hearings on S. 188, supra, at 11. In contrast, under the proposed bill the Administrative Office would 'observe and see that whatever is wrong in the administration of justice, from whatever sources it may arise, is brought to the attention of the judicial council that it may be corrected, by the courts themselves.' Id., at 12 13.
55
As examples of the kinds of action a Judicial Council might be expected to take under the proposed bill, Chief Justice Groner suggested that if the statistics showed a particular district court to be falling behind in its work, the Council would 'see to it, either that the particular judge who is behind in his work catches up with his work, or that assistance is given to him whereby the work may be made current.' Id., at 11. If it appeared that a particular judge 'had been sick for 4 or 5 months and had been unable to hold any court, or had been unable, by reason of one thing or another, to transact any business, * * * immediate action could be taken to correct that situation.' Hearings on H.R. 5999, supra, at 11. Asked by Representative Walter Chandler 'what power is given there to require a judge to decide a case that he has had under advisement for months and years,' he responded that the Council, after considering the matter, could issue directions that would be 'final.' Id., at 13. Any 'lazy judge's work would be reported to the council, (which) would take the correct action.' Id., at 27.7
Judge Parker stated his view that
56
'what we have done is this, up to this point: We have given to the Circuit Court of Appeals supervisory power over the decisions of the district judges, but we have given them no power whatever over administration by the district judges.
57
'If Judge Jones decides a case contrary to the views of the majority of the Circuit Court of Appeals, we can tell him so and reverse him. But if he holds a case under advisement for 2 years, instead of deciding it promptly, there is nothing that we are authorized by the law to do about it in the absence of an application for mandamus. Now, this (bill) authorizes us to do something about it; and I agree with you that something ought to be done about it.' Id., at 21.
58
In place of the inadequate extraordinary remedy of mandamus, which could correct only the extreme abuse in a particular case, the circuit judges, sitting as the Judicial Council, were given the authority for continuous supervision of the flow of work through the district courts.
59
In short, the proposed Judicial Council was intended to fill the hiatus of authority that existed under the then-current arrangements, whereby the Attorney General collected data about the operation of the courts but had no power to take corrective action, 'except, perhaps, as a result of the moral suasion of his office.' The proposed bill would allow compilation of more complete information, and would 'provide a method, a legitimate, valid, legal method, by which if necessary, and when necessary, the courts may clean their own house'; it would 'give a body, in which the authority is firmly lodged, the power to do that and to do it expeditiously.' Id., at 8. See generally Report on the Powers and Responsibilities of the Judicial Councils, H.R.Doc. No. 201, 87th Cong., 1st Sess. (1961); Fish, The Circuit Councils: Rusty Hinges of Federal Judicial Administration, 37 U.Chi.L.Rev. 203 (1970).
60
This legislative history lends support to a conclusion that, at least in the issuance of orders to district judges to regulate the exercise of their official duties, the Judicial Council acts as a judicial tribunal for purposes of this Court's appellate jurisdiction under Article III. It seems clear that the sponsors of the bill considered the power to give such orders something that could not be entrusted to any purely 'administrative' agency not even to the Administrative Office, which was to be an arm of the judicial branch of government and under the direct control of the Supreme Court and the Judicial Conference of the United States. Chief Justice Groner, in the passage quoted above, stated that to give such power to an administrative agency 'would be to destroy the very fundamentals of our theory of government.' Instead, any problems unearthed by the Director's studies were to be 'corrected, by the courts themselves.' Hearings on S. 188, supra, at 12—13. See also Hearings on H.R. 5999, supra, at 8.
61
There were further references throughout the hearings and committee reports to the fact that the corrective power would be exercised by the courts themselves. E.g., Hearings on S. 188, supra, at 16 (statement of A. Vanderbilt); id., at 31—32 (statement of Hon. Harold M. Stephens); id., at 36 (statement of A. Holtzoff); H.R.Rep. No. 702, 76th Cong., 1st Sess., 4 (1939). The House report quoted with approval an endorsement of the bill by the American Judicature Society, stating that 'there is no way to fortify judicial independence equal to that of enabling the judges to perform their work under judicial supervision.' Ibid. These statements indicate that the power to direct trial judges in the execution of their decision-making duties was regarded as a judicial power, one to be entrusted only to a judicial body.
62
In this regard it is important to note that an earlier draft of the 1939 Act would have given responsibility for supervising the lower courts to the Supreme Court and the Chief Justice of the United States. The idea of devolving the authority to councils at the circuit level was suggested by Chief Justice Hughes, who believed that the supervision could be made most effective by 'concentration of responsibility in the various circuits * * * with power and authority to make the supervision all that is necessary to induce competence in the work of all of the judges of the various districts within the circuit.' H.R.Doc. No. 201, supra, at 3. It is equally notable that, while the draftsmen did consider giving district judges some representation on the Councils, see id., at 4—5, there was apparently no thought given to including nonjudicial officers. These indications leave no doubt that the Councils' architects regarded the authority granted the Councils as closely bound up with the process of judging itself.8
63
Because the legislative history shows Congress intended the Councils to act as judicial bodies in supervising the district judges, there is no need to decide whether placement of this authority in a nonjudicial body would violate the constitutional separation of powers, as Chief Justice Groner seems to have believed. It is sufficient to conclude from reason and analogy that this responsibility is of such a nature that it may be placed in the hands of Article III judges to be exercised as a judicial function.
64
An order by the Council to a district judge, directing his handling of one or many cases in his court, is an integral step in the progress of those cases from initial filing to final adjudication. Like the district judge's own orders setting a time for discovery or trial, or transferring a case to another district pursuant to 28 U.S.C. § 1404(a), such an order, even though concerned with a matter of 'judicial administration,' is part of the official conduct of judicial business. Unlike the more common orders of the district court, the Council's orders involve supervision of a subordinate judicial officer. But in this regard they are not unlike the extraordinary writ of mandamus, which Judge Parker thought the Council's orders would supplement, or the orders entered by courts in proceedings for disbarment of an attorney. In short, the function of the Council in ordering the district judges to take certain measures related to the cases before them is, as the legislative history indicates Congress understood, judicial in nature.9
65
To support a contrary conclusion, respondent points to the language of Justice Holmes in Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908), defining a 'judicial inquiry' as one that 'investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist,' as contrasted to legislation, which 'looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.' The Court in Prentis held that a ratemaking proceeding in the Virginia State Corporation Commission was legislative in character, despite the fact that the Commission was assumed to function as a court in performing other duties. Similarly, in United States v. Ferreira, 13 How. 40, 14 L.Ed. 42 (1852), this Court concluded that the act of a district judge in passing on claims under a treaty, subject to approval by the Secretary of the Treasury, was not a judicial one; the Court held that Congress, in giving this authority to judges, referred to them by their office 'merely as a designation of the persons to whom the authority is confided, and the territorial limits to which it extends.' Id., at 47. See also Gordon v. United States, 2 Wall. 561, 17 L.Ed. 921 (1865); In re Metzger, 5 How. 176, 12 L.Ed. 104 (1847); Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436 (1792).
66
Respondent argues that the functions of the Judicial Council under § 332 are, under Justice Holmes' definitions, legislative, or administrative, rather than judicial; and that the statutory provision making the membership of the Council coextensive with that of the Court of Appeals for each circuit10 is merely a means of designating the individual members by reference to their office. Certainly respondent is correct in urging that Congress' designation of circuit judges as the members of the Council does not in itself make the Council's function judicial. I think, however, that the Council's orders directing the official business of the district courts are judicial within the general definition of that term in Prentis. In urging that the Council's function merely 'looks to the future and changes existing conditions by making a new rule,' respondent disregards the fact that each of the Council's orders, such as those challenged here, is rooted in the factual circumstances of the business of a particular judge or judges and the status of a particular case or cases in the district court; and each order, if properly entered, extends only as far as the circumstances that make it 'necessary * * * for the effective and expeditious administration of the business of the courts.' 28 U.S.C. § 332. As noted above, the Council's orders for the handling of cases in the district court serve as one step in the progress of those cases toward judgment. Those orders can be expected to apply commonly accepted notions of proper judicial administration to the special factual situations of particular cases or particular judges.
67
As respondent points out, the power entrusted to the Councils by § 332, like those added by later enactments see infra, at 109 110, necessarily involves a large amount of discretion; accordingly, review of the Councils' actions will usually be narrow in scope. But this does not mean that the Councils are 'left at large as planning agencies.' United States v. First City National Bank, 386 U.S. 361, 369, 87 S.Ct. 1088, 1094, 18 L.Ed.2d 151 (1967). In First City National Bank, we were faced with a federal statute directing the courts to determine whether the anticompetitive effect of a proposed bank merger was outweighed by considerations of community convenience and need. We ruled that the courts could accept this as a 'judicial task' because, like the 'rule of reason,' long prevalent in the antitrust field, the effect-on-competition standard was a familiar one within 'the area of judicial competence.' See also United Steel-workers of America v. United States, 361 U.S. 39, 80 S.Ct. 1, 4 L.Ed.2d 12 (1959). Judicial administration is a matter in which the courts even more clearly should have special competence. Within the framework of the statutes establishing the inferior federal courts and defining their jurisdiction, the Judicial Councils are charged with the duty to take such actions as are necessary for the expedition of the business of the courts in each circuit. Their discretion in this matter, while broad, does not seem to be of a different order from that possessed by district judges with respect to many matters of trial administration. In both instances, review can correct legal error or abuse of discretion where it occurs; that the scope of review will often be very narrow does not in itself establish that the exercise of such discretion is a nonjudicial act.11
68
Respondent makes a further argument to avert a conclusion that the actions here drawn in question were judicial actions. It points out that Congress since 1939 has given the Judicial Councils many specific powers—powers that respondent considers so clearly nonjudicial as to negate any inference that the Council serves as a 'judicial' body within the purview of Article III. Those powers include the power to order a district judge, where circumstances require, to reside in a particular part of the district for which he is appointed, 28 U.S.C. § 134(c); to make any necessary orders if the district judges in any district are unable to agree upon the division of business among them, 28 U.S.C. § 137; to consent to the pretermission of any regular session of a District Court for insufficient business or other good cause, 28 U.S.C. § 140(a); to approve as necessary the provision of judicial accommodations for the courts by the General Services Administration, 28 U.S.C. § 142; to consent to the designation and assignment of circuit or district judges to sit on courts other than those for which they are appointed, 28 U.S.C. § 295; to certify to the President that a circuit or district judge is unable to discharge efficiently all the duties of his office by reason of permanent mental or physical disability, thus authorizing the President to appoint an additional judge, 28 U.S.C. § 372(b); to direct where the records of the courts of appeals and district courts shall be kept, 28 U.S.C. § 457; to approve plans for furnishing representation for defendants under the Criminal Justice Act, 18 U.S.C. § 3006A(a); and to take various actions in regard to referees in bankruptcy, including removal of a referee for cause, 11 U.S.C. §§ 62(b), 65(a), (b), 68(a), (b), (c), 71(b), (c).
69
While many of these powers are trivial in comparison with the courts' basic responsibility for final adjudication of lawsuits, I am not persuaded that their possession is inconsistent with a conclusion that the Council, when performing its central responsibilities under 28 U.S.C. § 332, exercises judicial power granted under Article III. Cf. Glidden Co. v. Zdanok, 370 U.S. 530, 580—582, 82 S.Ct. 1459, 1488—1490, 8 L.Ed.2d 671 (1962) (opinion of Harlan, J.). In the first place, the respondent concedes that at least one of these enumerated powers—the power to remove referees for cause—'can properly be regarded as judicial,' and it is not at all clear that any of them is beyond the range of the permissible activities of an Article III court. In Textile Mills Securities Corp. v. Commissioner of Internal Revenue, 314 U.S. 326, 332, 62 S.Ct. 272, 276, 86 L.Ed. 249 (1941), the Court noted the range of relatively minor responsibilities, other than the hearing of appeals, placed by statute in the courts of appeals. These included prescribing the form of writs and other process and the form and style of the courts' seals; making rules and regulations; appointing a clerk and approving the appointment and removal of deputy clerks; and fixing the times when court should be held. Each of these functions was to be performed by the 'court.' While it is possible that the performance of some of them might never produce a case or controversy reviewable in this Court, they are reasonably ancillary to the primary, dispute-deciding function of the courts of appeals. Just as the Court in Textile Mills did not question the authority of Congress to grant such incidental powers to the courts of appeals, I see little reason to believe that any of the various supervisory tasks entrusted to the Judicial Council is beyond the capacities of a judicial body under Article III.
70
In the second place, my conclusion about the nature of the Council's primary function under § 332 would stand even if it were determined that one or more of the Council's assorted incidental powers were incapable of being exercised by an Article III court. If I am correct in concluding that Congress' purpose in 1939 in creating the Judicial Councils was to vest in them, as an arm of the Article III judiciary, supervisory powers over the disposition of business in the district courts, that purpose is not undone by a subsequent congressional attempt to give them a minor nonjudicial task; it would be 'perverse to make the status of (the Councils) turn upon so minuscule a portion of their purported functions.' Glidden Co. v. Zdanok, 370 U.S., at 583, 82 S.Ct., at 1490.
B. Statutory Jurisdiction
71
This Court does not, of course, necessarily possess all of the appellate jurisdiction permitted to it by Article III. That article provides that our appellate jurisdiction is to be exercised 'with such Exceptions, and under such Regulations as the Congress shall make,' and this language has been held to give Congress the power, within limits, to prescribe the instances in which it may be exercised. E.g., Ex parte McCardle, 7 Wall. 506, 512—513, 19 L.Ed. 264 (1869). I turn, therefore, to the Judicial Code to determine our statutory authority to consider Judge Chandler's petition.
72
Congress in the Code has not spoken, one way or the other, regarding review of the orders of Judicial Councils. Petitioner asserts that the Court has power to issue mandamus or prohibition to the Councils under the All Writs Act, 28 U.S.C. § 1651(a), which provides that
73
'(t)he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.'
74
This statute has been construed to empower this Court to issue an extraordinary writ to a lower federal court in a case falling within our statutory appellate jurisdiction, where the issuance of the writ will further the exercise of that jurisdiction. See e.g., De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945); United States Alkali Export Assn. v. United States, 325 U.S. 196, 201—204, 65 S.Ct. 1120, 1124—1126, 89 L.Ed. 1554 (1945). It is now settled that the case need not be already pending in this Court before an extraordinary writ may be issued under § 1651(a); rather, the Court may issue the writ when the lower court's action might defeat or frustrate this Court's eventual jurisdiction, even where that jurisdiciton could be invoked on the merits only after proceedings in an intermediate court. See, e.g., De Beers Consolidated Mines, Ltd. v. United States, 325 U.S., at 217, 65 S.Ct., at 1133; Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014 (1943); Ex parte United States, 287 U.S. 241, 248—249, 53 S.Ct. 129, 130—131, 77 L.Ed. 283 (1932); McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762 (1910); cf. FTC v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966); Roche v. Evaporated Milk Assn., 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). But cf. In re Glaser, 198 U.S. 171, 173, 25 S.Ct. 653, 654, 49 L.Ed. 1000 (1905); In re Massachusetts, 197 U.S. 482, 488, 25 S.Ct. 512, 514, 49 L.Ed. 845 (1905).
75
Each of the prior cases in which this Court has invoked § 1651(a) to issue a writ 'in aid of (its jurisdiction)' has involved a particular lawsuit over which the Court would have statutory review jurisdiction at a later stage. By contrast, petitioner's reliance on this statute is bottomed on the fact that the action of the Judicial Council 'touches, through Judge Chandler's fate, hundreds of cases over which this Court has appellate or review jurisdiction.' Petition for Writ of Prohibition and/or Mandamus 13. He argues that the Council's orders, allocating to other judges in his district cases that would otherwise be decided by him, constitute a usurpation of power that cannot adequately be remedied on final review of those cases by certiorari or appeal in this Court. The United States as amicus curiae agrees that this claim properly invokes the Court's power to consider whether mandamus or prohibition should be granted.12 Although this expansive use of § 1651(a) has no direct precedent in this Court, it seems to me wholly in line with the history of that statute and consistent with the manner in which it has been interpreted both here and in the lower courts.
76
Chief Justice Stone, writing for the Court in Ex parte Republic of Peru, 318 U.S., at 583, 63 S.Ct., at 796, characterized the 'historic use of writs of prohibition and mandamus directed by an appellate to an inferior court' as that of 'confining the inferior court to a lawful exercise of its prescribed jurisdiciton, or of compelling it to exercise its authority when it is its duty to do so.' The bounds of this Court's discretionary power to issue such writs were further stated in Parr v. United States, 351 U.S. 513, 520—521, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956):
77
'The power to issue them is discretionary and it is sparingly exercised. * * * This is not a case where a court has exceeded or refused to exercise its jurisdiction, see Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185, nor one where appellate review will be defeated if a writ does not issue, cf. Maryland v. Soper, 270 U.S. 9, 29—30, 46 S.Ct. 185, 189, 70 L.Ed. 449. Here the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction. The extraordinary writs do not reach to such cases; they may not be used to thwart the congressional policy against piecemeal appeals. Roche v. Evaporated Milk Assn., supra, 319 U.S. at page 30, 63 S.Ct. at page 943.'13
78
In Parr, the petitioner's claim was simply that a district court had erred in dismissing an indictment at the Government's request after the Government had obtained a new indictment for the same offenses in another district. In contrast, the present case involves a claim that the Council's orders were entered in a matter entirely beyond its jurisdiction. Judge Chandler claims that the order of December 13, 1965, depriving him of both pending and future cases, was tantamount to his removal from office, and that such an act far exceeded the limited jurisdiction over 'administrative' matters conferred on the Council by § 332. He further asserts, as noted in Part I, supra, that the order of February 4, 1966, exceeded the Council's jurisdiction under either § 332 or § 137. Such grave charges clearly go beyond a mere claim that the Council has 'erred in ruling on matters within (its) jurisdiction.' Cf. Will v. United States, 389 U.S. 90, 95—96, 98 and n. 6, 88 S.Ct. 269, 273—274, 275, 19 L.Ed.2d 305 (1967); Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964).
79
Further, there seems to be no means by which Judge Chandler's challenge to the orders could be aired adequately on review of the cases to which they pertain. While the losing party in a case assigned to another district judge might conceivably argue on appeal that he is entitled to reversal because his case should have been heard by Judge Chandler, such an argument would encounter formidable obstacles. A reviewing court would have no way of determining whether a particular case filed in the District Court after the February 4 Order would, but for that order, have been assigned to Judge Chandler; nor is it clear that the error, if detectable, would in itself entitle the losing party to invalidate proceedings had before another judge. More basically, Judge Chandler is asserting an injury to himself, apart from any injuries to the parties in those cases; the parties cannot be relied upon to seek vindication of that injury. Cf. Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041 (1947); Ex parte Harding, 219 U.S. 363, 372—380, 31 S.Ct. 324, 326 330, 55 L.Ed. 252 (1911).
80
It is difficult to see how the very multiplicity of the cases affected by the Council's orders could derogate from this Court's authority under § 1651(a) to issue an extraordinary writ in aid of its appellate jurisdiction over them. A somewhat analogous multiplicity was found to militate in favor of the issuance of mandamus in McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992 (1940), and in Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 47 § .Ct. 286, 71 L.Ed. 481 (1927). As later explained by Mr. Justice Brennan, dissenting in La Buy v. Howes Leather Co., 352 U.S. 249, 266, 77 S.Ct. 309, 318, 1 L.Ed.2d 290 (1952),
81
'Los Angeles Brush Mfg. Corp. was a case where a reference (to a master) was made, not because a district judge decided that the particular circumstances of the particular case required a reference but pursuant to an agreement among all the judges of that District Court always to appoint masters to hear patent cases regardless of the circumstances of particular cases.'
82
Mandamus was therefore issued in Los Angeles Brush Mfg. Corp., and in McCullough, which involved a similar situation in the same District Court, in order to remedy a pervasive disregard of the Rules of Civil Procedure affecting numerous cases.14
83
Similarly, in La Buy the Court upheld the authority of the Court of Appeals under § 1651(a) to issue writs of mandamus compelling a district judge to rescind his referral of two antitrust cases to a master for trial. The Court found that the referral 'was a clear abuse of discretion,' and further noted 'that the Court of Appeals has for years admonished the trial judges of the Seventh Circuit that the practice of making references 'does not commend itself' * * * (and that it was) 'all too common in the Northern District ofIllinois," 352 U.S., at 257, 258, 77 S.Ct., at 314. This factor was primary among the 'exceptional circumstances' found to warrant the Court of Appeals' issuance of the writs.
84
In the reported case most nearly analogous to this one, the Court of Appeals for the Third Circuit issued a writ of mandamus at the behest of the United States to compel a district judge to return to the judicial office from which he had been unlawfully removed. United States v. Malmin, 272 F. 785 (C.A.3d Cir. 1921). Judge Malmin, of the District Court of the Virgin Islands, had returned to the United States after the territorial governor had purported to remove him and appoint another to his seat. Relying on § 262 of the Judicial Code of 1911, a predecessor of the All Writs Act, the court ruled that it had authority to issue the writ 'in aid of' its jurisdiction, id., at 791; it observed that the absence of a lawfully appointed judge of the District Court affected the rights of litigants in cases reviewable in the Court of Appeals, and that 'the right of the public to a properly constituted trial court from which appeals can validly lie could not be asserted or brought about in proceedings on appeal or by writ of error.' In those circumstances, the court deemed it 'essential to the appellate jurisdiction of this court that orderly proceedings in the District Court of the Virgin Islands be restored.' Id., at 792.
85
A dissenter in Malmin disagreed with the majority's conclusion that the defect could not be rectified on appeal, and urged that mandamus should not issue because it could not bind the succeeding appointee, who was not a party. In the case before us, as noted above, the ordinary appeals are not adequate to protect Judge Chandler's interest; and there is no problem of missing parties, since it is the judge himself who is complaining of illegal interference with the exercise of his office, and that complaint can be remedied fully by the issuance of a writ against respondent Judicial Council.
86
For these reasons I would conclude that the actions challenged by Judge Chandler sufficiently affect matters within this Court's appellate jurisdiction to bring his application for an extraordinary writ within our authority under § 1651(a), and that his charges, if sustained, would present an appropriate occasion for the issuance of such a writ.15
III
87
In the present posture of this case Judge Chandler, in my opinion, is not entitled to the relief he seeks. The Order of December 13, 1965, which prompted his recourse to this Court, has been superseded by the Order of February 4, 1966, which I am satisfied is entirely within the authority of the Council. I am wholly unable to regard the latter order either as a 'removal' of Judge Chandler from judicial office, or as anything other than an effort to move along judicial traffic in the District Court. In this state of affairs, I can find no room for the constitutional argument so vigorously made by my Brothers BLACK and DOUGLAS.
88
Petitioner strenuously attacks the substance of the December 13 Order, which he claims effectively re-
A145
(1947). Because the language of § 1651(a) more closely resembles that of § 262, it has been speculated that Congress by enacting the revision may have withdrawn from this Court its special appellate power under § 234 to supervise proceedings in the lower federal courts without regard to whether any other statute gives the Court jurisdiction to review those proceedings. See La Buy v. Howes Leather Co., 352 U.S. 249, 260, 77 S.Ct. 309, 315, 1 L.Ed.2d 290 (1957) (Brennan, J., dissenting); In re Josephson, supra
The United States as amicus urges the Court to rule that no such change was effected by the 1948 revision, arguing correctly that § 234 would clearly encompass the type of review Judge Chandler seeks. The United States points out, in support of such a ruling, that the Reviser's Note stated that § 1651(a) 'consolidates' the earlier provisions, 'with necessary changes in phraseology'; this gave no indication that a significant change in the law was intended, and one should not lightly be inferred. I note that the Court in Ex parte Republic of Peru, referring to both § 234 and § 262, stated that '(u)nder the statutory provisions, the jurisdiction of this Court to issue common-law writs in aid of its appellate jurisdiction has been consistently sustained.' 318 U.S., at 582—583, 63 S.Ct., at 796. Its use of the expression 'in aid of its appellate jurisdiction' to characterize both statues suggests that the similar phrase in § 1651(a) may also encompass the powers exercised by this Court under § 234. However, there is no need to decide this question here in light of the fact that the reviewability in this Court of the many cases whose allocation is determined by the Judicial Council's orders brings Judge Chandler's petition within the Court's powers as they existed under § 262. moved him from office, as well as the procedures under which the order was issued. His substantive argument is that § 332, on which the Council relied, does not authorize the placing of restrictions upon the functioning of a district judge, even temporarily, and that if it does the statute is unconstitutional because the constitutional provisions16 vesting in Congress authority to impeach federal officers, including judges, establish the exclusive means of inquiry into the fitness of a federal judge to perform his duties. In response the United States as amicus argues that the impeachment provisions should not be read as precluding legislation that would authorize supervision of federal judges by 'judicial trial of the fulfillment of the condition of federal judicial tenure under Article III—that the judge maintain his 'good behavior." This question has been the subject of scholarly debate, and is presently before the Senate as it considers the proposed Judicial Reform Act. See Hearings on S. 1506—S. 1516 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 91st Cong., 1st Sess. (1969). Petitioner's procedural objections to the December 13 Order relate to its issuance ex parte, without notice or hearing circumstances that raise serious questions under the Due Process Clause of the Fifth Amendment.
I
believe the respondent and the United States are correct in contending that these issues need not be resolved on this occasion. As already appears, the December 13 Order is no longer before us. Therefore, the only question still requiring decision is the validity of the outstanding February 4 Order under the enabling statutes
B
The Council rested the February 4 Order on its authority under both § 137 and § 332. Considering first the Council's more general grant of authority, § 332, I think this order was substantively within the powers conferred by that provision. The order was designed to deal with the situation in Judge Chandler's court by requiring him to dispose of his backlog before notifying the Council that he is willing and able to undertake new assignments. See Supplemental Memorandum for Respondent. That the Councils might issue orders of this type was clearly contemplated by the draftsmen of § 332, and such orders seem to have been a customary measure taken by the Councils under the section.
The legislative history of § 332, summarized in Part II above, makes clear that a Judicial Council's mandate to 'make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit' was intended to encompass the making of orders that would direct a district judge to clear up his docket or would channel cases to other judges when a situation existed with respect to one judge that was inimical to the effective administration of justice. Cf. Vinson, The Business of Judicial Administration: Suggestions to the Conference of Chief Justices, 35 A.B.A.J. 893, 895 (1949).
The Judicial Conference of the United States made a study in 1961 of the role of the Judicial Councils, culminating in a report that was transmitted to Congress by Chief Justice Warren. That report, after thorough consideration of the legislative history of the 1939 Act, specifically listed as among the responsibilities of the Councils 'having a judge who has an accumulation of submitted cases not take on any further trial work until such cases have been decided.' H.R.Doc. No. 201, supra, at 10. This power has been exercised on other occasions by other Judicial Councils. See, e.g., Fish, supra, 37 U.Chi.L.Rev., at 230; Lumbard, The Place of the Federal Judicial Councils in the Administration of the Courts, 47 A.B.A.J. 169, 170—171 (1961); Shafroth, Modern Developments in Judicial Administration, 12 Am.U.L.Rev. 150, 160 (1963). The propriety of such action has apparently never before been seriously challenged.
Judge Chandler argues, however, that § 332 limits the council's authority in making this type of order to situations in which the order is necessitated by the existence of an extraordinary backlog of cases, and that the February 4 Order was prompted, not by such a backlog, but by the Council's desire to punish Judge Chandler for misbehavior. There seem to be two strands to this argument. First, there are suggestions in petitioner's briefs and in those of amicus curiae Shipley that the Council's actions have been taken, not for the reasons stated in the various orders and minutes of the Council, but for reasons of personal animosity. There is nothing in the record, which consists of Judge Chandler's petition and the orders and minutes of the Council, to substantiate this charge, and I for one am quite unwilling to attribute such motives to the Council. Second, Judge Chandler seems to assert that the February 4 Order is sustainable only if supported by a showing that his docket bore a numerically heavier load of pending cases than did those of his colleagues on the District Court, and that this justification is lacking here.17 I believe this argument reflects an overly restrictive view of the Judicial Council's role.
The legislative history of § 332 contains positive refutation of petitioner's argument that the only factor a Council might appropriately consider in making an order such as that of February 4 is the statistical weight of the workloads of the various district judges. It is true, as the legislative history in Part II above confirms, that abatement of delays in disposition of cases was a principal purpose for creation of the Councils; but the Councils were deliberately given broad responsibilities to meet other problems as they arose. Chief Justice Groner contemplated that the Councils would cope not only with delays but also with 'any other matter which is the subject of criticism, or properly could be made the subject of criticism, for which (a district judge) may be responsible.' Hearings on S. 188, supra, at 11. The Senate committee included this part of the testimony in its report recommending passage of the bill. S.Rep. No. 426, 76th Cong., 1st Sess., 3 (1939). The same witness later stated that the council's responsibilities would embrace correction of 'whatever is wrong in the administration of justice, from whatever sources it may arise,' as a means of promoting 'the strengthening of confidence on the part of the people.' Hearings on S. 188, supra, at 12—13, 14.18
The broad mandate of the Councils was further stressed by the Judicial Conference in its 1961 report. The Conference considered it to be 'patent' from the legislative history that § 332
'imposed upon a judicial council the responsibility of seeing that the work and function of the courts in its circuit were expeditiously and effectively performed; and that this responsibility of observation, supervision, and correction went to the whole of a court's functioning, in both personal and institutional aspect.' H.R.Doc. No. 201, supra, at 6.
From a study of the applications of the statute by the various Councils, the Conference concluded that
'most of the councils appear, from the things with which they have dealt in these situations, to have recognized that their responsibilities and power extend, not merely to dealing with the questions of the handling and dispatching of a trial court's business in its technical sense, but also to dealing with the business of the judiciary in its broader or institutional sense, such as the preventing of any stigma, disrepute, or other element of loss of public confidence occurring as to the Federal courts or to the administration of justice by them, from any nature of action by an individual judge or a person attached to the courts.' Id., at 7.
The Conference specifically approved this construction in spelling out its conclusions. Id., at 8—9.
It is not necessary to define all of the limits on the powers of the Councils under § 332 in order to determine that the February 4 Order was a proper exercise of those powers. The December 13 Order noted that the Council was familiar with Judge Chandler's conduct of official business from four years of scrutiny, and it further recited that
'(d)uring that period Judge Chandler has been a party defendant in both civil and criminal litigation. One civil case is still pending. Two proceedings have been brought in the United States Court of Appeals for the Tenth Circuit to disqualify him from handling specific litigation. In one instance he was ordered to proceed no further and the other is still pending.'
I
believe that these circumstances, taken as a whole, established a prima facie basis for the Council's conclusion that some action was appropriate to alleviate what the Council members perceived as a threat to public confidence in the administration of justice
C
Passing over the now-revoked action taken on December 13, I consider the February 4 Order, restricting Judge Chandler for the time being to the cases then pending before him, to be a permissible interim step toward exploration and solution of the problem presented. The Council must be presumed to have known of the substantial number of cases then available to Judge Chandler, see n. 17, supra, and it could reasonably have concluded that a careful way to proceed would be to observe the manner in which Judge Chandler handled those cases before determining what more permanent steps should be taken with respect to the administration of the business of the District Court.
When the Council learned that Judge Chandler had disposed of the bulk of his cases, it invited him and the other district judges to propose a new distribution of business; the district judges together, or Judge Chandler alone exercising his right under § 137 to certify a disagreement to the Council, could make such a proposal at any time. Judge Chandler's claim that his failure to seek a new allocation is the result of unlawful 'duress' seems insubstantial in light of the initial validity of the February 4 Order. Even if the December 13 Order did impose a form of duress in January 1966, when the district judges settled upon the present division of cases, that order had been revoked, and there could hardly be said to have been duress, when the district judges declined the Council's July 1967 invitation to propose a new order. Serious questions would be presented if, after exhausting much of his pending business, Judge Chandler had sought additional business and the Council had declined without advancing substantial additional justification for the refusal. However, because of Judge Chandler's inaction, that situation is not presented on this record.
In view of my conclusion that the February 4 Order was a valid exercise of the Council's power under § 332, I need not consider the Council's alternative justification of the order under § 137, or petitioner's arguments concerning the inapplicability of that provision.
D
Finally, the procedures followed by the Council in promulgating its February 4 Order do not appear to have been offensive to Congress' conception of the manner in which the Councils would act, or inconsistent with the basic demands of due process of law. It seems to have been assumed throughout the consideration of the 1939 Act that, at least on relatively minor matters, the Councils would ordinarily proceed ex parte. See, e.g., hearings on H.R. 5999, supra, at 14 (statement of Chief Justice Groner). Beginning with the initial suggestion by Chief Justice Hughes, one of the major reasons for placing these responsibilities in a body of circuit judges was that they would have a great deal of firsthand knowledge about the district courts and about the work and conduct of the individual district judges. See H.R.Doc. No. 201, supra, at 3 (Chief Justice Hughes); Hearings on S. 188, supra, at 16 (statement of A. Vanderbilt). The other major source of the information on which the Councils would act was to be the data gathered by the Administrative Office.
However, the statute, which uses very general language to vest heavy responsibilities in the Councils, certainly allows the Councils the flexibility to vary their procedures, adopting in a particular instance those that are especially suited to the matter at hand or necessitated by the demands of fairness. See Fish, supra, at 222. There is much in our tradition of due process of law that runs counter to the taking of serious action on the basis of ex parte assertions or suspicions of misbehavior or incapacity. Apparently recognizing this, the Council after its temporary December 13 Order scheduled a hearing on the question of assignment of cases to Judge Chandler, and invited him to appear with counsel. Cf. Chandler v. Judicial Council, 382 U.S. 1003, 86 S.Ct. 610, 15 L.Ed.2d 494 (1966). As explained in the opinion of the Court, this hearing was canceled when the Council learned that no judge of the District Court wished to appear. In these circumstances the Council, it seems to me, was justified in issuing the February 4 Order without further proceedings.
Petitioner challenges this conclusion in several ways. First, he argues that the order directing the hearing, entered January 27, 1966, did not contain adequate notice of the subject matter of the hearing. That order expressly referred to the December 13 Order and to Judge Chandler's attack upon it in this Court, and declared that 'this matter' would be set for a hearing at which Judge Chandler might 'present such matters to the Council as he may deem fit.'19 In view of the fact that the December 13 Order had listed specific grounds on which the Council's action was based, and Judge Chandler made no request for further specification, I cannot consider his present contention well taken.
Second, petitioner states that his boycott of the hearing was based on his denial that the Council had any jurisdiction to hold it. He apparently concludes from this that the February 4 Order stands as though the Council had never scheduled a hearing at all. However, the Council had already entered the December 13 Order, which this Court had declined, at least temporarily, to disturb, and the Council's authority to proceed further was surely sufficiently evident that Judge Chandler was not entitled to remain indifferent to its order setting the matter for a hearing. Finally, petitioner asserts that the proposed hearing was deficient because he was merely invited, rather than ordered, to appear. He cites no authority for this proposition, and it appears quite untenable.
Throughout Judge Chandler's briefs, and in the dissents of my Brothers BLACK and DOUGLAS, there are strong assertions of the importance of an independent federal judiciary. I fully agree that this principle holds a profoundly important place in our scheme of government. However, I can discern no incursion on that principle in the legislation creating the Judicial Councils and empowering them to supervise the work of the district courts, in order to ensure the effective and expeditious handling of their business. The February 4 Order, entered pursuant to this statutory authority, is a supportable exercise of the Council's responsibility to oversee the administration of federal justice.
I
would grant Judge Chandler's motion for leave to file his petition for a writ of prohibition or mandamus, but for the reasons stated above I am of the opinion that no such writ should issue
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
The Congress, which created the lower federal courts, also created a Judicial Council for each circuit composed 'of the circuit judges for the circuit, in regular active service.' 28 U.S.C. § 332. The Council 'shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit.' Ibid. And Congress directed that '(t)he district judges shall promptly carry into effect all orders of the judicial council.' Ibid.
Petitioner, Stephen S. Chandler, is a federal district judge of the Tenth Circuit. On December 13, 1965, the Council, composed of five judges of the Court of Appeals, entered an order that 'until the further order of the Judicial Council, the Honorable Stephen S. Chandler shall take no action whatsoever in any case or proceeding now or hereafter pending in the United States District Court for the Western District of Oklahoma; that all cases and proceedings now assigned to or pending before him shall be reassigned to and among the other judges of said court; and that until the further order of the Judicial Council no cases or proceedings filed or instituted in the United States District Court for the Western District of Oklahoma shall be assigned to him for any action whatsoever.'
Petitioner filed a petition for prohibition and/or mandamus, and sought a stay of the order of the Council. The Court denied relief stating that the order was 'entirely interlocutory in character pending prompt further proceedings.' 382 U.S. 1003, 86 S.Ct. 610, 15 L.Ed.2d 494. Mr. Justice BLACK and I dissented. On February 4, 1966, the Council entered an order allowing petitioner to continue to sit on cases filed and assigned as of December 28, 1965; but it apportioned all subsequent cases among the remaining judges. The Council stated that its order of February 4, 1966, superseded its order of December 13, 1965. By a subsequent order the Council directed that new judicial business would not, until further order, be assigned to petitioner.
*
This case has been and continues to be the liveliest, most controversial contest involving a federal judge in modern United States history
The order of February 4, 1966, was made by the Council on the basis of an alleged 'disagreement' among the district judges on one side and Judge Chandler on the other over the reassignment of cases previously assigned to Judge Chandler on December 28, 1965. The Council authorized Judge Chandler to sit on cases assigned to him prior to December 28, 1965; and it assigned to the other district judges all cases filed after that date.
Judge Chandler on the eve of that order, January 24, 1966, agreed to acquiesce in the assignment of new cases to the other district judges. But he disagreed with any action concerning 'my pending cases.' As to them he said: 'There is no provision of law that grants a Judicial Council jurisdiction over cases pending before a judge in the various stages of the judicial process after valid assignment to him. I consider it my duty to continue to assert my exclusive jurisdiction over these cases, and shall do so.'
Since the order of February 4, 1966, said that all cases 'assigned to Judge Chandler as of December 28, 1965, shall remain assigned to him,' and since Judge Chandler did not object to the later cases being assigned to others, the then Solicitor General (now Mr. Justice Marshall) suggested in a memorandum that the case had become moot.
But the Solicitor General in a later memorandum filed here March 17, 1966, agreed 'that the case can no longer be deemed moot' because of Judge Chandler's continuing, expressed disagreement with the order of February 4, 1966.
As noted, the original action against Judge Chandler was taken under 28 U.S.C. § 332. The action taken February 4, 1966, was under 28 U.S.C. § 137, which provides in part:
'If the district judges in any district are unable to agree upon the adoption of rules or orders for that purpose the judicial council of the circuit shall make the necessary orders.'
But there was no disagreement among the district judges and no power of the Council to act under 28 U.S.C. § 137. That was precisely the strategy that Judge Chandler selected so that if the feud against him continued, it would have to be waged under 28 U.S.C. § 332. But the Council did not oblige. It recited in its order of February 4, 1966: 'In the circumstances a disagreement exists as to the division of business and the assignment of cases in the Western District of Oklahoma.'
If a disagreement existed on February 4, 1966, it existed after Judge Chandler's so-called 'acquiescence' which was expressed in the letter of January 24, 1966. The entire ground is thus swept out from under the mootness argument. In spite of Chandler's 'acquiescence' the Council considered the case a live controversy and Chandler has contested the February 4, 1966, order ever since is issued. His opposition and the continuing raging controversy led the former Solicitor General to concede that the case had not become moot. Nor does the Council, even at this late date, make any such suggestion. Nor does the present Solicitor General.
The Court holds that because Judge Chandler refused to express to the Council his disagreement with the February 4, 1966, order, he failed to exhaust a possible means for obtaining the relief he now seeks in this Court. Had he disagreed, however, he would have vested the Council with authority to act under § 137, and that was precisely what he wanted to avoid. As Mr. Justice HARLAN points out, the whole basis for Judge Chandler's attack is 'that it is illegal for the Council to deprive him of new cases, and equally so for the Council to condition his access to new cases upon his making a request to it that is tantamount to a form of a certification of disagreement under § 137.' The Court states that by not certifying disagreement to the Council Judge Chandler is apparently attempting 'to have it both ways.' It seems clear, however, that the Court's opinion now allows the Council 'to have it both ways'—for unless Judge Chandler certifies disagreement with the February 4, 1966, order, he is barred from relief in this Court; and if he seeks relief from the Council by disagreeing with its order, he concedes jurisdiction in the Council for its actions under § 137. Nothing in Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666, relied on by the Court, compels this result.
For the reasons fully stated by Mr. Justice HARLAN, in Part I of his opinion, the case is ripe for decision and we have no excuse for declining to decide it.
II
Our first substantial question is whether this is a 'case' or 'controversy' within our jurisdiction. As Chief Justice Marshall said in Marbury v. Madison, I Cranch 137, 175, 2 L.Ed. 60:
'To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable (the Court) to exercise appellate jurisdiction.
'It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.'
The question therefore is whether a judicial council is a lower court or inferior tribunal whose decisions are reviewable in the exercise of our appellate jurisdiction. A judicial council is only the court of appeals for a named circuit sitting en banc. These councils were created to place 'responsibility for judicial administration where it belongs—with the judiciary.' H.R.Rep.No.702, 76th Cong., 1st Sess., 4. Chief Justice Groner of the Court of Appeals for the District of Columbia, who helped draft the bill that was enacted, explained it as follows to the Senate:1
'To (give the administrative officer any supervision or control over the exercise of purely judicial functions) would be to destroy the very fundamentals of our theory of government. The administrative officer proposed in this bill is purely an administrative officer. * * * It is his duty to observe and see that whatever is wrong in the administration of justice, from whatever sources it may arise, is brought to the attention of the judicial council that it may be corrected, by the courts themselves. That is, as I respectfully suggest, as it ought to be.' (Italics added.)
The Council by 28 U.S.C. § 137 is under a duty to 'make the necessary orders' in case the district judges are 'unable to agree upon the adoption of rules or orders for that purpose.' The Council directs the district judges to carry out certain measures. That is indeed the role of a judicial entity. Only members of the Court of Appeals are members of the Council. Those sitting on the Council do not even change their hats. Expediting the flow of cases to the dockets of district judges is wholly in line with the judicial function. We stated in Textile Mills Corp. v. Commissioner, 314 U.S. 326, 332, 62 S.Ct. 272, 276, 86 L.Ed. 249:
'There are numerous functions of the court, a 'court of record, with appellate jurisdiction', other than hearing and deciding appeals. Under the Judicial Code these embrace prescribing the form of writs and other process and the form and style of its seal (§ 122, 29 U.S.C.A. § 219); the making of rules and regulations (§ 122); the appointment of a clerk (§ 124, 28 U.S.C.A. § 221) and the approval of the appointment and removal of deputy clerks (§ 125, 28 U.S.C.A. § 222); and the fixing of the 'times' when court shall be held. § 126.'
Some functions performed by a Judicial Council may be 'administrative.' But where, as here, it moves to disqualify a judge from sitting, removing him pro tanto from office, it moves against the individual with all of the sting and much of the stigma that impeachment carries. That action gives rise to a 'case' or 'controversy' triggered by the Council. The Council is therefore under the circumstances an inferior judicial tribunal over which we have appellate jurisdiction where a 'case' or 'controversy' arises. On that assumption, it is not seriously argued that mandamus is an inappropriate remedy under the All Writs Act.2
The order of December 13, 1965, may have been qualified but it has not been erased. Petitioner still is disqualified to sit on incoming cases. He still carries the stigma of the brand put on him by the Council. We should remember that the cessation of illegal conduct does not make a case moot:
'A controversy may remain to be settled in such circumstances * * * e.g., a dispute over the legality of the challenged practices. * * * The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion.' United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303.
III
An independent judiciary is one of this Nation's outstanding characteristics. Once a federal judge is confirmed by the Senate and takes his oath, he is independent of every other judge. He commonly works with other federal judges who are likewise sovereign. But neither one alone nor any number banded together can act as censor and place sanctions on him. Under the Constitution the only leverage that can be asserted against him is impeachment, where pursuant to a resolution passed by the House, he is tried by the Senate, sitting as a jury. Art. I, § 2 and § 3. Our tradition even bars political impeachments as evidenced by the highly partisan, but unsuccessful, effort to oust Justice Samuel Chase of this Court in 1805.3 The Impeachment Provision of the Constitution4 indeed provides for the removal of 'Officers of the United States,' which includes judges, on 'Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.' Art. II, § 4.
What the Judicial Council did when it ordered petitioner to 'take no action whatsoever in any case or proceeding now or hereafter pending' in his court was to do what only the Court of Impeachment can do. If the business of the federal courts needs administrative oversight, the flow of cases can be regulated. Some judges work more slowly than others; some cases may take months while others take hours or days. Matters of this kind may be regulated by the assignment procedure. But there is no power under our Constitution for one group of federal judges to censor or discipline any federal judge and no power to declare him inefficient and strip him of his power to act as a judge.
The mood of some federal judges is opposed to this view and they are active in attempting to make all federal judges walk in some uniform step. What has happened to petitioner is not a rare instance; it has happened to other federal judges who have had perhaps a more libertarian approach to the Bill of Rights than their brethren. The result is that the nonconformist has suffered greatly at the hands of his fellow judges.
The problem is not resolved by saying that only judicial administrative matters are involved. The power to keep a particular judge from sitting on a racial case, a church-and-state case, a free-press case, a search-and-seizure case, a railroad case, an antitrust case, or a union case may have profound consequences. Judges are not fungible; they cover the constitutional spectrum; and a particular judge's emphasis may make a world of difference when it comes to rulings on evidence, the temper of the courtroom, the tolerance for a proffered defense, and the like. Lawyers recognize this when they talk about 'shopping' for a judge; Senators recognize this when they are asked to give their 'advice and consent' to judicial appointments; laymen recognize this when they appraise the quality and image of the judiciary in their own community.
These are subtle, imponderable factors which other judges should not be allowed to manipulate to further their own concept of the public good. That is the crucial issue at the heart of the present controversy.
All power is a heady thing as evidenced by the increasing efforts of groups of federal judges to act as referees over other federal judges.
On June 10, 1969, the Judicial Conference adopted resolutions for the governance of many activities of circuit judges and district judges. Resolution I provided:5
'A judge in regular active service shall not accept compensation of any kind, whether in the form of loans, gifts, gratuities, honoraria or otherwise, for services hereafter performed or to be performed by him except that provided by law for the performance of his judicial duties.
'Provided however, the judicial council of the circuit (or in the case of courts not part of a circuit, the judges of the court in active service) may upon application of a judge approve the acceptance of compensation for the performance of services other than his judicial duties upon a determination that the services are in the public interest or are justified by exceptional circumstances and that the services will not interfere with his judicial duties. Both the services to be performed and the compensation to be paid shall be made a matter of public record and reported to the Judicial Conference of the United States.' (Italics added.) In the Ninth Circuit, of which I am Circuit Justice, this resolution was assumed to bar a federal judge from even being an executor of his own mother's estate, unless of course he got a permit from the other judges. Resolution I apparently required permits for federal judges to teach in a law school—a practice which has paid enormous professional dividends and implicates nothing but the interest and energy of the judge. Justice Joseph Story (who sat here from 1811 to 1845) would, I imagine, have been appalled if he had been told that he could not write any of his many books6 without getting permission from a group of other federal judges. And I imagine that Justice Carodozo, Judge Jerome Frank, and Judge Learned Hand would have felt the same.7
To obtain a permit the other judges must determine if the services are 'in the public interest.' Pray, how could they determine that unless they saw the lecture, or the lecture notes, or the manuscript? And whose 'public interest' woudl control? Judges who have not been educated to the needs of ecology and of conservation? Judges who still have a 'plantation' state of mind and relegate many minorities to second-class citizenship? Judges who have a narrow view of freedom of expression or a broad view of due process? Public issues deal with a vast contrariety of views; and judges, like other people, are to be found in all parts of the spectrum. How under the Constitution can one judge's lips be sealed because of the predestined view of other judges? An easy reply is that Resolution I covered only services for 'compensation.' But books entail royalties; and tax-wise it is not always easy to disassociate an author from royalties. Even though they go ultimately to charity, they pass through his income tax returns.
It is time that an end be put to these efforts of federal judges to ride herd on other federal judges. This is a form of 'hazing' having no place under the Constitution. Federal judges are entitled, like other people, to the full freedom of the First Amendment. If they break a law, they can be prosecuted. If they become corrupt or sit in cases in which they have a personal or family stake, they can be impeached by Congress. But I search the Constitution in vain for any power of surveillance that other federal judges have over those aberrations.8 Some of the idiosyncrasies may be displeasing to those who walk in more measured, conservative steps. But those idiosyncrasies can be of no possible constitutional concern to other federal judges.
It is time we put an end to the monstrous practices that seem about to overtake us, by vacating the orders of the Judicial Council that brand Judge Chandler as unfit to sit in oncoming cases. Only Congress can take action, unless the Constitution is amended to allow judges to censor, police, or impeach their fellow judges.
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
Fully concurring in the dissent of my Brother DOUGLAS in this case, I wish to add a few words to emphasize once again1 the gravity of the unconstitutional wrong the Court is inflicting upon United States District Judge Stephen Chandler, and, more important, on our system of government and the Constitution itself. The preparation and adoption of that great document was a turning point in the history of this country and of the world. Our Constitution gave new hopes and dreams for freedom and equal justice to citizens of this country and signaled to the suffering and oppressed people everywhere that government could be humane. One of the many factors which gave birth to these new dreams and hopes was our constitutional plan for a more independent judicial system than had ever before existed. Judges in our system were to hold their offices during 'good Behaviour,' their compensation was not to be 'diminished during their Continuance in Office,'2 and they were to be removed only after impeachment and trial by the United States Congress. While judges, like other people, can be tried, convicted, and punished for crimes, no word, phrase, clause, sentence, or even the Constitution taken as a whole, gives any indication that any judge was ever to be partly disqualified or wholly removed from office except by the admittedly difficult method of impeachment by the House of Representatives and conviction by two-thirds of the Senate. Such was the written guarantee in our Constitution of the independence of the judiciary, and such has always been the proud boast of our people.
I
am regrettably compelled in this case to say that the Court today, in my judgment, breaks faith with this grand constitutional principle. Judge Chandler, duly appointed, duly confirmed, and never impeached by the Congress, has been barred from doing his work by other judges. The real facts of this case cannot be obscured, nor the effect of the Judicial Council's decisions defended, by any technical, legalistic effort to show that one or the other of the Council's orders issued over the years is 'valid.' This case must be viewed for what it is—a long history of harassment of Judge Chandler by other judges who somehow feel he is 'unfit' to hold office. Their efforts have been going on for at least five years and still Judge Chandler finds no relief. What is involved here is simply a blatant effort on the part of the Council through concerted action to make Judge Chandler a 'second-class judge,' depriving him of the full power of his office and the right to share equally with all other federal judges in the privileges and responsibilities of the Federal Judiciary. I am unable to find in our Constitution or in any statute any authority whatever for judges to arrogate to themselves and to exercise such powers. Judge Chandler, like every other federal judge including the Justices of this Court, is subject to removal from office only by the constitutionally prescribed mode of impeachment
The wise authors of our Constitution provided for judicial independence because they were familiar with history; they knew that judges of the past—good, patriotic judges—had occasionally lost not only their offices but had also sometimes lost their freedom and their heads because of the actions and decrees of other judges. They were determined that no such things should happen here. But it appears that the language they used and the protections they thought they had created are not sufficient to protect our judges from the contrived intricacies used by the judges of the Tenth Circuit and this Court to uphold what has happened to Judge Chandler in this case.
I
fear that unless the actions taken by the Judicial Council in this case are in some way repudiated, the hope for an independent judiciary will prove to have been no more than an evanescent dream
1
28 U.S.C. § 137. 'Division of business among district judges.
'The business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court.
'The chief judge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe.
'If the district judges in any district are unable to agree upon the adoption of rules or orders for that purpose the judicial council of the circuit shall make the necessary orders.'
28 U.S.C. § 332. 'Judicial Councils.
'The chief judge of each circuit shall call, at least twice in each year and at such places as he may designate, a council of the circuit judges for the circuit, in regular active service, at which he shall preside. Each circuit judge, unless excused by the chief judge, shall attend all sessions of the council.
'The council shall be known as the Judicial Council of the circuit.
'The chief judge shall submit to the council the quarterly reports of the Director of the Administrative Office of the United States Courts. The council shall take such action thereon as may be necessary.
'Each judicial council shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit. The district judges shall promptly carry into effect all orders of the judicial council.'
2
28 U.S.C. § 1651. '(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.'
3
Chief Judge Alfred P. Murrah took no part in the proceedings.
4
The civil suit was an action brought by one O'Bryan charging petitioner with malicious prosecution; the complaint was dismissed by the District Court, aff'd en banc, O'Bryan v. Chandler, 352 F.2d 987 (C.A.10th Cir. 1965), cert. denied, 384 U.S. 926, 86 S.Ct. 1444, 16 L.Ed.2d 530 (1966). The criminal indictment charging conspiracy to cheat and defraud the State of Oklahoma was quashed.
In both cases seeking disqualification of petitioner, including one decided after the signing of the Order here challenged, writs of mandamus issued against petitioner. See Occidental Petroleum Corp. v. Chandler, 303 F.2d 55 (C.A.10th Cir. 1962) (en banc), cert. denied, 372 U.S. 915, 83 S.Ct. 718, 9 L.Ed.2d 722 (1963); and Texaco, Inc. v. Chandler, 354 F.2d 655 (C.A.10th Cir. 1965) (en banc), cert. denied, 383 U.S. 936, 86 S.Ct. 1066, 15 L.Ed.2d 853 (1966).
5
We note that nothing in the statute or its legislative history indicates that Congress intended or anyone considered the Circuit Judicial Councils to be courts of appeals en banc. Moreover, it should be noted that proposals to include a district judge as a member of each Circuit Judicial Council have been made; obviously, a Council so constituted could hardly be equated to an en banc court.
6
Congress, by its use of the mandatory 'shall' in § 332, appears to have intended that district judges carry out administrative directives of the judicial councils. Congress did not spell out procedures for giving coercive effect to council orders, and the legislative history sheds no light on whether Congress intended this statute to be implemented by regulations. Standing alone, § 332 is not a model of clarity in terms of the scope of the judicial councils' powers or the procedures to give effect to the final sentence of § 332. Legislative clarification of enforcement provisions of this statute and definition of review of Council orders are called for.
7
We find nothing in the legislative history to suggest that the Judicial Council was intended to be anything other than an administrative body functioning in a very limited area in a narrow sense as a 'board of directors' for the circuit. Whether that characterization is valid or not, we find no indication that Congress intended to or did vest traditional judicial powers in the Councils. We see no constitutional obstacle preventing Congress from vesting in the Circuit Judicial Councils, as administrative bodies, authority to make 'all necessary orders for the effective and expeditious administration of the business of the courts within (each) circuit.'
8
We express no opinion as to whether he could, for instance, have brought an action in the nature of mandamus to compel 'an officer or employee of the United States or any agency thereof to perform a duty owed * * *' to him, 28 U.S.C. § 1361, on the theory that this was agency action.
9
Petitioner's Brief 7.
10
Although it is not necessary to reach or decide the issue, the action of the Judicial Council here complained of has few of the characteristics of traditional judicial action and much of what we think of as administrative action. Nor are we called upon to decide whether administrative action is reviewable when it deals only with the internal operation of a court. See nn. 6, 7, supra.
1
The appeal in Rescue Army involved review of a state prohibition proceeding in which was challenged, before trial, the complex state statutory scheme under which an appellant had been criminally charged. The Court observed that the meanings of the various statutory provisions, and their relationships to one another, were left undefined by the ambiguous opinion of the State Supreme Court; and since the attack was on the face of the statutes, the Court found it unclear which statutes were being challenged and even what the charges were against the appellant. In contrast, the present case involves two brief federal enactments that are challenged, not on their face, but as applied by specific orders of the Council relating to Judge Chandler.
The Court states that because the scheduled hearing below was canceled, 'we have no record, no petition for relief addressed to any agency, court or tribunal of any kind other than this Court, and a very knotty jurisdictional problem as well.' We do, however, have a record consisting primarily of the several orders of the Council and the minutes of the meetings at which it dealt with this matter. The Council's February 4 Order, unlike that of December 13, which was 'entirely interlocutory,' effects a change of indefinite duration in the allocation of District Court business. It was incumbent on the Council to take such action only on a record that would support it; if the record fails to support the Council's action, that does not obfuscate Judge Chandler's claims but strengthens them. His claims for the most part do not depend on his establishing from the record the existence of particular factual circumstances, cf. DeBacker v. Brainard, 396 U.S. 28, 90 S.Ct. 163, 24 L.Ed.2d 148 (1969), but on the alleged lack of possible justification in the record for the Council's action. Nothing in Rescue Army seems to justify a refusal to adjudicate the issue thus presented. In find that the February 4 Order is justified on the record in this case, see Part III, infra.
The significance of Judge Chandler's failure to seek review in a tribunal other than this Court depends, of course, on the resolution of the 'knotty jurisdictional problem' presented by his petition to this Court. I fail to see how it justifies not reaching that question at all.
2
'In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.' U.S.Const., Art. III, § 2, cl. 2.
3
53 Stat. 1223, as amended, 28 U.S.C. §§ 601, 604.
4
53 Stat. 1224, as amended, 28 U.S.C. §§ 332.
5
53 Stat. 1225, as amended, 28 U.S.C. § 333.
6
This provision stated in full:
'To the end that the work of the district courts shall be effectively and expeditiously transacted, it shall be the duty of the senior circuit judge of each circuit to call at such time and place as he shall designate, but at least twice in each year, a council composed of the circuit judges for such circuit, who are hereby designated a council for that purpose, at which council the senior circuit judge shall preside. The senior judge shall submit to the council the quarterly reports of the Director required to be filed by the provisions of section 304, clause (2) (now 28 U.S.C. § 604(a)(2)), and such action shall be taken thereon by the council as may be necessary. It shall be the duty of the district judges promptly to carry out the directions of the council as to the administration of the business of their respective courts. Nothing contained in this section shall affect the provisions of existing law relating to the assignment of district judges to serve outside of the districts for which they, respectively, were appointed.' 53 Stat. 1224.
7
The testimony of Judge Parker of the Fourth Circuit was to the same effect. He explained:
'The importance of the bill, to my mind, is in unifying the administration of justice in the hands of the chief judicial officers of the courts, and clothing them with responsibility for the exercise of that power.
'Now, with your knowledge of human nature, you can understand it is one thing for me, as the senior circuit judge, to say to Judge Jones, 'The work is getting behind in your district. You have a number of cases that ought to be decided. I think you should decide them.' That is a very different thing from a council of all of the judges of the circuit saying, 'Judge Jones, you are behind with your work and we think that the cases that you have under advisement ought to be decided, and we direct that they be decided, and we will send Judge Smith into your district and he will assist you in holding court in your district until this arrearage is cleared up.'
'In other words, you would have a man speaking with authority of law and not merely exercising his personal and persuasive influence.
'I think that that provision for a council in each circuit is one of the best provisions in the bill, * * * and will give the circuit judges the power to utilize the judicial man power on each circuit to the best advantage.' Id., at 20—21.
8
I find little guidance for our interpretive problem in the fact that the terms 'administration' and 'administrative' were sometimes used by witnesses or Congressmen to characterize the duties of the Councils. Those terms are not talismanic; they may, in various contexts, bear a range of related meanings. Certainly the phrase 'judicial administration' is often used to characterize judicial tasks
performed by the courts as incidents to their primary function of rendering definitive adjudications of disputes. Since the legislative history as a whole indicates that Congress regarded the direction of the trial courts' handling of cases as a judicial function, I conclude that it used the term 'administrative' in the sense in which the term is applied, for example, to many trial-court rulings that do not dispose of issues in a case but merely determine its course through the judicial process.
Nor do I find an obstacle to my construction of § 332 in Congress' failure to make express provision for the imposition of sanctions on a district judge who might contravene an order of the Judicial Council. When the question of sanctions was broached at the hearings, Chief Justice Groner stated:
'I doubt but what a judge could properly say, 'I am not going to decide this case any sooner than I choose to decide it. It is my case, and I am conducting my court, and you have no authority, except by impeachment." Hearings on H.R. 5999, supra, at 14. At this, Representative Celler reminded the witness of the provision in the bill making it the 'duty' of district judges to carry out the Council's directions. The witness replied:
'I cannot conceive of a district judge anywhere, and I do not believe there is any, but, when he is admonished by this council of judges that he must do in accordance with the report made to him a particular thing to correct what is regarded as an abuse, that he will fail to do it. If he does fail to do it, then I think there would be imposed on the council the duty of bringing the matter in some way to the attention of the only power in existence, in a matter of that kind, which could apply the correct remedy; that is, the Congress of the United States.' Ibid. Similarly, Judge Parker, in response to a question whether the bill would 'put any restraint on the council at all,' stated: 'I do not think this bill does. Of course, I assume this is true: That the council will be restrained by the inherent limitations of the situation. They would know that, if they commanded a judge to do something, unnecessarily or unwisely, he would refuse to do it, and that would probably be the end of the matter.'
Representative Sumners queried: 'Then you are limited by what you can do to a judge in the way of punishment?' 'Absolutely,'
replied Judge Parker. Id., at 22. See also Hearings on S. 188, supra, at 18—19 (statement of A. Vanderbilt).
There is no need to determine in this case the correctness of these witnesses' apparent assumption that no form of discipline short of impeachment would be permissible for disobedience to an order of the Council, or of their possible assumption that such disobedience would be an impeachable offense. It seems clear that the witnesses' statements do not detract from the conclusion drawn from the rest of the legislative history, and from the language of the statute itself, that the determinations of the Judicial Council were intended to create legal duties on the part of district judges to whom they were addressed. As Judge Parker said, the Council would be 'speaking with authority of law and not merely exercising (a) personal and persuasive influence.' Hearings on H.R. 5999, supra, at 21. Even under the present statutory scheme, certain sanctions might be available in particular circumstances, such as the invalidation on appeal of orders entered by a judge in a case that had been ordered transferred from his docket. At any rate, this is only an aspect of the general problem of determining the permissible and appropriate sanctions for any kind of unlawful judicial conduct. The fact that the enforcement mechanisms are problematic does not destroy the legal nature of the Council's orders. See H.R.Doc. No. 201, supra, at 8; cf. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937); Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730 (1933); n. 9, infra.
9
For similar reasons I have little difficulty in characterizing as a 'case or controversy' within the Article III judicial power a challenge to an order of the Council that regulates a district judge in the exercise of his official duties. Where, as here, the purpose and effect of the order are to restrict the judge's performance of judicial tasks, and he alleges illegal interference with the exercise of his office, his petition presents a cognizable case or controversy just as does a petition for review of the disbarment of an attorney. See Note, The Exclusiveness of the Impeachment Power under the Constitution, 51 Harv.L.Rev. 330, 334 (1937); cf. Ex parte Bradley, 7 Wall. 364, 19 L.Ed. 214 (1869); Ex parte Robinson, 19 Wall. 505, 22 L.Ed. 205 (1874); Ex parte Wall. 107 U.S. 265, 2 S. Ct. 569, 27 L.Ed. 552 (1883) (mandamus to review disbarment orders of lower federal courts). If a litigant in a case before the district court considered himself aggrieved by a Council order involving his case, his complaint also would seem to raise a justiciable case or controversy, although it is not necessary to decide now in what manner he might obtain review of the order.
10
Compare 28 U.S.C. § 332 with 28 U.S.C. § 43(a) and Fed.Rule App.Proc. 35(a).
11
It should be noted that virtually all of the additional powers that have been conferred on the Councils by provisions of the Judicial Code other than § 332, see infra, define the Council's tasks in terms commonly used as standards for judicial determination. See 28 U.S.C. § 134(c) ('(i)f the public interest and the nature of the business of a district court require'), § 137 ('necessary orders'), § 142 ('court quarters and accommodations * * * approved as necessary'), § 372(b) ('judge * * * unable to discharge efficiently all the duties of his office by reason of permanent mental or physical disability'); 11 U.S.C. § 62(b) ('(r)emoval * * * for incompetency, misconduct, or neglect of duty').
12
Respondent Judicial Council agrees, for 'substantially the reasons advanced by the Solicitor General,' that § 1651 provides statutory authority for exercise of jurisdiction in this proceeding, if the proceeding is within the permissible appellate jurisdiction of this Court under Article III. Like the amicus United States, however, respondent notes that the question is not free from doubt. It is incumbent upon the Court to consider the question even in the absence of disagreement between the parties.
13
See also Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Bankers Like & Cas. Co. v. Holland, 346 U.S. 379, 382—383, 74 S.Ct. 145, 147—148, 98 L.Ed. 106 (1953).
14
The Court in Los Angeles Brush Mfg. Corp. relied upon its mandamus power under § 234 of the Judicial Code of 1911, a provision that may no longer be in effect, see n. 15, infra. However, since the case was one that would be reviewable on certiorari at a later stage, it seems that § 262 (now carried forward in § 1651) was equally applicable. The per curiam opinion in McCullough did not disclose the statutory basis for the ruling there.
15
In many of the early mandamus cases in this Court, such as Ex parte Republic of Peru, supra, the Court based its action on both § 234 and § 262 of the Judicial Code of 1911, the predecessors of
§ 1651 (a). The Court usually did not specify whether it relied upon § 234 or § 262, apparently considering that they furnished overlapping authority. Section 234, which derived from § 13 of the Judiciary Act of 1789, conferred upon this Court, and this Court only, the 'power to issue * * * writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States * * *.' Section 262 provided that '(t)he Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.' The former provision was construed as conferring upon this Court 'a general supervisory power over the inferior courts, so far as this power was exercisable through a writ of mandamus in its historic function,' enabling the Court 'to exercise the essentially appellate function of reviewing and revising a judicial proceeding in a lower court by appropriate use of the common-law writ of mandamus, whether or not it had been given by Congress some other statutory appellate jurisdiction, or potential appellate jurisdiction, by way of an appeal or writ of error or otherwise.' In re Josephson, 218 F.2d 174, 177—178 (C.A.1st Cir. 1954). See, e.g., Virginia v. Rives, 100 U.S. 313, 323—324, 25 L.Ed. 667 (1880); Ex parte Bradley, 7 Wall. 364, 375—377, 19 L.Ed. 214 (1869); Ex parte Crane, 5 Pet. 190, 8 L.Ed. 92 (1831). In contrast, the power granted by § 262 was not an independent appellate power but merely an auxiliary power exercisable when appellate jurisdiction was granted by some other provision of law.
These two provisions were consolidated into § 1651(a) as part of the 1948 revision of the Judicial Code. The brief Reviser' Note explained that the '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.' The 'special provisions' of § 234 relating to the Supreme Court 'were omitted as unnecessary in view of the revised section.' H.R.Rep. No. 308, 80th Cong., 1st Sess., A144—
16
See U.S.Const., Art. I, §§ 2, 3; Art. II, § 4.
17
Although neither the December 13 Order nor the February 4 Order recited figures concerning the status of the docket in the District Court, the former order did state that it was predicated on a series of meetings over a four-year period in which the Council 'has discussed and considered the business of the United States District Court for the Western District of Oklahoma and has done so with particular regard to the effect thereon of the attitude and conduct of Judge Chandler who, as the Chief Judge of that District, is primarily responsible for the administration of such business.'
Approximately a year after the issuance of the February 4 Order, in the course of determining 'whether the existing order was still suitable or whether the conditions had changed to an extent sufficient to dictate a change in the order,' the Council examined statistics furnished by the Administrative Office of the United States Courts, showing that on February 1, 1966, 138 cases had been pending before Judge Chandler, as contrasted to 92, 91, and 99 cases respectively pending before the other active district judges. Further statistics showed that 50 cases were still pending before Judge Chandler on January 31, 1967. On the basis of these figures the Council determined that no action was then appropriate regarding the assignment of cases in the District Court.
On July 12, 1967, the Council again reviewed the condition of the District Court docket and, on discovering that only 12 cases were pending before Judge Chandler, determined that a revision should be made of the disposition of business mandated by the February 4 Order. It requested notification from the district judges of a new order of business suitable to them. However, as appears from the Court's opinion, the district judges advised the Council 'that the current order for the division of business in this district is agreeable under the circumstances.' On receiving this message the Council determined to leave the February 4 Order in effect. Subsequent statistics, submitted to the Council by the Administrative Office, showed that Judge Chandler had six cases pending on June 30, 1969.
18
See also Hearings on H.R. 5999, supra, at 16 (statement of Chief Justice Groner); id., at 22 (statement of Judge Parker).
19
The order stated, in pertinent part:
'The Council gave consideration to its December 13, 1965, order in this matter, to the proceedings in the Supreme Court entitled 'Honorable Stephen S. Chandler, etc. v. Judicial Council * * *,' to the motion for stay filed therein by the petitioner, to the response thereto by the Solicitor General of the United States, and to the order of the Supreme Court entered on January 21, 1966. The Council noted the reference by the Supreme Court to the statement in the response of the Solicitor General that the Council contemplated prompt further proceedings and the order of the Supreme Court that the application for stay be denied 'pending this contemplated prompt action of the Judicial Council.'
'It is ordered that this matter is set for hearing at 9:30 A.M., Thursday, February 10, 1966, in Room 5009 of the United States Courthouse at Oklahoma City, Oklahoma, when and where the Honorable Stephen S. Chandler may appear in person and with counsel and present such matters to the Council as he may deem fit.'
1
Hearings on S. 188 before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 1st Sess., 12—13 (Apr. 4 5, 1939).
2
'The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.' 28 U.S.C. § 1651(a).
3
See Trial of Samuel Chase, vols. 1 and 2 (1805, taken in shorthand by Samuel H. Smith and Thomas Lloyd).
4
State procedures vary. Thus New York by its constitution provides for the removal of judges by the judiciary court, made up of judges. See Friedman v. State, 24 N.Y.2d 528, 301 N.Y.S.2d 484, 249 N.E.2d 369.
5
Resolution I was suspended on November 1, 1969, by the Judicial Conference pending further study, the only residue presently in force being a requirement that a judge who in any quarterly period 'receives compensation for non-judicial services in a total amount exceeding $100' shall report the same to a 'receiving officer' named by the Chief Justice and acting for the federal judges. In March 1970, the Judicial Conference approved procedures and forms for judges to report outside income pursuant to the Conference Resolution of November 1, 1969. The approved form requires listing of outside income received by the judge, gifts received by the judge or his immediate family in excess of $100, any knowing participation in cases in which the judge or a member of his immediate family had a financial interest in any of the named parties, and all 'fiduciary positions' held by the judge, 'such as trustee or executor.'
6
Commentaries on Equity Jurisprudence (2 vols., 1836); Commentaries on Equity Pleadings (1838); Commentaries on the Conflict of Laws (1834); Commentaries on the Constitution of the United States (3 vols., 1833); Commentaries on the Law of Agency (1839); Commentaries on the Law of Bailments (1832); Commentaries on the Law of Bills of Exchange (1843); Commentaries on the Law of Partnership (1841); Commentaries on the Law of Promissory Notes (1845); A Familiar Exposition of the Constitution of the United States (1840); A Selection of Pleadings in Civil Actions (1805).
7
Justice Cardozo: The Growth of the Law (1931); Law and Literature and Other Essays and Addresses (1931);
The Nature of the Judicial Process (1921).
Judge Learned Hand: The Bill of Rights (1958).
Judge Jerome Frank: Courts on Trial—Myth and Reality in American Justice (1949); Not Guilty (1957); If Men Were Angels (1942); Fate and Freedom (1945).
8
Cf. S. 1506, 91st Cong., 1st Sess., which would amend 28 U.S.C. c. 17, first by creating a Commission on Judicial Disabilities and Tenure, composed of five federal judges in active service; second giving it power to 'undertake an investigation of the official conduct of any judge of the United States appointed to hold office under article III of the Constitution to determine whether the conduct of such judge is and has been consistent with the good behavior required by that article;' and third giving it authority to recommend to the Judicial Conference that he be removed from office under the following standard: 'Willful misconduct in office or willful and persistent failure to perform his official duties by a judge of the United States shall constitute conduct inconsistent with the good behavior required by article III of the Constitution and shall be cause for the removal of that judge.'
1
See Chandler v. Judicial Council, 382 U.S. 1003, 1004, 86 S.Ct. 610, 15 L.Ed.2d 494 (1966) (dissenting opinion).
2
Art. III, § 1.
| 89
|
398 U.S. 281
90 S.Ct. 1739
26 L.Ed.2d 234
ATLANTIC COAST LINE RAILROAD COMPANY, Petitioner,v.BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al.
No. 477.
Argued March 2 and 3, 1970.
Decided June 8, 1970.
Frank X. Friedmann, Jr., Jacksonville, Fla., and Dennis G. Lyons, Washington, D.C., for petitioner.
Allan Milledge, Miami, Fla., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
Congress in 1793, shortly after the American Colonies became one united Nation, provided that in federal courts 'a writ of injunction (shall not) be granted to stay proceedings in any court of a state.' Act of March 2, 1793, § 5, 1 Stat. 335. Although certain exceptions to this general prohibition have been added, that statute, directing that state courts shall remain free from interference by federal courts, has remained in effect until this time. Today that amended statute provides:
2
'A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.' 28 U.S.C. § 2283.
3
Despite the existence of this longstanding prohibition, in this case a federal court did enjoin the petitioner, Atlantic Coast Line Railroad Co. (ACL),1 from invoking an injunction issued by a Florida state court which prohibited certain picketing by respondent Brotherhood of Locomotive Engineers (BLE). The case arose in the following way.
4
In 1967 BLE began picketing the Moncrief Yard, a switching yard located near Jacksonville, Florida, and wholly owned and operated by ACL.2 As soon as this picketing began ACL went into federal court seeking an injunction. When the federal judge denied the request, ACL immediately went into state court and there succeeded in obtaining an injunction. No further legal action was taken in this dispute until two years later in 1969, after this Court's decision in Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969). In that case the Court considered the validity of a state injunction against picketing by the BLE and other unions at the Jacksonville Terminal, located immediately next to Moncrief Yard. The Court reviewed the factual situation surrounding the Jacksonville Terminal picketing and concluded that the unions had a federally protected right to picket under the Railway Labor Act, 44 Stat. 577, as amended, 45 U.S.C. § 151 et seq., and that that right could not be interfered with by state court injunctions. Immediately after a petition for rehearing was denied in that case, 394 U.S. 1024, 89 S.Ct. 1622, 23 L.Ed.2d 51 (1969), the respondent BLE filed a motion in state court to dissolve the Moncrief Yard injunction, arguing that under the Jacksonville Terminal decision the injunction was improper. The state judge refused to dissolve the injunction, holding that this Court's Jacksonville Terminal decision was not controlling. The union did not elect to appeal that decision directly, but instead went back into the federal court and requested an injunction against the enforcement of the state court injunction. The District Judge granted the injunction and upon application a stay of that injunction, pending the filing and disposition of a petition for certiorari, was granted. 396 U.S. 1201, 90 S.Ct. 9, 24 L.Ed.2d 23 (1969). The Court of Appeals summarily affirmed on the parties' stipulation, and we granted a petition for certiorari to consider the validity of the federal court's injunction against the state court. 396 U.S. 901, 90 S.Ct. 220, 24 L.Ed.2d 177 (1969).
5
In this Court the union contends that the federal injunction was proper either 'to protect or effectuate' the District Court's denial of an injunction in 1967, or as 'necessary in aid of' the District Court's jurisdiction. Although the questions are by no means simple and clear, and the decision is difficult, we conclude that the injunction against the state court was not justified under either of these two exceptions to the anti-injunction statute. We therefore hold that the federal injunction in this case was improper.
6
* Before analyzing the specific legal arguments advanced in this case, we think it would be helpful to discuss the background and policy that led Congress to pass the anti-injunction statute in 1793. While all the reasons that led Congress to adopt this restriction on federal courts are not wholly clear,3 it is certainly likely that one reason stemmed from the essentially federal nature of our national government. When this Nation was established by the Constitution, each State surrendered only a part of its sovereign power to the national government. But those powers that were not surrendered were retained by the States and unless a State was restrained by 'the supreme Law of the Land' as expressed in the Constitution, laws, or treaties of the United States, it was free to exercise those retained powers as it saw fit. One of the reserved powers was the maintenance of state judicial systems for the decision of legal controversies. Many of the Framers of the Constitution felt that separate federal courts were unnecessary and that the state courts could be entrusted to protect both state and federal rights. Others felt that a complete system of federal courts to take care of federal legal problems should be provided for in the Constitution itself. This dispute resulted in compromise. One 'supreme Court' was created by the Constitution, and Congress was given the power to create other federal courts. In the first Congress this power was exercised and a system of federal trial and appellate courts with limited jurisdiction was created by the Judiciary Act of 1789, 1 Stat. 73.
7
While the lower federal courts were given certain powers in the 1789 Act, they were not given any power to review directly cases from state courts, and they have not been given such powers since that time. Only the Supreme Court was authorized to review on direct appeal the decisions of state courts. Thus from the beginning we have had in this country two essentially separate legal systems. Each system proceeds independently of the other with ultimate review in this Court of the federal questions raised in either system. Understandably this dual court system was bound to lead to conflicts and frictions. Litigants who foresaw the possibility of more favorable treatment in one or the other system would predictably hasten to invoke the powers of whichever court it was believed would present the best chance of success. Obviously this dual system could not function if state and federal courts were free to fight each other for control of a particular case. Thus, in order to make the dual system work and 'to prevent needless friction between state and federal courts,' Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4, 9, 60 S.Ct. 215, 218, 84 L.Ed. 537 (1940), it was necessary to work out lines of demarcation between the two systems. Some of these limits were spelled out in the 1789 Act. Others have been added by later statutes as well as judicial decisions. The 1793 anti-injunction Act was at least in part a response to these pressures.
8
On its face the present Act is an absolute prohibition a against enjoining state court proceedings, unless the injunction falls within one of three specifically defined exceptions. The respondents here have intimated that the Act only establishes a 'principles of comity,' not a binding rule on the power of the federal courts. The argument implies that in certain circumstances a federal court may enjoin state court proceedings even if that action cannot be justified by any of the three exceptions. We cannot accept any such contention. In 1955 when this Court interpreted this statute, it stated: 'This is not a statute conveying a broad general policy for appropriate ad hoc application. Legislative policy is here expressed in a clearcut prohibition qualified only by specifically defined exceptions.' Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511, 515 516, 75 S.Ct. 452, 455, 99 L.Ed. 600 (1955). Since that time Congress has not seen fit to amend the statute and we therefore adhere to that position and hold that any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to § 2283 if it is to be upheld. Moreover since the statutory prohibition against such injunctions in part rests on the fundamental constitutional independence of the States and their courts, the exceptions should not be enlarged by loose statutory construction. Proceedings in state courts should normally be allowed to continue unimpaired by intervention of the lower federal courts, with relief from error, if any, through the state appellate courts and ultimately this Court.
II.
9
In this case the Florida Circuit Court enjoined the union's intended picketing, and the United States District Court enjoined the railroad 'from giving effect to or availing (itself) of the benefits of' that state court order. App. 196. Both sides agree that although this federal injunction is in terms directed only at the railroad it is an injunction 'to stay proceedings in a State court.' It is settled that the prohibition of § 2283 cannot be evaded by addressing the order to the parties or prohibiting utilization of the results of a completed state proceeding. Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4, 9, 60 S.Ct. 215, 218, 84 L.Ed. 537 (1940); Hill v. Martin, 296 U.S. 393, 403, 56 S.Ct. 278, 282, 80 L.Ed. 293 (1935). Thus if the injunction against the Florida court proceedings is to be upheld, it must be 'expressly authorized by Act of Congress,' 'necessary in aid of (the District Court's) jurisdiction,' or 'to protect or effectuate (that court's) judgments.'
10
Neither party argues that there is any express congressional authorization for injunctions in this situation and we agree with that conclusion. The respondent union does contend that the injunction was proper either as a means to protect or effectuate the District Court's 1967 order, or in aid of that court's jurisdiction. We do not think that either alleged basis can be supported.
A.
11
The argument based on protecting the 1967 order is not clearly expressed, but in essence it appears to run as follows: In 1967 the railroad sought a temporary restraining order which the union opposed. In the course of deciding that request, the United States District Court determined that the union had a federally protected right to picket Moncrief Yard and that this right could not be interfered with by state courts. When the Florida Circuit Court enjoined the picketing, the United States District Court could, in order to protect and effectuate its prior determination, enjoin enforcement of the state court injunction. Although the record on this point is not unambiguously clear, we conclude that no such interpretation of the 1967 order can be supported.
12
When the railroad initiated the federal suit it filed a complaint with three counts, each based entirely on alleged violations of federal law. The first two counts alleged violations of the Railway Labor Act, 45 U.S.C. § 151 et seq., and the third alleged a violation of that Act and the Interstate Commerce Act as well. Each of the counts concluded with a prayer for an injunction against the picketing. Although the union had not been formally served with the complaint and had not filed an answer, it appeared at a hearing on a motion for a temporary restraining order and argued against the issuance of such an order. The union argued that it was a party to a labor dispute with the FEC, that it had exhausted the administrative remedies required by the Railway Labor Act, and that it was thus free to engage in 'self-help,' or concerted economic activity. Then the union argued that such activity could not be enjoined by the federal court. In an attempt to clarify the basis of this argument the District Judge asked: 'You are basing your case solely on the Norris-LaGuardia Act?' The union's lawyer replied: 'Right. I think at this point of the argument, since Norris-LaGuardia is clearly in point here.' App. 63. At no point during the entire argument did either side refer to state law, the effects of that law on the picketing, or the possible preclusion of state remedies as a result of overriding federal law. The next day the District Court entered an order denying the requested restraining order. In relevant part that order included these conclusions of law:
13
'3. The parties to the BLE-FEC 'major dispute,' having exhausted the procedures of the Railway Labor Act, 45 U.S.C. § 151, et seq., are now free to engage in self-help. * * *
14
'4. The conduct of the FEC pickets and that of the responding ACL employees are a part of the FEC-BLE major dispute. * * *
15
'7. The Norris-LaGuardia Act, 29 U.S.C. § 101, and the Clayton Act, 29 U.S.C. § 52, are applicable to the conduct of the defendants here involved.' App. 67.
16
In this Court the union asserts that the determination that it was 'free to engage in self-help' was a determination that it had a federally protected right to picket and that state law could not be invoked to negate that right. The railroad, on the other hand, argues that the order merely determined that the federal court could not enjoin the picketing, in large part because of the general prohibition in the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 101 et seq. against issuance by federal courts of injunctions in labor disputes. Based solely on the state of the record when the order was entered, we are inclined to believe that the District Court did not determine whether federal law precluded an injunction based on state law. Not only was that point never argued to the court, but there is no language in the order that necessarily implies any decision on that question. In short we feel that the District Court in 1967 determined that federal law could not be invoked to enjoin the picketing at Moncrief Yard, and that the union did have a right 'to engage in self-help' as far as the federal courts were concerned. But that decision is entirely different from a decision that the Railway Labor Act precludes state regulation of the picketing as well, and this latter decision is an essential prerequisite for upholding the 1969 injunction as necessary 'to protect or effectuate' the 1967 order. Finally we think it highly unlikely that the brief statements in the order conceal a determination of a disputed legal point that later was to divide this Court in a 4-to-3 vote in Jacksonville Terminal, supra, in opinions totaling 28 pages. While judicial writing may sometimes be thought cryptic and tightly packed, the union's contention here stretches the content of the words well beyond the limits of reasonableness.
17
Any lingering doubts we might have as to the proper interpretation of the 1967 order are settled by references to the positions adopted by the parties later in the litigation. In response to the railroad's request for a temporary restraining order from the state court, the union referred to the prior federal litigation, noted that it was part of a 'major dispute', that it was covered by § 20 of the Clayton Act, 38 Stat. 738, 29 U.S.C. § 52 and that '(l)abor activity which is within the Clayton Act is 'immunized trade union activities.' United States v. Hutcheson, 312 U.S. 219, at pages 235—236 (61 S.Ct. 463, at pages 467—468, 85 L.Ed. 788).'4 2 Record 105. At no point did the union appear to argue that the federal court had already determined that the railroad was precluded from obtaining an injunction under Florida law.
18
Similarly the union's arguments in 1969 indicate that the 1967 federal order did not determine whether federal law precluded resort to the state courts. When the union tried to dissolve the state court injunction, the argument was based entirely on the controlling effect of the Jacksonville Terminal decision on the picketing at Moncrief Yard. The union argued that this Court's 'decision is squarely controlling upon (the Moncrief Yard) case which is identical in all material respects.' 2 Record 123; see also id., at 149—176. Although the union again mentioned that the federal District Judge had determined in 1967 that it was free to engage in self-help, it never argued that the 1967 order had in effect held with respect to Moncrief Yard what this Court later held was the law with respect to the Jacksonville Terminal situation. The railroad argued that Jacksonville Terminal was not controlling, and the Florida judge agreed.5
19
Our reading of this record is not altered by the District Court's 1969 opinion issued when the injunction was granted two years after the 1967 order was entered. In that opinion the court said:
20
'In its Order of April 26, 1967, this Court found that Plaintiff's Moncrief Yard, the area in question, 'is an integral and necessary part of (Florida East Coast Railway Company's) operations.' * * * The Court concluded furthermore that Defendants herein 'are now free to engage in self-help.' * * * The injunction of the state court, if allowed to continue in force, would effectively nullify this Court's findings and delineation of rights of the parties. The categorization of Defendants' activities as 'secondary' does not alter this state of affairs. See Brotherhood of R. R. Trainmen v. Jacksonville Terminal Co. (394 U.S. 369, 89 S.Ct. 1109), 22 L.Ed.2d 344 (1969). The prohibition of 28 U.S.C. § 2283, therefore, does not deprive this Court of jurisdiction to enter the injunction in this instance.' App. 195—196.
21
We think the proper interpretation of that somewhat ambiguous passage can be reached only when it is considered in light of the arguments presented to the District Court by the union. In arguing that an injunction was necessary to protect the 1967 order, the union's lawyer said: 'Now, the basic finding (of that order) is that we are free to engage in such self-help as is permitted under the Railway Labor Act. Now, Your Honor, at that point, did not get to the question of how broad is this right, because the Norris-LaGuardia Act prevented Your Honor from issuing an injunction. Now, how broad, then, is that right? We know, from the (Jacksonville Terminal) decision * * *.' 1 Record 249. The lawyer then proceeded to argue that the Jacksonville Terminal case had clearly revealed that the right of self-help is beyond state court proscription in these circumstances. At no point during this hearing did the union try to argue, as it now appears to do, that the 1967 order itself had anticipated the Jacksonville Terminal decison. Rather the union appears to have argued that the decision of this Court in Jacksonville Terminal operated to define the scope of the right to self-help which the District Court had found the union entitled to exercise, and that the state court injunction interfered with that right as so defined. Considered in this light we cannot agree with the dissenting view in this case that the District Court in 1967 'by necessary implication' decided that the union had a federally protected right to picket that 'could not be subverted by resort to state proceedings.' Post, at 299. On the contrary, we read the quoted passage in the 1969 opinion as an indication that the District Court accepted the union's argument and concluded that the Jacksonville Terminal decision had amplified its 1967 order, and it was this amplification, rather than the original order itself, that required protection. Such a modification of an earlier order through an opinion in another case is not a 'judgment' that can properly be protected by an injunction against state court proceedings.
22
This record, we think, conclusively shows that neither the parties themselves nor the District Court construed the 1967 order as the union now contends it should be construed. Rather we are convinced that the union in effect tried to get the Federal District Court to decide that the state court judge was wrong in distinguishing the Jacksonville Terminal decision. Such an attempt to seek appellate review of a state decision in the Federal District Court cannot be justified as necessary 'to protect or effectuate' the 1967 order. The record simply will not support the union's contention on this point.
B
23
This brings us to the second prong of the union's argument in which it is suggested that even if the 1967 order did not determine the union's right to picket free from state interference, once the decision in Jacksonville Terminal was announced, the District Court was then free to enjoin the state court on the theory that such action was 'necessary in aid of (the District Court's) jurisdiction.' Again the argument is somewhat unclear, but it appears to go in this way: The District Court had acquired jurisdiction over the labor controversy in 1967 when the railroad filed its complaint, and it determined at that time that it did have jurisdiction. The dispute involved the legality of picketing by the union and the Jacksonville Terminal decision clearly indicated that such activity was not only legal, but was protected from state court interference. The state court had interfered with that right, and thus a federal injunction was 'necessary in aid of its jurisdiction.' For several reasons we cannot accept the contention.6
24
First, a federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area preempted by federal law, even when the interference is unmistakably clear. This rule applies regardless of whether the federal court itself has jurisdiction over the controversy, or whether it is ousted from jurisdiction for the same reason that the state court is. Cf. Amalgamated Clothing Workers v. Richman Bros., supra, 348 U.S. at 519—520, 75 S.Ct. at 457—458. This conclusion is required because Congress itself set forth the only exceptions to the statute, and those exceptions do not include this situation. Second, if the District Court does have jurisdiction, it is not enough that the requested injunction is related to that jurisdiction, but it must be 'necessary in aid of' that jurisdiction. While this language is admittedly broad, we conclude that it implies something similar to the concept of injunctions to 'protect or effectuate' judgments. Both exceptions to the general prohibition of § 2283 imply that some federal injunctive relief may be necessary to prevent a state court from so interfering with a federal court's consideration or disposition of a case as to seriously impair the federal court's flexibility and authority to decide that case. Third, no such situation is presented here. Although the federal court did have jurisdiction of the railroad's complaint based on federal law, the state court also had jurisdiction over the complaint based on state law and the union's asserted federal defense as well. Jacksonville Terminal, supra, 394 U.S. at 375—377, 390, 89 S.Ct. at 1113—1115, 1122. While the railroad could probably have based its federal case on the pendent state law claims as well, United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), it was free to refrain from doing so and leave the state law questions and the related issue concerning preclusion of state remedies by federal law to the state courts. Conversely, although it could have tendered its federal claims to the state court, it was also free to restrict the state complaint to state grounds alone. Cf. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). In short, the state and federal courts had concurrent jurisdiction in this case, and neither court was free to prevent either party from simultaneously pursuing claims in both courts. Kline v. Burke Constr. Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922); cf. Donovan v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964). Therefore the state court's assumption of jurisdiction over the state law claims and the federal preclusion issue did not hinder the federal court's jurisdiction so as to make an injunction necessary to aid that jurisdiction. Nor was an injunction necessary because the state court may have taken action which the federal court was certain was improper under the Jacksonville Terminal decision. Again, lower federal courts possess no power whatever to sit in direct review of state court decisions. If the union was adversely affected by the state court's decision, it was free to seek vindiction of its federal right in the Florida appellate courts and ultimately, if necessary, in this Court. Similarly if, because of the Florida Circuit Court's action, the union faced the threat of immediate irreparable injury sufficient to justify an injunction under usual equitable principles, it was undoubtedly free to seek such relief from the Florida appellate courts, and might possibly in certain emergency circumstances seek such relief from this Court as well. Cf. Natural Gas Co. v. Public Serv. Comm., 294 U.S. 698, 55 S.Ct. 634, 79 L.Ed. 1235 (1935); United States v. Moscow Fire Ins. Co., 308 U.S. 542, 60 S.Ct. 129, 84 L.Ed. 456 (1939); R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court § 441 (R. Wolfson & P. Kurland ed. 1951). Unlike the Federal District Court, this Court does have potential appellate jurisdiction over federal questions raised in state court proceedings, and that broader jurisdiction allows this Court correspondingly broader authority to issue injunctions 'necessary in aid of its jurisdiction.'
III
25
This case is by no means an easy one. The arguments in support of the union's contentions are not insubstantial. But whatever doubts we may have are strongly affected by the general prohibition of § 2283. Any doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy. The explicit wording of § 2283 itself implies as much, and the fundamental principle of a dual system of courts leads inevitably to that conclusion.
26
The injunction issued by the District Court must be vacated. Since that court has not yet proceeded to a final judgment in the case, the cause is remanded to it for further proceedings in conformity with this opinion.
27
Vacated and remanded.
28
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
29
Mr. Justice HARLAN, concurring.
30
I join the Court's opinion on the understanding that its holding implies no retreat from Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969). Whether or not that case controls the underlying controversy here is a question that will arise only on review of any final judgment entered in the state court proceedings respecting that controversy.
31
Mr. Justice BRENNAN, with whom Mr. Justice WHITE joins, dissenting.
32
My disagreement with the Court in this case is a relatively narrow one. I do not disagree with much that is said concerning the history and policies underlying 28 U.S.C. § 2283. Nor do I dispute the Court's holding on the basis of Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511, 75 S.Ct. 452, 99 L.Ed. 600 (1955), that federal courts do not have authority to enjoin state proceedings merely because it is asserted that the state court is improperly asserting jurisdiction in an area preempted by federal law or federal procedures. Nevertheless in my view the District Court has discretion to enjoin the state proceedings in the present case because it acted pursuant to an explicit exception to the prohibition of § 2283, that is, 'to protect or effectuate (the District Court's) judgments.'
33
The pertinent portions of the District Court's 1967 order, denying ACL's application for injunctive relief and defining BLE's federally protected right to picket at the Moncrief Yard, are as follows:
34
'3. The parties to the BLE-FEC 'major dispute,' having exhausted the procedures of the Railway Labor Act, 45 U.S.C. § 151, et seq., are now free to engage in self-help. Brotherhood of Locomotive Engineers v. Baltimore & O.R.R., 372 U.S. 284 (83 S.Ct. 691, 9 L.Ed.2d 759) (1963).
35
'4. The conduct of the FEC pickets and that of the responding ACL employees are a part of the FEC-BLE major dispute. Brotherhood of Locomotive Firemen and Enginemen v. Florida East Coast Ry., (Co.), 346 F.2d 673 (5th Cir. 1965).
36
'6. The 'economic self-interest' of the picketing union in putting a stop to the interchange services daily performed within the premises of plaintiff's yard facilities, and in the normal, day-to-day operation of FEC trains operating with strike replacement crews within these facilities is present here. The 'economic self-interest' of the responding employees in refusing to handle this interchange and in making common cause with the striking FEC engineers is similarly present. Brotherhood of R. R. Trainmen v. Atlantic Coast Line R.R., 362 F.2d 649 (5th Cir.), aff'd, 385 U.S. 20 (87 S.Ct. 226, 17 L.Ed.2d 20) (1966).
37
'7. The Norris-LaGuardia Act, 29 U.S.C. § 101, and the Clayton Act, 29 U.S.C. § 52, are applicable to the conduct of the defendants here involved. See Brotherhood of Locomotive Firemen and Enginemen v. Florida East Coast Ry. (Co.), 346 F.2d 673 (5th Cir. 1965); Brotherhood of R. R. Trainmen v. Atlantic Coast Line Railroad, 362 F.2d 649 (5th Cir.), aff'd, 385 U.S. 20 (87 S.Ct. 226, 17 L.Ed.2d 20) (1966).' App. 67—68.
38
The thrust of the District Judge's order is that the procedures prescribed by the Railway Labor Act had been exhausted in relation to the BLE-FEC dispute, that BLE was therefore free to engage in self-help tactics, and that it was properly exercising this federal right when it engaged in the picketing that ACL sought to enjoin. This interpretation of the order is supported by the fact that the District Judge relied upon Brotherhood of Locomotive Engineers v. Baltimore & Ohio R. Co., 372 U.S. 284, 83 S.Ct. 691, 9 L.Ed.2d 759 (1963), in which this Court held that the parties had exhausted all available procedures under the Railway Labor Act and thus were free to resort to self-help. Furthermore, the District Court invoked § 20 of the Clayton Act, 29 U.S.C. § 52, which provides that certain union activities, including striking and peaceful picketing, shall not 'be considered or held to be violations of any law of the United States.' Thus, contrary to petitioner's contention, the District Court obviously decided considerably more than the threshold question of whether the Norris-LaGuardia Act withdrew jurisdiction to grant federal injunctive relief in the circumstances of this case.
39
In my view, what the District Court decided in 1967 was that BLE had a federally protected right to picket at the Moncrief Yard and, by necessary implication, that this right could not be subverted by resort to state proceedings. I find it difficult indeed to ascribe to the District Judge the views that the Court now says he held, namely, that ACL, merely by marching across the street to the state court, could render wholly nugatory the District Judge's declaration that BLE had a federally protected right to strike at the Moncrief Yard.
40
Moreover, it is readily apparent from the District Court's 1969 order enjoining the state proceedings that the District Judge viewed his 1967 order as delineating the rights of the respective parties, and, more particularly, as establishing BLE's right to conduct the picketing in question under paramount federal law. This interpretation should be accepted as controlling, for certainly the District Judge is in the best position to render an authoritative interpretation of his own order. In the 1969 injunction order, after distinguishing Richman Bros. and concluding that the District Court could grant injunctive relief 'in aid of its jurisdiction,' the court alternatively held that it had power to stay the state court proceedings so as to effectuate its 1967 order:
41
'In its Order of April 26, 1967, this Court found that Plaintiff's Moncrief Yard, the area in question, 'is an integral and necessary part of (Florida East Coast Railway Company's) operations.' * * * The Court concluded furthermore that Defendants herein 'are now free to engage in self-help.' * * * The injunction of the state court, if allowed to continue in force, would effectively nullify this Court's findings and delineation of rights of the parties. The categorization of Defendants' activities as 'secondary' does not alter this state of affairs. See Brotherhood of R. R. Trainmen v. Jacksonville Terminal Co., (394 U.S. 369, 89 S.Ct. 1109), 22 L.Ed.2d 344 (1969). The prohibition of 28 U.S.C. § 2283, therefore, does not deprive this Court of jurisdiction to enter the injunction in this instance. Capital Service, Inc. v. NLRB, 347 U.S. 501 (74 S.Ct. 699, 98 L.Ed. 887) (1954); (United Indus. Workers of the Seafarers Int'l Union) v. Board of Trustees of Galveston Wharves, 400 F.2d 320 (5th Cir. 1968).' App. 195—196.
42
The District Judge's reliance upon Capital Service, Inc. v. NLRB, 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887 (1954),1 and United Indus. Workers of the Seafarers Int'l Union v. Board of Trustees of Galveston Wharves, 400 F.2d 320 (C.A. 5th Cir. 1968), a fact ignored by the Court, is particularly significant, for both of these cases sustained injunctive relief against state court proceedings that threatened to impair the ability of the federal courts to make their judgments effective. Moreover, no matter how the arguments of counsel before the District Court are understood, it is apparent that the District Judge did not bottom the 1969 injunction upon our intervening decision in Jacksonville Terminal but merely cited that case to support the court's 1967 conclusion that the picketing in question constituted federally protected activity whether or not it had 'secondary' aspects.
43
The Court seeks to bolster its own reading of the District Court's 1967 and 1969 orders by finding them 'somewhat ambiguous' and then by referring to the arguments of counsel before that court and the state court both in 1967 and 1969. In the first place, it should be noted that the argument of counsel is not always a sure guide to the interpretation of a subsequent judicial decree or opinion, because it not infrequently happens, in this Court as well as others, that a decision is based on premises not elaborated by counsel. Indeed, occasionally a decision is grounded on a theory not even suggested by counsel's argument.
44
In any event, I believe that the Court his misinterpreted the argument of counsel in the lower courts. While I do not find the various proceedings below entirely free of confusion with respect to BLE's legal theory, there appear to be at least two strands to its argument. To be sure, BLE did contend, particularly in the state proceedings, that our decision in Jacksonville Terminal was controlling on the merits.2 As I read the record, however, BLE also argued that the state injunction should either be dissolved or enjoined so that it would not interfere with the federal court's 1967 decree. Thus, in moving for a preliminary injunction against the state court proceedings, BLE relied both upon Jacksonville Terminal and upon the power of the District Court to issue the injunction 'to protect and effectuate the judgment of this Court dated April 26, 1967.' 1 Record 30—31.
45
Furthermore, both in support of the motion for a preliminary injunction and during oral argument in the District Court, BLE relied extensively upon Capital Service, Inc. v. NLRB, supra, and United Indus. Workers of the Seafarers Int'l Union v. Board of Trustees of Galveston Wharves, supra. See 1 Record 33—34, 243—245, 247, 253—257, 279—281. A consideration of the factual context of the latter case is instructive in understanding BLE's position below. In Galveston Wharves the union fully complied with the pertinent provisions of the Railway Labor Act, but, because the employer had refused to bargain concerning a 'major' dispute, the union was free to strike. Meanwhile the employer obtained from a state court an injunction against any picketing on or near its premises. The Federal District Court ordered the parties to bargain and enjoined the employer from giving effect to, or seeking enforcement of, the state court injunction. The Court of Appeals for the Fifth Circuit affirmed the granting of injunctive relief on the ground that this action was within the § 2283 exception relating to the effectuation of federal court judgments. The Court of Appeals held that the union had a right to strike under the Railway Labor Act and that that right could not be frustrated or interfered with by state court injunctions. Similarly, BLE argued below that resort to state equitable proceedings should not be permitted to undermine the District Court's prior determination that BLE had a right to picket at the Moncrief Yard. As its injunction order indicates, the District Court was persuaded by BLE's argument. After the federal injunction was issued, in proceedings brought by ACL to stay the effectiveness of the order, BLE adhered to its position that the state injunction, if not enjoined, would nullify the District Court's 1967 order delineating the rights of the parties. 1 Record 499, 505, 508—509. Again BLE relied upon the intervening decision in Jacksonville Terminal, but it did so primarily in support of the contention that the 1967 order was proper insofar as it prohibited state court interference with the picketing at the Moncrief Yard. 1 Record 509—510. In essence, BLE argued that the 1967 order had correctly anticipated Jacksonville Terminal. See ibid.
46
In the state courts BLE adopted a position entirely consistent with the foregoing. For example, in opposing ACL's application for a temporary injunction against the picketing, BLE contended that the District Court had previously held that under controlling federal law BLE's right to picket had been established, that this declaration of rights was res judicata in the state proceedings, and consequently that state proscription of the picketing was improper. 2 Record 104—105.
47
In sum, to the extent that the argument of counsel is an interpretive guide to what the District Court actually decided in its 1967 and 1969 orders, the Court's conclusion that the record 'conclusively shows that neither the parties themselves nor the District Court construed the 1967 order' to preclude resort to state remedies to prohibit the Moncrief Yard picketing (ante, at 293) is wholly erroneous. And, quite apart from counsel's argument, it is apparent that the District Judge viewed his own 1967 order as delineating a federally protected right for the BLE picketing in question. Whether the District Court's anticipation of Jacksonville Terminal was correct in the circumstances of the present case is not now before us. But if the 1967 order is so understood, it is undeniably clear that the subsequent injunction against the state proceedings was both necessary and appropriate to preserve the integrity of the 1967 order.
48
In justifying its niggardly construction of the District Court's orders, the Court takes the position that any doubts concerning the propriety of an injunction against state proceedings should be resolved against the granting of injunctive relief. Unquestionably § 2283 manifests a general design on the part of Congress that federal courts not precipitately interfere with the orderly determination of controversies in state proceedings. However, this policy of nonintervention is by no means absolute, as the explicit exceptions in § 2283 make entirely clear. Thus, § 2283 itself evinces a congressional intent that resort to state proceedings not be permitted to undermine a prior judgment of a federal court. But that is exactly what has occurred in the present case. Indeed, the federal determination that BLE may picket at the Moncrief Yard has been rendered wholly ineffective by the state injunction. The crippling restrictions that the Court today places upon the power of the District Court to effectuate and protect its orders are totally inconsistent with both the plain language of § 2283 and the policies underlying that statutory provision.
49
Accordingly, I would affirm the judgment of the Court of Appeals sustaining the District Court's grant of injunctive relief against petitioner's giving effect to, or availing itself of, the benefit of the state court injunction.
1
After this suit was instituted ACL merged with the Seaboard Air Line Railroad Co. to form the present Seaboard Coast Line Railroad Co. We will continue, as have the parties, to refer to the petitioner as ACL.
2
There is no present labor dispute between the ACL and the BLE or any other ACL employees. ACL became involved in this case as a result of a labor dispute between the Florida East Coast Railway Co. (FEC) and its employees. FEC cars are hauled into and out of Moncrief Yard and switched around to make up trains in that yard. The BLE picketed the yard, encouraging ACL employees not to handle any FEC cars.
The initial development of the controversy is chronicled in Brotherhood of Ry. and S. S. Clerks, Freight Handlers, Express and Station Employees, AFL-CIO v. Florida East Coast Ry. Co., 384 U.S. 238, 86 S.Ct. 1420, 16 L.Ed.2d 501 (1966). See also, Brotherhood of Railroad Trainmen v. Atlantic Coast Line R. Co., 362 F.2d 649 (C.A. 5th Cir.), aff'd by an equally divided court, 385 U.S. 20, 87 S.Ct. 226, 17 L.Ed.2d 20 (1966); Florida East Coast R. Co. v. Brotherhood of Railroad Trainmen, 336 F.2d 172 (C.A. 5th Cir. 1964).
3
See the historical discussion of the origin of the 1793 statute in Toucey v. New York Life Ins. Co., 314 U.S. 118, 129 132, 62 S.Ct. 139, 141—143, 86 L.Ed. 100 (1941).
4
The Hutcheson case held that protected union activity would not be deemed violative of federal antitrust law.
5
For purposes of this case only, we will assume, without deciding, that the Florida Circuit Court's decision was wrong in light of our decision in Jacksonville Terminal.
6
The union also argues that the 1969 injunction was an aid to the federal court's jurisdiction in other pending cases arising out of this same labor dispute. This argument was not raised in the District Court and we need not consider it. In any event the reasons for rejecting the argument with respect to the 1967 order apply equally well to arguments relating to any other orders, cases, or judgments the union has advanced.
1
In Capital Service the NLRB sought an injunction against certain picketing under § 10(l) of the National Labor Relations Act, 29 U.S.C. § 160(l). Previously a state court had restrained the very conduct that the District Court was asked to enjoin. This Court decided that the District Court had authority to enjoin the state proceedings so that it would have 'unfettered power to decide for or against the union, and to write such decree as it deemed necessary in order to effectuate the policies of the Act.' 347 U.S., at 505—506, 74 S.Ct. at 703.
2
It is hardly surprising that BLE emphasized the Jacksonville Terminal decision in the state proceedings to dissolve the state injunction, and this reliance is hardly inconsistent with the position that the federal court in 1967 had authoritatively delineated BLE's federally protected right to strike at the Moncrief Yard. BLE may well have thought that its contention that Jacksonville Terminal was controlling on the issue of pre-emption would carry more weight with the state court than the alternative position that the protected character of the BLE picketing had been previously determined by the Federal District Court.
| 67
|
398 U.S. 306
90 S.Ct. 1731
26 L.Ed.2d 252
HELLENIC LINES LIMITED et al., Petitioners,v.Zacharias RHODITIS.
No. 661.
Argued April 21, 1970.
Decided June 8, 1970.
Rehearing Denied Oct. 12, 1970.
See 91 S.Ct. 23.
James M. Estabrook, New York City, for petitioners.
Joseph B. Stahl, New Orleans, La., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a suit under the Jones Act1 by a seaman who was injured aboard the ship Hellenic Hero in the Port of New Orleans. The District Court, sitting without a jury, rendered judgment for the seaman, 273 F.Supp. 248. The Court of Appeals affirmed, 412 F.2d 919. The case is here on petition for a writ of certiorari which we granted, 396 U.S. 1000, 90 S.Ct. 554, 24 L.Ed.2d 492, in light of the conflict between the decision below and Tsakonites v. Transpacific Carriers Corp., 368 F.2d 426, in the Second Circuit.
2
Petitioner2 Hellenic Lines Ltd. is a Greek corporation that has its largest office in New York and another office in New Orleans. More than 95% of its stock3 is owned by a United States domiciliary who is a Greek citizen—Pericles G. Callimanopoulos (whom we call Pericles). He lives in Connecticut and manages the corporation out of New York. He has lived in this country since 1945. The ship Hellenic Hero is engaged in regularly scheduled runs between various ports of the United States and the Middle East, Pakistan, and India. The District Court found that its entire income is from cargo either originating or terminating in the United States.
3
Respondent, the seaman, signed on in Greece, and he is a Greek citizen. His contract of employment provides that Greek law and a Greek collective-bargaining agreement apply between the employer and the seaman and that all claims arising out of the employment contract are to be adjudicated by a Greek court. And it seems to be conceded that respondent could obtain relief through Greek courts, if he desired.
4
The Jones Act speaks only of 'the defendant employer' without any qualifications. In Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254, however, we listed seven factors to be considered in determining whether a particular shipowner should be held to be an 'employer' for Jones Act purposes:
5
(1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured seaman; (4) allegiance of the defendant shipowner; (5) the place where the contract of employment was made; (6) the inaccessibility of a foreign forum; and (7) the law of the forum.
6
Of these seven factors it is urged that four are in favor of the shipowner and against jurisdiction: the ship's flag is Greek; the injured seaman is Greek; the employment contract is Greek; and there is a foreign forum available to the injured seaman.
7
The Lauritzen test, however, is not a mechanical one. 345 U.S., at 582, 73 S.Ct. 921. We indicated that the flag that a ship flies may, at times, alone be sufficient. Id., at 585—586, 73 S.Ct. 929—930. The significance of one or more factors must be considered in light of the national interest served by the assertion of Jones Act jurisdiction.4 Moreover, the list of seven factors in Lauritzen was not intended as exhaustive. As held in Pavlou v. Ocean Traders Marine Corp., 211 F.Supp. 320, 325, and approved by the Court of Appeals in the present case, 412 F.2d, at 923 n. 7, the shipowner's base of operations is another factor of importance in determining whether the Jones Act is applicable; and there well may be others.
8
In Lauritzen the injured seaman had been hired in and was returned to the United States, and the shipowner was served here. Those were the only contacts of that shipping operation with this country.
9
The present case is quite different.
10
Pericles became a lawful permanent resident alien in 1952. We extend to such an alien the same constitutional protections of due process that we accord citizens.5 Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 73 S.Ct. 472, 477, 97 L.Ed. 576. The injury occurred here. The forum is a United States court. Pericles' base of operations is New York. The Hellenic Hero was not a casual visitor; rather, it and many of its sister ships were earning income from cargo originating or terminating here. We see no reason whatsoever to give the Jones Act a strained construction so that this alien owner, engaged in an extensive business operation in this country, may have an advantage over citizens engaged in the same business by allowing him to escape the obligations and responsibility of a Jones Act 'employer.' The flag, the nationality of the seaman, the fact that his employment contract was Greek, and that he might be compensated there are in the totality of the circumstances of this case minor weights in the scales compared with the substantial and continuing contacts that this alien owner has with this country. If, as stated in Bartholomew v. Universe Tankships Inc., 263 F.2d 437, the liberal purposes of the Jones Act are to be effectuated, the facade of the operation must be considered as minor, compared with the real nature of the operation and a cold objective look at the actual operational contacts that this ship and this owner have with the United States. By that test the Court of Appeals was clearly right in holding that petitioner Hellenic Lines was an 'employer' under the Jones Act.
11
Affirmed.
12
Mr. Justice HARLAN, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, dissenting.
13
I dissent from today's decision holding that a Greek seaman who signs articles in Greece for employment on a Greek-owned, Greek-flag vessel may recover under the Jones Act for shipboard injuries sustained while the vessel was in American territorial waters. This result is supported neither by precedent, nor realistic policy, and in my opinion is far removed from any intention that can reasonably be ascribed to Congress.
A.
14
Section 688 of Title 46, U.S.C., 41 Stat. 1007, the Jones Act, provides:
15
'Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.'
16
The language of § 688 is, as Mr. Justice Jackson noted in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), all-embracing. By its terms it is not limited to American seamen nor to vessels bearing the American flag. Yet despite the sweeping language it can hardly be doubted that congressional concern stopped short of the lengths to which the literal terms of the statute carry the Jones Act. This was emphasized in Lauritzen which pointed out that Congress wrote against a backdrop of 'usage as old as the Nation,' that 'such statutes have been construed to apply only to areas and transactions in which American law would be considered operative under prevalent doctrines of international law.' 345 U.S., at 577, 73 S.Ct. at 926. This principle the Court reiterated in Romero v. International Terminal Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), where we reaffirmed the presumption that domestic legislation has been enacted with 'respect for the relevant interests of foreign nations in the regulation of maritime commerce as part of the legitimate concern of the international community.' 358 U.S., at 383, 79 S.Ct. at 486.
17
This Court only recently applied this principle in McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), where we were called upon to determine whether labor relations dealing with an alien crew on a foreign-flag vessel, beneficially owned by an American corporation, affected 'commerce' within the meaning of the National Labor Relations Act. In holding that the Act was not 'intended to have any application to foreign registered vessels employing alien seamen,' the Court declined to rely on the beneficial ownership of the vessel and other 'substantial United States contacts,' including regular visits to the United States and the 'integrated maritime operation' of the United Fruit Company, the beneficial owner of the vessel, to override the well-settled principle that the law of the country whose flag a ship flies governs shipboard transactions, absent some 'clear expression' from Congress to the contrary. See Wildenhus's Case, 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565 (1887); United States v. Flores, 289 U.S. 137, 155—159, 53 S.Ct. 580, 584 585, 77 L.Ed. 1086 (1933); Cunard Steamship Co. v. Mellon, 262 U.S. 100, 124, 43 S.Ct. 504, 507, 67 L.Ed. 894 (1923); cf. Murray v. The Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804).1
18
The McCulloch case followed a course marked early in our jurisprudence, and, in fact, built upon Lauritzen which had announced that the law of the flag, 'the most venerable and universal rule of maritime law,' would in Jones Act cases 'overbear most other connecting events in determining applicable law * * * unless some heavy counterweight appears.' 345 U.S., at 584, 585—586, 73 S.Ct. at 929—930.
19
Such a counterweight would exist only in circumstances where the application of the American rule of law would further the purpose of Congress. While some legislation in its purpose obviously requires extension beyond our borders to achieve national policy, this is not so, in my opinion, with an Act concerned with prescribing particular remedies, rather than one regulating commerce or creating a standard for conduct.
20
The only justification that I can see for extending extraterritorially a remedial-type provision like § 688 is that the injured seaman is an individual whose well-being is a concern of this country. It was for this reason that Lauritzen recognized the residence of the plaintiff as a factor that should properly be considered in deciding who is a 'seaman' as Congress employed that term in § 688. See D. Cavers, The Choice-of-Law Process 96—97 (1965). In so doing it reflected earlier decisions where recovery was had by resident alien seamen who were serving aboard foreign-flag vessels. See, e.g., Gambera v. Bergoty, 132 F.2d 414 (C.A.2d Cir. 1942); cf. Uravic v. F. Jarka Co., 282 U.S. 234, 51 S.Ct. 111, 75 L.Ed. 312 (1931).
21
In the early decisions involving citizen and resident alien seamen serving on foreign vessels, some additional factor, such as the vessel's presence in American waters or beneficial American ownership, was considered to be an element justifying recovery. See Uravic v. F. Jarka Co., supra; Gerradin v. United Fruit Co., 60 F.2d 927 (C.A.2d Cir. 1932); compare Gambera v. Bergoty, supra, with O'Neill v. Cunard White Star, 160 F.2d 446 (C.A.2d Cir. 1947). Lauritzen in enumerating these factors ('contacts') as independent considerations, was attempting to focus analysis on those factors that are the necessary ingredients for a statutory cause of action: first, as a matter of statutory construction, is plaintiff within that class of seamen that Congress intended to cover by the statute? and, second, is there a sufficient nexus between the defendant and this country so as to justify the assertion of legislative jurisdiction?2 In other words the Court must define 'seaman' and 'employer' as those words are used in s 688. In this regard the situs of the accident or the vessel's contacts with this country by virtue of its beneficial ownership or the frequency of calls at our ports simply serves as an adequate nexus between this country and defendant to assert jurisdiction in a case where congressional policy is otherwise furthered. But no matter how qualitatively substantial or numerous these kinds of contacts may be, they have no bearing in themselves on whether Jones Act recovery is appropriate in a given instance. For transactions occurring aboard foreign-flag vessels that question should be answered by reference to the plaintiff's relationship to this country. See Note, Admiralty and the Choice of Law: Lauritzen v. Larsen Applied, 47 Va.L.Rev. 1400 (1961).
22
Viewed in this perspective, today's decision and decisions of several lower courts that have taken the phenomenon of 'convenient' foreign registry as a wedge for displacing the law of the flag, see, e.g., Southern Cross Steamship Co. v. Firipis, 285 F.2d 651 (C.A.4th Cir. 1960); Pavlou v. Ocean Traders Marine Corp., 211 F.Supp. 320 (D.C.S.D.N.Y.1962); Voyiatzis v. National Shipping & Trading Corp., 199 F.Supp. 920 (D.C.S.D.N.Y.1961), have, I believe, misconstrued these basic premises on which Lauritzen was founded. This is underscored by the fact that the Lauritzen allusion to the practice of American owners of finding a 'convenient' flag 'to avoid stringent shipping laws by seeking foreign registration eagerly offered by some countries,' 345 U.S., at 587, 73 S.Ct. at 931, was prefaced by citation and discussion of Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941), and Steele v. Bulova Watch Co., 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 252 (1952), both of which dealt with the question of when legislative jurisdiction existed to apply domestic law to American nationals abroad. In both cases the application of domestic law presupposed or construed legislative purpose to be furthered by reaching across the border.3
23
The Lauritzen statement, lifted out of context, has acquired a dynamism and become the justification for recovery by foreign seamen simply on the ground that convenient 'registry' somehow circumvents an obligation that Congress desired to impose on all owners within its jurisdiction.4
24
This underlies today's decision which relies on the fact that Hellenic Lines is an American-based operation and its vessels would be accorded a competitive advantage over American-flag vessels were we to permit petitioners to avoid responsibility under the Jones Act. Liability is only one factor that contributes to the higher cost of operating an American-flag vessel. Indeed, recognizing the insurance factor, it is doubtful that this factor is a significant contribution to the competitive advantage of foreign-flag ships, especially given the higher crew wages (see 46 U.S.C. § 1132 requiring American crews) and construction costs for American-flag ships, which must be built in American yards if they are to participate in the congressional programs specifically designed to offset the higher costs that the Court today takes as justification for displacing settled international principles of choice of law. See, e.g., 46 U.S.C. § 883 (coastwise trade); 46 U.S.C. § 1180 (subsidy). See generally S. Lawrence, United States Merchant Shipping Policies and Politics 61—67 (1966).
25
Even were Jones Act liability a significant uncompensated cost in the operation of an American ship, I could not regard this as a reason for extending Jones Act recovery to foreign seamen when the underlying concern of the legislation before us is the adjustment of the risk of loss between individuals and not the regulation of commerce or competition.
B
26
Today's decision suggests that courts have become mesmerized by contacts, and notwithstanding the purported eschewal of a mechanical application of the Lauritzen test, they have lost sight of the primary purpose of Lauritzen which, as I conceive it, was to reconcile the all-embracing language of the Jones Act with those principles of comity embodied in international and maritime law that are designed to 'foster amicable and workable commercial relations.' 345 U.S., at 582, 73 S.Ct. at 928. Lauritzen, properly understood, should, I submit, be taken to focus the judicial inquiry on the purpose of Congress and the presence or absence of an adequate basis for the assertion of American jurisdiction, when that purpose may be furthered by application of the statute in the circumstances presented.
27
Where, as in the case before us, the injured plaintiff has no American ties, the inquiry should be directed toward determining what jurisdiction is primarily concerned with plaintiff's welfare and whether that jurisdiction's rule may, consistent with those notions of due process that determine the presence of legislative jurisdiction, govern recovery. In the case before us, there is no reason to disregard either the law of the flag or plaintiff's contractual undertaking to accept Greek law as controlling, thereby in effect assuming that he signed articles under conditions that would justify disregarding the contractual choice of law. Rhoditis is a Greek national who resides in Greece. Under these circumstances Greek law provides the appropriate rule.
28
I would reverse the judgment of the Court of Appeals, and hold that the Jones Act affords no redress to this seaman.
1
The Act provides:
'Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.' 41 Stat. 1007, 46 U.S.C. § 688.
2
The other petitioner, Universal Cargo Carriers Inc., is a Panamanian corporation which owns the Hellenic Hero; but Hellenic Hero is managed by petitioner Hellenic Lines Ltd., a Greek corporation.
3
Pericles owns in excess of 95% of the stock of both petitioners.
4
Judge Medina speaking for the Court of Appeals for the Second Circuit, correctly stated the problem in the following words:
'(T)he decisional process of arriving at a conclusion on the subject of the application of the Jones Act involves the ascertainment of the facts or groups of facts which constitute contacts between the transaction involved in the case and the United States, and then deciding whether or not they are substantial. Thus each factor is to be 'weighed' and 'evaluated' only to the end that, after each factor has been given consideration, a rational and satisfactory conclusion may be arrived at on the question of whether all the factors present add up to the necessary substantiality. Moreover, each factor, or contact, or group of facts must be tested in the light of the underlying objective, which is to effectuate the liberal purposes of the Jones Act.' Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 441.
5
'The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all 'persons' and guard against any encroachment on those rights by federal or state authority.' Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 1455, 89 L.Ed. 2103 (concurring opinion).
1
The principle of deference to the law of the flag had its origins in the fiction that the vessel was an extension of the sovereign territory of the country whose ensign it flew. As Mr. Justice Jackson noted in Lauritzen, the principle draws strength from the practical necessity of providing predictable rules for shipboard conduct, rules that would, under conventional territorial principles, be changing as the vessel traveled over the high seas and through different territorial waters. 'It is true that the criminal jurisdiction of the United States is in general based on the territorial principle, and criminal statutes of the United States are not by implication given an extra territorial effect. (Citations omitted.) But that principle has never been thought to be applicable to a merchant vessel which, for purposes of the jurisdiction of the courts of the sovereignty whose flag it flies to punish crimes committed upon it, is deemed to be a part of the territory of that sovereignty, and not to lose that character when in navigable waters within the territorial limits of another sovereignty. * * *' United States v. Flores, 289 U.S., at 155—156, 53 S.Ct. at 584—585. See Restatement, Conflict of Laws §§ 405, 406 (1934).
2
There must be at least some minimal contact between a State and the regulated subject before it can, consistently with the requirements of due process, exercise legislative jurisdiction. See, e.g., Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930); Watson v. Employers Liability Assurance Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74 (1954).
3
In Skiriotes the precise question was whether a State could prohibit by statute the use of diving equipment for the purpose of gathering deep sea sponges in waters within its territorial limits. This Court sustained the State's legislative jurisdiction to regulate the conduct of its own citizens. Thus the Court said: 'Even if it were assumed that the locus of the offense was outside the territorial waters of Florida, it would not follow that the State could not prohibit its own citizens from the use of the * * * divers' equipment at that place. No question as to the authority of the United States over these waters, or over the sponge fishery, is here involved. No right of a citizen of another State is here asserted. The question is solely between appellant and his own State. * * * If the United States may control the conduct of its citizens upon the high seas, we see no reason why the State of Florida may not likewise govern the conduct of its citizens upon the high seas with respect to matters in which the State has a legitimate interest * * *.' 313 U.S., at 76—77, 61 S.Ct. at 929.
Steele involved the question of whether a district court 'has jurisdiction to award relief to an American corporation against acts of trade-mark infringement and unfair competition consummated in a foreign country by a citizen and resident of the United States.' 344 U.S., at 281, 73 S.Ct. at 253. There was no question that plaintiff had suffered the injury and American commerce had been adversely affected in the way that the Lanham Act sought to prevent. The court concluded that in such circumstances liability could not be avoided simply by performing the forbidden acts in a foreign territory. Cf. Continental Ore Co. v. Union Carbide, 370 U.S. 690, 704, 82 S.Ct. 1404, 1413, 8 L.Ed.2d 777 (1962); United States v. Sisal Sales Corp., 274 U.S. 268, 47 S.Ct. 592, 71 L.Ed. 1042 (1927).
4
The Second Circuit quite properly relied on the beneficial ownership of the ship to permit recovery in Bartholomew v. Universe Tankships, Inc., 263 F.2d 437 (C.A.2d Cir. 1959), where the injured plaintiff was an American domiciliary. Bartholomew, unfortunately, apprehended what I conceive to be unintended reverberations in Justice Jackson's Lauritzen language which it all but echoed: 'looking through the facade of foreign registration and incorporation to the American ownership * * * is essential unless the purposes of the Jones Act are to be frustrated by American shipowners intent upon evading their obligations under the law by the simple expedient of incorporating in a foreign country and registering their vessels under a foreign flag.' 263 F.2d 437, 442.
| 78
|
398 U.S. 319
90 S.Ct. 1730
26 L.Ed.2d 262
Dennis Mullene MOON, Petitioner,v.State of MARYLAND.
No. 267.
Argued April 22, 1970.
Decided June 8, 1970.
Robert Anthony Jacques, Rockville, Md., for petitioner.
Edward F. Borgerding, Baltimore, Md., for respondent.
PER CURIAM.
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?' This was the question the Court dealt with last Term in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. We held in that case that there exists no absolute constitutional bar to the imposition of a harsher sentence upon retrial, but that due process '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.' Id., at 725, 89 S.Ct. at 2080. 'In order to assure the absence of such a motivation,' we held 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.' Id., at 726, 89 S.Ct. at 2081. The Pearce case was decided on June 23, 1969.
2
In the present case the petitioner was found guilty of armed robbery by a Maryland jury and sentenced by the trial judge to 12 years' imprisonment. The conviction was set aside on appeal by the Maryland Court of Appeals. At a second trial for the same offense in 1966 the petitioner was again convicted, and this time the trial judge imposed a sentence of 20 years' imprisonment, less full credit for time served under the original sentence. This second conviction was affirmed on appeal. 250 Md. 468, 243 A.2d 564. We granted certiorari, 395 U.S. 975, 89 S.Ct. 2135, 23 L.Ed.2d 764, requesting counsel to brief and argue the question of the retroactivity of North Carolina v. Pearce, supra.
3
The facts that have emerged since the grant of certiorari impel us to dismiss the writ as improvidently granted. As an appendix to its brief, the respondent has filed an affidavit of the judge who presided at the second trial, setting out in detail the reasons he imposed the 20-year prison sentence. Those reasons clearly include 'objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.' But the dispositive development is that counsel for the petitioner has now made clear that there is no claim in this case that the due process standard of Pearce was violated. As counsel forthrightly stated in the course of oral argument, 'I have never contended that Judge Pugh was vindictive.'
4
Accordingly, the writ is dismissed as improvidently granted.
5
Mr. Justice BLACK concurs in the result.
6
Mr. Justice HARLAN would reverse the judgment below based on his separate opinions in Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1037, and in North Carolina v. Pearce, 395 U.S. 711, 744, 89 S.Ct. 2072, 2085.
7
Mr. Justice MARSHALL took no part in the decision of this case.
8
Mr. Justice DOUGLAS, dissenting.
9
Petitioner was first convicted of armed robbery in 1964 and received a 12-year sentence. On appeal the judgment was reversed. He was tried again in 1966 for armed robbery, again convicted, and this time received a sentence of 20 years. Under Md.Ann.Code, Art. 27, § 488 (1967 Repl. Vol.), the maximum punishment possible was 20 years. As I stated in my separate opinion in North Carolina v. Pearce, 395 U.S. 711, 726, 727, 89 S.Ct. 2089: 'He (the defendant) risks the maximum permissible punishment when first tried. That risk having been faced once need not be faced again.' That is the respect I think is due the constitutional guarantee against double jeopardy.
10
I would reverse the judgment below.
| 01
|
398 U.S. 427
90 S.Ct. 1763
26 L.Ed.2d 378
Charlene MITCHELL et al., Appellants,v.Joseph L. DONOVAN, etc., et al.
No. 726.
Argued April 21, 1970.
Decided June 15, 1970.
Lynn S. Castner, Minneapolis, Minn., for appellants.
Richard H. Kyle, St. Paul, Minn., for appellees.
PER CURIAM.
1
The appellants are the 1968 Communist Party candidates for President and Vice President of the United States, various Minnesota voters who alleged a desire to vote for these candidates, and the Communist Parties of the United States and of Minnesota. The appellant candidates obtained petitions containing the requisite number of names and asked the Secretary of State of Minnesota to place them on the ballot for the 1968 election. The Secretary denied the request, relying upon an opinion by the Attorney General of the State to the effect that placing Communist Party candidates on the ballot would violate the Federal Communist Control Act of 1954, 68 Stat. 775, 50 U.S.C. §§ 841, 842, which declares that the Communist Party 'should be outlawed,' and purports to strip it of all 'rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof, * * *'
2
The appellants brought an action in the the United States District Court for the District of Minnesota seeking a declaration that the Communist Control Act was constitutionally invalid and praying for a temporary restraining order and permanent injunction requiring the Secretary to include the names of the appellant candidates on the November 1968 ballot. Because of the appellants' request for injunctive relief based upon a claim that a federal statute was unconstitutional, a three-judge District Court was impaneled pursuant to 28 U.S.C. § 2282. The three-judge court noted that time was short before the election; that the equities favored the appellants; that the United States had taken the position in an amicus brief that the Communist Control Act did not bar the placement of Communist Party candidates upon the ballot; and that if the Act did apply in the manner asserted by the State, there would be 'grave doubts' as to its constitutionality. Accordingly, without deciding the merits of the appellants' claims, the court ordered that the names of the appellant candidates be placed on the November 1968 ballot. 290 F.Supp. 642. The candidates received the votes of 415 Minnesotans in that election.
3
After the election, the appellants moved to amend the complaint, alleging that the Communist Party intended to run candidates in future elections in Minnesota and, on information and belief, that Minnesota would adhere to its position that the Communist Control Act barred placing these candidates on the ballot. The District Court allowed the amendment of the complaint. It held that the prayer for injunctive relief, which referred only to the 1968 election and requested no injunction as to future conduct, had been rendered moot by the passing of that election. As to the prayer for a declaratory judgment striking down the Communist Control Act, the court found no present case or controversy. In the court's view it was not sufficiently certain that the Communist Party would run candidates in the future or that Minnesota would adhere to its construction of the federal statute, to take the case out of the realm of the hypothetical. It therefore dismissed the complaint. 300 F.Supp. 1145.
4
The appellants brought a direct appeal to this Court under 28 U.S.C. § 1253, which provides:
5
'Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.'
6
The appellees moved to dismiss the appeal on the ground that the order complained of was not one 'granting or denying * * * an interlocutory or permanent injunction.' We noted probable jurisdiction, 396 U.S. 1000, 90 S.Ct. 566, 24 L.Ed.2d 422. The appellees have persisted in their claim that the Court lacks jurisdiction to consider this appeal, and after hearing oral argument we have concluded that they are right.
7
The order appealed from does no more than deny the appellants a declaratory judgment striking down the Communist Control Act. The only injunction ever requested by the appellants was one ordering the names of the Communist Party candidates to be placed on the ballot for the November 1968 election. That injunction was granted, and no appeal was taken by the state officials. As is plain from the opening words of its opinion in the present proceeding, the District Court recognized that no request for injunctive relief was before it: 'We concern ourselves here with propriety of entertaining that portion of plaintiffs' complaint seeking declaratory relief * * *.' 300 F.Supp., at 1146.
8
That leaves us with the question whether an order granting or denying only a declaratory judgment may be appealed to this Court under § 1253. In a recent case, Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806, we gave a negative answer to that question, and we adhere to that decision. Section 1253 by its terms grants this Court jurisdiction only of appeals from orders granting or denying injunctions. While there are similarities between injunctions and declaratory judgments, there are also important differences. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154—155, 83 S.Ct. 554, 9 L.Ed.2d 644; cf. Zwickler v. Koota, 389 U.S. 241, 254, 88 S.Ct. 391, 19 L.Ed.2d 444. The provisions concerning three-judge courts, including the provisions for direct appeal to this Court, antedate the Declaratory Judgment Act of 1934,1 but Congress substantially amended the three-judge court provisions in 1937 and 1948 without providing for such direct appeals from orders granting or denying declaratory judgments.2
9
We have stressed that the three-judge-court legislation is not 'a measure of broad social policy to be construed with great liberality,' but is rather 'an enactment technical in the strict sense of the term and to be applied as such.' Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800. Thus this Court's jurisdiction under that legislation is to be literally construed. It would hardly be faithful to such a construction to read the statutory term 'injunction' as meaning 'declaratory judgment.'3
10
We conclude, therefore, that this Court lacks jurisdiction of the appeal. A simple dismissal for want of jurisdiction, however, would leave the appellants with no recourse to appellate review, because they brought their appeal here rather than to the Court of Appeals and the time for appealing to the Court of Appeals has long since passed. Accordingly, as in other cases where an appeal was improperly brought to this Court rather than the Court of Appeals,4 we vacate the judgment below and remand the case so that the District Court may enter a fresh order dismissing the complaint, thus affording the appellants an opportunity to take a timely appeal to the Court of Appeals for the Eighth Circuit.
11
It is so ordered.
12
Judgment vacated and case remanded.
13
Mr. Justice BLACK concurs in the result.
14
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
15
Mr. Justice DOUGLAS, dissenting.
16
I agree with the District Court that the case is too hypothetical to qualify as a 'case' or 'controversy' within the meaning of Article III and I would affirm. I do not, however, share the aversion to 28 U.S.C. § 1253 which the Court's opinion reflects. I would be hospitable to its aim and purpose as my dissent in Swift & Co. v. Wickham, 382 U.S. 111, 129, 86 S.Ct. 258, 15 L.Ed.2d 194, indicates. The declaratory judgment is, I think, 'an order granting or denying * * * an * * * injunction' within the meaning of § 1253.
17
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644, is not to the contrary. It merely held that is some circumstances 'an action solely for declaratory relief' could be tried before a single judge where the 'relief sought and the order entered affected an Act of Congress in a totally noncoercive fashion.' Id., at 154, 155, 83 S.Ct. at 560. We indicated, however, that a different result would follow 'whenever the operation of a statutory scheme may be immediately disrupted before a final judicial determination of the validity of the trial court's order can be obtained.' Id., at 155, 83 S.Ct. at 560.
18
The Kennedy case, in other words, involved solely the question whether a three-judge court need always be summoned where no injunctive relief was asked or contemplated. The answer involved an analysis of 28 U.S.C. § 2281 and § 2282. We are now concerned with s 1253 and the meaning of 'an order granting or denying * * * an * * * injunction.' The declaratory judgment may well contain a 'thou shalt not' as commanding as any injunction. Or its refusal may be as definitive an adjudication as the refusal of an injunction. Ordinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid.
19
Where, as here, the three-judge court was properly convened, I would think that any action it took, which was denying or granting an injunction or its equivalent, would be properly here under 28 U.S.C. § 1253.
1
48 Stat. 955, 28 U.S.C. §§ 2201, 2202.
2
The early history of the three-judge-court statute, then § 266 of the Judicial Code, is summarized in Goldstein v. Cox, 396 U.S. 471, 476—477, 90 S.Ct. 671, 24 L.Ed.2d 663. The 1937 and 1948 amendments, both of which made substantial changes in the statute, appear at 50 Stat. 752 and 62 Stat. 968, respectively.
3
One commentator has argued for the broader construction on grounds of policy and logical symmetry, see Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 13—20, but those arguments should be directed to Congress rather than the courts.
4
Rockefeller v. Catholic Medical Center, supra; Stamler v. Willis, 393 U.S. 407, 89 S.Ct. 677, 21 L.Ed.2d 627; Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643; Phillips v. United States, supra.
| 89
|
398 U.S. 333
90 S.Ct. 1792
26 L.Ed.2d 308
Elliott Ashton WELSH, II, Petitioner,v.UNITED STATES.
No. 76.
Argued Jan. 20, 1970.
Decided June 15, 1970.
[Syllabus from pages 333-334 intentionally omitted]
J. B. Tietz, Los Angeles, Cal., for petitioner.
Solicitor Gen. Erwin N. Griswold for respondent.
Mr. Justice BLACK announced the judgment of the Court and delivered an opinion in which Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join.
1
The petitioner, Elliott Ashton Welsh II, was convicted by a United States District Judge of refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462(a), and was on June 1, 1966, sentenced to imprisonment for three years. One of petitioner's defenses to the prosecution was that § 6(j) of the Universal Military Training and Service Act exempted him from combat and noncombat service because he was 'by reason of religious training and belief * * * conscientiously opposed to participation in war in any form.'1 After finding that there was no religious basis for petitioner's conscientious objector claim, the Court of Appeals, Judge Hamley dissenting, affirmed the conviction. 404 F.2d 1078 (1968). We granted certiorari chiefly to review the contention that Welsh's conviction should be set aside on the basis of this Court's decision in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). 396 U.S. 816, 90 S.Ct. 53, 24 L.Ed.2d 67 (1969). For the reasons to be stated, and without passing upon the constitutional arguments that have been raised, we vote to reverse this conviction because of its fundamental inconsistency with United States v. Seeger, supra.
2
The controlling facts in this case are strikingly similar to those in Seeger. Both Seeger and Welsh were brought up in religious homes and attended church in their childhood, but in neither case was this church one which taught its members not to engage in war at any time for any reason. Neither Seeger nor Welsh continued his childhood religious ties into his young manhood, and neither belonged to any religious group or adhered to the teachings of any organized religion during the period of his involvement with the Selective Service System. At the time of registration for the draft, neither had yet come to accept pacifist principles. Their views on war developed only in subsequent years, but when their ideas did fully mature both made application to their local draft boards for conscientious objector exemptions from military service under § 6(j) of the Universal Military Training and Service Act. That section then provided, in part:2
3
'Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.'
4
In filling out their exemption applications both Seeger and Welsh were unable to sign the statement that, as printed in the Selective Service form, stated 'I am, by reason of my religious training and belief, conscientiously opposed to participation in war in any form.' Seeger could sign only after striking the words 'training and' and putting quotation marks around the word 'religious.' Welsh could sign only after striking the words 'my religious training and.' On those same applications, neither could definitely affirm or deny that he believed in a 'Supreme Being,' both stating that they preferred to leave the question open.3 But both Seeger and Welsh affirmed on those applications that they held deep conscientious scruples against taking part in wars where people were killed. Both strongly believed that killing in war was wrong, unethical, and immoral, and their consciences forbade them to take part in such an evil practice. Their objection to participating in war in any form could not be said to come from a 'still, small voice of conscience'; rather, for them that voice was so loud and insistent that both men preferred to go to jail rather than serve in the Armed Forces. There was never any question about the sincerity and depth of Seeger's convictions as a conscientious objector, and the same is true of Welsh. In this regard the Court of Appeals noted, '(t)he government concedes that (Welsh's) beliefs are held with the strength of more traditional religious convictions.' 404 F.2d, at 1081. But in both cases the Selective Service System concluded that the beliefs of these men were in some sense insufficiently 'religious' to qualify them for conscientious objector exemptions under the terms of § 6(j). Seeger's conscientious objector claim was denied 'solely because it was not based upon a 'belief in a relation to a Supreme Being' as required by § 6(j) of the Act,' United States v. Seeger, 380 U.S. 163, 167, 85 S.Ct. 850, 854, 13 L.Ed.2d 733 (1965), while Welsh was denied the exemption because his Appeal Board and the Department of Justice hearing officer 'could find no religious basis for the registrant's beliefs, opinions and convictions.' App. 52. Both Seeger and Welsh subsequently refused to submit to induction into the military and both were convicted of that offense.
5
In Seeger the Court was confronted, first, with the problem that § 6(j) defined 'religious training and belief' in terms of a 'belief in a relation to a Supreme Being * * *,' a definition that arguably gave a preference to those who believed in a conventional God as opposed to those who did not. Noting the 'vast panoply of beliefs' prevalent in our country, the Court construed the congressional intent as being in 'keeping with its long-established policy of not picking and choosing among religious beliefs,' id., at 175, 85 S.Ct., at 859, and accordingly interpreted 'the meaning of religious training and belief so as to embrace all religions * * *.' Id., at 165, 85 S.Ct., at 854. (Emphasis added.) But, having decided that all religious conscientious objectors were entitled to the exemption, we faced the more serious problem of determining which beliefs were 'religious' within the meaning of the statute. This question was particularly difficult in the case of Seeger himself. Seeger stated that his was a 'belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed.' 380 U.S., at 166, 85 S.Ct., at 854. In a letter to his draft board, he wrote:
6
'My decision arises from what I believe to be considerations of validity from the standpoint of the welfare of humanity and the preservation of the democratic values which we in the United States are struggling to maintain. I have concluded that war, from the practical standpoint, is futile and self-defeating, and that from the more important moral standpoint, it is unethical.' 326 F.2d 846, 848 (2 Cir. 1964).
7
On the basis of these and similar assertions, the Government argued that Seeger's conscientious objection to war was not 'religious' but stemmed from 'essentially political, sociological, or philosophical views or a merely personal moral code.'
8
In resolving the question whether Seeger and the other registrants in that case qualified for the exemption, the Court stated that '(the) task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.' 380 U.S., at 185, 85 S.Ct., at 863. (Emphasis added.) The reference to the registrant's 'own scheme of things' was intended to indicate that the central consideration in determining whether the registrant's beliefs are religious is whether these beliefs play the role of a religion and function as a religion in the registrant's life. The Court's principal statement of its test for determining whether a conscientious objector's beliefs are religious within the meaning of § 6(j) was as follows:
9
'The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.' 380 U.S., at 176, 85 S.Ct., at 859.
10
The Court made it clear that these sincere and meaningful beliefs that prompt the registrant's objection to all wars need not be confined in either source or content to traditional or parochial concepts of religion. It held that § 6(j) 'does not distinguish between externally and internally derived beliefs,' id., at 186, 85 S.Ct., at 864 and also held that 'intensely personal' convictions which some might find 'incomprehensible' or 'incorrect' come within the meaning of 'religious belief' in the Act. Id., at 184—185, 85 S.Ct., at 863—864. What is necessary under Seeger for a registrant's conscientious objection to all war to be 'religious' within the meaning of § 6(j) is that this opposition to war stem from the registrant's moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions. Most of the great religions of today and of the past have embodied the idea of a Supreme Being or a Supreme Reality—a God—who communicates to man in some way a consciousness of what is right and should be done, of what is wrong and therefore should be shunned. If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual 'a place parallel to that filled by * * * God' in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a 'religious' conscientious objector exemption under § 6(j) as is someone who derives his conscientious opposition to war from traditional religious convictions.
11
Applying this standard to Seeger himself, the Court noted the 'compulsion to 'goodness" that shaped his total opposition to war, the undisputed sincerity with which he held his views, and the fact that Seeger had 'decried the tremendous 'spiritual' price man must pay for his willingness to destory human life.' 380 U.S., at 186—187, 85 S.Ct., at 864. The Court concluded:
12
'We think it clear that the beliefs which prompted his objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers.' 380 U.S., at 187, 85 S.Ct. at 864—865.
13
Accordingly, the Court found that Seeger should be granted conscientious objector status.
14
In the case before us the Government seeks to distinguish our holding in Seeger on basically two grounds, both of which were relied upon by the Court of Appeals in affirming Welsh's conviction. First, it is stressed that Welsh was far more insistent and explicit than Seeger in denying that his views were religious. For example, in filling out their conscientious objector applications, Seeger put quotation marks around the word 'religious,' but Welsh struck the word 'religious' entirely and later characterized his beliefs as having been formed 'by reading in the fields of history and sociology.' App. 22. The Court of Appeals found that Welsh had 'denied that his objection to war was premised on religious belief' and concluded that '(t)he Appeal Board was entitled to take him at his word.?' 404 F.2d at 1082. We think this attempt to distinguish Seeger fails for the reason that it places undue emphasis on the registrant's interpretation of his own beliefs. The Court's statement in Seeger that a registrant's characterization of his own belief as 'religious' should carry great weight, 380 U.S., at 184, 85 S.Ct., at 863, does not imply that his declaration that his views are nonreligious should be treated similarly. When a registrant states that his objections to war are 'religious,' that information is highly relevant to the question of the function his beliefs have in his life. But very few registrants are fully aware of the broad scope of the word 'religious' as used in § 6(j), and accordingly a registrant's statement that his beliefs are nonreligious is a highly unreliable guide for those charged with administering the exemption. Welsh himself presents a case in point. Although he originally characterized his beliefs as nonreligious, he later upon reflection wrote a long and thoughtful letter to his Appeal Board in which he declared that his beliefs were 'certainly religious in the ethical sense of the word.' He explained:
15
'I believe I mentioned taking of life as not being, for me, a religious wrong. Again, I assumed Mr. (Bradey (the Department of Justice hearing officer)) was using the word 'religious' in the conventional sense, and, in order to be perfectly honest did not characterize my belief as 'religious." App. 44.
16
The Government also seeks to distinguish Seeger on the ground that Welsh's views, unlike Seeger's, were 'essentially political, sociological, or philosophical views or a merely personal moral code.' As previously noted, the Government made the same argument about Seeger, and not without reason, for Seeger's views had a substantial political dimension. Supra, at 338-339. In this case, Welsh's conscientious objection to war was undeniably based in part on his perception of world politics. In a letter to his local board, he wrote:
17
'I can only act according to what I am and what I see. And I see that the military complex wastes both human and material resources, that it fosters disregard for (what I consider a paramount concern) human needs and ends; I see that the means we employ to 'defend' our 'way of life' profoundly change that way of life. I see that in our failure to recognize the political, social, and economic realities of the world, we, as a nation, fail our responsibility as a nation.' App. 30.
18
We certainly do not think that § 6(j)'s exclusion of those persons with 'essentially political, sociological, or philosophical views or a merely personal moral code' should be read to exclude those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy. The two groups of registrants that obviously do fall within these exclusions from the exemption are those whose beliefs are not deeply held and those whose objection to war does not rest at all upon moral, ethical, or religious principle but instead rests solely upon considerations of policy, pragmatism, or expediency. In applying § 6(j)'s exclusion of those whose views are 'essentially political, sociological, or philosophical' or of those who have a 'merely personal moral code,' it should be remembered that these exclusions are definitional and do not therefore restrict the category of persons who are conscientious objectors by 'religious training and belief.' Once the Selective Service System has taken the first step and determined under the standards set out here and in Seeger that the registrant is a 'religious' conscientious objector, it follows that his views cannot be 'essentially political, sociological, or philosophical.' Nor can they be a 'merely personal moral code.' See United States v. Seeger, 380 U.S., at 186, 85 S.Ct. at 864.
19
Welsh stated that he 'believe(d) the taking of life—anyone's life—to be morally wrong.' App. 44. In his original conscientious objector application he wrote the following:
20
'I believe that human life is valuable in and of itself; in its living; therefore I will not injure or kill another human being. This belief (and the corresponding 'duty' to abstain from violence toward another person) is not 'superior to those arising from any human relation.' On the contrary: it is essential to every human relation. I cannot, therefore, conscientiously comply with the Government's insistence that I assume duties which I feel are immoral and totally repugnant.' App. 10.
21
Welsh elaborated his beliefs in later communications with Selective Service officials. On the basis of these beliefs and the conclusion of the Court of Appeals that he held them 'with the strength of more traditional religious convictions,' 404 F.2d, at 1081, we think Welsh was clearly entitled to a conscientious objector exemption. Section 6(j) requires no more. That section exempts from military service all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.
22
The judgment is reversed.
23
Reversed.
24
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
25
Mr. Justice HARLAN, concurring in the result.
26
Candor requires me to say that I joined the Court's opinion in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), only with the gravest misgivings as to whether it was a legitimate exercise in statutory construction, and today's decision convinces me that in doing so I made a mistake which I should now acknowledge.1
27
In Seeger the Court construed § 6(j) of the Universal Military Training and Service Act so as to sustain a conscientious objector claim not founded on the theistic belief. The Court, in treating with the provision of the statute that limited conscientious objector claims to those stemming from belief in 'a Supreme Being,' there said: 'Congress, in using the expression 'Supreme Being' rather than the designation 'God,' was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views,' and held that the test of belief "in a relation to a Supreme Being' is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.' 380 U.S., at 165—166, 85 S.Ct., at 854. Today the prevailing opinion makes explicit its total elimination of the statutorily required religious content for a conscientious objector exemption. The prevailing opinion now says: 'If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time' (emphasis added), he qualifies for a § 6(j) exemption.
28
In my opinion, the liberties taken with the statute both in Seeger and today's decision cannot be justified in the name of the familiar doctrine of construing federal statutes in a manner that will avoid possible constitutional infirmities in them. There are limits to the permissible application of that doctrine, and, as I will undertake to show in this opinion, those limits were crossed in Seeger, and even more apparently have been exceeded in the present case. I therefore find myself unable to escape facing the constitutional issue that this case squarely presents: whether § 6(j) in limiting this draft exemption to those opposed to war in general because of theistic beliefs runs afoul of the religious clauses of the First Amendment. For reasons later appearing I believe it does, and on that basis I concur in the judgment reversing this conviction, and adopt the test announced by Mr. Justice BLACK, not as a matter of statutory construction, but as the touchstone for salvaging a congressional policy of long standing that would otherwise have to be nullified.
29
* Section 6(j) provided during the period relevant to this case:
30
'Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.' Universal Military Training and Service Act of 1948, § 6(j), 62 Stat. 612, 50 U.S.C.App. § 456(j).
31
The issue is then whether Welsh's opposition to war is founded on 'religious training and belief' and hence 'belief in a relation to a Supreme Being' as Congress used those words. It is of course true that certain words are more plastic in meaning than others. 'Supreme Being' is a concept of theology and philosophy, not a technical term, and consequently may be, in some circumstances, capable of bearing a contemporary construction as notions of theology and philosophy evolve. Cf. United States v. Storrs, 272 U.S. 652, 47 S.Ct. 221, 71 L.Ed. 460 (1926). This language appears, however, in a congressional enactment; it is not a phrase of the Constitution, like 'religion' or 'speech,' which this Court is freer to construe in light of evolving needs and circumstances. Cf. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), and my concurring opinion in Estes v. Texas, 381 U.S. 532, 595—596, 85 S.Ct. 1628, 1666—1667, 14 L.Ed.2d 543 (1965), and my opinion concurring in the judgment in Garner v. Louisiana, 368 U.S. 157, 185, 82 S.Ct. 248, 263, 7 L.Ed.2d 207 (1961). Nor is it so broad a statutory directive, like that of the Sherman Act, that we may assume that we are free to adopt and shape policies limited only by the most general statement of purpose. Cf. e.g., Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). It is Congress' will that must here be divined. In that endeavor it is one thing to give words a meaning not necessarily envisioned by Congress so as to adapt them to circumstances also uncontemplated by the legislature in order to achieve the legislative policy, Rector, etc., of Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892); it is a wholly different matter to define words so as to change policy. The limits of this Court's mandate to stretch concededly elastic congressional language are fixed in all cases by the context of its usage and legislative history, if available, that are the best guides to congressional purpose and the lengths to which Congress enacted a policy. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970).2 The prevailing opinion today snubs both guidelines for it is apparent from a textual analysis of § 6(j) and the legislative history that the words of this section, as used and understood by Congress, fall short of enacting the broad policy of exempting from military service all individuals who in good faith oppose all war.
32
* The natural reading of § 6(j), which quite evidently draws a distinction between theistic and nontheistic religions, is the only one that is consistent with the legislative history. Section 5(g) of the 1940 Draft Act exampted individuals whose opposition to war could be traced to 'religious training and belief,' 54 Stat. 889, without any allusion to a Supreme Being. In United States v. Kauten, 133 F.2d 703 (C.A.2d Cir. 1943), the Second Circuit, speaking through Judge Augustus Hand, broadly construed 'religious training and belief' to include a 'belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets.' 133 F.2d, at 708. The view was further elaborated in subsequent decisions of the Second Circuit, see United States ex rel. Phillips v. Downer, 135 F.2d 521 (C.A.2d Cir. 1943); United States ex rel. Reel v. Badt, 141 F.2d 845 (C.A.2d Cir. 1944). This expansive interpretation of § 5(g) was rejected by a divided Ninth Circuit in Berman v. United States, 156 F.2d 377, 380—381 (1946):
33
'It is our opinion that the expression 'by reason of religious training and belief' * * * was written into the statute for the specific purpose of distinguishing between a conscientious social belief, or a sincere devotion to a high moralistic philosophy, and one based upon an individual's belief in his responsibility to an authority higher and beyond any worldly one.
34
'(I)n United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 578, 75 L.Ed. 1302, Mr. (Chief) Justice Hughes in his dissent * * * said: 'The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation." The unmistakable and inescapable thrust of the Berman opinion, that religion is to be conceived in theistic terms, is rendered no less straightforward by the court's elaboration on the difference between beliefs held as a matter of moral or philosophical conviction and those inspired by religious upbringing and adherence to faith.
35
'There are those who have a philosophy of life, and who live up to it. There is evidence that this is so in regard to appellant. However, no matter how pure and admirable his standard may be, and no matter how devotedly he adheres to it, his philosophy and morals and social policy without the concept of deity cannot be said to be religion in the sense of that term as it is used in the statute. It is said in State v. Amana Society, 132 Iowa 304, 109 N.W. 894, 898 * * *: 'Surely a scheme of life designed to obviate such results (man's inhumanity to man), and by removing temptations, and all the inducements of ambition and avarice, to nurture the virtues of unselfishness, patience, love, and service, ought not to be denounced as not pertaining to religion when its devotee regards it as an essential tenet of their (sic) religious faith." (Emphasis of Court of Appeals.) Ibid.
36
In the wake of this intercircuit dialogue, crystallized by the dissent in Berman which espoused the Second Circuit interpretation in Kauten, supra, Congress enacted § 6(j) in 1948. That Congress intended to anoint the Ninth Circuit's interpretation of § 5(g) would seem beyond question in view of the similarity of the statutory language to that used by Chief Justice Hughes in his dissenting opinion in Macintosh and quoted in Berman and the Senate report. The first half of the new language was almost word for word that of Chief Justice Hughes in Macintosh, and quoted by the Berman majority;3 and the Senate Committee report adverted to Berman, thus foreclosing any possible speculation as to whether Congress was aware of the possible alternatives. The report stated:
37
'This section reenacts substantially the same provisions as were found in subsection 5(g) of the 1940 act. Exemption extends to anyone who, because of religious training and belief in his relationship to a Supreme Being, is conscientiously opposed to combatant military service or to both combatant and non-combatant military service. (See United States v. Berman (sic) 156 F.(2d) 377, certiorari denied, 329 U.S. 795 (67 S.Ct. 480, 91 L.Ed. 680).)' S.Rep. No. 1268, 80th Cong., 2d Sess., 14.4
B
38
Against his legislative history it is a remarkable feat of judicial surgery to remove, as did Seeger, the theistic requirement of § 6(j). The prevailing opinion today, however, in the name of interpreting the will of Congress, has performed a lobotomy and completely transformed the statute by reading out of it any distinction between religiously acquired beliefs and those deriving from 'essentially political, sociological, or philosophical views or a merely personal moral code.'
39
In the realm of statutory construction it is appropriate to search for meaning in the congressional vocabulary in a lexicon most probably consulted by Congress. Resort to Webster's5 reveals that the meanings of 'religion' are: '1. The service and adoration of God or a god as expressed in forms of worship, in obedience to divine commands * * *; 2. The state of life of a religious * * *; 3. One of the systems of faith and worship; a form of theism; a religious faith * * *; 4. The profession or practice of religious beliefs; religious observances collectively; pl. rites; 5. Devotion or fidelity; * * *conscientiousness; 6. An apprehension, awareness, or conviction of the existence of a supreme being, or more widely, of supernatural powers or influences controlling one's own, humanity's, or nature's destiny; also, such an apprehension, etc., accompanied by or arousing reverence, love, gratitude, the will to obey and serve, and the like * * *.' (Emphasis added.)
40
Of the five pertinent definitions four include the notion of either a Supreme Being or a cohesive, organized group pursuing a common spiritual purpose together. While, as the Court's opinion in Seeger points out, these definitions do not exhaust the almost infinite and sophisticated possibilities for defining 'religion,' there is strong evidence that Congress restricted, in this instance, the word to its conventional sense. That it is difficult to plot the semantic penumbra of the word 'religion' does not render this term so plastic in meaning that the Court is entitled, as matter of statutory construction, to conclude that any asserted and strongly held belief satisfies its requirements. It must be recognized that the permissible shadow of connotation is limited by the context in which words are used. In § 6(j) Congress has included not only a reference to a Supreme Being but has also explicitly contrasted 'religious' beliefs with those that are 'essentially political, sociological, or philosophical' and a 'personal moral code.' This exception certainly is, at the very least, the statutory boundary, the 'asymptote,' of the word 'religion.'6
41
For me this dichotomy reveals that Congress was not embracing that definition of religion that alone speaks in terms of 'devotion or fidelity' to individual principles acquired on an individualized basis but was adopting, at least, those meanings that associate religion with formal, organized worship or shared beliefs by a recognizable and cohesive group. Indeed, this requirement was explicit in the predecessor to the 1940 statute. The Draft Act of 1917 conditioned conscientious objector status on membership in or affiliation with a 'well-recognized religious sect or organization (then) organized and existing and whose existing creed or principles forb(ade) its members to participate in war in any form * * *.' § 4, 40 Stat. 78. That § 5(g) of the 1940 Act eliminated the affiliation and membership requirement does not, in my view, mean as the Court, in effect, concluded in Seeger that Congress was embracing a secular definition of religion.7
42
Unless we are to assume an Alice-in-Wonderland world where words have no meaning, I think it fair to say that Congress' choice of language cannot fail to convey to the discerning reader the very policy choice that the prevailing opinion today completely obliterates: that between conventional religions that usually have an organized and formal structure and dogma and a cohesive group identity, even when nontheistic, and cults that represent schools of thought and in the usual case are without formal structure or are, at most, loose and informal associations of individuals who share common ethical, moral, or intellectual views.
II
43
When the plain thrust of a legislative enactment can only be circumvented by distortion to avert an inevitable constitutional collision, it is only by exalting form over substance that one can justify this veering off the path that has been plainly marked by the statute. Such a course betrays extreme skepticism as to constitutionality, and, in this instance, reflects a groping to preserve the conscientious objector exemption at all cost.
44
I cannot subscribe to a wholly emasculated construction of a statute to avoid facing a latent constitutional question, in purported fidelity to the salutary doctrine of avoiding unnecessary resolution of constitutional issues, a principle to which I fully adhere. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). It is, of course, desirable to salvage by construction legislative enactments whenever there is good reason to believe that Congress did not intend to legislate consequences that are unconstitutional, but it is not permissible, in my judgment, to take a lateral step that robs legislation of all meaning in order to avert the collision between its plainly intended purpose and the commands of the Constitution. Cf. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). As the Court stated in Aptheker v. Secretary of State, 378 U.S. 500, 515, 84 S.Ct. 1659, 1668—1669, 12 L.Ed.2d 992 (1964):
45
'It must be remembered that '(a)lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute * * *' or judicially rewriting it. Scales v. United States, 367 U.S., (203) at 211, 81 S.Ct., (1469) at 1477 (6 L.Ed.2d 782). To put the matter another way, this Court will not consider the abstract question of whether Congress might have enacted a valid statute but instead must ask whether the statute that Congress did enact will permissibly bear a construction rendering it free from constitutional defects.'
46
The issue comes sharply into focus in Mr. Justice Cardozo's statement for the Court in Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265 (1933):
47
"A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.' * * * But avoidance of a difficulty will not be pressed to the point of disingenuous evasion. Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power. The problem must be faced and answered.'
48
If an important congressional policy is to be perpetuated by recasting unconstitutional legislation, as the prevailing opinion has done here, the analytically sound approach is to accept responsibility for this decision. Its justification cannot be by resort to legislative intent, as that term is usually employed, but by a different kind of legislative intent, namely the presumed grant of power to the courts to decide whether it more nearly accords with Congress' wishes to eliminate its policy altogether or extend it in order to render what Congress plainly did intend, constitutional. Compare, e.g., Yu Cong. Eng v. Trinidad, 271 U.S. 500, 46 S.Ct. 619, 70 L.Ed. 1059 (1926); United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 (1876), with Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Nat. Life Ins. Co. v. United States, 277 U.S. 508, 48 S.Ct. 591, 72 L.Ed. 968 (1928). I therefore turn to the constitutional question.
III
49
The constitutional question that must be faced in this case is whether a statute that defers to the individual's conscience only when his views emanate from adherence to theistic religious beliefs is within the power of Congress. Congress, of course, could, entirely consistently with the requirements of the Constitution, eliminate all exemptions for conscientious objectors. Such a course would be wholly 'neutral' and, in my view, would not offend the Free Exercise Clause, for reasons set forth in my dissenting opinion in Sherbert v. Verner, 374 U.S. 398, 418, 83 S.Ct. 1790, 1801, 10 L.Ed.2d 965 (1963). See Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 S.Ct. 358, 362, 49 L.Ed. 643 (1905) (dictum); cf. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890); Hamilton v. Board of Regents of University, 293 U.S. 245, 264—265, 55 S.Ct. 197, 204—205, 79 L.Ed. 343 (1934); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879); Kurland, Of Church and State and the Supreme Court, 29 U.Chi.L.Rev. 1 (1961). However, having chosen to exempt, it cannot draw the line between theistic or nontheistic religious beliefs on the one hand and secular beliefs on the other. Any such distinctions are not, in my view, compatible with the Establishment Clause of the First Amendment. See my separate opinion in Walz v. Tax Comm'n, 397 U.S. 664, 694, 90 S.Ct. 1409, 1424, 25 L.Ed. 697 (1970); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); School District of Abington Township v. Schempp, 374 U.S. 203, 305, 83 S.Ct. 1560, 1615, 10 L.Ed.2d 844 (1963) (Goldberg, J., concurring); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); Torcaso v. Watkins, 367 U.S. 488, 495, 81 S.Ct. 1680, 1683, 6 L.Ed.2d 982 (1961); Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953). The implementation of the neutrality principle of these cases requires, in my view, as I stated in Walz v. Tax Comm'n, supra 'an equal protection mode of analysis. The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders. In any particular case the critical question is whether the scope of legislation encircles a class so broad that it can be fairly concluded that (all groups that) could be thought to fall within the natural perimeter (are included).' 397 U.S., at 696, 90 S.Ct., at 1425.
50
The 'radius' of this legislation is the conscientiousness with which an individual opposes war in general, yet the statute, as I think it must be construed, excludes from its 'scope' individuals motivated by teachings of nontheistic religions,8 and individuals guided by an inner ethical voice that bespeaks secular and not 'religious' reflection. It not only accords a preference to the 'religious' but also disadvantages adherents of religions that do not worship a Supreme Being. The constitutional infirmity cannot be cured, moreover, even by an impermissible construction that eliminates the theistic requirement and simply draws the line between religious and nonreligious. This is my view offends the Establishment Clause and is that kind of classification that this Court has condemned. See my separate opinion in Walz v. Tax Comm'n, supra; School District of Abington Township v. Schempp (Goldberg, J., concurring) supra; Engel v. Vitale, supra; Torcaso v. Watkins, supra.
51
If the exemption is to be given application, it must encompass the class of individuals it purports to exclude, those whose beliefs emanate from a purely moral, ethical, or philosophical source.9 The common denominator must be the intensity of moral conviction with which a belief is held.10 Common experience teaches that among 'religious' individuals some are weak and others strong adherents to tenets and this is no less true of individuals whose lives are guided by personal ethical considerations.
52
The Government enlists the Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918), as precedent for upholding the constitutionality of the religious conscientious objector provision. That case involved the power of Congress to raise armies by conscription and only incidentally the conscientious objector exemption. The language emphasized by the Government to the effect that the exemption for religious objectors and ministers constituted neither an establishment nor interference with free exercise of religion can only be considered an afterthought since the case did not involve any individuals who claimed to be nonreligious conscientious objectors.11 This conclusory assertion, unreasoned and unaccompanied by citation, surely cannot foreclose consideration of the question in a case that squarely presents the issue.
53
Other authorities assembled by the Government, far from advancing its case, demonstrate the unconstitutionality of the distinction drawn in § 6(j) between religious and nonreligious beliefs. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 1135, 1144, and 1122, 91 L.Ed. 711, 551, 563, and 536 (1947); the Sunday Closing Law Cases, 366 U.S. 420, 582, 599, and 617, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), all sustained legislation on the premise that it was neutral in its application and thus did not constitute an establishment, notwithstanding the fact that it may have assisted religious groups by giving them the same benefits accorded to nonreligious groups.12 To the extent that Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952), and Sherbert v. Verner, supra, stand for the proposition that the Government may (Zorach), or must (Sherbert), shape its secular programs to accommodate the beliefs and tenets of religious groups, I think these cases unsound.13 See generally Kurland, supra. To conform with the requirements of the First Amendment's religious clauses as reflected in the mainstream of American history, legislation must, at the very least, be neutral. See my separate opinion in Walz v. Tax Comm'n, supra.
IV
54
Where a statute is defective because of underinclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion. Cf. Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239, 52 S.Ct. 133, 76 L.Ed. 265 (1931).14
55
The appropriate disposition of this case, which is a prosecution for refusing to submit to induction and not an action for a declaratory judgment on the constitutionality of § 6(j), is determined by the fact that at the time of Welsh's induction notice and prosecution the Selective Service was, as required by statute, exempting individuals whose beliefs were identical in all respects to those held by petitioner except that they derived from a religious source. Since this created a religious benefit not accorded to petitioner, it is clear to me that this conviction must be reversed under the Establishment Clause of the First Amendment unless Welsh is to go remediless. Cr. Iowa-Des Moines National Bank v. Bennett, supra; Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264 (1931).15
56
This result, while tantamount to extending the statute, is not only the one mandated by the Constitution in this case but also the approach I would take had this question been presented in an action for a declaratory judgment or 'an action in equity where the enforcement of a statute awaits the final determination of the court as to validity and scope.' Smith v. Cahoon, 283 U.S., at 565, 51 S.Ct., at 586.16 While the necessary remedial operation, extension, is more analogous to a graft than amputation, I think the boundaries of permissible choice may properly be considered fixed by the legislative pronouncement on severability.
57
Indicative of the breadth of the judicial mandate in this regard is the broad severability clause, 65 Stat. 83, which provides that '(i)f any provision of this Act or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the Act and of the application of such provision to other persons and circumstances shall not be affected thereby.' While the absence of such a provision would not foreclose the exercise of discretion in determining whether a legislative policy should be repaired or abandoned, cf. United States v. Jackson, 390 U.S. 570, 585, n. 27, 88 S.Ct. 1209, 1218, 20 L.Ed.2d 138 (1968), its existence 'discloses an intention to make the act divisible, and creates a presumption that, eliminating invalid parts, the Legislature would have been satisfied with what remained * * *.' Champlin Rfg. Co. v. Corporation Commission, 286 U.S. 210, 235, 52 S.Ct. 559, 565, 76 L.Ed. 1062 (1932). See also Skinner v. Oklahoma, supra; Nat. Life Ins. Co. v. United States, 277 U.S. 508, 48 S.Ct. 591, 72 L.Ed. 968 (1928).17
58
In exercising the broad discretion conferred by a severability clause it is, of course, necessary to measure the intensity of commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation. Cf. Nat. Life Ins. Co. v. United States, supra (Brandeis, J., dissenting); Dorchy v. Kansas, 264 U.S. 286, 44 S.Ct. 323, 68 L.Ed. 686 (1924).
59
The policy of exempting religious conscientious objectors is one of longstanding tradition in this country and accords recognition to what is, in a diverse and 'open' society, the important value of reconciling individuality of belief with practical exigencies whenever possible. See Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946). It dates back to colonial times and has been perpetuated in state and federal conscription statutes. See Mr. Justice Cardozo's separate opinion in Hamilton v. Board of Regents of University, 293 U.S., at 267, 55 S.Ct., at 206; Macintosh v. United States, 2 Cir., 42 F.2d 845, 847 (1930). That it has been phrased in religious terms reflects, I assume, the fact that ethics and morals, while the concern of secular philosophy, have traditionally been matters taught by organized religion and that for most individuals spiritual and ethical nourishment is derived from that source. It further reflects, I would suppose, the assumption that beliefs emanating from a religious source are probably held with great intensity.
60
When a policy has roots so deeply embedded in history, there is a compelling reason for a court to hazard the necessary statutory repairs if they can be made within the administrative framework of the statute and without impairing other legislative goals, even though they entail, not simply eliminating an offending section, but rather building upon it.18 Thus I am prepared to accept the prevailing opinion's conscientious objector test, not as a reflection of congressional statutory intent but as patch work of judicial making that cures the defect of underinclusion in § 6(j) and can be administered by local boards in the usual course of business.19 Like the prevailing opinion, I also conclude that petitioner's beliefs are held with the required intensity and consequently vote to reverse the judgment of conviction.
61
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, dissenting.
62
Whether or not United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), accurately reflected the intent of Congress in providing draft exemptions for religious conscientious objectors to war, I cannot join today's construction of § 6(j) extending draft exemption to those who disclaim religious objections to war and whose views about war represent a purely personal code arising not from religious training and belief as the statute requires but from readings in philosophy, history, and sociology. Our obligation in statutory construction cases is to enforce the will of Congress, not our own; and as Mr. Justice HARLAN has demonstrated, construing § 6(j) to include Welsh exempts from the draft a class of persons to whom Congress has expressly denied an exemption.
63
For me that conclusion should end this case. Even if Welsh is quite right in asserting that exempting religious believers is an establishment of religion forbidden by the First Amendment, he nevertheless remains one of those persons whom Congress took pains not to relieve from military duty. Whether or not § 6(j) is constitutional, Welsh had no First Amendment excuse for refusing to report for induction. If it is contrary to the express will of Congress to exempt Welsh, as I think it is, then there is no warrant for saving the religious exemption and the statute by redrafting it in this Court to include Welsh and all others like him.
64
If the Constitution expressly provided that aliens should not be exempt from the draft, but Congress purported to exempt them and no others, Welsh, a citizen, could hardly qualify for exemption by demonstrating that exempting aliens is unconstitutional. By the same token, if the Constitutional prohibits Congress from exempting religious believers, but Congress exempts them anyway, why should the invalidity of the exemption create a draft immunity for Welsh? Surely not just because he would otherwise go without a remedy along with all those others not qualifying for exemption under the statute. And not as a reward for seeking a declaration of the invalidity of § 6(j); for as long as Welsh is among those from whom Congress expressly withheld the exemption, he has no standing to raise the establishment issue even if § 6(j) would present no First Amendment problems if it had included Welsh and others like him. '(O)ne to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.' United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). Nothing in the First Amendment prohibits drafting Welsh and other nonreligious objectors to war. Saving § 6(j) by extending it to include Welsh cannot be done in the name of a presumed congressional will but only by the Court's taking upon itself the power to make draft-exemption policy.
65
If I am wrong in thinking that Welsh cannot benefit from invalidation of § 6(j) on Establishment Clause grounds, I would nevertheless affirm his conviction; for I cannot hold that Congress violated the Clause in exempting from the draft all those who oppose war by reason of religious training and belief. In exempting religious conscientious objectors, Congress was making one of two judgments, perhaps both. First, § 6(j) may represent a purely practical judgment that religious objectors, however admirable, would be of no more use in combat than many others unqualified for military service. Exemption was not extended to them to further religious belief or practice but to limit military service to those who were prepared to undertake the fighting that the armed services have to do. On this basis, the exemption has neither the primary purpose nor the effect of furthering religion. As Mr. Justice Frankfurter, joined by Mr. Justice Harlan, said in a separate opinion in the Sunday Closing Law Cases, 366 U.S. 420, 468, 81 S.Ct. 1101, 1158, 6 L.Ed.2d 393 (1961), an establishment contention 'can prevail only if the absence of any substantial legislative purpose other than a religious one is made to appear. See Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349.'
66
Second, Congress may have granted the exemption because otherwise religious objectors would be forced into conduct that their religions forbid and because in the view of Congress to deny the exemption would violate the Free Exercise Clause or at least raise grave problems in this respect. True, this Court has more than once stated its unwillingness to construe the First Amendment, standing alone, as requiring draft exemptions for religious believers. Hamilton v. Board of Regents, 293 U.S. 245, 263—264, 55 S.Ct. 197, 204—205, 79 L.Ed. 343 (1934); United States v. Macintosh, 283 U.S. 605, 623 624, 51 S.Ct. 570, 574—575, 75 L.Ed. 1302 (1931). But this Court is not alone in being obliged to construe the Constitution in the course of its work; nor does it even approach having a monopoly on the wisdom and insight appropriate to the task. Legislative exemptions for those with religious convictions against war date from colonial days. As Chief Justice Hughes explained in his dissent in United States v. Macintosh, supra, at 633, 51 S.Ct., at 578, the importance of giving immunity to those having conscientious scruples against bearing arms has consistently been emphasized in debates in Congress and such draft exemptions are "indicative of the actual operation of the principles of the Constitution." However this Court might construe the First Amendment, Congress has regularly steered clear of free exercise problems by granting exemptions to those who conscientiously oppose war on religious grounds.
67
If there were no statutory exemption for religious objectors to war and failure to provide it was held by this Court to impair the free exercise of religion contrary to the First Amendment, an exemption reflecting this constitutional command would be no more an establishment of religion than the exemption required for Sabbatarians in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), or the exemption from the flat tax on book sellers held required for evangelists, Follett v. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944). Surely a statutory exemption for religionists required by the Free Exercise Clause is not an invalid establishment because it fails to include nonreligious believers as well; nor would it be any less an establishment if camouflaged by granting additional exemptions for nonreligious, but 'moral' objectors to war.
68
On the assumption, however, that the Free Exercise Clause of the First Amendment does not by its own force require exempting devout objectors from military service, it does not follow that § 6(j) is a law respecting an establishment of religion within the meaning of the First Amendment. It is very likely that § 6(j) is a recognition by Congress of free exercise values and its view of desirable or required policy in implementing the Free Exercise Clause. That judgment is entitled to respect. Congress has the power 'To raise and support Armies' and 'To make all Laws which shall be necessary and proper for carrying into Execution' that power. Art. I, § 8. The power to raise armies must be exercised consistently with the First Amendment which, among other things, forbids laws prohibiting the free exercise of religion. It is surely essential therefore—surely 'necessary and proper'—in enacting laws for the raising of armies to take account of the First Amendment and to avoid possible violations of the Free Exercise Clause. If this was the course Congress took, then just as in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), where we accepted the judgment of Congress as to what legislation was appropriate to enforce the Equal Protection Clause of the Fourteenth Amendment, here we should respect congressional judgment accommodating the Free Exercise Clause and the power to raise armies. This involves no surrender of the Court's function as ultimate arbiter in disputes over interpretation of the Constitution. But it was enough in Katzenbach 'to perceive a basis upon which the Congress might resolve the conflict as it did,' 384 U.S., at 653, 86 S.Ct., at 1725, and plainly in the case before us there is an arguable basis for § 6(j) in the Free Exercise Clause since, without the exemption, the law would compel some members of the public to engage in combat operations contrary to their religious convictions. Indeed, one federal court has recently held that to draft a man for combat service contrary to his conscientious beliefs would violate the First Amendment. United States v. Sisson, 297 F.Supp. 902 (D.C. 1969). There being substantial roots in the Free Exercise Clause for § 6(j) I would not frustrate congressional will by construing the Establishment Clause to condition the exemption for religionists upon extending the exemption also to those who object to war on nonreligious grounds.
69
We have said that neither support nor hostility, but neutrality, is the goal of the religion clauses of the First Amendment. 'Neutrality,' however, is not self-defining. If it is 'favoritism' and not 'neutrality' to exempt religious believers from the draft, is it 'neutrality' and not 'inhibition' of religion to compel religious believers to fight when they have special reasons for not doing so, reasons to which the Constitution gives particular recognition? It cannot be ignored that the First Amendment itself contains a religious classification. The Amendment protects belief and speech, but as a general proposition, the free speech provisions stop short of immunizing conduct from official regulation. The Free Exercise Clause, however, has a deeper cut: it protects conduct as well as religious belief and speech. '(I)t safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.' Cantwell v. Connecticut, 310 U.S. 296, 303—304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). Although socially harmful acts may as a rule be banned despite the Free Exercise Clause even where religiously motivated, there is an area of conduct that cannot be forbidden to religious practitioners but that may be forbidden to others. See United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944); Follett v. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944). We should thus not labor to find a violation of the Establishment Clause when free exercise values prompt Congress to relieve religious believers from the burdens of the law at least in those instances where the law is not merely prohibitory but commands the performance of military duties that are forbidden by a man's religion.
70
In Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961), and Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961), a majority of the Court rejected claims that Sunday closing laws placed unacceptable burdens on Sabbatarians' religious observances. It was not suggested, however, that the Sunday closing laws in 21 States exempting Sabbatarians and others violated the Establishment Clause because no provision was made for others who claimed nonreligious reasons for not working on some particular day of the week. Nor was it intimated in Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952), that the no-establishment holding might be infirm because only those pursuing religious studies for designated periods were released from the public school routine; neither was it hinted that a public school's refusal to institute a released-time program would violate the Free Exercise Clause. The Court in Sherbert v. Verner, supra, construed the Free Exercise Clause to require special treatment for Sabbatarians under the State's unemployment compensation law. But the State could deal specially with Sabbatarians whether the Free Exercise Clause required it or not, for as Mr. Justice HARLAN then said—and I agreed with him—the Establishment Clause would not forbid an exemption for Sabbatarians who otherwise could not qualify for unemployment benefits.
71
The Establishment Clause as construed by this Court unquestionably has independent significance; its function is not wholly auxiliary to the Free Exercise Clause. It bans some involvements of the State with religion that otherwise might be consistent with the Free Exercise Clause. But when in the rationally based judgment of Congress free exercise of religion calls for shielding religious objectors from compulsory combat duty, I am reluctant to frustrate the legislative will by striking down the statutory exemption because it does not also reach those to whom the Free Exercise Clause offers no protection whatsoever.
72
I would affirm the judgment below.
1
62 Stat. 612. See also 50 U.S.C.App. § 456(j). The pertinent provision as it read during the period relevant to this case is set out infra at 336.
2
62 Stat. 612. An amendment to the Act in 1967, subsequent to the Court's decision in the Seeger case, deleted the reference to a 'Supreme Being' but continued to provide that 'religious training and belief' does not include 'essentially political, sociological, or philosophical views, or a merely personal moral code.' 81 Stat. 104, 50 U.S.C.App. § 456(j) (1964 ed., Supp. IV).
3
In his original application in April 1964, Welsh stated that he did not believe in a Supreme Being, but in a letter to his local board in June 1965, he requested that his original answer be stricken and the question left open. App. 29.
1
For a discussion of those principles that determine the appropriate scope for the doctrine of stare decisis, see Moragne v. States Marine Lines, also decided today, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Boys Markets v. Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604 (1940).
2
The difference is between the substitution of judicial judgment for a principle that is set forth by the Constitution and legislature and the application of the legislative principle to a new 'form' that is no different in substance from the circumstances that existed when the principle was set forth. Cf. Katz v. United States, 389 U.S. 347, 88 S.C. 507, 19 L.Ed.2d 576 (1967). As the Court said in Weems v. United States, 'Legislation, both statutory and constitutional, is enacted, * * * from an experience of evils, * * * its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. * * * (A) principle, to be vital, must be capable of wider application than the mischief which gave it birth.' 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910) (emphasis added).
While it is by no means always simple to discern the difference between the residual principal in legislation that should be given effect in circumstances not covered by the express statutory terms and the limitation on that principle inherent in the same words, the Court in Seeger and the prevailing opinion today read out language that, in my view, plainly limits the principle rather than illustrates the policy and circumstances that were in mind when § 6(j) was enacted.
3
The substitution in § 6(j) of 'Supreme Being' instead of 'God' as used in Macintosh does not, in my view, carry the burden, placed on it in the Seeger opinion, of demonstrating that Congress 'deliberately broadened' Chief Justice Hughes' definition. 'God' and 'Supreme Being' are generally taken as synonymous terms meaning Deity. It is common practice to use various synonyms for the Deity. The Declaration of Independence refers to 'Nature's God,' 'Creator,' 'Supreme Judge of the world,' and 'divine Providence.' References to the Deity in preambles to the state constitutions include, for example, and use interchangeably 'God,' 'Almighty God,' 'Supreme Being.' A. Stokes & L. Pfeffer, Church and State in the United States 561 (1964). In Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637 (1890), the Court spoke of man's relations to his 'Creator' and to his 'Maker'; in Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952), and Engel v. Vitale, 370 U.S. 421, 424, 82 S.Ct. 1261, 1263, 8 L.Ed.2d 601 (1962), to the 'Almighty.'
4
The Seeger opinion relies on the absence of any allusion to the judicial conflict to parry the thrust of the legislative history and assigns significance to the Committee citation of Berman as manifestation of its intention to reenact § 5(g) of the 1940 Act, and also as authority for the exclusion of those whose beliefs are grounded in secular ethics. The citation to Berman would not be conclusive of congressional purpose if Congress had simply reenacted the 1940 Act adding only the express exclusion in the last clause. But the reasoning in Seeger totally ignores the fact that Congress without other apparent reason added the 'Supreme Being' language of the Berman majority in the face of the Berman dissent which espoused Judge Hand's view in Kauten. The argument in Seeger is not, moreover, strengthened by the fact that Congress in drafting the 1948 Selective Service laws placed great weight on the views of the Selective Service System which the Court suggested, did not view Berman and Kauten as being in conflict. 380 U.S., at 179, 85 S.Ct., at 860. The Selective Service System Monograph No. 11, Conscientious Objection (1950) was not before Congress when § 6(j) was enacted and the fact that the Service relied on both Kauten and Berman for the proposition that conscientious objection must emanate from a religious and not a secular source, does not mean that it considered the Supreme Being discussion in Berman as surplusage.
5
New International Dictionary, Unabridged (2d ed. 1934).
6
The prevailing opinion's purported recognition of this distinction slides over the 'personal moral code' exception, in § 6(j). Thus that opinion in concluding that § 6(j) does not exclude 'those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy' but excludes individuals, whose beliefs are not deeply held, and those whose objection to war does not rest upon 'moral, ethical, or religious principle,' but instead rests solely upon considerations of 'policy, pragmatism, or expediency,' ante, at 342-343, blends morals and religion, two concepts that Congress chose to keep separate.
7
The apparent purpose of the 1940 change in language was to eliminate membership as a decisive criterion in recognition of the fact that mere formal affiliation is no measure of the intensity of beliefs, and that many nominal adherents do not share or pursue the ethics of their church. That the focus was made the conscientiousness of the individual's own belief does not mean that Congress was indifferent to its source. Were this the case there would have been no occasion to allude to 'religious training' in the 1940 enactment, and to contrast it with secular ethics in the 1948 statute. Yet the prevailing opinion today holds that 'beliefs that are purely ethical,' no matter how acquired, qualify the holder for § 6(j) status if they are held with the requisite intensity.
However, even the prevailing opinion's ambulatory concept of 'religion' does not suffice to embrace Welsh, since petitioner insisted that his beliefs had been formed 'by reading in the fields of history and sociology' and 'denied that his objection to war was premised on religious belief.' 404 F.2d, at 1082. That opinion not only establishes a definition of religion that amounts to 'Newspeak' but it refuses to listen to petitioner who is speaking the same language.
8
This Court has taken notice of the fact that recognized 'religions' exist that 'do not teach what would generally be considered a belief in the existence of God,' Torcaso v. Watkins, 367 U.S. 488, 495 n. 11, 81 S.Ct. 1680, 1684, 6 L.Ed.2d 982, e.g. 'Buddhism, Taoism, Ethical Culture, Secular Humanism and others.' Ibid. See also Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957); 2 Encyclopaedia of the Social Sciences, 293; J. Archer, Faiths Men Live By 120—138, 254 313 (2d ed. revised by Purinton 1958); Stokes & Pfeffer, supra, n. 3, at 560.
9
In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Court held unconstitutional over my dissent a state statute that conditioned eligibility for unemployment benefits on being 'able to work and * * * available for work' and further provided that a claimant was ineligible '(i)f * * * he has failed, without good cause * * * to accept available suitable work when offered him by the employment office or the employer * * *.' This, the Court held, was a violation of the Free Exercise Clause as applied to Seventh Day Adventists whose religious background forced them as a matter of conscience to decline Saturday employment. My own conclusion, to which I still adhere, is that the Free Exercise Clause does not require a State to conform a neutral secular program to the dictates of religious conscience of any group, I suggested, however, that a State could constitutionally create exceptions to its program to accommodate religious scruples. That suggestion must, however, be qualified by the observation that any such exception in order to satisfy the Establishment Clause of the First Amendment, would have to be sufficiently broad to be religiously neutral. See my separate opinion in Walz v. Tax Comm'n, supra. This would require creating an exception for anyone who, as a matter of conscience, could not comply with the statute. Whether, under a statute like that involved in Sherbert, it would be possible to demonstrate a basis in conscience for not working Saturday is quite another matter.
10
Without deciding what constitutes a definition of 'religion' for First Amendment purposes it suffices to note that it means, in my view, at least the two conceivable readings of § 6(j) set forth in Part II, but something less than mere adherence to ethical or moral beliefs in general or a certain belief such as conscientious objection. Thus the prevailing opinion's expansive reading of 'religion' in § 6(j) does not, in my view, create an Establishment Clause problem in that it exempts all sincere objectors but does not exempt others, e.g., those who object to war on pragmatic grounds and contend that pragmatism is their creed.
11
Thus, Mr. Chief Justice White said:
'And we pass without anything but statement the proposition that an establishment of a religion or an interference with the free exercise thereof repugnant to the First Amendment resulted from the exemption clauses of the act * * * because we think its unsoundness is too apparent to require us to do more.' 245 U.S., at 389—390, 38 S.Ct., at 165.
12
My Brother White in dissent misinterprets, in my view, the thrust of Mr. Justice Frankfurter's language in the Sunday Closing Law Cases. See 398 U.S., at 369, 90 S.Ct., at 1812. Section 6(j) speaks directly to belief divorced entirely from conduct. It evinces a judgment that individuals who hold the beliefs set forth by the statute should not be required to bear arms, and the statutory belief that qualifies is only a religious belief. Under these circumstances I fail to see how this legislation has 'any substantial legislative purpose' apart from honoring the conscience of individuals who oppose war on only religious grounds. I cannot, moreover, accept the view, implicit in the dissent, that Congress has any ultimate responsibility for construing the Constitution. It, like all other branches of government, is constricted by the Constitution and must conform its action to it. It is this Court, however, and not the Congress that is ultimately charged with the difficult responsibility of construing the First Amendment. The Court has held that universal conscription creates no free exercise problem, see cases cited supra, at 356, and Congress can constitutionally draft individuals not-withstanding their religious beliefs. Congress, whether in response to political considerations or simply out of sensitivity for men of religious conscience, can of course decline to exercise its power to conscript to the fullest extent, but it cannot do so without equal regard for men of nonreligious conscience. It goes without saying that the First Amendment is perforce a guarantee that the conscience of religion may not be preferred simply because organized religious groups in general are more visible than the individual who practices morals and ethics on his own. Any view of the Free Exercise Clause that does not insist on this neutrality would engulf the Establishment Clause and render it vestigial.
13
That the 'released-time' program in Zorach did not utilize classroom facilities for religious instruction, unlike People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948), is a distinction for me without Establishment Clause substance. At the very least the Constitution requires that the State not excuse students early for the purpose of receiving religious instruction when it does not offer to nonreligious students the opportunity to use school hours for spiritual or ethical instruction of a nonreligious nature. Moreover, whether a released-time program cast in terms of improving 'conscience' to the exclusion of artistic or cultural pursuits, would be 'neutral' and consistent with the requirement of 'voluntarism,' is by no means an easy question. Such a limited program is quite unlike the broad approach of the tax exemption statute, sustained in Walz v. Tax Comm'n, supra, which included literary societies, playgrounds, and associations 'for the moral or mental improvement of men.'
14
See Skinner v. Oklahoma, where Mr. Justice Douglas, in an opinion holding infirm under the Equal Protection Clause a state statute that required sterilization of habitual thieves who perpetrated larcenies but not those who engaged in embezzlement, noted the alternative courses of extending the statute to cover the excluded class or not applying it to the wrongfully included group. The Court declined to speculate which alternative the State would prefer to adopt and simply reversed the judgment.
15
In Iowa-Des Moines National Bank v. Bennett, Mr. Justice Brandeis speaking for the Court in a decision holding that the State had denied petitioners equal protection of the laws by taxing them more heavily than their competitors, observed that: 'The right invoked is that to equal treatment; and such treatment will be attained if either their competitors' taxes are increased or their own reduced.' 284 U.S., at 247, 52 S.Ct., at 136. Based on the impracticality of requiring the aggrieved taxpayer at that stage to 'assume the burden of seeking an increase of the taxes which * * * others should have paid,' the Court held that petitioner was entitled to recover the overpayment.
The Establishment Clause case that comes most readily to mind as involving 'underinclusion' is Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). There the State prohibited the teaching of evolutionist theory but 'did not seek to excise from the curricula of its schools and universities all discussion of the origin of man.' 393 U.S., at 109, 89 S.Ct., at 273. The Court held the Arkansas statute, which was framed as a prohibition, unconstitutional. Since the statute authorized no positive action, there was no occasion to consider the remedial problem. Cf. Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953). Most of the other cases arising under the Establishment Clause have involved instances where the challenged legislation conferred a benefit on religious as well as secular institutions. See, e.g., Walz v. Tax Comm'n, supra; Everson v. Board of Education, supra; Board of Education v. Allen, supra. These cases, had they been decided differently, would still
not have presented the remedial problem that arises in the instant case, for they were cases of alleged 'overinclusion.' The school prayer cases, School District of Abington Township v. Schempp, supra; and Engel v. Vitale, supra; and the released-time cases, Zorach v. Clauson, supra; People of State of Ill. ex rel. McCollum v. Board of Education, supra, also failed to raise the remedial issue. In the school prayer situation the requested relief was an injunction against the saying of prayers. Moreover it is doubtful that there is any analogous secular ritual that could be performed so as to satisfy the neutrality requirement of the First Amendment and even then the practice of saying prayers in schools would still offend the principle of voluntarism that must be satisfied in First Amendment cases. See my separate opinion in Walz v. Tax Comm'n, supra. The same considerations prevented the issue from arising in the one released-time program case that held the practice unconstitutional.
In McCollum, where the Court held unconstitutional a program that permitted 'religious teachers, employed by private religious groups * * * to come weekly into the school buildings during the regular hours set apart for secular teaching, and then and there for a period of thirty minutes substitute their religious teaching for the secular education provided under the compulsory education law,' 333 U.S., at 205, 68 S.Ct., at 462, the relief requested was an order to mandamus the authorities to discontinue the program. No question arose as to whether the program might have been saved by extending a similar privilege to other students who wished extracurricular instruction in, for example, atheistic or secular ethics and morals. Cf. my separate opinion in Walz v. Tax Comm'n, supra. Moreover as in the prayer cases, since the defect in the Illinois program was not the mere absence of neutrality but also the encroachment on 'voluntarism,' see ibid., it is doubtful whether there existed any remedial alternative to voiding the entire program. A further complication would have arisen in these cases by virtue of the more limited discretion this Court enjoys to extend a policy for the State even as a constitutional remedy. Cf. Skinner v. Oklahoma, supra; Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); Dorchy v. Kansas, 264 U.S. 286, 44 S.Ct. 323, 68 L.Ed. 686 (1924).
16
As long as the Selective Service continues to grant exemptions to religious conscientious objectors, individuals like petitioner are not required to submit to induction. This is tantamount to extending the present statute to cover those in petitioner's position. Alternatively the defect of underinclusion that renders this statute unconstitutional could be cured in a civil action by eliminating the exemption accorded to objectors whose beliefs are founded in religion. The choice between these two courses is not one for local draft boards nor is it one that should await civil litigation where the question could more appropriately be considered. Consequently I deem it proper to confront the issue here, even though, as a technical matter, no judgment could issue in this case ordering the Selective Service to refrain entirely from granting exemptions.
17
In Skinner the Court impliedly recognized the mandate of flexibility to repair a defective statute—even by extension conferred by a broad severability clause. As already noted, the Court there declined to exercise discretion, however, since absent a clear indication of legislative preference it was for the state courts to determine the proper course.
While Mr. Justice Brandeis in a dissenting opinion in Nat Life Ins. Co., supra, 277 U.S., at 522, 534—535, 48 S.Ct., at 594, 598—599, expressed the view that a severability clause in terms like that before us now is not intended to authorize amendment by expanding the scope of legislation, his remarks must be taken in the context of a dissent to a course he deemed contrary to that Congress would have chosen. Thus, after quoting Hill v. Wallace, 259 U.S. 44, 71, 42 S.Ct. 453, 459, 66 L.Ed. 822 (1922), to the effect that a severability clause 'furnishes assurance to courts that they may properly sustain separate sections or provisions of a partly invalid act without hesitation or doubt as to whether they would have been adopted, even if the Legislature had been advised of the invalidity of part (b)ut * * * it does not give * * * power to amend the act,' Justice Brandeis observed, that: 'Even if such a clause could ever permit a court to enlarge the scope of a deduction allowed by a taxing statute, * * * the asserted unconstitutionality can be cured as readily by (excision) as by (enlargement)' and that the former would most likely have been the congressional preference in that particular case. Cf. Iowa-Des Moines National Bank v. Bennett, supra.
18
I reach these conclusions notwithstanding the admonition in United States v. Reese that it 'is no part of (this Court's) duty' '(t)o limit (a) statute in (such a way as) to make a new law, (rather than) enforce an old one.' 92 U.S. 214, 221, 23 L.Ed. 563 (1876). See also Yu Cong Eng v. Trinidad, 271 U.S. 500, 46 S.Ct. 619, 70 L.Ed. 1059 (1926); Marchetti v. United States, 390 U.S. 39, 60, 88 S.Ct. 697, 708, 19 L.Ed.2d 889 (1968). Neither of these cases involved statutes evincing a congressional intent to confer a benefit on a particular group, thus requiring the frustration of third-party beneficiary legislation when the acts were held invalid. Moreover, the saving construction in Marchetti would have thwarted, not complemented, the primary purpose of the statute by introducing practical difficulties into that enforcement of state gambling laws that the statute was designed to further.
19
During World War I when the exemption was granted to members or affiliates of 'well-recognized religious sect(s)' the Selective Service System found it impracticable to compile a list of 'recognized' sects and left the matter to the discretion of the local boards. Second Report of the Provost Marshal General to the Secretary of War on the Operations of the Selective Service System to December 20, 1918, p. 56. As a result, some boards treated religious and nonreligious objectors in the same manner. Report of the Provost Marshal General to the Secretary of War on the First Draft Under the Selective-Service Act, 1917, p. 59. Finally, by presidential regulation dated March 20, 1918, it was ordered that conscientious objector status be open to all conscientious objectors without regard to any religious qualification. The experience during World War II, when draft boards were operating under the broad definition of religion in United States v. Kauten, 133 F.2d 703 (C.A.2d Cir. 1943), also demonstrates the administrative viability of today's test. Not only would the test announced today seem manageable but it would appear easier than the arcane inquiry required to determine whether beliefs are religious or secular in nature.
| 23
|
398 U.S. 434
90 S.Ct. 1884
26 L.Ed.2d 385
Donald P. WALKERv.OHIO.
No. 1470.
Supreme Court of the United States
June 15, 1970
PER CURIAM.
1
The judgment of the Supreme Court of Ohio is reversed. Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967).
2
Mr. Chief Justice BURGER, dissenting.
3
The trial court, endeavoring to apply the standards articulated by this Court, held that the materials in question are obscene within the meaning of the relevant Ohio statute. This conclusion rested on findings that the materials are patently offensive to contemporary community standards relating to the description or representation of sexual matters; that, when taken as a whole, their dominant theme appeals to the prurient interest of the reader; and that they are utterly without redeeming social value. The Ohio appellate courts declined to disturb that judgment. Yet today the Court reverses citing only Redrup.
4
I dissent from such a summary disposition, not only for the reasons expressed in my dissenting opinion in Cain v. Kentucky, 397 U.S. 319, 90 S.Ct. 1110, 25 L.Ed.2d 335 (1970), but also because I find no justification, constitutional or otherwise, for this Court's assuming the role of a supreme and unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before it without regard to the findings or conclusions of other courts, state or federal. That is not one of the purposes for which this Court was established.
5
Mr. Justice HARLAN, for reasons expressed in his opinions in Roth v. United States, 354 U.S. 476, 496, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Jacobellis v. Ohio, 378 U.S. 184, 203, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); and A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General or Com. of Massachusetts, 383 U.S. 413, 455, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), would leave the judgment of the state court undisturbed.
6
Mr. Justice MARSHALL and Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
| 23
|
398 U.S. 323
90 S.Ct. 1757
26 L.Ed.2d 300
Earl PRICE, Petitioner,v.State of GEORGIA.
No. 269.
Argued April 27, 1970.
Decided June 15, 1970.
Allyn M. Wallace, Savannah, Ga., for petitioner.
Mathew Robins, Atlanta, Ga., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted the writ to consider the power of a State to retry an accused for murder after an earlier guilty verdict on the lesser included offense of voluntary manslaughter had been set aside because of a trial error.
2
Petitioner was charged with the killing of Johnnie Mae Dupree in an indictment for the offense of murder filed in the Superior Court of Effingham County, Georgia. He entered a plea of not guilty and was tried on October 17, 1962. The jury returned a verdict of guilty to the lesser included crime of voluntary manslaughter and fixed the sentence at 10 to 15 years in the state penitentiary. The jury's verdict made no reference to the charge of murder.
3
The Court of Appeals of Georgia reversed the conviction because of an erroneous jury instruction and ordered a new trial. Price v. State, 108 Ga.App. 581, 133 S.E.2d 916 (1963).
4
On October 20, 1967, petitioner was again placed on trial for murder under the original indictment. Before the commencement of the second trial petitioner entered a plea of autrefois acquit, claiming that to place him again on trial for the offense of murder would expose him to double jeopardy in view of the verdict of voluntary manslaughter at the initial trial. The trial judge rejected the plea and, at the close of the trial, included instructions on the offense of murder in his charge to the jury so that the jury could have rendered a verdict of guilty on that offense. That jury, like the first, found petitioner guilty of voluntary manslaughter, and then fixed the penalty at 10 years' imprisonment.
5
Petitioner sought direct review of his second conviction in the Supreme Court of Georgia,1 but that court transferred the case to the Court of Appeals of Georgia, declaring that '(o)nly questions as to the application of plain and unambiguous provisions of the Constitution of the United States being involved, * * * the case is one for the consideration of the Court of Appeals * * *.' Price v. State, 224 Ga. 306, 307, 161 S.E.2d 825, 826 (1968).
6
The Georgia Court of Appeals then heard the appeal and affirmed the second conviction, rejecting petitioner's argument, among others, that his retrial for murder constituted double jeopardy. Price v. State, 118 Ga.App. 207, 163 S.E.2d 243 (1968). The Court of Appeals held that in Brantley v. State, 132 Ga. 573, 64 S.E. 676 (1909), aff'd, 217 U.S. 284, 30 S.Ct. 514, 54 L.Ed. 768 (1910), the Georgia Supreme Court had decided this question adversely to petitioner. The Court of Appeals then quoted from the Brantley case's syllabus:
7
'When a person has been indicted for murder and convicted of voluntary manslaughter, if he voluntarily seeks and obtains a new trial, he is subject to another trial generally for the offense charged in the indictment, and upon such trial he cannot successfully interpose a plea of former acquittal of the crime of murder or former jeopardy in regard thereto.' 118 Ga.App., at 208, 163 S.E.2d, at 244.
8
Petitioner sought a rehearing, contending, as he contends here, that Brantley was no longer controlling. He relied on Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), and United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (C.A.2d Cir. 1965), cert. denied, Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966). His contention was rejected. In deciding that Brantley was still a binding precedent as to it, the Georgia Court of Appeals noted that the Georgia Supreme Court had transferred the case to it as involving the application of only 'plain and unambiguous' constitutional provisions. The petitioner's motion was then denied. Thereafter the Georgia Supreme Court denied certiorari, and petitioner sought review in this Court. We granted the writ, 395 U.S. 975, 89 S.Ct. 2138, 23 L.Ed.2d 764 (1969), and now reverse.
9
(1)
10
In United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896), this Court observed: 'The Constitution of the United States, in the Fifth Amendment, declares, 'nor shall any person be subject (for the same offense) to be twice put in jeopardy of life or limb.' The prohibition is not against being twice punished, but against being twice put in jeopardy * * *.' (Emphasis added.) The 'twice put in jeopardy' language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the 'same offense' for which he was initially tried.
11
The circumstances that give rise to such a forbidden potential have been the subject of much discussion in this Court. In the Ball case, for example, the Court expressly rejected the view that the double jeopardy provision prevented a second trial when a conviction had been set aside. In so doing, it effectively formulated a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course. See Green v. United States, 355 U.S. 184, 189, 78 S.Ct. 221, 224, 2 L.Ed.2d 199 (1957).
12
The continuing jeopardy principle necessarily is applicable to this case. Petitioner sought and obtained the reversal of his initial conviction for voluntary manslaughter by taking an appeal. Accordingly, no aspect of the bar on double jeopardy prevented his retrial for that crime. However, the first verdict, limited as it was to the lesser included offense, required that the retrial be limited to that lesser offense. Such a result flows inescapably from the Constitution's emphasis on a risk of conviction and the Constitution's explication in prior decisions of this Court.
13
An early case to deal with restrictions on retrials was Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904), where the Court held that the Fifth Amendment's double jeopardy prohibition barred the Government from appealing an acquittal in a criminal prosecution,2 over a dissent by Mr. Justice Holmes that argued that there was only one continuing jeopardy until the proceedings against the accused had been finally resolved. He held to the view that even if an accused was retried after the Government had obtained reversal of an acquittal, the second trial was part of the original proceeding.
14
Similar double jeopardy issues did not fully claim the Court's attention until the Court heard argument in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).3 There the petitioner had been tried and convicted of first-degree murder after an earlier guilty verdict on the lesser included offense of second-degree murder had been set aside on appeal. A majority of the Court rejected the argument that by appealing the conviction of second-degree murder the petitioner had 'waived' his plea of former jeopardy with regard to the charge of first-degree murder.
15
The Court in the Green case reversed the first-degree murder conviction obtained at the retrial, holding that the petitioner's jeopardy for first-degree murder came to an end when the jury was discharged at the end of his first trial. This conclusion rested on two premises. First, the Court considered the first jury's verdict of guilty on the second-degree murder charge to be an 'implicit acquittal' on the charge of first-degree murder. Second, and more broadly, the Court reasoned that petitioner's jeopardy on the greater charge had ended when the first jury 'was given a full opportunity to return a verdict' on that charge and instead reached a verdict on the lesser charge. 355 U.S., at 191, 78 S.Ct., at 225. Under either of these premises, the holding in the Kepner case—that there could be no appeal from an acquittal because such a verdict ended an accused's jeopardy—was applicable.
16
The rationale of the Green holding applies here. The concept of continuing jeopardy implicit in the Ball case4 would allow petitioner's retrial for voluntary manslaughter after his first conviction for that offense had been reversed. But, as the Kepner and Green cases illustrate, this Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity5 to return a verdict on the greater charge. There is no relevant factual distinction between this case and Green v. United States. Although the petitioner was not convicted of the greater charge on retrial whereas Green was, the risk of conviction on the greater charge was the same in both cases, and the Double Jeopardy Clause of the Fifth Amendment is written in terms of potential or risk of trial and conviction, not punishment.
17
The Georgia courts nonetheless rejected Green as a persuasive authority in favor of reliance on Brantley v. State, 132 Ga. 573, 64 S.E. 676 (1909), aff'd, 217 U.S. 284, 30 S.Ct. 514, 54 L.Ed. 768 (1910). The Brantley case presented a situation where a defendant's appeal from a conviction for a lesser included offense ultimately led to retrial and conviction on the greater offense. After the second conviction had been affirmed on appeal, the defendant sued out a writ of error to the Supreme Court of Georgia from this Court, contending 'that the exemption from second jeopardy is one of the privileges and immunities of citizens of the United States, which the Fourteenth Amendment forbids a state to abridge',6 that he had 'been tried and acquitted by a jury of his country of the crime of murder',7 and that '(h)e should never (sic) have been tried a second time only for the offense on which he obtained a new trial * * *.'8 This Court tersely rejected these contentions as:
18
'absolutely without merit. It was not a case of twice in jeopardy under any view of the Constitution of the United States.' 217 U.S., at 285, 30 S.Ct., at 515.
19
The Brantley case was decided by this Court at a time when, although the Court was actively developing an explication of federal double jeopardy doctrines based on the Fifth Amendment, it took a very restricted approach in reviewing similar state court decisions. While the Brantley holding may have had some vitality at the time the Georgia courts rendered their decisions in this case, it is no longer a viable authority and must now be deemed to have been overruled by subsequent decisions of this Court.9
(2)
20
One further consideration remains. Because the petitioner was convicted of the same crime at both the first and second trials, and because he suffered no greater punishment on the subsequent conviction, Georgia submits that the second jeopardy was harmless error when judged by the criteria of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
21
We must reject this contention. The Double Jeopardy Clause, as we have noted, is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly.10 Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence. See United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (C.A.2d Cir. 1965), cert. denied, Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966).
22
(3)
23
We asked the parties to submit post-argument memoranda directed to the question of whether petitioner can now be re-indicted or retried for voluntary manslaughter under Georgia law. These memoranda have been filed and indicate that the answer to our question appears to depend upon the construction of several Georgia statutes and on the power of Georgia courts to fashion remedial orders. Accordingly, although we reverse petitioner's conviction, we also remand the case to enable the Georgia courts to resolve the issues pertaining to petitioner's retrial, if any such retrial is to be had.
24
Reversed and remanded.
25
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
1
Georgia's Constitution provides for direct review in the Georgia Supreme Court of, among others, 'all cases that involve the construction of the Constitution of the State of Georgia or of the United States * * *.' Ga.Const., Art. VI, § 2, 4.
2
Kepner rested upon a portion of the Ball case that dealt with a criminal action that had been finally resolved. In Ball the Court had held that the Government could not re-indict an accused for an offense where a judgment of acquittal had been entered by a trial court with jurisdiction over the accused and the cause. 163 U.S., at 669—670, 16 S.Ct. at 1194—1195. The Court relied partially on United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892), where the Court had interpreted the Judiciary Act of 1891 to hold that the United States could not obtain review by a writ of error in a criminal case.
3
Shortly after Kepner the Court was faced with a factual situation somewhat akin to that presented by the instant case. In Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292 (1905), the defendants had been charged in a Philippine court with murder, and had been found guilty of the lesser offense of assault. On their appeal of the conviction the Philippine Supreme Court set aside the trial court's judgment, found them guilty of murder, and increased their sentences. This Court affirmed. Four Justices took the position that by appealing the assault conviction, the defendants had waived any double jeopardy claim respecting the murder charge. Mr. Justice Holmes concurred in the result without stating his rationale. Kepner had been decided in the previous year, however, and his concurrence could have indicated that, for him, a waiver theory was too narrow—instead he considered that even an appeal by the Government was a continuing jeopardy, not a second jeopardy. Of the four dissenters, two, Justices McKenna and White, would have found a violation of the Constitution's double jeopardy provision.
Acceptance of either Trono's waiver theory or Mr. Justice Holmes' broad continuing jeopardy approach would indicate that Price could not complain of his retrial for the greater offense. But Trono has not survived unscathed to the present day. The 'waiver theory' of four of the majority Justices in Trono was distinguished in Green as resting on 'a statutory provision against double jeopardy pertaining to the Philippine Islands—a territory just recently conquered with long-established legal procedures that were alien to the common law.' 355 U.S., at 197, 78 S.Ct., at 228.
4
After Kepner and Green, the continuing jeopardy principle appears to rest on an amalgam of interests—e.g., fairness to society, lack of finality, and limited waiver, among others.
5
See People v. Jackson, 20 N.y.2d 440, 285 N.Y.S.2d 8, 231 N.E.2d 722 (1967).
6
Brief for Plaintiff in Error, No. 692, O.T.1909, p. 2.
7
Id., 5.
8
Ibid.
9
In Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), this Court refused to overturn a first-degree murder conviction obtained after the State had successfully appealed from a conviction of second-degree murder which was the product of a trial on first-degree murder charges. The Court ruled that federal double jeopardy standards were not applicable to the States.
Palko was overruled in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), where this Court determined that the double jeopardy prohibition of the Fifth Amendment should be applied to the States through the Fourteenth Amendment. Brantley and Palko were of the same genre, and Brantley necessarily shared Palko's fate in Benton.
The last of the decisions of the Georgia courts affirming the petitioner's conviction was rendered on September 24, 1968, well before Benton was decided. But Benton has fully retroactive application, see Waller v. Florida, 397 U.S. 387, 391 n. 2, 90 S.Ct. 1184, 1186, 25 L.Ed.2d 435 (1970), and the Georgia courts' reliance on the themses of Brantley, though understandable, now has no place.
10
There is a significant difference to an accused whether he is being tried for murder or manslaughter. He has reason for concern as to the consequences in terms of stigma as well as penalty. He must be prepared to meet not only the evidence of the prosecution and the verdict of the jury but the verdict of the community as well.
| 01
|
398 U.S. 375
90 S.Ct. 1772
26 L.Ed.2d 339
Petsonella MORAGNE, etc., Petitioner,v.STATES MARINE LINES, INC., et al.
No. 175.
Argued March 4, 1970.
Decided June 15, 1970.
Charles Jay Hardee, Jr., Tampa, Fla., for petitioner.
Nathan Baker, Hoboken, N.J., for petitioner, as amicus curiae.
Louis F. Claiborne, Washington, D.C., for United States, as amicus curiae, by special leave of Court.
David B. Kaplan, Boston, Mass., for American Trial Lawyers Ass'n, as amicus curiae.
Dewey R. Villareal, Jr., and David C. G. Kerr, Tampa, Fla., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
We brought this case here to consider whether The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, in which this Court held in 1886 that maritime law does not afford a cause of action for wrongful death, should any longer be regarded as acceptable law.
2
The complaint sets forth that Edward Moragne, a longshoreman, was killed while working aboard the vessel Palmetto State in navigable waters within the State of Florida. Petitioner, as his widow and representative of his estate, brought this suit in a state court against respondent States Marine Lines, Inc., the owner of the Vessel, to recover damages for wrongful death and for the pain and suffering experienced by the decedent prior to his death. The claims were predicated upon both negligence and the unseaworthiness of the vessel.
3
States Marine removed the case to the Federal District Court for the Middle District of Florida on the basis of diversity of citizenship, see 28 U.S.C. §§ 1332, 1441, and there filed a third-party complaint against respondent Gulf Florida Terminal Company, the decedent's employer, asserting that Gulf had contracted to perform stevedoring services on the vessel in a workmanlike manner and that any negligence or unseaworthiness causing the accident resulted from Gulf's operations.
4
Both States Marine and Gulf sought dismissal of the portion of petitioner's complaint that requested damages for wrongful death on the basis of unseaworthiness. They contended that maritime law provided no recovery for wrongful death within a State's territorial waters, and that the statutory right of action for death under Florida law, Fla.Stat. § 768.01 (1965), F.S.A., did not encompass unseaworthiness as a basis of liability. The District Court dismissed the challenged portion of the complaint on this ground, citing this Court's decision in The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959), and cases construing the state statute, but made the certification necessary under 28 U.S.C. § 1292(b) to allow petitioner an interlocutory appeal to the Court of Appeals for the Fifth Circuit.
5
The Court of Appeals took advantage of a procedure furnished by state law, Fla.Stat. § 25.031 (1965), F.S.A., to certify to the Florida Supreme Court the question whether the state wrongful-death statute allowed recovery for unseaworthiness as that concept is understood in maritime law. After reviewing the history of the Florida Act, the state court answered this question in the negative. ,211 So.2d 161 (1968). On return of the case to the Court of Appeals, that court affirmed the District Court's order, rejecting petitioner's argument that she was entitled to reversal under federal maritime law without regard to the scope of the state statute. 409 F.2d 32 (1969). The court stated that its disposition was compelled by our decision in The Tungus. We granted certiorari, 396 U.S. 900, 90 S.Ct. 212, 24 L.Ed.2d 176 (1969), and invited the United States to participate as amicus curiae, id., at 952, 90 S.Ct., at 423, 24 L.Ed.2d 418, to reconsider the important question of remedies under federal maritime law for tortious deaths on state territorial waters.
6
In The Tungus this Court divided on the consequences that should flow from the rule of maritime law that 'in the absence of a statute there is no action for wrongful death,' first announced in The Harrisburg. All members of the Court agreed that where a death on state territorial waters is left remediless by the general maritime law and by federal statutes, a remedy may be provided under any applicable state law giving a right of action for death by wrongful act. However, four Justices dissented from the Court's further holding that 'when admiralty adopts a State's right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached.' 358 U.S., at 592, 79 S.Ct. at 506. The dissenters would have held that federal maritime law could utilize the state law to 'supply a remedy' for breaches of federally imposed duties, without regard to any substantive limitations contained in the state law. Id., at 597, 599, 79 S.Ct., at 509, 510.
7
The extent of the role to be played by state law under The Tungus has been the subject of substantial debate and uncertainty in this Court, see Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960); Goett v. Union Carbide Corp., 361 U.S. 340, 80 S.Ct. 357, 4 L.Ed.2d 341 (1960), with opinions on both sides of the question acknowledging the shortcomings in the present law. See 361 U.S., at 314—315, 338—339, 80 S.Ct., at 343, 356. On fresh consideration of the entire subject, we have concluded that the primary source of the confusion is not to be found in The Tungus, but in The Harrisburg, and that the latter decision, somewhat dubious even when rendered, is such an unjustifiable anomaly in the present maritime law that it should no longer be followed. We therefore reverse the judgment of the Court of Appeals.1
I.
8
The Court's opinion in The Harrisburg acknowledged that the result reached had little justification except in primitive English legal history—a history far removed from the American law of remedies for maritime deaths. That case, like this, was a suit on behalf of the family of a maritime worker for his death on the navigable waters of a State. Following several precedents in the lower federal courts, the trial court awarded damages against the ship causing the death, and the circuit court affirmed, ruling that death by maritime tort 'may be complained of as an injury, and the wrong redressed under the general maritime law.' 15 F. 610, 614 (1883). This Court, in reversing, relied primarily on its then-recent decision in Insurance Co. v. Brame, 95 U.S. 754, 24 L.Ed. 580 (1878), in which it had held that in American common law, as in English, 'no civil action lies for an injury which results in * * * death.' Id., at 756.2 In The Harrisburg, as in Brame, the Court did not examine the justifications for this common-law rule; rather, it simply noted that 'we know of no country that has adopted a different rule on this subject for the sea from that which it maintains on the land,' and concluded, despite contrary decisions of the lower federal courts both before and after Brame, that the rule of Brame should apply equally to maritime deaths. 119 U.S., at 213, 7 S.Ct., at 146.3
9
Our analysis of the history of the common-law rule indicates that it was based on a particular set of factors that had, when The Harrisburg was decided, long since been thrown into discard even in England, and that had never existed in this country at all. Further, regardless of the viability of the rule in 1886 as applied to American land-based affairs, it is difficult to discern an adequate reason for its extension to admiralty, a system of law then already differentiated in many respects from the common law.
10
One would expect, upon an inquiry into the sources of the common-law rule, to find a clear and compelling justification for what seems a striking departure from the result dictated by elementary principles in the law of remedies. Where existing law imposes a primary duty, violations of which are compensable if they cause injury, nothing in ordinary notions of justice suggests that a violation should be nonactionable simply because it was serious enough to cause death. On the contrary, that rule has been criticized ever since its inception, and described in such terms as 'barbarous.' E.g., Osborn v. Gilliett, L.R. 8 Ex. 88, 94 (1873) (Lord Bramwell, dissenting); F. Pollock, Law of Torts 55 (Landon ed. 1951); 3 W. Holdsworth, History of English Law 676—677 (3d ed. 1927). Because the primary duty already exists, the decision whether to allow recovery for violations causing death is entirely a remedial matter. It is true that the harms to be assuaged are not identical in the two cases: in the case of mere injury, the person physically harmed is made whole for his harm, while in the case of death, those closest to him—usually spouse and children—seek to recover for their total loss of one on whom they depended. This difference, however, even when coupled with the practical difficulties of defining the class of beneficiaries who may recover for death, does not seem to account for the law's refusal to recognize a wrongful killing as an actionable tort. One expects, therefore, to find a persuasive, independent justification for this apparent legal anomaly.
11
Legal historians have concluded that the sole substantial basis for the rule at common law is a feature of the early English law that did not survive into this century—the felony-merger doctrine. See Pollock, supra, at 52—57; Holdsworth, The Origin of the Rule in Baker v. Bolton, 32 L.Q.Rev. 431 (1916). According to this doctrine, the common law did not allow civil recovery for an act that constituted both a tort and a felony. The tort was treated as less important than the offense against the Crown, and was merged into, or pre-empted by, the felony. Smith v. Sykes, 1 Freem. 224, 89 Eng.Rep. 160 (K.B. 1677); Higgins v. Butcher, Yel. 89, 80 Eng.Rep. 61 (K.B. 1606). The doctrine found practical justification in the fact that the punishment for the felony was the death of the felon and the forfeiture of his property to the Crown; thus, after the crime had been punished, nothing remained of the felon or his property on which to base a civil action. Since all intentional or negligent homicide was felonious, there could be no civil suit for wrongful death.
12
The first explicit statement of the common-law rule against recovery for wrongful death came in the opinion of Lord Ellenborough, sitting at nisi prius, in Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (1808). That opinion did not cite authority, or give supporting reasoning, or refer to the felony-merger doctrine in announcing that '(i)n a Civil court, the death of a human being could not be complained of as an injury.' Ibid. Nor had the felony-merger doctrine seemingly been cited as the basis for the denial of recovery in any of the other reported wrongful-death cases since the earliest ones, in the 17th century. E.g., Smith v. Sykes, supra; Higgins v. Butcher, supra. However, it seems clear from those first cases that the rule of Baker v. Bolton did derive from the felony-merger doctrine, and that there was no other ground on which it might be supported even at the time of its inception. The House of Lords in 1916 confirmed this historical derivation, and held that although the felony-merger doctrine was no longer part of the law, the rule against recovery for wrongful death should continue except as modified by statute. Admiralty Commissioners v. S. S. Amerika, (1917) A.C. 38. Lord Parker's opinion acknowledged that the rule was 'anomalous * * * to the scientific jurist,' but concluded that because it had once found justification in the doctrine that 'the trespass was drowned in the felony,' it should continue as a rule 'explicable on historical grounds' even after the disappearance of that justification. Id., at 44, 50; see 3 W. Holdsworth, History of English Law 676—677 (3d ed. 1927). Lord Sumner agreed, relying in part on the fact that this Court had adopted the English rule in Brame. Although conceding the force of Lord Bramwell's dissent in Osborn v. Gillett, L.R. 8 Ex. 88, 93 (1873), against the rule, Lord Parker stated that it was not 'any part of the functions of this House to consider what rules ought to prevail in a logical and scientific system of jurisprudence,' and thus that he was bound simply to follow the past decisions. (1917) A.C., at 42 43.4
13
The historical justification marshaled for the rule in England never existed in this country. In limited instances American law did adopt a vestige of the felony-merger doctrine, to the effect that a civil action was delayed until after the criminal trial. However, in this country the felony punishment did not include forfeiture of property; therefore, there was nothing, even in those limited instances, to bar a subsequent civil suit. E.g., Grosso v. Delaware, Lackawanna & West. R. Co., 50 N.J.L. 317, 319—320, 13 A. 233, 234 (1888); Hyatt v. Adams, 16 Mich. 180, 185—188 (1867); see W. Prosser, Law of Torts 8, 920—924 (3d ed. 1964). Nevertheless, despite some early cases in which the rule was rejected as 'incapable of vindication,' e.g., Sullivan v. Union Pac. R. Co., 23 Fed.Cas. pp. 368, 371 (No. 13,599) (C.C.Neb.1874); Shields v. Yonge, 15 Ga. 349 (1854); cf. Cross v. Guthery, 2 Root 90, 92 (Conn. 1794), American courts generally adopted the English rule as the common law of this country as well. Throughout the period of this adoption, culminating in this Court's decision in Brame, the courts failed to produce any satisfactory justification for applying the rule in this country.
14
Some courts explained that their holdings were prompted by an asserted difficulty in computation of damages for wrongful death or by a 'repugnance * * * to setting a price upon human life,' E.g., Connecticut Mut. Life Ins. Co. v. New York & N.H.R. Co., 25 Conn. 265, 272—273 (1856); Hyatt v. Adams, supra, 16 Mich. at 191. However, other courts have recognized that calculation of the loss sustained by dependents or by the estate of the deceased, which is required under most present wrongful-death statutes, see Smith, Wrongful Death Damages in North Carolina, 44 N.C.L.Rev. 402, 405, 406, nn. 17, 18 (1966), does not present difficulties more insurmountable than assessment of damages for many nonfatal personal injuries. See Hollyday v. The David Reeves, 12 Fed.Cas. pp. 386, 388 (No. 6,625) (D.C.Md.1879); Green v. Hudson River R. Co., 28 Barb. 9, 17—18 (N.Y. 1858).
15
It was suggested by some courts and commentators that the prohibition of nonstatutory wrongful-death actions derived support from the ancient common-law rule that a personal cause of action in tort did not survive the death of its possessor, e.g., Eden v. Lexington & Frankfort R. Co., 53 Ky. 204, 206 (1853); and the decision in Baker v. Bolton itself may have been influenced by this principle. Holdsworth, The Origin of the Rule in Baker v. Bolton, 32 L.Q.Rev. 431, 435 (1916). However, it is now universally recognized that because this principle pertains only to the victim's own personal claims, such as for pain and suffering, it has no bearing on the question whether a dependent should be permitted to recover for the injury he suffers from the victim's death. See ibid; Pollock supra, at 53; Winfield, Death as Affecting Liability in Tort, 29 Col.L.Rev. 239 250, 253 (1929).
16
The most likely reason that the English rule was adopted in this country without much question is simply that it had the blessing of age. That was the thrust of this Court's opinion in Brame, as well as many of the lower court opinions. E.g., Grosso v. Delaware, Lackawanna & West. R. Co., supra. Such nearly automatic adoption seems at odds with the general principle, widely accepted during the early years of our Nation, that while '(o)ur ancestors brought with them (the) general principles (of the common law) and claimed it as their birthright; * * * they brought with them and adopted only that portion which was applicable to their situation.' Van Ness v. Pacard, 2 Pet. 137, 144, 7 L.Ed. 374 (1829) (Story, J.); The Lottawanna, 21 Wall. 558, 571—574, 22 L.Ed. 654 (1875); see R. Pound, The Formative Era of American Law 93—97 (1938); H. Hart & A. Sacks, The Legal Process 450 (tent. ed. 1958). The American courts never made the inquiry whether this particular English rule, bitterly criticized in England, 'was applicable to their situation,' and it is difficult to imagine on what basis they might have concluded that it was.
17
Further, even after the decision in Brame, it is not apparent why the Court in The Harrisburg concluded that there should not be a different rule for admiralty from that applied at common law. Maritime law had always, in this country as in England, been a thing apart from the common law. It was, to a large extent, administered by different courts; it owed a much greater debt to the civil law;5 and, from its focus on a particular subject matter, it developed general principles unknown to the common law. These principles included a special solicitude for the welfare of those men who undertook to venture upon hazardous and unpredictable sea voyages. See generally G. Gilmore & C. Black, The Law of Admiralty 1—11, 253 (1957); P. Edelman, Maritime Injury and Death 1 (1960). These factors suggest that there might have been no anomaly in adoption of a different rule to govern maritime relations, and that the common-law rule, criticized as unjust in its own domain, might wisely have been rejected as incompatible with the law of the sea. This was the conclusion reached by Chief Justice Chase, prior to The Harrisburg, sitting on circuit in The Sea Gull, 21 Fed.Cas. p. 909 (No. 12,578) (C.C.Md. 1865). He there remarked that
18
'There are cases, indeed, in which it has been held that in a suit at law, no redress can be had by the surviving representative for injuries occasioned by the death of one through the wrong of another; but these are all common-law cases, and the common law has its peculiar rules in relation to this subject, traceable to the feudal system and its forfeitures * * * and certainly it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.' Id., at 910.
19
Numerous other federal maritime cases, on similar reasoning, had reached the same result. E.g., The Columbia, 27 F. 704 (D.C.S.D.N.Y.1886); The Manhasset, 18 F. 918 (D.C.E.D.Va.1884); The E. B. Ward, Jr., 17 F. 456 (C.C.E.D.La.1883); The Garland, 5 F. 924 (D.C.E.D.Mich.1881); Holmes v. O. & C.R. Co., 5 F. 75 (D.C.Or.1880); The Towanda, 24 Fed.Cas. p. 74 (No. 14,109) (C.C.E.D.Pa.1877); Plummer v. Webb, 19 Fed.Cas. p. 894 (No. 11,234) (D.C.Maine 1825); Hollyday v. The David Reeves, 12 Fed.Cas. p. 386 (No. 6,625) (D.C.Md.1879). Despite the tenor of these cases, some decided after Brame, the Court in The Harrisburg concluded that 'the admiralty judges in the United States did not rely for their jurisdiction on any rule of the maritime law different from that of the common law, but (only) on their opinion that the rule of the English common law was not founded in reason, and had not become firmly established in the jurisprudence of this country.' 119 U.S., at 208, 7 S.Ct. at 144. Without discussing any considerations that might support a different rule for admiralty, the Court held that maritime law must be identical in this respect to the common law.
II
20
We need not, however, pronounce a verdict on whether The Harrisburg, when decided, was a correct extrapolation of the principles of decisional law then in existence. A development of major significance has intervened, making clear that the rule against recovery for wrongful death is sharply out of keeping with the policies of modern American maritime law. This development is the wholesale abandonment of the rule in most of the area where it once held sway, quite evidently prompted by the same sense of the rule's injustice that generated so much criticism of its original promulgation.
21
To some extent this rejection has been judicial. The English House of Lords in 1937 emasculated the rule without expressly overruling it. Rose v. Ford, (1937) A.C. 826. Lord Atkin remarked about the decision in S. S. Amerika that '(t)he reasons given, whether historical or otherwise, may seem unsatisfactory,' and that 'if the rule is really based on the relevant death being due to felony, it should long ago have been relegated to a museum.' At any rate, he saw 'no reason for extending the illogical doctrine * * * to any case where it does not clearly apply.' Id., A.C., at 833, 834. Lord Atkin concluded that, while the doctrine barred recognition of a claim in the dependents for the wrongful death of a person, it did not bar recognition of a common-law claim in the decedent himself for 'loss of expectation of life'—a claim that vested in the person in the interval between the injury and death, and thereupon passed, with the aid of a survival statute, to the representative of his estate. He expressed no doubt that the claim was 'capable of being estimated in terms of money: and that the calculation should be made.' Id., at 834.6 Thus, except that the measure of damages might differ, the representative was allowed to recover on behalf of the heirs what they could not recover in their own names.
22
Much earlier, however, the legislatures both here and in England began to evidence unanimous disapproval of the rule against recovery for wrongful death. The first statute partially abrogating the rule was Lord Campbell's Act, 9 & 10 Vict., c. 93 (1846), which granted recovery to the families of persons killed by tortious conduct, 'although the Death shall have been caused under such Circumstances as amount in Law to Felony.'7
23
In the United States, every State today has enacted a wrongful-death statute. See Smith, supra, 44 N.C.L.Rev. 402. The Congress has created actions for wrongful deaths of railroad employees, Federal Employers' Liability Act, 45 U.S.C. §§ 51—59; of merchant seamen, Jones Act, 46 U.S.C. § 688; and of persons on the high seas, Death on the High Seas Act, 46 U.S.C. §§ 761, 762.8 Congress has also, in the Federal Tort Claims Act, 28 U.S.C. § 1346(b), made the United States subject to liability in certain circumstances for negligently caused wrongful death to the same extent as a private person. See, e.g., Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962).
24
These numerous and broadly applicable statutes, taken as a whole, make it clear that there is no present public policy against allowing recovery for wrongful death. The statutes evidence a wide rejection by the legislatures of whatever justifications may once have existed for a general refusal to allow such recovery. This legislative establishment of policy carries significance beyond the particular scope of each of the statutes involved. The policy thus established has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law. See Landis, Statutes and the Sources of Law, in Harvard Legal Essays 213, 226—227 (1934). Mr. Justice Holmes, speaking also for Chief Justice Taft and Justices Brandeis and McKenna, stated on the very topic of remedies for wrongful death:
25
'(I)t seems to me that courts in dealing with statutes sometimes have been too slow to recognize that statutes even when in terms covering only particular cases may imply a policy different from that of the common law, and therefore may exclude a reference to the common law for the purpose of limiting their scope. Johnson v. United States, 163 F. 30, 32. Without going into the reasons for the notion that an action (other than an appeal) does not lie for causing the death of a human being, it is enough to say that they have disappeared. The policy that forbade such an action, if it was more profound than the absence of a remedy when a man's body was hanged and his goods confiscated for the felony, has been shown not to be the policy of present law by statutes of the United States and of most if not all of the States.' Panama R. Co. v. Rock, 266 U.S. 209, 216, 45 S.Ct. 58, 60, 69 L.Ed. 250 (1924) (dissenting opinion.)9
26
Dean Pound subsequently echoed this observation, concluding that: 'Today we should be thinking of the death statutes as part of the general law.' Pound, Comment on State Death Statutes—Application to Death in Admiralty, 13 NACCA L.J. 188, 189 (1954); see Cox v. Roth, 348 U.S. 207, 210, 75 S.Ct. 242, 244, 99 L.Ed. 260 (1955).
27
This appreciation of the broader role played by legislation in the development of the law reflects the practices of common-law courts from the most ancient times. As Professor Landis has said, 'much of what is ordinarily regarded as 'common law' finds its source in legislative enactment.' Landis, supra, at 214. It has always been the duty of the common-law court to perceive the impact of major legislative innovations and to interweave the new legislative policies with the inherited body of common-law principles—many of them deriving from earlier legislative exertions.
28
The legislature does not, of course, merely enact general policies. By the terms of a statute, it also indicates its conception of the sphere within which the policy is to have effect. In many cases the scope of a statute may reflect nothing more than the dimensions of the particular problem that came to the attention of the legislature, inviting the conclusion that the legislative policy is equally applicable to other situations in which the mischief is identical. This conclusion is reinforced where there exists not one enactment but a course of legislation dealing with a series of situations, and where the generality of the underlying principle is attested by the legislation of other jurisdictions. Id., at 215—216, 220—222. On the other hand, the legislature may, in order to promote other, conflicting interests, prescribe with particularity the compass of the legislative aim, erecting a strong inference that territories beyond the boundaries so drawn are not to feel the impact of the new legislative dispensation. We must. Therefore, analyze with care the congressional enactments that have abrogated the common-law rule in the maritime field, to determine the impact of the fact that none applies in terms to the situation of this case. See Part III, infra. However, it is sufficient at this point to conclude, as Mr. Justice Holmes did 45 years ago, that the work of the legislatures has made the allowance of recovery for wrongful death the general rule of American law, and its denial the exception. Where death is caused by the breach of a duty imposed by federal maritime law, Congress has established a policy favoring recovery in the absence of a legislative direction to except a particular class of cases.
III
29
Our undertaking, therefore, is to determine whether Congress has given such a direction in its legislation granting remedies for wrongful deaths in portions of the maritime domain. We find that Congress has given no affirmative indication of an intent to preclude the judicial allowance of a remedy for wrongful death to persons in the situation of this petitioner.
30
From the date of The Harrisburg until 1920, there was no remedy for death on the high seas caused by breach of one of the duties imposed by federal maritime law. For deaths within state territorial waters, the federal law accommodated the humane policies of state wrongful-death statutes by allowing recovery whenever an applicable state statute favored such recovery10 Congress acted in 1920 to furnish the remedy denied by the courts for deaths beyond the jurisdiction of any State, by passing two landmark statutes. The first of these was the Death on the High Seas Act, 41 Stat. 537, 46 U.S.C. § 761 et seq. Section 1 of that Act provides that:
31
'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, * * * 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.'
Section 7 of the Act further provides:
32
'The provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this (Act). Nor shall this (Act) apply to the Great Lakes or to any waters within the territorial limits of any State * * *.'
33
The second statute was the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, which, by extending to seamen the protections of the Federal Employers' Liability Act, provided a right of recovery against their employers for negligence resulting in injury or death. This right follows from the seaman's employment status and is not limited to injury or death occurring on the high seas.11
34
The United States, participating as amicus curiae, contended at oral argument that these statutes, if construed to forbid recognition of a general maritime remedy for wrongful death within territorial waters, would perpetuate three anomalies of present law. The first of these is simply the discrepancy produced whenever the rule of The Harrisburg holds sway: within territorial waters, identical conduct violating federal law (here the furnishing of an unseaworthy vessel) produces liability if the victim is merely injured, but frequently not if he is killed. As we have concluded, such a distinction is not compatible with the general policies of federal maritime law.
35
The second incongruity is that identical breaches of the duty to provide a seaworthy ship, resulting in death, produce liability outside the three-mile limit—since a claim under the Death on the High Seas Act may be founded on unseaworthiness, see Kernan v. American Dredging Co., 355 U.S. 426, 430 n. 4, 78 S.Ct. 394, 397, 2 L.Ed.2d 382 (1958)—but not within the territorial waters of a State whose local statute excludes unseaworthiness claims. The United States argues that since the substantive duty is federal, and federal maritime jurisdiction covers navigable waters within and without the three-mile limit, no rational policy supports this distinction in the availability of a remedy.
36
The third, and assertedly the 'strangest' anomaly is that a true seaman—that is, a member of a ship's company, covered by the Jones Act—is provided no remedy for death caused by unseaworthiness within territorial waters, while a longshoreman, to whom the duty of seaworthiness was extended only because he performs work traditionally done by seamen, does have such a remedy when allowed by a state statute.12
37
There is much force to the United States' argument that these distinctions are so lacking in any apparent justification that we should not, in the absence of compelling evidence, presume that Congress affirmatively intended to freeze them into maritime law. There should be no presumption that Congress has removed this Court's traditional responsibility to vindicate the policies of maritime law by ceding that function exclusively to the States. However, respondents argue that an intent to do just that is manifested by the portions of the Death on the High Seas Act quoted above.
38
The legislative history of the Act suggests that respondents misconceive the thrust of the congressional concern. Both the Senate and House Reports consist primarily of quoted remarks by supporters of the proposed Act. Those supporters stated that the rule of The Harrisburg, which had been rejected by '(e)very country of western Europe,' was a 'disgrace to a civilized people.' 'There is no reason why the admiralty law of the United States should longer depend on the statute laws of the States. * * * Congress can now bring our maritime law into line with the laws of those enlightened nations which confer a right of action for death at sea.' The Act would accomplish that result 'for deaths on the high seas, leaving unimpaired the rights under State statutes as to deaths on waters within the territorial jurisdiction of the States. * * * This is for the purpose of uniformity, as the States can not properly legislate for the high seas.' S.Rep.No.216, 66th Cong., 1st Sess., 3, 4, (1919); H.R.Rep.No.674, 66th Cong., 2d Sess., 3, 4 (1920). The discussion of the bill on the floor of the House evidenced the same concern that a cause of action be provided 'in cases where there is now no remedy,' 59 Cong.Rec. 4486, and at the same time that 'the power of the States to create actions for wrongful death in no way be affected by enactment of the federal law.' The Tungus v. Skovgaard, 358 U.S., at 593, 79 S.Ct., at 507.
39
Read in light of the state of maritime law in 1920, we believe this legislative history indicates that Congress intended to ensure the continued availability of a remedy, historically provided by the States, for deaths in territorial waters; its failure to extend the Act to cover such deaths primarily reflected the lack of necessity for coverage by a federal statute, rather than an affirmative desire to insulate such deaths from the benefits of any federal remedy that might be available independently of the Act. The void that existed in maritime law up until 1920 was the absence of any remedy for wrongful death on the high seas. Congress, in acting to fill that void, legislated only to the three-mile limit because that was the extent of the problem.13 The express provision that state remedies in territorial waters were not disturbed by the Act ensured that Congress' solution of one problem would not create another by inviting the courts to find that the Act pre-empted the entire field, destroying the state remedies that had previously existed.
40
The beneficiaries of persons meeting death on territorial waters did not suffer at that time from being excluded from the coverage of the Act. To the contrary, the state remedies that were left undisturbed not only were familiar but also may actually have been more generous than the remedy provided by the new Act. On the one hand, the primary basis of recovery under state wrongful-death statutes was negligence. On the other hand, the substantive duties imposed at that time by general maritime law were vastly different from those that presently exist. '(T)he seaman's right to recover damages for injuries caused by unseaworthiness of the ship was an obscure and relatively little used remedy,' perhaps largely because prior to this Court's decision in Mahnich v. Southern S.S. Co., 321 U.S. 96. 64 S.Ct. 455, 88 L.Ed. 561 (1944), the shipowner's duty was only to use due diligence to provide a seaworthy ship. Gilmore & Black, supra, at 315, 361; Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L.Q. 381, 392—393, 396 (1954). Nonseamen on the high seas could generally recover for ordinary negligence, but even this was virtually denied to seamen under the peculiar maritime doctrine of The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903). Congress in 1920 thus legislated against a backdrop of state laws that imposed a standard of behavior generally the same as—and in some respects perhaps more favorable than—that imposed by federal maritime law.
41
Since that time the equation has changed drastically, through this Court's transformation of the shipowner's duty to provide a seaworthy ship into an absolute duty not satisfied by due diligence. See, e.g., Mahnich v. Southern S.S. Co., supra; Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). The unseaworthiness doctrine has become the principal vehicle for recovery by seamen for injury or death, overshadowing the negligence action made available by the Jones Act, see Gilmore & Black, supra, at 315—332; and it has achieved equal importance for longshoremen and other harbor workers to whom the duty of seaworthiness was extended because they perform work on the vessel traditionally done by seamen. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). The resulting discrepancy between the remedies for deaths covered by the Death on the High Seas Act and for deaths that happen to fall within a state wrongful-death statute not encompassing unseaworthiness could not have been foreseen by Congress. Congress merely declined to disturb state remedies at a time when they appeared adequate to effectuate the substantive duties imposed by general maritime law. That action cannot be read as an instruction to the federal courts that deaths in territorial waters, caused by breaches of the evolving duty of seaworthiness, must be damnum absque injuria unless the States expand their remedies to match the scope of the federal duty.
42
To put it another way, the message of the Act is that it does not by its own force abrogate available state remedies; no intention appears that the Act have the effect of foreclosing any nonstatutory federal remedies that might be found appropriate to effectuate the policies of general maritime law.14
43
That our conclusion is wholly consistent with the congressional purpose is confirmed by the passage of the Jones Act almost simultaneously with the Death on the High Seas Act. As we observed in Gillespie v. United States Steel Corp., 379 U.S. 148, 155, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964), the Jones Act was intended to achieve 'uniformity in the exercise of admiralty jurisdiction' by giving seamen a federal right to recover from their employers for negligence regardless of the location of the injury or death. That strong concern for uniformity is scarcely consistent with a conclusion that Congress intended to require the present nonuniformity in the effectuation of the duty to provide a seaworthy ship. Our recognition of a right to recover for wrongful death under general maritime law will assure uniform vindication of federal policies, removing the tensions and discrepancies that have resulted from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts. E.g., Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960); Goett v. Union Carbide Corp., 361 U.S. 340, 80 S.Ct. 357, 4 L.Ed.2d 341 (1960).15 Such uniformity not only will further the concerns of both of the 1920 Acts but also will give effect to the constitutionally based principle that federal admiralty law should be 'a system of law coextensive with, and operating uniformly in, the whole country.' The Lottawanna, 21 Wall. 558, 575, 22 L.Ed. 654 (1875).
44
We conclude that the Death on the High Seas Act was not intended to preclude the availability of a remedy for wrongful death under general maritime law in situations not covered by the Act.16 Because the refusal of mari time law to provide such a remedy appears to be jurisprudentially unsound and to have produced serious confusion and hardship, that refusal should cease unless there are substantial countervailing factors that dictate adherence to The Harrisburg simply as a matter of stare decisis. We now turn to a consideration of those factors.
IV
45
Very weighty considerations underlie the principle that courts should not lightly overrule past decisions. Among these are the desirability that the law furnish a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise; the importance of furthering fair and expeditious adjudication by eliminating the need to relitigate every relevant proposition in every case; and the necessity of maintaining public faith in the judiciary as a source of impersonal and reasoned judgments. The reasons for rejecting any established rule must always be weighed against these factors.
46
The first factor, often considered the mainstay of stare decisis, is singularly absent in this case. The confidence of people in their ability to predict the legal consequences of their actions is vitally necessary to facilitate the planning of primary activity and to encourage the settlement of disputes without resort to the courts. However, that confidence is threatened least by the announcement of a new remedial rule to effectuate well-established primary rules of behavior. There is no question in this case of any change in the duties owed by shipowners to those who work aboard their vessels. Shipowners well understand that breach of the duty to provide a seaworthy ship may subject them to liability for injury regardless of where it occurs, and for death occurring on the high seas or in the territorial waters of most States. It can hardly be said that shipowners have molded their conduct around the possibility that in a few special circumstances they may escape liability for such a breach. Rather, the established expectations of both those who own ships and those who work on them are that there is a duty to make the ship seaworthy and that a breach of that federally imposed duty will generally provide a basis for recovery. It is the exceptional denial of recovery that disturbs these expectations. 'If the new remedial doctrine serves simply to reinforce and make more effectual well-understood primary obligations, the net result of innovation may be to strengthen rather than to disturb the general sense of security.' Hart & Sacks, supra, at 577; id., at 485, 574—577, 585—595, 606—607; Pound, Some Thoughts About Stare Decisis, 13 NACCA L.J. 19 (1954).
47
Nor do either of the other relevant strands of stare decisis counsel persuasively against the overruling of The Harrisburg. Certainly the courts could not provide expeditious resolution of disputes if every rule were fair game for de novo reconsideration in every case. However, the situation we face is far removed from any such consequence as that. We do not regard the rule of The Harrisburg as a closely arguable proposition—it rested on a most dubious foundation when announced, has become an increasingly unjustifiable anomaly as the law over the years has left it behind, and, in conjunction with its corollary, The Tungus, has produced litigation-spawning confusion in an area that should be easily susceptible of more workable solutions. The rule has had a long opportunity to prove its acceptability, and instead has suffered universal criticism and wide repudiation. To supplant the present disarray in this area with a rule both simpler and more just will further, not impede, efficiency in adjudication. Finally, a judicious reconsideration of precedent cannot be as threatening to public faith in the judiciary as continued adherence to a rule unjustified in reason, which produces different results for breaches of duty in situations that cannot be differentiated in policy. Respect for the process of adjudication should be enhanced, not diminished, by our ruling today.17
V
48
Respondents argue that overruling The Harrisburg will necessitate a long course of decisions to spell out the elements of the new 'cause of action.' We believe these fears are exaggerated, because our decision does not require the fashioning of a whole new body of federal law, but merely removes a bar to access to the existing general maritime law. In most respects the law applied in personal-injury cases will answer all questions that arise in death cases.
49
Respondents argue, for example, that a statute of limitations must be devised or 'borrowed' for the new wrongful-death claim. However, petitioner and the United States respond that since we have simply removed the barrier to general maritime actions for fatal injuries, there is no reason—in federal admiralty suits at least18—that such actions should not share the doctrine of laches immemorially applied to admiralty claims. In applying that doctrine, the argument runs, the courts should give consideration to the two-year statute of limitations in the Death on the High Seas Act,19 just as they have always looked for analogy to appropriate state or foreign statutes of limitations. See Kenney v. Trinidad Corp., 349 F.2d 832, 840 (C.A.5th Cir. 1965); Gilmore & Black, supra, at 296 n. 149, 628. We need not decide this question now, because the present case was brought within a few months of the accident and no question of timeliness has been raised. The argument demonstrates, however, that the difficulties should be slight in applying accepted maritime law to actions for wrongful death.
50
The one aspect of a claim for wrongful death that has no precise counterpart in the established law governing nonfatal injuries is the determination of the beneficiaries who are entitled to recover. General maritime law, which denied any recovery for wrongful death, found no need to specify which dependents should receive such recovery. On this question, petitioner and the United States argue that we may look for guidance to the expressions of Congress, which has spoken on this subject in the Death on the High Seas Act,20 the Jones Act,21 and the Longshoremen's and Harbor Workers' Compensation Act.22 Though very similar, each of these provisions differs slightly in the naming of dependent relatives who may recover and in the priority given to their claims.
51
The United States contends that, of the three, the provision that should be borrowed for wrongful-death actions under general maritime law is that of the Death on the High Seas Act. It is the congressional enactment that deals specifically and exclusively with actions for wrongful death, and that simply provides a remedy for deaths on the high seas—for breaches of the duties imposed by general maritime law. In contrast, the beneficiary provisions of the Jones Act are applicable only to a specific class of actions claims by seamen against their employers—based on violations of the special standard of negligence that has been imposed under the Federal Employers' Liability Act. That standard appears to be unlike any imposed by general maritime law. Further, although the Longshoremen's and Harbor Workers' Compensation Act is applicable to longshoremen such as petitioner's late husband, its principles of recovery are wholly foreign to those of general maritime law like most workmen's compensation laws, it deals only with the responsibilities of employers for death or injury to their employees, and provides standardized amounts of compensation regardless of fault on the part of the employer.
52
The only one of these statutes that applies not just to a class of workers but to any 'person,' and that bases liability on conduct violative of general maritime law, is the Death on the High Seas Act.23 The borrowing of its schedule of beneficiaries, argues the United States, will not only effectuate the expressed congressional preferences in this area but will also promote uniformity by ensuring that the beneficiaries will be the same for identical torts, rather than varying with the employment status of the decedent. There is no occasion, according to this argument, to borrow from the law of the relevant coastal State, since the underlying duties to be effectuated are entirely federal and Congress has expressed its preference of beneficiaries for violations of maritime law.
53
We do not determine this issue now, for we think its final resolution should await further sifting through the lower courts in future litigation. For present purposes we conclude only that its existence affords no sufficient reason for not coming to grips with The Harrisburg. If still other subsidiary issues should require resolution, such as particular questions of the measure of damages, the courts will not be without persuasive analogy for guidance. Both the Death on the High Seas Act and the numerous state wrongful-death acts have been implemented with success for decades. The experience thus built up counsels that a suit for wrongful death raises no problems unlike those that have long been grist for the judicial mill.
54
In sum, in contrast to the torrent of difficult litigation that has swirled about The Harrisburg, The Tungus, which followed upon it, and the problems of federal-state accommodation they occasioned, the recognition of a remedy for wrongful death under general maritime law can be expected to bring more placid waters. That prospect indeed makes for, and not against, the discarding of The Harrisburg.
55
We accordingly overrule The Harrisburg, had hold that an action does lie under general maritime law for death caused by violation of maritime duties. The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered.
56
Reversed and remanded.
57
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
1
Respondents argue that petitioner is foreclosed from seeking a remedy for wrongful death under general maritime law by her failure to invoke that law at the proper time in the courts below. In the state trial court, which was bound to apply federal maritime law in a case within federal admiralty jurisdiction, e.g., Hess v. United States, 361 U.S., at 318, 80 S.Ct., at 345; McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272 (1958), petitioner supported her unseaworthiness claim solely by arguing that the Florida death statute encompassed recovery for unseaworthiness. Under federal law as declared by The Tungus, this the only theory on which she could proceed, short of a challenge—which she did not make—to to the validity of The Tungus itself. After the District Court on removal rejected her claim, petitioner presented to the Court of Appeals only the question of the interpretation of the state statute, until that question was definitively settled against her by the State Supreme Court on referral.
At that point, petitioner moved the Court of Appeals to uphold her claim as a matter of federal law, despite the state court's ruling. In her brief in support of this motion, petitioner urged that the rule of The Tungus was unsound; that the Florida Supreme Court's decision in this case was the first since The Tungus in which a state court had read its wrongful-death act to exclude unseaworthiness; and that the lack of uniformity thus produced dictated a re-examina-
tion of The Tungus and adoption of the views of the dissenters in that case. The Court of Appeals heard oral argument on the motion and granted petitioner leave to file a further brief after argument. Respondents opposed the motion and moved to affirm on the basis of The Tungus, respondent Gulf arguing that: 'Appellant (petitioner) has no Federal or maritime action for wrongful death,' and that : '(T)he issues discussed in Appellant's Brief have been thoroughly argued in Briefs heretofore filed.' Neither respondent opposed consideration of the motion on the ground that the issue had not been properly raised.
The Court of Appeals affirmed, stating: 'No useful purpose will be served by additional review of pertinent authority upon the issue of law presented in this appeal. It is sufficient to say that in The Tungus v. Skovgaard, * * * the United States Supreme Court held that the question whether a State Wrongful Death Act encompasses a cause of action for unseaworthiness is a question to be decided by the courts of that state.'
While this language is not in itself wholly clear, we think it evident in the circumstances that the Court of Appeals considered and rejected petitioner's attack on The Tungus. After granting petitioner an opportunity to present that attack at length, and without receiving any objections from respondents to its consideration, the Court of Appeals cannot be presumed to have refused to entertain it. Rather, we read the opinion as stating that the court deemed itself bound by The Tungus despite petitioner's challenge to that decision. The Court of Appeals had earlier voiced strong criticism of the prevailing law in this area, but had concluded that it was bound to follow The Harrisburg and The Tungus. Kenney v. Trinidad Corp., 349 F.2d 832, 840—841 (C.A. 5th Cir. 1965).
Since the Court of Appeals, without objection, treated the merits of petitioner's attack on The Tungus, we need not consider whether she might otherwise be precluded from pressing that attack here because of her default in failing to urge the same theory in the trial courts. See Neely v. Martin K Eby Constr. Co., 386 U.S. 317, 330, 87 S.Ct. 1072, 1081, 18 L.Ed.2d 75 (1967); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958);
California v. Taylor, 353 U.S. 553, 557 n. 2, 77 S.Ct. 1037, 1039, 1 L.Ed.2d 1034 (1957); Husty v. United States, 282 U.S. 694, 701 702, 51 S.Ct. 240, 242, 75 L.Ed. 629 (1931); Tyrrell v. District of Columbia, 243 U.S. 1, 37 S.Ct. 361, 61 L.Ed. 557 (1917); cf. Curtis Publishing Co. v. Butts, 388 U.S. 130, 145, 87 S.Ct. 1975, 1986, 18 L.Ed.2d 1094 (1967) (opinion of Harlan, J.). Her challenge to The Tungus is properly before us on certiorari, and, of course, it subsumes the question of the continuing validity of The Harrisburg, upon which The Tungus rests. This Court suggested, 396 U.S. 952, 90 S.Ct. 423, 24 L.Ed.2d 418 (1969), that the parties and the Solicitor General address themselves to the question whether The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, should be overruled, and the parties and amici have fully addressed themselves to that case as well as The Tungus.
2
Brame was decided, of course, at a time when the federal courts under Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865 (1842), expounded a general federal common law.
3
The Court stated:
'The argument everywhere in support of such suits in admiralty has been, not that the maritime law, as actually administered in common law countries, is different from the common law in this particular, but that the common law is not founded on good reason, and is contrary to 'natural equity and the general principles of law.' Since, however, it is now established that in the courts of the United States no action at law can be maintained for such a wrong in the absence of a statute giving the right, and it has not been shown that the maritime law, as accepted and received by maritime nations generally, has established a different rule for the government of the courts of admiralty from those which govern courts of law in matters of this kind, we are forced to the conclusion that no such action will lie in the courts of the United States under the general maritime law.' 119 U.S., at 213, 7 S.Ct., at 146.
4
The decision in S. S. Amerika was placed also on an alternative ground, which is independently sufficient. In that case, which arose from a collision between a Royal Navy submarine and a private vessel, the Crown sought to recover from the owners of the private vessel the pensions payable to the families of navy sailors who died in the collision. The first ground given for rejecting the claim was that the damages sought were too remote to be protected by tort law, because the pensions were voluntary payments and because they were not a measure of 'the future services of which the Admiralty had been deprived.' Id., at 42, 50 51. Similar alternative reasoning was given in Brame, which involved a similar situation. 95 U.S., at 758—759, 24 L.Ed. 580. Thus, in neither case was the enunciation of the rule against recovery for wrongful death necessary to the result.
5
The Court in The Harrisburg acknowledged that, at least according to the courts of France, the civil law did allow recovery for the injury suffered by dependents of a person killed. It noted, however, that the Louisiana courts took a different view of the civil law, and that English maritime law did not seem to differ in this regard from English common law. 119 U.S., at 205, 212—213, 7 S.Ct., at 142, 146. See generally Grigsby v. Coast Marine Service, 412 F.2d 1011, 1023—1029 (C.A.5th Cir. 1969); 1 E. Benedict, Law of American Admiralty 2 (6th ed. Knauth 1940); 4 id., at 358.
6
Lord Wright, concurring, stated:
'In one sense it is true that no money can be compensation for life or the enjoyment of life, and in that sense it is impossible to fix compensation for the shortening of life. But it is the best the law can do. It would be paradoxical if the law refused to give any compensation at all because none could be adequate.' (1937) A.C., at 848.
7
It has been suggested that one reason the common-law rule was tolerated in England as long as it was may have been that the relatives of persons killed by wrongful acts often were able to exact compensation from the wrongdoer by threatening to bring a 'criminal appeal.' The criminal appeal was a criminal proceeding brought by a private person, and was for many years more common than indictment as a means of punishing homicide. Though a successful appeal would not produce a monetary recovery, the threat of one served as an informal substitute for a civil suit for damages. Over the years, indictment became more common, and the criminal appeal was abolished by statute in 1819. 59 Geo. 3, c. 46. See Holdsworth, The Origin of the Rule in Baker v. Bolton, 32 L.Q.Rev. 431, 435 (1916); Admiralty Commissioners v. S. S. Amerika, (1917) A.C., at 58—59.
8
See also National Parks Act, 16 U.S.C. § 457; Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331—1343 (making state wrongful-death statutes applicable to particular areas within federal jurisdiction). Cf. n. 16, infra.
9
The Rock case involved the question whether an action for wrongful death was maintainable in the Panama Canal Zone, under a general statute that simply embodied the civil-law principle of liability for damage caused by fault. The majority's decision, engrafting onto this statute the common-law rule forbidding such recovery despite the fact that the rule had then been rejected by every relevant jurisdiction, was immediately repudiated by congressional action. Act of Dec. 29, 1926, § 7, 44 Stat. 927; see Landis, supra, at 227.
10
The general understanding was that the statutes of the coastal States, which provided remedies for deaths within territorial waters, did not apply beyond state boundaries. This Court had suggested, in an early case where the plaintiff and defendant were of the same State, that the law of that State could be applied to a death on the high seas, if the State intended its law to have such scope. The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264 (1907). However, probably because most state death statutes were not meant to have application to the high seas, this possibility did little to fill the vacuum.
11
In 1927 Congress passed the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C. § 901 et seq., granting to longshoremen the right to receive workmen's compensation benefits from their employers for accidental injury or death arising out of their employment. These benefits are made exclusive of any other liability for employers who comply with the Act. The Act does not, however, affect the longshoreman's remedies against persons other than his employer, such as a shipowner, and therefore does not bear on the problem before us except perhaps to serve as yet another example of congressional action to allow recovery for death in circumstances where recovery is allowed for nonfatal injuries.
12
A joint contributor to this last situation, in conjunction with the rule of The Harrisburg, is the decision in Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), where the Court held that the Jones Act, by providing a claim for wrongful death based on negligence, precludes any state remedy for wrongful death of a seaman in territorial waters—whether based on negligence or unseaworthiness. The Court's ruling in Gillespie was only that the Jones Act, which was 'intended to bring about the uniformity in the exercise of admiralty jurisdiction required by the Constitution, * * * necessarily supersedes the application of the death statutes of the several States.' Id., at 155, 85 S.Ct., at 155. The ruling thus does not disturb the seaman's rights under general maritime law, existing alongside his Jones Act claim, to sue his employer for injuries caused by unseaworthiness, see McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed. 1272 (1958), or for death on the high seas caused by unseaworthiness, see Kernan v. American Dredging Co., 355 U.S. 426, 430 n. 4, 78 S.Ct. 394, 397, 2 L.Ed.2d 382 (1958); Doyle v. Albatross Tanker Corp., 367 F.2d 465 (C.A.2d Cir. 1966); cf. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953). Likewise, the remedy under general maritime law that will be made available by our overruling today of The Harrisburg seems to be beyond the preclusive effect of the Jones Act as interpreted in Gillespie. The existence of a maritime remedy for deaths of seamen in territorial waters will further, rather than hinder, 'uniformity in the exercise of admiralty jurisdiction'; and, of course, no question of preclusion of a federal remedy was before the Court in Gillespie or its predecessor, Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686 (1930), since no such remedy was thought to exist at the time those cases were decided. See Gilmore & Black, supra, at 304; but cf. Kernan v. American Dredging Co., 355 U.S., at 429—430, 78 S.Ct., at 397.
13
Similarly, when Parliament abrogated the English common-law rule by passing Lord Campbell's Act, it provided that 'nothing therein contained shall apply to that Part of the United Kingdom called Scotland.' 9 & 10 Vict., c. 93, § 6 (1846). The decisional law of Scotland had long recognized a right to recover for wrongful death; thus the mischief at which the statute aimed could be cured without disturbing Scottish law. The Act 'excluded Scotland from its operation because a sufficient remedy already existed there when in England none existed at all.' Admiralty Commissioners v. S. S. Amerika, (1917) A.C., at 52.
14
We note that § 1 of the Act, which authorizes 'a suit for damages in the district courts of the United States, in admiralty,' has been construed to place exclusive jurisdiction on the admiralty side of the federal courts for suits under the Act, e.g., Devlin v. Flying Tiger Lines, Inc., 220 F.Supp. 924 (D.C.S.D.N.Y.1963), although there was earlier authority to the contrary. Bugden v. Trawler Cambridge, 319 Mass. 315, 65 N.E.2d 533 (1946). If we found from the legislative history that Congress imposed exclusive jurisdiction because of a desire to avoid the presentation of wrongful-death claims to juries, that might support an inference that Congress meant to forbid nonstatutory maritime actions for wrongful death, which might come before state or federal juries. Cf. Fitzgerald v. United States Lines, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963). However, that is not the case. The only discussion of exclusive jurisdiction in the legislative history is found in the House floor debates, during the course of which Representative Volstead, floor manager of the bill and chairman of the Judiciary Committee, told the members that exclusive jurisdiction would follow necessarily from the fact that the Act would be part of the federal maritime law. 59 Cong.Rec. 4485. This erroneous view disregards the 'saving clause' in 28 U.S.C. § 1333, and the fact that federal maritime law is applicable to suits brought in state courts under the permission of that clause. See n. 1, supra. When asked whether it was true that jury trials would never be available in suits under the Act, Representative Volstead replied: 'I do not think so. Perhaps, for certain purposes, under the practice that prevails, they may have a jury, but ordinarily a jury is not allowed. However, I do not know much about admiralty practice.' 59 Cong.Rec. 4485. From this we can derive no expression of policy bearing on the matter under discussion.
15
The incongruity of forcing the States to provide the sole remedy to effectuate duties that have no basis in state policy is highlighted in this case. The Florida Supreme Court ruled that the state wrongful-death act was concerned only with 'traditional common-law concepts,' and not with 'concepts peculiar to maritime law such as 'unseaworthiness' and the comparative negligence rule.' It found no reason to believe that the Florida Legislature intended to cover, or even considered, the 'completely foreign' maritime duty of seaworthiness. 211 So.2d, at 164, 166. Federal law, rather than state, is the more appropriate source of a remedy for violation of the federally imposed duties of maritime law. Cf. Hill, The Law-Making Power of the Federal Courts: Constitutional Preemption, 67 Col.L.Rev. 1024 (1967); Note, The Federal Common Law, 82 Harv.L.Rev. 1512, 1523—1526 (1969).
It is worth noting that this problem of lack of congruence between maritime duties and state remedies was not presented in The Harrisburg. The problem there was that the relevant state statutes of limitations had run, and petitioner sought a federal remedy to which they would not be applicable. The Court did not discuss the standards of behavior comprehended by the state law or by maritime law, and nothing indicates that the state law was not wholly adequate to vindicate substantive maritime policies in a suit brought within the state-prescribed period. Cf. McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272 (1958).
16
Respondents purport to find such a preclusive intent in two other federal statutes in related areas, the National Parks Act, 16 U.S.C. § 457, and the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331—1343. The former provides: 'In the case of the death of any person by the neglect or wrongful act of another within a national park or other place subject to the exclusive jurisdiction of the United States, within the exterior boundaries of any State, such right of action shall exist as though the place were under the jurisdiction of the State within whose exterior boundaries such place may be * * *.' Although Judge Learned Hand once suggested that this statute applied to admiralty, Puleo v. H. E. Moss & Co., 159 F.2d 842, 845 (1947), he quickly reconsidered, Guerrini v. United States, 167 F.2d 352, 355 (1948), and it now seems clear that it does not. See The Tungus v. Skovgaard, 358 U.S. 588, at 609 n. 9, 79 S.Ct. 503, at 515 (separate opinion of Brennan, J.); cf. Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969). The congressional decision to place under state laws such areas as national parks, which are carved from existing state territories and are subject to no other general body of law, carries no implication of a similar intent in the vastly different realm of admiralty.
The latter statute was before this Court in Rodrigue v. Aetna Cas. & Sur. Co., supra. We there determined that the Act was intended to treat artificial islands, located beyond the three-mile limit, not as vessels upon the high seas, but 'as though they were federal enclaves in an upland State.' Because the Act 'deliberately eschewed the application of admiralty principles to these novel structures,' id., at 355, 89 S.Ct. at 1837, they were held subject to the substantive standards of state law except when an inconsistent federal law applied. This special dispensation for a modern problem to which maritime law was thought 'inapposite,' id., at 363, 89 S.Ct. at 1841, has no analogue in this case. It is undisputed that the duties owed by respondents to petitioner's husband were determined by maritime law, and were the same within as without the three-mile limit.
17
Respondents point out that a bill has been introduced in the United States Senate, by request, which would, among other things, extend the Death on the High Seas Act to include deaths in state territorial waters. S. 3143, 91st Cong., 1st Sess. To date no hearings have been scheduled or other action taken on the bill. The mere possibility of future legislation in this field does not, of course, affect the legal merits of petitioner's claim that the rule of The Harrisburg is no longer a valid part of maritime law. See United States v. W. M. Webb, Inc., 397 U.S. 179, 194 n. 21, 90 S.Ct. 850, 857, 25 L.Ed.2d 207 (1970).
Nor do we think that Congress' failure to take action on the pending bill, or to pass a similar measure over the years as the law of deaths on territorial waters became more incongruous, provides guidance for the course we should take in this case. To conclude that Congress, by not legislating on this subject, has in effect foreclosed, by negative legislation as it were, reconsideration of prior judicial doctrine would be to disregard the fact that 'Congress has largely left to this Court the responsibility for fashioning the controlling rules of admiralty law.' Fitzgerald v. United States Lines Co., 374 U.S. 16, 20, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720 (1963).
18
See McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 224, 78 S.Ct. 1201, 1204, 2 L.Ed.2d 1272 (1958).
19
46 U.S.C. § 763.
20
46 U.S.C. §§ 761, 762.
21
45 U.S.C. § 51; see 46 U.S.C. § 688.
22
33 U.S.C. § 909. See n. 11, supra.
23
46 U.S.C. § 761.
| 78
|
398 U.S. 410
90 S.Ct. 1766
26 L.Ed.2d 362
Joseph Thomas MULLOY, Petitioner,v.UNITED STATES.
No. 655.
Argued April 20, 1970.
Decided June 15, 1970.
Robert Allen Sedler, Lexington, Ky., for petitioner.
Joseph J. Connolly, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
Following a jury trial in the United States District Court for the Western District of Kentucky, the petitioner was convicted for refusing to submit to induction into the Armed Forces in violation of § 12(a) of the Military Selective Service Act of 1967, 62 Stat. 622, as amended, 50 U.S.C. App. § 462(a) (1964 ed., Supp. IV). He was sentenced to five years' imprisonment and fined $10,000, and his conviction was affirmed by the Court of Appeals for the Sixth Circuit. 412 F.2d 421. We granted certiorari, 396 U.S. 1036, 90 S.Ct. 680, 24 L.Ed.2d 680, to consider the petitioner's contention, raised both in the trial court and in the Court of Appeals, that the order to report was invalid because his local board had refused to reopen his I—A classification following his application for a I—O classification as a conscientious objector. The argument is that it was an abuse of discretion for the board to reject his conscientious objector claim without reopening his classification, and by so doing to deprive him of his right to an administrative appeal.
2
* On October 17, 1967, the petitioner, who was then 23 years old and classified I—A (available for military service), wrote to his local Selective Service Board that '(a)fter much, much thinking, seeking, and questioning of my own religious upbringing and political experience I have concluded that I am a conscientious objector. I am therefore opposed to war in any form.' In response to this letter the clerk sent him the Special Form for Conscientious Objectors (SSS) Form 150), which he promptly completed and returned.1
3
The petitioner stated in the form that he was conscientiously opposed by reason of his religious training and belief to participation in war in any form. He said that he believed in a Supreme Being and that this belief involved duties superior to those arising from any human relation; that his religious training had taught him that it was against God's law to kill; and that as a member of the armed services he would be obliged to kill or indirectly assist in killing. In response to the form's inquiry as to how, when, and from what source he had received the training and acquired the belief upon which his conscientious objection was based, he gave a detailed answer, explaining that he had been born and raised a Catholic; that he had at one point in his life thought he would become a priest; that he had gone through a religious crisis in college and left the church, but had returned to it and been greatly influenced by the writings of Thomas Merton, who had preached nonviolence. He said that he had learned in the work he had been doing with an antipoverty organization in Appalachia of the need for love and understanding among people, and of the futility of violence. He concluded that his early training, coupled with his adult experience, particularly as a worker among the Appalachian poor, had brought him to his present position as a conscientious objector.
4
The petitioner also gave detailed and specific answers to other questions that the form asked, such as when and where he had given public expression to the views expressed as the basis for his conscientious objector claim, and what actions or behavior he thought most conspicuously demonstrated the consistency and depth of his religious convictions. Five people who were well acquainted with the petitioner wrote to the board, attesting to the sincerity of his beliefs. One letter was from a Catholic priest, who wrote of the petitioner's honesty and integrity and said that he felt military service would do violence to the petitioner's conscience. Other letters from people who had worked with the petitioner spoke of his belief in nonviolence and confirmed the accuracy of the incidents that the petitioner had referred to in the form as manifestations of his beliefs. The petitioner's brother wrote that while he vehemently disagreed with the petitioner's unwillingness to bear arms for his country, he still felt that the petitioner was sincere in his beliefs.
5
In response to the petitioner's request to discuss his application with the board, the clerk wrote that the board had decided to grant him a personal appearance. This interview took place on November 9 and lasted about 10 or 15 minutes. It was attended by three of the four local board members. The re sume of the interview prepared by the clerk stated that the petitioner 'advised that he was claiming a C.O. classification because he had learned through experience and did not until later in life realize the importance of now believing as he did,' and that he 'felt that military service would interrupt his work and there would be no one else to take his place.' The minute entry in the petitioner's file indicated that all members present felt the information in the form, and accompanying letters, together with what was learned at the interview, did not warrant a reopening of the petitioner's I—A classification. However, no formal vote on the petitioner's application was taken until January 11, 1968, at which time the minute entry indicated, all four members were present and again it was noted that all 'felt this information did not warrant reopening' of the I—A classification. After receiving notification of the board's action, the petitioner wrote to the board on January 21 seeking to appeal its failure to reclassify him I—O. He said that he considered the November interview to have been a reopening of his case. On January 23 the board replied that the interview had been extended as a matter of courtesy, and that it had not at any time reopened the petitioner's classification. On the same day the petitioner was ordered to report for induction on February 23, 1968. The petitioner reported, but refused to submit to induction. This refusal resulted in the criminal charge that led to his conviction under 50 U.S.C. App. § 462(a) (1964 ed., Supp. IV).
II
6
Under the Selective Service regulations a 'local board may reopen and consider anew the classification of a registrant * * * (if presented with) facts not considered when the registrant was classified which, if true, would justify a change in the registrant's classification * * *.' 32 CFR § 1625.22 Even if the local board denies the requested reclassification, there is a crucial difference between such board action and a simple refusal to reopen the classification at all. For once the local board reopens, it is required by the regulations to 'consider the new information which it has received (and to) again classify the registrant in the same manner as if he had never before been classified.' 32 CFR § 1625.11. A classification following a reopening is thus in all respects a new and original one and, even if the registrant is placed in the same classification as before, '(e)ach such classification (following the reopening) shall be followed by the same right of appearance before the local board and * * * of appeal as in the case of an original classification.' 32 CFR § 1625.13. Where, however, in the opinion of the board, no new facts are presented or 'such facts, if true, would not justify a change in such registrant's classification * * *,' 32 CFR § 1625.4, the board need not reopen, and following such a refusal to reopen, the registrant has no right to a personal appearance or to an appeal. Thus, whether or not a reopening is granted is a matter of substance, for with a reopening comes the right to be heard personally and to appeal. While the petitioner here was given an interview as a matter of courtesy, the board's refusal to reopen his classification denied him the opportunity for an administrative appeal from the rejection of his conscientious objector claim. Therefore, if the refusal to reopen was improper, petitioner was wrongly deprived of an essential procedural right, and the order to report for induction was invalid.
III
7
Though the language of 32 CFR § 1625.2 is permissive, it does not follow that a board may arbitrarily refuse to reopen a registrant's classification. While differing somewhat in their formulation of precisely just what showing must be made before a board is required to reopen, the courts of appeals in virtually all Federal Circuits have held that where the registrant has set out new facts that establish a prima facie case for a new classification, a board must reopen to determine whether he is entitled to that classification.3 Not to do so these courts have held, is an abuse of discretion, and we agree.
8
Where a registrant makes non-frivolous allegations of facts that have not been previously considered by his board, and that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification, the board must reopen the registrant's classification unless the truth of these new allegations is conclusively refuted by other reliable information in the registrant's file. See United States v. Burlich, D.C., 257 F.Supp. 906, 911. For in the absence of such refutation there can be no basis for the board's refusal to reopen except an evaluative determination adverse to the registrant's claim on the merits. And it is just this sort of determination that cannot be made without affording the registrant a chance to be heard and an opportunity for an administrative appeal.
9
Because of the narrowly limited scope of judicial review available to a registrant,4 the opportunity for full administrative review is indispensable to the fair operation of the Selective Service System.5 Where a prima facie case for reclassification has been made, a board cannot deprive the registrant of such review by simply refusing to reopen his file.6 Yet here the board did precisely that. For it is clear that the petitioner's SSS Form 150 and the accompanying letters constituted a prima facie showing that he met the statutory standard for classification as a conscientious objector (50 U.S.C. App. § 456(j) (1964 ed., Supp. IV)), and the Government now virtually concedes as much.
10
The Government suggests, however, that the board might have concluded that the prima facie claim had been undercut by the petitioner himself—by his statements at the courtesy interview or because his demeanor convinced the board that he was not telling the truth. There is, however, but scant evidence in the record that the board's action was based on any such grounds. And, in any event, it is on precisely such grounds as these that board action cannot be predicated without a reopening of the registrant's classification, and a consequent opportunity for administrative appeal.
11
This is not to say that on all the facts presented to it the board might not have been justified in refusing to grant the petitioner a I—O classification; it is to say that such refusal could properly occur only after his classification had first been reopened. The board could not deprive the petitioner of the procedural protections attending reopening by making an evaluative determination of his claim while purportedly declining to reopen his classification.7
12
Since the petitioner presented a nonfrivolous, prima facie claim for a change in classification based on new factual allegations which were not conclusively refuted by other information in his file, it was an abuse of discretion for the board not to reopen his classification, thus depriving him of his right to an administrative appeal. The order to report for induction was accordingly invalid, and his conviction for refusing to submit to induction must be reversed.
13
It is so ordered.
14
Reversed.
15
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
1
At this time there was no outstanding order to report for induction, though at least two orders to report had previously been sent and subsequently canceled for various reasons not relevant here. Prior to the petitioner's classification in I-A he had had a II-S student deferment and subsequently a II-A occupational deferment.
2
If reclassification is sought after an order to report for induction has been mailed to the registrant, the regulations provide that the classification 'shall not be reopened * * * unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.' 32 CFR § 1625.2.
3
United States v. Gearey, 379 F.2d 915, 922 n. 11 (C.A.2d Cir. 1967), adopting the standard enunciated in United States v. Burlich, 257 F.Supp. 906, 911 (D.C.S.D.N.Y.1966): United States v. Turner, 421 F.2d 1251 (C.A.3d Cir. 1970); United States v. Grier, 415 F.2d 1098 (C.A.4th Cir. 1969); Robertson v. United States, 404, F.2d 1141 (C.A.5th Cir. 1968), rev'd en banc on other grounds, 417 F.2d 440 (1969); Townsend v. Zimmerman, 237 F.2d 376 (C.A.6th Cir. 1956); United States v. Freeman, 388 F.2d 246 (C.A.7th Cir. 1967); Davis v. United States, 410 F.2d 89 (C.A.8th Cir. 1969); Miller v. United States, 388 F.2d 973 (C.A.9th Cir. 1967); Fore v. United States, 395 F.2d 548, 554 (C.A.10th Cir. 1968).
4
See, e.g., Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418.
5
See, e.g., United States v. Freeman, 388 F.2d 246; United States v. Turner, 421 F.2d 1251; Olvera v. United States, 5 Cir., 223 F.2d 880 (C.A.5th Cir. 1955); see also Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453.
6
The scope of judicial review is, as a practical matter, particularly narrow where the registrant is claiming conscientious objector status.
'A sincere claimant for conscientious objector status cannot turn to the habeas corpus remedy (to challenge the legality of his classification) because his religious belief prevents him from accepting induction under any circumstances. As a result he is limited to seeking review in a criminal trial for refusal to submit. In this criminal proceeding, as in any proceeding reviewing a draft classification, his defense of invalid classification is tested by the 'basis in fact' formula. Under these circumstances conviction is almost inevitable, since the Board's refusal to grant the conscientious objector classification is based on an inference as to the sincerity of the registrant's belief and there will almost always be something in the record to support an inference of lack of sincerity.' United States v. Freeman, 388 F.2d 246, 248—249 (C.A.7th Cir. 1967).
7
The Government argues that if the local board must reopen whenever a prima facie case for reclassification is stated by the registrant, he will be able to postpone his induction indefinitely and the administration of the Selective Service System will be undermined. But the board need not reopen where the claim is plainly incredible, or where, even if true, it would not warrant reclassification, or where the claim has already been passed on, or where the claim itself is conclusively refuted by other information in the applicant's file. Moreover, a registrant who makes false statements to his draft board is subject to severe criminal penalties. 50 U.S.C. App. § 462(a) (1964 ed., Supp. IV).
| 23
|
398 U.S. 419
90 S.Ct. 1752
26 L.Ed.2d 370
William EVANS et al., Appellants,v.Tillye CORNMAN et al.
No. 236.
Argued Jan. 22, 1970.
Decided June 15, 1970.
Robert F. Sweeney, Baltimore, Md., for appellants.
Richard Schifter, Washington, D.C., for appellees.
Opinion of the Court by Mr. Justice MARSHALL, announced by Mr. Justice STEWART.
1
Appellees live on the grounds of the National Institutes of Health (NIH), a federal reservation or enclave located within the geographical boundaries of Montgomery County in the State of Maryland. In October 1968, the Permanent Board of Registry of Montgomery County announced that persons living on NIH grounds did not meet the residency requirement of Art. 1, § 1, of the Maryland Constitution. Accordingly, such persons were not qualified to vote in Maryland elections, and the names of those previously registered would be removed from the county's voter rolls. Appellees then instituted the present suit against the members of the Permanent Board, requesting that a three-judge Federal District Court be convened to enjoin as unconstitutional this application of the Maryland voter residency law.
2
After the District Court issued a temporary restraining order so that appellees who had previously registered could vote in the November 1968 general election,1 the case was considered on the pleadings and stipulations of fact. The District Court issued the requested permanent injunction, holding that to deny appellees the right to vote was to deny them the equal protection of the laws. Cornman v. Dawson, 295 F.Supp. 654 (D.C.Md.1969). Thereafter, a motion by the present appellants to intervene as additional defendants was granted, and a direct apeal was prosecuted to this Court under 28 U.S.C. § 1253. We noted probable jurisdiction, 396 U.S. 812, 90 S.Ct. 80, 24 L.Ed.2d 65 (1969), and we affirm.
3
Under Art. I, § 8, cl. 17, of the United States Constitution, Congress is empowered to 'exercise exclusive Legislation in all Cases whatsoever * * * over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.' NIH, a medical research facility owned and operated by the United States Government, is one of the places subject to that congressional power. The facility commenced operation more than 30 years ago, when land was purchased and residential buildings were built to allow scientists and doctors to live near their work. It did not become a federal reservation, however, until 1953 when the State of Maryland ceded jurisdiction over the property to the United States.2
4
Before that time, persons who resided on NIH grounds could register and vote in Montgomery County; they continued to do so, apparently without question, for another 15 years. In 1963, however, in a case involving residents of another federal enclave, Royer v. Board of Election Supervisors, 231 Md. 561, 191 A.2d 446, the Maryland Court of Appeals ruled that a resident of a federal reservation is not 'a resident of the State' within the meaning of that term in Art. 1, § 1, of the Maryland Constitution, the provision that governs voter qualifications.
5
It was the Royer decision that prompted the action of the election officials in the present case. Appellants rely heavily on it and urge simply that persons who live on NIH grounds are residents of the enclave, not residents of the State of Maryland. Maryland may, of course, require that 'all applicants for the vote actually fulfill the requirements of bona fide residence.' Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675 (1965). 'But if they are in fact residents, with the intention of making (the State) their home indefinitely, they, as all other qualified residents, have a right to an equal opportunity for political representation.' Id., at 94, 85 S.Ct. at 779.
6
What was said in Carrington, rejecting in another context a different artificial gloss on a residency requirement, is applicable here as well. Appellees clearly live within the geographical boundaries of the State of Maryland, and they are treated as state residents in the census and in determining congressional apportionment. They are not residents of Maryland only if the NIH grounds ceased to be a part of Maryland when the enclave was created. However, that 'fiction of a state within a state' was specifically rejected by this Court in Howard v. Commissioners of Louisville, 344 U.S. 624, 627, 73 S.Ct. 465, 467, 97 L.Ed. 617 (1953), and it cannot be resurrected here to deny appellees the right to vote.
7
Appellants argue that even if appellees are residents of Maryland, the State may constitutionally structure its election laws so as to deny them the right to vote. This Court has, of course, recognized that 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 Election Board, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072 (1959). At the same time, however, there can be no doubt at this date that 'once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.' Harper v. Virginia Board of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966); see Williams v. Rhodes, 393 U.S. 23, 29, 89 S.Ct. 5, 9, 21 L.Ed.2d 24 (1968). Moreover, the right to vote, as the citizen's link to his laws and government, is protective of all fundamental rights and privileges. See Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886); Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 534, 11 L.Ed.2d 481 (1964). And before that right can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.
8
The sole interest or purpose asserted by appellants to justify the limitation on the vote in the present case is essentially to insure that only those citizens who are primarily or substantially interested in or affected by electoral decisions have a voice in making them. Without deciding the question, we have assumed that such an interest could be sufficiently compelling to justify limitations on the suffrage, at least with regard to some elections. See Kramer v. Union School District, 395 U.S. 621, 632, 89 S.Ct. 1886, 1892, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 704, 89 S.Ct. 1897, 1899, 23 L.Ed.2d 647 (1969). However, it is clear that such a claim cannot lightly be accepted. This Court has held that a State may not dilute a person's vote to give weight to other interests, see, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and a lesser rule could hardly be applicable to a complete denial of the vote. See Kramer v. Union School District, supra, 395 U.S. at 626—627, 89 S.Ct. at 1889. All too often, lack of a 'substantial interest' might mean no more than a different interest, and "(f)encing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.' Carrington v. Rash, supra, 380 U.S. at 94, 85 S.Ct. at 779.
9
According to appellants, NIH residents are substantially less interested in Maryland affairs than other residents of the State because the Constitution vests 'exclusive Legislation in all Cases whatsoever' over federal enclaves to Congress. Appellants cite decisions dating back to Opinion of the Justices, 42 Mass. 580 (1841), and Sinks v. Reese, 19 Ohio St. 306 (1870), denying enclave residents the right to vote on the ground that the State has no jurisdiction over them.3 We need not consider, however, whether these early cases would meet the requirements of the Fourteenth Amendment, for the relationship between federal enclaves and the States in which they are located has changed considerably since they were decided. As the District Court noted, Congress has now permitted the States to extend important aspects of state powers over federal areas. While it is true that federal enclaves are still subject to exclusive federal jurisdiction and Congress could restrict as well as extend the powers of the States within their bounds, see Offutt Housing Co. v. Sarpy County, 351 U.S. 253, 76 S.Ct. 814, 100 L.Ed. 1151 (1956), whether appellees are sufficiently disinterested in electoral decisions that they may be denied the vote depends on their actual interest today, not on what it may be sometime in the future.
10
Appellants do not deny that there are numerous and vital ways in which NIH residents are affected by electoral decisions. Thus, if elected representatives enact new state criminal laws or sanctions or make changes in those presently in effect, the changes apply equally to persons on NIH grounds. Under the Federal Assimilative Crimes Act, 18 U.S.C. § 13, 'acts not punishable by any enactment of Congress are punishable by the then effective laws of the State in which the enclave is situated.' United States v. Sharpnack, 355 U.S. 286, 287, 78 S.Ct. 291, 292, 2 L.Ed.2d 282 (1958). Further, appellees are as concerned with state spending and taxing decisions as other Maryland residents, for Congress has permitted the States to levy and collect their income, gasoline, sales, and use taxes—the major sources of state revenues—on federal enclaves. See 4 U.S.C. §§ 104—110. State unemployment laws and workmen's compensation laws likewise apply to persons who live and work in federal areas. See 26 U.S.C. § 3305(d); 40 U.S.C. § 290. Appellees are required to register their automobiles in Maryland and obtain drivers' permits and license plates from the State; they are subject to the process and jurisdiction of State courts; they themselves can resort to those courts in divorce and child adoption proceedings; and they send their children to Maryland public schools.
11
All of these factors led the District Court to 'conclude that on balance the (appellees) are treated by the State of Maryland as state residents to such an extent that it is a violation of the Fourteenth Amendment for the State to deny them the right to vote.' 295 F.Supp., at 659. Appellants resist that conclusion, arguing that NIH residents do not pay the real property taxes that constitute a large part of the revenues for local school budgets.4 However, Maryland does not purport to exclude from the polls all persons living on tax-exempt property, and it could not constitutionally do so. Cipriano v. City of Houma, supra; see Kramer v. Union School District, supra. Of the other differences asserted between Maryland residents who live on federal enclaves and those who do not, most are far more theoretical than real.5 In any case, these differences, along with whatever others may exist, do not come close to establishing that degree of disinterest in electoral decisions that might justify a total exclusion from the franchise.
12
In their day-to-day affairs, residents of the NIH grounds are just as interested in and connected with electoral decisions as they were prior to 1953 when the area came under federal jurisdiction and as are their neighbors who live off the enclave. In nearly every election, federal, state, and local, for offices from the Presidency to the school board, and on the entire variety of other ballot propositions, appellees have a stake equal to that of other Maryland residents. As the District Court concluded, they are entitled under the Fourteenth Amendment to protect that stake by exercising the equal right to vote.
The judgment is
13
Affirmed.
14
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
1
Of the 12 appellees, 10 were registered to vote in Maryland prior to the commencement of this suit. The other two had sought to register but were not allowed to because they lived on NIH grounds.
2
See Md.Ann.Code, Art. 96, § 34.
3
In addition to the Royer decision of the Maryland Court of Appeals, there are a number of other state court rulings to the same effect. See, e.g., Herken v. Glynn, 151 Kan. 855, 101 P.2d 946 (1940); Arledge v. Mabry, 52 N.M. 303, 197 P.2d 884 (1948); McMahon v. Polk, 10 S.D. 296, 73 N.W. 77 (1897); State ex rel. Lyle v. Willett, 117 Tenn. 334, 97 S.W. 299 (1906).
At the same time, however, there is a contrary line of recent state decisions granting enclave residents the right to vote. See Arapajolu v. McMenamin, 113 Cal.App.2d 824, 249 P.2d 318 (1952); Rothfels v. Southworth, 11 Utah 2d 169, 356 P.2d 612 (1960); Adams v. Londeree, 139 W.Va. 748, 83 S.E.2d 127 (1954).
4
Except for a lessee's interest in property leased from the United States, see 10 U.S.C. § 2667(e), Congress has not provided that the States may apply their property taxes to federal enclaves. At the same time, all, or virtually all, enclave real property is owned by the United States and is otherwise exempt from state property taxes. To compensate for this exemption, Congress has provided that increased amounts of federal-aid-to-education funds be paid with respect to federal employees living on federal property. See 20 U.S.C. §§ 236—244, 631—645.
5
Thus, if there were severance or personal property taxes applicable to residents of Montgomery County (which there are not), they could not be collected on the enclave. Similarly, appellees are exempt from service in the State's unorganized militia (which has apparently never been called up) and from compulsory education laws. Appellants state that a myriad of state regulatory and licensing provisions are not enforceable on the enclave, but no instance of a practical effect on appellees is cited. See also Chicago R.I. & Pacific R. Co. v. McGlinn, 114 U.S. 542, 5 S.Ct. 1005, 29 L.Ed. 270 (1885); Stewart & Co. v. Sadrakula, 309 U.S. 94, 60 S.Ct. 431, 84 L.Ed. 596 (1940).
Perhaps the most real of the differances is that crimes committed on NIH grounds where appellees live, while defined by state law, may only be prosecuted in federal court by federal authorities, whereas the same acts would be prosecuted by state authorities in state courts if they occurred off the enclave. If this difference lessens appellees' interest in state law enforcement and policy at all, it certainly does not do so substantially. All Maryland residents, including appellees, undoubtedly have an interest in state laws and how they are enforced throughout the entire State.
| 12
|
399 U.S. 146
90 S.Ct. 2187
26 L.Ed.2d 487
ILLINOISv.MISSOURI.
No. 18, Original.
Supreme Court of the United States
June 22, 1970
DECREE
1
The Court having referred this case to a Special Master who has filed his Report, and the parties having agreed as to the form of the decree, the Findings of Fact and Conclusions of Law are hereby adopted, and
It is ordered, adjudged, and decreed that:
2
(1) The boundary line between the States of Illinois and Missouri for the geographical area involved in this action is hereby determined and decreed to consist of the following legal description:
3
Beginning at a point in present centerline of the Mississippi River at the intersection of the centerline of the Old Mississippi River said point being designated as the Southeasterly corner of Kaskaskia Island; thence following the centerline of the slough which is the approximate centerline of the Old Mississippi River, described more particularly by the following courses and distances: § 39°30' W, 2100 feet; thence § 55°30' W, 900 feet; thence § 34°30' W, 850 feet; thence N 83°00' W, 500 feet; thence § 61°00' W, 1000 feet; thence § 42°30' W, 2500 feet; thence § 37°00' W, 4000 feet; thence § 45°00' W, 2000 feet; thence § 56°30' W, 4600 feet; thence § 63°00' W, 2150 feet; thence § 79°30' W, 1525 feet; thence N 86°30' W, 4500 feet; thence N 70°00' W, 5050 feet; thence N 57°30' W, 3850 feet; thence N 46°00' W, 1550 feet; thence N 24°00' W, 5650 feet; thence N 39°00' W, 1800 feet; thence N 17°00' W, 1900 feet; thence N 25°30' W, 3150 feet; thence N 32°00' W, 1580 feet; thence N 4°30' W, 3250 feet; thence N 53°45' E, 3300 feet; thence N 69°00' E, 1050 feet; thence 19°00' E, 2350 feet; thence N 75°00' E, 350 feet to a point at the northwest corner of Kaskaskia Island; thence § 47°00' E, 250 feet; thence N 81°00' E, 1050 feet; thence § 78°00' E, 600 feet; thence N 88°45' E, 1551 feet; thence N 70°45' E, 709 feet; thence N 48°30' E, 2986 feet; thence N 51°45' E, 627 feet; thence N 81°45' E, 990 feet; thence N 62°45' E, 495 feet; thence N 40°00' E, 2937 feet; thence N 28°00' E, 528 feet; thence N 04°00' E, 429 feet; thence N 12°00' W, 759 feet; thence N 6°00' E, 412 feet; thence N 33°00' E, 264 feet; to a point which interests the centerline of a slough at the south side of Beaver Island; thence along the centerline of said slough § 85°00' W, 924 feet; thence § 79°00' W, 775 feet; thence N 88°00' W, 1452 feet; thence N 23°00' W, 825 feet; thence N 20°00' W, 3000 feet to the centerline of the Mississippi River.
4
(2) In incidence to the establishment of such boundary line, and upon Missouri's disclaimer herein, the territorial and sovereignty right claimed by Illinois to the body of land given identification in the evidence as 'Kaskaskia Island' is hereby confirmed as against Missouri and decreed to exist in Illinois.
5
(3) In further incidence to the boundary establishment made, the territorial and sovereignty right claimed by Illinois to the body of land given identification in the evidence as 'Beaver Island' is hereby confirmed as against Missouri and decreed to exist in Illinois.
6
(4) In similar incidence, the territorial and sovereignty right claimed by Missouri to each of the two bodies of land given identification severally in the evidence as 'Cottonwoods' and 'Roth Island' is hereby sustained as against Illinois and decreed to exist in Missouri.
7
(5) The boundary description decreed in paragraph (1) hereof is taken from Attachment 'C' of the parties' stipulation as being agreed upon by them to be appropriate and accurate for dispositional use in the event of and in relation to the result here reached. The bodies of land as to which Illinois' rights are confirmed in paragraphs (2) and (3) hereof are located on Illinois' side of the boundary line fixed, and those as to which Missouri's rights are sustained in paragraph (4) hereof are located upon Missouri's side thereof, so that no separate description is here necessary as to any of these bodies in order to effectuate the rights decreed in respect to them.
8
(6) The costs of the suit shall be assessed equally against the parties.
9
Mr. Justice BLACKMUN took no part in the entry of this decree.
| 1011
|
399 U.S. 1
90 S.Ct. 1999
26 L.Ed.2d 387
John Henry COLEMAN and Otis Stephens, Petitioners,v.State of ALABAMA.
No. 72.
Argued Nov. 18, 1969.
Decided June 22, 1970.
[Syllabus from pages 1-2 intentionally omitted]
Charles Tarter, Birmingham, Ala., for petitioners.
David W. Clark, Montgomery, Ala., for respondent.
Mr. Justice BRENNAN announced the judgment of the Court and delivered the following opinion.
1
Petitioners were convicted in an Alabama Circuit Court of assault with intent to murder in the shooting of one Reynolds after he and his wife parked their car on an Alabama highway to change a flat tire. The Alabama Court of Appeals affirmed, 44 Ala.App. 429, 211 So.2d 917 (1968), and the Alabama Supreme Court denied review, 282 Ala. 725, 211 So.2d 927 (1968). We granted certiorari, 394 U.S. 916, 89 S.Ct. 1200, 22 L.Ed.2d 450 (1969). We vacate and remand.
2
Petitioners make two claims in this Court. First, they argue that they were subjected to a station-house lineup in circumstances so unduly prejudicial and conducive to irreparable misidentification as fatally to taint Reynolds' in-court identifications of them at the trial. Second, they argue that the preliminary hearing prior to their indictment was a 'critical stage' of the prosecution and that Alabama's failure to provide them with appointed counsel at the hearing therefore unconstitutionally denied them the assistance of counsel.
I1
3
The lineup of which petitioners complain was conducted on October 1, 1966, about two months after the assault and seven months before petitioners' trial. Petitioners concede that since the lineup occurred before United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, were decided on June 12, 1967, they cannot invoke the holding of those cases requiring the exclusion of in-court identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of counsel. Stovall v. Denno, 388 U.S. 293, 296—301, 87 S.Ct. 1967, 1969 1972, 18 L.Ed.2d 1199 (1967). Rather, they argue that in the circumstances here the conduct of the lineup was so unduly prejudicial as fatally to taint Reynolds' in-court identification of them. This is a claim that must be determined on the totality of the surrounding circumstances. Stovall v. Denno, supra, at 301 302, 87 S.Ct. at 1972; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).
4
At the trial Reynolds testified that at about 11:30 p.m. on July 24, 1966, he was engaged in changing a tire when three men approached from across the highway. One of them shot him from a short distance away. The three then ran up to within three or four feet. Reynolds arose from his stooped position and held on to his wife, who had left the car to watch him as he worked. One of the men put his hand on Mrs. Reynolds' shoulder. Reynolds testified that this was Coleman. Within a few seconds a car with its lights on approached, and the three men turned and 'ran across the road * * *.' As they turned to go, Reynolds was shot a second time. He identified petitioner Stephens as the gunman, stating that he saw him 'in the car lights' while 'looking straight at him.' Reynolds repeated on cross-examination his testimony on direct; he said he saw Coleman 'face to face'; 'I looked into his face,' 'got a real good look at him.'
5
At the pretrial hearing on petitioners' motion to suppress identification evidence, Detective Fordham testified that he had spoken briefly to Reynolds at the hospital two days after the assault and about two weeks later, and that on neither occasion was Reynolds able to provide much information about his assailants. At the hospital he gave a vague description—that the attackers were 'young, black males, close to the same age and height.' Petitioners are both Negro; but Stephens was 18 and 6 2 , and Coleman, 28 and 5 4 1/2 . However, Detective Fordham also testified that at the time Reynolds gave this description he was in considerable pain, and that consequently the questioning was very brief. The detective further stated that Reynolds did not identify any of his assailants from mug shots, but it does not appear whether pictures of petitioners were among those shown him. Detective Hart testified that a lineup was held on October 1 at the request of the police. He stated that Reynolds identified petitioner Stephens spontaneously before the formal lineup even began. '(T)he six men were brought in by the warden, up on the stage, and as Otis Stephens—he didn't get to his position on the stage, which was number one, when Mr. Reynolds identified him as being one of his assailants.' Reynolds gave similar testimony: 'As soon as he stepped inside the door—I hadn't seen him previous to then until he stepped inside the door, and I recognized him * * *. Just as soon as he stepped up on the stage, I said, 'That man, there, is the one; he is the one that shot me." Reynolds also testified that he identified Coleman at the lineup before Coleman could act on a request Reynolds had made that the lineup participants speak certain words used by the attackers. Reynolds admitted that he did not tell Detective Hart of his identification until later during the lineup, and the detective stated he could not recall whether Reynolds told him of the identification before or after Coleman spoke the words.
6
It cannot be said on this record that the trial court erred in finding that Reynolds' in-court identification of the petitioners did not stem from an identification procedure at the lineup 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971. Indeed, the court could find on the evidence adduced at the suppression hearing that Reynolds' identifications were entirely based upon observations at the time of the assault and not at all induced by the conduct of the lineup. There is no merit in the three arguments offered by petitioners for a contrary conclusion.
7
First, Reynolds testified that when the police asked him to go to the city jail he 'took (it) for granted' that the police had caught his assailants. But the record is utterly devoid of evidence that anything the police said or did prompted Reynolds' virtually spontaneous identification of petitioners among the lineup participants as the proceeding got under way.
8
Petitioners next contend that the lineup was unfair because they and their codefendant were the only ones required to say the words used by one of the attackers. There is some conflict in the testimony on this point. Petitioner Stephens testified that petitioners and their codefendant were the only ones who spoke the words. Reynolds testified that not all the men in the lineup spoke them. But Detective Hart stated that all the participants spoke the words. In any case, the court could find on the evidence that Reynolds identified both petitioners before either said anything, and that therefore any failure to require the other participants to say the same words did not aid or influence his identifications.
9
Finally, petitioner Coleman contends that he was unfairly singled out to wear a hat though all the other participants were bareheaded. One of the attackers had worn a hat. Although the record demonstrates that Coleman did in fact wear a hat at the lineup, nothing in the record shows that he was required to do so. Moreover, it does not appear that Reynolds' identification of Coleman at the lineup was based on the fact that he remembered that Coleman had worn a hat at the time of the assault. On the contrary, the court could conclude from his testimony that Reynolds 'asked them to make John Henry Coleman to take his hat off, or move it back,' because he wanted to see Coleman's face more clearly.
II2
10
This Court has held that a person accused of crime 'requires the guiding hand of counsel at every step in the proceedings against him,' Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), and that that constitutional principle is not limited to the presence of counsel at trial. 'It is central to that principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial.' United States v. Wade, supra, 388 U.S. at 226, 87 S.Ct. at 1932. Accordingly, 'the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.' Id., at 227, 87 S.Ct. at 1932. Applying this test, the Court has held that 'critical stages' include the pretrial type of arraignment where certain rights may be sacrificed or lost, Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 158—159, 7 L.Ed.2d 114 (1961), see White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), and the pretrial lineup, United States v. Wade, supra; Gilbert v. California, supra. Cf. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), where the Court held that the privilege against compulsory self-incrimination includes a right to counsel at a pretrial custodial interrogation. See also Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
11
The preliminary hearing is not a required step in an Alabama prosecution. The prosecutor may seek an indictment directly from the grand jury without a preliminary hearing. Ex parte Campbell, 278 Ala. 114, 176 So.2d 242 (1965). The opinion of the Alabama Court of Appeals in this case instructs us that under Alabama law the sole purposes of a preliminary hearing are to determine whether there is sufficient evidence against the accused to warrant presenting his case to the grand jury and, if so, to fix bail if the offense is bailable. 44 Ala.App., at 433, 211 So.2d, at 920. See Ala. Code, Tit. 15, §§ 139, 140, 151.3 The court continued:
12
'At the preliminary hearing * * * the accused is not required to advance any defenses, and failure to do so does not preclude him from availing himself of every defense he may have upon the trial of the case. Also Pointer v. State of Texas (380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)) bars the admission of testimony given at a pretrial proceeding where the accused did not have the benefit of cross-examination by and through counsel. Thus, nothing occurring at the preliminary hearing in absence of counsel can substantially prejudice the rights of the accused on trial.' 44 Ala.App., at 433, 211 So.2d, at 921.
13
This Court is of course bound by this construction of the governing Alabama law, Kingsley International Pictures Corp. v. Regents of University of State of New York, 360 U.S. 684, 688, 79 S.Ct. 1362, 1365, 3 L.Ed.2d 1512 (1959); Albertson v. Millard, 345 U.S. 242, 244, 73 S.Ct. 600, 601—602, 97 L.Ed. 983 (1953). However, from the fact that in cases where the accused has no lawyer at the hearing the Alabama courts prohibit the State's use at trial of anything that occurred at the hearing, it does not follow that the Alabama preliminary hearing is not a 'critical stage' of the State's criminal process. The determination whether the hearing is a 'critical stage' requiring the provision of counsel depends, as noted, upon an analysis 'whether potential substantial prejudice to defendant's rights inheres in the * * * confrontation and the ability of counsel to help avoid that prejudice.' United States v. Wade, supra, 388 U.S. at 227, 87 S.Ct. at 1932. Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.
14
The inability of the indigent accused on his own to realize these advantages of a lawyer's assistance compels the conclusion that the Alabama preliminary hearing is a 'critical stage' of the State's criminal process at which the accused is 'as much entitled to such aid (of counsel) * * * as at the trial itself.' Powell v. Alabama, supra, 287 U.S. at 57, 53 S.Ct. at 60.
III4
15
There remains, then, the question of the relief to which petitioners are entitled. The trial transcript indicates that the prohibition against use by the State at trial of anything that occurred at the preliminary hearing was scrupulously observed.5 Cf. White v. Maryland, supra. But on the record it cannot be said whether or not petitioners were otherwise prejudiced by the absence of counsel at the preliminary hearing. That inquiry in the first instance should more properly be made by the Alabama courts. The test to be applied is whether the denial of counsel at the preliminary hearing was harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See United States v. Wade, supra, 388 U.S. at 242, 87 S.Ct. at 1940.
16
We accordingly vacate the petitioners' convictions and remand the case to the Alabama courts for such proceedings not inconsistent with this opinion as they may deem appropriate to determine whether such denial of counsel was harmless error, see Gilbert v. California, supra, 388 U.S. at 272, 87 S.Ct. at 1956, and therefore whether the convictions should be reinstated or a new trial ordered.
17
It is so ordered.
18
Convictions vacated and case remanded with directions.
19
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
20
Mr. Justice BLACK, concurring.
21
I wholeheartedly agree with the conclusion in Part II of the prevailing opinion that an accused has a constitutional right to the assistance of counsel at the preliminary hearing which Alabama grants criminal defendants. The purpose of the preliminary hearing in Alabama is to determine whether an offense has been committed and, if so, whether there is probable cause for charging the defendant with that offense. If the magistrate finds that there is probable cause for charging the defendant with the offense, the defendant must, under Alabama law, be either incarcerated or admitted to bail. In the absence of such a finding of probable cause, the defendant must be released from custody. Ala.Code, Tit. 15, §§ 139—140. The preliminary hearing is therefore a definite part or stage of a criminal prosecution in Alabama, and the plain language of the Sixth Amendment requires that '(i)n all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.' Moreover, every attorney with experience in representing criminal defendants in a State which has a preliminary hearing similar to Alabama's knows—sometimes from sad experience—that adequate representation requires that counsel be present at the preliminary hearing to protect the interests of his client. The practical importance of the preliminary hearing is discussed in the prevailing opinion, and the considerations outlined there seem to me more than sufficient to compel the conclusion that the preliminary hearing is a 'critical stage' of the proceedings during which the accused must be afforded the assistance of counsel if he is to have a meaningful defense at trial as guaranteed in the Bill of Rights.
22
I fear that the prevailing opinion seems at times to proceed on the premise that the constitutional principle ultimately at stake here is not the defendant's right to counsel as guaranteed by the Sixth and Fourteenth Amendments but rather a right to a 'fair trial' as conceived by judges. While that phrase is an appealing one, neither the Bill of Rights nor any other part of the Constitution contains it. The pragmatic, government-fearing authors of our Constitution and Bill of Rights did not, and I think wisely did not, use any such vague, indefinite, and elastic language. Instead, they provided the defendant with clear, emphatic guarantees: counsel for his defense, a speedy trial, trial by jury, confrontation with the witnesses against him, and other such unequivocal and definite rights. The explicit commands of the Constitution provide a full description of the kind of 'fair trial' the Constitution guarantees, and in my judgment that document leaves no room for judges either to add to or detract from these commands. I can have no part in unauthorized judicial toying with the carefully selected language of our Constitution, which I think is the wisest and best charter of government in existence. It declares a man charged with a crime shall be afforded a lawyer to defend him even though all the judges throughout the entire United States should declare, 'It is only when we think fairness requires it that an accused shall have the assistance of counsel for his defense.' For one, I still prefer to trust the liberty of the citizen to the plain language of the Constitution rather than to the sense of fairness of particular judges.
23
I also agree with the prevailing opinion in rejecting petitioners' claim that their in-court identification by the victim of the assault should have been suppressed. This claim relies mainly on Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), in which the Court held that an incourt identification could be suppressed under the Due Process Clause of the Fourteenth Amendment if it was tainted by an 'unnecessarily suggestive' pretrial lineup. I dissented in Stovall partly on the ground that the majority's new suppression rule was a classic example of this Court's using the Due Process Clause to write into law its own notions of fairness, decency, and fundamental justice, in total disregard of the language of the Constitution itself. But I also argued in Stovall that the right to counsel at a lineup, declared that same day in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), should be held fully retroactive. Stovall v. Denno, 388 U.S., at 303, 87 S.Ct., at 1973. Accordingly, I believe that petitioners in this pre-Wade case were entitled to court-appointed counsel at the time of the lineup in which they participated and that Alabama's failure to provide such counsel violated petitioners' rights under the Sixth and Fourteenth Amendments. However, for the reasons stated in my separate opinion in United States v. Wade, 388 U.S. 218, 243, 87 S.Ct. 1926, 1940—1941, 18 L.Ed.2d 1149 (1967), I believe the requirements of the Fifth and Sixth Amendments were satisfied when the Alabama prosecutors declined at trial to introduce the pretrial lineup identification into evidence. Accordingly, I concur in the conclusion in Part I of the prevailing opinion that the Alabama court did not err in permitting the courtroom identification of petitioners by the witness who had previously identified them at the lineup.
24
For the reasons here stated, I agree that petitioners' convictions must be vacated and the case remanded to the Alabama courts for consideration of whether the denial of counsel at the preliminary hearing was harmless error under the Court's decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
25
Mr. Justice DOUGLAS.
26
While I have joined Mr. Justice BRENNAN'S opinion, I add a word as to why I think that a strict construction of the Constitution requires the result reached.
27
The critical words are: 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.' As Mr. Justice BLACK states, a preliminary hearing is 'a definite part or stage of a criminal prosecution in Alabama.' A 'criminal prosecution' certainly does not start only when the trial starts. If the commencement of the trial were the start of the 'criminal prosecution' in the constitutional sense, then indigents would likely go to trial without effective representation by counsel. Lawyers for the defense need time to prepare a defense. The prosecution needs time for investigations and procedures to make that investigation timely and telling. As a shorthand expression we have used the words 'critical stage' to describe whether the preliminary phase of a criminal trial was part of the 'criminal prosecution' as used in the Sixth Amendment. But it is the Sixth Amendment that controls, not our own ideas as to what an efficient criminal code should provide. It did not take nearly 200 years of doubt to decide whether Alabama's preliminary hearing is a part of the 'criminal prosecution' within the meaning of the Sixth Amendment. The question has never been reached prior to this case. We experience here the case-by-case approach that is the only one available under our 'case' or 'controversy' jurisdiction under Article III of the Constitution.
28
If we are to adhere to the mandate of the Constitution and not give it merely that meaning which appeals to the personal tastes of those who from time to time sit here, we should read its terms in light of the realities of what 'criminal prosecutions' truly mean.
29
I was impressed with the need for that kind of strict construction on experiences in my various Russian journeys. In that nation detention incommunicado is the common practice, and the period of permissible detention now extends for nine months.1 Where there is custodial interrogation, it is clear that the critical stage of the trial takes place long before the courtroom formalities commence. That is apparent to one who attends criminal trials in Russia. Those that I viewed never put in issue the question of guilt; guilt was an issue resolved in the inner precincts of a prison under questioning by the police. The courtroom trial concerned only the issue of punishment.
30
Custodial interrogation is in practice—here and in other nations—so critical that we would give 'criminal prosecutions' as used in the Sixth Amendment a strained and narrow meaning if we held that it did not include that phase. My brother Harlan in his dissent in Miranda v. Arizona, 384 U.S. 436, 513, 86 S.Ct. 1602, 1648, 16 L.Ed.2d 694, called the Sixth Amendment cases cited by the majority of the Court the 'linchpins' of the ruling that an accused under custodial interrogation was entitled to the assistance of counsel.2 They were properly such, although the main emphasis in the Miranda opinion was on the use of custodial interrogation to exact incriminating statements3 against the commands of the Fourteenth and Fifth Amendments. Like the preliminary hearing in the present case, custodial interrogation is obviously part of the 'criminal prosecution' that the Sixth Amendment honors—if strict construction is our guide.
31
Mr. Justice WHITE, concurring.
32
I agree with Mr. Justice HARLAN that recent cases furnish ample ground for holding the preliminary hearing a critical event in the progress of a criminal case. I therefore join the prevailing opinion, but with some hesitation since requiring the appointment of counsel may result in fewer preliminary hearings in jurisdictions where the prosecutor is free to avoid them by taking a case directly to a grand jury. Our ruling may also invite eliminating the preliminary hearing system entirely.
33
I would expect the application of the harmless-error standard on remand to produce results approximating those contemplated by Mr. Justice HARLAN's separately stated views. Whether denying petitioners counsel at the preliminary hearing was harmless beyond a reasonable doubt depends upon an assessment of those factors that made the denial error. But that assessment cannot ignore the fact that petitioners have been tried and found guilty by a jury.
34
The possibility that counsel would have detected preclusive flaws in the State's probable-cause showing is for all practical purposes mooted by the trial where the State produced evidence satisfying the jury of the petitioners' guilt beyond a reasonable doubt. Also, it would be wholly speculative in this case to assume either (1) that the State's witnesses at the trial testified inconsistently with what their testimony would have been if petitioners had had counsel to cross-examine them at the preliminary hearing, or (2) that counsel, had he been present at the hearing, would have known so much more about the State's case than he actually did when he went to trial that the result of the trial might have been different. So too it seems extremely unlikely that matters related to bail or early psychiatric examination would ever raise reasonable doubts about the integrity of the trial.
35
There remains the possibility, as Mr. Justice HARLAN suggests, that important testimony of witnesses unavailable at the trial could have been preserved had counsel been present to cross-examine opposing witnesses or to examine witnesses for the defense. If such was the case, petitioners would be entitled to a new trial.
36
Mr. Justice HARLAN, concurring in part and dissenting in part.
37
If I felt free to consider this case upon a clean slate I would have voted to affirm these convictions.* But—in light of the lengths to which the right to appointed counsel has been carried in recent decisions of this Court see 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); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968); and Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969)—I consider that course is not open to me with due regard for the way in which the adjudicatory process of this Court, as I conceive it, should work. The continuing viability of the cases just cited is not directly before us for decision, and if and when such an occasion arises I would face it in terms of considerations that I have recently expressed elsewhere. See my dissenting opinion in Baldwin v. New York, decided today, 399 U.S. 117, 90 S.Ct. 1914, 26 L.Ed.2d 437, and my opinion concuring in the result in Welsh v. United States, 398 U.S. 333, 344, 90 S.Ct. 1792, 1798, 26 L.Ed.2d 308 (1970).
38
Accordingly I am constrained to agree with the Court's conclusion that petitioners' constitutional rights were violated when Alabama refused to appoint counsel to represent them at the preliminary hearing. I dissent, however, from the terms of the Court's remand on this issue, as well as from the refusal to accord petitioners the benefit of the Wade case in connection with their police 'lineup' contentions.
39
* It would indeed be strange were this Court, having held a suspect or an accused entitled to counsel at such pretrial stages as 'in-custody' police investigation, whether at the station house (Miranda) or even in the home (Orozco), now to hold that he is left to fend for himself at the first formal confrontation in the courtroom.
40
While, given the cases referred to, I cannot escape the conclusion that petitioners' constitutional rights must be held to have been violated by denying them appointed counsel at the preliminary hearing, I consider the scope of the Court's remand too broad and amorphous. I do not think that reversal of these convictions, for lack of counsel at the preliminary hearing, should follow unless petitioners are able to show on remand that they have been prejudiced in their defense at trial, in that favorable testimony that might otherwise have been preserved was irretrievably lost by virtue of not having counsel to help present an affirmative case at the preliminary hearing. In this regard, of course, as with any other erroneously excluded testimony, petitioners would have to show that its weight at trial would have been such as to constitute its 'exclusion' reversible error, as well as demonstrate the actual likelihood that such testimony could have been presented and preserved at the preliminary hearing. In my opinion mere speculation that defense counsel might have been able to do better at trial had he been present at the preliminary hearing should not suffice to vitiate a conviction. The Court's remand under the Chapman harmless-error rule seems to me to leave the way open for that sort of speculation.
II
41
Despite my continuing disagreement with United States v. Wade, supra, I must dissent from the refusal to accord petitioners the benefit of the Wade holding, neither petitioner having been afforded counsel at the police 'lineup' identification. The majority's action results from the holding in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), making Wade applicable only to lineups occurring after the date of that decision, the present lineup having taken place well before. For reasons explained in my dissent in Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248 (1969), I can no longer follow the 'retroactivity' doctrine announced in Stovall in cases before us on direct review. That being the situation here, I would judge the case in light of Wade.
42
The Wade rule requires the exclusion of any in-court identification preceded by a pretrial lineup where the accused was not represented by counsel, unless the incourt identification is found to be derived from a source 'independent' of the tainted pretrial viewing. Such a determination must, in the first instance, be made by the trial court. I would therefore send the case back on this score too.
43
Mr. Chief Justice BURGER (dissenting).
44
I agree that as a matter of sound policy counsel should be made available to all persons subjected to a preliminary hearing and that this should be provided either by statute or by the rulemaking process. However, I cannot accept the notion that the Constitution commands it because it is a 'criminal prosecution.'1 Although Mr. Justice STEWART, whose opinion I join, and Mr. Justice HARLAN and Mr. Justice WHITE have each noted some of the difficulties, both on constitutional and practical grounds, with today's holding, I separately set forth additional reasons for my dissent.2
45
Certainly, as Mr. Justice HARLAN and Mr. Justice WHITE suggest, not a word in the Constitution itself either requires or contemplates the result reached; unlike them, however, I do not acquiesce in prior holdings that purportedly, but nonetheless erroneously, are based on the Constitution. That approach simply is an acknowledgment that the Court having previously amended the Sixth Amendment now feels bound by its action. While I do not rely solely on 183 years of contrary constitutional interpretation, it is indeed an odd business that it has taken this Court nearly two centuries to 'discover' a constitutional mandate to have counsel at a preliminary hearing. Here there is not even the excuse that conditions have changed; the preliminary hearing is an ancient institution.
46
With deference, then I am bound to reject categorically Mr. Justice HARLAN's and Mr. Justice WHITE's thesis that what the Court said lately controls over the Constitution. While our holdings are entitled to deference I will not join in employing recent cases rather than the Constitution, to bootstrap ourselves into a result, even though I agree with the objective of having counsel at preliminary hearings. By placing a premium on 'recent cases' rather than the language of the Constitution, the Court makes it dangerously simple for future Courts, using the technique of interpretation, to operate as a 'continuing Constitutional convention.'
47
I wish to make clear that my disagreement with the prevailing opinion is directed primarily at its reasoning process, rather than with the broad social and legal desirability of the result reached. I would not decide that the Constitution commands this result simply because I think it is a desirable one. Indeed, there have been many studies, including that of the American Bar Association's Criminal Justice Project, that acknowledge the wisdom of providing counsel at the preliminary hearing. ABA Project on Standards for Criminal Justice, Providing Defense Services § 5.1 (Approved Draft 1968). But this should be provided either by statute or by the rule-making process since the Constitution does not require it. Mr. Justice WHITE, while joining the prevailing opinion with some reservations, belies the essence of the matter when he states that 'recent cases furnish ample ground for holding the preliminary hearing a critical event in the progress of a criminal case.' (Emphasis added.)
48
If the Constitution provided that counsel be furnished for every 'critical event in the progress of a criminal case,' that would be another story, but it does not. In contrast to the variety of verbal combinations employed by the majority to justify today's disposition, the Sixth Amendment states with laudable precision that: 'In all criminal prosecutions, the accused shall * * * have the Assistance of Counsel.' (Emphasis added.) The only relevant determination is whether a preliminary hearing is a 'criminal prosecution,' not whether it is a 'critical event in the progress of a criminal case.' By inventing its own verbal formula the prevailing opinion simply seeks to reshape the Constitution in accordance with predilections of what is deemed desirable. Constitutional interpretation is not an easy matter, but we should be especially cautious about substituting our own notions for those of the Framers. I heed Mr. Justice Black's recent admonition on 'the difference * * * 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.' North Carolina v. Pearce, 395 U.S. 711, 744, 89 S.Ct. 2072, 2085, 23 L.Ed.2d 656 (1969) (separate opinion of Black, J.) (emphasis in original).
49
In the federal courts, and as provided by statute in most States, the three steps that follow arrest are (1) the preliminary hearing under Fed.Rule Crim.Proc. 5(c); (2) the grand jury inquiry; and (3) the arraignment under Fed.Rule Crim.Proc. 10. We know, of course, that if the hearing officer at the preliminary hearing concludes to hold the person for possible grand jury action counsel is not permitted to attend the latter proceedings. If the grand jury returns an indictment, the accused must then enter a plea at arraignment, and at this hearing counsel is required under Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961).
50
In Alabama, as in the federal system, the preliminary hearing has been an inquiry into whether the arrested person should be discharged or whether, on the contrary, there is probable cause to submit evidence to a grand jury or other charging authority for further consideration. No verdict can flow from the hearing magistrate's determination, and a discharge, unlike an acquittal, is no bar to a later indictment. Thus it is not a trial in any sense in which lawyers and judges use that term. Moreover, the hearing magistrate cannot indict; he can pass only on the narrow question of whether further inquiry is warranted. Recognizing however, that the preliminary hearing is not an unimportant step in 'the progress of a criminal case,' this Court has already held that disclosures of an uncounseled person at the hearing may not be used against him if he is later tried. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). See also Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
51
Under today's holding we thus have something of an anomaly under the new 'discovery' of the Court that counsel is constitutionally required at the preliminary hearing since counsel cannot attend a subsequent grand jury inquiry, even though witnesses, including the person eventually charged, may be interrogated in secret session. If the current mode of constitutional analysis subscribed to by this Court in recent cases requires that counsel be present at preliminary hearings, how can this be reconciled with the fact that the Constitution itself does not permit the assistance of counsel at the decidely more 'critical' grand jury inquiry?
52
Finally, as pointed out, the Court has already protected an accused from absence of counsel at the preliminary hearing by providing that statements of an uncounseled person are inadmissible at trial. The prevailing opinion fails to explain why that salutary—indeed drastic—remedy is no longer sufficient protection for the preliminary hearing stage unless what the Court is doing—surreptitiously—is to convert the preliminary hearing into a discovery device. But the need for even that step is largely dissipated by the proposed amendments for pretrial discovery in criminal cases. See Judicial Conference of the United States, Committee on Rules of Practice and Procedure, Proposed Amendments to the Federal Rules of Criminal Procedure for United States District Courts (preliminary draft, Jan. 1970).
53
Mr. Justice STEWART, with whom The Chief Justice joins, dissenting.
54
On a July night in 1966 Casey Reynolds and his wife stopped their car on Green Springs Highway in Birmingham, Alabama, in order to change a flat tire. They were soon accosted by three men whose evident purpose was armed robbery and rape. The assailants shot Reynolds twice before they were frightened away by the lights of a passing automobile. Some two months later the petitioners were arrested, and later identified by Reynolds as two of the three men who had assaulted him and his wife.
55
A few days later the petitioners were granted a preliminary hearing before a county judge. At this hearing the petitioners were neither required nor permitted to enter any plea. The sole purpose of such a hearing in Alabama is to determine whether there is sufficient evidence against the accused to warrant presenting the case to a grand jury, and, if so, to fix bail if the offense is bailable.1 At the conclusion of the hearing the petitioners were bound over to the grand jury, and their bond was set at $10,000. No record or transcript of any kind was made of the hearing.
56
Less than a month later the grand jury returned an indictment against the petitioners, charging them with assault to commit murder. Promptly after their indictment, a lawyer was appointed to represent them. At their arraignment two weeks later, where they were represented by their appointed counsel, they entered a plea of not guilty. Cf. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. Some months later they were brought to trial, again represented by appointed counsel. Cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The jury found them guilty as charged, and they were sentenced to the penitentiary.
57
If at the trial the prosecution had used any incriminating statements made by the petitioners at the preliminary hearing, the convictions before us would quite properly have to be set aside. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. But that did not happen in this case. Or if the prosecution had used the statement of any other witness at the preliminary hearing against the petitioners at their trial, we would likewise quite properly have to set aside these convictions. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. But that did not happen in this case either. For, as the prevailing opinion today perforce concedes, 'the prohibition against use by the State at trial of anything that occurred at the preliminary hearing was scrupulously observed.'
58
Nevertheless, the Court sets aside the convictions because, it says, counsel should have been provided for the petitioners at the preliminary hearing. None of the cases relied upon in that opinion points to any such result. Even the Miranda decision does not require counsel to be present at 'pretrial custodial interrogation.' That case simply held that the constitutional guarantee against compulsory self-incrimination prohibits the introduction at the trial of statements made by the defendant during custodial interrogation if the Miranda 'guidelines' were not followed. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. And I repeat that in this case no evidence of anything said or done at the preliminary hearing was introduced at the petitioners' trial.
59
But the prevailing opinion holds today that the Constitution required Alabama to provide a lawyer for the petitioners at their preliminary hearing, not so much, it seems, to assure a fair trial as to assure a fair preliminary hearing. A lawyer at the preliminary hearing, the opinion says, might have led the magistrate to 'refuse to bind the accused over.' Or a lawyer might have made 'effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.'
60
If those are the reasons a lawyer must be provided, then the most elementary logic requires that a new preliminary hearing must now be held, with counsel made available to the petitioners. In order to provide such relief, it would, of course, be necessary not only to set aside these convictions, but also to set aside the grand jury indictments, and the magistrate's orders fixing bail and binding over the petitioners. Since the petitioners have now been found by a jury in a constitutional trial2 to be guilty beyond a reasonable doubt, the prevailing opinion understandably boggles at these logical consequences of the reasoning therein. It refrains, in short, from now turning back the clock by ordering a new preliminary hearing to determine all over again whether there is sufficient evidence against the accused to present their case to a grand jury. Instead, the Court sets aside these convictions and remands the case for determination 'whether the convictions should be reinstated or a new trial ordered,' and this action seems to me even more quixotic.
61
The petitioners have simply not alleged that anything that happened at the preliminary hearing turned out in this case to be critical to the fairness of their trial. They have not alleged that they were affirmatively prejudiced at the trial by anything that occurred at the preliminary hearing. They have not pointed to any affirmative advantage they would have enjoyed at the trial if they had had a lawyer at their preliminary hearing.
62
No record or transcript of any kind was made of the preliminary hearing. Therefore, if the burden on remand is on the petitioners to show that they were prejudiced, it is clear that that burden cannot be met and the remand is a futile gesture. If, on the other hand, the burden is on the State to disprove beyond a reasonable doubt any and all speculative advantages that the petitioners might conceivably have enjoyed if counsel had been present at their preliminary hearing, then obviously that burden cannot be met either, and the Court should simply reverse these convictions. All I can say is that if the Alabama courts can figure out what they are supposed to do with this case now that it has been remanded to them, their perceptiveness will far exceed mine.
63
The record before us makes clear that no evidence of what occurred at the preliminary hearing was used against the petitioners at their now completed trial. I would hold, therefore, that the absence of counsel at the preliminary hearing deprived the petitioners of no constitutional rights. Accordingly, I would affirm these convictions.
1
Mr. Justice Douglas, Mr. Justice White, and Mr. Justice Marshall join this Part I.
2
Mr. Justice Douglas, Mr. Justice White, and Mr. Justice Marshall join this Part II.
3
A text book, Criminal Procedure in Alabama, by M. Clinton McGee (University of Alabama Press 1954), p. 41, states:
'A preliminary hearing or examination is not a trial in its ordinary sense nor is it a final determination of guilt. It is a proceeding whereby an accused is discharged or held to answer, as the facts warrant. It seeks to determine whether there is probable cause for believing that a crime has been committed and whether the accused is probably guilty, in order that he may be informed of the nature of such charge and to allow the state to take the necessary steps to bring him to trial. Such hearing also serves to perpetuate evidence and to keep the necessary witnesses within the control of the state. It also safeguards the accused against groundless and vindictive prosecutions, and avoids for both the accused and the state the expense and inconvenience of a public trial.'
4
Mr. Justice Black, Mr. Justice Douglas, Mr. Justice White, and Mr. Justice Marshall join this Part III.
5
The trial judge held a hearing two months before the trial on motions on behalf of petitioners to suppress 'any evidence or discovery whatsoever obtained * * * on the preliminary hearing * * * and further any statements relating to any identification * * * during any line-up * * *.' The State conceded that the motion should be granted as to any statements of either petitioner taken by the police upon their arrests, and written and oral confessions made by them were therefore not offered at the trial. At an early stage of the hearing on the motions, the trial judge said:
'It has been my consistent ruling, and I don't know of any law to the contrary, that, on the basis of what happened at the preliminary hearing, that if a lawyer was not representing the defendant that anything that may have occurred at that preliminary which might work against the defendant, whether it be anything he said there, assuming he might have taken the stand, anything of that nature, would, on the trial of the case on the merits, be inadmissible.
'I wouldn't anticipate the State offering anything like that, but that has been my ruling on that ever since we changed some of our ways of doing things.
'It wouldn't be material from the standpoint that a man down there, when not represented by counsel on the preliminary, made some statement, said, 'I am guilty.' You know, a lot of times he might say, 'I am guilty.'
'That that would not be admissible if he weren't represented by counsel, and that sort of thing.'
1
Article 97 of the RSFSR Codes of Criminal Procedure provides:
'Confinement under guard in connection with the investigation of a case may not continue for more than two months. Only by reason of the special complexity of the case may this period be prolonged up to three months from the day of confinement under guard by a procurator of an autonomous republic, territory, region, autonomous region, or national area, or by a military procurator of a military region or fleet, or up to six months by the RSFSR Procurator or the Chief Military Procurator. Further prolongation of a period of confinement under guard may be carried out only in exceptional instances by the USSR Procurator General for a period of not more than an additional three months.' Soviet Criminal Law and Procedure: The RSFSR Codes 288 (H. Berman & J. Spindler, transl. 1966).
2
Article 47 of the RSFSR Codes of Criminal Procedure provides in part:
'Defense counsel shall be permitted to participate in a case from the moment the accused is informed of the completion of the preliminary investigation and is presented with all the proceedings of the case to become acquainted with them.' Soviet Criminal Law and Procedure: The RSFSR Codes, supra, n. 1, at 269.
3
No nation has a monopoly on the use of this device although the present Greek Government according to the 1969 report of the Commission of Human Rights of the Council of Europe has reached a high level of efficiency in the use of torture:
'Falanga or bastinado has been a method of torture known for centuries. It is the beating of the feet with a wooden or metal stick or bar which, if skillfully done, breaks no bones, makes no skin lesions, and leaves no permanent and recognisable marks, but causes intense pain and swelling of the feet. The use of falanga has been described in a variety of situations: on a bench or chair or on a car-seat; with or without shoes on. Sometimes water has been thrown over the feet and sometimes the victim has been made to run around between beatings. Victims have also been gagged.
'While falanga and severe beatings of all parts of the body are the commonest forms of torture or ill-treatment that appear in the evidence before the Sub-Commission, other forms have been described: for example, the application of electric shock, squeezing of the head in a vice, pulling out of hair from the head or public region, or kicking of the male genital organs, dripping water on the head, and intense noises to prevent sleep.
'Falanga has not only been the commonest form of torture or ill-treatment in the cases in which the Sub-Commission has been able to establish the facts to a substantial degree but also appears with great frequency in the further allegations raised in the proceedings with regard to other named detainees. The principal forms of alleged treatment—frequently several forms combined in one and the same case—are as follows in the two categories:
Cases Further
examined allegations
Falanga...................... 23. 53
Electro-shock................ 4. 3
Mock execution or threats to shoot or kill the victim 12......................... 15
Other beating or ill-treatment. 26. 17"
European Commission of Human Rights, Report on The Greek Case, Vol. 2, pt. 1,pp. 415-416 (1969).
*
From the standpoint of Fourteenth Amendment due process, which is the way in which I think state cases of this kind should be judged (see, e.g., my concurring opinion in Gideon v. Wainwright, 372 U.S. 335, 349, 83 S.Ct. 792, 799, 9 L.Ed.2d 799 (1963)), I could not have said that the denial of appointed counsel at a preliminary hearing, carring no consequences beyond those involved in the Alabama procedure, is offensive to the concept of 'fundamental fairness' embodied in the Due Process Clause. The case would, of course, be different if the State were permitted to introduce at trial evidence collected and presented at the preliminary hearing. A fortiori, I would not have thought that the lack of counsel at a police 'line-up' is, as held in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), a denial of due process such as to require reversal. Even from the standpoint of the Sixth Amendment, I would have found it difficult to say that the language, 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence' (emphasis supplied), was intended to reach such pre-indictment events. Cf. Sanders v. United States, 373 U.S. 1, 23, 83 S.Ct. 1068, 1081, 10 L.Ed.2d 148 (1963).
1
The pertinent language is: 'In all criminal prosecutions, the accused shall enjoy * * * the Assistance of Counsel for his defence.'
2
I concur in the conclusion that due process was not violated by the identification procedures employed here.
1
Ala.Code, Tit. 15, §§ 133—140 (1958).
2
I agree with the result reached in Part 1 of the prevailing opinion.
| 01
|
399 U.S. 66
90 S.Ct. 1886
26 L.Ed.2d 437
Robert BALDWIN, Appellant,v.State of NEW YORK.
No. 188.
Argued Dec. 9, 1969.
Decided June 22, 1970.
William E. Hellerstein, New York City, for appellant.
Michael R. Juviler, New York City, for appellee.
Mr. Justice WHITE announced the judgment of the Court and delivered an opinion in which Mr. Justice BRANNAN and Mr. Justice MARSHALL join.
1
Appellant was arrested and charged with 'jostling'—a Class A misdemeanor in New York, punishable by a maximum term of imprisonment of one year.1 He was brought to trial in the New York City Criminal Court. Section 40 of the New York City Criminal Court Act declares that all trials in that court shall be without a jury.2 Appellant's pretrial motion for jury trial was accordingly denied. He was convicted and sentenced to imprisonment for the maximum term. The New York Court of Appeals affirmed the conviction, rejecting appellant's argument that § 40 was unconstitutional insofar as it denied him an opportunity for jury trial.3 We noted probable jurisdiction.4 We reverse.
2
In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), we held that the Sixth Amendment, as applied to the States through the Fourteenth, requires that defendants accused of serious crimes be afforded the right to trial by jury. We also reaffirmed the long-established view that so-called 'petty offenses' may be tried without a jury.5 Thus the tesk before us in this case is the essential if not wholly satisfactory one, see Duncan, at 161, 88 S.Ct. at 1453, of determining the line between 'petty' and 'serious' for purposes of the Sixth Amendment right to jury trial.
3
Prior cases in this Court narrow our inquiry and furnish us with the standard to be used in resolving this issue. In deciding whether an offense is 'petty,' we have sought objective criteria reflecting the seriousness with which society regards the offense, District of Columbia v. Clawans, 300 U.S. 617, 628, 57 S.Ct. 660, 663, 81 L.Ed. 843 (1937), and we have found the most relevant such criteria in the severity of the maximum authorized penalty. Frank v. United States, 395 U.S. 147, 148, 89 S.Ct. 1503, 1505, 23 L.Ed.2d 162 (1969); Duncan v. Louisiana, supra, 391 U.S., at 159 161, 88 S.Ct., at 1452—1454; District of Columbia v. Clawans, supra, 300 U.S., at 628, 57 S.Ct., at 663. Applying these guidelines, we have held that a possible six-month penalty is short enough to permit classification of the offense as 'petty,' Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 220, 88 S.Ct. 1472, 1475, 20 L.Ed.2d 538 (1968); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), but that a two-year maximum is sufficiently 'serious' to require an opportunity for jury trial, Duncan v. Louisiana, supra. The question in this case is whether the possibility of a one-year sentence is enough in itself to require the opportunity for a jury trial. We hold that it is. More specifically, we have concluded that no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized.6
4
New York has urged us to draw the line between 'petty' and 'serious' to coincide with the line between misdemeanor and felony. As in most States, the maximum sentence of imprisonment for a misdemeanor in New York is one year, for a felony considerably longer.7 It is also true that the collateral consequences attaching to a felony conviction are more severe than those attaching to a conviction for a misdemeanor.8 And, like other States, New York distinguishes between misdemeanors and felonies in determining such things as whether confinement shall be in county or regional jails, rather than state prison,9 and whether prosecution may proceed by information or complaint, rather than by grand jury indictment.10 But while these considerations reflect what may readily be admitted—that a felony conviction is more serious than a misdemeanor conviction—they in no way detract from appellant's contention that some misdemeanors are also 'serious' offenses. Indeed we long ago declared that the Sixth Amendment right to jury trial 'is not to be construed as relating only to felonies, or offences punishable by confinement in the penitentiary. It embraces as well some classes of misdemeanors, the punishment of which involves or may involve the deprivation of the liberty of the citizen.' Callan v. Wilson, 127 U.S. 540, 549, 8 S.Ct. 1301, 1303, 32 L.Ed. 223 (1888).11
5
A better guide '(i)n determining whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial' is disclosed by 'the existing laws and practices in the Nation.' Duncan v. Louisiana, supra, 391 U.S. at 161, 88 S.Ct. at 1453. In the federal system, as we noted in Duncan, petty offenses have been defined as those punishable by no more than six months in prison and a $500 fine.12 And, with a few exceptions, crimes triable without a jury in the American States since the late 18th century were also generally punishable by no more than a six-month prison term.13 Indeed, when Duncan was decided two Terms ago, we could discover only three instances in which a State denied jury trial for a crime punishable by imprisonment for longer than six months: the Louisiana scheme at issue in Duncan, a New Jersey statute punishing disorderly conduct, and the New York City statute at issue in this case.14 These three instances have since been reduced to one. In response to the decision in Duncan, Louisiana has lowered the penalty for certain misdemeanors to six months, and has provided for a jury trial where the penalty still exceeds six months.15 New Jersey has amended its disorderly persons statute by reducing the maximum penalty to six months' imprisonment and a $500 fine.16 Even New York State would have provided appellant with a six-man-jury trial for this offense if he had been tried outside the City of New York.17 In the entire Nation, New York City alone denies an accused the right to interpose between himself and a possible prison term of over six months, the commonsense judgment of a jury of his peers.18
6
It is true that in a number of these States the jury provided consists of less than the 12-man, unanimous-verdict jury available in federal cases.19 But the primary purpose of the jury is to prevent the possibility of oppression by the Government; the jury interposes between the accused and his accuser the judgment of laymen who are less tutored perhaps than a judge or panel of judges, but who at the same time are less likely to function or appear as but another arm of the Government that has proceeded against him.20 Except for the criminal courts of New York City, every other court in the Nation proceeds under jury trial provisions that reflect this 'fundamental decision about the exercise of official power,' Duncan v. Louisiana, supra, 391 U.S., at 156, 88 S.Ct., at 1451, when what is at stake is the deprivation of individual liberty for a period exceeding six months. This near-uniform judgment of the Nation furnishes us with the only objective criterion by which a line could ever be drawn on the basis of the possible penalty alone—between offenses that are and that are not regarded as 'serious' for purposes of trial by jury.21
7
Of necessity, the task of drawing a line 'requires attaching different consequences to events which, when they lie near the line, actually differ very little.' Duncan v. Louisiana, supra, at 161, 88 S.Ct., at 1453. One who is threatened with the possibility of imprisonment for six months may find little difference between the potential consequences that face him, and the consequences that faced appellant here. Indeed, the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or 'petty' matter and may well result in quite serious repercussions affecting his career and his reputation. Where the accused cannot possibly face more than six months' imprisonment, we have held that these disadvantages, onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive nonjury adjudications. We cannot, however, conclude that these administrative conveniences, in light of the practices that now exist in every one of the 50 States as well as in the federal courts, can similarly justify denying an accused the important right to trial by jury where the possible penalty exceeds six months' imprisonment.22 The conviction is
8
Reversed.
9
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
10
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring in the judgment.
11
I agree that the appellant here was entitled to a trial by jury in a New York City court for an offense punishable by one year's imprisonment. I also agree that his right to a trial by jury was governed by the Sixth Amendment to the United States Constitution made applicable to the States by the Fourteenth Amendment. I disagree, however, with the view that a defendant's right to a jury trial under the Sixth Amendment is determined by whether the offense charged is a 'petty' or 'serious' one. The Constitution guarantees a right of trial by jury in two separate places but in neither does it hint of any difference between 'petty' offenses and 'serious' offenses. Article III, § 2, cl. 3, provides that '(t)he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury,' and Amendment VI provides that '(i)n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * *.' Thus the Constitution itself guarantees a jury trial '(i)n all criminal prosecutions' and for 'all crimes.' Many years ago this Court, without the necessity of an amendment pursuant to Article V, decided that 'all crimes' did not mean 'all crimes,' but meant only 'all serious crimes.'1 Today three members of the Court would judicially amend that judicial amendment and substitute the phrase 'all crimes in which punishment for more than six months is authorized.' This definition of 'serious' would be enacted even though those members themselves recognize that imprisonment for less than six months may still have serious consequences. This decision is reached by weighing the advantages to the defendant against the administrative inconvenience to the State inherent in a jury trial and magically concluding that the scale tips at six months' imprisonment. Such constitutional adjudication, whether framed in terms of 'fundamental fairness,' 'balancing,' or 'shocking the conscience,' amounts in every case to little more than judicial mutilation of our written Constitution. Those who wrote and adopted our Constitution and Bill of Rights engaged in all the balancing necessary. They decided that the value of a jury trial far outweighed its costs for 'all crimes' and '(i)n all criminal prosecutions.' Until that language is changed by the constitutionally prescribed method of amendment, I cannot agree that this Court can reassess the balance and substitute its own judgment for that embodied in the Constitution. Since there can be no doubt in this case that Baldwin was charged with and convicted of a 'crime' in any relevant sense of that word—I agree that his conviction must be reversed because he was convicted without the benefit of a jury trial.2
12
Mr. Chief Justice BURGER, dissenting.
13
I dissent from today's holding that something in the Sixth and Fourteenth Amendments commands New York City to provide trial by jury for an offense punishable by a confinement of more than six months but less than one year. Mr. Justice BLACK has noted correctly that the Constitution guarantees a jury trial '(i)n all criminal prosecutions' (Amendment VI) and for 'all Crimes' (Art. III, § 2, cl. 3), but these provisions were not written as a command to the States; they were written at a time when the Federal Government exercised only a limited authority to provide for federal offenses 'very grave and few in number.'1 The limited number of serious acts that were made criminal offenses were against federal authority, and were proscribed in a period when administration of the criminal law was regarded as largely the province of the States. The Founding Fathers therefore cast the constitutional provisions we deal with here as limitations on federal power, not the power of States. State administration of criminal justice included a wide range of petty offenses, and as to many of the minor cases, the States often did not require trial by jury.2 This state of affairs had not changed appreciably when the Fourteenth Amendment was approved by Congress in 1866 and was ratified by the States in 1868. In these circumstances, the jury trial guarantees of the Constitution properly have been read as extending only to 'serious' crimes. I find, however, nothing in the 'serious' crime coverage of the Sixth or Fourteenth Amendment that would require this Court to invalidate the particular New York City trial scheme at issue here.
14
I find it somewhat disconcerting that with the constant urging to adjust ourselves to being a 'pluralistic society'—and I accept this in its broad sense—we constant pressure to conform to some uniform pattern on the theory that the Constitution commands it. I see no reason why an infinitely complex entity such as New York City should be barred from deciding that misdemeanants can be punished with up to 365 days' confinement without a jury trial while in less urban areas another body politic would fix a six-month maximum for offenses tried without a jury. That the 'near-uniform judgment of the Nation' is otherwise than the judgment in some of its parts affords no basis for me to read into the Constitution something not found there. What may be a serious offense in one setting—e.g., stealing a horse in Cody, Wyoming, where a horse may be an indispensable part of living—may be considered less serious in another area, and the procedures for finding guilt and fixing punishment in the two locales may rationally differ from each other.
1
'Jostling' is one of the ways in which legislatures have attempted to deal with pickpocketing. See Denzer & McQuillan, Practice Commentary, N.Y.Penal Law, following § 165.25; Note, Pickpocketing: A Survey of the Crime and Its Control, 104 U.Pa.L.Rev. 408, 419 (1955). The New York law provides:
'A person is guilty of jostling when, in a public place, he intentionally and unnecessarily:
'1. Places his hand in the proximity of a person's pocket or handbag; or
'2. Jostles or crowds another person at a time when a third person's hand is in the proximity of such person's pocket or handbag.' N.Y.Penal Law § 165.25 (McKinney's Consol.Laws, c. 40).
Appellant was convicted on the testimony of the arresting officer. The officer stated that he had observed appellant, working in conceit with another man, remove a loose package from an unidentified woman's pocketbook after the other man had made a 'body contact' with her on a crowded escalator. He arrested both men, searched appellant, and found a single $10 bill. No other testimony or evidence was introduced on either side. The trial judge thought the police officer 'a very forthright and credible witness' and found appellant guilty. He was subsequently sentenced to one year in the penitentiary. See App. 1—17, 21.
2
'All trials in the court shall be without a jury. All trials in the court shall be held before a single judge; provided, however, that where the defendant has been charged with a misdemeanor * * * (he) shall be advised that he has the right to a trial in a part of the court held by a panel of three of the judges thereof * * *.' N.Y.C.Crim.Ct.Act § 40 (Supp.1969).
3
24 N.Y.2d 207, 299 N.Y.S.2d 424, 247 N.E.2d 260 (1969).
4
395 U.S. 932, 89 S.Ct. 2011, 23 L.Ed.2d 447 (1969).
5
Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 1453, 20 L.Ed.2d 491 (1968); see Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966); District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937); District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930); Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99 (1904); Natal v. Louisiana, 139 U.S. 621, 11 S.Ct. 636, 35 L.Ed. 288 (1891); Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888); Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917 (1926). But see Kaye, Petty Offenders Have no Peers!, 26 U.Chi.L.Rev. 245 (1959).
6
Decisions of this Court have looked to both the nature of the offense itself, District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930), as well as the maximum potential sentence, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), in determining whether a particular offense was so serious as to require a jury trial. In this case, we decide only that a potential sentence in excess of six months' imprisonment is sufficiently severe by itself to take the offense out of the category of 'petty.' None of our decisions involving this issue have ever held such an offense 'petty.' See cases cited n. 5, supra.
7
N.Y.Penal Law, §§ 10.00, 70.15 (1967).
8
Both the convicted felon and the convicted misdemeanant may be prevented under New York law from engaging in a wide variety of occupations. In addition, the convicted felon is deprived of certain civil rights, including the right to vote and to hold public office. The relevant statutes are set out in Brief for Appellant, C—1 to C—6; Brief for Appellee, A8—A12.
9
See statutes cited n. 7, supra; N.Y.Penal Law § 70.20 (1967).
10
N.Y.Const., Art. I, § 6; N.Y.Code Crim.Proc. §§ 22, 222 (1958); N.Y.C.Crim.Ct. Act §§ 31, 41 (1963); see, e.g., People v. Bellinger, 269 N.Y. 265, 199 N.E. 213 (1935); People v. Van Dusen, 56 Misc.2d 107, 287 N.Y.S.2d 741 (1967).
11
Even New York distinguishes among misdemeanors in terms of the seriousness of the offense. Following a recent revision of the penal law, Class A misdemeanors were made punishable by up to one year's imprisonment, Class B misdemeanors up to three months' imprisonment, and 'violations' up to 15 days. As Judge Burke noted in his dissenting opinion below, 'an argument can be made with some force that the Legislature has identified petty offenses as those included in the 'violations' category and in the category of class B misdemeanors.' 24 N.Y.2d 207, 225, 299 N.Y.S.2d 424, 438, 247 N.E.2d 260, 270 (1969).
12
18 U.S.C. § 1.
13
Frankfurter & Corcoran, n. 5 supra.
14
Duncan v. Louisiana, 391 U.S. 145, 161 n. 33, 88 S.Ct. 1444, 1454; 20 L.Ed.2d 491 (1968).
15
La.Crim.Proc.Code Ann., Art. 779 (Supp.1969); see Comment, Jury Trial in Louisiana—Implications of Duncan, 29 La.L.Rev. 118, 127 (1968).
16
N.J.Rev.Stat. § 2A:169—4 (Supp.1969).
17
Compare N.Y.C.Crim.Ct.Act § 40 (Supp.1969), with N.Y. Uniform Dist.Ct.Act § 2011 (1963); N.Y. Uniform City Ct.Act § 2011 (Supp.1969). Because of our disposition of this case on appellant's jury-trial claim, we find it unnecessary to consider his argument that New York has violated the Equal Protection Clause by denying him a jury trial, while granting a six-man-jury trial to defendants charged with the identical offense elsewhere in the State. See Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954); Missouri v. Lewis, 101 U.S. 22, 25 L.Ed. 989 (1880). See generally Horowitz & Neitring, Equal Protection Aspects of Inequalities in Public Education and Public Assistance Programs From Place to Place Within a State, 15 U.C.L.A.L.Rev. 787 804 (1968).
18
The various state statutory provisions are set out in the briefs filed in this case. A survey is also included in American Bar Assn. Project on Standards for Criminal Justice, Advisory Committee on the Criminal Trial, Trial by Jury 20—23 (Approved Draft 1968) (recommending that the possibility of six months' imprisonment and a fine of $500, 'should be the upper limit upon the definition of 'petty offenses").
19
In a related decision of this date we hold that trial by a six-man jury satisfies the Sixth Amendment requirement of jury trial. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446.
20
Thus a trial before a panel of three judges, which appellant might have requested in lieu of trial before a single judge, see n. 2, supra, can hardly serve as a substitute for a jury trial.
21
We find little relevance in the fact that Congress has defined misdemeanors punishable by imprisonment up to one year as 'minor offenses' for purposes of vesting trial jurisdiction in the United States magistrates rather than commissioners, 18 U.S.C. § 3401(f) (1964 ed., Supp. IV), or for purposes of authorizing eavesdropping under state court orders, 18 U.S.C. § 2516(2) (1964 ed., Supp. IV), or for purposes of determining the eligibility for jury service of formerly convicted persons, 28 U.S.C. § 1865(b)(5) (1964 ed., Supp. IV). Such statutes involve entirely different considerations from those involved in deciding when the important right to jury trial shall attach to a criminal proceeding. Nothing in any of the above Acts suggests that Congress meant to alter its long-standing judgment that '(n)otwithstanding any Act of Congress to the contrary * * * (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, is a petty offense.' 18 U.S.C. § 1.
22
Experience in other States, notably California where jury trials are available for all criminal offenses including traffic violations, Cal.Pen.Code § 689 (1956), suggests that the administrative burden is likely to be slight, with a very high waiver rate of jury trials. See H. Kalven & H. Zeisel, The American Jury 18—19 and n. 12 (1966).
1
See Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888); District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930); District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937); cf. Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99 (1904).
2
My view does not require a conclusion that every act which may lead to 'minuscule' sanctions by the Government is a 'crime' which can only be punished after a jury trial. See Frank v. United States, 395 U.S. 147, 159—160, 89 S.Ct. 1503, 1510—1511, 23 L.Ed.2d 162 (1969) (dissenting opinion). There may be instances in which certain conduct is punished by fines or other sanctions in circumstances that would not make that conduct criminal. Not all official sanctions are imposed in criminal proceedings, but when, as in this case, the sanction bears all the indicia of a criminal punishment, a jury trial cannot be denied by labeling the punishment 'petty.'
1
See Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917, 975 976 (1926), where the authors observe: 'Until very recently the occasion for considering the dispensability of trial by jury in the enforcement of the criminal law has hardly presented itself to Congress, except as to the Territories and the District of Columbia, because, on the whole, federal offenses were at once very grave and few in number.' (Footnote omitted.)
2
See id., at 934—965; District of Columbia v. Clawans, 300 U.S. 617, 626, 57 S.Ct. 660, 662, 81 L.Ed. 843 (1937).
| 01
|
399 U.S. 30
90 S.Ct. 1969
26 L.Ed.2d 409
Donald J. VALE, Appellant,v.State of LOUISIANA.
No. 727.
Argued March 4, 5, 1970.
Decided June 22, 1970.
Eberhard P. Deutsch, New Orleans, La., for appellant.
Louise Korns, New Orleans, La., for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
The appellant, Donald Vale, was convicted in a Louisiana court on a charge of possessing heroin and was sentenced as a multiple offender to 15 years' imprisonment at hard labor. The Louisiana Supreme Court affirmed the conviction, rejecting the claim that evidence introduced at the trial was the product of an unlawful search and seizure. 252 La. 1056, 215 So.2d 811. We granted Vale's motion to proceed in forma pauperis, postponed consideration of the question of jurisdiction to the hearing of the case on the merits, and limited review to the search-and-seizure question. 396 U.S 813, 90 S.Ct. 108, 24 L.Ed.2d 65.*
2
The evidence adduced at the pretrial hearing on a motion to suppress showed that on April 24, 1967, officers possessing two warrants for Vale's arrest and having information that he was residing at a specified address proceeded there in an unmarked car and set up a surveillance of the house. The evidence of what then took place was summarized by the Louisiana Supreme Court as follows:
3
'After approximately 15 minutes the officers observed a green 1958 Chevrolet drive up and sound the horn and after backing into a parking place, again blew the horn. At this juncture Donald Vale, who was well known to Officer Brady having arrested him twice in the previous month, was seen coming out of the house and walk up to the passenger side of the Chevrolet where he had a close brief conversation with the driver; and after looking up and down the street returned inside of the house. Within a few minutes he reappeared on the porch, and again cautiously looked up and down the street before proceeding to the passenger side of the Chevrolet, leaning through the window. From this the officers were convinced a narcotics sale had taken place. They returned to their car and immediately drove toward Donald Vale, and as they reached within approximately three cars lengths from the accused, (Donald Vale) he looked up and, obviously recognizing the officers, turned around, walking quickly toward the house. At the same time the driver of the Chevrolet started to make his get away when the car was blocked by the police vehicle. The three officers promptly alighted from the car, whereupon Officers Soule and Laumann called to Donald Vale to stop as he reached the front steps of the house, telling him he was under arrest. Officer Brady at the same time, seeing the driver of the Chevrolet, Arizzio Saucier, whom the officers knew to be a narcotic addict, place something hurriedly in his mouth, immediately placed him under arrest and joined his co-officers. Because of the transaction they had just observed they, informed Donald Vale they were going to search the house, and thereupon advised him of his constitutional rights. After they all entered the front room, Officer Laumann made a cursory inspection of the house to ascertain if anyone else was present and within about three minutes Mrs. Vale and James Vale, mother and brother of Donald Vale, returned home carrying groceries and were informed of the arrest and impending search.' 252 La., at 1067—1068, 215 So.2d, at 815. (Footnote omitted.)
4
The search of a rear bedroom revealed a quantity of narcotics.
5
The Louisiana Supreme Court held that the search of the house did not violate the Fourth Amendment because it occurred 'in the immediate vicinity of the arrest' of Donald Vale and was 'substantially contemporaneous therewith * * *.' 252 La., at 1070, 215 So.2d, at 816. We cannot agree. Last Term in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, we held that when the search of a dwelling is sought to be justified as incident to a lawful arrest, it must constitutionally be confined to the area within the arrestee's reach at the time of his arrest 'the area from within which he might gain possession of a weapon or destructible evidence.' 395 U.S., at 763, 89 S.Ct. at 2040. But even if Chimel is not accorded retroactive effect—a question on which we do not now express an opinion—no precedent of this Court can sustain the constitutional validity of the search in the case before us.
6
A search may be incident to an arrest "only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest." Shipley v. California, 395 U.S. 818, 819, 89 S.Ct. 2053, 23 L.Ed.2d 732; Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856. If a search of a house is to be upheld as incident to an arrest, that arrest must take place inside the house, cf. Agnello v. United States, 269 U.S. 20, 32, 46 S.Ct. 4, 6, 70 L.Ed. 145, not somewhere outside—whether two blocks away, James v. Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30, twenty feet away, Shipley v. California, supra, or on the sidewalk near the front steps. 'Belief, 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.' Agnello v. United States, supra, 269 U.S. at 33, 46 S.Ct. at 6. That basic rule 'has never been questioned in this Court.' Stoner v. California, supra, 376 U.S. at 487 n. 5, 84 S.Ct. at 892.
7
The Louisiana Supreme Court thought the search independently supportable because it involved narcotics, which are easily removed, hidden, or destroyed. It would be unreasonable, the Louisiana court concluded, 'to require the officers under the facts of the case to first secure a search warrant before searching the premises, as time is of the essence inasmuch as the officers never know whether there is anyone on the premises to be searched who could very easily destroy the evidence.' 252 La., at 1070, 215 So.2d, at 816. Such a rationale could not apply to the present case, since by their own account the arresting officers satisfied themselves that no one else was in the house when they first entered the premises. But entirely apart from that point, our past decisions make clear that only in 'a few specifically established and well-delineated' situations, Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576, may a warrantless search of a dwelling withstand constitutional scrutiny, even though the authorities have probable cause to conduct it. The burden rests on the State to show the existence of such an exceptional situation. Chimel v. California, supra, 395 U.S. at 762, 89 S.Ct. at 2039; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59; McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153. And the record before us discloses none.
8
There is no suggestion that anyone consented to the search. Cf. Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477. The officers were not responding to an emergency. United States v. Jeffers, supra, 342 U.S. at 52, 72 S.Ct. at 95; McDonald v. United States, supra, 335 U.S. at 454, 69 S.Ct. at 192. They were not in hot pursuit of a fleeing felon. Warden v. Hayden, 387 U.S. 294, 298—299, 87 S.Ct. 1642, 1645—1646, 18 L.Ed.2d 782; Chapman v. United States, 365 U.S. 610, 615, 81 S.Ct. 776, 779, 5 L.Ed.2d 828; Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436. The goods ultimately seized were not in the process of destruction. Schmerber v. California, 384 U.S. 757, 770—771, 86 S.Ct. 1826, 1835—1836, 16 L.Ed.2d 908; United States v. Jeffers, supra; McDonald v. United States, supra, 335 U.S. at 455, 69 S.Ct. at 193. Nor were they about to be removed from the jurisdiction. Chapman v. United States, supra; Johnson v. United States, supra; United States v. Jeffers, supra.
9
The officers were able to procure two warrants for Vale's arrest. They also had information that he was residing at the address where they found him. There is thus no reason, so far as anything before us appears, to suppose that it was impracticable for them to obtain a search warrant as well. Cf. McDonald v. United States, supra, 335 U.S. at 454—455, 69 S.Ct. at 192—193; Trupiano v. United States, 334 U.S. 699, 705—706, 68 S.Ct. 1229, 1232—1233, 92 L.Ed. 1663; Johnson v. United States, supra; Taylor v. United States, 286 U.S. 1, 6, 52 S.Ct. 466, 467, 76 L.Ed. 928; Go-Bart Importing Co. v. United States, 282 U.S. 344, 358, 51 S.Ct. 153, 158, 75 L.Ed. 374; Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543; cf. Ker v. California, 374 U.S. 23, 42, 83 S.Ct. 1623, 10 L.Ed.2d 726 (opinion of Clark, J.). We decline to hold that an arrest on the street can provide its own 'exigent circumstance' so as to justify a warrantless search of the arrestee's house.
10
The Louisiana courts committed constitutional error in admitting into evidence the fruits of the illegal search. Shipley v. California, supra, 395 U.S. at 819, 89 S.Ct. at 2054; James v. Louisiana, supra, 382 U.S. at 37, 86 S.Ct. at 151; Ker v. California, supra, 374 U.S. at 30—34, 83 S.Ct. at 1628—1630; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Accordingly, the judgment is reversed and the case is remanded to the Louisiana Supreme Court for further proceedings not inconsistent with this opinion. It is so ordered.
11
Reversed and remanded.
12
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
13
Mr. Justice BLACK, with whom THE CHIEF JUSTICE joins, dissenting.
14
The Fourth Amendment to the United States Constitution prohibits only 'unreasonable searches.'* A warrant has never been thought to be an absolute requirement for a constitutionally proper search. Searches, whether with or without a warrant, are to be judged by whether they are reasonable, and, as I said, speaking for the Court in Preston v. United States, 376 U.S. 364, 366—367, 84 S.Ct. 881, 882—883, 11 L.Ed.2d 777 (1964), common sense dictates that reasonableness varies with the circumstances of the search. See, e.g., Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The Louisiana Supreme Court held not only that the police action here was reasonable but also that failure to conduct an immediate search would have been unreasonable. 252 La. 1056, 1070, 215 So.2d 811, 816. With that view I am in complete agreement, for the following reasons.
15
The police, having warrants for Vale's arrest, were watching his mother's house from a short distance away. Not long after they began their vigil a car arrived, sounded its horn, and backed into a parking space near the house. The driver did not get out, but instead honked the car horn again. Vale, who had been arrested twice the month before and against whom an indictment for a narcotics offense was then pending, came out of his mother's house and talked to the driver of the car. At the conclusion of the conversation Vale looked both ways, up and down the street, and then went back inside the house. When he reappeared he stopped before going to the car and stood, as one of the officers testified, '(l)ooking back and forth like to see who might be coming or who was in the neighborhood.' He then walked to the car and leaned in.
16
From this behavior the officers were convinced that a narcotics transaction was taking place at that very moment. They drove down the street toward Vale and the parked car. When they came within a few car lengths of the two men Vale saw them and began to walk quickly back toward the house. At the same time the driver of the car attempted to pull away. The police brought both parties to the transaction to a stop. They then saw that the driver of the car was one Saucier, a known narcotics addict. He hurriedly placed something in his mouth, and apparently swallowed it. The police placed both Vale and Saucier under arrest.
17
At this point the police had probable cause to believe that Vale was engaged in a narcotics transfer, and that a supply of narcotics would be found in the house, to which Vale had returned after his first conversation, from which he had emerged furtively bearing what the police could readily deduce was a supply of narcotics, and toward which he hurried after seeing the police. But the police did not know then who else might be in the house. Vale's arrest took place near the house, and anyone observing from inside would surely have been alerted to destroy the stocks of contraband which the police believed Vale had left there. The police had already seen Saucier, the narcotics addict, apparently swallow what Vale had given him. Believing that some evidence had already been destroyed and that other evidence might well be, the police were faced with the choice of risking the immediate destruction of evidence or entering the house and conducting a search. I cannot say that their decision to search was unreasonable. Delay in order to obtain a warrant would have given an accomplice just the time he needed.
18
That the arresting officers did, in fact, believe that others might be in the house is attested to by their actions upon entering the door left open by Vale. The police at once checked the small house to determine if anyone else was present. Just as they discovered the house was empty, however, Vale's mother and brother arrived. Now what had been a suspicion became a certainty: Vale's relatives were in possession and knew of his arrest. To have abandoned the search at this point, and left the house with Vale, would not have been the action of reasonable police officers. As Mr. Justice White said, dissenting in Chimel v. California, 395 U.S. 752, 775, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969):
19
'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.'
20
In my view, whether a search incident to a lawful arrest is reasonable should still be determined by the facts and circumstances of each case. Ker v. California, 374 U.S. 23, 34—36, 83 S.Ct. 1623, 1630—1631, 10 L.Ed.2d 726 (1963); United States v. Rabinowitz, 339 U.S. 56, 63—64, 70 S.Ct. 430, 434, 94 L.Ed. 653 (1950). For the reasons given above I am convinced that the search here was reasonable, even though Vale had not yet crossed the threshold of the house toward which he was headed.
21
Moreover, the circumstances here were sufficiently exceptional to justify a search, even if the search was not strictly 'incidental' to an arrest. The Court recognizes that searches to prevent the destruction or removal of evidence have long been held reasonable by this Court. Preston v. United States, supra; McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Whether the 'exceptional circumstances' justifying such a search exist or not is a question that may be, as it is here, quite distinct from whether or not the search was incident to a valid arrest. See United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed.2d 436 (1948). It is thus unnecessary to determine whether the search was valid as incident to the arrest under either Chimel v. United States, supra, or under the pre-Chimel standard as interpreted in Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969). It is only necessary to find that, given Vale's arrest in a spot readily visible to anyone in the house and the probable existence of narcotics inside, it was reasonable for the police to conduct an immediate search of the premises.
22
The Court, however, finds the search here unreasonable. First, the Court suggests that the contraband was not 'in the process of destruction.' None of the cases cited by the Court supports the proposition that 'exceptional circumstances' exist only when the process of destruction has already begun. On the contrary we implied that those circumstances did exist when 'evidence or contraband was threatened with removal or destruction.' Johnson v. United States, supra, 333 U.S. at 15, 68 S.Ct. at 369 (emphasis added). See also Chapman v. United States, 365 U.S. 610, 615, 81 S.Ct. 776, 779, 5 L.Ed.2d 828 (1961); Hernandez v. United States, 353 F.2d 624 (C.A.9th Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1972, 16 L.Ed.2d 1021 (1966).
23
Second, the Court seems to argue that the search was unreasonable because the police officers had time to obtain a warrant. I agree that the opportunity to obtain a warrant is one of the factors to be weighed in determining reasonableness. Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); United States v. Rabinowitz, supra, 339 U.S. at 66, 70 S.Ct. at 435 (Black, J., dissenting). But the record conclusively shows that there was no such opportunity here. As I noted above, once the officers had observed Vale's conduct in front of the house they had probable cause to believe that a felony had been committed and that immediate action was necessary. At no time after the events in from of Mrs. Vale's house would it have been prudent for the officers to leave the house in order to secure a warrant.
24
The Court asserts, however, that because the police obtained two warrants for Vale's arrest there is 'no reason * * * to suppose that it was impracticable for them to obtain a search warrant as well.' The difficulty is that the two arrest warrants on which the Court seems to rely so heavily were not issued because of any present misconduct of Vale's; they were issued because the bond had been increased for an earlier narcotics charge then pending against Vale. When the police came to arrest Vale, they knew only that his bond had been increased. There is nothing in the record to indicate that, absent the increased bond, there would have been probable cause for an arrest, much less a search. Probable cause for the search arose for the first time when the police observed the activity of Vale and Saucier in and around the house.
25
I do not suggest that all arrests necessarily provide the basis for a search of the arrestee's house. In this case there is far more than a mere street arrest. The police also observed Vale's use of the house as a base of operations for his commercial business, his attempt to return hurriedly to the house on seeing the officers, and the apparent destruction of evidence by the man with whom Vale was dealing. Furthermore the police arrival and Vale's arrest were plainly visible to anyone within the house, and the police had every reason to believe that someone in the house was likely to destroy the contraband if the search were postponed.
26
This case raises most graphically the question how does a policeman protect evidence necessary to the State if he must leave the premises to get a warrant, allowing the evidence he seeks to be destroyed. The Court's answer to that question makes unnecessarily difficult the conviction of those who prey upon society.
*
In his Notice of Appeal, Vale asserted that the Louisiana Supreme Court in affirming the conviction had relied upon a state statute, Article 225 of the Louisiana Code of Criminal Procedure (1967), which provides in pertinent part:
'A peace officer making an arrest shall take from the person arrested all weapons and incriminating articles which he may have about his person.'
Although the state court referred to this statute in the course of its opinion, we do not understand its decision to be grounded on the statute. We therefore dismiss the appeal and treat the papers as a petition for certiorari, which is hereby granted. 28 U.S.C. § 2103.
*
The Fourth Amendment says:
'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.'
| 01
|
399 U.S. 78
90 S.Ct. 1893
26 L.Ed.2d 446
Johnny WILLIAMS, Petitioner,v.State of FLORIDA.
No. 927.
Argued March 4, 1970.
Decided June 22, 1970.
Richard Kanner, Miami, Fla., for petitioner.
Jesse J. McCrary, Jr., Miami, Fla., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Prior to his trial for robbery in the State of Florida, petitioner filed a 'Motion for a Protective Order,' seeking to be excused from the requirements of Rule 1.200 of the Florida Rules of Criminal Procedure, 33 F.S.A. That rule requires a defendant, on written demand of the prosecuting attorney, to give notice in advance of trial if the defendant intends to claim an alibi, and to furnish the prosecuting attorney with information as to the place where he claims to have been and with the names and addresses of the alibi witnesses he intends to use.1 In his motion petitioner openly declared his intent to claim an alibi, but objected to the further disclosure requirements on the ground that the rule 'compels the Defendant in a criminal case to be a witness against himself' in violation of his Fifth and Fourteenth Amendment rights.2 The motion was denied. Petitioner also filed a pretrial motion to impanel a 12-man jury instead of the sixman jury provided by Florida law in all but capital cases.3 That motion too was denied. Petitioner was convicted as charged and was sentenced to life imprisonment.4 The District Court of Appeal affirmed, rejecting petitioner's claims that his Fifth and Sixth Amendment rights had been violated. We granted certiorari.5 396 U.S. 955, 90 S.Ct. 439, 24 L.Ed.2d 420 (1969).
2
* Florida's notice-of-alibi rule is in essence a requirement that a defendant submit to a limited form of pretrial discovery by the State whenever he intends to rely at trial on the defense of alibi. In exchange for the defendant's disclosure of the witnesses he proposes to use to establish that defense, the State in turn is required to notify the defendant of any witnesses it proposes to offer in rebuttal to that defense. Both sides are under a continuing duty promptly to disclose the names and addresses of additional witnesses bearing on the alibi as they become available. The threatened sanction for failure to comply is the exclusion at trial of the defendant's alibi evidence—except for his own testimony—or, in the case of the State, the exclusion of the State's evidence offered in rebuttal of the alibi.6
3
In this case, following the denial of his Motion for a Protective Order, petitioner complied with the alibi rule and gave the State the name and address of one Mary Scotty. Mrs. Scotty was summoned to the office of the State Attorney on the morning of the trial, where she gave pretrial testimony. At the trial itself, Mrs. Scotty, petitioner, and petitioner's wife all testified that the three of them had been in Mrs. Scotty's apartment during the time of the robbery. On two occasions during cross-examination of Mrs. Scotty, the prosecuting attorney confronted her with her earlier deposition in which she had given dates and times that in some respects did not correspond with the dates and times given at trial. Mrs. Scotty adhered to her trial story, insisting that she had been mistaken in her earlier testimony.7 The State also offered in rebuttal the testimony of one of the officers investigating the robbery who claimed that Mrs. Scotty had asked him for directions on the afternoon in question during the time when she claimed to have been in her apartment with petitioner and his wife.8
4
We need not linger over the suggestion that the discovery permitted the State against petitioner in this case deprived him of 'due process' or a 'fair trial.' Florida law provides for liberal discovery by the defendant against the State,9 and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant. Given the ease with which an alibi can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. Reflecting this interest, notice-of-alibi provisions, dating at least from 1927,10 are now in existence in a substantial number of States.11 The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played.12 We find ample room in that system, at least as far as 'due process' is concerned, for the instant Florida rule, which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.
5
Petitioner's major contention is that he was 'compelled * * * to be a witness against himself' contrary to the commands of the Fifth and Fourteenth Amendments because the notice-of-alibi rule required him to give the State the name and address of Mrs. Scotty in advance of trial and thus to furnish the State with information useful in convicting him. No pretrial statement of petitioner was introduced at trial; but armed with Mrs. Scotty's name and address and the knowledge that she was to be petitioner's alibi witness, the State was able to take her deposition in advance of trial and to find rebuttal testimony. Also, requiring him to reveal the elements of his defense is claimed to have interfered with his right to wait until after the State had presented its case to decide how to defend against it. We conclude, however, as has apparently every other court that has considered the issue,13 that the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses.14
6
The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. The pressures generated by the State's evidence may be severe but they do not vitiate the defendant's choice to present an alibi defense and witnesses to prove it, even though the attempted defense ends in catastrophe for the defendant. However 'testimonial' or 'incriminating' the alibi defense proves to be, it cannot be considered 'compelled' within the meaning of the Fifth and Fourteenth Amendments.
7
Very similar constraints operate on the defendant when the State requires pretrial notice of alibi and the naming of alibi witnesses. Nothing in such a rule requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice.15 That choice must be made, but the pressures that bear on his pretrial decision are of the same nature as those that would induce him to call alibi witnesses at the trial: the force of historical fact beyond both his and the State's control and the strength of the State's case built on these facts. Response to that kind of pressure by offering evidence or testimony is not compelled self-incrimination transgressing the Fifth and Fourteenth Amendments.
8
In the case before us, the notice-of-alibi rule by itself in no way affected petitioner's crucial decision to call alibi witnesses or added to the legitimate pressures leading to that course of action. At most, the rule only compelled petitioner to accelerate the timing of his disclosure, forcing him to divulge at an earlier date information that the petitioner from the beginning planned to divulge at trial. Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State's case before announcing the nature of his defense, any more than it entitles him to await the jury's verdict on the State's case-in-chief before deciding whether or not to take the stand himself.
9
Petitioner concedes that absent the notice-of-alibi rule the Constitution would raise no bar to the court's granting the State a continuance at trial on the ground of surprise as soon as the alibi witness is called.16 Nor would there be self-incrimination problems if, during that continuance, the State was permitted to do precisely what it did here prior to trial: take the deposition of the witness and find rebuttal evidence. But if so utilizing a continuance is permissible under the Fifth and Fourteenth Amendments, then surely the same result may be accomplished through pretrial discovery, as it was here, avoiding the necessity of a disrupted trial.17 We decline to hold that the privilege against compulsory self-incrimination guarantees the defendant the right to surprise the State with an alibi defense.
II
10
In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), we held that the Fourteenth Amendment guarantees a right to trial by jury in all criminal cases that were they to be tried in a federal court—would come within the Sixth Amendment's guarantee. Petitioner's trial for robbery on July 3, 1968, clearly falls within the scope of that holding. See Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 N.E.2d 437; DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). The question in this case then is whether the constitutional guarantee of a trial by 'jury' necessarily requires trial by exactly 12 persons, rather than some lesser number—in this case six. We hold that the 12-man panel is not a necessary ingredient of 'trial by jury,' and that respondent's refusal to impanel more than the six members provided for by Florida law did not violate petitioner's Sixth Amendment rights as applied to the States through the Fourteenth.
11
We had occasion in Duncan v. Louisiana, supra, to review briefly the oft-told history of the development of trial by jury in criminal cases.18 That history revealed a long tradition attaching great importance to the concept of relying on a body of one's peers to determine guilt or innocence as a safeguard against arbitrary law enforcement. That same history, however, affords little insight into the considerations that gradually led the size of that body to be generally fixed at 12.19 Some have suggested that the number 12 was fixed upon simply because that was the number of the presentment jury from the hundred, from which the petit jury developed.20 Other, less circular but more fanciful reasons for the number 12 have been given, 'but they were all brought forward after the number was fixed,'21 and rest on little more than mystical or superstitious insights into the significance of '12.' Lord Coke's explanation that the 'number of twelve is much respected in holy writ, as 12 apostles, 12 stones, 12 tribes, etc.,'22 is typical.23 In short, while sometime in the 14th century the size of the jury at common law came to be fixed generally at 12,24 that particular feature of the jury system appears to have been a historical accident, unrelated to the great purposes which gave rise to the jury in the first place.25 The question before us is whether this accidental feature of the jury has been immutably codified into our Constitution.
12
This Court's earlier decisions have assumed an affirmative answer to this question. The leading case so construing the Sixth Amendment is Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898). There the defendant had been tried and convicted by a 12-man jury for a crime committed in the Territory of Utah. A new trial was granted, but by that time Utah had been admitted as a State. The defendant's new trial proceeded under Utah's Constitution, providing for a jury of only eight members. This Court reversed the resulting conviction, holding that Utah's constitutional provision was an ex post facto law as applied to the defendant. In reaching its conclusion, the Court announced that the Sixth Amendment was applicable to the defendant's trial when Utah was a Territory, and that the jury referred to in the Amendment was a jury 'constituted, as it was at common law, of twelve persons, neither more nor less.' 170 U.S., at 349, 18 S.Ct., at 622. Arbuably unnecessary for the result,26 this announcement was supported simply by referring to the Magna Carta,27 and by quoting passages from treatises which noted—what has already been seen—that at common law the jury did indeed consist of 12. Noticeably absent was any discussion of the essential step in the argument: namely, that every feature of the jury as it existed at common law—whether incidental or essential to that institution—was necessarily included in the Constitution wherever that document referred to a 'jury.'28 Subsequent decisions have reaffirmed the announcement in Thompson often in dictum29 and usually by relying where there was any discussion of the issue at all—solely on the fact that the common-law jury consisted of 12.30 See Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 254, 74 L.Ed. 854 (1930);31 Rassmussen v. United States, 197 U.S. 516, 519, 25 S.Ct. 514, 515, 49 L.Ed. 862 (1905); Maxwell v. Dow, 176 U.S. 581, 586, 20 S.Ct. 448, 450, 451, 44 L.Ed. 597 (1900).
13
While 'the intent of the Framers' is often an elusive quarry, the relevant constitutional history casts considerable doubt on the easy assumption in our past decisions that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution. Provisions for jury trial were first placed in the Constitution in Article III's provision that '(t)he Trial of all Crimes * * * shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.'32 The 'very scanty history (of this provision) in the records of the Constitutional Convention'33 sheds little light either way on the intended correlation between Article III's 'jury' and the features of the jury at common law.34 Indeed, pending and after the adoption of the Constitution, fears were expressed that Article III's provision failed to preserve the common-law right to be tried by a 'jury of the vicinage.'35 That concern, as well as the concern to preserve the right to jury in civil as well as criminal cases, furnished part of the impetus for introducing amendments to the Constitution that ultimately resulted in the jury trial provisions of the Sixth and Seventh Amendments. As introduced by James Madison in the House, the Amendment relating to jury trial in criminal cases would have provided that:
14
'The trial of all crimes * * * shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites. * * *'36
15
The Amendment passed the House in substantially this form, but after more than a week of debate in the Senate it returned to the House considerably altered.37 While records of the actual debates that occurred in the Senate are not available,38 a letter from Madison to Edmund Pendleton on September 14, 1789, indicates that one of the Senate's major objections was to the 'vicinage' requirement in the House version.39 A conference committee was appointed. As reported in a second letter by Madison on September 23, 1789, the Senate remained opposed to the vicinage requirement, partly because in its view the thenpending judiciary bill—which was debated at the same time as the Amendments—adequately preserved the common-law vicinage feature, making it unnecessary to freeze that requirement into the Constitution. 'The Senate,' wrote Madison:
16
'are * * * inflexible in opposing a definition of the locality of Juries. The vicinage they contend is either too vague or too strict a term; too vague if depending on limits to be fixed by the pleasure of the law, too strict if limited to the county. It was proposed to insert after the word Juries, 'with the accustomed requisites,' leaving the definition to be construed according to the judgment of professional men. Even this could not be obtained. * * * The Senate suppose, also, that the provision for vicinage in the Judiciary bill will sufficiently quiet the fears which called for an amendment on this point.'40
17
The version that finally emerged from the Committee was the version that ultimately became the Sixth Amendment, ensuring an accused:
18
'the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law * * *.'
19
Gone were the provisions spelling out such common-law features of the jury as 'unanimity,' or 'the accustomed requisites.' And the 'vicinage' requirement itself had been replaced by wording that reflected a compromise between broad and narrow definitions of that term, and that left Congress the power to determine the actual size of the 'vicinage' by its creation of judicial districts.41
20
Three significant features may be observed in this sketch of the background of the Constitution's jury trial provisions. First, even though the vicinage requirement was as much a feature of the common-law jury as was the 12-man requirement,42 the mere reference to 'trial by jury' in Article III was not interpreted to include that feature. Indeed, as the subsequent debates over the Amendments indicate, disagreement arose over whether the feature should be included at all in its common-law sense, resulting in the compromise described above. Second, provisions that would have explicitly tied the 'jury' concept to the 'accustomed requisites' of the time were eliminated. Such action is concededly open to the explanation that the 'accustomed requisites' were thought to be already included in the concept of a 'jury.' But that explanation is no more plausible than the contrary one: that the deletion had some substantive effect. Indeed, given the clear expectation that a substantive change would be effected by the inclusion or deletion of an explicit 'vicinage' requirement, the latter explanation is, if anything, the more plausible. Finally, contemporary legislative and constitutional provisions indicate that where Congress wanted to leave no doubt that it was incorporating existing common-law features of the jury system, it knew how to use express language to that effect. Thus, the Judiciary bill, signed by the President on the same day that the House and Senate finally agreed on the form of the Amendments to be submitted to the States, provided in certain cases for the narrower 'vicinage' requirements that the House had wanted to include in the Amendments.43 And the Seventh Amendment, providing for jury trial in civil cases, explicitly added that 'no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.'44
21
We do not pretend to be able to divine precisely what the word 'jury' imported to the Framers, the First Congress, or the States in 1789. It may well be that the usual expectation was that the jury would consist of 12,45 and that hence, the most likely conclusion to be drawn is simply that little thought was actually given to the specific question we face today. But there is absolutely no indication in 'the intent of the Framers' of an explicit decision to equate the constitutional and common-law characteristics of the jury. Nothing in this history suggests, then, that we do violence to the letter of the Constitution by turning to other than purely historical considerations to determine which features of the jury system, as it existed at common law, were preserved in the Constitution. The relevant inquiry, as we see it, must be the function that the particular feature performs and its relation to the purposes of the jury trial. Measured by this standard, the 12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment.
22
The purpose of the jury trial, as we noted in Duncan, is to prevent oppression by the Government. 'Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.' Duncan v. Louisiana, supra, 391 U.S., at 156, 88 S.Ct., at 1451. Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representatives cross-section of the community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12—particularly if the requirement of unanimity is retained.46 And, certainly the reliability of the jury as a factfinder hardly seems likely to be a function of its size.
23
It might be suggested that the 12-man jury gives a defendant a greater advantage since he has more 'chances' of finding a juror who will insist on acquittal and thus prevent conviction. But the advantage might just as easily belong to the State, which also needs only one juror out of twelve insisting on guilt to prevent acquittal.47 What few experiments have occurred—usually in the civil area—indicate that there is no discernible difference between the results reached by the two different-sized juries.48 In short, neither currently available evidence nor theory49 suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer members.
24
Similarly, while in theory the number of viewpoints represented on a randomly selected jury ought to increase as the size of the jury increases, in practice the difference between the 12-man and the six-man jury in terms of the cross-section of the community represented seems likely to be negligible. Even the 12-man jury cannot insure representation of every distinct voice in the community, particularly given the use of the peremptory challenge. As long as arbitrary exclusions of a particular class from the jury rolls are forbidden, see, e.g., Carter v. Jury Commission, 396 U.S. 320, 329—330, 90 S.Ct. 518, 523, 24 L.Ed.2d 549 (1970), the concern that the cross-section will be significantly diminished if the jury is decreased in size from 12 to six seems an unrealistic one.
25
We conclude, in short, as we began: the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance 'except to mystics.' Duncan v. Louisiana, supra, 391 U.S., at 182, 88 S.Ct. at 1466 (Harlan, J., dissenting). To read the Sixth Amendment as forever codifying a feature so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers which would require considerably more evidence than we have been able to discover in the history and language of the Constitution or in the reasoning of our past decisions. We do not mean to intimate that legislatures can never have good reasons for concluding that the 12-man jury is preferable to the smaller jury, or that such conclusions—reflected in the provisions of most States and in our federal system50—are in any sense unwise. Legislatures may well have their own views about the relative value of the larger and smaller juries, and may conclude that, wholly apart from the jury's primary function, it is desirable to spread the collective responsibility for the determination of guilt among the larger group. In capital cases, for example, it appears that no State provides for less than 12 jurors—a fact that suggests implicit recognition of the value of the larger body as a means of legitimating society's decision to impose the death penalty. Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury. Consistent with this holding, we conclude that petitioner's Sixth Amendment rights, as applied to the States through the Fourteenth Amendment, were not violated by Florida's decision to provide a six-man rather than a 12-man jury. The judgment of the Florida District Court of Appeal is
26
Affirmed.
27
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
APPENDIX TO OPINION OF THE COURT
Fla.Rule Crim.Proc. 1.200:
28
'Upon the written demand of the prosecuting attorney, specifying as particularly as is known to such prosecuting attorney, the place, date and time of the commission of the crime charged, a defendant in a criminal case who intends to offer evidence of an alibi in his defense shall, not less than ten days before trial or such other time as the court may direct, file and serve upon such prosecuting attorney a notice in writing of his intention to claim such alibi, which notice shall contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as is known to defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish such alibi. Not less than five days after receipt of defendant's witness list, or such other times as the court may direct, the prosecuting attorney shall file and serve upon the defendant the names and addresses (as particularly as are known to the prosecuting attorney) of the witnesses the State proposes to offer in rebuttal to discredit the defendant's alibi at the trial of the cause. Both the defendant and the prosecuting attorney shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses which come to the attention of either party subsequent to filing their respective witness lists as provided in this rule. If a defendant fails to file and serve a copy of such notice as herein required, the court may exclude evidence offered by such defendant for the purpose of proving an alibi, except the testimony of the defendant himself. If such notice is given by a defendant, the court may exclude the testimony of any witness offered by the defendant for the purpose of proving an alibi if the name and address of such witness as particularly as is known to defendant or his attorney is not stated in such notice. If the prosecuting attorney fails to file and serve a copy on the defendant of a list of witnesses as herein provided, the court may exclude evidence offered by the state in rebuttal to the defendant's alibi evidence. If such notice is given by the prosecuting attorney, the court may exclude the testimony of any witness offered by the prosecuting attorney for the purpose of rebutting the defense of alibi if the name and address of such witness as particularly as is known to the prosecuting attorney is not stated in such notice. For good cause shown the court may waive the requirements of this rule.'
29
Mr. Chief Justice BURGER, concurring.
30
I join fully in Mr. Justice WHITE's opinion for the Court. I see an added benefit to the notice-of-alibi rule in that it will serve important functions by way of disposing of cases without trial in appropriate circumstances—a matter of considerable importance when courts, prosecution offices, and legal aid and defender agencies are vastly overworked. The prosecutor upon receiving notice will, of course, investigate prospective alibi witnesses. If he finds them reliable and unimpeachable he will doubtless re-examine his entire case and this process would very likely lead to dismissal of the charges. In turn he might be obliged to determine why false charges were instituted and where the breakdown occurred in the examination of evidence that led to a charge.
31
On the other hand, inquiry into a claimed alibi defense may reveal it to be contrived and fabricated and the witnesses accordingly subject to impeachment or other attack. In this situation defense counsel would be obliged to re-examine his case and, if he found his client has proposed the use of false testimony, either seek to withdraw from the case or try to persuade his client to enter a plea of guilty, possibly by plea discussions which could lead to disposition on a lesser charge.
32
In either case the ends of justice will have been served and the processes ecpedited. These are the likely consequences of an enlarged and truly reciprocal pretrial disclosure of evidence and the move away from the 'sporting contest' idea of criminal justice.
33
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring in part and dissenting in part.
34
The Court today holds that a State can, consistently with the Sixth Amendment to the United States Constitution, try a defendant in a criminal case with a jury of six members. I agree with that decision for substantially the same reasons given by the Court. By Brother Harlan, however, charges that the Court's decision on this point is evidence that the 'incorporation doctrine,' through which the specific provisions of the Bill of Rights are made fully applicable to the States under the same standards applied in federal courts1 will somehow result in a 'dilution' of the protections required by those provisions. He asserts that this Court's desire to relieve the States from the rigorous requirements of the Bill of Rights is bound to cause re-examination and modification of prior decisions interpreting those provisions as applied in federal courts in order simultaneously to apply the provisions equally to the State and Federal Governments and to avoid undue restrictions on the States. This assertion finds no support in today's decision or any other decision of this Court. We have emphatically '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). Today's decision is in no way attributable to any desire to dilute the Sixth Amendment in order more easily to apply it to the States, but follows solely as a necessary consequence of our duty to re-examine prior decisions to reach the correct constitutional meaning in each case. The broad implications in early cases indicating that only a body of 12 members could satisfy the Sixth Amendment requirement arose in situations where the issue was not squarely presented and were based, in my opinion, on an improper interpretation of that amendment. Had the question presented here arisen in a federal court before our decision in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), this Court would still, in my view, have reached the result announced today. In my opinion the danger of diluting the Bill of Rights protections lies not in the 'incorporation doctrine,' but in the 'shock the conscience' test on which my Brother Harlan would rely instead—a test which depends, not on the language of the Constitution, but solely on the views of a majority of the Court as to what is 'fair' and 'decent.'
35
The Court also holds that a State can require a defendant in a criminal case to disclose in advance of trial the nature of his alibi defense and give the names and addresses of witnesses he will call to support that defense. This requirement, the majority says, does not violate the Fifth Amendment prohibition against compelling a criminal defendant to be a witness against himself. Although this case itself involves only a notice-of-alibi provision, it is clear that the decision means that a State can require a defendant to disclose in advance of trial any and all information he might possibly use to defend himself at trial. This decision, in my view, is a radical and dangerous departure from the historical and constitutionally guaranteed right of a defendant in a criminal case to remain completely silent, requiring the State to prove its case without any assistance of any kind from the defendant himself.
36
* The core of the majority's decision is an assumption that compelling a defendant to give notice of an alibi defense before a trial is no different from requiring a defendant, after the State has produced the evidence against him at trial, to plead alibi before the jury retires to consider the case. This assumption is clearly revealed by the statement that 'the pressures that bear on (a defendant's) pre-trial decision are of the same nature as those that would induce him to call alibi witnesses at the trial: the force of historical fact beyond both his and the State's control and the strength of the State's case built on these facts.' Ante, at 85. That statement is plainly and simply wrong as a matter of fact and law, and the Court's holding based on that statement is a complete misunderstanding of the protections provided for criminal defendants by the Fifth Amendment and other provisions of the Bill of Rights.2
37
* When a defendant is required to indicate whether he might plead alibi in advance of trial, he faces a vastly different decision from that faced by one who can wait until the State has presented the case against him before making up his mind. Before trial the defendant knows only what the State's case might be. Before trial there is no such thing as the 'strength of the State's case'; there is only a range of possible cases. At that time there is no certainty as to what kind of case the State will ultimately be able to prove at trial. Therefore any appraisal of the desirability of pleading alibi will be beset with guesswork and gambling far greater than that accompanying the decision at the trial itself. Any lawyer who has actually tried a case knows that, regardless of the amount of pretrial preparation, a case looks far different when it is actually being tried than when it is only being thought about.
38
The Florida system, as interpreted by the majority, plays upon this inherent uncertainty in predicting the possible strength of the State's case in order effectively to coerce defendants into disclosing an alibi defense that may never be actually used. Under the Florida rule, a defendant who might plead alibi must, at least 10 days before the date of trial, tell the prosecuting attorney that he might claim an alibi or else the defendant faces the real threat that he may be completely barred from presenting witnesses in support of his alibi. According to the Court, however, if he gives the required notice and later changes his mind '(n)othing in such a rule requires (him) to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice.' Ante, at 84. Thus in most situations defendants with any possible thought of pleading alibi are in effect compelled to disclose their intentions in order to preserve the possibility of later raising the defense at trial. Necessarily few defendants and their lawyers will be willing to risk the loss of that possibility by not disclosing the alibi. Clearly the pressures on defendants to plead an alibi created by this procedure are not only quite different from the pressures operating at the trial itself, but are in fact significantly greater. Contrary to the majority's assertion, the pretrial decision cannot be analyzed as simply a matter of 'timing,' influenced by the same factors operating at the trial itself.
39
The Court apparently also assumes that a defendant who has given the required notice can abandon his alibi without hurting himself. Such an assumption is implicit in and necessary for the majority's argument that the pretrial decision is no different from that at the trial itself. I, however, cannot so lightly assume that pretrial notice will have no adverse effects on a defendant who later decides to forgo such a defense. Necessarily the defendant will have given the prosecutor the names of persons who may have some knowledge about the defendant himself or his activities. Necessarily the prosecutor will have every incentive to question these persons fully, and in doing so he may discover new leads or evidence. Undoubtedly there will be situations in which the State will seek to use such information—information it would probably never have obtained but for the defendant's coerced cooperation.
B
40
It is unnecessary for me, however, to engage in any such intellectual gymnastics concerning the practical effects of the notice-of-alibi procedure, because the Fifth Amendment itself clearly provides that '(n)o person * * * shall be compelled in any criminal case to be a witness against himself.' If words are to be given their plain and obvious meaning, that provision, in my opinion, states that a criminal defendant cannot be required to give evidence, testimony, or any other assistance to the State to aid it in convicting him of crime. Cf. Schmerber v. California, 384 U.S. 757, 773, 86 S.Ct. 1826, 1837, 16 L.Ed.2d 908 (1966) (Black, J., dissenting). The Florida notice-of-alibi rule in my opinion is a patent violation of that constitutional provision because it requires a defendant to disclose information to the State so that the State can use that information to destroy him. It seems to me at least slightly incredible to suggest that this procedure may have some beneficial effects for defendants. There is no need to encourage defendants to take actions they think will help them. The fear of conviction and the substantial cost or inconvenience resulting from criminal prosecutions are more than sufficient incentives to make defendants want to help themselves. If a defendant thinks that making disclosure of an alibi before trial is in his best interest, he will obviously do so. And the only time the State needs the compulsion provided by this procedure is when the defendant has decided that such disclosure is likely to hurt his case.
41
It is no answer to this argument to suggest that the Fifth Amendment as so interpreted would give the defendant an unfair element of surprise, turning a trial into a 'poker game' or 'sporting contest,' for that tactical advantage to the defendant is inherent in the type of trial required by our Bill of Rights. The Framers were well aware of the awesome investigative and prosecutorial powers of government and it was in order to limit those powers that they spelled out in detail in the Constitution the procedure to be followed in criminal trials. A defendant, they said, is entitled to notice of the charges against him, trial by jury, the right to counsel for his defense, the right to confront and cross-examine witnesses, the right to call witnesses in his own behalf, and the right not to be a witness against himself. All of these rights are designed to shield the defendant against state power. None are designed to make convictions easier and taken together they clearly indicate that in our system the entire burden of proving criminal activity rests on the State. The defendant, under our Constitution, need not do anything at all to defend himself, and certainly he cannot be required to help convict himself. Rather he has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process the defendant has a fundamental right to remain silent, in effect challenging the State at every point to: 'Prove it!'
42
The Bill of Rights thus sets out the type of constitutionally required system that the State must follow in order to convict individuals of crime. That system requires that the State itself must bear the entire burden without any assistance from the defendant. This requirement is clearly indicated in the Fifth Amendment itself, but it is equally apparent when all the specific provisions of the Bill of Rights relating to criminal prosecutions are considered together. And when a question concerning the constitutionality of some aspect of criminal procedure arises, this Court must consider all those provisions and interpret them together. The Fifth Amendment prohibition against compelling a defendant to be a witness against himself is not an isolated, distinct provision. It is part of a system of constitutionally required procedures, and its true meaning can be seen only in light of all those provisions. 'Strict construction' of the words of the Constitution does not mean that the Court can look only to one phrase, clause, or sentence in the Constitution and expect to find the right answer. Each provision has clear and definite meaning, and various provisions considered together may have an equally clear and definite meaning. It is only through sensitive attention to the specific words, the context in which they are used, and the history surrounding the adoption of those provisions that the true meaning of the Constitution can be discerned.
43
This constitutional right to remain absolutely silent cannot be avoided by superficially attractive analogies to any so-called 'compulsion' inherent in the trial itself that may lead a defendant to put on evidence in his own defense. Obviously the Constitution contemplates that a defendant can be 'compelled' to stand trial, and obviously there will be times when the trial process itself will require the defendant to do something in order to try to avoid a conviction. But nothing in the Constitution permits the State to add to the natural consequences of a trial and compel the defendant in advance of trial to participate in any way in the State's attempt to condemn him.
44
A criminal trial is in part a search for truth. But it is also a system designed to protect 'freedom' by insuring that no one is criminally punished unless the State has first succeeded in the admittedly difficult task of convincing a jury that the defendant is guilty. That task is made more difficult by the Bill of Rights, and the Fifth Amendment may be one of the most difficult of the barriers to surmount. The Framers decided that the benefits to be derived from the kind of trial required by the Bill of Rights were well worth any loss in 'efficiency' that resulted. Their decision constitutes the final word on the subject, absent some constitutional amendment. That decision should not be set aside as the Court does today.
II
45
On the surface this case involves only a notice-of-alibi provisions, but in effect the decision opens the way for a profound change in one of the most important traditional safeguards of a criminal defendant. The rationale of today's decision is in no way limited to alibi defenses, or any other type or classification of evidence. The theory advanced goes at least so far as to permit the State to obtain under threat of sanction complete disclosure by the defendant in advance of trial of all evidence, testimony, and tactics he plans to use at that trial. In each case the justification will be that the rule affects only the 'timing' of the disclosure, and not the substantive decision itself. This inevitability is clearly revealed by the citation to Jones v. Superior Court, 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919 (1962), ante, at 83, n. 13. In that case, the theory of which the Court today adopts in its entirety, a defendant in a rape case disclosed that he would rely in part on a defense of impotency. The prosecutor successfully obtained an order compelling the defendant to reveal the names and addresses of any doctors he consulted and the medical reports of any examinations relating to the claimed incapacity. That order was upheld by the highest court in California. There was no 'rule' or statute to support such a decision, only the California Supreme Court's sense of fairness, justice, and judicial efficiency. The majority there found no barrier to the judicial creation of pretrial discovery by the State against the defendant, least of all a barrier raised by any constitutional prohibition on compelling the defendant to be a witness against himself.
46
The dangerous implications of the Jones rationale adopted today are not, however, limited to the disclosure of evidence that the defendant has already decided he will use at trial. In State v. Grove, 65 Wash.2d 525, 398 P.2d 170 (1965), the Washington Supreme Court, relying on Jones, held that a defendant in a murder trial could be compelled to produce a letter he had written his wife about the alleged crime, even though he had no thought at all of using that evidence in his own behalf. These cases are sufficient evidence of the inch-by-inch, case-by-case process by which the rationale of today's decision can be used to transform radically our system of criminal justice into a process requiring the defendant to assist the State in convicting him, or be punished for failing to do so.
47
There is a hint in the State's brief in this case—as well as, I fear, in the Court's opinion—of the ever-recurring suggestion that the test of constitutionality is the test of 'fairness,' 'decency', or in short the Court's own views of what is 'best.' Occasionally this test emerges in disguise as an intellectually satisfying 'distinction' or 'analogy' designed to cover up a decision based on the wisdom of a proposed procedure rather than its conformity with the commands of the Constitution. Such a course, in my view, is involved in this case. This decision is one more step away from the written Constitution and a radical departure from the system of criminal justice that has prevailed in this country. Compelling a defendant in a criminal case to be a witness against himself in any way, including the use of the system of pretrial discovery approved today, was unknown in English law, except for the un-lamented proceedings in the Star Chamber courts—the type of proceedings the Fifth Amendment was designed to prevent. For practically the first 150 years of this Nation's history no State considered adopting such procedures compelling a criminal defendant to help convict himself, although history does not indicate that our ancestors were any less intelligent or solicitous of having a fair and efficient system of criminal justice than we are. History does indicate that persons well familiar with the dangers of arbitrary and oppressive use of the criminal process were determined to limit such dangers for the protection of each and every inhabitant of this country. They were well aware that any individual might some day be subjected to criminal prosecution, and it was in order to protect the freedom of each of us that they restricted the Government's ability to punish or imprison any of us. Yet in spite of the history of oppression that produced the Bill of Rights and the strong reluctance of our governments to compel a criminal defendant to assist in his own conviction, the Court today reaches out to embrace and sanctify at the first opportunity a most dangerous departure from the Constitution and the traditional safeguards afforded persons accused of crime. I cannot accept such a result and must express my most emphatic disagreement and dissent.
48
Mr. Justice MARSHALL, dissenting in part.
49
I join Part I of the Court's opinion. However, since I believe that the Fourteenth Amendment guaranteed Williams a jury of 12 to pass upon the question of his guilt or innocence before he could be sent to prison for the rest of his life, I dissent from the affirmance of his conviction.
50
I adhere to the holding of Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), that '(b)ecause * * * trial by jury in criminal cases is fundamental to the American scheme of justice * * * the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment's guarantee.' And I agree with the Court that the same 'trial by jury' is guaranteed to state defendants by the Fourteenth Amendment as to federal defendants by the Sixth. 'Once it is decided that a particular Bill of Rights guarantee is 'fundamental to the American scheme of justice' * * * the same constitutional standards apply against both the State and Federal Governments.' Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969).
51
At the same time, I adhere to the decision of the Court in Thompson v. Utah, 170 U.S. 343, 349, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), that the jury guaranteed by the Sixth Amendment consists 'of twelve persons, neither more nor less.' As I see it, the Court has not made out a convincing case that the Sixth Amendment should be read differently than it was in Thompson even if the matter were now before us de novo—much less that an unbroken line of precedent going back over 70 years should be overruled. The arguments made by Mr. Justice Harlan in Part IB of his opinion persuade me that Thompson was right when decided and still states sound doctrine. I am equally convinced that the requirement of 12 should be applied to the States.
1
The full text of the rule is set out in the appendix to this opinion, infra, at 104. Subsequent references to an appendix are to the separately bound appendix filed with the briefs in this case (hereinafter 'App.').
2
See App. 5.
3
Fla.Stat. § 913.10(1) (1967), F.S.A.:
'Twelve men shall constitute a jury to try all capital cases, and six men shall constitute a jury to try all other criminal cases.'
4
See App. 82.
5
The Supreme Court of Florida had earlier held that it was without jurisdiction to entertain petitioner's direct appeal from the trial court. See id., at 92. Under Florida law, the District Court of Apeal became the highest court from which a decision could be had. See Fla.Const., Art. V, § 4(2), F.S.A.; Fla.App.Rule 2.1a(5)(a), 32 F.S.A.; Ansin v. Thurston, Fla., 101 So.2d 808, 810 (1958).
6
'For good cause shown' the court may waive the requirements of the rule. Fla.Rule Crim.Proc. 1.200.
7
See App. 58—60.
8
Id., at 65—66.
9
See Fla.Rule Crim.Proc. 1.220. These discovery provisions were invoked by petitioner in the instant case. See App. 3, 4, 8.
10
See Epstein, Advance Notice of Alibi, 55 J.Crim.L.C. & P.S. 29, 32 (1964).
11
In addition to Florida, at least 15 States appear to have alibi-notice requirements of one sort or another. See Ariz.Rule Crim.Proc. 192 B (1956) 17 A.R.S.; Ind.Ann.Stat. §§ 9—1631 to 9 1633 (1956); Iowa Code § 777.18 (1966); Kan.Stat.Ann. § 62—1341 (1964); Mich.Comp.Laws §§ 768.20, 768.21 (1948); Minn.Stat. § 630.14 (1967); N.J.Rule 3:5—9 (1958); N.Y.Code Crim.Proc. § 295—l (1958); Ohio Rev.Code Ann. § 2945.58 (1954); Okla.Stat., Tit. 22, § 585 (1969); Pa.Rule Crim.Proc. 312 (1970); S.D.Comp.Laws §§ 23 37—5, 23—37—6 (1967); Utah Code Ann. § 77—22—17 (1953); Vt.Stat.Ann., Tit. 13, $x 6561, 6562 (1959); Wis.Stat. § 955.07 (1961). See generally 6 J. Wigmore, Evidence § 1855b (3d ed. 1940).
We do not, of course, decide that each of these alibi-notice provisions is necessarily valid in all respects; that conclusion must await a specific context and an inquiry, for example, into whether the defendant enjoys reciprocal discovery against the State.
12
See, e.g., Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 196o Wash.U.L.Q. 279, 292.
13
E.g., State v. Stump, 254 Iowa 1181, 119 N.W.2d 210, cert. denied, 375 U.S. 853, 84 S.Ct. 113, 11 L.Ed.2d 80 (1963); State v. Baldwin, 47 N.J. 379, 221 A.2d 199, cert. denied, 385 U.S. 980, 87 S.Ct. 527, 17 L.Ed.2d 442 (1966); People v. Rakiec, 260 App.Div. 452, 457—458, 23 N.Y.S.2d 607, 612—613 (1940); Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 224 A.2d 96 (1966); see Jones v. Superior Court, 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919 (1962); Louisell, Criminal Discovery and Self-Incrimination: Roger Traynor Confronts the Dilemma, 53 Calif.L.Rev. 89 (1965); Traynor, Ground Lost and Found in Criminal Discovery, 39 N.Y.U.L.Rev. 228 (1964); Comment, The Self-Incrimination Privilege: Barrier to Criminal Discovery?, 51 Calif.L.Rev. 135 (1963); 76 Harv.L.Rev. 838 (1963).
14
We emphasize that this case does not involve the question of the validity of the threatened sanction, had petitioner chosen not to comply with the notice-of-alibi rule. Whether and to what extent a State can enforce discovery rules against a defendant who fails to comply, by excluding relevant, probative evidence is a question raising Sixth Amendment issues which we have no occasion to explore. Cf. Brief for Amicus Curiae 17—26. It is enough that no such penalty was exacted here.
15
Petitioner's apparent suggestion to the contrary is simply not borne out by the facts of this case. The mere requirement that petitioner disclose in advance his intent to rely on an alibi in no way 'fixed' his defense as of that point in time. The suggestion that the State, by referring to petitioner's proposed alibi in opening or closing statements might have 'compelled' him to follow through with the defense in order to avoid an unfavorable inference is a hypothetical totally without support in this record. The first reference to the alibi came from petitioner's own attorney in his opening remarks; the State's response did not come until after the defense had finished direct examination of Mrs. Scotty. Petitioner appears to raise this issue as a possible defect in alibinotice requirements in general, without seriously suggesting that his choice of defense at trial in this case would have been different but for his prior compliance with the rule. Indeed, in his Motion for a Protective Order, petitioner freely disclosed his intent to rely on an alibi; his only objection was to the further requirement that he disclose the nature of the alibi and the name of the witness. On these facts, then, we simply are not confronted with the question of whether a defendant can be compelled in advance of trial to select a defense from which he can no longer deviate. We do not mean to suggest, though, that such a procedure must necessarily raise serious constitutional problems. See State ex rel. Simos v. Burke, 41 Wis.2d 129, 137, 163 N.W.2d 177, 181 (1968) ('(i)f we are discussing the right of a defendant to defer until the moment of his testifying the election between alternative and inconsistent alibis, we have left the concept of the trial as a search for truth far behind').
16
See Reply Brief for petitioner, 2 and n. 1.
17
It might also be argued that the 'testimonial' disclosures protected by the Fifth Amendment include only statements relating to the historical facts of the crime, not statements relating solely to what a defendant proposes to do at trial.
18
See Duncan v. Louisiana, 391 U.S. 145, 151—154, 88 S.Ct. 1444, 1448—1450, 20 L.Ed.2d 491 (1968).
19
In tracing the development of the jury from the time when the jury performed a different, 'inquisitory' function, James B. Thayer notes the following:
'In early times the inquisition had no fixed number. In the Frankish empire we are told of 66, 41, 20, 17, 13, 11, 8, 7, 53, 15, and a great variety of other numbers. So also among the Normans it varied much, and 'twelve has not even the place of the prevailing grundzahl;' the documents show all sorts of numbers—4, 5, 6, 12, 13—18, 21, 27, 30, and so on. It seems to have been the recognitions under Henry II. that established twelve as the usual number; even then the number was not uniform.' The Jury and Its Development, 5 Harv.L.Rev. 295 (1892); (citations omitted).
See J. Thayer, A Preliminary Treatise on Evidence at the Common Law 85 (1898).
Similarly, Professor Scott writes:
'At the beginning of thirteenth century twelve was indeed the usual but not the invariable number. But by the middle of the fourteenth century the requirement of twelve had probably become definitely fixed. Indeed this number finally came to be regarded with something like superstitious reverence.' A. Scott, Fundamentals of Procedure in Actions at Law 75—76 (1922) (footnotes omitted).
20
1 W. Holdsworth, A. History of English Law 325 (1927); Wells, The Origin of the Petty Jury, 27 L.Q.Rev. 347, 357 (1911). The latter author traces the development of the 12-man petit jury through the following four stages. The first stage saw the development of the presentment jury, made up generally of 12 persons from the hundred, whose function was simply to charge the accused with a crime; the test of his guilt or innocence was by some other means, such as trial by ordeal, battle, or wager of law.
In the second stage, the presentment jury began to be asked for its verdict on the guilt or innocence of the person it had accused, and hence began to function as both a petit and a grand jury. In the third stage, 'combination juries' were formed to render the verdict in order to broaden the base of representation beyond the local hundred, or borough, to include the county. These juries were formed by adding one or more presentment juries from one or more hundreds, as well as certain officials such as coroners or knights. 'These combination juries numbered from twenty-four to eighty-four jurors, and the number became embarrassingly large and unwieldy, and the sense of the personal responsibility of each juror was in danger of being lost.' Id., at 356. The obvious fourth step was the creation of a special jury 'formed by selecting one or more jurors from each of several of the presentment juries of the hundreds, until the number twelve is reached * * * probably because that was the number of the presentment jury from the hundred. Therefore, just as the presentment jury represented the voice of the hundred in making the accusation, so the jury of 'the country', with the same number, represented the whole county in deciding whether the accused was guilty or not.' Id., at 357.
Neither of these authors hazards a guess as to why the presentment jury itself numbered 12.
21
Id., at 357.
22
1 E. Coke, Institutes of the Laws of England *155a (1st Amer. ed. 1812).
23
Thus John Proffatt in his treatise on jury trials notes that the reasons why the number of the petit jury is 12, are 'quaintly given' in Duncombe's Trials per Pais, as follows:
'(T)his number is no less esteemed by our own law than by holy writ. If the twelve apostles on their twelve thrones must try us in our eternal state, good reason hath the law to appoint the number twelve to try us in our temporal. The tribes of Israel were twelve, the patriarchs were twelve, and Solomon's officers were twelve.' Trial by Jury 112 n. 4 (1877), quoting G. Duncombe, 1 Trials per Pais 92—93 (8th ed. 1766).
Attempts have also been made to trace the number 12 to early origins on the European Continent, particularly in Scandinavia. See F. Busch, 1 Law and Tactics in Jury Trials § 24 (1959). See generally W. Forsyth, History of Trial by Jury 4 (1852); T. Repp, Trial by Jury (1832). But even as to the continental practice, no better reasons are discovered for the number 12. Thus Proffatt, indiscussing the ancient Scandinavian tribunals, comments:
'Twelve was not only the common number throughout Europe, but was the favorite number in every branch of the polity and jurisprudence of the Gothic nations.
'The singular unanimity in the selection of the number twelve to compose certain judicial bodies, is a remarkable fact in the history of many nations. Many have sought to account for this general custom, and some have based it on religious grounds. One of the ancient kings of Wales, Morgan of Gla-Morgan, to whom is accredited the adoption of the trial by jury in A.D. 725, calls it the 'Apostolic Law.' 'For,' said he, 'as Christ and his twelve apostles were finally to judge the world, so human tribunals should be composed of the king and twelve wise men." Proffatt, Trial by Jury 11 n. 2 (1877) (citations omitted).
See also 1 L.Pike, A History of Crime in England 122 (1873).
In this connection it is interesting to note the following oath, required of the early 12-man jury:
'Hear this, ye Justices! that I will speak the truth of that which ye shall ask of me on the part of the king, and I will do faithfully to the best of my endeavour. So help me God, and these holy Apostles.' W. Forsyth, Trial by Jury 197 (1852). See Proffatt, supra, at 42.
24
See supra, n. 19.
25
P. Devlin, Trial by Jury 8 (1956); F. Heller, The Sixth Amendment 64 (1951); W. Willoughby, Principles of Judicial Administration 503 (1929); Tamm, The Five-Man Civil Jury: A Proposed Constitutional Amendment, 51 Geo.L.J. 120, 128—130 (1962); Wiehl, The Six Man Jury, 4 Gonzaga L.Rev. 35, 38—39 (1968); see Thayer, supra, n. 19, at 89—90; White, Origin and Development of Trial by Jury, 29 Tenn.L.Rev. 8, 15—16, 17 (1959).
26
At the time of the crime and at the first trial the statutes of the Territory of Utah—wholly apart from the Sixth Amendment—ensured Thompson a 12-man jury. See 170 U.S., at 345, 18 S.Ct., at 620, 621. The Court found the ex post facto question easy to resolve, once it was assumed that Utah's subsequent constitutional provision deprived Thompson of a right previously guaranteed him by the United States Constitution; the possibility that the same result might have been reached solely on the basis of the rights formerly accorded Thompson under the territorial statute was hinted at, but was not explicitly considered.
27
Whether or not the Magna Carta's reference to a judgment by one's peers was a reference to a 'jury'—a fact that historians now dispute, see, e.g., 1 F. Pollock & F. Maitland, The History of English Law Before the Time of Edward I, p. 173 n. 3 (2d ed. 1909); Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917, 922 n. 14 (1926) (criticizing Thompson v. Utah's reliance on the document 'long after scholars had exposed this ancient error')—it seems clear that the Great Charter is not authority for fixing the number of the jury at 12. See W. McKechnie, Magna Carta 134—138, 375—382 (1958); Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv.L.Rev. 669, 672 (1918).
As the text indicates, the question is not whether the 12-man jury is traced to 1215 or to 1789, but whether that particular feature must be accepted as a sine qua non of the jury trial guaranteed by the Constitution. See Heller, supra, n. 25, at 64.
28
The Thompson opinion also reasoned that if a jury can be reduced from 12 to eight, then there was nothing to prevent its similarly being reduced to four or two or even zero, thus dispensing with the jury altogether. See 170 U.S., at 353, 18 S.Ct., at 623, 624. That bit of 'logic,' resurrected today in Mr. Justice Harlan's concurring opinion, 399 U.S., at 126, 90 S.Ct., at 1919, suffers somewhat as soon as one recognizes that he can get off the 'slippery slope' before he reaches the bottom. We have no occasion in this case to determine what minimum number can still constitute a 'jury,' but we do not doubt that six is above that minimum.
29
A ruling that the Sixth Amendment refers to a common-law jury was essential to the holding in Rassmussen v. United States, 197 U.S. 516, 25 S.Ct. 514, 49 L.Ed. 862 (1905), where the Court held invalid a conviction by a six-man jury in Alaska. The ruling was accepted at the Government's concession without discussion or citation; the major focus of the case was on the question whether the Sixth Amendment was applicable to the territory in question at all. See 197 U.S., at 519, 25 S.Ct., at 515.
30
Similarly, cases interpreting the jury trial provisions of the Seventh Amendment generally leap from the fact that the jury possessed a certain feature at common law to the conclusion that that feature must have been preserved by the Amendment's simple reference to trial by 'jury.' E.g., Capital Traction Co. v. Hof, 174 U.S. 1, 13—14, 19 S.Ct. 580, 585, 43 L.Ed. 873 (1899); American Publishing Co. v. Fisher, 166 U.S. 464, 468, 17 S.Ct. 618, 619, 41 L.Ed. 1079 (1897). While much of our discussion in this case may be thought to bear equally on the interpretation of the Seventh Amendment's jury trial provisions, we emphasize that the question is not before us; we do not decide whether, for example, additional references to the 'common law' that occur in the Seventh Amendment might support a different interpretation. See infra, at 97 and n. 44.
31
The Patton opinion furnishes an interesting illustration of the Court's willingness to re-examine earlier assertions about the nature of 'jury trial' in almost every respect except the 12-man-jury requirement. Patton reaffirmed the 12-man requirement with a simple citation to Thompson v. Utah, while at the same time discarding as 'dictum' the equally dogmatic assertion in Thompson that the requirement could not be waived. See 281 U.S., at 293, 50 S.Ct., at 256.
32
U.S.Const., Art. III, § 2, cl. 3.
33
Frankfurter & Corcoran, supra, n. 27, at 969.
34
The only attention given the jury trial provisions involved such questions as whether the right should also be extended to civil cases, see Henderson, The Background of the Seventh Amendment, 80 Harv.L.Rev. 289, 292—294 (1966), whether the wording should embrace the 'trial of all crimes' or the 'trial of all criminal offenses,' see Frankfurter & Corcoran, supra, n. 27, at 969, and how to provide for the trial of crimes not committed in any State, id., at 969 n. 244. See 2 M. Farrand, Records of the Federal Convention 144, 173, 187, 433, 438, 576, 587—588, 601, 628 (1911). See also 4 id., at 121 (1937) (indexing all references to Art. III, § 2, cl. 3 in Farrand's records).
35
See Heller, supra, n. 25, at 31—33, 93; Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv.L.Rev. 49, 105 (1923). Technically, 'vicinage' means neighborhood, and 'vicinage of the jury' meant jury of the neighborhood or, in medical England, jury of the county. See 4 W. Blackstone, Commentaries *350—351. While Article III provided for venue, it did not impose the explicit juror-residence requirement associated with the concept of 'vicinage.' See Maryland v. Brown, 295 F.Supp. 63, 80 (D.C.Md.1969). In the Virginia Convention, Madison conceded that the omission was deliberate and defended it as follows:
'It was objected yesterday, that there was no provision for a jury from the vicinage. If it could have been done with safety, it would not have been opposed. It might so happen that a trial would be impracticable in the county. Suppose a rebellion in a whole district, would it not be impossible to get a jury? The trial by jury is held as sacred in England as in America. There are deviations of it in England: yet greater deviations have happened here since we established our independence, than have taken place there for a long time, though it be left to the legislative discretion. It is a misfortune in any case that this trial should be departed from, yet in some cases it is necessary. It must be therefore left to the discretion of the legislature to modify it according to circumstances. This is a complete and satisfactory answer.' 3 M. Farrand, Records of the Federal Convention 332 (1911).
36
1 Annals of Cong. 435 (1789).
37
The Senate Journal indicates that every clause in the House version of the proposed Amendment was deleted except the clause relating to grand jury indictment. Senate Journal, Sept. 4, 1789, 1st Cong., 1st Sess., 71. A subsequent motion to restore the words providing for trial 'by an impartial jury of the vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accustomed requisites' failed of adoption. Senate Journal, Sept. 9, 1789, 1st Cong., 1st Sess., 77.
38
The principal source of information on the proceedings of the Senate in the First Congress in the Journal of Senator Maclay of Pennsylvania, who unfortunately was ill during the Senate debate on the amendments. See Journal of William Maclay 144—151 (1927); Heller, supra, n. 25, at 31—32.
39
Madison writes:
'The Senate have sent back the plan of amendments with some alternations, which strike, in my opinion, at the most salutary articles. In many of the States, juries, even in criminal cases, are taken from the State at large; in others, from districts of considerable extent; in very few from the County alone. Hence a dislike to the restraint with respect to vicinage, which has produced a negative on that clause. * * * Several others have had a similar fate.' Letter from James Madison to Edmund Pendleton, Sept. 14, 1789, in 1 Letters and Other Writing of James Madison 491 (1865).
40
Letter from James Madison to Edmund Pendleton, Sept. 23, 1789, in id., at 492—493. See generally Heller, supra, n. 25, at 28—34; Warren, supra, n. 35, at 118—132.
41
See Heller supra, n. 25, at 93.
42
Proffatt, supra, n. 23, at 119; 1 G. Curtis, History of the Origin, Formation, and Adoption of the Constitution of the United States 23 (1863).
43
The Act provided in § 29:
'(T)hat in cases punishable with death, the trial shall be had in the county where the offence was committed, or where that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence.' Act of Sept. 24, 1789, § 29, 1 Stat. 88.
44
Similarly, the First Continental Congress resolved in October 1774:
'That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.' I Journals of the Continental Congress 69 (C. Ford. ed. 1904) (emphasis added). And the Northwest Ordinance of 1787 declared that the inhabitants of that Territory should 'always be entitled to the benefits of the writs of habeas corpus, and of the trial by jury * * * and of judicial proceedings according to the course of the common law.' Ordinance of 1787, Art. II, 1 U.S.C. XXXVIII (emphasis added). See Capital Traction Co. v. Hof, 174 U.S. 1, 5—8, 19 S.Ct. 580, 582, 583, 43 L.Ed. 873 (1899) (concluding from these sources that the explicit reference to the 'common law' in the Seventh Amendment, referred to the rules of the common law of England, not the rules as modified by local or state practice).
45
One scholar, however, in investigating the reception of the English common law by the early American colonies, notes that the process:
'was not so simple as the legal theory would lead us to assume. While their general legal conceptions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles.' Reinsch, The English Common Law in the Early American Colonies, in 1 Select Essays in Anglo-American Legal History 367, 415 (1907).
With respect to the jury trial in particular, while most of the colonies adopted the institution in its English form at an early date, more than one appears to have accepted the institution at various stages only with 'various modifications.' See id., at 412. Thus Connecticut permitted majority decision in case of continued failure to agree, id., at 386, Virginia expressed regret at being unable to retain the 'vicinage' requirement of the English jury, id., at 405, Pennsylvania permitted majority verdicts and employed juries of six or seven, id., at 398, and the Carolinas discontinued the unanimity requirement, 5 F. Thorpe, Federal and State Constitutions 2781 (1909) (Art. 69, 'Fundamental Constitutions of Carolina'). See also Heller, supra, n. 25, at 13 21.
The States that had adopted Constitutions by the time of the Philadelphia Convention in 1787 appear for the most part to have either explicitly provided that the jury would consist of 12, see Va.Const. of 1776, § 8, in 7 F. Thorpe, Federal and State Constitutions 3813 (1909), or to have subsequently interpreted their jury trial provisions to include that requirement. In at least one instance involving conviction by eight jurors, a subsequent South Carolina decision interpreting the provision for trial by 'jury,' refused to declare the 12-man requirement an essential feature of that institution, immune from change by the legislature. See State v. Starling, 15 Rich. 120, 134 (S.C.Ct. of Errors 1867). The conviction was affirmed without deciding the question, since the State had by that time adopted a Constitution specifically empowering the legislature to determine the number of jurors in certain inferior courts. South Carolina remains today one of apparently five States, including Florida, that provide for juries of less than 12 in felony cases where imprisonment for more than one year may be imposed. See La.Const., Art. 7, §§ 41; La.Crim.Proc.Code Ann., Art. 779 (Supp.1969); S.C.Const., Art. 1, §§ 18, 25; Art. 5, § 22; S.C.Code Ann. §§ 15—618, 15—612 (1962); Tex.Const., Art. 1, §§ 10, 15; Art. 5, § 17, Vernon's Ann.St.; Tex.Code Crim.Proc., Arts. 4.07, 37.02 (1966); Tex.Pen.Code, Art. 1148 (1961); Utah Const., Art. 1, §§ 10, 12; Utah Code Ann. § 78 46—5 (1953).
In addition, it appears that at least nine States presently provide for less than 12-man juries in trials of certain offenses carrying maximum penalties of one year's imprisonment. See Brief for Appellee A13—A15, Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (collecting statutory provisions). See also 17 Mass.L.Q. No. 4, p. 12 (1932) (noting States that have interpreted the 'right of trial by jury' to permit trial by less than 12 in certain cases). For a 'poll of state practice,' see Mr. Justice Harlan's concurring opinion, 399 U.S., at 122, 136—137, 90 S.Ct., at 1917, 1925, and App.
46
We intimate no view whether or not the requirement of unanimity is an indispensable element of the Sixth Amendment jury trial. While much of the above historical discussion applies as well to the unanimity as to the 12-man requirement, the former, unlike the latter, may well serve an important role in the jury function, for example, as a device for insuring that the Government bear the heavier burden of proof. See Hibdon v. United States, 204 F.2d 834, 838 (C.A.6th Cir. 1953); Tamm, supra, n. 25, at 139. But cf. Comment, Waiver of Jury Unanimity—Some Doubts About Reasonable Doubt, 21 U.Chi.L.Rev. 438, 441—443 (1954). See generally American Bar Association Project on Standards for Criminal Justice, Trial by Jury 42—45 (Approved Draft 1968).
47
It is true, of course, that the 'hung jury' might be thought to result in a minimal advantage for the defendant, who remains unconvicted and who enjoys the prospect that the prosecution will eventually be dropped if subsequent juries also 'hang.' Thus a 100-man jury would undoubtedly be more favorable for defendants than a 12-man jury. But when the comparison is between 12 and six, the odds of continually 'hanging' the jury seem slight, and the numerical difference in the number needed to convict seems unlikely to inure perceptibly to the advantage of either side.
48
See Wiehl, supra, n. 25, at 40—41; Tamm, supra, n. 25, at 134—136; Cronin, Six-Member Juries in District Courts, 2 Boston B.J. No. 4, p. 27 (1958); Six-Member Juries Tried in Massachusetts District Court, 42 J.Am.Jud.Soc. 136 (1958). See also New Jersey Experiments with Six-Man Jury, 9 Bull. of the Section of Jud.Admin. of the ABA (May 1966); Phillips, A Jury of Six in All Cases, 30 Conn.B.J. 354 (1956).
49
Studies of the operative factors contributing to small group deliberation and decisionmaking suggest that jurors in the minority on the first ballot are likely to be influenced by the proportional size of the majority aligned against them. See H. Kalven & H. Zeisel, The American Jury 462—463, 488—489 (1966); C. Hawkins, Interaction and Coalition Realignments in Consensus-Seeking Groups: A Study of Experimental Jury Deliberations 13, 146, 156, Aug. 17, 1960 (unpublished thesis on file at Library of Congress); cf. Asch, Effects of Group Pressure Upon the Modification and Distortion of Judgments, in Readings in Social Psychology 2 (G. Swanson, T. Newcomb & E. Hartley et al., eds., 1952). See generally Note, On Instructing Deadlocked Juries, 78 Yale L.J. 100, 108 and n. 30 (and authorities cited), 110—111 (1968). Thus if a defendant needs initially to persuade four jurors that the State has not met its burden of proof in order to escape ultimate conviction by a 12-man jury, he arguably escapes by initially persuading half that number in a six-man jury; random reduction, within limits, of the absolute number of the jury would not affect the outcome. See also C. Joiner, Civil Justice and the Jury 31, 83 (1962) (concluding that the deliberative process should be the same in either the six- or 12-man jury).
50
See Fed.Rule Crim.Proc. 23(b) ('(j)uries shall be of 12').
1
See cases cited in In re Winship, 397 U.S. 358, 382 n. 11, 90 S.Ct. 1068, 1082, 25 L.Ed.2d 368 (1970) (Black, J., dissenting).
2
As I have frequently stated, in my opinion the Fourteenth Amendment was in part adopted in order to make the provisions of the Bill of Rights fully applicable to the States. See, e.g., Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903 (1947) (dissenting opinion). This Court has now held almost all these provisions do apply to the States as well as the Federal Government, including the Fifth Amendment provision involved in this case. See Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); cases cited in In re Winship, 397 U.S. 358, 382 n. 11, 90 S.Ct. 1068, 1082, 25 L.Ed.2d 368 (1970) (Black, J., dissenting). When this Court is called upon to consider the meaning of a particular provision of the Bill of Rights—whether in a case arising from a state court or a federal one—it is necessary to look to the specific language of the provision and the intent of the Framers when the Bill of Rights itself was adopted. This approach is necessary, not because the Framers intended the Bill of Rights to apply to the States when it was proposed in 1789, but because the application of those provisions to the States by the Fourteenth Amendment requires that the original intent be the governing consideration in state as well as federal cases.
| 01
|
399 U.S. 42
90 S.Ct. 1975
26 L.Ed.2d 419
Frank CHAMBERS, Petitioner,v.James F. MARONEY, Superintendent, State Correctional Institution.
No. 830.
Argued April 27, 1970.
Decided June 22, 1970.
Rehearing Denied Oct. 12, 1970.
See 91 S.Ct. 23.
Vincent J. Grogan, Pittsburgh, Pa., for petitioner.
Carol Mary Los, Pittsburgh, Pa., for respondent, pro hac vice, by special leave of Court.
Mr. Justice WHITE delivered the opinion of the Court.
1
The principal question in this case concerns the admissibility of evidence seized from an automobile, in which petitioner was riding at the time of his arrest, after the automobile was taken to a police station and was there thoroughly searched without a warrant. The Court of Appeals for the Third Circuit found no violation of petitioner's Fourth Amendment rights. We affirm.
2
* During the night of May 20, 1963, a Gulf service station in North Braddock, Pennsylvania, was robbed by two men, each of whom carried and displayed a gun. The robbers took the currency from the cash register; the service station attendant, one Stephen Kovacich, was directed to place the coins in his right-hand glove, which was then taken by the robbers. Two teen-agers, who had earlier noticed a blue compact station wagon circling the block in the vicinity of the Gulf station, then saw the station wagon speed away from a parking lot close to the Gulf station. About the same time, they learned that the Gulf station had been robbed. They reported to police, who arrived immediately, that four men were in the station wagon and one was wearing a green sweater. Kovacich told the police that one of the men who robbed him was wearing a green sweater and the other was wearing a trench coat. A description of the car and the two robbers was broadcast over the police radio. Within an hour, a light blue compact station wagon answering the description and carrying four men was stopped by the police about two miles from the Gulf station. Petitioner was one of the men in the station wagon. He was wearing a green sweater and there was a trench coat in the car. The occupants were arrested and the car was driven to the police station. In the course of a thorough search of the car at the station, the police found concealed in a compartment under the dashboard two .38 caliber revolvers (one loaded with dumdum bullets), a right-hand glove containing small change, and certain cards bearing the name of Raymond Havicon, the attendant at a Boron service station in McKeesport, Pennsylvania, who had been robbed at gunpoint on May 13, 1963. In the course of a warrant-authorized search of petitioner's home the day after petitioner's arrest, police found and seized certain .38-caliber ammunition, including some dumdum bullets similar to those found in one of the guns taken from the station wagon.
3
Petitioner was indicted for both robberies.1 His first trial ended in a mistrial but he was convicted of both robberies at the second trial. Both Kovacich and Havicon identified petitioner as one of the robbers.2 The materials taken from the station wagon were introduced into evidence, Kovacich identifying his glove and Havicon the cards taken in the May 13 robbery. The bullets seized at petitioner's house were also introduced over objections of petitioner's counsel.3 Petitioner was sentenced to a term of four to eight years' imprisonment for the May 13 robbery and to a term of two to seven years' imprisonment for the May 20 robbery, the sentences to run consecutively.4 Petitioner did not take a direct appeal from these convictions. In 1965, petitioner sought a writ of habeas corpus in the state court, which denied the writ after a brief evidentiary hearing; the denial of the writ was affirmed on appeal in the Pennsylvania appellate courts. Habeas corpus proceedings were then commenced in the United States District Court for the Western District of Pennsylvania. An order to show cause was issued. Based on the State's response and the state court record, the petition for habeas corpus was denied without a hearing. The Court of Appeals for the Third Circuit affirmed, 408 F.2d 1186 and we granted certiorari, 396 U.S. 900, 90 S.Ct. 225, 24 L.Ed.2d 177 (1969).5
II
4
We pass quickly the claim that the search of the automobile was the fruit of an unlawful arrest. Both the courts below thought the arresting officers had probable cause to make the arrest. We agree. Having talked to the teen-age observers and to the victim Kovacich, the police had ample cause to stop a light blue compact station wagon carrying four men and to arrest the occupants, one of whom was wearing a green sweater and one of whom had a trench coat with him in the car.6
5
Even so, the search that produced the incriminating evidence was made at the police station some time after the arrest and cannot be justified as a search incident to an arrest: 'Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.' Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), is to the same effect; the reasons that have been thought sufficient to justify warrantless searches carried out in connection with an arrest no longer obtain when the accused is safely in custody at the station house.
6
There are, however alternative grounds arguably justifying the search of the car in this case. In Preston, supra, the arrest was for vagrancy; it was apparent that the officers had no cause to believe that evidence of crime was concealed in the auto. In Dyke, supra, the Court expressly rejected the suggestion that there was probable cause to search the car, 391 U.S., at 221—222, 88 S.Ct. 1475—1476. Here the situation is different, for the police had probable cause to believe that the robbers, carrying guns and the fruits of the crime, had fled the scene in a light blue compact station wagon which would be carrying four men, one wearing a green sweater and another wearing a trench coat. As the state courts correctly held, there was probable cause to arrest the occupants of the station wagon that the officers stopped; just as obviously was there probable cause to search the car for guns and stolen money.
7
In terms of the circumstances justifying a warrantless search, the Court has long distinguished between an automobile and a home or office. In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the issue was the admissibility in evidence of contraband liquor seized in a warrantless search of a car on the highway. After surveying the law from the time of the adoption of the Fourth Amendment onward, the Court held that automobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize. The Court expressed its holding as follows:
8
'We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, 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.
9
'Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. * * * (T)hose lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise. * * *
10
'The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.' 267 U.S., at 153—154, 155-156, 45 S.Ct. at 285 286.
11
The Court also noted that the search of an auto on probable cause proceeds on a theory wholly different from that justifying the search incident to an arrest:
12
'The right to search and the validity of the seizure are not dependent on the the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.' 267 U.S., at 158—159, 45 S.Ct. at 287.
13
Finding that there was probable cause for the search and seizure at issue before it, the Court affirmed the convictions.
14
Carroll was followed and applied in Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931), and Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938). It was reaffirmed and followed in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). In 1964, the opinion in Preston, supra, cited both Brinegar and Carroll with approval, 376 U.S., at 366—367, 84 S.Ct. at 882—883. In Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967),7 the Court read Preston as dealing primarily with a search incident to arrest and cited that case for the proposition that the mobility of a car may make the search of a car without a warrant reasonable 'although the result might be the opposite in a search of a home, a store, or other fixed piece of property.' 386 U.S., at 59, 87 S.Ct. at 790. The Court's opinion in Dyke, 391 U.S., at 221, 88 S.Ct. at 1475, recognized that '(a)utomobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office,' citing Brinegar and Carroll, supra. However, because there was insufficient reason to search the car involved in the Dyke case, the Court did not reach the question of whether those cases 'extend to a warrantless search, based upon probable cause, of an automobile which, having been stopped originally on a highway, is parked outside a courthouse.' 391 U.S., at 222, 88 S.Ct. at 1476.8
15
Neither Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords. But the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable. Where this is true, as in Carroll and the case before us now, if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search.9
16
In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. As a general rule, it has also required the judgment of a magistrate on the probable-cause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible.
17
Arguably, because of the preference for a magistrate's judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the 'lesser' intrusion is permissible until the magistrate authorizes the 'greater.' But which is the 'greater' and which the 'lesser' intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
18
On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained.10 The same consequences may not follow where there is unforeseeable cause to search a house. Compare Vale v. Louisiana, ante, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409. But as Carroll, supra, held, for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars.
III
19
Neither of petitioner's remaining contentions warrants reversal of the judgment of the Court of Appeals. One of them challenges the admissibility at trial of the .38-caliber ammunition seized in the course of a search of petitioner's house. The circumstances relevant to this issue are somewhat confused, involving as they do questions of probable cause, a lost search warrant, and the Pennsylvania procedure for challenging the admissibility of evidence seized. Both the District Court and the Court of Appeals, however, after careful examination of the record, found that if there was error in admitting the ammunition, the error was harmless beyond a reasonable doubt. Having ourselves studied this record, we are not prepared to differ with the two courts below. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
20
The final claim is that petitioner was not afforded the effective assistance of counsel. The facts pertinent to this claim are these: The Legal Aid Society of Allegheny County was appointed to represent petitioner prior to his first trial. A representative of the society conferred with petitioner, and a member of its staff, Mr. Middleman, appeared for petitioner at the first trial. There is no claim that petitioner was not then adequately represented by fully prepared counsel. The difficulty arises out of the second trial. Apparently no one from the Legal Aid Society again conferred with petitioner until a few minutes before the second trial began. The attorney who then appeared to represent petitioner was not Mr. Middleman but Mr. Tamburo, another Legal Aid Society attorney. No charge is made that Mr. Tamburo was incompetent or inexperienced; rather the claim is that his appearance for petitioner was so belated that he could not have furnished effective legal assistance at the second trial. Without granting an evidentiary hearing, the District Court rejected petitioner's claim. The Court of Appeals dealt with the matter in an extensive opinion. After carefully examining the state court record, which it had before it, the court found ample grounds for holding that the appearance of a different attorney at the second trial had not resulted in prejudice to petitioner. The claim that Mr. Tamburo was unprepared centered around his allegedly inadequate efforts to have the guns and ammunition excluded from evidence. But the Court of Appeals found harmless any error in the admission of the bullets and ruled that the guns and other materials seized from the car were admissible evidence. Hence the claim of prejudice from the substitution of counsel was without substantial basis.11 In this posture of the case we are not inclined to disturb the judgment of the Court of Appeals as to what the state record shows with respect to the adequacy of counsel. Unquestionably, the courts should make every effort to effect early appointments of counsel in all cases. But we are not disposed to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel or to hold that, whenever a habeas corpus petition alleges a belated appointment, an evidentiary hearing must be held to determine whether the defendant has been denied his constitutional right to counsel. The Court of Appeals reached the right result in denying a hearing in this case.
21
Affirmed.
22
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
23
Mr. Justice STEWART, concurring.
24
I adhere to the view that the admission at trial of evidence acquired in alleged violation of Fourth Amendment standards is not of itself sufficient ground for a collateral attack upon an otherwise valid criminal conviction, state or federal. See Harris v. Nelson, 394 U.S. 286, 307, 89 S.Ct. 1082, 1094—1095, 22 L.Ed.2d 281 (dissenting opinion); Kaufman v. United States, 394 U.S. 217, 242, 89 S.Ct. 1068, 1082, 22 L.Ed.2d 227 (dissenting opinion). But until the Court adopts that view, I regard myself as obligated to consider the merits of the Fourth and Fourteenth Amendment claims in a case of this kind. Upon that premise I join the opinion and judgment of the Court.
25
Mr. Justice HARLAN, concurring in part and dissenting in part.
26
I find myself in disagreement with the Court's disposition of this case in two respects.
27
* I cannot join the Court's casual treatment of the issue that has been presented by both parties as the major issue in this case: petitioner's claim that he received ineffective assistance of counsel at his trial. As the Court acknowledges, petitioner met Mr. Tamburo, his trial counsel, for the first time en route to the courtroom on the morning of trial. Although a different Legal Aid Society attorney had represented petitioner at his first trial, apparently neither he nor anyone else from the society had conferred with petitioner in the interval between trials. Because the District Court did not hold an evidentiary hearing on the habeas petition, there is no indication in the record of the extent to which Mr. Tamburo may have consulted petitioner's previous attorney, the attorneys for the other defendants, or the files of the Legal Aid Society. What the record does disclose on this claim is essentially a combination of two factors: the entry of counsel into the case immediately before trial, and his handling of the issues that arose during the trial.1
28
As respondent must concede, counsel's last-minute entry into the case precluded his compliance with the state rule requiring that motions to suppress evidence be made before trial, even assuming that he had sufficient acquaintance with the case to know what arguments were worth making. Furthermore, the record suggests that he may have had virtually no such acquaintance.
29
In the first place, he made no objection to the admission in evidence of the objects found during the search of the car at the station house after the arrest of its occupants, although that search was of questionable validity under Fourth Amendment standards, see infra.
30
Second, when the prosecution offered in evidence the bullets found in the search of petitioner's home, which had been excluded on defense objection at the first trial, Mr. Tamburo objected to their admission, but in a manner that suggested that he was a stranger to the facts of the case. While he indicated that he did know of the earlier exclusion, he apparently did not know on what ground the bullets had been excluded, and based his objection only on their asserted irrelevance.2 Later in the trial he renewed his objection on the basis of the inadequacy of the warrant, stating, 'I didn't know a thing about the search Warrant until this morning.' App. 130.3
31
Third, when prosecution witness Havicon made an in-court identification of petitioner as the man who had threatened him with a gun during one of the robberies, Mr. Tamburo asked questions in cross-examination that suggested that he had not had time to settle upon a trial strategy or even to consider whether petitioner would take the stand. Mr. Tamburo asked whether, at a pretrial lineup, a detective had not told Havicon that petitioner 'was the man with the gun.' After Havicon's negative answer, this colloquy ensued:
32
'THE COURT: I take it you will be able to disprove that, will you?
33
'MR. TAMBURO: What?
34
'THE COURT: You shouldn't ask that question unless you are prepared to disprove that, contradict him.
35
'MR. TAMBURO: I have the defendant's testimony.
36
'THE COURT: Disprove it in any way at all.
37
'MR. MEANS (the prosecutor): I don't understand how the defendant would know what the detectives told him.
38
'THE COURT: He said he is going to disprove it by the defendant, that's all right, go ahead.' App. 34.
39
The next witness was a police officer who had been present at the lineup, and who testified that no one had told Havicon whom to pick out. Petitioner's counsel did not cross-examine, and petitioner never took the stand.
40
On this state of the record the Court of Appeals ruled that, although the late appointment of counsel necessitated close scrutiny into the effectiveness of his representation, petitioner 'was not prejudiced by the late appointment of counsel' because neither of the Fourth Amendment claims belatedly raised justified reversal of the conviction. 408 F.2d 1186, 1196. I agree that the strength of the search-and-seizure claims is an element to be considered in the assessment of whether counsel was adequately prepared to make an effective defense, but I cannot agree that the relevance of those claims in this regard disappears upon a conclusion by an appellate court that they do not invalidate the conviction.
41
This Court recognized long ago that they duty to provide counsel 'is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.' Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932); Hawk v. Olson, 326 U.S. 271, 278, 66 S.Ct. 116, 322, 90 L.Ed. 61 (1945). While 'the Constitution nowhere specifies any period which must intervene between the required appointment of counsel and trial,' the Court has recognized that
42
'the denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel.' Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940).
43
Where counsel has no acquaintance with the facts of the case and no opportunity to plan a defense, the result is that the defendant is effectively denied his constitutional right to assistance of counsel.
44
It seems to me that what this record reveals about counsel's handling of the search and seizure claims and about the tenor of his cross-examination of the government witness Havicon, when coupled with his late entry into the case, called for more exploration by the District Court before petitioner's ineffective assistance of counsel claim could be dismissed. Such an exploration should have been directed to ascertaining whether the circumstances under which Mr. Tamburo was required to undertake petitioner's defense at the second trial were such as to send him into the courtroom with so little knowledge of the case as to render him incapable of affording his client adequate representation. The event of that exploration would turn, not on a mere assessment of particular missteps or omissions of counsel, whether or not caused by negligence, cf. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), but on the District Court's evaluation of the total picture, with the objective of determining whether petitioner was deprived of rudimentary legal assistance. See Williams v. Beto, 354 F.2d 698 (C.A.5th Cir. 1965). And, of course, such an exploration would not be confined to the three episodes that, in my opinion, triggered the necessity for a hearing.
45
It is not an answer to petitioner's claim for a reviewing court simply to conclude that he has failed after the fact to show that, with adequate assistance, he would have prevailed at trial. Glasser v. United States, 315 U.S. 60, 75—76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942); cf. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Reynolds v. Cochran, 365 U.S. 525, 530—533, 81 S.Ct. 723, 726—727, 5 L.Ed.2d 754 (1961). Further inquiry might show, of course, that counsel's opportunity for preparation was adequate to protect petitioner's interests,4 but petitioner did, in my view, raise a sufficient doubt on that score to be entitled to an evidentiary hearing.5
II
46
In sustaining the search of the automobile I believe the Court ignores the framework of our past decisions circumscribing the scope of permissible search without a warrant. The Court has long read the Fourth Amendment's proscription of 'unreasonable' searches as imposing a general principle that a search without a warrant is not justified by the mere knowledge by the searching officers of facts showing probable cause. The 'general requirement that a search warrant be obtained' is basic to the Amendment's protection of privacy, and "the burden is on those seeking (an) exemption * * * to show the need for it." E.g., Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 2039 (1969); Katz v. United States, 389 U.S. 347, 356—358, 88 S.Ct. 507, 514—515, 19 L.Ed.2d 576 (1967); Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782 (1967); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964); United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951); McDonald v. United States, 335 U.S. 451, 455—456, 69 S.Ct. 191, 193—194, 93 L.Ed. 153 (1948); Agnello v. United States, 269 U.S. 20, 33 46 S.Ct. 4, 6—7, 70 L.Ed. 145 (1925).
47
Fidelity to this established principle requires that, where exceptions are made to accommodate the exigencies of particular situations, those exceptions be no broader than necessitated by the circumstances presented. For example, the Court has recognized that an arrest creates an emergency situation justifying a warrantless search of the arrestee's person and of 'the area from within which he might gain possession of a weapon or destructible evidence'; however, because the exigency giving rise to this exception extends only that far, the search may go no further. Chimel v. California, 395 U.S., at 763, 89 S.Ct. at 2040; Trupiano v. United States, 334 U.S. 699, 705, 708, 68 S.Ct. 1229, 1232 1234, 92 L.Ed. 1663 (1948). Similarly we held in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that a warrantless search in a 'stop and frisk' situation must 'be strictly circumscribed by the exigencies which justify its initiation.' Id., at 26, 88 S.Ct. at 1882. Any intrusion beyond what is necessary for the personal safety of the officer or others nearby is forbidden.
48
Where officers have probable cause to search a vehicle on a public way, a further limited exception to the warrant requirement is reasonable 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 (1925). Because the officers might be deprived of valuable evidence if required to obtain a warrant before effecting any search or seizure, I agree with the Court that they should be permitted to take the steps necessary to preserve evidence and to make a search possible.6 Cf. ALI, Model Code of Pre-Arraignment Procedure § 6.03 (Tent. Draft No. 3, 1970). The Court holds that those steps include making a warrantless search of the entire vehicle on the highway—a conclusion reached by the Court in Carroll without discussion—and indeed appears to go further and to condone the removal of the car to the police station for a warrantless search there at the convenience of the police.7 I cannot agree that this result is consistent with our insistence in other areas that departures from the warrant requirement strictly conform to the exigency presented.
49
The Court concedes that the police could prevent removal of the evidence by temporarily seizing the car for the time necessary to obtain a warrant. It does not dispute that such a course would fully protect the interests of effective law enforcement; rather it states that whether temporary seizure is a 'lesser' intrusion than warrantless search 'is itself a debatable question and the answer may depend on a variety of circumstances.' Ante, at 51-52.8 I believe it clear that a warrantless search involves the greater sacrifice of Fourth Amendment values.
50
The Fourth Amendment proscribes, to be sure, unreasonable 'seizures' as well as 'searches.' However, in the circumstances in which this problem is likely to occur, the lesser intrusion will almost always be the simple seizure of the car for the period perhaps a day—necessary to enable the officers to obtain a search warrant. In the first place, as this case shows, the very facts establishing probable cause to search will often also justify arrest of the occupants of the vehicle. Since the occupants themselves are to be taken into custody, they will suffer minimal further inconvenience from the temporary immobilization of their vehicle. Even where no arrests are made, persons who wish to avoid a search—either to protect their privacy or to conceal incriminating evidence—will almost certainly prefer a brief loss of the use of the vehicle in exchange for the opportunity to have a magistrate pass upon the justification for the search. To be sure, one can conceive of instances in which the occupant, having nothing to hide and lacking concern for the privacy of the automobile, would be more deeply offended by a temporary immobilization of his vehicle than by a prompt search of it. However, such a person always remains free to consent to an immediate search, thus avoiding any delay. Where consent is not forthcoming, the occupants of the car have an interest in privacy that is protected by the Fourth Amendment even where the circumstances justify a temporary seizure. Terry v. Ohio, supra. The Court's endorsement of a warrantless invasion of that privacy where another course would suffice is simply inconsistent with our repeated stress on the Fourth Amendment's mandate of "adherence to judicial processes." E.g., Katz v. United States, 389 U.S., at 357, 88 S.Ct., at 514.9
51
Indeed, I beleive this conclusion is implicit in the opinion of the unanimous Court in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881 (1964). The Court there purported to decide whether a factual situation virtually identical to the one now before us was 'such as to fall within any of the exceptions to the constitutional rule that a search warrant must be had before a search may be made.' Id., at 367, 84 S.Ct., at 883 (emphasis added). The Court concluded that no exception was available, stating that 'since the men were under arrest at the police station and the car was in police custody at a garage, (there was no) danger that the car would be moved out of the locality or jurisdiction.' Id., at 368, 84 S.Ct., at 884. The Court's reliance on the police custody of the car as its reason for holding 'that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment,' ibid., can only have been based on the premise that the more reasonable course was for the police to retain custody of the car for the short time necessary to obtain a warrant. The Court expressly did not rely, as suggested today, on the fact that an arrest for vagrancy provided 'no cause to believe that evidence of crime was concealed in the auto.' Ante, at 47; see 376 U.S., at 368; Wood v. Crouse, 417 F.2d 394, 397—398 (C.A.10th Cir. 1969). The Court now discards the approach taken in Preston, and creates a special rule for automobile searches that is seriously at odds with generally applied Fourth Amendment principles.
III
52
The Court accepts the conclusion of the two courts below that the introduction of the bullets found in petitioner's home, if error, was harmless. Although, as explained above, I do not agree that this destroys the relevance of the issue to the ineffectiveness of counsel claim, I agree that the record supports the lower courts' conclusion that this item of evidence, taken alone, was harmless beyond a reasonable doubt.
1
Petitioner was indicted separately for each robbery. One of the other three men was similarly indicted and the other two were indicted only for the Gulf robbery. All indictments and all defendants were tried together. In a second trial following a mistrial, the jury found all defendants guilty as charged.
2
Kovacich identified petitioner at a pretrial stage of the proceedings, and so testified, but could not identify him at the trial. Havicon identified petitioner both before trial and at trial.
3
The bullets were apparently excluded at the first trial. The grounds for the exclusion do not clearly appear from the record now before us.
4
The four-to-eight-year sentence was to be served concurrently with another sentence, for an unrelated armed robbery offense, imposed earlier but vacated subsequent to imposition of sentence in this case. The two-to-seven-year term was to be consecutive to the other sentences. It appears that the offenses here at issue caused revocation of petitioner's parole in connection with a prior conviction. Apparently petitioner has now begun to serve the first of the two sentences imposed for the convictions here challenged.
5
Since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the federal courts have regularly entertained and ruled on petitions for habeas corpus filed by state prisoners alleging that unconstitutionally seized evidence was admitted at their trials. See, e.g., Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). As for federal prisoners, a divided Court held that relief under 28 U.S.C. § 2255 was available to vindicate Fourth Amendment rights. Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). Right-to-counsel claims of course have regularly been pressed and entertained in federal habeas corpus proceedings.
It is relevant to note here that petitioner Chambers at trial made no objection to the introduction of the items seized from the car; however his Fourth Amendment claims with respect to the auto search were raised and passed on by the Pennsylvania courts in the state habeas corpus proceeding. His objection to the search of his house was raised at his trial and rejected both on the merits and because he had not filed a motion to suppress; similar treatment was given the point in the state collateral proceedings, which took place before the same judge who had tried the criminal case. The counsel claim was not presented at trial but was raised and rejected in the state collateral proceedings.
6
In any event, as we point out below, the validity of an arrest is not necessarily determinative of the right to search a car if there is probable cause to make the search. Here as will be true in many cases, the circumstances justifying the arrest are also those furnishing probable cause for the search.
7
Cooper involved the warrantless search of a car held for forfeiture under state law. Evidence seized from the car in that search was held admissible. In the case before us no claim is made that state law authorized that the station wagon be held as evidence or as an instrumentality of the crime; nor was the station wagon an abandoned or stolen vehicle. The question here is whether probable cause justifies a warrantless search in the circumstances presented.
8
Nothing said last term in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), purported to modify or affect the rationale of Carroll. As the Court noted:
'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.' 395 U.S., at 764 n. 9, 89 S.Ct. at 2040.
9
Following the car until a warrant can be obtained seems an impractical alternative since, among other things, the car may be taken out of the jurisdiction. Tracing the car and searching it hours or days later would of course permit instruments or fruits of crime to be removed from the car before the search.
10
It was not unreasonable in this case to take the car to the station house. All occupants in the car were arrested in a dark parking lot in the middle of the night. A careful search at that point was impractical and perhaps not safe for the officers, and it would serve the owner's convenience and the safety of his car to have the vehicle and the keys together at the station house.
11
It is pertinent to note that each of the four defendants was represented by separate counsel. The attorney for Lawson, who was the car owner and who was the only defendant to take the stand, appears to have been the lead counsel. As far as the record before us reveals, no counsel made any objection at the trial to the admission of the items taken from the car. Petitioner's counsel objected to the introduction of the bullets seized from petitioner's house.
1
Respondent concedes in this Court that 'no other facts are available to determine the amount and the quality of the preparation for trial pursued by Mr. Tamburo or the amount of evidentiary material known by and available to him in determining what, if any, evidentiary objections were mandated or what, if any, defenses were available to petitioner.' Brief for Respondent 13. The Court of Appeals stated: 'We do not know what preparation, if any, counsel was able to accomplish prior to the date of the trial as he did not testify in the state habeas corpus proceeding and there was no evidentiary hearing in the district court. From the lower court opinion, as will appear later, we are led to believe that counsel was not wholly familiar with all aspects of the case before trial.' 408 F.2d 1186, 1191.
2
Mr. Tamburo stated to the trial court: 'Your Honor, at the first trial, the District Attorney attempted to introduce into evidence some .38 calibre bullets that were found at the Chambers' home after his arrest. * * * At that trial, it was objected to and the objection was sustained, and I would also like to object to it now, I don't think it is good for the Jury to hear it. I don't feel there is any relevancy or connection between the fact there were .38 calibre bullets at his home and the fact that a .38 calibre gun was found, not on the person of Chambers, but in the group.' App. 82.
This was the only instance in which Mr. Tamburo expressed any knowledge of what had transpired at the first trial, and it does not appear whether he learned of the exclusion from his brief talk with petitioner en route to the courtroom or from sources within the Legal Aid Society. The record does not disclose the reason for the exclusion of the bullets at the first trial.
3
This colloquy followed the renewed objection:
'THE COURT: Well, of course, you have known about this from the other trial three weeks ago.
'MR. TAMBURO: I wasn't the attorney at the other trial.
'THE COURT: But, you knew about it?
'MR. TAMBURO: I didn't know a thing about the search Warrant until this morning.
'THE COURT: You knew about the evidence about to be introduced, you told me about it.
'MR. TAMBURO: It wasn't admitted.
'THE COURT: That doesn't mean I have to exclude it now.' Id., at 130.
The court proceeded to overrule the objection on the ground that it had not been made in a pretrial motion, adding that 'I think there is reasonable ground for making a search here, even without a Warrant.' Id., at 130—131.
4
In Avery, this Court concluded on the basis of a hearing: 'That the examination and preparation of the case, in the time permitted by the trial judge, had been adequate for counsel to exhaust its every angle is illuminated by the absence of any indication, on the motion and hearing for new trial, that they could have done more had additional time been granted.' 308 U.S., at 452, 60 S.Ct. at 325.
5
The absence of any request by counsel for a continuance of the trial should not, in my opinion, serve to vitiate petitioner's claim at this juncture.
6
Where a suspect is lawfully arrested in the automobile, the officers may, of course, perform a search within the limits prescribed by Chimel as an incident to the lawful arrest. However, as the Court recognizes, the search here exceeded those limits. Nor was the search here within the limits imposed by pre-Chimel law for searches incident to arrest; therefore, the retroactivity of Chimel is not drawn into question in this case. See Preston v. United States, 376 U.S. 364, 84 S.Ct. 881 (1964).
7
The Court disregards the fact that Carroll and each of this Court's decisions upholding a warrantless vehicle search on its authority, involved a search for contraband. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); see United States v. Di Re, 332 U.S. 581, 584 586, 68 S.Ct. 222, 223—225, 92 L.Ed. 210 (1948). Although subsequent dicta have omitted this limitation, see Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 1475, 20 L.Ed.2d 538 (1968); United States v. Ventresca, 380 U.S. 102, 107 n. 2, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965); United States v. Rabinowitz, 339 U.S. 56, 61, 70 S.Ct. 430, 433, 94 L.Ed. 653 (1950), id., at 73, 70 S.Ct., at 438 (Frankfurter, J., dissenting), the Carroll decision has not until today been held to authorize a general search of a vehicle for evidence of crime, without a warrant, in every case where probable cause exists.
8
The Court, unable to decide whether search or temporary seizure is the 'lesser' intrusion, in this case authorizes both. The Court concludes that it was reasonable for the police to take the car to the station, where they searched it once to no avail. The searching officers then entered the station, interrogated petitioner and the car's owner, and returned later for another search of the car—this one successful. At all times the car and its contents were secure against removal or destruction. Nevertheless the Court approves the searches without even an inquiry into the officers' ability promptly to take their case before a magistrate.
9
Circumstances might arise in which it would be impracticable to immobilize the car for the time required to obtain a warrant—for example, where a single police officer must take arrested suspects to the station, and has no way of protecting the suspects' car during his absence. In such situations it might be wholly reasonable to perform an on-the-spot search based on probable cause. However, where nothing in the situation makes impracticable the obtaining of a warrant, I cannot join the Court in shunting aside that vital Fourth Amendment safeguard.
| 01
|
399 U.S. 149
90 S.Ct. 1930
26 L.Ed.2d 489
State of CALIFORNIA, Petitioner,v.John Anthony GREEN.
No. 387.
Argued April 20, 1970.
Decided June 23, 1970.
William E. James, Los Angeles, Cal., for petitioner.
Solicitor Gen. Erwin Griswold for the United States, as amicus curiae, by special leave of Court.
E. Barrett Prettyman, Jr., Washington, D.C., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
Section 1235 of the California Evidence Code, effective as of January 1, 1967, provides that '(e)vidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.'1 In People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111 (1968), cert. denied, 393 U.S. 1051, 89 S.Ct. 679, 21 L.Ed.2d 693 (1969), the California Supreme Court held that prior statements of a witness that were not subject to cross-examination when originally made, could not be introduced under this section to prove the charges against a defendant without violating the defendant's right of confrontation guaranteed by the Sixth Amendment and made applicable to the States by the Fourteenth Amendment. In the case now before us the California Supreme Court applied the same ban to a prior statement of a witness made at a preliminary hearing, under oath and subject to full cross-examination by an adequately counseled defendant. We cannot agree with the California court for two reasons, one of which involves rejection of the holding in People v. Johnson.
2
* In January 1967, one Melvin Porter, a 16-year-old minor, was arrested for selling marihauna to an undercover police officer. Four days after his arrest, while in the custody of juvenile authorities, Porter named respondent Green as his supplier. As recounted later by one Officer Wade, Porter claimed that Green had called him earlier that month, had asked him to sell some 'stuff' or 'grass,' and had that same afternoon personally delivered a shopping bag containing 29 'baggies' of marihuana. It was from this supply that Porter had made his sale to the undercover officer. A week later, Porter testified at respondent's preliminary hearing. He again named respondent as his supplier, although he now claimed that instead of personally delivering the marihuana, Green had showed him where to pick up the shopping bag, hidden in the bushes at Green's parents' house. Porter's story at the preliminary hearing was subjected to extensive cross-examination by respondent's counsel—the same counsel who represented respondent at his subsequent trial. At the conclusion of the hearing, respondent was charged with furnishing marihuana to a minor in violation of California law.
3
Respondent's trial took place some two months later before a court sitting without a jury. The State's chief witness was again young Porter. But this time Porter, in the words of the California Supreme Court, proved to be 'markedly evasive and uncooperative on the stand.' People v. Green, 70 Cal.2d 654, 657, 75 Cal.Rptr. 782, 783, 451 P.2d 422, 423 (1969). He testified that respondent had called him in January 1967, and asked him to sell some unidentified 'stuff.' He admitted obtaining shortly thereafter 29 plastic 'baggies' of marihuana, some of which he sold. But when pressed as to whether respondent had been his supplier, Porter claimed that he was uncertain how he obtained the marihuana, primarily because he was at the time on 'acid' (LSD), which he had taken 20 minutes before respondent phoned. Porter claimed that he was unable to remember the events that followed the phone call, and that the drugs he had taken prevented his distinguishing fact from fantasy. See, e.g., App. 7—11, 24—25.
4
At various points during Porter's direct examination, the prosecutor read excerpts from Porter's preliminary hearing testimony. This evidence was admitted under § 1235 for the truth of the matter contained therein. With his memory 'refreshed' by his preliminary hearing testimony, Porter 'guessed' that he had indeed obtained the marihuana from the backyard of respondent's parents' home, and had given the money from its sale to respondent. On cross-examination, however, Porter indicated that it was his memory of the preliminary testimony which was 'mostly' refreshed, rather than his memory of the events themselves, and he was still unsure of the actual episode. See App. 25. Later in the trial, Officer Wade testified, relating Porter's earlier statement that respondent had personally delivered the marihuana. This statement was also admitted as substantive evidence. Porter admitted making the statement, App. 59, and insisted that he had been telling the truth as he then believed it both to Officer Wade and at the preliminary hearing; but he insisted that he was also telling the truth now in claiming inability to remember the actual events.
5
Respondent was convicted. The District Court of Appeal reversed, holding that the use of Porter's prior statements for the truth of the matter asserted therein, denied respondent his right of confrontation under the California Supreme Court's recent decision in People v. Johnson, supra. The California Supreme Court affirmed, finding itself 'impelled' by recent decisions of this Court to hold § 1235 unconstitutional insofar as it permitted the substantive use of prior inconsistent statements of a witness, even though the statements were subject to cross-examination at a prior hearing. We granted the State's petition for certiorari, 396 U.S. 1001, 90 S.Ct. 547, 24 L.Ed.2d 492 (1970).
II
6
The California Supreme Court construed the Confrontation Clause of the Sixth Amendment to require the exclusion of Porter's prior testimony offered in evidence to prove the State's case against Green, because in the court's view, neither the right to cross-examine Porter at the trial concerning his current and prior testimony, nor the opportunity to cross-examine Porter at the preliminary hearing satisfied the commands of the Confrontation Clause. We think the California court was wrong on both counts.
7
Positing that this case posed an instance of a witness who gave trial testimony inconsistent with his prior, out-of-court statements,2 the California court, on the authority of its decision in People v. Johnson, supra, held that belated cross-examination before the trial court, 'is not an adequate substitute for the right to cross-examination contemporaneous with the original testimony before a different tribunal.' People v. Green, supra, 70 Cal.2d at 659, 75 Cal.Rptr., at 785, 451 P.2d, at 425. We disagree.
8
Section 1235 of the California Evidence Code represents a considered choice by the California Legislature3 between two opposing positions concerning the extent to which a witness' prior statements may be introduced at trial without violating hearsay rules of evidence. The orthodox view, adopted in most jurisdictions,4 has been that the out-of-court statements are inadmissible for the usual reasons that have led to the exclusion of hearsay statements: the statement may not have been made under oath; the declarant may not have been subjected to cross-examination when he made the statement; and the jury cannot observe the declarant's demeanor at the time he made the statement. Accordingly, under this view, the statement may not be offered to show the truth of the matters asserted therein, but can be introduced under appropriate limiting instructions to impeach the credibility of the witness who has changed his story at trial.
9
In contrast, the minority view adopted in some jurisdictions5 and supported by most legal commentators and by recent proposals to codify the law of evidence6 would permit the substantive use of prior inconsistent statements on the theory that the usual dangers of hearsay are largely nonexistent where the witness testifies at trial. 'The whole purpose of the Hearsay rule has been already satisfied (because) the witness is present and subject to cross-examination (and) (t)here is ample opportunity to test him as to the basis for his former statement.'7
10
Our task in this case is not to decide which of these positions, purely as a matter of the law of evidence, is the sounder. The issue before us is the considerably narrower one of whether a defendant's constitutional right 'to be confronted with the witnesses against him' is necessarily inconsistent with a State's decision to change its hearsay rules to reflect the minority view described above. While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. See Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.8
11
Given the similarity of the values protected, however, the modification of a State's hearsay rules to create new exceptions for the admission of evidence against a defendant, will often raise questions of compatibility with the defendant's constitutional right to confrontation. Such questions require attention to the reasons for, and the basic scope of, the protections offered by the Confrontation Clause.
12
The origin and development of the hearsay rules and of the Confrontation Clause have been traced by others and need not be recounted in detail here.9 It is sufficient to note that the particular vice that gave impetus to the confrontation claim was the practice of trying defendants on 'evidence' which consisted solely of ex parte affidavits or depositions secured by the examining magistrates, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact. Prosecuting attorneys 'would frequently allege matters which the prisoner denied and called upon them to prove. The proof was usually given by reading depositions, confessions of accomplices, litters, and the like; and this occasioned frequent demands by the prisoner to have his 'accusers,' i.e. the witnesses against him, brought before him face to face. * * *'10
13
But objections occasioned by this practice appear primarily to have been aimed at the failure to call the witness to confront personally the defendant at his trial. So far as appears, in claiming confrontation rights no objection was made against receiving a witness' out-of-court depositions or statements, so long as the witness was present at trial to repeat his story and to explain or repudiate any conflicting prior stories before the trier of fact.
14
Our own decisions seem to have recognized at an early date that it is this literal right to 'confront' the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause:
15
'The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' Mattox v. United States, 156 U.S. 237, 242—243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895).
16
Viewed historically, then, there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.
17
This conclusion is supported by comparing the purposes of confrontation with the alleged dangers in admitting an out-of-court statement. Confrontation: (1) insures that the witness will give his statements under oath—thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the 'greatest legal engine ever invented for the discovery of truth';11 (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.
18
It is, of course, true that the out-of-court statement may have been made under circumstances subject to none of these protections. But if the declarant is present and testifying at trial, the out-of-court statement for all practical purposes regains most of the lost protections. If the witness admits the prior statement is his, or if there is other evidence to show the statement is his, the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness. Thus, as far as the oath is concerned, the witness must now affirm, deny, or qualify the truth of the prior statement under the penalty of perjury; indeed, the very fact that the prior statement was not given under a similar circumstance may become the witness' explanation for its inaccuracy—an explanation a jury may be expected to understand and take into account in deciding which, if either, of the statements represents the truth.
19
Second, the inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial. The most successful cross-examination at the time the prior statement was made could hardly hope to accomplish more than has already been accomplished by the fact that the witness is now telling a different, inconsistent story, and—in this case—one that is favorable to the defendant. We cannot share the California Supreme Court's view that belated cross-examination can never serve as a constitutionally adequate substitute for cross-examination contemporaneous with the original statement. The main danger in substituting subsequent for timely cross-examination seems to lie in the possibility that the witness' '(f)alse testimony is apt to harden and become unyielding to the blows of truth in proportion as the witness has opportunity for reconsideration and influence by the suggestions of others, whose interest may be, and often is, to maintain falsehood rather than truth.' State v. Saporen, 205 Minn. 358, 362, 285 N.W. 898, 901 (1939). That danger, however, disappears when the witness has changed his testimony so that, far from 'hardening,' his prior statement has softened to the point where he now repudiates it.12
20
The defendant's task in cross-examination is, of course, no longer identical to the task that he would have faced if the witness had not changed his story and hence had to be examined as a 'hostile' witness giving evidence for the prosecution. This difference, however, far from lessening, may actually enhance the defendant's ability to attack the prior statement. For the witness, favorable to the defendant, should be more than willing to give the usual suggested explanations for the inaccuracy of his prior statement, such as faulty perception or undue haste in recounting the event. Under such circumstances, the defendant is not likely to be hampered in effectively attacking the prior statement, solely because his attack comes later in time.
21
Similar reasons lead us to discount as a constitutional matter the fact that the jury at trial is foreclosed from viewing the declarant's demeanor when he first made his out-of-court statement. The witness who now relates a different story about the events in question must necessarily assume a position as to the truth value of his prior statement, thus giving the jury a chance to observe and evaluate his demeanor as he either disavows or qualifies his earlier statement. The jury is alerted by the inconsistency in the stories, and its attention is sharply focused on determining either that one of the stories reflects the truth or that the witness who has apparently lied once, is simply too lacking in credibility to warrant its believing either story. The defendant's confrontation rights are not violated, even though some demeanor evidence that would have been relevant in resolving this credibility issue is forever lost.
22
It may be true that a jury would be in a better position to evaluate the truth of the prior statement if it could somehow be whisked magically back in time to witness a gruelling cross-examination of the declarant as he first gives his statement. But the question as we see it must be not whether one can somehow imagine the jury in 'a better position,' but whether subsequent cross-examination at the defendant's trial will still afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement. On that issue, neither evidence13 nor reason convinces us that contemporaneous cross-examination before the ultimate trier of fact is so much more effective than subsequent examination that it must be made the touchstone of the Confrontation Clause.
23
Finally, we note that none of our decisions interpreting the Confrontation Clause requires excluding the out-of-court statements of a witness who is available and testifying at trial. The concern of most of our cases has been focused on precisely the opposite situation—situations where statements have been admitted in the absence of the declarant and without any chance to cross-examine him at trial. These situations have arisen through application of a number of traditional 'exceptions' to the hearsay rule, which permit the introduction of evidence despite the absence of the declarant usually on the theory that the evidence possesses other indicia of 'reliability' and is incapable of being admitted, despite good-faith efforts of the State, in any way that will secure confrontation with the declarant.14
24
Such exceptions, dispensing altogether with the literal right to 'confrontation' and cross-examination, have been subjected on several occasions to careful scrutiny by this Court. In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065 (1965), for example, the State introduced at defendant's trial the transcript of a crucial witness' testimony from a prior preliminary hearing. The witness himself, one Phillips, had left the jurisdiction and did not appear at trial. 'because the transcript of Phillips' statement offered against petitioner at his trial had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine Phillips,' 380 U.S., at 407, 85 S.Ct., at 1070, we held that its introduction violated the defendant's confrontation rights. Similarly, in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318 (1968), the State introduced the preliminary hearing testimony of an absent witness, incarcerated in a federal prison, under an 'unavailability' exception to its hearsay rules. We held that that exception would not justify the denial of confrontation where the State had not made a good-faith effort to obtain the presence of the allegedly 'unavailable' witness.
25
We have no occasion in the present case to map out a theory of the Confrontation Clause that would determine the validity of all such hearsay 'exceptions' permitting the introduction of an absent declarant's statements. For where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem. Thus, in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), decided on the same day as Pointer, we reversed a conviction in which the prosecution read into the record an alleged confession of the defendant's supposed accomplice, Loyd, who refused to testify on self-incrimination grounds. The confrontation problem arose precisely because Loyd could not be cross-examined as to his prior statement; had such cross-examination taken place, the opinion strongly suggests that the confrontation problem would have been nonexistent:
26
'In the circumstances of this case, petitioner's inability to cross-examine Loyd as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause. * * * Loyd could not be cross-examined on a statement imputed to but not admitted by him. * * * (S)ince (the State's) evidence tended to show only that Loyd made the confession, cross-examination * * * as to its genuineness could not substitute for cross-examination of Loyd to test the truth of the statement itself. * * *
27
'Hence, effective confrontation of Loyd was possible only if Loyd affirmed the statement as his.' 380 U.S., at 419—420, 85 S.Ct., at 1077.
28
Again, in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Court found a violation of confrontation rights in the admission of a codefendant's confession, implicating Bruton, where the co-defendant did not take the stand. The Court again emphasized that the error arose because the declarant 'does not testify and cannot be tested by cross-examination,' 391 U.S., at 136, 88 S.Ct., at 1628, suggesting that no confrontation problem would have existed if Bruton had been able to cross-examine his co-defendant.15 Cf. Harrington v. California, 395 U.S. 250, 252—253, 89 S.Ct. 1726, 1727—1728, 23 L.Ed.2d 284 (1969). Indeed, Bruton's refusal to regard limiting instructions as capable of curing the error, suggests that there is little difference as far as the Constitution is concerned between permitting prior inconsistent statements to be used only for impeachment purposes, and permitting them to be used for substantive purposes as well.
29
We find nothing, then, in either the history or the purposes of the Confrontation Clause, or in the prior decisions of this Court, that compels the conclusion reached by the California Supreme Court concerning the validity of California's § 1235. Contrary to the judgment of that court, the Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thusopening himself to full cross-examination at trial as to both stories.
III
30
We also think that Porter's preliminary hearing testimony was admissible as far as the Constitution is concerned wholly apart from the question of whether respondent had an effective opportunity for confrontation at the subsequent trial. For Porter's statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel—the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings. Under these circumstances, Porter's statement would, we think, have been admissible at trial even in Porter's absence if Porter had been actually unavailable, despite good-faith efforts of the State to produce him. That being the case, we do not think a different result should follow where the witness is actually produced.
31
This Court long ago held that admitting the prior testimony of an unavailable witness does not violate the Confrontation Clause. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895). That case involved testimony given at the defendant's first trial by a witness who had died by the time of the second trial, but we do not find the instant preliminary hearing significantly different from an actual trial to warrant distinguishing the two cases for purposes of the Confrontation Clause. Indeed, we indicated as much in Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 1069 (1965), where we noted that '(t)he case before us would be quite a different one had Phillips' statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.' And in Barber v. Page, 390 U.S. 719, 725—726, 88 S.Ct. 1318, 1322 (1968), although noting that the preliminary hearing is ordinarily a less searching exploration into the merits of a case than a trial, we recognized that 'there may be some justification for holding that the opportunity for cross-examination of a witness as a preliminary hearing satisfies the demand of the confrontation clause where the witness is shown to be actually unavailable * * *.' In the present case respondent's counsel does not appear to have been significantly limited in any way in the scope or nature of his cross-examination of the witness Porter at the preliminary hearing. If Porter had died or was otherwise unavailable, the Confrontation Clause would not have been violated by admitting his testimony given at the preliminary hearing—the right of cross-examination then afforded provides substantial compliance with the purposes behind the confrontation requirement, as long as the declarant's inability to give live testimony is in no way the fault of the State. Compare Barber v. Page, supra, with Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900).
32
But nothing in Barber v. Page or in other cases in this Court indicates that a different result must follow where the State produces the declarant and swears him as a witness at the trial. It may be that the rules of evidence applicable in state or federal courts would restrict resort to prior sworn testimony where the declarant is present at the trial. But as a constitutional matter, it is untenable to construe the Confrontation Clause to permit the use of prior testimony to prove the State's case where the declarant never appears, but to bar that testimony where the declarant is present at the trial, exposed to the defendant and the trier of fact, and subject to cross-examination.16 As in the case where the witness is physically unproducible, the State here has made every effort to introduce its evidence through the live testimony of the witness; it produced Porter at trial, swore him as a witness, and tendered him for cross-examination. Whether Porter then testified in a manner consistent or inconsistent with his preliminary hearing testimony, claimed a loss of memory, claimed his privilege against compulsory self-incrimination, or simply refused to answer, nothing in the Confrontation Clause prohibited the State from also relying on his prior testimony to prove its case against Green.17
IV
33
There is a narrow question lurking in this case concerning the admissibility of Porter's statements to Officer Wade. In the typical case to which the California court addressed itself, the witness at trial gives a version of the ultimate events different from that given on a prior occasion. In such a case, as our holding in Part II makes clear, we find little reason to distinguish among prior inconsistent statements on the basis of the circumstances under which the prior statements were given. The subsequent opportunity for cross-examination at trial with respect to both present and past versions of the event, is adequate to make equally admissible, as far as the Confrontation Clause is concerned, both the casual, off-hand remark to a stranger, and the carefully recorded testimony at a prior hearing. Here, however, Porter claimed at trial that he could not remember the events that occurred after respondent telephoned him and hence failed to give any current version of the more important events described in his earlier statement.
34
Whether Porter's apparent lapse of memory so affected Green's right to cross-examine as to make a critical difference in the application of the Confrontation Clause in this case18 is an issue which is not ripe for decision at this juncture. The state court did not focus on this precise question, which was irrelevant given its broader and erroneous premise that an out-of-court statement of a witness is inadmissible as substantive evidence, whatever the nature of the opportunity to cross-examine at the trial. Nor has either party addressed itself to the question. Its resolution depends much upon the unique facts in this record, and we are reluctant to proceed without the state court's views of what the record actually discloses relevant to this particular issue. What is more, since we hold that the admission of Porter's preliminary hearing testimony is not barred by the Sixth Amendment despite his apparent lapse of memory, the reception into evidence of the Porter statement to Officer Wade may pose a harmless-error question which is more appropriately resolved by the California courts in the first instance. Similarly, faced on remand with our decision that § 1235 is not invalid on its face, the California Supreme Court may choose to dispose of the case on other grounds raised by Green but not passed upon by that court; for example, because of its ruling on § 1235, the California court deliberately put aside the issue of the sufficiency of the evidence to sustain conviction.19
35
We therefore vacate the judgment of the California Supreme Court and remand the case to that court for further proceedings not inconsistent with this opinion. It is so ordered.
36
Judgment of California Supreme Court vacated and case remanded.
37
Mr. Justice MARSHALL took no part in the decision of this case.
38
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
39
Mr. Chief Justice BURGER, concurring.
40
I join fully in Mr. Justice WHITE'S opinion for the Court. I add this comment only to emphasize the importance of allowing the States to experiment and innovate, especially in the area of criminal justice. If new standards and procedures are tried in one State their success or failure will be a guide to others and to the Congress.
41
Here, California, by statute, recently adopted a rule of evidence1 that, as Mr. Justice WHITE observes, has long been advocated by leading commentators. Two other States, Kentucky2 and Wisconsin,3 have within the past year embraced similar doctrines by judicial decisions. None of these States has yet had sufficient experience with their innovations to determine whether or not the modification is sound, wise, and workable. The California Supreme Court, in striking down the California statute, seems to have done so in the mistaken belief that this Court, through the Confrontation Clause, has imposed rigid limits on the States in this area. As the Court's opinion indicates, that conclusion is erroneous. The California statute meets the tests of the Sixth and Fourteenth Amendments, and accordingly, the wisdom of the statute is properly left to the State of California; other jurisdictions will undoubtedly watch the experiment with interest. The circumstances of this case demonstrate again that neither the Constitution as originally drafted, nor any amendment, nor indeed any need, dictates that we must have absolute uniformity in the criminal law in all the States. Federal authority was never intended to be a 'ramrod' to compel conformity to nonconstitutional standards.
42
Mr. Justice HARLAN, concurring.
43
The precise holding of the Court today is that the Confrontation Clause of the Sixth Amendment does not preclude the introduction of an out-of-court declaration, taken under oath and subject to cross-examination, to prove the truth of the matters asserted therein, when the declarant is available as a witness at trial. With this I agree.1
44
The California decision that we today reverse demonstrates, however, the need to approach this case more broadly than the Court has seen fit to do, and to confront squarely the Confrontation Clause because the holding of the California Supreme Court is the result of an understandable misconception, as I see things, of numerous decisions of this Court, old and recent, that have indiscriminately equated 'confrontation' with 'cross-examination.'2 See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945); Salinger v. United States, 272 U.S. 542, 548, 47 S.Ct. 173, 175, 71 L.Ed. 398 (1926) (dictum); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900); Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899); and Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 592, 55 L.Ed. 753 (1911).3
45
These decisions have, in my view, left ambiguous whether and to what extent the Sixth Amendment 'constitutionalizes' the hearsay rule of the common law.
46
If 'confrontation' is to be equated with the right to cross-examine, it would transplant the ganglia of hearsay rules and their exceptions into the body of constitutional protections. The stultifying effect of such a course upon this aspect of the law of evidence in both state and federal systems need hardly be labored, and it is good that the Court today, as I read its opinion, firmly eschews that course.
47
Since, in my opinion, this state decision imperatively demonstrates the need for taking a fresh look at the constitutional concept of'confrontation,' I do not think that state decisis should be allowed to stand in the way, albeit the presently controlling cases are of recent vintage.4 As the Court's opinion suggests, the Confrontation Clause comes to us on faded parchment. History seems to give us very little insight into the intended scope of the Sixth Amendment Confrontation Clause. Commentators have been prone to slide too easily from confrontation to cross-examination.
48
Against this amorphous backdrop I reach two conclusions. First, the Confrontation Clause of the Sixth Amendment reaches no farther than to require the prosecution to produce and available witness whose declarations it seeks to use in a criminal trial. Second, even were this conclusion deemed untenable as a matter of Sixth Amendment law, it is surely agreeable to Fourteenth Amendment 'due process,' which, in my view, is the constitutional framework in which state cases of this kind should be judged. For it could scarcely be suggested that the Fourteenth Amendment takes under its umbrella all common-law hearsay rules and their exceptions.
49
I begin with the Sixth Amendment, and defer until Parts III and IV the application of these principles to the instant case.
50
* The Confrontation Clause of the Sixth Amendment is not one that we may assume the Framers understood as the embodiment of settled usage at common law. Cf. my dissenting opinion in Baldwin v. New York, 399 U.S. 117, 90 S.Ct. 1914 (1970). Such scant evidence as can be culled from the usual sources suggests that the Framers understood 'confrontation' to be something less than a right to exclude hearsay, and the common-law significance of the term is so ambiguous as not to warrant the assumption that the Framers were announcing a principle whose meaning was so well understood that this Court should be constrained to accept those dicta in the common law that equated confrontation with cross-examination.
51
* The text of the Sixth Amendment reads: 'In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.' Simply as a matter of English the clause may be read to confer nothing more than a right to meet face to face all those who appear and give evidence at trial.5 Since, however, an extrajudicial declarant is no less a 'witness,' the clause is equally susceptible of being interpreted as a blanket prohibition on the use of any hearsay testimony.
52
Neither of these polar readings is wholly satisfactory, still less compelling. Similar guarantees to those of the Sixth Amendment are found in a number of the colonial constitutions6 and it appears to have been assumed that a confrontation provision would be included in the Bill of Rights that was to be added to the Constitution after ratification.7 The Congressmen who drafted the Bill of Rights amendments were primarily concerned with the political consequences of the new clauses and paid scant attention to the definition and meaning of particular guarantees. Thus, the Confrontation Clause was apparently included without debate along with the rest of the Sixth Amendment package of rights—to notice, counsel, and compulsory process—all incidents of the adversarial proceeding before a jury as evolved during the 17th and 18th centuries.8 If anything, the confrontation guarantee may be thought, along with the right to compulsory process, merely to constitutionalize the right to a defense as we know it, a right not always enjoyed by the accused, whose only defense prior to the late 17th century was to argue that the prosecution had not completely proved its case.9 See H. Stephen, 'The Trial of Sir Walter Raleigh,' Transactions of the Royal Historical Society 172, 184 (4th ser. Vol. 2, 1919); F. Heller, The Sixth Amendment 106—107 (1951). Such glimmer of light as history may be thought to shed comes from the brief congressional colloquy on the reach of the companion guarantee of compulsory process. The debate suggests that this also broad and sweeping right was understood to be qualified by an availability requirement. After what is now the Sixth Amendment was put on the floor, the annals report the follows:
53
'Mr. Burke moved to amend this proposition in such a manner as to leave it in the power of the accused to put off the trial to the next session, provided he made it appear to the court that the evidence of the witnesses, for whom process was granted but not served, was material to his defence.
54
'Mr. Hartley said, that in securing him the right of compulsory process, the Government did all it could; the remainder must lie in the discretion of the court.
55
'Mr. Smith, of South Carolina, thought the regulation would come properly in, as part of the Judicial system.' 1 Annals of Cong. 756. (Emphasis added.)
56
In the face of this colloquy I cannot accept Professor Heller's assertion in his book on the Sixth Amendment attributing to the Framers a sweeping intent to prevent 'introduction of evidence given by witnesses whom the accused has not had an opportunity to cross-examine,' supra, at 105. So far as I have been able to ascertain, this thesis finds support only in the assumption, traceable to Professor Hadley,10 that: 'The right of the accused in a criminal prosecution to be confronted with the witnesses against him did not originate with the provision of the Sixth Amendment, but was a common law right which had gained recognition as a result of the abuses in the trial of Sir Walter Raleigh.' Id., at 104. Heller's approach, resting as it does essentially on assertion,11 is neither persuasive as a historical reading, nor tenable in view of decisions by this Court that have held that the confrontation right is not abridged by the use of hearsay that would not have satisfied the dying-declaration exception, which was, according to Heller, the only apparent extant exception to the hearsay exclusionary rule at the time the Sixth Amendment was ratified.12
57
Wigmore's more ambulatory view—that the Confrontation Clause was intended to constitutionalize the hearsay rule and all its exceptions as evolved by the courts—rests also on assertion without citation, and attempts to settle on ground that would appear to be equally infirm as a matter of logic.13 Wigmore's reading would have the practical consequence of rendering meaningless what was assuredly in some sense meant to be an enduring guarantee. It is inconceivable that if the Framers intended to constitutionalize a rule of hearsay they would have licensed the judiciary to read it out of existence by creating new and unlimited exceptions.
58
From the scant information available it may tentatively by concluded that the Confrontation Clause was meant to constitutionalize a barrier against flagrant abuses, trials by anonymous accusers, and absentee witnesses. That the Clause was intended to ordain common law rules of evidence with constitutional sanction is doubtful, notwithstanding English decisions that equate confrontation and hearsay. Rather, having established a broad principle, it is far more likely that the Framers anticipated it would be supplemented, as a matter of judge-made common law, by prevailing rules of evidence.
B
59
Judicial Precedent.—The history tending to suggest that availability underlies the confrontation right, as discussed above, is, in my view, confirmed by a circumspect analysis of the early decisions of this Court.14
60
The early decisions that consider the confrontation right at any length all involved ex parte testimony submitted by deposition and affidavit. See Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900); Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899).15 It was in this context that Mr. Justice Brown in an oft-quoted passage from Mattox v. United States set forth as the primary objective of the constitutional guarantee, the prevention of 'depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but also of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' 156 U.S., at 242—243, 15 S.Ct., at 339. See also Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 592, 55 L.Ed. 753 (1911); Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 332 (1934).
61
This restricted reading of the clause cannot be defended taking, as it does, a metaphysical approach, one that attempts to differentiate between affidavits, as a substitute for first-hand testimony, and extra-judicial testimonial utterances. Indeed, the problems with the latter are somewhat greater, and the difficulty in establishing accurately what an extra-judicial declarant said has sometimes been considered an infirmity of hearsay evidence. See C. McCormick, Evidence § 224, at 458 (1954). Conceptual difficulties aside, it would seem that the early recognition of the dying declaration as an exception to the Confrontation Clause, Mattox v. United States, supra; Kirby v. United States, supra; Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct. 326, 41 L.Ed. 715 (1897), proceeded on the assumption that extra-judicial testimonial declarations were also a concern of the Sixth Amendment.16
62
Notwithstanding language that appears to equate the Confrontation Clause with a right to cross-examine, and, by implication, exclude hearsay, the early holdings and dicta can, I think, only be harmonized by viewing the confrontation guarantee as being confined to an availability rule, one that requires the production of a witness when he is available to testify. This view explains the recognition of the dying declaration exception, which dispenses with any requirement of cross-examination, and the refusal to make an exception for prior recorded statements, taken subject to cross-examination by the accused, when the witness is still available to testify. Compare Mattox v. United States, supra, with Motes v. United States, supra.
63
This rationalization of the early decisions is not only justified by logic but also anchored in precedent. In West v. Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965 (1904), this Court in reviewing its early confrontation decisions emphasized availability as the thread that tied them together. West involved the admission into evidence at trial of deposition testimony, taken subject to cross-examination and under oath, where the deponent was 'permanently absent from the State and was a non-resident thereof, and * * * his attendance could not be procured.' Ibid. Referring, inter alia, to Motes, Mattox, Kirby, and Reynolds, the Court concluded that 'in not one of those cases was it held that, under facts such as (were before the Court), there would have been a violation of the Constitution in admitting the deposition in evidence.' 194 U.S., at 266, 24 S.Ct., at 654. That the uppermost consideration was the availability of the witness is further underscored by the West discussion of the common-law rule that admitted deposition testimony 'upon proof being made to the satisfaction of the court that the witness was, at the time of the trial, dead, insane, too ill ever to be expected to attend the trial, or kept away by the connivance of the defendant.' 194 U.S., at 262, 24 S.Ct., at 652.17
II
64
Recent decisions have, in my view, fallen into error on two scores. As a matter of jurisprudence I think it unsound, for reasons I have often elaborated, see, e.g., my dissenting opinions in Duncan v. Louisiana, 391 U.S. 145, 171, 88 S.Ct. 1444, 1458, 20 L.Ed.2d 491 (1968), and Baldwin v. New York, 399 U.S. 117, 90 S.Ct. 1914, 26 L.Ed.2d 463, to incorporate as such the guarantees of the Bill of Rights into the Due Process Clause. While, in this particular instance, this would be of little practical consequence if the Court had confined the Sixth Amendment guarantee to an 'availability' requirement, some decisions have, unfortunately, failed to separate, even as a federal matter, restrictions on the abuse of hearsay testimony, part of the due process right of a reliable and trustworthy conviction, and the right to confront an available witness. See n. 20, infra.
65
By incorporating into the Fourteenth Amendment its misinterpretation of the Sixth Amendment these decisions have in one blow created the present dilemma, that of bringing about a potential for a constitutional rule of hearsay for both state and federal courts. However illadvised would be the constitutionalization of hearsay rules in federal courts, the undesirability of imposing those brittle rules on the States is manifest. Given the ambulatory fortunes of the hearsay doctrine, evidenced by the disagreement among scholars over the value of excluding hearsay and the trend toward liberalization of the exceptions,18 it would be most unfortunate for this Court to limit the flexibility of the States and choke experimentation in this evolving area of the law. Cf. Baldwin v. New York, supra.19 I adhere to what I consider to be the sound view expressed in Stein v. New York, 346 U.S. 156, 196, 73 S.Ct. 1077, 1098, 97 L.Ed. 1522 (1953): 'The hearsay-evidence rule, with all its subtleties, anomalies and ramifications, (should) not be read into the Fourteenth Amendment.'
66
What I would hold binding on the States as a matter of due process is what I also deem the correct meaning of the Sixth Amendment's Confrontation Clause—that a State may not in a criminal case use hearsay when the declarant is available. See West v. Louisiana, supra.20 There is no reason in fairness why a State should not, as long as it retains a traditional adversarial trial, produce a witness and afford the accused an opportunity to cross-examine him when he can be made available. That this principle is an essential element of fairness is attested to not only by precedent, Motes v. United States, supra; Barber v. Page, supra; Smith v. Illinois, supra, but also by the traditional and present exceptions to the hearsay rule which recognize greater flexibility for receiving evidence when the witness is not available. Furthermore it accommodates the interest of the State in making a case, yet recognizes the obligation to accord the accused the fullest opportunity to present his best defense.21 For those rare cases where a conviction occurs after a trial where no credible evidence could be said to justify the result, there remains the broader due process requirement that a conviction cannot be founded on no evidence. See n. 20, supra.
III
67
Putting aside for the moment the 'due process' aspect of this case, see n. 20, supra, it follows, in my view, that there is no 'confrontation' reason why the prosecution should not use a witness' prior inconsistent statement for the truth of the matters therein asserted. Here the prosecution has produced its witness, Porter, and made him available for trial confrontation. That, in my judgment, perforce satisfies the Sixth Amendment. Indeed, notwithstanding the conventional characterization of an available witness' prior out-of-court statements as hearsay when offered affirmatively for the truth of the matters asserted, see Hickory v. United States, 151 U.S. 303, 309, 14 S.Ct. 334, 336, 38 L.Ed. 170 (1894); Southern R. Co. v. Gray, 241 U.S. 333, 337, 36 S.Ct. 558, 560, 60 L.Ed. 1030 (1916); Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), this is hearsay only in a technical sense since the witness may be examined at the trial as to the circumstances of memory, opportunity to observe, meaning, and veracity. See Comment, Model Code of Evidence, supra, n. 18. I think it fair to say that the fact that the jury has no opportunity to reconstruct a witness' demeanor at the time of his declaration, and the absence of oath are minor considerations.
68
The fact that the witness, though physically available, cannot recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence. The prosecution has no less fulfilled its obligation simply because a witness has a lapse of memory. The witness is, in my view, available. To the extent that the witness is, in a practical sense, unavailable for cross-examination on the relevant facts, for reasons stated in Part II, I think confrontation is nonetheless satisfied.22
IV
69
I turn finally to the question of whether this conviction stands on such unreliable evidence that reversal is required. Cf. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). I cannot conclude that the preliminary hearing testimony was obtained under circumstances, as such, so unreliable that its admission requires reversal as a matter of due process, even though it was crucial to the central issue in the case. Compare Stovall v. Denno, supra; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The statement given to Officer Wade does, however, raise such a possibility. I accordingly would remand the case to the California Supreme Court for consideration of that question and, whether or not it deems the second statement too unreliable to have been admitted, to decide whether this conviction should be reversed under California law for want of sufficient evidence to sustain a conviction beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
70
Mr. Justice BRENNAN, dissenting.
71
Respondent was convicted of violating California Health and Safety Code, § 11532 which prohibits furnishing narcotics to a minor. The only issue at his trial was whether he had in fact furnished Porter, a minor, with marihuana. On the direct testimony it does not appear that he could have been constitutionally convicted, for it seems that there would have been insufficient evidence to sustain a finding of guilt. The State presented three witnesses to prove respondent's guilt: Porter and Officers Wade and Dominguez. As the Court states, Porter testified at trial that 'he was uncertain how he obtained the marihuana, primarily because he was at the time on 'acid' (LSD), which he had taken 20 minutes before respondent phoned. Porter claimed that he was unable to remember the events that followed the phone call, and that the drugs he had taken prevented his distinguishing fact from fantasy.' Ante, at 152. Officer Wade had no personal knowledge of the facts of the alleged offense; he was able only to report the content of an extrajudicial statement that Porter had made to him. Officer Dominguez testified about an incident wholly separate from the alleged offense; his testimony was consistent with the defense account of the facts.1
72
Thus, the evidence on which respondent was found guilty consisted of two pretrial statements by Porter. The first was the account given Officer Wade. It was unsworn and not subject to defense cross-examination. Porter's demeanor while making the statement was not observed by the trial factfinder. The statement was made under unreliable circumstances—it was taken four days after Porter's arrest for selling marihuana to an undercover agent and while he was still in custody.2 No written transcript of the statement was introduced at trial. Officer Wade recounted it simply as he remembered Porter's words.3 The second statement was given by Porter during respondent's preliminary hearing. It was sworn and subject to cross-examination. Defense counsel, however, did not engage in a searching examination.4 Again, Porter's demeanor while he made this statement was unobserved by the trial factfinder. The statement was put before this factfinder, of course, when at various points during Porter's direct examination at trial the prosecutor read excerpts from his preliminary hearing testimony.
73
Accordingly, the facts of this case present two questions regarding the application of California Evidence Code, § 1235: first, whether the Confrontation Clause permits a witness' extrajudicial statement to be admitted at trial as substantive evidence when the witness claims to be unable to remember the events with which his prior statement dealt, and, second, whether the clause permits a witness' preliminary hearing statement, made under oath and subject to cross-examination, to be introduced at trial as substantive evidence when the witness claims to be unable to remember the events with which the statement dealt. In my view, neither statement can be introduced without unconstitutionally restricting the right of the accused to challenge incriminating evidence in the presence of the factfinder who will determine his guilt or innocence.
74
* The Court points out that 'the particular vice that gave impetus to the confrontation claim was the practice of trying defendants on 'evidence' which consisted solely of ex parte affidavits or depositions secured by the examining magistrates, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact.' Ante, at 156. A face-to-face encounter, of course, is important, not so that the accused can view at trial his accuser's visage, but so that he can directly challenge the accuser's testimony before the factfinder. See 5 J. Wigmore, Evidence §§ 1364, 1365 (3d ed. 1940). We made this clear in Mattox v. United States, 156 U.S. 237, 242—243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895), where we stressed the necessity of 'a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.'
75
There is no way to test the recollection and sift the conscience of a witness regarding the facts of an alleged offense if he is unwilling or unable to be questioned about them;5 defense counsel cannot probe the story of a silent witness and attempt to expose facts that qualify or discredit it. The impetus to truth inherent in the oath sworn by the witness, in the penalty for perjury, and in the serious purpose of the courtroom have no effect on him so far as the facts of the alleged offense are concerned. Nor, obviously, can the factfinder view his demeanor while he recounts the facts. If the witness claims that he is unable to remember the pertinent events, it is true that this assertion can be challenged, and that in making and defending it the witness will be affected by his oath, the penalty for perjury, and the courtroom atmosphere. It is equally true that the trial factfinder can observe and weigh the witness' demeanor as he makes and defends such a claim. But a decision by the factfinder that the witness is lying sheds no direct light on the accuracy of any pretrial statement made by him; that statement remains without the support or discredit that can come only from the probing of its factual basis while the witness stands face to face with the accused and the factfinder. If the factfinder decides that the witness is honestly unable to remember the events in question, that conclusion may or may not directly guide the factfinder in assessing the reliability of the pretrial statement. If, for example, the witness were unable to remember the pertinent facts because he was under the influence of drugs at the time they occurred, the factfinder might reasonably disregard any pretrial account of these events given by the witness.
76
This Court has already explicitly held in Douglas v. Alabama, 380 U.S. 415, 419—420, 85 S.Ct. 1074, 1077—1078, 13 L.Ed.2d 934 (1965), that the Confrontation Clause forbids the substantive use at trial of a prior extrajudicial statement, when the declarant is present at trial but unwilling to testify about the events with which his prior statement dealt. In Douglas the prosecution introduced the alleged confession of the accused's supposed accomplice, one Loyd, who was unwilling to testify about the pertinent events for fear of self-incrimination. We held that 'petitioner's inability to cross-examine Loyd as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause. Loyd's alleged statement that the petitioner fired the shotgun constituted the only direct evidence that he had done so * * *. (E)ffective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer.'
77
For purposes of the Confrontation Clause, there is no significant difference between a witness who fails to testify about an alleged offense because he is unwilling to do so and a witness whose silence is compelled by an inability to remember. Both are called to the stand to testify. The jury may view the demeanor of each as he indicates why he will not discuss the crucial events. But in neither instance are the purposes of the Confrontation Clause satisfied, because the witness cannot be questioned at trial concerning the pertinent facts. In both cases, if a pretrial statement is introduced for the truth of the facts asserted, the witness becomes simply a conduit for the admission of stale evidence, whose reliability can never be tested before the trial factfinder by cross-examination of the declarant about the operative events, and by observation of his demeanor as he testifies about them.
78
Unlike the Court, I see no reason to leave undecided the inadmissibility of Porter's statements to Officer Wade. We have before us the transcript of Porter's trial testimony. He could not remember the operative events. Whether he feigned loss of memory is irrelevant to respondent's confrontation claim. Under Douglas his statement to Officer Wade must be excluded as substantive evidence.6
II
79
The question remains whether the fact that a pretrial statement was obtained at a preliminary hearing under oath and subject to cross-examination, distinguishes that statement for confrontation purposes from an extrajudicial statement. I thought that our decision in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), resolved this issue. In Barber we stated that confrontation at a preliminary hearing cannot compensate for the absence of confrontation at trial, because the nature and objectives of the two proceedings differ significantly. In that case, the prosecution argued that the accused had waived his right to cross-examination at the preliminary hearing. Though we rejected that argument, to put beyond doubt the necessity for confrontation at trial, we stated:
80
'Moreover, we would reach the same result on the facts of this case had petitioner's counsel actually cross-examined (the witness) at the preliminary hearing. * * * The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial.' Id., at 725, 88 S.Ct., at 1322.7
81
We applied Barber retroactively in Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969), a case in which defense counsel did have an opportunity to cross-examine the witness at the preliminary hearing. We held, nonetheless, that '(c)learly, petitioner's inability to cross-examine * * * at trial may have had a significant effect on the 'integrity of the fact-finding process." Id., at 315, 89 S.Ct. at 541.
82
Preliminary hearings in California are not atypical in their nature and objectives:
83
'In most California criminal prosecutions the preliminary examination is conducted as a rather perfunctory uncontested proceeding with only one likely denouement—an order holding the defendant for trial. Only television lawyers customarily demolish the prosecution in the magistrate's court. The prosecution need show only 'probable cause,' a burden vastly lighter than proof beyond a reasonable doubt.' People v. Gibbs, 255 Cal.App.2d 739, 743—744, 63 Cal.Rptr. 471, 475 (1967).
84
It follows that the purposes of the Confrontation Clause cannot be satisfied by a face-to-face encounter at the preliminary hearing. Cross-examination at the hearing pales beside that which takes place at trial. This is so for a number of reasons. First, as noted, the objective of the hearing is to establish the presence or absence of probable cause, not guilt or innocence proved beyond a reasonable doubt; thus, if evidence suffices to establish probable cause, defense counsel has little reason at the preliminary hearing to show that it does not conclusively establish guilt—or, at least, he had little reason before today's decision. Second, neither defense nor prosecution is eager before trial to disclose its case by extensive examination at the preliminary hearing; thorough questioning of a prosecution witness by defense counsel may easily amount to a grant of gratis discovery to the State. Third, the schedules of neither court nor counsel can easily accommodate lengthy preliminary hearings. Fourth, even were the judge and lawyers not concerned that the proceedings be brief, the defense and prosecution have generally had inadequate time before the hearing to prepare for extensive examination. Finally, though counsel were to engage in extensive questioning, a part of its force would never reach the trial factfinder, who would know the examination only second hand. As the California Supreme Court stated:
85
'(L)ost in a cold reading of the preliminary transcript is the more subtle yet undeniable effect of counsel's rhetorical style, his pauses for emphasis and his variations in tone, as well as his personal rapport with the jurors, as he pursues his cross-examination. For example, * * * while the lawyer 'must keep control of himself * * * (t)his does not mean that the cross-examiner never should fight with a witness, raise his voice, or become angry. Forensic indignation, whether expressed physically or verbally, may produce good results in special circumstances.' In addition, counsel may well conduct his cross-examination in a different manner before a committing magistrate than before a trial court or jury. Thus, * * * counsel must always temper his cross-examination to the individual jurors, using their reactions as a guide to the most effective line of questioning. 'The cross-examiner must remember that he is a performer and the jurors are his audience. No good performer ignores his audience, and all performances are conducted for the purpose of favorably impressing the audience.' * * * We conclude that experience demonstrates the essentiality of truly contemporaneous cross-examination.' 70 Cal.2d, at 662—663, 75 Cal.Rptr., at 787, 451 P.2d, at 427.
86
If cross-examination at the preliminary hearing rarely approximates that at trial, observation by the trial factfinder of the witness' demeanor as he gives his prior testimony is virtually nonexistent. Unless the committing magistrate is also the trial factfinder, the demeanor purpose of the Confrontation Clause is wholly negated by substituting confrontation at the preliminary hearing for confrontation at trial. And yet, in the words of the California court, '(i)t is because demeanor—attitude and manner—is a significant factor in weighing testimonial evidence that it is axiomatic the trier of fact, before whom the witness testified and was cross-examined * * *, is the sole judge of the credibility of a witness and of the weight to be given his testimony.' Id., at 662, 75 Cal.Rptr., at 787, 451 P.2d, at 427. No such determination of credibility is possible when the witness comes before the trial factfinder by the reading of a cold transcript.
87
It appears, then, that in terms of the purposes of the Confrontation Clause, an equation of face-to-face encounter at the preliminary hearing with confrontation at trial must rest largely on the fact that the witness testified at the hearing under oath, subject to the penalty for perjury, and in a courtroom atmosphere. These factors are not insignificant, but by themselves they fall far short of satisfying the demands of constitutional confrontation. Moreover, the atmosphere and stakes are different in the two proceedings. In the hurried, somewhat pro forma context of the average preliminary hearing, a witness may be more careless in his testimony than in the more measured and searching atmosphere of a trial. Similarly, a man willing to perjure himself when the consequences are simply that the accused will stand trial may be less willing to do so when his lies may condemn the defendant to loss of liberty. In short, it ignores reality to assume that the purposes of the Confrontation Clause are met during a preliminary hearing. Accordingly, to introduce preliminary hearing testimony for the truth of the facts asserted, when the witness is in court and either unwilling or unable to testify regarding the pertinent events, denies the accused his Sixth Amendment right to grapple effectively with incriminating evidence.
88
The Court's ruling, moreover, may have unsettling effects on the nature and objectives of future preliminary hearings. The California Court defined the problem: 'Were we to equate preliminary and trial testimony one practical result might be that the preliminary hearing, designed to afford an efficient and speedy means of determining the narrow question of probable cause, would tend to develop into a full-scale trial. This would invite thorough and lengthy cross-examination, with the consequent necessity of delays and continuances to bring in rebuttal and impeachment witnesses, to gather all available evidence, and to assure generally that nothing remained for later challenge. In time this result would prostitute the accepted purpose of preliminary hearings and might place an intolerable burden on the time and resources of the courts of first instance.' 70 Cal.2d, at 664, 75 Cal.Rptr., at 788, 451 P.2d, at 428.
89
Conscientious defense counsel, aware that today's decision has increased the likelihood of the use of preliminary hearing testimony at trial, may well wish to conduct a full-scale, unlimited cross-examination of prosecution witnesses at the hearing. We held in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), that an accused has a right to assistance of counsel during a preliminary hearing. And we have made clear that 'it is a denial of the accused's constitutional right to a fair trial to force him to trial with such expedition as to deprive him of the effective aid and assistance of counsel.' White v. Ragen, 324 U.S. 760, 764, 65 S.Ct. 978, 980, 89 L.Ed. 1348 (1945). In light of today's decision, may defense counsel be denied requests for delay that are reasonably necessary to enable him to conduct a thorough examination at the preliminary hearing? What limits, if any, may still be placed on the defense's use of the preliminary hearing as a discovery device to extract information from the prosecution that is reasonably necessary, not to a determination of probable cause, but to a rigorous examination of government witnesses? Do the requisites of 'effective assistance of counsel' require defense counsel to conduct such an examination?8
90
The Court relies heavily on the traditional practice of admitting the prior testimony of a witness who is physically unavailable at trial. It finds no ground for distinguishing between the pretrial declarant who fails to testify at trial because he is not physically present and the pretrial declarant who, though present at trial, fails to testify because he is unwilling or unable to do so. The Court reasons that the 'necessity' for the introduction of either declarant's prior statement is 'the State's 'need' to introduce relevant evidence,' and that the testimony's 'reliability' rests 'on the circumstances under which it was given—circumstances that remain unaffected regardless of whether the witness is present or absent at the later trial.' Ante, at 167, n. 16. I disagree.
91
The State, obviously, does need to introduce relevant evidence. But the 'necessity' that justifies the admission of pretrial statements is not the prosecution's need to convict, but the factfinder's need to be presented with reliable evidence to aid its determination of guilt or innocence. Whether a witness' assertions are reliable ordinarily has little or no bearing on their admissibility, for they are subject to the corrective influences of his demeanor and cross-examination. If, however, there is no possibility that his assertions can be so tested at trial, then their reliability becomes an important factor in deciding whether to permit their presentation to the factfinder. When a probability exists that incriminating pretrial testimony is unreliable, its admission, absent confrontation, will prejudicially distort the factfinding process.
92
The reliability of pretrial testimony, in turn, is not determined simply by the circumstances under which it was given. It is also influenced by subsequent developments. If, for example, prior testimony is later disavowed by the declarant in an extrajudicial but convincing statement, it would be unrealistic to argue at a later trial, from which the declarant was physically absent, that the reliability of his prior testimony was unaffected by the intervening event.
93
The subsequent developments under consideration here are (1) failure to testify at trial because of physical unavailability and (2) failure to testify because of unwillingness to do so or inability to remember. In my view, these developments have very different implications for the reliability of prior testimony. Physical unavailability is generally a neutral factor; in most instances, it does not cast doubt on the witness' earlier assertions. Inability to remember the pertinent events, on the other hand, or unwillingness to testify about them, whether because of feigned loss of memory or fear of self-incrimination, does cast such doubt. Honest inability to remember at trial raises serious question about clarity of memory at the time of the pretrial statement. The deceit inherent in feigned loss of memory lessens confidence in the probity of prior assertions. And fear of self-incrimination at trial suggests that the witness may have shaped prior testimony so as to avoid dangerous consequences for himself. Reliability cannot be assumed simply because a prior statement was made at a preliminary hearing.
94
In sum, I find that Porter's real or pretended lapse of memory about the pertinent events casts serious doubt upon the reliability of his preliminary hearing testimony. It is clear that so long as a witness, such as Porter, cannot or will not testify about these events at trial, the accused remains unable to challenge effectively that witness' prior assertions about them. The probable unreliability of the prior testimony, coupled with the impossibility of its examination during trial, denies the accused his right to probe and attempt to discredit incriminating evidence. Accordingly, I would hold California Evidence Code, § 1235 in violation of the Confrontation Clause to the extent that it permits the substantive use at trial of prior statements, whether extrajudicial or testimonial, when the declarant is present at trial but unable or unwilling to be questioned about the events with which the prior statements dealt. I would therefore affirm the reversal of respondent's conviction.
1
Cal.Evid.Code, § 1235 (1966). Section 770 merely requires that the witness be given an opportunity to explain or deny the prior statement at some point in the trial. (See Cal.Evid.Code, § 770 (1966); People v. Johnson, 68 Cal.2d 646, 650, n. 2, 68 Ca.Rptr. 599, 441 P.2d 111, 114 n. 2 (1968), cert. denied, 393 U.S. 1051, 89 S.Ct. 679, 21 L.Ed.2d 693 (1969).
2
See People v. Green, 70 Cal.2d 654, 657 n. 1, 75 Cal.Rptr. 782, 451 P.2d 422, 424 n. 1 (1969).
3
See the comments of the California Law Revision Commission, Cal.Evid.Code, § 1235 (1966).
4
E.g., Ellis v. United States, 138 F.2d 612, 616—621 (C.A.8th Cir. 1943); State v. Saporen, 205 Minn. 358, 361—362, 285 N.W. 898, 900—901 (1939). The cases are collected in 3 J. Wigmore, Evidence § 1018 (3d ed. 1940) (hereinafter cited as Wigmore) and Annot., 133 A.L.R. 1454, 1455—1457 (1941).
5
See Jett v. Commonwealth, 436 S.W.2d 788 (Ky.1969); Gelhaar v. State, 41 Wis.2d 230, 163 N.W.2d 609 (1969). See also United States v. De Sisto, 329 F.2d 929 (C.A.2d Cir.) (Friendly, J.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964); United States v. Block, 88 F.2d 618, 620 (C.A.2d Cir.) (L. Hand, J.), cert. denied, 301 U.S. 690, 57 S.Ct. 793, 81 L.Ed. 1347 (1937); Di Carlo v. United States, 6 F.2d 364, 368 (C.A.2d Cir.) (L. Hand, J.), cert. denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925).
6
Dean Wigmore was the first noted commentator to adopt this position, abandoning his earlier approval, in the first edition of his Treatise, of the orthodox view. See 3 Wigmore § 1018 n. 2. Both the Model Code and the Uniform Rules have since followed the Wigmore position, see Model Code of Evidence Rule 503(b) (1942); Uniform Rule of Evidence 63(1) (1953), as has the recent preliminary draft of the rules of evidence for the lower federal courts, see Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates Rule 8—01(c)(2) (1969). For commentators who have urged views similar to Wigmore's see C. McCormick, Evidence § 39 (1954); Maguire, The Hearsay System: Around and Through the Thicket, 14 Vand.L.Rev. 741, 747 (1961); Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 192—196 (1948).
7
3 Wigmore § 1018.
8
See The Supreme Court, 1967 Term, 82 Harv.L.Rev. 63, 236 (1968); Note, Confrontation and the Hearsay Rule, 75 Yale L.J. 1434, 1436 (1966).
9
See, e.g., McCormick, supra, n. 6, at 455—457; 5 Wigmore § 1364; Morgan, supra, n. 6, at 179—183. See also 9 W. Holdsworth,A History of English Law 177—187, 214—219 (od ed. 1944); Note, Preserving the Right to Confrontation—A New Approach to Hearsay Evidence in Criminal Trials, 113 U.Pa.L.Rev. 7418 746—747 (1965).
10
1 J. Stephen, A History of the Criminal Law of England 326 (1883). See also 9 Holdswroth, supra, n. 9, at 225—228.
A famous example is provided by the trial of Sir Walter Raleigh for treason in 1603. A crucial element of the evidence against him consisted of the statements of one Cobham, implicating Raleigh in a plot to seize the throne. Raleigh had since received a written retraction from Cobham, and believed that Cobham would now testify in his favor. After a lengthy dispute over Raleigh's right to have Cobham called as a witness, Cobham was not called, and Raleigh was convicted. See 1 Stephen, supra, at 333—336; 9 Holdsworth, supra, at 216—217, 226—228. At least one author traces the Confrontation Clause to the common-law reaction against these abuses of the Raleigh trial. See F. Heller, The Sixth Amendment 104 (1951).
11
5 Wigmore § 1367.
12
See Comment, Substantive Use of Extrajudicial Statements of Witnesses Under the Proposed Federal Rules of Evidence, 4 U.Rich.L.Rev. 110, 117—118 (1969); 82 Harv.L.Rev. 475 n. 16 (1968).
13
The California Supreme Court in its earlier decision on this issue stated that '(t)his practical truth (the importance of immediate cross-examination) is daily verified by trial lawyers, not one of whom would willingly postpone to both a later date and a different forum his right to cross-examine a witness against his client.' People v. Johnson, 68 Cal.2d 646, 655, 68 Cal.Rptr. 599, 606, 441 P.2d 111, 118 (1968), cert. denied, 393 U.S. 1051, 89 S.Ct. 679, 21 L.Ed.2d 693 (1969). The citations that follow this sentence are to books on trial practice that she little empirical light on the actual comparative effectiveness of subsequent, as opposed to timely, cross-examination. As the text suggests, where the witness has changed his story at trial to favor the defendant he should, if anything, be more rather than less vulnerable to defense counsel's explanations for the inaccuracy of his former statement.
14
See generally, e.g., 5 Wigmore §§ 1420—1422.
15
Whether admission of the statement would have violated federal evidentiary rules against hearsay, see 391 U.S., at 128, 88 S.Ct., at 1623, n. 3, is, as emphasized earlier in this opinion, a wholly separate question. Indeed, failure to comply with federal evidentiary standards appears to be the reason for the result in Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945)—the only case which might be thought to suggest the existence of a possible constitutional problem in admitting a witness' prior inconsistent statements as substantive evidence. There the Court reversed a deportation order based on such evidence, but the holding was an alternative one and explicitly rested on the ground that the relevant agency rules did not permit the use of such statements. See 326 U.S., at 151—153, 65 S.Ct., at 1451—1452. While the Court did suggest that the use of such statements in a criminal case would run 'counter to the notions of fairness on which our legal system is founded,' id., at 154, 65 S.Ct., at 1452, the discussion and citations appear to refer to the 'orthodox' position earlier adopted by this Court as a matter of federal evidentiary, not constitutional, law. See Hickory v. United States, 151 U.S. 303, 309, 14 S.Ct. 334, 336, 38 L.Ed. 170 (1894). While we may agree that considerations of due process, wholly apart from the Confrontation Clause, might prevent convictions where a reliable evidentiary basis is totally lacking, see Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), we do not read Bridges as declaring that the Constitution is necessarily violated by the admission of a witness' prior inconsistent statement for the truth of the matter asserted. The Court's opinion in Bridges does not discuss the Confrontation Clause.
16
The explanation advanced for the contrary conclusion seems to be that where the witness is dead or otherwise unavailable, the State may in good faith assume he would have given the same story at trial, and may introduce the former testimony as reasonably reliable and as prompted by the factor of 'necessity.' On the contrary, it is argued, where the witness is present to testify but does not relate the same story, 'necessity,' 'reliability,' and the assumption that the story would be the same are all destroyed. See People v. Green, 70 Cal.2d 654, 664 and n. 11, 75 Cal.Rptr. 782, 451 P.2d 422, 428—429 and n. 11 (1969); Brief for Respondent 32. But the only 'necessity' that exists in either case is the State's 'need' to introduce relevant evidence that through no fault of its own cannot be introduced in any other way. And the 'assumption' that the witness would have given the same story if he had been available at trial, is little more than another way of saying that the testimony was given under circumstances that make it reasonably reliable—there is nothing in a witness' death by itself, for example, which would justify assuming his story would not have changed at trial. Finally, the 'reliability' of the statement is based on the circumstances under which it was given circumstances that remain unaffected regardless of whether the witness is present or absent at the later trial. Surely in terms of protecting the defendant's interests, and the jury's ability to assess the reliability of the evidence it hears, it seems most unlikely that respondent in this case would have been better off, as the dissent seems to suggest, if Porter had died, and his prior testimony were admitted, than he was in the instant case where Porter's conduct on the stand cast substantial doubt on his prior statement. As long as the State has made a good-faith effort to produce the witness, the actual presence or absence of the witness cannot be constitutionally relevant for purposes of the 'unavailability' exception.
17
The hearsay exception itself has generally recognized that a witness is 'unavailable' for purposes of the exception where through lapse of memory or a plea of the Fifth Amendment privilege, the State cannot secure his live testimony. See 5 Wigmore §§ 1408, 1409.
18
Even among proponents of the view that prior statements should be admissible as substantive evidence, disagreement appears to exist as to whether to apply this rule to the case of a witness who disclaims all present knowledge of the ultimate event. Commentators have noted that in such a case the opportunities for testing the prior statement through cross-examination at trial may be significantly diminished. See Falknor, The Hearsay Rule and Its Exceptions, 2 U.C.L.A.L.Rev. 43, 53 (1954); 31 N.Y.U.L.Rev. 1101, 1105 (1956). While both the Model Code and the Uniform Rules would apparently admit prior inconsistent statements even where the witness claims to have no present knowledge or recollection of the event, see Model Code of Evidence Rule 503(b), Comment b, at 234 (1942); Uniform Rule of Evidence 63(1), Comment (1953), the preliminary draft of proposed rules of evidence for lower federal courts seems to limit admissibility to the case where the witness actually testifies concerning the substance of the event at issue, see Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, rule 8—01(c)(2)(i), Advisory Comm. Notes at 165 (1969). See Comment, Substantive Use of Extrajudicial Statements of Witnesses Under the Proposed Federal Rules of Evidence, 4 U.Rich.L.Rev. 110, 119 and n. 40 (1969). The latter position accords with the common-law practice of not permitting prior inconsistent statements to be introduced even for impeachment purposes until and unless the witness has actually given 'inconsistent' testimony concerning the substance of the event described in the prior statement. Id., at 119, 121; see e.g., Westinghouse Electric Corp. v. Wray Equipment Corp., 286 F.2d 491, 493 (C.A.1st Cir.), cert. denied, 366 U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388 (1961); 3 Wigmore § 1043.
19
This issue is not insubstantial. Conviction here rests almost entirely on the evidence in Porter's two prior statements which were themselves inconsistent in some respect. See, e.g., Brief for Respondent 3 and n. 2, 49—50. The California Supreme Court also found it unnecessary to reach respondent's additional contentions of suppression of evidence and prejudicial misconduct. See People v. Green, 70 Cal.2d 654, 666, 75 Cal.Rptr. 782, 451 P.2d 422, 429 (1969). Moreover, as noted earlier in this opinion, ante, at 153 and n. 2, the California court suggested that Porter's prior statements may not even have been admissible under § 1235 as 'inconsistent' with his testimony at trial. Compare People v. Green, supra, at 657 n. 1, 75 Cal.Rptr. 782, 451 P.2d, at 424 n. 1, with n. 18, supra.
1
Cal.Evid.Code, § 1235 (1966).
2
Jett v. Commonwealth, 436 S.W.2d 788 (Ky.1969).
3
Gelhaar v. State, 41 Wis.2d 230, 163 N.W.2d 609 (1969), petition for certiorari pending, No. 389, Misc., O.T.1969.
1
The Court declines to consider the admissibility of Porter's out-of-court declaration to Officer Wade and remands for a determination as to whether it was properly admissible under California law. I consider this in Part IV, infra.
2
While this broad problem that lies beneath the surface of today's case would, in my view, have been more appropriately considered in a more conventional hearsay setting, where the maker of extrajudicial statement is not present at trial, it has been briefed and argued by both sides, and I reach it now, notwithstanding the pendency of No. 21, Dutton v. Evans, on our docket. Dutton was argued before us on reargument Oct. 15, 1969, and on Apr. 27, 1970, was set for reargument. 397 U.S. 1060, 90 S.Ct. 1494, 25 L.Ed.2d 682. The case will be heard at the next Term.
3
The easy assumption that confrontation is the right to exclude hearsay also appears in cases involving state criminal prosecutions where this Court, as a matter of due process, declined to hold applicable to the States the Sixth Amendment's right to confrontation. See, e.g., Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953); but see West v. Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965 (1904).
4
This is not merely a case of prior decisions that may have been incorrectly decided or rationalized. The unworkability of constitutionalizing any aspect of the conventional hearsay rule means what is at stake is the future of sound constitutional development in this area. Cf. Swift & Co. v. Wickham, 382 U.S. 111, 116, 86 S.Ct. 258, 261, 15 L.Ed.2d 194 (1965), where we noted the mischief of 'perpetuation of an unworkable rule.' Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Boys Markets v. Retail Clerk's Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); my dissenting opinion in Baldwin v. New York, 399 U.S. 117, 90 S.Ct. 1914, 26 L.Ed.2d 463 (1970), and my separate opinion in Welsh v. United States, 398 U.S. 333, 344 90 S.Ct. 1792, 1798, 26 L.Ed.2d 308 (1970), and my dissenting opinion in Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248 (1969).
5
The Georgia Constitution of 1877 lends some support for this restricted reading of confrontation. See Art. I, § 1, 5, which provided that the accused 'shall be confronted with the witnesses testifying against him * * *.' (Emphasis added.) The natural reading of the provision, phrased as it is, would be to restrict the guarantee to individuals who are appearing in court.
6
Massachusetts, New Hampshire, North Carolina, Maryland, and Virginia all included in their early constitutions a confrontation provision. See F. Heller, The Sixth Amendment 22—24 (1951). The documents are reprinted in F. Thorpe, The Federal and State Constitutions passim (1909). Wigmore has collected the state provisions. 5 J. Wigmore, Evidence § 1397, at 127—130 (3d ed. 1940).
7
See 1 J. Elliot's Debates 328, 334 (1876).
8
See 1 Annals of Cong. (1789—1790). Thus, my own research satisfies me that the prevailing view—that the usual primary sources and digests of the early debates contain no informative material on the confrontation right—is correct. Note, Confrontation and the Hearsay Rule, 75 Yale L.J. 1434, 1436 n. 10 (1966); Note, Preserving the Right to Confrontation—A New Approach to Hearsay Evidence in Criminal Trials, 113 U.Pa.L.Rev. 741, 742 (1965); Note, Confrontation, Cross-Examination, And the Right to Prepare a Defense, 56 Geo.L.J. 939, 953 (1968). For a review of the history of confrontation at English common law see Pollitt, The Right of Confrontation: Its History and Modern Dress, 8 J.Pub.L. 381 (1959).
9
See H. Stephen, 'The Trial of Sir Walter Raleigh,' Transactions of the Royal Historical Society 172, 184 (4th ser. Vol. 2, 1919). In discussing Raleigh's trial Stephen notes, 'The modern reader of Raleigh's trial is struck by the fact that he had no assistance from counsel. He likewise would not have been allowed to call witnesses had he wished to do so. * * * (The accused was) defended by the argument that the case against (him) had to be completely proved. If this was done no witnesses or counsel on the other side need be attended to; if it was not done none were needed.' See also Heller, supra, n. 6, at 106—107, and the remarks of Governor Randolph at the Virginia ratification convention reported at 3 J. Elliot's Debates 467 (1876).
10
Hadley, The Reform of Criminal Procedure, 10 Proceedings of the Academy of Political Science 396, 400—401 (1923). Hadley's brief remarks would seem to indicate that the abuse that provoked concern was the use of affidavit and deposition testimony.
11
The only support offered for this reading is the assertion that the Framers were concerned to prevent the abuses that occurred at the infamous treason trial of Sir Walter Raleigh. The abuses there, however, went far beyond a conviction based on hearsay. As one commentator has noted, the reams of deposition testimony given by Raleigh's alleged accomplice, who turned State's evidence, contained only innuendo and no credible assertion of substance sufficient to support a verdict. See Stephen, 'The Trial of Sir Walter Raleigh,' supra, n. 9. In this light, the Sixth Amendment guarantee might well be read as establishing a basic presumption of producing witnesses without dignifying every hearsay ruling with constitutional significance.
12
Heller, supra, n. 6, at 105, citing H. Rottschaefer, Handbook of American Constitutional Law 796 (1939). This view is open to question. Wigmore, for one, takes the position that several exceptions to the hearsay rule existed as of the time the Sixth Amendment was adopted. 5 Wigmore, Evidence § 1397, at 130.
13
The basis of Wigmore's assertion is that the only right to confrontation known at common law was that enshrined in the hearsay rule. He concludes that in view of the seemingly absolute prohibition on the use of hearsay declarations, it is impossible to apply literally to the Confrontation Clause and that the Framers intended confrontation to mean common-law hearsay principles. See 5 Wigmore, Evidence § 1397, at 130—131.
14
The early decisions and recent cases are replete with dicta to the effect that confrontation is equivalent to cross-examination. Instead of treating cases like Brookhart v. Janis, supra; Pointer v. Texas, supra; and Douglas v. Alabama, supra; as denials of 'due process,' see infra, the Court has employed sweeping language, and said, for example, 'a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.' Pointer v. Texas, 380 U.S., at 406—407, 85 S.Ct., at 1069. This kind of broad language, tending to equate confrontation and cross-examination, and the holding in Bruton have conjured the spectre of the constitutionalization of the hearsay rule that the dissent is apparently willing to treat with.
It is not surprising that confrontaton and hearsay have been considered fungible. The labels were not until recently likely to affect the result in a federal trial. See comment in the Rreliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates 156 (1969). Cf. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931) (right to cross-examine not treated as a denial of confrontation).
The portent of the label now emerges to the fore in federal cases, however, against the backdrop of recent developments that accord special treatment to constitutional errors, see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) (harmless error); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Kaufman v. United States, 394 U.S. 217, 226, 89 S.Ct. 1068, 1074, 22 L.Ed.2d 227 (1969) (collateral relief), and, for the States, in the context of incorporation, which makes every hearsay ruling a potential 28 U.S.C. § 2254 issue. An additional consequence of constitutionalizing the hearsay rules would be to put them beyond the reach of Congress. But see Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966).
15
Only Kirby did not, strictly speaking, involve the use of deposition testimony. In Kirby's case the Government sought to introduce a judgment of conviction obtained against three perpetrators of a theft in order to prove that property found in Kirby's possession was, in fact, stolen. In Reynolds the Court held that an accused cannot complain about the introduction of prior recorded testimony when the witness' absence is procured by the defense. In Mattox the Court, analogizing to the exception to the hearsay rule for dying declarations, held admissible prior recorded testimony taken under oath and subjected to cross-examination where the witness had died since the first trial. In Motes the Court declined to countenance testimony taken subject to cross-examination where it appeared the Government might have produced the witness.
Most later cases have also involved written testimony. See, e.g., Barber v. Page, supra; Pointer v. Texas, supra; Douglas v. Alabama, supra (confession); Stein v. New York, 346 U.S. 156, 194, 73 S.Ct. 1077, 1097, 97 L.Ed. 1522 (1953) (confession); West v. Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965 (1904); cf. Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). Other problems treated under the rubric of confrontation have included, inter alia, the exclusion of the accused from his trial, In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Brookhart v. Janis, supra; cf. Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (a viewing); Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) (improper remarks by bailiff); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).
That, historically, the primary concern was the possibility of trial by affidavit may be evidenced by several early state constitutional provisions that specifically made exceptions to confrontation by providing for use of depositions when the witness is unavailable. See, e.g., California Const., 1879, Art. I, § 13 ('The Legislature shall have power to provide for the taking, in the presence of the party accused and his counsel, of depositions of witnesses in criminal cases, other than cases of homicide when there is reason to believe that the witness, from inability or other cause, will not attend at the trial.'); Colorado Const., 1876, Art. II, § 16; Montana Const., 1889, Art. III, §§ 16, 17; Ohio Const., 1851, Art. I, § 10; Texas Const., 1876, Art. I, § 10, as amended 1918, Vernon's Ann.St.
16
Interestingly in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), the Court, speaking through the same Justice who wrote Kirby, in holding that it was error to permit a surgeon to testify that he had examined the body of the alleged victim of the charged homicide when the surgeon's knowledge as to the identity of the deceased came from a third party, relied only on hearsay principles and made no allusion to the Confrontation Clause.
17
That the critical element is availability cannot be doubted. The West opinion does not emphasize the opportunity to cross-examine at the time of taking the depositions, and, as already remarked, that would appear to be of secondary concern given the recognition in Mattox of the dying declaration exception. West, moreover, perforce stands for the proposition that confrontation is indifferent to any limitations on the nature of cross-examination at a preliminary hearing that underlie the dissent in this case.
In view of the extended discussion of federal precedents and the express rejection of West's contentions thereunder, for present purposes it is of no consequence that the case involved a state criminal prosecution and that the Court declined to hold the Sixth Amendment applicable as such.
18
While the importance of the right to cross-examine is not to be minimized, see 5 Wigmore, supra, § 1367, the desirability of excluding otherwise relevant evidence simply because it has not been tested by cross-examination has been frequently questioned. See generally C. McCormick, Evidence §§ 224, 302—305, at 459, 628 634 (1954); ALI Model Code of Evidence Rules 502, 503, and Comment, at 231—232 (1942); Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, Rule 8—03, at 173 (1969); Uniform Rules of Evidence, Rule 63 (liberalized exceptions). See also James, The Role of Hearsay in a Rational Scheme of Evidence, 34 Ill.L.Rev. 788 (1940); Chadbourn, Bentham and The Hearsay Rule—A Benthamic View of Rule 63(4)(c) of the Uniform Rules of Evidence, 75 Harv.L.Rev. 932, 942—951 (1962) (Uniform Rules too restricted); McCormick, Hearsay, 10 Rutgers L.Rev. 620, 630 (1956) (commenting on Uniform Rules); cf. Quick, Evidence, 6 Wayne L.Rev. 163, 168 (1959) (apparently critical of the trend toward admissibility). Judges, too, have disagreed on the desirability of excluding hearsay, compare Chief Justice Marshall's view set forth in Queen v. Hepburn, 7 Cranch 290, 3 L.Ed. 348 (1813), and that of Justice Story in Ellicott v. Pearl, 10 Pet. 412, 436, 9 L.Ed. 475 (1836), with that of Judge Learned Hand set forth in his lecture to the Association of the Bar of the City of New York, The Deficiencies of Trials to Reach the Heart of the Matter, 3 Lectures on Legal Topics, 1921—1922, p. 89 (1926).
19
See Report of the New Jersey Supreme Court Committee on Evidence (1963). The potential for suffocating creative thinking is suggested by the commentary on the Uniform Rules of Evidence by the California Law Revision Commission. Prior to Pointer in 1962 the commission noted that despite the federal rule, it was free, consistent with due process, to consider and adopt Uniform Rule 63(3) (b)(ii), providing for use of testimony from a former trial when there was an identity of issues and reason to believe there would have been adequate cross-examination and the declarant is unavailable. The commission recommended adoption of Rule 63(3)(b)(ii). See Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (1962), in 4 California Law Revision Commission: Reports, Recommendations and Studies 454—457 (1963). The provision was omitted from the new evidence code with a comment that a defendant in a criminal prosecution should not be made to rely on another individual's cross-examination. Evidence Code with Official Comments 1250 (California Law Revision Commission 1965). While this Court's decision in Pointer was apparently not responsible for the decision to omit this provision, since the final commission report was submitted in January 1965, prior to Pointer, it is clear that were hearsay constitutionalized, California could not even have considered this innovation.
20
This is not to say that the right to cross-examination is not an element of due process. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). Due process does not permit a conviction based on no evidence, Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927), or on evidence so unreliable and untrustworthy that it may be said that the accused had been tried by a kangaroo court. Cf. In re Oliver, supra; Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).
In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the underlying principle was refined. The Court there recognized that evidence of identification—always a critical issue in a criminal trial—should not be received if the circumstances of a pretrial confrontation were so infected by suggestiveness as to give rise to an irreparable likelihood of misidentification. By the same token I would not permit a conviction to stand where the critical issues at trial were supported only by ex parte testimony not subjected to cross-examination, and not found to be reliable by the trial judge. Cf. United States v. Kearney, 136 U.S.App.D.C. 328, 420 F.2d 170 (1969). It will, of course, be the unusual situation where the prosecution's entire case is built upon hearsay testimony of an unavailable witness. In such circumstance the defendant would be entitled to a hearing on the reliability of the testimony. Cf. ALI, Model Code of Evidence; United States v. Kearney, supra. Due process also requires that the defense be given ample opportunity to alert the jury to the pitfalls of accepting hearsay at face value and the defendant would, of course, upon request be entitled to cautionary instructions. Cf. § 6.17, Manual on Jury Instructions, 33 F.R.D. 601 (missing witnesses). On the basis of this approach I would stand by my concurrence in the result in Pointer v. Texas, supra, both because the out-of-court statement formed the bulk of the prosecutor's case and also because there was no showing that the witness could not have been made available for cross-examination. See also Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). The result in Douglas v. Alabama, to which I also still adhere, can be rationalized under this test since there the inadmissible confession 'constituted the only direct evidence' that petitioner had committed the murder. 380 U.S., at 419, 85 S.Ct., at 1077. An additional factor would move me to stand by Douglas. It was a case of prosecutorial misconduct. By placing the witness on the stand and reading in the confession, the prosecutor, in effect, increased the reliability of the confession in the jury's eyes in view of the witness' apparent acquiescence as opposed to repudiation.
21
Cf. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).
22
The lengths to which the prosecution must go to produce a witness before it may offer evidence of an extra-judicial declaration is a question of reasonableness. Barber v. Page, supra; cf. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). A good-faith effort is, of course, necessary, and added expense or inconvenience is no excuse. It should also be open to the accused to request a continuance if the unavailability is only temporary. Cf. Peterson v. United States, 344 F.2d 419, 425 (C.A.5th Cir. 1965).
1
See People v. Green, 70 Cal.2d 654, 657—658, 75 Cal.Rptr. 782, 784, 451 P.2d 422, 424 (1969).
2
Porter declared under oath on May 12, 1967, that 'when I was arrested and was in custody, the police kept telling me that they knew it was JOHN GREEN I was involved with and that unless I implicated him that they would see that I was out of circulation for a long time. * * *'
3
Cf. Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970), where the Court stated that '(t)he second-hand presentation to the decision maker by the caseworker has its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligibility rests, the presentation of the recipient's side of the controversy cannot safely be left to him.'
4
No question, for example, was asked Porter by either the defense or prosecution as to whether he was under the influence of drugs at the time of the alleged offense.
5
If, on the other hand, the witness is willing and able to testify at trial about the operative events, the demands of the Confrontation Clause may be met, even though the witness contradicts his pretrial assertions. I see no need on the facts presented here, however, to resolve this issue.
6
The fact that in appropriate circumstances such a statement may be admitted to impeach a witness is not as anomalous as the Court suggests, ante, at 164. If, for example, Porter's pretrial statements had been admitted at respondent's trial solely for impeachment purposes, they would not have provided substantive proof of his guilt, and, as noted, there would then very likely have been insufficient evidence to sustain his conviction.
7
The California Supreme Court in the present case discussed in more detail the distinctions between a preliminary hearing and trial, stating that 'the purpose of a preliminary hearing is not a full exploration of the merits of a cause or of the testimony of the witnesses. It is designed an adapted solely to answer the far narrower preliminary question of whether probable cause exists for a subsequent trial. The judge in preliminary proceedings is not required to be convinced of the defendant's guilt 'beyond a reasonable doubt,' but need only look for reasonable credibility in the charge against him. A fortiori a witness' testimony, though the only evidence adduced, need not be convincing or credible beyond a reasonable doubt, and cross-examination which would surely impeach a witness at trial would not preclude a finding of probable cause at the preliminary stage. Even given the opportunity * * *, neither prosecution nor defense is generally willing or able to fire all its guns at this early stage of the proceedings, for considerations both of time and efficacy. * * * Indeed, it is seldom that either party has had time for investigation to obtain possession of adequate information to pursue in depth direct or cross-examination.' 70 Cal.2d, at 663, 75 Cal.Rptr., at 788, 451 P.2d, at 428. See also Government of Virgin Islands v. Aquino, 378 F.2d 540, 549 (C.A.3d Cir. 1967).
8
Beyond these problems, today's holding raises another practical difficulty: how extensive must cross-examination at the preliminary hearing be before constitutional confrontation is deemed to have occurred? Is the mere opportunity for face-to-face encounter sufficient? Perhaps so. The Court states that 'respondent had every opportunity to cross-examine Porter as to his statement' at the hearing. Ante, at 165. Does that mean that if defense counsel fails to take advantage of the opportunity that the accused can subsequently be convicted at trial on the basis of wholly untested evidence? If more than an unexercised chance to cross-examine is required, how thorough and effective must the questioning be before it satisfies the Confrontation Clause? Is it significant, for example, that in the present case neither the defense nor prosecution explored the most elemental fact about Porter's testimony—the possibility that he was under the influence of drugs at the time of the alleged offense?
| 01
|
399 U.S. 204
90 S.Ct. 1990
26 L.Ed.2d 523
CITY OF PHOENIX, ARIZONA et al., Appellants,v.Emily KOLODZIEJSKI.
No. 1066.
Argued March 31, 1970.
Decided June 23, 1970.
Rex E. Lee, Phoenix, Ariz., for appellants.
Fred H. Rosenfeld, Phoenix, Ariz., for appellee.
Mr. Justice WHITE delivered the opinion of the Court.
1
In Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), this Court held that a State could not restrict the vote in school district elections to owners and lessees of real property and parents of school children because the exclusion of otherwise qualified voters was not shown to be necessary to promote a compelling state interest. This ruling, by its terms applicable to elections of public officials, was extended to elections for the approval of revenue bonds to finance local improvements in Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969). Our decision in Cipriano did not, however, reach the question now presented for decision: Does the Federal Constitution permit a State to restrict to real property taxpayers the vote in elections to approve the issuance of general obligation bonds?
2
This question arises in the following factual setting: On June 10, 1969, the City of Phoenix Arizona, held an election to authorize the issuance of $60,450,000 in general obligation bonds as well as certain revenue bonds. Under Arizona law, property taxes were to be levied to service this indebtedness, although the city was legally privileged to use other revenues for this purpose.1 The general obligation bonds were to be issued to finance various municipal improvements, with the largest amounts to go for the city sewer system, parks and playgrounds, police and public safety buildings, and libraries. Pursuant to Arizona constitutional and statutory provisions,2 only otherwise qualified voters who were also real property taxpayers were permitted to vote on these bond issues. All of the bond issues submitted to the voters were approved by a majority of those voting.
3
On June 16, 1969, six days after the election in Phoenix, this Court held in Cipriano v. City of Houma, supra, that restricting the franchise to property taxpayers in elections on revenue bonds violated the Equal Protection Clause of the Fourteenth Amendment. That ruling was applied to the case before the Court in which under local law the authorization of the revenue bonds was not yet final when the challenge to the election was raised in the District Court. On August 1, 1969, appellee Kolodziejski, a Phoenix resident who was otherwise qualified to vote but who owned no real property, filed her complaint in the United States District Court for the District of Arizona challenging the constitutionality of the restriction on the franchise in Arizona bond elections and attacking the validity of the June 1969 election approving the Phoenix bond issues. A District Court of three judges was convened. In the District Court, appellants conceded that, under this Court's decisions in Cipriano and Kramer, supra, the bond election was invalid with regard to the revenue bonds that had been approved. The District Court perceived no significant difference between revenue bonds and general obligation bonds and therefore held that the exclusion of nonproperty-owning voters from the election on the general obligation bonds was unconstitutional under Cipriano and Kramer. Because the authorization of the Phoenix general obligation bonds was not final on the date of the Cipriano decision, the court held the Cipriano rule applicable and declared the June 10, 1969, bond election invalid. The appellants were enjoined from taking further action to issue the bonds approved in that election. The City of Phoenix and the members of the City Council appealed from the judgment of the District Court with respect to the general obligation bonds. We noted probable jurisdiction, 397 U.S. 903, 90 S.Ct. 930, 25 L.Ed.2d 85 (1970). We affirm the judgment of the District Court but do not agree that the ruling in this case should be retroactive to the date of the Cipriano decision.
4
* In Cipriano v. City of Houma, supra, the denial of the franchise to nonproperty owners in elections on revenue bonds was held to be a denial of the Fourteenth Amendment rights of the nonproperty owners since they, as well as property owners, are substantially affected by the issuance of revenue bonds to finance municipal utilities. It is now argued that the rationale of Cipriano does not render unconstitutional the exclusion of nonproperty owners from voting in elections on general obligation bonds.
5
The argument proceeds on two related fronts. First, it is said that the Arizona statutes require that property taxes be levied in an amount sufficient to service the general obligation bonds,3 the law thus expressly placing a special burden on property owners for the benefit of the entire community. Second, and more generally, whereas revenue bonds are secured by the revenues from the operation of particular facilities and these revenues may be earned from both property owners and nonproperty owners, general obligation bonds are secured by the general taxing power of the issuing municipality. Since most municipalities rely to a substantial extent on property tax revenues which will be used to make debt service payments if other revenue sources prove insufficient,4 general obligation bonds are in effect a lien on the real property subject to taxation by the issuing municipality. Whatever revenues are actually used to service the bonds, an unavoidable potential tax burden is imposed only on those who own realty since that property cannot be moved beyond the reach of the municipality's taxing power. Hence, according to appellants, the State is justified in recognizing the unique interests of real property owners by allowing only property taxpayers to participate in elections to approve the issuance of general obligation bonds.
6
Concededly, the case of elections to approve general obligation bonds was not decided in Cipriano v. City of Houma, supra. But we have concluded that the principles of that case, and of Kramer v. Union Free School District, supra, dictate a like result where a State excludes nonproperty taxpayers from voting in elections for the approval of general obligation bonds. The differences between the interests of property owners and the interests of nonproperty owners are not sufficiently substantial to justify excluding the latter from the franchise. This is so far several reasons.
7
First, it is unquestioned that all residents of Phoenix, property owners and nonproperty owners alike, have a substantial interest in the public facilities and the services available in the city and will be substantially affected by the ultimate outcome of the bond election at issue in this case. Presumptively, when all citizens are affected in important ways by a governmental decision subject to a referendum, the Constitution does not permit weighted voting or the exclusion of otherwise qualified citizens from the franchise. Arizona nevertheless excludes nonproperty owners from participating in bond elections and vests in the majority of individual property owners voting in the election the power to approve or disapprove facilities that the municipal government has determined should be financed by issuing general obligation bonds. Placing such power in property owners alone can be justified only by some overriding interest of those owners that the State is entitled to recognize.
8
Second, although Arizona law ostensibly calls for the levy of real property taxes to service general obligation bonds, other revenues are legally available for this purpose. According to the parties' stipulation in this case, it is anticipated with respect to the instant bonds, as has been true in the past, that more than half of the debt service requirements will be satisfied not from real property taxes but from revenues from other local taxes paid by nonproperty owners as well as those who own real property.5 Not only do those persons excluded from the franchise have a great interest in approving or disapproving municipal improvements, but they will also contribute, as directly as property owners, to the servicing of the bonds by the payment of taxes to be used for this purpose.
9
Third, the justification for restricting the franchise to the property owners would seem to be strongest in the case of a municipality which, unlike Phoenix, looks only to property tax revenues for servicing general obligation bonds. But even in such a case the justification would be insufficient. Property taxes may be paid initially by property owners, but a significant part of the ultimate burden of each year's tax on rental property will very likely be borne by the tenant rather than the landlord since, as the parties also stipulated in this case, the landlord will treat the property tax as a business expense and normally will be able to pass all or a large part of this cost on to the tenants in the form of higher rent.6 Since most city residents not owning their own homes are lessees of dwelling units, virtually all residents share the burden of property taxes imposed and used to service general obligation bonds. Moreover, property taxes on commercial property,7 much of which is owned by corporations having no vote, will be treated as a cost of doing business and will normally be reflected in the prices of goods and services purchased by nonproperty owners and property owners alike.
10
While in theory the expected future income from real property, and hence property values in a municipality, may depend in part on the predicted future levels of property taxes,8 the actual impact of an increase in property taxes is problematical.9 Moreover, to the extent that property values are directly affected by the additional potential tax burden entailed in the bond issue, any adverse effect would normally be offset at least in substantial part by the favorable effects on property values of the improvements to be financed by the bond issue.10
11
It is true that a general obligation bond may be loosely described as a 'lien' on the property within the jurisdiction of the municipality in the sense that the issuer undertakes to levy sufficient taxes to service the bond. In theory if the economy of the issuing city were to collapse, the levy of sufficiently high property taxes on property producing little or no income might result in some cases in defaults, foreclosures, and tax sales. Nothing before us, however, indicates that the possibility of future foreclosures to meet bond obligations significantly affects current real estate values or the ability of the concerned property owner to liquidate his holdings to avoid the risk of those future difficulties; the price of real estate appears to be more a function of the health of the local economy than a reflection of the level of property taxes imposed to finance municipal improvements. In any event, we are not convinced that the risk of future economic collapse that might result in bond obligations becoming an unshiftable, unsharable burden on property owners is sufficiently real or substantial to justify denying the vote in a current bond election to all those nonproperty owners who have a significant interest in the facilities to be financed, who are now indirectly sharing the property tax burden, and who will be paying other taxes used by the municipality to service its general obligation bonds.
12
We thus conclude that, although owners of real property have interests somewhat different from the interests of nonproperty owners in the issuance of general obligation bonds, there is no basis for concluding that nonproperty owners are substantially less interested in the issuance of these securities than are property owners. That there is no adequate reason to restrict the franchise on the issuance of general obligation bonds to property owners is further evidenced by the fact that only 14 States now restrict the franchise in this way;11 most States find it possible to protect property owners from excessive property tax burdens by means other than restricting the franchise to property owners. The States now allowing all qualified voters to vote in general obligation bond elections do not appear to have been significantly less successful in protecting property values and in soundly financing their municipal improvements. Nor have we been shown that the 14 States now restricting the franchise have unique problems that make it necessary to limit the vote to property owners. We must therefore affirm the District Court's declaratory judgment that the challenged provisions of the Arizona Constitution and statutes, as applied to exclude nonproperty owners from elections for the approval of the issuance of general obligation bonds, violate the Equal Protection Clause of the United States Constitution.
II
13
In view of the fact that over the years many general obligation bonds have been issued on the good-faith assumption that restriction of the franchise in bond elections was not prohibited by the Federal Constitution, it would be unjustifiably disruptive to give our decision in this case full retroactive effect. We therefore adopt a rule similar to that employed with respect to the applicability of the Cipriano decision: our decision in this case will apply only to authorizations for general obligation bonds that are not final as of June 23, 1970, the date of this decision. In the case of States authorizing challenges to bond elections within a definite period, all elections held prior to the date of this decision will not be affected by this decision unless a challenge on the grounds sustained by this decision has been or is brought within the period specified by state law. In the case of States, including apparently Arizona,12 that do not have a well-defined period for bringing challenges to bond elections, all elections held prior to the date of this decision that have not yet been challenged on the grounds sustained in this decision prior to the date of this decision will not be open to challenge on the basis of our ruling in this case. In addition, in States with no definite challenge period, the validity of general obligation bonds that have been issued before this decision and prior to the commencement of an action challenging the issuance on the grounds sustained by this decision will not be affected by the decision in this case. Since appellee in this case brought her constitutional challenge to the Phoenix election prior to the date of our decision in this case and no bonds have been issued pursuant to that election, our decision applies to the election involved in this case. The District Court was therefore correct in holding that the June 10, 1969, bond election in Phoenix was constitutionally invalid and in enjoining the issuance of bonds pursuant to the approval obtained in that election.
14
Affirmed.
15
Mr. Justice BLACK concurs in the judgment and in Part I of the opinion of the Court.
16
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
17
Mr. Justice STEWART, whom The CHIEF JUSTICE and Mr. Justice HARLAN join, dissenting.
18
If this case really involved an 'election,' that is, a choice by popular vote of candidates for public office under a system of representative democracy, then our frame of reference would necessarily have to be Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and its progeny. For, rightly or wrongly, the Court has said that in cases where public officials with legislative or other governmental power are to be elected by the people, the Constitution requires that the electoral franchise must generally reflect a regime of political suffrage based upon 'one man, one vote.' Recent examples of that constitutional doctrine are the Court's decisions in Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583, involving the franchise to vote for the members of a school board; and Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45, involving the apportionment of voting districts for the election of the trustees of a state junior college.
19
Whether or not one accepts the constitutional doctrine embodied in those decisions, they are of little relevance here. For in this case nobody has claimed that the members of the City Council of Phoenix, Arizona—the individual appellants here—were elected in any way other than on a one man, one vote basis, or that they do not fully and fairly represent the entire electorate of the municipality. And it was these councilmen who initiated the program for borrowing money so that the city might have a sewer system, parks and playgrounds, police and public safety buildings, a new library, and other municipal improvements. Having made that initial decision, the councilmen submitted the borrowing and construction program for final approval by those upon whom the burden of the municipal bonded indebtedness would legally fall—the property owners of the city. These property owners approved the entire program by a majority vote. Yet the Court today says the Equal Protection Clause prevents the city of Phoenix from borrowing the money to build the public improvements that the council and the property owners of the city have both approved. I cannot believe that the United States Constitution lays such a heavy hand upon the initiative and independence of Phoenix, Arizona, or any other city in our Nation.
20
In Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647, the Court held unconstitutional a Louisiana law that permitted only property owners to vote on the question of approving bonds that were to be financed exclusively from the revenues of municipally operated public utilities. I agreed with that decision, because the State had created a wholly irrelevant voting classification. Id., at 707, 89 S.Ct., at 1901 (Black and Stewart, JJ., concurring in the judgment). As the Court there noted:
21
'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 impact 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.' Id., at 705, 89 S.Ct. at 1900.
22
The case before us bears only a superficial resemblance to Cipriano, for we deal here, not with income-producing utilities that can pay for themselves, but with municipal improvements that must be paid for by the taxpayers. Under Arizona law a city's general bonded indebtedness effectively operates as a lien on all taxable real estate located within the city's borders. During the entire life of the bonds the privately owned real property in the city is burdened by the city's pledge—and statutory obligation—to use its real estate taxing power for the purpose of repaying both interest and principal under the bond obligation.1 Whether under these circumstances Arizona could constitutionally confer upon its municipal governing bodies exclusive and absolute power to incur general bonded indebtedness without limit at the expense of real property owners is a question that is not before us. For the State has chosen a different policy, reflected in both its constitutional and statutory law.2 It has told the governing bodies of its cities that while they are free to plan and propose capital improvements, general obligation bonds cannot be validly issued to finance them without the approval of a majority of those upon whom the weight of repaying those bonds will legally fall.
23
This is not the invidious discrimination that the Equal Protection Clause condemns, but an entirely rational public policy. I would reverse the judgment, because I cannot hold that the Constitution denies the City of Phoenix the public improvements that its Council and its taxpayers have endorsed.3
1
The relevant Arizona statute provides as follows:
'A. After the bonds are issued, the governing body or board shall enter upon its minutes a record of the bonds sold, their numbers and dates, and shall annually levy and cause to be collected a tax, at the same time and in the same manner as other taxes are levied and collected upon all taxable property in such political subdivision, sufficient to pay the interest on the bonds when due, and shall likewise annually levy a tax sufficient to redeem the bonds when they mature.
'B. Monies derived from the levy of the tax when collected shall constitute a fund for payment of interest and the bonds. The fund shall be kept separately and shall be known as the 'Interest Fund' and 'Redemption Fund." Ariz.Rev.Stat.Ann. § 35—458 (1956).
In Allison v. City of Phoenix, 44 Ariz. 66, 33 P.2d 927 (1934), the Arizona Supreme Court ruled that the predecessor of this section permitted an issuing municipality to use other funds for debt service if such funds were avilable. In this case the parties have stipulated that for the 1969—1970 fiscal year $3,244,773 of the city's total general obligation debt service requirement of.$5,594,937 was met from sources other than ad valorem property taxes and that this apportionment of debt service burden is typical of recent years.
2
Ariz.Const., Art. 7, § 13, Art. 9, § 8; Ariz.Rev.Stat.Ann. §§ 9—523, 35—452 (1956), § 35—455 (Supp.1969).
3
See n. 1, supra.
4
In 1967—1968, property taxes yielded $26.835 billion (approximately 86%) of governments. U.S. Dept. of Commerce, the $31.171 billion raised in taxes by local Bureau of the Census, Governmental Finances in 1967—68, p. 20 (1969).
5
For the 1969—1970 fiscal year, the City of Phoenix utilized revenues other than revenues from property taxes to meet over 55% of its general obligation debt service requirements. See n. 1, supra.
6
In this case the parties stipulated that 'the amount of money paid as real property taxes is a cost of doing business of the (appellee's) landlord and as such has a material bearing on the cost of the (appellee's) rental payments.'
The extent to which a landlord can pass along an increase in property taxes to his tenants generally depends on how changes in rent levels in the municipality affect the amount of rental property demanded—the less responsive the demand for rental property to changes in rent levels, the larger the proportion of property taxes that will ultimately be borne by tenants. See C. Shoup, Public Finance 385—390 (1969); D. Netzer, Economics of the Property Tax 32—40 (1966); Simon, The Incidence of a Tax on Urban Real Property, in Readings in the Economics of Taxation 416 (published by the American Economic Assn. 1959).
7
In 1957, about 28 1/2% of real property taxes paid to local governments in the United States were paid on commercial and industrial properties. See Netzer, supra, n. 6, at 19.
8
In theory, the value of property is the present value of the expected income to be earned from the property in the future; in the case of owner-occupied residences, this 'income' is the satisfaction which the homeowners derive from the enjoyment of their residences. Property taxes on rental property will reduce the expected future earnings from the property to the extent that it is expected that the taxes cannot be passed on to tenants in the form of higher rent. See n. 6, supra. For owner-occupiers the property tax will reduce the expected 'income' net of costs and will thus reduce the value of their property. For a further discussion of this 'capitalization' of unshiftable future property taxes, see H. Newman, An Introduction to Public Finance 262 (1968); Shoup, supra, n. 6, at 442—443; Netzer, supra, n. 6, at 34 36; J. Jensen, Property Taxation in the United States 63—75 (1931).
9
The empirical evidence on capitalization of unshifted property taxes has been described as 'most unsatisfactory.' See Netzer, supra, n. 6, at 34—35; see also Shoup, supra, n. 6, at 443.
10
See Netzer, supra, n. 6, at 34.
11
It appears from the briefs filed in this case that 13 States besides Arizona restrict the franchise to property owners or property taxpayers in some or all general obligation bond elections:
Alaska (Alaska Stat. § 07.30.010(b) (Supp.1969)); Colorado (Colo.Const., Art. XI, §§ 6, 7, and 8); Florida (Fla.Const., Art. 7, § 12, F.S.A.); Idaho (Idaho Code Ann. § 31—1905 (1963), § 33 404 (Supp.1969), § 50—1026 (1967)); Louisiana (La.Const., Art. 14, § 14(a)); Michigan (Mich.Const., Art. II, § 6); Montana (Mont.Const., Art. IX, § 2, Art. XIII, § 5; Mont.Rev.Codes Ann. § 11—2310 (1968), § 75—3912 (1962)); New Mexico (N.M.Const., Art. IX, §§ 10, 11, and 12); New York (N.Y.Town Law § 84 (McKinney's Consol.Laws, c. 62, 1965); N.Y.Village Law § 4—402 (McKinney's Consol.Laws, c. 64, 1966); Oklahoma (Okla.Const., Art. X, § 27); Rhode Island (R.I. Const. Amdt. 29, § 2); Texas (Tex.Const., Art. 6, § 3a, Vernon's Ann.St.); Utah (Utah Const., Art. XIV, § 3).
12
Ariz.Rev.Stat.Ann. § 16—1202 (Supp.1969) and § 16—1204 (1956) provide that election contest suits generally must be brought by 'electors' within five days after completion of the canvass and declaration of the result of an election. Under the Arizona Supreme Court's decision in Morgan v. Board of Supervisors, 67 Ariz. 133, 192 P.2d 236 (1948), it is unclear whether suits brought after the expiration of the five-day period to challenge a bond election on constitutional grounds would in all cases be barred. The District Court found there was no bar to suit in this case.
1
Ariz.Rev.Stat.Ann. § 35—458 provides: 'After the bonds are issued, the governing body or board * * * shall annually levy and cause to be collected a tax * * * upon all taxable property in such political subdivision, sufficient to pay the interest on the bonds when due, and * * * to redeem the bonds when they mature.'
In Allison v. City of Phoenix, 44 Ariz. 66, 33 P.2d 927 (1934), the Arizona Supreme Court held that if a city has money available from another source 'it may from time to time be transferred to the interest and redemption funds created by the statute. * * *' 44 Ariz., at 77, 33 P.2d, at 931. The court made clear, however, that the predecessor of Ariz.Rev.Stat.Ann. § 35 458 'is mandatory and binding upon all parties mentioned therein, and that they must levy and cause to be collected a tax for the payment of bonds issued under such article, in the manner provided by such section.' Id., at 74, 33 P.2d, at 930. The use of excise taxes to repay general obligation bonds is thus optional, but the imposition of ad valorem taxes for these purposes is mandatory.
Texes imposed on real property in Arizona become a lien on that property. Ariz.Rev.Stat.Ann. § 42-312.
2
The constitutional and statutory provisions applicable to all bond authorization elections of incorporated cities and towns in the State of Arizona limit the right to vote in such elections to persons who are qualified electors and who are also real property taxpayers. Ariz.Const., Art. 7, § 13; Art. 9, § 8. Ariz.Rev.Stat.Ann. § 9—523 and § 35—455. These constitutional and statutory provisions apply to all political subdivisions within the State of Arizona, and not just to cities and towns.
3
Since the Court's contrary view today prevails, I add that upon that premise THE CHIEF JUSTICE and I agree with Part II of the Court's opinion, and that Mr. Justice HARLAN also joins in Part II of the Court's opinion, subject, however, to the views expressed in his concurring opinion in United States v. Estate of Donnelly, 397 U.S. 286, 295, 90 S.Ct. 1033, 1039, 25 L.Ed.2d 312 (1970).
| 12
|
399 U.S. 222
90 S.Ct. 1989
26 L.Ed.2d 534
PERKINSv.STANDARD OIL COMPANY OF CALIFORNIA.
Nos. 1507 and 1556.
June 23, 1970.
PER CURIAM.
1
Following his success in this Court in Perkins v. Standard Oil Co., 395 U.S. 642, 89 S.Ct. 1871, 23 L.Ed.2d 599, the petitioner filed in the District Court for the District of Oregon an application for allowance of attorneys' fees, pursuant to § 4 of the Clayton Act,* for legal services performed during the appellate stages of that litigation, both in the Court of Appeals and in this Court. The District Court denied the application, ruling that § 4 did not authorize the allowance of attorneys' fees for services performed in connection with appellate proceedings.
2
Petitioner appealed this decision to the Court of Appeals and simultaneously filed in that court two separate applications for attorneys' fees for legal services performed there and in this Court. The Court of Appeals denied the latter application, believing that our mandate in Perkins, by not mentioning attorneys' fees, was intended to preclude an award of such fees.
3
The District Court was in error in holding that § 4 does not authorize the award of counsel fees for legal services performed at the appellate stages of a successfully prosecuted private antitrust action. Both the language and purpose of § 4 make that construction untenable. See American Can Co. v. Ladoga Canning Co., 7 Cir., 44 F.2d 763, cert. denied, 282 U.S. 899, 51 S.Ct. 183, 75 L.Ed. 792. The amount of the award for such services should, as a general rule, be fixed in the first instance by the District Court, after hearing evidence as to the extent and nature of the services rendered. See, e.g., Osborn v. Sinclair Refining Co., 207 F.Supp. 856, 864. The Court of Appeals was also in error in interpreting our mandate as precluding the award of such fees for services performed in connection with the litigation in this Court. Our failure to make explicit mention in the mandate of attorneys' fees simply left the matter open for consideration by the District Court, to which the mandate was directed.
4
The petitions for certiorari are granted and the judgments are vacated. No. 1556 is remanded to the District Court, and No. 1507 to the Court of Appeals, for further proceedings consistent with this opinion.
5
It is so ordered.
6
Judgments vacated and causes remanded.
7
Mr. Justice HARLAN took no part in the consideration or decision of these cases.
*
That section provides in pertinent part as follows:
'Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States * * * and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.' 38 Stat. 731, 15 U.S.C. § 15.
| 56
|
399 U.S. 219
90 S.Ct. 2222
26 L.Ed.2d 537
ARKANSASv.TENNESSEE.
No. 33, Original.
Supreme Court of the United States
June 23, 1970
DECREE
1
This Court on February 25, 1970, 397 U.S. 88, 91, 90 S.Ct. 784, 25 L.Ed.2d 73, 76, having entered a decree and appointed a Boundary Commissioner to survey the boundary between Arkansas and Tennessee and pursuant to that decree the said Commissioner having filed a 'Report on Commission to Survey' in which he sets forth the General Location and Specific Location of such boundary to which the parties have approved and consented,
2
It is ordered, adjudged, and decreed That such boundary shall be fixed as follows:
GENERAL LOCATION
3
The state boundary line involved herein in located between Crittenden County, Arkansas, and Shelby County, Tennessee, in an area formerly known as Cow Island Bend, and more recently called Scanlan Chute, Frog Chute, Ike Chute or Lake, and 96 Chute; and is generally within a rectangle between latitudes 35°00' and 35°03', and longitudes 90°15' and 90°19', and is more particularly described as follows:
SPECIFIC LOCATION
4
Beginning at a point, designated as Station No. 1, which point is, § 6°34' E, at 1,359.0 feet from, Mississippi River Commission Permanent Bench Mark 'Scanlan,' whose coordinates are, latitude 35°02' plus 1,555.76 feet, and longitude 90°15' plus 1,014.42 feet. (Reference for PBM 'Scanlan,' see page 118 of Permanent Marks, Volume One of Mississippi River Commission.)
5
Said above beginning point being on a line running, § 75°39' E, 3,500.0 feet more or less from, the present Steamboat Channel (thalweg) of the Mississippi River; thence N 75°39', W, 645.8 feet to point; thence N 75°54' W, 2,112.0 feet to a point; thence N 17°18' W, 920.4 feet to a point; thence N 35°25' W, 436.3 feet to a point; thence N 62°36' W, 491.3 feet to a point, designated as Station No. 2; thence § 85°53' W, 2,161.6 feet to a point; thence § 82°00' W, 1,443.3 feet to a point; thence N 87°38' W, 2,739.7 feet to a point; thence § 79°35' W, 1,808.5 feet to a point; thence § 38°47' W, 1,033.1 feet to a point; thence § 24°52' W, 811.0 feet to a point; thence § 7°38' W, 2,085.5 feet to a point; thence § 11°29' W, 1,725.2 feet to a point, designated as Station No. 3; thence § 23°31' W, 3,098.3 feet to a point; thence § 0°51' E, 1,370.5 feet to a point; thence § 13°15' E, 1,258.1 feet to a point, designated as Station No. 4; thence § 38°45' W, 814.5 feet to a point; thence § 23°55' W, 864.1 feet to a point; thence § 12°30' W, 644.4 feet to a point; thence § 6°30' W, 1,270.5 feet to a point, which point is, § 81°52' E (Mag.), 2,736.5 feet from, United States Engineer Arkansas Levee Bench Mark for Mile Post 170/171; thence § 17°40' E, 1,627.0 feet to a point; thence § 6°50' E, 1,485.0 feet to a point; thence § 22°10' E, 2,500.0 feet more or less, to the present Steamboat Channel (thalweg) of the Mississippi.
6
The above surveyed boundary line between the States of Arkansas and Tennessee in the area involved is shown by a broken line marked on the attached 1965 aerial photograph of said area, which aerial photograph is also designated Appendix A-I to this Court's decree of February 25, 1970.*
*
Supreme Court Reporter's Note: The aerial photograph is not reproduced here, since it has been published in connection with the Court's previous decree. See 397 U.S. 91 (immediately following 92) [90 S.Ct. 784 (on page 786)].
| 1011
|
399 U.S. 525
90 S.Ct. 2252
26 L.Ed.2d 783
Stanley Edward KELLEYv.ARIZONA.
No. 1232, Misc.
Supreme Court of the United States
October Term, 1969.
June 29, 1970
On Petition for Writ of Certiorari to the Supreme Court of Arizona.
For opinion after remand 480 P.2d 658.
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 Supreme Court of Arizona for further consideration in light of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.
2
Mr. Justice HARLAN would vacate the judgment and remand the case to the Supreme Court of Arizona for the reasons stated in his separate opinion in Chambers v. Maroney, 399 U.S. 55, 90 S.Ct. 1983.
| 01
|
399 U.S. 510
90 S.Ct. 1960
26 L.Ed.2d 764
Rector SIMMONS, Jr., et ux., Appellants,v.WEST HAVEN HOUSING AUTHORITY.
No. 81.
Argued Dec. 8, 1969.
Decided June 29, 1970.
Rehearing Denied Oct. 12, 1970.
See 91 S.Ct. 23.
Francis X. Dineen, New Haven, Conn., for appellants.
F. Michael Ahern, Hartford, Conn., for the State of Connecticut, as amicus curiae, in support of judgment.
PER CURIAM.
1
We noted probable jurisdiction in this case to decide whether § 52—542 of the Connecticut General Statutes1 requiring a bond for the protection of his landlord from a tenant who wished to appeal from a judgment in a summary eviction proceeding, offends either the Due Process or Equal Protection Clause of the Fourteenth Amendment if applied to foreclose appellate review for those too poor to post the bond, 394 U.S. 957, 89 S.Ct. 1311, 22 L.Ed.2d 558 (1969).
2
Because of an ambiguity in the record concerning the underlying reason these appellants were denied an opportunity to appeal the trial court's judgment ordering that they be evicted, we now conclude that this appeal should be dismissed, DeBacker v. Brainard, 396 U.S. 28, 90 S.Ct. 163, 24 L.Ed.2d 148 (1969); Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947).
3
After unsuccessfully litigating in the trial court a summary eviction proceeding begun by their landlords, appellants moved in the trial court for a waiver of the bond requirement so that they might appeal. The trial court, apparently of the view that it had the power to waive the statutory bond requirement in an appropriate case, denied appellants' motion on a finding that 'this appeal is being taken for the purpose of delay.' App. 23. Appellants sought review of the trial court's denial of their motion in the Connecticut Circuit Court, and that court denied review and dismissed appellants' appeal. It is unclear from that court's opinion, however, whether it thought the bond requirement of § 52—542 left no room for a waiver,2 or instead based its refusal to hear appellants' appeal in part on the trial court's finding—cited in the Circuit Court's opinion3 that the appeal before it was taken only for purpose of delay. 5 Conn.Cir. 282, 250 A.2d 527 (1968). Appellants' petition to the Supreme Court of Connecticut to certify the case for review was declined.
4
In these circumstances, we deem it inappropriate for this Court to decide the constitutional issue tendered by appellants.
5
Dismissed.
6
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
7
Mr. Justice DOUGLAS, dissenting.
8
This was a summary procedure brought by a landlord1 to obtain possession from his tenants for nonpayment of rent. The trial court found for the landlord and the tenants appealed.
9
Connecticut law requires one taking an appeal in such an action to post a bond with surety. The tenants showed they were financially unable to post the bond and claimed that to require a bond with surety to obtain an appeal would under those circumstances be a denial of equal protection. The trial court refused to waive the requirement for a bond with surety saying that 'the appeal is being taken for the purpose of delay.'
10
The Circuit Court affirmed. The Appellate Division ordered the termination of a stay of execution. 5 Conn.Cir. 282, 250 A.2d 527. The Supreme Court denied certification.
11
I would reverse this judgment. A rich tenant, whatever his motives for appeal, would obtain appellate review. These tenants, because of their poverty, obtain none. I can imagine no clear violation of the requirement of equal protection unless it be Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. Whether the case is criminal or civil, wealth, like race, is a suspect criterion for classification of those who have rights and those who do not. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169; Lee v. Habib, 137 U.S.App.D.C. 403, 424 F.2d 891.2
12
What the merits of the tenants' appeal may be is not for us to say. But the appeal raised questions not easily answered. The terms of the lease stated that it could be terminated by not less than 30 days' notice, while apparently no more than five days' notice was given. A housing authority that is federally assisted has the right by 42 U.S.C. § 1404a (1964 ed., Supp. V), 'to maintain an action or proceeding to recover possession of any housing accommodations operated by it where such action is authorized by the statute or regulations under which such housing accommodations are administered.' There is not a word in appellee's argument that indicates that the federal regulations permit eviction on five days' notice where the lease requires 30 days' notice.
13
The case has been argued as if appellants are 'cheap skates' seeking to get something for nothing. That simply is not true, for the record shows:
14
'Mrs. Faulkner: Your Honor, may I urge upon you that if you grant our motion to have the defendants deposit the rent in court the landlord will not be hurt any further by delay in this proceedings. He will be protected because the monthly rent will be deposited. If he is successful on appeal he will be able to get the rent.
15
'The Court: Do you suggest, if that should be the conclusion, that the clerk could issue an execution upon failure to pay?
16
'Mrs. Faulkner: Yes.
17
'The Court: In other words, you will be willing to stipulate on behalf of your clients that if the rent were not paid that the clerk would, may be empowered forthwith to issue an execution?
18
'Mrs. Faulkner: Yes, Your Honor.
19
'The Court: That appeal to you all right?
20
'Mr. Philbin: Frankly it doesn't. During this period of time, it could take a considerable period of time, even if the tenant pays the fund into the clerk's office, they are not available to the plaintiff and we are still as a practical matter losing the rents during that period of time. Eventually if we prevail and get this money this would be an extended period of time.' App. 19—20.
21
The State of Connecticut represents that tis summary eviction statute is based on an English Act of 1737, 11 Geo. 2, c. 19; and with all respect, the decisions below reflect an 18th century lawyer's approach to the task of protecting a landed interest. Every appeal of course entails delay; and in a sense all appeals are antithetical to the spirit of summary eviction. But we live today under a different regime. Unlike 1737, appellate courts are no longer closed to the poor. Eviction laws emphasize speed for the benefit of landlords. Equal protection often necessitates an opportunity for the poor as well as the affluent to be heard. I disagree with the Court that the issue is not squarely presented in this case.3 I would reverse this judgment.
1
At the time of the decisions below in this case, § 52—542 provided:
'Bond on appeal; stay of execution. When any appeal is taken by the defendant in an action of summary process, he shall give a sufficient bond with surety to the adverse party, to answer for all rents that may accrue or, where no lease had existed, for the reasonable value for such use and occupancy, during the pendency of such appeal, or which may be due at the time of its final disposal; and execution shall be stayed for five days from the date judgment has been rendered, but any Sunday or legal holiday intervening shall be excluded in computing such five days. No appeal shall be taken except within said period, and if an appeal is taken within said period, execution shall be stayed until the final determination of the cause, unless it appears to the judge who tried the case that the appeal was taken for the purpose of delay; and if execution has not been stayed, as hereinbefore provided, execution may then issue, except as otherwise provided in sections 52—543 to 52—548, inclusive.'
This version of § 52—542 has been repealed and a revision substituted effective as of October 1, 1969, see Conn.Pub.Acts No. 296 (1969).
2
The opinion states in one place that '(a) sufficient bond with surety is essential to a valid appeal.' 5 Conn.Cir. 282, 285, 250 A.2d 527, 529 (1968). The court also said that '(w)ant of bond with surety, where bond with surety is by statute a prerequisite of review, furnishes a sufficient ground of dismissal of the appeal.' Id., at 288, 250 A.2d, at 531. At oral argument here, however, the State of Connecticut, appearing as amicus curiae, contended that the statutory bond requirement could, in an appropriate case, be waived. The opinion of the Circuit Court did not expressly pass on this issue, which it appears was not settled under Connecticut law at the time of its decision. A subsequent decision of a Connecticut circuit court suggests that the bond requirement is an absolute and necessary condition for an appeal, but it too did not consider the waiver contention made by the State before this Court, see Housing Authority v. Jones, 5 Conn.Cir. 350, 252 A.2d 465 (1968). Moreover, this decision did not consider the effect of the 1969 amendment to § 52—542, see n. 1, supra.
3
The opinion states in another place:
'On January 19, 1968, the trial court held a special hearing on the defendants' application for waiver of security on appeal. The court found that no rent had been paid since May 1, 1967, nor had the defendants offered to pay any part of the rent due; that the record contained 'dilatory tactics, and (was) loaded with defenses interposed to delay and obstruct the summary process action'; and that the 'appeal is being taken for the purpose of delay.' Accordingly, the court denied the application for waiver of security on appeal.' 5 Conn.Cir., at 284, 250 A.2d, at 529.
The same Circuit Court, in later granting the landlord's motion for an order terminating a stay of execution of the eviction order, expressly affirmed the trial court's findings saying:
'We have before us the entire file in the case. The record and briefs comprise some 140 typewritten pages. Upon a review of the whole matter, we are satisfied that (the trial judge) was justified in concluding, as he did when he denied the defendants' application for a waiver of security on appeal, 'that this appeal is being taken for the purpose of delay." 5 Conn.Cir., at 290, 250 A.2d, at 532.
1
Appellee operates a federally assisted low-rent housing project under the authority of Title V of the Housing Act of 1959, 73 Stat. 679, 42 U.S.C. § 1401 et seq., (1964 ed. and Supp. V) and Conn.Gen.Stat.Rev. § 8—38 et seq.
2
In that case Judge J. Skelly Wright, speaking for the Court of Appeals said:
'The limits of a state's duty affirmatively to equalize a defendant's ability to participate meaningfully in the judicial process are only now being sketched out in the cases. The picture is far from complete, but recent cases dealing with costs in divorce cases and transcripts on appeal from proceedings involving determination of parental rights, coupled with the expansive readings being given to in forma pauperis statutes, all suggest that the trend seems to be toward more, not less, affirmative action. Thus, while most of the cases extending equal protection to the judicial process have involved criminal proceedings, the constitutional mandate that there be no invidious discrimination between indigent and rich litigants is being recognized in civil cases as well.
'The equal protection clause applies to both civil and criminal cases; the Constitution protects life, liberty and property. It is the importance of the right to the individual, not the technical distinction between civil and criminal, which should be of importance to a court in deciding what procedures are constitutionally required in each case. Often a poor litigant will have more at stake in a civil case than in a criminal case.' 137 U.S.App.D.C. at 412—413, 424 F.2d, at 900.
3
On review, the Connecticut court stated that a 'sufficient bond with surety is essential to a valid appeal.' But in the setting of the opinion, as I read it, that meant no more than a description of the normal manner of effecting an appeal. And the Connecticut court's insistence that the tenants did not lack 'the economic power to make themselves heard in a court of law' refers to the fact that they were ably represented by attorneys for the New Haven Legal Assistance Association, Inc., a factor only emphasizing their indigency. Not a word in the opinions of the Connecticut courts suggests that the statutory bond requirement could not be waived.
| 12
|
399 U.S. 517
90 S.Ct. 1958
26 L.Ed.2d 770
UNITED STATESv.Paul E. SWEET.
No. 577.
June 29, 1970.
PER CURIAM.
1
On September 30, 1968, the District Court for the District of Columbia dismissed, 'with prejudice,' an indictment charging appellee Sweet with various crimes under the D.C.Code, on a finding that the Government had not acted promptly enough in bringing the case to trial. The United States appealed this dismissal pursuant to D.C.Code § 23—105* to the Court of Appeals for the District of Columbia Circuit. That court, without making any determination of its jurisdiction under § 23—105, certified the case to this Court pursuant to 18 U.S.C. § 3731, the Federal Criminal Appeals Act.
2
We conclude that certification under § 3731 was not proper in the circumstances of this case. Section 3731 provides in terms for certification only '(i)f an appeal shall be taken pursuant to this section to any court of appeals which, in the opinion of such court, should have been taken directly to the Supreme Court * * *.' (Emphasis added.) The Government's appeal to the Court of Appeals in this case was not pursuant to § 3731 but instead expressly pursuant to D.C.Code § 23—105, which contains no provision allowing transfer to this Court. Moreover, as noted earlier, it appears that the Court of Appeals has made no determination that it lacked jurisdiction to hear the Government's appeal under the broad terms of § 23—105, a statute that we previously held was unaffected in scope by the subsequent passage of the Criminal Appeals Act, United States v. Burroughs, 289 U.S. 159, 53 S.Ct. 574, 77 L.Ed. 1096 (1933).
3
Accordingly, we hold that transfer to this Court was inappropriate and we return the case to the Court of Appeals for further proceedings. It is so ordered.
4
Case returned to Court of Appeals.
5
Mr. Justice DOUGLAS dissents.
6
Mr. Justice MARSHALL took no part in the decision of this case.
*
D.C.Code § 23—105(a) (Supp. III, 1970) provides:
'In all criminal prosecutions the United States or the District of Columbia, as the case may be, shall have the same right of appeal that is given to the defendant, including the right to a bill of exceptions: Provided, That if on such appeal it shall be found that there was error in the rulings of the court during a trial, a verdict in favor of the defendant shall not be set aside.'
| 89
|
399 U.S. 350
90 S.Ct. 2035
26 L.Ed.2d 658
UNITED STATES, Appellant,v.PHILLIPSBURG NATIONAL BANK AND TRUST COMPANY et al.
No. 1093.
Argued April 28, 1970.
Decided June 29, 1970.
[Syllabus from pages 350-351 intentionally omitted]
Daniel M. Friedman, Washington, D.C., for appellant.
Philip L. Roache, Jr., Washington, D.C., and Robert B. Meyner, Newark, N.J., for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This direct appeal under the Expediting Act, 15 U.S.C. § 29, is taken by the United States from a judgment of the District Court for the District of New Jersey dismissing, after full hearing, the Government's complaint seeking to enjoin as a violation of § 7 of the Clayton Act, 15 U.S.C. § 18,1 the proposed merger of appellees, Phillipsburg National Bank and Trust Co. (PNB) and the Second National Bank of Phillipsburg (SNB), both located in Phillipsburg, New Jersey. The Comptroller of the Currency, also an appellee here, approved the merger in December 1967 and intervened in this action to defend it, as he was authorized to do by the Bank Merger Act of 1966, 12 U.S.C. § 1828(c)(7)(D) (1964 ed., Supp. V).2 The Bank Merger Act required that the District Court engage in a two-step process, United States v. First City National Bank of Houston, 386 U.S. 361, 87 S.Ct. 1088, 18 L.Ed.2d 151 (1967); United States v. Third National Bank in Nashville, 390 U.S. 171, 88 S.Ct. 882, 19 L.Ed.2d 1015 (1968), the first of which was to decide whether the merger would violate the antitrust prohibitions of § 7 of the Clayton Act. If the court found that § 7 would be violated, then the Bank Merger Act required that the District Court decide whether 'the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.' 12 U.S.C. § 1828(c)(5)(B). The District Court found that the United States 'failed to establish by a preponderance of the evidence that the proposed merger would have any anti-competitive effect and, further, that even if there were de minimis anticompetitive effect in the narrowly drawn market proposed by the government, such effect is clearly outweighed by the convenience and needs of the community to be served by the merged bank.' 306 F.Supp. 645, 667, (1969). We noted probable jurisdiction. 397 U.S. 933, 90 S.Ct. 945, 25 L.Ed.2d 114 (1970). We reverse. We have concluded from our examination of the record that the District Court erred in its definitions of the relevant product and geographic markets and that these errors invalidate the court's determination that the merger would have no significant anticompetitive effects.
2
* The Factual Setting
3
Phillipsburg is a small industrial city on the Delaware River in the southwestern corner of Warren County, New Jersey. Its population was 18,500 in 1960, 28,500 counting the population of its bordering suburbs. Although the population of the suburbs is and has been increasing, Phillipsburg itself has not grown. Easton, Pennsylvania, lies directly across the river. It had a population of 32,000 in 1960, 60,000 counting its bordering suburbs. Its population growth pattern has paralleled that of Phillipsburg. The cities are linked by two bridges and the testimony was that they are 'in effect * * * one town.'
4
This 'one town' has seven commercial banks, four in Easton and three in Phillipsburg. PNB and SNB are respectively the third and fifth largest in overall banking business. All seven fall within the category of small banks, their assets in 1967 ranging from $13,200,000 to $75,600,000.3 PNB, with assets then of approximately $23,900,000, and SNB with assets of approximately $17,300,000, are the first and second largest of the three Phillipsburg banks. The merger would produce a bank with assets of over $41,100,000, second in size of the six remaining commercial banks in 'one town.'
5
PNB and SNB are direct competitors. Their main offices are opposite one another on the same downtown street. SNB's only branch is across a suburban highway from one of PNB's two branches. Both banks offer the wide range of services and products available at commercial banks, including, for instance, demand deposits, COMPARISON OF PHILLIPSBURG—EASTON BANKS*
TOTAL DEMAND
ASSETS DEPOSITS DEPOSITS LOANS
% % % % % % % %
6
BANK No. of Amt. Phill Phill Amt. Phill Phill Amt. Phill Phill Amt. Phill Phill
7
Offices East. Only East. Only East. Only East. Only
8
Phillipsburg Nat.
9
Bank 3 $23.9 11.2 44.0 $22.4 13.7 44.3 $6.5 11.3 45 $14.5 15.8 48.9
10
Second Nat. Bank 2 17.3 8.1 31.8* 16.0 9.8 31.7 4.6 7.9 31.3 10.5 11.4 35.2
11
(Resulting Bank) 5 41.1 19.3 75.8 38.4 23.4 76.1 11.1 19.2 76.4 24.9 27.3 84.1
Phillipsburg Trust
12
Co. 2 13.2 6.2 24.2 12.1 7.4 23.9 3.4 6.0 23.6 4.7 5.2 15.9
Easton Nat. Bank
13
& Trust 5 75.6 35.5 — 67.7 41.4 — 25.4 44.1 32.6 35.7 —
14
Northampton Nat.
15
Bank 1 23.2 10.9 — 19.0 11.6 — 6.4 11.0 — 6.5 7.1 —
16
Lafayette Trust Bank 2 27.7 13.0 — 24.3 14.8 — 10.8 18.8 — 11.8 12.9 —
17
Nazareth Nat. Bank 1 32.0 15.0 — 2.3 1.4 — 0.5 0.9 — 10.8 11.9 —
18
Totals 16 $212.8 100 100 $163.7 100 100 $57.7 100 100 $91.5 100 100 savings and time deposits, consumer loans, commercial and industrial loans, real estate mortgages, trust services, safe deposit boxes and escrow services. As is characteristic of banks of their size operating in small communities, PNB and SNB have less of their assets in commercial and industrial loans than do larger banks. They emphasize real estate loans and mortgages, and they have relatively more time and savings deposits than demand deposits. Similarly, their trust assets are quite small. In short, both banks are oriented toward the needs of small depositors and small borrowers. Thus, in 1967 75% of PNB's number of deposits and 73% of SNB's were $1,000 or less; 98% of PNB's number of deposits and 97% of SNB's were $10,000 or less. Similarly, 75% of PNB's number of loan accounts and 59% of SNB's were $2,500 or less, and 93% and 87% respectively were $10,000 or less.
19
Both banks serve predominantly Phillipsburg residents. In 1967, although 91.6% of PNB's and 92% of SNB's depositors were residents of 'one town,' only 5.3% of PNB's and 9% of SNB's depositors lived in Easton. And, although 78.6% of PNB's and 87.2% of SNB's number of loans were made to residents of 'one town,' only 14.8% and 11.6% respectively went to persons living in Easton. A witness testified that all of the approximately 8,500 Phillipsburg families deal with one or another of the three commercial banks in that city. The town's businessmen prefer to do the same. The preference for local banks was strikingly evidenced by the fact that PNB and SNB substantially increased their savings deposit accounts during 1962—1967, even though their passbook savings rates were lower than those being paid by other readily accessible banks. At a time when Phillipsburg banks were paying 3.5% interest and Easton banks only 3%, other banks within a 13-mile radius were offering 4%.
20
Phillipsburg-Easton is in the northeastern part of the Lehigh Valley, a region of approximately 1,000 square miles, with a population of 492,000 in 1960 and 38 commercial banks in June 1968. There is considerable mobility among residents of the area for social, shopping, and employment purposes. Customer preference and conservative banking practices, however, have tended to limit the bulk of each commercial bank's business to its immediate geographic area. Neither PNB nor SNB has aggressively sought business outside 'one town.' Similarly, most other banks in the Lehigh Valley have shown little interest in seeking customers in Phillipsburg-Easton. The District Court found that '(t) here is an attitude of complacency on the part of many banks (in the Valley). They are content to continue outmoded banking practice and reluctant to risk changes which would improve service and extend services over a greater area to a larger segment of the population.' 306 F.Supp., at 661.
21
The merger would reduce the number of commercial banks in 'one town' from seven to six, and from three to two in Phillipsburg. The merged bank would have five of the seven banking offices in Phillipsburg and its environs and would be three times as large as the other Phillipsburg bank; it would have 75.8% of the city's banking assets, 76.1% of its deposits, and 84.1% of its loans. Within Phillipsburg-Easton PNB—SNB would become the second largest commercial bank, having 19.3% of the total assets, 23.4% of total deposits, 19.2% of demand deposits, and 27.3% of total loans. This increased concentration would give the two largest banks 54.8% of the 'one town' banking assets, 64.8% of its total deposits, 63.3% of demand deposits, 63% of total loans, and 10 of the 16 banking offices.
22
We entertain no doubt that this factual pattern requires a determination whether the merger passes muster under the antitrust standards of United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963), which were preserved in the Bank Merger Act of 1966. United States v. First National Bank of Houston, supra; United States v. Third National Bank in Nashville, supra. Mergers of directly competing small commercial banks in small communities, no less than those of large banks in large communities, are subject to scrutiny under these standards. Indeed, competitive commercial banks, with their cluster of products and services, play a particularly significant role in a small community unable to support a large variety of alternative financial institutions. Thus, if anything, it is even more true in the small town than in the large city that 'if the businessman is denied credit because his banking alternatives have been eliminated by mergers, the whole edifice of an entrepreneurial system is threatened; if the costs of banking services and credit are allowed to become excessive by the absence of competitive pressures, virtually all costs, in our credit economy, will be affected * * *.' Philadelphia Bank, 374 U.S., at 372, 83 S.Ct., at 1746.
23
When PNB and SNB sought the Comptroller's approval of their merger, as required by the Bank Merger Act, 12 U.S.C. § 1828(c), independent reports on the competitive factors involved were obtained, as required by § 1828(c)(4), from the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Attorney General. All three viewed the problem as involving commercial banking in Phillipsburg-Easton and reported that the merger would have a significantly harmful effect upon competition in that area. The Comptroller nevertheless approved the merger, finding that the agencies had defined the product and geographic markets too narrowly. He treated not Phillipsburg-Easton but most of the Lehigh Valley as the relevant geographic area, and evaluated competition from 34 finance companies and 13 savings and loan institutions, as well as from the more than 30 commercial banks in the area. The Comptroller concluded that the merger would have no significant anticompetitive effect and, further, that it would enable the resultant bank to serve more effectively the convenience and needs of the community.
II
The Product Market
24
In Philadelphia Bank we said that the 'cluster of products (various kinds of credit) and services (such as checking accounts and trust administration) denoted by the term 'commercial banking' * * * composes a distinct line of commerce.' 374 U.S., at 356, 83 S.Ct., at 1737. As indicated, PNB and SNB offer the wide range of products and services customarily provided by commercial banks. The District Court made no contrary finding, and, in its actual evaluation of the effect of the merger upon competition, the court looked only to commercial banking as the relevant product market. See 306 F.Supp., at 655—661.
25
Earlier in its opinion, however, the District Court appeared to reject commercial banking as the appropriate line of commerce. Rather than focusing its attention upon the effect of the merger in diminishing competition among commercial banks, the court emphasized the competition between PNB—SNB and other types of financial institutions—for example, savings and loan associations, pension funds, mutual funds, insurance, and finance companies. The court expressed its view that '(i)n terms of function the defendant banks are more comparable to savings institutions than to large commercial banks,' 306 F.Supp., at 648, and continued: 'So, while the term 'commercial banking' may be used to designate the general line of commerce embracting all bank services, attention must be given in analysis of competition to different groupings within the line of commerce separating those products and services where absence of competition may be significant from those in which competition from many sources is so widespread that no question of significant diminution of competition by the merger could be raised.' 306 F.Supp., at 650—651.
26
The District Court erred. It is true, of course, that the relevant product market is determine by the nature of the commercial entities involved and by the nature of the competition that they face. See, e.g., United States v. Continental Can Co., 378 U.S. 441, 456—457, 84 S.Ct. 1738, 1746—1747, 12 L.Ed.2d 953 (1964). Submarkets such as the District Court defined would be clearly relevant, for example, in analyzing the effect on competition of a merger between a commercial bank and another type of financial institution. But submarkets are not a basis for the disregard of a broader line of commerce that has economic significance. See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 326, 82 S.Ct. 1502, 1524, 8 L.Ed.2d 510 (1962).
27
Philadelphia Bank emphasized that it is the cluster of products and services that full-service banks offer that as a matter of trade reality makes commercial banking a distinct line of commerce. Commercial banks are the only financial institutions in which a wide variety of financial products and services—some unique to commercial banking and others not—are gathered together in one place. The clustering of financial products and services in banks facilitates convenient access to them for all banking customers. For some customers, full-service banking makes possible access to certain products or services that would otherwise be unavailable to them; the customer without significant collateral, for example, who has patronized a particular bank for a variety of financial products and services is more likely to be able to obtain a loan from that bank than from a specialty financial institution to which he turns simply to borrow money. In short, the cluster of products and services termed commercial banking has economic significance well beyond the various products and services involved.4
28
Customers of small banks need and use this cluster of services and products no less than customers of large banks. A customer who uses one service usually looks to his bank for others as well, and is encouraged by the bank to do so. Thus, as was the case here, customers are likely to maintain checking and savings accounts in the same local bank even when higher savings interest is available elsewhere. See also Philadelphia Bank, supra, 374 U.S., at 357 n. 34, 83 S.Ct., at 1738. This is perhaps particularly true of banks patronized principally by small depositors and borrowers for whom the convenience of one-stop banking and the advantages of a good relationship with the local banker—and thus of favorable consideration for loans—are especially important. See id., at 358 n. 35, 369, 83 S.Ct., at 1738.
29
Moreover, if commercial banking were rejected as the line of commerce for banks with the same or similar ratios of business as those of the appellee banks, the effect would likely be to deny customers of small banks—and thus residents of many small towns the antitrust protection to which they are no less entitled than customers of large city banks. Indeed, the need for that protection may be greater in the small town since, as we have already stated, commercial banks offering full-service banking in one institution may be peculiarly significants to the economy of communities whose population is too small to support a large array of differentiated savings and credit businesses.
III
The Relevant Geographic Market
30
In determining the relevant geographic market, we held in Philadelphia Bank, supra, at 357, 83 S.Ct., at 1738, that '(t)he proper question to be asked * * * is not where the parties to the merger do business or even where they compete, but where, within the area of competitive overlap, the effect of the merger on competition will be direct and immediate. * * * This depends upon 'the geographic structure of suppliercustomer relations." More specifically we stated that 'the 'area of effective competition in the known line of commerce must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies. * * *" Id., at 359, 83 S.Ct., at 1739.
31
The District Court selected as the relevant geographic market an area approximately four times as large as Phillipsburg-Easton, with a 1960 population of 216,000 and 18 banks. The area included the city of Bethlehem, Pennsylvania. 306 F.Supp., at 652—653, 656 658. The court explicitly rejected the claim of the United States that Phillipsburg-Easton constitutes the relevant market. We hold that the District Court erred.
32
Commercial realities in the banking industry make clear that banks generally have a very localized business. We observed in Philadelphia Bank, supra, at 358, 83 S.Ct., at 1738, that '(i)n banking, as in most service industries, convenience of location is essential to effective competition. Individuals and corporations typically confer the bulk of their patronage on banks in their local community; they find it impractical to conduct their banking business at a distance. * * * The factor of inconvenience localizes banking competition as effectively as high transportation costs in other industries.' In locating 'the market area in which the seller operates,' it is important to consider the places from which it draws its business, the location of its offices, and where it seeks business. As indicated, the appellee banks' deposit and loan statistics show that in 1967 they drew over 85% of their business from the Phillipsburg-Easton area and, of that, only about 10% from Easton. It has been noted that nearly every family in Phillipsburg deals with one of the city's three banks, and the town's businessmen prefer to do the same. All of PNB and SNB's banking offices are located within Phillipsburg or its immediate suburbs; although the city is sufficiently small that there is easy access to its downtown area where the banks have their main offices, the banks found it necessary to open branches in the suburbs because, as a witness testified, that is 'where the customers are.' See also Philadelphia Bank, supra, at 358 n. 35, 83 S.Ct., at 1738. The 'one town' banks generally compete for deposits within a radius of only a few miles.
33
The localization of business typical of the banking industry is particularly pronounced when small customers are involved. We stated in Philadelphia Bank, supra, at 361, 83 S.Ct., at 1740, that 'in banking the relevant geographical market is a function of each separate customer's economic scale'—that 'the smaller the customer, the smaller is his banking market geographically,' id., at 359 n. 36, 83 S.Ct., at 1739. Small depositors have little reason to deal with a bank other than the one most geographically convenient to them. For such persons, geographic convenience can be a more powerful influence than the availability of a higher rate of interest at a more distant, though still nearby, bank. The small borrower, if he is to have his needs met, must often depend upon his community reputation and upon his relationship with the local banker. PNB, for instance, has made numerous unsecured loans on the basis of character, which are difficult for local borrowers to get elsewhere. And, as we said in Philadelphia Bank, supra, at 369, 83 S.Ct., at 1745, '(s)mall businessmen especially are, as a practical matter, confined to their locality for the satisfaction of their credit needs. * * * If the number of banks in the locality is reduced, the vigor of competition for filling the marginal small business borrower's needs is likely to diminish.' Thus, the small borrower frequently cannot 'practicably turn for supplies' outside his immediate community; and the small depositor—because of habit, custom, personal relationships, and, above all, convenience—is usually unwilling to do so. See id., at 357 n. 34, 83 S.Ct., at 1738. The patrons of PNB and SNB, of course, are small customers: almost 75% of the banks' deposits are for amounts less than $1,000, and virtually all of their loans are for less than $10,000, most falling below $2,500.
34
We observed in Philadelphia Bank, supra, at 361, 83 S.Ct., at 1740, that we were helped to our conclusion regarding geographic market 'by the fact that the three federal banking agencies regard the area in which banks have their offices as an 'area of effective competition." Here the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Attorney General found that a relevant banking market exists in the Phillipsburg-Easton area and that the proposed merger's competitive effect should be judged within it.5 We agree. We find that the evidence shows that Phillipsburg-Easton constitutes a geographic market in which the proposed merger's effect would be 'direct and immediate.' It is the market area in which PNB and SNB operate, and, as a practical matter, it is the area in which most of the merging banks' customers must, or will, do their banking. Thus, we hold that the District Court mistakenly rejected the Government's contention that Phillipsburg-Easton is an appropriate 'section of the country' under § 7.
35
Appellee banks argue that Phillipsburg-Easton 'cannot conceivably be considered a 'market' for antitrust purposes,' on the ground that it is not an 'economically significant section of the country.' They cite our language in Brown Shoe, supra, 370 U.S., at 320, 82 S.Ct., at 1521, that '(t)he deletion of the word 'community' in the original (Clayton) Act's description of the relevant geographic market is another illustration of Congress' desire to indicate that its concern was with the adverse effects of a given merger on competition only in an economically significant 'section' of the country.' In Brown Shoe, however, we found 'relevant geographic markets' in cities 'with a population exceeding 10,000 and their environs.' Id., at 339, 82 S.Ct., at 1531. Phillipsburg-Easton and their immediate environs had a population of almost 90,000 in 1960. Seven banks compete for their business. This market is clearly an economically significant section of the country for the purposes of § 7.
IV
The Anticompetitive Effects of the Merger
36
We turn now to the ultimate question under § 7: whether the effect of the proposed merger 'may be substantially to lessen competition.' We pointed out in Philadelphia Bank, supra, 374 U.S., at 362, 83 S.Ct., at 1741, that a prediction of anticompetitive effects 'is sound only if it is based upon a firm understanding of the structure of the relevant market; yet the relevant economic data are both complex and elusive. * * * And unless businessmen can assess the legal consequences of a merger with some confidence, sound business planning is retarded. * * * So also, we must be alert to the danger of subverting congressional intent by permitting a too-broad economic investigation. * * * And so in any case in which it is possible, without doing violence to the congressional objective embodied in § 7, to simplify the test of illegality, the courts ought to do so in the interest of sound and practical judicial administration.' We stated in Brown Shoe, supra, 370 U.S., at 315, 82 S.Ct., at 1518, that '(t)he dominant theme pervading congressional consideration of the 1950 amendments (to § 7) was a fear of what was considered to be a rising tide of economic concentration in the American economy.' In Philadelphia Bank, supra, 374 U.S., at 363, 83 S.Ct., at 1741, we held that '(t)his intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger in not likely to have such anticompetitive effects.' That principle is applicable to this case.
37
The commercial banking market in Phillipsburg-Easton is already concentrated. Of its seven banks, the two largest in 1967 Easton National Bank and Lafayette Trust Co.—had 49% of its total banking assets, 56% of its total deposits, 49% of its total loans and seven of its 16 banking offices. Easton National is itself the product of the merger of two smaller banks in 1959. The union of PNB—SNB would, in turn, significantly increase commercial banking concentration in 'one town.' The combined bank would become the second largest in the area, with assets of over $41,100,000 (19.3% of the area's assets), total deposits of $38,400,000 (23.4%), and total loans of $24,900,000 (27.3%). The assets held by the two largest banks would then increase from 49% to 55%, the deposits from 56% to 65%, the loans from 49% to 63%, and the banking offices from seven to 10. The assets held by the three largest banks would increase from 60% to 68%, the deposits from 70% to 80%, the loans from 64% to 76%, and the banking offices from 10 to 12. In Phillipsburg alone, of course, the impact would be much greater: banking alternatives would be reduced from three to two; the resultant bank would be three times larger than the only other remaining bank, and all but two of the banking offices in the city would be controlled by one firm. Thus, we find on this record that the proposed merger, if consummated, 'is * * * inherently likely to lessen competition substantially.' Cf. Philadelphia Bank, supra; Nashville Bank, supra; United States v. Von's Grocery Co., 384 U.S. 270, 86 S.Ct. 1478, 16 L.Ed.2d 555 (1966); United States v. Pabst Brewing Co., 384 U.S. 546, 86 S.Ct. 1665, 16 L.Ed.2d 765 (1966).
38
Appellee banks argue that they are presently so small that they lack the personnel and resources to serve their community effectively and to compete vigorously. Thus, they contend that the proposed merger could have procompetitive effects: by enhancing their competitive position, it would stimulate other small banks in the area to become more aggressive in meeting the needs of the area and it would enable PNB—SNB to meet an alleged competitive challenge from large, outside banks. Although such considerations are certainly relevant in determining the 'convenience and needs of the community' under the Bank Merger Act, they are not persuasive in the context of the Clayton Act. As we said in Philadelphia Bank, supra, 374 U.s., at 371, 83 S.Ct., at 1745, for the purposes of § 7, 'a merger the effect of which 'may be substantially to lessen competition' is not saved because, on some ultimate reckoning of social or economic debits and credits, it may be deemed beneficial.'
39
The District Court stated: 'Ease of access to the market is also a factor that deserves consideration in evaluating the anticompetitive effects of a merger. It is not difficult for a small group of business men to raise sufficient capital to establish a new small bank when the banking needs of the community are sufficient to warrant approval of the charter.' 306 F.Supp., at 659. Appellees, however, made no attempt to show that a group of businessmen would move to start a new bank in Phillipsburg-Easton, should the proposed merger be approved. The banking laws of New Jersey and Pennsylvania severely restrict the capacity of existing banks to establish operations in 'one town.' Relying on a recent New Jersey banking statute, N.J. Stat. Ann. § 17:9A—19 (Supp.1969), appellees contend that '(t)here is no doubt that the three banks in Phillipsburg * * * are fair game for attractive merger proposals by the large banks from Bergen, Passaic, Essex, Hudson and Morris Counties.' But, as the District Court pointed out, 'Large city banks in Newark and in other well populated cities in the counties mentioned can now establish branch banks in Warren County (only) in any municipality in which no banking institution has its principal office or a branch office and in any municipality which has a population of 7,500 or more where no banking institution has its principal office * * *.' 306 F.Supp., at 660. Thus, mergers under § 17:9A—19 are possible in Phillipsburg only with the three banks now in existence there. Accordingly, mergers under this statute would not bear upon the anticompetitive effects in question, because they could not increase the number of banking alternatives in 'one town.' Since the decision below, the Court of Appeals for the Third Circuit has held that a national bank may avoid the New Jersey bar against branching, N.J. Stat. Ann. § 17:9A—19(B)(3) (Supp.1969), by moving its headquarters into a protected community, such as Phillipsburg, while simultaneously reopening its former main office as a branch. Ramapo Bank v. Camp, 3 Cir., 425 F.2d 333 (1970). We intimate no view upon the correctness of that decision. We do observe, however, that the District Court decision in Ramapo Bank, affirmed in the recent Court of Appeals ruling, was handed down almost five months before the present District Court decision. Both opinions were written by the same District Judge. Accordingly, had an outside national bank been interested in moving its main office to Phillipsburg, no doubt this fact would have been made known to the District Court or to this Court. Nothing in the present record suggests that any national bank now located outside Phillipsburg will apply to move its main office to that city; therefore, on the record before us, that possibility does not bear on the anticompetitive effects of the merger.
V
40
Meeting the Convenience and Needs of the Community
41
The District Court's errors necessarily require reexamination of its conclusion that any anticompetitive effects caused by the proposed merger would be outweighed by the merger's contribution to the community's convenience and needs. The District Court's conclusion, moreover, is undermined by the court's erroneous application of the convenience-and-needs standard. In the balancing of competitive effect against benefit to community convenience and needs, '(t)o weigh adequately one of these factors against the other requires a proper conclusion as to each.' Nashville Bank, supra, 390 U.S., at 183, 88 S.Ct., at 890.
42
The District Court misapplied the convenience-and-needs standard by assessing the competitive effect of the proposed merger in the broad, multi-community area that it adopted as the relevant geographic market, while assessing the merger's contribution to community convenience and needs in Phillipsburg alone. Appellees argue that '(n)owhere does the district court equate 'community' with Phillipsburg.' We disagree. In determining convenience and needs, the court stated that '(t)here are two banking services which must be improved in the area to satisfy present and rapidly increasing need. Lending limits of the small banks are not sufficient to satisfy loan requirements for substantial industrial and commercial enterprise. * * * There is a definite lack of competent trust service and * * * servicing of substantial trust accounts must be obtained outside the community * * *. If the merger is approved, the merged bank can establish (loan and trust) departments and staff them with personnel capable of the kind of loan and trust service that patrons must, in large part, now seek outside the community.' 306 F.Supp., at 661. The court then cited examples of persons in Phillipsburg who found the existing loan and trust services in that city inadequate. Id., at 662—666. Since several Easton banks already provide appreciable trust services and have legal lending limits greater than those of PNB—SNB combined, it is obvious that the court was primarily concerned with loan and trust possibilities in Phillipsburg. We hold, however, that evaluation must be in terms of the convenience and needs of Phillipsburg-Easton as a whole.
43
Section 1828(c)(5)(B) provides that 'any * * * proposed merger transaction whose effect in any section of the country may be substantially to lessen competition * * * (shall not be approved by the responsible banking agency) unless it finds that the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.' Representative Reuss explained during debate on the Bank Merger Act that '(w)hat is meant by (§ (c)(5)(B)) and what counts is the effect of the transaction in meeting the needs and conveniences of the community which that particular sought-to-be merged bank serves.' 112 Cong.Rec. 2457. He indicated that 'in a community having say, 10 banks of relatively equal size, and where one of the banks was in difficulty—say with regard to a problem of management succession the 'convenience and needs of the community' would be best served if that bank were permitted to merge with one of the other 9 banks despite some resulting anti-competitive effects.' Id., at 2445.
44
These comments support our conclusion that the geographic market—the 'community which that particular sought-to-be merged bank serves'—is the area in which convenience and needs must be evaluated. Commercial realities, moreover, make clear that the 'community to be served' is virtually always as large, or larger, than the geographic market. Although the area in which merging banks compete while they are still separate entities is often smaller than the area in which the resultant bank will compete, it is rate that the community served by a merged bank is smaller than that served by its constituent firms prior to their merger. Further, evaluation of convenience and needs in an area smaller than the geographic market could result in the approval of a merger that, though it has anticompetitive effects throughout the market, has countervailing beneficial impact in only part of the market. Under the approach taken by the District Court, anticompetitive effects in some parts of a relevant geographic market could be justified by community benefits in other parts of it. Such a result would subvert the clear congressional purpose in the Bank Merger Act that convenience and needs not be assessed in only a part of the community to be served, and such a result would unfairly deny the benefits of the merger to some of those who sustain its direct and immediate anticompetitive effects.6 Cf. Philadelphia Bank, supra, 374 U.S., at 370, 83 S.Ct., at 1745. Accordingly, we hold that the District Court erred in failing to assess the proposed merger's effect in terms of the convenience and needs of the relevant geographic market.
45
We held in Nashville Bank, supra, 390 U.s., at 190, 88 S.Ct., at 893, that 'before a merger injurious to the public interest is approved, a showing (must) be made that the gain expected from the merger cannot reasonably be expected through other means.' Thus, before approving such a merger, a district court must 'reliably establish the unavailability of alternative solutions to the woes' faced by the merging banks. Ibid. Accordingly, on remand, the District Court should consider in concrete detail the adequacy of attempts by PNB and SNB to overcome their loan, trust, and personnel difficulties by methods short of their own merger. Beyond careful consideration of alternative methods of serving the convenience and needs of Phillipsburg-Easton, the court should deal specifically with whether the proposed merger is likely to benefit all seekers of banking services in the community, rather than simply those interested in large loan and trust services.
46
The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion. No costs shall be assessed against appellee banks.
47
It is so ordered.
48
Judgment reversed and case remanded.
49
Mr. Justice STEWART took no part in the decision of this case, and Mr. Justice BLACKMUN took no part in its consideration or decision.
50
Mr. Justice HARLAN, with whom The CHIEF JUSTICE joins, concurring in part and dissenting in part.
51
My first reaction to this case, from the vantage point of what is depicted in the record and briefs, was wonderment that the Department of Justice had bothered to sue. How could that agency of government, I asked myself, be efficiently allocating its own scarce resources if it chose to attack a merger between two banks as small as those involved in this case? When compared with any of the 10 prior cases in which a bank merger was contested, the total assets of the bank that would result from this merger are minuscule.1 Moreover, measured by trust assets, the Phillipsburg National Bank in 1968 ranked 1346th and the Second National Bank of Phillipsburg 2429th out of the approximately 3100 banks with trust powers in the United States. If the two banks were merged, the resulting bank would have ranked 1323d—only 23 places ahead of the Phillipsburg National alone.2 With tigers still at large in our competitive jungle, why should the Department be taking aim at such small game?
52
The Court's disposition of this case provides justification enough from the Department's point of view. After today's opinion the legality of every merger of two directly competing banks—no matter how small—is placed in doubt if a court, through what has become an exercise in 'antitrust numerology,' United States v. First National Bank & Trust Co. of Lexington, 376 U.S. 665, 673, 84 S.Ct. 1033, 1037, 12 L.Ed.2d 1 (1964) (Harlan, J., dissenting), concludes that the merger 'produces a firm controlling an undue percentage share of the relevant market,' ante, at 366.
53
* Under the Bank Merger Act it is now settled that a court must engage in a two-step process in order to decide whether a proposed merger passes muster. First, the effect of the merger upon competition must be evaluated, applying the standards under § 7 of the Clayton Act, United States v. Third National Bank in Nashville, 390 U.S. 171, 181—183, 88 S.Ct. 882, 889—890, 19 L.Ed.2d 1015 (1968). If there would be a violation, the court must then proceed to decide whether 'the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.'3
54
For the first stage of the analysis, the Court appears to decide whether the effect of this proposed merger 'may be substantially to lessen competition' by the following process: First, the Court defines the relevant product market as commercial banking. Second, it defines the geographic market as Phillipsburg-Easton.4 The Court next calculates the percentage share of this market that would be held by the proposed merged bank,5 and the resulting changes in 'concentration,' as measured by the percent of market held by the two largest6 and three largest banks.7 It appears that from the magnitude of these figures alone, the Court concludes that the proposed merger would 'significantly increase commercial banking concentration' in an 'already concentrated' market.8 On the basis of the magnitude of these figures alone the Court concludes that this merger would violate § 7 of the Clayton Act.
55
I have voiced my disagreement before, particularly in the banking field, with the "numbers game' test for determining Clayton Act violations', United States v. Third National Bank, supra, at 193, 88 S.Ct., at 895 (Harlan, J., concurring in part and dissenting in part); see United States v. First National Bank, supra, 376 U.S., at 673, 84 S.Ct., at 1037 (Harlan, J., dissenting). Although I consider myself bound by the Court's decision in Philadelphia Bank, see United States v. Third National Bank, supra, 390 U.S., at 193, 88 S.Ct., at 895, I cannot concur in the simplistic way in which the Court applies the numbers test here.
56
Philadelphia Bank did not hold that all bank mergers resulting in an 'undue percentage share of the relevant market' and 'in a significant increase in the concentration of firms in that market,' 374 U.S., at 363, 83 S.Ct., at 1741, necessarily violated § 7 of the Clayton Act. Instead that case established a rule by which the percentage figures alone do no more than 'raise an inference,' id., at 365, 83 S.Ct., at 1742, that the merger will significantly lessen competition. Philadelphia Bank left room, however, for the merging companies to show that the 'merger is not likely to have such anti-competitive effects,' id., at 363, 83 S.Ct., at 1741. In short, under the Philadelphia Bank test, the percentage figures create a rebuttable presumption of illegality.
57
In this case there are two aspects of market structure, each largely ignored by the Court, that I think might well rebut the presumption raised by the percentage figures that the merger will have a significant effect on competition. Consequently, I think the appellees should on remand be given an opportunity to show by 'clear evidence' that despite the percentage figures, the anticompetitive effects of this merger are not significant.
II
58
The first of these aspects of the market structure concerns 'entry.' The percentage figures alone tell nothing about the conditions of entry in a particular market. New entry can, of course, quickly alleviate 'undue' concentration. And the possibility of entry can act as a substantial check on the market power of existing competitors.
59
Entry into banking is not simply governed by free market conditions, of course, for it is also limited by regulatory laws. When the complaint in this case was filed, entry into the Phillipsburg-Easton market was very much restricted by both the Pennsylvania and New Jersey banking statutes.9 However, a recent change in the New Jersey statute10 together with a new opinion of the Court of Appeals for the Third Circuit rendered since the trial in this case,11 appears to increase considerably the possibility of new entry into Phillipsburg. For the first time it may be possible for any national bank already operating anywhere in the northern region of New Jersey to open, under certain circumstances, a new office in Phillipsburg.12
60
If one assumes the regulatory barriers to entry have been permanently lowered, it would seem that the competitive significance of this merger may well be considerably overstated by the percentage figures alone. Certainly new entry into the market involved in this case would be both easier and of much greater competitive significance than in the Philadelphia Bank market. In a market dominated by banks of enormous absolute size, with assets of hundreds of millions and even billions of dollars, it is of course unlikely that a new entrant will quickly become a substantial competitive force. The same is not true, however, of a market in which the largest competitor is, in absolute terms, rather small.
61
In short, I think the significance of the percentage figures recited in the Court's opinion can only be fully evaluated after consideration of the present entry conditions in the Phillipsburg-Easton area. Because of the new developments in the New Jersey regulation of banking that have occurred since the trial of this case, I think it inexcusable of the majority not to give the appellee banks an opportunity on remand to demonstrate whether there is now a substantial possibility of new entry, and if so, what effect that possibility would have on the market power of the combined bank.13
III
62
Quite apart from entry, there is another aspect of the market structure relevant here that affects the significance of the percentage figures cited by the Court. Relying on Philadelphia Bank, the Court concludes that the 'cluster of products * * * and services * * * denoted by the term 'commercial banking' * * * composes a distinct line of commerce' for purposes of this case. The Court eschews all analysis of the composition of the products and services offered by appellee banks, however. The Court thus manages to ignore completely the extent to which competition from savings and loan companies, mutual savings banks, and other financial institutions that are not commercial banks affects the market power of the appellee banks.
63
A closer analysis of what the merging banks here do, plainly shows that they have more in common with savings and loan institutions and mutual savings banks than with the big city commercial banks considered in Philadelphia Bank. In particular, a much higher percentage of the total deposits of the banks here comes from savings accounts as opposed to demand deposits than is true of big city commercial banks.14 Moreover, a much larger proportion of the total loans of these small banks is in the form of real estate or personal loans as opposed to commercial loans.15 Savings and loan companies, savings banks, credit unions, etc., are of much greater competitive significance in this market than in the market analyzed in Philadelphia Bank. For in this market, these nonbank financial institutions offer close substitutes for the products and services that are most important to the appellee banks.
64
In choosing its product market, the Court largely ignores these subtleties and instead emphasizes the cluster of services and products which in the Court's words 'makes commercial banking a distinct line of commerce.' Because the Court does not explain why that combination has any substantial synergistic cf. Anderson's-Black Rock, Inc. v. Pavement Salvage Co., Inc., 396 U.S. 57, 61, 90 S.Ct. 305, 308, 24 L.Ed.2d 258 (1969), the Court's choice of a product market here can be seriously questioned. Certainly a more discriminating conclusion concerning the antitrust implication of this merger could be made if separate concentration percentages were calculated for each of the important products and services provided by appellee banks, and then an overall appraisal made of the effect of this merger on competition.
65
In any event, even assuming that for purposes of a preliminary analysis one were to use commercial banking as the line of commerce for the antitrust analysis—if only for the sake of convenience—that does not excuse the majority's failure to consider the competitive realities of the case in appraising the significance of the concentration percentages thus calculated, see United States v. First National Bank of Maryland, 310 F.Supp. 157, 175 (D.C.Md.1970). The bare percentages themselves are not affected by the presence or absence of significant competition for important bank products or services from firms outside commercial banking. By treating these percentages as no different from those found in Philadelphia Bank, the Court blithely assumes that percentages of the same order of magnitude represent the same degree of market power, irrespective of the amount of competition from neighboring markets.
66
Seen another way, the Court's mode of analysis makes too much turn on the all-or-nothing determination that the relevant product market either includes or does not include products and services of savings and loan companies, and other competition. A far better approach would be to recognize the fact that a product or geographic market is at best an approximation—necessary to calculate some percentage figures. In evaluating such figures, however, the Court should not decide the case simply by the magnitude of the numbers alone—it should give the appellees on remand an opportunity to demonstrate that the numbers here significantly 'overstate' the competitive offects of this merger because of the approximate nature of the assumptions underlying the Court's definition of the relevant market.
67
In short, I think that this case should be remanded to the District Court so that it might re-evaluate whether, in light of the entry conditions and existing competition from savings and loan and similar financial institutions, the merger can fairly be said to threaten a substantial loss of competition in the Phillipsburg-Easton area. Cf. White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963). If the District Court concludes that the merger would so threaten competition, it should then, in the manner the Court's opinion suggests, proceed to decide whether there are countervailing public interest advantages.
1
Section 7, as amended by the 1950 Celler-Kefauver Antimerger Act, provides in pertinent part: 'No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.'
2
The merger was automatically stayed by the filing of this action. 12 U.S.C. § 1828(c)(7)(A) (1964 ed., Supp. V). The District Court continued the statutory stay pending disposition of the appeal.
3
See table below. The table, in millions of dollars, as of December 30, 1967, shows the relationship of the seven banks to one another in terms of assets, total deposits, demand deposits, and loans. The Nazareth National Bank has one branch in Easton. While the deposit figures are segregated for this branch, the asset and loan figures are not. Thus, the total asset and loan figures for the Nazareth National Bank are used in this table, rather than those attributable to its Easton branch. The table, accordingly, understates the percentages attributable to the other banks, including the appellees.*
*
The figures in this table will not always add to the stated total because of rounding.
4
See also our statement in Philadelphia Bank, supra, at 356 357, 83 S.Ct. at 1737, that '(s)ome commercial banking products or services are so distinctive that they are entirely free of effective competition from products or services of other financial institutions; the checking account is in this category. Others enjoy such cost advantages as to be insulated within a broad range from substitutes furnished by other institutions. For example, commercial banks compete with small-loan companies in the personal-loan market; but the small-loan companies' rates are invariably much higher than the banks' * * *. Finally, there are banking facilities which, although in terms of cost and price they are freely competitive with the facilities provided by other financial institutions, nevertheless enjoy a settled consumer preference, insulating them, to a marked degree, from competition; this seems to be the case with savings deposits.'
5
The Government initially sought to show that Phillipsburg alone constituted the relevant geographic market. After the District Court rejected that proposal, the Government supported Phillipsburg-Easton and environs as the appropriate market and continues to do so in this Court.
6
We do not suggest that it would be inappropriate to focus on the convenience and needs of a segment of the geographic market so long as benefits to that segment would accrue to the entire market. We intimate no view of the weight to be attached to benefits that may accrue to areas beyond the relevant market.
1
The Appendix (at 831) contains the following table (somewhat modified herein) showing, inter alia, the total assets of the resulting banks in the contested bank merger cases initiated up to the time of suit in this case.
CONTESTED SECTION 7 BANK MERGER CASES: ASSETS
Assets
Case (in millions)
1
Manufacturers Hanover..... $6,001.8
2
Continental Illinois....... 3,248.3
3
Crocker-Citizens........... 3,217.4
4
California Bank—First Western. 2,421.2
5
Philadelphia National Bank. 1,805.3
6
Provident—Central Penn..... 1,069.1
7
First City—Southern National (Houston). 1,042.9
8
Mercantile Trust—Security Trust. 1,040.4
9
Third National—Nashville Bank & Trust. 428.2
10
First National—Cooke Trust Company. 389.7
11
Phillipsburg National—Second National. 41.1
2
App. 840.
3
Bank Merger Act of 1966, amending § 18(c)(5)(B) of the Federal Deposit Insurance Act, 12 U.S.C. § 1828(c)(5)(B) (1964 ed., Supp. V). I do not quarrel with the Court's conclusion that the District Court improperly analyzed 'convenience and needs,' in the second stage, because of its erroneous choice of Phillipsburg alone as the relevant 'community.'
4
I accept the Court's conclusion that the appropriate geographic market here is the Phillipsburg-Easton area, and agree that the geographic market designated by the District Court was too broad, given the small size of the banks involved in this case.
5
PERCENTAGE OF PHILLIPSBURG—EASTON MARKET HELD BY MERGED BANKS
Bank Assets 19.3
Total Deposits 23.4
Total Loans 27.3
6
PERCENTAGE OF PHILLIPSBURG—EASTON MARKET HELD BY TWO LARGEST BANKS
Before After Change
Bank Assets 49 55 6
Total Deposits 56 65 9
Total Loans 49 63 14
7
PERCENTAGE OF PHILLIPSBURG—EASTON MARKET HELD BY THREE LARGEST BANKS
Before After Change
Bank Assets 60 68 8
Total Deposits 70 80 10
Total Loans 64 76 12
8
It is significant to note that the percentage figures in this case are themselves smaller, on the whole, than those found either in the Philadelphia Bank case supra, or Third National Bank case, supra.
PERCENTAGE OF TOTAL ASSETS IN RELEVANT MARKET HELD BY MERGED BANKS
This case 19.3
Third Nat. Bank 38.4
Philadelphia Bank (at least 30%) 36*
PERCENTAGE OF TOTAL ASSETS IN RELEVANT MARKET HELD BY TWO LARGEST BANKS
Before After
This case 49 55
Third Nat. Bank 72 77
Philadelphia Bank 44 59
PERCENTAGE OF TOTAL ASSETS IN RELEVANT MARKET HELD BY THREE LARGEST BANKS**
Before After
This case 60 68
Third Nat. Bank 93 98
*
For purposes of its holding in Philadelphia Bank, the Court 'shade[d]' the 36% figure downward to 'at least 30%' to compensate for the approximate nature of certain assumptions implicit in the manner in which it calculated the market shares, see Philadelphia Bank, supra, 374 U.S. at 364 and n. 40, 83 S.Ct., at 1742.
**
Because Philadelphia Bank involved a merger between the second and third largest banks, the percentage held by the three largest was not used in that case.
9
New Jersey, at the time suit was filed here, (1) prohibited the merger of banks located in different counties; (2) restricted branch banking to the county in which the parent bank was located; (3) precluded branching altogether into cities in which another bank had a 'principal office' (i.e., home office), or into communities in which a bank or branch was already located. See N.J.Stat.Ann. § 17:9A—19(B) (1963).
10
On July 17, 1969, a new banking statute came into effect that regulates, not on the basis of counties, but instead on the basis of three banking districts, of which Phillipsburg is in the first. District-wide de novo branching and mergers are authorized, subject to a 'principal office' protection provision, N.J.Stat.Ann. § 17:9A—19(B)(3) (Supp.1970).
11
Ramapo Bank v. Camp, 425 F.2d 333 (C.A.3d Cir. 1970). I intimate, of course, no views concerning the correctness of this decision.
12
Because Phillipsburg is the location of a home office, the home-office protection proviso might be thought to preclude de novo branching there. However, the Ramapo Bank decision of the Third Circuit, supra, held that a national bank, by moving its main office into a protected community while simultaneously reopening its former main office as a branch, could avoid the operation of the 'home-office protection' proviso of the New Jersey law. Under Ramapo, therefore, it is possible for any national bank willing to shift its 'home office' to Phillipsburg to enter that market.
13
It is simply untenable for the majority to ignore the bearing of this issue on the 'anticompetitive effect' of this merger on the ground that '(n) othing in the present record suggests that any national bank now located outside Phillipsburg will apply to move its main office to that city,' ante, at 369. At the time the present record was developed, existing law rendered that inquiry irrelevant. Moreover, the District Court found, quite apart from entry, that the proposed merger had no significant anticompetitive effect. It is therefore quite inappropriate for the majority to suggest that the failure of the District Court to reopen the record in light of its Ramapo decision is of any significance.
14
TIME AND SAVINGS DEPOSITS AND DEMAND DEPOSITS AS PERCENTAGE OF TOTAL DEPOSITS
Time & Savings Demand
PNB 71 29
SNB 72 28
Large Bank Average* 45 55
*
The average for 341 banks with assets over $100 million which submit weekly reports to the Federal Reserve Board.
Calculated from App. 788.
15
REAL ESTATE LOANS AND PERSONAL LOANS AS PERCENTAGE OF TOTAL LOANS
Real Estate Personal Combined
PNB 54 28 82
SNB 72 14 86
Large Bank Average** 14 8 22
**
See n. 14, supra.
Calculated from App. 788.
| 78
|
399 U.S. 392
90 S.Ct. 2054
26 L.Ed.2d 691
NEW HAVEN INCLUSION CASES.*
Nos. 914—917, 920, 921, 1038, and 1057.
Argued March 30, 1970.
Decided June 29, 1970.
[Syllabus from pages 392-397 intentionally omitted]
Whitney North Seymour, New York City, for Manufacturers Hanover Trust co.
Lester C. Migdal, New York City, for First Mortgage 4% Bondholders Committee.
Joseph Auerbach, Boston, Mass., for Richard Joyce Smith, Trustee of the Property of the New York, New Haven and Hartford Railroad Co., et al.
Leonard S. Goodman, Washington, D.C., for United States and Interstate Commerce Commission.
Hugh B. Cox, Washington, D.C., for Penn Central Co.
Mr. Justice STEWART delivered the opinion of the Court.
1
These cases represent the latest state of the litigation arising from the merger of the Pennsylvania and New York Central railroads, which we upheld two Terms ago in the Penn-Central Merger and N & W Inclusion Cases, 389 U.S. 486, 88 S.Ct. 602, 19 L.Ed.2d 723. A condition of that merger was Penn Central's promise to take in the New York, New Haven & Hartford Railroad Company as an operating entity—a promise that Penn Central fulfilled on December 31, 1968, 11 months after its own formation. The ultimate question presented by the cases now before us is the price Penn Central must pay for the assets of the New Haven.*
2
* 1. The Penn Central. The proposed combination of the Pennsylvania and New York Central railroads first came under consideration by the parties and the Interstate Commerce Commission more than 12 years ago, a decade prior to its eventual consummation.1 The two railroads formally sought permission to merge under the Interstate Commerce Act, 49 U.S.C. § 1 et seq., on March 9, 1962.2 On April 6, 1966, the Commission authorized the merger of the two roads.3 The union of the two carriers was the largest railroad merger in the history of the Nation,4 bringing together the companies that 'dominate rail transportation in the Northeast.'5 In 1965 the component roads enjoyed a total operating revenue in excess of $1,500,000,000 and a net annual income of over $75,000,000.6 The two companies held some $72,000,000 in working capital and $1,242,000,000 in combined investments.7 With about 19,600 miles of road 'sprawling between the Great Lakes on the north * * * and the Ohio and Potomac Rivers on the south,'8 Penn Central was at its inception nearly twice the size of the next largest railroad system in the East and three times that of the third largest.9
3
The predicted economies effected by the merger were likewise enormous; it was thought that within about eight years of the combination they would exceed $80,000,000 annually.10 Those savings represented a value, capitalized at 8%, of $1,000,000,000.
4
On June 9, 1967, after considerable litigation involving protective conditions for various affected railroad competitors,11 the Commission issued a modified order authorizing the Penn-Central merger.12 On October 19, 1967, a court of three judges, convened in the United States District Court for the Southern District of New York to review the Commission's order pursuant to 28 U.S.C. §§ 1336, 2284, and 2321—2325, upheld the Commission's action.13 On January 15, 1968, this Court affirmed with minor modifications, and thereby sustained the validity of the merger.14 Two weeks later, on February 1, 1968, Pennsylvania and New York Central merged.
5
2. The New Haven. The New York, New Haven & Hartford Railroad is now an operating division of the Penn Central system. At the time of the merger, however, it was an independent Class I railroad operating some 1,500 miles of line in the Commonwealth of Massachusetts and the States of Rhode Island, Connecticut, and New York; as such, it was the sixth largest railroad in the northeast region and the largest in New England.15 With an operations area extending from Boston to New York and connecting with nine other Class I railroads, the New Haven served 12 cities of greater than 100,000 population, as well as a number of important defense establishments.16 In 1964 the railroad employed about 9,800 people and paid them annual wages amounting to $70,000,000.17 About 30,000 commuters used the line every day to reach work in New York City alone.18 As described by the Commission,
6
'The New Haven has both a large passenger and freight business. It is the fourth largest passenger carrying railroad in the United States, and has the second highest commuter revenue of all such roads. * * * The volume of its freight business * * * is substantially greater. * * * It is the largest freight railroad in New England and ranks tenth in freight traffic among all railroads in the eastern district. * * * Its freight service is considered to be of extreme importance to the industrial well-being of southern New England.'19
7
The financial history of the New Haven was for decades a history of extreme vicissitudes. The company's decline and fall, with passage into, out of, and back into railroad reorganization, have been chronicled elsewhere.20 It first went into reorganization under § 77 of the Bankruptcy Act, 11 U.S.C. § 205, on October 23, 1935. Due in large measure to the difficulties of including formerly leased lines in the reorganized road, nearly 12 years elapsed from the filing of the debtor's petition in the United States District Court for the District of Connecticut to that court's eventual order approving consummation of the Commission's plan of reorganization.21
8
The railroad emerged from reorganization in 1947 with a vastly simplified debt structure in which only the most senior holders of secured interests survived.22 But in the following years the financial condition of the company again deteriorated, prompting it to seek at first partial and then total discontinuance of passenger service on the former Old Colony lines in Massachusetts.23 By 1959 the financial condition of the New Haven was such as to render the chance of surplus earnings 'slight at best.'24 Through late 1960 and into early 1961 the company's management expended great efforts to stave off bankruptcy by obtaining loans or grants from the Federal and State Governments.25 By the middle of 1961, current liabilities exceeded current assets by $36,310,000,26 and the company was losing cash at the annual rate of $18,000,000.27
9
Finally, on July 7, 1961, the New Haven again petitioned for reorganization under § 77 in the United States District Court for the District of Connecticut, a step that the court was later to find had been far too long delayed:
10
'(I)n the interest of its creditors, its employees and the public (the railroad) should have petitioned * * * long before it did. The grave problems which * * * best the reorganization would have been much less acute and infinitely more manageable if bankruptcy had not been put off until its cash was almost entirely depleted, credit was practically gone, maintenance was down and in all other respects the bottom was out of the barrel.'28
11
Immediately upon their taking over the New Haven, the trustees appointed by the reorganization court were obliged to borrow $8,000,000 to meet the payroll.29 The situation did not improve with the passage of time. '(I)n spite of spartan economies and a sizeable reduction in numbers of employees, the costs of operation * * * offset savings and eroded away the accumulated cash.'30 On July 6, 1964, the New Haven trustees petitioned the Commission, pursuant to § 13a(2) of the Interstate Commerce Act, 49 U.S.C. § 13a(2), for authority to discontinue suburban passenger train service in the Boston area. There followed a public hearing, an adjournment to afford Massachusetts authorities an opportunity—ultimately unavailing—to negotiate a contract with New Haven for continuation of some service, and a motion by the New Haven for expedited disposition 'by reason of the critical nature of New Haven's finances, the irretrievable drain which the operations in question impose upon New Haven's resources, and the increasing adverse effect which New Haven's situation has upon the public interest and upon New Haven's creditors * * *.' The Commission granted the trustees' application, concluding that for a period beginning four years before the 1961 reorganization petition and continuing thereafter, New Haven's financial condition had been 'critical' and 'drastically weak * * *.'31
12
By 1965 it was evident that the New Haven was on the verge of collapse.32 Its year-end current assets amounted to $20,521,000, some $16,685,000 less than current liabilities plus long-term debt payments due within the coming year. The obligations payable after one year totaled $189,042,000. The retained income account showed a deficit of $81,672,000; the working capital account, a deficit of $16,700,000. For the year the net railway operating income showed a deficit of $16,000,000, with overall net income a deficit only $1,000,000 less. The company was in default in its payments of both principal and interest on its long-term debt.33 In the view of the trustees, New Haven was 'absolutely faced with economic obsolescence if it continues as an independent, short-line, terminal railroad.'34
13
On October 11, 1965, the New Haven notified the Commission, pursuant to § 13a(1) of the Interstate Commerce Act, 49 U.S.C. § 13a(1), of its intention to discontinue all its interstate passenger trains effective March 1, 1966.35 If carried into effect, the proposed discontinuance would have drastically curtailed passenger train service in New York and Massachuetts, and ended it completely in Connecticut and Rhode Island.36 In the spring of 1966 the Commission, noting that over an 11-year period New Haven had experienced 'an unending succession of reverses,' concluded that '(t)here now is totally lacking any hope or plan for future survival of this carrier, except that held out by its merger into a trunkline railroad.'37 The Commission acceded in part to the trustees' notice of discontinuance, but invoked its statutory power to keep many of the trains in operation on the ground that 'passenger as well as freight service by the N(ew) H(aven) is a national necessity and that termination of either would lead to distress in Connecticut, Massachusetts, and Rhode Island, and would severely damage New York City and the Nation generally.'38
14
As 1966 gave way to 1967, the New Haven's situation deteriorated still further. As of April 1967 the reorganization court thought 'the prospect for the continued operation of the Railroad was very dim.'39 The road lacked even a current expense fund from which to satisfy the 'six months' creditors, and the court thought it 'highly unlikely that there ever will be one.'40 In July 1967 the reorganization court found that the New Haven's situation had become 'desperately critical'; its cash depletion was 'so serious that, if the present rate of loss continues, there will be insufficient left by late September to meet the payroll of approximately $1,400,000 per week.'41
15
As 1967 came to an end, so did the New Haven's cash reserve. By August 31 the cash balance fell to $4,500,000—a precarious condition for a company requiring $1,750,000 a week simply to meet current operating expenses.42 The trustees estimated that as of December 31, 1967, the balance would decline to $3,100,000 and two months later would fall to $850,000.43 The New Haven's financial position had thus eroded to the point where its shutdown was 'imminent * * *.'44
16
3. The inclusion negotiations. From the outset of the § 77 proceeding in 1961, the trustees of the New Haven and the reorganization court charged with conservation of the debtor's dwindling assets recognized that 'a merger with a large trunk line railroad would be the most promising and feasible means of continuing the viability of the New Haven's transportation system * * *.' In re New York, N.H. & H.R. Co., D.C., 289 F.Supp. 451, 456; cf. 281 F.Supp. 65. After Pennsylvania and New York Central filed their merger application before the Interstate Commerce Commission in 1962, the New Haven trustees sought inclusion in the new company, both by private negotiations with the component roads and by a petition to the Commission filed June 26, 1962. See In re New York, N.H. & H.R. Co., 378 F.2d 635, 636; Merger Report, 327 I.C.C. 475, 480. As the reorganization court said, it was 'apparent that the inclusion of the New Haven in the Penn-Central merger was the only salvation for the New Haven as an operating railroad * * *.' In re New York, N.H. & H.R. Co., 289 F.Supp. at 456; see also In re New York, N.H. & H.R. Co., D.C., 304 F.Supp. 793, 800.
17
The Commission, as we have noted, authorized the merger of the two roads in 1966. But in so doing, it found that '(w)ithout some radical change in circumstances, even if this merger application were denied, N(ew) H(aven) would face a nearly insuperable task in bringing itself out of bankruptcy.' Merger Report, 327 I.C.C., at 522. The Commission concluded that the proposed Penn-Central combination, 'without complete inclusion of N(ew) H(aven), would not be consistent with the public interest * * *.' Id., at 524. Accordingly, it required 'all the New Haven railroad to be included in the applicants' transaction,' and conditioned its approval of the merger upon that inclusion, id., at 524, 527. In so doing, the Commission spelled out Penn Central's obligation toward New Haven in unequivocal language. Condition 8 of the Merger Report stipulated as follows:
18
'The Pennsylvania New York Central Transportation Company shall be required to include in the transaction all the New York, New Haven and Hartford Railroad Company * * * upon such fair and equitable terms as the parties may agree subject to the approval of the Bankruptcy Court and the Commission. Within 6 months after the date this report is served, the parties shall file with the Commission for its approval, a plan for such inclusion. In the event the parties are unable to reach an agreement (and subject to approval by the Bankruptcy Court) such inclusion shall be upon such fair and equitable terms and conditions as the Commission may impose.
19
'Jurisdiction is hereby reserved for such purposes. Consummation of the merger by applicants shall indicate their full and complete assent to these requirements.' 327 I.C.C., at 553.
20
Condition 16 of the Merger Report reiterated that
21
'Consummation of the transaction approved herein shall constitute on the part of The Pennsylvania Railroad Company and the New York Central Railroad Company, their successors and assigns, acquiescence in and assent to the conditions stated in this appendix and in the attached report.' Id., at 555.
22
Having determined to require the inclusion of New Haven in Penn Central as a condition of merger, the Commission remitted the parties to private negotiation of the terms of inclusion. Id., at 527. The New Haven trustees on the one side, and the Pennsylvania and New York Central railroads on the other, had already been bargaining for some time, having drafted preliminary documents, dated December 22, 1964, and February 5, 1965, that provided for Penn Central's assumption of New Haven's freight operations. Oscar Gruss & Son v. United States, 261 F.Supp. 386, 393; Interstate Discontinuance Case, 327 I.C.C. 151, 175 n. 6. On April 21, 1966, two weeks after the Merger Report, they executed a Purchase Agreement for the transfer of substantially all the New Haven assets to Penn Central. Penn-Central Merger Cases, 389 U.S., at 508, 88 S.Ct., at 613; see In re New York, N.H. & H.R. Co., 378 F.2d, at 636.45 The Purchase Agreement provided for the transfer of the New Haven properties to Penn Central, with the consideration in exchange to consist in part of cash and in part of stocks and bonds of Penn Central.46
23
In September 1966 the trustees filed a petition with the reorganization court reciting the background of the negotiations with Penn Central, the New Haven's large and growing deficits, and the insufficiency of internally generated cash to meet operating demands. In the trustees' view, inclusion in Penn Central afforded 'the only practicable means for reorganization of the Debtor that is consistent with the best interest of the public and of all parties interested in the Debtor's estate * * *.' They submitted that operations should continue so long as inclusion was possible, and that the court should grant them leave to press for inclusion on the basis of the Purchase Agreement. In re New York, N.H. & H.R. Co., 378 F.2d, at 637. On October 24, 1966, the reorganization court authorized the trustees to present the Agreement to the Commission, noting that the goal of preserving the New Haven operations 'has been the policy from the beginning of these proceedings * * *.' Three days later the trustees and the Pennsylvania and New York Central railroads petitioned the Commission for approval of the New Haven's inclusion on the terms of the Agreement.
24
On November 16, 1967, the Commission ratified the Purchase Agreement as the basis for the inclusion of New Haven in Penn Central. Pennsylvania R. Co.—Merger—New York Central R. Co., 331 I.C.C. 643 ('Second Supplemental Report'). It looked upon the fact that the parties had been able to reach agreement as an indication that even though the New Haven trustees were selling properties having no value as an operating entity, they nevertheless had enjoyed a degree of bargaining power by virtue of the requirement that Penn Central take in New Haven as a condition of the merger. 331 I.C.C., at 667. '(W)here a transaction is bargained at arm's length,' said the Commission, 'each side is presumably capable of determining its own best interest, and our primary function is to discover whether the transaction will be in the public interest.' Id., at 656. The Commission then undertook its independent analysis of the value of the New Haven properties. Although the Purchase Agreement 'carrie(d) some probative force as to the values of the properties involved, it (was) by no means controlling.' Id., at 657. The Commission must still determine the price 'on the basis of all the evidence pertaining thereto, not merely the agreement and supporting evidence.' Id., at 660 n. 12.
25
Upon its independent review of the record, the Commission found that the asset value of the New Haven properties to be transferred to Penn Central and of the consideration to be given in exchange was $125,000,000. The Commission concluded that payment of that sum by Penn Central to the New Haven estate would be both 'just and reasonable' as a condition of the merger under § 5 of the Interstate Commerce Act, and 'fair and equitable' as part of a plan of reorganization under § 77 of the Bankruptcy Act. Unwilling to defer the merger until inclusion could take place but recognizing that the danger of an end to all New Haven operations was 'very real,' 331 I.C.C., at 654, the Commission authorized financial aid from Penn Central to prop up the debtor during the interim period between merger and inclusion to ensure New Haven's continued functioning until its acquisition by Penn Central. See Penn-Central Merger Cases, 389 U.S., at 509, 88 S.Ct., at 613.
26
4. The inclusion litigations. At this juncture the Commission's determination of the terms of inclusion was subjected to simultaneous judicial review in two separate forums. On January 23, 1968, eight days after this Court's approval of the merger and eight days before the merger itself, the New Haven bondholders commenced five actions in the United States District Court for the Southern District of New York to set aside the Commission's order. The three-judge District Court reconvened to hear the actions and shortly thereafter consolidated the five cases into one. On March 29, 1968, the Commission certified the first step of its plan for the reorganization of the New Haven—the sale of its assets to Penn Central—to the reorganization court.47 Pursuant to § 77(e) of the Bankruptcy Act, 11 U.S.C. § 205(e), the New Haven bondholders filed their objections to the Commission's plan following notice given by the reorganization court. Thus, the identical question of the price Penn Central would have to pay for the New Haven assets came at the same time before the three-judge District Court in New York and the single-judge District Court in Connecticut.
27
On July 10, 1968, the three-judge court, following extensive briefing and argument on the numerous issues underlying the price question, found itself unable to agree with the Commission in several major respects. It therefore vacated so much of the Commission's order as found the terms of Penn Central's acquisition of the New Haven's assets to be just and reasonable and remanded the cause for further proceedings. New York, N.H. & H.R. Co., First Mortgage 4% Bondholders' Committee v. United States, 289 F.Supp. 418. On August 13, 1968, also after extensive briefing and argument, the reorganization court independently returned the Commission's plan for further proceedings. In re New York, N.H. & H.R. Co., 289 F.Supp. 451. On the overriding question of price, the two courts were in accord: by fixing the worth of the New Haven at $125,000,000, the Commission had substantially understated the value of the properties to be transferred. The three-judge court estimated the understatement to be on the order of $45,000,000 to $50,000,000; the reorganization court, $33,000,000 to $55,000,000. 289 F.Supp., at 440, 465.
28
Meanwhile, the continuing drain on the New Haven's dwindling cash reserves called for—and received—drastic action. Upon remanding the Commission's proposed plan under § 77, the reorganization court ruled that unless the Commission ordered inclusion by January 1, 1969, the court would entertain a motion to dismiss the reorganization proceedings, resulting in termination of all the New Haven's train service. 289 F.Supp., at 459. The court recommended that the Commission direct the early inclusion of New Haven with a partial payment of the purchase price, deferring other issues to later resolution. Id., at 466.
29
On the remand, the Commission reopened the record for the reception of further evidence and briefing in accordance with the instructions of the two reviewing courts. Its revaluation of the New Haven properties, announced on November 25, 1968, resulted in an increase in total worth of some $37,700,000, yielding a new price of $162,700,000 for the properties to be transferred. Pennsylvania R. Co.—Merger—New York Central R. Co., 334 I.C.C. 25, 53 ('Fourth Supplemental Report'). But the Commission then invoked 'other pricing considerations' not taken into account at the time of its prior report. Application of the new considerations effected a reduction of $22,081,000 from the newly calculated asset value, leaving a net value of $140,600,000—$15,600,000 more than the Commission's initial estimate, but $17,400,000 less than the lowest range of value suggested by either of the two District Courts. In addition, the Commission required Penn Central to pay $5,000,000 toward the New Haven's interim operating expenses and, yielding to the directive of the reorganization court, ordered Penn Central to take over the New Haven properties by January 1, 1969, 334 I.C.C., at 74, 76.
30
The Commission certified its revised plan to the reorganization court on December 2, 1968. Within three weeks the bondholders filed their objections. On December 24, 1968, the reorganization court released the assets of the debtor's estate to Penn Central without approving the price terms set by the Commission. The court reiterated that failure to include New Haven in Penn Central by January 1, 1969, would result in immediate termination of all New Haven train service. On December 31 the estate transferred its assets to Penn Central.
31
At once the bondholders pressed for judicial review of the Commission's revised evaluation. With their objections to the plan of reorganization already pending before the reorganization court, representatives of holders of the debtor's first and refunding mortgage 4% bonds commenced two separate actions against the United States and the Commission before the three-judge District Court in New York. The Manufacturers Hanover Trust Company and the Chase Manhattan Bank, trustees under other mortgage bonds, commenced two more actions against the same defendants.48 The three-judge court consolidated the four cases and granted intervention—to the New Haven trustees as parties plaintiff and to Penn Central, the Commonwealth of Massachusetts, and the States of Rhode Island, Connecticut, and New York as parties defendant.
32
On May 28, 1969, the reorganization court again rejected the plan submitted by the Commission. Although it accepted the Commission's determinations on some issues, the court overruled the Commission with respect to its valuation of the New Haven's Harlem River and Oak Point freight yards and its added deductions introduced for the first time on the remand. The court also instituted its own 'underwriting' plan to ensure equivalent value for the estate with respect to the Penn Central common stock given in partial consideration for the transferred New Haven properties. In re New York, N.H. &. H.R. Co., 304 F.Supp. 793. An order implementing decision and remanding to the Commission was entered on July 28, 1969, 304 F.Supp. 1136.
33
On June 18, 1969, the three-judge court filed its opinion in the bondholders' action. With one judge in dissent, the court upheld the Commission's valuation of the freight yards and its added deductions on the remand. The court also adopted the underwriting plan devised by the reorganization court. New York, N.H. & H.R. Co., First Mortgage 4% Bondholders' Committee v. United States, 305 F.Supp. 1049. A decree fixing the terms of judgment followed on September 11, 1969.49
34
With the two District Courts thus in agreement, after two rounds of judicial review, on many of the substantial issues that had come before them, but in disagreement on matters amounting to more than $28,000,000 in value, the bondholders took direct appeals to this Court from the judgment of the three-judge court. They also appealed from the order of the reorganization court to the United States Court of Appeals for the Second Circuit. The United States, the Commission, and Penn Central took no appeals from the decree of the three-judge court but cross-appealed to the Court of Appeals from the order of the reorganization court. The Court of Appeals consolidated the appeals from the reorganization court, and the parties then petitioned this Court to grant certiorari to the Court of Appeals in advance of its judgment, pursuant to 28 U.S.C. §§ 1254(1) and 2101(e), and Rule 20 of this Court. We noted probable jurisdiction of the appeals from the order of the three-judge court and, with respect to the judgment of the reorganization court, granted certiorari to the Court of Appeals before judgment, accelerating briefing and argument to permit disposition of these cases at the current Term. 396 U.S. 1056, 90 S.Ct. 757, 24 L.Ed.2d 751.50
II
35
We first consider the dual review to which the District Court in New York and Connecticut subjected the price determinations of the Interstate Commerce Commission. From the outset all the parties in the three-judge court recognized that the pricing questions presented in the litigation there were also destined to come before the reorganization court under § 77 of the Bankruptcy Act.51 Confronted with the prospect of duplicate litigation, the New Haven bondholders asked the three-judge court to enjoin the Commission's certification of its plan of reorganization to the District Court in Connecticut. Counsel urged that 'if such certification is not restrained, the questions presented by the complaint herein under Section 5(2) of the Interstate Commerce Act will also be before the Bankruptcy Court under Section 77 of the Bankruptcy Act * * *.' The three-judge court denied the bondholders' application for injunctive relief. In its view, 'the balance of convenience tilt(ed) heavily in favor of allowing the Connecticut court to proceed to such extent as it is advised,' since the grant of such an injunction could delay the reorganization proceedings for a substantial time.
36
In this ruling the three-judge court was correct. The jurisdiction of the reorganization court was not open to question. Upon its approval of the New Haven's petition for reorganization in 1961, that court had acquired 'exclusive jurisdiction of the debtor and its property wherever located * * *.' Bankruptcy Act, § 77(a), 11 U.S.C. § 205(a).52 Subject to the court's control, the trustees whom it appointed were empowered 'to operate the business of the debtor.' Id., § 77(c)(2), 11 U.S.C. § 205(c)(2). They were thus charged with the dual responsibility of conserving the debtor's estate for the benefit of creditors and preserving an ongoing railroad in the public interest. Massachusetts v. Bartlett, 384 F.2d 819, 821, cert. denied, 390 U.S. 1003, 88 S.Ct. 1245, 20 L.Ed.2d 103; 5 Collier on Bankruptcy 77.02, at 469—470 (14th ed. 1969).53 With these goals in view, the statute bestowed a 'broad and general' authority upon both the court and the trustees. Cf. Palmer v. Massachusetts, 308 U.S. 79, 85, 60 S.Ct. 34, 37, 84 L.Ed. 93. The provisions of § 77 'doubtless suffice(d) to confer upon the (reorganization court) power appropriate for adjusting property rights in the railroad debtor's estate and, as to such rights, beyond that in ordinary bankruptcy proceedings.' Id., at 85—86, 60 S.Ct., at 37; cf. 5 Collier, supra, 77.11, at 498—499. Together, the court and the Commission 'unquestionably' had 'full and complete power not only over the debtor and its property, but also, as a corollary, over any rights that (might) be asserted against it.' Callaway v. Benton, 336 U.S. 132, 147, 69 S.Ct. 435, 444.54 One such power was precisely that which the Commission was about to propose that the reorganization court exercise—the power to confirm a plan of reorganization providing for 'the sale of all * * * of the property of the debtor * * *.' Bankruptcy Act, § 77(b)(5), 11 U.S.C. § 205(b)(5). To that end the Commission was required to certify its proposal to the court as a prerequisite to judicial approval. § 77(d), 11 U.S.C. § 205(d). Injunctive intervention by the three-judge court would thus have disrupted an essential statutory phase of the New Haven reorganization.
37
The United States also sought to avoid duplicate litigation but by by-passing the New York rather than the Connecticut federal court. In a motion filed shortly after the commencement of the New Haven bondholders' suit in the three-judge court, the Government moved to dismiss the complaints for lack of subject-matter jurisdiction. In support of the motion it was argued that (1) until the Commission certified the terms of inclusion to the reorganization court, Condition 8 under which Penn Central had pledged to take in New Haven was not satisfied and the Commission's order was not yet reviewable; (2) by virtue of the § 77 aspects of the case, the reorganization court had exclusive jurisdiction over the pricing questions sought to be presented to the three-judge court; and (3) even on the assumption that the three-judge court had jurisdiction, it should stay its hand as a matter of equity to avoid an unnecessary interference with the proceedings before the reorganization court.
38
The Government's motion to dismiss was opposed by Penn Central, the New Haven trustees, the State of New York, and the bondholders. Significantly, the Commission did not oppose the motion. Indeed, the Commission agreed with the United States that 'most 'and perhaps all) of the issues raised by the plaintiffs in this three-judge Court will be reviewable by the Reorganization Court,' conceded that 'the resulting concurrent jurisdiction is awkward, at least in theory,' and concluded tentatively that 'the scope of judicial review * * * in the Reorganization Court would, as a practical matter(,) be the same as in this three-judge Court.' The three-judge court denied the Government's motion to dismiss. The bondholders' actions, the court said, came within the letter of the statutes authorizing review of orders of the Commission. The court conceded there was 'an area of overlap' between the work of the New York and Connecticut forums, but thought nothing in § 77 or decisional law superseded that dual arrangement. See 289 F.Supp., at 424 n. 3.
39
The three-judge court correctly observed that in ordering New Haven's inclusion in Penn Central the Commission had properly exercised its authority under both § 5 of the Interstate Commerce Act and § 77 of the Bankruptcy Act. The fact that the New Haven was in reorganization under the Bankruptcy Act did not preclude the Commission from exercising its statutory power, in passing on the merger application of two railroads, to require the inclusion of a third. Interstate Commerce Act, § 5(2)(d), 49 U.S.C. § 5(2)(d).55 'The Commission can undoubtedly carry on § 5 proceedings simultaneously with § 77 reorganization proceedings * * *.' Callaway v. Benton 336 U.S., at 140, 69 S.Ct., at 440. Here the transfer of the New Haven assets was as much a part of a merger under § 5 as it was a plan of reorganization under § 77.
40
Moreover, at the outset of the litigation, the jurisdiction of neither the New York nor the Connecticut court was 'complete.' On the one hand, the reorganization court lacked coercive power over Penn Central: under § 77 it could neither approve nor disapprove the merger qua merger, and it could not compel Penn Central to purchase the New Haven assets. So far as § 77 was concerned, Penn Central stood in the position of a potential purchaser, willing but not obliged to buy the New Haven properties. Cf. Callaway v. Benton, 336 U.S., at 137, 69 S.Ct., at 439; Group of Institutional Investors v. Chicago, M., St. P. & P.R. Co., 318 U.S. 523, 550, 63 S.Ct. 727, 742, 87 L.Ed. 959; Old Colony Bondholders v. New York, N.H. & H.R. Co., 2 Cir., 161 F.2d 413, 434 n. 5 (Frank, J., dissenting), cert. denied sub nom. Protective Committee for Bonds of Old Colony R. Co. v. New York, N.H. & H.R. Co., 331 U.S. 858, 67 S.Ct. 1754, 91 L.Ed. 1865; In re New York, N.H. & H.R. Co., D.C., 54 F.Supp. 595, 619. On the other hand, the three-judge court could not by itself effect a conveyance of the New Haven properties to Penn Central, nor could it compel the debtor's trustees to do so without the consent of the reorganization court.
41
Moved largely by the concern that neither court might have jurisdiction over the entire case, the three-judge court was of the opinion that matters should proceed simultaneously in both forums with a view to bringing the § 5 and § 77 aspects before this Court at the same time. Given the complexities of the jurisdictional question and the importance of an expedited determination of the merits, the three-judge court produced an understandable solution to the problem insofar as it ensured that the entire case would come before this Court without the risk that the parties might have spent an extensive period litigating in the wrong forum.
42
But the circumstances of the case did not inexorably command review in two separate courts. There was no danger that application of the 'fair and equitable' test under § 77(e)(1) would yield results different from those to be produced by the 'just and reasonable' test of § 5(2)(b) for mergers or the 'equitable' test for inclusions under § 5(2)(d). See Callaway v. Benton, 336 U.S., at 140, 69 S.Ct., at 440.56 The reorganization statute mandates that any disposition of the debtor's properties must not be 'inconsistent with the provisions and purposes' of the Interstate Commerce Act, Bankruptcy Act, § 77(f), 11 U.S.C. § 205(f), and 'the requisite findings under the two acts are equivalent.' In re Chicago, R.I. & P.R. Co., 7 Cir., 168 F.2d 587, 594, cert. denied sub nom. Texas v. Brown, 335 U.S. 855, 69 S.Ct. 82, 93 L.Ed. 402. This Court has stressed that § 77 incorporates the elements of § 5, St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U.S. 298, 310, 74 S.Ct. 574, 581, 98 L.Ed. 710, and we have ruled that where the Commission proposes a merger as part of a § 77 plan of reorganization, it must act 'in accordance with all the requirements and restrictions applicable to mergers' under the Interstate Commerce Act, id., at 309; cf. Ecker v. Western Pacific R. Co., 318 U.S. 448, 481, 63 S.Ct. 692, 711, 87 L.Ed. 892; New England Coal & Coke Co. v. Rutland R. Co., 2 Cir., 143 F.2d 179, 186. Here the Commission had demonstrated its awareness of the statutory interrelationship, specifically devising inclusion terms under § 5 to satisfy the requirements of § 77. Second Supplemental Report, 331 I.C.C., at 654.
43
Moreover, there was no reason to suppose that the reorganization court would be unable to adjudicate all the questions presented by the terms of the Commission's inclusion order. Although the three-judge court expressed concern that certain issues, such as a loss-sharing arrangement during the interim period between merger and inclusion, might not lie within the jurisdiction of the reorganization court, the reorganization court nevertheless reached those issues without, so far as the record discloses, jurisdictional objections from any party.
44
The three-judge court thus confronted a situation where it was asked to consider the same pricing questions, to be determined by recourse to the same standards of review, as the reorganization court. '(N)ot only would it * * * involve * * * a duplication of labor to (accept) * * * jurisdiction but it might'—and in fact did—'result * * * in contradictory rulings upon the same issue(s).' Palmer v. Warren, 2 Cir., 108 F.2d 164, 167, aff'd 310 U.S. 132, 60 S.Ct. 865, 84 L.Ed. 1118. In these circumstances the three-judge court might well have stayed its hand under the traditional principle that 'the court first taking over the res, draws to itself power to determine all claims upon it.' Palmer v. Warren, supra; cf. Oklahoma v. Texas, 258 U.S. 574, 581, 42 S.Ct. 406, 66 L.Ed. 771; Palmer v. Texas, 212 U.S. 118, 126, 129, 29 S.Ct. 230, 232, 233, 53 L.Ed. 435; Wabash R. Co. v. Adelbert College, 208 U.S. 38, 54, 28 S.Ct. 182, 187, 52 L.Ed. 379; Farmers' Loan & Trust Co. of New York v. Lake Street Elevated R. Co., 177 U.S. 51, 61, 20 S.Ct. 564, 568, 44 L.Ed. 667. We recognize that that principle has commonly applied in cases where both courts assert in rem jurisdiction over the property in dispute, and that here the three-judge court's jurisdiction was in personam in character. But the conflict was nonetheless one 'between two coordinate courts of concurrent, overlapping jurisdiction, neither belonging to a class which by paramount law is categorically given a jurisdiction over the particular subject matter paramount to the jurisdiction of the other.' In re New York, N.H. & H.R. Co., D.C., 26 F.Supp. 18, 24, aff'd sub nom. Palmer v. Warren, supra. And given that conflict, the three-judge court could have followed the settled proposition that '(t)he court which first acquired jurisdiction through possession of the property is vested, while it holds possession, with the power to hear and determine all controversies relating thereto.' Lion Bonding & Surety Co. v. Karatz, 262 U.S. 77, 89, 43 S.Ct. 480, 484, 67 L.Ed. 871.
45
Surely a vesting of primary jurisdiction in the reorganization court comports with the basic purpose of § 77. Congress enacted that statute in part 'to prevent the notorious evils and abuses of consent receiverships,' New England Coal & Coke Co. v. Rutland R. Co., 143 F.2d, at 184, of which one of the more egregious was the requirement of an ancillary filing and order of appointment in the federal court for every district in which the debtor had property. See 5 Collier, supra, 77.02, at 467. Although of course, the jurisdiction of the three-judge court was not ancillary to that of the reorganization court in a technical sense, dual review of issues ultimately going only to the valuation of the debtor's estate would resurrect the discredited practice of the equity receivership—it 'would tend greatly to foment conflicts between coordinate courts and compel creditors, in the protection of their interests, to ride the circuit, demonstrating the basis of their positions in successive courts.' In re New York, N.H. & H.R. Co., 26 F.Supp., at 23.
46
But we need not decide the question exclusively on the grounds just set out. For in the circumstances in which the United States presented its motion to dismiss in this case, the course of prior litigation had left the three-judge court virtually nothing to decide. On January 15, 1968, this Court had upheld the validity of the Penn Central merger under § 5 of the Interstate Commerce Act, conditioned on the inclusion of New Haven on terms subject to objections to be 'registered and adjudicated in the bankruptcy court or upon judicial review as provided by law.' Penn-Central Merger Cases, 389 U.S., at 511, 88 S.Ct., at 614. We had permitted a postponement of the inclusion of New Haven on the basis of Penn Central's acceptance of the inclusion requirement, id., at 509, 88 S.Ct., at 613, and because by its act of merger Penn Central would 'perforce accept * * * appropriate conditions respecting the New Haven * * *.' Id., at 510, 88 S.Ct., at 614.
47
Two weeks later Penn Central merged. At that point the lack of jurisdictional 'completeness' in the reorganization court, to which we have earlier referred, was cured; for there now remained no question of Penn Central's obligation to take over the assets of the New Haven. With Penn Central having given its irrevocable consent to the inclusion of New Haven by its act of merger, it was evident that whatever terms the reorganization court might confirm, subject to review on appeal to the Court of Appeals followed by certiorari here, would bind Penn Central by virtue of its merger commitment. Of course, the terms of the inclusion must themselves be 'just and reasonable' and 'equitable' under § 5. But those terms now involved only the value to be accorded the assets transferred, and resolution of that issue was the essence of the § 77 process. 'The heart of * * * a determination (of the validity of a plan of reorganization) is a finding of fact * * * as to the value of the debtor's property.' In re New York, N.H. & H.R. Co., 2 Cir., 147 F.2d 40, 49, cert. denied sub nom. Massachusetts v. New York, N.H. & H.R. Co., 325 U.S. 884, 65 S.Ct. 1577, 89 L.Ed. 1999. See 5 Collier, supra, 77.14, at 538—539; cf. Consolidated Rock Prods. Co. v. Du Bois, 312 U.S. 510, 524—525, 61 S.Ct. 675, 684—685, 85 L.Ed. 982; First National Bank of Cincinnati v. Flershem, 290 U.S. 504, 527, 54 S.Ct. 298, 307, 78 L.Ed. 465; Second Supplemental Report, 331 I.C.C., at 652. In short, with identical issues before the two courts, with those issues involving only questions going to the value of a § 77 debtor's estate, with congruent standards of review, and with the irrevocable promise of Penn Central to take in New Haven, the three-judge court should have stayed its hand in the New Haven bondholders' litigation.57
48
Prior decisions of other three-judge courts, affirmed by this Court on direct appeal, lend support to the proposition that the three-judge court should have deferred to the reorganization court. In Chicago & N.W.R. Co. a. United States, D.C., 52 F.Supp. 65, the debtor railway company brought suit against the Commission in the United States District Court for the Northern District of Illinois, seeking three-judge-court review of a plan of reorganization previously approved by the Commission and the courts. The District Court noted its 'limited power' under the statute providing for review by a court of three judges, 52 F.Supp., at 66. It conceded the 'seemingly applicable language' of the three-judge-court statute to 'any order of the Interstate Commerce Commission,' but held that once the Commission has approved a plan of reorganization under § 77, 'appeal from Commission orders in connection with bankruptcy proceedings lies only to a district court (of one judge) sitting in bankruptcy, not to a district court (of three judges) assembled under the Urgent Deficiencies Act.' Id., at 67.58 On direct appeal, this Court summarily affirmed the District Court's judgment. 320 U.S. 718, 64 S.Ct. 369, 88 L.Ed. 422.
49
Even closer in point is a case that arose during the first reorganization of the New Haven Railroad—Group of Boston & Providence R. Corp. Stockholders v. ICC, D.C., 133 F.Supp. 488. Shareholders of the Boston & Providence, also undergoing reorganization, sought judicial review before a three-judge court of the Commission's refusal to provide joint rates as between New Haven and Boston & Providence—exclusively an Interstate Commerce Act function. See Act, §§ 1(4), 15(6), 49 U.S.C. §§ 1(4), 15(6). The court held that to grant the shareholders the ruling they sought would contravene the revenue-allocation formula already adopted by the New Haven's reorganization court and affirmed by the Court of Appeals and the Supreme Court. The three-judge court accepted the view of the Commission that 'so long as the Boston & Providence lines are operated by the New Haven as lessee for the account of the lessor * * *, the Connecticut district court * * * has exclusive jurisdiction to pass on the accounting for such operation.' 133 F.Supp., at 493. Again, this Court summarily affirmed. Boston & Providence R. Corp. Stockholders v. New York, N.H. & H.R. Co., 350 U.S. 926, 76 S.Ct. 300, 100 L.Ed. 810.
50
We therefore hold that the three-judge court here should have granted the Government's motion to the extent of deferring to the reorganization court in proceedings ultimately involving only the price to be paid for the assets of the debtor's estate.59
III
51
In turning to the judgment of the reorganization court, we first review the standards under which that court passed upon the Commission's rulings.
52
After 35 years of § 77, as amended, it is unnecessary to recanvass the two basis objectives of the statute—the conservation of the debtor's assets for the benefit of creditors and the preservation of an ongoing railroad in the public interest. See generally 5 Collier, supra, 77.02, at 469—470. Central to the statutory objective that the reorganized company should, if at all possible, emerge as a 'living, not a dying * * * enterprise,' Van Schaick v. McCarthy, 10 Cir., 116 F.2d 987, 993, is the understanding that 'a railroad (is) not like an ordinary insolvent estate.' Palmer v. Massachusetts, 308 U.S., at 86, 60 S.Ct., at 38. (Footnote omitted.) To the traditional equity jurisdiction of the bankruptcy court, § 77 adds the oversight of the Interstate Commerce Commission, the agency 'specially charged with the public interest represented by the transportation system.' Ibid. The statute contemplates that '(t)he judicial functions of the bankruptcy court and the administrative functions of the Commission (will) work cooperatively in reorganizations.' Warren v. Palmer, 310 U.S. 132, 138, 60 S.Ct. 865, 867. (Footnote omitted.)
53
In structuring the cooperative endeavor of agency and court, Congress 'placed in the hands of the Commission the primary responsibility for the development of a suitable plan' for the debtor railroad. Ecker v. Western Pacific R. Co., 318 U.S., at 468, 63 S.Ct., at 705. As the Court said in Group of Institutional Investors v. Chicago, M., St. P. & P.R. Co., supra, 'The ratio of debt to stock, the amount of fixed as distinguished from contingent interest, the kind of capital structure which a particular company needs to survive the vicissitudes of the business cycle—all these have been reserved by Congress for the expert judgment and opinion of the Commission, which the courts must respect.' 318 U.S., at 545, 63 S.Ct., at 740. See also In re New York, N.H. & H.R. Co., 54 F.Supp. 595, 604. In the development of the plan of reorganization, § 77 also has accorded the Commission primary responsibility for determining wherein lies the 'public interest,' which does not refer generally to matters of public concern apart from the public interest in the maintenance of an adequate rail transportation system, cf. United States v. Lowden, 308 U.S. 225, 230, 60 S.Ct. 248, 251, 84 L.Ed. 208, but includes 'in a more restricted sense,' ibid., concern for 'the amount and character of the capitalization of the reorganized corporation,' Ecker v. Western Pacific R. Co., 318 U.S., at 473—474, 63 S.Ct., at 707; cf. Massachusetts v. Bartlett, 384 F.2d, at 821, as well as the 'adequacy of transportation service, * * * its essential conditions of economy and efficiency, and * * * appropriate provision and best use of transportation facilities.' Texas v. United States, 292 U.S. 522, 531, 54 S.Ct. 819, 824, 78 L.Ed. 1402; New York Central Securities Corp. v. United States, 287 U.S. 12, 25, 53 S.Ct. 45, 48, 77 L.Ed. 138. As is clear from the legislative history and § 77 itself, the deference to the Commission as initiator of the plan of reorganization stems from the 'recognition by everyone of the advantages of utilizing the facilities of the Commission for investigation into the many-sided problems of transportation service, finance and public interest involved in even minor railroad reorganizations and utilizing the Commission's experience in these fields for the appraisals of values and the development of a plan of reorganization, fair to the public, creditors and stockholders.' Ecker v. Western Pacific R. Co., 318 U.S., at 468, 63 S.Ct., at 705. (Footnote omitted.)
54
But the respect given the Commission as draftsman of the plan of reorganization entails no abdication of judicial responsibility for the workings of the administrative agency. As we have had occasion to say in describing other aspects of the Commission's work, "Congress did not purport to transfer its legislative power to the unbounded discretion of the regulatory body." Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167, 83 S.Ct. 239, 245, 9 L.Ed.2d 207. Far from displacing the judicial function, § 77 strikes a 'balance between the power of the Commission and that of the court.' Ecker v. Western Pacific R. Co., supra, 318 U.S., at 468, 63 S.Ct., at 705. The chancellor remains 'a necessary and important factor in railroad reorganization'; the statutory objective is 'attained only through properly coordinated action between the Commission and the court.' Id., 318 U.S., at 474—475, 63 S.Ct., at 708. (Footnote omitted.) It remains for the reorganization court to ascertain that the Commission 'has given consideration to each element of value concerned in its over-all appraisal, and has not wrongly decided legal questions involved in the problems of valuation and of allotment of equivalent securities * * *.' Old Colony Bondholders v. New York, N.H. & H.R. Co., 161 F.2d, at 420.
55
But the reorganization court may also do more. Under § 77(c)(13), 11 U.S.C. § 205(c)(13), the court on its own motion may refer matters to a special master for the hearing of such evidence as the court may desire—a provision which permits the 'building up of a group of men (entirely apart from the Commission) thoroughly informed in railroad reorganization matters.' H.R.Rep. No. 1897, 72d Cong., 2d Sess., 6 (1933). And under § 77(e), 11 U.S.C. § 205(e), the court may itself hold hearings upon the Commission's certification of its plan of reorganization, at which the court is empowered to take evidence beyond that received by the Commission a supplementary power, unknown to conventional judicial review, but deemed essential to the reorganization court's exercise of its extraordinary 'cram down' powers.60 See S.Rep. No. 1336, 74th Cong., 1st Sess., 3 (1935); H.R.Rep. No. 1283, 74th Cong., 1st Sess., 3 (1935). The statutory authority to appoint special masters and to hold evidentiary hearings reflects the unique powers possessed by the reorganization court in passing upon the Commission's proposed plan of reorganization.
56
In sum, Congress has confided to the reorganization court the 'power to review the plan to determine whether the Commission has followed the statutory mandates * * * and whether the Commission had material evidence to support its conclusions.' Reconstruction Finance Corp. v. Denver & R.G.W.R. Co., 328 U.S. 495, 509, 66 S.Ct. 1282, 1290, 1384, 90 L.Ed. 1400; cf. Penn-Central Merger Cases, 389 U.S., at 498—499, 88 S.Ct., at 608—609. In the reorganization court reposes ultimate responsibility for determining that the plan presented to it by the Commission satisfies the 'fair and equitable' requirement of § 77. See In re New York, N.H. & H.R. Co., D.C., 16 F.Supp. 504, 507. And at the heart of that determination, as we have already noted, is the valuation of the debtor's property. Here, as elsewhere in the reorganization proceedings, the court must look to the conclusion recommended by the Commission. See Ecker v. Western Pacific R. Co., 318 U.S., at 472—473, 63 S.Ct., at 706—707; cf. Freeman v. Mulcahy, 1 Cir., 250 F.2d 463, 472—473, cert. denied sub nom. Boston & Providence R. Co. v. New York, N.H. & H.R. Co., 356 U.S. 939, 78 S.Ct. 781, 2 L.Ed.2d 813; In re New York, N.H. & H.R. Co., 54 F.Supp. 595, 600. And often the Commission's conclusion will entail less a statement of mathematical certainty than an estimate of what the market will say when it speaks to the subject. 'But that estimate must be based on an informed judgment which embraces all * * * relevant * * * facts * * *.' Consolidated Rock Prods. Co. v. Du Bois, 312 U.S., at 526, 61 S.Ct., at 685. 'The judicial function is to see to it that the Commission's 'estimate' is not a mere 'guess' but rests upon an informed judgment based upon an appraisal of all * * * relevant * * * facts * * *, and is not at variance with the statutory command.' Freeman v. Mulcahy, 250 F.2d, at 473. In performing that function, the court must proceed with awareness that its review of the Commission's conclusion on valuation, as with every other important determination that the court is to make, calls for an "informed, independent judgment" of its own. Consolidated Rock Prods. Co. v. Du Bois, 312 U.S., at 520, 61 S.Ct., at 682; National Surety Co. v. Coriell, 289 U.S. 426, 436, 53 S.Ct. 678, 681, 77 L.Ed. 1300.
57
There remains to consider the scope of review in this Court in passing upon the judicial determinations of the reorganization court. That we have granted certiorari to the Court of Appeals in advance of the appellate court's judgment does not alter the fact that 'our task is limited.' Penn-Central Merger Cases, 389 U.S., at 498, 88 S.Ct., at 608. It is not for us to pass upon the myriad factual and legal issues as though we were trying the cases de novo. 'It is not enough to reverse the District Court that we might have appraised the facts somewhat differently. If there is warrant for the action of the District Court, our task on review is at an end.' Group of Institutional Investors v. Chicago, M., St. P. & P.R. Co., 318 U.S., at 564, 63 S.Ct., at 749.
IV
58
As we have earlier noted, the purchase and sale negotiated by Pennsylvania, New York Central and the New Haven trustees rested upon the estimated liquidation value of the New Haven properties to be transferred, rather than the earning power of the New Haven as an operating entity. Second Supplemental Report, 331 I.C.C., at 657. The parties to the Purchase Agreement thus gave recognition to the reality of New Haven's desperate financial situation, as well as to the power of the reorganization court to order the sale of the debtor's properties at not less than the 'fair upset' price under § 77(b)(5) of the Bankruptcy Act. In approving the negotiators' approach to the price question, the Commission observed that asset value rather than earning power was the primary determinant because New Haven had 'long been dry of earning power.' 331 I.C.C., at 657. 'If there is one thing on this record that is clear and undeniable,' the Commission concluded, 'It is that N(ew) H(aven) has neither earning power nor the prospect of earning power.' Id., at 687.
59
In light of 'the chronic deficit character' of the New Haven operation, id., at 658, the reorganization court understandably accepted the liquidation approach to valuation. 'The concept of 'going concern value' is fictional as applied to the New Haven,' it said, 'because it ignores the Railroad's long and continuing history of deficit operations.' 289 F.Supp., at 455. (Footnote omitted.)
60
Before the Commission, the New Haven trustees and Penn Central submitted complete studies of the debtor's liquidation value, consisting of current assets, special funds, investments, real estate, and other assets. As the Commission described it, 'Liquidation value as used by both the N(ew) H(aven) trustees and Penn-Central (was) the estimated market value that would be realized in a total liquidation, less the cost of dismantling properties and other liquidation costs and after discounting proceeds to present worth.' 331 I.C.C., at 697; cf. In re New York, N.H. & H.R. Co., 304 F.Supp., at 797—798.
61
The New Haven study, based on the assets held by the debtor as of December 31, 1965, was made over a nine-month period by persons who, the Commission found, were familiar with the railroad, its operating area, and the nature and condition of its properties. The Penn Central study valued the assets as of December 31, 1966; it was made in under two months by persons less familiar with the railroad. Both studies revealed that nearly half the New Haven's asset value consisted of its holdings in real estate. The New Haven study produced a gross value for all assets, exclusive of New Haven's interest in the Grand Central Terminal properties, of $230,290,000; the Penn Central study, $150,321,000.
62
Consistent with the liquidation hypothesis, both New Haven and Penn Central deducted from the gross value of the New Haven assets the expenses that would be incurred if a liquidation in fact took place. These included not only the estimated expenses of sale but, in the case of bridges, trestles, and culverts, removal costs for conversion of the realty to nonrailroad use—costs that often left the assets with a net negative value. The New Haven trustees hypothesized both a six-and a 10-year liquidation period, with expenses for liquidation operations plus taxes and interest aggregating $59,481,000 and $76,847,000, respectively; Penn Central estimated the expenses of a 10-year sale to be $62,172,000. The net liquidation value of the assets was arrived at by deducting the liquidation expenses and certain current assets not to be transferred to Penn Central, along with a further discount to present worth to reflect the hypothesis that receipts would be coming in over a six-or 10-year period.
63
The Commission concluded that once the New Haven estate embarked on a liquidation sale, it would dispose of the assets as quickly as practicable; the Commission accordingly found that 'the bulk of the liquidation could be completed within a period of 6 years.' 331 I.C.C., at 663. The Commission also concluded that the 6% discount rate employed by New Haven and challenged as too low by Penn Central was offset by the conservative valuation of the assets themselves. Id., at 664. The Commission's ultimate finding was that the liquidation value of the New Haven assets to be conveyed to Penn Central 'is about $125 million as of December 31, 1966.' Id., at 688.
64
As we have noted earlier, the reorganization court did not accept the $125,000,000 figure, with a consequent remand and second round of review. The bulk of the Commission's valuation has now won the approval of the reorganization court and is not challenged by any of the parties here. There remains in dispute, however, the valuation of several items, aggregating nearly $200,000,000, and it is to those items that we now turn.
65
1. The Grand Central Terminal properties. By far the largest component in the dispute over the liquidation value of the New Haven is the debtor's interest in the Grand Central Terminal properties. This real estate complex consists of several parcels in the area of midtown Manhattan bounded by 42d Street on the south, Madison Avenue on the west, 60th Street on the north, and Lexington Avenue on the east. Included in the properties are the Barclay, Biltmore, Commodore, Roosevelt, and Waldorf-Astoria hotels; the Pan American building as well as other office buildings along Park Avenue; and the Yale Club. The total assessed value of the Grand Central Terminal properties as of 1965 was $227,225,000.
66
The New Haven railroad acquired the right to run its trains into Manhattan in 1848, when it entered into an agreement for use of the tracks of the predecessor of the New York Central, to extend for the lives of the respective charters of the two companies. In 1848 New Haven also acquired an easement over the tracks by legislation of the State of New York. See New York, N.H. & H.R. Co. v. ICC, 60 App.D.C. 403, 55 F.2d 1028, 1030. The 1848 agreement underlay various subsequent contracts in the 1870's, '80's, and '90's between the New York Central and the New Haven.
67
In 1903 and 1904 the State of New York enacted further legislation requiring the placement of the railroad tracks below ground through the 15-block stretch north of the present Terminal. It did not take the Central entrepreneurs long to realize that compliance with the legislative edict left the company a vast area of midtown Manhattan suitable for realty development. In 1907 Central entered into the basic contract with New Haven under which the present Grand Central Terminal was built. The 1907 instrument recited that it had become necessary to rebuild the Terminal, including yards and tracks, in order to provide facilities for the proper management and conduct of the two railroads. Central promised to buy needed land and rights-of-way; New Haven, to make payments in connection with the demolition of the old station and the construction of the new. The 1907 agreement further recited that nothing it contained should impair the rights of the parties under the 1848 agreement. It then went on to provide that Central 'doth demise, let and lease' the use of the railroad terminal to New Haven in common with Central. 'Railroad terminal' was defined to 'mean and include the land, and interests in land, and all improvements thereon * * * , and all rights in any ways on which said land may abut * * *.'
68
Paragraph 4 of the 1907 agreement provided for joint contributions by New Haven and Central to Terminal maintenance and operation, calculated on the parties' respective car and locomotive usage of the station. The paragraph also obligated New Haven to a minimum annual payment of $160,179.92 without regard to the percentage of its use of the Terminal. In addition, 14 of the agreement stipulated that the manager of the enterprise should credit all rentals and other compensation received from the railroad terminal to 'the fixed charges or to the cost of maintenance and operation of the said Railroad Terminal, as the same may be applicable.'
69
In 1909, Central and New Haven began the joint financing of construction on the property referred to in the 1907 agreement, and in 1913, they entered into a supplemental agreement in order 'to express more fully the intent of the parties hereto as to the right of the New Haven Company and the Central Company with respect to the construction, maintenance and use' of the Terminal properties. The supplemental agreement recited that New Haven's right of user included 'the right * * * to join with * * * Central * * * in the construction, holding, maintenance and leasing of buildings * * * upon the land included within the Railroad Terminal.' The heart of the 1913 amendment was a detailed provision for the sharing and reimbursement of construction and maintenance costs, along with a reaffirmation of the procedure established in 14 of the 1907 agreement, under which all rentals were to be credited to the Terminal enterprise. In the following years the two parties entered into hundreds of subagreements relating to the leasing, financing, and sharing of rentals from buildings constructed in the Terminal area. Income from the buildings was credited to the fixed charges, and to the maintenance and operation of the Terminal itself.
70
None of the agreements between Central and New Haven expressly provided for the disposition of 'excess income' left over after the satisfaction of the Terminal expenses. For half a century after the 1913 agreement, the 'excess income' question was of academic interest only, since expenses annually exceeded revenues. But in 1964, and in each succeeding year, the accounts showed excess income. New Haven demanded part of it, and Central refused. The trustees then brought a contract action in the New York Supreme Court to protect New Haven's interest in the income.
71
When the New Haven trustees first began negotiations with Pennsylvania and Central for the inclusion of the debtor's assets in Penn Dentral, they proposed that New Haven's interest in the non-operating Terminal properties be excluded from the takeover, with final disposition deferred until the outcome of the then-pending litigation. But Central insisted it would not consider inclusion of New Haven in the merger unless it got absolute title to all the Terminal properties. The New Haven trustees thereupon sought the advice of legal counsel. They were told that under the agreements with Central, New Haven not only had no fee or leasehold interest in the properties, but had no rights at all that would survive cessation of its train service in and out of the Terminal other than the reimbursement of monies already advanced toward construction of buildings in the area. Although the New York lawsuit was pending to determine New Haven's right to participate in the excess income, the trustees concluded that as an alternative to risking 'tremendous expense and long delay' in litigation, 289 F.Supp., at 462, resolution of the inclusion negotiations was of sufficient value to warrant their transferring the debtor's interest, whatever it might be, to Penn Central for no consideration whatever in exchange.
72
From the outset the bondholders dissociated themselves from the trustees on the question of the debtor's rights in the Terminal properties. Some of the New Haven creditors claimed the value of those rights to be $20,000,000—the sum of unreimbursed advances for building construction and capital improvements as carried on the New Haven books. Others said it was $50,000,000—the capitalization of one-half the excess income at 5%. Still others argued for one-half the value of the fee itself—nearly $115,000,000.
73
In its Second Supplemental Report the Commission eschewed responsibility for determining the legal rights of New Haven in the properties and set out only to value the debtor's claim. Confronting the complex legal relationship between Central and New Haven, with the consequent unpredictability of litigation, and unwilling to defer valuation of New Haven's interest to the completion of all possible contract actions between the two parties, the Commission set the value of the claim at $13,000,000. It arrived at this figure by taking the average of two unrelated sums: $5,000,000, representing Penn Central's estimate of the nuisance value of New Haven's claim; and $20,000,000, representing the capitalization of New Haven's share of the average of the excess income in 1964 and 1965, based upon its proportional usage of the Terminal.
74
Faced with the Commission's disclaimer of responsibility for resolution of the legal controversy between Central and New Haven, and given the Commission's Draconian solution to the question of value, the reorganization court appointed a special master to consider New Haven's legal interest in the Terminal properties.61 Based on his study of the complex contractual relations between the two parties, of which we have touched above only on the salient features, the Special Master concluded that Central and New Haven had entered into a 'joint venture or partnership * * * of some kind.' The Special Master dismissed as untenable both Central's argument that by virtue of its sole ownership of the fee it would acquire full right, title, and interest in the Terminal properties upon the cessation of New Haven's train service, and the bondholders' argument that as a partner the debtor had an undivided one-half interest in the fee. In 1907, when the parties entered into the basic agreement, Central had had title to the realty, and New Haven had had a perpetual right to the use of the tracks by force of state legislation. New Haven thus had 'not come to the bargaining table in 1907 in the posture of a supplicant.' The two railroads together had joined in the design and construction of a Terminal complex greater than either needed for its own requirements; they had undertaken a 'major real estate development to extend over a period of many years'; and to those ends they had provided for a sharing of the Terminal expenses on the basis of their respective car usage, along with a committal of Terminal revenues to the operation of the project. As the Special Master put it, 'There can be no question that by mutual agreement these revenues from all of the Grand Central Terminal properties were pooled to apply on the fixed charges and maintenance and operational costs of the Terminal.'
75
In light of the conclusion that Central and New Haven had embarked on an enterprise akin to a partnership, the Special Master concluded that once the Terminal revenues satisfied expenses, the excess income belonged equally to each of the railroads. In his view, the car-use formula of the 1907 agreement ceased to be effective once revenue met expenses, and the principle of equality between partners took its place. The Special Master noted that the parties had not expressly dealt with the question whether New Haven's interest in the properties would end if New Haven ceased to use the Terminal. But he concluded that in such an event New Haven would still be entitled to half of the excess income; that right 'would not and could not be terminated by the mere discontinuance of (New Haven) passenger service into and out of the Terminal.'62
76
On the first round of review the reorganization court accepted the Special Master's report and incorporated it by reference in its own opinion. The court therefore remanded the matter to the Commission with instructions to value New Haven's one-half interest in the Terminal's future excess income. In addition, the court requested the Commission to 'consider and make findings as to what value, if any, attaches to New Haven's present right to share in the income for the purpose of defraying its cost of operating in and out of the terminal.' 289 F.Supp., at 463.
77
In its Fourth Supplemental Report the Commission accepted the determination of the reorganization court that New Haven would have retained a right to one-half the excess income even upon liquidation. 334 I.C.C., at 30—31. Following an extensive consideration of future Terminal expenses and office-building the hotel income, the Commission projected a future excess income of $4,550,000 a year, of which New Haven's 50% share, capitalized at 8%, amounted to $28,438,000. 334 I.C.C. at 39. The new figure thus came to more than twice that awarded by the Commission on the first round.
78
The Commission also complied with the request of the reorganization court that it consider the value of New Haven's right of access into the Terminal. The Commission concluded that the right would have no value to New Haven unless a buyer were willing to pay for it; that the only potential buyer in sight was the State of New York, which would not need to bid for use of the Terminal; and, accordingly, that New Haven's right of user was valueless. 344 I.C.C., at 32. The bondholders' claim of value for the right of access, the Commission said, amounted to a demand for one-half of all of the income free of the Terminal expenses. Id., at 32 n. 11. On the second round of review, the reorganization court agreed that the Commission's determinations must stand with respect to both the liquidation value of New Haven's interest in the Terminal properties and its right of free access into the station.63
79
Many aspects of the controversy over the Grand Central Terminal properties have now dropped from contention.64 The bondholders no longer claim that New Haven is entitled to one-half the value of the fee. Penn Central no longer claims that its fee ownership of the properties reduced New Haven's status to that of a mere grantee retaining only the privilege of entry into the Terminal. All parties accept New Haven's right to the capitalized value of one-half the excess income.65 What remains is the claim of the bondholders that New Haven is entitled to the capitalized value of its share not only of the excess income remaining after satisfaction of the Terminal expenses, but of the basic income meeting the expenses themselves. Yet the central finding of the reorganization court remains unrefuted: that by force of the agreements between New York Central and New Haven, the Terminal income was first to be devoted to meeting Terminal expenses; only then was the residue to become available for distribution to the two railroads. To be sure, the parties customarily referred to their respective shares of the Terminal revenues. But the Special Master found that the Terminal revenues were allocated to Central and New Haven on their respective car-use bases as an accounting convenience. The car-use formula established by the 1907 agreement 'resulted, for accounting purposes, in the corresponding proportion of the revenue entering the Terminal Accounting being treated as the property of each railroad, and in each railroad's being relieved pro tanto from the amount of its liability to meet the charges * * *.'
80
The bondholders argue that the basic income of the Terminal could somehow be 'freed up' from the obligation to meet Terminal expenses. But the Special Master considered and ejected that theory.
81
'Both parties * * * committed themselves to pouring these revenues from the entire Grand Central complex into the Terminal Account under paragraph 14 of the Agreement of 1907. The revenues were to enter that account and were to be expended, superior to the individual interests of each railroad, by being applied on payment of the fixed charges and expenses of operation and maintenance of the Terminal. Those revenues were pledged to that purpose regardless of wheter New Haven utilized one per cent or fifty per cent of the Terminal's passenger facilities, or whether it used any of those facilities at all. It was not contemplated that if either railroad discontinued passenger trains into Grand Central the other would be saddled with the entire expense of a terminal larger than either railroad needed without being credited with these entire revenues from the Grand Central Terminal properties to the extent that they were required to meet expenditures * * *.'
82
Nevertheless, Chase Manhattan argues that the commitment of revenues is merely a creature of the agreement between Central and New Haven as construed by the Special Master, and that the transfer of New Haven's Terminal interests on December 31, 1968 'wiped out' that agreement. 'The agreement thereafter was no longer in existence,' says Chase, 'and Penn Central now has this (basic) income (both the former New York Central's share and the former New Haven's share) free and clear of any restriction against its use in any way Penn Central sees fit.' Stated in this fashion, the argument is self-defeating: since New Haven's right to the basic income derives solely from its agreement with Central, a 'wiping out' of that agreement necessarily leaves New Haven without the right as well as without the obligation. But, more importantly, it simply is not true that Penn Central now has New Haven's former share in such income without 'any restriction of any kind * * *.' Penn Central also has New Haven's loss operations into and out of the Terminal, and it must meet the expenses occasioned by those operations from some source. Since by definition New Haven's share of the basic income was, as an accounting matter, equal to its share of the Terminal expenses, by its 1968 transfer it has merely surendered an amount equal to its gain: it has given up its share of the income pledged to the costs of operations at the Terminal, but it has relieved itself of the obligation to meet those costs. By the same token, Penn Central has gained New Haven's share of income, but with the matching loss of New Haven's expenses.
83
The bondholders' argument must be that entirely apart from the contractual arrangements with Central, New Haven had a valuable right of free access into the Terminal, which Penn Central has now taken over with no compensating payment in exchange. This argument, too, is without merit. It is a misnomer to describe New Haven's right of access to the Terminal as 'free.' New Haven had a right of entry, rather than a privilege, in the sense that it had access, independently of the consent of the fee owner of the tracks, by force of legislative edict. But the right bestowed by the legislature was conditioned 'upon such terms * * * as (have) been or may hereafter be agreed upon by and between' New Haven and Central's predecessor. N.Y.Sess.Laws of 1848, c. 143, § 6. Thus the New Haven right of access has never been free from the obligations imposed by the agreements with Central.
84
But even if the access right were 'free' in the sense that it could survive elimination of New Haven's agreements with Central, we agree with the reorganization court that the Commission correctly concluded it would have no value. And that is the case whether the right is deemed transferred to Penn Central, as in fact it was, on the date of inclusion, or whether, consistent with the liquidation hypothesis on which the parties valued New Haven's other assets, it is deemed to have been offered for sale to a third party upon New Haven's cessation of operations. In the former event, the analysis pertinent to New Haven's contract rights applies with equal force. Penn Central has in fact succeeded to New Haven's right of access, but it has also succeeded to New Haven's deficit operations. Conversely, New Haven has given up a right of entry in exchange for relief from the obligation to provide train service at the station. Indeed, to the extent that the expenses generated by New Haven's use of the Terminal exceeded the revenues attributable to that activity, Penn Central has lost and New Haven gained on the exchange.66
85
The same result is reached if New Haven is deemed to have gone into liquidation. For the bondholders have never shown that anyone would pay a penny for the right to carry on New Haven's deficit-ridden Terminal operation. If nobody would pay a liquidating New Haven for the right to lose money, the right is, again, worthless. The Commission found that the only potential buyer would be the State of New York, moving to preserve the commuter service in the public interest. 334 I.C.C., at 32. Whether the State would have to pay Penn Central for the use of Penn Central's tracks and its share of Terminal expenses is not before us. On the liquidation hypothesis, the State would not have to pay Penn Central for New Haven's right of access, for Penn Central would not own it. And the State's paying New Haven depends on at least four independent contingencies: whether New Haven's right of access would survive liquidation; whether the right would exclude the power of Central to bestow a similar access right on a third party while New Haven's own went unused; whether, under the agreement with Central, the right would be capable of assignment; and whether the State, if required to pay New Haven anything to enter the Terminal, would choose instead to operate the commuter trains only to subway connections in the Bronx rather than all the way into Manhattan. We agree with the Commission and the reorganization court that these imponderables render the value of New Haven's right of access so speculative as to defy reasoned attribution of any value to it.
86
2. The Bronx freight yards. One of New Haven's principal real estate holdings consisted of two freight yards located on some 160 acres in the south Bronx, New York, between the East River on the one side and the Major Deegan Expressway and Bruckner Boulevard on the other. The Harlem River yard occupies nearly 4,000,000 square feet across the East River from Manhattan and Queens; it has been described by a qualified appraiser as 'a unique industrial facility that could be well used by any heavy industrial concern.' About a mile north of the Harlem River yard, and connected to it by the existing trackage of New Haven's Harlem Division line, lies the Oak Point yard, characterized by the appraiser as 'one of the most desirable industrial facilities in New York City.'
87
Two other facilities in the area are worthy of note. The first is the Hunts Point Market, located northeast of the Oak Point yard. The market is a $100,000,000 municipal installation and the central distribution area for the wholesaling of produce for the New York City metropolitan area. It lies on the promontory flanked by the Bronx and East Rivers, and is connected to the New Haven's Harlem Division line through a spur track owned by the city. The market is the largest receiver of rail traffic in the area, and plans are under way for further expansion. Fourth Supplemental Report, 334 I.C.C., at 43—44. The second facility is the former Port Morris yard of Penn Central, situated midway between the Harlem River and Oak Point yards and lying athwart the Harlem Division trackage that connects the two New Haven yards. Port Morris is linked by a branch line to Penn Central's Harlem Branch division, a principal element in the Penn Central System. An interchange track runs from the Port Morris branch line to the border of the Oak Point yard.
88
Before the Commission, the parties submitted five different estimates of the value of the Harlem River and Oak Point yards. The bondholders offered the testimony of an appraiser who thought the land would bring $32,000,000 for residential use and $26,000,000 for industrial use; the New Haven trustees offered the testimony of another appraiser who submitted two studies showing $22,650,000 and $18,090,990, both for industrial use; and Penn Central, that of a third appraiser who set the value, again for industrial use, at $15,585,000. In its Second Supplemental Report the Commission accepted the lower of the values proposed by the trustees' witness—$18,090,990. 331 I.C.C., at 668.
89
On the first round of judicial review the reorganization court thought that on the present record 'there was substantial evidence to support the Commission's valuation and not enough to show that it was unfair or inequitable,' but concluded that a clarification of the basis of the Commission's valuation was desirable. 289 F.Supp., at 464. On the remand, controversy centered on the alternative appraisals offered by the trustees' witness. It soon became evident that in valuing the freight yards the Commission had pursued the liquidation hypothesis with a vengeance. The higher appraisal of the trustees' witness had rested on the premise that upon cessation of New Haven operations the Bronx yards would be available for continued industrial occupancy, with existing trackage and electrical facilities left in place. The presence of such facilities commanded at least a 10% premium in Bronx realty values. The witness' second appraisal had assumed that upon liquidation New Haven would strip the yards of these facilities, thereby depressing the value of the land and incurring substantial costs of removal. 334 I.C.C., at 42. Adoption of that assumption resulted in the loss of over $4,000,000 in value.67
90
In its Fourth Supplemental Report the Commission adhered to its acceptance of the lower of the witness' two estimates, reiterating its reliance upon the liquidation premise. That premise justified the assumption that New Haven would dismantle the yards once the rest of the railroad was scrapped, since with no link to Penn Central the yards would have no value either as operating facilities or for industrial use with railroad connections.
91
But the fact of the matter was that even on the liquidation hypothesis the New Haven yards did not lack rail connections to Penn Central. Penn Central already had in place a branch line running from its Port Morris yard to its Harlem Branch division. That Port Morris line, along with the interchange track running up to the border of the Oak Point yard and meeting the New Haven's line at that point, would have continued in place even upon a liquidation of New Haven. The trustees' witness acknowledged that in arriving at the lower of his two values for the New Haven yards, he had been unaware of the Penn Central link at Port Morris. Nevertheless, the Commission attributed no significance to the witness' unawareness of the Port Morris connection, because it concluded that even with the existing link to the New Haven yards, it was 'extremely doubtful' that Penn Central would continue to provide service into the area after a New Haven liquidation. Once New Haven vanished, the Commission reasoned, Penn Central would be under no legal obligation to perform switching service beyond its own Port Morris line or to extend its line into the former New Haven yards. And the Commission accepted the testimony of a Penn Central witness that the company would have no economic incentive to provide service, because of the unprofitability of the perishable freight destined for the Hunts Point Market, as well as the absence of necessary track clearances and yard classifying facilities. 334 I.C.C., at 44—45.
92
On the second round of review the reorganization court ruled that the Commission had erred in rejecting the higher of the witness' two appraisals. 'It is undisputed that the Port Morris branch was and is there and operating and Penn Central has not been authorized to abandon it.' 304 F.Supp., at 807. The court overruled the Commission's determination that Penn Central would cease to provide service not only to the industrial enterprises in the 160-acre area of the two yards, but to the Hunts Point Market as well.
93
'The great bulk of produce for feeding of the millions of residents of metropolitan New York is brought in by rail through these yards to this market and distribution point. To assume that the State and City of New York would stand idly by and permit the life line to its huge and costly enterprise to be cut, just as it is in the midst of planning its necessary enlargement, because it was unwilling or unable effectively to bring pressures to bear or take steps on its own to preserve the connection with Penn Central is absurd * * *.' 304 F.Supp., at 807—808.
94
The ruling of the reorganization court is, at the least, free from the error that would require us to overturn its judgment on this matter. As the Commission's own report makes evident, the agency based its startling conclusion that Penn Central could deny service to the area, not on the facts of record, but in adherence to the untenable assumption that on liquidation New Haven would have uprooted the valuable trackage and electrical facilities already in place. According to the Commission, '(t)he record does not support any finding of substantial need for Penn Central service that would justify the construction by that carrier of the trackage necessary to connect Harlem River and Oak Point yards and the latter yard and Hunts Point, if N(ew) H(aven) were to be liquidated.' 334 I.C.C., at 47. (Emphasis supplied.) Of course we may assume that Penn Central could not be forced to buy land and build track to provide service into areas, noncontiguous to its rail system, to which it did not hold itself out as a common carrier. But it is a far cry from that proposition to the statement that a common carrier could deny service to industrial and public activities simply because ownership of adjoining trackage had changed hands.68 The record facts are that the trackage the Commission said Penn Central would have to construct is already in place, connecting the two yards and the market.69 The Commission nonetheless continued to presuppose the removal of the New Haven's rail facilities. 'On this record,' the Commission reiterated, 'and the assumption of N(ew) H(aven)'s liquidation and the dismantling of its system, Penn Central would not serve, and could not be compelled to serve, the Harlem River or Oak Point industries, or the Hunts Point Maket.' 334 I.C.C., at 47. (Emphasis supplied.) There is not a shred of record evidence to support the Commission's assumption as applied to the New Haven yards. It is not rational to suppose that the managers of the hypothetical liquidation sale, devoted to obtaining the highest possible price for the assets of the debtor, would have ignored the best use of the yard facilities and stripped them or more than $4,000,000 in value.70
95
3. The added deductions. On the remand the Commission recalculated the liquidation value of the New Haven, as directed by the reorganization court, and arrived at a new sum of $162,700,000. 'A property value of this sort inheres in the assets,' the Commission said, 'if we assume that the railroad may immediately shut down and begin a 6-year program of selling off the road parcel-by-parcel, and virtually tie-by-tie.' 334 I.C.C., at 53. But the Commission declined to approve the new figure as the proper liquidation value of the debtor.
96
'The liquidation value that results in this reopened proceeding exceeds the agreed price (of $125,000,000), obliging us to make a new determination as to whether the price resulting from such a valuation is fair.
97
'The establishment of liquidation value as a pricing floor on this record must assume that the N(ew) H(aven) may be shut down at once and be liquidated in parcels. Such a pricing theory assumes that the public may be denied an opportunity to be heard. It is wholly inconsistent with the requirement we have imposed on Penn Central to absorb the N(ew) H(aven), which requirement rests entirely upon the public's need for a continuing N(ew) H(aven). Any assumption that N(ew) H(aven) may be shut down and broken up must necessarily permit the conclusion that Penn Central may be relieved of its inclusion obligation. It is inequitable to conceive at the same time both a right in the bondholders to break up the N(ew) H(aven) and an obligation on Penn Central to keep it going. The demands of equity are no more satisfied by conceiving that the bondholders have a constitutional right to shut down the N(ew) H(aven) which is superior to the public's right to keep it going.
98
'The foregoing liquidation value assumes that this Commission has no function under the Interstate Commerce Act to decide whether public convenience and necessity permit the abandonment of N(ew) H(aven)'s entire line or portions of it. In view of our often repeated findings that there is a public need for the services of this railroad, there is no warrant for assuming that the creditors may now break up the railroad or devote the properties to another use. The estate is not relieved of its obligation to serve the public. A price that is premised on outright rejection of that obligation is inequitable and awards the estate a windfall that is not supported by any record evidence.' 334 I.C.C., at 54—55.
99
On the basis of this reasoning, the Commission then proceeded to take into account 'other pricing considerations'—costs of liquidation it had not reached in its earlier report because of its conclusion that the $125,000,000 price arrived at by the parties was proper under the Interstate Commerce and Bankruptcy Acts.
100
'The alleged right to liquidation values derives from an alleged right to abandon; and there are recognized limitations on the right to abandon that in themselves limit the creditors' entitlement to the liquidation value we have computed under the court's instructions. Under section 1(18) of the Interstate Commerce Act, the Commission is empowered to impose reasonable limitations on the abandonment right.' 334 I.C.C., at 57.
101
The Commission's new 'pricing considerations' consisted of two elements: a one-year delay the New Haven would have incurred in securing the approval of the Commission and the courts to abandon train operations; and a bulksale discount that a purchaser of all the debtor's assets, to whom the Commission could order the road to sell, would have commanded. Together the added deductions amounted to $22,081,000.
102
(a) The one-year delay. The Commission found that an application for a certificate of abandonment, as required by § 1(18) of the Interstate Commerce Act, would have precipitated a lengthy process of administrative action and judicial review resulting in at least a one-year's delay in the commencement of actual liquidation operations. The Commission assumed that the year delay would have occasioned a freeze on liquidation activity, following which the sell-off would have proceeded as projected in the Second Supplemental Report. The abandonment delay, the Commission found, would have added costs of $4,940,000 in preserving the assets of the estate, $2,500,000 in real estate taxes, and $7,946,000 in a discount of the sale receipts back to present worth.
103
On review the reorganization court rejected the delay concept, ruling that the added deduction violated the liquidation hypothesis upon which the debtor's assets had been valued. Neither the parties nor the Commission had previously postulated the deduction now imposed, because the liquidation hypothesis itself had presupposed a lawful abandonment of service. 304 F.Supp., at 798. That presupposition was rooted in the hard fact that for more than three years prior to December 31, 1966, the New Haven had been kept alive, despite its hopeless financial condition, solely in the name of the public interest and in anticipation of inclusion in Penn Central.
104
'By late 1963 it was clear to the Trustees of the New Haven and to the Reorganization Court that only two courses were open: the Trustees must press to accomplish the inclusion in a Penn Central merger or they must press for liquidation. The former was obviously in the public interest and the latter was not. The course of inclusion was followed; but because the merger and the reorganization proceedings stretched out far beyond what was originally forecast, the 'interim' became seven and a half years; and 'losses reasonably incident to working out the solution most consistent with the public interest' eroded the debtor's estate in excess of $60 million.
105
'Like Laban of old, the Commission would now require further servitude of the debtor—in this case the creditors. But the duty of the debtor's creditors to suffer losses for an interim period has already been fulfilled and the public interest has already been served to the extent that in fairness and equity the public had any right to demand.' 304 F.Supp., at 800. (Footnote omitted.)
106
The Commission and Penn Central take issue with the reorganization court's disallowance of the deduction for delay. The dispute between them and the bondholders is not, however, broad in concept. It does not draw into question the right of the Commission to insist that New Haven obtain permission to abandon its operations: no one here quarrels with the proposition that in the event of a liquidation, New Haven would have been obliged to obtain a certificate from the Commission pursuant to § 1(18) of the Interstate Commerce Act. The parties agree that since a delay occasioned by abandonment proceedings before the Commission, followed by judicial review, inheres in the liquidation process, the Commission may exercise its expertise in gauging the extent and expense of such a delay, and Penn Central need not pay for the consequent diminution in the value of the assets of the debtor. The dispute is, rather, a narrow one. It is simply whether, in the circumstances of this case, the valuation initially arrived at by the Commission already presupposed that the debtor had a certificate of abandonment in hand, so that assignment of a cost attributable to that factor amounts to an unwarranted double deduction.
107
Before this Court the Commission and Penn Central urge the view that until the remand the Commission had not taken the delay factor into account. They justify the deduction on the second round as a development of the governing liquidation hypothesis adopted on the first. Once we enter the world of a liquidation that never occurred, they say, the Commission is more competent than the courts to project incidental costs and delays. On the remand the Commission merely refined the liquidation approach to reflect added expenses not initially considered because of the fairness of the price arrived at by the parties. The new price ordered by the courts compelled re-examination of the elements of liquidation, of which abandonment delay is surely one. And when it comes to predicting the likelihood of delay in passing on an application for a certificate of abandonment, the Commission is, as Penn Central puts it, 'a uniquely qualified finder of fact * * *.'71
108
At once the 'refinement' rationale confronts an imposing obstacle raised by the Commission's own Second Supplemental Report. That report makes clear that the Commission had the element of delay before it in making its original valuation, but declined to apply any deduction on its account. The Commission considered—and rejected—Penn Central's request 'that an allowance be made to the earliest date at which a liquidation could reasonably be anticipated for the constant diminution of N(ew) H(aven)'s assets.' 331 I.C.C., at 698. (Emphasis supplied.) That rejection necessarily implied that the Commission had recognized the cost attributable to the delay occasioned by an abandonment proceeding, but determined not to weigh it in the balance. Thus we deal, not with a delay factor brought to light for the first time on the second round, but with one taken into account now even though deliberately excluded before. Justification, if any there be, must begin with the realization that the Commission changed its mind in midstream.
109
The reorganization court rejected the Commission's conclusion that the valuation date selected in the Second Supplemental Report December 31, 1966—represented the date on which New Haven would have sought a certificate of abandonment rather than the date on which the railroad would have commenced its six-year sale. In doing so, the court relied on more than the Commission's shift in position between its second and fourth reports. The court rested on its express finding of fact that 'but for the adoption by the Trustees of a course to serve the public interest, abandonment proceedings could and would have been commenced in late 1963 and liquidation would have been started, certainly by the valuation date of December 31, 1966.' 304 F.Supp., at 801. That finding comes to us from the federal judge who has presided over the second New Haven reorganization since its inception. 'In view of the District judge's familiarity with the reorganization, this finding has especial weight with us.' Reconstruction Finance Corp. v. Denver & R.G.W.R. Co., 328 U.S. 495, 533, 66 S.Ct. 1282. Not only are we unable to say the finding is erroneous; we do not see how the record of these proceedings permits any other conclusion.
110
Indeed, the Commission and Penn Central do not challenge that conclusion. Instead, they seek support for the delay deduction by urging that if confronted with an abandonment application, the Commission would have had to 'hear the communities that would be affected by the abandonment. If there is hope of a public takeover of segments, we must allow time for the States and communities to present their plans.' 334 I.C.C., at 58. But apart from the fact that this Court itself once characterized the notion that the affected States or the Federal Government might take over the road and its operations as 'sheer speculation,' Penn-Central Merger Cases, 389 U.S., at 507, 88 S.Ct., at 612, the reorganization court specifically rejected the Commission's argument.
111
'During seven and one-half years, the Federal government, the states, the communities and the public in general were fully informed by the Trustees of the Railroad as to the inability of the New Haven to survive as an independent railroad. And, apart from seeking inclusion in a merged Penn Central, the Trustees were engaging in a holding operation to afford the public bodies, as the real guardians of the public interest, the opportunity to act—to take over or adopt measures to preserve the New Haven transportation system. Response to this was partial tax assistance and, in the latter half of the period, grants which covered about 1/3 of the annual passenger losses. * * * Otherwise nothing has come to the attention of this court, to indicate anything more than a highly speculative prospect, that any or all of the states concerned or their municipalities had the slightest interest in taking over and operating the New Haven or any segment of it.
112
'In spite of full awareness of the situation of the bankrupt line and with nothing to prevent their doing so, no standby legislation, for use if inclusion of the New Haven by Penn Central fell through, was ever enacted or sought to be passed in seven and one-half years by the Federal Government or by any of the states for the take over and operation of the New Haven freight and passenger system or a segment of it (except for the west-end and the Boston commuter services); nor was any plan ever filed by the governmental bodies incorporating such take over and operation.' 304 F.Supp., at 800—801.72
113
We think the reorganization court was entirely correct in concluding that:
114
'The policy of imposing an interim burden of losses, through its deficit operation, on a railroad in reorganization is to afford a reasonable opportunity to the responsible agencies to arrange the continuation of the railroad's operation, but the law does not require the furnishing of two or three or four opportunities. The duty was more than amply fulfilled by the New Haven. The public interest has had one huge bite of the apple; it is not entitled to another.' 304 F.Supp., at 801.
115
It is argued that the Commission nonetheless should be permitted to tax New Haven with the cost of a one-year delay because in fact the debtor sought no abandonment certificate from the Commission. The Commission and Penn Central attribute this failure to New Haven's self-interest. 'The fact is,' the Commission said, 'that both the creditors and the trustees exercised options, assuming the risks involved therein, and the bondholders may not now he heard to ascribe to someone else the responsibility for the selection of their course of action, or inaction.' 334 I.C.C., at 58. (Footnote omitted.) But the continued operation of the New Haven as a railroad depleted the estate by at least $60,000,000. 304 F.Supp., at 800. We fail to see how the self-interest of either the estate or its creditors was bettered by that operation.
116
Nor is there any substance to the contention that by failing to press for immediate liquidation of the debtor, the bondholders somehow waived their right to object to the imposition of the deduction for delay. The record that shows the preservation of New Haven in the public interest long after it had ceased to be viable as an independent enterprise demonstrates at the most that the bondholders had resigned themselves to bearing the costs of interim operations pending inclusion in Penn Central. It contains no support for the proposition that they consented to the imposition of more than $15,000,000 in hypothetical costs on top of the tens of millions in actual costs they were forced to bear. As the reorganization court put it, '(S)uch a second round of loss superimposed on the first, like Pelion on Ossa, is as unfair and inequitable as can be imagined * * *.' 304 F.Supp., at 801. It cannot be sustained under any construction of the Bankruptcy Act.73
117
(b) The bulk-sale discount. New Haven's land holding consisted of over 25,000 acres located along its rights-of-way in four States. In its Second Supplemental Report the Commission accepted the New Haven trustees' appraisal of the realty. The New Haven analysis was prepared by the company's general real estate agent, who relied in some instances on the studies of outside appraisers. The agent drew on a fund of actual experience, for the New Haven had long had a real estate department engaged in the disposition of nonoperating properties. From the inception of the New Haven trusteeship through November 1966, that department had completed 853 separate realty sales for a gross consideration of some $13,900,000. The Commission found that the large volume of past sales provided a 'firm base' for the New Haven estimate. 331 I.C.C., at 667.
118
The New Haven agent assumed that the company would sell off its lots in normal-sized parcels. He gave specific consideration to each part of the railroad's property and reached his values on a zone-by-zone basis. He based his estimates of fair market value on his expert judgment, sales in the area, existing tax valuations, and the adaptability of the land to nonrailroad use. He discounted by 50% whenever the New Haven's records indicated questionable title; on the six-year liquidation hypothesis, he deducted $15,971,000 as the cost of operating the New Haven realty department; and on the further assumption that the debtor would have to sell some of the property during the final year at vastly reduced prices, he made a further deduction of $8,178,000.
119
On the remand, the Commission ordered a further deduction from the liquidation value of the estate, based on a hypothetical sale in bulk of all the New Haven's land assets.
120
'The liquidation value urged by the creditors assumes not only the immediate right to abandon * * * but also the right to break up the railroad and sell the parcels for their highest and best price. We think such a right may be restricted when a buyer for the entire bulk of the N(ew) H(aven) properties appears who will continue the operation of needed services.' 334 I.C.C., at 60. (Footnote omitted.)
121
The Commission calculated the deduction on the premise that '(t)he bulk-sale discount merely reflects a market appraisal of the risks that the estate avoids, and the bulk buyer assumes.' Id., at 61. The Commission then credited the evidence that Penn Central had presented through a realty expert with respect to a bulk sale of the New Haven land properties. The expert testified to the premium to be charged by a 'single purchaser of property who would, in turn, sell off the property probably to many users and who would obtain his profit by reason of its purchase and resale.' On the basis of this testimony, the Commission found that a bulk buyer would command at least a 10.5% return on his investment, calculated as the sum of a 75% borrowing at 9% and a 25% self-financing at an internal charge of 15%, and that such an investment rate required an additional 4.5% discount of the New Haven land values over and above the 6% by which they had already been reduced. This bulk-sale discount resulted in a further diminution of $6,695,000 in the valuation of the New Haven assets. 334 I.C.C., at 61—62.
122
On the second round of review the reorganization court rejected the bulk-sale deduction as 'improper and without support in law or reason.' 304 F.Supp., at 805.
123
'Value, under the circumstances of this case, can only be arrived at through the dismantling of the transportation plant and a piece by piece sale of the properties. It is clear from the record that a market existed for the disposition of the properties on this basis. Their value is the best price the market place will give the seller, less the costs and expenses relevant to the sale * * *. It makes no difference whether the purchaser wants to use the property as is, or to improve and develop it. The question is how much will the market place give for a particular item of property.' Ibid.
124
The court answered the argument that the discount merely reflected the risk of nonsale that the seller transferred to the bulk buyer by pointing to the Commission's prior deduction of over $8,000,000 for that purpose. Moreover, the deduction violated the requirement that the sale price meet the 'fair upset' minimum imposed by § 77(b)(5) of the Bankruptcy Act. 'That lowest price is what the market would pay, which is implicit in the standard used here, i.e., fair liquidation value. Neither a trustee nor an equity receiver could with the court's approval, sell for less.' 304 F.Supp., at 806.
125
Penn Central now protests that the reorganization court has erred in rejecting the bulk-sale discount. It says its expert witness duplicated no discounts previously taken; he proceeded on the basis of all previous deductions. In addition, it is argued, his analysis took into account the problem of market absorption caused by the mass marketing of some 1,700 sale parcels and the risk of further depression of land values occasioned by cessation of New Haven's operations—factors not considered by New Haven's witness. The hypothetical bulk sale, Penn Central says, was merely a construct for quantifying the risks that New Haven itself would have assumed in undertaking the sale of its realty; it afforded a means to determine 'the minimum rates of return necessary to attract capital to the business of owning and disposing of the New Haven's land.' Penn Central insists that the bulk-sale analysis thus constituted a 'pricing out' of an additional cost of liquidation; it was 'simply an analytical device for approximating risks that would occur if the land were retailed over time as promptly as possible * * *.'
126
We may assume that Penn Central's 'pricing out' theory is a rational one. But the record demonstrates that the Commission rejected it as insufficient to justify application of the bulk-sale theory. Penn Central's analysis, said the Commission.
127
'overlooks what is necessarily the bondholders' position namely that aside from principles of equity and fairness they have a fixed right to sell off N(ew) H(aven) in parcels, so that even a bulk buyer must pay the perparcel price. Our answer is that we may compel the bulk sale and the bulk sale discount as a condition of an abandonment certificate, and, therefore, as a reduction of the present price.
128
'* * * We * * * might compel N(ew) H(aven), if it filed for abandonment, to sell in bulk and thereby make a bulk sale price appropriate.' 334 I.C.C., at 61.
129
The Commission thus ruled that only by assuming an actual buyer in bulk who would take over the New Haven properties for continued railroad operations could it compel the transfer of the real property at the reduced price. Far from setting forth a theory of compulsory transfer 'completely independent' of a 'pricing out' analysis, the Commission concluded that only its power to compel the sale of the real estate to a single buyer for continued operation justified the bulk-sale discount.
130
We do not consider whether the Commission could lawfully impose such a bulk-transfer obligation on a railroad in liquidation at the cost of reducing the per-parcel valuation of its assets.74 For the record before us is devoid of evidence that a bulk buyer would agree to take over the New Haven properties for continued service at any price. When a railroad has a lengthy history of deficit operations with no prospect of improvement, and a consequent operating value of zero or even a negative figure, the Commission cannot rationally assume that a deus ex machina will emerge to spend millions for the opportunity to lose millions more.
131
Penn Central's witness gave no testimony in support of any such theory. He was a professional developer of real estate, not a railroad operator. And he testified to what extra charges he would levy, after all previous deductions for the costs and risks of sale, to assume the risk of nonsale as well as the entrepreneurial activity of retailing the realty parcels. His testimony established nothing more than that he would not undertake the task of per-parcel sales that New Haven had assumed unless the company paid him a handsome fee. The Commission could hardly have compelled the New Haven trustees to turn over the assets of the debtor to such an entrepreneur, who would, on his own testimony, have proceeded himself to do just what the Commission said it was empowered to forbid the bondholders to do—dismantle the estate, rid himself of railroad-connected assets, and devote his talents to the disposition of the realty.
132
4. The discount of liquidation factors. In its Second Supplemental Report the Commission accepted the projection offered by the New Haven trustees that they could substantially complete a liquidation sale in six years. 331 I.C.C., at 663. Accordingly, the Commission discounted the estimated receipts of sale over the six-year period to reflect their present value—a deduction of $17,563,000. Id., at 661. It did not, however, discount the estimated expenses of liquidation, although these, too, were projected to occur over the six-year period. The reorganization court was of the view that if future receipts were to be discounted to present value, future expenses should likewise be. 289 F.Supp., at 461; cf. id., at 427—428. On the remand the Commission concurred. It noted that the parties were very close in their estimates of the proper discount, and it concluded that $3,800,000 represented the correct figure. Fourth Supplemental Report, 334 I.C.C., at 39—40.
133
On the second round of review the reorganization court observed that despite three valuation changes netting a $6,600,000 reduction in estimated worth, the Commission had failed to adjust the old, inapplicable discount figure. Accordingly, the court directed the Commission to file 'a new formulation and computation of the discount for present value of the New Haven's liquidation proceeds, in accordance with generally recognized accounting principles and based upon the changes made in valuation items through and including those stated in the present opinion.' 304 F.Supp., at 810—811. The court added that the Commission could submit its new formulation and computation in the form of a letter or short brief, and afforded other parties in interest one week to file their comments, as well as any formulations and computations of their own, also in a letter or brief. In accordance with this directive of the court, the Commission submitted its new calculations, and the bondholders replied. In its order adjudging the price to be paid, the reorganization court ruled that '(t) he sum of $2,415,899 should be added to liquidation value inasmuch as it was improperly deducted in applying the discount to present value found by the Commission * * *.' 304 F.Supp. 1136, 1137.
134
In its brief before this Court the Bondholders Committee states that the reorganization court's directive resulted from the Commission's continued failure to calculate discounts back to present value with respect to four items, three of them to the detriment of New Haven and one to the detriment of Penn Central. The first is the $8,177,633 deducted as the cost of hypothetical forced sales of New Haven realty during the last years of the liquidation. The Commission could have treated the item either as part of the value of the unsold land and then written it off as a cost of sale, with a discount back to present value for both sides of the balance sheet, or as a wash to be eliminated in computing both receipts and expenses. In fact the Commission did neither: it included the figure on both sides of the books, but discounted back only in the asset column. The result, says the Committee, is an error of $2,066,488. A similar shortcoming in determining the liquidation values of road property, such as ties and rails, added another error of $1,474,057. Third, says the Committee, the Commission erroneously spread the sale of certain realty over the full six-year period when the undisputed evidence showed that New Haven could sell the land in 12 to 18 months; this resulted in an overstatement of $118,000 in the discount attributable to the net proceeds. Finally, the Commission assumed that New Haven could sell off $47,121,400 in equipment, investments, and materials during the first year of the liquidation, but failed to spread the assumed receipts over the entirety of that year, with a consequent understatement of $1,372,646 in the applicable discount. A netting of the four items, together with an added correction of $130,000 made by the Commission, results in the $2,415,899 adjustment ordered by the reorganization court.
135
The Commission does not dispute that it made the errors as alleged by the Committee. Its sold reply is that the bondholders have waived their claims in this regard by failing to present them to the Commission. Penn Central concedes that 'the first two errors asserted by the bondholders represent miscomputations' in Penn Central's favor. But it argues that the amount of the fourth error and the existence of the third were the subject of conflicting testimony before the Commission, and it joins in the Commission's contention that the bondholders have waived the right to a resolution in their favor by failing to press a timely objection before the Commission when the agency first made its alleged mistakes.
136
The record demonstrates that the bondholders have the better of this argument. It is undisputed that both the bondholders and Penn Central presented witnesses to the Commission on the remand who agreed that the Commission had erred in its discounts and who differed only in minor amounts. See Fourth Supplemental Report, 334 I.C.C., at 40. But the Commission simply bypassed the agreement, unpersuaded that it had erred in its prior opinion. Id., at n. 17. The bondholders then carried the persistent discounting error to the reorganization court on the second round and won corrective relief. The submission of proposed adjustments by way of a letter was not, as is suggested, an untimely filing of claims, but a proper presentation pursuant to the instruction of the court—an instruction made necessary by the Commission's failure to straighten out the discounts after two rounds of hearings and reports, with errors that the boundholders on one side and Penn Central on the other now frankly concede aggregate over $5,000,000. Of the four items advanced by the Committee, only the third is subject to any real doubt, and that $118,000 item can hardly be considered a substantial sum in the context of these cases. A further remand to the Commission to resolve the accuracy of such a figure would serve no useful purpose at this stage of the litigation. The reorganization court resolved the controversy in favor of the bondholders following extensive oral argument on the issue. We affirm its judgment on these issues as free from that degree of error that would require us to overturn its finding.
137
5. The loan-loss formula. In its Second Supplemental Report the Commission, projecting a three-year interim period between merger and inclusion and concluding that a short-term lease would not be appropriate, required Penn Central to extend $25,000,000 in loans to the New Haven in exchange for first-priority trustees' certificates. 331 I.C.C., at 702—706.75 In addition, it ordered Penn Central to share in New Haven's operating losses to the extent of 100% in the first year, 50% in the second, and 25% in the third, not to exceed $5,500,000 in any one year. Id., at 718—719. On the first round of judicial review the sliding-scale aspect of the formula was disapproved as an improper deterrent to the bondholders' assertion of their legal rights, 289 F.Supp., at 444, pursuant to the suggestion of Mr. Justice Douglas at an earlier stage of the proceedings, see Penn-Central Merger Cases, 389 U.S., at 557—558, 88 S.Ct., at 637—638 (separate opinion), and on the remand the Commission abandoned it. 334 I.C.C., at 71—72.
138
The $5,500,000 annual ceiling derived from the assumption, based on calculations provided by the New Haven trustees and accepted by the Commission, that despite the massive cash drain in 1967, future annual New Haven operating losses would be unlikely to exceed $5,400,000 in succeeding years. 331 I.C.C., at 718—719. Coupled with the sliding-scale formula, the annual ceiling thus proposed that Penn Central absorb the entirety of New Haven's 1968 cash loss. On the first round the reorganization court expressed the opinion that even with the abrogation of the sliding scale, Penn Central's share of that loss 'should be a substantial percentage.' 289 F.Supp., at 464.
139
By the time the parties returned to the Commission on the remand, it was evident that the trustees' appraisal of their ability to contain the New Haven's deficits had been far too optimistic. From February through December 1968, the trustees had already drawn down $14,000,000 of the $25,000,000 loan that was supposed to last for three year; at that rate they would exhaust the loan in another six or seven months. 334 I.C.C., at 72. The cash loss was equally grim: the projected 1968 cash deficit stood at $15,672,000, with an estimated operating deficit of $8,200,000. Despite the $2,800,000 increase in the operating deficit over the trustees' initial prediction, the Commission adhered to its original ceiling and, prorating over the 11-month period from merger to inclusion, required Penn Central to pay $5,000,000. 334 I.C.C., at 74. On the second round of review the reorganization court affirmed without discussion.
140
The bondholders now urge that Penn Central be required to bear the entire operating loss from merger to inclusion. Now Haven incurred that loss as an independent entity, say the bondholders, only because it remained outside of Penn Central after the merger, at Penn Central's request and for Penn Central's convenience. It is urged that the Commission's ceiling was originally calculated to place the entire loss of the first year on Penn Central, and that the original intention should be carried out.76
141
Penn Central denies responsibility for the fact that inclusion took place some 11 months after merger rather than along with it, and puts the blame at the door of the bondholders for their litigious insistence upon working out the terms of inclusion prior to the event. It also notes that it has been obliged to take over New Haven less than a year after its own formation, rather than at a later point in the three-year period originally envisaged by the Commission.
142
While the issue is not free from doubt, we cannot say the reorganization court committed error in letting the Commission's action stand. Without ascribing fault to any party, we note the unfairness to the bondholders in requiring them to bear whatever portion of the operating loss Penn Central does not pay due to the inability of Penn Central and the trustees to negotiate an interim lease. On the other hand, there is a countervailing unfairness to Penn Central in requiring it to bear the full burden of New Haven's losses while it lacked exclusive and assured control over the operations of the debtor. The $5,000,000 paid by Penn Central is no drop in the bucket; it amounts to 61% of the operating loss as figured by the Commission and nearly one-third of the entire cash loss for the interim period. In no sense did Penn Central's contribution represent a payment for assets received; on the liquidation hypothesis, the Commission could rationally have declined to require any payment at all. Chase Manhattan argues that (e)ither there was no equitable obligation on the part of Penn Central to pay any of the New Haven loss during the period from the date of the Penn Central merger to the date of its acquisition of the New Haven assets or there was an obligation to pay the entire loss.' We cannot agree that the Commission was obliged to adopt such an all-or-nothing approach. Under the circumstances, the Commission's final disposition represents a pragmatic compromise of the competing interests, and in the absence of a controlling contrary principle of law we do not disturb the reorganization court's acceptance of the Commission's judgment.
143
6. New Haven investments. The Bondholders Committee complains that New Haven has transferred its stock ownership in two concerns the New York Connecting Railroad and the Railway Express Agency with no value given in exchange. The Connecting Railroad was owned jointly by New Haven and Penn Central on a 50—50 basis, Fourth Supplemental Report, 334 I.C.C., at 44 n. 20, and is now presumably a wholly owned subsidiary of the merged company. REA is owned by various railroads; at the time of inclusion New Haven held about 4.5% of the outstanding stock.
144
In both instances the Commission valued New Haven's investment interest on the liquidation hypothesis. A witness presented by the New Haven trustees, whose testimony the Commission accepted, stated that because of Connecting Railroad's $18,000,000 funded debt its stock would have no liquidation value whatever. As to the REA, he said that its stock would have little or no value because of pending litigation over a tender offer for the stock77 as well as recent legislation increasing the permissible size and weight of parcel post packages. Second Supplemental Report, 331 I.C.C., at 678.
145
The Bondholders Committee does not attack the Commission's finding of zero value for the Connecting Railroad and REA stock. Instead, the Committee says that if the shares were worthless, the Commission erred in requiring their transfer to Penn Central. Were the stock to have had no value on the liquidation of New Haven, the Committee argues, the reorganization court would, in the absence of bids for the shares, have ordered their distribution to the creditors to do with as they pleased. Accordingly, the Committee calls for the return of the stock to New Haven.
146
The Committee's request overlooks the fact that even though the shares in question might be worthless to a New Haven undergoing liquidation, the Commission could nonetheless order their transfer on the ground of their value to an ongoing Penn Central required to take in New Haven as an operating entity. But entirely apart from that consideration, and without pausing to assess the correctness of the zero valuation placed on the stock, we agree with Penn Central that the Committee's request for the return of the stock is foreclosed by res judicata. For the Committee—as well as all the other bondholders—took no appeal from the order of the reorganization court directing the transfer of the New Haven assets subject to a later determination of value.78
147
7. 'Going-concern' value. The bondholders urge that Penn Central should pay an added amount to reflect the 'going-concern' value of the New Haven. This sum, it is stressed, would be calculated, not as an alternative to liquidation value, but as a supplement to it. Since it is universally agreed that the New Haven was a losing operation in the form in which Penn Central was obliged to take it over, the bondholders display considerable temerity in pressing for inclusion of what could prove, in an ultimate analysis, to be only a substantial negative figure.79
148
The Commission rejected the notion that the New Haven had a going-concern value over and above the liquidation value of its physical properties. In the Commission's view, the bondholders' estimate of $55,075,000 for such intangibles as organizational costs was premised on the replacement of defunct railroad and overlooked the probability that no one would ever have rebuilt the New Haven in its present form. More fundamentally, the Commission correctly repudiated the claims based on going-concern value as antithetical to the liquidation hypothesis on which the appraisal of the New Haven's assets had proceeded. As the Commission said, 'It is not realistic to assume that a potential buyer would pay the liquidated value of the N(ew) H(aven) assets and then pay additional amounts representing elements of going concern value in the face of N(ew) H(aven)'s past deficit operations and its bleak prospects for the future.' Second Supplemental Report, 331 I.C.C., at 686—687.
149
The Bondholders Committee concedes that the intangible assets in fact acquired by Penn Central 'would be worthless to the New Haven in an assumed liquidation * * *.' That is enough to end the matter. The bondholders are not entitled to treat the New Haven as a liquidating enterprise with respect to certain items and as an operating railroad with respect to others, depending on which approach happens to yield the higher value. Nothing could be more unfair or inequitable to Penn Central than to permit the New Haven bondholders, at its expense, to have the best of both worlds.80
150
8. The 'underwriting' plan for the Penn Central stock. Thus far we have considered the disputes over the valuation of the New Haven assets transferred to Penn Central. We now reach the one issue raised in connection with the consideration given by Penn Central in exchange. The Purchase Agreement negotiated by Pennsylvania and New York Central on the one side and the New Haven trustees on the other provided that Penn Central should pay in part for the New Haven properties with 950,000 shares of its common stock.81 As a New Haven trustee stated, '(O)ne of the principles for which we negotiated at considerable length was that the bulk of the consideration should be in the form of common stock or, failing that, should be debt instruments having either conversion rights or options which would permit the claimants to the New Haven's Estate to participate in the benefits of the merger.' In confirming the terms of the agreement, the Commission accepted the testimony of a New Haven trustee that the value of the stock could range anywhere from $75 to $100 a share on the date of closing and that the average, $87.50, represented his estimate of market value at the time of inclusion. 331 I.C.C., at 688—689. The Commission adopted the $87.50 per share value placed on the Penn Central stock by the trustee as reasonable. Id., at 689—690.
151
On the first round of review the reorganization court agreed that the $87.50 per share figure represented a fair value for the Penn Central stock, based on the Commission's calculation of the estimated future earning power of the new company and the testimony of the New Haven trustee, 'a well qualified expert.' The court saw 'no reason why recent fluctuations in the market value of these shares should change the disposition of the matter * * *.' 289 F.Supp., at 462.
152
On the remand, the bondholders challenged the Commission's stock valuation. The Commission cursorily rejected the attack on the ground that the bondholders' witness was unfamiliar with Penn Central's operating and financial plans, gave undue weight to extraordinary past expenses, and generally neglected the future prospects of the company. 334 I.C.C., at 68 n. 40.
153
By the time of the second round of judicial review, inclusion had taken place and the Penn Central had given its consideration in exchange. The bondholders, renewing their charge that the Commission's prophecy had been erroneous, pointed to the actual market performance of the stock. As of the inclusion date, December 31, 1968, the market price stood at 63 3/8, more than 20 points below the Commission's estimated value. If that date should be thought suspect because of year-end sell-offs, the bondholders noted that throughout 1968 the price had fluctuated between 53 1/2 and 86 1/2, with a mean price between February 1 and December 31 of 69 1/2. Thus, the bondholders contended, the primary component of their bundle of consideration had turned out to be worth anywhere from $17,000,000 to $23,000,000 less than it was supposed to be.
154
On the second round the reorganization court rejected the bondholders' contention that the Commission had predicted an $87.50 value as of the closing date.
155
'(T)he Commission, presumably in an effort to assure fairness to Penn Central, did not use the market value of December 31, 1966 or an average of the values at or about December 31, 1968, the actual date of transfer. Instead, it adopted the theory that, after all, the purpose of using stock in payment was to tap the expected future economic benefit of the Penn Central merger which would come to full fruition seven to ten years after its effective date on February 1, 1968, but would be reflected in an upward trend of the stock at the time of closing or transfer of New Haven's assets to Penn Central, then estimated to be in 1970.
156
'(T)he theory of giving recognition to an intrinsic value in the shares, which will be realized when the full economic benefits of the merger have been achieved, not only assists the Penn Central by relieving it of the need to divest itself of a crippling amount of cash, which would be prejudicial to its merger program, but affords the New Haven an opportunity to participate in probable future profits.' 304 F.Supp., at 808—809.
157
The court nonetheless recognized an element of unfairness to the New Haven bondholders in that the New Haven was compelled to accept the stock 'at a substantial present loss on an assurance of future gain.' As the court put it, 'The nub of the unfairness and inequity is not the 87 1/2 fixed for present calculations, but the fact that the purchaser is getting assets of sure present value while the seller is asked to gamble for its payment on the future of the Penn Central.' Id., at 809. The court concluded that this did not necessitate a change in price or an amendment to the valuations postulated by the Commission. 'To be fair and equitable, however, it does require a supplemental provision fulfilling the implicit promise by the purchaser to pay $83.1 million as part of the price for the assets conveyed.' Accordingly, the court provided that
158
'if at any time the market price of Penn Central common shares reaches and maintains 87 1/2 per share on the New York Stock Exchange for a period of five consecutive days on which the Exchange is open and doing business (not counting days on which the Exchange is closed to trading) between the date of final consummation of the plan of reorganization and February 1, 1978, then and in that event it will be conclusively presumed that Penn Central has, in transferring the shares to the New Haven, made payment of the $83.1 million of the purchase price represented by the shares. If, however, the common shares of Penn Central do not reach and maintain the price as aforesaid, then the value of the shares will be determined by the average of the means between high and low prices of Penn Central shares on the New York Stock Exchange for the 30 business days next preceding February 1, 1978, on which the Exchange is actually operating and there are sales of Penn Central shares. Penn Central will forthwith become liable to pay in cash to the New Haven, or its successor or successors, the difference between said mean market prices of those 30 days and 87 1/2 for each share * * *.' 304 F.Supp., at 809—810.
159
The court provided that the benefit of Penn Central's underwriting of any difference between the mean market price and 87 1/2 would inure only to the New Haven and would not follow the shares into the hands of third-party buyers.
160
In addition, the court afforded Penn Central the option of relieving itself of the 1978 underwriting obligation in the following manner:
161
'The Penn Central is granted an option, operative between the date of final consummation of the plan and February 1, 1978, to discharge its obligation to underwrite and pay the difference between such average market price and the higher 87 1/2 at the end of the ten year period by paying on one or more blocks of 50,000 shares to the New Haven * * * the difference between the mean market prices for sales of Penn Central common shares and 87 1/2 per share as of a specific day of sales on the Exchange which shall previously have been designated by Penn Central in a written notice delivered to the New Haven at least 5 days prior to such market date.' Id., at 810.
162
The underwriting plan of the reorganization court thus combined a series of essential findings and protective features. First, it ratified the Commission's determination that intrinsic value rather than market price should guide the appraisal of the worth of the Penn Central common stock; second, it predicted that that intrinsic value would be reflected in a market price of at least $87.50 per share by the time Penn Central fully realized the benefits of its merger; third, it provided that Penn Central would secure the New Haven estate against the risk that the market price of its stock would not reflect that minimum intrinsic value within the first nine years after inclusion; and fourth, it contemplated that New Haven would be left free to participate in whatever future appreciations in value Penn Central's stock might enjoy. In sum, the reorganization court devised a plan that added to its assessment of present worth both a reasonable assurance of realization of such worth and the opportunity of additional gain. In so doing, the reorganization court in effect determined that postponement of immediate realization of $87.50 per share was offset by the possibility of even greater future market price of the stock, and that the package constituted fair compensation for the assets transferred to Penn Central.
163
On the basis of the record before the District Court at the time of its order, we would have no hesitancy in accepting its findings, conclusions, and proposed underwriting plan as consistent with the history of the reorganization proceedings and supported by substantial evidence. But we cannot avoid the impact of recent events in assessing the propriety of the decree that that court has entered. See United States v. Aluminum Co. of America, 2 Cir., 148 F.2d 416, 445. And those events make it possible that this aspect of the reorganization court's decree may be wholly unrealistic.
164
The fairness and equity that are the essence of a § 77 proceeding forbid our approval of a payment for the transferred New Haven properties that may be worth only a fraction of its purported value. And the same considerations of fairness and equity prevent imposing on Penn Central the burden of immediate payment in full, particularly when it is remembered that the New Haven bondholders have never objected to the receipt of Penn Central stock in exchange for the New Haven assets.
165
Accordingly, we set aside the order of the Connecticut District Court insofar as it determines that an intrinsic value of $87.50 inheres in the Penn Central common stock and implements an underwriting plan to secure payment of that sum. Further proceedings before the Commission and the appropriate federal courts will be necessary to determine the form that Penn Central's consideration to New Haven should properly take and the status of the New Haven estate as a shareholder or creditor of Penn Central.
V
166
We turn finally to the contention of the bondholders that quite apart from the specific items that together go to make up the price to be paid for the New Haven assets, the plan of reorganization itself is not only unfair and inequitable under the Bankruptcy Act but violates the Fifth Amendment as a taking of property without just compensation.
167
The purchase price that the Commission and the reorganization court have required Penn Central to pay to the New Haven estate is based upon the liquidation value of the seller's assets, appraised as of December 31, 1966. That price hypothesizes a shutdown of New Haven followed by a sell-off of its assets at their highest and best value. In the circumstances of this case, and for the reasons we have already set out at length, we agree with the reorganization court that it would be unfair and inequitable to allow Penn Central to take the properties for any lesser sum. Moreover, we today require a reassessment of the consideration that Penn Central is to give in exchange for those properties. We thereby accord the bondholders the right to a liquidation and a per-parcel sale that is theirs by virtue of their mortgage liens. The Bankruptcy Act does not require that they be given more. Nor is it necessary to consider the bondholders' claim that anything less than full liquidation value would amount to an uncompensated taking in violation of the Fifth Amendment.
168
But the Bondholders Committee presses another Fifth Amendment argument. It points to the Commission's own finding that from the inception of the New Haven reorganization through 1968 the debtor's estate had amassed more than $70,000,000 in administrative and pre-bankruptcy claims that take priority over the bondholders' liens. Fourth Supplemental Report, 334 I.C.C., at 126. The reorganization court itself noted that "losses reasonably incident to working out the solution most consistent with the public interest' (have) eroded the debtor's estate in excess of $60 million.' 304 F.Supp., at 800. (Footnote omitted.) Although the extent to which the ongoing deficit operation has impaired the bondholders' security is unclear, it is undeniable that the continued operation of the railroad into the late 1960's, together with the legal uncertainties engendered by the doubtful future of the company, have greatly depressed the value of the bondholders' interests. Cf. Penn-Central Merger Cases, 389 U.S., at 509, 88 S.Ct., at 613.82
169
A § 77 reorganization court may not, of course, disregard a claim that injurious consequences will result to a secured creditor from the suspension of the right to enforce his lien against the property of a debtor. That claim, however, 'presents a question addressed not to the power of the court but to its discretion—a matter not subject to the interference of an appellate court unless such discretion be improvidently exercised.' Continental Illinois National Bank & Trust Co. of Chicago v. Chicago, R.I. & P.R. Co., 294 U.S. 648, 677, 55 S.Ct. 595, 79 L.Ed. 1110. Here the reorganization court recognized its duties under the Bankruptcy Act and the Constitution. In August 1968 it ruled as follows:
170
'In view of the history of this deficit operation from the time of the filing of the petition under § 77 and even before, the size of the losses, the long period of time necessarily involved in seeking to work out a solution, short of liquidation, through inclusion in the Penn-Central, the present condition of the Railroad and the rate of loss and out-flow of cash in the recent past and in the foreseeable future, this court finds that the continued erosion of the Debtor's estate from operational losses after the end of 1968 will clearly constitute a taking of the Debtor's property and consequently the interests of the bondholders, without just compensation. It is therefore constitutionally impermissible, and obviously no reorganization plan which calls for such a taking can be approved.' 289 F.Supp., at 459.
171
We do not doubt that the time consumed in the course of the proceedings in the reorganization court has imposed a substantial loss upon the bondholders. But in the circumstances presented by this litigation we see no constitutional bar to that result. The rights of the bondholders are not absolute. As we have had occasion to say before, security holders
172
'cannot be called upon to sacrifice their property so that a depression-proof railroad system might be created. But they invested their capital in a public utility that does owe an obligation to the public. * * * (B)y their entry into a railroad enterprise, (they) assumed the risk that in any depression or any reorganization the interests of the public would be considered as well as theirs.' Reconstruction Finance Corp. v. Denver & R.G.W.R. Co., 328 U.S. 495, 535—536, 66 S.Ct. 1282, 90 L.Ed. 1400.
173
Only two Terms ago, when we last considered the Penn Central merger, we quoted approvingly the Commission's statement that '(i)t is a fundamental aspect of our free enterprise economy that private persons assume the risks attached to their investments, and the N(ew) H(aven) creditors can expect no less because the N(ew) H(aven)'s properties are devoted to a public use.' Penn-Central Merger Cases, 389 U.S., at 510, 88 S.Ct., at 614. We added:
174
'While the rights of the bondholders are entitled to respect, they do not command Procrustean measures. They certainly do not dictate that rail operations vital to the Nation be jettisoned despite the availability of a feasible alternative. The public interest is not merely a pawn to be sacrificed for the strategic purposes or protection of a class of security holders * * *.' Id., at 510—511, 88 S.Ct., at 614.
175
In this context we appraise the bondholders' claim that the continued operation of the New Haven from the inception of the reorganization proceeding in 1961 to the inclusion in Penn Central in 1968 worked an unconstitutional taking of their property. There is no longer room for dispute that the bondholders will receive the highest and best price for the assests of the debtor as of December 31, 1966. That price of course reflects the depreciation of the properties and the losses incurred in the operation of the railroad from the commencement of reorganization proceedings under § 77 in the middle of 1961. But the Bondholders Committee does not tell us what the depreciation and losses attributable to the prevaluation period are. Moreover, no bondholder formally petitioned the reorganization court to dismiss the proceedings and thereby permit a foreclosure on the mortgage liens until April 1967—well after the 1966 valuation date.83
176
Nor can Penn Central be held liable for the further decline in New Haven's value from the valuation date to the actual inclusion. The new company did not even come into existence until midway through that period, and from the point of its own creation until it took in the New Haven, it contributed substantially to recompense the debtor for its operating losses. Moreover, the failure of the bondholders to press for early liquidation of the New Haven meant that their initial application for a dismissal of the reorganization proceedings came just as the objective of salvaging the New Haven appeared possible to achieve. As the reorganization court noted, only two of the several bondholder groups made that initial application; it was not joined by the trustees, nor was it endorsed by other representatives of the bondholders and creditors; and it came just as the Commission was about to certify a feasible plan of reorganization to the court. 'To jettison everything achieved and turn back just as a glimmer of light begins to show at the end of a long dark tunnel,' said the court, 'not only carries with it an aura of unreality but borders on the fantastic.' In re New York, N.H. & H.R. Co., 281 F.Supp., at 68.
177
On the other hand, we must also reject any lingering suggestion by Penn Central that the price it must pay for the New Haven assets is unfair in either a statutory or a constitutional sense. At first glance there is a seeming anomaly in the requirement that Penn Central pay a liquidating value for property it must operate at a loss. But it is not correct to say that New Haven's right to liquidate is inconsistent with Penn Central's obligation to operate, or that if the New Haven's creditors had such a right, Penn Central must have it as well. The bondholders had the right by force of their state-created liens under the New Haven's mortgage obligations. Penn Central had no such right, because its merger was expressly conditioned on its assumption of responsibility for continued New Haven service. There was nothing inequitable in an arrangement that permitted the bondholders to recover the value of their liens on the property of the debtor at the same time that it required Penn Central to pay that value in exchange for the nearly $1,000,000,000 worth of benefits that the merger was then anticipated to produce.
178
As the Commission said at the time of its Second Supplemental Report, 'Calling upon Penn-Central to pay more than the N(ew) H(aven) is worth as a going concern is not unreasonable within the meaning of section 5(2). * * * The Penn-Central merger (which will bring substantial dollar savings to the merger applicants) was approved with the thought that some of the merger savings would be available specifically to ward off a liquidation and shutdown of the N(ew) H(aven) so that adequate transportation service would remain available to the public which now relies on the N(ew) H(aven).' 331 I.C.C., at 687—688.
179
The reorganization court made the point with clarity and force:
180
'The whole purpose of making the inclusion of the New Haven a condition of the merger was to require Penn-Central, which, in being permitted to merge, was granted the opportunity to realize tremendous economic benefits, to take over and operate a helplessly sick but still needed railroad, which it could well afford to do. It is part of the price Penn-Central is called upon to pay for the right to merge. The right to merge was granted, the merger has taken place, and the price should be paid.' 289 F.Supp., at 465—466.
181
For the reasons stated in this opinion, the judgment of the United States District Court for the District of Connecticut, reviewed on writs of certiorari in Nos. 914, 916, 920, 1038, and 1057, is affirmed in part and vacated and remanded in part. The judgment of the United States District Court for the Southern District of New York, appealed from in Nos. 915, 917, and 921, is vacated, and those cases are remanded with instructions to abstain pending the further proceedings before the Interstate Commerce Commission and the reviewing courts under § 77 of the Bankruptcy Act.
182
It is so ordered.
183
Judgments in cases Nos. 914, 916, 920, 1038, and 1057 affirmed in part and vacated and remanded in part; judgment in cases Nos. 915, 917 and 921 vacated, and cases remanded with instructions.
184
Mr. Justice DOUGLAS took no part in the decision of these cases.
185
Mr. Justice MARSHALL and Mr. Justice BLACKMUN took no part in the consideration or decision of these cases.
186
Mr. Justice BLACK, with whom Mr. Justice HARLAN joins, dissenting.
187
The central issue in these cases, easily lost I fear in the 98-page opinion of the Court, can in my judgment be briefly and simply stated. After this Court's decision in the Penn-Central Merger and N. & W. Inclusion Cases, 389 U.S. 486, 88 S.Ct. 602, 19 L.Ed.2d 723, the Interstate Commerce Commission assumed its difficult statutory task of determining the liquidation value of the assets of the New Haven Railroad, a determination which if upheld by the courts would decide the purchase price Penn Central would have to pay for the bankrupt New Haven. The Commission made that valuation determination, and the question before this Court is whether, under the appropriate standards of court review, the Commission's valuation of the New Haven's properties should have been sustained or rejected by the reviewing courts. This question comes here from two federal district courts, both of which were called upon to review the Commission's valuation of the New Haven properties, (1) a bankruptcy court convened under § 77 of the Bankruptcy Act, 11 U.S.C. § 205, to consider the reorganization of the New Haven, and (2) a three-judge merger court convened under 28 U.S.C. §§ 1336(a), 2321 2325, to review the Commission's merger and inclusion orders. Both district courts had jurisdiction under these statutes to examine the Commission's valuation decisions. And the proper scope for each court's review was the same: were the Commission's findings supported by substantial evidence and consistent with applicable statutory requirements? Yet the reception the Commission's determination received from the two courts on the final round of review was dramatically different. The bankruptcy court took issue with several of the Commission's important findings as to the New Haven's liquidation value, and substituting its own ideas of the proper method of appraising the railroad's properties, increased by over $28,000,000 the value the Commission had placed on the assets of the New Haven. 304 F.Supp. 793. In sharp contrast, the three-judge merger court noted the 'severe limitations' on the scope of its review of valuation matters, 305 F.Supp. 1049, 1053, and, after carefully examining the Commission plan, sustained the agency's determinations.1 Judge Friendly, writing for the threejudge merger court, stated the fundamental reason for that court's disagreement with the bankruptcy court:
188
'Essentially, we think our disagreements * * * reflect a difference in view concerning how far we are at liberty to substitute our own notions for the decisions the Commission has taken in what we regard as a sincere effort to comply with the tasks both courts assigned it on remand.' 305 F.Supp., at 1065.
189
* Both district court decisions are now properly before this Court for our review, and, contrary to the position taken by the Court today, it is my view that the Court has an obligation to pass upon both those judgments, not just one. As the quoted passage from Judge Friendly's opinion for the three-judge merger court indicates, the answer to the question whether this Court should follow the three-judge court and sustain the Commission's valuation of the New Haven properties turns largely on the proper scope of judicial inquiry into the agency determination. Our previous cases make it clear that the scope of judicial review of the Commission's appraisal of such properties is narrowly limited to ensuring that the agency findings are supported by material evidence and consistent with statutory standards. The federal courts, this Court included, should defer whenever possible to Commission expertise on complex questions of valuation. It is my position, elaborated in what follows, that the application of this test to the record before the Commission in these cases can only lead to the conclusion that the Commission did not abuse its discretion in valuing the New Haven and, accordingly, that the three-judge court was correct in sustaining its determinations and the bankruptcy court wrong in rejecting them. The three-judge court's excellent opinion is, in my view compelling support for the idea that a reasonable reviewing court exercising the proper scope of review would find that the Commission acted wholly within its discretion. Moreover, I find myself in agreement with Judge Friendly that the bankruptcy court greatly exceeded its reviewing authority and in so doing improperly substituted its own views on valuation for those of the Commission.2
190
The Court today reaches conclusions completely at odds with those stated above and affirms the decision of the bankruptcy court. I do not think the Court could reach the result it does but for its mistaken assumption that the bankruptcy court was somehow the more appropriate of the two courts to review the Commission's valuation determinations and that, accordingly, the excellent opinion of the three-judge court could be simply ignored on the ground that that court should have abstained in favor of the bankruptcy court. Congress has granted jurisdiction to review the Commission findings to both courts under the peculiar circumstances presented in these cases, and the Court offers only make-weight arguments to support its holding that the three-judge court should have abstained from reaching the valuation questions. In my view, both courts were obligated to fulfill their statutory mandate to review the Commission valuation's findings, and this Court has an obligation to treat with equal dignity the decisions of each of those courts. For this reason I cannot agree that the Court is justified in proceeding as if Judge Friendly's opinion for the three-judge merger court simply did not exist. Nor can I accept the Court's position that in reviewing the conclusions of the bankruptcy court it should apply a standard of review that attaches great weight to the conclusions of that court rather than to those of the Commission. Our prior cases indicate that the correct rule is just the opposite. In sum, the Court first disposes of the three-judge court's opinion by assuming that that court should have abstained, and it then adopts a deferential posture toward the conclusions of the bankruptcy court. In so doing the Court clears the way for its affirmance of the bankruptcy court. The Court's approach and the result it reaches are intimately related, and I regret that I cannot agree with either.
II
191
On the question of valuing the New Haven's assets, the tasks which the three-judge merger court and the bankruptcy court were called upon to perform in these cases were virtually identical, and for both courts that task was a narrowly circumscribed one. The statutes governing review in both courts provide the same flexible standard: under § 77(e) of the Bankruptcy Act the bankruptcy court was to determine if the terms for the sale of the New Haven's assets were 'fair and equitable,' and under §§ 5(2)(b) and (d) of the Interstate Commerce Act the three-judge court was to ensure that the terms of the merger and inclusion were 'just and reasonable' and 'equitable.' More important, our previous cases leave no doubt that the two district courts and, accordingly, this Court are permitted only a limited scope for their review of the Commission's valuation findings. In Ecker v. Western Pacific R. Co., 318 U.S. 448, 472, 63 S.Ct. 692, 87 L.Ed. 892, this Court emphasized that under § 77(e) of the Bankruptcy Act, 'Valuation is a function limited to the Commission, without the necessity of approval by the (bankruptcy) court.' The Court elaborated its holding this way:
192
'The function of valuation thus left to the Commission is the determination of the worth of the property valued, whether stated in dollars, in securities or otherwise. One of the primary objects of the bill was the elimination of obstructive litigation on the issue of valuation and the form finally chosen approached as near to that position as seemed to the draftsmen legally possible. Judicial reexamination was not considered desirable. * * * The language chosen leaves to the Commission, we think, the determination of value without the necessity of a re-examination by the court, when that determination is reached with material evidence to support the conclusion and in accordance with legal standards.' 318 U.S., at 472—473, 63 S.Ct., at 707.
193
See also Reconstruction Finance Corp. v. Denver & R.G.W.R. Co., 328 U.S. 495, 508—509, 66 S.Ct. 1282, 1289—1290, 90 L.Ed. 1400; Group of Institutional Investors v. Chicago, M., St. P. & P.R. Co., 318 U.S. 523, 536—542, 63 S.Ct. 727, 736—739, 87 L.Ed. 959. These cases make it clear that Congress delegated the valuation function to the Commission and that the Commission's determinations can be reviewed by the federal courts under § 77(e) only to determine whether they are supported by substantial evidence and conform to the applicable statutory standards.
194
The scope of review of the three-judge merger court under § 5 of the Interstate Commerce Act is virtually identical to that of the reorganization court under § 77. The function of the three-judge court is only to determine if the Commission's actions 'are based upon substantial evidence and to guard against the possibility of gross error or unfairness.' Penn-Central Merger Cases, 389 U.S. 486, 524, 88 S.Ct., at 621. If a court finds the Commission's 'conclusions to be equitable and rational,' it should not, as it seems to me this Court does today, 'second-guess each step in the Commission's process of deliberation.' Ibid.
195
The reasons compelling such judicial restraint lie not only in the accumulated expertise of the Commission but also in the inherent uncertainty of the valuation process itself. 'An intelligent estimate of probable future values * * *, and even indeed of present ones, is at best an approximation. * * * There is left in every case a reasonable margin of fluctuation and uncertainty.' Dayton Power & Light Co. v. Public Utilities Commission, 292 U.S. 290, 310, 54 S.Ct. 647, 78 L.Ed. 1267. These inevitable uncertainties of a complex valuation were greatly magnified in this case, for here the Commission was called upon to determine what values the New Haven properties would have, as the three-judge court put it, in 'a liquidation that never happened, that in the world as we know it scarcely could have happened, and that, if it had happened, could have happened in any one of a number of equally imaginary ways * * *.' 305 F.Supp., at 1056. Given the extremely hypothetical context in which the Commission made its determinations, it is impossible for any reviewing court to know if the Commission's findings even approximated the true liquidation value of the railroad. Because of this enhanced uncertainty, the area in which the Commission was required to exercise its judgment in this case was unusually wide, and a reviewing court could properly upset its conclusions in only the clearest instances of abuse.
196
I indicated previously that when these criteria for judicial review are taken into account, it becomes impossible for me to believe that the Commission abused its discretion in deciding as it did the exceedingly complex and difficult valuation issues discussed at length in the Court's opinion. The three-judge merger court concluded that the Commission's findings in this regard were supported by substantial evidence and consistent with relevant principles, and, after reviewing the record and the opinion of the Commission, I find myself in whole-hearted agreement with the three-judge court's conclusion. Judge Friendly's fine opinion leaves no doubt in my mind that the court for which he wrote was fully aware of both the limited scope of its reviewing power and also its obligation within those limits to scrutinize carefully each of the significant decisions of the Commission. Thus, the court assumed that '(i)f the Commission made demonstrable errors, it is our duty to correct these * * *,' but, unlike the Court today, it refused 'to re-examine every judgment made by the Commission and to substitute our own whenever we think it better.' 305 F.Supp., at 1056. The three-judge court's opinion sets out fully and adequately the reasons why the Commission should be affirmed on each of the disputed points, and there is nothing to be gained from my repeating those reasons here.
III
197
The Court's opinion affirming the bankruptcy court attempts to avoid the force of the foregoing considerations by first holding that the three-judge court should have abstained from reaching the valuation issue and then assuming for some reason which is not clear to me that this Court should apply a limited scope of review to the valuation findings of the bankruptcy court rather than to the Commission's findings. This approach is, I submit, premised on erroneous assumptions.
198
* There can be no question but that under relevant federal statutes both the three-judge merger court and the bankruptcy court had jurisdiction to review the Commission's determination of the New Haven's liquidation value. See 11 U.S.C. § 205; 28 U.S.C. §§ 1336(a), 2321 2325. The Court today does not really dispute this conclusion, but argues instead that the bankruptcy court might have had 'primary jurisdiction' to decide the valuation issues, citing to support this idea several quite inapposite cases dealing with in rem jurisdiction, and, alternatively, that the three-judge court should have 'abstained' because the only remaining issue was 'the value to be accorded the assets transferred, and resolution of that issue was the essence of the § 77 process.' Ante, at 428. Actually, the only 'primary jurisdiction' involved here was the primary jurisdiction of the Commission to decide questions of valuation. Moreover, the question of the New Haven's value may well have been central to the § 77 proceedings, but, in ordering the New Haven's inclusion in Penn Central, the Commission exercised authority under both § 5 of the Interstate Commerce Act and § 77 of the Bankruptcy Act. The question of the New Haven's value was equally central to the requirement under § 5 that the Commission determine before issuing an inclusion order that the terms of the inclusion are 'equitable.' 49 U.S.C. § 5(2)(d). Review of the Commission's valuation was therefore as appropriate on the merger and inclusion side as on the bankruptcy side, and the Court's argument to the contrary is completely conclusory. Accordingly, I think the three-judge merger court was correct when it decided that, 'unfortunate as the duplicitous system of review may be, we see no basis on which we can properly decline to exercise the jurisdiction conferred upon us * * *.' 289 F.Supp. 418, 425.
B
199
The Court also errs, I think, when it assumes that it should defer to the findings of the bankruptcy court rather than to those of the Commission. The reasoning behind this novel approach is never clearly stated. At times, the Court seems to take the view that the proper role of the bankruptcy court on valuation questions lies somewhere between that of a trial court charged with the responsibility of making a fair estimate of the value of the New Haven properties and an appellate court whose responsibility is limited to reviewing the Commission's valuation. The adoption of this hybrid role for the bankruptcy court is strenuously urged upon us in some of the briefs in this case. Such a theory arguably justifies a deferential attitude on the part of this Court toward the reorganization court's determinations and also provides at least a partial justification for the bankruptcy court's de novo valuation estimates. However, the notion that the bankruptcy court has special powers in reviewing Commission valuations and in weighing the public interest is completely untenable in light of Western Pacific and the cases following it. Those cases make it clear that while the bankruptcy court does have certain special functions in § 77 reorganizations, the role of the bankruptcy court in the areas of concern here is simply that of an appellate court. As we said in Reconstruction Finance Corp. v. Denver & R.G.W.R. Co., 328 U.S. 495, 508, 66 S.Ct. 1282, 1289:
200
'(T)he experience and judgment of the Commission must be relied upon for final determinations of value and of matters affecting the public interest, subject to judicial review to assure compliance with Constitutional and statutory requirements.'
201
To like effect was the conclusion reached in Chicago, R.I. & P.R. Co. v. Fleming, 7 Cir., 157 F.2d 241, 245, a case following Western Pacific:
202
'(T)he Commission is allowed wide discretion in reaching its conclusions, and if its findings are supported by substantial evidence and follow legal standards they must be affirmed by the courts * * *.'
203
In my opinion these and other cases preclude the notion that the bankruptcy court has special factfinding and interest-weighing functions sufficient to justify this Court's viewing it as a quasi-trial court.
204
Alternatively, the majority's position might be that even though the reorganization court had no special review powers this Court should still give great weight to its conclusions concerning the Commission's price determinations. This position might have some force were there grounds for confidence that the bankruptcy court in this case applied the correct scope of review in examining the Commission determinations, but no such grounds for confidence exist here. This Court has an obligation to examine carefully the opinion of the bankruptcy court to determine if that court did in fact apply the correct scope of review. Such an inquiry necessarily involves the Court in determining if the agency's decisions are consistent with applicable law and supported by substantial evidence. As I indicated earlier, the record in this case simply does not support the conclusion that the reorganization court stayed within its proper scope of review of the Commission determinations. Since the reorganization court applied the wrong reviewing standard, there is no justification for this Court's giving any deference to the valuation determinations of that court.
205
The Court's opinion is thus poised between two equally unsatisfactory alternatives. Its conclusions must either rest on the theory that the reorganization court has extraordinary reviewing powers, a theory which I think is precluded by Western Pacific and the cases which follow it, or the Court must take the position that the reorganization court correctly applied the Western Pacific standard, a conclusion which seems to me untenable in light of the record in these cases and the opinion of the three-judge merger court.
IV
206
Today's decision will have the effect of greatly burdening the Penn Central by increasing the amount that company owes to the New Haven bondholders by an additional $28,000,000. The imposition of this additional burden can only bring about a further deterioration of the Penn Central's already seriously compromised financial position3 and will further reduce the ultimate chances of success of this venture in which the public has a considerable stake. The public interest in these cases certainly lies in establishing and maintaining the Penn Central as a viable private enterprise with reasonable rates and efficient services. Here the Commission had a duty 'to plan reorganizations with an eye to the public interest as well as the private welfare of creditors and stockholders.' Reconstruction Finance Corp. v. Denver & R.G.W.R. Co., 328 U.S. 495, 535, 66 S.Ct. 1282, 1303. See also the Penn-Central Merger Cases, 389 U.S. 486, 510—511, 88 S.Ct. 602, 614—615. Because Penn Central's economic soundness will be vitally affected by the price it has to pay for the New Haven assets, the Commission had an obligation, which I think it fulfilled in these cases, to prevent an overvaluation of the New Haven assets which might unnecessarily jeopardize the newly merged Penn Central system. If the Commission resolved close and fairly debatable issues of valuation in favor of Penn Central rather than the New Haven bondholders, the agency's actions were wholly justifiable in terms of its statutory mandate to protect the public. Although the courts must review Commission determinations of value to guarantee that those valuations are 'fair and equitable' to the bondholders, that reviewing authority does not permit a court to substitute its views for those of the Commission. Judicial review of Commission valuations must be exercised in light of the fact that 'Congress has entrusted the Commission, not the courts, with the responsibility of formulating a plan of reorganization which 'will be compatible with the public interest.' § 77(d).' Group of Institutional Investors v. Chicago, M., St. P. & P.R. Co., 318 U.S. 523, 544, 63 S.Ct. 727, 740, 87 L.Ed. 959. Here the Commission struck a balance between public and private interests that was clearly within its discretion, and I think it is both improper and unwise for this Court to upset that balance and place an additional $28,000,000 burden on the Penn Central, a burden that I fear may ultimately be borne by the consumers of the Penn Central's services or by the Federal Treasury.
207
For the reasons stated above, I would affirm the judgment of the three-judge merger court on the valuation issue and would reverse the judgment of the bankruptcy court to the extent that it is inconsistent with the three-judge court.
*
No. 915, The New York, New Haven & Hartford Railroad Company First Mortgage 4% Bondholders Committee v. United States et al.; No. 917, Manufacturers Hanover Trust Company v. United States et al.; No. 921, Chase Manhattan Bank, N.A. v. United States et al., on appeal from the United States District Court for the Southern District of New York, argued March 30, 1970. No. 914, The New York, New Haven & Hartford Railroad Company First Mortgage 4% Bondholders Committee v. Smith et al.; No. 916, Manufacturers Hanover Trust Company v. United States et al.; No. 920, Chase Manhattan Bank, N.A. v. Penn Central Company et al.; No. 1038, Penn Central Company v. Manufacturers Hanover Trust Company et al.; and No. 1057, United States et al. v. The New York, New Haven and Hartford Railroad Company First Mortgage 4% Bondholders Committee et al., on certiorari to the United States Court of Appeals for the Second Circuit in advance of judgment argued March 30, 1970.
*
On June 21, 1970, the Penn Central Transportation Company filed a petition for reorganization under § 77 of the Bankruptcy Act, 11 U.S.C. § 205, in the United States District Court for the Eastern District of Pennsylvania. Whether the financial obligations dealt with in the present opinion may become subject to modification in or because of those proceedings is a question with which the present opinion in no way deals.
1
See Penn-Central Merger Cases, 389 U.S., at 494, 88 S.Ct., at 606; Baltimore & Ohio R. Co. v. United States, 386 U.S. 372, 379, 87 S.Ct. 1100, 1103, 18 L.Ed.2d 159.
2
Pennsylvania R. Co.—Merger—New York Central R. Co., 327 I.C.C. 475, 479 ('Merger Report').
3
Ibid.
4
Baltimore & Ohio R. Co. v. United States, 386 U.S., at 392, 87 S.Ct., at 1110.
5
Penn-Central Merger Cases, 389 U.S., at 493, 88 S.Ct., at 605.
6
Ibid.
7
Baltimore & Ohio R. Co. v. United States, 386 U.S., at 380, 87 S.Ct., at 1104.
8
Merger Report, 327 I.C.C., at 489.
9
Baltimore & Ohio R. Co. v. United States, 386 U.S., at 447, 87 S.Ct., at 1140 (separate opinion of Douglas, J.).
10
Penn-Central Merger Cases, 389 U.S., at 493, 88 S.Ct., at 605; Merger Report, 327 I.C.C., at 501.
11
As part of its initial merger order, the Commission had prescribed special traffic and indemnity provisions for the benefit of the Delaware & Hudson, Boston & Maine, and Erie-Lackawanna railroads. The Commission had not yet determined whether those three 'protected carriers' should be included in either Penn Central or the recently formed Norfolk & Western, but concluded they required sheltering conditions if they were to survive the interim period pending decision as to their ultimate disposition. Merger Report, 327 I.C.C., at 531—532. On September 16, 1966, following objections to the initial order from various parties, the Commission abrogated the indemnity provisions originally prescribed for the protected carriers and announced it would reconsider its earlier decision, with possible modifications to be given retroactive effect. Pennsylvania R. Co.—Merger—New York Central R. Co., 328 I.C.C. 304 ('Reconsideration Report'). On October 4, 1966, a three-judge District Court in the Southern District of New York declined, one judge dissenting, to enjoin enforcement of the Commission's order. Erie-Lackawanna R. Co. v. United States, D.C., 259 F.Supp. 964. Later, the District Court again denied injunctive relief sought by bondholders of the New Haven railroad. Oscar Gruss & Son v. United States, D.C., 261 F.Supp. 386. On March 27, 1967, this Court reversed and remanded Erie-Lackawanna with instructions that the Commission complete its proceedings relating to the protected roads. Baltimore & Ohio R. Co. v. United States, 386 U.S. 372, 87 S.Ct. 1100. We later vacated and remanded Oscar Gruss for reconsideration in light of Baltimore & Ohio, 386 U.S. 776, 87 S.Ct. 1478, 18 L.Ed.2d 520. Ensuing developments are recounted in the text.
12
Pennsylvania R. Co.—Merger—New York Central R. Co., 330 I.C.C. 328 ('First Supplemental Report').
13
Erie-Lackawanna R. Co. v. United States, D.C., 279 F.Supp. 316.
14
Penn-Central Merger Cases, 389 U.S. 486, 88 S.Ct. 602.
15
Baltimore & Ohio R. Co. v. United States, 386 U.S., at 381, 87 S.Ct., at 1104; New York, N.H. & H.R. Co. Trustees Discontinuance of Passenger Service, 327 I.C.C. 77, 79—80 ('Suburban Discontinuance Case').
16
New York, N.H. & H.R. Co., Trustees, Discontinuance of All Interstate Passenger Trains, 327 I.C.C. 151, 163 ('Interstate Discontinuance Case').
17
Id., at 163—164.
18
Id., at 169.
19
Suburban Discontinuance Case, 327 I.C.C., at 80.
20
See generally Baltimore & Ohio R. Co. v. United States, 386 U.S., at 452—454, 87 S.Ct., at 1142—1144 (separate opinion of Douglas, J.); L. Brandeis, Financial Condition of the New York, New Haven & Hartford Railroad Company and of the Boston & Maine Railroad (1907); L. Brandeis, Other People's Money 129—136 (1933); Report of the Joint New England Railroad Committee to the Governors of the New England States 53—73 (1923); E. Sunderland, A Brief History of the Reorganization of The New York, New Haven and Hartford Railroad Company 1—5 (1948); Capture of the New Haven, Fortune Magazine, April 1949, p. 86 et seq.
21
See In re New York, N.H. & H.R. Co., 2 Cir., 169 F.2d 337, 338 n. 6, cert. denied sub nom. Mulcahy v. New York, N.H. & H.R. Co., 335 U.S. 867, 69 S.Ct. 138, 93 L.Ed. 412.
22
See In re New York N.H. & H.R. Co., 2 Cir., 378 F.2d 635, 640.
23
Commission of Department of Public Utilities, etc. v. New York, N.H. & H.R. Co., 2 Cir., 178 F.2d 559, cert. denied, 339 U.S. 943, 70 S.Ct. 796, 94 L.Ed. 1359; In re New York, N.H. & H.R. Co., D.C., 163 F.Supp. 59.
24
In re New York, N.H. & H.R. Co., D.C., 278 F.Supp. 592, 606, aff'd, 405 F.2d 50, cert. denied sub nom. Abex Corp. v. Trustees, 394 U.S. 999, 89 S.Ct. 1592, 22 L.Ed.2d 776.
25
278 F.Supp., at 606.
26
Id., at 601.
27
In re New York, N.H. & H.R. Co., D.C., 289 F.Supp. 451, 456; In re New York, N.H. & H.R. Co., D.C., 281 F.Supp. 65.
28
In re New York, N.H. & H.R. Co., 278 F.Supp., at 606.
29
In re New York, N.H. & H.R. Co., 405 F.2d, at 52.
30
In re New York, N.H. & H.R. Co., 281 F.Supp., at 65—66.
31
Suburban Discontinuance Case, 327 I.C.C., at 79, 80, 106.
32
By this time the railroad's freight operations were also operating at deficit levels. The Commission explained this aspect of the problem as follows:
'Southern New England is a deficit area in terms of food, fuel, and the raw materials for industry. Accordingly, in serving this economy, the New Haven is a short haul railroad with a heavily unbalanced flow of traffic and equipment. As a terminal railroad it faces the constant problems and added costs of switching and deadheading foreign line freight cars to move them back off its own lines. Moreover, as a result of national and regional economic and industrial shifts, New England's outbound products have become increasingly high-value and lightweight in character. With the expansion in the region of a modern, comprehensive highway system during the past 20 years, this outbound freight traffic has become especially susceptible to diversion from rail to private and for-hire trucking service.' Interstate Discontinuance Case, 327 I.S.C., at 170.
33
Id., at 164.
34
See id., at 175.
35
See Merger Report, 327 I.C.C., at 488.
36
Interstate Discontinuance Case, 327 I.C.C., at 152.
37
Id., at 172, 173.
38
Penn-Central Merger Cases, 389 U.S., at 507, 88 S.Ct., at 612.
39
In re New York, N.H. & H.R. Co., 281 F.Supp. 65.
40
In re New York, N.H. & H.R. Co., 278 F.Supp., at 602.
41
See Erie-Lackawanna R. Co. v. United States, 279 F.Supp., at 333. The three-judge court, writing in October 1967, expressed full agreement with these findings:
'No one has contested the forecast of the NH Trustees that their cash will run out at the end of 1967; no one has indicated any probable source of funds for that beleaguered property other than the merged Penn-Central. * * * For our part we are unwilling to take responsibility for such devastating hardship as even a temporary cessation of NH's operations would bring to New England and New York and in a lesser degree to other sections of the country when in our view there is no reason why the merger should not proceed; indeed we believe we have no right to do so. * * *' 279 F.Supp., at 355. '(W)ith the situation now so serious, there can hardly be doubt that it is better to accept what is good for the New Haven than permit the patient to die while in quest of the best.' Id., at 335.
42
Pennsylvania R. Co.—Merger—New York Central R. Co. 331 I.C.C. 643, 651 ('Second Supplemental Report').
43
Ibid.
44
Id., at 653.
45
The transfer was to be free and clear of all liens and encumbrances, with certain minor exceptions. The liens and encumbrances would shift to the proceeds of the sale and thus remain an obligation of the New Haven estate.
By negotiating a purchase and sale of the New Haven assets, the parties to the agreement elected not to attempt a recapitalization of New Haven, an enlarged merger that would bring New Haven into the Penn Central system as a corporate entity, or a lease of the New Haven operating assets. At one point, when it appeared the New Haven might not long survive, the Commission had directed the parties to negotiate a lease to be 'immediately available upon consummation of the Penn-Central merger,' but the negotiators reported they were unable to do so and instead suggested various loanloss formulas. Penn-Central Merger Cases, 389 U.S., at 508, 88 S.Ct., at 613; Erie-Lackawanna R. Co. v. United States, 279 F.Supp., at 334; Second Supplemental Report, 331 I.C.C., at 648.
46
Subsequent modifications to the Agreement were executed October 4, 1966, and December 20, 1967.
The bondholders were not bound by the trustees' acceptance of the Purchase Agreement. The trustees acted on behalf of the debtor, subject to the directive of the reorganization court, but they never submitted the Agreement to that court for its approval. Moreover, they had stipulated with Pennsylvania and Central that they would not challenge the terms of the Purchase Agreement. The preliminary memoranda negotiated between the trustees and the two railroads contained a provision, substantially embodied in § 11.7 of the Agreement itself, that New Haven would not make or file
'any further statement, stipulation or other document in the pending Pennsylvania-Central merger proceedings before the I.C.C. * * *, or any judicial review thereof, other than in connection with (a) a position relating to the New Haven taken by any other party * * *, or (b) a failure of the I.C.C. to find either (i) that the New Haven should be included in such merger or (ii) that jurisdiction is to be retained by the I.C.C. for later determination of any petition by the New Haven for such inclusion, provided, however, that any such statement, stipulation or other document made or filed by the Trustees shall not be inconsistent with the provisions and intent of this Agreement.'
The reorganization court suggested that the bondholders rather than the trustees press for early inclusion due to the impropriety of the trustees' taking 'any action which would be or appear to be a repudiation of (the contract's) letter or spirit.' See Erie-Lackawanna R. Co. v. United States, 279 F.Supp., at 333; and see Oscar Gruss & Son v. United States, 261 F.Supp., at 393 394.
47
The reorganization court had authorized the New Haven trustees to pursue a 'two-step' plan before the Commission, in which the debtor's estate would sell its assets to Penn Central and then the trustees would file a specification of the terms to be accorded the security holders. In 1967, the Court of Appeals for the Second Circuit affirmed the District Court's authorization order with certain modifications not here pertinent, postponing consideration of the merits of the 'two-step' plan because of the prematurity of the question as then presented. In re New York, N.H. & H.R. Co., 378 F.2d 635, 639. Pursuant to the plan of reorganization, the New Haven is to be reconstituted as a closed-end, nondiversified management investment company. See Pennsylvania R. Co.—Merger—New York Central R. Co., 334 I.C.C. 25, 93 ('Fourth Supplemental Report'). The reorganization court has withheld disposition of the second or 'distributive' step of the plan pending this Court's resolution of the question of price. In re New York, N.H. & H.R. Co., 304 F.Supp. 1121, 1123—1124.
48
The United States Trust Company, as indenture trustee under the New Haven's Harlem River Division mortgage, had been one of the bondholder plaintiffs on the first round. At the suggestion of the reorganization court, 289 F.Supp., at 464, it received recognition of its secured status on the remand, when the Commission directed Penn Central to assume the Division bonds. 334 I.C.C., at 70. The trustee sought no further review.
49
In a Faith Supplemental Report, decided July 10, 1969, and modified August 26, 1969, the Commission complied with the directive of the three-judge court to prepare and serve a proposed decree reflecting the changes ordered in that court's opinion of June 18, 1969. After making the required adjustments, the Commission ordered Penn Central to pay New Haven an additional $990,000 in stocks, bonds, and cash in the same relative percentages as provided in the Fourth Supplemental Report. In addition, the Commission called upon the parties to submit proposed terms of a detailed decree relating to the underwriting plan originated by the reorganization court and adopted by the three-judge court. 334 I.C.C. 528. The order of the Commission accompanying the Fifth Supplemental Report does not appear to have undergone judicial review. At any rate, it is moot in light of the action we take today with respect to the judgments of the New York and Connecticut District Courts relating to the Second and Fourth Supplemental Reports.
50
At the same time we affirmed the judgment of the three-judge court in No. 919, Providence & Worcester Co. v. United States, 396 U.S. 555, 90 S.Ct. 758, 24 L.Ed.2d 748, and denied certiorari in No. 918, Providence & Worcester Co. v. Smith, 396 U.S. 1062, 90 S.Ct. 759, 24 L.Ed.2d 756. In these cases, companions to the main litigation, the Providence & Worcester Company sought plenary review of the District Courts' orders insofar as they had sustained the Commission (1) in requiring Penn Central to operate its trains over the Providence & Worcester tracks as a leased line under the conditions of a former long-term lease to New Haven, subject to Penn Central's right to commence an abandonment proceeding before the Commission under § 1(18) of the Interstate Commerce Act, 49 U.S.C. § 1(18), and subject further to Providence & Worcester's securing a charter revision to eliminate voting restrictions against Penn Central as a principal shareholder; and (2) in limiting the liability of Penn Central with respect to certain claims of Providence & Worcester, both in rem and in personam, arising against the New Haven prior to the latter's inclusion in Penn Central. See Manufacturers Hanover Trust Co. v. United States, D.C., 300 F.Supp. 185 (opinion of three-judge court).
51
A similar problem had presented itself in the immediately preceding round of the litigation arising from the merger. There the Commission's order had embraced not only the Penn Central combination and the takeover of New Haven, but the inclusion of the 'protected carriers' in the Norfolk & Western system as well. See n. 11, supra. Despite the variety of issues and the number of parties, the cases eventually came before a single District Court, and the danger of multiple litigation in six or more different courts was avoided. See Erie-Lackawanna R. Co. v. United States, 279 F.Supp., at 323—324, aff'd sub nom. Penn-Central Merger Cases, 389 U.S., at 497, 88 S.Ct., at n. 2, 503, 505 n. 4. Even earlier, when the Commission had first ordered inclusion of all New Haven service as a condition to the Penn Central merger, it had pointed out that 'since New Haven is in bankruptcy, its inclusion will entail reorganization problems under section 77 of the Bankruptcy Act which must be resolved in conjunction with any inclusion proceeding herein.' Merger Report, 327 I.C.C., at 525; see also id., at 527; and see Second Supplemental Report, 331 I.C.C., at 652.
52
Callaway v. Benton, 336 U.S. 132, 142, 69 S.Ct. 435, 441, 93 L.Ed. 553; Meyer v. Fleming, 327 U.S. 161, 164, 66 S.Ct. 382, 384, 90 L.Ed. 595; Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 483, 60 S.Ct. 628, 630, 84 L.Ed. 876; Continental Illinois National Bank & Trust Co. of Chicago v. Chicago, R.I. & P.R. Co., 294 U.S. 648, 662, 55 S.Ct. 595, 600, 79 L.Ed. 1110; cf. Ex parte Baldwin, 291 U.S. 610, 615, 54 S.Ct. 551, 553, 78 L.Ed. 1020; Isaacs v. Hobbs Tie & Timber Co., 282 U.S. 734, 737, 51 S.Ct. 270, 271, 75 L.Ed. 645.
53
Cf. Continental Illinois National Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S., at 676, 55 S.Ct. at 606; Van Schaick v. McCarthy, 10 Cir., 116 F.2d 987, 992.
54
In Callaway, this Court stressed the control the reorganization court has over the debtor's property, including any leasehold estate:
'Clearly, control of the physical property must remain in the court which has the ultimate responsibility for operating it. And in order to protect the estate of the debtor from dissipation through losses suffered in the operation of the lessor's property, responsibility for the determination of the amount of the losses and provision for their recoupment from the lessor was properly lodged in the court supervising the reorganization of the debtor.' 336 U.S., at 144, 69 S.Ct., at 442.
55
Section 5(2)(d) provides: 'The Commission shall have authority in the case of a proposed (merger) transaction under this paragraph involving a railroad or railroads, as a prerequisite to its approval of the proposed transaction, to require, upon equitable terms, the inclusion of another railroad or other railroads in the territory involved, upon petition by such railroad or railroads requesting such inclusion, and upon a finding that such inclusion is consistent with the public interest.'
56
For the text of § 5(2)(d), see n. 55, supra. Section 5(2)(b) provides in pertinent part: 'If the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed (merger) transaction is within the scope of (an earlier subdivision of the statute) * * * and will be consistent with the public interest, it shall enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable * * *.'
57
Such abstention would in no way have limited Penn Central's full participation in judicial review of the Commission proceedings. Penn Central came before the reorganization court as a 'party in interest' under § 77(e) and did not oppose the order of the court making it a party to the proceeding; the company participated fully in all further hearings in the reorganization court; it took a protective appeal from the judgment of the court remanding the matter to the Commission after the first round of review, and it appealed again from the judgment of the court following the second round of review. At no time has anyone questioned Penn Central's status as a party litigant in the reorganization court or challenged its right to make a full presentation of its case there, on appeal to the Court of Appeals, or on review by writ of certiorari in this Court.
58
The District Court also relied upon the prior adjudication of the validity of the plan. See 52 F.Supp., at 66 n. 1, 67.
59
It is noteworthy that when the Commission drafted the provision under which Penn Central was obligated to take in New Haven, it evidently contemplated that review would take place only in the reorganization court. Condition 8 of the Merger Report, the text of which is set out in the text above at 409, required Penn Central to take in New Haven with terms of inclusion to be 'fair and equitable'—language peculiar to the Bankruptcy Act, and instinct with legal significance peculiar to that statute. See Case v. Los Angeles Lumber Prods. Co., 308 U.S. 106, 115—119, 60 S.Ct. 1, 7—9, 84 L.Ed. 110; Bankruptcy Act, § 77(e)(1), 11 U.S.C. § 205(e)(1). Condition 8 subjected the agreement negotiated by the parties to 'the approval of the Bankruptcy Court and the Commission.' And it also provided, in the event the parties were unable to agree to the elements of inclusion, for the imposition of 'such fair and equitable terms and conditions as the Commission may impose, * * * subject to approval by the Bankruptcy Court * * *.' Repeated references to terms of art in bankruptcy law and to the bankruptcy court cannot be thought to lack meaning. Still less can we assume that the studied omission of any mention of the three-judge court was without significance.
60
Pursuant to § 77(e), 11 U.S.C. § 205(e), 'the judge shall confirm the plan (of reorganization) if satisfied that it has been accepted by or on behalf of creditors of each class to which submission is required * * * holding more than two-thirds in amount of the total of the allowed claims of such class which have been reported in said submission as voting on said plan, and by or on behalf of stockholders of each class to which submission is required * * * holding more than two-thirds of the stock of such class which has been reported in said submission as voting on said plan; and that such acceptances have not been made or procured by any means forbidden by law: Provided, That, if the plan has not been so accepted by the creditors and stockholders, the judge may nevertheless confirm the plan if he is satisfied and finds, after hearing, that it makes adequate provision for fair and equitable treatment for the interests or claims of those rejecting it; that such rejection is not reasonably justified in the light of the respective rights and interests of those rejecting it and all the relevant facts; and that the plan conforms to the (statutory) requirements * * *.'
61
Without pausing to assess the propriety of the method by which the Commission originally assessed the value of New Haven's interest in the Terminal properties, we think the reorganization court was correct in undertaking its own resolution of the contractual question. The validity of New Haven's claim 'present(ed) a legal question which must necessarily be taken into account in determining value. Old Colony Bondholders v. New York, N.H. & H.R. Co., 161 F.2d 413, 422, cert. denied sub nom. Protective Committee v. New York, N.H. & H.R. Co., 331 U.S. 858, 67 S.Ct. 1754, 91 L.Ed. 1865. The legal question was one 'to which the Commission's specialized skill and experience do not extend.' 161 F.2d, at 429 (L. Hand, J., concurring). The authority of the court to take further evidence is unquestioned. Bankruptcy Act, §§ 77(c)(13), 77(e), 11 U.S.C. §§ 205(c)(13), 205(e).
62
In 1912 Central and New Haven had erected the Hotel Biltmore through a subsidiary, each railroad supplying half the funds, which were finally reimbursed in 1957. In 1958 Central sought to lease the Biltmore to a controlled subsidiary over New Haven's objection. When New Haven refused to sign the lease, Central claimed that New Haven had broken its agreement and thereby had forfeited all interest in that portion of the enterprise. Central brought suit in New York state court to secure a determination of the parties' respective interests in the property. See New York Central R. Co. v. New York, N.H. & H.R. Co., 24 Misc.2d 414, 208 N.Y.S.2d 605, aff'd as modified, 13 A.D.2d 309, 216 N.Y.S.2d 928, aff'd per curiam, 11 N.Y.2d 1077, 230 N.Y.S.2d 226, 184 N.E.2d 194. The conclusions of the New York courts paralleled those of the Special Master. The Supreme Court ruled that New Haven's right to share in rentals after credits to Terminal expenses survived reimbursement of its investment, 24 Misc.2d, at 428, 208 N.Y.S.2d, at 618. The Appellate Division agreed, holding that the parties had, 'in effect, converted themselves into owners of the fee together' and that 'the development of the lands over the tracks was but another step in the joint exploitation of the railroad properties made possible by the covering of the tracks. * * * In which (properties) each party had a joint interest * * *.' 13 A.D.2d, at 318, 216 N.Y.S.2d, at 936. The latter court rejected the notion that after paying large sums of money for the construction of buildings and assuming the risk of loss operations in the Terminal enterprise, New Haven should have acquired no right 'except the right to join docilely in each of the decisions made by Central.' Id., at 319, 216 N.Y.S.2d, at 937. Although Central retained sole ownership in the fee, that fee was encumbered by the rights of New Haven. The Appellate Division concluded that New Haven's position vis-a -vis Central could be described as that of a partner. Id., at 320, 216 N.Y.S.2d, at 937.
63
'The Special Master * * * concluded there was no value in the interest, principally because it is not the kind of interest that would survive liquidation; nor, if it did, could it be assigned. Moreover, there was no evidence that the expenses of maintaining the terminal would be any less. And the idea that the State of New York, or an interstate authority might pay, directly or indirectly, some consideration for availing itself of that use is highly speculative in view of the bargaining positions of the states and the disposition of the I.C.C. to require Penn Central to furnish such access free of charge to a state or public authority which assumed the commuter service, as a condition of Penn Central's getting rid of that much of the losing and burdensome passenger service. While mitigation of a burden may in some circumstances furnish a consideration, it is not a measurable one for the purpose of this issue in the case.' 304 F.Supp., at 806.
64
At one stage the litigation over the value of New Haven's interest in the Terminal properties also involved disputes over which of four different sets of account books the Commission should use, the base period from which the Commission might extrapolate future income and expenses, the rate at which the projected income flow should be capitalized, and the probable income flow from a new office building to be constructed on the site of the railroad station.
65
The Bondholders Committee presses its challenge that the Commission has understated New Haven's share of excess income by $700,000 a year, with a capitalized loss of $8,750,000 in value. The challenge is predicated on the claim that the Commission improperly concluded that future hotel profits would not increase but would remain constant. 334 I.C.C., at 38. The reorganization court upheld the Commission in this regard, 304 F.Supp., at 806. We do not overturn its judgment on a matter such as this, calling for an informed prediction of future income, expenses, and the rate of return on invested capital in a specific business activity uniquely located in midtown Manhattan.
In addition, it is suggested that upon a cessation of New Haven Terminal operations the costs of maintaining the station would decrease, with a consequent augmentation in the excess income. Of course the station revenues would decrease as well perhaps as much as or more than the expenses. In the absence of any record evidence on the point, we cannot assume that liquidation would thus have benefited New Haven.
On the second round of review the reorganization court ordered Penn Central to pay New Haven the latter's share of accrued excess income for 1967 and 1968, as a separate sum apart from the purchase price. 304 F.Supp., at 806—807. The Bondholders Committee now asks us to award interest with respect to this payment. The reorganization court rejected the claim, doubtless because the uncertainty of New Haven's legal interest in the excess income precluded a finding that the amount represented a liquidated obligation owed by New York Central. We agree with the court's ruling.
66
The parties have devoted much discussion to Penn Central's negotiations with the States of New York and Connecticut for the transfer of the New Haven commuter service to a public authority. Manufacturers Hanover says the States have agreed to pay an annual toll to run the trains into the Terminal, thus demonstrating that the New Haven right of access does have value; Penn Central claims the States are to pay only for the use of the tracks and that it will give them a right of entry into the Terminal for nothing. Both sides point to newspaper articles in support of their arguments. None of this is record evidence, and we do not consider it.
67
'An example of the difference in approach in the trustees' two appraisals is afforded by the so-called REA Building in the Harlem River yard. This building was specially built for REA Express with four tracks running through the center of its ground floor. In the first, and higher, trustee appraisal the building was valued at $675,000 because of these tracks and the railroad service they provided. In the second, and lower appraisal, it was assumed that the tracks were dismantled. This would require reconstruction of the ground floor. The building would then be suitable only for an entirely different type of tenant. Without tracks, it would have a lower rental value. Its appraised value was, therefore, reduced to $400,000 in the second appraisal. Differences in the values of various other tenant-occupied buildings in the two yards resulted from following similar procedures in their appraisals.' 334 I.C.C., at 43. (Footnote omitted.)
68
Under the Interstate Commerce Act, Penn Central is obliged to 'provide and furnish transportation upon reasonable request therefor,' § 1(4), 49 U.S.C. § 1(4), and to offer switch connections and cars for traffic to branch lines or private side track constructed by shippers to connect with the railroad wherever practicable and justified by the added business, § 1(9), 49 U.S.C. 1(9).
69
Penn Central claims it could not provide service to the yards over the Port Morris branch because of clearance difficulties on the line. The reorganization court observed that Penn Central's own evidence largely refuted the contention. This finding of the District Court, based on its study of the record and its intimate familiarity with the subject matter, is free from clear error, and we do not disturb it.
70
Penn Central's own witnesses conceded the Port Morris connection would 'doubtless' enable the industries at Harlem River and Oak Point to continue their rail usage even after a New Haven liquidation; that someone, whether the City of New York or a third party, would have to acquire access for rail service to the Hunts Point Market; and that the only rational way to provide such service would be to move cars from the Penn Central system via the Port Morris connection. The Commission itself found that during a test month in the summer of 1968 more than 2,300 cars passed from the Penn Central main lines to the market and yard industries via the Port Morris connection. 334 I.C.C., at 44.
'At one point Penn Central claimed that even on the higher of the two appraisals, the record evidence required a downward adjustment of $461,000. The reorganization court made a partial correction to reflect a conceded duplication, but implicitly rejected Penn Central's argument as to the balance. Since Penn Central does not press the issue here, we do not consider it.
71
The Commission itself justified the refusal of the hearing examiner to take evidence on the question of delay by saying: 'To the extent that evidence was proffered on the processing time of possible abandonment proceedings involving N(ew) H(aven), such matters are within our knowledge and evidence thereon was unnecessary.' 334 I.C.C., at 29.
72
These findings comport with the observations of the reorganization court in February 1965, when the trustees sought permission to discontinue all passenger service:
'The record shows that the public interest has been thus far supported by the creditors of this estate with no substantial participation from the states. * * *
'Far from being indifferent to the public interest, the court has indulged that interest and allowed it to prevail over the creditors' rights for three and one-half years.
'In spite of this long interval, very little has been produced. Massachusetts never fulfilled its commitment to grant tax relief. New York, by conditioning future tax relief on a commitment by the Trustees to lease new equipment and conduct commutation service at present levels with no assurance that the deficits would be underwritten, has used it as a lash over the back of the debtor to compel it to do the State's will at a time when it has not had the strength to do so. Tax relief in Connecticut and Rhode Island was continued, but with a requirement that certain standards of service be met and, accordingly, that the passenger deficits continue to be incurred.
'If the public interest so urgently demands the continuance of the New Haven's passenger service, as the States seem suddenly to have discovered, they should have stopped taxing its property a long time ago. Commuters and other passengers demand better equipment and better service; the States insist upon imposing a continuing tax burden—everyone wants to draw the last ounces of blood out of this near corpse; but no one gives it the transfusion it so badly needs. It is now too late in the day to talk about saving the situation with tax relief. As the Railroad had not been able to use its vital cash for taxes, liens have been accumulating ahead of the creditors, forcing them further down the ladder of priorities, and accelerating and compelling the action which the court has taken today. If this tax burden continues to grow and the Railroad is not otherwise relieved, the creditors will be compelled to move for liquidation of the New Haven and the court will have no recourse but to order it. If the states wish essential passenger services continued, an underwriting which goes far beyond tax relief will be necessary.'
73
What we have said disposes of the deduction for delay on the ground advanced by the reorganization court. Entirely apart from that explanation, a second line of reasoning leads to the same result. The delay deduction assumed the postponement of the commencement of liquidation for one year; the Commission postulated a one-year freeze prior to the beginning of sale. See 334 I.C.C., at 60 n. 2. But the Commission thereby assumed that during the one-year delay period nothing would happen; the trustees would sell no properties and enter into no contingent contracts for disposition of the debtor's assets. Absent Commission explanationWe cannot assume that the delay would have resulted in so total a suspension of the sales program during the first year, as well as a failure of the sale managers to expedite disposition of the properties and thereby shorten the contemplated six-year liquidation period. It is not for us to determine the extent to which imposition of a one-year pause at the outset would have enabled the trustees to accelerate the sale in the fifth and sixth years. But acceptance of the delay deduction in principle would compel a remand to the Commission for explanation of its tacit assumptions that the initial year would have been devoid of activity and the later years would merely have proceeded as before.
It is suggested that with the one-year freeze the delay concept may be viewed as a mere shifting of the valuation date to December 31, 1967. That date, it is said, is as rational as the date originally chosen. And so it may be. But the adjustments in value take into account only the expenses and depreciation attributable to a one-year pause, with no consideration to countervailing income and increases in capital value. The Commission says a comprehensive revaluation of the debtor's assets as of December 31, 1967, would produce a much greater loss than the $15,386,000 actually deducted. But in the absence of proof we again cannot assume that that would be the case. For authority to that effect we need look no further than to the Commission itself, which, as we have earlier noted, rejected Penn Central's request on the first round for a further allowance for the 'constant diminution of N(ew) H(aven)'s assets' to reflect the occurrence of abandonment delay. On that occasion the Commission noted that 'a large portion of N(ew) H(aven) assets consists of land,' and added: 'We cannot assume that these values will diminish. It is at least as reasonable to presuppose that the values will increase.' 331 I.C.C., at 698. If the Commission could not assume diminution in realty values at the time of the Second Supplemental Report, we do not see how, without some explanation, it could assume it at the time of the Fourth.
74
The Commission frequently requires an abandoning railroad to sell its properties in bulk to a party (typically a public authority) that will undertake continued operation of the service, but typically sets the sale price at 'not less than net salvage value of the property sought to be acquired.' See, e.g., Rutland R. Corp. Abandonment, 317 I.C.C. 393, 425; Chicago N.S. & M.R. Abandonment, 317 I.C.C. 191, 200, aff'd sub nom. Illinois v. United States, D.C., 213 F.Supp. 83, aff'd per curiam, 373 U.S. 378, 83 S.Ct. 1313, 10 L.Ed.2d 420; Fort Dodge, D.M. & S.R. Co. Abandonment, 312 I.C.C. 708, 712; Chicago A. & E.R. Corp. Abandonment, 312 I.C.C. 533, 537; Arkansas & O.R. Corp. Abandonment, 312 I.C.C. 501, 505.
75
In its Fourth Supplemental Report the Commission provided for payment of the trustees' certificates by cancellation against the price adjustments provided for in the Purchase Agreement. 334 I.C.C., at 70.
76
In addition, the bondholders contend the calculation of the operating loss upon which the formula is based is itself unfair. Chase Manhattan and the Committee say the calculation excludes items such as rent for leased roads and interest paid during bankruptcy, aggregating some $2,600,000. The Commission refused to include such items because it thought them 'more nearly capital charges, that is, costs of providing the railroad plant * * *.' Second Supplemental Report, 331 I.C.C., at 718. Chase Manhattan attacks the Commission's ruling on the ground that New Haven paid out the monies in question in 1968 only because it had not yet been included in Penn Central. But the test for an operating loss as opposed to a capital charge is not whether a cash disbursement took place; the Commission could properly limit Penn Central's liability to the former category.
77
See Denver & R.G.W.R. Co. v. United States, 387 U.S. 485, 87 S.Ct. 1754, 18 L.Ed. 905.
78
The Bondholders Committee raised the question in its petition for certiorari whether the reorganization court had erred in its assignment of zero value to the certificates of contingent beneficial interest issued in connection with the reorganization of the Boston & Providence Railroad. See 304 F.Supp., at 810. The Committee has not revived the issue in its brief, nor has it responded in its reply brief to the Government's contention that it has abandoned the claim. Accordingly, we do not consider the matter further.
79
In 1968 the New Haven suffered an estimated operating deficit of $8,200,000. That figure, capitalized at 8%, amounts to more than $100,000,000.
80
The decisions of the New York state courts relied upon by the bondholders are inapposite. In In re City of New York, 18 N.Y.2d 212, 273 N.Y.S.2d 52, 219 N.E.2d 410, appeal dismissed sub nom. Fifth Avenue Coach Lines v. City of New York, 386 U.S. 778, 87 S.Ct. 1480, 18 L.Ed.2d 524, the city had condemned the Fifth Avenue Coach Lines. The trial court treated the takeover as one of a going concern and fixed the award at reproduction cost new less depreciation. The Court of Appeals agreed that since Fifth Avenue had demonstrated a capacity for profitable operations under reasonable rates, it was entitled to going-concern value, but that the trial court had erred in excluding evidence of value of the 'intangible going concern assets, that is, the component of value in the business which in addition to the value of the tangible assets reflects an efficient operation.' Id., at 220, 221, 273 N.Y.S.2d, at 55, 219 N.E.2d, at 412, 413. The opinion of the Court of Appeals does not disclose whether payment of liquidating value would have yielded a higher price. In In re Port Authority Trans-Hudson Corp., 20 N.Y.2d 457, 285 N.Y.S.2d 24, 231 N.E.2d 734, cert. denied sub nom. Port Authority Trans-Hudson Corp. v. Hudson Rapid Tubes Corp., 390 U.S. 1002, 88 S.Ct. 1244, 20 L.Ed.2d 103, the Court of Appeals dealt with a public taking of railroad tunnels under the Hudson River owned by a company in reorganization and having only a 'dim financial future * * *.' 20 N.Y.2d, at 465, 285 N.Y.S.2d, at 27, 231 N.E.2d, at 736. The tunnels, which required only $88,000 to be put in working order, had cost $32,000,000 to build, and would have cost $400,000,000 to replace; their liquidating value was a negative figure, because of costs that would have been incurred in plugging them up. Id., 467 and n. 2, 470, 285 N.Y.S.2d, at 29 and n. 2, 231 N.E.2d, at 737 and n. 2, 739. Because the Port Authority was taking the tunnels for continued operation, the Court of Appeals held the proper valuation was depreciated original cost plus the value of intangible assets also attributable to the operation as a going concern. Id., at 471—472, 285 N.Y.S.2d, at 32, 231 N.E.2d, at 740. In neither of these cases did the New York courts require the taking authorities to pay both an operating and a liquidating value. Rather, they awarded the owners the value reflecting the highest and best price for their properties—precisely the treatment accorded the New Haven here.
81
At the time of the Second Supplemental Report, an issue of 950,000 Penn Central common shares to New Haven would have given the debtor 4% of the total shareholder equity in the new company. 331 I.C.C., at 689.
82
As previously noted, the holders of the Harlem River Division bonds have received satisfactory security by Penn Central's assumption of the mortgage. See n. 48, supra. We are informed that the right of the holders of the General Income bonds to participate in the reorganized company depends on the outcome of this litigation. The holders of the First and Refunding Mortgage bonds stand somewhere in between. See 289 F.Supp., at 442 n. 18.
83
As late as October 1966 the reorganization court noted that the policy of preserving the New Haven as an ongoing railroad 'has been concurred in by the bondholders * * *.'
1
The three-judge merger court corrected the Commission's findings on minor valuation points which are not relevant here. The Commission has subsequently made findings consistent with the three-judge court opinion on these questions. 334 I.C.C. 528.
2
Of course, the bankruptcy court and the three-judge merger court agreed on many of the issues that were presented to them, some of which were questions of valuation and some of which were not. Apart from the question of the underwriting plan, ante, at 488—489, the Court today affirms both district courts on those issues on which both agreed, and I concur in that result. I differ with the Court, however, on its handling of all those questions of valuation over which the two district courts disagreed.
3
As the Court notes in a footnote to its opinion, ante, at 399, the Penn Central Transportation Company has filed a petition for reorganization under § 77 of the Bankruptcy Act in the United States District Court for the Eastern District of Pennsylvania.
| 89
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399 U.S. 383
90 S.Ct. 2013
26 L.Ed.2d 684
Lester GUNN et al., Appellants,v.UNIVERSITY COMMITTEE TO END the WAR IN VIET NAM et al.
No. 7.
Reargued April 29, 30, 1970.
Decided June 29, 1970.
David W. Louisell, Berkeley, Cal., for appellants.
Sam Houston Clinton, Jr., Austin, Tex., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
On December 12, 1967, President Lyndon Johnson made a speech in Bell County, Texas, to a crowd of some 25,000 people, including many servicemen from nearby Fort Hood. The individual appellees1 arrived at the edge of the crowd with placards signifying their strong opposition to our country's military presence in Vietnam. Almost immediately after their arrival, they were set upon by members of the crowd, subjected to some physical abuse, promptly removed from the scene by military police, turned over to Bell County officers, and taken to jail. Soon afterwards, they were brought before a justice of the peace on a complaint signed by a deputy sheriff, charging them with 'Dist the Peace.' They pleaded not guilty, were returned briefly to jail, and were soon released on $500 bond.
2
Nine days later they brought this action in a federal district court against Bell County officials, asking that a three-judge court be convened, that enforcement of the state disturbing-the-peace statute be temporarily and permanently enjoined, and that the statute be declared unconstitutional on its face, 'and/or as applied to the conduct of the Plaintiffs herein.' The statute in question is Article 474 of the Vernon's Ann. Texas Penal Code, which then provided as follows:
3
'Whoever shall go into or near any public place, or into or near any private house, and shall use loud and vociferous, or obscene, vulgar or indecent language or swear or curse, or yell or shriek or expose his or her person to another person of the age of sixteen (16) years or over, or rudely display any pistol or deadly weapon, in a manner calculated to disturb the person or persons present at such place or house, shall be punished by a fine not exceeding Two Hundred Dollars ($200).'
4
A few days after institution of the federal proceedings the state charges were dismissed upon motion of the county attorney, because the appellees' conduct had taken place within a military enclave over which Texas did not have jurisdiction. After dismissal of the state charges the defendants in the federal court filed a motion to dismiss the complaint on the ground that 'no useful purpose could now be served by the granting of an injunction to prevent the prosecution of these suits because same no longer exists.' The appellees filed a memorandum in opposition to this motion, conceding that there was no remaining controversy with respect to the prosecution of the state charges, but asking the federal court nonetheless to retain jurisdiction and to grant injunctive and declaratory relief against the enforcement of Article 474 upon the ground of its unconstitutionality. A stipulation of facts was submitted by the parties, along with memoranda, affidavits, and other documentary material.
5
With the case in that posture, the three-judge District Court a few weeks later rendered a per curiam opinion, expressing the view that Article 474 is constitutionally invalid, 289 F.Supp. 469. The opinion ended with the following final paragraph:
6
'We reach the conclusion that Article 474 is impermissibly and unconstitutionally broad. The Plaintiffs herein are entitled to their declaratory judgment to that effect, and to injunctive relief against the enforcement of Article 474 as now worded, insofar as it may affect rights guaranteed under the First Amendment. However, it is the Order of this Court that the mandate shall be stayed and this Court shall retain jurisdiction of the cause pending the next session, special or general, of the Texas legislature, at which time the State of Texas may, if it so desires, enact such disturbing-the-peace statute as will meet constitutional requirements.' 289 F.Supp., at 475.
7
The defendants took a direct appeal to this Court, relying upon 28 U.S.C. § 1253, and we noted probable jurisdiction. 393 U.S. 819, 89 S.Ct. 119, 21 L.Ed.2d 90. The case was originally argued last Term, but was, on June 16, 1969, set for reargument at the 1969 Term. 395 U.S. 956, 89 S.Ct. 2096, 23 L.Ed.2d 744. Reargument was held on April 29 and 30, 1970. We now dismiss the appeal for want of jurisdiction.
8
The jurisdictional statute upon which the parties rely, 28 U.S.C. § 1253, provides as follows:
9
'Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.'
10
The statute is thus explicit in authorizing a direct appeal to this Court only from an order of a three judge district court 'granting or denying * * * an interlocutory or permanent injunction.' Earlier this Term we had occasion to review the history and construe the meaning of this statute in Goldstein v. Cox, 396 U.S. 471, 90 S.Ct. 671, 24 L.Ed.2d 663. In that case a divided Court held that the only interlocutory orders that this Court has power to review under § 1253 are those granting or denying preliminary injunctions. The present case, however, involves no such refined a question as did Goldstein. For here there was no order of any kind either granting or denying an injunction—interlocutory or permanent. Cf. Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806; Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378. All that the District Court did was to write a rather discursive per curiam opinion, ending with the paragraph quoted above.2 After the Texas Legislature at its next session took no action with respect to Article 474, the District Court entered no further order of any kind. And even though the question of this Court's jurisdiction under § 1253 was fully exposed at the original oral argument of this case, the District Court still entered no order and no injunction during the 15-month period that elapsed before the case was argued again.
11
What we deal with here is no mere technicality. In Goldstein v. Cox, supra, we pointed out that: 'This Court has more than once stated that its jurisdiction under the Three-Judge Court Act is to be narrowly construed since 'any loose construction of the requirements of (the Act) would defeat the purpose of Congress * * * to keep within narrow confines our appellate docket.' Phillips v. United States, 312 U.S. (246), at 250, 61 S.Ct. (480) at 483 (85 L.Ed. 800). See Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 375, 69 S.Ct. 606, 610, 93 L.Ed. 741 (1949); Moore v. Fidelity & Deposit Co., 272 U.S. 317, 321, 47 S.Ct. 105, 106, 71 L.Ed. 273 (1926).' 396 U.S., at 478, 90 S.Ct., at 675. But there are underlying policy considerations in this case more fundamental than mere economy of judicial resources.
12
One of the basic reasons for the limit in 28 U.S.C. § 1253 upon our power of review is that until a district court issues an injunction, or enters an order denying one, it is simply not possible to know with any certainty what the court has decided—a state of affairs that is conspicuously evident here. The complaint in this case asked for an injunction '(r)estraining the appropriate Defendants, their agents, servants, employees and attorneys and all others acting in concert with them from the enforcement, operation or execution of Article 474.' Is that the 'injunctive relief' to which the District Court thought the appellees were 'entitled'? If not, what less was to be enjoined. or what more? And against whom was the injunction to run? Did the District Court intend to enjoin enforcement of all the provisions of the statute? Or did the court intend to hold the statute unconstitutional only as applied to speech, including so-called symbolic speech? Or was the court confining its attention to that part of the statute that prohibits the use, in certain places and under certain conditions, of 'loud and vociferous * * * language'? The answers to these questions simply cannot be divined with any degree of assurance from the per curiam opinion.
13
Rule 65(d) of the Federal Rules of Civil Procedure provides that any order granting an injunction 'shall be specific in terms' and 'shall describe in reasonable detail * * * the act or acts sought to be restrained.'3 As we pointed out in International Longshoremen's Assn. Local 1291 v. Philadelphia Marine Trade Assn., 389 U.S. 64, 74, 88 S.Ct. 201, 206, 19 L.Ed.2d 236, the 'Rule * * * was designed to prevent precisely the sort of confusion with which this District Court clouded its command.' An injunctive order is an extraordinary writ, enforceable by the power of contempt. 'The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one. Congress responded to that danger by requiring that a federal court frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid.' Id., at 76, 88 S.Ct., at 208.
14
That requirement is essential in cases where private conduct is sought to be enjoined, as we held in the Longshoremen's case. It is absolutely vital in a case where a federal court is asked to nullify a law duly enacted by a sovereign State. Cf. Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416.4
15
The absence of an injunctive order in this case has, in fact, been fully recognized by the parties. In their motion for a new trial, the appellants pointed out to the District Court that it had given no more than 'an advisory opinion.' And the appellees, in their brief in this Court, emphasized that '(n)o final relief of any kind—has been ordered below.' Accordingly, they said, 'no question is now properly raised as to the precise form of federal remedy which may be granted.' They asserted that 'the issuance of declaratory and injunctive relief will * * * be appropriate at an appropriate time, to wit, on remand to the court below.' But it is precisely because the District Court has issued neither an injunction, nor an order granting or denying one,5 that we have no power under § 1253 either to 'remand to the court below' or deal with the merits of this case in any way at all.6
16
The restraint and tact that evidently motivated the District Court in refraining from the entry of an injunctive order in this case are understandable. But when a three-judge district court issues an opinion expressing the view that a state statute should be enjoined as unconstitutional—and then fails to follow up with an injunction—the result is unfortunate at best. For when confronted with such an opinion by a federal court, state officials would no doubt hesitate long before disregarding it. Yet in the absence of an injunctive order, they are unable to know precisely what the three-judge court intended to enjoin, and unable as well to appeal to this Court.
17
It need hardly be added that any such result in the present case was doubtless unintended or inadvertent. We make the point only for the guidance of future three-judge courts when they are asked to enjoin the enforcement of state laws as unconstitutional.
18
The appeal is dismissed for want of jurisdiction.
19
It is so ordered.
20
Appeal dismissed.
21
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
22
Mr. Justice WHITE, with whom Mr. Justice BRENNAN joins, concurring.
23
I join the opinion of the Court but deem it appropriate to express my view that the opinion of the District Court should be viewed as having the operative effect of a declaratory judgment invalidating the Texas statute at issue in this case. The appellants were thus entitled to have this phase of the case reviewed in the Court of Appeals, but could not come directly here since our § 1253 jurisdiction is limited to appeals from injunctive orders. I agree with the Court that the opinion of the District Court cannot be construed as an order granting an injunction and that, if it amounts to an order denying an injunction, it is not appealable to this Court by the appellants.
1
The appellee University Committee to End the War in Viet Nam is an unincorporated association centered in Austin, Texas. The individual appellees are two members of the association and one nonmember who is sympathetic with its purposes.
2
The court did also write an 'addendum' in response to a motion for a new trial. 289 F.Supp., at 475.
3
Rule 65(d) reads as follows:
'(d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or partipation with them who receive actual notice of the order by personal service or otherwise.'
4
This is not to suggest that lack of specificity in an injunctive order would alone deprive the Court of jurisdiction under § 1253. But the absence of any semblance of effort by the District Court to comply with Rule 65(d) makes clear that the court did not think that its per curiam opinion itself constituted an order granting an injunction.
5
Even if the opinion and subsequent inaction of the District Court could be considered a denial of an injunction because the injunctive relief demanded was not forthcoming, the appellants could not appeal from an order in their favor. Public Service Comm'n of State of Missouri v. Brashear Freight Lines, Inc., 306 U.S. 204, 59 S.Ct. 480, 83 L.Ed. 608 (1939).
6
We do not decide whether the District Court's opinion might have constituted a 'judgment' so as to be appealable to the Court of Appeals for the Fifth Circuit. Cf. United States v. Hark, 320 U.S. 531, 534, 64 S.Ct. 359, 360, 88 L.Ed. 290; United States v. Schaefer Brewing Co., 356 U.S. 227, 232—233, 78 S.Ct. 674, 677 678, 2 L.Ed.2d 721; Burns v. Ohio, 360 U.S. 252, 254—257, 79 S.Ct. 1164, 1166—1168, 3 L.Ed.2d 1209. See R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States § 45 (Wolfson & Kurland ed. 1951). In any event, we assume the District Court will now take formal action of sufficient precision and clarity to insure to any aggrieved party the availability of an appeal.
| 89
|
399 U.S. 267
90 S.Ct. 2117
26 L.Ed.2d 608
UNITED STATES, Appellant,v.John Heffron SISSON, Jr.
No. 305.
Argued Jan. 20 and 21, 1970.
Decided June 29, 1970.
[Syllabus from pages 267-269 intentionally omitted]
Sol. Gen. Erwin N. Griswold, for appellant.
John G. S. Flym, Boston, Mass., for appellee.
Mr. Justice HARLAN delivered the opinion of the Court.*
1
The Government seeks to appeal to this Court a decision by a District Court in Massachusetts holding that appellee Sisson could not be criminally convicted for refusing induction into the Armed Forces. The District Court's opinion was bottomed on what that court understood to be Sisson's rights of conscience as a nonreligious objector to the Vietnam war, but not wars in general, under the Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution of the United States. The District Court's primary conclusion, reached after a full trial, was that the Constitution prohibited 'the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam' because as a 'sincerely conscientious man,' Sisson's interest in not killing in the Vietnam conflict outweighed 'the country's present need for him to be so employed,' 297 F.Supp. 902, 910 (1969).
2
The District Court characterized its own decision as an arrest of judgment, and the Government seeks review here pursuant to the 'arresting judgment' provision of the Criminal Appeals Act, 18 U.S.C. § 3731, an Act that narrowly limits the Government's right to appeal in criminal cases to certain types of decisions. On October 13, 1969, this Court entered an order postponing further consideration of the question of jurisdiction to the hearing of the case on the merits, 396 U.S. 812, 90 S.Ct. 92, 24 L.Ed.2d 65 (1969). For reasons that we elaborate in what follows, we conclude that the decision below, depending as it does on facts developed at Sisson's trial, is not an arrest of judgment but instead is a directed acquittal. As such, it is not a decision that the Government can appeal. Consequently, this appeal must be dismissed for lack of jurisdiction without our considering the merits of this case. We, of course, intimate no view concerning the correctness of the legal theory by which the District Court evaluated the facts developed at the trial.1
3
As a predicate for our conclusion that we have no jurisdiction to entertain the Government's appeal, a full statement of the proceedings below is desirable.
4
* A single-count indictment charged that Sisson 'did unlawfully, knowingly and wilfully fail and neglect and refuse to perform a duty' imposed by the Military Selective Service Act of 1967 and its regulations, in violation of § 12 of the Act, 81 Stat. 105, 50 U.S.C. App. § 462(a) (1964 ed., Supp. IV), because he failed to obey an order by his local draft board to submit to induction.
5
Prior to trial, Sisson's attorney moved to dismiss the indictment on three grounds. It was claimed that Sisson's refusal to submit to induction was justified first, because 'the government's military involvement in Vietnam violates international law'; and, second, because Sisson 'reasonably believed the government's military involvement in Vietnam to be illegal.' As a third ground, Sisson claimed that the Selective Service Act and its regulations were unconstitutional (a) because the procedures followed by local boards lacked due process; and (b) because compulsory conscription during peacetime was unnecessary and stifled fundamental personal liberties. In support of the motion to dismiss, appellee stated:
6
'At the time I refused to submit to induction into the armed forces I believed, as I believe today, that the United States military involvement in Vietnam is illegal under international law as well as under the Constitution and treaties of the United States. I believed then, and still believe, that my participation in that war would violate the spirit and the letter of the Nuremberg Charter. On the basis of my knowledge of that war, I could not participate in it without doing violence to the dictates of my conscience.' At the hearing on appellee's motion to dismiss, the District Judge said that he had 'an open mind' concerning appellee's first and third grounds. However, the court said there was 'nothing to' the second ground, noting that what 'the defendant reasonably believes * * * cannot be raised in the way that you propose * * * because that does not appear on the face of the indictment.' (App. 49.) The District Court later amplified this conclusion by saying:
7
'Point 2 is plainly premature because nobody can test the issue as to whether defendant reasonably believes the government's military involvement in Vietnam is illegal without knowing what he reasonably believed, and what he believed is a question of evidence and not a question which appears on the face of the indictment.' (App. 52.) (Emphasis supplied.)
8
Defense counsel did not dispute the District Court's analysis, and noted that he had raised the issue in his motion to dismiss only 'in the interest of economy,' because '(i)t was not clear at the time I filed the motion that the government would challenge this fact.' (App. 52.) The court expressed doubts concerning the Government's willingness to concede this fact, and, when asked by the court, the government counsel specifically stated his opposition to the motion to dismiss. The Court thereupon found the 'second ground' of the motion to dismiss without merit.
9
A short time after this hearing, the District Court issued two written opinions, 294 F.Supp. 511 and 515 (1968), that denied the other grounds of the motion to dismiss. After determining that appellee had the requisite standing to raise the issues involved, the court held that the political question doctrine foreclosed consideration of whether Congress could constitutionally draft for an undeclared was, or could order Sisson to fight in the allegedly 'genocidal war.'
10
An order accompanying the second pretrial opinion also dealt with various offers of proof that defense counsel had made in an informal letter to the court, not part of the record. From the order it appears that appellee's counsel stated he would 'offer evidence to show that (Sisson) properly refused to be inducted on the basis of his right of conscience, both statutory and constitutional.' Not understanding the scope of this rather ambiguous offer of proof, the District Court in its order ruled that if Sisson wished to make a conscientious objector claim based on religious objections not to wars in general but to the Vietnam war in particular, Sisson should make his offer of proof initially to the judge
11
'to elicit a ruling whether the First Amendment precludes the Congress from requiring one who has religious conscientious objections to the Vietnam war to respond to the induction order he received. If the Court rules favorably to defendant on the Constitutional issue of law, then both defense and prosecution are entitled to submit to the trier of fact evidence relevant to the question whether defendant indeed is a religious conscientious objector to the Vietnam war.' 294 F.Supp., at 519.
12
At the trial, however, it appears that defense counsel did not try to prove that Sisson should have received a conscientious objector exemption, nor did he request a ruling on the First Amendment issues referred to by the trial court. Instead it seems that the defense strategy was to prove that Sisson believed the Vietnam War to be illegal under domestic and international law, and that this belief was reasonable. If unable to get a direct adjudication of the legality of the war, the defense at least hoped to convince the jury that Sisson lacked the requisite intent to 'wilfully' refuse induction.2
13
There was evidence submitted at the trial that did bear on the conscientious objector issue, however. When asked why he had refused induction, Sisson emphasized that he thought the war illegal. He also said that he felt the Vietnam war was 'immoral,' 'illegal,' and 'unjust,' and went against 'my principles and my best sense of what was right.' The court asked Sisson what the basis for his conclusions was, particularly what Sisson meant when he said the war was immoral. Sisson said that the war violated his feelings about (1) respect for human life, (2) value of man's freedom, and (3) the scale of destruction and killing consonant with the stated purposes of American intervention. Sisson also stated, in response to the trial judge's question, that his 'moral values come from the same sources (the trial court had) mentioned, religious writings, philosophical beliefs.'
14
The prosecution did not allow Sisson's testimony to stand without cross-examination. In apparent reliance on the court's pretrial ruling that Sisson's beliefs concerning the war were irrelevant to the question of whether his refusal to submit to induction was wilful,3 the government counsel concentrated on showing that Sisson had refused induction deliberately, of his own free will, and knowing the consequences. The prosecution also brought out that Sisson had failed to appeal his I—A classification when it had been issued, and that he had accepted, as an undergraduate, a II—S student classification.
15
In the final arguments to the jury, just as in the opening statements, neither counsel mentioned a religious or non-religious conscientious objector issue. The defense argued that the key to the case was whether Sisson had 'wilfully' refused to submit to induction, and tried to suggest his beliefs about the war were relevant to this. The government lawyer simply pointed out the operative facts of Sisson's refusal. He also attacked Sisson's sincerity by pointing out the inconsistency between Sisson's broad statements that he opposed deferments because they discriminated against the poor, see n. 2, supra, and his willingness to accept a II—S deferment while he was at Harvard College. (See App. 187—188.)
16
The instructions to the jury made no reference to a conscientious objector claim, and the jury was not asked to find whether Sisson was 'sincere' in his moral beliefs concerning the war. Instead the trial court told the jury that the crux of the case was whether Sisson's refusal to submit to induction was 'unlawfully, knowingly and wilfully' done.4 The jury, after deliberating about 20 minutes, brought in a verdict of guilty.
17
After the trial, the defendant made a timely motion under Fed.Rule Crim.Proc. 34 to arrest the judgment on the ground that the District Court lacked jurisdiction.5 Pointing to the fact that the District Court had ruled before the trial that the political question doctrine prevented its consideration of defenses requiring an adjudication of the legality of the Vietnam war, the defense argued that the court therefore lacked jurisdiction under Article III and the Due Process Clause to try the defendant for an offense to which the illegality of the war might provide a defense.
18
The District Court, in granting what it termed a motion in arrest of judgment, did not rule on the jurisdictional argument raised in the defense motion. Instead, the court ruled on what it termed defendant's 'older contention'6 that the indictment did not charge an offense based on defendant's 'never-abandoned' Establishment, Free Exercise, and Due Process Clause arguments relating to conscientious objections to the Vietnam war.
19
The court first stated the facts of the case, in effect making findings essential to its decision. The opinion describes how Sisson's demeanor on the stand convinced the court of his sincerity. The court stated that 'Sisson's table of ultimate values is moral and ethical * * * (and) reflects quite as real, pervasive, durable, and commendable a marshalling of priorities as a formal religion.' The critical finding for what followed was that:
20
'What another derives from the discipline of a church, Sisson derives from the discipline of conscience.
21
'* * * Sisson bore the burden of proving by objective evidence that he was sincere. He was as genuinely and profoundly governed by his conscience as would have been a martyr obedient to an orthodox religion.' 297 F.Supp., at 905.
22
Building on these findings, the court first held that the Free Exercise and Due Process Clauses 'prohibit the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam' because as a 'sincerely conscientious man,' Sisson's interest in not killing in the Vietnam conflict outweighed 'the country's present need for him to be so employed.' The District Court also ruled that § 6(j) of the Selective Service Act, 50 U.S.C. App. § 456(j) (1964 ed., Supp. IV), offends the Establishment Clause because it 'unconstitutionally discriminated against atheists, agnostics, and men, like Sisson, who, whether they be religious or not, are motivated in their objection to the draft by profound moral beliefs which constitute the central convictions of their beings.' 297 F.Supp., at 911.
II
23
The Government bases its claim that this Court has jurisdiction to review the District Court's decision exclusively on the 'arresting judgment' provision of the Criminal Appeals Act, 18 U.S.C. § 3731.7 The relevant statutory language provides:
24
'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:
25
'From a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded.'
26
Thus, three requirements must be met for this Court to have jurisdiction under this provision. First, the decision of the District Court must be one 'arresting a judgment of conviction.' Second, the arrest of judgment must be for the 'insufficiency of the indictment or information.' And third, the decision must be 'based upon the invalidity or construction of the statute upon which the indictment or information is founded.'8
27
Because the District Court's decision rests on facts not alleged in the indictment but instead inferred by the court from the evidence adduced at trial, we conclude that neither the first nor second requirement is met.9
28
* We begin with the first requirement: was the decision below one 'arresting a judgment of conviction'? In using that phrase in the Criminal Appeals Act, Congress did not, of course, invent a new procedural classification. Instead, Congress acted against a common-law background that gave the statutory phrase a well-defined and limited meaning. An arrest of judgment was the technical term describing the act of a trial judge refusing to enter judgment on the verdict because of an error appearing on the face of the record that rendered the judgment invalid. 3 W. Blackstone, Commentaries *393; 3 H. Stephen, New Commentaries on the Laws of England 628 (1st Am. ed. 1845); 2 J. Bishop, New Criminal Procedure § 1285 (2d ed. 1913).
29
For the purpose of this case the critical requirement is that a judgment can be arrested only on the basis of error appearing on the 'face of the record,' and not on the basis of proof offered at trial.10 This requirement can be found in early English common-law cases. In Sutton v. Bishop, 4 Burr. 2283, 2287, 98 Eng.Rep. 191, 193 (K.B. 1769), it was stated: '(T)he Court ought not to arrest judgments upon matters not appearing upon the face of the record; but are to judge upon the record itself.' Once transported to the United States,11 this essential limitation of arrests of judgment was explicitly acknowledged by this Court. In United States v. Klintock, 5 Wheat. 144, 149, 5 L.Ed. 55 (1820), the Court stated that 'judgment can be arrested only for errors apparent on the record.' And later in Bond v. Dustin, 112 U.S. 604, 5 S.Ct. 296, 28 L.Ed. 835 (1884), the Court said, '(A) motion in arrest of judgment can only be maintained for a defect apparent upon the face of the record, and the evidence is no part of the record for this purpose,' id., at 608, 5 S.Ct., at 298. See Carter v. Bennett, 15 How. 354, 356—357, 14 L.Ed. 727 (1854); United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076 (1930).
30
This venerable requirement of the common law has been preserved under the Federal Rules of Criminal Procedure, for the courts have uniformly held that in granting a motion in arrest of judgment under Rule 34,12 a district court must not look beyond the face of the record. E.g., United States v. Zisblatt, 172 F.2d 740 (C.A.2d Cir.), appeal dismissed on Government's motion, 336 U.S. 934, 69 S.Ct. 750, 93 L.Ed. 1093 (1949); United States v. Lias, 173 F.2d 685 (C.A.4th Cir. 1949); United States v. Bradford, 194 F.2d 197 (C.A.2d Cir. 1952). See 2 C. Wright, Federal Practice and Procedure § 571 (1969); 5 L. Orfield, Criminal Procedure Under the Federal Rules § 34:7 (1967). Therefore, whether we interpret the statutory phrase 'decision arresting a judgment' as speaking 'to the law, as it then was (in 1907) * * * as it had come down from the past,'13 or do no more than interpret it as simply imposing the standards of Fed.Rule Crim.Proc. 34,14 a decision based on evidence adduced at trial cannot be one arresting judgment.15
31
The court below clearly went beyond the 'face of the record' in reaching its decision. As noted earlier, the opinion explicitly relies upon the evidence adduced at the trial, including demeanor evidence, for its findings that Sisson was 'sincere' and that he was 'as genuinely and profoundly governed by his conscience' as a religious conscientious objector.
32
To avoid the inescapable conclusion that the District Court's opinion was not an arrest of judgment, the Government makes two arguments. First, the Government suggests that these factual findings of the District Court, based on the evidence presented at trial, were not essential to its constitutional rulings, but instead only part of 'the circumstantial framework' of the opinion below. (Jurisdictional Statement 9; see Brief 8.) This cannot withstand analysis, however, for the factual findings were absolutely essential, under the District Court's own legal theory, to its disposition of the case. Without a finding that Sisson was sincerely and fundamentally opposed to participation in the Vietnam conflict, the District Court could not have ruled that under the Due Process and Free Exercise Clauses Sisson's interest in not serving in Vietnam outweighed the Government's need to draft him for such service.16
33
Second, the Government argues that even though the District Court made findings on evidence adduced at trial, the facts relied on were 'undisputed.' Adopting the language used by the court below, the Government claims that 'in substance the case arises upon an agreed statement of facts.' 297 F.Supp., at 904. The Government then goes on the argue that decisions of this Court have 'recognized that a stipulation of facts by the parties in a criminal case' can be relied on by the District Court without affecting the jurisdiction for an appeal, citing United States v. Halseth, 342 U.S. 277, 72 S.Ct. 275, 96 L.Ed. 308 (1952), and United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961). The Government then concludes that it would be exalting form over substance to hold there was no appeal in a case where the Government has not contested the facts, and yet allow an appeal to lie from a motion to dismiss resting upon a stipulation of the parties.
34
Preliminarily, it should be noted that this Court has never held that an appeal lies from a decision which depends, not upon the sufficiency of the indictment alone, but also on a stipulation of the parties. In Halseth the parties did enter into a stipulation for purposes of a motion to dismiss. But the facts in the stipulation were irrelevant to the legal issue of whether the federal anti-lottery statute reached a game not yet in existence. Therefore, neither the District Court in dismissing the indictment, nor this Court in affirming its decision, had to rely on the stipulation. And, for purposes of deciding whether jurisdiction for an appeal under § 3731 existed, the Court obviously did not have to decide—and it did not discuss—whether reliance on a stipulation would make any difference. Insofar as United States v. Fruehauf, supra, the other case cited by the Government, is relevant at all it seems to point away from the Government's contention. In Fruehauf this Court refused to consider the merits of an appeal under § 3731 from a District Court decision dismissing an indictment on the basis of a "judicial admission' culled from a pretrial memorandum' of the Government by the District Judge. Rather than penalizing The Government by dismissing the appeal, however, the Court simply exercised its discretion under 28 U.S.C. § 2106 by setting aside the ruling below, and remanding the case for a new trial on the existing indictment.
35
Not only do the cases cited by the Government fail to establish its contention, but other authority points strongly in the opposite direction. In United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076 (1930), this Court said that a 'stipulation was ineffective to import an issue as to the sufficiency of the indictment, or an issue of fact upon the question of guilt or innocence,' because of 'the rule that nothing can be added to an indictment without the concurrence of the grand jury,' id., at 622, 50 S.Ct., at 425. While it is true that Norris is complicated by the fact that the defendant had entered a guilty plea, the Court said that even '(i)f (the stipulation had been) filed before plea and (had been) given effect, such a stipulation would oust the jurisdiction of the court.' id., at 622—623, 50 S.Ct. at 425. Norris, together with the policy, often expressed by this Court, that the Criminal Appeals Act should be strictly construed against the Government's right to appeal, see, e.g., United States v. Borden Co., 308 U.S. 188, 192, 60 S.Ct. 182, 185, 84 L.Ed. 181 (1939), makes it at least very doubtful whether the parties should, on the basis of a stipulation, be able to secure review under the motion-in-arrest provisions of § 3731.
36
We do not decide that issue, however, for there was nothing even approaching a stipulation here. Before the court's final ruling below, the parties did not in any way, formally or informally, agree on the factual findings made in its opinion. It is relevant to recall that before the trial the government attorney specifically refused to stipulate whether Sisson sincerely believed the war to be illegal, and, if so, whether such a belief was reasonable. Moreover, given that the government attorney cross-examined Sisson, and later pointed out the inconsistency between Sisson's acceptance of a II—S student deferment and his claim that he disapproved of deferments as unfair, it hardly seems the Government accepted Sisson's sincerity insofar as it was an issue in the case. Therefore, far from being like a case with a formal stipulation between the parties, the most that can be said is that after the District Court's decision the Government chose to accept the opinion's findings of fact. Even assuming reliance on a formal stipulation were permissible, it would still be intolerable to allow direct review whenever the District Court labels its decision a motion in arrest, and the Government merely accepts the lower court's factual findings made after a trial—for this would mean the parties and the lower court simply could foist jurisdiction upon this Court.
B
37
The second statutory requirement, that the decision arresting judgment be 'for insufficiency of the indictment,' is also not met in this case. Senator Nelson, one of the sponsors of the Criminal Appeals Act, made it plain during the debates that this second element was an important limitation. He said:
38
'The arrest of judgment * * * on which an appeal lies, is not a general motion covering all the grounds on which a judgment may be arrested. It is simply for arrest of judgment because of the insufficiency of the indictment—that is, the failure of the indictment to charge a criminal offense.' 41 Cong.Rec. 2756. (Emphasis supplied.)
39
See also 40 Cong.Rec. 9033. Although the District Court's opinion recites as a conclusion that the indictment in this case did 'not charge an offense' for purposes of Rule 34, surely the indictment alleged the necessary elements of an offense.17 The decision below rests on affirmative defenses which the court thought Sisson could claim because of his beliefs. It has never been thought that an indictment, in order to be sufficient, need anticipate affirmative defenses, United States v. Fargas, 267 F.Supp. 452, 455 (D.C.S.D.N.Y.1967) 'Any questions as to the validity of the local board's refusal to grant conscientious objector exemption are matters of defense * * * (that) (t)here is no necessity for the indictment to negate * * *'. Moreover, even assuming, arguendo, the correctness of the District Court's constitutional theory that sincere nonreligious objectors to particular wars have a constitutional privilege that bars conviction, the facts essential to Sisson's claim of this privilege do not appear from any recitals in the indictment. As the District Court itself said before trial, '(W)hat (Sisson) believed is a question of evidence and not a question which appears on the face of the indictment.' (App. 52.) In short, this indictment cannot be taken as insufficient for, on the one hand, it recites the necessary elements of an offense, and on the other hand, it does not allege facts that themselves demonstrate the availability of a constitutional privilege.
C
40
The same reason underlying our conclusion that this was not a decision arresting judgment—i.e., that the disposition is bottomed on factual conclusions not found in the indictment but instead made on the basis of evidence adduced at the trial—convinces us that the decision was in fact an acquittal rendered by the trial court after the jury's verdict of guilty.
41
For purposes of analysis it is helpful to compare this case to one in which a jury was instructed as follows:
42
'If you find defendant Sisson to be sincere, and if you find that he was as genuinely and profoundly governed by conscience as a martyr obedient to an orthodox religion, you must acquit him because the government's interest in having him serve in Vietnam is outweighed by his interest in obeying the dictates of his conscience. On the other hand, if you do not so find, you must convict if you find that petitioner did wilfully refuse induction.'
43
If a jury had been so instructed, there can be no doubt that its verdict of acquittal could not be appealed under § 3731 no matter how erroneous the constitutional theory underlying the instructions. As Senator Knox said of the bill that was to become the Criminal Appeals Act:
44
'Mark this: It is not proposed to give the Government any appeal under any circumstances when the defendant is acquitted for any error whatever committed by the court.
45
'The Government takes the risks of all the mistakes of its prosecuting officers and of the trial judge in the trial, and it is only proposed to give it an appeal upon questions of law raised by the defendant to defeat the trial and if it defeats the trial.
46
'The defendant gets the benefit of all errors in the trial which are in his favor, and can challenge all errors in the trial which are against him.' 41 Cong.Rec. 2752.
47
Quite apart from the statute, it is, of course, well settled that an acquittal can 'not be reviewed, on error or otherwise, without putting (the defendant) twice in jeopardy, and thereby violating the constitution. * * * (I)n this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offence,' United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896).18
48
There are three differences between the hypothetical case just suggested and the case at hand. First, in this case it was the judge—not the jury—who made the factual determinations. This difference alone does not support a legal distinction, however, for judges, like juries, can acquit defendants, see Fed.Rule Crim.Proc. 29. Second, the judge in this case made his decision after the jury had brought in a verdict of guilty. Rules 29(b) and (c) of the Federal Rules of Criminal Procedure, however, expressly allow, a federal judge to acquit a criminal defendant after the jury 'returns a verdict of guilty.' And third, in this case the District Judge labeled his post-verdict opinion an arrest of judgment, not an acquittal. This characterization alone, however, neither confers jurisdiction on this Court, see n. 7, supra, nor makes the opinion any less dependent upon evidence adduced at the trial. In short, we see no distinction between what the court below did, and a post-verdict directed acquittal.19
49
The dissenting opinions of both THE CHIEF JUSTICE and Mr. Justice WHITE suggest that we are too niggardly in our interpretation of the Criminal Appeals Act, and each contends that the Act should be more broadly construed to give effect to an underlying policy that is said to favor review. This Court has frequently stated that the 'exceptional right of appeal given to the Government by the Criminal Appeals Act is strictly
III
50
limited to the instances specified,' United States v. Borden Co., 308 U.S. 188, 192, 60 S.Ct. 182, 185, 84 L.Ed. 181 (1939), and that such appeals 'are something unusual, exceptional, not favored,' Carroll v. United States, 354 U.S. 394, 400, 7 S.Ct. 1332, 1335—1336, 1 L.Ed.2d 1442 (1957); see United States v. Keitel, 211 U.S. 370, 399, 29 S.Ct. 123, 132, 53 L.Ed. 230 (1908); United States v. Dickinson, 213 U.S. 92, 103, 29 S.Ct. 485 488, 53 L.Ed. 711 (1909); cf. Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967). The approach suggested by our Brothers seems inconsistent with these notions. Moreover, the background and legislative history of the Criminal Appeals Act demonstrate the compromise origins of the Act that justify the principle of strict construction this Court has always said should be placed on its provisions. Because the Criminal Appeals Act, now 18 U.S.C. § 3731 (1964 ed., Supp. IV),20 has descended unchanged in substance from the original Criminal Appeals Act, which was enacted on March 2, 1907, 34 Stat. 1246,21 the crucial focus for this inquiry must be the legislative history of the 1907 Act.22
51
* Beginning in 1892—15 years before the enactment of the Criminal Appeals Act—the Attorneys General of the United States regularly recommended passage of legislation allowing the Government to appeal in criminal cases.23 Their primary purpose was perhaps best expressed by Attorney General Miller in his 1892 report: 'As the law now stands * * * it is in the power of a single district judge, by quashing an indictment, to defeat any criminal prosecution instituted by the Government.'24 There was no progress, however, until President Theodore Roosevelt, outraged by a decision of Judge Humphrey preventing the prosecution of the Beef Trust,25 made this proposed reform into a 'major political issue,'26 and demanded the enactment of legislation in his 1906 annual message to Congress.27
52
The House, as one commentator has written, 'was obedient to the presidential command.'28 It passed, without debate,29 a very broad bill giving the Government the same right to appeal legal issues decided adversely to it as had earlier been accorded a criminal defendant.30 The Senate would not accept any such sweeping change of the traditional common-law rule giving the Government no appeal at all. The substitute bill that the Senate Judiciary Committee reported out31 narrowed the House bill substantially, and limited the Government's right to appeal to writs of error from decisions (1) quashing an indictment or sustaining a demurrer to an indictment; (2) arresting judgment of conviction because of the insufficiency of the indictment; and (3) sustaining special pleas in bar when the defendant had not been put in jeopardy. Even as narrowed, the bill met opposition on the floor,32 and the session closed without Senate action.33
53
The next session, after the bill was again reported out of the Senate Judiciary Committee,34 it was debated for three days on the floor and again met strong opposition.35 Reflecting the deep concern that the legislation not jeopardize interests of defendants whose cases were appealed by the Government, amendments were adopted requiring the Government to appeal within 30 days and to prosecute its cases with diligence;36 and allowing defendants whose cases were appealed to be released on their own recognizance in the discretion of the presiding judge.37 Various Senators were particularly concerned lest there be any possibility that a defendant who had already been through one trial be subjected to another trial after a successful appeal by the Government.38 In response to this concern, an amendment was then adopted requiring that a verdict in favor of the defendant not be set aside on appeal39 no matter how erroneous the legal theory upon which it might be based.40 For these purposes, it was made plain that it made no difference whether the verdict be the result of the jury's decision or that of the judge.41 Moreover, as we explore in more detail later, the debates suggest that apart from decisions arresting judgment, there were to be no appeals taken in any case in which jeopardy had attached by the impaneling of the jury.42 Finally, to limit further the scope of the Act to cases of public importance, the Government's right to appeal (under all but the special plea in bar provision) was confined to cases in which the ground of the District Court's decision was the 'invalidity or construction of the statute upon which the indictment is founded.'43
54
With all these amendments the Senate passed the bill without division on February 13, 1907,44 but the House, after referring the Senate's version to its Judiciary Committee,45 disagreed with the Senate bill and proposed a conference.46 The conference committee, apart from divesting the courts of appeals of jurisdiction to hear any government appeals, adopted the Senate version of the bill with merely formal changes.47 Both the Senate and the House approved the bill reported out by the committee,48 and with the President's signature the Criminal Appeals Act became law.
B
55
With this perspective, we now examine the arguments made in opposition to our conclusion. It is argued in dissent that § 3731 'contemplates that an arrest of judgment is appropriate in other than a closed category of cases defined by legal history,' and concludes that 'evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied,' post, at 314 (dissenting opinion of THE CHIEF JUSTICE).
56
The dissenters propose in effect to create a new procedure label it a decision arresting judgment—in order to conclude that this Court has jurisdiction to hear this appeal by the Government. The statutory phrase 'decision arresting a judgment' is not an empty vessel into which this Court is free to pour a vintage that we think better suits present-day tastes. As we have shown, Congress defined our jurisdiction in the Criminal Appeals Act in terms of procedures existing in 1907. As a matter of interpretation, this Court has no right to give the statutory language a meaning inconsistent with its common-law antecedents, and alien to the limitations that today govern motions in arrest of judgment under Rule 34.49
57
Radical reinterpretations of the statutory phrase 'decision arresting a judgment' are said to be necessary in order to effectuate a broad policy, found to be underlying the Criminal Appeals Act, that this Court review important legal issues. The axiom that courts should endeavor to give statutory language that meaning that nurtures the policies underlying legislation is one that guides us when circumstances not plainly covered by the terms of a statute are subsumed by the underlying policies to which Congress was committed. Care must be taken, however, to respect the limits up to which Congress was prepared to enact a particular policy, especially when the boundaries of a statute are drawn as a compromise resulting from the countervailing pressures of other policies. Our disagreeing Brothers, in seeking to energize the congressional commitment to review, ignore the subtlety of the compromise that limited our jurisdiction, thereby garnering the votes necessary to enact the Criminal Appeals Act.50
58
In this regard, the legislative history reveals a strong current of congressional solicitude for the plight of a criminal defendant exposed to additional expense and anxiety by a government appeal and the incumbent possibility of multiple trials. Criminal appeals by the Government 'always threaten to offend the policies behind the double-jeopardy prohibition,' Will v. United States, supra, 389 U.S. at 96, 88 S.Ct. at 274, even in circumstances where the Constitution itself does not bar retrial. Out of a collision between this policy concern, and the competing policy favoring review, Congress enacted a bill that fully satisfied neither the Government nor the bill's opponents.51 For the Criminal Appeals Act, thus born of compromise, manifested a congressional policy to provide review in certain instances but no less a congressional policy to restrict it to the enumerated circumstances.
59
Were we to throw overboard the ballast provided by the statute's language and legislative history, we would cast ourselves adrift, blind to the risks of collision with other policies that are the buoys marking the safely navigable zone of our jurisdiction. As we have shown, what the District Court did in this case cannot be distinguished from a post-verdict acquittal entered on the ground that the Government did not present evidence sufficient to prove that Sisson was insincere. A primary concern of the bill that emerged into law was that no appeal be taken by the Government from an acquittal no matter how erroneous the legal theory underlying the decision. Moreover, going beyond the present case, the theory of those in disagreement would allow a trial judge to reserve to himself the resolution of disputes concerning facts underlying a claim that in particular circumstances a speech or protest march were privileged under the First Amendment, a practice plainly inconsistent with a criminal defendant's jury trial rights.
C
60
Quite apart from the arresting judgment provision, it is also argued that we have jurisdiction under the 'motion in bar' provision of the Criminal Appeals Act. We think it appropriate to address ourselves to this contention, particularly in light of the fact that we asked the parties to brief that issue,52 even though our holding that the decision below was an acquittal is sufficient to dispose of the case.
61
The case law under the motion-in-bar provision is very confused,53 and this Court has not settled on a general approach to be taken in interpreting this provision.54 Even under the most expansive view, however, a motion in bar cannot be granted on the basis of facts that would necessarily be tried with the general issue in the case.55 In this case, there can be no doubt that the District Court based its findings on evidence presented in the trial of the general issue. As we have shown earlier, the court's findings were based on Sisson's testimony and demeanor at the trial itself. Moreover, a defense based on Sisson's asserted constitutional privilege not to be required to fight in a particular war would, we think, necessarily be part of the 'general issue' of a suit over a registrant's refusal to submit to induction. As THE CHIEF JUSTICE says in his dissenting opinion, 'establishing the appropriate classification is actually an element of the Government's case,' post, at 324, once a defendant raises a defense challenging it. We think a defense to a pre-induction suit based on conscientious objections that require factual determinations is so intertwined with the general issue that it must be tried with the general issue, United States v. Fargas, D.C., 267 F.Supp. 452, 455 (1967) (pretrial motion to dismiss under Rule 12(b)(1) on the basis of an affidavit, denied because 'the validity of the (conscientious objector) defense which Fargas now raises * * * will require the consideration of factual questions which are embraced in the general issue'); see United States v. Ramos, 413 F.2d 743, 744 n. 1 (C.A.1st Cir. 1969) (evidentiary hearing for pretrial motion to dismiss indictment not appropriate means to consider validity of defense based on conscientious objection because '(q)uestions regarding the validity of appellant's classification should have been raised as a defense at the trial,' citing Fargas with approval).56
62
There is, in our view, still another reason no appeal can lie in this case under the motion-in-bar provision. We construe the Criminal Appeals Act as confining the Government's right to appeal—except for motions in arrest of judgment—to situations in which a jury has not been impaneled, even though there are cases in which a defendant might constitutionally be retried if appeals were allowed after jeopardy had attached. Because the court below rendered its decision here after the trial began, and because that decision was not, as we have shown, an arrest of judgment, we therefore conclude there can be no appeal under the other provisions of § 3731.
63
We reach this conclusion for several reasons. First, although the legislative history is far from clear, we think it was the congressional expectation that except for motions in arrest—which as we have shown could never be based on evidence adduced at trial the rulings to which the bill related would occur before the trial began.57 The language of the motion-in-bar provision itself limits appeals to those granted 'when the defendant has not been put in jeopardy.' We read that limitation to mean exactly what it says—i.e., no appeal from a motion in bar is to be granted after jeopardy attaches. Although the legislative history shows much disagreement and confusion concerning the meaning of the constitutional prohibition against subjecting a defendant to double jeopardy58 there was little dispute over the then-settled notion that a defendant was put into jeopardy once the jury was sworn.59 To read this limitation as no more than a restatement of the constitutional prohibition, as suggested by Mr. Justice WHITE, renders it completely superfluous. No Senator thought that Congress had the power under the Constitution to provide for an appeal in circumstances in which that would violate the Constitution.60
64
Our conclusion draws strength from the fact that the Government itself has placed exactly this same interpretation on the Act. The Department of Justice, the agency for whose benefit the original bill was enacted, first placed this construction on the statute shortly after the bill was enacted, and has consistently abided by it in the more than 60 years that have since passed. As the Solicitor General stated in his brief:
65
'The Department of Justice has consistently taken the view that the plea in bar section limits the government's right of appeal to the granting of such pleas before a jury has been sworn. Soon after passage of the original Act, the 1907 Report of the Attorney General urged that the omission in the Act of a governmental right to appeal from post-jeopardy rulings be remedied by revising the Act so as to require counsel for the defendant to raise and argue questions of law prior to the time when jeopardy attached,' Brief 17.
66
Later, after describing the opinion in Zisblatt, supra, in which the Second Circuit certified an appeal to this Court to determine whether the phrase 'not been put in jeopardy' merely incorporated the constitutional limitation, or instead should be taken literally, the Government's brief states:
67
'The then Solicitor General, being of the view that the statute barred appeals from the granting of motions in bar after jeopardy had attached, moved to dismiss the appeal, and the appeal was dismissed (336 U.S. 934 (69 S.Ct. 750, 93 L.Ed. 1093)). The Department of Justice has thereafter adhered to that position, and the government has never sought to appeal in these circumstances.'61
68
This interpretation in our view deserves great weight.
69
In light of (1) the compromise origins of the statute, (2) the concern with which some Senators viewed the retrial of any defendant whose trial terminated after the jury was impaneled, and (3) the interpretation placed on the Act shortly after its passage62 that has been consistently followed for more than 60 years by the Government, we think that the correct course is to construe the statute to provide a clear, easily administered test: except for decisions arresting judgment, there can be no government appeals from decisions rendered after the trial begins.
IV
70
Clarity is to be desired in any statute, but in matters of jurisdiction it is especially important. Otherwise the courts and the parties must expend great energy, not on the merits of dispute settlement, but on simply deciding whether a court has the power to hear a case. When judged in these terms, the Criminal Appeals Act is a failure. Born of compromise, and reflecting no coherent allocation of appellate responsibility,63 the Criminal Appeals Act proved a most unruly child that has not improved with age. The statute's roots are grounded in pleading distinctions that existed at common law but which, in most instances, fail to coincide with the procedural categories of the Federal Rules of Criminal Procedure. Not only does the statute create uncertainty by its requirement that one analyze the nature of the decision of the District Court in order to determine whether it falls within the class of common-law distinctions for which an appeal is authorized,64 but it has also engendered confusion over the court to which an appealable decision should be brought.65
71
The Solicitor General, at oral argument in this case, forthrightly stated that 'there are few problems which occur so frequently or present such extreme technical difficulty in the Solicitor General's office (as) in the proper construction of the Criminal Appeals Act.'66 We share his dissatisfaction with this statute. Nevertheless, until such time as Congress decides to amend the statute, this Court must abide by the limitations imposed by this awkward and ancient Act.
72
We conclude that the appeal in this case must be dismissed for lack of jurisdiction.
73
It is so ordered.
74
Appeal dismissed for lack of jurisdiction.
75
Mr. Justice BLACK concurs in the judgment of the Court and Part IIC of the opinion.
76
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
77
Mr. Chief Justice BURGER, with whom Mr. Justice DOUGLAS and Mr. Justice WHITE join, dissenting.
78
Both the Government and Sisson have argued that this Court has jurisdiction to review the District Court's action by virtue of the 'arrest of judgment' clause in the Criminal Appeals Act, 18 U.S.C. § 3731, which provides for a direct appeal to this Court
79
'(f)rom a decision (1) arresting a judgment of conviction (2) for insufficiency of the indictment or information, (3) where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded.'
80
In rejecting the arguments of the parties the Court holds that we have no jurisdiction to hear this appeal, opting for the view that the 'arrest of judgment' clause carries with it all of its common-law antecedents and that the present case does not meet the criteria required by the common law. My disagreement with the Court's result and rationale is prompted by a fundamental disagreement with the Court's mode of analysis and its excessive reliance on ancient practices of common-law England long superseded by Acts of Congress.
81
Section 3731 appears to set three requirements for jurisdiction in this Court: (1) the decision from which the appeal is taken must be one 'arresting a judgment of conviction'; (2) the decision must be engendered by the 'insufficiency of the indictment or information'; and (3) it must be 'based upon the invalidity or construction of the statute upon which the indictment or information is founded.'
82
* The first requirement, that the decision from which the appeal is taken must be one 'arresting a judgment of conviction,' can without undue violence to its language be construed as being encrusted with the lore of centuries of common-law jurisprudence, and the Court has so construed it. The form of an 'arrest of judgment' was well established at an early date in the common law's development; Blackstone was able to describe a clearly defined motion in arrest as a device that was procedurally appropriate after the guilty verdict had been rendered but before the judge had imposed sentence. The court, in an early form of permitting allocution, traditionally asked the prisoner if he had 'anything to offer why judgment should not be awarded against him.' 4 W. Blackstone, Commentaries *375. The prisoner could then respond by offering exceptions to the indictment, 'as for want of sufficient certainty in setting forth either the person, the time, the place, or the offence.' Ibid. If the prisoner was successful, the court entered an arrest or stay of the judgment. Also, under the common law, it was settled that 'the Court ought not to arrest judgments upon matters not appearing upon the face of the record; but are to judge upon the record itself, that their successors may know the grounds of their judgment.' Sutton v. Bishop, 4 Burr. 2283, 2287, 98 Eng.Rep. 191, 193 (K.B. 1769) (emphasis added). The record included 'nothing more than the judgment roll; and indeed, the common-law knew nothing of the evidence taken at a trial until the Statute of West-minster allowed exceptions to be sealed and a bill of exceptions to be brought up with the roll on writ of error.' United States v. Zisblatt, 172 F.2d 740, 741—742 (C.A.2d Cir.) (L. Hand, C.J.), appeal dismissed on Government's motion, 336 U.S. 934, 69 S.Ct. 750, 93 L.Ed. 1093 (1949).
83
Much, if not all, of the common-law learning was transplanted to the United States. As early as 1807, the Court recognized the existence of the motion in United States v. Cantril, 4 Cranch 167, 2 L.Ed. 584 (1807). And, in 1820, Chief Justice Marshall stated for the Court that 'judgment can be arrested only for errors apparent on the record * * *.' United States v. Klintock, 5 Wheat. 144, 149, 5 L.Ed. 55 (1820). See also Carter v. Bennett, 15 How. 354, 14 L.Ed. 727 (1854); Bond v. Dustin, 112 U.S. 604, 58 S.Ct. 296, 28 L.Ed. 835 (1884).
84
Whether § 3731's requirement of an arrest of judgment incorporates the common-law jurisprudence, or whether it is viewed as simply looking to the standards of Rule 34, Fed.Rules Crim.Proc.,1 the Court has indicated that it believes that the decision of the District Court here was not one 'arresting a judgment' because it was based on evidence adduced at the trial, notwithstanding the precise—and I suggest, purposeful, delineations of an astute District Judge quite as familiar with history and the background of this statute as are we.
85
The Solicitor General also has conceded that § 3731 uses the term 'arrest of judgment' in its common-law sense. However, he has sought to avoid the inescapable implications of this concession by arguing that the District Court, 'in granting appellee's motion, did not base its action wholly on the allegations of the indictment, but used as a partial predicate for its constitutional rulings the undisputed fact, which appeared from the evidence at trial, that appellee is a non-religious conscientious objector to participation in the Vietnam conflict.'2 The Solicitor General's argument in favor of jurisdiction seeks to avoid the District Court's reliance on evidence by pointing out that the District Court's decision did not purport to be a judgment on the merits, i.e., that the evidence was not sufficient to show that appellee committed the offense charged, and thus was not a directed acquittal. He submits that the District Court used Sisson's sincere, nonreligious form of conscientious objection to a particular war as the basis for its ruling that the indictment was constitutionally infirm as applied to Sisson. Since the evidence of conscientious objection was undisputed at trial3 and is undisputed now, the Solicitor General argues that the use of the facts here was akin to a stipulation of facts by parties in a criminal case, and that this Court has recognized that such a stipulation may be treated by the District Court as supplementing the indictment (like a bill of particulars). He relies on United States v. Halseth, 342 U.S. 277, 72 S.Ct. 275, 96 L.Ed. 308 (1952), and United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961).4
86
My disagreement with the Court is based upon much more fundamental grounds than those which the Solicitor General would use to avoid the strictures of the common-law concept of an arrest of judgment. In my view theCriminal Appeals Act contemplates that an arrest of judgment is appropriate in other than a closed category of cases defined by legal history. Specifically, there is no reason for the Court today to read into that class of cases all of the niceties of what might or might not have been included in the 'judgment roll' at common law. We have outgrown those formalisms.
87
I conclude that evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied. I do so because the legislative history surrounding the passage of the Criminal Appeals Act abundantly shows Congress contemplated review by this Court in such a case. The reasons for the Court's face-of-the-record limitation, in the technical common-law form of an arrest of judgment, have long since disappeared, and the Court's reliance on a policy disfavoring appeals under the Criminal Appeals Act is misplaced.
88
The Court's reasoning pays scant attention to the purpose of the Criminal Appeals Act and to the problem that Congress was attempting to solve in 1907 when the Act was passed. The legislative history of the Criminal Appeals Act reflects the strong desire by a number of Attorneys General of the United States for an appellate remedy in selected criminal cases.5 Such a remedy had been provided in England and in some States, but the lack of such a remedy for the Federal Government had 'left all federal criminal legislation at the mercy of single judges in the district and circuit courts. This defect became all the more serious because it became operative just at the beginning of the movement for increasing social control through criminal machinery.'6 Congress, however, was not stirred to complete its action on the proposals until a federal district court rendered its decision in United States v. Armour & Co., 142 F. 808 (D.C.N.D.Ill.1906), sustaining a motion to dismiss and ending a Sherman Act prosecution in which President Theodore Roosevelt had a great interest.
89
The House passed, without debate, a bill that gave the United States in all criminal prosecutions 'the same right of review by writ of error that is given to the defendant,' provided that the defendant not twice be put in jeopardy for the same offense. 40 Cong.Rec. 5408 (1906). The Senate, however, refused to accept the House bill. Rather, its Judiciary Committee offered as a substitute a more complicated bill which ultimately was refined to become the Criminal Appeals Act. In relevant part, the substitute would have allowed a writ of error by the United States '(f)rom the decision arresting a judgment of conviction for insufficiency of the indictment.' S.Rep. No 3922, 59th Cong., 1st Sess. (1906). When the substitute came to the floor of the Senate, the floor leader for the bill, Senator Knute Nelson of Minnesota, explained the need for the legislation in constitutional terms: '(S)ometimes an indictment is set aside on the ground that the law under which the indictment was found is held to be unconstitutional. The object (of this bill) is to allow the Government to take the case up and get a ruling of the Supreme Court.' 40 Cong.Rec. 8695 (1906) (emphasis added). The bill was then put over in the absence of unanimous consent for consideration. When the bill returned to the floor, questions were raised with respect to the arrest of judgment provision regarding the prohibition against double jeopardy. Unanimous consent to proceed again was withdrawn and the bill was again put over. 40 Cong.Rec. 9033 (1906).
90
An amended bill was reported out of committee in January of 1907. When this bill reached the floor, a spirited three-day debate took place respecting its impact on an accused. Indeed, among the questions discussed was whether a defendant who suvcceeded on a motion in arrest of judgment could again be prosecuted. See 41 Cong.Rec. 2192—2193 (1907). But almost none of the debate concerned the scope of an 'arrest of judgment.' Senator Knox, who had been the Attorney General before going to the Senate, did say that 'this legislation is along the line of the law as it is understood in England under the common law.' 41 Cong.Rec. 2751 (1907). However, this statement apparently referred to the right of the Government to appeal, for it was immediately followed by the observation: 'In England the Crown always had the right to an appeal in a criminal case. In my own State since its foundation the right has been conceded.' Ibid. The manifest, overriding concern of the Senate was with enacting legislation that would permit appeals as to important legal questions always subject to the bar against double jeopardy,7 and this concern carried over to the arrest of judgment provision.8 Indeed, the major limiting amendment adopted by the Senate restricted the right of review by the Government in criminal cases to constitutional issues and questions of construction of the statute under which the charge was brought. See 41 Cong.Rec. 2819—2820 (1907).
91
Another illustration of what the Senate thought it was doing in describing this category of appeals comes from the emphasis on distinguishing a 'motion in arrest' from an 'acquittal.' See 41 Cong.Rec. 2748 (1907). From the latter, to be sure, there was to be no appeal—no matter how many errors the trial judge had committed along the way to the acquittal in the form of erroneous rulings or other trial errors. As the majority has noted, an amendment was adopted which required that verdicts in favor of the defendant could not be set aside on appeal. 41 Cong.Rec. 2819 (1907). The text of the amendment as adopted read: 'Provided, That if upon appeal or writ of error it shall be found that there was error in the rulings of the court during the trial, a verdict in favor of the defendant shall not be set aside.' Ibid. The proponent of the amendment, Senator Rayner, expressed the view that the amendment was directed toward a 'verdict of not guilty, whether by the court or the jury * * *.' 41 Cong.Rec. 2747 (1907) (emphasis added). Here, of course, Sisson was not acquitted but was found guilty by the jury. Further, the Court's use of the Rayner amendment to support a narrow reading of the 'arrest of judgment' provision is incongruous in the extreme in light of the fact that the amendment had no substantive effect and was later deleted from the Act. See Mr. Justice WHITE'S opinion, post, at 344 n. 11.
92
'Trial errors' respecting the factfinding function—which affect only the particular trial—were distinguished from errors of law that had been separated from the trial on the merits, and that involved constitutional rulings that could affect future attempts of the Government to prosecute under the same statute:
93
'The defendant gets the benefit of all errors in the trial which are in his favor, and can challenge all errors in the trial which are against him. It is certainly not too much when he attacks the trial itself or the law under which it is conducted to give the people the right to a decision of their highest courts upon the validity of statutes made for their protection against crime.' 41 Cong.Rec. 2752 (1907) (remarks of Senator Knox).
94
'The motion in arrest of judgment can only be made—it is wholly inapplicable to any other condition than that of conviction—to a verdict of guilty. It is interposed after a verdict of guilty and before judgment for an alleged legal reason that will arrest the court in pronouncing judgment upon the verdict.' 41 Cong.Rec. 2753 (1907) (remarks of Senator Patterson).
95
The Senate passed the bill with the acquired floor amendments on February 13, 1907. 41 Cong.Rec. 2825 (1907). The House insisted on a conference, but the conference committee adopted the Senate version. The resulting conference committee bill was ultimately adopted. 41 Cong.Rec. 3994, 4128 (1907).
96
Notably, the debates on the Senate bill which formed the basis of the Act demonstrate a total lack of concern with the technical niceties of ancient common-law forms of pleading. And, far from distinguishing cases where a congressional act was invalidated on its face from cases where it was invalidated as applied to a situation that Congress clearly intended to reach, the debates appear to contemplate both cases as appropriate for appeal to this Court—certainly the evil aimed at—and the rationale of the Act is broad enough to encompass both situations. Appeal was to be for the purpose of deciding 'constitutional questions,' 'questions of law' which, if the district judge's decision were permitted to stand, could lead to conflict and different treatment under the same criminal statutes in different parts of the country, with no opportunity under existing law for resolution in this Court. The Government was to have a chance to 'settle the law as to future cases of like character.' 41 Cong.Rec. 2194 (1907) (emphasis added).
97
It is difficult to imagine a case more closely fitting into this rationale than that now before us. The class of nonreligious conscientious objectors is not likely to be a small one. Indeed under the impetus of this holding it is likely to grow. Yet whether or not a member of that class can constitutionally be punished for refusing to submit to induction now depends on where that person is tried and by whom. That one district judge may entertain a different view of the Constitution than does another is an extraordinary reason for differing results in cases that rationally ought to be decided the same way—and with appellate review available to insure that end. The conclusion that this is not a 'motion in arrest,' insulates the judge's constitutional decision from review anywhere—here or in the Court of Appeals. That, I submit, is precisely the situation Congress thought it was correcting with the Criminal Appeals Act. It is remarkable that the Court finds it so easy to ignore the explicit and meaningful legislative history which refutes its strained reading of the statute and history.
98
The common-law rule that an arrest of judgment could be based on nothing more than the judgment roll seems to have been required by the existence of the very limited record of that day which did not include the evidence adduced at trial. Evidentiary matters were not before the appellate courts, and it would have been impossible for the arresting court's 'successors (to) know the grounds of their judgment,' Sutton v. Bishop, supra, if the arresting court considered the evidence at trial. This Court in this case obviously has no such problem in providing appellate review. The records before us contain complete transcripts of the trial proceedings as a matter of course.
99
Accordingly, while the District Court admittedly looked to evidence, including demeanor evidence, for its findings that Sisson was 'sincere' and was 'genuinely and profoundly governed by his conscience,' this use for that purpose should not now bar this Court from considering the District Court's action as an arrest of judgment. As long as the evidence was used to test the constitutionality of the charging statute as applied to the defendant, and not to test the sufficiency of the proof against the allegations in the indictment, the use of the evidence was consistent with the purposes of an arrest of judgment.
100
In this case, there has been no finding that Sisson did not commit the acts charged; there has been only a holding by the trial judge that his acts were constitutionally protected—a holding that stands as the sole impediment to imposing a jury verdict of guilty; no verdict of acquittal was ever returned. Even our present Federal Rules of Criminal Procedure make a similar distinction between a 'Motion for Judgment of Acquittal,' Rule 29, and an 'Arrest of Judgment,' Rule 34. The former is entered 'if the evidence is insufficient to sustain a conviction' of the offense charged, while the latter is granted where the indictment 'does not charge an offense' at all. Rule 29 allows a judge to reserve his decision on a motion for judgment of acquittal until after the jury has returned a verdict. If he then grants the motion, the defendant stands acquitted, but again only because the evidence has been found insufficient to support the charge. Where the grounds for granting an 'acquittal' are based on an independent legal decision about the interpretation or construction of the statute, the judge's action will be an 'arrest of judgment' even though he labels it an 'acquittal.' United States v. Waters, 84 U.S.App.D.C. 127, 175 F.2d 340 (1948).
101
I cannot believe that Congress, fully aware that no appeal was available for a directed verdict or judgment n.o.v., contemplated that this form of judicial action should be accorded the same nonappealable status. Moreover, the sophisticated District Judge could have entered a judgment n.o.v. if he wanted to avoid review or if he thought that he was indeed passing on the sufficiency of the evidence to meet the allegations of the indictment. Of course, his views are not controlling, but I am comforted by his appraisal and quite satisfied he knew precisely what he was doing—or thought he did on the assumption that his action was reviewable under well-established principles the Court now ignores.
102
The Court also inveighs against a 'broad' construction of the Act, noting that this Court has denominated an appeal by the Government in a criminal case as an 'exceptional right,' and as 'something unusual, exceptional, not favored.' Ante, at 291. This is an odd characterization; the right is precisely as 'exceptional' or 'unusual' as Congress makes it. This Court has no power to define the scope of its own appellate review in this context and a subjective distaste for review at the instance of government has no proper place in adjudication. The tendency to be miserly with our jurisdiction did not prevent our construing the three-judge court acts to include cases where statutes were held unconstitutional as applied, Query v. United States, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616 (1942); C. Wright, Federal Courts 190 (2d ed. 1970), and it should not carry any more weight in assessing our responsibility to decide the constitutional issues in this case,9 the more so when it is a constitutional holding of great moment.
II
103
The second requirement, that the decision of the District Court must rest upon the 'insufficiency of the indictment,' also presents a difficult question here. The Court emphasizes, wrongly, in my view, that both grounds upon which the District Court's decision rests are defenses that Sisson successfully asserted. In an ordinary case, an indictment, to be sufficient, need not anticipate affirmative defenses. This, however, is not the ordinary case. The indictments in cases of this nature typically charge only that the Selective Service registrant
104
'did unlawfully, knowingly and wilfully fail and neglect and refuse to perform a duty required of him under and in the execution of the Military Selective Service Act of 1967 and the rules, regulations and directions duly made pursuant thereto, particularly 32 Code of Federal Regulations 1632.14, in that he did fail and neglect and refuse to comply with an order of his local draft board to submit to induction into the armed forces of the United States; in violation of Title 50, Appendix, United States Code, Section 462.'10
105
Yet this allegations subsumes in its terse language a myriad of elements that the Government may be called upon to prove if the defense makes an appropriate challenge. Prosecutions for refusing to submit to induction are unusual because they incorporate into the judicial proceeding much that has occurred in the administrative processes of the Selective Service System. All of the courts of appeals have compensated for the administrative proceedings by holding that the Government need not plead and prove many elements that would normally be a part of its case-in-chief. The courts of appeals have devised a presumption of regularity which attaches to the official acts of the local boards that, standing alone, is sufficient to preclude reversal of a conviction when a given element is not raised at trial. See particularly Yates v. United States, 404 F.2d 462 (C.A.1st Cir. 1968) (presumption of regularity attaches to the order-of-call requirement). However, if the defendant succeeds in making a prima facie case against the presumption, the Government is put to its proof on the particular element of the offense. See United States v. Baker, 416 F.2d 202 (C.A.9th Cir. 1969).
106
By analogy, the Government is not required to plead and prove that the defendant was properly classified in category I—A as available for induction. Rather, the defendant can challenge the classification at trial if he has preserved his claim, and force the Government to prove that there was indeed a 'basis in fact' for the classification. Thus, establishing the appropriate classification is actually an element of the Government's case, but because of the deference given to the administrative process that preceded the criminal proceedings, the Government has been excused from pleading and proving it in the indictment. Since the general allegations in the indictment actually do subsume the element that the District Court held was based on an invalid statute as applied to Sisson, that court's decision was based on the 'insufficiency of the indictment' within the meaning of § 3731.
107
The Court also appears to assume that an indictment may be 'insufficient' because the acts charged cannot constitutionally be made an offense, e.g., where they show the existence of a constitutional privilege that bars conviction. But, the Court concludes that 'this indictment * * * does not allege facts that themselves demonstrate the availability of a constitutional privilege.' Ante, at 288.
108
In my view, the Court's suggestion is simply the same argument, differently approached, as the argument that a motion in arrest can be based only on facts appearing on the face of the record. In both cases, the single question, as I see it, is whether Congress drew a distinction for purposes of appeal by the Government, between cases in which the district court found the entire statute unconstitutional, and cases in which the court found the statute unconstitutional as applied.
109
The view has been expressed that the Criminal Appeals Act is badly drawn and gives rise to a multitude of problems. We can all agree as to the infirmities of the statute but this is hardly an excuse to take liberties with its plain purposes reasonably articulated in its terms. Prior urgings addressed to the Congress to correct this situation have gone unheeded. But the Court's holding today is a powerful argument to spur corrective action by Congress.
110
Mr. Justice WHITE, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.
111
* I agree with THE CHIEF JUSTICE that this case can be appealed by the Government under the 'motion in arrest' provision of the Criminal Appeals Act. In contrast to the rather clear remedial purpose of the Act, not a single passage in the legislative history indicates awareness by Congress that the words it was using had the effect of distinguishing cases where a congressional Act was held invalid on its face from cases where it was invalidated as applied to a sub-class within the Act's intended reach. In both cases, the indictment is 'insufficient' to state a valid offense.1 In both cases, any 'factual findings' necessary to give the particular defendant the benefit of the constitutional ruling are little more than findings as to the defendant's standing to raise the constitutional issue—they are not findings as to the sufficiency of the evidence to prove the offense alleged in the indictment.2 Thus, if Judge Wyzanski, without making any findings as to Sisson's sincerity, had held the Selective Service Act unconstitutionally overbroad because it purported to subject to the draft in violation of the Free Exercise Clause sincere, nonreligious objectors, this Court would clearly have jurisdiction and would face the question whether Sisson could raise the claim without showing that he was a member of the allegedly protected class. Cf. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). If such a showing had to be made, as the judge here held it did, the question of standing and the facts relevant to that question are surely distinct from the question of whether the defendant committed the offense, or the question of the validity vel non of the statute.3 Cf. Association of Data Processing Service Organizations v. Camps, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).
II
112
We asked the parties in this case to consider whether 18 U.S.C. § 3731 confers jurisdiction on the ground that the lower court had sustained 'a motion in bar, when the defendant has not been put in jeopardy.' The majority, after a lengthy discussion of the 'motion in arrest' provision, condescends to address a few remarks to this question, with the suggestion that it really need not discuss the issue at all, since it has concluded that Judge Wyzanski's action amounted to 'an acquittal.' As Mr. Justice BLACK's concurrence indicates, the lengthy discussion of the 'motion in arrest' provision is equally superfluous if indeed it is so clear that Sisson has been 'acquitted.' In reality, the bald assertion that Sisson has been 'acquitted' simply begs the matter at issue: until one knows what a 'motion in bar' is, as well as a 'motion in arrest,' and how the granting of such motions differs from granting a judgment of acquittal, one cannot confidently attach any label to Judge Wyzanski's action.
113
The only reason the majority gives for concluding that Sisson has been acquitted is based, not on what actually happened, but on what might have happened. Since Judge Wyzanski could have submitted the case to the jury on instructions reflecting his view of the law, and since the jury so instructed could have returned a verdict of 'not guilty,' therefore we must pretend that that is what has actually happened. That suggestion is nonsense. One does not determine 'what in legal effect (Judge Wyzanski's decision) actually was,' ante, at 279 n. 7, by asking 'what in legal effect the decision might have been.' If that were the key question, then this Court should not have had jurisdiction in United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969) (Harlan, J.). There the trial judge accepted the defendant's argument that the Fifth Amendment prevented the Marihuana Tax Act from constitutionally being applied to him. Under the majority's view, that action would amount to an acquittal because the judge might have given the case to the jury under instructions that it should acquit if it found the facts necessary to sustain the defendant's privilege—e.g., that he was not one of the registered marihuana dealers whose conduct was legal under state law. Indeed, if applied consistently the majority's theory would mean that there is no case that could be appealed to this Court under the 'motion in bar' provision of the Criminal Appeals Act for it will always be true that a judge might have sent the case to the jury under instructions reflecting his view that the motion in bar was good, so that if the jury found the facts relied on in the motion, it should acquit.4
114
The difference between 'what might have been' and what actually happened in this case is large and critical. Where the jury actually 'acquits' under an erroneous instruction, a successful appeal leading to reversal and a new trial would raise serious constitutional problems by placing the defendant through the hazards of another trial for the same offense. In this case, however, there is no possibility of subjecting Sisson to another trial, or of overturning a factfinder's decision that, whatever the law, Sisson should go free. If Judge Wyzanski's legal theory is incorrect, the jury's verdict of guilty—with judgment no longer 'arrested'—simply remains in effect.
115
It was precisely this distinction that Senator Knox was referring to in the passage quoted in the majority opinion, ante, at 289: the defendant retains the benefit of any error whatever committed by the court 'in the trial'; but the Government gets an appeal 'upon questions of law raised by the defendant to defeat the trial.' The distinction is also reflected in the majority's quotation from United States v. Ball, ante, at 2129, where the question of what constitutes an 'acquittal' is tied to the question of whether the defendant would be put 'twice in jeopardy' by an appeal.
116
I suspect that the Court's reluctance to discuss the 'motion in bar' provision and to distinguish the granting of such motions from an acquittal stems from the fact that, unlike the 'motion in arrest,' there is no doubt that a 'motion in bar' properly sets forth an affirmative defense, which necessarily requires resort to facts not found in the indictment or on the face of the 'record.' Thus most of the majority's argument that this case is not appealable as a 'motion in arrest' because '(t)he decision below rests on affirmative defenses,' ante, at 287-288, is simply irrelevant as far as the 'motion in bar' is concerned.
117
In fact, as the majority seems to concede by its reluctance to reject square precedent on the issue, see ante, at 300 n. 53, our cases make clear that the phrase 'motion in bar' would include a plea like Sisson's that the selective service laws are unconstitutional as applied to him. The Court has never adopted the view that a 'motion in bar' encompasses only the common-law defenses of autrefois acquit, autrefois convict, and pardon.5 Neither did Congress when it passed the Act. The debates show that the plea in bar was thought to embrace such a variety of defenses as the statute of limitations, e.g., 41 Cong.Rec. 2749, and a plea of Fifth Amendment immunity, see 41 Cong.Rec. 2753. The most thorough discussion of the 'motion in bar' in this Court occurs in the concurring and dissenting opinions in United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423 (1960). Mr. Justice BRENNAN argued that a motion in bar would encompass every possible affirmative defense that would prevent retrial. Mr. Justice STEWART argued for a narrower interpretation, similar to the concept of a plea in confession and avoidance, i.e., a plea that 'did not contest the facts alleged in the declaration, but relied on new matter which would deprive those facts of their ordinary legal effect.' Id., at 457, 80 S.Ct., at 473.
118
Even under the narrower interpretation of Mr. Justice STEWART, Sisson's plea qualifies as a 'motion in bar.' For as the majority's opinion makes clear, the crux of the case against Sisson was simply whether or not he had wilfully refused to submit to induction; the question of his sincerity was 'new matter' relied on to deprive the fact of his wilful refusal of its ordinary legal effect. See majority opinion, ante, at 276; United States v. Blue, 384 U.S. 251, 254, 86 S.Ct. 1416, 1418, 16 L.Ed.2d 510 (1966) (Harlan, J.). Just as our cases have permitted the 'motion in bar' to embrace limitations pleas, see e.g., United States v. Goldman, 277 U.S. 229, 48 S.Ct. 486, 72 L.Ed. 862 (1928), and pleas of constitutional privilege, see United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 (1931), so too they permit the 'motion in bar' to reach cases of this sort, attacking the validity of the statute as applied to the defendant. See United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969) (Harlan, J.); United States v. Blue, supra, 384 U.S. at 254, 86 S.Ct., at 1418 (Harlan, J.).
119
Procedurally, the fact that the plea is sustained only after a jury verdict of conviction—and the fact that the judge labeled his action as something other than a 'motion in bar'—does not prevent finding a 'motion in bar.' United States v. Zisblatt, 172 F.2d 740, 742 (C.A.2d Cir.), appeal dismissed, 336 U.S. 934, 69 S.Ct. 750, 93 L.Ed. 1093 (1949). Even the legislative history recognizes that such pleas could be sustained after the trial had begun. 41 Cong.Rec. 2749 (1907) (remarks of Senator Rayner). Nor is there any doubt—unlike the case of a motion in arrest—that a proper motion in bar results even though factual issues relevant to the motion have to be tried. See 41 Cong.Rec. 2194 (1907) (remarks of Senator Whyte); id., at 2753 (remarks of Senator Patterson); United States v. Zisblatt, supra. Indeed, Mr. Justice Harlan recently referred to the possibility of trying facts to the judge that were relevant to the motion in bar, and separate from the general issue. See United States v. Covington, supra, 395 U.S. at 60, 89 S.Ct., at 1561. In his words, '(a) defense is thus 'capable of determination' (without trial of the general issue) if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.' Ibid. That description fits this case precisely since, as already noted, the majority itself takes careful pains to point out that the 'general issue'—whether Sisson wilfully refused induction—was at all times separate from the issue raised by Sission's constitutional claim.6
120
This case, then, is indistinguishable as far as the 'motion in bar' provision is concerned from United States v. Zisblatt, supra, which the majority cites with approval throughout its opinion. There, as here, the defendant moved for dismissal of the indictment on the basis of an affirmative defense—in that case the statute of limitations. There, as here, the judge reserved ruling on the motion until after the jury had returned a verdict of guilty. There, as here, the judge then granted the defendant's motion, relying on matters 'outside the record.' The Government appealed to the Court of Appeals, where the question became whether or not the appeal should have been taken directly to this Court under the Criminal Appeals Act. Judge Learned Hand, in deciding that the trial court's action amounted to sustaining a motion in bar, made short shrift of the argument that the case was indictinguishable from the case of a directed verdict of acquittal.
121
'Had the trial judge directed a verdict, so that it would have been necessary upon reversal to subject the defendant to trial before a second jury, that would be 'double jeopardy,' but, although the Constitution gives an accused person the benefit of any mistakes in his favor of the first jury he encounters, whether it has passed upon his guilt or not, it does not extend that privilege to mistakes in his favor by judges. Indeed, were the opposite true, all appeals from decisions in arrest of judgment would be constitutionally futile because no judgment of conviction could be entered when they were reversed.' 172 F.2d, at 743.
122
The sole question, then, in this case as in Zisblatt, is whether the defendant has been 'put in jeopardy' as that phrase is used in the Criminal Appeals Act. That question in turn centers on whether the phrase is to be read literally, in which case a defendant would be in jeopardy as soon as a jury was impaneled, or whether the phrase is to mean 'constitutional' or 'legal' jeopardy, in the sense that even if the Government were to succeed on appeal, it would be unable to take advantage of its success in new proceedings against the defendant. Although the Government has chosen to read the statute in the former, literal sense, this Court has never resolved the issue. Judge Learned Hand thought there was a 'more than plausible argument' for the latter, 'legal jeopardy' view, but the Government dismissed its appeal to this Court before the question could be decided. United States v. Zisblatt, supra, at 742.
123
The legislative history of the 1907 Act unmistakably shows that Congress meant to allow the Government an appeal from a decision sustaining a motion in bar in every case except where the defendant was entitled to the protection of the constitutional guarantee against double jeopardy. I find the debates so convincing on that point that I am at a loss to understand why the Government has so readily conceded the issue unless it be to maintain the appearance of consistency, and to protect its interests in securing new criminal appeals legislation before Congress.7 Certainly that concession does not bind this Court;8 even more certainly it is no excuse for the majority's failure to conduct its own examination of the relevant debates.
124
Out of three full days of debate in the Senate, covering more than 30 pages of the Congressional Record, see 41 Cong.Rec. 2190 2197, 2744—2763, 2818—2825, the majority finds a total of three passages to cite in a footnote as support for its interpretation, see ante, at 304-305 n. 57. In each case, the statements placed in context prove just the opposite of the majority's conclusion. The first reference, to a passage before debate even began, 40 Cong.Rec. 9033, is to Senator Spooner's question whether the bill applied only to questions arising before the impaneling of the jury. As the majority acknowledges, Senator Nelson immediately corrected Senator Spooner, pointing out that the key question was 'jeopardy,' not the impaneling of the jury. The entire brief exchange occurred before the bill was debated, further consideration having immediately been postponed by the objection of other Senators to pursuing the matter at that time. See F. Frankfurter & J. Landis, The Business of the Supreme Court 117 n. 68 (1928). When debate was resumed at the next session of Congress, Senator Spooner unmistakably indicated that jeopardy was being used in the constitutional, legal sense, in direct opposition to the views the majority now tries to ascribe to him:
125
'The question is whether it subjects a man under any aspect of it to the danger of double jeopardy.
126
I am content to leave it, under the bill, if it shall become a law, to the Supreme Court of the United States. It is their function to determine what is jeopardy. It is their function to protect the citizens of the United States against any invasion of the constitutional guaranty as to double jeopardy. I think we can rely upon the court to protect as far as the Constitution requires it all defendants * * *.' 41 Cong.Rec. 2762—2763 (1907) (remarks of Sen. Spooner).
127
In the second passage, 41 Cong.Rec. 2191, the majority quotes Sentator Nelson for the proposition that no appeal would lie where a jury had been impaneled. The actual quotation is that no appeal would lie 'where a jury has been impaneled and where the defendant has been tried * * *.' 41 Cong.Rec. 2191 (emphasis added). In context, it is clear that Senator Nelson is venturing an interpretation of 'jeopardy' in the legal sense. The whole dispute at this point in the debate is primarily between Senator Rayner who opposed the bill, and Senators Bacon and Nelson, who supported the bill. The proponents were at pains to show that a person could not be 'put twice in jeopardy' under any of the provisions of the bill, 41 Cong.Rec. 2193 (remarks of Sen. McCumber; remarks of Sen. Bacon). Senator Rayner was intent on showing how difficult it was for anyone to give an adequate definition of just what 'legal jeopardy' is—he supported a return to the House suggestion, which would have given the defendant the benefit of his favorable decision whether or not he had been 'put in jeopardy.' But not a single passage can be cited to show that either side had the slightest inkling that 'jeopardy' was being used in any but its technical, legal sense as interpreted by this Court and state courts. That was the whole point of Senator Rayner's objection: 'jeopardy' was too vague a term, because nobody could decide exactly when constitutional jeopardy had attached. How the majority can rely on Senator Nelson for the conclusion that 'jeopardy' means 'literal' jeopardy is particularly difficult to understand, given the Senator's own unambiguous explanation that as author of the bill, what he meant was 'constitutional' jeopardy:
128
'In aimed to put the bill in such a form that it would cover exactly those cases in which the defendant had not been put in jeopardy under the Constitution of the United States. I believe that the bill is limited strictly to that matter.' 41 Cong.Rec. 2757 (emphasis added).
129
Senator Bacon during this same exchange noted that the 'jeopardy' provisions had been put in 'out of abundance of caution.' 41 Cong.Rec. 2191. He proceeded to explain by his remarks that he meant precisely what the majority today declares he could not have meant—namely, that Congress was simply emphasizing that it was not attempting to subject a defendant to constitutional double jeopardy by a successful government appeal. In fact, when one of the Senators asked whether 'jeopardy' was to be taken in a possibly literal sense, Senator Bacon hastened to reply:
130
'That is not what the law means by being put in jeopardy at all. The words 'being in jeopardy' are entirely a technical phrase, which does not relate to the fact that a man is in danger as soon as an indictment is preferred against him.' 41 Cong.Rec. 2191 (emphasis added).
131
It is hardly 'superfluous' for Congress to guard against a construction of an Act that might render the Act unconstitutional. And the fact that the majority would have written the statute differently to avoid what it calls a 'superfluous' reading, is no excuse for ignoring the explicit indication that that is exactly the reading that Congress meant the phrase to bear.9
132
The majority's final passage refers to a remark by Senator Patterson suggesting that a motion in arrest was the only provision under the bill that could be raised after a trial had begun. As the majority concedes, one need only read on a bit further to discover that Senator Patterson immediately retracted that suggestion when challenged, insisting that a 'motion in bar' could also be granted after trial had begun and that an appeal would lie as long as no problem of 'constitutional jeopardy' was presented. Indeed, Senator Patterson argued vigorously that there would have been jurisdiction in the Beef Trust Case—a case in which the motion in bar was not only granted after trial had begun, but was also reflected in the judge's instructions to the jury. Senator Patterson's remarks are particularly interesting because, apart from whether he is right on the question of constitutional jeopardy, he makes clear the distinction between a motion in bar and an acquittal which the majority blithely ignores:
133
'A special plea in bar * * * is a plea that does not relate to the guilt or innocence of the defendant in the sense as to whether he did or not commit the act for which he was indicted. A special plea in bar is that which is set up as a special defense notwithstanding the defendant may be guilty of the offenses with which he is charged; it is for some outside matter; yet it may have been connected with the case. The special plea in bar that was filed by the indicted Chicago packers is a very good illustration of that. Their plea in bar set forth the fact of their having been induced or led, whatever it may have been, to make communications to the law officers of the Government with reference to their business that gave the district attorney information which enabled him to bring about the indictments and to help in their prosecution. That had no reference to the guilt or innocence of the accused. It was a pleading of fact that was independent of the crime for which those packers had been indicted.
134
'Therefore, Mr. President, there could be no jeopardy in a case of that kind where there was a decision upon the special plea in bar, because it is not under a plea of guilty or not guilty that the insufficiency of a special plea in bar is determined; it is non obstante whether the defendant is guilty or not guilty.' 41 Cong.Rec. 2753.
135
It is obvious from these remarks that Senator Patterson did not think that the question of 'jeopardy' under the motion-in-bar provision was simply a question of whether the jury had been impaneled.10
136
This interpretation is made doubly clear by the remarks of Senator Nelson, the leading proponent of the bill. He also addressed himself to the Beef Trust Case and, unlike Senator Patterson, he suggested that that case could not have been appealed under the Act. But the reason he gave for that conclusion was not that the jury had been impaneled, but that the jury had been impaneled and had returned a verdict of not guilty under the judge's instructions, thus placing the defendants in 'legal jeopardy':
137
'In that case a jury was impaneled, and the question whether the defendants were entitled to immunity under the immunity law because they had furnished Mr. Garfield and the officials of his Bureau information was submitted to the jury, and the jury under instructions of the court found for the defendants. In that case the defendants under the Constitution had been in jeopardy and in that beef-trust case no appeal could lie.' 41 Cong.Rec. 2757 (emphasis added).
138
See 41 Cong.Rec. 2750 (remarks of Senator Nelson).
139
Senator Nelson was thus talking about the majority's 'might have been case'—the case where the judge gives the motion in bar issue to the jury under his novel view of the law, so that a successful government appeal would require retrying the defendant. In the immediately following passage, Senator Nelson makes clear that if the facts pleaded in the special issue are not submitted to the jury, but tried to the judge, there would be no bar to taking an appeal. But in both cases, Senator Nelson, like Senator Patterson, is quite obviously giving his views as to what 'constitutional jeopardy' means.
140
While the debates are replete with other indications that Congress' concern was with 'double jeopardy,' not 'literal jeopardy,' the clearest such indication occurs in this very exchange between Senator Rayner, who announced his opposition to the bill in any form, 41 Cong.Rec. 2745 and Senators Spooner, Patterson, and Nelson—proponents of the bill. The exchange occupied most of the second day of the three days of debate in the Senate and centered almost entirely on Senator Rayner's proposed amendment. The example that Senator Raynor used to illustrate the difficulties he saw in the bill was a hypothetical case in which a plea in bar—a limitations plea—was sustained halfway through the trial. See 41 Cong.Rec. 2749. In that case, Senator Rayner argued, no one could say with certainty whether the defendant had been put in jeopardy, and hence whether he could constitutionally be retried if the Government's appeal were successful. Senator Rayner did not want to leave the defendant's fate to depend on 'this howling wilderness of confusion upon the subject of what constitutes legal jeopardy.' 41 Cong.Rec. 2750 (emphasis added). His amendment would thus have guaranteed that a defendant could never be retried—whatever the ultimate resolution of the 'legal jeopardy' question. Those who opposed the amendment argued that if it had any substantive effect, it would make the question on any appeal 'moot'; that it was enough to make sure that the Government was not allowed to secure a reversal and proceed again where the result would place the defendant in 'double jeopardy'; and that the bill would leave to the Supreme Court the question of what is 'jeopardy,' and hence protection 'against any invasion of the constitutional guaranty as to double jeopardy.' 41 Cong.Rec. 2761—2763; see also 41 Cong.Rev. 2193. But it is clear—indeed it was again crucial to Senator Rayner's argument—that the Senators assumed that 'jeopardy' was being used in the legal sense:
141
'The question is whether it subjects a man under any aspect of it to the danger of double jeopardy.
142
'The Senator (Rayner) says he does not care whether it is double jeopardy or not. Even if a man under the Constitution may properly and lawfully be put on trial again, if he has been tried once, even though it were a mistrial, if he had been for a moment in jeopardy, he insists that we shall provide by law, no matter what the case may be, that he shall not be tried again; that he shall go acquit.
143
'The matter has been thoroughly argued. I am content to leave it, under the bill, if it shall become a law, to the Supreme Court of the United States. It is their function to determine what is jeopardy. It is their function to protect the citizens of the United States against any invasion of the constitutional guaranty as to double jeopardy. I think we can rely upon the court to protect as far as the Constitution requires it all defendants, without supplementing the Constitution by the Senator's amendment to this bill.' 41 Cong.Rec. 2762—2763 (remarks of Senator Spooner).11
144
Senator Rayner's hypothetical example of a plea in bar sustained after trial had begun—an example accepted without question by Senators Patterson, Nelson, and Spooner, and every other Senator participating in the debate completely undercuts the majority's assertion that Congress thought there could be no appeal once the jury had been impaneled. Indeed, in the face of the arguments over the meaning of 'jeopardy' and Senator Rayner's vigorous attack on the vagueness of that term, it is nothing short of incredible for the majority to suggest that Congress left that language in the Act, intending it to be interpreted as providing 'a clear, easily administered test,' ante, at 307. If Congress had intended the majority's interpretation it would have been both simple and logical to explicitly limit appeals to cases 'where the jury has not yet been impaneled,' thus avoiding the possibility of confusion which had been the very topic of discussion for three full days of debate.
145
The plain fact of the matter is that the majority's post hoc rationalization of the Act simply was not that of Congress. While the debates show considerable disagreement about the meaning of 'jeopardy' in the legal sense, there is not the slightest suggestion anywhere in the legislative history that 'jeopardy' is being used in any other sense. Even where references occur to the impaneling of the jury as the moment when jeopardy attaches, it is clear that jeopardy is still being used in its legal sense—after all, as the majority itself notes, ante, at 305, the impaneling of the jury does in fact often become the constitutionally relevant point in determining that 'legal jeopardy' has attached to prevent a reprosecution. But the one point on which there was unanimous agreement—even from Senator Rayner, see, e.g., 41 Cong.Rec. 2748 (1907)—about the meaning of 'jeopardy,' was that where a convicted defendant on his own motion had secured the arrest of a jury's verdict of guilty, he had not been placed in 'jeopardy.' '(T)he defendant could not complain, either if the judgment of the court shall be entered upon the verdict or a new trial shall be ordered, because it is giving to the defendant a new opportunity to go acquit when, under the trial that was had, he had been convicted.' 41 Cong.Rec. 2753.
146
For this Court to hold that Sisson has been placed in jeopardy under the motion-in-bar provisions, thus defeating jurisdiction, the Court must be prepared to hold that a successful appeal by the Government, resulting in an order that judgment be entered on the verdict, would violate Sisson's double jeopardy protection. Judge Learned Hand refused even to consider such a suggestion in Zisblatt: 'So long as the verdict of guilty remains as a datum, the correction of errors of law in attaching the proper legal consequences to it (does) not trench upon the constitutional prohibition.' 172 F.2d, at 743.
III
147
I find extremely peculiar the path that the Court follows in reaching its conclusion that we cannot hear this case. The 'motion in arrest' provision is confined to its early common-law sense, although there is absolutely no indication that Congress was using the phrase in that sense, and we have never similarly limited the 'motion in bar' provision to its common-law scope. The alleged trouble with the 'motion in arrest' is not any problem of jeopardy, but the fact that Judge Wyzanski relied on facts outside the face of the 'record.' Conversely, the trouble with the 'motion in bar' provision is not the use of outside facts, but solely the fear that Sisson was 'put in jeopardy.' If this were a motion in arrest, there would be no 'jeopardy' problem; and if this were a motion in bar, resort to outside facts would pose no problem. The apparent inconsistency and the refusal to hear the case appear to be due to a dogged determination to fit Judge Wyzanski's action into one 'common-law pigeonhole,' United States v. Mersky, 361 U.S. 431, 442, 80 S.Ct. 459, 465, 4 L.Ed.2d 423 (Brennan, J., concurring), or the other while paying scant attention to the reason for trying to make the fit in the first place, with the result that Judge Wyzanski's action is to be given the no less distorting label of 'acquittal.'
148
The question in this case should simply be whether or not a judge who upholds a claim of constitutional privilege, thereby declaring the statute unconstitutional as applied, has entered a judgment that Congress intended this Court to be able to review. Surely in a statute as unclear and ambiguous as the majority says this unhappy Act is, the 'words' of the statute are only the first place to start the task of interpretation. The primary guide to interpretation should be the statute's purpose, as indicated by the evil that prompted it, and by the legislative history.
149
The Act was passed to remedy the situation that gave a single district judge the power to defeat any criminal prosecution instituted by the Government, and to annul as unconstitutional, attempts by Congress to reach a defendant's specified conduct through the use of the criminal machinery. Over and over, this theme is repeated in the debates on the bill, dominating every other topic of discussion except the concern for safeguarding the defendant's privilege against double jeopardy. As THE CHIEF JUSTICE'S opinion details, it is difficult to imagine a case more closely fitting the type of case in which Congress intended to allow an appeal than the instant one.
150
The majority suggests that we must remember that the Act was 'a compromise,' and that Congress was very concerned about not unduly encroaching on the rights of the defendant. But the 'compromise' between the House and the Senate was only over the areas in which to allow appeal—there was complete accord that constitutional cases of this sort constituted one of those areas; they were indeed the Act's raison d'e tre. Similarly while Congress was concerned to protect the defendant's rights, it had no doubt that those rights were not invaded where a defendant had been found guilty, and the Government appealed the judge's decision that for legal reasons the verdict could not stand. The majority, in short, pays lip service to the policies of the Act without ever applying those policies to the question presented in the case before it. Judge Wyzanski, anxious to do his duty as he saw it, and yet aware that ultimate resolution of the constitutional issue properly belongs in this Court, had two means of passing on the issue while still protection Sission's rights: he could have granted Sisson's motion after a pretrial hearing, see United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1561, 23 L.Ed.2d 94; Fed.Rules Crim.Proc. 12(b)(1), 12(b)(4), or he could, as here, grant the motion only after the jury's verdict of guilty forced him to reach the constitutional question. In either case, none of the interests reflected in the jeopardy provisions of the Constitution—protecting defendants from repeated and harassing trials for the same offense—is in any way endangered. In fact, Sisson's interests if anything are less in jeopardy in the second case than the first where the Government's appeal would force a long delay in beginning the trial itself.
151
The conclusion that Congress intended judgments of this kind to be reviewed seems to me so clear, that I suspect the majority's neglect of this aspect of the statute amounts to a tacit admission that policy and purpose point overwhelmingly toward finding jurisdiction. If that is the case, then to hang Congress on the technical meaning of the obscure legal terms it happened to use is not only inappropriate, but is strangely out of line with decisions that leap over the plain meaning of words in other contexts to reach conclusions claimed to be consistent with an Act's broader purposes. See Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970); United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). Compared to some of these examples of 'statutory construction,' it is child's play to conclude that Congress did not really mean to limit 'motion in arrest' to its old common-law meaning, or that at least if it did, it though decisions such as Judge Wyzanski's would have been appealable under some other provisions, such as the 'motion in bar' as long as there was no danger of encroaching on the defendant's jeopardy interests.
152
Admittedly, the issues raised by Sisson are difficult and far-reaching ones, but they should be faced and decided. It is, to be sure, much more comfortable to be able to control the decision whether or not to hear a difficult issue by the use of our discretion to grant certiorari. But that is no excuse for ignoring Congress' clear intent that the Court was to have no choice in deciding whether to hear the issue in a case such as this. The fear expressed in the prevailing opinion that if we accept jurisdiction we shall be 'cast adrift' to flounder helplessly, see ante, at 299, has a flavor of nothing so much as the long-discarded philosophy that inspired the old forms of action and that led to the solemn admonition in 1725 that '(w)e must keep up the boundaries of actions, otherwise we shall introduce the utmost confusion.' Reynolds v. Clarke, 93 Eng.Rep. 747, 748 (K.B.1725). I cannot agree. I would find jurisdiction.
*
Mr. Justice BLACK joins only Part II C of this opinion. Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL join the entire opinion.
1
We have today granted certiorari in Gillette v. United States, 399 U.S. 925, 90 S.Ct. 2236, 26 L.Ed.2d 791, and Negre v. Larsen, 399 U.S. 925, 90 S.Ct. 2256, 26 L.Ed.2d 792, in order to consider the 'selective' conscientious objector issue that underlies the case now before us but which we cannot reach because of our conclusion that we have no jurisdiction to entertain this direct appeal.
2
Not only did the defense itself avoid advancing any theory or proof that Sisson deserved conscientious objector status, but there are even indications that the defense purposely attempted to keep the issue out of the case. For example, at one point in the trial the Marine officer who called Sisson for induction stated that Sisson had told him at the time that he was refusing induction because of religious belief, and his 'conscientious objector status.' (App. 143.) Later, when questioned by his own counsel, Sisson not only denied having the conversation with the officer but also stated that he had never applied for C.O. status (1) because he could not honestly claim 'conscientious objection to war in any form as it is put on the Form 150'; and (2) because he believed 'the system of exemptions and deferments (to be) unequal and (to discriminate) against those who do not have education * * * or money.' Sisson stated flatly that he therefore 'could not accept such deferment.' (App. 147—150.)
3
Among the various offers of proof made by Sisson's attorney before the trial was one to show that Sisson 'reasonably believed the Vietnam war to be illegal,' and that he therefore lacked the requisite intent to 'wilfully' refuse induction. In the pretrial order, the trial judge ruled that:
"Wilfully' as used in the indictment means intentionally, deliberately, voluntarily. If the Government proves defendant intentionally refused to comply with an order of his draft board, in accordance with the statute, to submit to induction, it is not open to defendant to offer as an excuse that he regarded the war as illegal, that is, contrary to either domestic Constitutional law or international law * * *. (I)n a prosecution for wilfully refusing to obey an induction order, evidence with respect to belief is admissible only to the extent it bears upon the issue of intent, as distinguished from motive or good faith.' 294 F.Supp., at 519.
4
The key instruction was given as follows:
'The only question which as a matter of law a Jury has a right to consider is whether the defendant if he failed to perform an act required under the statute and regulations was acting knowingly in the sense of with mental awareness, (and) wilfully in the sense of intentionally and with free choice.
'He may have all the views he likes of a political, ethical, religious or legal nature. They may be as reasonable as sometimes dissents of the Supreme Court are reasonable and sometimes the majority Opinions are reasonable, but as long as the law stands as it now stands his motivation, his good faith and the like are not in the least relevant to the question whether he is guilty or not.' (App. 193.)
5
Defendant first submitted a motion in arrest of judgment March 26—five days after the trial. Two days later he substituted an amended motion in arrest 'in lieu of' his original motion. This first amended motion differed only in detail from the original. Both were based on the jurisdictional argument described in the text and neither made any claim based on the Establishment or Free Exercise Clause.
6
The District Court was apparently referring to Sisson's pretrial 'offer (of) evidence' with reference to Sisson's 'right of conscience.' See supra, at 273; 294 F.Supp., at 519. It does not appear that any contention based on Sisson's right of conscience was raised at trial, or made in the motion to arrest judgment, see supra, n. 5. Possibly in recognition of this, the District Court noted in its opinion that '(i)t would have been better practice' for Sisson's attorney to have made 'a more detailed reference' in his motion in arrest to his 'earlier' arguments. The court stated that '(n)o doubt, defendant will seasonably make his motion in arrest even clearer.' On April 3—two days after the District Court's decision—Sisson's attorney moved to amend his motion in arrest to make the requested grounds conform with those already stated in the opinion. The District Court granted this motion to amend nunc pro tunc as of April 1—the date of its opinion.
Because we conclude that the District Court's decision was not in fact one arresting judgment, see infra, we have no occasion to decide whether the District Court incorrectly characterized these issues as having been raised by the defendant, and if so, whether the 1966 amendment to Fed.Rule Crim.Proc. 34, requiring that a motion in arrest of judgment be granted 'on motion of a defendant,' precludes a district court from granting such a motion on an issue not raised by the defendant's motion.
7
For the text, see n. 20, infra.
It should be noted that at the conclusion of his opinion, the District Judge stated that he was granting the motion in arrest because '(i)n the words of Rule 34, the indictment of Sisson 'does not charge an offense." He then stated in conclusory terms that his decision was one "arresting a judgment of conviction for insufficiency of the indictment * * * (which) is based upon the invalidity * * * of the statute upon which the indictment * * * is founded" for purposes of 18 U.S.C. § 3731, and that the Government could therefore take a direct appeal to this Court.
The label attached by the District Court to its own opinion does not, of course, decide for us the jurisdictional issue, however. 'We must be guided in determining the question of appealability of the trial court's action not by the name the court gave (its decision) but by what in legal effect it actually was,' United States v. Waters, 84 U.S.App.D.C. 127, 128, 175 F.2d 340, 341, appeal dismissed on Government's motion, 335 U.S. 869, 69 S.Ct. 168, 93 L.Ed. 413 (1948); United States v. Zisblatt, 172 F.2d 740, 742 (C.A.2d Cir.), appeal dismissed on Government's motion, 336 U.S. 934, 69 S.Ct. 750, 93 L.Ed. 1093 (1949); see United States v. Hark, 320 U.S. 531, 536, 64 S.Ct. 359, 361, 88 L.Ed. 290 (1944); United States v. Blue, 384 U.S. 251, 254, 86 S.Ct. 1416, 1418, 16 L.Ed.2d 510 (1966).
8
Although all three conditions must be met for the Government to appeal a case directly to this Court, as long as the first requirement is met the Government can appeal to a Court of Appeals under a separate provision of § 3731 allowing an appeal '(f)rom a decision arresting a judgment of conviction except where a direct appeal to the Supreme Court of the United States is provided. * * *'
9
It is arguable that the third requirement is not met since the District Court's decision was not 'based upon the invalidity or construction' of 50 U.S.App. § 462(a) (1964 ed., Supp. IV)—the statutory provision 'upon which the indictment * * * is founded.' As a matter of sound construction, however, 'statute upon which the indictment * * * is founded' should be read to include the entire statute, and not simply the penalty provisions. See United States v. Socony Mobil Oil Co., 252 F.2d 420 (C.A.1st Cir.), appeal dismissed per stipulation, 356 U.S. 925, 78 S.Ct. 712, 2 L.Ed.2d 757 (1958); cf. United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423 (1960); see also Friedenthal, Government Appeals in Federal Criminal Cases, 12 Stan.L.Rev. 71, 75 (1959).
10
In early days the 'face of the record' simply included the material found on the 'judgment roll.' See United States v. Zisblatt, 172 F.2d, at 742. In a criminal case today it has been thought to include 'no more than the indictment, the plea, the verdict * * * and the sentence.' United States v. Bradford, 194 F.2d 197, 201 (C.A.2d Cir.), cert. denied, 343 U.S. 979, 72 S.Ct. 1079, 96 L.Ed. 1371 (1952).
11
This Court first recognized the existence of motions in arrest of judgment in United States v. Cantril, 4 Cranch 167, 2 L.Ed. 584 (1807).
12
Fed.Rule Crim.Proc. 34 provides:
'The court on motion of a defendant shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 7 days after verdict or finding of guilty, or after plea of guilty or nolo contendere, or within such further time as the court may fix during the 7-day period.'
13
United States v. Zisblatt, supra, 172 F.2d, at 742.
14
United States v. Lias, supra, 173 F.2d, at 687.
15
None of the cases relied on by the Government even hints that evidence presented at the trial can be the basis for a motion in arrest of judgment. In United States v. Green, 350 U.S. 415, 76 S.Ct. 522, 100 L.Ed. 494 (1956), there was no disagreement' between the majority and dissenters on the rule that direct review is impossible if the decision below is based upon facts arising from the trial. Instead the majority and dissent simply disagreed as to whether the District Court's decision had relied on evidence at the trial. Compare the majority opinion, 350 U.S., at 418 and 421, 76 S.Ct., at 524 and 526, with the dissent, 350 U.S., at 421, 76 S.Ct., at 526. In United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955), also cited by the Government, the indictment specified that the appellee had made a fraudulent claim against the Disbursing Office of the House of Representatives in violation of 18 U.S.C. § 1001 which forbids the willful falsification of any material statement 'in any matter within the jurisdiction of any department or agency of the United States.' The District Court arrested judgment on the ground that the House Disbursing Office was not a 'department or agency' for purposes of the statute, and on appeal this Court reversed. Neither the District Court nor this Court relied in any way upon the evidence submitted at the trial in determining the scope of the statutory phrase 'department or agency' found in 18 U.S.C. § 1001. Finally, the Government refers to United States v. Waters, 84 U.S.App.D.C. 127, 175 F.2d 340 (1948). In that case the District Court held an indictment did not charge an offense because it alleged only that the appellee was carrying a gun, and not that he was carrying a gun without a license. However, the District Court called its opinion the grant of a motion of acquittal. The United States appealed to the Court of Appeals which held that the decision was a motion in arrest, stating that th 'question of appealability' turned not on 'the name the (district) court gave (the decision) but by what in legal effect it actually was.' The Court of Appeals then certified the case to this Court, since it felt the motion in arrest involved an 'interpretation' of the underlying statute, but the appeal was dismissed on the motion of the United States, 335 U.S. 869, 69 S.Ct. 168, 93 L.Ed. 413 (1948).
16
The factual determinations would also appear essential for the District Court's alternative ground of decision based on the Establishment Clause. That holding rests necessarily upon the finding that Sisson, though nonreligious, 'was as genuinely and profoundly governed by his conscience as would have been a martyr obedient to an orthodox religion.' Without this finding, Sisson would have no standing to assert the underinclusiveness of § 6(j) of the Act as a defense to his prosecution. Whether factual determinations made only for purposes of deciding questions of standing, particularly if made before trial, would offend the requirements that motions in arrest must be based on errors on the face of the record is an issue inappropriate for decision in this case. Because of our determination that the District Court's free exercise holding was in effect an acquittal, there is no need to decide whether the alternative Establishment Clause ruling would be appealable if it stood alone.
17
Compare 50 U.S.C.App. § 462(a) (1964 ed., Supp. IV) with the allegations of the indictment:
'That on or about April 17, 1968, at Boston, in the District of Massachusetts, JOHN HEFFRON SISSON, JR., of Lincoln, in the District of Massachusetts, did unlawfully, knowingly and wilfully fail and neglect and refuse to perform a duty required of him under and in the execution of the Military Selective Service Act of 1967 and the rules, regulations and directions duly made pursuant thereto, particularly 32 Code of Federal Regulations 1632.14, in that he did fail and neglect and refuse to comply with an order of his local draft board to submit to induction into the armed forces of the United States; in violation of Title 50, Appendix, United States Code, Section 462.'
18
This principle would dictate that after this jurisdictional dismissal, Sisson may not be retried.
19
Our conclusion does not, as suggested in dissent, post, at 327 (dissenting opinion of Mr. Justice WHITE), rest on the fact the District Court 'might have' sent the case to the jury on the instruction referred to in the text, but instead on what it did do i.e., render a legal determination on the basis of facts adduced at the trial relating to the general issue of the case, see, infra, at 301. Neither dissenting opinion explains what 'large and critical' difference, post, at 329, exists between its expansive notion of what constitutes a decision arresting judgment and a post-verdict acquittal entered by the judge after the jury has returned a verdict of guilty pursuant to Fed.Rule Crim.Proc. 29.
We think untenable the view of Mr. Justice WHITE that under the principles of this opinion today the 'Court should not have had jurisdiction in United States v. Covington,' 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969), on the ground that the pretrial dismissal in that case 'would amount to an acquittal because the judge might have given the case to the jury under instructions that it should acquit if it found the facts necessary to sustain the defendant's privilege—e.g., that he was not one of the registered marihuana dealers whose conduct was legal under state law,' post, at 327 (emphasis in original). As we note, infra, n. 56, what the District Court did do in Covington was to dismiss an indictment before trial without any evidentiary hearing. Moreover, in disposing of the Government's contentions on the merits, this Court held that there was no need in that case for a pretrial evidentiary hearing on the defendant's motion to dismiss (much less a need to submit any factual issue to a jury) because (1) 'there is no possibility of any factual dispute with regard to the hazard of incrimination'; and (2) 'the Government (had) never alleged the existence of a factual controversy' concerning appellee's nonwaiver of his privilege against self-incrimination, 395 U.S., at 61, 89 S.Ct., at 1561.
20
The statute provides, in pertinent part:
'An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
'From 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 a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision 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 statute goes on to provide for (1) Government appeals to the courts of appeals for all other decisions (a) setting aside or dismissing indictments, or (b) arresting judgments; (c) granting a pretrial suppression motion; (2) release on bail; (3) transfer of cases from this Court to a court of appeals or vice versa when an appeal has erroneously been taken to the wrong court.
21
34 Stat. 1246 provided in pertinent part:
'* * * That a writ of error may be taken by and on behalf of the United States from the district or circuit courts direct to the Supreme Court of the United States in all criminal cases, in the following instances, to wit:
'From a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment, or any count thereof, where such decision or judgment is based upon the invalidity, or construction of the statute upon which the indictment is founded.
'From a decision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded.
'From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.'
22
Between 1907 and the present day, Congress has amended the Act several times. These include a 1948 amendment that brought the procedural vocabulary of the statute into formal conformity with the Federal Rules of Criminal Procedure, 62 Stat. 844. Although 'special plea in bar' thus became 'motion in bar,' and 'decision * * * quashing * * * or sustaining a demurrer to, any indictment' became 'decision * * * dismissing any indictment,' the Reviser's Notes plainly show that this amendment was not meant to change the Act's coverage, H.R.Rep. No. 304, 80th Cong., 1st Sess., A177; see United States v. Apex Distributing Co., 270 F.2d 747, 755 (C.A.9th Cir. 1959).
A 1942 amendment did increase this Court's jurisdiction under the Act by including cases involving informations as well as indictments, 56 Stat. 271. Other amendments have (1) abolished review by writ of error and substituted the right of appeal, 45 Stat. 54 (1928); (2) given the courts of appeals jurisdiction for appeals from decisions in the same common-law categories as those originally provided, but which do not involve the construction or validity of the underlying statute, 56 Stat. 271.
23
See the Attorney General's Annual Reports for 1892, pp. xxiv—xxv; for 1893, p. xxvi; for 1894, p. xxix; for 1899, p. 33; for 1900, p. 40; for 1903, p. vi; for 1905, p. 10; for 1906, p. 4. See generally Kurland, The Mersky Case and the Criminal Appeals Act: A Suggestion for Amendment of the Statute, 28 U.Chi.L.Rev. 419, 446—449 (1961); F. Frankfurter & J. Landis, The Business of the Supreme Court 114—117 (1928).
24
1892 Rep.Atty.Gen. xxiv.
25
United States v. Armour & Co., 142 F. 808 (D.C.N.D.Ill.1906).
26
See Frankfurter & Landis, supra, n. 23, at 117; Kurland, supra, n. 23, at 449.
27
41 Cong.Rec. 22.
28
Kurland, supra, n. 23, at 450.
29
40 Cong.Rec. 5408.
30
The text of the House bill appears at 40 Cong.Rec. 5408. It gave the United States the same right of review by writ of error as was then accorded a criminal defendant, but further provided that if on appeal any error were found, the defendant should retain the advantage of any verdict in his favor. With neither debate nor a division, the bill passed the House on April 17, 1906. Ibid.
31
See S.Rep. No. 3922, 59th Cong., 1st Sess. (1906).
32
See 40 Cong.Rec. 9033.
33
Id., at 9122.
34
41 Cong.Rec. 1865; S.Rep. No. 5650, 59th Cong., 2d Sess. (1907).
35
41 Cong.Rec. 2190—2197; 2744—2763; 2818—2825.
36
Id., at 2194.
37
Id., at 2195—2197.
38
See id., at 2749—2762.
39
See id., at 2819.
40
See id., at 2752.
41
When asked whether the substance of his amendment was that there was to be no appeal and retrial after the defendant had been 'acquitted by the verdict of a jury,' the sponsor of the amendment, Senator Rayner, stated: 'I have in the amendment no such words as 'acquitted by the jury.' I have nothing to do with the jury. He may be acquitted by a magistrate * * *. I do not care by what tribunal he is acquitted * * *.' Id., at 2749.
42
See infra, at 302—307.
43
See 41 Cong.Rec., at 2822, 2823.
44
Id., at 2834.
45
Id., at 3044—3047.
46
Id., at 3647.
47
See H.R.Rep. No. 8113, 59th Cong., 2d Sess.
48
41 Cong. Rec. 3994, 4128.
49
It appears that the dissenters have not only 'outgrown' the statutory limitations of a 'decision arresting a judgment' for purposes of § 3731, but also the limitations of Rule 34.
50
Professor Kurland characterized the statute as 'a compromise among several divergent forces. The division in the Senate was primarily between those who wanted limited review and those who wanted none. The division between the House and Senate was between those who wanted complete review and those who wanted limited review.' Kurland, supra, n. 23, at 454.
51
See, e.g., 1907 Rep.Atty.Gen. 4. See infra, at 306.
52
See 396 U.S. 812, 90 S.Ct. 92, 24 L.Ed.2d 65 (1969).
53
At common law, a special plea in bar was ordinarily used to raise three defenses—autrefois acquit, autrefois convict, and pardon—and there is language in some of our case that indicates that, apart from these defenses, a plea in bar was not appropriate 'to single out for determination in advance of trial matters of defense either on questions of law or fact,' United States v. Murdock, 284 U.S. 141, 151, 52 S.Ct. 63, 65, 76 L.Ed. 210 (1931). There are cases consistent with the narrow common-law definition that indicate, for example, that a defense based upon the statute of limitations could not be raised by a 'special plea in bar,' United States v. Kissel, 218 U.S. 601, 606, 31 S.Ct. 124, 125, 54 L.Ed. 1168 (1910); United States v. Barber, 219 U.S. 72, 78—79, 31 S.Ct. 209, 211—212, 55 L.Ed. 99 (1911). On the other hand, it appears the Court accepted jurisdiction under § 3731, in appeals from decisions granting special pleas in bar based on a statute of limitations defense, with no explanation of the apparent inconsistency. See United States v. Goldman, 277 U.S. 229, 236 237, 48 S.Ct. 486, 488, 72 L.Ed. 862 (1928); see also United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211 (1915). And, in United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423 (1960), there was no decision of the Court on what was a motion in bar, and the concurring opinion of Mr. Justice Brennan and the dissenting opinion of Mr. Justice Stewart indicated disagreement on this issue. Compare 361 U.S., at 441 443, 80 S.Ct., at 465—466 with id., at 455—458, 80 S.Ct. at 472 474, To add to the uncertainty, arguably in United States v. Murdock, supra, and certainly in United States v. Blue, 384 U.S. 251, 253—254, 86 S.Ct. 1416, 1418—1419, 16 L.Ed.2d 510 (1966), and United States v. Covington, 395 U.S. 57, 59 n. 2, 89 S.Ct. 1559, 1560, 23 L.Ed.2d 94 (1969), the Court took jurisdiction and considered the merits of appeals from district court dismissals based on self-incrimination defenses on the ground that the decisions below had sustained motions in bar for purposes of the Criminal Appeals Act—even though Murdock itself stated that this defense is not appropriately raised by a special plea in bar. 284 U.S., at 151, 52 S.Ct., at 65.
54
In United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423 (1960), there was no decision of the Court concerning what approach should be taken. Mr. Justice Brennan suggested that the category include any decision that barred reprosecution if upheld, id., at 441—443, 80 S.Ct., at 465—466, while Mr. Justice Stewart thought the provision should be confined to those decisions that would fall within the compass of the common law 'special plea in bar,' id., at 455—458, 80 S.Ct., at 472—474. See generally Kurland, supra, n. 23.
55
The dismissal provision of Fed.Rule Crim.Proc. 12, which Mr. Justice Brennan in his Mersky concurrence saw as having 'swept away the old pleas,' 361 U.S., at 442, 80 S.Ct., at 466, itself limits a dismissal to those defenses 'capable of determination without the trial of the general issue,' Fed.Rule Crim.Proc. 12(b)(1).
56
Nowhere does United States v. Covington, supra, suggest, as argued in dissent, that there might be jurisdiction under the motion-in-bar provision of § 3731 in circumstances where the parties 'tr(ied) facts to the judge that were relevant to the motion in bar, and separate from the general issue,' post, at 332 (dissenting opinion of Mr. Justice WHITE). Our Brother WHITE reaches this conclusion by taking a quotation from Covington out of context, and confusing that opinion's disposition of the merits of the Government's appeal with the Court's jurisdictional holding.
In Covington, the District Court, before trial without any evidentiary hearing, dismissed an indictment bottomed on the Marihuana Tax Act, 26 U.S.C. § 4744(a)(1), on the ground that the 'privilege against self-incrimination necessarily would provide a complete defense to the prosecution,' id., at 58, 89 S.Ct., at 1560. The Government appealed, claiming the Court had jurisdiction under both the dismissal and the motion-in-bar provisions of § 3731. The Court found jurisdiction in the alternative under either provision. The only discussion of the motion-in-bar jurisdictional issue, found in a footnote, was as follows: '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),' 395 U.S., at 59 n. 2, 89 S.Ct., at 1560 n. 2.
Having thus disposed of the jurisdictional issue, the Court proceeded to the merits of the Government's appeal and, inter alia, considered 'whether such a plea of the privilege (against self-in-crimination) may ever justify dismissal of an indictment, and if so whether this is such an instance,' id., at 60, 89 S.Ct., at 1561. In this context the Court said:
'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. 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.' Id., at 60, 89 S.Ct., at 1561.
Taken in full context, the quotation used by Mr. Justice WHITE, post, at 332, plainly had reference to a district court's power under Fed.Rule Crim.Proc. 12 to dismiss an indictment, and nothing whatsoever to do with the quite distinct issue of the scope of the jurisdictional provisions of § 3731.
That the Court was there concerned with only the merits of appeal is clear from what follows. After suggesting that in most circumstances a motion to dismiss an indictment brought under 26 U.S.C. § 4744 would not require any factual inquiry, the Court stated that once a defendant asserted his privilege a trial court should dismiss the indictment without an evidentiary hearing 'unless the Government can rebut the presumption (of nonwaiver of the privilege) by showing a need for further factual inquiries.' Id., at 61, 89 S.Ct., at 1561. In applying that principle to the merits of the case before it, the Court affirmed the District Court's action below because: '(1) there (was) no possibility of any factual dispute with regard to the hazard of incrimination'; and (2) 'the Government has never alleged the existence of a factual controversy' concerning the issue of whether 'appellee (had) waived his privilege.' Ibid.
The Court in Covington did not say that a defense based on the privilege against self-incrimination where there were facts in dispute could, in all cases, be decided without consideration of the general issue. And, more importantly for present purposes, nowhere does the opinion in Covington even hint that a dismissal requiring a pretrial evidentiary hearing, or a dismissal motion properly deferred to the trial of the general issue would be appealable under the motion-in-bar provision of the Criminal Appeals Act. The Court in Covington had no such jurisdictional issues before it, and the opinion does not discuss such issues.
57
See 40 Cong.Rec. 9033. In this exchange, Senator Spooner said: 'I understand this (bill) applies only to questions which arise before the impaneling of the jury.' Senator Nelson agreed that the bill was so limited, and obviously thinking he was saying the same thing, said the bill applied only '(w)here the party has not been put in jeopardy.' After being reminded of the arrest-of-judgment provision, Senator Nelson acknowledged that this was an exception, but obviously trying to minimize the scope of the exception he pointed out that the only motions in arrest of judgment that could be appealed were those granted 'for insufficiency of indictment; not for any other ground.' Ibid.
See 41 Cong.Rec. 2191 (Sen. Nelson) ('I wish to say further that where a jury has been impaneled and where the defendant has been tried an appeal does not lie'), id., at 2748 (Sen. Patterson) ('(A) motion in arrest of judgment * * * is the only one of the three cases in which there can have been a trial * * *. (I)n the other two cases * * * the motions must ex necessitati be made before jeopardy attaches'); id., at 2752 (Sen. Patterson) ('(T)hese proceedings are all defendant's acts before a verdict to prevent a trial, except the motion in arrest of judgment, which is defendant's act after a verdict against him to defeat a judgment on the verdict') (emphasis supplied).
Without explaining his inconsistency, Senator Patterson later expressed the view that under the proposed bill the Government would have been able to appeal the decision in the famed Chicago Beef Trust Case because the jury's verdict was based on the 'special plea in bar filed' in that case, not on the defendants' guilt or innocence, id., at 2753. Underlying this conclusion—later disputed by Senator Nelson, see id., at 2757—was Patterson's expectation that 'in the case of a special plea in bar that went against the Government the Defendant had not been in jeopardy on the merits of the case,' id., at 2753 (emphasis supplied). Unlike the defendants in the Beef Trust case—who Patterson understood not to have been tried on the general issue of their guilt or innocence—plainly Sisson has been put 'in jeopardy on the merits of the case.' Our Brother WHITE admits as much, by suggesting he could not be retried. Therefore, even under Patterson's broader reading of the statute, an appeal would not lie in this case.
58
See, e.g., 41 Cong.Rec. 2745—2763.
59
See, e.g., 40 Cong.Rec. 9033; 41 Cong.Rec. 2192; id., at 2751.
60
See 41 Cong.Rec. 2751 (Sen. Knox) ('(I)f I thought there was a single line, or a sentence, or a clause contained in this bill which by any court would be construed to place a man twice in jeopardy, I would vote to cut it out, not because there would be any necessity for cutting it out, as it would be invalid under the Constitution of the United States, but I would vote to cut it out upon the ground that it would not be an artistic and intelligent bill with such a provision within its borders.')
The provision granting an appeal from a decision dismissing or setting aside an indictment does not contain a similar phrase limiting appeals to cases when the defendant has not yet been put in jeopardy, but we agree with the conclusion reached by the Government that the same limitation applies. See n. 57, supra.
61
Brief 19. It should be noted that at the Government's request a proposed amendment to § 3731 has been introduced in Congress to remove this limitation. The proposed statute, which avoids common-law terminology, would allow an appeal from a decision made after the jury was sworn in all cases where the Double Jeopardy Clause would permit it. See H.R. 14588, 91st Cong., 1st Sess., 115 Cong.Rec. H10274 (daily ed. Oct. 29, 1969).
62
See 1907 Rep.Atty.Gen. 4; see also Hearing on Granting Appeals by the United States from Decisions Sustaining Motions to Suppress Evidence, before Subcommittee No. 2 of the House Committee on the Judiciary, 83 Cong., 2d Sess., ser. 15, p. 11 (1954).
63
Motions in bar, for example, can only be appealed to this Court irrespective of whether the case involves the validity or construction of a statute.
64
See supra, nn. 53—54.
65
See, e.g., United States v. Zisblatt, supra; United States v. Brodson, 234 F.2d 97 (C.A.7th Cir. 1956). See generally Friedenthal, supra, n. 9, at 83—88.
66
Tr. of Oral Arg. 11.
1
United States v. Lias, 173 F.2d 685 (C.A.4th Cir. 1949), supports the view that the standards are the same for Rule 34 and § 3731.
Rule 34 provides: 'The court on motion of a defendant shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 7 days after verdict or finding of guilty, or after plea of guilty or nolo contendere, or within such further time as the court may fix during the 7-day period.'
2
Brief 30.
3
As the Court's opinion indicates, see ante, at 274—276, the evidence of conscientious objection that was admitted at trial was subject to cross-examination and was discussed during the closing arguments, but solely in the context of Sisson's 'wilfulness' in refusing induction not respecting whether Sisson was or was not in fact a sincere conscientious objector.
4
Both the Halseth, and Fruehauf cases involved dismissals of indictments before trial. In Halseth the parties had entered into a stipulation for purposes of a motion to dismiss. The indictment charged in the words of the statute an unlawful use of the mails to deliver 'a lottery or scheme.' It was stipulated that the particular lottery involved would come into existence only if the addressee put the paraphernalia into operation. The District Court granted a motion to dismiss on the ground that the statute did not apply to lotteries such as defendant's that were not yet in existence. This Court affirmed, necessarily relying on the particular facts about the particular mailing under attack. See 342 U.S., at 280—281, 72 S.Ct., at 276—277. In United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961), the indictment charged the appellant, again in the words of the statute, with unlawfully delivering money to a union representative. The District Court ruled that a trial memorandum filed by the Government constituted a judicial admission that a transaction at issue was a loan and concluded that the statute did not cover a loan. The Government appealed that construction of the statute. The Court refused to consider that the 'admission' had clearly foreclosed the Government from proving at trial that the loan was a sham or otherwise constituted a transfer of something of value apart from an ordinary loan, thus violating the statute. Accordingly, it refused to pass on the merits of the appeal and remanded the case for a trial on the existing indictment.
Halseth and Fruehauf are inconclusive authorities on the issue of whether a stipulation can supplement an indictment and generate a basis for review under § 3731. While the majority recognizes that the issue has not been resolved, and although it purports not to resolve it here, it does rely on United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076 (1930), and a policy of construing the Criminal Appeals Act narrowly to express doubt that the Solicitor General's argument should be accepted.
Norris, however, is not a persuasive precedent. There the defendant was permitted to enter a plea of nolo contendere to the charge contained in the indictment. When he appeared for sentencing, a stipulation of facts was filed, and he then submitted a motion for arrest of judgment which relied on the stipulation. The District Court denied the motion but the Court of Appeals reversed, concluding that the indictment was insufficient in light of the stipulation. This Court in turn reversed the Court of Appeals, holding that after pleading guilty, a defendant may not then stipulate facts to test the constitutionality of his conviction. There was no suggestion that an appeal would not lie where a statute was held unconstitutional as applied to stipulated facts. Indeed, the Court's opinion seems at one point to suggest that if the defendant had withdrawn his plea, and then questioned the constitutionality of his conviction on stipulated facts, the question would have been open to consideration. 281 U.S., at 623, 50 S.Ct., at 425.
Further, the majority's ultimate conclusions about the Act necessarily lead it into uncomfortable distinctions. For if the Government or the parties want a constitutional ruling about the applicability of a statute to a particular set of facts, it is only necessary to set out those facts as a part of the indictment or information.
5
See Kurland, The Mersky Case and the Criminal Appeals Act: A Suggestion for Amendment of the Statute, 28 U.Chi.L.Rev. 419, 446—449 (1961).
6
F. Frankfurter & J. Landis, The Business of the Supreme Court 114 (1928).
7
'The Government takes the risks of all the mistakes of its prosecuting officers and of the trial judge in the trial, and it is only proposed to give it an appeal upon questions of law raised by the defendant to defeat the trial and if it defeats the trial.' 41 Cong.Rec. 2752 (1907) (remarks of Senator Knox).
8
'(A motion in arrest of judgment) is a case in which the defendant has been tried, in which he has been found guilty on the merits of the case, and by reason of some technicality, if I may use the term in its broad sense, the hand of the court is arrested from imposing the penalty upon him.' 41 Cong.Rec. 2753 (1907) (remarks of Senator Patterson).
9
The one case in which this Court has even tangentially considered whether evidence adduced at trial can ever be considered as the basis of a motion in arrest of judgment was United States v. Green, 350 U.S. 415, 75 S.Ct. 522, 100 L.Ed. 494 (1956). There the majority of the Court was impelled to explain the basis for its decision by explicitly pointing out that 'the record does not contain the evidence upon which the (district) court acted. * * * We rule only on the allegations of the indictment * * *.' 350 U.S., at 421, 76 S.Ct., at 526. Mr. Justice Douglas, with whom Chief Justice Warren and Mr. Justice Black joined, dissented on the ground that the District Court's 'order granting the motions in arrest of judgment rested at least in part upon the insufficiency of the evidence to support the conviction.' Ibid. But neither the position adopted by the majority nor that taken by the dissenters in Green is remotely dispositive of the present case. Here, in contradistinction to the dissenters' view of the circumstances in Green, evidence adduced at trial was used by the District Court solely for the purpose of testing the constitutionality of a statute as applied; the District Court's opinion concedes the sufficiency of the evidence to sustain the verdict if the constitutional views expressed in the opinion are not sustained.
10
App. 6.
1
Failure to set out the elements of a valid offense against the named defendant is the only way an indictment could ever be 'insufficient' because of the unconstitutionality (as opposed to the construction) of the underlying statute.
2
The majority, as THE CHIEF JUSTICE'S opinion makes clear and as I discuss in more detail later, infra, at 331—332 and n. 6, 332-334, repeatedly ignores this difference between the facts necessary to secure relief for Sisson on his constitutional claim, and the facts relevant to the offense of wilfully refusing induction.
3
The majority seems to recognize that it would have difficulty justifying a refusal to hear an appeal challenging Judge Wyzanski's ruling on the Establishment Clause, simply because findings had to be made as to the defendant's standing to raise the issue. See ante, p. 284 n. 16. But there is no real difference in this respect between Judge Wyzanski's free exercise and establishment rulings: both—as the majority concedes, ibid. require factual determinations that Sisson belongs to the class that is entitled to raise the constitutional claim that is being asserted. If the ruling on the first is 'an acquittal,' so is the ruling on the second, since the judge might have sent the establishment issue to the jury too. See infra, at 327-328.
4
Consistently applied, the majority's theory would make no criminal case appealable to this Court. For even where a judge dismisses an indictment or grants a motion in arrest because of defects 'on the face of the record,' it is always true that he might have sent the case to the jury, instructing it to acquit if it found the facts alleged in the indictment, thus insulating the case from review because of the intervening jury acquittal.
The majority's protest that its conclusion does not rest on 'what might have happened,' ante, at 290 n. 19, simply serves to highlight the ipse dixit nature of its opinion. For the plain fact is that no other reason is ever given to explain why Judge Wyzanski's action amounted to a post-verdict directed acquittal. The question in this case is whether an affirmative defense, relying on facts developed at trial and sustained by the trial judge after a jury verdict of guilty, can amount to an appealable 'motion in bar.' It is no answer to this question simply to repeat that this is a case in which Judge Wyzanski after a verdict of guilty sustained Sisson's defense on facts developed at the trial a clearer case of question-begging can hardly be imagined. Such a simple restatement only poses the question that is to be decided: does such action amount to a nonappealable 'acquittal' and, if so, why?
One answer to this question is suggested by the majority in its citation to United States v. Ball, ante, at 289-290. An acquittal is the type of judgment that cannot be reviewed without putting the defendant twice in jeopardy for the same offense in violation of the Constitution. Indeed, the legislative history shows that Congress was well aware of the Ball decision, and strongly suggests that Congress thought that nonappealable 'acquittals' were only those in which review was incompatible with the double jeopardy provisions of the Fifth Amendment. See, e.g., 41 Cong.Rec. 2193. But despite the citation, I cannot believe that the majority really means to suggest that Congress could not constitutionally authorize an appeal in a case precisely parallel to this one in accordance with currently sought legislation. That would indeed be throwing the baby out with the bathwater in order to declare this case an 'acquittal' and thus avoid being forced to reach the merits now.
What other reason is there for deciding that this is a case of 'acquittal'? One obvious suggestion is that the question of whether a judge's action amounts to an 'acquittal' admits of no single answer, but depends on the reasons for making the inquiry in the first place. Here the inquiry is whether Congress meant to allow an appeal where a statute had been held invalid as applied to a class within its reach and where the defendant's constitutional jeopardy interests are in no way threatened by the appeal. The majority's absolute refusal to discuss or respond to the legislative history on this question, set out below, see infra 335—346, indicates that this approach would also lead to the conclusion that Judge Wyzanski granted an appealable 'motion in bar' rather than an 'acquittal.'
The only other noncircular answer that I can find in the majority's opinion is that this is an acquittal because the judge 'might have' sent the case to the jury under his novel instructions, resulting in a verdict of not guilty, from which an appeal would indeed jeopardize the defendant's constitutional interests. That answer, as the majority's discomfiture indicates, is not a very good one.
5
One will search the majority's opinion in vain for an explanation as to why 'motion in arrest' must be pinned to its common-law meaning, while 'motion in bar'—which the majority also concedes had a unique meaning at common law, see ante, at 300 n. 53—has never been so confined. See United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969) (Harlan, J.); United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966) (Harlan, J.).
6
The majority concedes that the judge's instructions to the jury excluded the question of Sisson's sincerity from the question of Sisson's guilt under the Act. See ante, at 276. Indeed, Sisson's sincerity could not possibly bear on whether Sisson had wilfully refused induction: since Sisson did not seek a I—O classification, he could not even argue his 'sincerity' to show 'no basis in fact' for his I—A classification. Moreover, as the majority again points our, ante, at 274 n. 2, even Sisson recognized that his 'selective' objection to war foreclosed him from obtaining C.O. status under the Act. Sisson's sincerity was thus relevant only to his constitutional defense and was as distinct from the issue on the merits as would have been a claim that the prosecution was time barred. In that sense, the factual questions relevant to Sisson's motion were not part of 'the general issue.' I do not read THE CHIEF JUSTICE'S opinion, which discusses Sisson's defense in a wholly different context, as suggesting anything different. The majority's suggestion, ante, at 299, that a defense of privilege in a speech case may involve facts inextricably intertwined with the general issue, and the majority's reference to United States v. Fargas, ante, at 301, are perfect examples of repeated refusal to come to grips with the facts of this particular case where the issues were not and could not have been intertwined. Whether Sisson might have demanded a jury trial on the facts relevant to his motion is also a question not presented here, any more than it was in United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969) (Harlan, J.).
The legislative history makes clear that trying facts that go to the plea, as opposed to facts that go to the 'general issue' in the sense just described (whether the defendant committed the act) results in an appealable motion in bar as long as the defendant has not been 'put in jeopardy.' Compare 41 Cong.Rec. 2750 (remarks of Senator Nelson), with id., at 2753 (remarks of Senator Patterson). See text, infra, at 340—341. The reason for the distinction appears to be the wholly sensible one of not permitting appeals that might involve overturning the findings of the trier of fact—whether it be judge or jury. Nobody suggests in this case that Judge Wyzanski's findings as to Sisson's sincerity are reviewable; the only question is whether those findings are legally relevant. While I can smpathize with the majority's concern to distinguish Covington, I do not see the relevance of the purported distinction, see ante, at 302-303 n. 56. There, as here, the trial judge explicitly refused to declare the relevant Act unconstitutional on its face and necessarily rested his action on factual findings concerning the particular defendant, see 282 F.Supp. 886, 889—890. In fact, under the majority's reasoning, it would have been even easier to argue in Covington that the facts needed to prove the constitutional defense were part of the 'general issue,' since proof at a trial on the merits would necessarily have involved developing such things as defendant's status as a marihuana dealer. The majority suggests that there the Government conceded the relevant facts, whereas here they were contested. While that suggestion is itself highly dubious, see THE CHIEF JUSTICE'S opinion, ante, at 312, until the majority explains how that distinction is at all relevant, reiterating the distinction again only begs the issue posed by this case. See n. 5, supra. For whether the issue was conceded or contested it remains true under the majority's analysis that Covington cannot be distinguished from a directed acquittal 'entered on the ground that the Government did not present evidence sufficient to prove that (Covington) was (not faced with a substantial possibility of incrimination).' Majority opinion, ante, at 299.
7
See majority opinion, ante, at 306-307 n. 61. Of course, the legislation that the Government sought shortly after the Act was passed—requiring a defendant to raise his defenses before trial—does not necessarily mean that the then-Attorney General interpreted 'jeopardy' to mean literal jeopardy. The legislation would have been equally needed to prevent defendants from waiting until 'constitutional jeopardy' had attached, before securing relief on a motion in bar. Indeed, it is because it was thought that 'constitutional jeopardy' had attached in the Beef Trust Case (United States v. Armour & Co.), 142 F. 808 (D.C.N.D.Ill.1906) that no appeal was thought to lie. See infra, at 341—342. Since the Beef Trust Case was the motivating force behind the Criminal Appeals Act, it would be natural for the Attorney General to seek legislation that would force a similar defendant to raise and get a decision on his plea in bar before trial began, thus avoiding any possibility that the defendant would escape by being placed in legal jeopardy.
8
To argue that the statute was enacted for the benefit of the Department of Justice hardly justifies relying on the Government's concession as additional authority for the proper interpretation of the Act. The relationship of the Department of Justice to the Criminal Appeals Act is not that of an agency to the statute creating the agency and charging it with enforcement of the Act's provisions. Indeed when it comes to the question of this Court's jurisdiction, no institution has special authority for exploring and determining that question other than this Court. The Solicitor General in this case is simply one of the litigants; to give special weight to his strategy in arguing this case at the very least does a disservice to Sisson, who—seemingly contrary to his own interests—has also made a concession: namely, that this Court does have jurisdiction under both the 'motion in bar' and 'motion in arrest' provisions. The views of the Justice Department on the 'motion in bar' provision are entitled to precisely the same weight as the majority extends to Sisson's views and to the Justice Department's views on the 'motion in arrest' provision.
9
This interpretation is reinforced at other points in the debate in a manner that also explains why the 'jeopardy' language occurs in the motion-in-bar provision, and not in the other provisions. The Senators thought that indictments would normally be dismissed before trial began, so there would be no 'jeopardy' problems in allowing appeals in such cases. Similarly, a motion in arrest after judgment was thought to involve no jeopardy problems, because the defendant made the motion himself in an attempt to overturn a verdict of guilty. See 41 Cong.Rec. 2753. But it was recognized that the motion in bar could be granted after trial had started, see 41 Cong.Rec. 2749; and it was not obvious whether in such a case 'jeopardy' would have attached in the constitutional sense to prevent retrial. Hence, the 'jeopardy' language was added 'out of abundance of caution' to make clear that Congress was simply bringing that provision into line with the other provisions: i.e., appeals were to lie only where 'constitutional jeopardy' had not attached; but jeopardy, not the impaneling of the jury, was to be the test of appealability in the case of the motion in bar just as in the case of the motion in arrest. See 41 Cong.Rec. 2191 (remarks of Senator Bacon); 41 Cong.Rec. 2756 (remarks of Senator Nelson) ('out of extreme caution and to put it exactly in harmony and in line with the provisions of the three preceding paragraphs, we have expressly provided that where the defendant has been put in jeopardy he can not be reindicted').
10
The majority's apparent willingness to accept Senator Patterson's suggestion that the Beef Trust Case could have been appealed, ante, at 304 n. 57, virtually concedes the issue. For the whole point is that in distinguishing between the plea and the issue on the merits, the Senator was plainly giving his views as to what constitutes 'legal jeopardy.'
11
It should be noted that even Senator Rayner's amendment did not purport to narrow the scope of cases in which the Government could appeal; it only sought to remove any 'double jeopardy' problem by declaring that the defendant should retain a favorable decision, whatever the result on appeal.
On the third day of debate, the amendment was agreed to, modified to read:
'Provided, That if upon appeal or writ of error it shall be found that there was error in the rulings of the court during the trial, a verdict in favor of the defendant shall not be set aside.' 41 Cong.Rec. 2819.
Senator Rayner's earlier opponents continued to insist that no material change had been made by the amendment, since as they had argued, there would be no appeal in any event where the defendant had received a 'verdict' in his favor, see opinion of THE CHIEF JUSTICE, ante, p. 308, as opposed to securing a favorable 'judgment' by the trial court's action in sustaining his plea or arresting judgment. See 41 Cong.Rec. 2820. Without explanation, the Conference Committee changed the amendment to read:
'Provided, That no writ of error shall be taken by or allowed the United States in any case where there has been a verdict in favor of the defendant.'
Subsequent amendments to the Act omitted the proviso altogether (which no longer appears in the current version) thus vindicating the arguments of Senator Rayner's opponents that the amendment had no substantive effect.
| 23
|
399 U.S. 508
90 S.Ct. 2232
26 L.Ed.2d 773
Phillip MORRIS et al., appellants,v.Hiram SCHOONFIELD, Warden, et al.
No. 782.
Supreme Court of the United States
October Term, 1969.
June 29, 1970
Robert G. Fisher, Baltimore, Md., for appellants.
George L. Russell, Jr., Baltimore, Md., for appellees.
PER CURIAM.
1
We noted probable jurisdiction1 and set the case for oral argument with Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586, decided today. However, Maryland has recently enacted legislation2 dealing directly with the issue presented, and our holding in Williams, that an indigent may not be imprisoned beyond the maximum term specified by statute solely because of his failure to pay a fine and court costs, may shed further light on the question raised here. We therefore vacate the judgment and remand the case to the District Court for reconsideration in light of the intervening legislation and our holding in Williams v. Illinois, supra.
2
Mr. Justice BLACKMUN took no part in the consideration or decision of this case.
3
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, concurring.
4
I agree that this case should be remanded for reconsideration in light of our opinion in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586, and the recent enactment by the Maryland General Assembly of new legislation bearing on the questions presented.
5
However, I deem it appropriate to state my view that the same constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make immediate payment of any fine, whether or not the fine is accompanied by a jail term and whether or not the jail term of the indigent extends beyond the maximum term that may be imposed on a person willing and able to pay a fine. In each case, the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.
6
As I understand it, Williams v. Illinois does not mean that a State cannot jail a person who has the means to pay a fine but refuses or neglects to do so. Neither does it finally answer the question whether the State's interest in deterring unlawful conduct and in enforcing its penal laws through fines as well as jail sentences will justify imposing an 'equivalent' jail sentence on the indigent who, despite his own reasonable efforts and the State's attempt at accommodation, is unable to secure the necessary funds. But Williams means, at minimum, that in imposing fines as punishment for criminal conduct more care must be taken to provide for those whose lack of funds would otherwise automatically convert a fine into a jail sentence.
1
397 U.S. 960, 90 S.Ct. 990, 25 L.Ed.2d 252.
2
Chapter 147 of the 1970 Laws of Maryland (approved April 15, 1970).
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